Professor Stephen Tierney: Article 50 decision calls into question political neutrality of the CJEU

Stephen Tierney

Stephen Tierney, professor of constitutional theory at Edinburgh University, comments on today’s Brexit judgment from the CJEU.

The Court of Justice of the European Union today issued its judgment in Wightman. It endorsed the opinion of Advocate General Campos Sánchez-Bordona to the effect that it would be possible for the UK to revoke unilaterally the notification of its intention to leave the EU.

This raises several issues: how the UK could constitutionally revoke its notification should a UK government at any point seek to do so, the nature of the decision itself and the possible destabilisation of the EU that could flow from such an interpretation of Article 50.

The first issue is how the UK would go about revocation were political momentum to build for this option. The court’s position is that revocation must be “in accordance with the constitutional requirements of the Member State”.

The Advocate General last week suggested that since the Miller opinion required an act of Parliament to legitimise notification, parliamentary authorisation would also be needed to validate revocation by the UK. Ironically of course, the Supreme Court came to this view in Miller largely due to the argument that notification of intention was not unilaterally revocable. A debate has already begun as to whether primary legislation, or indeed another referendum, would be needed should the government at any point decide to withdraw notification. For now, revocation seems very unlikely, but the opinion will strengthen the political arguments of those seeking such a course.

This raises a question about the political neutrality of the EU’s judicial organs. The Advocate General and CJEU have arrived at a shared opinion which many do not consider to be consistent with the purpose of Article 50. They have also done so very quickly and at a time that will put maximum pressure upon the UK government and Parliament ahead of the vote this week on the draft withdrawal agreement. No doubt it will be asked if the court has been influenced by the political situation in the United Kingdom, and whether this calls into question its role as independent arbiter between the EU and its member states.

Another issue for the EU is that the decision seems to open up the risk of ‘gaming’ by member states. A state could submit its intention to leave, use this for political purposes and later withdraw this notification unilaterally once those purposes are achieved. The CJEU decision does offer safeguards against this. Any revocation must be unequivocal and unconditional, in ‘good faith’ and comply with the requirement of ‘sincere cooperation’ between the member state in question and the EU. But how the court could realistically police political intention is unclear, unless it second guesses such intention.

The Brexit process has taken another twist with this decision from the CJEU. It may well damage the UK government further at a time of weakness, but in the longer term it could also harm the EU by allowing Article 50 to be used for political purposes and if it leads to questions about the political motives of the court itself.