UK Can Unilaterally Reverse Brexit – ECJ

by Samuel Abasi Posted on December 10th, 2018

Luxembourg : Britain can unilaterally decide not to leave the European Union, ECJ, the bloc’s top court ruled on Monday, one day before British lawmakers are due to vote on the Brexit deal London has struck with Brussels.

The ruling is expected to boost the cause of those seeking a second referendum on Britain’s departure from the EU, potentially weighing further against the already slim chance of British Prime Minister Theresa May getting the deal through parliament

The decision to reverse Brexit would be a “sovereign” choice, the European Court of Justice (ECJ) argued. Subjecting it to the approval of other member states could end up forcing Britain to leave “against its will,” the court said in a statement.

The petitioners, who initially brought the case before the Scottish courts, had asked whether Britain can reverse its decision to trigger the Brexit countdown, arguing that lawmakers should be aware of all options when they cast their Brexit votes.

The British government had sought to have the case dismissed, arguing that the question is purely hypothetical since it has no intention of reversing Brexit.

But the Luxembourg-based judges rejected that argument.

The case was handled under an expedited procedure due to the tight Brexit time frame. Britain is due to leave the EU on March 29, 2019, two years after May invoked Article 50 of the EU treaty, triggering the countdown.

If Britain were to end the Brexit countdown – a decision that would have to be taken in line with democratic process and constitutional requirements – it would remain an EU member “under terms that are unchanged,” the court found.

The decision could be taken at any point before Britain’s withdrawal agreement – the legal text detailing its terms of departure – enters into force, or before the Brexit countdown period has ended, on March 29 or later, if it is extended.

The judges said it would be “inconsistent” with EU law to subject that decision to the unanimous approval of the other EU members, as Brussels has wanted. This would be “incompatible with the principle that a member state cannot be forced to leave the EU against its will.”

The ruling is broadly in line with the recommendations of Advocate General Manuel Campos Sanchez-Bordona, a top advisor to the court.

It could, however, open the way for disgruntled member states to trigger Article 50 in future, in the hope of negotiating better membership terms.

The British parliament is due to vote on Tuesday on the withdrawal agreement as well as a political declaration outlining joint ambitions for the future relationship between Britain and the EU.

May, whose Conservative Party is deeply divided on Brexit, has faced an uphill struggle to sell the deal to parliament. Hardline eurosceptics fear that it binds Britain too closely to the EU, while those in favour of a softer Brexit say it goes too far.

EARLIER : UK Can Revoke Article 50 Unilaterally – ECJ Advocate General

The UK can unilaterally revoke its withdrawal from the EU, according to the European Court of Justice Advocate General’s legal opinion in a press release today. The Advocate General opinion is endorsed by the full judgement of the ECJ in 80 percent of cases

Advocate General Manuel Campos Sanchez-Bordona rejected the contention that Article 50 only allows the possibility of revocation following a unanimous decision of the European Council.

Instead, he said Article 50 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”.

The case to decide whether an EU member state such as the UK can decide on its own to revoke the Article 50 withdrawal process, or whether the agreement of the 27 other member states would be required, was brought by a cross-party group of Scottish politicians.

The opinion, which is not binding on the court, comes just a week after the case was heard at the ECJ following a referral from Scotland’s highest civil court, the Court of Session.

A judgment by the court will take place at a later date.

A statement from the ECJ said: “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.”

Those who brought the case argued unilateral revocation is possible and believe it could pave the way for an alternative option to Brexit, such as a ‘People’s Vote’ to enable remaining in the EU.

Legal representatives for the UK government argued the case is inadmissible as it deals with a hypothetical situation, since the government’s policy is not to revoke Article 50.

Lawyers representing the Council of the European Union and from the European Commission argued revocation is possible but would require unanimous agreement from all member states.

The case was brought forward in February by a group of Scottish politicians – Labour MEPs Catherine Stihler and David Martin, Joanna Cherry MP and Alyn Smith MEP of the SNP, and Green MSPs Andy Wightman and Ross Greer, together with lawyer Jolyon Maugham QC, director of the Good Law Project.

Their request for the Court of Session to refer the question of whether Article 50 can be unilaterally revoked to the ECJ was initially refused, before that ruling was overturned on appeal.

Two attempts by the UK government, which is contesting the case, to appeal against the referral to the European court were rejected.

At the hearing last week, Aidan O’Neill QC, representing the politicians who brought the case, said they need to know all their options on Brexit, including whether the UK can unilaterally halt the process ahead of critical votes on the withdrawal agreement.

Advocate General for Scotland Lord Keen QC, representing the UK government, said the case is a “hypothetical validity challenge” and those behind it seek “political ammunition to be used in, and to pressure, the UK Parliament”.

Hubert Legal, representing the Council of the European Union, said allowing unilateral withdrawal could lead to “disaster”, of which “the main victim could be the European project altogether”.

He said Article 50 is “not ambiguous”, adding: “The prerogative of acting alone will have been exhausted by putting the notification letter on the council’s table.”

Meanwhile, the UK parliament today begins five days of debates before voting next week on the proposed Brexit deal agreed by British Prime Minister Theresa May with the EU.

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