Reversing a Withdrawal Notification under Article 50 TEU: Can a Member State Change Its Mind?

Abstract

The purpose of this paper is to determine whether a Member State of the EU may revoke its notice to withdraw from the Union under art.50 TEU. The answer to this question has significant practical implications for Brexit, both domestically and across Europe. While the reversibility of the British withdrawal notification has taken centre stage in the debate on Brexit, the matter has not been assessed in depth. The present paper suggests that interpreting art.50 TEU with reference to art.31 and art.32 of the Vienna Convention on the Law of Treaties permits a more systematic analysis of the subject than what has been offered so far by commentators and the English courts. Based on this analytical framework, the paper reviews the text and context of art.50 TEU, the general scheme of the Treaties, other rules of international law and the relevant preparatory work. All of these elements point in a single direction. Contrary to the position taken by the English courts in Miller, they confirm that a notice to withdraw issued under art.50 TEU is in fact reversible.

In the light of these findings, it would be perfectly appropriate for national courts in other Member States, except those against whose decision there is no judicial remedy under national law, to decide that an art.50 TEU notification is revocable without referring the matter to the Court of Justice. However, as only the Court of Justice can provide an authoritative interpretation of art.50 TEU applicable across all Member States, it would be more appropriate, in the interests of legal certainty, if they were to submit this question to the Court of Justice under the preliminary ruling procedure.

Keywords: Brexit, Article 50, TEU, Withdrawal, Notification, EU Law, EU Membership, UK