affiliated to the International Association of Constitutional Law
The CJEU’s ruling in C-621/18 Wightman and others clarifying that Member States can unilaterally revoke the withdrawal notification of Article 50 (2) TEU, is bound to have repercussions; in the case of Brexit and beyond.
In this piece I present my initial thoughts about the ruling and its possible legal and political implications. I argue that the CJEU’s ruling runs the risk of metamorphosing Article 50 from a ‘special protocol’, intended to be used only after serious reflection and with caution, into yet another political/negotiating arrow in the quiver of Member States.
According to my view, the formula that would ensure Article 50’s character as a ‘special protocol’, whilst not unduly limiting the sovereign rights of the departing MS to change its mind, should have the following characteristics : a) to advance a legally sound narrative; b) to permit the prospect of the reversal of the notification for withdrawal and c) but without creating perverse incentives that would lead to the ‘casualisation’ of Article 50 in the future, making the latter another ‘negotiating tool’ for Member States.
Ideally, the CJEU should have taken into account the impart of its interpretation of Article 50 TEU not only on the present case but more generally; namely its impact on the various other players whose reaction informs and affects the withdrawal process, for example the markets, and also its potential impact on the future possible use of Article 50 by other Member States.
Does the CJEU’s Interpretation fit these criteria?
The CJEU, following the AG’s Opinion, recognised the departing Member States’ right to revoke the notification of its intention to withdraw unilaterally during the period that it still has the status of an EU Member State, provided that such a decision is in line with the constitutional requirements of that Member State. However unlike the AG, who proposed an explicit conditionality of good faith in the exercise of this right- derived from the principle of sincere cooperation- the CJEU refrained from doing so, at least explicitly. Instead it simply stated that the revocation of the withdrawal notice must to be unequivocal and unconditional in the sense that its clear purpose should be the confirmation of the Member State’s EU membership and the end of the withdrawal procedure (paras. 74-75). The CJEU also clarified, that the period during which the MS can revoke its notification includes the extension of the withdrawal period agreed in accordance to article 50 (3).
In my view the CJEU’s ruling corresponds only to an extent to the formula that would prevent the ‘casualisation’ of Article 50.
Although the arguments for the existence of a right to revocation are by and large convincing, the arguments in favour of unilateral revocation are less so. Here are the reasons why:
First, the acknowledgement of a right of unilateral revocation means that the departing Member State is provided with a safety net which it can freely deploy. The knowledge of this fact may affect the negotiating stance of a departing Member State government in the future. It may lead in other words to a quite different approach compared with the cautious one that the UK government has adopted thus far. Furthermore, it may weaken the signalling from the markets, an important parameter for all the relevant players which particularly informs the choices of the departing Member State; perhaps markets would send weaker signals in the knowledge that the government has an unobstructed access to a ‘reset button.’
I believe that this interpretation of Article 50 raises the risk of ‘casualisation’ of the withdrawal process. Such a risk may not be evident with the current UK Government and perhaps this may explain the CJEU’s generous ruling in the present case. However, one needs not unbridled imagination to contemplate how Article 50 may be used in the future by other more audacious governments of populist persuasion. The temptation for considering the use (or the threat of use) of Article 50 as a tool for achieving concessions –as part of the Brussels political horse-trading habitat- is strengthened by the adopted interpretation because the decision to start the withdrawal process becomes less costly for the departing MS.
Furthermore, even in the context of Wightman I think that the recognition of the possibility for unilateral revocation of the withdrawal notification might do a disservice to the cause of the petitioners – who are trying to promote the cause of the UK remaining in the EU. Although they believe that a ruling confirming the possibility of unilateral revocation would assist their cause by showing that the process is reversible, in fact such a ruling could work against their intentions by strengthening the hand of the UK Government having an extra -secure- escape plan if things went badly. Moreover, it may weaken the signalling from markets –at a time where the Remain side needs strong negative market signalling to strengthen their case about the futility of Brexit wonderland.
