Brexit: you can U-turn if you want to. The CJEU judgment in Wightman

Professor Steve Peers, University of Essex

Today’s Full Court judgment in the Wightman case confirms that the UK can unilaterally withdraw its notification that it intends to leave the EU, on the most generous possible terms. It broadly follows last week’s non-binding opinion from an Advocate-General, discussed here. (See also the discussion here of the national court background to the proceedings, and the discussion here of the arguments for and against unilateral revocability. The EU courts have also ruled on a challenge to the withdrawal agreement negotiations in Shindler, and on the UK’s current status as a Member State in RO: see discussion here and here).

The judgment

First of all, the Court rejects the UK government’s argument that the case is hypothetical, noting that some of the litigants are MPs who will be voting imminently on the proposed withdrawal agreement (unless that vote is delayed). It displays its usual deference to national courts’ decision to ask the CJEU questions about EU law, which leads to a presumption of relevance.

On the merits, the Court takes its usual view that EU law should be interpreted taking account of its wording and objectives, but in light of its context and the provisions of EU law as a whole. On the wording, the Court notes that Article 50 TEU (the Treaty provision on the withdrawal process) is silent either way about the revocation of a notification of the intention to withdraw from the EU.  But the Court points out that Article 50 refers to notifying an ‘intention’ to withdraw: ‘An intention is, by its nature, neither definitive nor irrevocable’.

Observing that the decision to withdraw its unilateral, in accordance with a Member State’s ‘own constitutional requirements’, the Court rules that

the Member State is not required to take its decision [to withdraw] in concert with the other Member States or with the EU institutions. The decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice.

As for the objectives of Article 50, the Court characterised it as having two objectives: ‘first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion’. It then located the issue of revocation as part of the first of these objectives: linking revocation with the sovereign decision to withdraw, and clarifying the timing of the right of revocation:

…the sovereign nature of the right of withdrawal enshrined in Article 50(1) TEU supports the conclusion that the Member State concerned has a right to revoke the notification of its intention to withdraw from the European Union, for as long as a withdrawal agreement concluded between the European Union and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that provision, has not expired.

It is clear that the unilateral right to revoke the notification still exists if the Article 50 period is extended (which must be unanimously agreed by the withdrawing Member State and the EU27). The Advocate-General’s opinion had conversely been unclear on this; it’s a crucial point since an extension would likely be necessary if another referendum on Brexit were held in the UK.

What rules apply to unilateral revocation? Since Article 50 is silent, the Court says that the same rules apply to withdrawal as applied to the original notification: ‘it may be decided upon unilaterally, in accordance with the constitutional requirements of the Member State concerned.’ The Court also confirms that a revocation would mean that the UK retains its current status as an EU Member State, as the revocation would reflect ‘a sovereign decision by that State to retain its status as a Member State of the European Union, a status which is not suspended or altered by that notification’ (following the CJEU’s previous ruling in RO), ‘subject only to the provisions of Article 50(4) TEU’ (which says that a departing Member State does not participate in EU decision-making concerning the withdrawal agreement). Revocation ‘is fundamentally different’ from a request for extension of the Article 50 time period, which entails unanimous consent of the EU27, rejecting the analogy with the second objective of Article 50 which the EU Commission and Council wanted the Court to make.

As for the context of Article 50, the Court stressed the Treaty objectives of an ‘ever closer union among the peoples of Europe’, EU citizenship, and the values of liberty and democracy, noting that ‘the European Union is composed of States which have freely and voluntarily committed themselves to those values’, and that ‘any withdrawal of a Member State from the European Union is liable to have a considerable impact on the rights of all Union citizens, including, inter alia, their right to free movement, as regards both nationals of the Member State concerned and nationals of other Member States’. Therefore, ‘given that a State cannot be forced to accede to the European Union against its will, neither can it be forced to withdraw from the European Union against its will’, which would be the case if a ‘Member State could be forced to leave the European Union despite its wish — as expressed through its democratic process in accordance with its constitutional requirements — to reverse its decision to withdraw and, accordingly, to remain a Member of the European Union’.

