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10th December 2018

BREXIT - The CJEU Decides: The UK’s Article 50 Notification could be revoked unilaterally

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The European Court of Justice decides that the UK’s notification of its intention to withdraw from the EU is unilaterally revocable.

From the CJEU’s Press Release in relation to the case of Wightman and Others V Secretary of State for Exiting the European Union: Case C-621/18 10 December 2018.

In today’s judgment, the Full Court has ruled that, when a Member State has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that Member State is free to revoke unilaterally that notification. That possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired.

The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council. Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end.

The Court has decided that a revocation of a notification of intention to withdraw from the EU reflects a sovereign decision of an EU Member State to retain its status as a Member, which a notification under Article 50 of the Lisbon Treaty neither suspends or alters.

This will certainly raise the temperature of discourse surrounding the idea of a second referendum as the UK Parliament grapples with the ‘deal or no deal’ decision, however, any appetite for a new popular vote has to be measured against the dangers such a step would pose on the political-societal plane and the challenges the arrangements associated with another referendum would present from a constitutional law perspective.

A link to the Judgement can be found here

Dominic Hopkins is head of Disputes and Litigation at Hewitsons and an Associate Member of the UK Constitutional Law Association. For more information please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.