BREXIT - Withdrawal from article 50 - The Andy Wightman case - CJEU

1.  A lawyer point of view.

On 10 December 2018, the Court of Justice of the European Union (CJEU) delivered a judgment in the Andy Wightman case on the revocation of a notification of an intention to withdraw from the EU under Article 50 TEU. All started on 23 June 2016 when the United Kingdom (UK) voted the principle of leaving the European Union (EU) after a referendum. This vote was quickly challenged both in terms of the conditions of the debate and the consequences of such a decision driven by populist ambitions. Subsequently, on 29 March 2017, the UK notified the European Council of its intention to withdraw from the EU on the basis of Article 50 of the TEU. It’s a start for the negotiation of a withdrawal agreement or, failing that, a termination of the application of the treaties two years after notification of the intention to withdraw: the ‘no deal’.

On 19 December 2017, members of the Scottish Parliament, the United Kingdom Parliament and the European Parliament lodged an appeal with a Scottish court seeking clarification as to whether notice of intention to withdraw could be unilaterally revoked before the expiry of the two-year period laid down in Article 50 TEU. The understanding behind that, if the notification was revoked, the United Kingdom would remain in the EU.

As part of this appeal, the Court asked the Court of Justice of the European Union (CJEU) the following question:

"When a Member State has notified the European Council, in accordance with Article 50 of the Treaty on European Union, of its intention to withdraw from the European Union, does EU law allow the Member State to notify unilaterally to revoke this notification, and, if so, under what conditions and with what effect with respect to the maintenance of the Member State in the European Union? "

Having agreed to urgently examine this case, the CJEU held a plenary session and has made a crucial decree C-621/18 on 10 December 2018. This judgment has a particular interest both for the future of the European Union and for the pursuit of a democratic debate that can’t be confiscated by demagogic political people who are not concerned with the general interest of their fellow citizens.

This decision settles the question of the admissibility of the preliminary ruling decision and that of the substantive interpretation of Article 50 TEU. Beyond the strictly legal debate, the decision opens perspectives on the conditions and the control of a democratic debate with constitutional value.

The Wightman case (C-621/18), the Scottish Supreme Court's well-grounded question on the revocability of the Union's withdrawal intention, lies at the heart of the political and legal problems raised by Brexit. What is striking is the great diversity registers used by the parties involved. On the one hand, the Council and Commission develop a technical argument based on a systemic reading of Article 50 TEU (as an instrument for the protection of the Union's institutional architecture). On the other hand, the applicants invoke the fundamental principles which have always inspired the European project and which feed into the treaties: the desire for integration, respect for democracy and the rights of citizens. This important shift in views gives rise to diametrically opposed positions on the problem behind the Court of Justice.

2.  Admissibility

A considerable part of the debate focused on the admissibility of the preliminary question. In a political context tense by the uncertainty of the final vote on the political agreement, the admissibility of the question appeared as a first major issue.

The UK Government disclaim that the question referred to a preliminary ruling is admissible, because there is no indication that the UK is going to revoke the notification of the intention to withdraw. The Commission, from its side, feeds doubts on this occasion, although does not translate those doubts into a formal petition of inadmissibility. Also the UK contemplates that there is no dispute in the main proceedings which the Commission and the United Kingdom ask the Court to dismiss, ‘in limine litis.’ The United Kingdom limits its position solely to questions of admissibility and categorically refuses to respond to Advocate General Manuel Campos Sánchez-Bordona with regard to his position on the merits of the case, stating that the Government position to defend before the jurisdiction of the Union.

The United Kingdom asks the Court not to open a “Pandora's box” by responding to a purely political initiative of activists against the Brexit. Supported by the Commission, the United Kingdom asserts that the case is a request for an advisory only opinion, whereas the Court is empowered to rule on this only in the case provided for in Article 218 (paragraph 11) TFEU. On the judgment statement, Judges Rosas and Leaners are skeptical in the argument that the Court has just a purely advisory role in this case.

