Kar Beltz

BREXIT

On December 4th, 2018 Advocate General CAMPOS SANCHEZ-BORDONA has delivered his opinion in the case C-621/18 pending before the Court of Justice of the European Union. In a request for a preliminary ruling, the Scottish Court of Session, Inner House, First Division has submitted the following question to the Court of Justice:

Where, in accordance with Article 50 of the Treaty on European Union, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the European Union?

After having examined Article 50 of the Treaty in the light of other international law sources, the following proposal has been made by the Advocate General:

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, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

On December 10th, 2018 the Court of Justice has confirmed the foregoing opinion and has given the following judgment:

Article 50 TEU must be interpreted as meaning that, where a Member State has notified the European Council, in accordance with that article, of its intention to withdraw from the European Union, that article allows that Member State — for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired — to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements. The purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.

This judgment may become of a particular interest when the negotiated Brexit deal between the United Kingdom Government and the European Commission fails to be adopted on December 11th, 2018 by the Houses of Parliament. In this case the United Kingdom Government could consider that it would be better in order to avoid an uncontrolled and chaotic Brexit to pull the emergency brake and to proceed to the revocation of its withdrawal notification from the European Union before March 29th, 2019.

 

© Karl H. BELTZ    AVOCATS | RECHTSANWÄLTE  12/2018

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