Trick or Treaty? The legal issues of the second extension of the UK’s EU membership

Professor Steve Peers, University of Essex

With the second Brexit day deadline of April 12 only two days away, last night leaders of EU Member States, meeting as the European Council, decided to grant the UK a second extension of its EU membership, possibly up to Halloween this year. The key provisions in the formal decision extending membership for the second time provide that:

Article 1

The period provided for in Article 50(3) TEU, as extended by the [first extension decision], is hereby further extended until 31 October 2019.

Article 2

This decision shall enter into force on the day of its adoption. 

This decision shall cease to apply on 31 May 2019 in the event that the United Kingdom has not held elections to the European Parliament in accordance with applicable Union law and has not ratified the Withdrawal Agreement by 22 May 2019.

The preamble to the decision also notes that if the withdrawal agreement is ratified, Brexit day could be earlier. More precisely: ‘the withdrawal should take place on the first day of the month following the completion of the ratification procedures or on 1 November 2019, whichever is the earliest’. Also, the preamble calls for a review in June, but doesn’t provide for the possibility of cutting the extension short at that point.

The date of 31 October was not chosen for its scary implications as such: it’s the last day in office of the current European Commission, although this point isn’t explicitly made in the European Council decision. Ending the UK’s membership therefore avoids a UK Commissioner taking office (and so also avoids the awkward question of whether the number of Commissioners should be reduced to prevent this happening).

This fresh extension followed from the previous European Council decision extending membership after the original Brexit Day of March 29, which I previously discussed in detail here (see also the relevant conclusions of the European Council, adopted on March 21). This blog post examines the details and legal issues arising from the second extension, adapting some of the points already made in the previous blog post on the first extension where relevant.

EU law issues

The starting point for discussing extensions of membership is Article 50(3) TEU, which provides, as regards a Member State withdrawing from the EU:

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Unanimity can still apply despite abstentions (Article 235 TFEU), and the European Council can, if necessary, act by written procedure (see its Rules of Procedure). (In the event, as with the first extension decision it seems that neither was necessary). The Member State concerned has to agree to the text of the relevant European Council decision, and the UK indeed agreed to the second extension decision, as it had agreed to the first one. There’s no formal role for the European Parliament or national parliaments. Article 50(3) is silent on whether or not there can be multiple extensions, but obviously the EU and UK assume that this is legally possible.

The first extension decision provided for two variations for extending membership beyond the original Brexit Day of 29 March 2019, depending on whether the House of Commons approved the proposed withdrawal agreement by that date. If that had happened, UK membership would have been extended until 22 May 2019. Since it did not happen, the second variation applied: membership was extended for only two weeks to 12 April 2019, and the UK had to ‘indicate a way forward before 12 April 2019, for consideration by the European Council’.

The two dates referred to were linked to the upcoming elections for the European Parliament, on May 23-26, as noted in the preamble to the first extension decision. This is because 22 May is the last day before the elections, and 12 April is the last day to give notice of the poll in the UK. There was a legal debate over whether the UK could be exempted from taking part in these elections (for details, see my blog post on the first extension), on which the EU has taken the view that there cannot be an exception. The second extension decision takes the same approach, forcing an early end to the UK’s EU membership on 31 May if the UK has neither held the European Parliament elections on time, nor ratified the withdrawal agreement by 22 May. However, it should be noted that, as discussed below, the UK has taken the legal steps to hold the elections.

This obligation to hold the elections is a specific application of the general rule: as the preamble to the decision on the second extension confirms that, as in the first extension, the UK has the same rights and responsibilities as it would ordinarily have as a Member State otherwise. Indeed, the preamble explicitly observes that the UK can revoke its notification of intention to leave the EU unilaterally (see the CJEU’s Wightman judgment). This continues the principle established in two earlier CJEU rulings (discussed here and here), in which the Court confirmed that the UK remained a fully-fledged Member State throughout the main two-year period after notifying its intention to leave the EU. In other words: Membership means Membership.

However, the preamble to the second extension decision conversely rows back on this somewhat, in that it also refers to the principle of ‘sincere cooperation’ applicable to all Member States, by virtue of Article 4 TEU. But the wording suggests that this principle might apply differently as regards a withdrawing Member State. More precisely, the preamble states that (emphases added):

The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.

