CJEU Advocate General concludes that notice under Article 50 TEU is unilaterally revocable

04 Dec 2018

The Court of Justice of the European Union has published the Advocate General’s Opinion in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union.

In his opinion, Advocate General Campos Sánchez-Bordona concludes:

“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.”

Dismissing the UK Government’s argument that the issue is hypothetical and merely theoretical, the Advocate General’s view is that a unilateral decision by the UK to remain in the European Union in the face of an unsatisfactory Brexit, is a valid option under EU law:

“If the Court accepts that the notification of the intention to withdraw may be revoked unilaterally, the United Kingdom could communicate such revocation to the European Council, and thereby remain a member of the European Union. As the United Kingdom Parliament has to give its final approval, both if a withdrawal agreement is reached and in the absence of that agreement, several members of that parliament consider that if the notice of the intention to withdraw were revocable, this would open a third way, namely remaining in the European Union in the face of an unsatisfactory Brexit. The referring court appears to adopt that position, reasoning that the Court’s answer will have the effect of clarifying the precise options open to members of the United Kingdom Parliament when casting their votes.”

The Advocate General’s proposed answer adopts the answer suggested by Chris Leslie MP and Tom Brake MP, who were represented by Gerry Facenna QC and Anneli Howard, together with Scottish counsel Morag Ross QC and Stephen Donnelly, instructed by Harper Macleod and Bindmans. Their written submissions to the Court are published here.

The Advocate General’s Opinion is not binding on the Court of Justice; it provides an independent, legal view which the Court may or may not follow. Judgment of the Court of Justice is expected before Christmas.

See The Court of Justice of the European Union press release here.