Professor Steve Peers, University of Essex
The CJEU this week delivered its first judgment
on the impact of Brexit (as far as the EU side is concerned) since the UK has
left the EU – swiftly following last week’s Advocate General’s opinion
(which I discussed here;
I’ve adapted some of that blog post in this one) in response to fast tracked
questions referred from the Irish
Supreme Court (on appeal from the Irish High Court’s judgment).
Background
The Court’s judgment concerns extradition from Ireland to the UK under both the withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The former treaty provides that the internal EU legal framework for simplified extradition – the European Arrest Warrant (EAW) law – still applied between the UK and EU during the transition period set out in that agreement, which lasted from 1 February 2020 to the end of that year. (As an exception, three Member States refused to hand over their own citizens, but Ireland was not one of them).
After that point, the separation provisions of the withdrawal agreement applied: the EAW law still applies if a fugitive was arrested on the basis of that law before the end of the transition period. If the EAW was issued before that date, but the fugitive was not arrested in time on the basis of the EAW law, the subsequent TCA provides that its extradition rules – which are similar, but not identical, to the EAW law – apply. (The TCA rules also apply to extradition requests first sent after the transition period ended, and the judgment in this case is also relevant by analogy to those requests too).
The case is about two fugitives arrested in Ireland on the basis of British EAWs, who challenged their extradition to the UK. Both EAWs were issued during the transition period, but one EAW led to an arrest before the end of that period, hence the separation provisions kicked in, and the EAW law applies fully to the case. In the other case, the arrest took place after the end of this period, and so the TCA rules apply. The fugitive in the former case was already convicted and sentenced to eight years in prison, whereas the fugitive in the latter case was subject to a pending prosecution for fourteen alleged criminal offences.
Both two fugitives argued that they could not be subject to these rules in the two treaties, because even though Ireland agreed to both treaties in the EU Council, that country did not exercise a formal opt in as set out in the Justice and Home Affairs protocol relating to Ireland (and previously also applying to the UK) attached to the EU Treaties. If they had been successful, their challenge would have complicated not only extradition but other forms of criminal law cooperation between Ireland and the UK set out in the withdrawal agreement and TCA, in both directions (ie Irish requests to the UK too). It could also have impacted on criminal law cooperation between the UK and Denmark, which has a similar (but not identical) opt in protocol. (Criminal law cooperation would not entirely have ended, however, because there are other international treaties that would have applied as a default, although they do not simplify cooperation as much as the treaties with the EU do).
Judgment of the Court
The judgment first examines the scope of Article 50 TEU, noting that it has the twin objectives of ‘first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion’ (referring to the Wightman judgment, discussed here). The Court continued:
50 It is in order to be able to
attain that objective effectively that Article 50(2) TEU confers on the
European Union alone competence to negotiate and conclude an agreement laying
down the detailed rules for withdrawal, since that agreement is intended to
regulate, in all the areas covered by the Treaties, all questions relating to
the separation between the European Union and the State withdrawing from it.
51 It
was therefore pursuant to that competence that the European Union was able to
negotiate and conclude the Withdrawal Agreement, which provides, inter alia, in
relations with the United Kingdom, for the continued application of a
significant part of the EU acquis, in order to reduce uncertainty
and, to the extent possible, minimise disruption caused by the fact that, on
the date of withdrawal, the Treaties cease to apply to the departing State, as
is apparent from point 4 of the guidelines adopted by the European Council
at its special meeting of 29 April 2017 following the United Kingdom’s
notification under Article 50 TEU.
54 Since
the withdrawal agreement is intended to cover all of the fields and issues
referred to in paragraph 50 above, and since it is not possible to add to
Article 50(2) TEU legal bases laying down procedures which are
incompatible with the procedure laid down in paragraphs 2 and 4 of that
article (see, to that effect, judgment of 2 September 2021, Commission v Council
(Agreement with Armenia), C‑180/20, EU:C:2021:658, paragraph 34 and
the case-law cited), it must be concluded that only Article 50 TEU, as an
autonomous legal basis independent of any other legal basis set out in the
treaties, can ensure that all of the fields falling within the scope of those
treaties are treated consistently in the Withdrawal Agreement, thus enabling
the withdrawal to take place in an orderly manner.
Furthermore,
there would be ‘uncertainty’ because Ireland, having agreed to participate in
the EAW system with the UK, ‘would be treated as if it had never participated
in it’. This outcome ‘would be difficult to reconcile with the objective of
reducing uncertainty and limiting disruption so as to enable an orderly
withdrawal’.
As for the TCA,
which was concluded on the basis of Article
217 TFEU (the
power for the EU to conclude association agreements), the Court recalled its
case law that Article 217 ‘empowers the European
Union to guarantee commitments towards third countries in all the fields
covered by the TFEU’. It followed that:
58 Agreements
concluded on the basis of that provision may therefore contain rules concerning
all the fields falling within the competence of the European Union. Given that,
under Article 4(2)(j) TFEU, the European Union has shared competence as
regards Title V of Part Three of the TFEU [ie EU competence as regards justice
and home affairs], measures falling within that area of competence may be
included in an association agreement based on Article 217 TFEU, such as
the TCA.
