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The UK can unilaterally revoke its A.50 notification

by Frank Schnittger Tue Dec 4th, 2018 at 04:59:50 PM EST

The Advocate General of the European Court of Justice has advised the Court that it should find that the UK can unilaterally withdraw its A.50 notification to leave the EU, subject to certain conditions. His finding is not binding on the Court, but it would be unusual for the Court to reject his finding in its final ruling, which could come in the next few weeks.

In doing so, the Advocate General has rejected the view of the EU Council and the EU Commission that any revocation of an A.50 notification should be subject to the unanimous agreement of the EU Council. He has also rejected the view of the UK government that the issue is entirely academic and hypothetical, and therefor should be considered inadmissible by the court.

Finally, and most dammingly, he has rejected my arguments to the effect that A.50 provides for no such right, and he goes on to quote the Vienna Convention on the Law of Treaties as providing for such a right, even while noting that the EU, France and Romania are not signatories to that Treaty. Instead he argues (para. 79) that the rules of customary international law are binding upon the Member States and the European Union and may be a source of rights and obligations in EU law.


In one sense the case may indeed be academic. Even its chief protagonist (Wightman) accepts that "it would need a second EU referendum before article 50 could be revoked by the UK. That would take months to arrange, which would mean the current article 50 process would need to be extended." So the unanimous agreement of the EU Council to extend the 2 year negotiation period would be needed after all, although there is a general sense that this is unlikely to be refused if the purpose is to facilitate a second referendum which might reverse the Brexit process.

In arriving at his conclusions, the Advocate General accepts (para. 90) that "In general terms, it is permissible to defend both the proposition that everything which a provision does not prohibit is allowed and the proposition that the silence of the law implies the absence of a right.  However he argues that as the issuance of an A. 50 notification is a unilateral act of a sovereign nation, so should be its withdrawal. The issuance of an A.50 notification is a statement of an intention to withdraw and not the withdrawal itself, and, as we all know, intentions can change. The notifying state retains the agency to change its mind.

The Advocate General comes to this conclusion despite the fact that A.50 also refers to decisions rather than mere intentions and so his logic here seems rather strained. (para. 101). Great weight is attached to the phrase "in accordance with the withdrawing state's own constitutional requirements" to allow for a change of mind where there is "a referendum, a meaningful vote in Parliament, [or] the holding of general elections which produce an opposing majority" (para.105).

Such facts may indeed induce a change of mind, but they hardly invalidate the constitutional basis of the original decision to issue an A.50 notification, as he appears to argue. His claim that such changes could mean that the "constitutional basis on which it [an A.50 notification] was sustained subsequently disappears", is hardly true. The constitution remains the same and its legal requirements were never broken. People have simply changed their minds in accordance with the same constitution's procedures. It is the political basis of a decision which has disappeared, not its legal or constitutional basis.

It is hard to escape the conclusion that the Advocate General's advisory ruling is as much political, as legal, and that he is "bending over backwards" to facilitate a change of mind by the UK. Whether his advice is heeded by the Court, and whether it creates an undesirable precedent for the future, only time will tell. But it is not difficult to imagine an EU Council in the future treating another A.50 notification with a "pinch of salt", and not engaging seriously with the notice party until it becomes irrevocable after 2 years. Why bother, if it can be simply revoked, unilaterally, at any time until the two years are up?

Yes, some formal attempt at an exit agreement - bearing in mind the precedents created by the Brexit agreement - may be arrived at in order to meet the formal requirements of A.50 to negotiate a deal. But any member issuing an A.50 notification needs to be aware that the EU institutions have little incentive to engage seriously until they know that the notification is for real and a member is almost out the door. The EU would also have an incentive to be as hardline as possible in the negotiations, in order to force a change of mind on the notice party. The real deals will be made with ex-members as third parties only after they have left, resulting in great political uncertainty and economic disruption in the meantime.

So well intentioned as the Advocate General's advice may be, it could well end up having counter-productive political results. Far from being the nuclear option for an unhappy member, it may come to be merely a tactical negotiating device to be greeted with indifference until the EU institutions are convinced a member is really leaving, and that some interim arrangements are required to avoid unnecessary economic disruption.

