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CJEU – UK can revoke Article 50

The European Court of Justice has today (10 December) announced its decision in Case C-621/18 Wightman and Others as to whether the UK can unilaterally decide to revoke the invocation of Article 50.

The United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU. Such a revocation, decided in accordance with its own national constitutional requirements, would have the effect that the United Kingdom remains in the EU under terms that are unchanged as regards its status as a Member State

All the details available at

https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-12/cp180191en.pdf

CJEU_decision (copy pdf)

In today’s judgment, the Full Court has ruled that, when a Member State has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that Member State is free to revoke unilaterally that notification.

That possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired.

The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council.

Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end.

Full Judgement

CJEU Full Judgement (copy pdf)

Will the UK Parliament consider this Judgement in respect of another option for the way forward ?

Other References

Also see a House of Commons Research Briefing

Brexit: Article 50 TEU at the CJEU

Can the UK end Brexit unilaterally ?

by Politicker 0 Comments

The European Court of Justice’s Advocate General said on Tuesday that the UK has the right to withdraw its Brexit notice from the EU unilaterally.

Advocate Generals Opinion C-621/18

Advocate General Campos Sánchez-Bordona proposes that the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification
of the intention to withdraw from the EU.

That possibility continues to exist until such time as the withdrawal agreement is formally concluded.

(copy)

At the request of various MSPs, MPs and MEPs, a Scottish court, the Court of Session, Inner House, First Division (UK), asks the Court of Justice 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.

In answer to the question from the Scottish court, the Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

Although the advice is non-binding it comes as the UK Parliament begins five days of debates on Theresa May’s proposed Brexit deal.

EU Court of Justice on revocation of Article 50

A Full Court Hearing was held at the Court of Justice of the European Union on 27 November 2018 to decide on the possibility of revoking Article 50 ( Case C-621/18 Wightman )

http://curia.europa.eu/juris/document/document.jsf?text=&docid=207041&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5940443

(copy CURIA-621_18 (pdf) )

1 This request for a preliminary ruling concerns the interpretation of Article 50 TEU.

2 The request has been made in proceedings where the opposing parties are Andy Wightman, Ross Greer, Alyn Smith, David Martin, Jolyon Maugham, Catherine Stihler and Joanna Cherry, on the one hand, and the Secretary of State for Exiting the European Union, on the other, raising the question whether it is possible to revoke the notification of the intention of the United Kingdom of Great Britain and Northern Ireland to withdraw from the European Union.

3 The Court of Session, Inner House, First Division (Scotland), seeks, in essence, to ascertain whether, where a Member State has notified the European Council of its intention to withdraw from the European Union in accordance with Article 50 TEU, EU law permits that Member State unilaterally to revoke its notification before the end of the period of two years referred to in that article. If so, the referring court is uncertain as to the conditions governing such a revocation and its effects relative to that Member State remaining within the European Union.

4 The referring court states that, under Section 13 of the European Union (Withdrawal) Act 2018, the withdrawal agreement which might be concluded between the United Kingdom and the Union under Article 50(2) TEU, setting out the arrangements for that withdrawal, may be ratified only if that agreement and the framework for the future relationship of the United Kingdom and the European Union has been approved by the Parliament of the United Kingdom. The referring court states that, where the withdrawal agreement is not approved by that Parliament, and if no other proposal is made, the departure of the United Kingdom from the Union will nonetheless take effect as from 29 March 2019.

5 The referring court adds that it is uncertain whether it is possible to revoke the notification unilaterally and to remain within the European Union. That court also states that an answer from the Court of Justice will clarify the options open to the parliamentarians when they vote on those matters.

6 In its order for reference, the Court of Session, Inner House, First Division, requests that the Court deal with this reference for a preliminary ruling under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court.

7 That provision states that, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure derogating from the provisions of those rules.

8 In this case, the referring court emphasises the urgency of its request in the light of, first, the two-year timetable running from 29 March 2017, the date of the notification of the United Kingdom’s intention to withdraw from the European Union, which, in accordance with Article 50 TEU, is imposed on that withdrawal procedure, and, second, the fact that the parliamentary consideration and voting on that subject within the Parliament of the United Kingdom must of necessity take place well in advance of 29 March 2019.

