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1. On 10 December) the CJEU (aka the ECJ) gave its ruling in Case C-621/18 Wightman. It held that a Member State may unilaterally revoke the notice that it has given under Article 50 TEU to leave the EU, in accordance with its constitutional procedures.
2. I was not involved in the case in any way. Having seen some of the tweets on the subject over the last ten days, I offer – for what they are worth – the following short personal comments.
3. First, the Court of Session, which made the reference, had heard and rejected the UK Government’s argument that the case was hypothetical. The CJEU does not second-guess national courts on the application of national law.
4. The presumption from settled case law is that references are admissible and will be answered. The CJEU applied that settled case law and went on to the substance.
5. Second, the CJEU is clear that if a Member State sends an Article 50 letter to the Council, it is notifying its ‘intention’ to withdraw (that is the word used in the text of Article 50). ‘An intention is, by its nature, neither definitive nor irrevocable.’ (paragraph 49).
6. Third, the CJEU is very respectful of Member States’ sovereign rights, as regards both national constitutional procedures and inter-Member State relations. Here are four illustrations.
7. ‘The decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice’ (paragraph 50).
8. Revocation ‘reflects a sovereign decision by that State to retain its status as a Member State of [the EU], a status which is not suspended or altered by that notification’ (paragraph 59).
9. Thus, ’ … revocation is fundamentally different … from any request by which the Member State concerned might ask the European Council to extend the two-year period’ [which requires the unanimous approval of the other Member States] (paragraph 60).
10. Making revocation subject to the unanimous approval of the European Council would ‘transform a unilateral sovereign right into a conditional right … (ctd next tweet)
11. ... [That] would be incompatible with the principle … that a Member State cannot be forced to leave the European Union against its will’ (paragraph 72).
12. Fourth, the CJEU heard a lot of argument from the EU institutions about potential abuse. One of the negative possibilities identified was the tactical use in bad faith of [notification + revocation + re-notification].
13. However, the whole basis of the CJEU’s ruling is that Member States are expected to behave in good faith, in accordance with the reciprocal obligations set out in Article 4(3) TEU. That expectation applies also in relation to the UK.
14. Put another way: the CJEU refuses to assume ex ante that any Member State will behave in bad faith and make a bogus withdrawal of its earlier notification whilst still really intending to leave the EU after all.
15. Note, however, that the CJEU expressly stated that ‘the revocation … must … be submitted in writing to the European Council and … be unequivocal and unconditional …’ (paragraph 74).
16. ... ‘that is to say that the purpose of the revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end’ (paragraph 74).
17. Tactical revocation of an Article 50 notification to buy further time in which to try to tweak a deal that that has been offered could not plausibly, in good faith, be described as fulfilling the twin conditions that the revocation must be ‘unequivocal’ and ‘unconditional’.
18. Nor would its true purpose be ‘to confirm the EU membership of the Member State concerned’.
19. Advocate General Campos Sanchéz-Bordona did explore the arguments on potential abuse of rights and / or tactical revocations of an Article 50 notification (see points 149 to 156 of his Opinion).
20. The fact that the CJEU did not include a passage on potential abuse in the judgment cannot plausibly be construed as meaning that the Court was either unaware of that possibility or that, through its silence, it was prepared to condone such behaviour.
21. A final (important) point: in ruling authoritatively on what Article 50 TEU means, the CJEU is not ‘meddling’ in UK politics. It is fulfilling its mandate under Article 19(1) TEU and declaring the law. That is its job.
22. Whether or not the UK chooses to make use of a Member State’s right unilaterally to revoke an Article 50 notification is a matter for the UK to resolve, as a democratic sovereign state. (Ends – please feel free to RT)
