Tuesday, 16 January 2018

Can an Article 50 notice of withdrawal from the EU be unilaterally revoked?




There is no sign that the UK government (or indeed the opposition Labour party) is considering revoking the UK’s notice of withdrawal from the EU, or that either would be interested in asking the British public to vote again on the question of EU membership. Yet, sparked by the latest attempt of Nigel Farage to draw attention to himself, the prospect of a further Brexit referendum – which necessarily assumes that the Article 50 notice is revocable in some way – continues to be a subject of public debate. 

In that context, and in light of a new European Parliament report on this issue, here’s an argument from Professor Stephen Weatherill arguing that the Article 50 notice cannot be unilaterally revoked – with the contrary argument from Professor Steve Peers.


Why the withdrawal notification under Article 50 TEU is not unilaterally revocable

Professor Stephen Weatherill, Somerville College and Law Faculty, University of Oxford

The recently published European Parliament paper entitled ‘The (ir-)revocability of the withdrawal notification under Article 50 TEU’ addresses an issue that may come to have very sharp significance in determining the options and directions taken in the unfolding Brexit circus. As its title suggests, the paper inquires into the question whether the withdrawal notification under Article 50 TEU is revocable or irrevocable, and, most poignant of all, it asks whether that withdrawal notification is unilaterally revocable. This will matter a lot should the UK repent of its decision to leave the EU. I argue here that the notification is not unilaterally revocable.

The paper, authored by Ioannis Papageorgiou of the Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, takes as its obvious starting-point that Article 50 TEU does not explicitly address the revocation of a withdrawal notification. It also notes that ultimately it is the Court of Justice that will provide an authoritative ruling, should it be provided with the opportunity (pages 6, 22). I agree. It observes that ‘Given the fact that Article 50 does not make any reference to revocation issues, both sides of the argument can be defended’ (pages 16, 21). I agree. It treats the Vienna Convention on the Law of Treaties as irrelevant, mainly because it is in the nature of the evolved EU legal order that answers are to be found within the EU system alone, as a self-contained system (pages 7-13, 24, 27). I agree. And the paper ably surveys both sides of the argument. At page 23 it is commented that ‘Among UK scholars and politicians there is a predominant position that a unilateral revocation is within the right of the UK’. I agree: there is such a predominant position. The purpose of this note is to argue against that predominant position.

Consider first matters of design from the perspective of costs and incentives. A State that notifies an intention to withdraw within the meaning of Article 50 TEU and then wishes to change its mind has generated large costs. It has caused resources to be allocated to the negotiations which it wishes to terminate which could have been used for other purposes. To treat Article 50 TEU as capable of unilateral revocation means that the costs incurred lie where they fall: the repentant State covers its costs and the EU-27 (a term I use to denote the 27 member States plus the EU institutions) covers its costs. That means that the State that wished to leave, but which changed its mind, is able to externalise the costs incurred by the EU-27 as a result of its decision. That in turn reduces its incentives to make a full and careful calculation of the consequences of its action before it issues the Article 50 notification.

By contrast an interpretation which denies that the notification made pursuant to Article 50 TEU may be revoked unilaterally, and which insists that instead revocation depends on the agreement of the EU-27, ensures that as part of that negotiation the repentant State may be required to meet the costs of its choices. It makes every sense to ensure that costs are imposed on the party that is most able to reduce those costs. That is the party that initiated the process in the first place by notifying an intention to withdraw which it then wished to revoke – here, the UK. As a general observation one may argue that it is a matter of simple justice that the party that has generated the costs should pay for those costs – more narrowly my argument here is that such an approach is desirable in order to preclude a State from externalising the costs of its actions, and thereby pushing it to consider fully in advance the costs involved. This militates in favour of denying a unilateral right of revocation, and instead ensures that revocation becomes part of a bargaining process within which costs can be allocated.

A separate strand in the debate concentrates on democracy. Why should a State not be allowed to change its mind? If – perhaps as a result of a fresh referendum, perhaps following an election leading to a change of government – the people of that state have clearly decided they wish to remain in the EU, why should Article 50 be interpreted to thwart that expressed popular will?

This is a good argument in favour of interpreting a notification pursuant to Article 50 to be revocable provided there is political agreement among the repentant state and the EU-27. It is a weak argument in favour of a unilateral right to revoke. A model that permits unilateral revocation entails that some of the costs incurred are borne by voters in the other Member States, albeit largely indirectly because they will be swallowed up by the overall EU budget. So voters in Germany, Italy and France and so on would be expected to pay for the consequences of decisions to leave and then, after a change of mind, to remain taken by the UK although those German, Italian and French voters have had no say at all, and can have no say at all, in influencing those decisions.

Much of EU law is animated by the concern that decisions taken at national level have cross-border implications and that it is accordingly necessary to impose some discipline on the capacity of states to inflict harm on each other: this is why free movement law and the law governing State aids set limits to national regulatory autonomy. The rules of the EU constrain State practices because those affected by such practices in other Member States have no voice in the (national) political process that has generated them. A unilateral right to revoke an Article 50 notification would contradict this model. It would allow the revoking State to export costs to other States. Treating the Article 50 notification as irrevocable by unilateral act forces the parties to negotiate on the terms that shall attach to revocation, and this in turn ensures that (directly or indirectly) all parties which are affected by the preference to revoke have a say. In short, a revocation does not affect only the UK and so should not lie within the power of the UK alone.

The argument so far is normative: based on concern to allocate costs in a way that maximises incentives to account in advance for choices made and on concern to ensure a voice for all affected parties, an Article 50 notification should be treated as incapable of unilateral revocation. But this normative argument cannot prevail if the terms of Article 50 contradict it. They don’t.

Article 50 is of course silent on the question of revocation. So it is necessary to look at its structure and purpose. A case in favour of unilateral revocation is a case which serves to protect the flexibility enjoyed by the State which has issued a notification of its intention to withdraw. But that is not in line with either the structure or purpose of Article 50. Once the notification is made pursuant to Article 50, the terms of that Treaty provision dictate that the pace and content of the process is entirely subject to management by the EU-27 – which, to repeat, covers the other 27 Member States and the EU institutions. After notification, guidelines are provided by the European Council; the Union negotiates an agreement with the withdrawing State; it is to be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament; the Treaties cease to apply to the withdrawing State from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification unless the European Council, in agreement with the withdrawing Member State, unanimously decides to extend this period; and Article 50(4) shuts the withdrawing Member State out of the relevant discussions of the European Council and Council.

This is all about the way in which the EU-27 shall act: it is not at all about the protection of the withdrawing State. The primary concern which underpins Article 50 is to ensure that, once a Member State has chosen to submit its notification of intention to withdraw, the interests of the 27 Member States and the EU institutions then come to the forefront and are protected. To find an extra unilateral right of revocation enjoyed by the withdrawing State contradicts the structure and purpose of Article 50.

A very concrete example serves to emphasise the point. Were a withdrawing State to enjoy a right of unilateral revocation, it would be in a position to give notice of withdrawal and then change its mind after 23 months, once it concludes that the deal is not likely to be good enough. In fact, on this approach, a State could even change its mind after 23 months if it realises it is not going to get a good deal agreed inside 24 months, revoke the notice of withdrawal, and then submit another notice of withdrawal soon afterwards and try again. And it would not be liable to account for the costs.

Hazy suggestions that this would be an abuse of law are one answer to this problem – and for sure there would be political costs for a State behaving in such a perfidious manner. But the better solution, the one which is fully in line with the structure and purpose of Article 50 itself, is simply to exclude the possibility of unilateral revocation under Article 50. This interpretation also has the merit of deterring a State from triggering Article 50 unless it is absolutely sure that it wants to run the risks of getting a bad deal or even no deal – which, to repeat, is in line with Article 50’s structure and purpose, which is to protect the 27 not the 1. The government of a State that sends a notification pursuant to Article 50 and then waits nine months before initiating internal discussions on what shall be the preferred shape of its future relationship with the EU is in a spectacularly bad position, but it is entirely its choice to have placed itself in that location. There is nothing in the structure and purpose of Article 50 which encourages the view it should be allowed a unilateral right of revocation, thereby to impose costs on the EU-27 and to subvert the protections for the EU-27 carefully spelled out by Article 50. Quite the reverse: Article 50 should not be treated as providing a unilateral right of revocation.

