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.
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