I would not be surprised to see some more explicit provisions governing an A.50 notification withdrawal included in a future EU Treaty. The ECJ may wish to "legislate from the bench", but the European Demos may well decide that such decisions should really be left to them. If the UK can change its mind about being a member, can they not change their minds about having the UK as a member?

Nowhere, in the Advocate General's reasoning, is any weight given to the rights of other members who may have been adversely effected by the Brexit process. In dis-empowering the EU Council and other member states in the A.50 process, the Advocate general of the ECJ has done a disservice to the EU and created a recipe for much greater disruption in the future. Beware of lawyers making laws....

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I hear the motion of contempt has passed. When can I expect someone to be locked up in the Tower?
by generic on Tue Dec 4th, 2018 at 05:05:47 PM EST
Apparently the government have caved and the legal advice will be published tomorrow. Silly of them to have tried to prevent it in the first pace - they were bound to lose and it merely underlines a sense of a government that has lost the plot. Not a good start to the Brexit debate for Theresa...

As for locking people up in the tower see Fintan O'Toole

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Dec 4th, 2018 at 05:28:39 PM EST
[ Parent ]
"the great battle to make Britain Great again" he Trumpets.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Tue Dec 4th, 2018 at 10:23:30 PM EST
[ Parent ]
He being O'Toole.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Tue Dec 4th, 2018 at 10:30:28 PM EST
[ Parent ]
SKY NEWS | Full Brexit legal advice, transcribed

Diversity is the key to economic and political evolution.
by Cat on Wed Dec 5th, 2018 at 10:54:02 PM EST
[ Parent ]
It's Big Ben, not the Tower.
by gk (gk (gk quattro due due sette @gmail.com)) on Tue Dec 4th, 2018 at 06:46:32 PM EST
[ Parent ]
(asking for a friend)

She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre
by ATinNM on Tue Dec 4th, 2018 at 07:44:54 PM EST
The situation here is quite psychotic.


Diversity is the key to economic and political evolution.
by Cat on Tue Dec 4th, 2018 at 08:19:02 PM EST
[ Parent ]
"The situation here is quite psychotic."  It has been for some time. Now it is becoming more apparent even to the low information types.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Tue Dec 4th, 2018 at 10:29:19 PM EST
[ Parent ]
The Brits had a bout of mass stupidity much like us, except we can actually get rid of the President Deals in 2020, while they're going bigly for the long haul.

Also, the Tories lack the GOPer love of authoritarianism, so they can't agree on anything, and Theresa May is John Major in a skirt suit.

Be nice to America. Or we'll bring democracy to your country.

by Drew J Jones (pedobear@pennstatefootball.com) on Tue Dec 4th, 2018 at 10:31:19 PM EST
[ Parent ]
In general terms, it is permissible to defend both the proposition that everything which a provision does not prohibit is allowed ...
"What is not punished is permitted." (Arendt, Life of the Mind)
and the proposition that the silence of the law implies the absence of a right.
"no provision in the law for revoking a duly issued, deliberate action to secede expresses agreement of the authors to reject the premise" (me)

Diversity is the key to economic and political evolution.
by Cat on Tue Dec 4th, 2018 at 08:17:14 PM EST
But will it?

Fine critique in the meantime, Frank, by a dude who's 'not a lawyer'. < wipes tears > Gird yer loins for the litigation to come!

Diversity is the key to economic and political evolution.

by Cat on Tue Dec 4th, 2018 at 08:30:39 PM EST
Rather, the abuse must be prevented through the use of the appropriate legal instruments.
I suppose there are no other torture devices to do so? Anyone who knows of something else in the EU toolbox to stop abusive practices?

Schengen is toast!
by epochepoque on Tue Dec 4th, 2018 at 08:34:43 PM EST
There is no law to prohibit self-abusive practices. The UK can be thankful for that, at least.

Self-harm is generally a result of low self-esteem. We should have let them win the World Cup.