Did the
inclusion of extradition issues within the TCA require an additional legal
basis relating to criminal law cooperation, besides that of an association
agreement? While the case law states that the competence over association agreements
can be used ‘only on condition that that measure
relates to a specific area of EU competence and is also founded on the legal
basis corresponding to that area’, that case law ‘concerned not the conclusion
of an association agreement but the adoption of a decision on the position to
be taken, on behalf of the European Union, within a body set up by such an
agreement’; in such circumstances, where a decision could be adopted ‘by
qualified majority without the participation of the European Parliament… the
addition of a specific legal basis was necessary in order to ensure that any
more stringent procedural requirements specific to the area concerned would not
be circumvented’. This is distinct from an association agreement as such:
62 By
contrast, since the conclusion of an agreement such as the TCA does not relate
to a single specific area of action but, on the contrary, a wide range of areas
of EU competence with a view to achieving an Association between the European
Union and a third State, and the conclusion of such an agreement requires, in any
event – in accordance with point (a)(i) of the second subparagraph of
Article 218(6) TFEU and the first sentence of the second subparagraph of
Article 218(8) TFEU – a unanimous vote and the consent of the
European Parliament, there is no risk, as regards the conclusion of such an
agreement, of more stringent procedural requirements being circumvented.
Nor did the
prior case law on using multiple legal bases where a measure pursues multiple objectives
apply, in the Court’s view. The Court recalled its case law taking a broad view
of the scope of the EU’s development policy powers, and extended that approach
to cover association agreements:
65 Those
considerations also apply mutatis mutandis to association
agreements whose objectives are designed in a broad manner, in the sense that
the measures required in order to pursue those objectives concern a wide range
of areas of EU competence.
66 That
is precisely the case with regard to the TCA, since, as the Council submitted
in its observations, in order to ensure an appropriate balance of rights and
obligations between the parties to the agreement and to secure the unity of the
27 Member States, that agreement had to have a sufficiently wide scope.
67 Accordingly,
in view of the wide scope of the TCA, the context of its adoption and the
unequivocal declarations made by all the institutions and Member States
involved throughout the negotiations on the withdrawal of the United Kingdom
from the European Union, the inclusion in that agreement, alongside rules and
measures falling within many other areas of EU law, of provisions falling
within Title V of Part Three of the TFEU forms part of the general objective of
that agreement, which is to establish the basis for a broad relationship
between the Parties, within an area of prosperity and good neighbourliness
characterised by close and peaceful relations based on cooperation, respectful
of the Parties’ autonomy and sovereignty.
68 The
surrender mechanism established by the TCA contributes to the pursuit of that
objective, the Parties having indicated, in recital 23 thereof, that their
cooperation relating to, inter alia, the investigation, detection and
prosecution of criminal offences and the execution of criminal penalties would
enable the security of the United Kingdom and the European Union to be
strengthened. It follows that the TCA cannot be regarded as pursuing a number
of objectives or as having several components, within the meaning of the
case-law referred to in paragraph 63 above.
Comments
First of all, the Court’s approach to the scope of Article 50 is a logical application of its prior ruling that the purpose of Article 50 is partly to provide for an ‘orderly withdrawal’, as the Treaties cease to apply to the withdrawing State (note that the cessation of the Treaties to that country is not just an assertion in European Council guidelines, as the Court seems to imply, but is set out in Article 50 itself). This logically entails that the withdrawal agreement has a broad scope, covering ‘all the areas covered by the Treaties’ – because the withdrawal may raise issues as regards ending membership in any of those areas. The judgment implicitly confirms competence to conclude the transition period (‘the continued application of a significant part of the EU acquis’), also referring to ‘all questions relating to the separation’, in the context of ‘reduc[ing] uncertainty and, to the extent possible, minimis[ing] disruption’ (emphasis added).
Although there is no reference to the potentially permanent system set up by the Northern Ireland protocol – which goes beyond purely transitional or ‘winding up’ rules – the Court’s judgment does point toward that direction, notably the reference to applying some EU law and to ‘all questions’ concerning withdrawal.
Secondly, as for association agreements
such as the TCA, the judgment builds upon prior case law, and reflects the requirement
for unanimity of Member States in the Council to conclude them – which is an
even stronger guarantee for Member States than as regards development policy
treaties (which can be concluded by a qualified majority in the Council). It
appears, however, that the specific provisions in an association agreement should
be linked to the objective of that particular agreement – although note that
the Court’s description of the broad general objective of the TCA is not a frolic
by the judges, but comes from the purpose of the treaty as agreed by the
parties (see Article 1 of the TCA), which was quoted earlier in the judgment.
Finally, it is notable that while the Court confirms that the withdrawal agreement had to be concluded by the EU without participation of the Member States (para 50: ‘Article 50(2) TEU confers on the European Union alone competence to…’ – emphasis added), the Court does not comment on the fact that – unusually for association agreements – the TCA was also concluded by the EU without the Member States also becoming parties alongside it. However, the overall tenor of the judgment seems favourable to the EU only being a party to this agreement too (see the Council legal service opinion on this point). Given the Court’s explicit reference to the shared competence of the EU over justice and home affairs, it might reasonably be inferred from this judgment that, as the Council legal service argued, the EU alone may conclude association agreements when they include provisions on shared competence – or the Council may instead to conclude them alongside the Member States in such cases.
Of course, the EU and the UK continue
to argue about the interpretation, application and revision of the Northern
Ireland protocol to the withdrawal agreement. Nevertheless, the Court’s firm
conclusion that the EU had extensive powers to conclude the two key treaties relating
to Brexit should address most or all complications that some had argued limited
the powers of the EU to conclude those treaties. In that sense, at least as far
as the EU is concerned, the Court of Justice has Got Brexit Done.
Barnard & Peers: chapter 26
JHA4: chapter II:2, chapter II:3
Photo credit: Jimmy Harris, via Wikimedia
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