So the EU says that the UK must be a full Member State for the purposes of the European Parliament elections, but not exactly a full Member State for some other purposes. If only there were a fruit-based or dessert-based analogy to describe this approach.

However, there’s no precise legal obligation attached to the reference to sincere cooperation clause. And what exactly could the UK do to obstruct the business of the EU anyway?  First of all, let’s look at the EU institutions. Member States do not have a veto on the major appointments to the EU institutions to be made later this year: Mr Juncker became Commission President despite the UK’s opposition (joined by Hungary), and Mr Tusk was re-elected as European Council President despite the opposition of Poland.  There’s no veto on appointing the rest of the Commission this autumn either, although Member States do act unanimously when appointing CJEU judges or renewing their terms. As regards the Commission in particular, the implications aren’t fully fleshed out: the UK and UK MEPs will still presumably have a vote for the new Commission, since those votes would normally take place before November 1, but would it follow that also the UK should nominate a Commissioner who might not even take office?

Could the UK obstruct the functioning of those institutions? First, although this is not mentioned in the extension decision, the European Council conclusions note that the EU27 can meet informally without the UK:

the 27 Member States and the Commission, where appropriate together with other institutions, bodies, offices and agencies of the Union, will continue to meet separately at all levels to discuss matters related to the situation after the withdrawal of the United Kingdom

This suggests an informal arrangement, where the EU27 might agree in principle on future developments which will apply after Brexit day, with any legal texts to be adopted officially once the UK has left.

Secondly, it should be noted that the EU institutions do less work than usual between May and October of an election year (ie the term of most of the extension decision), since the European Parliament (EP) focusses on the elections and their aftermath and the outgoing Commission is winding its activities up. But there are some activities. However, the Commission, EP and CJEU do not act by unanimous vote, and the EU institutions’ rules of procedure don’t provide for filibustering (ie discussing an issue endlessly to stop debate). Nigel Farage rarely shows up for long enough to filibuster anyway.

The possibility for obstruction exists more in the Council (made up of ministers) and the European Council (made up of Presidents and Prime Ministers). The Council usually (but not always) decides by qualified majority voting (QMV), while the opposite is true of the European Council.  For QMV, the UK vote has to count in some way (except where the UK opts out), and asking the UK to abstain accomplishes nothing, since UK abstentions would in effect count as a vote against. However, it’s rare that so many Member States oppose a proposal that the UK has the swing vote (for a current example, see the controversial copyright directive, which the UK could block if it abstained or voted against).

The UK could, of course, block everything where it has a veto.  This particularly applies to taxation, accession to the EU, Treaty amendment, foreign and defence policy, and major decisions on the budget. But budget decisions are due to be agreed next year, after the second extension decision will run its course, and applicant Member States are all a long way from joining the EU. While the UK could block steps in the ongoing accession negotiations (like opening or closing ‘chapters’ in the negotiations), the EU27 and the applicant State (like the EU27 internally) might simply decide agree in principle on those steps while awaiting Brexit day.

As regards Treaty amendments, there are no discussions of amendments underway or planned imminently. The UK can’t block any amendment process getting started, but its agreement would be necessary for any Treaty amendments to come into force. If there were interest from other Member States in such negotiations, the UK could abstain from the discussions, and ratification of any agreed text could get underway in the EU27, with the proviso that the process could only be completed on or after Brexit Day.

It’s also possible to use simplified procedures to amend certain parts of the Treaties, but any significant Treaty change by such simplified means still requires unanimity of Member States. Unlike fully-fledged Treaty amendments, simplified Treaty amendments are a live issue. The Commission has proposed extending QMV on aspects of foreign policy, as well as on taxation in general and energy and environmental taxes in particular. (Update: the Commission also proposed to drop unanimity for aspects of employment law on April 16th). The environmental tax paper also suggests giving the European Parliament more powers as regards EU law on nuclear energy, but this requires an ordinary Treaty amendment (which the Commission suggests should happen after 2025). Again, the UK could block these proposals as long as it’s a Member State, while the EU27 could agree on them (if they are interested) in principle pending Brexit day, and adopt them after that.

