Last week was difficult for beleaguered UK Prime Minister Theresa May. Despite having concluded a Withdrawal Agreement with the European Union, she had to postpone the ‘meaningful vote’ on the deal in parliament until January as the Government was facing a 150+ vote defeat. To make matters worse, she faced a no-confidence vote by her own party, with 117 MPs (over a third of Conservative MPs) voting against her. Lastly, she was rebuffed by the EU-27, who considered that it was not even worth signing a statement clarifying the status of the now infamous ‘Irish backstop’, given the likelihood (or lack thereof) of the deal actually getting through parliament.
With widespread opposition to the deal across the House and open revolt within her own party, there is increasing concern over what will happen should MPs vote down the agreed deal. Would rejection of the Prime Minister’s deal result in a disorderly ‘no-deal’ Brexit, or could the UK subsequently decide to cancel Brexit altogether? The options available to MPs would depend greatly on the ability of a Member State under Article 50 of the Treaty on European Union (TEU) to unilaterally revoke its decision to leave the EU, or whether such revocation required the agreement of the other 27 Member States. In December 2017 the petitioners in Case C-621/18 Wightman (consisting of members of the UK, Scottish and European Parliaments) sought a declaratory judgment specifying ‘whether, when and how’ Article 50 TEU could be unilaterally revoked. After an initial reference was denied at the first instance, an appeal was made and on 21 September 2018 the higher court referred the question to the Court of Justice. Using the expedited procedure, the Court delivered its judgment on 10 December 2018, less than three months after the initial reference was made.
The Court begins the judgment by dismissing the admissibility arguments of the UK, European Commission, and Council. The case cannot be considered as hypothetical, as the only consideration that needs to be made is whether an answer is required of the Court in order to resolve a genuine dispute at the national level. The Court holds that there is indeed a dispute before the national court, despite the UK Government declining to provide arguments as to the substance of the case, and the question is relevant because it concerned the interpretation of EU primary law. So long as that dispute is permitted under national law, and the question is required for the purpose of settling it, it is not relevant that the applicants were seeking a declaratory remedy (see paras. 30 - 33). Lastly, the Court finds that the referring court was not circumventing Article 218(11) of the Treaty on the Functioning of the European Union (TFEU) by referring a question, as the national court was not disputing the compatibility of the agreed Withdrawal Agreement with the Treaties, but rather simply asking for the interpretation of a provision of EU law which is necessary to resolve a dispute before it (para. 35).
The Court addresses the substance of the case by first emphasising the autonomy of EU law and explaining the interpretative approach of the Court, based on the wording, historical context, and purpose of the legal provision at hand. In terms of its wording, Article 50 TEU neither prohibits nor expressly authorizes its revocation. Furthermore, Article 50(2) refers to the decision of the Member State to notify the European Council of its intention to leave, which can never be definitive or irrevocable. The decision to withdraw is for that Member State alone, and ‘depends solely on its sovereign choice’ (paras. 48 – 50).
The Court then moves on to consider the purpose of Article 50 TEU. According to the Court, the provision (i) enshrines the ‘sovereign right’ of a Member State to withdraw from the European Union, and (ii) establishes a procedure to enable such withdrawal. As Advocate General Sánchez-Bordona also considered, the ‘sovereign nature’ of the withdrawal process supports the conclusion that the Member State can revoke the notification of its intention to withdraw from the European Union right up until the two-year period under Article 50(3) TEU expires (paras. 56 – 58).
Further elaborating on this ‘sovereign right’, the Court emphasises the values of liberty and democracy contained in the preamble and Article 2 TEU, to which the Member States have ‘freely and voluntarily’ committed themselves. Moreover, withdrawal is liable to have a ‘considerable impact’ on the rights of EU citizens, intended to be the ‘fundamental status of Member State nationals’, including their right to free movement. These values would be undermined, and concrete rights stripped away, if a Member State could indirectly be forced to withdraw from the EU involuntarily, for example if the other Member States refused to accept such revocation (paras. 62 - 65).
The Court also considers the historical context of Article 50 TEU, which is largely based on the wording of the withdrawal clause in the draft Treaty establishing a Constitution for Europe. The travaux preperatoire of that provision clearly shows the voluntary and unilateral nature of a withdrawal decision (para. 68). Finally, the Court states that this conclusion is confirmed by international law, specifically the Vienna Convention on the Law of Treaties (VCLT). In particular, Article 68 VCLT states that a notification of withdrawal from an international treaty may be revoked any time before such withdrawal takes effect (para. 71).
As such, the Court concludes that until the Withdrawal Agreement enters into force, or alternatively the two-year period expires, the withdrawing state retains the ability to unilaterally revoke its withdrawal notification, in accordance with its constitutional requirements. The only conditions are that such revocation must be (i) submitted in writing, and (ii) ‘unequivocal and unconditional’ (paras. 73 – 74).
Given the sensitivity of the case and the Opinion of the Advocate General delivered a week before the judgment, the outcome of the case is not particularly surprising. However, the reasoning of the Court departs from that of the Advocate General. The Court focuses much more on the wording, purpose and historical context of Article 50 itself, rather than the value of international law within the EU legal order. The Court also places much weight on the principles of democracy and liberty, as well as the far-reaching and significant consequences of Brexit on the concrete rights of EU citizens.
However, the Court does not consider there to be the same limits to the unilateral power of the withdrawing Member State to revoke Article 50 as the Advocate General, who suggested that as well as the formal requirements of revocation, the UK should also be bound by the principles of good faith and sincere cooperation (para. 148). The Court, in contrast, does not mention these principles. The only qualification is that revocation must be ‘unequivocal and unconditional’, which could be interpreted as meaning that the UK must not be intending to renegotiate its membership or re-invoke Article 50 TEU shortly after, and that any revocation made in bad faith could be challenged before the Court.
In terms of Brexit itself, the Wightman decision confirms that Brexit can be stopped altogether, and if it so wishes the UK can remain in the EU on the exact same terms as it currently enjoys: it would not be required to join the Eurozone or Schengen area, and would continue to receive its rebate. However, it must be said that this scenario is still not very likely. Many MPs reject the Government’s deal, but are seriously concerned about the possibility of inadvertently pushing the UK into a disorderly ‘no-deal’ Brexit by doing so. The Wightman decision, particularly in light of the Miller decision in which the UK Supreme Court emphasised the importance of parliamentary sovereignty, ensures that MPs retain the ultimate power over the Brexit process.
Under Article 13 of the European Union (Withdrawal) Act, the UK Government is required to put the Withdrawal Agreement and Future Relationship before the House for a ‘meaningful vote’ before 21 January 2019. However, it is unclear constitutionally what will should this be voted down. The Government has previously stated that the only alternative is leaving the EU in March 2019 without any deal whatsoever. However, a recent amendment tabled by Conservative MP Dominic Grieve states that if no agreement is reached by 21 January, parliament can dictate what the Government’s position should be. This technically would not be legally binding, and the default position under Article 50 TEU is still to leave with or without a deal in March 2019. However, assuming the Government does not ignore such direction from parliament, this would effectively kill any prospect of a no-deal Brexit, given the number of MPs currently opposed to it. That being said, it seems highly unlikely politically that MPs would cancel Brexit without at least another public vote (the so-called ‘people’s vote’) beforehand. Despite the uncertainty, the Wightman decision does lay out clearly the three choices that British MPs currently face: (i) vote for the Government’s deal; (ii) leave the EU without a deal; or (iii) scrap Brexit altogether.