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UK can unilaterally revoke its Article 50 notice - European Court of Justice Advocate General delivers his opinion

Thursday, 13 December 2018
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Tuesday, 4 December 2018

In an opinion published today, Advocate General Manuel Campos Sanchez-Bordona has advised that Article 50 does permit the unilateral revocation of an intention to withdraw from the EU. This is so even though the UK Government is arguing that the question put before the ECJ is "hypothetical and merely theoretical", and the European Commission and European Council maintain that such a right for a Member State would create "endless uncertainty". The Advocate General has been persuaded by the contrary arguments based upon a textual analysis of Article 50 (which refers to the notification of the "intention" – and not the decision – to withdraw) and the sovereign right of a Member State, within its own constitutional constraints, to change its stance with respect to membership of the European Union prior to withdrawal without requiring the unanimous consent of the EU27. The power of unilateral revocation remains subject, in the opinion of the Advocate General, to a formal act of notification to the European Council, prior to Exit Day, given in accordance with national constitutional requirements (i.e. a direction to HM Government by the UK Parliament) and the principles of good faith and sincere cooperation.

It should be emphasised that this is not the final judgment of the ECJ on the matter. However, although non-binding, the ECJ normally follows the Advocate General's opinions, so this is a highly significant development at a time when the future of the draft Withdrawal Agreement hangs so finely in the balance, and is expected to influence the decisions of MPs in the "meaningful" vote on 11 December. We await the ECJ's final ruling with interest, although as yet no date has been provided for it. Once it has been delivered, the matter will have to return to the Scottish courts for final judgment. Timing will be key.

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Emily Tearle 
Travers Smith LLP
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+44 (0)20 7295 3396

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