Currently, there are no indications that either the UK government or the opposition Labour party are contemplating the reversal of the UK’s withdrawal from the EU. Neither party seems interested in initiating another referendum concerning EU membership. Nevertheless, spurred by Nigel Farage’s recent attempt to garner attention, the possibility of an additional Brexit referendum, which inherently implies the revocability of the Article 50 notice, remains a topic of public discourse.
Considering this context and a recent European Parliament report on the matter, Professor Stephen Weatherill argues against the unilateral revocability of the Article 50 notice. This piece presents his argument alongside a counter-argument from Professor Steve Peers.
Why the withdrawal notification under Article 50 TEU is not unilaterally revocable
By Professor Stephen Weatherill, Somerville College and Law Faculty, University of Oxford
The recently released European Parliament report, “The (ir-)revocability of the withdrawal notification under Article 50 TEU,” delves into an issue that could significantly impact the trajectory of the Brexit process. The core question is whether the withdrawal notification under Article 50 TEU can be revoked, and if so, whether a member state can do so unilaterally. This question is central to the UK’s potential change of heart regarding EU membership. My stance is that unilateral revocation of the notification is not permissible.
The report, authored by Ioannis Papageorgiou of the Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, starts by acknowledging that Article 50 TEU does not provide clear guidelines on the revocation of a withdrawal notification. It also underscores the Court of Justice’s ultimate authority in delivering a binding interpretation should the opportunity arise. I concur with these points. The report argues that the lack of explicit reference to revocation in Article 50 allows for arguments from both sides. Again, I agree. It dismisses the relevance of the Vienna Convention on the Law of Treaties primarily because the EU legal system, being self-contained, should provide answers from within. Once more, I agree. The report then provides a comprehensive analysis of both sides of the debate. It notes that there’s a prevailing view among UK scholars and politicians that the UK has the right to unilaterally revoke its withdrawal notification. I acknowledge the existence of this perspective, but this note aims to counter it.
First, let’s examine the matter from a cost-benefit perspective. A nation that announces its intention to withdraw under Article 50 TEU and then reverses course incurs substantial costs. Such actions necessitate reallocation of resources from other areas to the now-canceled negotiations. Allowing unilateral revocation means these costs are borne by the parties involved – the withdrawing state covers its expenses, and the EU-27 (the remaining 27 member states and the EU institutions) do the same. This scenario allows the state that initially wanted to leave to externalize the costs incurred by the EU-27 due to its actions. Consequently, it reduces the withdrawing state’s motivation to thoroughly assess the implications before issuing the Article 50 notification.
Conversely, an interpretation that prohibits unilateral revocation and mandates agreement from the EU-27 ensures that the withdrawing state might have to bear the financial burden of its decision. Logically, the party best positioned to minimize these costs should be held responsible – in this case, the UK, as the initiator of the process. Generally, it seems fair that the party incurring the costs should also bear them. More specifically, this approach is desirable because it prevents a state from externalizing the costs, prompting a comprehensive evaluation of the implications beforehand. This logic supports rejecting unilateral revocation and advocating for revocation through a bargaining process that facilitates cost allocation.
Another aspect of this debate revolves around democracy. Should a state be prohibited from altering its decision? If the citizens, perhaps through a referendum or an election resulting in a change of government, clearly express their desire to remain in the EU, why should Article 50 hinder the realization of this democratic will?
This argument favors interpreting Article 50 as permitting revocation when the withdrawing state and the EU-27 reach a political consensus. However, it weakly supports unilateral revocation. Permitting unilateral revocation implies that the financial burden, even if indirectly through the EU budget, partially falls on the taxpayers of other member states. This means voters in nations like Germany, Italy, and France would be expected to bear the cost of decisions made by the UK without having a voice in the process.
A significant portion of EU law is shaped by the understanding that national decisions have cross-border implications. This necessitates regulations on how states impact one another, evident in laws governing free movement and state aid, which limit national regulatory autonomy. EU regulations restrict state actions because those affected in other member states lack representation in the national political processes. Granting a unilateral right to revoke an Article 50 notification contradicts this principle by allowing the withdrawing state to transfer costs to others. Mandating negotiation between parties for revocation ensures that all stakeholders affected by the decision have a say. In essence, because revocation affects more than just the UK, the decision shouldn’t solely rest with the UK.
