ECJ confirms that Article 50 is unilaterally revocable by the United Kingdom

Posted on 10 Dec 2018 by Brick Court

Maya Lester QC

The full court of the European Court of Justice has confirmed this morning that a Member State may revoke notification of its intention to withdraw from the European Union under Article 50 of the TEU unilaterally, without having to seek the unanimous agreement of the other Member States.  Case C-621/18 Wightman.

The ECJ’s expedited judgment states that the revocation of intention must be unequivocal and unconditional, decided on following a democratic process in accordance with national constitutional requirements, and must be communicated in writing to the European Council. Provided that occurs, a Member State retains its sovereign right to decide whether to withdraw from the EU. It may withdraw at any time until a withdrawal agreement has entered into force or, if no agreement has been reached, during the two-year period for negotiation (or any agreed extension).  In the mean time, the UK will stay in the EU on current terms.

The Court states that it would be inconsistent with the EU Treaties’ purpose of creating an “ever closer union among the peoples of Europe” to require unanimous approval of the Council, as the Commission and Council had proposed; that could force the withdrawal of a Member State which decides to revoke the notification of its intention through a democratic process, would transform a unilateral sovereign right into a conditional right, and would be incompatible with the principle that a Member State cannot be forced to leave the European Union against its will.

The Court also rejected the UK’s argument that the ECJ should not answer this question referred to it by the Scottish Court of Session because the question is hypothetical; as the ECJ judgment states, it is far from hypothetical and clarifies the options now open to MPs who will vote on ratification of the withdrawal agreement.

The judgment is here.