By Oliver Garner
On 10 December 2018, the European Court of Justice (ECJ) delivered its judgment in the Wightman case on the revocation of a notification of an intention to withdraw from the EU under Article 50 TEU. Extraordinarily, the expedited process adopted by the CJEU upon the request of the referring Scottish Inner Court of Session has seen a judgment delivered barely three months after the original preliminary reference request was made in the domestic judgment on 21 September 2018. This is a reaction to the time-sensitivity of the political end-game of Brexit. The UK House of Commons had been scheduled to hold its ‘meaningful vote’ on adoption of the Withdrawal Agreement and political declaration on the future relationship on 11 December before the postponement of this vote by the government. This vote provided the factual background to the dispute in the case. The petitioners, including Scottish MPs, sought an answer to the question of whether legally there existed the third option of revocation rather than the dichotomy of either accepting the Withdrawal Agreement or else exiting the EU via the automatic operation of Article 50(3) TEU upon the elapse of the two-year time period on 29 March 2019. The full-court judgment has upheld the Advocate-General’s Opinion of 4 December that a Member State is free to revoke unilaterally a notification of intention to withdraw from the EU made under Article 50(2) TEU. Indeed, the final judgment has recognised a right to revoke that is even more receptive to the sovereign discretion of the withdrawing Member State than in the Opinion. This post will first summarise the judgment, before providing some comments thereupon. The Wightman decision has filled a lacuna in EU law; it remains to be seen whether this legal clarity will help to assuage the political chaos currently engulfing the United Kingdom.
Summary of the Judgment
The judgment first provides the legal context to the dispute. This starts with an overview of the provisions of the Vienna Convention on the Law of Treaties (VCLT) relevant to notification of withdrawal and revocation thereof (para 3). Next the relevant EU law is delineated. This includes the principle of ever closer union among the peoples of Europe in Article 1 TEU (para 4), the values of the EU found in Article 2 TEU (para 5), and the text of the withdrawal clause of Article 50 (para 6). Finally, the relevant provisions of United Kingdom law are outlined. These are the European Union (Notification of Withdrawal) Act 2017 (para 7), and Section 13 of the European Union (Withdrawal) Act 2018 (para 8) which makes provision for the House of Commons vote whereby a Withdrawal Agreement may be adopted or rejected. These are the legal sources which the ECJ utilises in order to answer the dispute.
From paragraphs 9 to 17 the judgment details the dispute in the main proceedings and the questions referred. This commences with consideration of the admissibility of the referral (paras 20-36). The ECJ endorses the line of case law (Gauweiler,American Express) regarding the presumption of relevance that questions relating to EU law referred by national courts enjoy. It confirms the Inner Court of Session’s judgment that there is a dispute between the parties, despite the UK government refusing to address the substance of the issue (para 32). Furthermore, the judgment declares that there is no doubt as to the relevance of the question referred since it concerns the interpretation of a provision of EU law (para 33). The ECJ rejects the argument that the question referred bears no relation to the actual facts or that it concerns a hypothetical problem (para 34). It furthermore rejects the submission of the UK government that the referring court is seeking an advisory opinion thus circumventing the procedure in Article 218(11) TFEU. The dispute is not over the compatibility of an international agreement with the Treaties, but instead relates to the interpretation for a provision of EU law necessary for the national court to give judgment (para 35). Consequently, the question referred is found to be admissible.
The judgment then goes on to consider the substance of the dispute (paras 37-75). The ECJ starts by outlining the argument of the petitioners for unilateral revocation. (para 37). It then summarises the Council and the Commission arguments that revocation should only be allowed with the unanimous consent of the European Council because of the risk of repeated revocations and notification thus rendering the period laid down in Article 50(3) ineffective (paras 38-42). Next, the ECJ explicates the holistic and explicitly constitutionalist approach that must be adopted in order to examine the question (paras 44-47). With regard to textual interpretation, the crux is that despite the silence on revocation, Article 50(2) refers to the notification of the ‘intention’ to withdraw, which is neither definitive nor irrevocable (para 49). This textual argument is supported by the fact that Article 50(1) TEU provides for a purely unilateral withdrawal decision dependent solely on the sovereign choice of the Member State concerned (para 50). The Court then outlines the multilateral procedure triggered by the notification in Article 50(2) and (3) (para 51-55).
At paragraph 56 the ECJ provides a crucial explication of the purpose of Article 50 TEU. The provision pursues two objectives: first, to enshrine the sovereign right of a Member State to withdraw, and secondly to ensure that such a withdrawal takes places in an orderly fashion. The ECJ proceeds to endorse the Advocate General’s opinion that the first of these principle supports the conclusion of a unilateral right to revoke notification, but only for as long as a withdrawal agreement has not entered into force, or failing such a conclusion, for as long as the two-year period and any possible extension has not expired (para 57). The judgement subsequently explicitly recognises that in the absence of an express provision, revocation is subject to the rules laid down in Article 50(1) for the withdrawal itself which is a unilateral decision in accordance with the constitutional requirements of the Member State in question (para 58).The ECJ recognises that unilateral revocation reflects a sovereign decision by the State to retain its status as a Member State, and that this is fundamentally different from a request to extend the two-year period under Article 50(3) (paras 59 and 60).