It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

by eurogreen on Wed Dec 5th, 2018 at 07:41:53 AM EST
[ Parent ]

This is not even a matter of opinion. And it's humiliating just to ask the question.

The only way to avoid humiliation is to have a bit of humility.


It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

by eurogreen on Wed Dec 5th, 2018 at 08:50:58 AM EST
It would be humiliating if the United Kingdom left the EU on the EU's terms

It would be humiliating if the United Kingdom bailed out of the EU without a parachute

It is humiliating that the United Kingdom should have got itself into this mess

"Pride goes before a fall"

Agree/Disagree

(Just trying to give YouGov a helping hand)  

I used to be afew. I'm still not many.

by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Wed Dec 5th, 2018 at 10:26:18 AM EST
[ Parent ]
I can do humility, just not very well...

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Dec 5th, 2018 at 02:00:43 PM EST
[ Parent ]


It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II
by eurogreen on Fri Dec 7th, 2018 at 04:10:00 PM EST
[ Parent ]
Guardian
Senior Norwegian politicians and businesses figures have rejected Norway-plus, the increasingly touted British cross-party plan for the UK to leave the EU but join Norway in a free trade trade area inside the EU single market.

They attacked the idea as "neither in Norway nor the UK's interest". The UK would need Norway's permission to join its Efta club.

Could English politicians start talking about "Liechtenstein" in the hope that nobody will notice that it also needs Norway's approval?
by gk (gk (gk quattro due due sette @gmail.com)) on Fri Dec 7th, 2018 at 10:23:28 AM EST
"Kind of like having an abusive partner spiking the drinks and inviting to a Christmas party and think that this will go well."

Schengen is toast!
by epochepoque on Fri Dec 7th, 2018 at 08:53:27 PM EST
[ Parent ]
"spiking the drinks"

Diversity is the key to economic and political evolution.
by Cat on Fri Dec 7th, 2018 at 09:38:05 PM EST
[ Parent ]
and become the EU go-to off-shore Fun for the Entire (Crime) Family center for drugs, money laundering, prostitution, and gambling.

She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre
by ATinNM on Fri Dec 7th, 2018 at 09:43:15 PM EST
[ Parent ]
That appears to have been the Tory plan all along.

Student loans -> a lot of female and some male students turn to prostitution
Benefit cuts -> victims turn to crime, prostitution, or starve/freeze
Police cuts -> more crime
Assault weapons -> Tories vote against banning them

The Tories hate themselves, but not as much as they hate British voters.

And British voters are supine and compliant. Given this pattern of abuse, many countries would have exploded into civil unrest. But the British post on FB and organise petitions, and sometimes write to their MPs, who mostly ignore them.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Sat Dec 8th, 2018 at 02:09:21 PM EST
[ Parent ]
Brexit ruling: UK can cancel decision, EU court says - BBC


The European Court of Justice has ruled the UK can cancel Brexit without the permission of the other 27 EU members.

The ECJ judges ruled this could be done without altering the terms of Britain's membership.

A group of anti-Brexit politicians argued the UK should be able to unilaterally halt Brexit, but they were opposed by the government and EU.

The decision comes a day before MPs are due to vote on Theresa May's deal for leaving the EU.

MPs are already widely expected to reject the proposals during a vote in the House of Commons on Tuesday night.

BBC Brussels correspondent Adam Fleming said the ruling made staying in the EU "a real, viable option" and that may "sway a few MPs" in the way they vote.

The UK got its winding goat track leading out of the ravine. But will it take it?

by Bjinse on Mon Dec 10th, 2018 at 09:03:34 AM EST
The UK can unilaterally stop the Brexit process, the European court of justice has said in a ruling that will boost demands for a second EU referendum.

The court concluded that any EU member state can revoke an article 50 process without needing approval from every other member state.

"The United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU," the ECJ said.



I used to be afew. I'm still not many.
by john_evans (john(dot)evans(dot)et(at)gmail(dot)com) on Mon Dec 10th, 2018 at 09:27:55 AM EST


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