How much does EU law really have to say about the withdrawal of a Member State from the EU? This seems like an odd question given how much we know about the role played by Article 50 TEU. For example, we know that Article 50 gives the withdrawing state and the EU a two year window to negotiate a withdrawal agreement whose entry into force results in the EU treaties ceasing to apply to that state. By agreement of the withdrawing state and the remaining EU states, the period laid down in Article 50 can be extended. But once the Article 50 period comes to an end, the treaties shall cease to apply even if there is no withdrawal agreement. Viewed in this way, the departure of a Member State without a withdrawal agreement does not appear of itself to be contrary to EU law.

Nonetheless, the behaviour of the parties is subject to legal stipulations. Article 50 recognises that the decision to withdraw will be taken in accordance with the domestic constitutional requirements of the withdrawing state. What those requirements might be and how they are enforced are matters for the withdrawing state. The Millercase is a good example of UK courts determining what the constitutional requirements were for a UK Prime Minister to trigger the Article 50 withdrawal process.

Maintaining compliance with domestic constitutional requirements is not restricted to the decision to withdraw but necessarily applies to any exercise of executive power that impacts on the withdrawal process. This is clearly implied in the so-called ‘Three Knights Opinion’. While the legality of a No Deal Brexit arising from the acts or omissions of the UK Government is a matter of domestic law to be determined by UK courts, does that mean that EU law remains agnostic?

Whether or not EU law is or should be agnostic about domestic constitutionality has been an open question since the 2016 referendum. Various domestic court cases have sought to impugn the legality of the 2016 referendum and the withdrawal ‘decision’ with a view to claiming that the Article 50 notification was legally invalid and so ought not to be recognised and given effect in EU law. Nonetheless, in the absence of any court determination annulling the 2016 referendum result and instead – following the Miller case – an Act of Parliament authorising the Prime Minister to notify the EU of the UK’s decision to withdraw, there has simply been no plausible legal basis for the legality of the UK’s withdrawal to be called into question from an EU law perspective.

Things have now become a little more complicated for two reasons. The first is the Wightman ruling of the Court of Justice on the capacity of a Member State to revoke its EU withdrawal notification. The second are pending court cases in the UK to challenge the constitutionality and legality of steps that could be taken by the UK Government to engineer a No Deal Brexit.

In Wightman the Court of Justice was asked whether as a matter of EU law it was possible for a Member State to revoke its withdrawal notification prior to the treaties ceasing to have effect in terms of Article 50. The Court concluded that there was a unilateral right to revoke the Article 50 notification. But the Court said that the revocation had to be ‘unequivocal and unconditional’ with the purpose of confirming EU membership. The Court also stated that the notification of revocation followed from a decision taken by the Member State in accordance with its constitutional requirements.  As the Court put it:

 … if the notification of the intention to withdraw were to lead inevitably to the withdrawal of the Member State concerned from the European Union at the end of the period laid down in Article 50(3) TEU, that Member State could be forced to leave the European Union despite its wish — as expressed through its democratic process in accordance with its constitutional requirements — to reverse its decision to withdraw and, accordingly, to remain a Member of the European Union.

It would appear that it is not just the decision to withdraw but subsequent decisions concerning a state’s status as a Member State of the Union that are understood to be taken in accordance with domestic constitutional requirements. Again it is important to emphasise that what those requirements are remain matters of domestic law and the Court of Justice is not in a position to interpret domestic law let alone national constitutional provisions.

Nonetheless, were there to be a suggestion that a government or its Prime Minister was behaving unconstitutionally, the question would at least arise as to what legal effect such acts – or even omissions – should have as a matter of EU law.

This point is underscored when we think of the relationship between what the Court said about a revocation decision being taken in accordance with national constitutional requirements – a matter of domestic law – and the stipulation that a revocation decision had to ‘unequivocal and unconditional’ – a matter of EU law. Although the Court demands that a revocation is unequivocal and unconditional, there is really very little way of enforcing this demand. How would we know that a state was not serious about its revocation decision until after the event? Would the mere fact that a state once again triggered the Article 50 process automatically mean that its earlier decision to revoke was not unequivocal? What would the EU do about it?

