Wightman AG opinion

05 Dec 2018

In his opinion today, the Advocate General at the CJEU has made clear that Brexit is not a one-way cul-de-sac with no prospect of turning back. Even at the point where the withdrawal agreement has been negotiated, the UK can take stock and reflect during a “cooling off period” that continues for the two year period in Article 50, right up to the point where the withdrawal agreement is concluded by mutual agreement on both sides.

The opinion is important since it breaks the “Sophie’s choice” between approving the deal and leaving the EU without a deal. Both options present insurmountable compromises for the UK in terms of economic disruption to its trade in goods and services and loss of individual rights for its citizens. As the AG indicates, if his opinion is followed, the eventual ruling from the CJEU and Court of Session will open up a “third way” for MPs in Westminster to take the initiative of unilaterally revoking the UK’s decision to withdraw from the European Union. Interestingly, he even goes so far to say that if there is a democratic change which reverses the decision to withdraw, deprives it of its effect or removes its constitutional basis, the State “can and must” notify that change to the Council.

Importantly, in interpreting the scope of Article 50 TEU in the light of the aims of the Treaties and international law, the AG has come down firmly in favour of unilateral revocation rather than subjecting the State’s change of mind to additional hurdles, such as obtaining the unanimous consent of all 27 Member States in the European Council. He regards unilateral revocation as key to respecting the sovereign will of a State to change its mind in line with its constitutional requirements, respecting democracy and preserving rather than destroying the fundamental rights of citizens in the UK and other Member States.

In his view, the right to revoke should be subject to a few simple formalities:

(i) a formal notice of revocation setting out the reasons for the change of heart;

(ii) exercised in accordance with the national constitutional requirements (be that another election, referendum or parliamentary meaningful vote as the case may be);

(iii) within the two year negotiating period in Article 50 – i.e. before 29 March 2019 or before a withdrawal agreement is concluded by both sides (whichever is the earliest); and

(iv) in good faith and in line with the State’s duty of sincere cooperation under the Treaty. That means that it cannot be misused for tactical negotiating advantage or abused for ulterior purposes.

Conversely, the AG rejected the Council and the Commission’s arguments that they should be allowed to impose a check on potential abuse by insisting on unanimous consent. In that scenario, a single Member State would effectively be allowed to veto the UK’s continued membership of the EU and it would empower the European Council to expel a Member State against its will.

In terms of the effects of revocation, the AG is clear that the departing State maintains all of its rights and privileges right up to the point of departure envisaged by Article 50. If a notice of revocation is served before that time limit expires, those rights continue and the status quo ante is restored. Although there may be “collateral damage” in the sense of financial repercussions for the EU institutions and other Member States resulting from the negotiation process and related practical steps, that should not be a bar to revocation. In any event the costs of proceeding with withdrawal would far exceed the minimal costs generated by the revocation.