A non-binding opinion has been issued by one of the European Court of Justice Advocate-Generals, that finds the UK has the right to withdraw the Article 50 notification on Brexit from the EU unilaterally. The European Commission and Council argue that this would require a unanimous agreement of the Council as well. The opinion of Spanish Advocate-General (AG) Campos Sánchez-Bordona will be taken under advisement by the full panel of ECJ judges when they issue their final ruling – due in the next few weeks.
A week before the House of Commons votes on the UK premier Theresa May’s long negotiated with the EU-27 Brexit agreement, the ECJ’s Advocate General bombshell proposes that the Court of Justice should declare that Article 50 … allows the unilateral revocation of the notification of the intention to withdraw from the EU”.
According to the opinion, “… possibility [to revoke the activation of article 50] continues to exist until such time as the withdrawal agreement is formally concluded.”
Jo Leinen, S&D-spokesman in the Constitutional Committee of the European Parliament (AFCO) criticized the opinion, saying that “Article 50 of the EU Treaty is not intended to allow a Member State to take the European Union hostage. The Advocate General’s assessment is misguided. I hope that the judges will come to a different conclusion and that they do not let the difficult domestic political situation in the United Kingdom affect their judgement”.
The 11 Advocates-General assist the Court. They are responsible for presenting, with complete impartiality and independence, an ‘opinion’ in the cases assigned to them. The opinion of the AG assigned to the case states that Article 50 of the Treaty on the Functioning of the EU, that corresponds to triggering the withdrawal of any EU member state from the bloc, is an expression of the principle of respect for the national identities of the member states, in allowing them to withdraw if they consider that that national identity is incompatible with membership of the EU.
In his view, there is no reason that, conversely, that member state may not link its identity to its integration into the EU,” in the view of Mr Campos Sánchez-Bordona. “Not placing obstacles in the way of the continued EU membership of a member state that decides to leave the EU, but then changes its stance, in accordance with its constitutional requirements, and wishes to continue being a member, is an especially appropriate interpretative approach, which accords with the objective of advancing the process of integration,” adds the opinion announcement by the ECJ, adding that this is the most favourable approach to the protection of the rights acquired by EU citizens, which the withdrawal of a member state will inevitably restrict.
Though some say the opinion is non-binding, the ECJ usually follows the AG’s opinions in final rulings, meaning the opinion could soon prove to be a game changer.
The case on which the opinion was issued, was brought before the ECJ by Scottish politicians opposed to Brexit in hope that they could pave the way for a potential second referendum if the court ruling was in their favour.