Brexit: the UK may unilaterally back out
12/12/2018

The Court’s findings

In today’s judgment (07.12), the Court of Justice of the European Union, sitting in full court, has followed the opinion of its Advocate General by recognising the UK’s right to revoke its intention to leave the European Union. The Court even adopted a more liberal approach towards the conditions for and limits to the exercise of this right of revocation than that proposed by the Advocate General.  

In essence, according to the Court’s ruling, a Member State may unilaterally revoke the notification of its intention to withdraw from the European Union as long as: 

– A withdrawal agreement between the EU and that Member State has not yet entered into force;

– Or, if no such agreement has been concluded, for as long as the two-year period from the notification of the intention to withdraw from the EU has not expired; 

– Or, if no such agreement has been concluded, for as long as that two-year period, as extended by an agreement between the Member State concerned and the European Council, has not expired.

The revocation must be decided following a democratic process in accordance with national constitutional requirements, as provided for in Article 50(1) of the Treaty on European Union. This decision must be communicated in writing to the European Council. 

Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State. The decision must be unequivocal and unconditional.

By these last clarifications, the Court wished to avoid abusive use of the right of revocation as leverage in negotiations with regard to certain European cases.

Reasons put forward by the Court

Some reasons put forward by the Court deserve further attention. 

In addition to the wording of Article 50(1) TEU, described above, the Court highlighted:

– The sovereign right of each Member State to withdraw from the Union, confirmed by the rejection of past amendments proposals which would have allowed for the expulsion of a Member State;

– The Treaties’ purpose of creating an ever closer Union among the peoples of Europe and eliminating the barriers which divide Europe;

– The considerable impact of the potential withdrawal of a Member State on the rights of all Union citizens, including their right of free movement;

– The importance of the values of liberty and democracy, shared by all Member States.

Practical consequences

This judgment opens the door to a decision of the UK to abandon its request to withdraw from the European Union. 

Concretely, such decision should be adopted following ratification by the UK Parliament (the steps which could lead to such ratification are yet to be determined: new elections and/or second referendum?,...) before 29 March 2019 at midnight or before the expiration of an additional reflection period granted by the European Council, acting unanimously. This latter assumption, put forward by the Court, would allow the time required to hold a democratic debate in the UK, whatever form it takes, in favourable conditions.

Zie ook : Arendt ( Mr. Philippe-Emmanuel Partsch ,  Mr. Thomas Evans )

[+ http://www.arendt.com]