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Wightman et al. v. Secretary of State for Exiting the European Union

  • Danae Azaria (a1)

Extract

The CJEU held that the United Kingdom of Great Britain and Northern Ireland (UK) is allowed to unilaterally revoke the notification of its intention to withdraw from the European Union (EU) as long as the revocation is submitted in writing to the European Council before the UK's withdrawal takes effect, and as long as the revocation is “unequivocal and unconditional, that is to say that 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” (para. 74).

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References

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1 European Union (Withdrawal) Act 2018, sec. 13.

2 R (Miller & Anor) v. Secretary of State for Exiting the European Union [2017] UKSC 5 (hereinafter Miller).

3 European Union (Notification of Withdrawal) Act 2017, ch. 9, sec. 1.

4 Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 62 OJ EU, 2019/C 66 I/01 (Feb. 19, 2019), at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2019:066I:FULL&from=EN.

5 Opinion of Advocate General Campos Sánchez-Bordona, para. 148 (Dec. 4, 2018) (hereinafter AG Opinion).

6 On the basis of Wightman, the European Council may consider whether the revoking member state has met the revocation requirements and could refuse to accept the notification as invalid. In such case, the revoking member state may seek proceedings before the CJEU challenging that decision. Assuming that the Court finds that the revocation has not been made lawfully, whether the time prior to when withdrawal takes effect continues to run during the proceedings is unclear (this may be crucial if revocation is submitted close to the time when withdrawal is to take effect).

7 AG Opinion, supra note 5, para. 80.

8 Summary Records of the Fifteenth Session (May 6–July 12, 1963), UN Doc. A/CN.4/SER.A/1963, 1 Int'l L. Comm'n Y.B., at 164, Art. 24, para. 23 (1963) (Yasseen) [hereinafter Summary Records].

9 Id., paras. 25–26 (Tsuruoka).

10 Draft Articles on the Law of Treaties with Commentaries, UN Doc. A/6309/Rev. l, II Int'l L. Comm'n Y.B., at 264, Art. 64, para. 2 (1966).

11 Id.

12 See Summary Records, supra note 8, at 165, para. 33 (Elias).

13 Int'l L. Comm'n Rep., Text of the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties with Commentaries, at 93, Conclusion 12(3), UN Doc. A/73/10 (2018).

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Wightman et al. v. Secretary of State for Exiting the European Union

  • Danae Azaria (a1)

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