Can the UK's Article 50 Notification be Revoked During the UK/EU Transitional Period?
On 19 October 2019, the UK Parliament was formally presented with the text of a document which purports to set out the terms on which the UK will withdraw from the European Union. However, the inescapable conclusion to be drawn from the various transitional arrangements which are set out in the document is that from the date of entry into force of the agreement until 31 December 2020 (or later date, see Article 132, p. 197), the UK will not have withdrawn from the European Union in any legal sense of the term. Revocation of the Article 50 notice which was triggered on 29 March 2017 is therefore possible at any point during this transitional period. However, it is highly unlikely that the UK will have the right of unilateral revocation that, per Wightman v Secretary of State for Exiting the European Union [2018], it currently has. Revocation during the transitional phase will almost certainly require the consent of the European Council.
According to Article 50, there are two ways in which a member state is “withdrawn” from the European Union. The first situation envisaged is that a withdrawal agreement is concluded under Article 50(2), as a consequence of which the EU Treaties will cease to apply. The second situation envisaged is that the two year (or extended) period after the Article 50 notification has been made by the departing member state has lapsed without a withdrawal agreement being concluded-in which case, again, the EU Treaties will cease to apply. The current UK/EU agreement purports to fulfil the first condition, but does not do so for the simple reason that the EU Treaties will apply to the UK after the withdrawal agreement has been concluded until the end of the transitional period as set out in Articles 126 and 132 (p. 186 and p. 197).
During the transitional period, the UK will have all the rights and obligations enjoyed by other member states, save for any decision making powers (see Article 7, p. 15/16 and Article 128(2) & (3), p. 191 ). For example, Article 4 (p. 12/13) preserves the supremacy of EU law in all its meanings, including as comprised in the principle of direct effect. Indeed, according to Article 87(1) (p. 140 ), the UK is potentially subject to the jurisdiction of the Court of Justice of the European Union (CJEU) for up to four years after the end of the transitional period. Articles 13-23 (p. 25-42) contain the all-important citizens rights provisions. In summary, those who exercise their right of movement and residence before the end of the transitional period will fall within the scope of what most commentators have acknowledged is a progressive framework of EU laws, not least as espoused by the CJEU in the context of rights and residence of third country national family members (see Article 13, p. 25-26). Regrettably, the agreement confirms that the UK is entitled to apply new “residence status” requirements (Articles 18 and 19, p. 30-39). The plight of the descendants of the Windrush generation has exposed just how easily fundamental rights can be upset by the kind of administrative procedures which Articles 18 and 19 of the EU/UK agreement allow.
The court in Wightman was not called upon to consider the question of whether a right of revocation exists in circumstances in which an agreement concluded under Article 50(2) does not have the effect of “withdrawing” a member state from the European Union Treaty framework. Thus, the scope of Article 50 has not yet been tested in respect of the arguments I advance here. Moreover, it might well be thought that a decision on whether or not to revoke would be much more sound if taken during a transitional phase of the kind that the UK/EU agreement constructs.