9 In that regard, it is apparent that the referring court sets out grounds that undeniably indicate that there is a need to make a ruling urgently. In particular, as is stated in the order for reference, it is necessary to clarify the scope of Article 50 TEU before the Members of the national Parliament make a decision on the withdrawal agreement, referred to in that article, which might be submitted to them.

10 It has previously been held that, where a case raises serious uncertainties which affect fundamental issues of national constitutional law and EU law, it may be necessary, having regard to the particular circumstances of such a case, to deal with it within a short time pursuant to Article 105(1) of the Rules of Procedure (see, to that effect, orders of the President of the Court of 28 February 2017, M.A.S. and M.B., C‑42/17, not published, EU:C:2017:168, paragraphs 7 to 9, and of 26 September 2018, Zakład Ubezpieczeń Społecznych, C‑522/18, not published, EU:C:2018:786, paragraphs 14 to 16).

11 Given that the implementation of Article 50 TEU is of fundamental importance for the United Kingdom and for the constitutional order of the European Union, the particular circumstances in this instance are such as to justify this case being dealt with within a short time in accordance with Article 105(1) of the Rules of Procedure.

12 Consequently, it is appropriate to order that Case C‑621/18 be determined pursuant to the expedited procedure.

A note on twitter indicated the Advocate General, Campos Sánchez-Bordona, will deliver his opinion on 04 December 2018, prior to the vote in the House of Commons on 11 December to approve or reject the proposed Withdrawal Agreement with the EU.

Progress during Phase 1 Negotiations with the EU

A Joint Report, consisting of 15 pages covering 96 points, has been released by the teams involved in the negotiations between the UK and EU regarding the UK’s withdrawal from the EU. The EU has demanded that discussions are held in 2 phases with no progression to the 2nd phase of negotiations (primarily the future relationship between the UK and the EU) until topics defined under their Phase 1 agenda have been concluded.

Both parties have reached agreement in principle in the areas under consideration in the first phase of negotiations, with the UK having conceded to all the demands from the EU.

  • Protecting the rights of UK citizens in the EU and EU citizens in the UK
  • A framework for addressing the unique circumstances in Northern Ireland
  • The financial settlement

Citizens Rights

The role of the CJEU in maintaing Citizens Rights remains unclear. Does the following indicate that the UK will have to refer to CJEU rulings for 8 years after the UK leaves the EU?

Page 6, Paragraph 38

In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it.

As regards the European Health Insurance Card (EHIC) scheme, it looks as though this will only apply to UK citizens who are in an EU country (and vice-versa) on the “specified date of leaving” and will not be carried forward in the future when UK citizens are travelling abroad.

Page 5, Paragraph 29,

Rules for healthcare, including the European Health Insurance Card (EHIC) scheme, will follow Regulation (EC) No 883/2004. Persons whose competent state is the UK and are in the EU27 on the specified date (and vice versa) – whether on a temporary stay or resident – continue to be eligible for healthcare reimbursement, including under the EHIC scheme, as long as that stay, residence or treatment continues.

Ireland and Northern Ireland

The UK confirms the committment that NI will remain an integral part of the UK.

Page 7, Paragraph 44

The United Kingdom continues to respect and support fully Northern Ireland’s position as an integral part of the United Kingdom, consistent with the principle of consent.

The UK hope to ensure that there is no hard border created between Northern Ireland (NI) and Ireland following discussions between the UK and the EU in the next Phase of negotiations. The wording in this Joint report has been carefully constructed to ensure acceptance by representatives of NI and the Irish Government. “full alignment with those rules of the Internal Market and the Customs Union” would appear to come into effect if there is no agreement reached during Phase 2 negotiations.

Page 8, Paragraphs 49,50

49. The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.

50. In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.

Financial Settlement

The UK and EU have agreed a methodology to determine the financial settlement demanded by the EU.

