On the 4^th December 2018, the Advocate General released his opinion on whether Article 50 TEU allows for the unilateral revocation of the notification of the intention to withdraw from the EU.  There is absolutely zero mention nor reference to the term “revocation” under Article 50 and this is largely because Article 50 was never actually intended to be used. According to David Allen Green, “Article 50 was intended to be an ornament not an instrument.” Prior to the Brexit referendum, it was unthinkable that any country would ever intend to leave the European Union. However, in a referendum on 23^rdJune 2016, the citizens of the UK voted in favour (51.9% to 48.1%) of their country’s exit from the European Union. Consequently, the UK gave formal notification of the intention to withdraw from the EU on Wednesday 29^thMarch 2017 and thus in absence of a withdrawal agreement, the Treaties will cease to apply after two years, which all leads to the following question – can this notification of withdrawal be revoked?

The UK Government contends that this question is purely hypothetical, since there is no indication that Parliament is going to revoke its intention. However, the Advocate General emphasises that the dispute is genuine and “has obvious practical importance.” Without the possibility of revocation, the UK faces two unpleasant options: (a) to leave the EU with a deal, or (b) to leave the EU without a deal. If the notice of the intention to withdraw were revocable, this would open a third more-admirable option, namely remaining in the European Union in the face of an unsatisfactory Blindfold Brexit.

In addressing the issue, the Advocate General concludes that the European Court of Justice should, in its future judgment, declare that Article 50 TEU does allow for the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded. In his published opinion, the Advocate General deduces from his systematic analysis for Article 50 TEU various reasons in favour of a unilaterally revocable notification.

(1) Not a prerequisite for the withdrawal

First, the substantive and procedural obligations imposed by Article 50 TEU on a Member State which decides to withdraw are very limited. Whilst, the Member State must notify its intention to the European Council, it is by no means required to justify that intention, or to set out the reasons which lead it to leave to the EU. Similarly, it must wait two years from the notification to leave as the conclusion of an agreement is not a prerequisite for the withdrawal to be completed. Therefore, as occurs in other areas of law, in the absence of an express prohibition or a rule which provides otherwise, whoever has unilaterally issued a declaration of intent addressed to another party, may retract that declaration until the moment at which, by the addressee’s acceptance, conveyed in the form of an act or the conclusion of a contract, it produces effects.

(2) Intention to withdraw rather than decision to withdraw

Secondly, Article 50(2) TEU states that “a Member State which decides to withdraw shall notify the European Council of its intention,” thereby activating the second phase of the procedure. Emphasis must be placed on the word “intention”; the provision refers to the notification of the ‘intention’ to withdraw rather than the decision to withdraw. Intentions are never conclusive and could change at any point in time. The UK Government could simply argue that their intention has since changed, and they now wish to remain. This argument, prima facie, seems appealing but is perhaps distorted by subsequent wording in Article 50(2). The article also uses the term ‘decision’: “The Member State which decides to withdraw shall notify…its intention.”  However, Article 50(2) TEU could have used the formula ‘shall notify that decision’ (or another similar formula), instead of ‘shall notify its intention’. Some meaning must be attributable to that wording, which is undoubtedly not due to an oversight. It may, therefore, be considered that the use of the word ‘intention’ and of the present tense (‘which decides’ rather than ‘has decided’) in Article 50(2) TEU authorises the State to ‘retract’ during the process and not give effect to its initial intention to withdraw, as long as that is in accordance with its own constitutional requirements.

(3) Not conclusive due to the second phase of acting in accordance with the Member State’s constitutional requirements

It is common knowledge that the negotiation may only be triggered after notification of the intention to withdraw, for which it is essential that the Member State has acted in accordance with its own constitutional requirements. As such, the unilateral nature of the first phase of the procedure under Article 50 TEU is projected onto the subsequent phase of negotiating the terms of its withdrawal with the EU institutions, in such a way that if the withdrawal decision is revoked in accordance with the departing Member State’s constitutional procedures, its constitutional foundation will merely disappear.

(4) Illogical

The Advocate General states that the rejection of revocation would in practice entail the forced exit from the EU of a State which, according to the Court of Justice’s recent case-law, continues to be an EU Member State in all respects. It would therefore be largely illogical to force that Member State to withdraw from the EU in order to then have to negotiate its accession. If Article 50 did require a forced departure only for the Member State to re-join at a later stage, the Member State would be bound by Article 49 TEU – which requires joining Member States to join the Schengen and adopt the Euro as their domestic currency.

Subject to Conditions

The Advocate General has, however, stated that the possibility of unilateral revocation is subject to certain conditions and limits.

1. The unilateral revocation must be notified by a formal act to the European Council
2. It must respect national constitutional requirements (this most probably requires an Act of Parliament)
3. The revocation must be made in good-faith (in absence of the good-faith requirement, a mockery would be made of the two-year time period post notification)

An optimistic future?

Whilst the opinion released by the Advocate General does seem rather appealing to the pro-European, it remains unlikely that the UK Government would ever revoke its notification.  The UK Government has already contended that the question of revocation is inadmissible, given that it is hypothetical and merely theoretical, since there is no indication that the UK Government or Parliament are going to revoke the notification of the intention to withdraw. A revocation would lead to an inevitable uproar by the likes of Nigel Farage and Boris Johnson who would certainly challenge the prospect of a second referendum. However, it was only yesterday that a petition of 1.5 million signatures were handed into Downing Street demanding a new referendum. Perhaps, Theresa May could use this petition to justify a revocation and to provide a second referendum to the people.