Brexit II? The legal issues of revoking the notification to leave the EU but then notifying to leave again


EU Law Analysis: Brexit II? The legal issues of revoking the notification to leave the EU but then notifying to leave again

Brexit II? The legal issues of revoking the notification to leave the EU but then notifying to leave again

Ronan McCrea, Professor of Constitutional and European Law, University College
London
The CJEU ruling
in the Wightman case (discussed here)
has provided important additional information in relation to the Brexit
process. The Court accepted arguments first made
by Piet Eeckhout and Eleni Frantziou that notification of an intention to
withdraw from the EU could be withdrawn unilaterally by the UK without the need
for permission of the remaining EU 27.
This is important
and may strengthen the hand of those arguing that the UK government should hold
a second referendum with remaining the EU as an option on the ballot paper. However,
the ruling of the Court of Justice is disappointing. It fails to provide
meaningful guidance in relation to key questions in relation to revocation of
Article 50.
The test set out
by the Court for unilateral revocation is as follows:
         
revocation must take place
before the Withdrawal Agreement comes into force (or if there is no such
agreement, within the two-year period from notification set down in Article
50),
         
the revocation must take the
form of notification in writing to the European Council following a to revoke
that was taken in accordance with the constitutional requirements of the Member
State in question,
         
revocation must be ‘unequivocal
and unconditional’ which means ‘the purpose of that revocation is to confirm the
EU membership of the Member State concerned’.
Notably absent
from this test is the condition suggested by the Advocate General that the
revocation must be sincere and done in good faith which as Oliver Garner noted
could be very difficult to apply in practice.
This is useful
information from the Court. We now know that, if the UK authorities change
their mind on Brexit, proceed to reverse the decision to leave in accordance
with the requirements of the British constitutional order and give written
notification of this decision to the European Council before March (or later,
in the event that Brexit Day is extended by joint agreement of the UK and the
EU27), the UK can remain in the EU on its existing terms.
This is
important as there had been suggestions that if the UK wanted to remain in the
EU in this way, it may have needed the consent of other Member States who may
have taken advantage of the UK’s weak bargaining position to remove benefits,
such as the rebate on payments to the Union, that the UK currently enjoys.
It is not entirely
certain whether a valid revocation would require a referendum under EU law. The
Court’s ruling refers three times to the decision to revoke taking place
through ‘a democratic process’ but in the operative part of the ruling the
reference to democratic processes is dropped and only ‘constitutional
requirements’ are referred to.
Some may argue
that it would be undemocratic to reverse the Brexit decision without a
referendum. However, representative democracy is a valid form of democratic
decision-making. In addition, under the British constitutional system,
Parliament remains the supreme legislative authority so if Parliament decided
to reverse Brexit, such a decision would be in accordance with the
constitutional requirements of the UK and is unlikely to be second-guessed by
the CJEU (however unlikely it is in political terms, that this situation would
arise).
Either way,
thanks to the CJEU ruling we now know that if all of these hurdles are overcome
and the UK manages to take a definitive decision to reverse Brexit before the
end of March 2019, it cannot be stopped from remaining in the EU on its
existing membership terms.
While that is
somewhat useful information, it is not particularly useful because it is
unlikely in the extreme that the UK will manage to take a definitive decision
to reverse Brexit in the next couple of months.
For one thing,
the UCL Constitution Unit has
shown
that a new referendum will need at least 22 weeks to organize. This
means that even if the UK Government decides it wants to hold a referendum to
reverse Brexit it is likely to need to obtain the agreement of the other 27
Member States to extend the two-year period under Article 50 to give it time to
organize this vote. Whether the Member States would agree to such an extension
unless the UK government promised to campaign for remain is very uncertain.
Perhaps more
seriously, the Court’s judgment leaves us largely in the dark as to what would
happen in the not unlikely scenario that the UK seeks to revoke without having
definitively decided to remain in the EU. Indeed, it was this issue of the
potential for a right of unilateral revocation to be abused that was the core
of the arguments made by the Commission and Council in Wightman. And on this issue, the Court has provided little useful
guidance.
Consider the
following scenarios (none less likely than the UK definitively deciding to
reverse Brexit before March 2019):
1)     
The UK government seeks to
revoke Article 50 in early March 2019 but makes it clear that this revocation
will need subsequently to be ratified by a referendum of the British people.
2)     
The UK government revokes
Article 50 and declares that the UK will be staying in the Union. However,