UK legal issues

The UK gave effect to the first extension as a matter of UK law by means of a Statutory Instrument, in accordance with s 20 of the EU Withdrawal Act 2018, which sets out a process to change ‘exit day’. Some have queried the legality of this process, and there’s a pending court case challenging the first extension (although see the counter-argument by Professor Mark Elliott).

Since the first extension was granted, as noted already, the House of Commons voted down the withdrawal agreement a third time. But there have been other legal developments. The Commons made two attempts to hold ‘indicative votes’ to find a Brexit outcome that would command majority support – but no outcome did. Since the Commons had also indicated its opposition to leaving the EU without a deal, the government changed its strategy of trying to pass the withdrawal agreement with Conservative and Democratic Unionist Party votes.

Instead, as the Prime Minister announced on 2 April, she would instead hold discussions with the Labour party, with a view to amending the declaration on the future relationship with the EU.  She would also seek a short second extension of membership from the EU, while planning to table the bill to implement the withdrawal agreement with a view to ratifying it by 22 May, thus avoiding taking part in European Parliament elections. To that end, on April 5 the government sent a request to the EU for an extension until June 30. Since it is possible that European Parliament elections might have to be held, the government also adopted the order which is legally necessary to hold them on May 23.

Furthermore, Parliament decided to take control of the legislative agenda from the executive temporarily and quickly pass a new law, the EU Withdrawal Act 2019. Among other things, it requires the government to seek an extension of membership from the EU, and on that basis, the Commons approved the government’s motion to set June 30 as the intended date. It also simplifies the process of approving another change to ‘exit day’ in UK law, which will be relevant imminently when giving effect to the second extension decision in UK law. (Update: the secondary legislation changing the exit day to October 31 has since been adopted,) While the passage of the Act attracted controversy, ultimately the outcome differs little from the government’s policy. I’ll leave it to political commentators to discuss the broader political impact of the Act. It should be noted that despite the passage of the Act, one MP, Bill Cash, has queried the legality of a second extension. With respect, his arguments about the frustration of the intent of Parliament ignore the 2019 Act as well as the prospect of extension of membership set out in the 2018 Act. But it would not be surprising to see these arguments litigated.

Finally, it’s useful to consider the second extension decision in its political context, although only a brave observer could argue they know what will happen in UK politics in the near future with any certainty.  An extension to October leaves just enough time for a referendum, and lots of time for a general election. It also leaves enough time for a Conservative party leadership contest, although a new Prime Minister would, without an election, face the same arithmetic in the House of Commons, regardless of their Brexit views. While the Conservative party formally cannot challenge its leader before December, it may try to find a way to do so indirectly. The results of local elections at the start of May and (if held) European Parliament elections at the end of May might alter the political dynamics. A new Queen’s Speech is due in June, which will entail the Conservative party renegotiating its confidence and supply arrangement with the DUP, as well as yet another opportunity to submit the withdrawal agreement to the vote. The delay to Brexit might provide the opportunity to pass further Brexit-related legislation, as well as conclude some ‘rollover’ treaties with non-EU countries.

As for the impact on EU/UK relations, while the second extension decision reiterates that the EU is not willing to reopen talks on the withdrawal agreement, and furthermore states that the extension period should not be used to negotiate the future relationship as such, the European Council conclusions expressly state a willingness to renegotiate the non-binding political declaration on that relationship. Renegotiating the latter depends on successful conclusions of talks between the Conservative and Labour parties, which many believe is an unlikely prospect. A general election might change the situation, but the government is not keen on one. There might remain a lack of a parliamentary majority for anything else (simple revocation, no deal, another referendum) if there’s no election. Time will tell if the UK can find any way out of the current Brexit deadlock.

Photo credit: bored panda

Barnard & Peers: chapter 27

Brexit II? The legal issues of revoking the notification to leave the EU but then notifying to leave again

Ronan McCrea, Professor of Constitutional and European Law, University College London

The CJEU ruling in the Wightman case (discussed here) has provided important additional information in relation to the Brexit process. The Court accepted arguments first made by Piet Eeckhout and Eleni Frantziou that notification of an intention to withdraw from the EU could be withdrawn unilaterally by the UK without the need for permission of the remaining EU 27.

This is important and may strengthen the hand of those arguing that the UK government should hold a second referendum with remaining the EU as an option on the ballot paper. However, the ruling of the Court of Justice is disappointing. It fails to provide meaningful guidance in relation to key questions in relation to revocation of Article 50.