The Commission also argues that the delivering ruling of the court after receiving the Court’s answer to the question referred will not produce any binding effects on the parties and so, the question is therefore hypothetical. It acknowledged, however, at the hearing, that there is a dispute in the main proceedings. Yes, sure there is a genuine dispute in which opposing arguments and claims are being made: the applicant's request to the referring court declares that Article 50 TEU allows the notification of the intention to withdraw to be revoked unilaterally. They are asking that court to seek guidance on that question from the Court beforehand and the United Kingdom Government challenges that claim.

In accordance with case law, the Court may refuse to give a ruling on a question referred by a national court where it is quite obvious that the interpretation of the rule of EU law has no relation to the actual facts or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted. On the point of view of the Advocate General, this case does not satisfy any of those conditions, which are essential in order to reject the preliminary ruling.

The case law of the Court, in particular in the TWD case[1], indicated a willingness to refuse to answer a purely abstract or hypothetical preliminary question. This is preciously the most import thing in this case: answering such a question would constitute a real "constitutional anathema.” All of that could be a political decision that can be used as a lever in the United Kingdom Parliament, in violation of the fundamental principle of separation of powers and privilege of which in Article 9 of the Bill of Rights of 1968.[2]

Case-law shows us also that even in the cases where it was not a genuine dispute between the parties (both were before the national court by mutual agreement) Court held that the reference for a preliminary ruling was admissible (American Express Case)[3].

None of those factors are present in Wightman case. Where the questions submitted concern the interpretation of an EU law rule, the Court needs to provide a ruling. It follows that questions relating to EU law enjoy a presumption of relevance. The CJEU considers that the reason given by the referring court is sufficiently relevant. It's clear that this answer will clarify the options open to the Members of the United Kingdom Parliament during the exercise of their parliamentary mandates.

The Court therefore holds that the question referred to a preliminary ruling is relevant. That concerns the interpretation of a provision of European Union law and it's the subject of the dispute.

Therefore, in answering the question referred to a preliminary ruling, the Court will not perform advisory functions, but will really give an answer in accordance with its judicial function (literally, 'stating what the law is'), so on the basis of that answer, the referring court may give a ruling, in a judgment with actual legal effect sought by the applicants.

In accordance with the Opinion of the General Advocate, the Court holds the question referred by the national court concerning the EU law interpretation and it’s presumptively admissible. It rejects the arguments raised by the United Kingdom and the Commission concerning the hypothetical nature of the question and the lack of jurisdiction to provide an opinion on constitutional questions, in this case, the withdrawal from the Union of a Member State.

The Commission's position on the UK Government's refusal to rule on the problem merits would involve a dispute absence and that does not appear to be really founded, which the Commission admits in its replies.

3.  The legal framework and the possibility interpretations of Article 50 TEU

Article 50 of the TEU provides ‘inter alia’ that:

1. Any Member State may decide, in accordance with its constitutional rules, to withdraw from the Union.

2. The Member State which decides to withdraw shall notify its intention to the European Council. In the light of the guidelines of the European Council, the Union shall negotiate and conclude with that state an agreement to lay down the procedures for its withdrawal ... It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after approval of the European Parliament. 

3. Treaties shall cease to be applicable to the State concerned from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period [...].

In accordance to the question put, the General Advocate had considered the following alternative: "(a) no, in any case; b) yes, unconditionally; or (c) yes, under certain conditions ". The Commission and the European Council opposed the second option while admitting a possibility of consensual revocation, in other words, unanimously approved by the European Council.

The court finds that Article 50 means that the State who has notified its intention to leave the EU can unilaterally retract themselves. The Court bases its interpretation from a literal and historical point of view on in the light of the 1969 Vienna Convention on the Law of Treaties.

