Is Article 50 Reversible? On Politics Beyond Legal Doctrine

Reversibility of the notification to withdraw is at the center of interpretative disputes on article 50 TEU. The UK government argued and the High Court upheld that the notification of withdrawal is not revocable. Virtually, all parties at the Supreme Court case have held the same view. On the contrary side of the argument, consensus among scholars (Paul Craig,1 Daniel Sarmiento,2 Philip Syrpis)3 and practitioners (such as Jean Claude Piris4 or Andrew Duff5) takes the opposite view. In line with the later and continuing a previous publication,6 I argue that revocability fits neatly in the letter and spirit of article 50 because of formal and substantive reasons. I further content that the Supreme Court decision may create a bifurcation in which interpretation of a key TEU provision may become purely an issue of domestic law. However, I further content that actors' political decisions have progressively framed a situation in which revocability does not seem politically possible.

Revocability of the notification to withdraw in article 50 results from the concurrence of formal and substantive arguments. The formal arguments combine the following three sources:

  • Hermeneutic interpretation. Although an explicit entitlement to backtrack does not exist in article 50, nothing in the provision explicitly rules out neither the possibility of a state reversing its initial intention. The House of Lords referred precisely to this literal interpretation to conclude that the notification was revocable.7 The treaty refers to the notification of intention to withdraw (not a decision). Truly, the complete wording of the provision reads “A Member State which decides to withdraw shall notify the European Council of its intention” combining thus decision and intention ...

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