By Chloé Brière
A few days before the vote in the House of Commons on the Withdrawal Agreement, scheduled for December 11th, 2018, the debates are still vivid both in the United Kingdom and the European Union. The possibilities of holding a second referendum or stopping the withdrawal process have been repeatedly raised as alternatives should the Withdrawal Agreement be rejected by the House of Commons.
In this context, the pending case Wightman and others before the Court of Justice of the EU is of crucial importance. After the judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union, which followed the submissions of counsel regarding the irrevocability of a withdrawal notification, the request for a preliminary reference from the Inner House of the Court of Session in Scotland could be a game changer. The Opinion of Advocate General Campos Sánchez-Bordona delivered on December 4th, 2018, invites the Court to rule in favour of the possibility for the UK to unilaterally revoke its notification of withdrawal, potentially opening up a third way.
The present contribution analyses the arguments discussed by the Advocate General, building upon the two previous contributions discussing the judgment of the Inner House of the Court of Session in Scotland (see O.Garner’s analysis) and arguing in favour of an interpretation of Article 50 TEU as not allowing revocation (seePerakis’ analysis). The interpretation of Article 50 TEU proposed by the Advocate General is in line with key principles of EU law.
Summary of the Opinion
The Advocate General starts his Opinion with a short introduction stressing in particular the undeniable practical consequences of the preliminary reference brought before the Court of Justice of the EU, as it would open a third way to the United Kingdom, namely the possibility to remain in the European Union (para. 4).
The Advocate General then proceeds in examining the admissibility of the question referred for a preliminary ruling. The UK government argued that the question is inadmissible on two grounds: firstly, its hypothetical and theoretical nature, and secondly, that the Court has no competency to provide advisory opinions on constitutional matters. The AG rejects both grounds. The preliminary reference complies with the requirements of Article 267 TFEU (para. 37 – 38) and the question it referred to the Court is not merely academic and its practical importance is obvious, given the enormous legal, economic, social and political repercussions of Brexit. The AG here particularly stresses the importance of the question raised not only for EU law specialists but also for the UK and the EU itself, as well as British and non-British EU citizens (para. 41). On the second ground raised by the UK government, i.e. that the Court has no competence for providing an advisory opinion on constitutional matters, the AG dismisses that claim, stressing that the Court does not go beyond the task conferred on it by Articles 19 TEU and 267 TFEU, and that its interpretation does not interfere in the political process of negotiating Brexit (para. 52).
With regard to the substance to the question referred, the AG develops a detailed analysis in three main steps.
The first step consists of a thorough analysis of the rules of public international law on the withdrawal of States from international treaties, including the rules on the revocation of notifications of withdrawal, to determine whether they are applicable to the withdrawal of a Member State from the EU. The AG stresses that the EU treaties contain an express provision on withdrawal (Article 50 TEU) and that withdrawal of an EU Member State must in principle be carried out in accordance with that provision (para. 81). The rules applicable under the Vienna Convention on the Law of Treaties can provide interpretative guidelines for issues that are not expressly dealt with in Article 50 TEU (para. 82).
The second step of his analysis consists in a detailed argumentation, relying on the interpretative techniques traditionally used by the Court, for interpreting Article 50 TEU as allowing the unilateral revocation of the notification of the intention to withdraw upon conditions.
The AG starts his analysis with the literal and contextual interpretation of Article 50 TEU, not distinguishing with sufficient precision between the two methods of interpretation. To summarise its key arguments, the AG insists more particularly on the unilateral nature of a State’s decision to withdraw from the EU, which constitutes the expression of that State’s sovereignty and is only conditional upon its adoption in accordance with its own constitutional requirements (paras. 91 – 93). He argues that the possibility of unilaterally revoking the notification of that decision, until its effects become final, is also a manifestation of the sovereignty of the departing State (para. 94). In addition, the withdrawal decision may lose its foundation in accordance with the State’s constitutional requirements, either because the initial decision is declared invalid by a body having authority, or because there is a political change giving rise to a change in the will of the departing State (a referendum, a vote in Parliament, general elections) (paras. 103 – 106). References to international practice and Article 68 of the Vienna Convention on the Law of Treaties further support this interpretation in favour of unilateral revocation, and the AG presses for the application by analogy of the same rule in the framework of Article 50 TEU (paras. 107 – 108). He considers that denying the revocation of the notification of a State’s intention to withdraw would be contrary to common sense and would entail its forced exit or an indirect expulsion from the EU (para. 110 – 112). This is further reinforced by the AG’s views regarding the impact of the notification decision. The AG points out that in accordance with the wording of Article 50 TEU and the interpretation of the Court in the ROcase, the notification only indicates the intention of the departing State to withdraw, and opens a two-year period of negotiations during which the departing State remains a Member State of the Union with all inherent rights until the withdrawal is effective (paras. 95 – 102 & 114 – 115).Turning to the teleological interpretation of Article 50 TEU, the AG finds that it also supports the possibility for a Member State to unilaterally revoke its notification to withdraw. The AG refers in this regard to the principle of respect for the constitutional identity of the Member States, which supports allowing taking into account a change in the sovereign will of the departing State (para. 130 – 132). Similarly, the objective of achieving an even closer Union presses for not placing obstacles in the way of the continued EU membership of a State (para. 133), which would also protect the rights acquired by EU citizens (para. 135-136). Finally, the historical interpretation also points towards the unilateral nature of the right of withdrawal and of the withdrawal procedure, in particular the comments on the draft of the Convention Praesidium, and the rejection of amendments contradicting such unilaterality (para. 139 – 141).
