A thread on the AG's Opinion in Wightman. The AG says that the A50 notification is unilaterally revocable; subject to some conditions. If the CJEU follows suit, it will mean that there is no significant EU law impediment to revocation. 1/24
This thread discusses the AG's Opinion. It's quite long... For some context, see this from Sunday: 2/
The Opinion is here: curia.europa.eu/juris/document… 3/
The admissibility of the action is dealt with in para 32-57. The AG quickly rejects the UK's argument. He is explicit (at para 45) that the answer will enable MPs to know whether there is a 'third way' available. His answer suggests the choice is the deal, no deal, or remain. 4/
He says that it is A50 which sets out the applicable law (rather than the Vienna Convention), though accepts that the Convention may provide interpretative guidelines (para 82). 5/
He says that A50 must be analysed 'in its context, that is by ascertaining its meaning having regard to its rationale, within the broadest normative framework of which it forms part' (para 90; and 129 to 137). 6/
A decision to withdraw the notification is, strikingly, said to be a manifestation of State sovereignty (para 93). Alternative readings of the normative framework are possible; for me, the AG is persuasive here. 7/
He discusses the notification of the *intention* to withdraw in accordance with constitutional requirements; and accepts that subsequent events may displace the original intention. The UK may therefore, he argues, 'deactivate' the notice (para 97-117). 8/
He dismisses the contrary arguments of the Commission and Council (essentially that the post-notification phase is multilateral; and that revocation would therefore need the agreement of the EU) at para 118-128. 9/
In para 142-156, he discusses the conditions to which the revocation is subject. There is, quite rightly, going to be a lot of focus on these paragraphs, which may limit the UK's ability to revoke the notification. 10/
First, he says that the revocation of the notification must be carried out by means of a formal act of the Member State addressed to the European Council (para 143). I see no issues with this. 11/
Second, national constitutional requirements must be respected (para 144). These fall to be determined by each State (para 145). The rest of the para, in which the AG speculates on the UK constitutional requirements, appears to me to be an overreach. 12/
In my view, it must be for the UK to decide whether (following Miller) Parliamentary approval is needed in order to revoke the notification. The AG's view that it would be logical to require Parl approval, cannot be decisive. 13/
It is only possible to revoke the notification 'within the two-year negotiation period' (para 147). I take this to mean that the UK could not, for example, seek to revoke the negotiation once it was in transition. 14/
Next... the big one. A further limit on the exercise of the right of unilateral revocation arises from the principles of good faith and sincere cooperation (para 148). It is very interesting to think about how these might play out. 15/
The AG is alert to the fact that unilateral revocation might tilt the balance in favour of the withdrawing state (see para 149 and 150). The withdrawing state could halt the negotiations if they are not favourable to it. 16/
It could revoke and resubmit. It could engage in 'tactical revocations'. But the AG is firm that the possibility that a right may be abused or misused does not provide a reason to deny the existence of a right (para 152). 17/
There is, he notes, a general principle of EU law that abusive practices are prohibited (para 153). He states that there is nothing in the question referred to suggest the misuse of the power to revoke the initial decision (para 155). 18/
Para 155 continues: 'Moreover, any abuse could occur only when a second notification of the intention to withdraw is submitted, but not by unilaterally revoking the first.' 19/
Para 156 suggests that the requirement to follow constitutional requirements would 'act as a deterrent in order to prevent the abuse of the withdrawal procedure laid down in Article 50 TEU through such tactical revocations'. 20/
I expect a lot of arguments here. My view is that the AG is right to highlight the role which constitutional requirements play here; and also right to say that it may well be that a future second notification is held to be abusive. 21/
But, his Opinion leaves a number of questions open. These may be addressed by the CJEU in its judgment. Or, more likely I think, they will be left to be decided in the political arena, subject to judicial review. 22/
In sum... the conditions attaching to revocation are minor. It is clear that a good faith decision of the UK to remain in the EU, made in accordance with constitutional requirements, is, under the AG's approach, possible. 23/
The big question is whether MPs are willing and able to grasp this opportunity. And on that front, there is still a long way to go. 24/24