The way in which the right of withdrawal in Article 50 TEU is defined, is based on the international law rules (especially on Articles 54 and 56 of the VCLT). It seems so logical, because withdrawal from an international treaty, is by nature, a unilateral act of a State party, a manifestation of a State’s sovereignty. And if this State’s decision is to conclude a unilateral treaty, so it seems normal that he can unilaterally withdraw from it. Consequently, unilateral revocation would also be a manifestation of the sovereignty of the departing Member State, which chooses to reverse its initial decision. 

We should notice that the General Advocate had indicated that one of the basic State sovereignty principles engaged in an exit process must be to let him enable to change his mind. It's particularly true in the light of the legal and factual circumstances resulting from an assessment of the concrete consequences on the planned exit. It is quite logical that the revocability is a right of any legislator and that let him a chance to recognize his error and not to be compelled to persist in it.

If the constitutional mechanisms include the decision of a national parliament, the principles underlying of the Article 4 TEU should favor the acceptance of that new decision, as a sign of the ‘respect’ referred to in Article 4(2) TEU.

The denial of the right of reversibility of a withdraw notification when the wish of a Member State has changed in accordance with him own constitutional requirements and where he wishes remain in the European Union would 'de facto' forced him exit from this international organization. This refusal would be equivalent to an indirect expulsion from the European Union, when nothing in the Article 50 TEU suggests that the withdrawal procedure may be converted into a way of expelling a Member State.

The limit on the exercise of the unilateral revocation right arises from the good faith principle and sincere cooperation (Article 4(3) TEU).

From a legal point of view, the court holds that Article 50 means that if an intention is notified, it can't have definitive undertaking value. Thus, the intention can be retracted until a final agreement has been sanctioned and the fateful date of unilateral withdrawal has not been occurred.

From a teleological point of view, the court invokes the Treaties which recognize that the Union's aim is to strengthen an ever-closer union among all peoples in Europe. The Court holds that the withdrawal of a State may lead to a regression on the citizens’ rights who would lose European citizenship and all the rights associated to it.

From a historical point of view, the court point that Article 46 of the Praesidium draft of the Convention confirms the principle of unilateralism in the withdrawal procedure, so as not to put meaningless the voluntary withdrawal concept.

Lastly, the court makes an overriding reference to the Vienna Convention on the Law of Treaties adopted in Vienna on May 23, 1969, especially the Article 68 [2], which allows for the revocation at any time of a withdraw notification from a Treaty.

It follows from these different arguments that Article 50 is consistent with the principles that govern international agreements and conventional constitutional procedures: at any time a legislator can undo what he has done or interrupt an ongoing process.

The debates leading up to the referendum ignored the legal and practical consequences of a Brexit, particularly for the citizens of the United Kingdom. They have come down to claims about the supposedly essentially political and economic benefits of a withdrawal. The Parliament was discarded from the debate by the simple fact that the question was put to a referendum and thus deprived of a serious evaluation. But, thanks to the judge, the Parliament was able to force the government to debate it. Indeed, on January 4, 2017, the British Supreme Court had ruled that the government should be approved by the Parliament before implementing the Article 50.

The ensuing debates have shown that a modern democratic debate on such topics cannot be solved by a simplistic answer, "yes or no". The adventure of letting go the EU moorings for an alleged issue of principle exposes the UK to a fierce storm and very serious economic issues. This risk is all the stronger as the debates around Brexit served as an outlet. The results of the vote highlighted the miscalculations and unpreparedness of this initiative. To illustrate, the first action after the victory of the most popular figure of the Brexit, Nigel Farage, from the UKIP, was to resign and stop the politic in order to don't have to deal with this (and for the anecdote, he asked the French nationality in 2017 to be sure to stay an EU citizen).

Since 23 June 2016, despite reassuring speeches, there is uncertainty about the future of the United Kingdom and the EU.

Finally, the Court held that the Article 50 allows a Member State to revoke notification of intention to withdraw 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.

Member State that has reversed its decision to withdraw from the European Union is entitled to revoke that notification 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 provision, has not expired.

