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There was never a doubt that the Brexit would breed political, economic and legal puzzling questions around roughly… everything. No need to be an EU legal expert to realise what an uncertainty would be generated by the unprecedented situation of the exodus from what is so much more than merely another international treaty; the withdrawal from “a new legal order of international law” as consistently held by the European Court of Justice since the 1963 landmark ruling van Gend & Loos, “for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals” (Opinion 2/13, at para 157) and hence with an immense body of law fully integrated in the national legal systems. As Advocate General Szpunar eloquently wrote in the concluding remarks of his opinion for the case of R O “Brexit constitutes terra incognita in terms of EU law” (at para 79).
This soupçon became our daily news broadcast for the last almost three years, ever since the UK voters detonated the Brexit bomb, on 23 June 2016 and as from the notice of withdrawal in accordance with Article 50 of the Treaty on European Union (TEU) on 29 March 2017. Whereas in the immediate aftermath of the referendum -and of the judicial review in the UK over national constitutional rules- legal debates concerned mostly how the de-Europeanisation of the UK legal system would develop, as the negotiation period post invocation of Art. 50 perpetuates, further legal questions arise on the UK’s rights and obligations during this unsettled lingering period.
Many of those issues have arisen through legal challenges. Given the complexity, the importance and the originality of the matter, the Court of Justice of the EU (CJEU) in its role to “ensure that in the interpretation and application of the Treaties the law is observed” (art.19 TEU), is called upon to rule on these questions.
Can the UK unilaterally revoke the Art. 50 TEU withdrawal notice?
Following Art. 50, if no deal is stroke between the Member State which has notified of its intention to depart (i.e. the UK) and the EU after two years of negotiations, the exodus takes effect automatically. Only possible resort to buy more time: a unanimous vote of the European Council “to extend this period”. Having achieved (and now slightly passed this point) the debate about extension or no extension has lately been the ‘talk of the town’. In the course of this fierce debate, a question which came up was what could happen if the UK people would decide to alter their 2016 vote over, for instance, a new referendum.
In this political context, the question of whether the UK may revoke its Art. 50 notification has been raised in a judicial review petitioned by Members of Scottish and European Parliaments and the House of Commons before Scotland’s supreme civil court, the Court of Session (Wightman and ors, C-621/18). The Scottish court stayed its proceedings and referred the question to the CJEU underlining that this was “a genuine and live issue, of considerable practical importance […]” (at para 29).
The Court held in its consistent teleological interpretative approach, in light of the Treaties as a whole and settled case-law and in corroboration with relevant international law instruments such as the ‘Treaty on Treaties’ (the Vienna Convention), that the Member State which invoked Art. 50 can revoke its notification to withdraw “unilaterally, in an unequivocal and unconditional manner”.
Consequently, following this ruling one major uncertainty was resolved: if the UK were to decide before entry into force of the withdrawal (i.e. within the deadlines) that it wants to revoke its notice for withdrawal, it may “Bremain” without any further formality.
Is the UK a ‘lesser’ EU Member State after 29 March 2017?
“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement” reads paragraph 3 of Art. 50 TEU. The assumption in construing this article would be that till entry into force of the withdrawal agreement, business carries on regardless. That said, various legal questions have arisen and continue to appear about rights and obligations of the UK towards the EU and the 27 or of other Member States towards the UK.
Two recent rulings of the Court revolving around the EU area of freedom security and justice, namely on asylum policy and arrest warrants, grapple with this question.
- Art. 50 notification does not preclude executing a European arrest warrant to the UK: the R O case (C-327/18, judgement on 18 September 2018) concerned a preliminary reference made by the High Court of Ireland to the CJEU on whether a Member State has to deny surrender to the UK of a person subject to a European arrest warrant (EAW) whose surrender would otherwise be required by law, in light of the fact that the UK gave the notice of intention to withdraw under Art. 50. In other words, does the intention to withdraw undermines the level of mutual recognition and mutual trust –the principles under which lies the EAW- between the UK and the rest 27? The referring court underlines inter alia the “[…] uncertainty as to the extent to which [the subject] would, in practice, be able to enjoy rights under the Treaties, the Charter [of Fundamental Rights] or relevant legislation” (at para 26) after departure of the UK. The CJEU held that the arrest warrant had to be executed as before. In its reasoning the Court highlights that any deviation from what would be otherwise required by the UK would “be the equivalent of unilateral suspension” (at para 47) of the provisions in this case of the Framework Decision 2002/584/JHA on the EAW. In past judgements, the CJEU has recognised that Member States may place limitations ‘in exceptional circumstances’ (at para 48) but it specifies that the notification under Art. 50 is not qualified as such. As the Court adamantly observes “such a notification [Art. 50] does not have the effect of suspending the application of EU law in the Member State that has given notice of its intention to withdraw from the European Union” (at para 45).
- Notification to withdraw does not preclude the UK from being the responsible state for asylum: In a fairly more recent judgement issued on 23 January 2019 (C-661/17), regarding the application of the Dublin III Regulation, the Court examined a question coming again from the High Court of Ireland on what implications the Brexit notification could have on the Dublin system, i.e. the system determining which Member State is responsible to examine an asylum application. In the case at issue the UK would otherwise be the responsible State; the Irish Court asked if due to the UK’s Art. 50 notification, Ireland which was the determining State was obliged to examine itself the asylum applications in question and not refer them to the UK. The Court replied negatively. Reiterating what had affirmed in R O, that as long as the withdrawal agreement is not in force, EU law is applicable and enforceable in the UK as before (at para 54), the Court held that this cannot compel Ireland to examine an asylum application for which it is not the responsible state.
There would naturally be a lot more to be discussed on other legal parameters examined and presented by the Court on these cases, but for now and the issue which concerns this post, the gist is summarised in paragraph 45 of the R O case: the notification on Brexit does not have a suspending effect on EU law in the UK. As long as the withdrawal agreement is not in force, EU law applies in the old fashioned way!
We will follow and report back on judicial and other institutional developments related to the plight arising from the perpetuation of the ‘unique’ period and the current limbo, the most imminent being if the UK will be required to participate at the May European elections under condition that the Special European Council on 10 April 2019 shall unanimously accept to grant the extension requested by the UK on 5 April 2019. It is reminded that the legal default if no agreement is reached on the forthcoming European Council is the agreement taken by EU leaders on 21 March, i.e. that the UK shall leave without a deal when the clock strikes midnight CET and the day turns 13 April.
This post was last updated on 6 April 2019.