European Court of Justice
Brexit Ruling: Article 50

On the 10th of December, the Advocate General Sánchez-Bordona, member of the European Court of Justice, established that the United Kingdom can retire from Brexit without the consent of the 27 member states. The panel of judges affirmed that forcing a member state to leave, by a vote, would violate the precepts of the EU treaties and would even contravene the purpose of creating a closer European Union.

The resulting opinion created a change of scenario, both in the EU and in the UK. On one hand, it softened the mood of British politics: a few days later, *Theresa May won the vote of confidence proposed by Jeremy Corbyn, permitting her to continue leading the country and possibly find a solution to the no-deal Brexit. The possibility of a new solution that would not harm British economy created new faith in the actions of the Prime Minister.

On the other hand, the opinion given by the European Court of Justice altered the essence of Article 50, introduced with the Treaty of Lisbon (TEU) in 2007. This article described the procedure required in order to leave the European Union and is usually linked to Article 49, which outlines the procedure and the requirements for entering the EU.

Article 50 requires a strong qualified majority, both for approval of the beginning of negotiations and for their conclusion. In this context, the required average is represented by the 72% of the 27 member states. The same article also has two provisions for a withdrawing state that wishes to revoke its decision: it can require a postponement of two years, agreed unanimously at the supranational level, or it can reapply for membership through the aforementioned Article 49. Hence, the Treaty already covered the eventuality of a change of mind of the withdrawing state and provided the possibility of a new application as a solution.

The democratic procedures and the European voting modalities have been a fundamental pillar in the supranational system, and the freshly delivered opinion by the ECJ could change radically the legislative sphere of the EU.  Moreover, the multilateral character of the European Union imposes an attentive distribution of power between the supranational system and its member states that is the essence of the checks and balances employed.

It is rare to see a total conferral of decision-making power to a single member state, especially without consultation with the European Parliament. The reason is easy to understand: a supranational system that permits unilateral decisions by its member states can face a high level of instability and alter its multilateralism. As a general implication, the advice given by the European Court of Justice creates a new legal precedent that can be considered a new custom. The European law has been formed between the institutions and the member states, adopting the criteria of customary law that results in a practice that is then recognized as law. The application of customary international law always permitted a good level of balance and flexibility between the European institutions and the legal point of view of the member states.

Nevertheless, in this scenario, the precepts of customary law could undermine the European multilateralism: any of the 27 member states could request a unilateral action regarding one of the enforced treaties, in order to revoke or modify certain prescriptions. While  such a request might not be considered wrong immediately, the applicant state could bring to the court the case of the United Kingdom, in which the European Court of Justice has hinted at a unilateral resolution.

The hypothetical consequences described are not certain to happen just yet: the task of the Advocate General is to provide a wider discussion.  In addition, his opinion is not considered legally binding by the Court of Justice But it is still important — not just for the ECJ itself, but also for national courts.

Considering both the non-binding nature of the Advocate General’s opinion and the effective role given to the Court of Justice, the British path is still blurred and uncertain. At a national level, it is not yet known whether the British Parliament,  will accept the opinion, or if they will continue to aim for an almost certain Brexit deal without agreement. In any case, the United Kingdom clepsydra is almost empty, and a decision has to be made soon: the country is scheduled to leave the EU at 11pm local time on March 29, 2019.

 

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