On 10 December 2018, the European Court of Justice (ECJ) delivered the judgment for the case of Wightman and Others v Secretary of State for Exiting the European Union (C-621/18), finding that the UK is free to revoke unilaterally the notification of its intention to withdraw from the EU.

On 3 October 2018, the Scottish Court of Session referred to the ECJ (having been approved by the UK Supreme Court), for a preliminary ruling, the question of whether the notification referred to in Article 50 can be revoked unilaterally before the expiry of the two year period, with the effect that such revocation would result in the UK remaining in the EU. The question arose out of a judicial review lodged by members of the UK Parliament, the Scottish Parliament and the European Parliament.

The press release from the ECJ notes that the full court has ruled that, when a Member State has notified the European Council of its intention to withdraw from the EU, as the UK has done, that Member State is free to revoke unilaterally that notification. That possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired.

Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end. In the context of the UK, if the Government sought to revoke Article 50, this would allow the UK to remain a member of the EU without changes in hindsight to the UK’s entitlements or obligations as before the Article 50 notification period.

The case will now be referred back to the Scottish Court of Session for a final judgment.