Does Revoking Art 50 Mean Staying… Forever?

Courtesy of giphy.com. Probably © Taylor Swift.

I can’t believe I’m about to write another post on Medium to the tune of Taylor Swift lyrics from We Are Never Ever Getting Back Together, but they are weirdly apropos for any discussion of the UK’s relationship with the EU… so here we go.

Can the UK revoke its Article 50 TEU notification? The CJEU ruled yesterday that yes, it can. Unconditionally, even: the EU27 can’t set up a number of hoops for the UK to jump through.

The CJEU didn’t go down the path taken by the Advocate General, who suggested that revoking notification would have to be done in ‘good faith’ — in the sense that, the UK could not immediately then re-notify, so as to artificially extend the negotiating period under Article 50 TEU. To us lawyers, the fact that the CJEU doesn’t state it explicitly doesn’t mean that an expectation of ‘good faith’ doesn’t underpin all moves the UK makes in its relationship with the EU — but in the absence of wording to the effect of, “If you decide to stay YOU HAVE TO REALLY STAY okay, for at least 3 years, and probably 10”, we are left to debate what exactly would make the CJEU consider the behaviour of a Member State to be incompatible with EU law.

That is what brings us to Taylor Swift, who has some clear views on what it means to actually reconcile vs just prolonging an inevitable break-up. Here she is, on a relationship (rumoured to have been with Jake Gyllenhaal) that seems to be in a permanent state of flux:

Then you come around again and say
Baby, I miss you and I swear I’m gonna change, trust me
Remember how that lasted for a day?
I say, I hate you, we break up, you call me, I love you

Oh we called it off again last night
But oh, this time I’m telling you, I’m telling you
We are never ever, ever getting back together

The Advocate General acknowledged the fear of the first bit of the verse cited there, shared by the Commission and the Council: that the UK could effectively just flip-flop between staying and going depending on how the negotiations were progressing, effectively dangling the EU on a string for all time. He consequently noted that while leaving should be a UK choice, if we got ‘back together’, there was no ‘calling it off again’ by the UK within the next night. That would be ‘bad faith’, or, if you will, the thing that makes Taylor snap that it’s absolutely never, ever happening again.

The CJEU took a different approach… but I fear some of the nuance of its ruling has been swallowed by the politics of Brexit.

It suggested that as Jake and Taylor are both adults with sovereign decision-making powers, they can actually do what they want to do, as long as they’re doing so in a way that complies with a set of processes that we may want to call ‘the law’. The analogy does fall apart here, because Jake obviously cannot force Taylor to stay in a relationship with him. But the UK’s relationship with the EU is different: there is no power to make the UK stop being an EU Member State in the Treaties. Forceful ejection from the Treaties is a subject that has been debated by academics for some time, but they — and now the CJEU — agree that while being forced out of a treaty may be possible in international law in certain circumstances, it isn’t a possibility under the EU’s Treaties.

As such, the CJEU justified its reading of a unilateral right to revoke Article 50 TEU on the fact that EU membership is an expression of sovereignty. It is something Member States opt into voluntarily; and they cannot be forced to opt out of. Refusing to accept a revocation of Article 50 TEU notice would result in a forced exit, and that runs contrary to the very purpose of the EU Treaties, which are there to enable all Member States to integrate rather than separate.

The AG and the CJEU agree on that much; but remember, the AG is in part responding to fears that the UK will leave the EU dangling on a string and change its mind over and over again. Indeed, the AG notes that this is not solely about the UK’s behaviour: opening up Article 50 TEU for that kind of use might entice any Member State who loses a few votes in the Council or is unhappy with some other part of their membership settlement to start ‘threatening’ to withdraw so as to push for some sort of renegotiation of an issue with the remaining Member States. This would undoubtedly be as crippling to the EU’s general functioning as the Luxembourg Accords proved to be: the Member States are all adults at the table, but give each of them a veto and they will start acting like toddlers. (And I have one of those right now. I promise, it’s not pretty.)

Why didn’t the CJEU address these fears?

There’s a two part response to this. The first part is, as indicated, that in my view, an expectation of ‘good faith’ underpins all interactions between Member States. In a way this is explicitly set out in Article 4(3) TEU as the ‘principle of sincere cooperation’, which is justiciable. So: any Member State truly behaving badly could be taken to the CJEU for a stern talking to without explicit conditions attached to revoking Article 50 TEU.

The other part is that, again in my view, the CJEU did address these fears. Not by declaring them to be overstated — as the AG did, while also noting that it would violate all understandings of ‘good faith’ for the UK to immediately renotify Article 50 TEU— but rather by making a few comments about the processes underpinning Article 50 TEU itself.

I’ll quote the relevant paragraphs for completeness. (They’re not as good as the Taylor lyrics, but the CJEU does what it can.)

66 However, if the notification of the intention to withdraw were to lead inevitably to the withdrawal of the Member State concerned from the European Union at the end of the period laid down in Article 50(3) TEU, that Member State could be forced to leave the European Union despite its wish — as expressed through its democratic process in accordance with its constitutional requirements — to reverse its decision to withdraw and, accordingly, to remain a Member of the European Union.
67 Such a result would be inconsistent with the aims and values referred to in paragraphs 61 and 62 of the present judgment. In particular, it would be inconsistent with the Treaties’ purpose of creating an ever closer union among the peoples of Europe to force the withdrawal of a Member State which, having notified its intention to withdraw from the European Union in accordance with its constitutional requirements and following a democratic process, decides to revoke the notification of that intention through a democratic process.

