UK can withdraw Brexit notification, ECJ rules

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Posted on: Politico | December 10th, 2018
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The result will provide a boost to campaigners for a second vote on EU membership.

The European Court of Justice ruled Monday that the U.K. can unilaterally withdraw its notification to leave the European Union without the permission of other EU countries.

The ruling in the case — which was brought by a group of Scottish politicians — will provide a boost to campaigners for a second referendum in the U.K. who want to put a stop to Brexit.

While not unexpected, the timing of the ruling — the day before a planned House of Commons vote on Theresa May’s Brexit deal with the EU, which the prime minister is expected to lose heavily — is likely to galvanize the campaign to reverse Brexit altogether should that vote be lost.

Calls for a second referendum have gained traction in recent months, gaining the support of several ex-ministers in May’s government. The other alternatives should May lose Tuesday’s vote are a renegotiation of her deal, for which the EU has shown very little enthusiasm; or the U.K. exiting without a deal, which government analysis predicts would have grave economic consequences.

Jo Maugham, director of the Good Law Project, which brought the case using funding from public donations, described the victory as “arguably the most important case in modern domestic legal history.”

“The 2016 referendum — during which both Leave and the regulator broke the law — would shame a banana republic,” he said. “But all the courts can do is open the door to Remaining. It is up to MPs to … find the moral courage to put the country’s interests before private ambition.”

The judgment itself states that a unilateral withdrawal is possible so long as the Withdrawal Agreement between the exiting state and the EU has not yet come into force or, if no agreement has been struck, the two-year Article 50 period has not expired.

«The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council,» the court said.

That appears to rule out using an Article 50 revocation to hold a referendum though, because such a reason to withdraw would not constitute an «unequivocal and unconditional decision.» However, if the U.K. can win the agreement of EU27 countries for an extension of the two-year Article 50 period, it could then revoke its exit notification unilaterally if that referendum decided in favor of remaining in the EU.

Another key aspect of the judgment is that the U.K.’s terms of EU membership would be unaffected if it decided to remain in the bloc. «Such a revocation confirms the EU membership of the member state concerned under terms that are unchanged as regards its status as a member state and brings the withdrawal procedure to an end,» the judgment states.

Joanna Cherry, a Scottish National Party MP and one of the petitioners in the case, tweeted that it was «a huge victory for Scottish parliamentarians and Scottish courts.»

But Michael Gove, the environment secretary and a leading light in the 2016 Leave campaign, said it would not alter the government’s intention to exit the EU.

«We don’t want to stay in the EU,» he told the BBC’s Today program shortly after the court’s judgment was announced. «We voted very clearly: 17.4 million people sent a very clear message that we want to leave the European Union and that means also leaving the jurisdiction of the European Court of Justice. So this case is all very well, but it doesn’t alter the clear intention of the referendum vote or the government that we want to leave on March 29. And the most effective way of leaving is to support the deal that the prime minister has negotiated.»

Shami Chakrabarti, Labour’s shadow attorney general, said the ruling would not change Labour’s Brexit policy. «I don’t think that this legal judgment changes the position because it isn’t a surprise. What we’re clear about is Theresa May’s deal is a terrible deal,» she said.

Tom Brake, the Lib Dem’s Brexit spokesman, said: «The ECJ has made clear that the U.K. can stop Brexit unilaterally. The government can therefore prevent a chaotic no deal. For the sake of people’s livelihoods, the prime minister must end the uncertainty and rule out a no deal.»

EU diplomats have expressed concern about how the Article 50 ruling might be used in future by other countries. Ahead of the judgment they said they feared that submitting and then withdrawing an Article 50 notification might be used as a negotiating tactic to extract concessions from other EU members on opt outs from EU programs or rebates from the budget.

One diplomat, speaking on condition of anonymity, said allowing unilateral withdrawal would be “madness,» adding that it “could make it easier for a member state to play with [Article 50], for example to get opt outs [from EU programs].”

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