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CJ rules that UK may unilaterally withdraw from Brexit (Wightman and others)
02/01/2019

On 10 December 2018, the CJ issued its judgment in case Andy Wightman and others v Secretary of State for Exiting the European Union (C-621/18). The case deals with the question of whether the UK may unilaterally revoke the notification of intention to withdraw from the EU. Concretely it discusses whether the noti cation referred to in Article 50 TEU (concerning the withdrawal from the EU) can unilaterally be revoked before the expiry of the two-year period laid down in that article with the effect that, if the noti cation made by the UK were revoked, that Member State would remain in the EU.

The petitioners and interveners in the main proceedings, while acknowledging that Article 50 TEU does not contain any express rule on the revocation of a noti cation of the intention to withdraw from the EU, submit that a right of revocation exists and is unilateral in nature. However, that right may only be exercised in accordance with the constitutional requirements of the Member State concerned, by analogy with the right of withdrawal itself, laid down in Article 50(1) TEU. According to those parties to the main proceedings, the withdrawal procedure, therefore, continues for as long as the Member State concerned intends to withdraw from the EU, but comes to an end if, before the end of the period laid down in Article 50(3) TEU, that Member State changes its mind and decides not to withdraw from the European Union. The Council and the Commission, while agreeing that a Member State is entitled to revoke the noti cation of its intention to withdraw before the Treaties have ceased to apply to that Member State, dispute the unilateral nature of that right.

According to the CJ, 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 noti cation of its intention to withdraw from the EU, for as long as a withdrawal agreement concluded between the EU 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. In the absence of an express provision governing revocation of the noti cation of the intention to withdraw, that revocation is subject to the rules laid down in Article 50(1) TEU for the withdrawal itself, with the result that it may be decided upon unilaterally, in accordance with the constitutional requirements of the Member State concerned.

For the Court, a Member State’s intention to withdraw does not lead inevitably to the withdrawal of that Member State from the EU. On the contrary, a Member State that has reversed its decision to withdraw from the EU is entitled to revoke that noti cation for as long as a withdrawal agreement concluded between that Member State and the EU 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.

Related : Loyens & Loeff Luxembourg S.à r.l.

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