you can U-turn if you want to. The CJEU judgment in Wightman


Professor Steve Peers,
University of Essex
Today’s Full Court judgment
in the Wightman case confirms that
the UK can unilaterally withdraw its notification that it intends to leave the
EU, on the most generous possible terms. It broadly follows last week’s non-binding opinion from
an Advocate-General, discussed here.
(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 in Shindler, and on the UK’s current status
as a Member State in RO: see
discussion here
and here).
First of all, the Court rejects
the UK government’s argument that the case is hypothetical, noting that some of
the litigants are MPs who will be voting imminently on the proposed withdrawal
agreement (unless that vote is delayed). It displays its usual deference to national
courts’ decision to ask the CJEU questions about EU law, which leads to a
presumption of relevance.
On the merits, the Court takes
its usual view that EU law should be interpreted taking account of its wording
and objectives, but in light of its context and the provisions of EU law as a
whole. On the wording, the Court notes that Article
50 TEU
(the Treaty provision on the withdrawal process) is silent either
way about the revocation of a notification of the intention to withdraw from
the EU.  But the Court points out that
Article 50 refers to notifying an ‘intention’ to withdraw: ‘An intention is, by
its nature, neither definitive nor irrevocable’.
Observing that the decision to
withdraw its unilateral, in accordance with a Member State’s ‘own
constitutional requirements’, the Court rules that
the Member State
is not required to take its decision [to withdraw] in concert with the other
Member States or with the EU institutions. The decision to withdraw is for that
Member State alone to take, in accordance with its constitutional requirements,
and therefore depends solely on its sovereign choice.
As for the
objectives of Article 50, the Court characterised it as having two objectives: ‘
first,
enshrining the sovereign right of a Member State to withdraw from the European
Union and, secondly, establishing a procedure to enable such a withdrawal to
take place in an orderly fashion’. It then located the issue of revocation as
part of the first of these objectives: linking revocation with the sovereign
decision to withdraw, and clarifying the timing of the right of revocation:
…the sovereign
nature of the right of withdrawal enshrined in Article 50(1) TEU supports
the conclusion that the Member State concerned has a right to revoke the
notification of its intention to withdraw from the European Union, for as long
as a withdrawal agreement concluded between the European Union and that Member
State has not entered into force or, if no such agreement has been concluded,
for as long as the two-year period laid down in Article 50(3) TEU,
possibly extended in accordance with that provision, has not expired.
What
rules apply to unilateral revocation? Since Article 50 is silent, the Court
says that the same rules apply to withdrawal as applied to the original
notification: ‘
it may be decided upon unilaterally, in accordance with
the constitutional requirements of the Member State concerned.’ The Court also
confirms that a revocation would mean that the UK retains its current status as
an EU Member State, as the revocation would reflect ‘a sovereign decision by
that State to retain its status as a Member State of the European Union, a
status which is not suspended or altered by that notification’ (following the
CJEU’s previous ruling in RO), ‘subject
only to the provisions of Article 50(4) TEU’ (which says that a departing
Member State does not participate in EU decision-making concerning the
withdrawal agreement). Revocation ‘is fundamentally different’ from a request
for extension of the Article 50 time period, which entails unanimous consent of
the EU27, rejecting the analogy with the second
objective of Article 50 which the EU Commission and Council wanted the Court to
make.
As for the context of
Article 50, the Court stressed the Treaty objectives of an ‘ever closer
union among the peoples of Europe’, EU citizenship, and the values of liberty
and democracy, noting that ‘the European Union is composed of States which have
freely and voluntarily committed themselves to those values’, and that ‘any
withdrawal of a Member State from the European Union is liable to have a
considerable impact on the rights of all Union citizens, including, inter alia,
their right to free movement, as regards both nationals of the Member State
concerned and nationals of other Member States’. Therefore, ‘given that a State
cannot be forced to accede to the European Union against its will, neither can
it be forced to withdraw from the European Union against its will’, which would
be the case if a ‘Member State could be forced to leave the European Union
despite its wish — as expressed through its democratic process in
accordance with its constitutional requirements — to reverse its decision
to withdraw and, accordingly, to remain a Member of the European Union’.
The Court also looks at the process
of drafting the earlier version of Article 50, during which various
proposed amendments were rejected, ‘on the ground, expressly set out in the
comments on the draft, that the voluntary and unilateral nature of the
withdrawal decision should be ensured’. Moreover, the Court’s findings were ‘corroborated’
by the Vienna
Convention on the Law of Treaties
, ‘which was taken into account’ when
drafting the earlier version of Article 50. That Convention states ‘in clear
and unconditional terms, that a notification of withdrawal’ from a treaty ‘may
be revoked at any time before it takes effect’.
Next, the Court rejects the
argument of the Council and the Commission that revocation would need unanimous
consent, as this ‘would transform a unilateral sovereign right into a
conditional right subject to an approval procedure’, which ‘would be incompatible
with the principle…that a Member State cannot be forced to leave the European
Union against its will’.
…must, first,
be submitted in writing to the European Council and, secondly, be unequivocal
and unconditional, that is to say that the purpose of that revocation is to
confirm the EU membership of the Member State concerned under terms that are
unchanged as regards its status as a Member State, and that revocation brings
the withdrawal procedure to an end.