Second, the requirement that the revocation be unequivocal and unconditional does not provide enough safeguards against the ‘casualisation’ of Article 50. Some thought experiments demonstrate the risks that ensue from this thesis: Is it possible for the Member State to change again its mind after the unequivocal and unconditional revocation of the first notification to withdraw? Following the CJEU’s logic, if the new decision to withdraw was taken in accordance with the Member State’s constitutional requirements, the answer must be affirmative. Otherwise the result would be that a State would remain in the EU against its will. How quickly can the Member State notify its new intention to withdraw? Can the Member State revoke it again? Based on the CJEU’s (current) position this sequence can continue ad infinitum.
Likewise, the idea that compliance with the constitutional requirements will function as a filter that prevents the proliferation of ‘tactical’ revocations, mentioned in the AG’s Opinion (para 156) and implicitly accepted by the CJEU, is not convincing either.
To begin with this observation is not entirely accurate in the case of the UK since it seems, at least-according to one plausible legal narrative, developed below- that the revocation can be effected by the Government without the need for Parliament’s authorisation -for the view suggesting that such revocation requires legislation see the excellent piece by piece by Phillipson and Young. This is because Parliament has not compelled the Government to proceed with the process of withdrawal. Section 1 of the EU (Notification of Withdrawal) Act 2017 reads: “The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU. Furthermore, the EU (Withdrawal) Act 2018 lies on the premise of a withdrawal process which began on the basis of the discretionary decision of the Government. Can the Government revoke this decision? I believe the answer is affirmative. This interpretation is supported by various provisions of the EU (Withdrawal) Act 2018. For example, although section 1 links the repeal of the European Communities Act 1972 with exit day, this provision cannot be construed in a way that necessitates such an exit day to ever occur (since there is no instruction by Parliament for Brexit to be effected); it simply explains what will happen to the ECA 1972 if and when exit day comes. Furthermore, the Act itself foresees the possibility for changing the exit day (currently set for 29 March 2019) by means of a regulation of a Minister (section 20 (4)). If such interpretation is followed this means that at least in the present case the constitutional requirements may not prove to be the buffer or the filter envisaged by the Court.
Even if we attempt to extract an implicit requirement for elections or a referendum from para 67 “…decides to revoke the notification of that intention though a democratic process” – a problematic proposition because it would entail the CJEU dictating what the constitutional requirements of Member States are- the situation would not change drastically. As suggested earlier it is perfectly conceivable, in this day and age, that episodes of the “withdrawal – revocation -withdrawal” sequence, described above, can be synchronised with national elections.
Alternative interpretations that would prevent the ‘casualisation’ of Article 50
I believe there are other interpretation that do not preclude the revocation of the notification but which at the same time minimise the risk of turning Article 50 into a political/negotiating arrow in the quiver of Member States. The interpretation of Article 50 which meets these parameters is the possibility to revoke the notification but with the approval of the Council.
Both the Court and the AG argued against this interpretation because it entails a veto right for every Member State which if exercised would in effect lead to the forced exit/expulsion of the Member State (in this case the UK) against its will.
The observation that under international Law a State who wants to remain in an organisation cannot be denied this right is correct but misses a significant contextual parameter in the case of Article 50. If a Member State is not absolutely certain that it desires to leave the EU, it should not trigger the process of withdrawal in the first place. Experimentation with Article 50 is certainly an attitude that the EU legislator wanted to discourage. Article 50 is a “special protocol” which ensures that the decision to proceed is unequivocal and thought through. In other words, the knowledge that Rubicon cannot be un-crossed (or at least not easily or without consequences) should inform the decision to cross it in the first place. This is clearly, in my view, the intended aim of Article 50 as it stems from the travaux préparatoires, the contextual, systemic and teleological interpretation of the provision and although I agree that it would be disproportionate to deny a MS the possibility of changing its mind, the recognition of the notification’s revocability should be accompanied by safeguards that do not undermine the role of Article 50 as a “special protocol” in the system of the Treaties.
