Brick Court Chambers

Brexit Law Blog: Archive

This blog tracked legal issues arising from Brexit. It ran from the referendum in 2016 to last post in May of 2021.

EU Advocate General says UK’s Article 50 notice of intention to leave EU can be unilaterally revoked

Posted on 04 Dec 2018 by Brick Court

The Spanish Advocate General Campos Sánchez-Bordona today published his opinion in in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union. Opinion here and press release here.

The Advocate General agreed with the petitioners (who are mainly Members of Parliament) that when a Member State has notified the European Council of its intention to withdraw from the European Union, Article 50 of the Treaty on European Union allows the unilateral revocation of that notification, up until the withdrawal agreement is concluded. This is so provided that the revocation has been decided upon in accordance with that Member State’s constitutional requirements, formally notified to the Council, and does not involve an abuse of the right.  He rejected the argument of the EU institutions (the Council and Commission) that all the other Member States would have to agree (in a unanimous Council decision) for there to be a valid revocation of an intention to withdraw.

The Advocate General rejected the UK Government’s position that the ECJ should decline to answer the question referred to it by the Scottish Court of Session for a preliminary ruling on the proper interpretation of Article 50.  The UK said the issue was hypothetical and theoretical.  The Opinion disagrees and says the practical consequences of the case are “undeniable”; a decision by the UK to remain in the EU “in the face of an unsatisfactory Brexit” is a valid option in EU law and the case will clarify options for MPs when they vote. This Opinion does not bind the ECJ, which will deliver its judgment soon.

Maya Lester QC acted for Wightman and the other petitioners, instructed by the Good Law Project.