Businesses are being forced to plan for a number of Brexit scenarios. Whilst the focus is usually on whether the UK will face a hard Brexit or a slightly softer and more orderly departure from the EU, there remains the possibility that the UK will remain in the EU. Whilst 'Bremain' may still be unlikely, it is not altogether impossible given the twists and turns of the Brexit discussions to date; the potential for the UK and the EU to fail to reach any deal; the uncertainty over how the UK Parliament will react to any deal; and what the UK Government would do in the event that Parliament rejects any deal. In the event the UK wanted to withdraw its Article 50 notification and remain in the EU, what would be its legal position under the EU treaties? Would it have a right to remain or be beholden to the consent – and the terms – of the other Member States? Would the UK retain the opt-outs from the Euro and the Justice and Home Affairs measures that affect how some companies do business?
In recent days the Court of Session has recognised the position is not clear and has sought the views of the European Court of Justice. The Court of Session has asked: "Where, in accordance with Article 50 of the Treaty on European Union, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the European Union?"
An expedited decision and by the ECJ is expected before Christmas. For those grappling with the uncertainties of Brexit, the courts at least may be able to provide a little more clarity for one of the many scenarios that could play out in the coming months.