Personal Immigration

Unilateral Article 50 revocation: Advocate General’s Opinion in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union

Advocate General Campos Sánchez-Bordona proposed on 4 December 2018 that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU.  He advised that that possibility continues to exist until such time as the withdrawal agreement is formally concluded. The full Opinion in Wightman is accessible here.

Wightman was a referral of October 2018 from the Court of Session, Inner House, First Division (Scotland) and asks the Court of Justice whether a Member State which has notified the European Council of its intention to withdraw from the EU in accordance with Article 50 TEU may unilaterally revoke that notification and, if so, subject to what conditions.

The UK Government had contended that the question referred for a preliminary ruling was inadmissible, due to being hypothetical and merely theoretical.  However, the Advocate General did not agree:

the Court is not engaged in issuing an advisory opinion, but rather cooperating with the referring court so that the latter may resolve a genuine dispute between two parties with well-defined legal positions and which requires the interpretation of Article 50 TEU. Faced with the uncertainty as to whether the procedure laid down in that provision allows for the notification of the intention to withdraw to be revoked unilaterally, the referring court must give a declaratory judgment, with important ramifications, which, in turn, depends on the interpretation of a provision of the Treaty on European Union.

The Advocate General proposed that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

This means that, if the UK wished to and legislated to, it could stop Brexit.  As a sovereign nation, the UK can unilaterally choose to exercise its sovereignty and change its initial decision.  Just as the other EU member states did not have to agree to the UK choosing to leave, they do not have to agree if it withdraws its decision.

This is in line with the provisions of the Vienna Convention on the Law of Treaties on which Article 50 TEU is based. Pursuant to Article 68 of that convention, notifications of withdrawal from an international treaty may be revoked at any time before they take effect.  

Withdrawal from an international treaty – treaty-application-ending, rather than treaty-making, is by definition a unilateral act of a State and a manifestation of its sovereignty.

The Advocate General deduces various reasons in favour of the notification of the intention to withdraw being unilaterally revocable:

  • Firstly, the conclusion of an agreement is not a prerequisite for a withdrawal to be completed.
  • Secondly, Article 50(2) TEU states that a Member State which decides to withdraw is to notify the European Council of ‘its intention’ — and not of its decision — to withdraw, and such an intention may change.
  • Thirdly, the unilateral nature of the first phase of the procedure under Article 50 TEU, in which the Member State decides to withdraw from the EU in accordance with its own constitutional requirements, is projected onto the subsequent phase (of negotiating the terms of its withdrawal with the EU institutions), in such a way that if the withdrawal decision is revoked in accordance with the departing Member State’s constitutional procedures, its foundation will disappear.
  • Lastly, the rejection of revocation would entail the forced exit from the EU of a State which continues to be an EU Member State in all respects. It would be illogical to force that Member State to withdraw from the EU in order to then have to negotiate its accession. In the Advocate General’s view, the legal acts adopted by reason of the negotiations are measures concerned with the negotiation or agreements adopted with a view to the future withdrawal, and do not preclude the notification of the intention to withdraw from being unilaterally revoked.

Not placing obstacles in the way of the continued EU membership of a Member State that decides to leave the EU, but then changes its stance, in accordance with its constitutional requirements, and wishes to continue being an EU member is the way to ensure the protection of the rights acquired by EU citizens, which the withdrawal of a Member State will inevitably restrict.

The possibility of unilateral revocation is subject to certain conditions and limits:

  • First, like the notification of the intention to withdraw, the unilateral revocation must be notified by a formal act to the European Council.
  • Secondly, it must respect national constitutional requirements.  After Miller, this would require an Act of Parliament
  • There is also a temporal limit on the possibility of revocation, since revocation is possible only within the two-year period that begins when the intention to withdraw is notified.
  • The principles of good faith and sincere cooperation must also be observed, in order to prevent abuse of the procedure laid down in Article 50 TEU.

The Advocate General rejects the contention that Article 50 TEU only allows the possibility of a revocation following a unanimous decision of the European Council.  The Advocate General found the requirement of unanimity to be incompatible with Article 50 TEU. This would risk a Member State being pushed out of the EU against its will.

Ultimately, the decision of the Advocate General is not binding, but it is authoritative.  The Court of Justice determination will be delivered in due course and will set out how Article 50 TEU is to be determined.

In this writer’s view, if the Court finds that the UK cannot unilaterally revoke Article 50 TEU and a decision to change its mind required assent of all Member States, there would be great constitutional difficulties in the UK.

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