Monday, 10 December 2018

The (ir)revocability of Article 50 (Wightman): Iphigenia must reach the altar

The European Court of Justice (CJEU) is expected to deliver on Monday 10 December 2018 its ruling on whether the withdwal notification from the European Union can be unilaterally revoked (C-621/18 Wightman and others). 
Legally sound narratives have been put forward for almost all possible outcomes: from finding that the referral is inadmissible because it is hypothetical or irrelevant through a strict reading and application of the criteria for admissibility of preliminary references, to the possibility for unilateral revocation, as proposed by Advocate General Campos Sánchez-Bordona’s Opinionor indeed to a finding that the withdrawal notification cannot be revoked. 
Given this I believe that in choosing one of the various plausible legal narratives the political censor of the CJEU not only will it be switched on but it will be so in its most sensitive configuration. The Court has shown in many occasions its ability to adapt and respond masterfully to contextual political exigencies (for example in the case of C-370/12 Pringle). 

Parameters for CJEU’s Judgment
The CJEU is expected to consider the impact of its interpretation of Article 50 TEU not only on the present case but more generally: In other words its impact on the various other players whose reaction informs and affects the withdrawal process, namely markets, and also its potential impact on the future possible use of Article 50 by other Member States. 
I believe that the CJEU will chose a formula which: a) advances a legally sound narrative, b) does not preclude the prospect of the reversal of the notification for withdrawal c) but without creating perverse incentives that would lead to the ‘casualisation’ of Article 50 in the future, making the latter another ‘negotiating tool’ in the hands of national Governments. 
A lot will depend on the CJEU’s perception as to whether the UK’s ‘humbling’ experience during the negotiation process provides a sufficient lesson in itself not only for the UK but for other MSs. 
Does the AG Opinion fit these criteria?
The AG’s Opinion essentially proposes the recognition of the withdrawing MS’s right to revoke the notification of withdrawal unilaterally during the period that it has the status of an EU MS. The AG argues convincingly that such right exist independently from the possibility of its abuse. Furthermore, the AG recognises a limit on the exercise of this right that derives from the principles of good faith and sincere cooperation. Lastly he argues that another safety valve that may in practice prevent tactical revocations derives from the fact that the revocation decision must be adopted in accordance with the MS’ constitutional requirements.
In my view the AG’s Opinion corresponds only to an extent to the formula that I believe will guide CJEU’s ruling. 
In particular although the arguments for the existence of a right to revocation are by and large convincing, the arguments in favour of unilateral revocation are less so. Here are the reasons why:
First, a ruling that acknowledges the possibility of unilateral withdrawal means that the departing MS is provided with a safety net which it can freely deploy. The knowledge of this fact may affect the negotiating stance of a departing MS government in the future. It may lead in other words to a quite different approach compared with the cautious one that the UK government has adopted thus far. Furthermore it may weaken the signalling from the markets, an important parameter for all the relevant players which particularly informs the choices of the departing MS; perhaps markets would send weaker signals in the knowledge that the government has an unobstructed access to a ‘reset button.’ 
I think that such an interpretation of Article 50 raises the risk of ‘casualisation’ of the withdrawal process. Such a risk perhaps is not evident with the current UK Government. However one needs not unbridled imagination to contemplate how Article 50 may be used in the future by other more audacious governments of populist persuasion. The temptation for considering the use (or the threat of use) of Article 50 as a tool for achieving concessions –as part of the Brussels political horse-trading habitat- is strengthened by the proposed interpretation because the decision to start the withdrawal process becomes less costly for the departing MS. 
Even in the context of WightmanI think that a ruling confirming the possibility for unilateral withdrawal might do a disservice to the cause of the applicants –who are trying to promote the cause of the UK remaining in the EU. Although they believe that a ruling confirming the possibility of unilateralwithdraw would assist their cause by showing that the process is reversible, in fact such a ruling could work against their intentions by strengthening the hand of the UK Government having an extra -secure- escape plan if things went badly. Moreover it may weaken the signalling from markets -at a time where the Remain side needs strong negative market signalling to strengthen their caseabout the futility of Brexit wonderland.
Second, it is submitted that the proposed conditionality, specifying that the right to unilateral revocation should not be exercised in a way that constitutes abuse or misuse of the latter, does not provide sufficient safeguards against the ‘casualisation’ of Article 50. The AG observes in this regard that the abuse of the revocation could occur “only when a second notification of the intention to withdraw is submitted” (para 155). Some thought experiments demonstrate the weakness of this thesis and of the proposed conditionality as a whole: Does this mean that the abusive conduct is revealed at the time of the second notification of withdrawal but begins at the time of the first revocation? Or does it mean that the abusive conduct is the second notification to withdrawal(not the revocation of the first)? If it is the latter then does this entail that once the first notification has been revoked a MS could not change its mind according to its constitutional requirements and decide to leave the EU again? Wouldn’t this lead to the controversial conclusion of effectively forcing a MS to stay in the EU against its will? Is time a factor –the period that passed between the revocation of the first notification and the second notification? Would a second notification after 5 years be abusive? What about one after 10 years? Who will decide? 
Likewise, the argument that compliance with the constitutional requirements will function as a filter that prevents the proliferation of ‘tactical’ revocations (para 156) is not entirely convincing either. The AG mentions that in present case the reversal of the previous decision would “require an alteration of the governing majority, the holding of a referendum, a ruling by the highest court of the country annulling the withdrawal decision or some other action that would be difficult to implement and would require the use of protracted and complex legal procedures.”
To begin with this observation is not entirely accurate in the case of the UK since it seems that the revocation can be effected by the Government without the need for Parliament’s authorisation. This is because Parliament has not compelledthe Government to proceed with the process of withdrawal. Section 1 of the EU (Notification of Withdrawal) Act 2017 reads: “The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU. Furthermore the EU Withdrawal Act 2018 lies on the premise of a withdrawal process which began on the basis of the discretionary decision of the Government. Can the Government revoke this decision? I believe the answer is affirmative. This interpretation is supported by various provisions of the EU (Withdrawal Act 2018). For example although section 1 links the repeal of the European Communities Act 1972 with exit day, this provision cannot be construed in a way that necessitates such an exit day to ever occur (since there is no instruction by Parliament for Brexit to be effected); it simply explains what will happen to the ECA 1972 ifand whenexit day comes. Furthermore, the Act itself foresees the possibility for changing the exit day (currently set for 29 March 2019) by means of a regulation of a Minister (section 20 (4)). This means that at least in the present case the constitutional requirements probably will not be the buffer or the filter that the AG envisages in para 156. 
 CJEU: Possible interpretation
 As mentioned above I believe the CJEU will adopt an interpretation that does not preclude the revocation of the notification but which at the same time minimises the risk of turning Article 50 into a political/negotiating arrow in the quiver of MSs. The interpretation of Article 50 which meets these parameters is the possibility to revoke the notification but with the approval of the Council.
The AG argued against this interpretation because it entails a veto right for every MS which if exercised would in effect lead to the forced exit/expulsion of the MS (in this case the UK) against its will (para 169)
The observation that under international Law a State who wants to remain in an organisation cannot be denied this right is correct but misses a significant contextual parameter in the case of Article 50. If a Member State is not absolutely certain that it desires to leave the EU should not trigger the process of withdrawal in the first place. Experimentation with Article 50 is certainly an attitude that the EU legislator wanted to discourage. Article 50 is a “special protocol” which ensures that the decision to proceed is unequivocal and thought through. In other words, the knowledge that Rubicon cannot be un-crossed (or at least not easily or without consequences) should inform the decision to cross it in the first place. This is clearly the intended aim of Article 50 as it stems from the travaux préparatoires, the contextual, systemic and teleological interpretation of the provision and although I agree that it would be disproportionate to deny a MS the possibility of changing its mind, the recognition of the notification’s revocability should be acompanied by safeguards that do not undermine the role of Article 50 as a “special protocol” in the system of the Treaties. 
An argument can be made that the UK’s ‘humbling’ experience during the Brexit negotiation provides a lesson to other MSs who may consider using this article without clear understanding of the consequences. Such an argument is valid but misses an important point. The ‘humbling’ experience of the United Kingdom was informed to a large extent by the signalling that the negotiating parties have been receiving from other important players like the markets. As I have argued elsewherethe market’s reaction was informed by a belief or impression that the ‘clock is ticking’ –also an assumption of the UK Supreme Court in Miller­(para 26)- in the sense that without a negotiated solution at the end of the two year period there was no safety net that could be deployed by the United Kingdom on its own. I believe that the interpretation of the AG would not guarantee a similar intensity of signalling from the markets (now knowing that there is the safety button) which could embolden MSs to play politics with Article 50 without consequences. The conditionality of good faith proposed by the AG has limitations and I do not believe it mitigates the risk of casualisation of Article 50. 

