Wednesday 19 September 2018

Brexit legal changes yet: the CJEU rules on the execution of European Arrest Warrants issued by the UK prior to Brexit Day

Professor Steve Peers, University of Essex

There’s a lot of legal debate about the consequences of Brexit, but the definitive word on the legal issues, as far as the EU is concerned, is the EU’s Court of Justice. Its first judgment on Brexit issues was released today, defining the legal position up until Brexit Day – and arguably influencing the approach to be taken after that date.

Today’s judgment in RO concerned whether Ireland was still obliged to execute a European Arrest Warrant (EAW) issued by the UK, in light of the UK’s expected withdrawal from the EU, having notified its intention to leave on the basis of Article 50 TEU.  In fact, the draft withdrawal agreement would regulate this issue to some extent: EU law (including the EAW) would still apply to the UK for a transition period (discussed here) until the end of 2020, subject to the caveat that EU Member States could refuse to surrender their own citizens pursuant to an EAW issued by the UK (the UK could reciprocate). At the end of the transition period, outstanding EAWs could still be executed between the UK and EU as long as the fugitive was arrested on the basis of the EAW before that date.  However, these specific provisions are not yet agreed, and of course nor is the entire withdrawal agreement, so inevitably the Court made no mention of this draft treaty in its ruling.

The UK issued two EAWs for the purpose of prosecuting RO on grounds of murder, rape and arson charges, but he has challenged the execution of the warrants in Ireland. RO is in detention pending execution of the EAWs, which is why the Court agreed to fast-track this case. (Note that it refused to fast-track an earlier reference on the same issues, referred by the Irish Supreme Court. It also refused to fast-track a similar case on whether the Dublin asylum rules still apply to the UK in light of Brexit). RO argued that he faced torture or inhuman or degrading treatment in UK prisons, based on 2016 CJEU case law (discussed here), which was since clarified in July. The Irish High Court therefore asked the issuing judicial authority to clarify that detention conditions in Northern Ireland would meet minimum standards, and it was satisfied with the reply.

However, the Irish High Court was still concerned about the impact of Brexit on RO’s case, and so asked the CJEU if it had any impact on executing the EAW. RO argued that there was no guarantee that the UK would continue to be bound by the EAW law after Brexit Day, in particular the rules on: deducting custody periods spent in the executing state from any subsequent sentence; the ‘specialty’ rule (the fugitive can only be prosecuted for the offences specified in the EAW); limits on further surrender or extradition to an EU or non-EU State; and the protection of human rights under the EU Charter of Fundamental Rights.  Furthermore, the CJEU would likely not be in a position to rule on these issues as regards the UK after Brexit Day.


The Court began by noting that mutual trust between Member States was founded on “common values” referred to in Article 2 TEU. This principle means, as regards justice and home affairs, that “save in exceptional circumstances” Member States must presume all other Member States “to be complying with EU law and particularly with the fundamental rights recognised by EU law”. For the EAW, this manifested itself in a system of mutual recognition, entailing an obligation to execute an EAW issued by a Member State except “in principle” where the exhaustive grounds for refusal listed in the EAW apply. But the “exceptional circumstances” permit an executing State’s court to end the EAW process, for instance where there was a risk of torture et al under Article 4 of the Charter (which matches Article 3 ECHR). In this case the national court was satisfied that there was no risk of losing rights at present; but what about the position of the fugitive after Brexit day?  

On that point, the Court noted that an Article 50 notification “does not have the effect of suspending the application of EU law” in the withdrawing Member State. Therefore EU law, including the EAW legislation “and the principles of mutual trust and mutual recognition inherent in that decision, continues in full force and effect in that State until the time of its actual withdrawal from the European Union”. The Court summarised the Article 50 process without commenting on whether it would be possible to rescind the notification, as discussed here. That issue is relevant to this case since a withdrawal of the notification would render the fugitive’s argument moot, but the issue does not seem have been raised in the case, presumably because it would not have helped the fugitive and is only hypothetical as long as the UK government is not contemplating withdrawing the notice.

In the Court’s view, disapplying the EAW to the UK simply because an Article 50 notification had been sent would “be the equivalent of unilateral suspension of the provisions of the” EAW law, and would ignore the wording of its preamble, which says that it can only be suspended if the EU decides that an issuing Member State has breached the EU’s values. A recent CJEU judgment concerning alleged breaches of EU values in Poland (discussed here) concluded that EAWs could only be suspended on a case-by-case basis if no such finding of breach had been made.  An Article 50 notification was not an “exceptional circumstance” suspending the principle of mutual trust.

