By Philippe Vlaemminck & Lidia Dutkiewicz

On 4 December 2018, Advocate General Campos Sánchez-Bordona issued his opinion in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union. The AG proposes that the CJEU declares that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU.

To find out what were the arguments presented at the hearing on 27 November, see  our blog article: https://www.pharumlegal.eu/blog/can-an-article-50-withdrawal-notice-be-revoked-the-cjeu-will-decide/

Firstly, the Advocate General rejects the UK government’s arguments that the dispute in question is merely academic, premature or superfluous. On the contrary, it has “obvious practical importance and is essential in order to resolve the dispute.”

Then, in the light of the Article 68 of the Vienna Convention on the Law of Treaties, the AG points out that withdrawal from an international treaty is by definition an unilateral act of a State and a manifestation of its sovereignty.

Such conclusion is reached based on the following points:

  1. The conclusion of the withdrawal agreement is not a prerequisite for the withdrawal to be completed;
  2. The first stage of the withdrawal procedure under Article 50 TEU is govern by its unilateral nature, in which the Member State decides to withdraw from the EU in accordance with its own constitutional requirements;
  3. The Article 50(2) TEU provides that a Member State which decides to withdraw from the EU should notify the European Council of ‘its intention’ — and not of its decision, meaning that such an intention may change;
  4. The rejection of an unilateral revocation would in practice mean the forced exit from the EU.

Early next week the ‘meaningful vote’ on the withdrawal agreement will take place in the UK’s House of Commons. The AG Opinion leaves the Brexit doors open. That is, however, for the CJEU to decide whether to follow the opinion or not.