The test set out by the Court for unilateral revocation is as follows:

-          revocation must take place before the Withdrawal Agreement comes into force (or if there is no such agreement, within the two-year period from notification set down in Article 50),

-          the revocation must take the form of notification in writing to the European Council following a to revoke that was taken in accordance with the constitutional requirements of the Member State in question,

-          revocation must be ‘unequivocal and unconditional’ which means ‘the purpose of that revocation is to confirm the EU membership of the Member State concerned’.

Notably absent from this test is the condition suggested by the Advocate General that the revocation must be sincere and done in good faith which as Oliver Garner noted could be very difficult to apply in practice.

This is useful information from the Court. We now know that, if the UK authorities change their mind on Brexit, proceed to reverse the decision to leave in accordance with the requirements of the British constitutional order and give written notification of this decision to the European Council before March (or later, in the event that Brexit Day is extended by joint agreement of the UK and the EU27), the UK can remain in the EU on its existing terms.

This is important as there had been suggestions that if the UK wanted to remain in the EU in this way, it may have needed the consent of other Member States who may have taken advantage of the UK’s weak bargaining position to remove benefits, such as the rebate on payments to the Union, that the UK currently enjoys.

It is not entirely certain whether a valid revocation would require a referendum under EU law. The Court’s ruling refers three times to the decision to revoke taking place through ‘a democratic process’ but in the operative part of the ruling the reference to democratic processes is dropped and only ‘constitutional requirements’ are referred to.

Some may argue that it would be undemocratic to reverse the Brexit decision without a referendum. However, representative democracy is a valid form of democratic decision-making. In addition, under the British constitutional system, Parliament remains the supreme legislative authority so if Parliament decided to reverse Brexit, such a decision would be in accordance with the constitutional requirements of the UK and is unlikely to be second-guessed by the CJEU (however unlikely it is in political terms, that this situation would arise).

Either way, thanks to the CJEU ruling we now know that if all of these hurdles are overcome and the UK manages to take a definitive decision to reverse Brexit before the end of March 2019, it cannot be stopped from remaining in the EU on its existing membership terms.

While that is somewhat useful information, it is not particularly useful because it is unlikely in the extreme that the UK will manage to take a definitive decision to reverse Brexit in the next couple of months.

For one thing, the UCL Constitution Unit has shown that a new referendum will need at least 22 weeks to organize. This means that even if the UK Government decides it wants to hold a referendum to reverse Brexit it is likely to need to obtain the agreement of the other 27 Member States to extend the two-year period under Article 50 to give it time to organize this vote. Whether the Member States would agree to such an extension unless the UK government promised to campaign for remain is very uncertain.

Perhaps more seriously, the Court’s judgment leaves us largely in the dark as to what would happen in the not unlikely scenario that the UK seeks to revoke without having definitively decided to remain in the EU. Indeed, it was this issue of the potential for a right of unilateral revocation to be abused that was the core of the arguments made by the Commission and Council in Wightman. And on this issue, the Court has provided little useful guidance.

Consider the following scenarios (none less likely than the UK definitively deciding to reverse Brexit before March 2019):

1)      The UK government seeks to revoke Article 50 in early March 2019 but makes it clear that this revocation will need subsequently to be ratified by a referendum of the British people.

2)      The UK government revokes Article 50 and declares that the UK will be staying in the Union. However, three months later, it declares that due to changed political circumstances, it is triggering Article 50 once more.

3)      The UK revokes Article 50 saying that it is bringing the current exit procedure to a close but makes it clear that it will retrigger in the near future to begin a new process (in which the UK is better prepared and has a clearer idea of what it wants).

In all three scenarios, we are faced with a situation where the revocation is legally unequivocal but is (or is later revealed to be) politically equivocal. This would seem to be an abuse of the right of revocation and raises the prospect of the UK being allowed to circumvent the strict two-year time limit set out in Article 50. As it goes against the requirement set down by the Court in Wightman that revocation be unequivocal it should, in theory, be capable of being challenged. But working out how such a challenge would work is very difficult.