A final point in closing the door to unilateral revocation is needed. Article 50 provides only for notification of an ‘intention’ to withdraw. An intention, it may be argued, can change. So can a Member State set aside its notification of an intention to withdraw on the basis that subsequently it has changed its mind and so no longer has that intention?  This is an attractive argument for those who would wish to maintain maximum flexibility for the UK. But it is not convincing. The notification of an intention to withdraw has been made. The clock starts to tick: the EU-27 acts in reliance on the notification and begins to make preparations for the negotiation. The intention may change subsequently, but the fact of having notified it within the meaning of Article 50 does not and cannot change. This attempt to create a right of unilateral revocation based on subsequent change of intention places an undue strain on the wording of Article 50, as well as running contrary to its structure and purpose.

I do not here address the politics of the matter. It is generally assumed that if the UK changed its mind a way would be found to accommodate its preference to remain a Member State of the EU. That may be right. But it may be complacent. If by the time of the change of mind major employers have decided to quit the UK in favour of the EU-27 (which might be precisely the impulse most likely to trigger the UK to change its mind) the incentives to agree to a UK request to terminate the Article 50 process would be weakened. Moreover, if the UK’s change of mind occurred amid a febrile political environment within which an imminent fall of government and its replacement by another minded to re-issue an Article 50 notification seemed plausible, then the EU-27 might be tempted to let the withdrawal process run its course.

My argument here is simply one of legal interpretation, not political context. But the politics are in part determined by the legal position. These political obstacles to the scope for the UK to change its mind and remain a member of the EU vanish if it enjoys a legal entitlement to revoke the Article 50 notification unilaterally. The UK can resume its current position cost-free (save only for longer-term reputational damage). By contrast if, as I argue, there is no right to unilateral revocation of Article 50, the UK will need to overcome those obstacles, and as part of that process it needs to negotiate on the terms to be attached to the readiness of the EU-27 to acquiesce in the change of mind. That puts the UK in a very weak position. It is the UK that has placed the UK in a very weak position. The structure, purpose and wording of Article 50 show that the solace of a unilateral right of revocation of the notification of withdrawal is not available.



The case for unilateral revocability of the Article 50 notice

Professor Steve Peers, University of Essex

Any form of retreat from Brexit seems unlikely, and any attempt at revoking the Article 50 notice would likely be a political process first and foremost. Still, it’s useful to consider whether unilateral revocability of an Article 50 notice is possible, in the event that the political situation changes radically; and I agree with Professor Weatherill that the legal position would have some relevance even though the politics would take precedence. (Most importantly, the power to revoke unilaterally would mean that the UK would not have to offer any quid pro quo in order to stay in the EU, and so would change the dynamics of the process).

In my view, while there are legal arguments for non-revocability and unilateral revocability, it’s hard to see the legal (as distinct from political) argument for ‘revocability only with consent’. And ultimately, while it’s anyone’s guess how the ECJ might ultimately interpret Article 50 if the case arose, my view is that the stronger argument is for unilateral revocability of the withdrawal notice.

Let’s start with the case law of the ECJ. There’s not yet any case law on Article 50 as such, of course, and so any case law could only be loosely relevant by analogy. The only ECJ case in the last few years I could find about a Member State revoking anything was this asylum law judgment of 2015, which as it happens I discussed at the time here. This case in part concerns whether a Member State can revoke a refugee’s residence permit, even though the relevant EU legislation contains no express reference to such a possibility.

In the court’s view (see paragraphs 47-50 of the judgment), ‘[d]espite the lack of express provision authorising Member States…to revoke a residence permit issued to a refugee, a number of arguments support an interpretation whereby Member States are allowed to take such a measure’. First, the EU legislation ‘does not explicitly rule out the possibility of revoking a residence permit’. Second, revocation of a permit was ‘consistent with the aim of’ the legislative rule (because the law says expressly that Member States could refuse to issue or to renew a residence permit on grounds of national security, it made sense that they could revoke a permit on such grounds). Thirdly, revocation was consistent with other provisions of the law relating to potential national security concerns about refugees.

Refugee law is different from the EU withdrawal process, of course. But there are some general points here. First of all, the Court rejects the argument (commonly made by those who think no revocation of the Article 50 notice is possible) that ‘absence of an explicit clause on revocation must mean that no revocation is possible’. Rather, the judges rule the opposite: if revocation is not explicitly ruled out, then it must be possible. Secondly, the aim of the law is important. This is indeed the main thrust of Professor Weatherill’s argument – but as we’ll see, I take a different view of the aim of Article 50. Thirdly, consistency with other provisions dealing with the same issue is important. This reasoning is sensible in principle, but it’s hard to see how to apply it by analogy to withdrawal from the EU, since Article 50 is the only provision on the subject.

I can foresee a fundamental objection here: the revocation of a residence permit concerns a Member State’s power to regulate non-citizens on its territory, which is quite different from its relations with other Member States. Fair enough. So let’s look at a process, set out in the EU Treaties, which does concern the precise question of whether a Member State which has made a notification to the EU institutions can revoke that notice unilaterally.

I’m referring to the process of ‘enhanced cooperation’, as set out in Article 329 and Article 331 of the Treaty on the Functioning of the European Union. This process, rarely used, allows some Member States to go ahead without the others to adopt EU legislation. The procedure gets underway when a group of willing Member States makes a request to the Commission to start it. But what happens if one of those States becomes unwilling to participate in the planned enhanced cooperation, during the process of negotiations? Can it, in effect, withdraw the notification of its intention to participate?

The EU Council legal service has given a detailed opinion on this issue. You can find it here, heavily redacted. But a helpful little bird has given me the entire text. Let’s see what it says on the key issues. (Note that the UK government has already relied on earlier legal advice to the same effect).

At the outset, the Council legal service notes that ‘[t]he Treaties are silent’ on the possibility of a Member State withdrawing its wish to join in enhanced cooperation during the negotiation process. But ‘[i]n the absence of any express provision, recourse must be had to the interpretation of the relevant Treaty provisions on enhanced cooperation, bearing in mind its objectives and two fundamental attributes that govern its functioning: first, the voluntary character of participation in it; second, its openness and flexibility.’

On the first point:

The decision as to whether or not to take part in enhanced cooperation is for the Member States alone, on the basis of their own wishes. The basis of enhanced cooperation is thus a voluntary act of each Member State. The expression of the wish to participate in enhanced cooperation and the subsequent withdrawal of such a wish is an act of free will of the Member States, whose voluntary character only ceases to exist at the moment of adoption of the act establishing enhanced cooperation. (footnotes omitted)

The first step in the process – authorising enhanced cooperation – ‘determines that the conditions for having recourse to enhanced cooperation are fulfilled, thus enabling the willing Member States to proceed with it. However, that decision does not create an obligation to do so’. (emphasis added)

On the second point, the openness of enhanced cooperation is ‘characterised by [the] simplicity’ of the rules, needing no fresh decision for a Member State to join enhanced cooperation which is already underway or under negotiation.

While it is not possible for participating Member States to withdraw from enhanced cooperation once it’s established:

Before that point in time - during the period from the date of adoption of the authorising decision to the establishment of enhanced cooperation - and bearing in mind the voluntary, open and flexible character of enhanced cooperation, a Member State is entitled to withdraw its stated intention to participate.

The first step decision to authorise enhanced cooperation ‘does not definitively establish the content thereof’ and Member States ‘must…be able to stop their participation in the establishment of enhanced cooperation’. Furthermore:

Not allowing unilateral withdrawal at this stage could have the effect of discouraging Member States from proceeding with enhanced cooperation before knowing its precise and definitive content, running thus counter the objective (sic) of "promot[ing] participation by as many Member States as possible” (Article 328(1) second subparagraph TFEU).