The Court also looks at the process of drafting the earlier version of Article 50, during which various proposed amendments were rejected, ‘on the ground, expressly set out in the comments on the draft, that the voluntary and unilateral nature of the withdrawal decision should be ensured’. Moreover, the Court’s findings were ‘corroborated’ by the Vienna Convention on the Law of Treaties, ‘which was taken into account’ when drafting the earlier version of Article 50. That Convention states ‘in clear and unconditional terms, that a notification of withdrawal’ from a treaty ‘may be revoked at any time before it takes effect’.

Next, the Court rejects the argument of the Council and the Commission that revocation would need unanimous consent, as this ‘would transform a unilateral sovereign right into a conditional right subject to an approval procedure’, which ‘would be incompatible with the principle…that a Member State cannot be forced to leave the European Union against its will’.

Finally, the Court sets out the conditions for revocation; it:

…must, first, be submitted in writing to the European Council and, secondly, be unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.

The Court does not otherwise address the argument of the Council and Commission, which was discussed by the Advocate-General, that there must be a ‘good faith’ element to revocation.

Comments

The Court’s judgment may ultimately have no impact on the political likelihood of whether the UK reverses Brexit – which I continue to think is very unlikely. It does lower the potential barriers to a U-turn by the UK, but this may only strengthen the resolve of Brexit supporters, rather than change their mind.  

Let’s look at the judgment from a legal perspective. Even more so than the Advocate-General’s opinion, this ruling strongly supports unilateral revocation of a notification on the easiest possible terms. The admissibility of the case is unsurprising in light of the prior case law deferring to national courts. As the Court says, Article 50 is silent on the issue and that does not point necessarily to a resolution to the issue, but the Court was right to point out that there’s an explicit reference to an intention to withdraw in the wording of Article 50.

The Court’s ruling on the unilateral nature of the initial notification to withdraw confirms the recent EU General Court judgment in Shindler on the nature of the UK’s initial decision, which was not ‘approved’ or filtered by the EU institutions upon receipt of the notification. The parallel which today’s judgment draws between notification and revocation suggests that if Shindler is upheld on appeal on this point, as it logically should be, there could be no review by EU institutions of the revocation, provided that it meets the very minimal requirements set out by the Court (and discussed further below).  

It seems that the key to the logic of the judgment is the Court’s characterisation of Article 50 of having two objectives, and then categorising revocation of notification as an aspect of the first objective – the process of deciding to withdraw – instead of an aspect of the second objective – the orderly withdrawal process. It followed from this that the Court drew an analogy with the unilateral nature of the decision to withdraw, rather than the bilateral nature of the withdrawal agreement negotiation process, and in particular the unanimous requirement to extend that process.

As for the link to international law, it contradicts the usual autonomy of EU law from international law that the Court refers to itself at the outset of the judgment, but the Court justifies that because the drafters of what became Article 50 took the Vienna Convention into account. It is, in any event, only a secondary part of the Court’s reasoning.

Finally, on the conditions for revocation, the submission in writing is straightforward enough: the EU institutions could surely work out whether a revocation was genuine or not, in light of the publicity that would obviously accompany it. The requirement of an ‘unequivocal and unconditional’ revocation, ending the withdrawal process on unchanged terms, suggests that the notification of revocation must confirm that the UK is not intending to renegotiate its membership or to send another notification shortly afterward. Implicitly if the UK revocation arguably did either of those things then the legal question would arise of what the European Council could do about it. It could either refuse to accept the notification, with the result that the UK might then challenge that decision; or it could simply decide to cross that bridge when it came to it, either refusing to renegotiate membership or (more problematically) to accept a fresh notification of withdrawal if that followed shortly after a revocation of the first notice (again, that decision could then be challenged).  

But the Court, unlike the Advocate-General, makes no mention of the domestic process leading up to revocation, noting only that it must be in accordance with the UK’s own constitutional requirements. In Shindler, the General Court said that these requirements were not for the EU institutions to judge, but the UK’s national courts and political institutions, with the proviso that a national Court might ask the CJEU if a particular requirement was compatible with EU law.

Overall, then, legally the road is clear for a U-turn if the UK wants to – but that is irrelevant as long as the lady is not for turning. Whether she changes her mind – or someone else takes the wheel and does so instead – remains to be seen.

Barnard & Peers: chapter 27

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