The top European court now is highly likely to rule that the UK can cancel Brexit unilaterally. For all the domestic political hurdles such a move would face, it’s intriguing to ponder how Europe would take it if the UK did cancel Brexit.
Last year, a group of Scottish lawmakers asked a court in Scotland whether, having initiated an EU exit procedure under Article 50 of the Lisbon Treaty, a country can revoke the decision without other member states’ consent. The court referred the question to the European Court of Justice in October. The Brexit ministry’s attempts to derail the proceedings failed, and on Tuesday, ECJ Advocate General Manuel Campos Sanchez-Bordona delivered his opinion, which, based on previous ECJ practice, has a 70 percent chance of being echoed in the eventual ruling.
According to Campos Sanchez-Bordona, the UK can revoke its Article 50 procedure within two years after it began and before a formal withdrawal treaty is signed. He pointed out that under Article 50, a country only declares its “intention,” not its decision, to exit. So ending the process, according to the advocate general, would be a manifestation of the withdrawing state’s sovereignty. Consent from other EU members isn’t needed.
For the time being, the matter is purely academic. Both Theresa May’s Conservatives and the Labour Party opposition in Britain have pledged to honor the 2016 vote to leave. And yet, anything is possible in the current political environment.
It might seem that the EU would welcome the UK back with open arms if Brexit were canceled. “The door remains open,” European Commission President Jean-Claude Juncker and European Council President Donald Tusk have often said.
Even before Brexit was on the agenda, the UK wasn’t exactly popular in the bloc. According to a 2017 paper by Marco Fantini and Klaas Staal, the UK has been the country that has garnered the least support from other member states in the European Council, meaning its policy preferences have been the least aligned with those of other member states. In recent years, it’s been by far the most outvoted country in the Council.
Even though the level of agreement in the European Council has been generally high and the UK has only dissented in about every eighth case, it voted against the majority most frequently on budgets, foreign and security policy and international development. These are especially important areas for the EU today, given plans for a budget reform that would link funding to a country’s support for common European values, Europe’s weakening ties with Donald Trump’s US and the imperative of increasing foreign aid to reduce immigration. The bigger EU powers face opposition on these fronts from Eastern European nationalist governments; a non-exiting UK would mess up all the political calculations French and German politicians have based on Brexit.
Besides, the UK is the EU member state with the most opt-outs from EU agreements. It refuses to think about joining the euro or the common border area, and it’s haggled relentlessly over every EU project that required giving up even a small part of its sovereignty. Though few countries will want to repeat the UK’s exiting experience after what they’ve seen in the last two years, keeping the UK in the bloc with all its opt-outs may prompt governments to try British-style cherry-picking.
For France and Germany, the Brexit story is about setting precedents and examples. The exit deal protects the EU-27 from most of the economic risks associated with the UK departure and even creates favorable conditions for some European services industries, especially the financial industry. They’d never put it this way, but letting the UK leave on the basis of this deal sets a clear precedent. It demonstrates that in place of close economic ties, leavers get what former Bank of England governor Mervyn King calls “perpetual subordination.”
In that sense, it’s a better outcome than if the UK stays and continues to undermine every attempt to bring member states closer together, especially on terms favored by France and Germany.
The opinion means the UK has a wonderful opportunity to stick it to the Germans, the French and the Brussels bureaucracy -- by abandoning Brexit and remaining as a perpetual headache for everyone Brexiters despise. It would be a powerful strike for British sovereignty which would make EU leaders regret they hadn’t been more careful what they wished for in their public statements -- but not in their hearts.Leonid Bershidsky
Leonid Bershidsky is a Bloomberg Opinion columnist covering European politics and business. -- Ed.(Bloomberg)