UK Can Reverse Brexit Without European Union Agreement, Top EU Law Adviser Says

December 4, 2018 Updated: December 4, 2018

LONDON—The UK can back out of Brexit without the agreement of the European Union, the advocate general of the European Court of Justice said in official advice on a case brought by anti-Brexit campaigners.

The plaintiffs are hoping the case will light the legal path for British lawmakers to back out of Brexit—if they wish to—as they vote on the Brexit deal hashed out between the EU and UK.

The court is expected to make a final ruling sometime before Christmas, but such preliminary advice from the advocate general is typically followed in final judgments. The statement from the European Court of Justice (ECJ) bolsters a campaign for the British people to be given the option to overturn Brexit—something the government insists won’t happen.

The UK and EU are coming to the end of an interim period —separated but still married—as they hash out a divorce agreement before a deadline of March 29, 2019. Lawmakers will vote on a draft version of that divorce agreement on Dec. 11.

‘A Manifestation of Its Sovereignty’

Lawmakers are expected to reject the deal, opening a confusing web of possibilities, including that of a second referendum and the possibility of overturning Brexit. Knowing that the UK can pull out of Brexit unilaterally would smooth the path to a second referendum.

Article 50 of the EU membership treaty is clear that Brexit can be stopped at any point within two years, as long as all 27 member states and the UK agree. However, it isn’t clear whether the UK can decide on its own that it no longer wants to leave.

To answer that question, Scottish lawmakers opposed to Brexit filed a petition in the Scottish court, triggering a request to the ECJ, on Sept. 21.

The ECJ said in a statement, “The Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded.”

The advocate general, Manuel Sánchez-Bordona, said that the withdrawal from an international treaty, is “by definition a unilateral act of a State party and a manifestation of its sovereignty.”

“Unilateral revocation would also be a manifestation of the sovereignty of the departing Member State, which chooses to reverse its initial decision.”

‘Just a Bad Dream’

Theresa May’s government has insisted all along that there would be no going back from Brexit, but political winds have been building behind a second referendum, as her negotiated Brexit deal looks increasingly unlikely to get the approval of British lawmakers.

Prime Minister Theresa May in Brussels for Brexit deal.
Britain’s Prime Minister Theresa May arrives with Britain’s Permanent Representative to the EU Tim Barrow at an extraordinary EU leaders summit to finalize the Brexit agreement in Brussels, Belgium, on Nov. 25, 2018. (Yves Herman/Pool/Reuters)

May has insisted that lawmakers have only two options: Accept her negotiated deal, or “crash out” of the EU with no deal. But many lawmakers reject this binary choice, and believe that there is a third way.

If the UK needs permission from all 27 member states of the EU to reverse Brexit, then it could effectively end up having to renegotiate its membership.

The UK doesn’t have standard membership with the EU, but has, over the years, negotiated various arranged benefits and opt-outs of the standard treaty deal, including keeping its own currency and a handsome rebate. If the UK wishes to remain a member, EU states might decide it needs to start over with the standard package.

“If we can revoke the notification without permission, we will retain the rebate and opt-outs we presently enjoy,” the Good Law Project, one of the parties behind the case, said in a statement. “It can be, legally, like the decision to Brexit was just a bad dream.”

“If we have to go cap-in-hand to the other 27 for permission, we are at risk that a country that will benefit from transfers of financial services or manufacturing will block our path to remain.”

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