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Advocate General Delivers Formal Opinion: UK Can Unilaterally Cancel Its Withdrawal from EU

At the request of a number of Members of the Scottish, UK and European Parliament, a UK court asked the Court of Justice whether a Member State in the UK’s position – which has notified the European Council of its intention to leave the EU under Article 50 – may unilaterally revoke that notification. If so, then subject to which conditions. The UK Government has contended that referring such questions to the CJEU is inadmissible and ought not be answered. This is because the questions are hypothetical and merely theoretical, since there is no indication that the Government or UK Parliament are going to revoke the notification of the intention to withdraw. The European Commission, for its part, is of the view that the UK cannot unilaterally cancel its withdrawal, without the consent of the other 27 Member States.

In response to the questions, a Court of Justice statement was released on 4 December 2018. According to the statement, it is the Advocate General’s opinion that the Court of Justice should “declare that Article 50 allows the unilateral revocation of the notification of the intention to withdraw from the EU”. Even though such opinions are not binding, the Court of Justice follows them in a majority of its final rulings.

The Advocate General’s opinion indicates that the dispute is genuine, and not simply theoretical or hypothetical. The question of whether a revocation can be made unilaterally is not merely academic, nor premature or superfluous, but, rather, has obvious practical importance. He is also of the view that the power to interpret Article 50 definitively and uniformly belongs to the Court of Justice. Thus, the interpretation of that Article belongs to the Court, and not – by implication – to any other institution such as the European Commission.

The Advocate General has interpreted Article 50 by referring to provisions of the Vienna Convention on the Law of Treaties, on which Article 50 is based. Recourse is made to those provisions in the absence of express wording in Article 50 itself. Thus, pursuant to Article 68 of the Vienna Convention, notifications of withdrawal from an international treaty may be revoked at any time before they take effect. Mr. Campos Sanchez-Bordona has also pointed out that Article 50 provides for a Member State which decides to withdraw to notify the European Council of ‘its intention’ — and not of its decision — to withdraw. It is entirely logical that such an intention, which is not yet a decision, may change.

However, there are conditions attached, according to the Advocate General’s opinion. The revocation must firstly be decided upon in accordance with the UK’s own procedural requirements. Even the Advocate General’s opinion indicates this, i.e., that unilateral revocation of an Article 50 notification by a Member State must respect that Member State’s constitutional requirements. As the Court’s announcement on the formal opinion states, “If, as is the case in the UK, prior parliamentary authorisation is required for the notification of the intention to withdraw, it is logical that the revocation of that notification also requires parliamentary approval.”

It is thus currently believed that the UK Parliament would need to vote in order to revoke the Article 50 notification. However, such a parliamentary vote for revocation would (logically) only be held if Mrs. May’s withdrawal deal is defeated in Parliament, and if, after that, the UK were to vote “Remain” in a second referendum before 29 March next year. As also mentioned by the Advocate General, there is a time limit on the possibility of revocation, since revocation is possible only within the two-year period (i.e., until 29 March 2019).

In the latest news concerning Brexit, while the UK’s House of Commons is still scheduled to vote on Mrs. May’s withdrawal deal on 11 December 2018, it has come to light that the Court of Justice ruling – on whether the UK can cancel Brexit by revoking their notification under Article 50 –  will be issued the day before. Thus, EU judges are now scheduled to issue their ruling on this question on 10 December. Whether or not they will follow the Advocate General’s opinion discussed above remains to be seen.

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