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  •       Wednesday, 19 December 2018   

    Brexit - Please hurry, why donít you come back?

    Was Advocate General Manuel Campos Sánchez-Bordona singing an old Paul Young song yesterday (“Come Back and Stay” – the lyrics are certainly fitting for European remainers) when he delivered his non-binding opinion on the question as to whether a Member State, which has notified the European Council of its intention to withdraw from the EU in accordance with Article 50 European Union Treaty (TEU), may unilaterally revoke that notification and, if so, subject to what conditions?

    The Advocate General’s opinion stated 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 full text can be found here - https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-12/cp180187en.pdf

    In summary, this means that the UK should be able to unilaterally cancel its withdrawal from the EU without needing the consent of the other 27 member states - contrary to what the EU itself has argued – provided that it does so prior to 29th March 2019.

    You may think that the European Union should have prepared a slightly better membership rulebook by now, dealing with the very basic trilogy of club rules - How do I become a member? What are the rules whilst I am a member? How do I cease to be a member? – in a rather more comprehensive fashion so that all European member states (UK or otherwise) and the constituents, whom they are supposed to represent, had a rather more transparent understanding of what should happen when an EU member is to leave the European Union. You may also wonder how so many countries joined it without knowing how to get out again.

    Why was the opinion given?

    A cross-party group of UK politicians and campaigners started the court action by issuing proceedings in Scotland. They took the case to the Court of Session in Edinburgh, which ultimately agreed to refer it to the Court of Justice of the European Union (ECJ). Somewhat strangely, it was opposed by both the UK government and the EU. One would have thought that it was worthwhile knowing how the system worked. The UK government appealed against the referral to the European court twice but lost on both occasions.

    The UK government's lawyers argued that the case was purely hypothetical as "the UK does not intend to revoke its notification", and ECJ judges should therefore refuse to rule on it and that the politicians behind the case wanted to use it as "political ammunition to be used in, and to pressure, the UK parliament". The European Council’s lawyers argued that allowing unilateral withdrawal could create "endless uncertainty" by allowing countries to announce they are leaving the EU in an attempt to secure better membership terms, before cancelling their withdrawal.

    What is the role of an Advocate General?

    The role of Advocate General was created by Article 19(2) of the Treaty on European Union and Articles 253 and 254 of the Treaty on the Functioning of the European Union. The ECJ has one judge from each Member State, assisted by eleven Advocates General. The primary role of an Advocate General is to consider the written and oral submissions to the court in every case that raises a new point of law and deliver an impartial opinion to the court on the legal solution. Although Advocates General are full members of the court, they do not take part in the court’s deliberations. An opinion of an Advocate General is not binding on the ECJ.

    Who is Manuel Campos Sánchez-Bordona?

    He has been Advocate General at the Court of Justice since 7th October 2015. You can find more information on him here - https://curia.europa.eu/jcms/jcms/rc4_170791/en/

    What is the effect of the Advocate General’s opinion at the European Council?

    Whilst an Advocate General's opinions are not binding, the ECJ usually reaches the same outcome (albeit, its legal reasoning may be different). In this case, the ECJ will deliver its final ruling at a later date. It is not known when that will be. Naturally, it would be rather helpful to know the answer in the very near future in order to avoid yet more uncertainty.

    Conclusion 

    Businesses trading within the EU and those importing into and exporting out of the EU require certainty in order to enable them to deal with administrative, legal and financial issues as easily as possible. Whatever the outcome (“hard Brexit”, “soft Brexit” or no Brexit), the quicker and more efficiently, effectively and completely the Brexit issue is concluded, the better it will be for business. 

    Need to talk? 

    If you have concerns about the impact of Brexit on your business, we can help you to understand the different legal and related issues relating to Brexit, to choose the option that is right for you and to help you develop or minimise risks for your business.

    Contact us

    If you would like more information about the contractual effects of Brexit or would like to discuss a potential or existing contract, please contact us by telephone on +44 (0)20 3126 4520 or +45 38 88 16 00 or by email at enquiries@orrlitchfield.com

     

     

     

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