11 Dec 2018

Yes, We Can! Reversing Brexit is a Viable Option under Lisbon Treaty [EU Law]!

A rainy tale of two e-mails

The former Foreign Secretary and Mayor of London, Alexander Boris de Pfeffel Johnson, also known as “Boris Johnson”, was sitting on his chair in front of his laptop on a rainy February day in 2016. He had two word files in front of him.

With a scent of political mysticism, and a flash of destiny overwhelming his Etonian eyes, he had to choose which file to send to the Sunday Times, to file that will turn into an article that will grant him the key to his favorite immovable property – 10 Downing Street (also known to the masses as the place where the Prime Minister of the United Kingdom resides, dines and annoys officers of the Royal Mail through a genuinely fake letter box).

One article was championing the UK to remain in the European Union (“EU”), the other one a marvelous manifesto that campaigned for the UK to become, once again, the great knight of democracy outside the EU. The first letter was sent at 9.04 pm, the second letter at 6.32 pm. Two emails to shape the future. Two emails to change the political landscape of the Old Continent. Two emails to turn the wheel of events leading to this article that you are reading.

Alexander Boris de Pfeffel Johnson chose to campaign for the UK leaving the EU and the great campaigning efforts of a bicycling mayor triggered a Pandora box of events involving Europe, EU Law, business interests, and…pubs.

We shall not discuss politics with this article, but explore, in short, the vast reals of challenges Brexit is causing now – especially following yesterday’s Court of Justice of the European Union (“CJEU”) judgement.

What’s he that whishes so?[1]

Surely, when Henry V asked this crispian question on the dawn of the Agincourt battle he would have never fought that the great battle between his kingdom and the continent will be triggered by a referendum and the legal implications of its results.

The results of the referendum from 2016 caused a domino effect affecting various areas of British society. On 29 March 2017, the Prime Minister notified the European Council (“EC”) of the intention of the UK to withdraw from the EU. Months later, on 19 December 2017, a petition for judicial review was lodged in the Court of Session, in Scotland, in which the petitioners in the main proceedings – two members of the Scottish parliament (let’s call them “ The Scots”), one member of the UK Parliament and three members of the European Parliament  – seek a declaratory specifying whether, when and how that notification can unilaterally be invoked. The Scottish Court of Session was asked to refer a question on that issue to the CJEU for a preliminary ruling (the case is known as Wightman and Others v Secretary of State for Exiting the European Union).

However, the UK Secretary of State for the Exiting the European Union argued that the question was hypothetical and academic, in view that the Her Majesty’s Government will not revoke the notification. Furthermore, the question also involved the constitutional question on the relationship between the executive and parliament, and what consequences a rejection of a deal might cause to the UK.

In any way, following a number of court proceedings the question was eventually referred to the CJEU.

The application to the CJEU, on the 23rd of November 2018, posed the question: “Where, in accordance with Article 50 of the Treaty on European Union, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the European Union?”.

The (best) Intentions

Anyway, already on 4 December 2018, the Advocate General (“AG”) Campos Sánchez-Bordona in his opinion (“AG Opinion”) proposed that the CJEU should declare that Article 50 of the Treaty on European Union (“TEU”)  allows the unilateral revocation of the notification of the intention to withdraw from the EU, stating that it: ”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 constitutional requirements, is formally notified to the European Council and does not involve an abusive practice”.

It is rather interesting that the AG emphasized the word “intention” when notifying the withdrawal from the EU. According to the AG, an intention is, by its nature, “neither definitive nor irrevocable”. Of course, this might lead to a rather docile war of words, taking into consideration that the 8th edition of the Oxford Dictionary of Law gives a different interpretation of intention, which is “the state of mind of one who aims to bring a particular consequence”. It seems, accordingly, that the policy makers from Whitehall were studious philologists of the previously mentioned dictionary.

The AG emphasizes that a withdrawal from an international treaty, which is the reverse of a treaty-making power, is by definition a unilateral act of a State party and a manifestation of its sovereignty. Although, the AG’s opinions are not legally binding, the CJEU often tends to follow their recommendations, which proved to be correct on Monday.

The CJEU view

On Monday morning, the CJEU decided to give a judgement in line with the AG’s Opinion. It was noted in the judgement that a Member State has a right to revoke the notification of its intention to withdraw from the European Union for „[…] as long as a withdrawal agreement concluded between the European Union and that Member State has note entered into force or, if no such agreement has been concluded, for as long as the two year period laid down in Article 50(3) TEU, possibly extended in accordance with that provision, has not expired“. Furthermore, the CJEU reminded of the origins of Article 50 TEU which support an interpretation that a Member State is “entitled to revoke unilaterally the notification of its intention to withdraw from the European Union”.

It seems therefore, that nothing is final until it has entered into force and that Member States have the discretionary right to change their opinion until the very, conclusive withdrawal.

Lessons to be learnt

Brexit diplomats have expressed concerns on how Article 50 could be used in the future and yesterday’s judgement might be used as a tool for political tactics during a turbulent period for the EU.

This ruling is of utmost importance as it gives a political connotation to Article 50 and this is very its strength, as well as weakness lies. Remembering what the Attorney General of the UK wrote in his opinion of 13 November 2018: “[…] in considerating any international agreement, it is important also to take into account the changing political context in which it is to operate and that the solution to any essentially political question is rarely wholly or even predominantly legal”.

Theresa May scheduled a vote for the Brexit deal today (Tuesday). Due to the ruling, she already has delayed it in order to seek “further assurances” from EU leaders. A rejection of her deal will probably mean a fall of government and new elections that will lead the UK to political despair.

The judgement is fundamental for the interpretation of the meaning of Article 50 TEU and the consequences Member States may face following the enactment of Article 50. The question involving Article 50 will remain at the heart of the debate on the relationship between constitutional law and EU law, the founding values of the EU and how politics shape the law and vice-versa.

The CJEU stance is fundamental for the interpretation of the meaning of Article 50, and the right to withdrawal from the EU. Moreover, the ruling goes to the heart of what the EU is really about: a mixture of values, opportunities and politics.








[1] Although we are big fans of Shakespeare, we do not endorse his antagonism towards our profession and we condemn his literary statement: “Let’s kill all the lawyers”.