Revista Temas de Derecho Constitucional

319 La cuestión preliminar del TJUE sobre la revocatoria del brexit: fortaleciendo el derecho constitucional de la unión europea. and the European Union under Article 50 TEU. 6 Accordingly, the withdrawal agreement can be ratified only if the House of Commons has approved it and the framework for the future relationship between the United Kingdom and European Union by a resolu- tion and been debated in the House of Lords. Should such approval not be imminent, the United Kingdom Government must disclose how it proposes to proceed. If, prior to 21 January 2019, the Prime Minister determines that no agreement in principle can be reached, that government should, once again, present a proposal on how to proceed and submit that proposal before both Houses of the United Kingdom Parliament. The Court also considered that the original circumstances had changed with the passage of the EU (Withdrawal) Act. For this reason, the Court granted the request. Specifically, the Court of Session asked the Court of Justice whether a Member State which has formally notified the European Council of its intention to withdraw from the EU pursuant to Arti- cle 50 TEU may unilaterally revoke that notification. In the face of failure to approve any agreement between the United Kingdom and the European Union (and if nothing further occurs), the treaties will cease to apply to the United Kingdom on 29 March 2019 and that Member State will automatically leave the European Union on that date. 7 If then the notice of the intention to withdrawwere revo- cable, this would open up the possibility for the UK to remain in the EU in the event of an sub-optimal Brexit. The Scottish court reasoned that the Court of Justice’s ruling should clarify the precise options available to MPs when casting their votes. 8 The request brought about the following questions: Can article 50 TUE be construed as allowing for a unilateral withdrawal or is it rather requiring a multilateral act (jointly decided by the withdrawing Member State and the remaining Member States)? Does the ruling open up a third way which will have as effect the permanence of the UK as EU Member? 2.2. The United Kingdom’s legal framework To set the scene for the preliminary ruling, the relevant constitutional law provisions of the United Kingdom came into play. Therefore, the Court cited the European Union (Notification of Withdrawal) Act 2017 which provides: ‘… 1. Power to notify withdrawal from the [European Union] (1) The Prime Minister may notify, under Article 50(2) [TEU], the United Kingdom’s intention to withdraw from the 6 Ibid, paras 12 and 13. 7 Judgment, para 14. 8 Byorderof21September2018,thereferringcourtallowedtheappealagainstthedecisionoftheLordOrdinary and granted the request of the petitioners in the main proceedings that a reference for a preliminary ruling be made under Article 267 TFEU. The referring court considers that it is neither academic nor premature to ask the Court of Justice whether it is legally possible, for a Member State, to revoke unilaterally the notification made under Article 50(2) TEU and to remain in the European Union. It considers that the matter is uncertain and that the answer given by the Court of Justice will have the effect of clarifying the options open to the Members of the House of Commons when they cast their votes on any agreement between the United Kingdom and the European Union. In particular, that answer would allow them to ascertain whether there are not two options, but three, namely withdrawal from the European Union without an agreement, withdrawal from the European Union with the agreement that has been laid before them, or revocation of the notification of the intention to withdraw and the United Kingdom’s remaining in the European Union. Preliminary ruling, para 15.