Article 50 of the Treaty on the European Union (TEU) allows for the unilateral revocation of the notification of the intention to withdraw from the EU, according to the conclusions delivered on Tuesday 4 December by Advocate General Manuel Campos Sánchez-Bordona in Case C-621/18.
In the present case, at the request of several British members of parliament, a Scottish court referred to the European Court of Justice (ECJ) the question of the revocability of a State's decision to leave the EU and the conditions to be met for possible unilateral revocation.
The Scottish Court's objective is to offer a “comprehensive vision” to British parliamentarians who are due to vote on 11 December on the agreement negotiated by their government with the EU, taking stock of the possibility of a “third way”.
Unlike the British Government, Advocate General Campos Sánchez-Bordona considers the Scottish Court's application to be admissible, in so far as it “is of obvious practical importance”.
In absence of an answer to the question raised in the European treaties, the Advocate General relies on the Vienna Convention on the Law of Treaties (1969), considering Article 68 as the “inspiration” for Article 50 of the TEU.
Article 68 of the Vienna Convention provides: “[instruments for which the object is to achieve the withdrawal of a treaty] may be revoked at any time before they have taken effect.
Mr Campos Sánchez-Bordona also pleads for the principle of congruent forms: since the decision to leave the EU is a unilateral act demonstrating a State's sovereignty, the revocation of this decision must be a similar act, in his view.
Under the second paragraph of Article 50 TEU, the Member State notifies its “intention” to withdraw - and not its decision - “it being understood that intentions may vary”, notes the Advocate General.
The latter also relies on the judgment delivered on Wednesday 19 September 2018 by the ECJ in Case C-327/18 PPU (see EUROPE 12099), which states that the European arrest warrant system is applicable to the United Kingdom until Brexit, to consider that the United Kingdom “continues to be a member of the Union in all respects” and cannot therefore be forced to leave it.
Conditions and limits
Persisting in its application of the legal principle of the principle of congruent forms, Mr Campos Sánchez-Bordona considers that the revocation of the withdrawal must be carried out by means of a formal act, in the same way as the withdrawal itself.
The same applies to compliance with the Member State's constitutional rules, which are laid down in the first paragraph of Article 50 of the TEU, and which must therefore be ensured when the withdrawal is revoked, according to the advocate general. In the present case, parliamentary approval would therefore be required in support of the formal act of waiver of withdrawal.
Revocation would also be subject to a time limit condition, i.e. only possible during the negotiation period and should finally respect the principles of good faith and loyal cooperation to avoid being tainted with abuse.
Controversy(ies)
The Advocate General's interpretation of Article 50 of the TEU differs from the one proposed by the Council and the Commission, which envisage unanimity in the Council for the revocation of the United Kingdom decision as the only hypothesis for a return on the activation of Article 50.
For Mr. Campos Sánchez-Bordona, this possibility is incompatible with Article 50 of the TEU, since it would deprive the Member State of its right to remain in the Union and thus violate its sovereignty and constitutional rules by granting a right of veto to each of the other 27 Member States over a decision that should depend on its “will”.
Jo Leinen (S&D, Germany), member of the European Parliament Constitutional Affairs Committee, believes that the Advocate General is “lost” in his reasoning.
Refuting the Advocate General's use of the Vienna Convention, he deplored the possibility of an "EU hostage-taking" induced by the recognition of a right to unilateral revocation.
The possibility for a Member State to “stop the procedure against the will of others to restart the whole process again” would give it a “disproportionate advantage”, according to Mr Leinen.
The ECJ is expected to deliver its judgment on the case before the UK Parliament's vote on the withdrawal agreement, scheduled for 11 December. (Original version in French by Mathieu Solal)