Tuesday, 27 November 2018

CJEU to hear preliminary reference on whether Article 50 may be revoked

Today, the Court of Justice of the European Union (CJEU) will sit en banc to hear argument in a preliminary reference from Scotland's Court of Session.  The Scottish court made the reference in Wightman and others v Secretary of State for Exiting the EU [2018] CSIH 62 - Lord Carloway (Lord President) and Lords Menzies and Drummond Young.  The CJEU Case number is C-621/18.

An attempt to stop the reference was made by the UK government but this was rejected by the UK Supreme Court on 20 November - see HERE  

The reference asks the CJEU to determine whether unilateral revocation of the Article 50 notice is permissible under EU law.

The Good Law Project has published documents relating to the CJEU hearing including  the Petitioner's case - HERE.  Paragraph 2 of that case sets out the question to be answered -

Article 50 TEU is silent on the question of whether notification may be withdrawn and the question of whether unilateral revocation is permissible has been a topic of keen debate throughout the Brexit process.  Two previous posts looked at the arguments for and against as put forward by various legal commentators - see Law and Lawyers 23 July 2017 and Law and Lawyers 20 October 2017.

Having a definitive answer from the CJEU will inform MPs over the forthcoming weeks as they proceed to vote on whether to approve the Withdrawal Agreement / Political Declaration agreed on 25 November by Prime Minister Theresa May MP with the European Council.

As shown by the House of Commons debate of 26 November, it seems likely that MPs will reject the deal.  The government will press hard to obtain approval and the views of MPs may change before the vote on 11 December.

Although the UK government strenuously resisted the action both in the Scottish Court of Session and in the Supreme Court, it has consistently stated that it will not revoke the notification given to the EU on 29 March 2017.

Addendum 27 November - Good Law Project has published "Resources for the Article 50 hearing."  This includes a link to notes about the hearing itself.  The court will give judgment in the near future.  The court will first obtain an opinion from Advocate General Campos Sánchez-Bordona.  Obtaining such opinions is usual procedure  The reports are non-binding on the court but are highly persuasive and followed more often than not.  The CJEU has announced that the AG's opinion is to be presented to the court on 4 December.,

The CV of the Advocate General can be read HERE.

Court of Justice of the EU - Grande Salle - 27 November 2018

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