UK can withdraw unilaterally its Brexit Letter written under Article 50

04 Dec 2018

Advocate General Campos Sánchez-Bordona; Advocate General to the European Court of Justice has given his opinion on whether the UK can unilaterally withdraw its Article 50 letter, and it is “yes, UK can revoke its Art 50 letter without reference to any other EU state or institution”.

The Court of Session, Inner House, First Division (UK), referred the question of unilateral withdrawal of the Article 50 letter to the ECJ, the highest court in Europe. The precise terms of the referral was “whether a Member State which has notified the European Council of its intention to withdraw from the EU in accordance with Article 50 TEU may unilaterally revoke that notification and, if so, subject to what conditions”.

The reader will recall that the letter under Article 50 TFEU is that document which triggers a country’s exit from the EU.

It is worth noting that the UK Government sought to argue that the referral was inadmissible. Its argument was that the question of withdrawal of the Article 50 letter was hypothetical. The UK Government also argued that there was neither any indication or intention on the part of the UK Government or Parliament to revoke the letter.

The AG disagreed. He argued:

  1. the dispute or question was of obvious practical importance and not premature, academic or superfluous, and
  2. that the power to interpret EU law, including Art 50 lies within the final and definitive purview of the ECJ

The AG, having disposed of the jurisdictional points then gave his substantive opinion:

  1. that the ECJ, should, if asked, judge that the power to withdraw/ revoke the Article 50 Letter was unilateral.
  2. that the power to revoke was available to the UK at any time until the withdrawal agreement is formally concluded – ie UK Parliament ratifies the withdrawal agreement, provided
  3. the revocation is done in accordance with the UK’s constitutional arrangements.

The AG’s opinion is not binding on the court. But it does open the possibility to Parliament to reject the deal on the table and to vote to revoke the Article 50 were it so minded. If the ECJ then followed the AGs opinion (and such tends to be the case) then the UK would be back in the EU with all its opt outs and benefits (rebates etc) it currently enjoys.

A tempting prospect for some MPs, perhaps?

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