The European Court of Justice (ECJ) has ruled that the UK can unilaterally revoke its Article 50 notification of intention to withdraw from the EU.
The ruling was published on Monday morning, 48 hours before the anticipated House of Commons vote on the Prime Minister’s deal, which has since been cancelled. It backs Advocate General Campos Sánchez-Bordona‘s Advisory Opinion last week, in Wightman & Ors v Secretary of State for Exiting the EU (Case C-621/18).
The ECJ rejected the arguments of the Council of Ministers and European Commission that the consent of all the other Member States was required for revocation. It ruled that the UK can choose to stay in the EU at any time while the treaties still apply, whether in the two-year period from official notification of Art 50 or in any extension of this period agreed with the European Council. The UK would need to make a decision to remain, taken in accord with our constitutional requirements and then duly notified to the President of the European Council.
Charles Brasted, partner at Hogan Lovells, said the ruling ‘put beyond doubt that, until the moment the UK signs a withdrawal agreement or leaves the EU with no deal on 29 March 2019, it can still stop Brexit, even in the face of opposition by the rest of the EU.
‘If it did so, the UK could also retain its current terms of membership, including the "rebate" negotiated by Mrs Thatcher, and it would be under no obligation to join the Euro. The ruling will no doubt hearten ardent remainers across the UK, but it is important to note that it only bites if the UK decides to cancel Brexit and the EU27 disagree. In the more immediate term, confirmation that the UK can still choose to remain in the EU is likely to harden minds, and cause more entrenchment, on both sides of the political divide against the compromises presented by the government's deal.’
The judicial review was brought in the Scottish courts by a cross-party group of politicians and Jolyon Maugham QC, of Devereux Chambers. Their solicitors were Balfour and Mason, and they were represented by Aidan O’Neill QC, of Matrix Chambers.
The government tried to block the Court of Session’s referral of the question to the ECJ but was thwarted by the Supreme Court, which held the referral could be made.
A statement from Matrix Chambers said the ruling means Parliament could ‘call off Brexit’.
‘This would involve the UK keeping the Pound, maintaining its border controls, and holding on to its current EU budget rebate, while continuing to benefit from frictionless and tariff-free trade within the European Union and profiting from the free trade deals which the EU is able to conclude, from a position of world market strength, with third countries outside the EU.
‘It also means that British nationals would retain all the additional rights that come with their being EU citizens, including the rights to live and work in, receive healthcare from, and retire to, the rest of the EU.’
Downing Street has responded that the ruling is hypothetical as the UK will not revoke Art 50.
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