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).
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.
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
Photo credit: Millenium Post
On the genuine nature of a revocation, doesn't seem particularly a question of publicity per se but what is inferable from the facts. As the Advocate General said at para 105 of his Opinion "if, as a result of action carried out in accordance with its constitutional requirements (for example, a referendum, a meaningful vote in Parliament, the holding of general elections which produce an opposing majority, among other cases), the Member State’s initial decision is reversed and the judicial and constitutional basis on which it was sustained subsequently disappears". This rather seems to preclude a government -as a non-genuine negotiating tactic- merely saying it was revoking its notification in the absence of a preceding action of the kind described by AG as sufficient to reverse the initial decision. The full court seems to nod to this at para 66 of the judgement when it speaks of a wish by an MS to reverse a decision "as expressed through its democratic process" which to my mind goes a bit beyond the actual 'constitutional requirements' wording of Art. 50 itself.ReplyDelete
Millions of EU27 nationals have between them lost billions of euros due to the UK's brexit adventure. For our family alone and our business it's into the tens of thousands. If your country now wants to stay in the EU can we sue you for compensation ?ReplyDelete
The judgment doesn't address this issue. The thrust of the ruling is that such disputes are a matter of national law. As a whole, EU27 citizens would be better off if the UK stayed.ReplyDelete
a unilateral sovereign right to blahblahblahReplyDelete
The etymological origin of "sovereignty" is "superior" in Latin which in English means … "superior".
Is the UK of NI and GB superior to the EU?
Flaminio Costa v ENEL (1964) Case 6/64 was a landmark decision of the European Court of Justice which established the primacy of European Union law (then Community law) over the laws of its member states', says Wikipedia.
Barnard and Peers point out on p. 162 of the 2017, 2nd edition, of their "European| Union Law" (Oxford UP)_that this judgment says that the transfer by the States from their domestic legal system to the Community legal system of the rights and obligations under the Treaty carries with it a PERMANENT [my emphasis] limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.
Today’s judgment conveniently does not mention Costa/Enel.
In my native Southern Low-Countries the Supreme Court held (Cass. 27 May 1971, Arr. Cass. 1971, 959; S.E.W. 1972, 42.) in 1971, that’s before the UK accession to the EC, that a self-executing treaty has in the legal order of the Southern Low-Countries priority over the laws of the parliament of the Southern Low-Countries and also over the Belgian constitution, even if these laws are posterior to EEC treaty. What is the UK constitution? Good question!
How can Article 50 be maintained?
Since Article 50 has been added to the Treaties, any reference to the permanent transfer of sovereignty is no longer good law.Delete
There is NO requirement in Article 50 for the extension of membership in order to continue withdrawal negotiations. 50(3) refers only to extending membership (with no time limit on how long a period that might be for - which might therefore be from 1 day or to eternity): it is solely concerned with defining when membership ends. 50(2) imposes an obligation on the EU..."the Union shall negotiate and conclude an agreement" with no time limit on that negotiation: it remains bound to conclude an agreement even after the Withdrawing State has left under the guillotine. The obligation is only satisfied when the agreement is concluded (which is set out as being approved in Europarl and by QMV in Council, but plainly cannot be without the agreement of the Withdrawing State). The guillotine provides a guarantee that a State can withdraw despite filibustering and frustration tactics by the EU, as well as providing some incentive for the State to negotiate in good faith.ReplyDelete
Turning to the judgement itself it seems that the ECJ has ignored the fact that in order to submit a notice at all, a state must have decided to withdraw under 50(1). That surely renders the distinction of intention vs decision irrelevant - the decision has been made against the terms of the TEU plus Cameron amendments. Now, were the EU to say "Sorry - can we persuade you to stay by offering better terms?" that would be worth considering as a fresh decision, providing that it had the full backing of the EU Council (as required by 50(3)). But otherwise since the formal date of ceasing membership is subject to the guillotine or other agreed date, a withdrawing state is unable to notify the timing of its withdrawal, and to that extent it remains an intention.
It seems odd that the respondents (EU,UK) seem to have confined their arguments to narrow grounds: there were no submissions on the applicability of VCLT for example, so the points put here
were not addressed. It is almost as if there was connivance not to make it difficult for the judgement to conclude that revocation is permitted.
No one has said there's a legal requirement to extend the Article 50 period. Your argument that the EU is obliged to conclude an agreement is triply untenable: a) because Article 50 does not cover what happens after Brexit Day; b) because Article 50 expressly provides for a no deal scenario; and c) because in any event the EU has already negotiated a withdrawal agreement; how could it conclude it if the UK does not? As for your interpretation of the judgment, you have ignored the word 'intention': it's a decision to notify the *intention* to withdraw.Delete
Your argument (also seen elsewhere) is that in order to prolong negotiations the UK must continue to be a member of the EU under extension pursuant to 50(3). Nowhere is that stated. Nor it it stated that any agreement must be concluded in advance of a withdrawal under the guillotine. Such a withdrawal is initially a "no deal withdrawal", but since there is no termination date set for the conclusion of a deal, it does not remain one once a deal is concluded afterwards. To pretend that no deals would ever be concluded with the EU after leaving is also nonsensical: the only issue is whether they fall under Article 8 or Article 50. Until there is an Article 50 deal, the EU has not fulfilled its obligations. I'm sorry, but I do not see any force in any of your arguments in the light of the wording of Article 50. The point is that there remains an obligation to negotiate a deal mutually agreed and ratified by the withdrawing state and the European Parliament and Council per Article 50 conditions - that is the direct meaning of the words, and it does extend the EU's obligations beyond exit day (as does Article 8 and 3 (5) on trade). There is no right of the EU to impose an agreement to its liking at the expense of the withdrawing state, and there is no right not to agree either.Delete
Article 50 is a shoddy piece of work: any commercial joint venture agreement would include an extensive section on what happens if a party withdraws from the agreement, including arbitration provisions in the event of dispute. However, it is what it is.
Of course, the nature of a deal that is completed after exit may vary significantly from one that is completed beforehand. Posturing about how things may turn out after exit will be replaced by reality, which could substantially alter the balance of negotiating power. That is why it is a high risk strategy.
There is no doubt whatsoever that you are wrong. The Full Court refers four times in Wightman to the possibility of a State leaving the EU without an agreement. The General Court judgment in Shindler likewise referred to this possibility four times. Of course the EU cam conclude treaties with a State after it leaves the EU; but that is an option under some other legal basis (Article 8 is not a legal basis), not an obligation to negotiate a withdrawal agreement under the specific legal basis of Article 50, which has then expired. No provision of Article 50 refers to powers being exercised after the withdrawal date, as confirmed by the separate reference to the future relationship framework. Moreover, you would have to explain who would sue who, in which court, for what remedy, in order to get a judgment in specific time to stop a no deal outcome, and how this could possibly work if the UK has not ratified a withdrawal agreement, which is the obvious scenario that the words "failing that" in Article 50(3) refer to.Delete
Dear Professor Peers,ReplyDelete
just practically seen, imagine the notification is withdrawn. The UK would then have to organize elections for the EP in 2019, since it's seats will be retained based on Art. 3(2) of European Council Decision 2018/937.
What would happen if the UK fails to do so?
Is it in any way possible to still organize these elections and are you aware of any 'no deal-no Brexit' preparations to this purpose?
Apparently there was UK government money set aside for EP elections awhile back, according to press reports.Delete