The Court’s judgment may ultimately
have no impact on the political likelihood of whether the UK reverses Brexit –
which I continue to think is very unlikely. It does lower the potential
barriers to a U-turn by the UK, but this may only strengthen the resolve of
Brexit supporters, rather than change their mind.  
Let’s look at the judgment from a
legal perspective. Even more so than the Advocate-General’s opinion, this
ruling strongly supports unilateral revocation of a notification on the easiest
possible terms. The admissibility of the case is unsurprising in light of the
prior case law deferring to national courts. As the Court says, Article 50 is
silent on the issue and that does not point necessarily to a resolution to the
issue, but the Court was right to point out that there’s an explicit reference
to an intention to withdraw in the
wording of Article 50.
It seems that the key to the
logic of the judgment is the Court’s characterisation of Article 50 of having
two objectives, and then categorising revocation of notification as an aspect
of the first objective – the process of deciding to withdraw – instead of an
aspect of the second objective – the orderly withdrawal process. It followed
from this that the Court drew an analogy with the unilateral nature of the
decision to withdraw, rather than the bilateral nature of the withdrawal
agreement negotiation process, and in particular the unanimous requirement to
extend that process.
As for the link to international
law, it contradicts the usual autonomy of EU law from international law that
the Court refers to itself at the outset of the judgment, but the Court justifies
that because the drafters of what became Article 50 took the Vienna Convention
into account. It is, in any event, only a secondary part of the Court’s
reasoning.

Finally, on the conditions for
revocation, the submission in writing is straightforward enough: the EU
institutions could surely work out whether a revocation was genuine or not, in
light of the publicity that would obviously accompany it. The requirement of an
‘unequivocal and unconditional’ revocation, ending the withdrawal process on
unchanged terms, suggests that the notification of revocation must confirm that
the UK is not intending to renegotiate its membership or to send another
notification shortly afterward. Implicitly if the UK revocation arguably did
either of those things then the legal question would arise of what the European
Council could do about it. It could either refuse to accept the notification,
with the result that the UK might then challenge that decision; or it could
simply decide to cross that bridge when it came to it, either refusing to
renegotiate membership or (more problematically) to accept a fresh notification
of withdrawal if that followed shortly after a revocation of the first notice
(again, that decision could then be challenged).  

But the Court, unlike the
Advocate-General, makes no mention of the domestic process leading up to
revocation, noting only that it must be in accordance with the UK’s own
constitutional requirements. In Shindler,
the General Court said that these requirements were not for the EU institutions
to judge, but the UK’s national courts and political institutions, with the
proviso that a national Court might ask the CJEU if a particular requirement
was compatible with EU law.
Overall, then, legally the road
is clear for a U-turn if the UK wants to – but that is irrelevant as long as the
lady is not for turning. Whether she changes her mind – or someone else takes
the wheel and does so instead – remains to be seen.
Barnard & Peers: chapter 27
Photo credit: Millenium Post



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