The argument thus far hinges on the principles of fair cost allocation and inclusive decision-making. An Article 50 notification should not be subject to unilateral revocation to ensure states thoroughly assess the implications of their actions and provide all involved parties with a voice. However, this argument is moot if Article 50 contradicts it, which it doesn’t.
Article 50 does not address revocation. We must, therefore, analyze its framework and objectives. A scenario favoring unilateral revocation safeguards the withdrawing state’s flexibility. However, this contradicts both the structure and the purpose of Article 50. Once a notification is submitted, the process is managed entirely by the EU-27. Post-notification, guidelines are issued by the European Council; the Union negotiates an agreement with the withdrawing state, which is concluded by the Council, acting by a qualified majority, upon obtaining the European Parliament’s consent. The Treaties cease to apply to the withdrawing state either on the withdrawal agreement’s effective date or two years after the notification, unless unanimously agreed otherwise. Article 50(4) excludes the withdrawing state from relevant discussions held by the European Council and Council.
This framework prioritizes the actions of the EU-27 and does not focus on safeguarding the withdrawing state. The main principle behind Article 50 is to ensure that once a state announces its intention to leave, the interests of the remaining members and the EU institutions take precedence. Granting the withdrawing state an additional unilateral right of revocation contradicts this framework.
A practical illustration emphasizes this point. If a withdrawing state had the right to unilateral revocation, it could submit a withdrawal notice and then, after 23 months, change its mind if unsatisfied with the deal. This approach could even allow a state to withdraw a notice after 23 months, realizing a favorable agreement is unlikely within the 24-month timeframe, only to issue another notice shortly after and restart the process. This maneuver allows them to avoid any accountability for the incurred costs.
One might argue that such actions constitute an abuse of law, leading to political repercussions. However, a superior solution aligning with the structure and purpose of Article 50 is to completely eliminate the possibility of unilateral revocation. This interpretation also discourages states from initiating Article 50 unless certain about leaving, even with the risks of an unfavorable agreement or no deal. This aligns with the framework of Article 50, which prioritizes the protection of the 27 over the 1. The government that issues an Article 50 notification and delays internal discussions regarding its future relationship with the EU for nine months is undoubtedly in a precarious position, but it’s a situation of their making. There is no provision within the framework of Article 50 that supports granting a unilateral right of revocation, especially since it allows for cost imposition on the EU-27 and undermines the protections offered to them. Quite the contrary, Article 50 should not be understood as providing a unilateral right to revoke the withdrawal notification.
One final point solidifies the case against unilateral revocation. Article 50 only addresses the notification of an ‘intention’ to withdraw, and intentions can change. Can a state, therefore, retract its notification based on a change of heart? This argument might seem appealing to those advocating for maximum flexibility for the UK, but it lacks merit. The notification, regardless of any subsequent shift in intent, triggers a process. The EU-27 acts on the notification, initiating preparations for negotiations. Attempting to establish a right of unilateral revocation based on a change of heart places undue strain on the language of Article 50 and goes against its framework and intended purpose.
This analysis focuses solely on legal interpretation and not political maneuvering. However, the legal framework partially shapes political realities. A legal right to unilaterally revoke the Article 50 notification eliminates any political roadblocks the UK might face if it chooses to remain in the EU. They could simply resume their previous status, incurring minimal cost apart from reputational damage. However, if, as I argue, no such right exists, the UK will need to navigate these political obstacles, including negotiating the terms of their return. This situation weakens the UK’s position, a predicament they have created for themselves. The structure, purpose, and language of Article 50 do not offer the UK a unilateral right to revoke its withdrawal notification.
The case for unilateral revocability of the Article 50 notice
By Professor Steve Peers, University of Essex
A reversal of Brexit seems implausible, and any attempt to revoke the Article 50 notice would likely be primarily a political process. However, considering whether unilateral revocation of an Article 50 notice is possible is still relevant, particularly if the political landscape shifts drastically. I agree with Professor Weatherill that the legal position would hold weight even in a predominantly political process. Crucially, the power of unilateral revocation would mean the UK wouldn’t need to offer concessions to remain in the EU, significantly altering the dynamics of the process.
While legal arguments exist for both non-revocability and unilateral revocability, the legal, as opposed to political, arguments for ‘revocability only with consent’ are weak. Ultimately, while the ECJ’s interpretation of Article 50 remains unknown, I believe the stronger argument favors unilateral revocability of the withdrawal notice.