As the act of revocation is unilateral, so there is no act of acceptance on the part of the Council that could be challenged. Perhaps a Member State or EU institution could apply to the General Court to annul the revocation by the UK or (given that the giving of a notice of revocation is a sovereign act) to get a declaration that the act of revocation did not produce consequences within the EU legal order on grounds that it failed to satisfy the Wightman criteria. If the courts did not intervene then an equivocal revocation would stand, something that seems to go against in the Wightman judgment. It would also seem to defeat the temporal limits on the withdrawal process enshrined in Article 50.

If the EU courts did intervene and annul the revocation then they would face a nightmare in seeking to give effect to that ruling. In scenario 2, the Court would be faced with retrospectively annulling a revocation meaning that the in theory, the UK would actually have left the Union back in March 2019 without realizing it.

Even in relation to scenarios 1 and 3, it is highly likely that any ruling from the EU courts would be given either after or very close to the end of the two-year time limit in Article 50. This means that the ruling could have the equally chaotic effect of pushing the UK out of the Union in a chaotic no-deal fashion either immediately or almost immediately. All of these outcomes would bring absolute chaos not to mention giving Brexiters the chance to blame their bete noire, the Court of Justice, for the chaos of a no deal exit.

The EU courts could, as they have done before, seek to limit the chaotic consequences of their ruling by refusing to give immediate effect to the annulment of the revocation. That would also involve the courts in a political nightmare by requiring them to decide how long the UK would have before being chaotically ejected from the Union.

By giving a unilateral right to withdraw notification without any possibility for the Council to exercise its political judgement over its sincerity or equivocal nature, the Court of Justice has left itself as the only institution with a role in limiting potential abuse of this right. This leads it into adjudicating on inherently political matters such as the likely future actions of the UK authorities or deciding how much additional time the UK should be given to avoid a chaotic exit.

Furthermore, we simply don’t know how the Court would carry out the role it has granted itself. By requiring that revocation be unequivocal and bring the process of leaving to an end, the Court has implied that it would exercise some power of review over acts of revocation but has refused to provide any guidance about how this power would be exercised. Given how much focus the Council and Commission placed on the issue of abuse of the right to revoke, the failure to give guidance on this issue is very disappointing.

The UK government had asked the Court to refuse to give a ruling on the grounds that the question referred by the Scottish court was theoretical as the UK government has given no indication that it wants to withdraw its notification. Once the Court decided to give a ruling it really should have attempted to give guidance that was as useful as possible.

Unfortunately, it ended up giving a ruling that only really applies to the extraordinarily unlikely scenario of the UK definitively renouncing Brexit before March 2019 (or a later date in the event of an extension) and that gives very little useful guidance in relation to the key issue that preoccupied the Commission and Council, the potential for misuse of revocation in order to circumvent the temporal limitations imposed by Article 50.

All of this means that in most likely scenarios, political actors find themselves acting without much idea of what the applicable law is. This increases the likelihood that we will find ourselves before the Court of Justice again with CJEU judges struggling to rule on inherently political matters such as the likely future action of the UK government. Worse, next time the Court rules the clock will have moved ever closer to midnight in Brexit terms producing an even more fraught atmosphere and even more likelihood that the Brexiters’ favourite judicial bogeyman will become a scapegoat for the chaos of a no deal Brexit.

In these circumstances the Court may well regret that it did not take the chance to rule that inherently political matters such as the assessment of the sincerity of the revocation of Article 50 were not left to political bodies such as the European Council.

Barnard & Peers: chapter 27

Photo credit: WiredUK

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

Photo credit: Millenium Post

Revoking the notice to withdraw from the EU? The opinion in Wightman

Professor Steve Peers, University of Essex

Introduction

Was sending the Article 50 notification of withdrawal from the EU like jumping off a cliff – impossible to change your mind after jumping? Or was it rather like setting off to the shops, where you can change your mind about shopping while on the way there, in the car park, or even in the shop itself – perhaps because you discover that the promised discounts don’t exist, the management is under police investigation, and the massive Turkish foods section consists of a couple of dusty hazelnut packets?

We should soon find out from the Court of Justice. In the meantime we have today’s non-binding opinion from an Advocate-General. Although the Court might not follow the opinion, the judges will consider it carefully, and it’s worth discussing the issues which it raises. (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, and on the UK’s current status as a Member State: see discussion here and here).

