Advocate General Campos Sánchez-Bordona has advised that Article 50 of the Treaty of the European Union (“TEU“) allows for the unilateral revocation of the notification of the intention to withdraw from the EU, meaning that the UK should be able to unilaterally cancel its withdrawal from the EU: Advocate General’s Opinion in Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union
At the request of various MSPs, MPs and MEPs, the Scottish Court of Session, Inner House, First Division (UK), asked the Court of Justice of the European Union (“CJEU”) whether a Member State which has notified the European Council of its intention to withdraw from the EU in accordance with Article 50 TEU may unilaterally revoke that notification and, if so, subject to what conditions.
The advice from the Advocate General is that yes, subject to certain conditions and limits, a Member State may withdraw its Article 50 notice. Those conditions and limits are: (1) it must be notified by formal act to the European Council; (2) it must respect national constitutional requirements i.e. UK parliamentary authorisation may be required; (3) logically revocation must happen within two years of notification; and (4) there must be no abuse of procedure.
The CJEU will now begin its deliberations in the case with a view to coming to a binding decision at a later date. An Advocate General’s Opinion is not binding but will often be followed by the CJEU.