Advocate General Manuel Campos Sanchez-Bordona has opened the way for the Court of Justice of the European Union (CJEU) – the bête noire of many Brexiteers - to decide that an EU Member State can withdraw unilaterally its TEU Article 50 notice to leave the EU. The revocation has to be decided upon in accordance with the Member State’s constitutional requirements and not be an abuse of the process.
A case (Case C‑621/18) brought by Andy Wightman MSP and other politicians who oppose Brexit was heard by the full court last week following a Reference from the Court of Sessions in Edinburgh. This shows the importance attached to the case by the CJEU, as does the speed with which the Opinion has come out. The Court is not bound to follow an Advocate General’s Opinion, but often does. The Opinion indicates that, in the absence of any express provisions, notification of withdrawal from an international treaty may be revoked at any time before it takes effect. The reasoning includes noting that conclusion of an agreement is not a prerequisite for the withdrawal to be completed and Article 50(2) refers to ‘intention’ and not decision of a Member State to withdraw. The Advocate General also thinks it illogical to force a Member State to withdraw from the EU before negotiating its return.
Any suggestion that the Reference should not have been made was dismissed by the Advocate General. His view is that there is a genuine dispute on which the court should rule and the questions engaged are not merely academic.
The Opinion is clearly going to be taken up by those who oppose Brexit as the UK Parliament starts debating the Withdrawal Agreement. Whether their position will be strengthened by a CJEU decision before the vote in Westminster on 11 December remains to be seen. The CJEU is fully aware of the timing of vote and may therefore decide to expedite its decision now that it has the Advocate General’s Opinion.
The press release is available here.
"When a Member State has notified the European Council of its intention to withdraw from the European Union, Article 50 of the Treaty on European Union allows the unilateral revocation of that notification, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice." The Advocate General's conclusion