Brexit and the possibility of “withdrawing the withdrawal”: a hypothetical question?

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 by Alessandra Silveira, Editor

In case C-621/18, Wightman and others, pending judgment by the ECJ, the request for a preliminary ruling concerns the interpretation of Article 50 TEU. It has been made in proceedings where the opposing Scots parties are Andy Wightman and o., on the one hand, and the Secretary of State for Exiting the European Union, on the other, raising the question whether it is possible to revoke the notification of the intention of the United Kingdom of Great Britain and Northern Ireland to withdraw from the European Union. The Court of Session, Inner House, First Division (Scotland), seeks, in essence, to ascertain whether, where a Member State has notified the European Council of its intention to withdraw from the European Union in accordance with Article 50 TEU, EU law permits that Member State to unilaterally revoke its notification before the end of the period of two years referred to in that Article. If so, the referring court is uncertain as to the conditions governing such a revocation and its effects relative to that Member State remaining within the European Union.

The referring court states that, under Section 13 of the EU (Withdrawal) Act 2018, the withdrawal agreement which might be concluded between the United Kingdom and the Union under Article 50(2) TEU, setting out the arrangements for that withdrawal, may be ratified only if that agreement and the framework for the future relationship of the United Kingdom and the European Union has been approved by the Parliament of the United Kingdom. The referring court states that, where the withdrawal agreement is not approved by that Parliament, and if no other proposal is made, the departure of the United Kingdom from the Union will nonetheless take effect as from 29 March 2019. The referring court adds that it is uncertain whether it is possible to revoke the notification unilaterally and to remain within the European Union. That court also states that an answer from the ECJ will clarify the options open to the parliamentarians when they vote on those matters.

In its order for reference, the referring court requests the ECJ to deal with this reference for a preliminary ruling under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court. That provision states that the President of the Court may, where the nature of the case requires that it be dealt with within a short time, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure derogating from the provisions of those rules. Given that the implementation of Article 50 TEU is of fundamental importance for the United Kingdom and for the constitutional order of the European Union, ECJ has decided that the particular circumstances in this instance are such as to justify this case being dealt with within a short time in accordance with Article 105(1) of the Rules of Procedure.[i]

The only repair to make about this preliminary reference is that it should have been earlier. The ECJ should have been involved sooner on such relevant issue, as we argued regarding the decision of the UK Supreme Court from 24 January 2017,[ii] on whether a Notice withdrawing the UK from the EU Treaties could, under the UK’s constitutional arrangements, lawfully be given by Government ministers without prior authorisation by an Act of Parliament.[iii] In spite of the claims for that, the Supreme Court opted not to dialogue with the ECJ, when in fact what seemed to be at stake was, in first place, to decide if the notification of withdrawal is or is not revocable in light of Article 50 TEU – which is up to the ECJ, as final interpreter of the Treaties, to rule on [Article 19(1) TEU], considering the legal implications of the European loyalty principle. But in that opportunity, without stating an opinion on the High Court reasoning based on the irreversibility of the notification,[iv] the Supreme Court tried to find a solution that did not defy the European loyalty, as the interpretation on that matter notably falls to the ECJ. The Supreme Court might even had requested the expedited procedure – as it was conceded in judgment Pringle[v] (ruled in four months, including the period of recess in August) and now in Wightman and others case. As a result, we end up without knowing what the ECJ would rule on this relevant question.

We have been arguing that this question has to be examined in the light of the European loyalty principle, in line with the Union and Member States respect and assist each other mutually in the fulfilment of the missions arising from the Treaties.   With the entry into force of the Lisbon Treaty an exit clause was introduced in Article 50 TEU, mostly to accommodate the desires of the new Member States from Eastern Europe that were traumatised due to the absence of a similar rule in the soviet regime to which they belonged. Nevertheless, it is predicted a leaving agreement and not a unilateral decision of a Member State, considering the complex linking networking which derives from being part of the EU and that all the other Member States and peoples legitimately trusted in the permanence.[vi]  The content of Article 50 TEU is significantly distinct from the unilateral decision to leave as in international public law, basically because the EU has always functioned as a federative system. The exit procedure indicated in Article 50 TEU is grounded in the consensus between the Union and the Member State that expresses the intention to leave – and not between the latter and the remaining contracting States, as Article 54 of the Vienna Convention on the Law of Treaties. Such consensual withdrawal does not depend on the acquiescence of all EU Member States. The agreement needs approval by the European Parliament and qualified majority of the members of the Council [Article 50(2) TEU].

Article 50 TEU does not expressly states the possibility of revoking the notification of withdrawal, perhaps to prevent that in face of the certainty of revocability Member States were tempted to influence de destiny of the EU through a false threat of exit. In this perspective, the Union general interest, of its citizens and Member States could lead to the acknowledgment of the secession notification as a sort of nuclear button[vii] or a point of no return. However, nothing indicates that the notification is not revocable – on the contrary, the spirit of Article 50 shows that the point of no return is the end of the period of negotiation subsequent to the notification. The doctrine is split as to the admissibility of the hypothesis of “withdrawing the withdrawal”. Some sustain that the notification is revocable in light of principles of international public law, based on Article 68 Vienna Convention on the Law of Treaties, according to which a withdrawal notification can be revoked at any time before it produces effect[viii].

However, the problem is in the fact that the secession established in Article 50 TEU is significantly distinct from the unilateral denunciation of the international law of the Treaties – hence, the revocability of notification, if admitted, should be based on EU law. Well, it is not reasonable that, once the process is ongoing, a Member State must leave, no matter what, the EU[ix]. Therefore, as to the possibility of “withdrawing the withdrawal”, I have no doubts of its admissibility. Also, I did not had doubts that, sooner or later, the ECJ would be called to rule on the withdrawal agreement and this specific question.

