11 December 2018

The European Court of Justice (ECJ) yesterday issued its decision that the UK is free unilaterally to revoke its intention to leave the EU. The ruling found against the European Commission and Council, who had argued that a notification to leave the EU could only be cancelled with the unanimous consent of the Council. Instead, the Court ruled that a state’s “sovereign right” to exit the bloc under Article 50 should also extend to a decision to revoke the withdrawal mechanism, at any point before the Article 50 process is over. It argued that any requirement for approval from the EU “would transform a unilateral sovereign right into a conditional right and would be incompatible with the principle that a member state cannot be forced to leave the European Union against its will.” The ECJ also stated that unilateral revocation was in keeping with founding EU principles, such as eliminating barriers which divide Europe and ‘ever closer union’.

The Court’s decision and reasoning broadly followed in line with last week’s recommendation from the Advocate General (AG), the senior adviser to the ECJ – although in certain areas it went further to minimise EU barriers to cancelling the withdrawal process.

Under what circumstances could the UK revoke its notification to leave?

Much like the AG’s opinion, the ECJ set forward certain conditions for the UK unilaterally to cancel its intention to leave the EU:

  • The formal decision to revoke Article 50 has to be submitted in writing to the European Council – just as the decision to trigger Article 50 in 2017 had been.
  • The UK can only unilaterally cancel its intention to leave before a Withdrawal Agreement enters into force, or before the end of the two year Article 50 process or any extension.
  • Unilateral revocation can only be decided “following a democratic process in accordance with the national constitutional requirements” – in the UK, this could mean passing a statute
  • A decision to revoke must be “unequivocal and unconditional”

While Article 50 does not explicitly set out the process for revoking notification, these conditions ensure the formal route to cancelling the withdrawal process is subject to the same rules as triggering it in the first place.

They also aim to prevent abuse of revocation by the departing member state – although arguably not as strongly as the AG’s opinion. By requiring the decision to revoke to be “unequivocal” and subject to a democratic process, the ECJ attempts to reduce the opportunity for a departing state to use revocation tactically to extend the negotiating period – i.e. by resubmitting its intention to leave immediately after revocation is complete. Equally, by stating that a decision to cancel the withdrawal process must be unconditional, departing member states are unable to use revocation as a bargaining chip to extract concessions from the EU. The European Commission and Council were particularly concerned that unilateral revocation would allow member states to misuse the process to gain advantage in negotiations.

How is this different to the AG’s recommendation?

The Court’s reasoning largely followed the AG’s opinion, published last week. This is unsurprising – in a majority of cases, the ECJ follows the AG’s recommendation. However, yesterday’s ruling differed in three ways:

  • The ECJ stated that the UK retains the option of unilateral revocation during any extension to the Article 50 process. The AG’s opinion had not been explicit on this issue. This would allow the UK to keep open the possibility of unilaterally cancelling its exit if it requests an extension of the current negotiating period – for instance in order to call a General Election or a second referendum.
  • The ECJ ruling confirmed that revocation would allow the UK to maintain its membership of the EU “under terms unchanged” – the AG’s opinion had been silent on this issue. This suggests that if the UK changed its mind before the end of the Article 50 process, it would retain its existing opt-outs and its rebate. However, the UK would not obtain David Cameron’s renegotiated deal – in this way, revocation would entail a different outcome to a decision to remain in the 2016 referendum.
  • Unlike the AG’s opinion, the ECJ decision did not explicitly attach “good faith” and “sincere cooperation” requirements to a revocation. These were intended to prevent misuse of unilateral cancellation. The condition that revocation must be “unequivocal and unconditional” does point to this – but without reference to defined legal principles. It may be harder to prove that a decision to revoke is “unequivocal” at the time it is submitted.

All three additions to the Advocate General’s opinion can be said to reduce EU procedural barriers to the UK changing its mind.

How might this affect Brexit?

This is unlikely to have a real impact on the Brexit process at this stage – there is no indication that government is considering reversing the Article 50 notification to leave.

However, it will affect domestic politics. It de facto places a third option on the table when MPs come to vote on May’s deal – a unilateral decision to remain a member of the EU.

This could split the vote of pro-remain MPs currently willing to back the Prime Minister’s deal. It would also likely do particular damage to support for a so-called “Norway-plus” exit – MPs may well prefer full membership over a soft-Brexit with no voice over future EU decisions affecting the UK. Among pro-Brexit MPs, the option of revocation could raise concerns that Brexit may not happen at all, and push them in the end to support the government’s agreement.

In theory, it could also reduce the possibility of a No Deal Brexit – although it cannot remove this risk altogether. In the continued absence of a parliamentary majority for any deal, it would now be open for the government either formally to recommend No Deal, or to begin legislating to revoke Article 50.

However, if revocation is to be used appropriately, the UK cannot then resubmit its notice to leave immediately after. In this sense, it would force MPs to make a choice – is the UK ‘in’ or ‘out’, on whatever terms that might mean.