However, RO could argue that there were “substantial grounds for believing” that after Brexit, he was “at risk of being deprived of his fundamental rights and the rights derived” from the specific provisions of the EAW law referred to by the national court (listed above). On those points, the Irish court had already dismissed the argument that there was a risk of torture, et al, owing to UK prison conditions. Brexit would not affect that position, in the Court’s view:  

In that regard, it must be observed that, in this case, the issuing Member State, namely the United Kingdom, is party to the ECHR and, as stated by that Member State at the hearing before the Court, it has incorporated the provisions of Article 3 of the ECHR into its national law. Since its continuing participation in that convention is in no way linked to its being a member of the European Union, the decision of that Member State to withdraw from the Union has no effect on its obligation to have due regard to Article 3 of the ECHR, to which Article 4 of the Charter corresponds, and, consequently, cannot justify the refusal to execute a European arrest warrant on the ground that the person surrendered would run the risk of suffering inhuman or degrading treatment within the meaning of those provisions.

As for the specific provisions of the EAW, there were no “ongoing legal proceedings” which might infringe the specialty rule, and no “concrete evidence to suggest” that any such proceedings are being “contemplated”. This was equally true of the potential surrender or extradition to an EU or non-EU State. Furthermore, these provisions of the EAW law “reflect” provisions of the Council of Europe’s extradition Convention, which has been ratified by the UK and applied in its national law. So in the Court’s view, “[i]t follows that the rights relied on by RO in those areas are, in essence, covered by the national legislation of the issuing Member State, irrespective of the withdrawal of that Member State from the European Union”. The deduction of previous prison time served also exists in UK law and will apply regardless of whether the extradition process is part of EU law.

Since the rights based on the legislation and the Charter “are protected by provisions of [UK] national law in cases not only of surrender [under the EAW law], but also of extradition, those rights are not dependent on the application” of the EAW law as such to the UK, and “there is no concrete evidence to suggest that RO will be deprived of the opportunity to assert those rights before the courts and tribunals of” the UK after Brexit.

Nor was the potential absence of CJEU jurisdiction decisive, because the fugitive “should be able to rely on all those rights before a court or tribunal of” the UK, and the Court’s jurisdiction did not always apply to the EAW law anyway. Indeed while the law applied from 2004, the Court’s jurisdiction did not apply fully until 2014.

Overall then:

…in order to decide whether a European arrest warrant should be executed, it is essential that, when that decision is to be taken, the executing judicial authority is able to presume that, with respect to the person who is to be surrendered, the issuing Member State will apply the substantive content of the rights derived from the Framework Decision that are applicable in the period subsequent to the surrender, after the withdrawal of that Member State from the European Union. Such a presumption can be made if the national law of the issuing Member State incorporates the substantive content of those rights, particularly because of the continuing participation of that Member State in international conventions, such as the European Convention on Extradition of 13 December 1957 and the ECHR, even after the withdrawal of that Member State from the European Union. Only if there is concrete evidence to the contrary can the judicial authorities of a Member State refuse to execute the European arrest warrant.


What has the Court’s judgment told us about the Brexit process? First of all, it confirms that in the run up to Brexit nothing much will change, even though some legal relationships and processes begun before Brexit Day will conclude after it. The general statement that EU law continues to apply to the UK until Brexit Day is qualified, but those qualifications have little impact, as long as the UK continues to apply the ECHR, the Human Rights Act, EU legislation and any other relevant international treaties until that date. While the Court refers implicitly to the UK’s Extradition Act, the EU Withdrawal Act has more generally provided for the retention of EU law in UK domestic law after Brexit.  

Only if the UK starts making prospective changes to that retained law before Brexit Day will there be an issue about the UK/EU relationship during that time.  In that case the test will be whether the specific EU law rights which the litigant seeks to rely upon will be removed by the UK post-Brexit. There would have to be “concrete evidence” of the removal of such rights. Logically the rantings of an angry backbencher should not be enough evidence to that end, whereas a change in the law should be. In between those two ends of the spectrum, a government intention to amend policy, or a government bill tabled before parliament, would arguably be enough.

After Brexit it remains to be seen whether the EAW largely continues applying during the transition period, with an agreed phase out process (in the event that the withdrawal process is agreed). In that scenario attention will turn to the details of the future UK/EU relationship in this area (more on that issue here). Today’s judgment, with its acceptance that Member States can rely upon the future position of a non-Member State as long as it complies with the ECHR and EU legislation, even if no CJEU jurisdiction applies, does not lend support to those who claim that it will be impossible for the UK to have a close relationship with the EU in this field after Brexit. (Note also that in the NS judgment, the CJEU assumed that the principle of mutual trust can apply to non-EU States, in para 78). In any event, the limits on Member States extraditing citizens of another Member State to a non-EU State will apply (see discussion of the case law here).

If there’s no withdrawal agreement, then there may be conflicting approaches to the validity of EAWs pending on Brexit day (which the CJEU will likely be called upon to settle, along with similar issues relating to other EU legislation disapplying to the UK). There would also be a reversion to the use of the Council of Europe extradition treaty, with EAWs either being treated as extradition requests or having to be reissued. The UK would immediately lose access to the Schengen Information System, which is how many EAWs are transmitted. As a consequence, as evidenced by the impact of introducing the EAW, fewer people would be extradited and the process would take longer. All this would one among a number of legal and practical challenges arising from such a major disorganised disruption.

Barnard & Peers: chapter 25; chapter 27
JHA4: chapter II:3
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