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'The UK can unilaterally decide to Remain in the EU' - Advocate General, Court of Justice of the European Union

Contributed by ISOLAS
04 December, 2018

The UK can halt Brexit by unilaterally revoking the Article 50 notification. The Advocate General of the CJEU, Campos Sanchez-Bordona, issued his opinion this morning. Whilst not binding, the CJEU AG's Opinion tends to be followed by the Court. The CJEU is expected to rule on the issue before the end of the month.

The AG's opinion is offered in the context of a referral to the CJEU in respect of the interpretation of Art 50 of the Lisbon Treaty on application by a group of MSPs and MPs. The UK Government and EU Council both argued against it being interpreted as allowing a unilateral withdrawal of an Art 50 negotiation, contending, amongst other things, that to allow unilateral withdrawal could, in effect, lead to other member states using the Art 50 mechanism to advance their own interests in a manner that could jeopardise the EU more generally.

Given the context in London of i.) a debate to be held today as to whether the UK Government is in contempt of Parliament for refusing to publish the UK AG's advice on the withdrawal agreement and ii.) the scheduled start of five days of debate in the Commons leading up to the 'meaningful vote' on the 11th, the opinion of the CJEU's AG on the legal viability of a unilateral withdrawal of the Art 50 notification is likely to shorten the odds of a second referendum on whether the UK leaves the EU.

The Prime Minister has now repeatedly suggested (and the EU have confirmed) that her deal is the only deal the UK will secure from the EU. As the PM sees it, it's her deal, no deal or no Brexit. Politically difficult as it might be, it is not impossible to countenance the idea that Theresa May can 'sell' a second referendum (or 'People's Vote') to the country on the basis that she has been determined to deliver on the will of the people but the country's Parliament is blocking it. All bets are off about what would be on the ballot of course, but it would be very useful indeed for May's three choices to be put to the vote. May's Deal; No Deal; and No Brexit.

This presupposes, in the (currently likely) event of the withdrawal agreement failing to pass muster in the Commons, that Labour does not move a motion of No Confidence in the Government.

A morning is a long time in politics these days, but what does this mean for Gibraltar?

Currently, Gibraltar is included in the implementation period contained in the withdrawal agreement, if it is approved by the House of Commons. If the UK must leave the EU, Mrs May's deal is, in Gibraltar's interests at least, the best way for us to leave. If the withdrawal agreement is rejected in London we, along with the rest of the UK, will once more return to navigating our now customary patch of the uncharted waters of international politics.

Given that the latest poll by YouGov published yesterday puts 'Remain' on 55%, and given that Gibraltar is clear about remaining in the EU, the dream result would be a second referendum with the vote going the 'right way'.

In the event of a 'No Deal' Brexit being chosen, contingency planning in the UK and in Gibraltar will enter an accelerated phase of implementation. For Gibraltar, as undesirable as this outcome may be, a No Deal Brexit is only a harder version of an exit we have always understood would be unpleasant, but not catastrophic. Gibraltar has existed in a hard border scenario in the context of goods for as long as we can remember. Little would change in that respect. Even though the protocols and MOUs attached thereto would fall away in the event of no deal, the EU and the UK have already confirmed that freedom of movement for short visits would be observed reciprocally, covering what would be one of our key concerns - border fluidity. Our trade with our largest market, the UK, is already guaranteed by the UK Government and I have no doubt that our size and our resilience would see us continuing to thrive on the other side of Brexit in very short order indeed.

Clearly, having started to draft this 20 minutes ago, everything might have changed, but check back as I update this article with all the relevant developments in this, the most fascinating moments (and saddest, let's be frank) in history.

The Press Release of the CJEU can be found here


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