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CJEU: UK can revoke Brexit unilaterally

Out-Law News | 10 Dec 2018 | 9:10 am | 2 min. read

The UK can unilaterally reverse its decision to leave the EU, the Court of Justice of the EU (CJEU) has ruled.

In a judgment issued on Monday morning the court explained that it is the sovereign right of the UK to revoke Brexit and remain an EU member state, if it wishes.

"In the absence of an express provision governing revocation of the notification of the intention to withdraw, that revocation is subject to the rules laid down in Article 50(1) TEU for the withdrawal itself, with the result that it may be decided upon unilaterally, in accordance with the constitutional requirements of the Member State concerned," the CJEU said.

According to the CJEU, the UK can exercise its right to revoke Brexit up until the point that a withdrawal agreement is concluded between the EU and UK or, where no such agreement has been concluded, "for as long as the two-year period [from the point Article 50 is triggered], possibly extended in accordance with [Article 50], has not expired".

The UK's power to revoke Brexit unilaterally is not absolute. The CJEU set out conditions the UK would need to satisfy should it wish to exercise its revocation powers.

"The revocation of the notification of the intention to withdraw must, first, be submitted in writing to the European Council and, secondly, be unequivocal and unconditional, that is to say that 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," the CJEU said.

Any UK decision to revoke Brexit must also be taken "in accordance with its constitutional requirements", the court said.

Clare Francis, an expert in Brexit at Pinsent Masons, the law firm behind Out-Law.com, said the CJEU's ruling "will have a significant impact" on the vote scheduled in the UK parliament tomorrow, when MPs will decide whether to back the Brexit withdrawal agreement negotiated by the UK government and EU27 countries, as it "potentially removes the threat of an automatic no deal scenario". 

"There is now another bargaining chip in the hands of the government which could elect to revoke the Article 50 notice or use the fact that it has this right to buy more time to seek a mutually agreeable deal," Francis said. "Therefore, parliament could view this as meaning its alternatives to voting in favour of the deal are less stark."

"Whilst some may see this as an opportunity to stop Brexit in its tracks, in reality it needs to be seen as another piece in a complicated jigsaw. Businesses need to remain agile and continue to plan and prioritise their activity focusing on key scenarios and how they can minimise the impact of these on their business," she said.

The CJEU held that it would have been contrary to principles set out in the EU treaties to require the UK to obtain the unanimous approval of other EU countries to remain within the EU.

"Such an approval procedure would be incompatible with the principle … that a member state cannot be forced to leave the European Union against its will," the court said.

The CJEU's ruling largely follows a non-binding opinion issued in the case last week.

In his opinion, advocate general Manuel Campos Sánchez-Bordona set out an additional condition that he said the UK should have to satisfy if it were to decide to revoke Brexit unilaterally. He said the UK would need to observe the principles of "good faith and sincere cooperation" when exercising the option to reverse Brexit. That condition is not specified in the CJEU's ruling, however.

The UK is scheduled to leave the EU on 29 March 2019.