  • The UK will contribute to, and participate in, the implementation of the Union annual budgets for the years 2019 and 2020 as if it had remained in the EU
  • Outstanding commitments at the end of 2020, Reste à liquider (RAL) 1. The UK will contribute its share of the financing of the budgetary commitments outstanding at 31 December 2020 (RAL).
  • Liabilities, contingent liabilities and corresponding assets. The UK will contribute its share of the financing of the Union’s liabilities incurred before 31 December 2020 except for liabilities with corresponding assets and any assets and liabilities which are related to the operation of the budget and the Own Resources Decision

Many questions remain unanswered with no specific figure mentioned or when payment(s) will be demanded.

Will the UK will still receive the rebate from its “GNI based Own Resources” gross contributions?

It is interesting to note that the EU have already specified their own repayment program of 12 YEARS! regarding repayment of funds (paid-in capital) due to the UK from the European Investment Bank. Perhaps the UK should suggest a long repayment period of small amounts each year over a similar time period.

European Investment Bank.
The UK will provide a guarantee for an amount equal to its callable capital on the day of withdrawal. The EU will take 12 years to return the UK’s share of the paid-in capital (3.5 billion euro) at a rate of 300,000,000 euro for the first 11 years and a final payment of 195,903,950 euro in year 12, 2019 – 2030.

There is no mention of a share of the accumulated profits of the EIB which are worth a total of around 44.5 billion euro (cfr. https://politick.co.uk/the-uk-and-the-european-investment-bank-eib/ ) and would provide a share to the UK worth around 7.0 billion euro. In fact, the report specifically excludes any further remuneration.

Page 13, Paragraph 77

77. Apart from these reimbursements, the EIB will not make any other payment, return or remuneration on account of the withdrawal of the UK from the EIB or on account of the provision by the UK of a guarantee.

There is also mention about paying towards the relocation of the EU Agencies currently based in London. (Typical of the EU attempting to screw as much money as possible from the UK)

Page 14, Paragraph 86

86. The Commission welcomes the UK Government’s offer to discuss with Union Agencies located in London how they might facilitate their relocation, in particular as regards reducing the withdrawal costs.

At least the final item does mention that the report is dependent on an overall agreement on the UK’s Withdrawal and a framework for the future relationship between the UK and the EU.

Page 15, Paragraph 96

This report is put forward with a view to the meeting of the European Council (Article 50) of 14 and 15 December 2017. It is also agreed by the UK on the condition of an overall agreement under Article 50 on the UK’s withdrawal, taking into account the framework for the future relationship, including an agreement as early as possible in 2018 on transitional arrangements.

The document can be found in it’s entirety at

Joint report on progress during phase 1 of negotiations under Article 50 TEU on the UK’s orderly withdrawal from the EU

With a copy that can be downloaded from HERE (pdf)

What’s next?

This report summarises the key points which can be used in a formal Withdrawal Agreement when the UK leaves the EU.

It appears highly likely, that following publication of this report, there is a strong possibility of the negotiations being allowed (by the EU) to progress to the next Phase (2) of negotiations where the future relationship between the UK and the EU will be decided (by the EU) discussed. One of the important discussions during the next Phase will, of course, be a Future Trade relationship between the UK and the EU.

References

In order to understand some of the details mentioned in the section of the Financial Settlement there is an interesting post

The UK’s Brexit bill: what are the possible liabilities?

which was written in March 2017 and contains a description of some of the terms used in the Report.

Bruegel is a European think tank that specialises in economics.

Notes:

  1. What is the “reste à liquider” (RAL)?
    The RAL is the sum of outstanding commitments, commitments agreed to but that have not yet translated into payments. Long term budgetary commitments lead to the existence of amounts of commitments remaining to be paid out (RAL). The phenomenon is similar to when a contract is signed, e.g. to build a house, the commitment is being made, but the construction company will only be paid according to the progress of the work.

Documents related to Brexit from the EU Parliament

I came across a number of interesting documents related to Brexit that have been produced following various Events, Workshops and Committee meetings held by the European Parliament. They provide interesting reading and background to positions held by the EU regarding the Brexit negotiations and the future relationship between the UK and the EU after Brexit.

