John Cotter (Keele University)
With the Conservatives’ empty catch-cry ‘Get Brexit Done’ seemingly gaining traction, all signs at present point to a Conservative overall majority on the 13th December. If, however, the looming election were to result in a hung parliament, the likelihood is that the UK would request from the EU another extension to the Article 50 TEU process. Article 50(3) requires that any extension to the withdrawal period is decided unanimously by the European Council, in agreement with the withdrawing State. With no clear pathway out of the quandary in view, and the possibility of negotiations recommencing, there would be a distinct danger that at least one Member State could oppose an extension. One result might be the UK leaving the EU without a withdrawal agreement on the 31st January. The question then arises: could the European Council reject an extension?
In a blog for Verfassungsblog (10th October 2019) (link here and below), Prof. Piet Eeckhout argued – in the context of the October 2019 extension request – that the European Council could not reject an extension request. Given that a UK extension request in January would, in the event of a hung parliament, arise in similar circumstances, the same question may arise again. I argue, contrary to the Eeckhout’s opinion, that the European Council could, as a matter of law, refuse an extension. In particular, I contend that Eeckhout’s argument is premised on a false equivalence between revocation and extension. I also respond to two anticipated counterarguments to my assertions.
My Reply to Prof. Eeckhout: The Extension/Revocation False Equivalence
I have indicated in a previous blog posted on the DCU Brexit Institute Blog (21st October 2019) (link below) that I disagree with the Court of Justice’s judgment in Wightman. Nevertheless, however misguided I believe that judgment to be, the merits of Eeckhout’s arguments must be considered against the interpretation of Article 50 in that judgment. My view is that Eeckhout’s argument, although brilliantly elucidated, is premised on a false equivalence between, on the one hand, a decision by a State to revoke an Article 50(1) notification and, on the other, a request for an extension pursuant to Article 50(3).
The essence of Eeckhout’s argument is that a European Council refusal of an extension request would amount to “expelling a Member State against its own democratic and sovereign will” (at least where that request is a democratic expression of a sovereign desire not to exit the EU without an agreement, rather than, for instance, a tactical ploy). For Eeckhout, therefore, an extension request made in such circumstances must be respected in exactly the same manner as a decision by a State to revoke a notification of intention to withdraw. I believe this to be a false equivalence, since a refusal of an extension does not have the same consequences as a rejection of a decision to revoke. The former does not, as Eeckhout contends, amount to the forced expulsion of a State against its will. Indeed, it is the Wightman judgment itself that makes this abundantly clear: a Member State that has served an Article 50(1) notification is free at any stage up to the moment of exit to revoke its notification. The result, therefore, of a decision to reject an extension request is that the requesting State is left with a decision: revocation, exit without an agreement, or, assuming there is an agreement in place, speedy ratification of that agreement. The existence of these options means that if the Member State ends up withdrawing without an agreement, it is not because it has been compelled to do so by the decision of the European Council; it has done so because it has chosen actively or passively not to withdraw the Article 50(1) notification or to ratify a withdrawal agreement (if one is in place). Moreover, and most significantly, the Court in Wightman made a clear distinction between revocation and extension, rejecting the Council’s argument that they were analogous (paragraphs 59 and 60).
Counterargument 1: The Eleventh-Hour Extension Rejection
There could conceivably be a circumstance where the European Council waits until the last moment before rejecting a request for an extension, leaving insufficient time for the withdrawing State to consider its options. In this context, it should be noted that the withdrawing State would most likely be unable to rely upon Article 265 TFEU as a means to compel the European Council to act in a timely manner, because under that Treaty provision such an action may only be brought two months after calling upon the EU institution to act. The tardiness of the European Council might result in the withdrawing State being left with the binary option of revocation or withdrawal without an agreement. In extremis, there might be no time for revocation, resulting in withdrawal without agreement as the default. In such an unhappy circumstance, refusal of an extension might to all intents and purposes be precisely the same as rejection of revocation of an Article 50(3) notice. I have three responses to this objection. First, it attributes responsibility for the State’s withdrawal to the decision of the European Council. This, however, ignores the fact that the beginning and end of the Article 50 process remain the sole preserve of the withdrawing State: it is that State that triggers the process under Article 50(1) and that can at all times up to the point of exit end the process through revocation, in accordance with the Wightman judgment. Secondly, this almost dystopian scenario reveals serious problems with judicial review of the European Council’s actions. While Eeckhout is correct to state that there is no political-question doctrine in EU law, retrospective review of the European Council’s actions would also be the cause of significant legal uncertainty if the Court of Justice was unable to perform the review before the passing of the Article 50 deadline. Thirdly, this circumstance has something of the ‘ticking time-bomb’ scenario about it; it is extremely unlikely to occur in reality for practical and political reasons.
Counterargument 2: The European Council cannot impose a Binary or Ternary Choice
It might be argued that the European Council has no right to present the withdrawing State with what could be a binary choice between revoke or exit without a withdrawal agreement or a ternary choice between the two aforementioned options and an existing negotiated agreement. Eeckhout’s argument that the whole of the Article 50 process is, from the withdrawing State’s perspective, governed by the ‘constitutional requirements’ of that State could support such a view. Seen in this light, it might be argued that the European Council must respect the requesting State’s sovereign and democratic expression of a desire not to withdraw without an agreement. I have two responses to this argument. First, as a preliminary point, there is nothing in the Wightman judgment that bears out Eeckhout’s assertion that the entirety of the Article 50 process is governed by the ‘constitutional requirements’ of the withdrawing State. Article 50(1) indicates that the process of notification of intention to withdraw takes place in accordance with the withdrawing State’s ‘constitutional requirements’; the Wightman judgment confirms that the decision to revoke is likewise regulated by that State’s constitutional processes. This does not, however, imply the relevance of national ‘constitutional requirements’ to the process bookended by notification and revocation, a timeframe within which the State’s status as a matter of EU law has not altered (paragraph 59 of Wightman). The actions of the EU Council in deciding upon an extension request are accordingly regulated exclusively by EU law, and do not have to take account of national constitutional requirements, which are of relevance to notification and revocation only. As previously stated, revocation and extension are not analogous in this sense. Secondly, this argument again ignores the issue of causation. It is the withdrawing State that delivered the notification under Article 50(1) and that chooses not to exercise its sovereign right to unilaterally revoke it. In circumstances where the responsible EU institutions have fulfilled their task under Article 50(2) to negotiate and conclude a withdrawal agreement, as is the case with the UK, it seems correct that responsibility for a ‘no-deal exit’ ought not to be placed at the door of the European Council for merely refusing an extension request. In such circumstances, withdrawal without an agreement represents the sovereign choice of the departing State.
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 in law at the School of Law, Keele University
John’s previous blog on Wightman: http://dcubrexitinstitute.eu/2019/10/ten-months-later-a-retrospective-of-wightman/
Photo credit: Boris Johnson at the European Council, from the Council of EU Press Room