Wightman v Secretary of State

• Jurisdiction: European Union
• Judge: Rosas,Xuereb,Ilešič,Juhász,Silva de Lapuerta,Jürimäe,Prechal,von Danwitz,Lycourgos,Rodin,Campos Sánchez-Bordona,Šváby,Biltgen,Regan,Piçarra.,Malenovský,Fernlund,Bay Larsen,Safjan,Rossi,Vilaras,Toader,Bonichot,Lenaerts,Arabadjiev,Vajda
• Court: Court of Justice of the European Union
• Docket Number: (Case C-621/18)
• Date: 10 December 2018

Court of Justice of the European Union (Full Court).

(Lenaerts, President; Silva de Lapuerta, Vice-President; Bonichot, Arabadjiev, Prechal, Vilaras, Regan, von Danwitz, Toader, Biltgen, Jürimäe and Lycourgos, Presidents of Chambers; Rosas, Juhász, Ilešič, Malenovský, Bay Larsen, Safjan, Šváby, Fernlund(Rapporteur), Vajda, Rodin, Xuereb, Piçarra. and Rossi, Judges; Campos Sánchez-Bordona, Advocate General)

(Case C-621/18)

Wightman and Others

and

Secretary of State for Exiting the European Union 1

International organizations — European Union — Membership — Withdrawal — Treaty on European Union, Article 50 — Notification by United Kingdom of its intention to withdraw from European Union — Whether notification to withdraw made pursuant to Article 50 may be unilaterally revoked by United Kingdom — Whether unilateral revocation of withdrawal notification subject to other conditions — Deadline for revocation — Effects of revocation of Member State's intention to withdraw from European Union

Treaties — Withdrawal — European Union Treaties — Treaty on European Union, Article 50 — Right of withdrawal from European Union — Notification of Member State of its intention to withdraw — Whether notification to withdraw made pursuant to Article 50 may be unilaterally revoked by Member State concerned — Whether unilateral revocation of withdrawal notification subject to other conditions — Deadline for revocation — Effects of revocation of Member State's intention to withdraw from European Union

Treaties — Vienna Convention on the Law of Treaties, 1969, Articles 54, 65, 67 and 68 — Withdrawal of a State from a treaty — Whether notification by State of its intention to withdraw from treaty may be unilaterally revoked by that State — European Union — Treaty on European Union, Article 50 — Whether Article 50 of Treaty on European Union constituting lex specialis in relation to Articles 65, 67 and 68 of Vienna Convention on the Law of Treaties

Treaties — Interpretation — European Union Treaties — Treaty on European Union, Article 50 — Right of withdrawal from European Union — Notification of Member State of its intention to withdraw — Whether notification to withdraw made pursuant to Article 50 may be unilaterally revoked by Member State concerned — Whether question of interpretation of Article 50 by referring court admissible — Wording of Article 50 and objectives pursued — Context and European Union law provisions as a whole — Origins of Article 50 — Articles 65, 67 and 68 of Vienna Convention on the Law of Treaties, 1969 — The law of the European Union

Summary:2The facts:—On 29 March 2017, the United Kingdom notified the European Council of its intention to withdraw from the European Union pursuant to Article 50 of the Treaty on the European Union, 1992 (“the TEU”).3 Section 13 of the European Union (Withdrawal) Act 2018 (“the Act”) provided that the withdrawal agreement could be ratified by the United Kingdom only if, inter alia, it was approved by the House of Commons.4

On 19 December 2017, a petition for judicial review was lodged in the Court of Session in Scotland in which the claimants sought a declarator specifying whether the United Kingdom's notification to the European Council pursuant to Article 50 of the TEU could be unilaterally revoked before the expiry of the two-year period laid down in that Article, with the effect that, if such revocation took place, the United Kingdom would remain in the European Union. They asked the Court of Session to refer a question on that issue to the Court of Justice of the European Union (“the Court of Justice”) for a preliminary ruling. In response, the Secretary of State for Exiting the European Union argued that the question was hypothetical and academic, in view of the United Kingdom Government's stated position that the notification would not be revoked.

By decision of 8 June 2018, the Lord Ordinary (first instance judge of the Court of Session) declined to make a reference to the Court of Justice and refused the petition for judicial review.