After demonstrating why Article 50 should be interpreted as allowing unilateral revocation, the AG pinpoints the conditions under which unilateral revocation would be valid, namely if it is carried out by a formal act of the departing State addressed to the European Council, adopted in accordance with national constitutional requirements (paras. 143 – 144). The risk of abuse, and the use of unilateral revocation as a bargaining tool, is not considered to be prevalent. It is notably limited by the principles of good faith and sincere cooperation, enshrined in Article 4 (3) TEU, as well as by the obligation to respect the State’s constitutional requirements, which constitutes a filter which acts as a deterrent in order to prevent abuse (para. 148 & 156).
Finally, in the third step of the Opinion, the AG discusses the question of an agreed revocation, which would only become relevant should the Court reject the possibility of unilateral revocation. The Commission and the Council argued that Article 50 TEU only allows a revocation after a unanimous decision of the European Council. In their views, once the negotiation phase has started, the departing State loses control over the procedure and revocation would only be feasible if agreed by a unanimous decision of the European Council (para. 117 – 128 & para. 157 and following). They draw a parallel from Article 50 (3) and (4) TEU, which grants to the European Council the right to extend the negotiation phase without the participation of the departing State (para. 161). The AG notes that if the revocation of withdrawal depended on a unanimous decision of the European Council, the right to withdraw from (and, conversely, to remain in) the European Union would be solely in the hands of the European Council, thus allowing any one of the remaining 27 Member States to block the unanimous decision of the European Council and thereby to frustrate the will of the Member State that has given notice of its desire to remain in the European Union (para. 168-169).
The Opinion of the AG has already received a high level of attention, both in specialist and non-specialist circles, demonstrating that the question raised is far from being hypothetical or academic. The judgment of the Court of Justice, which might be expected in the coming weeks, will without doubt attract even further attention given the current context.
Although the proceedings initiated by the Scottish Members of Parliament, Members of the Scottish Parliament, and Members of the European Parliament, are undeniably intertwined in the political discussions surrounding the UK withdrawal from the EU, there is a genuine legal question raised with regard to the interpretation of Article 50 TEU, a provision relied upon for the first time by an EU Member State. The AG’s proposed answer, i.e. the possibility to unilaterally revoke the decision notifying the intention of a State to withdraw from the EU, is interesting beyond its potential implications on the discussions in the House of Commons and on the options available to the UK government in the coming weeks.
The arguments made by the Advocate General are in line with key principles of EU law, in particular the autonomy of the EU legal order, and the respect for the national identities of the Member States. The first aspect, the autonomy of the EU legal order, is upheld when the AG indicates that the withdrawal process from the European Union is governed exclusively by Article 50 TEU, and rules of public international law only constitute guidance for the interpretation of this EU provision.
The second aspect is even more interesting, as the AG insists both on the sovereignty of the State that has already notified its intention to withdraw from the EU and the importance of its constitutional requirements throughout the process. Compliance with the latter indeed constitutes an essential element not only for the validity of the notification of a State’s intention to withdraw, but also for the validity of an eventual reversal of its intention. They govern the procedure applicable for the adoption of a formal revocation act addressed to the European Council. Regarding the timeframe, the AG insists that the departing State retains its control over the will expressed in its notification during the two-year negotiation phase (para. 98), and the possibility to revoke its notification would be open until “such time as the withdrawal agreement is formally concluded” (para. 89). Therefore, the departing State would still be able to unilaterally revoke its notification during the prolongation of the negotiations.
Another crucial element is to determine who has the final say in the withdrawal process and its potential interruption. The Commission and the Council have argued that Article 50 only allows a revocation following a unanimous decision by the European Council (para. 119). The AG rightly rejects this interpretation, which would allow a single Member State to prevent another Member State to remain in the Union, no matter the circumstances, once notification of withdrawal has occurred. This would mean creating an additional source of uncertainty for Member States who have notified their intention to withdraw. While creating an additional deterrent, this interpretation would create risks of significant costs and serious consequences for EU citizens affected by this finally “forced withdrawal”. This may create the impression that the rules on withdrawal aim to “punish” Member States wishing to withdraw. This risk appears particularly serious considering that, as in the case of Brexit, the withdrawal decision remains a highly contentious issue and contrary to the desires of parts of the citizens of that State.
Finally, protection against the risk of abuse and the use of unilateral revocation as a bargaining tool is, for the AG, provided for through the respect of the national constitutional requirements, and of the principles of good faith and sincere cooperation. Yet his proposed interpretation of Article 50 TEU entails an element of legal uncertainty regarding the conclusion of the withdrawal process, which may be considered as a necessary evil to preserve as much as possible the possibility for a Member State to change its will about remaining a member of the European Union.