The procedure for a Member State to revoke its intended participation in enhanced cooperation should be simple and purely unilateral:

In the view of the Council Legal Service, no modification of the authorising decision is required for the withdrawal of a Member State to take effect. In the absence of any formality required by the Treaties, a Member State wishing to withdraw from enhanced cooperation should simply notify its intention to the Council and to the Commission in written form or through a statement delivered at a Council meeting. No further act of the Council and/or of the Commission is necessary for the notification to take effect. As from the moment of such notification, the Member State concerned should no longer be considered as wishing to participate in the establishment of enhanced cooperation and therefore, should not take part in the vote for the adoption of the act.

….A more formalistic approach requiring, for instance, a modification of the authorising decision would ignore the voluntary, open and flexible character of enhanced cooperation, since the interested Member State would not be able to withdraw on its free will, but would depend on the will of the Commission to propose an amending act of the authorising decision, of the Council to adopt the amended authorising decision and of the European Parliament to grant its consent. (footnotes omitted)

While a legal service opinion is not binding – the Council wins some cases, but loses others – this is an interesting analysis which could apply by analogy to the Article 50 process. The absence of a provision on revocation of intention is not decisive: instead, the key point is the voluntary and flexible nature of the process, and the overall objectives of integration. A Member State can change its mind unilaterally, even after the first step in the procedure has passed, as long as the final decision has not been made. Article 50 is equally a voluntary process, and also has a first step (notification of withdrawal) followed by a negotiation phase before withdrawal becomes definitive. And the overall integration objectives of the EU are obviously served by facilitating a Member State’s wish (if it chooses) to reconsider its decision to leave the Union.

I’ll now turn to the detailed arguments of Professor Weatherill. First of all, he argues that, as a matter of policy, the costs of Article 50 negotiations are an issue which suggests unilateral revocation is not possible. But such an approach is not taken in analogous EU procedures. Some proposed EU laws can be blocked by the veto of a single Member State. Terminating the negotiation process in the event of such a veto imposes costs, but no one argues that a Member State therefore lacks a power to wield its veto unilaterally in such cases. Equally a proposed Treaty amendment can be frustrated by the failure to ratify by a single Member State. And the strongest analogy is the accession process, which can be scuppered by a would-be Member State ending negotiations or refusing to ratify an accession treaty, despite the enormous efforts expended on the ratification process.

In all these cases, the power to act unilaterally is unquestioned, despite the inconvenience caused to other States and EU institutions. That awkwardness stems necessarily from the exercise of national sovereignty – the very sovereignty which is embodied in the right to withdraw from the EU, to which Article 50 gives effect. Furthermore, in the particular context of the UK, it seems odd to be concerned about the costs of a revocation of the Article 50 notice which would be suffered by the EU27, given that a U-turn on Brexit would mean that a major net contributor to the EU budget keeps on contributing. In any event, holding detailed negotiations on revocation of withdrawal will impose more negotiation costs than simply accepting the revocation and returning to the status quo – with Adonis resuming skiing and Farage resuming screeching. (Yes, I know: they never really stopped).

On the issue of democracy, Professor Weatherill again repeats the argument as regards costs. But let me repeat the same rejoinder: the very possibility of withdrawal gives priority to the democratic choices made in the withdrawing Member State over the impact of that choice in the remaining Member States. Indeed, ‘a revocation does not affect only the UK’; but the same could be said, with much more force, of the power of withdrawal. Yet the Treaties accept that the power of withdrawal lies with the UK alone; vesting the power of revocation with the withdrawing Member State alone is a logical corollary.

As for the wording of Article 50, I draw the opposite conclusion from it. Indeed, there are detailed rules on the roles of the EU institutions and the EU27 Member States in negotiating and concluding a withdrawal agreement. But there are no such rules on the role of those institutions and States in the event that a Member State revokes its notification. One can reasonably deduce from this either that no revocation is possible, or that unilateral revocation is possible – although note that the ECJ case law and Council legal service opinion above prefer the latter interpretation in analogous cases. But the least plausible interpretation is that the Treaty drafters intended such rules but just forgot to mention them. To strengthen the argument, look at the detailed procedural rules relating to Treaty amendment, accession, and the negotiation of treaties between the EU and non-EU states, which were all amended in the same Treaty of Lisbon that created Article 50. How odd for the Treaty drafters not to set out rules on the procedure for agreeing revocation of an Article 50 notice at the same time.

What about the possibility of a Member State revoking its withdrawal notice and then issuing it again, to get more time to negotiate withdrawal? I agree with Professor Weatherill that the notion of ‘abuse of law’ is indeed ‘hazy’. But at least this notion already exists in EU law, and so could be clarified if necessary in the event of such alleged abuse in the Article 50 context. On the other hand, Professor Weatherill’s argument for negotiated revocability relies on conjuring up procedural rules which don’t explicitly exist in the Treaty, and are not recognised to exist in any case law to date. If ‘abuse of rights’ is a hazy notion, then ‘procedure for negotiating revocation’ is a Dickensian fog by comparison. 

Equally, if revoking a withdrawal notice places a strain on the wording of Article 50, then inventing a process to negotiate revocability places a bigger strain still. And while one purpose of Article 50 is undoubtedly to protect the remaining Member States’ interests, another purpose is to give priority to the sovereign decisions of the withdrawing Member State. The best way to reconcile the alleged conflict between these two purposes in the event of a unilateral revocation of a withdrawal notice is to conclude, as I noted above, that all the underlying objectives of the EU are best served by allowing a withdrawing Member State to decide to remain in the EU after all, should it wish to do so. This neatly balances the EU’s interest in its integration process with a Member State’s sovereign power to decide on whether it wishes to leave or stay in the EU.

Barnard & Peers: chapter 27

Photo credit: PA Images

63 comments:

  1. Could it not be argued that by sending the withdrawal notice the UKs memebership of the EU ceased.The point of unilateral notification being the time between Art 50(1), the decision being made and Art 50(2), sending of the notice.
    The purpose of Art 50(2) is merely housekeeping a mechanism to prevent a member state that decides one day to withdraw and just stop trading with the Union.
    Does the treaties still applying automatically equate to membership ?. Taking a very poor analogy an employee may be subject to restrictions after they have left their employment

    To me it appears strange that Art 50(5) exists, every state has the right to apply for membership, if unilaterall revocation is possible once the notice has been sent.

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    1. That's an untenable interpretation. Article 50(3) refers to 'the Member State concerned' and Article 50(4) refers to 'the withdrawing Member State'. Also the rule that the withdrawing State can't vote on its own case in EU institutions, set out in Article 50(4), would make no sense if that country had already left the EU as a result of the notification.

      If we are going to make comparisons with domestic law, the better employment law analogy is with a worker who has given notice of her departure to her employer but who is still working for that employer throughout the notice period. Or a consumer contract analogy - many new contracts allow the consumer to return a defective product for a refund, or rescind the contract for a limited period, if they have second thoughts.

      I agree that Article 50(5) states the obvious, but if it were not there some people might argue that rejoining was impossible, or that a special procedure applies to rejoining. Article 50(5) rebuts both those arguments. But logically it has nothing to do with what happens while a country is still a member of the EU, and in particular whether it can rescind its notice to leave while still a member.

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  2. Prof Peers, is there a reason you change your view in 2014 http://eulawanalysis.blogspot.co.uk/2014/12/article-50-teu-uses-and-abuses-of.html ?
    Nick.

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    1. In that 2014 post, I said there were legal arguments either way. That's not vastly different from what I said above in 2018 - considering that I also published Professor Weatherill's view - "In my view, while there are legal arguments for non-revocability and unilateral revocability....while it’s anyone’s guess how the ECJ might ultimately interpret Article 50 if the case arose, my view is that the stronger argument is for unilateral revocability of the withdrawal notice."