Workshops are organised by the policy departments and enable members to put questions to and exchange views with experts on subjects associated with parliamentary business or subjects of current interest. They are not necessarily held in public but may be held during a committee meeting.

Hearings
A committee is permitted to organise a hearing with experts, where this is considered essential to its work on a particular subject. Hearings can also be held jointly by two or more committees. Most committees organise regular hearings, as they allow them to hear from experts and hold discussions on the key issues.

Implications of ‘Brexit’ for the EU agri-food sector and the CAP

This workshop was held on 9 November 2017 and discussed the issue of the impact of Brexit on the EU’s agri-food sector and on the CAP.

http://www.europarl.europa.eu/committees/en/events-workshops.html?id=20171114WKS01121

It looked at 3 specific aspects of Brexit:

  1. Impact on the CAP budget
  2. Impact on EU-UK agricultural trade flows and
  3. Possible transitional arrangements in agriculture in light of the future EU-UK relationship.

A number of documents were produced:

Possible impact of Brexit on the EU budget and, in particular, CAP funding – Jacques Delors Institute

http://www.europarl.europa.eu/cmsdata/132065/PPT_CAP_Financing_EN.pdf (pdf)

EU – UK agricultural trade: State of play and possible impacts of Brexit – CIREM-CEPII

http://www.europarl.europa.eu/cmsdata/132066/PPT_EU-UK%20Trade_EN.pdf (pdf)

Possible transitional arrangements related to agriculture in the light of the future EU – UK relationship: institutional issues – Trinity College Dublin

http://www.europarl.europa.eu/cmsdata/132067/PPT%20Template%20-%20A%20MATTHEWSrev.pdf (pdf)

The implications of Brexit on the Irish border

During the 28 November meeting of the Committee on Constitutional Affairs, a workshop was held on ‘The implications of Brexit on the Irish border’. This workshop was organised by the Policy Department for Citizens’ Rights and Constitutional Affairs.

http://www.europarl.europa.eu/committees/en/events-workshops.html?id=20171123WKS01141

Brexit and Ireland – Legal, Political and Economic Considerations (pdf)

Smart Border 2.0 – Avoiding a hard border on the island of Ireland for Customs control and the free movement of persons (pdf)

PowerPoint Presentation on Smart Border 2.0 (ppt)

UK Withdrawal (‘Brexit’) and the Good Friday Agreement (pdf)

PowerPoint Presentation on ‘UK Withdrawal (‘Brexit’) and the Good Friday Agreement’ (ppt)

Hearing on the Impact of Brexit on Aviation – 11 July 2017

High level representatives in the field of aviation were invited to speak in the next TRAN Committee meeting on the topic of Brexit. Stakeholders discussed ways in which the UK’s departure from the EU is likely to impact the aviation industry from the perspective of the airports, the airlines and the tourism industry as a whole. The presentations were followed by a question and answer session with Members

http://www.europarl.europa.eu/committees/en/events-hearings.html?id=20170705CHE02242

Hearing on the impact of Brexit on aviation (docx)

Kevin Toland, Dublin Airport (pdf)

Michael O’Leary, Ryanair (pptx)

Ralf Pastleitner, TUI Group (pdf)

Exchange of Views with Associations of Citizens on Brexit

held on 21 Nov 2017

http://www.europarl.europa.eu/committees/en/events-other.html?id=20171123EOT01882

Statement from British in Europe (pdf)

Statement from the 3 million (pdf)

Brexit and the issue of the jurisdiction

During the AFCO meeting of 21 November, the Committee heard from two experts during the workshop ‘Brexit and the issue of the jurisdiction over the Withdrawal Agreement and the future relationship agreement between the EU and the UK’ organised by the Policy Department for Citizens’ Rights and Constitutional Affairs.

http://www.europarl.europa.eu/committees/en/events-other.html?id=20171123EOT01881

The Settlement of Disputes arising from the UK’s withdrawal from the EU (pdf)

Professor Steve Peers presented a briefing on “Jurisdiction upon and after the UK’s withdrawal: the perspective from the UK constitutional order” (I couldn’t find a copy of this – politicker)

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