Let’s examine the ECJ’s case law. Since there’s no existing case law directly related to Article 50, we can only draw upon loosely analogous cases. One such case, a 2015 asylum law judgment, pertains to a member state’s ability to revoke a refugee’s residence permit despite the relevant EU legislation lacking explicit provisions for such an action.
The Court, in paragraphs 47-50 of the judgment, stated that despite the absence of a specific provision, several arguments support the interpretation that member states are permitted to revoke a residence permit. First, the legislation does not explicitly forbid the revocation of a residence permit. Second, revoking a permit aligns with the legislation’s objective because it allows Member States to refuse to issue or renew a permit on national security grounds. Third, revocation aligns with other provisions concerning potential national security risks associated with refugees.
While refugee law differs from the EU withdrawal process, it offers valuable insights. Firstly, the Court refutes the argument that the lack of a specific revocation clause equates to its impossibility. On the contrary, the judges rule that if revocation is not explicitly prohibited, it is permissible. Second, the legislation’s aim is paramount. Professor Weatherill’s argument centers around this point; however, I interpret the aim of Article 50 differently. Third, consistency with other provisions concerning the same issue is vital. While logically sound, this reasoning is difficult to apply to EU withdrawal because Article 50 is the only relevant provision.
One could argue that the revocation of a residence permit involves a member state’s authority over non-citizens within its borders, distinct from its relationship with other member states. This is a valid point. So, let’s analyze an EU Treaty process that addresses whether a member state can unilaterally revoke a notification issued to EU institutions.
This process, ’enhanced cooperation,’ is outlined in Articles 329 and 331 of the Treaty on the Functioning of the European Union. Rarely utilized, it enables a group of member states to implement EU legislation without the participation of others. It commences when willing member states submit a request to the Commission. But what if a member state changes its mind about participating during negotiations? Can they retract their initial intention to participate?
The EU Council’s legal service has issued a comprehensive, albeit heavily redacted, opinion on this matter. However, I have been granted access to the full text. Let’s delve into its stance on the key issues. Notably, the UK government has previously based its arguments on similar legal advice.
The Council’s legal service begins by recognizing that the Treaties lack specific provisions regarding a member state retracting its participation in enhanced cooperation during negotiations. However, it contends that in the absence of explicit provisions, one must interpret the relevant Treaty clauses on enhanced cooperation. This interpretation should consider the objectives and two fundamental attributes of enhanced cooperation: the voluntary nature of participation and its openness and flexibility.
Regarding the first point:
The decision to partake in enhanced cooperation rests solely with the member states based on their own volition. Therefore, participation in enhanced cooperation is based on a voluntary act from each member state. The expression of willingness to participate and its subsequent withdrawal is an act of free will of the member states, ceasing only upon the adoption of the act establishing enhanced cooperation. (footnotes omitted)
The initial step, authorizing enhanced cooperation, establishes whether the conditions for its implementation are met, allowing willing members to proceed. Importantly, however, “that decision does not create an obligation to do so” (emphasis added).
Concerning the second point, the openness of enhanced cooperation is “characterised by [the] simplicity” of its rules. No new decisions are required for a Member State to join already existing enhanced cooperation initiatives.
While withdrawing from established enhanced cooperation is not possible:
Before that point - between the authorizing decision and the establishment of enhanced cooperation - a Member State can withdraw its stated intention to participate, bearing in mind the voluntary, open and flexible character of enhanced cooperation.
The initial decision to authorize enhanced cooperation doesn’t definitively establish its content, and Member States “must…be able to stop their participation in the establishment of enhanced cooperation.” Furthermore:
Not allowing unilateral withdrawal at this stage could discourage Member States from proceeding with enhanced cooperation before knowing its precise and definitive content, contradicting the objective of “promot[ing] participation by as many Member States as possible” (Article 328(1) second subparagraph TFEU).
The procedure for withdrawal should be straightforward and unilateral:
The Council Legal Service believes that no modification of the authorising decision is required for a Member State’s withdrawal to take effect. In the absence of any formality required by the Treaties, a Member State wishing to withdraw from enhanced cooperation should simply notify its intention to the Council and to the Commission in written form or through a statement delivered at a Council meeting. No further act of the Council and/or of the Commission is necessary for the notification to take effect. As from the moment of such notification, the Member State concerned should no longer be considered as wishing to participate in the establishment of enhanced cooperation and therefore, should not take part in the vote for the adoption of the act.
