by Frank Schnittger
Tue Nov 27th, 2018 at 06:46:32 PM EST
The European Court of Justice is today hearing a case to determine whether a state has the right to unilaterally withdraw an A. 50 notification of its intention to leave the EU. (case number C-621/18). The Inner House of the Court of Session in Scotland decided to refer the following question in a preliminary reference to the Court of Justice of the European Union:
`Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU'.
The Irony of the ECJ deciding on the UK's rights in this matter has not been lost on some observers, with some Brexiteers outraged the court is even considering the matter. A.50 provides that a member who has left the EU and wishes to rejoin must do so via the standard A.49 accession procedure. But A.50 is silent on what happens if a member issues an A. 50 notification and then changes their mind on the matter within the 2 year negotiation period before they actually leave, so some more clarity is welcome.
Oliver Garner has written a blog on the European Law blog arguing that such a unilateral revocation by the United Kingdom should be possible, so long as a decision is made to do so in accordance with the constitutional requirements of the Member State. He quotes arguments by legal scholars to the effect that it would be nonsensical to force a member state which has changed its mind to wait the full 2 year A. 50 negotiating period and then re-apply for membership under A.49, especially if there has been a change of government or popular mandate in the meantime.
He also notes that "Article 68 of the Vienna Convention on the Law of Treaties (VCLT) does explicitly address the issue of revocation of notice to withdraw from a treaty. This provision outlines that `a notification or instrument provided for in Article 65 or Article 67 may be revoked at any time before it takes effect'." He quotes Closa to the effect that "`article 50 is not an institutional innovation of the EU: most international organizations require a `preparation' or `cooling off' period... In these international organizations, the delay between announcement and effective withdrawal serves as a `cooling off' period allowing the withdrawing State to change its position.'"
I have responded to his article (in the comments) as follows:
The phrase "clutching at straws" comes to mind. Whatever way you look at it, the insertion of a simple clause or sub clause in A.50 providing for the revocation of an A.50 notification in certain circumstances would have made this whole question absolutely clear. The absence of such a clause is therefor damning. Clearly there was no intention to create such a "right" by the framers of, and parties to, the Treaty. You are asking the ECJ to create a "right" where patently none is provided for in the Treaty.
You must also take the separation of powers between the ECJ and the European Council and Parliament into account. The latter two institutions are charged with the political running of the EU. Clearly they could, at their absolute discretion, decide to accept a request for the revocation of an A.50 notification as a political act. However making a political decision to accept or reject such a revocation, and granting an absolute right to a withdrawing member to unilaterally withdraw their notice of leaving are two very different things. You are asking the ECJ to impose constraints on their powers and freedom of action which are nowhere alluded to in the Treaties.
There are also practical issues to consider. What is to prevent any member, dissatisfied on any matter, to issue A.50 notifications willy nilly only to withdraw them at the last moment if they manage to gain some negotiating leverage by doing so. The EU would be in ongoing turmoil, not knowing which notifications are for real, and which were purely tactical. Political decisions are best left to the political institutions, and the ECJ would be reluctant to intervene unless some action is clearly in breach of the Treaties. The Council and Parliament have wide discretion within the Treaties to make political decisions, and that is as it should be. The rights of any one member state are not absolute, but exist only insofar as they are provided for in those treaties.
The more interesting question is whether the Council can accept a revocation by weighted majority vote, or whether unanimity would be required. A. 50 does make provision for the extension of the 2 year notice period under A.50, but only by unanimous agreement. As a revocation most closely resembles an indefinite extension, meaning the notice party never leaves, it seems reasonable to assume a revocation would also require unanimity. That would make any decision to remain subject to the whims of each and every one of the remaining 27 member states - just as it takes only one member to block the accession of a new member under A.49.
The alternative point of view is that as an Exit Agreement only requires a weighted majority to be accepted by the Council, so should a decision not to conclude one and instead terminate the exit process also only require a weighted majority vote? It is a pity the ECJ is not being asked to adjudicate on this issue.The bottom line depends on whether the EU and UK continue to be on good terms as the A.50 process nears its end and the UK decides it wants to remain in after all. If relationships have become very strained there is always a possibility that a blocking minority might object to accepting a withdrawal of an A.50 notification. That too is as it should be. Membership of a club should be dependent on the willingness of all parties to work constructively together and to accept obligations as well as entitlements.
