In September, the Inner House of the Court of Session, Scotland’s highest court of appeal for civil cases, issued a judgment in an appeal in a petition for judicial review. In the petition, the petitioners sought a declarator as to whether or not the UK could unilaterally revoke its Article 50 notice to the European Council. The European Court of Justice (‘ECJ’) has now provided the answer to that question. In a landmark, and contentious, decision, the ECJ has held that the UK Government can unilaterally revoke its Article 50 notification.
In its petition, the petitioners sought a reference to the European Court of Justice (ECJ) seeking an answer to the question regarding unilateral revocation of the Article 50 notification. Such a reference was sought as the petitioners posited that the ECJ was the only body which could competently provide the answer. The petition was refused at first instance by the Lord Ordinary, largely on the basis that the question asked was academic and hypothetical. In its decision on appeal, the Inner House rejected the Lord Ordinary’s reasoning and made a reference to the ECJ as sought by the petitioners.
On 3 October, the Inner House issued an interlocutor setting out the questions which were being referred to the ECJ. The questions set out were: "Where, in accordance with Article 50 of the Treaty on European Union, a member state has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying member state; and, if so, subject to what conditions and with what effect relative to the member state remaining within the European Union?"
On 8 November 2018, the Court of Session refused the UK Government permission to appeal its interlocutor of 3 October. Subsequently, the UK Government applied directly to the UK Supreme Court for permission to appeal. On 20 November, the UK Supreme Court refused the UK Government permission to appeal.
The basis upon which the Supreme Court refused permission was that, in terms of section 40 of the Court of Session Act 1988, the only basis on which an appeal against the interlocutors in question might be taken would be if they constituted "a decision constituting final judgment in any proceedings".
The Supreme Court determined that the Inner House’s interlocutor of 3 October was not a final judgment, but merely a preliminary ruling. It is ultimately be up to the Court of Session to make a determination based on the opinion of the ECJ.
Opinion of the Advocate General
As a result of the decision by the UK Supreme Court, the reference proceeded to be considered by the ECJ.
At a hearing on the reference on 27 November, the UK Government contended that the reference itself was inadmissible as it was academic and hypothetical. Further, the UK Government once again reiterated that it had no intention of revoking the notification.
The European Council and Commission argued that the revocation of a notice in terms of Article 50 could only be withdrawn with the unanimous consent of the European Council. They submitted to the court that if a member state could withdraw a notice unilaterally, it could lead to abuse of the system in an effort by a member state to attempt to secure better terms, and if that failed, they could simply withdraw the notification. The Commission and Council felt that this would be an entirely unsatisfactory situation.
On 4 December 2018, the Advocate General, Manuel Campos Sanchez-Bordona, issued an opinion in which he set out his view that the UK could unilaterally revoke its Article 50 notification.
In his opinion, the Advocate General held that the reference was admissible. He stated that there was a genuine dispute as to the interpretation of the article and that the question was not simply an academic and hypothetical one. The Advocate General considered that there were significant practical implications for the UK Government and Parliament which would arise from the answer to the questions referred.
The Advocate General went on to set out his view that the ECJ should find that a notification in terms of article 50 can be revoked unilaterally by the member state which provided the notification. The caveat which he set out was that the revocation must be decided upon based on the constitutional requirements of the member state.
A main point of reference for the Advocate General’s opinion was the Vienna Convention on the Law of Treaties, upon which Article 50 is based.
Article 68 of the Vienna Convention provides that a notification of withdrawal from a treaty can be revoked up until the point at which it takes effect. In essence, the Advocate General sets out that the law on treaties provides that the withdrawal from a treaty is a unilateral act and is a representation of a state’s sovereignty.
The Advocate General also noted that Article 50(2) provides that a member state is required to notify the European Council of its intent to withdraw, not of its decision. This is a significant point. It is a notification of an intention, not of a decision to withdraw. The Advocate General determined that as the process of notification was a unilateral one, so is the process of revocation of that notification. This is in line with the sovereignty of the member state.
Lastly, the Advocate General noted that giving the European Council the final say as to whether or not a member state could change its mind about leaving the European Union would increase the possibility of the member state leaving the EU against its will. Fundamentally, the Advocate General considered that this possibility would lead to the right to withdraw no longer being in control of the member state, its sovereignty and its constitutional requirements as set out in article 50.
Opinion of the European Court of Justice
On 11 December, the ECJ issued its decision in which largely it concurred with the opinion of the Advocate General, though going further on some points.
In line with the Advocate General’s opinion, the ECJ held that it was a state’s sovereign right to withdraw from the EU in terms of Article 50, and that this right should also be extended to include the right to change its mind about such a withdrawal. If the European Council had been correct, it would lead to a situation where a sovereign right became a conditional one which would fly in the face of the principle that a member state could not be forced from the EU against its will.
The ECJ also agreed with the Advocate General’s opinion that any revocation had to be made in writing to the European Council, had to come before the withdrawal agreement came into force, had to be in line with the member state’s constitutional requirements, and had to be unequivocal and unconditional. These conditions were meant to provide a formal route for revocation, such as is not set out in the article, and prevent the abuse of the system which the Commission and Council feared. Further, the ECJ set out that the UK had the right to remain in the EU on the same terms that it enjoys now, as opposed to diminished terms imposed on it by the EU in exchange for a revocation.
It is hard to say, at this stage, whether or not the ECJ’s determination will have any real impact on the Brexit process. Most importantly, the UK Government continues to maintain that it has no intention of revoking its Article 50 notification, and the main opposition party has been largely silent on the issue.
The European Union (Withdrawal) Act 2018 (the ‘Act’) provides that Parliament must sanction any deal agreed by the UK Government and the European Union in relation to the UK’s withdrawal from the EU. In terms of section 13 of the Act, any agreement reached can only be ratified if it is approved by the House of Commons and has been debated in the House of Lords. If the House of Commons does not approve the deal, the Government is required to inform Parliament how it wishes to proceed. If no agreement is reached prior to 21 January 2019, the Government must also inform Parliament how it wishes to proceed.
Since the decision was issued, the Prime Minister has cancelled a vote on the withdrawal agreement as it became clear that it did not command the support of Parliament. The Prime Minister has also faced down a vote of no confidence from members of the Conservative Party, though not in glorious fashion. The Prime Minister is now also seeking to either re-negotiate parts of the withdrawal agreement (e.g. the ‘Irish backstop’) or to at least be provided with formal clarification of certain points to appease Parliament. The EU does not appear to be prepared to re-negotiate the agreement or to provide the clarifications which the Prime Minister is seeking.
It is very difficult to say that any of these events occurred because of the ECJ’s decision in this case. It is highly likely that this series of events would have happened in any event.
The stark choice facing Parliament is to approve any deal agreed between the UK and the EU, or to leave the European Union without any deal or framework for the future relationship between the UK and the EU. What the Petitioners have sought in this case is confirmation as to whether or not there is a viable third option: the UK revoking its Article 50 notice unilaterally and remaining in the EU.
At the very least, the ECJ’s decision provides Parliament with a third way, should it choose to exercise it.