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  3. Prof. Peers confronted the ‘abuse of right’ argument of prof. Weaterill by labeling a negotiated approach ‘a Dickensian fog’, but isn’t this an approach similar to the wording of art. 50 (5) which can be invoked the next day after the treaties ceased to apply ? It is not that strange to consider this approach during the 24 monts time-schedule, though also requiring parliamentary consent for the EU member-states. The ratification requirement of course is a political nuisance, may be even causing the timeframe to lapse an effectively ending membership, but a small procedural step from a legal perspective and nothing close to a fog. In addition according to art. 50 (3) the other member states and the leaving member-state can unanimously extend the negotiation period in theory for an indefinite period, pending the time to comply with procedural requirements. That leaves me to the conclusion that, while unilaterally revoking art. 50 is still under debate, there is certainly room for a negotiated approach to end an art. 50 intention.

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  4. I’ve another point to make in support of the view of prof. Weatherhill. It leaves no doubt that this question is a subject of (theoretical) debate and the ultimate resolution, may that ever occur, is as far as I’m knowledgable primarily in hands of the ECJ. If the UK, which is barely believable, revokes article 50 unilaterally sometimes in the next 10 months any other participant in the negotiations, and may be even the Commission or European Parliament (that is another point for debate) can bring the regularity of this action before the court for interpretation. There is nothing in the words of art. 50 to suggest that pending the case the 24-month time-period is paused resulting in the fact that, given the normal duration of ECJ cases, a judgment will only come after the time-frame has lapsed and thus EU membership effectively has ended. In my opinion the same argument counts if the UK, or any other country in the same position, decides to bring a case to another arbiter, e.g. the ICJ for an interpretation of the VCLT, though that seems contradictionary to the aim of unilateral revokement and continuous EU membership. Effectively this results in the fact that unilaterally revoking the (apparently worthless) art. 50 intention is impossible and always requires some form of consent of the other member-states whether it is to extend the 24-month time-frame for negotiations for agreement or otherwise the unilateral act is faced with obstruction by other member-states. That basically ends the ‘unilateral’ aspect of the revocation and is in compliance with the view of prof. Weatherhill that there is nothing in the structure and purpose of art. 50 to imply a unilateral right.

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    1. It would certainly be wise to clarify the issue legally before any unilateral revocation was made. There's no way for the EP to challenge a Member State before the ECJ and the Commission using an infringement action would be awkward; more likely Brexit supporters would challenge the revocation in the UK courts, which should ask the ECJ questions about the legality of the revocation. The ICJ has no role interpreting EU law. The ECJ can fast-track a judgment in about four months if necessary.

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  5. Finally, may be a more political judgement on art. 50, but doesn’t the brevity of art. 50 suggests that there is (almost) no room for political as well as legal reconsideration after the notification is send. In private law, at least in my country, it is not uncommon that one is bound to an agreement after given oral or written consent, even if not all procedural or contractual requirements are met. These latter requirements are there just for final proof or depository purposes. The real purpose of the agreement cannot be altered after an exchange of notification of consent. The similarities with art. 50 are clear. The ultimate outcome after notification (art. 50 (1)) is given by the withdrawing state is nowhere dependable on the outcome of the negotiations for a withdrawal agreement, which just has two, complementary, purposes the first being the terms of withdrawal (splitting the current assets and liabilities) and the second about a future relationship. The fixed term in art. 50(3) has the sole purpose for swift and orderly negotiations instead of dragging them on indefinitely. Whether the process of article 50(2), (3) and (4) go swiftly according to plan or are as messy as we are currently experiencing the outcome was fixed after notification, namely withdrawal of EU membership whether within the 24 months time-frame, immediately after the deadline or, if unanimously agreed, after a prolonged negotiation . There is nothing in the remainder of the article to suggest any leeway for the parting state to do anything about the ultimate outcome, even more so if read in conjunction with the art. 49 procedure as mentioned in art. 50(5). It is here that the only escape hatch to avoid complete withdrawal resurfaces, being the indefinite adjournment of the negotiations and an agreement for continuous application of the treaties in the departing state. Then again, it is certain that this resolution to end the withdrawal process requires unanimity, which is quite the opposite of unilateralism.

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    1. The wording is silent on whether the notification may be revoked. Analogies with private law don't necessarily work as every legal issue has its own framework. The withdrawal agreement won't regulate the future relationship; and anyway I don't see why its purpose affects whether revocation is possible. If the notice is revoked then negotiations will stop, rather than drag on indefinitely. And the procedure to continue negotiations is conceptually distinct from whether a State can change its "intention" to leave.

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  6. And none of this is "merely academic or hypothetical". Following the recent decision of the Court of Session in Wightman v Secretary of State For Exiting The EU [2018] CSIH 62, the ECJ is now going to have to decide the issue of revocability. The Court of Session rejected the Secretary of State's arguments (successful at first instance) that the point was too "hypothetical" to be justiciable, and granted the application for a reference to the ECJ for a ruling on the issue. "The Petitioners, one of whom is an MP, contend that the options open to Parliament should not be restricted to on one hand an agreement between the UK and the EU, which may fail to command a majority, and on the other hand the so-called "no-deal Brexit". In addition to those, the petitioners submit that a third option, revocation of the article 50 notification, is an option that should be available to Parliament if it is legally competent." "I find it impossible to hold that the question of the withdrawal of the article 50 notification is a matter that is irrelevant to Parliament's deliberations ... If MPs are to cast their votes in a responsible manner, it is surely obvious that they should be properly advised as to the existing legal position". The advice of the courts is "of vital importance in conducting the public affairs of the country in a manner of obvious national importance." (Lord Drummond Young). It's a good read: https://goodlawproject.us15.list-manage.com/track/click?u=a04999673229750da830ac1e4&id=ddb8533396&e=6f9ca2fd72

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  7. I was a Senior partner of a Johannesburg law firm (google James Sutherland, Bafokeng)and I was so frustrated by the contention that triggering Article 50 was not irreversible that in November last year I brought an application in Court 37 of the Queen's Bench Division of the High Court of Justice for a declaratory order that triggering Article 50 was an irreversible process. Court 37 is a Court for parties that do not have legal representation.

    My problem was that no-one in government had suggested that the triggering of Article 50 was a reversible process so I did not cite a respondent. I also did not want to draw attention to myself at that stage. I accordingly asked the Court to grant an interim order and to give interested parties the opportunity to oppose the interim order. Mr Justice Fraser dismissed my application on the grounds that I had not cited a respondent but acknowledged that I had identified "proper issues" in relation to the Brexit process. I did not have the means to travel to London again to submit an appeal but, given the informality of the Court 37 process I submitted an appeal by email. I have not been told whether or not my appeal will be dealt with and, in truth, there is no reason for my appeal to be heard because no-one in government is suggesting that the process is not irreversible.

    I was watching a parliamentary debate when Sir Dominic Grieve suggested that there could be circumstances which would allow the triggering of Article 50 to be reversed. I sent an email to the current Attorney General Jeremy Wright drawing his attention to my application. A few days later Sir Dominic Grieve categorically stated in parliament that the triggering of Article 50 was irreversible.

    The golden rule of interpretation is that the plain meaning of an agreement or treaty must be observed. There is nothing in Article 50 to suggest that a country that has triggered Article 50 can withdraw its notification. In contrast, Article 50 specifically allows the country triggering Article 50 and all the other EU countries to extend the negotiation period. Extending the negotiation process is almost trivial in comparison to withdrawing the notification to leave the EU so it would be absurd to suggest that the far more important issue of allowing a country to withdraw its notification would not be expressly provided for. Likewise, Article 50 expressly provides for a country that has left the EU to apply to re-join. There is also a legal principle that militates against an interpretation that would have absurd consequences. If a country could trigger Article 50 and then withdraw such notification, such country could trigger Article 50 so as to gain leverage in relation to an issue it is negotiating with the other EU countries, knowing full well it could withdraw such notification.

    In conclusion, Article 50 would have to be amended by all the EU countries to allow a member country to withdraw its notification.