The UK has not always demonstrated a willingness to do so over the past 45 years of membership. It would be ironic indeed if it was the EU which ultimately decided it no longer wished to have the UK as a member and blocked attempts to terminate the A.50 process. Most Council members have expressed a willingness and indeed an eagerness to welcome the UK to remain in the EU should the UK change its mind so this seems a very unlikely prospect. However the invocation of A.50 should not be a cost or risk free action, and the possibility that some other members would be more than happy to see the UK or some other "difficult" member exit should not be entirely discounted. Other members have rights too, and the ECJ most take cognizance of their rights as well.
In a subsequent comment I addressed Oliver Garner's points in relation to Article 68 of the Vienna Convention on the Law of Treaties (VCLT) and the norms of international law more generally:
It is difficult to see how A. 68 of the VCLT can be said to apply when France and Hungary are not even signatories. On the wider question of whether international law custom and practice dictates that a notification of withdrawal can itself be withdrawn until such time as it takes effect, it should be noted that while A.50 provides for a maximum two year negotiating period before a member actually leaves, extendable only by unanimous agreement, some of it's effects are immediate:
The UK has been excluded from some meetings of the Council, the Council and Commission have had to set aside a great deal of time and resources to conduct the negotiations, Sterling devaluation had led to some Irish food exporting companies with narrow margins having to go into liquidation, the Irish stock market is severely depressed despite a booming economy, and the political situation in Northern Ireland has been destabilized with little chance the devolved institution becoming functional again until and unless the border and wider ramifications for the Good Friday Agreement are addressed to the satisfaction of both communities.
Some of these effects may be irreversible even if the A.50 notification is eventually withdrawn. It is therefor only fair and reasonable that the EU27 have some say in whether an A.50 notification can be withdrawn or not, and indeed they may be inclined to put some conditions in place before agreeing to do so. The effects of an A.50 notification are therefore immediate, extensive, and sometimes irreversible, and the final act of leaving the EU is the end, not the beginning of the process set in train by the notification.
A.50 provides for an extension of the negotiating period by unanimous consent, and even explicitly provides for the situation where a member having given notice of leaving changes their mind - they have to re-apply for membership under A.49. You cannot simply short circuit that process by withdrawing an A.50 notification and acting as if it never happened. It is the gravest act a member can initiate and has immediate and inevitable consequences unless and until there is a change of heart by all parties to the Treaty.
Leaving is a political act, changing your mind about leaving is a political act, being allowed to rejoin is a political act. The CJEU will be most reluctant to interfere in the prerogatives of the Council, Parliament, and Commission to manage these processes, and the text of A.50 gives a clear, concise, and unambiguous description of how the process should be managed. It does not include giving the departing member a unilateral right to cause great upheaval in the Union only to change their mind if they don't like the outcome of the negotiations, or if they have managed to gain more advantageous terms of membership through threatening to leave.
Sometimes the most simple straightforward reading of a text is also the correct one.
Although there have been a few other comments on the blog, none addressed the points I made, and the conversation quickly degenerated into a point scoring exercise on the arguments for and against Scottish independence. Perhaps people here have more to contribute on the subject.
At its most general level, my argument is that the failure of A.50 to provide for an explicit right of withdrawal of an A.50 notification is damning. If the framers and signatories had wanted to provide such a right, a simple paragraph could have done so.
Oliver Garner argues that the Sovereign will of a nation has to be respected even when it changes its mind. But there are 28 sovereign nations involved in, and effected by this process, and they too have rights.
Arguing that the Vienna Convention on the law of Treaties and general custom and practice in international law provides for the rights of a change of mind are weak tea indeed, when France and Hungary are not even signatories, and just because many Treaties provide for a "cooling off period" does not mean that such a provision is applicable to a Treaty which specifically does not provide for one.
Finally, we must recognise a distinction between politics and law. The Treaties provide the European Council and Parliament a wide degree of discretion as to how they should conduct their business. The ECJ should only intervene when they are clearly acting outside their Treaty given powers.
Ultimately, allowing the UK to withdraw its A.50 notification to the EU Council is a political decision that only the Council, in agreement with the UK, can make. The issue which needs to be resolved, for me, is whether that decision can be made by weighted majority vote, or whether unanimity is required.