….A more formalistic approach requiring, for instance, a modification of the authorising decision would ignore the voluntary, open and flexible character of enhanced cooperation, since the interested Member State would not be able to withdraw on its free will, but would depend on the will of the Commission to propose an amending act of the authorising decision, of the Council to adopt the amended authorising decision and of the European Parliament to grant its consent. (footnotes omitted)
While not legally binding, this analysis of the Council legal service offers insights that could apply to Article 50. The lack of a provision for revoking an intention is not decisive. The crucial aspects are the voluntary and flexible nature of the process and the overall objectives of integration. A member state can unilaterally change its mind, even after the procedure’s initial stage, as long as the final decision is pending. Article 50 is similarly a voluntary process with an initial notification of withdrawal followed by negotiations before the withdrawal is finalized. The EU’s integration objectives are undoubtedly served by enabling a member state to reconsider its decision to leave.
Now, let’s address Professor Weatherill’s arguments. First, he suggests that the costs associated with Article 50 negotiations imply that unilateral revocation is impractical. However, this approach is inconsistent with other comparable EU procedures. For instance, a single member state can veto a proposed EU law. While terminating the negotiation process due to a veto generates costs, there’s no argument against a member state’s ability to exercise this veto unilaterally. Similarly, a proposed treaty amendment can be blocked if a single member state refuses to ratify it. The most relevant analogy is the accession process, which a potential member state can halt by ending negotiations or refusing to ratify the accession treaty despite the significant resources invested.
In each of these scenarios, the authority to act unilaterally is unquestioned, despite inconveniencing other states and EU institutions. This stems from the principle of national sovereignty—the same sovereignty embodied in the right to withdraw from the EU, facilitated by Article 50. Furthermore, concerning the UK, it’s illogical to prioritize the costs borne by the EU-27 due to a revoked Article 50 notification. This is especially true because a U-turn on Brexit would mean a significant net contributor to the EU budget remains. Regardless, protracted negotiations concerning the revocation of withdrawal are likely to be more costly than accepting the revocation and reverting to the status quo.
Professor Weatherill reiterates the cost argument concerning democracy. However, the very existence of the withdrawal option prioritizes the democratic choices of the withdrawing state over their impact on the remaining members. While it’s true that “a revocation does not affect only the UK,” the same applies even more strongly to the power of withdrawal. However, the Treaties grant the UK sole power over withdrawal; therefore, granting the same power over revocation is a logical consequence.
Regarding the wording of Article 50, I arrive at a different conclusion. While it outlines detailed rules for the EU institutions and the remaining member states in negotiating and concluding a withdrawal agreement, it provides no such guidance for a member state revoking its notification. Logically, this suggests either that revocation is not permitted, or that unilateral revocation is permitted. Note that the ECJ case law and the Council legal service opinion discussed earlier favor the latter interpretation in analogous situations. The least plausible interpretation is that the Treaty’s drafters intended for such rules to exist but neglected to include them. To strengthen this argument, consider the detailed procedural rules for treaty amendment, accession, and EU negotiations with non-EU states, all revised in the Treaty of Lisbon, which established Article 50. It seems unlikely that the drafters would neglect to outline rules for revoking an Article 50 notification.
What about a member state revoking its withdrawal notification and then reissuing it to secure more time for negotiation? While I agree with Professor Weatherill that the “abuse of law” concept is somewhat ambiguous, it is a recognized principle in EU law. It could be clarified, if necessary, should such an abuse occur within the context of Article 50. On the other hand, Professor Weatherill’s argument for negotiated revocability depends on procedural rules that lack explicit mention in the Treaty and are not recognized in existing case law. Compared to the relatively clear notion of “abuse of rights,” “procedure for negotiating revocation” is far more nebulous.
Similarly, while revoking a withdrawal notification might strain the interpretation of Article 50, creating a process for negotiated revocability strains it further. While protecting the remaining member states’ interests is undoubtedly one purpose of Article 50, another is to prioritize the sovereign decisions of the withdrawing state. The best way to balance these objectives in the event of unilateral revocation is to recognize that allowing a withdrawing member state to remain in the EU, if it so chooses, ultimately serves the EU’s best interests. This approach balances the EU’s interest in integration with a member state’s sovereign right to decide its membership status.
Barnard & Peers: chapter 27
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