UK could not be forced to revoke the Article 50 notice
The Court of Session in Edinburgh has referred to the European Court of Justice (ECJ) the question of whether the UK can unilaterally revoke Art 50, in a case brought by a group of MPs and MSPs.
The ECJ is asked whether EU law permits unilateral revocation and, if so, subject to what conditions and with what effect relative to the member state remaining in the EU.
David Greene, NLJ consultant editor and senior partner at Edwin Coe, who represented one of the litigants in the 2017 Supreme Court case on whether Parliamentary approval was required for Art 50 to be triggered, said the ECJ would need to be ‘super-fast’ to have a decision before the revocability issue becomes redundant in March 2019.
‘One wonders, however, whether politically it matters too much,’ he said. ‘If the UK decided to withdraw or revoke the Article 50 notice it would require political settlement in some fashion. A revocation in a political vacuum would be unworkable and is not on the table from either the UK or EU side. The UK could not be forced to revoke the Article 50 notice.
‘If it chose to withdraw the notice as it can do in accord with Article 50 one might assume the EU, the EU27 and the European Parliament would work to achieve that goal. It’s an interesting legal question but one wonders if it is of any consequence.’
Meanwhile, the London branch of the Unified Patent Court, originally scheduled to open in 2017, might not open at all if there is a no deal Brexit. In its latest tranche of technical papers, published this week, the government warns that it may have to withdraw from the court and unitary patent.
It said UK businesses would still be able to use the court and unitary patent to protect their inventions in EU countries but would have to rely on national patents in the UK.
It has previously insisted that the court is not an EU entity and therefore would not be affected by Brexit. The court is not an EU institution but is only open to 25 EU member states and would resolve disputes concerning the new unitary patent system.
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