Article 50 of the Treaty on European Union can be divided into two parts. The first recognises the right of a member state to withdraw from the European Union. The second establishes the procedure that the withdrawing member state and the EU institutions have to follow to manage that withdrawal.
Article 50 says that the member state has to notify the European Council of its intention to withdraw from the European Union. However it does not say whether, once such notification has been made, such intention may be revoked and membership retained.
This was the issue under consideration in a case brought before the European Court of Justice. The court has now ruled that a withdrawing member state may revoke its intention to withdraw from the EU unilaterally.
The key word here is “unilaterally”. In this context, it means that the revocation decision is not subject to the unanimous consent of the European Council, the European institution representing the member states.
However, it’s important to note that the court added that the decision to revoke Article 50 must be “unequivocal and unconditional”. This means that the member state has to make it clear that it wishes to maintain its EU membership. This is not about extending the Article 50 process to extend the Brexit transition period beyond March 2019. That would still require agreement from the EU member states. Rather, a notification revoking Article 50 means not leaving the EU at all. In other words, it would stop Brexit.
Of equal importance is timing. The court said a member state can only revoke Article 50 while its withdrawal agreement with the EU, which sets outs the terms of departure, has not yet entered into force. If the withdrawal agreement has not been concluded, revocation may take place during the two-year period that starts when Article 50 is triggered, or even beyond the two-year period if the remaining member states decide to grant such an extension.
In Brexit terms, this means that the UK can revoke Article 50 unilaterally before its agreement enters into force or, if it does not enter in force, until March 29 2019. It can also revoke it after that date if the European Council agrees to extend the transition period of Article 50 beyond 29 March 2019.
A legal first
The ECJ case originally started in a Scottish court, which asked the Court of Justice to clarify the issue of revocation of the intention to withdraw from the EU. Given the misrepresentation given by Brexit supporters about the Court of Justice and their sudden hostility towards it, it’s important to remember that the Court of Justice interprets and applies EU law. It does not, nor can it, interpret or apply national law. This has always been the case since its establishment in 1952.
This was a challenging case because the the UK was the first country to ever trigger Article 50, so there was no legal precedent to rely on when making a decision. If the text of the law is silent, should it be implied that a particular conduct is allowed because it is not expressly prohibited, or should it be implied that it is not allowed because it is not expressly permitted?
In this typical interpretative dilemma, the court reasoned that if EU law recognises the sovereign choice of a member state to leave the EU, then revoking that intention should also be seen as a sovereign decision. It also noted that “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”.
In this regard, the court noted that if a member state cannot unilaterally revoke its decision to leave the EU, then this would amount to allowing the expulsion of a member state. Indeed, the court noted that when drafting what eventually would become Article 50, a number of amendments to allow the EU to expel member states were rejected. This further supports the conclusion that a member state is entitled to reverse its decision unilaterally.
The ECJ ruling is not surprising. Legally speaking, it would have been much harder to justify the opposite conclusion. It is also in line with the Vienna Convention on the Law of Treaties, which allows revocation of a decision to withdraw from an international treaty.
The immediate implication is that the EU member states are not allowed to interfere with the United Kingdom’s future course of action, for example by setting new conditions for allowing the UK to remain in the EU. However, like many domestic and international rulings, it has an internal political implication: it adds a further option to the current ones on the table. The pressure taken off from the EU is now entirely on the UK.
A revocation decision would run counter to the outcome of the UK referendum. It would be unpalatable, unattractive, and risky, but so are the other choices. By approving the withdrawal agreement, the UK becomes a rule-taker with no voice. By rejecting the withdrawal agreement, it faces serious and radical economic disruption. Either way, the ultimate decision must be made through the British political system. The ECJ ruling is another stark reminder of this enormous responsibility.