    Although academics have an outstanding overview of the law, they struggle to grasp the essential legal issues pertaining to a specific legal matter. It is unthinkable that attorneys/solicitors would obtain opinions from academics rather than top barristers. Our judges are in turn chosen from the ranks of top barristers. Academics tend to have this vast overview and struggle to see the woods for the trees. This is why they choose the path of academia rather than the brutal profession.

    I can assure you that if parliament or anyone in government suggests that Article 50 is not irreversible I will immediately bring a fresh application in Court 37 citing the responsible party as a respondent.

    Finally, I am in the "remain" camp and I hope that the country will remain in the EU following an amendment to Article 50 or as a result of the UK re-joining the EU. However, my greatest concern as a former human rights lawyer is 'The Rule of Law'.

    You are welcome to email me at s1suth@yahoo.com

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    1. Ad hominem comments about academics aren't much of an argument. You will find that there are academics on both sides of this debate. In my experience, most practicing lawyers have the humility to admit that their preferred interpretation of a law might be wrong (in much the same way that I published an opposing interpretation here), and don't feel a need to insult academics; but I guess there are always exceptions.

      The silence of Article 50 about unilateral withdrawal of the notification could be interpreted either way. Indeed as I point out the CJEU has ruled that the silence of EU legislation on withdrawal of residence permits does not prevent them from being withdrawn. The issue of potential abuse of the withdrawal of a notification can be addressed by the same "abuse of rights" doctrine which the CJEU has accepted in other contexts, applied on a case by case basis.

      In any event we will find out the answer to the question, if the CJEU rules on the questions recently referred by the Court of Session.

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  8. Interesting point. I am not a jurist of any kind, so my viewpoint is entirely a layman's.

    I agree that Art 50 either implies no possible revocation ("At that very date, the Treaties cease to apply and that's it") or a possibility for unilateral revocation ("The Treaties cease to apply at that day and not a day before").

    What puzzles me is the analogy with enhanced cooperation. As you correctly mention, it is all based on the Member State's willingness to join and to withdraw. But if a MS decides to leave the EU, behaves as if it already was out of the EU, and decides, at the very last moment, to withdraw its notification because it did not bother to negotiate at all and realizes that a huge storm - or a cliff-edge - is imminent, just how willing is that MS to stay in the EU ?

    Could the UK's behavior influence the coming ruling which the ECJ will make ?

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    1. Legally I don't see why the UK's behaviour should matter. Whether it influences the CJEU in practice might be hard to judge.

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  9. It doesn't seem that "revocation" of the notification of intent to leave is sufficient. Revocation of an act does not imply that the act never occurred, but rather that after the date of revocation it no longer has force of law.

    Otherwise, revoking a driving licence would imply that the licence never existed, and the holder could be charged with illegal driving for every time he or she drove even before the revocation. Likewise in your example of the revocation of a refugee residence permit, the permit holder could not only be expelled, not retroactively charged with illegal presence. In the same way, a "revocation" of the Art 50 notification would not imply that the notification never happened. Thus it would have no effect on the timeline of separation.

    What would seem to be required to prevent separation is something more akin to "invalidation" or "annulment" of the notification. This could potentially happen if the notification was found to have been forged, or issued in a manner inconsistent with UK constitutional law. However, it is hard to see how this could be claimed if the UK simply changes its mind.

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    1. "Revocation" is the term usually used in this context, although I can see the argument for a different term. In fact, if unilateral withdrawal of the notification is possible, it is solely up to the UK to determine what the constitutional requirements for that are; "simply changing its mind" is entirely consistent with the wording of Article 50, referring to notifying an "intention to withdraw".

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  10. Dear Professor Peers,

    First and foremost, thank you for sharing your knowledge and time with us.

    On the subject, I fail to grasp how it is concluded that article 50 does not answer itself the question of unilateral revocation of the withdrawal notification.

    Article 50.3 states that “The Treaties shall cease to apply to the State in question... unless..., in agreement...”. As I read it “shall cease” makes the end of the application of the treaties not a possibility or an option but a legally fixed outcome unless agreed otherwise. Thus, as per the letter of the Law, no unilateral act by any of the parties might result in the State concerned not leaving the Union as such outcome may be reached only by agreement.

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    1. But the basis of this happening is the notification by the UK. Just because the Treaty doesn't mention possibility of revoking the notification doesn't mean it's impossible. As I noted in the blog post, EU asylum law says nothing about revoking residence permits for refugees, but the CJEU said Member States can revoke them anyway.

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    2. Thank you for your answer, Professor.

      My struggle with your position is precisely what you affirm in your reply: I fail to see how it is concluded that the Treaty is silent on the possibility of unilateral revocation. My point is that the Treaty answers to that implicitly albeit distinctly, at least in logical terms:

      In essence, article 50(3) says: unless agreed otherwise the Treaties shall cease to apply. It seems to me a neat modus ponens where P is “unless agreed” and Q is “shall cease”. Unilateral excludes agreed so P is true; then, by the rule of logic, Q is true.

      Affirming unilateral revocation would mean that the treaties do not cease to apply in a case different to an agreement and that can be not as per the letter of the Treaty; therefore, unilateral revocation is excluded by the Treaty.

      The argument would not work if we would be talking about the notification being somehow voided as then it would have never been served. For instance, as the decision of withdrawing has to be made “in accordance with its own constitutional requirements” -art. 50(1)-, should it be argued that those requirements had not been met it would be possible to uphold that the notification was null and void and, therefore, provisions of art. 50(3) would never come into play. Nonetheless, as long as we are talking about revocation, I think they do.

      I am not familiar at all with the applicable Law on refugees so have no idea whether it states somewhere, implicitly or explicitly, “unless (whatever) refugee status will not be revoked”. Should it not say so, I would not be certain that the case is applicable by analogy. Should it say so, I would certainly sustain that no other case but “whatever” stated by the Law would allow the revocation of the refugee status.

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    3. Your argument applies equally, if not more strongly, to the qualification directive, where the Court said a residence permit could be revoked. You end by making up words that don't appear in Article 50: that is the whole point of the debate.

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    4. Thank you again for your time, Professor Peers.

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  11. A few perspectives which you may feel worthy of comment:

    A revocation would have the effect of allowing the treaties to continue to apply where there was no withdrawal agreement and a period of 2 years had passed since notification of intention to withdraw had passed. Article 50.3 expressly provides only one scenario where that effect can be achieved and that is if there is an extension of time agreed unanimously by all Member States. If the intention was to allow revocation why was it not included as being an event which would allow the treaties to continue to apply and does the fact that a scenario was provided and revocation was omitted not indicate that it was a deliberate omission?

    Does the logic behind the EU council legal service opinion not tend to support the inability to revoke under Article 50 rather than allow for revocation, as is presented above . All Member States participating in enhanced co-operations are voluntary participants. Under the Article 50 process only one Member State can be said to be a voluntary participant whereas the other 27 Member States are compelled to participate in the process. If voluntary participation favors availability of revocation does involuntary participation not favor an alternative interpretation.

    It is also said that allowing for revocation encourages Member States to participate in the Enhanced Co-operation process. Surely the objective would be to discourage Member States from triggering Article 50 and if allowing revocation encourages would prohibiting revocation not have the effect of discouraging.

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  12. Again: silence on revocation doesn't mean it's impossible. The refugee qualification directive refers to revoking a residence permit for a refugee in certain cases, but the CJEU said there were other cases when it could be revoked too. Within enhanced cooperation each individual Member State chooses to participate, so can decide to change its mind and withdraw its notification of participation, according to the legal service. That's entirely consistent with withdrawal of an Article 50 notice, as the focus is on the position of the individual Member State which made the notification.

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  13. Thanks for the response. I suppose it depends on whether you consider there is silence. While it may be silent on whether revocation is possible it is not silent on circumstances which would allow the treaties to continue to apply once notification has been submitted, which would be the outcome in a situation of revocation.

