Brexit: Advocate General proposes that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU

Important news about Brexit. Advocate General Campos Sánchez-Bordona proposes that the Court of Justiceshould declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU.

Anyway, the Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

General conclusions

In today’s Opinion (4 December), Advocate General Manuel Campos Sánchez-Bordona considers that none of the conditions which, according to the Court’s case-law, govern whether a reference for a preliminary ruling should be declared inadmissible, are satisfied. According to the Advocate General, the dispute is genuine, the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute.

He adds that the power to interpret Article 50 TEU definitively and uniformly is that of the Court of Justice which must carry out considerable interpretative work in order to determine whether or not that article allows the notification of the intention to withdraw to be revoked unilaterally.

In answer to the question from the Scottish court, the Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU 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, 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 interprets Article 50 TEU, having recourse, with regard to what is not expressly provided for in that article, to the relevant provisions of the Vienna Convention on the Law of Treaties on which Article 50 TEU is based. Pursuant to Article 68 of that convention, notifications of withdrawal from an international treaty may be revoked at any time before they take effect.

The Advocate General rejects the contention that Article 50 TEU only allows the possibility, put forward by the Commission and the Council, of a revocation following a unanimous decision of the European Council. In his opinion, a revocation by mutual consent of the departing Member State which changes its position and the EU institutions with which it is negotiating its withdrawal is possible. However, this would not prejudice unilateral revocation, which the departing Member State always maintains under Article 50 TEU.

On the other hand, the Advocate General considers that to make the possibility of revocation conditional upon the adoption of a unanimous decision of the European Council would be incompatible with Article 50 TEU.

To accept that the European Council, acting by unanimity, should have the last word on the revocation increases the risk of the Member State leaving the EU against its will, since the right to withdraw from (and, conversely, to remain in) the EU would no longer be subject to the control of the Member State, its sovereignty and its constitutional requirements. In those circumstances, it would suffice for one of the remaining 27 Member States to oppose the revocation in order for the will of the Member State that has expressed its desire to remain in the EU to be frustrated.

Click here to access the full conclusions.