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The UK can unilaterally revoke its Article 50 Notice (so it is argued ….)

Andrew Hood
06/12/2018
In the Opinion of the Advocate General of the European Court of Justice (the CJEU), a Member State, after notifying its intention to withdraw from the European Union, may revoke that notification

In the Opinion of the Advocate General of the European Court of Justice (the CJEU), a Member State, after notifying its intention to withdraw from the European Union, may revoke that notification unilaterally. However, any such revocation for the UK's present purposes would require the approval of Parliament.

The full Opinion of the Advocate General, issued on Tuesday 4 December 2018, can be read here.

Background and summary

On 29 March 2017, the UK notified the European Council of its intention to withdraw from the EU by giving notice under Article 50 of the Treaty of the European Union. 

On considering whether the UK can legally revoke its Article 50 Notification, a Scottish court requested a preliminary ruling from the CJEU (the supreme interpreter of EU law) to dispel uncertainty regarding an issue which Article 50 has not resolved.  The UK argued that the Court should not consider such a request on the basis, according to the UK, that this was a "hypothetical scenario".  The EU Council argued that the UK should not be able to unilaterally rescind its Article 50 notification and so remain in the EU as of right.

Article 50 governs the first stage of the procedure of withdrawing from the EU but makes no express provision for withdrawing a notification issued under Article 50.  The Advocate General's Opinion therefore considers the application of Article 50 in light of its purpose and historical context, as per the interpretations advanced both against and in favour of Article 50 notifications being revocable, and concluded that notification of intention may be revoked unilaterally under Article 50 subject to certain conditions and limits. 

The first condition is a formal one. Like the notification of the intention to withdraw, the revocation of that notification must be carried out by means of a formal act of the Member State addressed to the European Council (Article 50(2)). The opinion advises that the revocation, like the notification of withdrawal, is a formal act relating to the life of a treaty and there must be a procedural parallel between the two.

The second condition is that the action accords with national constitutional requirements. The opinion advises that the Member State’s constitutional law requirements which applied to the adoption of the decision to withdraw, subsequently notified to the European Council (Article 50(1)), should also be respected if the Member State decides to revoke that notification.

The Opinion advises that the issue of constitutionality is one that falls to the Member State to determine, but if the national constitutional requirements include, for example, prior Parliamentary authorisation for the notification of the intention to withdraw from the European Union, in the  Advocate General's Opinion, the revocation of that notification would also require Parliamentary approval. 

The Opinion concludes that when a Member State has notified the European Council of its intention to withdraw from the European Union, Article 50 allows the unilateral revocation of that notification, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and is done in good faith.

The Opinion of the Advocate General, if followed by the Court itself, adds to the political dynamics in the UK on whether to accept the draft Withdrawal Agreement and, if not, the options open to the UK as it decides on what it wants its future relationship with the EU to be.

 

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