by Frank Schnittger
Tue Dec 4th, 2018 at 04:59:50 PM EST
The Advocate General of the European Court of Justice has advised the Court that it should find that the UK can unilaterally withdraw its A.50 notification to leave the EU, subject to certain conditions. His finding is not binding on the Court, but it would be unusual for the Court to reject his finding in its final ruling, which could come in the next few weeks.
In doing so, the Advocate General has rejected the view of the EU Council and the EU Commission that any revocation of an A.50 notification should be subject to the unanimous agreement of the EU Council. He has also rejected the view of the UK government that the issue is entirely academic and hypothetical, and therefor should be considered inadmissible by the court.
Finally, and most dammingly, he has rejected my arguments to the effect that A.50 provides for no such right, and he goes on to quote the Vienna Convention on the Law of Treaties as providing for such a right, even while noting that the EU, France and Romania are not signatories to that Treaty. Instead he argues (para. 79) that the rules of customary international law are binding upon the Member States and the European Union and may be a source of rights and obligations in EU law.
In one sense the case may indeed be academic. Even its chief protagonist (Wightman) accepts that "it would need a second EU referendum before article 50 could be revoked by the UK. That would take months to arrange, which would mean the current article 50 process would need to be extended." So the unanimous agreement of the EU Council to extend the 2 year negotiation period would be needed after all, although there is a general sense that this is unlikely to be refused if the purpose is to facilitate a second referendum which might reverse the Brexit process.
In arriving at his conclusions, the Advocate General accepts (para. 90) that "In general terms, it is permissible to defend both the proposition that everything which a provision does not prohibit is allowed and the proposition that the silence of the law implies the absence of a right. However he argues that as the issuance of an A. 50 notification is a unilateral act of a sovereign nation, so should be its withdrawal. The issuance of an A.50 notification is a statement of an intention to withdraw and not the withdrawal itself, and, as we all know, intentions can change. The notifying state retains the agency to change its mind.
The Advocate General comes to this conclusion despite the fact that A.50 also refers to decisions rather than mere intentions and so his logic here seems rather strained. (para. 101). Great weight is attached to the phrase "in accordance with the withdrawing state's own constitutional requirements" to allow for a change of mind where there is "a referendum, a meaningful vote in Parliament, [or] the holding of general elections which produce an opposing majority" (para.105).
Such facts may indeed induce a change of mind, but they hardly invalidate the constitutional basis of the original decision to issue an A.50 notification, as he appears to argue. His claim that such changes could mean that the "constitutional basis on which it [an A.50 notification] was sustained subsequently disappears", is hardly true. The constitution remains the same and its legal requirements were never broken. People have simply changed their minds in accordance with the same constitution's procedures. It is the political basis of a decision which has disappeared, not its legal or constitutional basis.
It is hard to escape the conclusion that the Advocate General's advisory ruling is as much political, as legal, and that he is "bending over backwards" to facilitate a change of mind by the UK. Whether his advice is heeded by the Court, and whether it creates an undesirable precedent for the future, only time will tell. But it is not difficult to imagine an EU Council in the future treating another A.50 notification with a "pinch of salt", and not engaging seriously with the notice party until it becomes irrevocable after 2 years. Why bother, if it can be simply revoked, unilaterally, at any time until the two years are up?
Yes, some formal attempt at an exit agreement - bearing in mind the precedents created by the Brexit agreement - may be arrived at in order to meet the formal requirements of A.50 to negotiate a deal. But any member issuing an A.50 notification needs to be aware that the EU institutions have little incentive to engage seriously until they know that the notification is for real and a member is almost out the door. The EU would also have an incentive to be as hardline as possible in the negotiations, in order to force a change of mind on the notice party. The real deals will be made with ex-members as third parties only after they have left, resulting in great political uncertainty and economic disruption in the meantime.
So well intentioned as the Advocate General's advice may be, it could well end up having counter-productive political results. Far from being the nuclear option for an unhappy member, it may come to be merely a tactical negotiating device to be greeted with indifference until the EU institutions are convinced a member is really leaving, and that some interim arrangements are required to avoid unnecessary economic disruption.
I would not be surprised to see some more explicit provisions governing an A.50 notification withdrawal included in a future EU Treaty. The ECJ may wish to "legislate from the bench", but the European Demos may well decide that such decisions should really be left to them. If the UK can change its mind about being a member, can they not change their minds about having the UK as a member?
Nowhere, in the Advocate General's reasoning, is any weight given to the rights of other members who may have been adversely effected by the Brexit process. In dis-empowering the EU Council and other member states in the A.50 process, the Advocate general of the ECJ has done a disservice to the EU and created a recipe for much greater disruption in the future. Beware of lawyers making laws....