UK's 'hypothetical' power to cancel Brexit in dispute at EU’s top court

5 December 2018 11:50am

27 November 2018. By Zosia Wanat.

Does the UK have the sole power to cancel the decision that triggered Brexit? That was the weighty and controversial question in front of the EU's top court today.

A panel of 26 judges at the EU Court of Justice heard arguments on whether Article 50, the EU Treaty's exit clause, could potentially be revoked by the UK alone.

On one side were petitioners arguing that a country leaving the bloc should have an emergency-stop button, on the other were the EU institutions, arguing that stopping the process is a call in which all member states have a say, and the UK government, saying the "hypothetical" question shouldn't be addressed by the court at all.

The Luxembourg court is considering the issue after a referral for guidance by Scotland's highest court, which had been addressed by a cross-party group of six Scottish lawmakers from the Scottish and European parliaments, all of whom oppose Brexit.

They want to know if the UK government can reverse its withdrawal notification without needing permission from the EU’s other member states. Article 50 is silent on what happens if a country that has asked to leave the bloc wants to stop the process.

Aidan O’Neill, representing the Scottish politicians, said that if a member state want to stop the withdrawal process, another shouldn’t have a veto on that state's decision.

“The possibility of the expulsion of a state from the EU in these circumstances runs counter to the spirit of the [EU] treaties, and finds no basis in the wording, purpose or intent of Article 50 TEU,” he said in his opening statement, referring to the Treaty on the European Union, one of two core texts laying out how the EU operates.

Effectively expelling a country would be against the EU's general spirit, O'Neill argued: “It cannot be in the interests of the EU as a whole to force a member state to leave the EU against the wishes of the people.”

The petitioners rejected the EU institutions' argument that an unilateral revocation could provoke legal uncertainty for the bloc as a leaving country would “hold the other members hostage.”

“Allowing for a member state, in the course of the negotiating period, to be able to decide unilaterally against withdrawal restores and enhances legal certainty. An effective revocation means that the situation in law is restored to what it was before notification”, O’Neill said.

The petitioners also opposed the argument that the question should not be addressed by the court, stating that regardless of the political circumstances, the matter is still a legal one, “at the heart of the EU law.”

The petitioners have two heavyweight opponents. The UK government argues the question is hypothetical because Theresa May’s government has repeatedly stated that it does not intend to revoke the notification, making it inadmissible for consideration by the EU court. The EU institutions, meanwhile, stress that any decision to halt an Article 50 request must be agreed among all member states.

UK arguments

The UK government argues that the question is inadmissible because any answer would only be an “advisory opinion,” and the EU court has always refused to answer political questions and provide guidance in the form of advice.

Richard Keen, the UK government's top lawyer in Scotland, said the court should not act as “a political adjudicator,” arguing that “this case is a request for an advisory opinion . . . elected politicians asking how to execute their power are seeking an advisory opinion,” he said, calling on the court to ”respect its own jurisdictional boundaries.”

Keen also stressed that if the court didn't find the question inadmissible, any answer it would subsequently give would be used as “political ammunition” in the Brexit debate going on in London and Brussels, saying that the claimants were trying to “corrupt this court to ongoing political campaigning.”

“Pandora was given a large box at her wedding which she was told not to open. We respectfully plead the court should not open this box,” he added.

He said the question shouldn’t be targeted at the UK government itself but rather at the European Commission and the Council of the EU, the legislative body representing member states.

EU arguments

Both EU institutions were represented in the court to underline their argument that a decision to revoke Article 50 cannot be taken unilaterally.

Hubert Legal, representing the council, said that Article 50 was designed to give some liberty to member states but also to protect the EU's integrity. “The prerogative in acting alone has been exhausted by putting the notification letter on the council’s table,” he said.

“The council doesn’t say that the process cannot be stopped; it cannot be stopped unilaterally,” he added.
He added that it would be useful to have a legal interpretation for the courts.

The commission argued that the question at hand did not relate to a real dispute. “The petitioners have asked for guidance . . . The answer will not bind them to any particular course of action, it’ll be indeed purely advisory,” said Karen Banks, for the EU executive.

She also stressed that allowing Article 50 to be revoked unilaterally could open the process to abuse, for example if a country used it only to buy time in negotiations. “There has to be a control mechanism,” she said, asked why other member states should have a say in the process.

Ruling prospect

The EU Court of Justice's advocate general for the case, Manuel Campos Sánchez-Bordona, said he would give an opinion on the matter at a later date. The case is being expedited, but it could still take months before judges issue a ruling.

The petitioners said that if the court declines to answer the question, Scotland's Court of Session “will be forced to give its own answer on the proper interpretation of Article 50 TEU. This creates a risk of an undesirable divergence of views across the EU on a matter.”

Earlier this month, the UK government asked the UK Supreme Court for permission to appeal against an earlier ruling that the case should be referred to the EU Court of Justice, but the bid was rejected.

O’Neill said this showed that the UK government’s key argument — that the question is “hypothetical” — has already failed once and that it shouldn’t be used again in the EU’s highest court.

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