The European Court of Justice has ruled that the United Kingdom can decide to revoke the notification to withdraw from the EU. The Court states that as no state can be forced to join, it cannot be forced to leave either.
Read the article from Jyllands-posten, Tuesday, January 15, 2019 here.
In December 2018, the European Court of Justice ruled that it is possible for the United Kingdom to revoke its notification to the Council of its withdrawal from the EU in connection with Brexit.
In the referendum on June 23, 2016, a majority of the United Kingdom’s voters voted for the United Kingdom to withdraw from the European Union. This naturally concerns companies throughout the EU. On March 29, 2017, the United Kingdom notified the Council of its intention to withdraw from the EU pursuant to Article 50 of the Treaty.
According to Article 50, a withdrawal agreement must be concluded between the EU and the withdrawing Member State. The agreement is concluded as part of a kind of divorce negotiation, where the EU and the withdrawing Member State negotiate the framework for future relations between the EU and the withdrawing Member State.
If the agreement is not available within two years of the notification of withdrawal, the Treaties shall cease to apply to the Member State concerned, unless the Council unanimously decides to extend the two-year period. The withdrawal agreement between the EU and the United Kingdom was approved by the Council on November 25, 2018, but the agreement has not yet been approved by the British Parliament.
On December 19, 2017 – before the withdrawal agreement was approved by the Council – a number of members of the United Kingdom’s Parliament, the Scottish Parliament and the European Parliament initiated legal proceedings before the Court of Session, Outer House (Scotland’s highest civil court, court of first instance, United Kingdom), with a view to obtaining clarification as to whether the notification of a decision to withdraw can be revoked unilaterally before the expiry of the two-year period, with the effect that the United Kingdom remains in the EU.
The action was dismissed by the Lord Ordinary (sole judge in the first instance) on the grounds that it constituted an interference with the sovereignty of the United Kingdom’s Parliament, and that it was a hypothetical question. An appeal was subsequently lodged with the Court of Session, Inner House (Scotland’s highest civil court, appeal chamber), which chose to allow the appeal and remit the case to the Lord Ordinary.
Once again, the Lord Ordinary chose to dismiss the action. The case was then appealed to the Court of Session, Inner House, First Division (Scotland’s highest civil court, appeal chamber, first division), which chose to refer to the European Court of Justice the question of whether EU law allows a Member State to revoke its decision to withdraw from the EU once it has been sent to the Council.
Initially, the European Court of Justice stated that the question referred must be examined in the light of the Treaties as a whole, referring to the fact that the Treaties bind the EU and the Member States together, and that the Treaties bind the Member States to each other. In this regard, the European Court of Justice noted that, according to the European Court of Justice’s settled case law, the interpretation of a provision of EU law requires that account be taken not only of its wording and the objectives it pursues, but also of its context and the provisions of EU law as a whole. Furthermore, the origin of a provision of EU law may be included as an element of interpretation.
With regard to the wording of Article 50 of the Treaty, the European Court of Justice noted that the Treaty provision does not contain any express rule on revocation. On the other hand, the Treaty provision refers to the Member State’s notification of its “intention” to withdraw and not to the withdrawal itself, since the withdrawal can only take place after a withdrawal agreement has been concluded or after the expiry of a period of two years. The European Court of Justice then noted that such an intention is neither final nor irrevocable.
The European Court of Justice then referred to the withdrawal procedure in Article 50 of the Treaty and the two objectives pursued by the Treaty provision; first and foremost, a Member State’s sovereign right to withdraw from the EU, and secondly, to introduce a procedure that makes it possible to establish such withdrawal in an orderly manner. The European Court of Justice then stated that it is precisely the sovereignty of the Member State that supports the conclusion that a Member State may revoke the notification that it intends to withdraw from the EU, provided that the withdrawal agreement between the EU and the Member State concerned has not entered into force, or provided that such a withdrawal agreement has not yet been adopted within the two-year period.
The European Court of Justice then stated that – in the absence of an express Treaty provision on revocation – Article 50 of the Treaty applies to the United Kingdom’s revocation, with the result that the revocation can be decided unilaterally in accordance with the constitutional requirements applicable in the Member State.
According to the European Court of Justice, the result is supported by the fact that a Member State’s revocation of a notification that it intends to withdraw from the EU must be regarded as a state decision to maintain its status as a Member State of the EU. Thus, the European Court of Justice rejected the Council’s and the European Commission’s argument that any withdrawal of a notification to withdraw should be regarded as a circumvention of the withdrawal procedure.
Furthermore, the European Court of Justice noted that it is expressly stated in the Treaty’s recitals that the Treaty’s purpose is precisely to create an ever closer union, and that the Treaty stipulates that a Member State is free to join the EU and thus commit itself to the EU’s values. When a state cannot be forced to join the EU against its will, a Member State cannot, according to the European Court of Justice, be forced to withdraw from the EU against its will either. Such a result would be incompatible with the objectives and values on which the EU is based. The European Court of Justice thus rejected the Council’s and the Commission’s proposal that a Member State’s right to revoke the notification to withdraw should be approved by the Council.
On the basis of the interpretation of the Treaty, the European Court of Justice concluded that, as long as the withdrawal agreement between the EU and the Member State concerned has not yet entered into force, or if such a withdrawal agreement has not yet been concluded within a period of two years, the Member State concerned has retained the ability to unilaterally revoke the notification that it intends to withdraw from the EU.
Since the withdrawal agreement has not yet been finally approved by the British Parliament, the United Kingdom can – if there is the political will to do so – remain in the EU. If this happens, they will also remain part of the internal market, which ensures the free movement of goods, capital, services and labour across national borders.
Theresa May faces a crucial vote in the House of Commons today, Tuesday. Here, the British parliamentarians will vote on the divorce agreement.