Advocate General Campos Sánchez-Bordona has published his Opinion on the request of the Inner House of the Court of Session for an Advisory Opinion from the CJEU as to whether or not a Member State that has notified the European Council of its intention to withdraw from the EU in accordance with Article 50 TEU may unilaterally revoke that notification and, if so, subject to what conditions: see Wightman, Reclaiming Motion by Andy Wightman MSP and Others Against Secretary of State for Exiting The European Union  ScotCS CSIH 62. The UK Government contends that the question referred for a preliminary ruling is inadmissible: it is hypothetical and merely theoretical because there is no indication that the UK Government or Parliament is going to revoke the notification of the intention to withdraw; however, he rejects that argument.
According to the Court’s press release, AG Campos Sánchez-Bordona considers that none of the conditions which, according to the Court’s case-law, govern whether a reference for a preliminary ruling should be declared inadmissible, are satisfied. He believes that the dispute is genuine and that the question is neither academic, premature nor superfluous, but has obvious practical importance and is essential in order to resolve the dispute.
In answer to the question from the Inner House, he proposes that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.
The CJEU is not obliged to follow the Opinion of the Advocate General; in practice, however, the Court rarely takes the opposite view.
“Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded”
It is by no means certain, from the above potentially ambiguous wording, that the opinion of the Advocate General postulates that the UK has the power which I think she needs in her present situation. Does Article 50 allow until agreement or the second anniversary of Article 50 notice whichever is sooner, a revocation that is permanent? I.e. does it merely allow Brexit to be abandoned altogether by a decision taken before 29th March? Or does Article 50 allow now a revocation that is only temporary? I.e. revocation until agreement on some future date later than 29th March, whereupon the Article 50 notice would be reinstated, albeit with a revised exit date?
The power which I suggest that any member state would need in the position in which, inevitably, the UK now finds itself, is a non-binary power, to do something that is neither acquiescing in the status quo of exit from the EU on precisely the second anniversary of the giving of Article 50 notice, nor a complete revocation of the Article 50 notice, taking the member state back to square one.
The UK may need to promulgate that she reaffirms her notice of intention to leave the EU but to add that she will not necessarily carry out that intention on 29th March 2019 as originally planned, but rather on a future date that is no sooner than 29th March, unless agreed otherwise. The actual leaving date will be announced by the UK when the UK has a deal (including a non-deal deal) that has enabled it to satisfy its constitutional requirements (i.e. a deal that Parliament has voted to accept, precipitating the immediate announcement of the arrival of the hitherto unknown Brexit date and the UK’s departure of the UK from the EU.
The point I made soon after the referendum was that Article 50 was unfit for purpose because it had built into it an apparent rigidity about timetable that was not only unnecessary but which was also counterproductive, in that it prevented the giving of Article 50 notice in the knowledge of what that meant in practice. In brief, I blogged “There’s a hole in my Brexit”, about this circular predicament, which I called “Catch 50”, after Catch 22. I also blogged “The UK still has important work to do inside the EU”, in which I argued that the most important accomplishment of Brexit would be the reform of Article 50, in order to make Brexit safe. Making Brexit safe by reforming Article 50 would eventually enable Europe to get rid of the EU altogether in due course, because every other member state would want to follow the UK’s example, if we had proved a method of leaving the EU without losing any of the benefits that the EU likes to portray as benefits of EU membership, to the extent of threatening to confiscate those benefits from any member state that leaves the EU.
Pingback: Law and religion round-up – 9th December | Law & Religion UK