Why the European Council Must not Reject an Article 50 Extension ... verfassungsblog.de/why-the-europe… via @Verfassungsblog
@Verfassungsblog In this blog I argue that, because of the Benn Act, and in light of the ECJ's Wightman judgment, the European Council cannot refuse an Art 50 extension as a matter of EU law. 1/
@Verfassungsblog In Wightman the ECJ stressed that Art 50 has two objectives, the second of which is to promote an organised withdrawal. The ECJ also pointed to the effects on citizens rights. A no-deal Brexit is, in the current circumstances, in breach of that objective. 2/
@Verfassungsblog The ECJ also found that the UK can revoke its notification, but has to do so in accordance with its constitutional requirements. This means that respect for the leaving State's constitutional requirements pervades the Art 50 process. 3/
@Verfassungsblog The ECJ also highlighted democracy as an EU value, and referred to a potential revocation decision "as expressed through democratic process". The Benn Act lays down that the UK's sovereign Parliament does not wish to exit without a deal. 4/
@Verfassungsblog A refusal to recognise the withdrawing State's sovereign right to revoke would mean that that State could be forced to leave against its wish, the Court stated. If the European Council rejects the extension the effect would be the same. 5/
@Verfassungsblog The ECJ also found that the drafting of Art 50 shows that the idea of a Member State's expulsion was expressly rejected. 6/
@Verfassungsblog The unanimity requirement for an extension does not contradict this argument. The European Council can decide on length, and on any conditions. It makes sense for this to be done unanimously. 7/
@Verfassungsblog One cannot exclude cases where an extension is refused, for example because it is clearly tactical. But the European Council must look at the balance of interests. 8/
@Verfassungsblog A further extension may be politically and institutionally inconvenient. But a no-deal Brexit risks having negative or even catastrophic real-life consequences for millions of citizens, and for businesses, also on the EU side. 9/
@Verfassungsblog The European Council decision is one with huge impact. The EU is governed by the rule of law, and all acts are subject to judicial review. Such a decision must be reasoned, and could be challenged. 10/
@Verfassungsblog It is even questionable whether there is a need for a formal extension request. The Benn Act is wholly clear, and Art 50(3) does not speak about a request, but only about an extension "in agreement with the Member State concerned". 11/
@Verfassungsblog The US Supreme Court once said that the Constitution is not a suicide pact. Likewise, Art 50 in no way promotes a disorderly no-deal with potentially catastrophic consequences. END