Perhaps the Court considered that the UK’s ‘humbling’ experience during the Brexit negotiation provided a lesson to other Member States who may consider using this article without clear understanding of the consequences. Such a view is valid, but misses an important point. The ‘humbling’ experience of the United Kingdom was informed to a large extent by the signalling that the negotiating parties have been receiving from other important players, such as the markets. As I have argued elsewhere, the markets’ reaction has been informed so far by a belief or impression that the ‘clock is ticking’ –also an assumption of the UK Supreme Court in Miller (para 26)- in the sense that without a negotiated solution at the end of the two year period there was no safety net that could be deployed by the United Kingdom on its own. I believe that the interpretation of the Court might not guarantee a similar intensity of signalling from the markets (now knowing that there is the safety button) which could embolden Member States to play politics with Article 50 without consequences.
Revocability subject to Council’s Approval: Conditionalities and Safeguards
Despite the CJEU’s ruling, the case for revocability subject to Council’s approval remains strong and is, in my view, the preferable interpretation for avoiding the metamorphosis of Article 50 into another negotiating device. I concur with Professor Weiler’s view that plausible legal narratives could be advanced in support of either of the two possible voting methods, namely unanimity and qualified majority. If the Council’s approval was subject to qualified majority voting then the concerns regarding the possibility of anyone of the remaining 27 Member States blocking the approval would not arise. Moreover, I argue that even if the Council’s approval required unanimity there are conceivable safeguards to ensure that MSs did not abuse their position as veto players.
First, I believe that the principle of sincere cooperation (Article 4 (3) TEU) would apply in this case.
Second, the will of the departing Member State can change truly and in an unequivocal manner only when fundamental parameters underlying its withdrawal decision have changed. This is the case for the UK. The revocation of the withdrawal decision will take place only when a large majority of the electorate will realise the futility of Brexit. Unfortunately, this cannot occur only with forecasts, which by and large are discarded as ‘scare-mongering’ but requires painful experience. In such a case I believe that the general principle of solidarity between Member States enshrined also in Article 222 (b) TFEU, applied directly (man-made disaster) or by analogy, would require the remaining 27 Member States to provide their assistance in the form of securing the revocation’s approval.
I believe that the CJEU’s ruling, unintentionally, has tied the Brexit gordian knot even tighter instead of unravelling it. Even if a new referendum, carried out prematurely, led to a marginal victory for Remain the Brexit proposition would still be lingering as a result of the CJEU’s ruling. Another party could promise before another general election to restore singlehandedly the ‘true’ will of the people (a scenario which would be compatible with the constitutional requirements of the UK).
In Euripides’ Iphigenia in Aulis the innocent heroine is led to believe that she is about to marry the most glorious of all the warriors of the ancient world, Achilles. She eagerly prepares for this splendid and happy occasion, despite warning messages suggesting that all is a ploy. Only when she arrives before the altar, reality reveals itself. The heroine according to the myth is saved by Goddess Artemis who, moved by Iphigenia’s ordeal, replaced Iphigenia, at the last minute, with a deer. I am afraid that that CJEU’s ruling is not a deus ex machina intervention for resolving Brexit. Unwittingly, it may contribute to the continuation of Iphigenia’s carefree preparations.
The author would like to thank Professor Alison Young, Professor Petros Mavroidis and Dr Vassilis Tzevelekos for their useful feedback. The usual disclaimer applies.
Dr Aris Georgopoulos, Assistant Professor in European and Public Law – Advocate, University of Nottingham, School of Law
(Suggested citation: A. Georgopoulos, ‘Revoking Article 50 TEU (C-621/18 Wightman and others): “Iphigenia Must Reach the Altar”’, U.K. Const. L. Blog (17th Dec. 2018) (available at https://ukconstitutionallaw.org/))