Opinion Of The Advocate General Of The ECJ In The Article 50 Case

07 Dec 2018, 41 mins ago

Advocate General Manuel Campos Sánchez-Bordona has given an opinion that the UK could revoke the notification it gave under Article 50 (of the Treaty on European Union). This means that the UK could withdraw its notification to the EU expressing its intention to leave the European Union. In essence, he has suggested that the UK could reverse Brexit at any time up to the conclusion of the official withdrawal agreement. As it stands, therefore, the UK has until 29 March 2019 to cancel Brexit.

The Advocate General’s preliminary opinion comes at a time when the UK Government is in turmoil over the divorce agreement that Theresa May has negotiated with the EU. The Advocate General has now presented a new option – that the UK might stay in Europe by cancelling its withdrawal.

The Advocate General contended that the UK Government’s argument that any such revocation of Article 50 was a hypothetical situation and was therefore inadmissible was wrong. It is important to note that the Advocate General’s opinion is not binding on the European Court, although it is considered to be highly influential. Judges of the European Court will now begin their own deliberations on this case and a final judgment will follow in due course.

The Advocate General made four main points:

  1. The conclusion of a withdrawal agreement is not necessary for the withdrawal to be completed;
  2. That triggering Article 50 is notification of an intention to leave the EU and, crucially, not a decision to leave;
  3. The revocation of a decision to withdraw must respect a Member State’s national constitutional requirements, and that if it is revoked in line with that State’s constitutionalprocedures, the constitutional basis for the withdrawal will fall away; and
  4. That the rejection of a decision to withdraw would lead to the illogical situation of forcing the Member State in question to leave the EU only to then have to negotiate to become a member again.

The Advocate General also stated, perhaps controversially, that “obstacles” should not be placed in the way of a State which initially wanted to leave the EU but then changed its mind, and that allowing such a State to continue being a member of the Union advanced the idea of European integration.

How to reverse Article 50:

  1. The revocation must be formally communicated to the European Council;
  2. It must respect national constitutional procedural requirements – namely, the revocation must be approved by Parliament;
  3. This must be done within the two-year time limit set by Article 50.

Furthermore, the Advocate General is of the opinion that the European Council does not need to unanimously approve the revocation of withdrawal. He argues that this would increase the chance of a Member State leaving against the EU’s will. Until the Member State officially leaves the EU it maintains the rights of a Member State and should consequently be treated as such, and it would therefore cause a constitutional crisis for one EU Member State to force the withdrawal of another State by rejecting the revocation.

Whether this decision will affect the reception of Theresa May’s divorce bill remains to be seen.


The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2018