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    1. That's a form of a contrario argument, which the CJEU didn't follow when it came to Member States revoking residence permits.

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  14. I don't think the reasoning the Court used when finding the power to revoke a residence permit could apply to Article 50.

    More importantly is the impact such a finding would have on an express power provided in Art 50(3) which states that the 2 year period can only be extended with the unanimous approval of the European council and agreement with the Member State.

    If the Court finds that the power to revoke exists then theoretically, for example, Corbyn could say that he is not happy with the current deal, time has run out to negotiate a new deal, does not wish to crash out with no deal and will instead revoke the withdrawal notification with the assurance given to voters that he the withdrawal notification will be resubmitted. He can then reset the clock on when negotiations must be completed by.

    There would be no need for agreement with the European Council or unanimity among Council members, completely undermining the express power provided for.

    The only way the Court could mitigate the consequences that finding a power to revoke has on the express power would be to discover any number of restrictions not contained in the Article such as the inability to submit a second withdrawal notification ever, or for a period of time, after withdrawal or the time limit period starting from the moment of withdrawal once a second notification is submitted, rather than 2 years from the point it is submitted.

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    1. But such limits would be simply an application of the long-established doctrine of abuse of EU law. The purported inability to withdraw a notification is likewise a restriction not found in the express text of Article 50.

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    2. The plain text of the Article is what should apply where the impact of inferring a right/power would be to undermine the plain text of the Article.

      You can argue that the Court could mitigate the effects by subsequently ruling a second notification of withdrawal as an abuse of EU Law but what Court would discover a silent power, which has the potential to make an express power completely redundant, so that further down the road they can rule that a Member State is prohibited from submitting a withdrawal notification and/or leaving the EU.

      The scenario really isn't that theoretical. May can't get the deal through parliament which eventually results in a General Election returning Corbyn. Corbyn won't accept the deal and won't go for no deal crash out, the EU does not want start negotiations again and will only extend Article 50 time period if it is to facilitate a second referendum.

      If the power to revoke exists then Corbyn revokes, rather than accept the deal or have a crash, and when he tries to reengage the withdrawal process a Court rules that the UK is not allowed to leave the EU because revoking the initial notification prohibits it. An absolutely toxic situation with widespread political ramifications would have been created by the Court because it inferred a power which the Article itself was silent on.

      The potential consequences of finding the power mean that finding it would represent a significant overreach by the Court.

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    3. The plain text of the Article is silent as to whether revocation of the notification is possible or not. I don't think an election is likely, but we'll see. And abuse of rights could be controlled not by refusing a Member State to ability to leave, but by saying that if it notified again shortly after withdrawing a notification, the process would take up where it left off, ie with only three months or whatever left to negotiate.

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  15. The restriction on extending the time can be seen as an express attempt to avoid the uncertainty of the type that would result from the finding that a power to revoke in the scenario I set out would inevitably result.

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    1. A power to revoke the notification would, if exercised, remove far more legal uncertainty than it could ever create.

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    2. Only if there was a requirement that there was agreement with all the other Member States before a notification could be revoked/withdrawn. A Unilateral ability to revoke without agreed conditions would expose the EU to significant legal uncertainty as the withdrawal process, which is inherently destabilising, would be exposed to the tumult of national parliaments, of the kind we see in the UK.

      The only way revocation could result in certainty would be if the EU got guarantees that the UK would not submit notification again for a stated period of time. If the Court did find a power to unilaterally revoke then they would have to eventually rule on how long before the UK could submit a notification.

      By finding a unilateral ability to revoke the Court would end up having to continually infer powers/restrictions into Article 50 and the withdrawal process which are not provided for i.e there exists a power to revoke, once revoked a notification can only be submitted after x years, a resubmitting notification starts time from how much was left when it was revoked rather than 2 years out. That seems like an overreach.







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    3. No. The solution of treating an abuse of revocation (defined precisely as, say, a notification within two years of revocation) by resuming the process with the time period left before revocation would be legally certain. The EU has already developed the negotiating process beyond the wording of Article 50, which only sets out the basic framework.

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  16. I do think certainty and stability are key to how Article 50 should be interpreted.

    If you look at the actual text of the Article it seems that the destabalising effects of an Article 50 withdrawal notification are acknowledged. There is a clear attempt to contain the process, which has in fact proved to be a chaotic and destabalising, and not allow it to drag on. The 2 year period within which to conduct the withdrawal agreement is restrictive. It does acknowledge the possibility that negotiations my need to go beyond that 2 year period but is only permitted where there is agreement and unanimity.

    The ability to revoke, if it exists, has the potential to undermine those attempts to contain what is an inherently destabalising process, as it would be in the example of the tactical revocation.

    So if you acknowledge that use of revocation has the potential to undermine an express power in the Article, as a means of extending the negotiating period, and could have a destabalising effect then the question is who is best placed to mitigate those risks, the EU or the CJEU?

    You say a two year period before another notification could be submitted, I think that would not provide any certainty at all but any number we mention is arbitrary at this stage.

    If there is no agreement before revocation then it would inevitably fall on the Court to determine what restrictions should apply to a Member State after it has exercised a revocation. How can a Court be expected make such determinations when they are more political than legal. How could a Court be expected to give appropriate weight to all the considerations relevant to achieving the certainty and stability required by a 28 Member political union. What would its reference points be? It is beyond the Courts competency.

    The only way a revocation can exist is where agreement has been reached before it is exercised. The EU must be able to be satisfied that revocation will bring an end to the uncertainty and instability, it is best placed to determine what is required to achieve that objective. The UK must consent to any restrictions on their behavior which will result from them exercising the revocation. A blind unilateral revocation with CJEU imposed conditions is a potential powder keg.

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    1. No. I think a simple rule saying that the Article 50 time would pick up where it took off, if the notification were resubmitted within a set time frame, would easily answer concerns about legal certainty and stability - far more so than going ahead with a withdrawal from the EU.

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  17. I'm not suggesting that there are not restrictions that would address the instability that would arise where a Member State submitted a notification of withdrawal only to, with a possible change in government, later revoke. There have to be restrictions, you can not have a Member State circumventing an express power of extending time and you can not have the uncertainty and instability created within the Union of Member States, depending on who is in power domestically, unilaterally submitting and revoking a notification of withdrawal.

    The process under Article 50 must be controlled and within the Article it is. You submit notification of withdrawal, you have a set short period within which you negotiate your withdrawal and if you need an extension on that negotiation period it is only with agreement and unanimity. An agreed revocation with guarantees and clarity re the future relationship is consistent with the controlled process under Article 50 whereas a blind unilateral revocation is not.

    If it is unilateral power to revoke then the it is the Court who would be put in the position of determining any restrictions, and there may need to be many required to avoid the abuse of a unilateral notification/revocation power. The Court is not only being asked to find a power to revoke unilaterally it will then requires it to determine that if a Member State revokes its notification it is subject to restrictions under Article 50 (it must make that determination or it undermines the express power re time extension).

    Any restrictions resulting from a revocation must have as one of their primary objectives the long term stability of the Union. The Court is, therefore, being asked to undertake a wide ranging political analysis to determine what restrictions are required to provide that political stability. The Court is asked to be the substitute for a political negotiation. A blind unilateral revocation does not create legal or political certainty because everything is yet to be determined.

    If the power to revoke is subject to agreement then the legal and political certainty is achieved through a negotiated settlement. The analysis required to achieve those certainties is undertaken not by the Court but by the political institutions of the Union and the Member State, the appropriate institutions.

    The choice is not whether revocation or withdrawal creates more certainty and stability it is whether a unilateral or agreed revocation does.

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    1. No, because you cannot ignore the effects of withdrawal. It's not odd for the Court to lay down rules on how the abuse of rights principle works in practice, and I can't see any uncertainty arising if the Court lays down a clear rule like the one I suggested. You refer to other complications but don't identify any.

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  18. I was allowing for the possibilities of other complications, I will reflect on that.

    You say it is a clear rule that can be laid down, if you revoke Article 50 within x number of years the clock runs from the point it was at when you revoked.

