Article 50: Definitive or debatable?

Published 31 July 2017

In the first of a series on the constitutional aspects of withdrawal from the EU, Alexandra von Westernhagen, an EU/Competition consultant in DAC Beachcroft's Public Law group, considers if revoking Article 50 is possible.

The UK announced its intention to voluntarily withdraw from the EU, when it triggered Article 50 on 29 March 2017. The UK Government has said that it will not revoke this notification. If this is the case, it appears to follow that, with or without a withdrawal deal, the UK will cease to be a member state of the EU on 29 March 2019. The timetable can only be extended if all member states agree to do so.

However, as a matter of EU law, is it possible to even consider revocation? Article 50 is silent on this point - and indeed on expulsion - but the background and the legal framework within which Article 50 is contained, suggest that a notice provided under Article 50 is debatable and not definitive.

The Court of Justice of the European Union has traditionally taken a teleological approach when interpreting EU law provisions. Applying this to Article 50 means that it would be considered in the context of its purposes and the legal, social and economic goals of its legal framework. Forcing a Member to withdraw, if the Member has changed its mind about voluntary withdrawal, would run counter to the values, principles and aims of the EU.

Article 2 of the TEU states that the EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights. Article 3 refers to the EU's aim of promoting peace, its values and the well-being of its peoples. Article 4 refers to the principles of good faith and loyal co-operation.

The significance of Article 50 could take on even more importance, if the UK's ultimate withdrawal from the EU requires another Act of Parliament. The Supreme Court which, in Miller, ruled that Parliament would have to be involved in triggering the notification process did not explicitly deal with this.

Article 50 also refers to constitutional requirements; that is, a Member State may decide to withdraw from the EU in accordance with its own constitutional requirements. If Parliament were itself to oppose withdrawal, for example in response to the terms of the withdrawal agreement, the UK's constitutional requirements for withdrawal would ultimately not be fulfilled.