The bolded words there set up the Article 50 TEU process as having three distinct steps to it:

  1. A democratic process that leads to…
  2. A notification of withdrawal, or a notification revoking a notification of withdrawal…
  3. In compliance with domestic constitutional requirements.

To me, the key wording there that covers the concerns that the Commission and Council have expressed about ‘notification yo-yoing’ is the notion of the ‘democratic process’. If the CJEU wanted to merely ensure that a revocation of a notification would comply with, eg, the Miller conditions (eg needing an act of Parliament), it would have only needed to mention steps 2 and 3. This does not mean that Parliamentary instructions to revoke Article 50 TEU notifications would be undemocratic according to the CJEU — but rather that there is something more underpinning Article 50 TEU actions than simply following the parliamentary procedures required.

What, then, is a ‘democratic process’? The CJEU wisely leaves this blank, as it is undoubtedly for the Member States to decide. But it seems clear to me that it would require some sort of demonstrable change in political direction. The easiest examples of a ‘democratic process’ are general elections and referenda: should the UK hold another referendum with ‘remain’ as the outcome, Parliament could instruct the government to revoke Article 50 TEU and it meets all the conditions set out in these paragraphs of the judgment. The same would hold if another general election took place and a political party campaining to ‘remain’ won that election.

We are not quite in that position, however. The ruling came out in advance of what was to be a Parliamentary debate on the UK’s future relationship with the EU, rather than any clear commitment to another public vote on the matter. And the CJEU is obviously aware of this. This does not make it a ‘political’ Court so much as one that has to try to issue rulings that would work in constitutional systems as different as the Polish, Italian, and British. Any suggestion of a particular ‘democratic process’ being required would, in all honesty, have been an ultra vires observation. That’s beyond the competences of the EU, in the same way that the EU does not specify generally what remedies have to be available for breaches of EU law.

Parliamentary debate leading to a vote can clearly be described as a ‘democratic process’, and that suggests that revocation of Article 50 TEU notification following a parliamentary vote to remain in the EU is entirely possible. So far, uncontroversial. But, and continuing the parallel to remedies, the CJEU does intervene when domestic remedies for breaches of EU law are inadequate and inefficient — and I would argue, it similarly would protest a ‘democratic process’ that was not really a ‘democratic process’, but rather just a negotiating Member State government changing its mind. And, as far as I can tell, that is how the CJEU sets up a framework to avoid ‘abuse’ of Article 50 TEU.

Imagine a revocation of Article 50 TEU now. What is to stop the UK government from immediately re-notifying Article 50 TEU?

Well, per the CJEU, it needs a democratic process that gives it a mandate to notify under Article 50 TEU — whether that be a further Parliamentary debate and vote, or a general election, or a referendum.

This is the balance the CJEU has struck, in my view. It assumes that requiring this kind of mandate, via a ‘democratic process’, would stop willy-nilly Article 50 TEU flip-flopping — and I don’t think it is wrong about this. I also don’t think that it can be wrong about this: either the Member States remain sovereign throughout their EU Membership, as the CJEU stresses they do, or we end up in a situation where we have either ‘forced EU membership’ or ‘forced EU expulsion’. The Treaties provide for neither, so there is no alternative way for the CJEU to frame its reading of what Article 50 TEU permits.

Thus, in a hypothetical world where the UK revokes Article 50 TEU now because Parliament votes against EU withdrawal, and it has a general election later this year that is overwhelmingly won by a party that campaigns on leaving the EU, both of those decisions would be valid, however irritating they may be to the EU Member States.

I would suggest this is the case even given paragraph 74:

74 In the second place, the revocation of the notification of the intention to withdraw must, first, be submitted in writing to the European Council and, secondly, be unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.

‘Unequivocal’ is another term that has been subjected to a lot of interpreting over the last 24 hours. My take on it is simple: one cannot ‘halfway withdraw withdrawal’, in the same way one cannot be ‘sort of pregnant’. The CJEU thus surmises that revocation ‘brings the withdrawal procedure to an end’. And that is correct: it would end the Article 50 TEU process. But that is not the same as observing that a new democratic process cannot result in a new mandate to leave the EU, that would then itself need to be notified to the European Council in writing and in compliance with domestic constitutional requirements.

In other words, I read paragraph 74 as stating that Article 50 TEU revocations cannot be used to ‘restart’ negotiations for a two year period — they simply return the Member State in question to ‘full Member’ status, and end the Article 50 TEU process that the Member State was involved in. Unless and until that Member State gets a new mandate to withdraw from the EU, its membership of the EU is ‘unequivocal’.

I obviously am not the CJEU, and cannot promise I am correct, but I think that my reading here at most just inverts the rationale the CJEU offered for why unilateral revocation of withdrawal is possible. The UK, like all Member States, remains a sovereign state, voluntarily in the EU, and capable of voluntarily exiting. It cannot be forced out, but it cannot be forced to remain either. Where its democratic processes demand a change in relationship with the EU, a Member State can pursue that mandate through Article 50 TEU…

… and this is the case even for a Member State like the UK, which has been going through various iterations of “I hate you, we break up, you call me, I love you” since the 1970s. Inconvenience for the EU27 does not override the fact that EU membership isn’t a Taylor Swift relationship; ‘ever closer union’ precludes ‘we are never ever getting back together’, per the CJEU.