Brexit Agreement: the last chance

On 19 December 2017, a petition for judicial review was lodged in a British Court by Members of the United Kingdom’s Parliament, to determine whether the notification referred in Article 50 of the Treaty on European Union (TEU) could be revoked unilaterally before the expiry of the two-year period. This Court referred this question to the Court of Justice of the European Union (ECJ).

In its Judgment of 10 December 2018 in Case C-621/18, Wightman and Others v Secretary of State for Exiting the European Union, the Court has ruled that, indeed, the possibility of revocation exists for as long as that a withdrawal agreement has not entered into force, or no agreement has been reached, and any possible extension has not expired. Moreover, the UK’s terms of EU membership would be unaffected if it decided to remain in the bloc.

The Court has clarified that, in accordance with national constitutional requirements, this revocation is subject to the rules laid down in Article 50(1), with the result that it may be decided unilaterally, following the constitutional requirements of the Member State concerned. Regarding the substance of the question, it makes clear that Article 50 TEU does not explicitly address the subject of revocation. It neither expressly prohibits nor expressly authorises revocation.

The Court justifies it on grounds of a sovereign decision made by the Member State, which reflects its decision to retain or not, its status as part of the European Union. Failure to do so would transform a unilateral sovereign right into a conditional right and would be incompatible with fundamental principles set out in the Treaties. Particularly, the principle that a Member State cannot be forced to leave the European Union against its will.

This decision opens up a new possible scenario for the British Premier and, at the same time, it boosts the campaigners for a second referendum who want to bring Brexit to an end. Other scenarios are a renegotiation of the deal, for which the EU has shown very little enthusiasm; or the UK exiting without a deal. The latter being the case, it would bring serious economic consequences for Britain and would open a new period of uncertainty for both, the UK and EU-27.

Moreover, this judgment opens the hatch for a different interpretation. The Court’s position on Article 50 might be used in the future by other countries, by submitting and subsequently withdrawing it, as a negotiating tactic to obtain concessions from the EU, such as opt outs from EU initiatives or rebates from the budget.

Preliminary rulings, access to the ECJ and other aspects of the EU legal system can be found in the book of our Managing Partner, Mr Emiliano Alonso, El lobby en la Unión Europea. Manual del buen uso de Bruselas (Madrid, 2016). You may find the last edition of the book (2016) here and if you have any doubt on this regard, please do not hesitate to contact us in or in the +32(0)2 230 70 42.

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