The opinion

First of all, the opinion dismisses the UK government’s argument that the case is hypothetical, because the government has not decided to withdraw the Article 50 notice and has no intention of doing so. In particular, the outcome of the ruling might be relevant when MPs cast their vote on whether to approve the withdrawal agreement with the EU, or on deciding what to do if the agreement is not approved.

The opinion then agrees with the petitioners – mainly UK politicians in the Westminster Parliament, the Scottish Parliament and the European Parliament – that the notification is in principle unilaterally revocable. First of all, it notes that Article 50 is silent on the issue of revocation, and so notes that three outcomes are possible: no revocation, unconditional revocation, and revocation with conditions. It approaches the issue by looking first of all at general public international law, and then at the specific wording of Article 50, followed by the issue of agreed revocation.

As for international law, the opinion is uncertain as to whether revocation of notification of withdrawal from a treaty is firmly established as a matter of customary international law (although there are several examples). The right to revoke withdrawals from a treaty unilaterally is, however, expressly set out in the Vienna Convention on the law of treaties (VCLT). The Opinion discusses whether the VCLT applies to withdrawal from the EU, and reaches the conclusion that it does not, given that the EU itself and some of its Member States are not parties to that Convention. Nevertheless, it argues that the VCLT may be useful when interpreting Article 50.

As for the interpretation of Article 50 as such, a literal interpretation does not resolve the question, since Article 50 is silent on the question of unilateral revocation of a withdrawal notice.  So it’s necessary to examine the context of the Article. In the Advocate-General’s view, it starts with a national phase ‘exclusively’ for the withdrawing State, when it decides on its intention to withdraw, ‘only conditional’ on following ‘that State’s own constitutional requirements’. The logical corollary is a unilateral power to revoke that decision, as ‘a manifestation of that State’s sovereignty’. So unilateral powers continue into ‘the negotiation phase, which begins with the notification of the intention to withdraw to the European Council and culminates two years later, unless there is an extension by unanimous decision of the Council.’ (Note that the withdrawal agreement itself can also set a later date, although the draft withdrawal agreement concluded between the UK and EU does not). More generally, like ‘other areas of law, in the absence of an express prohibition or a rule which provides otherwise, whoever has unilaterally issued a declaration of intent addressed to another party, may retract that declaration until the moment at which, by the addressee’s acceptance, conveyed in the form of an act or the conclusion of a contract, it produces effects’.

Next, the opinion observes that Article 50(2) TEU refers to a notification of an ‘intention’ to withdraw, ‘not to withdrawal itself’, which happens later. An ‘intention’ is ‘not definitive and may change’; the notification of that intention to a third party ‘may create an expectation in that party, but does not assume an obligation to maintain that intention irrevocably’.

Interestingly, the opinion also refers to the possibility of a withdrawal decision being ‘annulled, if the body having authority (ordinarily the highest courts of each State) holds that that decision was not adopted in accordance with the constitutional requirements.’ In this scenario, ‘there is little doubt that the State which notified its intention must also make known that it unilaterally revokes that notification, as its initial decision lacked the essential precondition.’

Similarly, following 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)’, an initial decision might be ‘reversed and the judicial and constitutional basis on which it was sustained subsequently disappears’. Again, in that scenario, ‘that State can and must notify that change to the European Council’. These scenarios have international precedents in practice, as well as corresponding to Article 68 of the VCLT.

Furthermore, the opinion argues that insisting on a Member State leaving under such circumstances would be ‘a result contrary to common sense’, and accepting revocation would ‘respect’ a national parliament’s role as part of a Member State’s national identity. Refusal to accept revocation would entail a de facto forced exit from the EU.

The possibility of applying to rejoin did not contradict this interpretation either, as it would be illogical to spend the Article 50 time period negotiating future membership. And as the CJEU had already noted, a Member State remains a Member State throughout the Article 50 time period.

The opinion then rejected the contrary arguments of the Commission and Council. In the Advocate-General’s view, there is still a unilateral element after the notification is sent, because the withdrawing Member State can simply refuse to negotiate a withdrawal agreement. The power to extend the negotiating period did not mean by a contrario reasoning that no power to withdraw the notification exists. The Council’s argument about costs was unconvincing because ‘the financial costs (for the European Union and its citizens) arising from a Member State’s withdrawal would far exceed the (minimal) costs generated by the revocation’.

