Ten Months Later: A Retrospective of Wightman
John Cotter (Maastricht University)
It is now almost ten months since the Court of Justice handed down its ruling in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union. At the time of the ruling, I felt that the Court of Justice had got its ruling wrong, profoundly wrong in fact. It had been my hopeful expectation that the Court would rule the Article 50 TEU notification revocable, but with the unanimous agreement of the European Council. My reasons for believing this would be the optimal outcome mirror the submissions of the Commission and Council before the Court, so it is not necessary to repeat them. In the time that has passed since the ruling, I have had the opportunity to reflect and I have only become more convinced that the Commission and Council arguments were correct.
I can understand that there is much to commend the ruling and that the judgment is deeply satisfying in terms of the cogency of its legal reasoning, as well the political nous exhibited by the Court in the context of the contemporaneous debates on sovereignty in the UK. The ruling was a godsend to remainers, and those outside the UK who wished for the UK to remain, for two reasons. First, it made the prospect of a revocation of the Article 50 notification a far less remote possibility. Secondly, the judgment provided a ready reply to the Brexiteers who had claimed that the UK had lost its sovereignty in the EU; the Court now made it clear that it was the UK’s sovereign decision to notify the EU of its intention to leave and it was similarly the UK’s sovereign right to revoke that notification unilaterally. The appeal of the reasoning, both in its own terms and emotively, meant that many lawyers retrospectively treated the ruling as if it had been inevitable (a brand of historical determinism tends to be a phenomenon in retrospective treatment of major constitutional cases). My view is that the appeal of Wightman is less obvious when the Court’s judgment is probed further and, most importantly of all, divorced from the specific context of Brexit.
The judgment in Wightman was, in my opinion, an exercise in legal formalism that is uncharacteristic of the normal approach adopted by the Court of Justice in its seminal judgments. This formalistic approach relied heavily on grammatical, historical, and systematic interpretation, with teleological interpretation, the method most associated with the Court, being relegated to a secondary importance. The Court’s reasoning, as I have already said, was not unconvincing in its own terms. However, the judgment was but one road taken by the Court in preference to at least one other. The metaphorical fork in the road occurred at paragraph 56 of the judgment. The Court had at that point already concluded that an Article 50 notification could be revoked; it then needed to determine whether unilaterally or otherwise. Following on from the prior systematic reading of Article 50 itself, the Court observed that Article 50 pursues two objectives: (1) “enshrining the sovereign right of a Member State to withdraw from the European Union”, and, (2) “establishing a procedure to enable such a withdrawal to take place in an orderly fashion.” In my view, from this point forward the judgment made two interconnected mistakes related to the Court’s treatment of these objectives.
First, the judgment failed to consider adequately the impact that unilateral notification might have on “orderly withdrawal”. The potential disruption caused to the institutions of the EU, other Member States, as well as EU citizens of notification of intention to leave followed by revocation were not considered at any length. This is especially problematic given that the Court of Justice, whether for reasons of judicial economy or otherwise, did not insert any concrete safeguards to protect against abuse of unilateral revocation. While a revocation must be “unequivocal and unconditional, that is to say … that revocation brings the withdrawal to an end” (para 74), it is difficult to see how or on what basis the intentions of the revoking State could be questioned, even if it appeared at the time of notification or subsequently that the purpose of the revocation was to frustrate the two-year time period specified in Article 50(3). The context within which such events occur should also be considered. Although what I am about to say is highly contestable, I maintain that a decision to leave the EU, given the scale of the task of unravelling years of economic and political integration, is not the action of a politically stable State. It is highly likely there will be significant political and popular opposition. This has been the case in the UK, where the 2016 referendum returned a very narrow victory for the leave campaign. The result of the Wightman judgment was to make ‘revoke’ a far less remote possibility. The Liberal Democrats have recently seized this opportunity by adopting a policy of promising to revoke the Article 50 notification if they were to win power in a general election. Although the Liberal Democrats are unlikely to win an overall majority in the House of Commons, the destabilising effect of elections being fought into the future on the basis of trigger versus revoke mandates should be obvious. Consider for a moment the impact that an on-again/off-again or even the on-going anticipation of same on the Northern Ireland peace process. Given that revocation could give rise to consequences for the EU institutions themselves and other Member States, it would have seemed sensible to leave what was a political decision affecting the interests of more than just the withdrawing Member State to the European Council as a guardian of that greater interest.
Secondly, the ruling, as well as failing to adequately consider its potential impact on an “orderly withdrawal”, attaches greater significance to the “sovereign right” of a Member State to withdraw than it does to the rights and interests of the EU institutions, the other Member States, as well as their citizens. Although the Court of Justice pays lip-service to the “new legal order” language of Case 26/62 Van Gend en Loos, the judgment does much to characterise the EU in traditional international law terms: Article 50 as enshrining the sovereign right of a Member State to withdraw; the use of the Vienna Convention of the Law of Treaties as an interpretative tool. Although this might be argued as a correct interpretation of the consequences of the insertion of Article 50 TEU by the Treaty of Lisbon, it should be recalled that the Court of Justice as an institution of the EU has, pursuant to Article 13(1) TEU, a duty to “serve [the Union’s] interests, those of its citizens and those of the Member States.” I would suggest respectfully that the Court of Justice in Wightman did not balance these interests adequately. In a manner inconsistent with the more nuanced understanding of sovereignty that underpins the EU’s aim of creating an ever closer union of the peoples of Europe, the Court of Justice focussed solely on the sovereign decision of the UK and its democratic processes without reflecting on the impact of that decision and those processes on its neighbours. The possibility of one European Council member blocking a revocation request would of course be a potential problem, but one, I would suggest, that would be unlikely to occur in practice if the revoking Member State could demonstrate that circumstances had changed to the extent that it could be said with confidence that the withdrawal procedure was being brought to an end. Moreover, the possibility of a veto would act as a significant deterrent to the triggering of Article 50 in the first place.
In summary, while Wightman might for many have been a fleetingly satisfying judgment, its long-term legacy may be troubling: the removal of the ability of the European Council to protect wider interests in the specific context of a revocation of an Article 50 notification and the possible erosion of the real meaning of the EU as a “new legal order” of international law
The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.
John Cotter is a lecturer at the Department of International and European Law, Faculty of Law, Maastricht University.