ECJ confirms that the UK can unilaterally revoke Article 50 TEU

• United Kingdom

• Brexit
• Competition, EU and Trade

11-12-2018

On 10 December 2018, the full court of the European Court of Justice (“ECJ”), the EU’s highest court, confirmed that the UK can revoke its intention to leave the EU unilaterally in Case C-621/18 Wightman.

Article 50 of the Treaty on European Union sets out, first, the sovereign right of a Member State to leave the EU and, secondly, the procedure to be followed to enable their withdrawal to take place in an orderly fashion. Article 50 is, however, silent on whether a Member State can revoke their intention to leave the EU.

The UK Government had argued that, as it has no intention to revoke Article 50, the question referred to the ECJ by the Scottish Court of Session on whether the Article 50 notice was revocable was hypothetical and should not be answered by the ECJ. The ECJ, however, disagreed because it considered that the response would clarify the options open to the Members of the House of Commons when they vote on the ratification of the Withdrawal Agreement.

The ECJ also dismissed the European Commission’s and the Council of the EU’s position that the UK could only revoke its Article 50 notice with the unanimous consent of the EU Member States. The ECJ stated that such a position would be inconsistent with the values of liberty and democracy in the EU Treaties. Instead, it held that “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”. Furthermore, as the purpose of the EU Treaties is to create an “ever closer union among the peoples of Europe”, a Member State cannot be forced to leave the EU against its will.

Timeframe

The ECJ’s judgment is clear that a Member State can revoke its intention to leave the EU only before the negotiated Withdrawal Agreement comes into force or, if such an agreement is not concluded, before the two-year timeframe set out in Article 50(3) expires.

Process

As Article 50 is silent on the procedure to be followed to revoke an Article 50 notice, the ECJ sets out the revocation procedure in its judgment.

First, the Member State would need to decide to revoke its intention to leave the EU “in accordance with [its] constitutional requirements”. Second, the Member State would need to submit notice to revoke its intention to withdraw from the EU in writing to the European Council. This would need to be “unequivocal and unconditional” so that it is clear that the purpose of the 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”.

Comment

The full court followed the opinion of the Advocate General, but for different reasons. The ECJ emphasised the need for a Member State to decide to revoke its intention to withdraw “in accordance with its constitutional requirements”. It is not clear, in the case of the UK, what that would entail. Presumably, reasoning by analogy, Parliamentary approval would be needed.