    I would suggest that a rule like that has the potential to create a situation which is more unstable than now with even more damaging consequences.

    A scenario:

    A notification of withdrawal is revoked by a Member State with 3 months left in the negotiating period left on the clock. Within the period laid down by the Court a Euro sceptic political party takes political power in the Member State. They submit a withdrawal notification with full knowledge that there is only 3 months left on the clock, . The Euro sceptic political party is quiet willing to have the chaos and instability which would result from a no deal withdrawal where neither party had time to prepare. It is not interested in extending the time period to allow for negotiations and instead sees the short time frame as an opportunity to achieve concessions from the EU which would not have been given had the EU been given a 2 year run in period.

    The Court has created a rule where a withdrawal notification reactivates with no time to for the EU to prepare for a no deal and to avoid the chaos and instability created by its inability to prepare is vulnerable to making concessions it would not have made in an orderly 2 year negotiating time period.

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    1. This isn't a real world scenario. Talks wouldn't start from scratch. The EU would simply retable the draft withdrawal agreement at the same stage it was at when the notification was revoked. And you assume a no deal scenario would hurt the EU more than the withdrawing State, which only a small number of hardcore Brexiters purport to believe. The more common view is that a short time period to negotiate works in the *EU* interest, which is precisely the basis of the objection to unilateral revocability in the first place.

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  19. What if the Euro Sceptic political party had no intention of negotiating a deal let alone restarting negotiations which had ultimately resulted in a revocation of a withdrawal notification.

    Under Article 50 the EU is protected against such an approach being adopted. A Member State can not leave the EU before a 2 year period if it is not interested in negotiating a withdrawal agreement, they can not just leave immediately. The mandatory 2 year period can be viewed as a recognition by the EU that, not only does it require a period within which to negotiate a withdrawal agreement, it needs a period of time to prepare for a no deal withdrawal, otherwise they would not have presented the exit being a withdrawal agreement or 2 year no agreement option.

    The reduced period in a revocation/resubmitting scenario undermines the 2 year protection period that the EU provided for in Article 50. Instead of the 2 year period they provided for they end up with a 3 month period.

    So the Court, if it finds a unilateral power of revocation, faces a choice of undermining the ability to extend the negotiating period or the 2 year period between the EU receiving the notification of withdrawal and the withdrawal taking place. Both of which are expressly provided for in Article 50.

    I'm not making any assumptions on who is damaged more by a no deal scenario. The scenario I present may not be immediate but given the shifts in the European political landscape it is not beyond the realms of possibility that it will one day come to pass, that is why the Courts interpretation is so important.

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    1. Again this isn't a real world argument. This Eurosceptic party would have to be making this argument for awhile and then win an election campaign on it. The EU would have knowledge of it and be able to prepare draft legislation etc. It could be that some of the relevant legislation was already adopted. Anyway this interpretation of Article 50 doesn't undermine the possibility to extend the notification period, as long as there's mutual consent to do so, which is the condition that applies to extension anyway.

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  20. Ok, but the point is that the Court is reducing the the 2 year period between receipt of notification of withdrawal and the treaties no longer apply that has been expressly provided for in the Article.

    If the Court is to find a unilateral power to revoke then it faces a choice as to which provision expressly provided in Article 50 is undermined.

    If it imposes a stopped clock approach to a revocation/re submission scenario then it undermines the 2 year period the EU expressly provided for between receipt of notification of withdrawal and treaties no longer applying.

    If it does not impose a stopped clock approach to a revocation/re submission scenario then it undermines the controls expressly provided for on the ability to extend the negotiating period.

    The question is not whether the EU could prepare within 3 month period or whether the parties could consent to an extension it is that finding unilateral power to revoke undermines on of other provisions expressly provided for in Article 50.

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    1. The counter-argument is that if it did *not* find a power to revoke unilaterally, the Court would be undermining the national constitutional requirements of the withdrawing Member State, and its autonomy to decide whether it still wishes to withdraw from the EU or not. As I said, the stopped clock does not really undermine the two-year notification period because the parties can always extend the time remaining if they choose. If the EU is willing to do so and the withdrawing Member State is not, that country has chosen to accept the consequences of its actions.

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  21. The Member States autonomy to decide to withdraw was at its most unrestricted point when they submitted a notification of withdrawal. Revocation and a decision to stay rather than withdraw involves a balancing between the requirements of the Member State that submitted the notification of withdrawal and the other 27 Member States. A negotiated revocation agreement respects that balancing whereas a unilateral power does not.

    It does undermine the 2 year period because the 2 year period the EU provided for in the Article did not require any consents to extend it. The Member State may consent but the process provided for by the EU was explicit and very restrictive, the 2 year period applies and can only be reduced where there is a withdrawal agreement.

    The EU would also have to accept consequences of the Member States actions resulting from a reduced preparation time even though it had specifically provided a 2 year period where a Member State could not withdraw without an agreement being in place.

    How could the Court conclude that the 2 year period put in by the EU and providing only one way in which it could be reduced was not significant. The EU drafts an Article that guarantees they have 2 years between when they receive a notification of withdrawal and the Member State leaving and the Court rules that they only have 3 months, unless the Member State consents to extending the period of time the EU will have to prepare.

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    1. You are begging the question of when the Member State loses its autonomy under this process. The Treaty refers to an "intention" to withdraw, and intentions can change. Your argument about the EU needing preparation time assumes that nothing happened in the withdrawal agreement negotiations in the 21 months before revocation, which is again not a real world scenario.

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  22. I don't suggest that it losses its autonomy only that it becomes qualified once it voluntarily submits its notification of withdrawal, the point of its least qualified autonomy when it engages with the withdrawal process.

    I fully accept that there are ways in which the EU could mitigate the potential damage caused by a reduced period between notification and withdrawal. I accept that they may be able to achieve consent to an extension of the time so that the period allowed more accurately reflects the 2 years originally envisaged. It may well be the case that the parties agree to go back to the original negotiations and bank that time already spent.

    However, I also acknowledge that the reduced period has the potential to undermine their negotiation position and represent an opportunity for a Member State to extract concessions, perhaps in exchange for consenting to an extension of the period, which would not exist had the 2 year period between notification and withdrawal which they had explicitly provided for not been undermined.

    The Court would be undermining the 2 year period and the reason they would have to do it was to prevent the undermining of the ability to extend the period allowed for negotiations. All because they found that there existed , inferred, a unilateral right to revoke for Member States.

    Thank you for taking the time, and having the patience, to engage with my posts. It allowed me to develop a basic understanding of Article 50 and next weeks preliminary reference. I will be keeping an eye out for the arguments and decision to see if they provide any clarity on the arguments we explored.

    All the Best.

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    1. Thanks for your comments too. I would characterise it as the Court resuming the two-year period, rather than undermining it.

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  23. Thank you for the standpoints and the debate! Very interesting.

    I am not a lawyer, but need to dabble in EU law for professional reasons, so FWIW: I used to be in the 'no unilateral revocation' camp, mostly because A50 does not say "treaties shall cease to apply unless ... or intention to leave is given up".

    However I have come around to the position that unilateral revocation is possible. Why? Because I think studying just the text of A50 itself to glean the intent of the drafters is too narrow.

    The "process of European integration" is the first concept that is mentioned in the preamble of the TEU. I cannot imagine that A50 would be construed to oppose European integration by denying a current Member State the power to decide to stay in the EU after all. Some or all other Member States may not like that at present, but the principle of integration and of an 'ever closer Union' must carry more weight than both the political considerations of the moment and the wording of a mostly procedural provision that no-one really expected to be invoked.

    So I am prepared to bet money on A50 being ruled as unilaterally revocable (or nullifiable if you prefer) when there is a ruling on the substance.

    In addition, "resuming the clock" as outlined by Prof. Peers indeed should suffice to avoid abusive revocations and re-notifications.

    In the particular case of Brexit, revocation would be a political slam dunk IMHO (if a metaphor from the other side of the Atlantic is permissible here).

