In advance of the Wightman ruling, some EU law-based observations on the difficult position the CJEU finds itself in, and the possible political implications. Much of this is inspired by @KatySowery's excellent thesis I examined a few days ago. 1/
The question before the Court is whether the UK can revoke its A50 notification, and if so under what conditions. The political salience is obvious. As is the fact that the text of A50 provides no answer (indeed, it is altogether silent on revocation). 2/
The legal arguments have been made by @JolyonMaugham and others; and we await first the Advocate General's opinion (in the next days), then the judgment of the Court (probably in mid December). 3/
I am among those who think that the notification is (on balance) revocable; my arguments, together with other better ones, are summarised here. europeanlawblog.eu/2018/09/24/can… 4/
I want to leave the substance to one side for now, and just look at whether the CJEU should purport to 'fill in the gaps' of the A50 text, and determine its meaning, or whether it should instead defer to the political institutions, including the European Council. 5/
There are many similar instances; think back to the provisions on free movement (eg Cassis), on citizenship (eg Dano), on EMU (eg the OMT case), etc. The Court's approach is inconsistent. It is difficult to discern clear patterns in its reasoning. 6/
On some occasions it appears to defer to the political institutions; on others to insist on its reading of the text and spirit of the Treaties. My guess is that Court will be divided again in this case, with different judges wanting to take different approaches. 7/
On the one hand, it is for the Court to interpret the Treaties. A50 is not clear. The EC guidelines have not clarified the revocability question. Surely the Court can and should tell us all how A50 is supposed to operate? 8/
On (inevitably) the other hand, should the Court plug the gap? Is revocability better seen as a political rather than a legal question? Are the Member States not able to decide how A50 is to work? 9/
Both approaches have appeal. But my instinct is that the Court might opt to, in effect, delegate the final decision making authority to the European Council. This could be done in several ways: 10/
It could rule that a) the question is hypothetical, and see what evolves; b) A50 can be revoked, but only with the consent of the EU-27; or c) A50 can be revoked unilaterally, but subject to conditions. 11/
In each of these ways, it allows politics to play its course, while retaining the ability to rule on the decisions of the European Council at a later date. I think that @ProfKAArmstrong has argued something similar? 12/
My guess is that any outcome other than c) above will disappoint remainers. I would certainly prefer c). But a) and b) would not be bad outcomes either. 13/
So long as the CJEU does not rule than the A50 notice cannot be revoked under any circumstances (and my understanding is that this has not been argued by either side), revocation will be possible, under a procedure to be agreed with the EU-27. 14/
And if my thoughts on the stance of the CJEU is right, it is, ultimately, likely to endorse the process established by the UK and the EU; subjecting it only to a relatively low standard of judicial review.
All thoughts very welcome. 15/15
All thoughts very welcome. 15/15
