By Jenna Auwerx & Lidia Dutkiewicz
On 27 November 2018, the hearing on reversibility of Article 50 TEU took place in the CJEU (Case C-621/18, Wightman and Others). On 3 October 2018, Scotland’s highest court referred the question to the CJEU on whether EU law permits to unilaterally revoke an Article 50 withdrawal notice and, if so, subject to what conditions and with what effect. Advocate General Campos Sánchez-Bordona will deliver his opinion on 4 December 2018.
To begin with, given that the implementation of Article 50 TEU is “of fundamental importance for the United Kingdom and for the constitutional order of the European Union”, the President of the Court ordered the case to be determined pursuant to the expedited procedure.
The Scottish referral to the CJEU comes at a crucial point in the Brexit negotiations. On 25 November 2018, at a special meeting of the European Council, EU27 leaders endorsed the draft Brexit withdrawal agreement and approved the political declaration on future EU-UK relations. Now, the withdrawal agreement has to pass the House of Commons, the lower house of UK’s Parliament, in a critical vote that is likely to happen in December.
It is worth reminding that Article 50 TEU was triggered by prime minister Teresa May on 29 March 2017, and the UK is due to leave the EU on 29 March 2019. Following the government’s notification under Article 50 TEU, a petition was lodged before the Court of Session by members of the Scottish, UK and European Parliaments. The Inner House of the Court of Session requested for a preliminary ruling on the interpretation of Article 50 TEU.
The Court in essence asked whether, in accordance with Article 50 TEU, EU law permits Member States to unilaterally revoke their notification before the end of the withdrawal period of two years referred to in that article.
Article 50 TEU itself is silent on this point. As reported by media, the full CJEU heard the arguments ranging from procedural questions of admissibility through fundamental issues of safeguarding citizen rights to the EU legal order.
On the one hand, the UK government’s position is that the question of revocability of Article 50 TEU is, due to its “hypothetical nature”, inadmissible. As follows from the government’s written observations to the CJEU, the UK does not intend to revoke the notice it has given and the reaction of the EU27 and EU institutions to any such imagined revocation is unknown. Thus, as the CJEU has over many years consistently refused to answer questions that are truly hypothetical, it should refuse to produce any “advisory opinion” on that matter.
On the other hand, the claimants argue that nothing in the EU Treaties allows for a Member State to be expelled from the EU against its will. And that precisely would be the effect of the conclusion that a Member State’s intention to withdraw is, once made, irrevocable. Moreover, such conclusion would be contrary to the principles of sincere cooperation and of full mutual respect between the Union and the Member States and would jeopardize the objective of “ever closer union” provided in Article 4(3) TEU.
Meanwhile, the European Council maintains that, given the interests of the institutions and legal certainty, cancelling Article 50 TEU cannot be unilateral. This view is backed by the European Commission which argue that should the Member State notify the European Council of its decision to reverse its initial decision by revoking the notification under Article 50 TEU, then it is for the European Council, acting by unanimity without participation of the withdrawing Member State, to accept such revocation.
It is currently not clear what position the CJEU will take. The judgment is expected before Christmas and it remains to be seen whether – and to who – the CJEU will give the Christmas present. One thing remains certain: the ruling by the CJEU will have the outstanding political, legal and practical implications.