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I have replied to the law blog you linked to via twitter as follows:
The phrase "clutching at straws" comes to mind. Whatever way you look at it, the insertion of a simple clause or sub clause in A.50 providing for the revocation of an A.50 notification in certain circumstances would have made this whole question absolutely clear. The absence of such a clause is therefor damning. Clearly there was no intention to create such a "right" by the framers of, and parties to, the Treaty. You are asking the ECJ to create a "right" where patently none is provided for in the Treaty.

You must also take the separation of powers between the ECJ and the European Council and Parliament into account. The latter two institutions are charged with the political running of the EU. Clearly they could, at their absolute discretion, decide to accept a request for the revocation of an A.50 notification as a political act. However making a political decision to accept or reject such a revocation, and granting an absolute right to a withdrawing member to unilaterally withdraw their notice of leaving are two very different things. You are asking the ECJ to impose constraints on their powers and freedom of action which are nowhere alluded to in the Treaties.

There are also practical issues to consider. What is to prevent any member, dissatisfied on any matter, to issue A.50 notifications willy nilly only to withdraw them at the last moment if they manage to gain some negotiating leverage by doing so. The EU would be in ongoing turmoil, not knowing which notifications are for real, and which were purely tactical. Political decisions are best left to the political institutions, and the ECJ would be reluctant to intervene unless some action is clearly in breach of the Treaties. The Council and Parliament have wide discretion within the Treaties to make political decisions, and that is as it should be. The rights of any one member state are not absolute, but exist only insofar as they are provided for in those treaties.

The more interesting question is whether the Council can accept a revocation by weighted majority vote, or whether unanimity would be required. A. 50 does make provision for the extension of the 2 year notice period under A.50, but only by unanimous agreement. As a revocation most closely resembles an indefinite extension, meaning the notice party never leaves, it seems reasonable to assume a revocation would also require unanimity. That would make any decision to remain subject to the whims of each and every one of the remaining 27 member states -j ust as it takes only one member to block the accession of a new member under A.49.

The alternative point of view is that as an Exit Agreement only requires a weighted majority to be accepted by the Council, so should a decision not to conclude one and instead terminate the exit process also only require a weighted majority vote? It is a pity the ECJ is not being asked to adjudicate on this issue.The bottom line depends on whether the EU and UK continue to be on good terms as the A.50 process nears its end and the UK decides it wants to remain in after all. If relationships have become very strained there is always a possibility that a blocking minority might object to accepting a withdrawal of an A.50 notification. That too is as it should be. Membership of a club should be dependent on the willingness of all parties to work constructively together and to accept obligations as well as entitlements.

The UK has not always demonstrated a willingness to do so over the past 45 years of membership. It would be ironic indeed if it was the EU which ultimately decided it no longer wished to have the UK as a member and blocked attempts to terminate the A.50 process. Most Council members have expressed a willingness and indeed an eagerness to welcome the UK to remain in the EU should the UK change its mind so this seems a very unlikely prospect. However the invocation of A.50 should not be a cost or risk free action, and the possibility that some other members would be more than happy to see the UK or some other "difficult" member exit should not be entirely discounted. Other members have rights too, and the ECJ most take cognizance of their rights as well.



Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Mon Sep 24th, 2018 at 08:52:41 PM EST
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