The Primacy of EU Law and its implications

The European Court of Justice has found, in a clear and lucid judgement, that a sovereign state which has issued a notification (under Article 50) of its intention to withdraw from the European Union, retains the sovereign right to withdraw that notification “in accordance with its own constitutional requirements” until such time as it takes full effect. Unlike the Advocate General’s earlier advisory opinion, it does so solely in accordance with European Law as established by the treaties, without relying on “custom and practice” in international law, or the Vienna Convention on the Law of Treaties (VCLT), which has not been ratified by the EU or France and Romania, although it notes that the VCLT “corroborates” this view.

The main arguments it uses to come to this view include the following:

1. “The question referred must therefore be examined in the light of the [EU founding] Treaties taken as a whole” (para. 46) which create “a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights.(44)
2. “As regards the wording of Article 50 TEU, it should be noted that that article does not explicitly address the subject of revocation. It neither expressly prohibits nor expressly authorises revocation.” (48)
3. “a Member State which decides to withdraw is to notify the European Council of its `intention’. An intention is, by its nature, neither definitive nor irrevocable. (49)
4. “The decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice”. (50) It follows that it has also retained its sovereign right to change its mind on that intention, (57) which also reflects “its status as a Member State of the European Union, a status which is not suspended or altered by that notification” (59)
5. “That revocation is fundamentally different in that respect from any request by which the Member State concerned might ask the European Council to extend the two-year period referred to in Article 50(3) TEU; the analogy that the Commission and the Council seek to make between that revocation and such an extension request cannot therefore be accepted.” (60)
6. “the European Union is composed of States which have freely and voluntarily committed themselves to those values [of liberty and democracy], and EU law is thus based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values.” (63) ” In those circumstances, given that a State cannot be forced to accede to the European Union against its will, neither can it be forced to withdraw from the European Union against its will.” (65)
5. “The origins of Article 50 TEU also support an interpretation of that provision as meaning that a Member State is entitled to revoke unilaterally the notification of its intention to withdraw from the European Union.” “Although, during the drafting of that clause, amendments had been proposed to allow the expulsion of a Member State, to avoid the risk of abuse during the withdrawal procedure or to make the withdrawal decision more difficult, those amendments were all rejected on the ground, expressly set out in the comments on the draft, that the voluntary and unilateral nature of the withdrawal decision should be ensured”.(68)
6. “That conclusion is corroborated by the provisions of the Vienna Convention on the Law of Treaties, which was taken into account in the preparatory work for the Treaty establishing a Constitution for Europe.” (70)
7. “As regards the proposal of the Council and the Commission that the right of the Member State concerned to revoke the notification of its intention to withdraw should be subject to the unanimous approval of the European Council, that requirement would transform a unilateral sovereign right into a conditional right subject to an approval procedure. Such an approval procedure would be incompatible with the principle, referred to in paragraphs 65, 67 and 69 of the present judgment, that a Member State cannot be forced to leave the European Union against its will.” (72)

When the Advocate General gave his advisory ruling I formed the view that his advice was unduly “political” and that he was “leaning over backwards” in order to provide a mechanism to enable the UK to reverse its decision to withdraw. On reading the full text of the full ruling, however, I am reassured that it has a solid basis in EU law, and does not rely on the VCLT, or on “custom and practice” in international law.

The risk and concerns expressed by the Commission and Council that allowing for such a unilateral right would open up the process to abuse must be counterbalanced by the principle that joining and leaving the EU must always be a voluntary act by a sovereign state, even if its A.50 notification has occasioned significant disruption and diversion of resources in other member states. There is always the political risk that any state which invokes and revokes its intention to leave the EU will suffer a significant loss of status, prestige and influence within the EU, but such actions do not effect its legal right to do so.

It is to be hoped that the economic disruption and political upheaval experienced by the UK in the aftermath of its A.50 invocation will act as a deterrent to any state doing so in a tactical or indeed frivolous manner. The EU institutions, in deciding on how to respond, will undoubtedly now take into account the fact that any A.50 invocation will in future be seen as reversible, and may not treat such an event with the seriousness, and the allocation of resources, that was accorded to the UK invocation.

The serious negotiations may only begin once a member has actually left, with the Exit agreement dealing only with aspects of the divorce, and providing for a transitional period to minimise disruption while the real negotiation take place with the ex-member as a third party. To some extent that is already happening, with the “Political Declaration” on the “future relationship” between the EU and UK being non-binding at this stage.

Attempts by the UK to include the negotiation of a full free trade agreement within the scope of the Brexit negotiations have been resisted, and much of the disappointment with the Brexit deal in the UK is linked to the fact that the Exit payment must be made up front before the precise nature of the future relationship is known or is fully legally binding. Indeed Boris Johnson, in his latest wheeze, has proposed that half the Exit payment should be withheld until a final trade deal has been agreed and ratified.

The EU has agreed, in an attempt to avoid a “hard border” within Ireland, that the UK can remain withing the Customs Union for a transitional period until an agreed solution to avoiding such a border has been found. But this major concession by the EU has been perceived by many in the UK as a negative, as it doesn’t provide a definitive end date for that transition, or visibility as to how a hard border in Ireland will then be avoided.

If the UK doesn’t like that solution, I suspect the EU would be amenable to restricting that provision to Northern Ireland only, although that creates a risk of a customs border emerging “down the Irish sea”. As the Irish government and Northern Irish business and agricultural lobbies have been quick to realise, that is actually an ideal solution for Ireland as a whole, as it enable free north south and east west trade for the foreseeable future.

It is the DUP, perversely, and obviously hard Brexiteers, who are concerned that such a transitional arrangement could become permanent imposing EU rules on the UK without providing a say in their development, and restricting the UK’s ability to strike its own trade deals. However Ireland is the only country with which the UK has a significant trade surplus, so this has a significant up-side for Great Britain as well.

The hard Brexiteers appear to believe that a hard “no deal” Brexit will enable them to strike more advantageous bilateral deals with EU members and the rest of the world in due course. But no deal means no deal from an EU perspective as well, and it is difficult to see why the EU would strike anything other than humanitarian deals in the event of a chaotic no deal Brexit.

Quite why third countries would strike more advantageous deals for the UK than they would with the EU is also hard to fathom. This belief in the UK seems to be grounded in a belief in a “special relationship” with the US, and in bonds of continuing mutual affection with former colonies and now commonwealth members. Members of the royal family may receive a warm welcome in those countries, as they have in Ireland, but it is doubtful that will translate into hugely more beneficial trade deals than those the EU can negotiate.

The ECJ has affirmed the UK’s sovereignty in matters of EU membership  meaning that the UK can choose reissue an A.50 notification at any time should it decide to remain this time around. It is hard to see this having a game changing impact on the debate in the House of Commons or in the UK as a whole. But in a tight vote it might just swing the waverers.