Wightman and Others v Secretary of State for Exiting the European Union

Court of Justice of the European Union

Author Cédric Puisney 

Licence Creative Commons Attribution 2.0 Generic

Case C‑621/18,  Wightman and Others v Secretary of State for Exiting the European Union  [2018] EUECJ C-621/18, ECLI:EU:C:2018:999, EU:C:2018:999

Jane Lambert

On 19 Dec 2017. Andy Wightmqn MSP and a number of other Scottish, Westminster and European parliamentarians applied to the  Outer House of the Court of Session for permission to seek a judicial review of the Advocate General for Scotland's refusal to confirm that the Prime Minister's notice of intention to withdraw from the European Union dated 29 March 2017 could be withdrawn unilaterally. The petition came on before Lord Doherty who refused permission for a full hearing on the ground that the application had no real prospect of success (see Re Wightman and Others' application for Judicial review on the issue of the unilateral revocability of Article 50 of the Treaty on European Union [2018] ScotCS CSOH_8).

The parliamentarians appealed to the Inner House of the Court of Session which allowed the appeal (see Wightman and Others v Advocate General [2018] CSIH 18).  Delivering judgment on behalf of the Court, Lord Carloway, the Lord President, said at paragraph [30]:

"The issue of whether it is legally possible to revoke the notice of withdrawal is, as already stated, one of great importance. On one view, authoritative guidance on whether it is legally possible to do so may have the capacity to influence Members of Parliament in deciding what steps to take in advance of, and at the time of, a debate and vote on the European Union (Withdrawal) Bill. After all, if Parliament is to be regarded as sovereign, the Government’s position on the legality of revoking the notice may not be decisive. Whether such guidance falls within the proper scope of judicial review raises yet another issue. However, that scope is wide and, returning to the cautionary words in EY (supra), the law is always developing and, in certain areas, it can do so quickly and dramatically. The scope of judicial review of Government policy may be one such area, at least where no issue of questioning what is said in Parliament arises."

Their Lordships concluded at [32] that "having regard to all the circumstances, the court is of the view that the Lord Ordinary erred in holding that there is no 'real prospect of success' in this petition, as that phrase has been explained above."

Following their successful appeal, the parliamentarians applied for the following relief:

"a. A preliminary reference to the Court of Justice of the European Union (CJEU) under article 267 of the Treaty on the Functioning of the European Union (TFEU); and for that reference to be sought by way of expedited procedure;
b. On return of that reference from the CJEU, and in the light of the guidance given by that court, for a declarator from this court specifying whether, when and how the notification which was made by letter dated 29 March 2017 from the United Kingdom Prime Minister, the Right Honourable Theresa May MP, to the President of the European Council, Donald Tusk under article 50(2) TEU can unilaterally be revoked by the United Kingdom."

Their application was heard by Lord Boyd of Duncansby in Wightman and others v Secretary of State for Exiting the European Union  [2018] ScotCS CSOH_61. The learned judge dismissed the application on the grounds that the question was hypothetical.

The parliamentarians appealed again to the Inner House which once again allowed their appeal (see Wightman and Others v Secretary of State for Exiting the European Union [2018] ScotCS CSIH_62).  Their Lordships referred the following question to the Court of Justice of the European Union under art 267 of the Treaty on the Functioning of the European Union:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU”.

In view of the expected Parliamentary proceedings including a "meaningful vote" on any withdrawal agreement that might be negotiated, the Court of Session invited the CJEU to expedite the proceedings before it pursuant to art 105 of the Rules of Procedure of the Court of Justice.

The Department for Exiting the European Union applied unsuccessfully to the Inner House for permission to appeal against the reference to the Supreme Court.  When its application to the Inner House failed on 8 Nov 2018 the Department applied for permission to appeal to the Supreme Court.  The application was heard by Lady Hale, Lord Reed and Lord Hodge on 20 Nov 2018 and was dismissed with costs (see the Supreme Court's order in Wightman and Others v Secretary of State for Exiting the European Union 20 Nov 2018).

The Court of Justice granted the parliamentarians' request for expedition on 19 Oct 2018 in C‑621/18, Wightman and Others v Secretary for State for Exiting the European Union EU:C:2018:851, ECLI:EU:C:2018:851, [2018] EUECJ C-621/18_CO.  The parliamentarians were opposed not only by Her Majesty's government but also by the Commission and the Council.  HMG argued that the question was inadmissible because it was hypothetical as the government had no intention of revoking its notice. The Commission argued that it was hypothetical for another reason, namely that it would have no binding effect on the parties to the main litigation. On the substantive issue, the Commission and Council argued that the right to revoke notice under art 50 could not be unilateral lest it be used to leverage concessions from the other member states.  In their submission, notice could be withdrawn only with the unanimous consent of the remaining member states.

In his opinion of 4 Dec 2018, Mr Manuel Campos Sánchez-Bordona. Advocate General advised at paragraph [34]:

"According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, 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 submits to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling. It follows that questions concerning EU law enjoy a presumption of relevance."

The CJEU has a right to refuse to hear a case in certain circumstances but, in the Advocate General's view, none of those circumstances applied.  After analysing the Vienna Convention on the Law of Treaties, Art 50 of the Treaty of European Union and British legislation he proposed that the Court of Justice should answer the Inner House's question as follows:

"When a Member State has notified the European Council of its intention to withdraw from the European Union, Article 50 of the Treaty on European Union allows the unilateral revocation of that notification, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice."

In its judgment yesterday, the full Court agreed with the Advocate General on admissibility:

"It is not for the Court to call into question the referring court’s assessment of the admissibility of the action in the main proceedings, which falls, in the context of the preliminary ruling proceedings, within the jurisdiction of the national court; nor is it for the Court to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and legal proceedings (see, to that effect, judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 26, and of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 34). In the present case, the referring court rejected the pleas of inadmissibility raised before it by the United Kingdom Government concerning the hypothetical or academic nature of the action in the main proceedings. It follows that, in so far as the arguments of the United Kingdom Government and of the Commission are intended to call into question the admissibility of that action, they are irrelevant for the purposes of determining whether the request for a preliminary ruling is admissible (see, to that effect, judgment of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 33)."

It also followed his reasoning on the substantive law: "as the Advocate General pointed out in points 99 to 102 of his Opinion, it follows from the wording of Article 50(2) TEU that a Member State which decides to withdraw is to notify the European Council of its ‘intention’. An intention is, by its nature, neither definitive nor irrevocable."  In its ruling it actually went firther than the Advocate General:

"Article 50 TEU must be interpreted as meaning that, where a Member State has notified the European Council, in accordance with that article, of its intention to withdraw from the European Union, that article allows that Member State — for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired — to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements. The purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end."

The significant part of that ruling lies in the last sentence that a revocation of notice under art 50 will leave unchanged the United Kingdon's status in the European Union,   In other words, it can remain out of the euro, out of Schengen if it revoked its notice before 29 March 2019.  After that date, art 49 would apply and the terms of our reentry are unlikely to be anything like as generous as the terms of our present membership.

The timing of the judgment has been criticized by some as an interference in our affairs.  It is nothing of the sort.  It delivered an expedited judgment at the specific request of Scotland's highest court which request was upheld by the Supreme Court of the United Kingdom.   Some may see it as inconvenient but it may also provide us with a way out of our constitutional crisis.

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