The Court proceeds to the argumentation from the context of Article 50. The ECJ draws upon the statements of the principle of ever closer union among the peoples of Europe, and the values of liberty and democracy (paras 61-63). The ‘counterpart’ to Article 50 of Article 49 TEU governing accession is also advanced as evidence for the free and voluntary commitment of Member States towards the values of the European Union. The Court draws an analogy whereby given that a State cannot be forced to accede against its will it can neither be forced to withdraw unwillingly. The effect of notification of an intention to withdraw leading inevitably to withdrawal would amount to such an compulsion to leave. Such an eventuality would be inconsistent with the aims and values of the EU and the purpose of creating an ever closer union (paras 63 and 65-67). These negative consequences are corroborated by reference to the deleterious effects of a Member State withdrawal for the rights of all Union citizens. This would undermine the status of citizenship of the Union which is intended to be the fundamental status for all nationals (para 64). The argument is further supported by reference to the origins of Article 50 TEU and amendments proposed during the drafting that would have provided for the expulsion of Member States. These were rejected on the grounds that this would undermine the voluntary and unilateral nature of the withdrawal decision (para 68). The relevant provisions of the VCLT are forwarded, on the basis of their usage in the travaux préparatoiresas further corroboration for this conclusion (paras 70-72).
The judgment concludes with the rejection of the Council and Commission’s argument for multilateral revocation on the basis that this requirement would transform a unilateral sovereign right into a conditional right subject to an approval procedure (para 72). Therefore, the final decision finds that a Member State that has notified its intention to withdraw from the EU may revoke that notification in accordance with its own constitutional requirements by means of submitting an unequivocal and unconditional statement in writing to the European Council at any point before a withdrawal agreement comes into force, or before the conclusion of the two-year time period subject to any possible unanimous extensions. The result will be the withdrawing State will remain within the EU under terms that are unchanged as regards its status as a Member State.
Beyond filling a lacuna within the withdrawal provision of the European Union’s Foundational Treaties, the judgment in Wightman has also provided a vital authoritative statement of the dual-purpose of Article 50 TEU. In reaching its final decision, it may be argued that the ECJ has decided that the issues of notification of an intention to withdraw, and the revocation thereof, fall under the first objective of respecting the sovereignty of the Member States. Consequently, the ECJ rejects the submissions of the Council and the Commission which would require an interpretation of revocation of notification falling under the second principle of orderliness. Therefore, this endorses the Opinion of the Advocate-General that the unilateral sovereign decision to withdraw under Article 50(1) serves as the foundation for the EU administrative procedure mandated in the provisions that follow. The removal of this foundation stone, through a sovereign decision to revoke notification, subsequently causes the entire artifice of the withdrawal process to fall. In the absence of an explicit provision rendering revocation permissible or not, the approach of seeking symmetry with the process whereby notification is originally given ensures coherence within the operation of the Treaties.
The judgment departs from the Opinion of the Advocate General in three respects. The first departure relates to the structure of the argument and the sources drawn upon. The Advocate General’s Opinion commences its reasoning on the substance on the basis of the VCLT (points 63-85). By contrast, the judgment’s starting point of a summary of the specific constitutional features of the EU grounds the reasoning firmly within EU law. The provisions of VCLT are only cited in corroboration of the main argument, and even then they are explicitly hooked to the source of EU law through their utilisation in the preparatory work of the Treaties. This approach is more sensitive to the autonomy of EU law, and an interpretation of Article 50 TEU as an explicit clause within a constitutional charter, rather than taking the international law perspective whereby the withdrawal clause functions merely as lex specialis. Secondly, in terms of the temporal framework, the judgment confirms that a revocation may be exercised at any point before the Withdrawal Agreement comes into force rather than the point at which the Agreement is formally concluded. This is an important clarification in light of the continuing ambiguity surrounding the conclusion of the Withdrawal Agreement caused by the UK government’s decision to postpone the ‘meaningful vote’ of the House of Commons. The final and most important departure from the Advocate General’s Opinion concerns the conditions regulating the unilateral right of revocation. At point 148 of the Opinion it is claimed that the principles of good faith and sincere cooperation (Article 4(3) TEU) function as limits on the exercise of revocation. The judgment does not confirm any such further substantive conditions. The only echo of any such further limitations imposed by EU law are that the notification of revocation must be ‘unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the Member State concerned’ (para 75). This approach avoids the possible pitfalls that may arise from attempting to apply the vague obligations of good faith and sincere cooperation to processes that have been explicitly recognised by the ECJ as subject to the voluntary sovereign choice of the Member State concerned.
The judgment in Wightman has explicitly recognised that, as a matter of EU law, an alternative exists to the catch-22 of the United Kingdom either withdrawing with an agreement that has been widely maligned by Parliament or else crashing out with no agreement at all on 29 March 2019 in the event that no extension is agreed. The next legal question concerns how, as matter of domestic constitutional law, the constitutional requirements for such a revocation could be fulfilled. Guidance is provided by the ECJ in its statement that a notice in writing addressed to the European Council must only be provided afterthe Member State has fulfilled the constitutional requirement in deciding to revoke. It remains to be seen whether this would require the passage of a new Act of Parliament explicitly authorising the power to revoke before a notification, or instead whether such a power is already vested in the Prime Minister by virtue of the EU (Notification) Act 2017. Any such legal question will remain academic, however, unless and until the current political impasse regarding Brexit becomes intolerable and a new government policy to remain within the EU is pursued.