Article 50 TEU no ‘one way street with no exits’
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Hannah Frahm
Today, Advocate General Manuel Campos Sánchez-Bordona released his 26-page Opinion on the question whether the UK can revoke the notification of its intention to withdraw from the EU. His view is that the CJEU should decide that it can and that it should declare that Article 50 of the Treaty on the European Union allows unilateral revocation until such time as the Withdrawal Agreement is formally concluded provided (i) the revocation has been decided upon in accordance with the UK’s own constitutional requirements; (ii) it is formally notified to the European Council and (iii) does not involve an abusive practice.
The Advocate General’s opinion is that the question that was referred by the Inner House of the Court of Session for a preliminary ruling is admissible and, in rejecting the UK government’s case, that the dispute is “genuine” and “not merely academic” and has obvious practical importance.
The Advocate General considers that the answer to the referred question “will have the effect of clarifying the options open to MPs when casting their votes” (including most pressingly on 11 December when the House of Commons is scheduled to conduct its “meaningful vote”).
In answer to the question of revocability, the Advocate General examines Art. 50 TEU in the light of the relevant public international law rules on the withdrawal of States from international treaties, in particular the Vienna Convention on the Law of Treaties (“VCLT”). Art. 69 of the VCLT is of particular importance, providing that a notification “may be revoked at any time before it takes effect.” In the A-G’s Opinion “there is no reason” that the relevant provisions (in particular Art. 68 of the VCLT) “may not be used to provide interpretative guidelines to assist in dispelling doubts about issues that are not expressly dealt with in Art. 50”.
The Advocate General also rejects the notion that Article 50 could require forced exit even if the Member State prefers to revoke its initial decision and stay in the EU. Art. 50 TEU does not provide for a “one way street with no exits” and it would be “illogical (or even incongruous)” to force a member state to withdraw only for it to then have to negotiate its (re)accession.
For the Advocate General, allowing unilateral revocation is also a question of respect for the Member State concerned and its sovereignty: any treaty-making decision is by definition a unilateral act and a manifestation of sovereignty; unilateral revocation would also be a manifestation of this sovereignty.
The Advocate General’s Opinion is of course not legally binding and while the CJEU often follow the line adopted by the A-G this is not a ‘normal’ case. There is as yet no indication as to when it will issue its own decision. Needless to say the A-G’s Opinion will provide as much fodder for political debate as for legal analysis.
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