three months later, it declares that due to changed political circumstances, it
is triggering Article 50 once more.
3)     
The UK revokes Article 50
saying that it is bringing the current exit procedure to a close but makes it
clear that it will retrigger in the near future to begin a new process (in
which the UK is better prepared and has a clearer idea of what it wants).
In all three
scenarios, we are faced with a situation where the revocation is legally
unequivocal but is (or is later revealed to be) politically equivocal. This
would seem to be an abuse of the right of revocation and raises the prospect of
the UK being allowed to circumvent the strict two-year time limit set out in
Article 50. As it goes against the requirement set down by the Court in Wightman that revocation be unequivocal
it should, in theory, be capable of being challenged. But working out how such
a challenge would work is very difficult.
As the act of
revocation is unilateral, so there is no act of acceptance on the part of the
Council that could be challenged. Perhaps a Member State or EU institution
could apply to the General Court to annul the revocation by the UK or (given
that the giving of a notice of revocation is a sovereign act) to get a
declaration that the act of revocation did not produce consequences within the
EU legal order on grounds that it failed to satisfy the Wightman criteria. If the courts did not intervene then an
equivocal revocation would stand, something that seems to go against in the Wightman judgment. It would also seem to
defeat the temporal limits on the withdrawal process enshrined in Article 50.
If the EU courts
did intervene and annul the revocation then they would face a nightmare in
seeking to give effect to that ruling. In scenario 2, the Court would be faced
with retrospectively annulling a revocation meaning that the in theory, the UK would
actually have left the Union back in March 2019 without realizing it.
Even in relation
to scenarios 1 and 3, it is highly likely that any ruling from the EU courts
would be given either after or very close to the end of the two-year time limit
in Article 50. This means that the ruling could have the equally chaotic effect
of pushing the UK out of the Union in a chaotic no-deal fashion either
immediately or almost immediately. All of these outcomes would bring absolute
chaos not to mention giving Brexiters the chance to blame their bete noire, the
Court of Justice, for the chaos of a no deal exit.
The EU courts
could, as they
have done before
, seek to limit the chaotic consequences of their ruling by
refusing to give immediate effect to the annulment of the revocation. That
would also involve the courts in a political nightmare by requiring them to
decide how long the UK would have before being chaotically ejected from the
Union.
By giving a
unilateral right to withdraw notification without any possibility for the
Council to exercise its political judgement over its sincerity or equivocal
nature, the Court of Justice has left itself as the only institution with a
role in limiting potential abuse of this right. This leads it into adjudicating
on inherently political matters such as the likely future actions of the UK
authorities or deciding how much additional time the UK should be given to
avoid a chaotic exit.
Furthermore, we
simply don’t know how the Court would carry out the role it has granted itself.
By requiring that revocation be unequivocal and bring the process of leaving to
an end, the Court has implied that it would exercise some power of review over
acts of revocation but has refused to provide any guidance about how this power
would be exercised. Given how much focus the Council and Commission placed on
the issue of abuse of the right to revoke, the failure to give guidance on this
issue is very disappointing.
The UK
government had asked the Court to refuse to give a ruling on the grounds that
the question referred by the Scottish court was theoretical as the UK
government has given no indication that it wants to withdraw its notification.
Once the Court decided to give a ruling it really should have attempted to give
guidance that was as useful as possible.
Unfortunately,
it ended up giving a ruling that only really applies to the extraordinarily
unlikely scenario of the UK definitively renouncing Brexit before March 2019
(or a later date in the event of an extension) and that gives very little
useful guidance in relation to the key issue that preoccupied the Commission
and Council, the potential for misuse of revocation in order to circumvent the
temporal limitations imposed by Article 50.
All of this
means that in most likely scenarios, political actors find themselves acting
without much idea of what the applicable law is. This increases the likelihood
that we will find ourselves before the Court of Justice again with CJEU judges
struggling to rule on inherently political matters such as the likely future
action of the UK government. Worse, next time the Court rules the clock will
have moved ever closer to midnight in Brexit terms producing an even more
fraught atmosphere and even more likelihood that the Brexiters’ favourite
judicial bogeyman will become a scapegoat for the chaos of a no deal Brexit.
In these
circumstances the Court may well regret that it did not take the chance to rule
that inherently political matters such as the assessment of the sincerity of
the revocation of Article 50 were not left to political bodies such as the
European Council.
Barnard & Peers: chapter 27



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