The Brexit process and the revocation of UK’s intention to withdraw from the EU

Athanase Popov (European Commission)

The ruling of the Court of Justice in Wightman is remarkable, to an extent rarely seen in the case-law of the European judicature, not only because this is a Full Court judgment, not only due to its political consequences on the Brexit process, not only because it was rendered within a remarkably short deadline, but most and foremost due to the quality of its reasoning, subject to a few reservations, even though that reasoning raises new controversies.

The Wightman judgment gives clear answers to a series of questions which have been fiercely debated by legal scholars for several decades, both as regards the right to withdraw from the European Union (EU) and as regards the admissibility of preliminary references triggered by an application for declaratory relief before national courts. Firstly, the judgment confirms that there is a right of unilateral revocation of the withdrawal notification, under certain conditions, while leaving open the question regarding the abuse of law in the context of the said unilateral revocation. Such a risk of abuse is mainly addressed by the requirement to follow the rules of national constitutional law so that the revocation may be legal under EU law. It is surprising to make conformity with EU law contingent upon conformity with national law, in an unprecedented inter-governmental development in the case-law of the Court of Justice, which used to be more integrationist in the past. Yet this new development is beneficial in the fight against Euroscepticism based on accusing the EU of interfering in the Member States’ legal traditions.

Beyond the outcome on the merits, the other ratio decidendi of the judgment, which is equally precious from a theoretical perspective, is the consolidation of the rule that all preliminary references triggered by applications for declaratory relief in what could be considered hypothetical disputes shall be admissible as a rule. That ratio decidendi also applies to preliminary references on validity: the enforcement of the right to an effective judicial protection seems to entail the existence or the construction of national preemptive remedies against EU acts which may not be challenged by natural and legal persons by means of an action for annulment due to a lack of standing. If declaratory remedies exist in national law without being of a preemptive nature, they do not necessarily need to be adapted to accommodate the requirements of EU law (notably pursuant to Article 19(1) TEU), provided that the referring court accepts to apply them in a preemptive manner. Such was the case with the Scots law declarator, a declaratory remedy which may normally not be used in order to settle a hypothetical dispute about the UK government’s intention to withdraw from the EU upon acceptance of the withdrawal agreement (labelled a “deal” by UK politicians, in a derogatory way) or to withdraw without accepting the withdrawal agreement or the revoke the withdrawal notification. Under Scots law, the admissibility of such an action of declarator ought to be inadmissible, yet the Court of Session finally accepted to refer the Article 50 TEU interpretation issues to the Court of Justice of the EU because it knew that the latter’s case-law was increasingly liberal as regards preliminary references triggered by an application for a declaratory remedy, notably since Gauweiler. A similar outcome may be guaranteed via any other national declaratory remedies, e.g. constitutional remedies such as the one at issue in Gauweiler.

In the current context of claims by the new UK government that the withdrawal agreement should either be renegotiated or that a “no deal” withdrawal is the most likely outcome of the Brexit process, one should keep in mind that the “remain” option would still be the most sensible for the UK. Remaining in the EU and in the Euratom Community requires in practice that the UK revoke its withdrawal notification, which it may do only once, e.g. after a second Brexit referendum. National constitutional requirements would not allow the UK to organise more than two referenda on the same issue. The rationale for the second referendum would lie in the requirement to determine matters of constitutional importance by a higher than a simple majority.

Last but not least, even if the UK withdraws from the EU, with or without a withdrawal agreement, pursuant to the European Union (Withdrawal) Act 2018, the European Communities Act 1972 will be repealed on exit day (section 1), yet EU law will remain a source of UK law. EU Regulations in force on exit day will notably be frozen as part of UK law. Thus the UK’s conflictual relation with EU law will not cease whatever happens in the coming months.

Athanase Popov holds a PhD in EU law and is Legal Officer at the European Commission