Anti-Brexit campaigners have won a small but significant victory in the EU courts by getting a non-binding opinion that the UK should be able to withdraw its application to leave the EU unilaterally.
If the full court eventually concurs, lawyers say the ruling could mean the House of Commons could prevent a no-deal Brexit by ordering the government to revoke article 50.
An advocate general of the Luxembourg-based European Court of Justice recommended to the court that it should allow for the unilateral revocation of the article 50 exit clause, invoked by the UK in 2017, rather than see it as a request subject to EU approval.
Advocate general Manuel Campos Sánchez-Bordona gave his opinion on Tuesday a question forwarded by a Scottish court at the request of a number of members of the Scottish parliament, MPs and MEPs. Opinions of advocates general are usually adopted by the full court, which is likely to take several months to rule.
"There is nothing, in my view," he wrote, "in article 50 which envisages it as a 'one way street with no exits', pursuant to which all that a member state could do, after notifying its intention to withdraw and subsequently reconsidering its decision, would be to wait two years to leave the European Union and immediately ask to rejoin."
The UK government argued that the question referred for a preliminary ruling was inadmissible because it was hypothetical, since there was no indication that the government or MPs were going to revoke the notification of intention to withdraw.
Used as threat
The advocate general disagreed, arguing that the question was far from theoretical and he urged the court to find that a withdrawal commitment was revocable until such time as the withdrawal agreement was formally concluded, as long as the decision was taken in line with the member state’s constitutional requirements.
Lawyers from the EU institutions have argued that any revocation has to have consent from the rest of the EU27 to protect the exit clause from being used as a threat by governments wanting a better deal to stay in the EU.
However, the advocate general said that to accept that the European Council, acting by unanimity, should have the last word on the revocation, increased the risk of the member state leaving the EU against its will, since the right to withdraw from (and, conversely, to remain in) the EU would no longer be subject to the control of the member state concerned.
In those circumstances it would suffice for one of the remaining 27 member states to oppose the revocation in order for the will of the member state that has expressed its desire to remain in the EU to be frustrated.