Even though the Treaties do not define it, it is defensible that the reference to Article 218 TFEU, concerning the negotiation of the agreement, opens the door for the ECJ to give an opinion about the compatibility of the draft agreement with EU law, by request of any Member State, the European Parliament, the Council and the Commission [Article 218(11) TFEU]. The agreement cannot enter into force if the ECJ decides negatively, unless the agreement is changed or the Treaties revised. Moreover, the decision of the Council concluding the agreement may be submitted to the ECJ appreciation through an action for annulment (Article 263 TFEU). Besides, national courts of Member States that remain in the EU can refer preliminary questions to the ECJ related with the withdrawal agreement (Article 267 TFEU).

The problem of Wightman and others case is perhaps the admissibility of the reference for a preliminary ruling, as the ECJ has not been accepting that national courts send hypothetical questions under EU law. In accordance with the ECJ case-law, clear in paragraph 18 of judgment Foglia/Novello[x],“it must in fact be emphasized that the duty assigned to the Court by Article 177 [267 TFEU] is not that of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States. It accordingly does not have jurisdiction to reply to questions of interpretation which are submitted to it within framework of procedural devices arranged by the parties in order to induce the Court to give its views on certain problems of the Community law which do not correspond to an objective requirement inherent in the resolution of a dispute.”

In trying to repeal the hypothesis of inadmissibility of the reference, it would be defensible – and the ECJ apparently upholds this argument in paragraph 4 of Order of the President of the Court (Expedited procedure), 19 October 2018 – that certain provisions of EU (Withdrawal) Act 2018 have come into force. In particular, section 13 of the Act provides that the UK Parliament will be faced with a binary choice after a withdrawal agreement has been provisionally agreed between Her Majesty´s Government and the European Union: Parliament must either approve the terms of the withdrawal agreement and accompanying text on the future framework for UK-EU relations or not approve.[xi] The problem is, then, in knowing if the preliminary reference of the Scottish court, tending to clarify if the notification of withdrawal is or is not revocable, would be necessary to the correct solution of the main proceedings. I believe the ECJ as the constitutional court of the Union will not elide itself from “doing politics by legal lines” – which is the apanage of all constitutional courts. It cannot be different because “constitutional law provides the legal status of the political”. European integration is, mostly, a legal integration, based on legal norms. And for that the (desired) judicial activism of the ECJ has always concurred. In this crucial moment of the European construction it would only be surprising if it were different.

[i] See Order of the President of the Court (Expedited procedure), 19 October 2018, available on http://curia.europa.eu/juris/document/document.jsf?text=&docid=207041&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=4532155

[ii] See Alessandra Silveira, “Brexit, The Supreme Court (UK) and the principle of loyalty: on the question of irrevocability of a withdrawal notice”, ”, in UNIO – EU Law Journal – The official blog , available on https://officialblogofunio.com/2017/01/26/brexit-the-supreme-court-uk-and-the-principle-of-loyalty-on-the-question-of-irrevocability-of-a-withdrawal-notice/

[iii] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5. On appeals from: [2016] EWHC 2768 (Admin) and [2016] NIQB 85 https://www.supremecourt.uk/news/article-50-brexit-appeal.html  .

[iv] According to the High Court a notice under Article 50(2) cannot be withdrawn, once it is given; and Article 50 does not allow for a conditional notice to be given: a notice cannot be qualified by, for example, saying that it will only take effect if Parliament approves any agreement made in the course of the negotiations contemplated by Article 50(2).

[v] Judgment Pringle, 27 November 2012, case C-370/12.

[vi] See Alessandra Silveira, “’Out is out’ (including in relation to the Mediterranean diet…). On the Article 50 of the European Union Treaty in the light of the federative principle of European loyalty”, ”, in UNIO – EU Law Journal – The official blog, available on https://officialblogofunio.com/2016/07/07/out-is-out-including-in-relation-to-the-mediterranean-diet-on-the-article-50-of-the-european-union-treaty-in-the-light-of-the-federative-principle-of-european-loyalty/

[vii] John Cotter, “R (Miller) v. The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin): realpolitik and the revocation of an Article 50 TEU notification to withdraw”, in UNIO – EU Law Journal – The official blog, available on https://officialblogofunio.com/2016/12/02/r-miller-v-the-secretary-of-state-for-exiting-the-european-union-2016-ewhc-2768-admin-realpolitik-and-the-revocation-of-an-article-50-teu-notification-to-withdraw/

[viii] In that regard, Paul Craig, “Miller: winning battles and losing wars”, in Oxford Human Rights Hub   http://ohrh.law.ox.ac.uk/miller-winning-battles-and-losing-wars/ (published on 4 November 2016).

[ix] On the theme, see Daniel Sarmiento, “Miller, Brexit and the (maybe not to so evil) Court of Justice”, in VerfassungBlog http://verfassungsblog.de/miller-brexit-and-the-maybe-not-to-so-evil-court-of-justice/ (published on 8 November 2016). Daniel Sarmiento agrees with the possibility of revoking based on democratic arguments, as it would be absurd that a withdrawal had to be negotiated by an elected Parliament after the negotiation, if it opposed it with a majority.

[x] Judgment Foglia v. Novello, 16 Dec. 1981, case 244/80.

[xi] See Alan S. Reid, “Scotching Brexit? Background to the Wightman case about reversing the Article 50 notification unilaterally”, available on http://eulawanalysis.blogspot.com/2018/11/scotching-brexit-background-to-wightman.html (published on 16 November 2018).

Pictures credits: All things Scottish by Michael Coghlan.

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