One of the European Court of Justice towers in Kirchberg, seen in May 2009. Photo credit: Cédric Puisney via Flickr (CC BY 2.0)
The UK should be able to unilaterally revoke its “Article 50” notification that it wants to quit the EU, according to a top legal advisor at the European Court of Justice, although the case is far from final.
Earlier this year, several elected officials brought the case against the UK government in Scotland, arguing that cancelling Brexit should be an option if the British parliament does not approve of the deal negotiated by the EU and UK. The British government argued that case was “inadmissible” since it has no intention of stopping the withdrawal process.
In September, the Court of Session, Scotland’s supreme court, asked the European Court of Justice if member states could “unilaterally… revoke its notification before the end of the period of two years” specified under Article 50 of the EU treaty.
In a preliminary opinion issued on Tuesday, Campos Sánchez-Bordona, an advocate general at the ECJ, said the withdrawal process could be stopped any time before it is concluded at the end of March 2019.
Sánchez-Bordona stated, according to a court press release (PDF), that “the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute,” so the case should not be dismissed.
Sánchez-Bordona also reasoned that “withdrawal from an international treaty… is by definition a unilateral act of a state party and a manifestation of its sovereignty.” Article 50 “states that a member state which decides to withdraw is to notify the European Council of ‘its intention’--and not of its decision--to withdraw”.
The EU27 governments need not give their unanimous consent to stop Brexit, since that would deprive the UK of its sovereignty, Sánchez-Bordona advised.
The matter will now be reviewed by a panel of ECJ judges. In the majority of cases, ECJ judges reach the same conclusion as advocates general, but their deliberations are independent of the preliminary opinion.
No date for the ECJ judges’ ruling has been set, but the case is being handled under the court’s “expedited procedure”. After the ECJ decision, the case will return to Edinburgh for final adjudication.
The case is number C-621/18 (Wightman and Others v Secretary of State for Exiting the European Union).