In a judgement delivered on Monday 10 December in the ‘Wightman’ case (C-621/18), the European Court of Justice (ECJ), sitting in plenary session, ruled that the United Kingdom could unilaterally revoke its decision to leave the EU.
The ECJ thus follows the conclusions of Advocate General Manuel Campos Sánchez-Bordona (see EUROPE 12152).
In the present case, at the request of several British Members of Parliament, a Scottish court referred to the Court of Justice of the European Union (ECJ) the question of the revocability of a State's decision to leave the EU and the conditions to be met for a possible unilateral revocation, with a view to the British Parliament's vote on the withdrawal agreement negotiated by the Kingdom's government with the EU.
Like the Advocate General, the ECJ considers that Article 50 of the Treaty on European Union (TEU) “does not explicitly address the subject of revocation of the intention to withdraw”.
Principle of congruent forms and right to revocation
This lack of “express provision" creates the conditions for the principle of congruent forms, according to the European judges. Like the decision to withdraw, its revocation must therefore be "decided unilaterally, in accordance with the constitutional rules of the Member State concerned".
“The sovereign nature of the right of withdrawal argues in favour of the existence of a right for the Member State concerned, as long as a withdrawal agreement has not entered into force, to revoke the notification of its intention to withdraw from the Union", argues the ECJ.
"Submitting, as proposed by the Council and the Commission, the right of revocation to approval by the European Council, by unanimity, would transform a sovereign unilateral right into a conditional right”, the judges still consider, thus head-on opposing the pleadings of the two institutions.
Conditions
In addition to the substantive conditions (unilaterality and compliance with constitutional rules), the Court provides for two formal conditions for the revocation of the withdrawal decision: its “univocal and unconditional” nature and its notification to the Council.
For lawyers Catherine Barnard and Steve Peers, the need for a “unambiguous and unconditional" decision suggests that the notice of revocation should stipulate that the United Kingdom wishes to terminate the procedure and renounce any renegotiation of a withdrawal agreement.
As interpreted in this way, this condition responds to the fear expressed in particular by Jo Leinen (S&D, Germany) that the United Kingdom would be offered the possibility of "stopping the procedure against the will of others to restart it from scratch".
Commission, Council and UK Government in unison
The Council and the Commission stated that they “took note” of today's decision.
"We have an agreement that has been validated by the Council. It is the best and only possible, as Mr Juncker said. As far as we are concerned, the United Kingdom will leave the EU on 29 March 2019", said Commission spokesperson Mina Andreeva.
The same is true of the British Secretary of State for the Environment, Michael Gove, who pointed out that the United Kingdom did not wish to remain in the EU and that Brexit would indeed take place.
Alyn Smith (Greens/EFA, UK), on the contrary, welcomed the ECJ ruling, referring to “a light at the end of the tunnel for the economy, employment and the UK's place in the world”. “The ball is now in the British court”, he said.
The vote of the deputies, which was supposed to take place the next day, has been postponed to 21 January 2019 (see other news).
The full text of the ECJ judgement is available in English at: https://bit.ly/2zU3Cwf. (Original version in French by Mathieu Solal)