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The advocate general of the European Court of Justice released his opinion today and according to the advocate general, the United Kingdom can unilaterally revoke the Article 50, without any prior approval from the European Union and until such time that an agreement on the matter, “The Advocate General emphasizes that withdrawal from an international treaty, which is the reverse of a treaty-making power, is by definition a unilateral act of a State party and a manifestation of its sovereignty. Unilateral revocation would also be a manifestation of the sovereignty of the departing Member State, which chooses to reverse its initial decision. The Advocate General deduces from his systematic analysis of Article 50 TEU various reasons in favour of the notification of the intention to withdraw being unilaterally revocable. First, the conclusion of an agreement is not a prerequisite for the withdrawal to be completed. Secondly, Article 50(2) TEU states that a Member State which decides to withdraw is to notify the European Council of ‘its intention’ — and not of its decision — to withdraw, and such an intention may change. Thirdly, the unilateral nature of the first phase of the procedure under Article 50 TEU, in which the Member State decides to withdraw from the EU in accordance with its own constitutional requirements, is projected onto the subsequent phase (of negotiating the terms of its withdrawal with the EU institutions), in such a way that if the withdrawal decision is revoked in accordance with the departing Member State’s constitutional procedures, its constitutional foundation will disappear. Lastly, the rejection of revocation would in practice entail the forced exit from the EU of a State which, according to the Court of Justice’s recent case-law, continues to be an EU Member State in all respects. It would be illogical to force that Member State to withdraw from the EU in order to then have to negotiate its accession. In the Advocate General’s view, the legal acts adopted by reason of the negotiations are measures concerned with the negotiation or agreements adopted with a view to the future withdrawal, and do not preclude the notification of the intention to withdraw from being unilaterally revoked.”
The advocate general further stressed, “The Advocate General rejects the contention that Article 50 TEU only allows the possibility, put forward by the Commission and the Council, of a revocation following a unanimous decision of the European Council. In his opinion, a revocation by mutual consent of the departing Member State which changes its position and the EU institutions with which it is negotiating its withdrawal is possible. However, this would not prejudice unilateral revocation, which the departing Member State always maintains under Article 50 TEU. On the other hand, the Advocate General considers that to make the possibility of revocation conditional upon the adoption of a unanimous decision of the European Council would be incompatible with Article 50 TEU.”
As the ECJ opinion opened the door for a unilateral revocation of the Article 50 by the United Kingdom, should it deem the deal offered by the European Union non-satisfactory, the pound rose against most of its counterparts. The pound is currently trading at 1.281 against the USD.
