Canceling Brexit Could Get Easier as Judges Weigh Article 50

(Bloomberg) -- Remainers were jubilant when an adviser to the European Union’s top court said the U.K. should be able to change its mind about Brexit.

But the opinion of Advocate General Manuel Campos Sanchez-Bordona is non-binding on the EU’s Court of Justice -- meaning judges can decide for themselves as they prepare to issue a landmark ruling on whether Britain could unilaterally revoke the “Article 50” letter that started the clock ticking on Brexit.

Canceling Brexit Could Get Easier as Judges Weigh Article 50

The ruling date has been set for Dec. 10, just a day before the U.K. Parliament’s vote on Prime Minister Theresa May’s much-maligned withdrawal agreement with the EU.

The multibillion-pound question is: Will the EU judges agree with Sanchez-Bordona? Lawyers predict that, on balance, they probably will.

“The meaning of Article 50 is an easily grasped issue on which everyone has an opinion, so this is not the sort of case in which the advocate general’s opinion is automatically followed,” said David Anderson, a lawyer at Brick Court Chambers in London.

“It is the confidence with which the advocate general has expressed himself, rather than the likely persuasive effect of his opinion, that leads me to think the court is of essentially the same view,” said Anderson, who’s pleaded more than 150 cases at the Luxembourg-based court.

In a clear and detailed opinion on Dec. 4, Sanchez-Bordona said that EU law allows a country to revoke an Article 50 notice “until such time as the withdrawal agreement is formally concluded.”

He rejected the U.K.’s arguments that the question is premature and academic, saying that the court’s ruling will help “resolve a genuine dispute between two parties.”

“It seems to me that the relevant time to dispel doubts as to whether the notification of the intention to withdraw is revocable is before, not after, Brexit has occurred and the United Kingdom is inexorably immersed in its consequences,” he wrote.

Possible Abuse

The one point which the court may want to refine could be the risk of a possible abuse of a right to revocation, said Steven Peers, professor of EU law at the University of Essex.

The court could find “that the prospect of a member state revoking its Article 50 notification and then sending another notification to gain more negotiation time is too big a risk,” said Peers. “It will come down to whether they think the risk of unilateral revocation can be dealt with by a good faith rule, or whether they will just rule it out.”

The matter ended up in Luxembourg after the U.K.’s failed bid to kill it in domestic courts. The government lost a final attempt last month to derail the case after the country’s Supreme Court refused to hear an appeal on blocking the referral to the EU judges, whose power over British law pro-Brexit supporters want to sever.

The U.K. Supreme Court on Thursday also announced it would rule on Dec. 13 in a separate Brexit case in which Scottish leader Nicola Sturgeon seeks to maintain devolved powers when EU law is converted into British law.

Despite May’s opposition, some say a ruling that Article 50 can be unilaterally revoked could even help the prime minister by encouraging hardliners to support her plan.

Scottish Case

A Scottish court decided in September to seek the EU tribunal’s guidance on the case brought by pro-Remain lawyer Jolyon Maugham, along with a group of Scottish and English lawmakers seeking to reverse the Article 50 process.

The issue is so complicated because while Article 50 of the EU’s Lisbon Treaty tells member states how to start the process of leaving the bloc, it offers no help on what to do if they change their mind.

The ruling will be handled by the full court, which in this case means 25 judges. Having such a large number is very rare. University of Essex’s Peers said this could make it harder to predict because judges aren’t used to having to confer with so many colleagues.

Still, in this situation, “once a preponderant view has become evident, it may well be that the judgment will go through relatively easily,” said Anderson.

Denis Waelbroeck, an attorney at law firm Ashurst in Brussels, who’s also pleaded many cases before the bloc’s top court, said he would be “very surprised” if the court did not follow the opinion in its final ruling, which can’t be appealed.

“Not only does the court follow the AG in the overwhelming majority of cases, but in this particular case, I just fail to see how it could take a different position,” he said. “Full court cases are in my experience the more political ones -- so if anything this should presumably mean that it will go in the same direction as the AG.”

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