tag:blogger.com,1999:blog-8704899696538705849.post2126573781493514513..comments2024-03-28T02:32:17.979-07:00Comments on EU Law Analysis: Can an Article 50 notice of withdrawal from the EU be unilaterally revoked?Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.comBlogger64125tag:blogger.com,1999:blog-8704899696538705849.post-35445329839586156172023-01-11T23:39:16.784-08:002023-01-11T23:39:16.784-08:00This comment has been removed by a blog administrator.Verified Driving Licensehttps://www.blogger.com/profile/03782808493548091791noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-8524317161171828212018-12-04T14:15:31.513-08:002018-12-04T14:15:31.513-08:00Well, the opinion is not quite what you were hopin...Well, the opinion is not quite what you were hoping for...Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-81220973638033560972018-12-02T07:08:41.662-08:002018-12-02T07:08:41.662-08:00The extent of your legal ignorance is spectacular....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. <br /><br />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. <br /><br />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. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-23517347068850040632018-12-02T06:37:52.914-08:002018-12-02T06:37:52.914-08:00Aidan O'Neill QC, who is representing the Scot...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".<br /><br />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. <br /><br />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.Marcelnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-42719999501934758382018-11-30T04:54:50.529-08:002018-11-30T04:54:50.529-08:00I think that you should give weight to the fact th...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. <br /><br />It is also relevant that my method does not undermine any express power whereas yours does.<br /><br />I think the opinion will confirm that:<br /><br />Unilateral revocation is not possible because of it being open to abuse and rendering express restrictive powers contained in the article completely redundant.<br /><br />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. <br /><br />It's great that we only have to wait a few days to get the opinion. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-1225456899376946912018-11-30T01:34:44.189-08:002018-11-30T01:34:44.189-08:00If you take the Member State's unilateral powe...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.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-784943208376031772018-11-30T01:34:04.949-08:002018-11-30T01:34:04.949-08:00This comment has been removed by the author.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-63735149088911642792018-11-27T05:56:56.749-08:002018-11-27T05:56:56.749-08:00I see from the tweets of the case today that the E...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.<br /><br />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. <br /><br />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. <br /><br />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. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-15519476268036632432018-11-27T03:02:30.496-08:002018-11-27T03:02:30.496-08:00Again, it makes no sense to interpret Article 50 a...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?Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-76301792288606183062018-11-27T01:01:35.477-08:002018-11-27T01:01:35.477-08:00The UK lobbied for having this inserted already in...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.SMeyernoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-83810865528572632812018-11-25T12:44:41.058-08:002018-11-25T12:44:41.058-08:00As I replied already, you don't substantiate t...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. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-74437615151727605172018-11-25T12:41:21.578-08:002018-11-25T12:41:21.578-08:00I don't think you have established your claim ...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.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-46185437343971369422018-11-25T12:09:24.593-08:002018-11-25T12:09:24.593-08:00"The EU would have an interest in facilitatin..."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."<br /><br />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).SMeyernoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-91349546708334938992018-11-25T12:04:03.277-08:002018-11-25T12:04:03.277-08:00Some thoughts from a non-lawyer.
Why was A50 crea...Some thoughts from a non-lawyer.<br /><br />Why was A50 created, which member state did they have in mind and what was the thinking behind it from the other states?<br /><br />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?<br /><br />a) Discourage the UK from leaving at all<br />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.<br /><br />To achieve this, they formulated A50 so that:<br /><br />- the remaining members would stay on top of the process<br />- the timeframe for leaving would be quite tight<br /><br />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.<br /><br />Viewed from a continental perspective, reversibility goes against the whole motivation for creating it in the first place.SMeyernoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-86186627583134837962018-11-22T06:58:53.743-08:002018-11-22T06:58:53.743-08:00Except the CJEU has already accepted that silence ...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. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-35321224914337200502018-11-22T06:53:24.257-08:002018-11-22T06:53:24.257-08:00The argument that while art 50 does not specifical...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.Marcelnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-76886660578699239542018-11-21T12:52:49.170-08:002018-11-21T12:52:49.170-08:00Thank you for the standpoints and the debate! Very...Thank you for the standpoints and the debate! Very interesting.<br /><br />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".<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />In addition, "resuming the clock" as outlined by Prof. Peers indeed should suffice to avoid abusive revocations and re-notifications.<br /><br />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).Loquiturhttps://www.blogger.com/profile/18132397411660911275noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-24743027598929787972018-11-20T14:44:39.709-08:002018-11-20T14:44:39.709-08:00Thanks for your comments too. I would characterise...Thanks for your comments too. I would characterise it as the Court resuming the two-year period, rather than undermining it.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-6477218160364426302018-11-20T06:55:57.953-08:002018-11-20T06:55:57.953-08:00I don't suggest that it losses its autonomy on...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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />All the Best. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-72841635746359616282018-11-20T06:08:01.418-08:002018-11-20T06:08:01.418-08:00You are begging the question of when the Member St...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. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-20569759223154131742018-11-20T05:02:30.370-08:002018-11-20T05:02:30.370-08:00The Member States autonomy to decide to withdraw w...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.<br /><br />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. <br /><br />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. <br /><br />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. <br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-91768428889411908382018-11-20T04:29:05.426-08:002018-11-20T04:29:05.426-08:00The counter-argument is that if it did *not* find ...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. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-16507262562265629472018-11-20T04:20:34.678-08:002018-11-20T04:20:34.678-08:00Ok, but the point is that the Court is reducing th...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. <br /><br />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. <br /><br />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.<br /><br />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. <br /><br />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. <br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-87218280843221373812018-11-20T03:59:43.893-08:002018-11-20T03:59:43.893-08:00Again this isn't a real world argument. This E...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. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-55009991798287582272018-11-20T03:46:27.582-08:002018-11-20T03:46:27.582-08:00What if the Euro Sceptic political party had no in...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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. Anonymousnoreply@blogger.com