Revoking the notice to withdraw from the EU? The opinion in Wightman


Professor Steve Peers,
University of Essex
Was sending the Article 50 notification
of withdrawal from the EU like jumping off a cliff – impossible to change your
mind after jumping? Or was it rather like setting off to the shops, where you
can change your mind about shopping while on the way there, in the car park, or
even in the shop itself – perhaps because you discover that the promised
discounts don’t exist, the management is under police investigation, and the
massive Turkish foods section consists of a couple of dusty hazelnut packets?
We should soon find out from the
Court of Justice. In the meantime we have today’s non-binding opinion
from an Advocate-General. Although the Court might not follow the opinion, the
judges will consider it carefully, and it’s worth discussing the issues which
it raises. (See also the discussion here
of the national court background to the proceedings, and the discussion here
of the arguments for and against unilateral revocability. The EU courts have
also ruled on a challenge to the withdrawal agreement negotiations, and on the
UK’s current status as a Member State: see discussion here
and here).
First of all, the opinion
dismisses the UK government’s argument that the case is hypothetical, because the
government has not decided to withdraw the Article 50 notice and has no
intention of doing so. In particular, the outcome of the ruling might be
relevant when MPs cast their vote on whether to approve the withdrawal
agreement with the EU, or on deciding what to do if the agreement is not
approved.
The opinion then agrees with the
petitioners – mainly UK politicians in the Westminster Parliament, the Scottish
Parliament and the European Parliament – that the notification is in principle unilaterally
revocable. First of all, it notes that Article 50 is silent on the issue of
revocation, and so notes that three outcomes are possible: no revocation,
unconditional revocation, and revocation with conditions. It approaches the
issue by looking first of all at general public international law, and then at
the specific wording of Article 50, followed by the issue of agreed revocation.
As for international law, the
opinion is uncertain as to whether revocation of notification of withdrawal
from a treaty is firmly established as a matter of customary international law
(although there are several examples). The right to revoke withdrawals from a
treaty unilaterally is, however, expressly set out in the Vienna
Convention on the law of treaties
(VCLT). The Opinion discusses whether the
VCLT applies to withdrawal from the EU, and reaches the conclusion that it does
not, given that the EU itself and some of its Member States are not parties to
that Convention. Nevertheless, it argues that the VCLT may be useful when
interpreting Article 50.
As for the interpretation of
Article 50 as such, a literal interpretation does not resolve the question,
since Article 50 is silent on the question of unilateral revocation of a
withdrawal notice.  So it’s necessary to
examine the context of the Article. In the Advocate-General’s view, it starts
with a national phase ‘exclusively’ for the withdrawing State, when it decides
on its intention to withdraw, ‘only conditional’ on following ‘that State’s own
constitutional requirements’. The logical corollary is a unilateral power to revoke
that decision, as ‘a manifestation of that State’s sovereignty’. So unilateral
powers continue into ‘the negotiation phase, which begins with the notification
of the intention to withdraw to the European Council and culminates two years
later, unless there is an extension by unanimous decision of the Council.’
(Note that the withdrawal agreement itself can also set a later date, although
the draft withdrawal agreement concluded between the UK and EU does not). More
generally, like ‘other areas of law, in the absence of an express prohibition
or a rule which provides otherwise, whoever has unilaterally issued a
declaration of intent addressed to another party, may retract that declaration
until the moment at which, by the addressee’s acceptance, conveyed in the form
of an act or the conclusion of a contract, it produces effects’.
Next, the opinion
observes that
Article 50(2) TEU refers to a notification of an ‘intention’ to withdraw, ‘not to
withdrawal itself’, which happens later. An ‘intention’ is ‘not definitive and
may change’; the notification of that intention to a third party ‘may create an
expectation in that party, but does not assume an obligation to maintain that
intention irrevocably’.
Interestingly, the opinion also
refers to the possibility of a withdrawal decision being ‘annulled, if the body
having authority (ordinarily the highest courts of each State) holds that that
decision was not adopted in accordance with the constitutional requirements.’
In this scenario, ‘there is little doubt that the State which notified its
intention must also make known that it unilaterally revokes that notification,
as its initial decision lacked the essential precondition.’
Similarly, following action ‘carried
out in accordance with its constitutional requirements (for example, a
referendum, a meaningful vote in Parliament, the holding of general elections
which produce an opposing majority, among other cases)’, an initial decision might
be ‘reversed and the judicial and constitutional basis on which it was
sustained subsequently disappears’. Again, in that scenario, ‘that State can
and must notify that change to the European Council’. These scenarios have
international precedents in practice, as well as corresponding to Article 68
of the VCLT.