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.

4. What we can conclude ?

This ruling of the Court affirms both the sovereignty of the United Kingdom as a nation, and the sovereignty of the UK Parliament. Parliament can instruct the Government either to continue with the current negotiations around the UK’s withdrawal, or to bring an end to that process and keep the UK in the EU on the basis of its present membership deal.

This means that it is open to Parliament, if so minded, to “call off Brexit” so that the UK stays in the EU on its existing terms.

This would involve the UK keeping the Pound, maintaining its border controls, and holding on to its current EU budget rebate, while continuing to benefit from frictionless and tariff-free trade within the European Union and profiting from the free-trade deals which the EU is able to conclude, from a position of world market strength, with third countries outside the EU.

It also means that British nationals would retain all the additional rights that come with their being EU citizens, including the rights to live and work in, receive healthcare from, and retire to, the rest of the EU.

Lawyers for the petitioners argued that requiring agreement of all Member States in order to withdraw an Article 50 notice would “ride roughshod” over EU principles, as it would mean a Member State could be forced out of the EU against its will if it changed its mind after invoking Article 50.

The judgment rendered a call for reflection. Leaving the EU is a constitutional challenge in view of the level of integration achieved within the EU. The separation project will certainly have consequences for the freedoms of citizens and from a geopolitical point of view. The prospects of socio-economic collapse are becoming more refined as debates crystallize around party agendas unrelated to the national interest. These debates, marked by a form of selfishness, are naturally far removed from the common values to which the peoples of the Member States, including the United Kingdom, have adhered.

The British Parliament is trying to preserve its role. The pluralist and deep debate sheltered from populist demagogues who despise the very notion of democracy, highlights the infinite complexity of the subject. This debate is obscured by the risk of government censorship or even a return to the polls.

It can be inferred from C-621/18 that the term 'Brexit means Brexit' is both a reminder as recalled by Mrs. MAY meaning that the vote of 23 June 2016 is irreversible is contrary to Article 50.

This mantra participates in the occultation of the available options thus leaving the adventure to continue in the greatest uncertainty. By law, the United Kingdom remains a member of the European Union, until at least March 29, 2019. What the legislator does, he can undo and Article 50 as interpreted by the CJEU means that the Brexit cannot be registered as of June 23, 2016. It is fortunate that the judge assumes its role of controlling the abuses of other powers while recalling a simple legal principle.

W. CHURCHILL held that democracy is the least worst of systems. We can also remember that it alone allows to live together in respect of individual freedoms. She has resisted the aggressions of totalitarianism. Today, the democratic debate is altered by robots, sometimes manipulated by foreign powers. They constitute threats to corrupt the espresso in popular and question fundamental laws thus operating a denial of democracy.

The European Union is the result of the will of a citizen community who, on the ruins of war, has made the choice for future generations to build a common space based on peace, cooperation and principles of democracy. This ambition of peace has the value of natural right. Today it must impose itself by the law and the principle of reality because there is, for Europe, the states that make up the European Union and all citizens, no other alternative to the downgrading and impoverishment of Member States left to their lonely destinies;

The democratic debate is affected by foreign interference working to undermine the EU, which by various means of manipulation of public opinion, including by infiltrating political movements, try to weaken if not destroy the EU, for better to dispute the remains. Proponents of dismantling the EU or secession are working to the decline of our societies.

This question will certainly be at the heart of the next European elections. No doubt it is time to reclaim the European construction so that it preserves a shared future of shared freedom and prosperity. This project cannot tolerate the rejection of its neighbor, especially when it shares such a rich story that taught us that nationalism is synonymous with destruction. We cannot admit political violence altering the progress that has been made synonymous with continental peace.

[1] Case C-188/92 TWD v Bundesrepublik, Judgment of the court of 9 March 1994.

[2] Using modern spelling, article 9 provided: `That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.'

[3] American Express, C?304/16, EU:C:2018:66, paragraph 31