As we all know, the UK government gave notice of withdrawal from the EU under article 50 on 29 March 2017. Article 50(3) provides “The Treaties shall cease to apply to the State…from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification…”. The European Union Withdrawal Act 2018 provides that parliament will vote on any agreement between the UK government and the EU Council (if there be any such agreement). If parliament votes against the agreement and no alternative is proferred the UK leaves the EU at 11pm on 29 March 2019, the so-called ‘Brexit forte et dure’.
However, there may be a third option open to members of parliament wishing to take back control – to vote to revoke the notification under article 50 and to stay in the EU – at least for now. The UK government and the Commission take the view that a notice of withdrawal, as is the case with a similar notice under a time charter, once given cannot be revoked. But are they right? In Andy Wightman MSP v Secretary of State for exiting the European Union CSIH 62 the First Division, Inner House, Court of Session has referred this question or a preliminary ruling under Article 267 of the Treaty on the Functioning of the EU to the Court of Justice of the EU under the expedited procedure. The question framed is:
“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU”.
If the CJEU rules that unilateral revocation is possible, then we are in for interesting times in 2019.