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CJEU confirms the UK can unilaterally cancel 'Brexit'

The Court of Justice of the European Union (CJEU) has confirmed, definitively, that the UK can unilaterally revoke its Article 50 notice.  Read the full judgement here

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Pictured at the CJEU, from left: Jennifer Jack, Anneli Howard, Gerry Facenna QC and Morag Ross QC

This judgment comes as Members of Parliament take part in a crucial vote this week on the future of the UK and its relationship with the EU.  The UK Government and the Commission had argued that the CJEU should not answer the question in law, but the Court branded those arguments as "irrelevant".  The CJEU supported the Scottish Court's assessment that the question of law before it "represents a genuine and live issue, of considerable practical importance" and that the MP's who had brought the case had "an interest in the answer to that question of law, since that answer will clarify the options open to them in exercising their parliamentary mandates."

The EU’s Commission and Council argued that a Member State could only revoke with the unanimous consent of the 27 Member States.  Without this judgment, which binds all Member States and the EU institutions, any unilateral revocation that might be voted upon in Parliament would have remained shrouded in legal uncertainty and open to legal challenge.   

The Court was very clear in its rejection of the position taken by the Council and the Commission, saying, “The decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice.” It stated that if the right of the Member State concerned to revoke the notification of its intention to withdraw were to be subject to the unanimous approval of the European Council, that requirement would "transform a unilateral sovereign right into a conditional right subject to an approval procedure. Such an approval procedure would be incompatible with the principle… that a Member State cannot be forced to leave the European Union against its will."

The Court also made it clear that revocation is fundamentally different from any request for an extension of the two-year period referred to in Article 50 and that the analogy that the Commission and the Council sought to make between that revocation and such an extension request "could not be accepted".

The Court also confirmed that revocation would mean that the UK would stay in the EU on the same terms as before, concluding its ruling by saying:

"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.”

The case was referred to the CJEU after a Court of Session action was brought by petitioners, including members of the Scottish, UK and European Parliaments, in December 2017. Jennifer Jack, a Partner at Harper Macleod, is part of a team of leading Scottish and English lawyers, representing two Westminster MPs in this high profile case: Tim Brake, the Liberal Democrat spokesperson on Brexit and Chris Leslie, a prominent Labour backbencher. Along with John Halford of Bindmans LLP, London, she is instructing a top team of Counsel with expertise in Public and EU Law: Morag Ross QC of Axiom Advocates; Gerry Facenna QC and Anneli Howard, both from Monckton Chambers; and Stephen Donnelly of Arnot Manderson Advocates.

View the full judgment video here.