A real alternative: CJEU confirms UK can unilaterally revoke its notification to leave the EU

Executive summary

The Court of Justice of the EU (“CJEU”) has this morning advised that the UK may unilaterally revoke its notification under Article 50 of the Treaty of the European Union (“Article 50”).

The UK Parliament had been set to vote tomorrow on the terms of the Withdrawal Agreement struck with the EU (a vote which has now been postponed). This decision of the CJEU should help inform MPs (whenever the vote ultimately takes place) and make clear that, in the circumstances where approval is not given, unilateral revocation of the Article 50 notice is a real alternative to a “no deal” Brexit or indeed any renegotiation of the deal.

Background to the decision

On Friday 21 September 2018, the Inner House of the Court of Session in Scotland handed down its judgment in the much-anticipated appeal brought in the matter of Andy Wightman MSP and others v Secretary of State for Exiting the European Union [2018] CSIH 62.

The petitioners in this case include members of the Scottish, UK and European Parliaments. They sought a declarator from the Courts on whether, when and how the notification made by the Prime Minister under Article 50, which will lead to the UK’s withdrawal from the EU on 29 March 2019, can be unilaterally revoked.

At first instance, the request for a reference to the CJEU was declined, with the Lord Ordinary ruling that the question was hypothetical, as the UK Government had stated it did not intend to revoke the notification made under Article 50. The petition was also refused on grounds that it encroached upon parliamentary sovereignty, was outwith the court’s jurisdiction and that the conditions for a reference had not been met, given the hypothetical nature of the issue.

The CJEU’s decision

Under the terms of section 13 of the European Union (Withdrawal Act) 2018 (the “Withdrawal Act”), parliamentary approval on the terms of any withdrawal agreement reached between the EU and the UK Government must be sought. If the UK Parliament declines to approve the terms of the deal before, the UK will nonetheless leave the EU on 29 March 2019, in terms of Article 50. MPs faced a stark choice: approve the terms negotiated with the EU to leave, or leave with “no deal”. This ruling from the CJEU has now confirmed that there is another choice: to revoke the Article 50 notification.

Today, the CJEU has clarified that, so long as the Withdrawal Agreement has not entered into force, and for as long as the two-period under Article 50(3) TEU, possibly extended in accordance with that provision, has not expired, it can be revoked. The CJEU has said that any revocation of the notification under Article 50 must be decided in accordance with national constitutional requirements and then communicated unequivocally and unconditionally to the European Council in writing.

This decision upholds the previous opinion issued by CJEU advocate general Manuel Campos Sanchez-Bordona, who said last week that Article 50 of the Lisbon Treaty allows the "unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the Withdrawal Agreement is formally concluded".

Why does this matter?

This decision matters because it takes away any doubt that the UK can withdraw its Article 50 notice, in which case the UK would continue as a member if the EU on its existing terms (or until such time as there was a separate renegotiation of the UK’s future relationship with Europe at a later date).

This should help inform MPs at Westminster ahead of them ultimately voting on the negotiated agreement reached with the EU and make clear that, in the circumstances that approval is not given, unilateral revocation of the Article 50 notice is a real alternative to a “no deal” Brexit or indeed any renegotiation of the deal.