Rather, what gives a revocation decision its unequivocal and unconditional character from an EU law perspective is that it derives from a decision taken through a democratic process in accordance with national constitutional requirements. There is a clear linkage between the legality of the decision from an EU perspective and the constitutional qualities of the decision from a domestic perspective. That would seem to be even more so in a situation where the rights of EU citizens derived from EU law – and which an orderly withdrawal seeks to protect – would be affected by a No Deal Brexit which the Court explicitly highlights in its Wightmanruling.

The issue of the constitutionality and legality of the behaviour of the UK Government in pursuing a No Deal Brexit is the subject of a judicial review petition before the Scottish Court of Session and is likely to be raised in proceedings in the English courts. It is first and foremost for the UK courts to determine the legality of a No Deal Brexit from a domestic legal perspective and to provide appropriate remedial protection. What is not clear is what capacity the Union might have to act in response to domestic court proceedings when faced with what could otherwise be a disorderly departure of the EU by the apparent operation of Article 50 itself. It is not obvious how the EU could stop the clock even if there were allegations that the UK Prime Minister was acting unconstitutionally if that issue could not be determined prior to 31 October 2019.

There is one other consideration, however, that should be noted. As was made clear at the outset, Article 50 does envisage that a state can leave the Union without a withdrawal agreement. But can a state choose to frustrate the objective of Article 50, namely to secure an orderly withdrawal? Again in Wightman, the Court of Justice was explicit about the objectives which Article 50 pursues:

Article 50 TEU pursues two objectives, namely, first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion.

As I have argued elsewhere, the objective of an orderly withdrawal is a means of managing the externalities which this unilateral withdrawal from the Union creates for the remaining EU states: ‘Brexternalities’. It is also for this reason, that the Union has insisted – and the UK has accepted – that the Article 50 process is governed by the legal principle of ‘sincere cooperation’ as laid down in Article 4(3) TEU. The final paragraph of Article 4(3) TEU is especially relevant. It provides this:

The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

Given that in Wightman the Court explicitly states that an orderly withdrawal is an objective of the Union pursued by Article 50 TEU, action by a withdrawing state that deliberately frustrates that objective would be a breach of a EU law. It would be actionable by the European Commission using infringement proceedings (Article 258 TFEU) or by a Member State like Ireland (Article 259 TFEU).

To take an analogy from a different aspect of EU law – the obligation to implement directives in national law – the Court makes clear that although a state is not obliged to take any measure to implement before the expiry of the period laid down in the directive for its transposition into national law, the state is prohibited from taking any measure liable seriously to compromise its ability to transpose the directive correctly. In other words, the state can do nothing but what it cannot do is to frustrate an objective of EU law. In its Inter-Environnement Wallonie ruling, the Court noted that it was for national courts to determine whether the actions of the Member State were in fact a breach of the sincere cooperation duty. Accordingly, this issue of EU law could form part of domestic legal proceedings concerning the legality of actions taken by the UK Government to force through a No Deal Brexit.

The on-going significance of the duty of sincere cooperation is underlined in the binding European Council Decision granting the UK the extension to 31 October 2019. Para. 10 of the European Council Decision states:

‘… The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.’

Although aimed at the behaviour of the UK in respect of the ordinary workings of the EU, it serves to underline again the importance attached to the duty of sincere cooperation during the extended Article 50 period and which a deliberate No Deal policy would frustrate.

Whether or not these issues are litigated and with what effect remains to be seen. Commenting on Brexit, former Supreme Court judge Lord Sumption stated that the courts are not there to solve every political problem. To which he might have added that not all legal problems necessarily result in court action. Nonetheless, with litigation over a No Deal Brexit beginning to take shape, it is at least worth considering why a No Deal Brexit could be a breach of EU law itself.

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