Can Brexit be Reversed? The Advocate General’s Opinion on the Revocability of Article 50 TEU
Chloé Brière (Université Libre de Bruxelles)
Since the EU referendum on 23 June 2016, the decision of the United Kingdom to withdraw from the European Union has been the source of very important legal questions, closely intertwined with political considerations. One of these questions concerns the possibility that the UK could revoke its decision to withdraw from the EU.
After the judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union, which had assumed the irrevocability of a withdrawal notification, a group of Scottish parliamentarians launched an action that resulted in a request for a preliminary reference to the Court of Justice of the European Union made by the Inner House of the Court of Session in Scotland. The legal question raised is rather simple, and consists in knowing whether, under Article 50 TEU, a Member State that has notified to the European Council its intention to withdraw from the EU is allowed to unilaterally revoke its notification. As Article 50 TEU is silent on that issue, the answer of the EU judiciary is crucial, especially considering the difficult debate taking place these days in the UK House of Commons on the Withdrawal Agreement.
It is in this very particular context that the Advocate General Campos Sánchez-Bordona delivered on 3 December 2018 his Opinion on the interpretation of Article 50 TEU. Although his Opinion is only advisory, it has recieved a lot of attention, especially in light of the interpretation he proposes.
The Advocate General summarises his conclusion as follows:
“When a Member State has notified the European Council of its intention to withdraw from the European Union, Article 50 of the Treaty on European Union allows the unilateral revocation of that notification, 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.”
In layman’s terms, the Advocate General proposes to the Court of Justice to interpret Article 50 TEU as allowing a State to unilaterally revoke its intention to withdraw from the EU and to remain an EU Member State, under certain conditions.
To reach this conclusion, the Advocate General conducts an analysis in three steps of the legal question brought before the CJEU. Firstly, the AG stresses the autonomy of the EU legal order towards public international law, insisting that Article 50 TEU, as a lex specialis, is the only provision governing the withdrawal (and the revocation of such withdrawal) from the EU. Rules of public international law, including Article 68 of the Vienna Convention on the Law of Treaties, are only considered as interpretative guidelines. Secondly, the AG, relying on the interpretative techniques usually used by the Court of Justice, suggests an interpretation of Article 50 TEU allowing unilateral revocation by a Member State of its intention to withdraw from the EU. In his view, allowing such revocation would safeguard the expression of the sovereignty of the departing State, which remains free to change its will. Such unilateral revocation would be possible until the withdrawal agreement is concluded and it would thus remain possible even beyond the two-year negotiation period, if the latter were extended in accordance with Article 50 (3) TEU. The revocation would be valid on the conditions that it takes the form of a formal act adopted in accordance with the State’s own constitutional requirements, and that it does not constitute an abuse. Finally, the AG rejects the argument brought for the Commission and the Council, according to which Article 50 TEU would only allow a revocation after a unanimous decision of the European Council.
The interpretation proposed by the Advocate General, should it be followed by the Court of Justice, would have a strong political impact. As mentioned by the AG himself, it would open a third way, enabling the Parliament to call upon the UK Government to revoke the notification of the intention to withdraw, so that the UK could remain in the EU. However, many factors of uncertainty are still present. It is not certain that the Court of Justice would follow the interpretation of the AG, especially in a field where there are no precedents and no established case-law, and the judgment of the Court remains eagerly expected. It is even less certain whether in the current UK domestic political climate, an action carried out in accordance with the country’s constitutional requirements, such as a referendum, a meaningful vote in Parliament, or the holding of general elections, would produce a majority opposing to the withdrawal from the EU and leading to a unilateral revocation of the withdrawal.
Dr Chloé Brière is Post-doctoral Research Fellow at the Université Libre de Bruxelles (ULB). Her research on the external relations of the EU in criminal matters is funded by the Belgian National Fund for Scientific Research (F.R.S – F.N.R.S).