The opinion bolsters its argument by adding that the unilateral revocability would enhance the ‘ever closer union’ clause in the Treaties, ‘national identities’ of the Member States, and the rights of EU citizens would be enhanced by permitting unilateral revocability. It also argues that the historical background to drafting Article 50 supports the same result.

However, the opinion argues that some conditions exist. There must be a formal notification of revocation, matching the notification to withdraw. Equally, national constitutional requirements must be respected. Although he accepts that ‘this is an issue which falls to be determined by each Member State’, he argues that in the UK, the requirement for parliamentary authorisation to leave would logically be matched by parliamentary approval to revoke the notification. (He makes no specific mention of whether an Act of Parliament would be required). There would be no need to justify the decision to revoke.

There would also be a temporal limit: revocation ‘is possible only within the two-year negotiation period that begins when the intention to withdraw is notified to the European Council’, and ‘once the withdrawal agreement has been formally concluded, which implies the agreement of both parties’, revocation would no longer be possible either. The discussion here is inconsistent with the opinion’s previous reference to the possibility of extension of the Article 50 time limit.

Next, the ‘principles of good faith and sincere cooperation’ in Article 4(3) TEU set a limit. On this point, the EU institutions were concerned that a Member State ‘could revoke its notification and halt the negotiations if they were not favourable to it’, and ‘resubmit its notification of intention to withdraw, thus triggering a new two-year negotiation period’, circumventing the time limits on the process. But the Advocate-General rejected these arguments: ‘the possibility that a right may be abused or misused is, generally speaking, not a reason to deny the existence of that right’. A means to prevent abuse of the right must be found instead. The established ‘abuse of rights’ principle in EU law could be ‘applied in the context of Article 50 TEU, if a Member State engaged in an abusive practice of using successive notifications and revocations in order to improve the terms of its withdrawal from the European Union.’

There was no indication that any abuse was planned, and ‘any abuse could occur only when a second notification of the intention to withdraw is submitted, but not by unilaterally revoking the first.’ In the Advocate-General’s view, a large number of ‘tactical revocations’ was unlikely, in that the national ‘constitutional requirements’ rule would function as a ‘filter’, given the requirement of (for instance) elections, court decisions or referendums.

Finally, the opinion accepts that revocation can be agreed, in the event of a request from the departing Member State and unanimous agreement in the European Council.

Comments

First of all, the opinion convincingly argues that the case is not hypothetical. It rightly recalls the case law according to which national court references are presumed to be relevant; that presumption can only be rebutted in limited cases. There is a strong argument to answer these questions given the status of those petitioners who are MPs; and otherwise there could be a catch-22 scenario where MPs hesitate to vote on whether a referendum could be held because they do not know if unilateral revocation would be possible.

The main argument for unilateral revocability is equally convincing – in particular as regards the importance of the word ‘intention’, and the emphasis on the sovereign decision-making power of Member States. As regards safeguards against abuse, though, it is at least conceivable that national constitutional requirements will not always work as a filter, and so it would be preferable to spell out what limits – perhaps in the form of a refusal to consider a notification valid within a year or two of the previous notification, or the resumption of an Article 50 process where the last process left off – would be applicable.

It is unfortunate that the opinion is vague about the time limit issue though. Would notification only be possible within the two year time limit, or also during the the time limit as extended? The opinion is contradictory; the Court judgment (if it goes down these lines) should not be. The possibility of a delayed time limit in the withdrawal agreement should also be mentioned. The best interpretation, keeping with the logic of the opinion, is that revocation would also be possible within the extended time period.

Revocation with consent does not easily fit within the literal wording of Article 50, because there is no process for consenting. Moreover, it’s unlikely that any Member State would seek this route if it could revoke unilaterally instead. It might be used in a scenario where the Member State’s current membership was being renegotiated, though only Tony Blair thinks that might happen as regards the UK.

Overall, if followed by the Court, this opinion would be an unqualified victory for those arguing for unilateral revocation. Whether it changes the political dynamics remains to be seen, and I remain of the view that another referendum (which would still have to be won by the Remain side) is very unlikely. In any event, unilateral revocability could still prove relevant as regards other Member States that might someday wish to leave the EU.

Barnard & Peers: chapter 27

Photo credit: The Irish Times

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

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