Interpreting Article 50

On revoking, EU Law matters, argues Cardiff academic

As the Government’s appeal on Brexit has been heard by the Supreme Court, a Cardiff University academic says EU interpretation of Article 50 needs to be taken more seriously.

Writing for the UK Constitutional Law Association’s blog, Stijn Smismans, Professor of Law and Director of the Centre for European Law and Governance in the University’s School of Law and Politicsargues understanding Article 50 matters particularly when it comes to the revocability of withdrawal.

“In the Miller case, the High Court of England and Wales did not question the parties’ common understanding that withdrawal under Article 50 cannot be revoked once triggered. However, academic opinion on the issue is divided,” writes Professor Smismans.

“Regardless of whether the Supreme Court refers the case to the Court of Justice of the European Union (CJEU), it may well come to the point that the EU institutions have to take a stance on accepting or not a revocation of withdrawal,” he says. “One has to know whether that is possible, and it will be based on EU law.”

Professor Smismans, who holds the Jean Monnet Chair in European Law and Governance at the University, is an expert on European governance and has provided policy advice to the European Commission and the European Parliament, among others.

He says: “From the drafting history of Article 50 it is clear that the article was introduced with the aim to indicate clearly that a Member State has a right to withdraw from the Union and to provide a procedure that leads preferably to a negotiated outcome.  However, this exit-friendly intention is combined with a more exit-hostile procedure.

“The article is clearly written in such a way that while a negotiated solution is the preferred outcome, it is up to the remaining Member States to pull the strings and decide which solution is best for the EU once the procedure has been triggered at EU level.

“There is no unilateral way back once the issue has been put on the European negotiation table.  At the same time, it would be entirely against the spirit of the Treaties and of Article 50, if the EU could not stop the withdrawing process if the outgoing State has changed its mind and wants to remain.

“The implication of the EU interpretation of Article 50 for the Miller case is that Parliament should be given a say prior to triggering Article 50, given that subsequently it is not in a position to avoid loss of statutory rights. However, if the UK, by way of the Government or Parliament subsequently intends to revoke its withdrawal notification, this might still be accepted by the EU.”