We're expecting the CJEU ruling in Wightman - on whether the UK could rescind the Article 50 notification unilaterally - around 8am UK time. Some thoughts on what to look for.
First of all, the Court will have to rule on the UK's objection that this case is hypothetical.
First of all, the Court will have to rule on the UK's objection that this case is hypothetical.
If it agrees with the UK, that's it: there will be no ruling on the merits. There's a line of case law on this, in which there's a presumption that a case is not hypothetical, with the Court usually giving deference to national courts' view that their questions need an answer.
Next (unless the case is hypothetical), the Court should rule on the core question: can the notification be revoked unilaterally? The AG opinion said yes, but subject to some requirements including a 'good faith' rule that could be critical, but which wasn't well explained.
The AG opinion was also contradictory on the important question of whether unilateral revocation was still possible if the Article 50 period was extended, which is again critical as that would be a likely scenario if there was another referendum or general election.
The Court might also rule on whether revocation with consent of EU27 is possible (some assume it is, but Article 50 is silent on this too), and if so how that would work - ie whether a unanimous vote is needed or not. (There's no doubt that *extension* is possible with unanimity)
1 Analysis of the AG opinion: eulawanalysis.blogspot.com/2018/12/revoki…
2 Scottish legal background: eulawanalysis.blogspot.com/2018/11/scotch…
3 Legal arguments on both sides (and see the debate in the comments): eulawanalysis.blogspot.com/2018/01/can-ar…
2 Scottish legal background: eulawanalysis.blogspot.com/2018/11/scotch…
3 Legal arguments on both sides (and see the debate in the comments): eulawanalysis.blogspot.com/2018/01/can-ar…
Views differ on the political implications of whatever the Court says, and of the legal merits - especially if the Court says that unilateral revocation is possible, as that notion seems to infuriate some people.
Or the case is hypothetical: "Now I'll never know if I was right"
Or the case is hypothetical: "Now I'll never know if I was right"
And here's the CJEU press release - the Article 50 notification is unilaterally revocable by the UK:
The basic points in the judgment:
- case isn't hypothetical
- right to revoke Art 50 notice unilaterally until withdrawal agreement is concluded, *including any extension*
- revocation on basis of democratic process under national constitutional requirements, notified in writing
- case isn't hypothetical
- right to revoke Art 50 notice unilaterally until withdrawal agreement is concluded, *including any extension*
- revocation on basis of democratic process under national constitutional requirements, notified in writing
- if Art 50 notification is revoked, UK keeps existing status as Member State - ie opt outs, rebate etc
- no mention of good faith requirements or agreed revocation as an alternative, but the full text of the judgment may say more
- aaand the judgment's now out...->
- no mention of good faith requirements or agreed revocation as an alternative, but the full text of the judgment may say more
- aaand the judgment's now out...->
Full text of the CJEU judgment in Wightman - on the unilateral revocability of the Article 50 notification: curia.europa.eu/juris/document…
Blog post soon - but one important thing first...
Blog post soon - but one important thing first...
Congratulations to the litigants - joined by @thomasbrake and @ChrisLeslieMP - to the extraordinary tenacity of @JolyonMaugham against endless struggles - and to all who supported the case
