CJEU: Yes, Notice given under Article 50 TEU can be unilaterally revoked
For the past few weeks we’ve been tracking developments in the case of Wightman and Others v Secretary of State for Exiting the European Union as the Petitioners (supported by the Good Law Project) first raised the question of whether notice given under Article 50 TEU can be revoked in the Inner House of the Scottish Court of Session, defended the decision of the Court of Session to refer the matter to the European Court of Justice under Article 267 TFEU in the Supreme Court and finally, presented their Petition to the European Court last month.
Now that the European Court has answered the question referred to it by the Court of Session, the Inner House must make their final determination on the Article 50 TEU question put to it by the Petitioners. In the last edition of Legal Tea with B, we covered the Advocate General Campos Sánchez-Bordona’s opinion in Wightman, in which he concluded that notice given under Article 50 can be unilaterally revoked.
What is a reference under Article 267 TFEU?
Before we get into the CJEU’s judgment, it may be helpful to briefly cover references under Article 267 TFEU.
Where a national court is faced with interpreting an EU Treaty and they seek clarification on its interpretation, the court has the option of referring the matter to the European Court of Justice in a procedure set out in Article 267 of the Treaty on the Functioning of the European Union (TFEU).
It’s important to clarify (as did the Supreme Court in the Government’s challenge to the Article 267 Reference) that the role of the European Court is not to make a final determination that is binding upon the national court, but to provide the national court with a preliminary interpretation to aid them as they make their judgment in the matter originally placed before them. As the Supreme Court remarked in Secretary of State for Exiting the European Union (Appellant) v Wightman and others (Respondents):
The request to the CJEU did not in itself “dispose of the subject matter” of the proceedings: it remains to be seen what remedy, if any, the Court of Session will grant. That will remain the position even after the CJEU has made a ruling on the question referred.Para 5
The CJEU’s judgment
Returning to the CJEU’s judgment in Wightman, the Court held that notice given under Article 50 can be unilaterally revoked by a member state before the conclusion of the withdrawal agreement or, in any event, within the two years set out for withdrawal negotiations to take place if no such agreement is reached.
Before continuing, I would advise that you first read the summary of the submissions put forward by both the Government and the Petitioners in Legal Tea with B (03/12/2018).
Vienna Convention on the Law of Treaties
Setting out the relevant legal context behind the judgment, the CJEU (at paragraph 3) made reference to the Vienna Convention on the Law of Treaties. This was in line with both the Petitioners’ submissions to the court and the opinion of the Advocate General.
Specifically, the Court referred to Articles 65, 67 and 68 of the Convention. Articles 65 and 67 set out the valid procedure and instruments for invalidating, terminating, withdrawing from or suspending a Treaty’s operation. Notably the Court also referred to, Article 68 of the Treaty which sets out that any notice given under Articles 65 and 67 can be revoked at any time before it takes effect.
Relevant EU Law
The Court further set out the relevant provisions of EU Law that applied to the judgment (at paragraphs 4 – 6) making reference to Articles 1 and 2 TEU which set out the fundamental principles at the heart of the European Union’s legal order:
Law of the United Kingdom
The relevant provisions of the law of the United Kingdom (set out at paragraphs 7 and 8) are contained in The European Union (Notification of Withdrawal) Act 2017, section 1 and The European Union (Withdrawal) Act 2018, section 13.
The question of admissibility – a presumption of relevance
The Court at paragraph 26 responded to the Government’s submissions that the question of revocability of notice under Article 50 was “irrelevant” or “merely trivial”, setting out that by virtue of the national court’s responsibility to deliver a final determination on the interpretation of EU Law, it is their sole responsibility to determine the need for a preliminary reference under Article 267 and therefore the relevance of the question referred to the CJEU. This therefore creates a presumption of relevance of any questions referred to the Court:
The Court at paragraph 29 went on to hold that, contrary to the Government’s submissions, the matter before it did indeed constitute a “genuine and live issue, of considerable practical importance”. In particular, the court upheld the significance of the Petitioners’ submission that resolving the question was integral to the exercise of their democratic function as Members of the United kingdom Parliament who, in line with s13 of the Withdrawal Act 2018, must vote on the ratification of the withdrawal agreement negotiated between Government and the European Union in line with Article 50.
A unilateral right of revocation
At paragraphs 37-42 the Court gave consideration to the various submissions put forward by the Petitioners (as well as the Council of the European Union and the European Commission) on the nature of any right to revocability of notice under Article 50. The Government did not make any submissions on the right of a Member State to revoke notification.
The Court held that, “in light of the Treaties taken as a whole” (paragraph 46), Article 50 TEU sets out to achieve two core objectives: (1) enshrining a Member States’ sovereign right to withdraw from the EU; and (2) establishing a procedure facilitating such withdrawal “in an orderly fashion” (paragraph 56). The Court affirmed the opinion of the Advocate General that, properly interpreted, Article 50(1) TEU provides for a Member State’s right to withdraw notification before any withdrawal agreement is reached or before the period to negotiate withdrawal has elapsed (paragraph 57). Ultimately, revocation of notice to withdraw is as much a sovereign decision as the decision to withdraw in the first place:
The spirit of the European Union
The Court at paragraphs 61-64 affirmed the relevant fundamental principles of EU Law at the heart of their judgment, emphasising the free and voluntary nature of membership of the European Union in support of the conclusion that a Member State can neither be forced to enter or leave the European Union:
The Court also emphasised the importance of Citizens’ rights to the issue of withdrawal from the Union, a chief point of concern that the Petitioners expressed in their submissions:
Notably, to support the conclusion that a Member State possess a right to unilaterally revoke their notice of withdrawal under Article 50, the Court made reference to the draft Treaty to establish a Constitution for Europe which failed in 2005 following the refusal of both France and the Netherlands to ratify the Treaty. The countries refused to ratify the Treaty in light of national referendums that saw the citizens of each respective country vote against entering into the Treaty:
The Court gave a final, definitive answer to the question at paragraph 75:
All eyes on the Court of Session
Now that the CJEU has given a definitive response to the preliminary reference, it now remains for the Scottish Court of Session to a come to a final determination on the question put it to by the Petitioners. In the petition, the Court was asked to deliver a declarator setting out “whether, when and how” the notice could be withdrawn. The principle issue left to resolve at this stage is how the withdrawal notice can be revoked.
The case is set to return to the Scottish Court of Session on Thursday 20th December. We’ll all be waiting with bated breath to hear what the Court of Session decides. Once the declarator has been returned, it will be covered in full in Legal Tea with B.