10 Dec
Brexit withdraw

The United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU

The United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU. In today’s judgment (10 December), the Court of Justice of the European Union has ruled that, when a Member State has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that Member State is free to revoke unilaterally that notification.

Such a revocation, decided in accordance with its own national constitutional requirements, would have the effect that the United Kingdom remains in the EU under terms that are unchanged as regards its status as a Member State.

The judgment

According to the Court, the possibility of revoke unilaterally the notification exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired.

The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council.

Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end.

In its reasoning, the Court begins by observing that, according to the Court of Session, the case before that latter court raises a genuine issue giving rise to a dispute which it is required to resolve and that the judgment of the Court of Session will have the effect of clarifying the options open to MPs who must decide on the ratification of the agreement negotiated between the UK and the EU.

Replying to the arguments as to the admissibility of the case brought by the UK government and the Commission, the Court finds that the question referred by the Court of Session, regarding the interpretation of Article 50 TEU, is relevant and not hypothetical, given that it is precisely the point at issue in the case pending before the Court of Session.

As to the substance of the question, the Court rules that Article 50 TEU does not explicitly address the subject of revocation. It neither expressly prohibits nor expressly authorises revocation.

That being so, the Court notes that Article 50 TEU pursues two objectives, namely, first, that of enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, that of establishing a procedure to enable such a withdrawal to take place in an orderly fashion. According to the Court, the sovereign nature of the right of withdrawal supports the conclusion that the Member State concerned has a right to revoke the notification of its intention to withdraw from the EU for as long as a withdrawal agreement has not entered into force or, if no such agreement has been concluded, for as long as the two-year period, and any possible extension, has not expired.

According to the rules

In the absence of an express provision governing revocation of the notification of the intention to withdraw, that revocation is subject to the rules laid down in Article 50(1) TEU for the withdrawal itself, with the result that it may be decided unilaterally, in accordance with the constitutional requirements of the Member State concerned.

The revocation by a Member State of the notification of its intention to withdraw reflects a sovereign decision to retain its status as a Member State of the European Union, a status which is neither suspended nor altered by that notification.

The Court considers that it would be inconsistent with the EU Treaties’ purpose of creating an ever closer union among the peoples of Europe to force the withdrawal of a Member State which, having notified its intention to withdraw from the EU in accordance with its constitutional rules and following a democratic process, decides to revoke the notification of that intention through a democratic process.

To subject that right to revoke to the unanimous approval of the European Council as the Commission and Council proposed, would transform a unilateral sovereign right into a conditional right and would be incompatible with the principle that a Member State cannot be forced to leave the European Union against its will.

Click here to access the full text of the judgment.

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