Revocability subject to Council’s Approval: Conditionalities and Safeguards  
If the revocability is subject to Council’s approval the question arises about the voting method, unanimity or majority. Firstly, I concur with Professor Weiler’s view that a case can be made for either of these options. If the decision is taken by majority then the concerns regarding the possibility of anyone of the remaining 27 Member States blocking the approval would not arise.
Moreover, I argue that even if the Council’s approval requires unanimity there are safeguards to ensure that MS do not abuse their position as veto players.    
First, I believe that the principle of sincere cooperation (Article 4 (3) TEU applies in this case.  
Second, the will of the departing MS can change in good faith only when fundamental parameters underlying its withdrawal decision have changed. This is the case for the UK. The revocation of the withdrawal decision will take place only when a large majority of the electorate will realise the futility of Brexit. This unfortunately cannot occur only with forecasts, which by and large are discarded as ‘scare mongering’ but requires painful experience. In such a case I believe that the general principle of solidarity between MSs enshrined also in Article 222 (b) TFEU, applied directly (man-made disaster) or by analogy, would require the remaining 27 MS to provide their assistance in the form of securing the revocation’s approval.  
In Euripides’ Iphigenia in Aulis the innocent heroine is led to believe that she is about to marry the most glorious of all the warriors of the ancient world, Achilles. She eagerly prepares for this splendid and happy occasion, despite warning messages suggesting that all is a ploy. Only when she arrives before the alter reality reveals itself. The heroine according to the myth is saved by Goddess Artemis who, moved by Iphigenia’s ordeal, replaced Iphigenia, at the last minute, with a deer. An interpretation of Article 50 that requires the approval of the Council can provide such pathway in the case of Brexit without running the risk of undermining the role of this provision in the system.

Dr Aris Georgopoulos, Assistant Professor in Law, University of Nottingham School of Law 

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