4

The scenario I am about to offer is very particular.

Suppose that the UK is running out of time before Brexit Day and doesn't have a deal signed with the EU - or an extension of time from the EU with which to continue the negotiations.

Suppose it decides that leaving the EU without a deal would be economically and politically insane, and the most sensible thing to do would be to revoke its Article 50 notification, and then reinvoke Article 50 - thus starting the clock at 2 years again.

Is there any legal or procedural way that the other 27 nations of the EU, or the European Commission, could attempt to rewrite Article 50, or reinterpret it, to thwart this move? I'm not talking about bluster and outrage - I mean actual legally-meaningful measures.

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    Note that attempting to frustrate the revocation of the Article 50 notification would not achieve this objective - in fact, it would, if successful, achieve the precise opposite! – Robin Green Feb 26 '18 at 20:51
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    It is dubious whether the UK can (unilaterally) stop the article 50 process, which is a precondition of your scenario. See Can the UK realistically back out of Brexit? and Could the British government un-trigger Article 50? – chirlu Feb 26 '18 at 21:18
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    The EU can only change article 50 by unanimous consent of the member states, which means that before the UK leaves, the article can only be changed with the UK's agreement. – phoog Feb 26 '18 at 23:07
  • Politically maybe - but I doubt it. Legally no. – Reinstate Monica - M. Schröder Feb 27 '18 at 6:37
  • @phoog If you find the section of the EU treaties which says that, then you could post this as an answer. – Philipp Feb 27 '18 at 12:06
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To directly answer your question...

The Lisbon Treaty modified the way in which the EU treaties can be amended, with Art. 48 of the Treaty on European Union (TEU) creating a new system for treaty reform at EU level prior to an eventual intergovernmental conference and national ratification. (source)

Ordinary revision procedure

  1. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

(...)

Simplified revision procedures

  1. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union.

(...)

So yes, it would be legally possible to amend any of the treaties although the process would be difficult and likely slow. And No (see the rest of my answer), the EU could not make it more difficult for the UK to Brexit (this is an unilateral legal and valid decision from a member).


A comment about revoking Article 50...

Article 50 does not have a "revoke" clause, meaning that the UK cannot unilaterally revoke Brexit. There is no article or clause to be invoked to achieve this. This would either be done with consent from the other members, or at most be sent to the European Court of Justice (CVRIA; the latter being exactly what happened, check the edits at the end of this answer).

It can, however, unilaterally decide to leave the EU as is stated in the very first point of the Article 50:

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

That being said there is nothing the EU can do to avoid Brexit other than presenting itself and its advantages as a better alternative. If the UK wants to leave the EU all it has to do is what it has already done (invoke Article 50), and two years later is out of the EU.

If the UK wants to leave EU but still have access to some of its features (single market for example) it will have to enter negotiations. And this is precisely the part where the EU can take a stronger or softer stance. Currently the EU seems whiling to offer what has been offered to other nations (such as Norway if free movement of people is acceptable for the UK, or as Canada if not).

EDIT: I think the analysis made by David Allen Green is also relevant. Check here.

EDIT 2 (24, Sep., 2018): There is some new information regarding the potential revoking of Article 50 (EUobserver):

Scottish judges have asked the EU court to rule whether the so-called Article 50 process, on the UK leaving the EU, can be "unilaterally revoked" if the British parliament voted to reject Britain's exit deal.

The same has been reported in other media-outlet such as BBC and Reuters. So this question should have a definite answer from the EU court in the next few months.

EDIT 3 (28, November, 2018): Regarding the revoke of article 50: The EU Council's most senior lawyer, Hubert Legal, told a hearing at the EU court in Luxembourg the UK could not unilaterally revoke Article 50. However it's important to notice that this is still awaiting an official decision by the EU court of Justice. (EUobserver)

The EU Council's most senior lawyer, Hubert Legal, told a hearing at the EU court in Luxembourg the UK could not unilaterally revoke Article 50 - the EU treaty exit clause that it triggered after the 2016 referendum. "National processes cannot suffice to pull the carpet on which everyone has been forced to stand on," he said in a case brought by anti-Brexit campaigners. A verdict is unlikely before 2019.