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  24. The argument that while art 50 does not specifically say that it cannot be revoked and that it is therefore possible is a rather weak one. Article 50 is clearly created with the intention of protecting the interests of the EU as a whole and not to protect the interests for a member state wanting to leave. The provisions of Article 49 have a twofold function, countries which have never been a member of the EU can avail of it to become a member state, member states whom have left can use it to re-enter. This would be particularly painful to the UK as it would force the UK to adopt the Euro as currency and in all probability wave the discounts on contributions and returns a cheery goodbye. As a similar discussion one can have over a red traffic light, does it tell me to stop or does it tell me not to drive? The intention of the articles plays a huge roll, if it were art 50 on it's there would be case to argue, but as there is art 49 as well and the provisions of article 50 when it becomes active or the negotiating periods can be extended there is not much of case to be argued, except perhaps for the minority (the remain camp) attempting to overturn the majority of voters.

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    1. Except the CJEU has already accepted that silence on revocation in an EU legal text does not rule out that revocation is possible. The EU would have an interest in facilitating the continued membership of a Member State that decided that it wanted to stay after all, and avoiding the hassle of an application to rejoin in that scenario. Since most of those arguing to Remain in the EU suggest that there should be a referendum on the final terms of Brexit before confirming the decision to leave, arguments about 'overturning the majority of voters' are missing the point.

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    2. "The EU would have an interest in facilitating the continued membership of a Member State that decided that it wanted to stay after all, and avoiding the hassle of an application to rejoin in that scenario."

      Except that, in the special case of the UK (for which A50 was created) with its rebate and opt-outs, it would be favourable for the EU if the UK had to (when changing its mind about leaving) leave and then re-join without the rebate and without the opt-outs. That's what springs to my mind when I read A50 (5).

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    3. I don't think you have established your claim that Article 50 was created for the UK. In any event, it should not be interpreted as a special clause for one Member State, since any State might choose to leave. Demanding the end of opt outs is, I would argue, not in the interests of the EU, if it wants a substantial net contributor which it has a substantial trade surplus with to rejoin.

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  25. Some thoughts from a non-lawyer.

    Why was A50 created, which member state did they have in mind and what was the thinking behind it from the other states?

    It was created to appease British angst about ever closer union and being unable to stop if the union got too close for comfort for them - I don't think many would contest this. But what other aims did the others have apart from giving assurance to the UK that they could leave when they wanted to?

    a) Discourage the UK from leaving at all
    b) Stop the constant discussion about leaving or not in the UK and between the UK and the rest. They wanted the UK to either be a willing member and stop constantly vetoing stuff and threatening to leave, OR, if that couldn't be avoided, for them to leave in an expedited and structured process, and that's it, no more pestering.

    To achieve this, they formulated A50 so that:

    - the remaining members would stay on top of the process
    - the timeframe for leaving would be quite tight

    To me, irreversibility perfectly fits these aims. Why would they want to leave the door open for the state struggling with their commitment to membership to continue wasting everyone's time by retracting its withdrawal notice, only for the decades-old fight about leaving or not to continue into eternity, just as before? If A50 was to have some teeth, surely this had to be a message to the UK to either zip it and cooperate or be gone, on a one way ticket to the door marked exit.

    Viewed from a continental perspective, reversibility goes against the whole motivation for creating it in the first place.

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    1. As I replied already, you don't substantiate the claim that Article 50 was created for the UK, and it makes no sense to interpret it as a special clause for one Member State. If we are going to look at the background, the drafter of Article 50 says he believes that the notification can be revoked unilaterally.

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  26. The UK lobbied for having this inserted already into the (rejected) Constitutional Treaty of Nice, and it was then carried over into the Treaty of Lisbon. I don't think you can seriously dispute this, and I don't have the time to research an actual source. Franz Mayer, Professor for European Law at the Uni of Bielefeld also says so here: https://www.sueddeutsche.de/politik/brexit-eugh-mayer-1.4227563 . I expected this would be common knowledge to people who are into this matter, so I'm reading your rejection on this ground as a bit tongue in cheek. And of course I didn't state that no other states could use this clause, but the ECJ judges will have to consider the overall intention of the creators of this clause since it isn't sufficiently explicit, and considering the intention includes keeping in mind the special relationship between the EU and the state that demanded the inclusion of this clause.

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    1. Again, it makes no sense to interpret Article 50 as a clause for UK only, and if the drafting history is so important, what about the intention of the author? Anyway this tells us nothing about the question of unilateral revocation. Maybe the UK had that in mind?

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  27. I see from the tweets of the case today that the EU raised the issues of abuse and the significance of the 2 year time limit etc that we discussed above.

    I see that, should they find that it is possible to revoke other than unilaterally, an issue around whether or not that ability would require unanimity or qualified majority arose.

    After our discussion I did think about whether or not any form of revocation was possible, not just unilateral revocation. I thought that it likely was possible based on the fact it could be achieved in all but name by the use of the extension of time power and was not, therefore, inconsistent with, or undermining of, an express power provided for in Article 50. This was not the case with the unilateral revocation argument.

    If you take the ability to facilitate a revocation in all but name using the extension of time power as the method of interpreting the Article, when deciding whether or not an agreed revocation power exists, then the requirement for unanimity must exist.

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    1. If you take the Member State's unilateral power to trigger Article 50 as the method of interpreting the Article, then a unilateral power to withdraw the notification must exist.

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    2. I think that you should give weight to the fact that my reference point is the power which allows the treaties to continue to apply after notification has been submitted where as your reference point is the power that means they no longer will.

      It is also relevant that my method does not undermine any express power whereas yours does.

      I think the opinion will confirm that:

      Unilateral revocation is not possible because of it being open to abuse and rendering express restrictive powers contained in the article completely redundant.

      Revocation is possible but it will be based on unanimity as it simply recognises what can be achieved using an existing power, a specific version of the extension of time power.

      It's great that we only have to wait a few days to get the opinion.

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    3. Well, the opinion is not quite what you were hoping for...

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  29. Aidan O'Neill QC, who is representing the Scottish politicians, told the court that European lawyers were inviting the judges to act "unconstitutionally and in contravention of the rule of law by reinterpreting the treaties".

    One can only wonder how much ignoring a majority vote in a Democracy is constitutional. Furthermore, Scotland with a devolved government is not a member in it's own right, rather as part of the UK it is a member. The same goes for Wales and Northern Ireland. The latter is currently under direct rule from London. Which raises the question if direct rule can be deposed on Scotland at will from London, at which point Scotland has no business to question the possibility of unilateral withdrawal as it is not a party to the process.

    I actually doubt if the ECJ will rule at all. It might at best provide a guidance to interpretation as the Legal Process as such has not been exhausted. Only when the highest court in the member state has ruled and all appeal processes exhausted can the ECJ make a ruling on the subject matter.

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    1. The extent of your legal ignorance is spectacular. Whey on earth would the politicians' own lawyer say that they were acting unconstitutionally and in contravention of the rule of law? The Treaties are not being 'reinterpreted'; it's an an open question on which different people have different interpretations. The Court is performing its role under the Treaties of interpreting the Treaty; that's the very essence of the rule of law.

      No one is asking the Court to ignore a majority vote; and the UK Supreme Court has already ruled that the referendum vote is not legally binding. Parliament then conferred power on the PM to send the notification, and she used that power. That's the constitution. You seem unaware of the most basic elements of it.

      You are even more utterly ignorant of the basics of the EU judicial system. Any national court can send the CJEU questions about interpretation of EU law. Whether Scotland is independent or not is irrelevant in that context (ditto Wales and Northern Ireland). "Scotland" is not questioning anything; the individual litigants are. The Court gives binding rulings, not 'guidance', and we will see if decides to rule on the case. It it does not, it will not be on the basis of any issue you have identified here. And if London imposes direct rule on Scotland, roll on a unilateral declaration of Scottish independence. Finally, you have confused the CJEU process with the ECHR process.

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