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ECJ Rules That Article 50 Notice of Intention to Leave the EU Can Be Unilaterally Revoked

On December 10, the European Court of Justice (ECJ), in the case of Wightman and Others v. Secretary of State for Exiting the European Union, ruled that the notice of an intention to leave the European Union, once properly submitted, can be unilaterally revoked, rather than requiring the consent of all other EU Member States.

On March 29, 2017, the UK notified the European Council of its intention to withdraw from the EU under Article 50 of the Treaty of the European Union (TEU), triggering a two-year period for the UK and EU to negotiate an agreement on the terms of the UK’s withdrawal. A judicial review was brought in the Scottish Court of Session in December 2018 by members of the Scottish, UK and European Parliaments, seeking clarification as to whether notification of the UK’s intention to withdraw could be revoked unilaterally. The Scottish Court of Session asked the ECJ to interpret Article 50 of the TEU to determine the issue.

The ECJ stated in its ruling that notification of intention to withdraw is not itself definitive or irrevocable. If the Member State in question decides to remain, in accordance with its own constitutional requirements, it may revoke its notice of withdrawal up until the actual time of withdrawal (such time being the expiration of the two-year negotiation period or, if earlier, when a withdrawal agreement goes into effect). Such revocation would need to be unequivocal, unconditional and be made by a written notice addressed to the European Council.

The ruling, therefore, clarifies that the UK could, after a parliamentary vote, withdraw its Article 50 notice prior to March 29, 2019 (Exit Day), and remain in the EU.

The full judgment is available here.

©2019 Katten Muchin Rosenman LLP

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John Ahern, Financial Attorney, London, Katten Law Firm
Partner

John Ahern, partner at Katten Muchin Rosenman UK LLP and head of the London Financial Services group, focuses his practice on banking, financial services, UK and European financial markets, and related regulations. His background in private practice and as in-house counsel at a global investment bank provides him with perspective on the unique regulatory issues facing the wholesale and private banking sectors. John advises multilateral trading facilities, broker-dealers and banks on trading, clearing and settlement as well as custody of securities—both physical and...

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Carolyn H. Jackson, International Attorney, Katten Muchin law firm
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Carolyn Jackson is a partner in Katten Muchin Rosenman UK LLP and is a Registered Foreign Lawyer. She provides US financial regulatory legal advice to a broad range of market participants, including commercial banks, investment banks, investment managers, broker-dealers, electronic trading platforms, clearinghouses, trade associations and over-the-counter derivatives service providers.

Carolyn guides clients in the structuring and offering of complex securities, commodities and derivatives transactions and in complying with US securities and commodities laws and regulations. 

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Nathaniel Lalone, Katten Muchin Law Firm, Financial Institutions Attorney
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Nathaniel Lalone, a partner at Katten Muchin Rosenman UK LLP, has a broad range of experience in the regulation of financial products and financial markets, and frequently provides regulatory and compliance advice to trading venues, clearing houses and buy-side firms active in the over-the-counter (OTC) derivatives, futures and securities markets. He is actively involved in advising clients on the implementation of MiFID 2 and MiFIR in the European Union as well as the international reach of US financial services regulation. He also has significant experience with structuring...

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Neil Robson, private equity fund managers counselor, Katten Law Firm, London
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Neil Robson, a regulatory and compliance partner with Katten Muchin Rosenman LLP, focuses his practice on counseling hedge and private equity fund managers and other investment advisers on operational, regulatory and compliance issues. He regularly addresses Financial Conduct Authority (FCA) and EU authorization and compliance under both the EU Alternative Investment Fund Managers Directive (AIFM Directive) and MiFID, cross-border issues in the financial services sector, market abuse, anti-money laundering and regulatory capital requirements, formations and buyouts of...

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