EDIT 4 (4, December, 2018): The EU Court of Justice advocate general just shared his opinion on the subject of revoking Article 50: The U.K. has the power to unilaterally revoke the notification of its intention to leave the EU before it quits on March 29, 2019, the European Court of Justice’s advocate general said Tuesday. (Politico.eu):

The top lawyer rejected the argument put forward by the European Commission and Council that Article 50 only allows a country to revoke its notification in the event of a unanimous decision of the European Council.

The opinion is not binding but gives an indication of how the EU’s top court may decide the case, which was brought forward at the request of members of Scottish parliament, MPs and MEPs and several courts.

As mentioned by James K there's more to the advocate general recommendation to the Court of Justice. Here is the comment from the CURIA Press Release about this subject:

(...)

In answer to the question from the Scottish court, the Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

(...)

EDIT 5 (10, December, 2018): I guess it's official. The ECJ just ruled that the UK can unilaterally revoke Article 50. (The Guardian)

The European court of justice has ruled the UK can unilaterally stop the Brexit process, in a decision that will boost demands for a second EU referendum.

The court concluded that any EU member state can revoke the article 50 process without needing approval from every other member state, in an emergency judgment timed to coincide with Tuesday’s critical Commons vote on Theresa May’s Brexit deal.

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    Not that the advocate general puts a couple of provisos on the ability to revoke: notably that it be done in good faith, ie not with the intention of immediately re-invoking. – James K Dec 5 '18 at 9:56
  • @JamesK True, I'll add the press release link to the latest edit. Even so I'm not entirely sure what to make of it. Even if approved by the Curia I don't think this would go smoothly for at least some member states. I'm obviously speculating but unfortunately two years of politically charged discussion has probably caused some grievances. – armatita Dec 5 '18 at 10:22
  • The first section brushes national ratification under the carpet when it's the most important part of the process for the purposes of answering the question. The second section contains a lot of edits which don't improve the answer and could be relegated to the revision history, before finally arriving at the present status which reflects what (almost?) all the experts were saying at the start. – Peter Taylor Dec 10 '18 at 17:36
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Armatita is very clear in his response, but one thing I am missing. When a new Law is introduced this law does not apply retroactively. And the same would apply to 'Rewriting Article 50'. It would apply from the day it was 'Rewritten' and accepted, and not from the Day 'Article 50' was invoked nor the day the Brits voted in favour of Brexit.

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    This is a strong principle in criminal law, a weak principle in other laws, and a matter of negotiation in treaties. " Article 50" refers to the Lisbon Treaty, it's not a law. – MSalters Nov 29 '18 at 12:21
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Is there any legal or procedural way that the other 27 nations of the EU, or the European Commission, could attempt to rewrite Article 50, or reinterpret it, to thwart this move? I'm not talking about bluster and outrage - I mean actual legally-meaningful measures.

While the other answers address the legal part, there is also the procedural part. That part is explicitly addressed in the statement by the The EU Court of Justice advocate general from December 4, 2018. Quoting the official press release:

However, that possibility of unilateral revocation is subject to certain conditions and limits. [...] The principles of good faith and sincere cooperation must also be observed, in order to prevent abuse of the procedure laid down in Article 50 TEU.

(emphasis mine)

So if the UK decided to revoke the Article 50 notification, and then reinvoke Article 50, I think the EU could consider that an "abuse of the procedure", and refuse to accept the revocation.

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    That is just the advocate's opinion, it is not legally binding. – Robin Green Dec 7 '18 at 21:40
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    @RobinGreen: True, but until there's a court judgement, all answers will only contain opinions, and this one is the opinion of someone with formal authority. – sleske Dec 8 '18 at 23:34

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