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Court of Justice of the European Union
PRESS RELEASE No 187/18 (4 December 2018)
Opinion of the Advocate General
in the case C-621/18 Wightman and Others
Advocate General Campos Sánchez-Bordona proposes that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU
That possibility continues to exist until such time as the withdrawal agreement is formally
concluded
At the request of various MSPs, MPs and MEPs, a Scottish court, the Court of Session, Inner House, First Division (UK), asks the Court of Justice whether a Member State which has notified the European Council of its intention to withdraw from the EU in accordance with Article 50 TEU may unilaterally revoke that notification and, if so, subject to what conditions.
As the UK Parliament has to give its final approval, both if a withdrawal agreement is reached and in the absence of that agreement, various members of that parliament consider that if the notice of the intention to withdraw were revocable, this would open the possibility for the UK to remain in the EU in the face of an unsatisfactory Brexit. The Scottish court appears to adopt that position, reasoning that the Court of Justice’s answer will have the effect of clarifying the precise options open to MPs when casting their votes.
The UK Government contends that the question referred for a preliminary ruling is inadmissible, given that it is hypothetical and merely theoretical, since there is no indication that the UK Government or Parliament are going to revoke the notification of the intention to withdraw.
In today’s Opinion, Advocate General Manuel Campos Sánchez-Bordona considers that none of the conditions which, according to the Court’s case-law, govern whether a reference for a preliminary ruling should be declared inadmissible, are satisfied. According to the Advocate General, the dispute is genuine, the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute. He adds that the power to interpret Article 50 TEU definitively and uniformly is that of the Court of Justice which must carry out considerable interpretative work in order to determine whether or not that article allows the notification of the intention to withdraw to be revoked unilaterally.
In answer to the question from the Scottish court, the Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.
The Advocate General interprets Article 50 TEU, having recourse, with regard to what is not expressly provided for in that article, to the relevant provisions of the Vienna Convention on the Law of Treaties on which Article 50 TEU is based. Pursuant to Article 68 of that convention, www.curia.europa.eu notifications of withdrawal from an international treaty may be revoked at any time before they take effect. [ETC...]
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BBC: 'Article 50: Law officer says UK can cancel Brexit'
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BBC: 'Article 50: Law officer says UK can cancel Brexit'
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