By order of 21 September 2018 (p. 66, above), the Inner House of the Court of Session allowed the appeal against the decision of the Lord Ordinary and granted the claimants' request that a reference for a preliminary ruling be made to the Court of Justice in order to ascertain whether a Member State that had notified the European Council of its intention to withdraw from the European Union pursuant to Article 50 of the TEU could unilaterally revoke the notification of its withdrawal. In case of an affirmative answer to this question, the Inner House of the Court of Session further inquired whether such revocation would be subject to any conditions and whether its effect would be that the Member State concerned would remain in the European Union.

Opinion of the Advocate General

Held:—A Member State that had notified the European Council of its intention to withdraw from the European Union pursuant to Article 50 of the TEU could unilaterally revoke this notification, until such time as the withdrawal agreement was formally concluded, provided that the revocation had been decided upon in accordance with the Member State's constitutional requirements, was formally notified to the European Council and was not abusive.

(1) The question of interpretation of Article 50 of the TEU submitted by the referring court was admissible.

(a) It was solely for the referring court to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submitted to the Court of Justice. Questions concerning European Union law enjoyed a presumption of relevance. The Court of Justice could refuse to give a ruling on a question referred by a national court only where it was quite obvious that the interpretation, or the determination of validity, of a rule of European Union law that was sought bore no relation to the actual facts of the main action or its purpose, where the problem was hypothetical, or where the Court of Justice did not have before it the factual or legal material necessary to give a useful answer to the questions submitted (paras. 34–5).

(b) The Court of Justice should assume that the referring court adopted the order for reference in accordance with the rules governing procedure, jurisdiction and judicial organization in force in its national law (para. 37).

(c) The dispute before the referring court was genuine because it opposed the claimants and the respondent on a point of law, namely whether Article 50 of the TEU allowed a Member State unilaterally to revoke the notification of its intention to withdraw from the European Union (para. 38).

(d) The question of the referring court was essential to the resolution of the dispute because the power to interpret Article 50 of the TEU definitively and uniformly belonged to the Court of Justice (para. 39).

(e) The question of the referring court was not merely academic given the important consequences that Brexit would have on the rights of United Kingdom and other Member State nationals. Nor was the question premature. The answer to it could only be useful if it was given before, and not after, Brexit occurred (paras. 40–2).

(f) The answer to the question was necessary in order to clarify the options open to the Members of the United Kingdom Parliament when casting their vote on the withdrawal agreement pursuant to Section 13 of the Act. In particular, the answer to the question would allow those Members to ascertain whether, in addition to rejecting or approving the withdrawal agreement, they could also call upon the United Kingdom Government to revoke the notification of its intention to withdraw from the European Union (paras. 43–5).

(g) Although the claimants sought a declarator from the referring court, this did not mean that the Court of Justice ruling would be purely advisory in nature. The referring court's judgment could produce legal effects in so far as it would authorize the claimants who were members of the United Kingdom Parliament to take an initiative, based on European Union law, in favour of unilaterally revoking the United Kingdom's notification of its intention to withdraw from the European Union (paras. 46–7).

(h) The fact that the United Kingdom Government had stated that it had no intention of revoking the notification it submitted to the European Council pursuant to Article 50(1) of the TEU did not render the question submitted by the referring court hypothetical. The referring court had to resolve the dispute before it and give a remedy which depended on the interpretation of the TEU. The Court of Justice would, therefore, not perform advisory but judicial functions (paras. 48–51).

(2) It was uncertain whether Article 68 of the Vienna Convention on the Law of Treaties, 1969 (“VCLT”),5 according to which a notification of a State's withdrawal from a treaty could be revoked at any time before it took effect, reflected a customary rule of international law. Even if its text was unanimously adopted by the States that participated in the intergovernmental conference which drafted the VCLT, Article 68, which appeared linked to Articles 65 and 67 of the VCLT, could be considered as a procedural rule which demonstrated a progressive development of international law rather than the codification of an international custom. Given this situation of relative uncertainty regarding the nature of Article 68 of the VCLT, it was difficult to see how the Court of Justice could declare it as a rule of customary international law that was in force (paras. 71–5).

(3) The TEU was an international treaty concluded between States and, as such, was in principle within the scope of the VCLT. However, France and Romania were not parties to the VCLT and, accordingly, Article 68 of the VCLT was not applicable as a rule of international treaty law. Nor was it...