It’s official: The UK may unilaterally withdraw the Article 50 Withdrawal Notice
Ruling
On 10 December, the Court of Justice of the European Union (CJEU) ruled, in a 76-paragraph judgment, that a member state may unilaterally withdraw the notice of its intention to leave the EU. This is only so long as the withdrawal agreement has not entered into force or any extension of the article 50 negotiation process has not expired.
The CJEU only delivers a single judgment so there are now no “ifs”, “buts” or dissenting opinions on this issue. There is no appeal possible. This is categorical.
Does it bind the UK?
Yes, in that the Scottish court which requested the ruling must now apply the ruling in deciding the case before it. Does the UK Government have to withdraw its notice? Not at all. However, it is an option open to the UK which is now free from any doubt about its legality under EU law.
Was the CJEU being very political?
The ruling appears legally robust and shows no sign of being influenced by politics. The legal analysis seems clear and cogent at this stage.
The speed of the ruling is unusual. This preliminary ruling took 69 days from “question to answer” while the average was 16.3 months for all judgments delivered by the CJEU in 2017. But the CJEU would say that it was just being practical in responding now in a timely manner. It would be pointless to stick to the usual timeline because the UK would have already left by then. It would be like a delivery of Christmas trees in April.
Sovereignty is Supreme
The ruling emphasises that member states are sovereign and may make their own decisions but must do so in accordance with their own national constitutional requirements. Paragraph 65 puts it well: “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.”
What are the practical consequences?
It is unlikely that the UK would withdraw the notice before 29 March 2019 because, presumably, a vote in parliament and among the people would be needed. However, the ruling gives the UK another option which it might exercise if the Article 50 timeline was extended beyond 29 March 2019.
Precisely, what did the CJEU rule?
The exact quote is a model of legal clarity in a clearly politically muddled situation:
“Article 50 TEU must be interpreted as meaning that, where a Member State has notified the European Council, in accordance with that article, of its intention to withdraw from the European Union, that article allows that Member State — for as long as a withdrawal agreement concluded between that Member State and the European Union 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 paragraph, has not expired — to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements. 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 range of paths open to the UK is now greater even though the journey to be taken is not yet clear.
For further information, contact Dr Vincent Power, Partner, or any member of the EU, Competition & Procurement team at A&L Goodbody.
Date published: 10 December 2018