Top EU court set to hear Brexit-reversal case

LONDON (Reuters) – Europe’s top court will hold an urgent hearing on Tuesday over whether Britain can unilaterally reverse its decision to leave the EU, in a case that some supporters of membership hope could pave the way to a second referendum and stop Brexit.

The European Court of Justice (ECJ) is being asked to interpret whether Article 50 of the Lisbon Treaty – the mechanism by which Britain notified the EU of its intention to leave – can be revoked.

Britain is due to exit the world’s biggest trading bloc on March 29, 2019 but it remains unclear whether British Prime Minister Theresa May’s draft withdrawal deal has agreed with the EU and will be passed by parliament.

May has warned that Britain could leave without a deal or that there could be no Brexit at all. The latter statement has given added significance to the outcome of the case before the ECJ – whose supremacy over UK legal matters May has cited as one reason to leave the EU.

If Britain can unilaterally reverse Brexit, it could give British lawmakers (MPs) a third viable option as an alternative to May’s deal or what ministers describe as a chaotic no deal scenario – staying in the bloc after another referendum.

The British government has fought to stop the ECJ from hearing the case, saying it is irrelevant because ministers have no intention of reversing Brexit, while May has consistently ruled out a second referendum.

“Theresa May wants to blackmail us into voting for her bad deal by thinking the only alternative is the disaster of crashing out with no deal,” Joanna Cherry, a Scottish National Party lawmaker and one who instigated the case said.

“We say [Article 50] can be unilaterally revoked – whether that’s the case or whether the court just says it can be revoked with permission – we’ve got the answers that we need in order as members of parliament to be able to say there is a concrete option of stopping Brexit.”

The case was referred to the Luxembourg justices to be ruled by Scotland’s top court and in a demonstration of its importance has been “expedited” by the ECJ, for Tuesday’s one-day hearing before a full court of judges.

Article 50 states that if a state decides to withdraw, it has two years to agree on an exit deal with the remaining 27 EU members, although this process can be extended if the European Council unanimously agrees.

There is no mention of whether a state can change its mind. No other member state ever left the 60-year-old bloc.

However, John Kerr, the British diplomat who drafted the clause, has repeatedly argued it can be unilaterally reversed.

“The die is not irrevocably cast, there is still time and, until the UK has left the EU, the Article 50 letter can be withdrawn,” he wrote in a recent pamphlet. Other legal experts are unconvinced, arguing that costs already incurred by other EU states from divorce talks and the clause’s focus on protecting the interests of its remaining members, means it could not be reversed solely at the UK’s whim.