Furthermore,
the opinion argues that insisting on a Member State leaving under such
circumstances would be ‘
a result contrary to common sense’, and
accepting revocation would ‘respect’ a national parliament’s role as part of a
Member State’s national identity. Refusal to accept revocation would entail a de facto forced exit from the EU.
The opinion bolsters its argument
by adding that the unilateral revocability would enhance the ‘every closer
union’ clause in the Treaties, ‘national identities’ of the Member States, and
the rights of EU citizens would be enhanced by permitting unilateral revocability.
It also argues that the historical background to drafting Article 50 supports
the same result.
However, the opinion argues that
some conditions exist. There must be a formal notification of revocation,
matching the notification to withdraw. Equally, national constitutional requirements
must be respected.
Although he accepts that ‘this is an
issue which falls to be determined by each Member State’, he argues that in the
UK, the requirement for parliamentary authorisation to leave would logically be
matched by parliamentary approval to revoke the notification. (He makes no
specific mention of whether an Act of Parliament would be required). There
would be no need to justify the decision to revoke.
There would also
be a
temporal limit: revocation ‘is possible only within the two-year
negotiation period that begins when the intention to withdraw is notified to
the European Council’, and ‘once the withdrawal agreement has been formally
concluded, which implies the agreement of both parties’, revocation would no
longer be possible either. The discussion here is inconsistent with the opinion’s
previous reference to the possibility of extension of the Article 50 time
limit.
Next, the ‘principles
of good faith and sincere cooperation’ in Article 4(3) TEU set a limit. On
this point, the EU institutions were concerned that a Member State ‘could
revoke its notification and halt the negotiations if they were not favourable to
it’, and ‘resubmit its notification of intention to withdraw, thus triggering a
new two-year negotiation period’, circumventing the time limits on the process.
But the Advocate-General rejected these arguments: the
possibility that a right may be abused or misused is, generally speaking, not a
reason to deny the existence of that right’. A means to prevent abuse of the
right must be found instead. The established ‘abuse of rights’ principle in EU
law could be ‘applied in the context of Article 50 TEU, if a Member State
engaged in an abusive practice of using successive notifications and
revocations in order to improve the terms of its withdrawal from the European
Union.’
There was no
indication that any abuse was planned, and ‘
any abuse could occur only when
a second notification of the intention to withdraw is submitted, but
not by unilaterally revoking the first.’ In the Advocate-General’s view, a
large number of ‘tactical revocations’ was unlikely, in that the national ‘constitutional
requirements’ rule would function as a ‘filter’, given the requirement of (for
instance) elections, court decisions or referendums.
Finally, the opinion accepts that
revocation can be agreed, in the event of a request from the departing Member
State and unanimous agreement in the European Council.
First of all, the opinion convincingly
argues that the case is not hypothetical. It rightly recalls the case law
according to which national court references are presumed to be relevant; that
presumption can only be rebutted in limited cases. There is a strong argument
to answer these questions given the status of those petitioners who are MPs;
and otherwise there could be a catch-22 scenario where MPs hesitate to vote on
whether a referendum could be held because they do not know if unilateral revocation
would be possible.
The main argument for unilateral
revocability is equally convincing – in particular as regards the importance of
the word ‘intention’, and the emphasis on the sovereign decision-making power
of Member States. As regards safeguards against abuse, though, it is at least conceivable
that national constitutional requirements will not always work as a filter, and
so it would be preferable to spell out what limits – perhaps in the form of a
refusal to consider a notification valid within a year or two of the previous
notification, or the resumption of an Article 50 process where the last process
left off – would be applicable.
It is unfortunate that the
opinion is vague about the time limit issue though. Would notification only be possible
within the two year time limit, or also during the the time limit as extended?
The opinion is contradictory; the Court judgment (if it goes down these lines)
should not be. The possibility of a delayed time limit in the withdrawal
agreement should also be mentioned. The best interpretation, keeping with the
logic of the opinion, is that revocation would also be possible within the
extended time period.
Revocation with consent does not
easily fit within the literal wording of Article 50, because there is no
process for consenting. Moreover, it’s unlikely that any Member State would
seek this route if it could revoke unilaterally instead. It might be used in a
scenario where the Member State’s current membership was being renegotiated,
though only Tony Blair thinks that might happen as regards the UK.
Overall, if followed by the Court, this opinion would be an unqualified
victory for those arguing for unilateral revocation. Whether it changes the
political dynamics remains to be seen, and I remain of the view that another referendum
(which would still have to be won by the Remain side) is very unlikely. In any
event, unilateral revocability could still prove relevant as regards other Member States that might someday
wish to leave the EU.
Barnard & Peers: chapter 27
Photo credit: The Irish Times



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