January 23
2022
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Trajan Shipley
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9th November 2021
External Relations & Trade Justice & Litigation

AG Kokott: EAW provisions in EU-UK Withdrawal and Trade Agreements are binding on Ireland

Advocate General Kokott delivered her Opinion today in Governor of Cloverhill Prison and others (C-479/21 PPU), advising the Court to rule that the provisions for the continuation of the European Arrest Warrant (EAW) in the United Kingdom contained in the Withdrawal Agreement (WA) and Trade and Cooperation Agreement (TCA) between the EU and the UK are binding for Ireland.

The case at issue concerns two subjects who were arrested and subsequently remained in custody in Ireland pursuant to an EAW issued by UK authorities. After a series of appeals where it was argued that they were not lawfully imprisoned on the grounds that the EAW regime no longer applied between Ireland and the UK, the Irish Supreme Court referred a question for a preliminary ruling on whether the provisions concerning the EAW contained in the WA and TCA were binding on Ireland. According to Protocol 21 to the TFEU, Ireland is not bound by measures related to the Area of Freedom, Security and Justice, unless it expressly opts in to the measure in question.

Given that Ireland did not opt in to the relevant EAW provisions in the WA and TCA, the Advocate General examined whether Ireland indeed had to expressly opt in for those provisions to apply to it. In this sense, she reasoned that a measure that touches on the Area of Freedom, Security and Justice will not be covered by Protocol 21 if it is not based on a competence derived from Title V of Part Three of the TFEU. Insofar as the WA and TCA are based on different titles of competence, namely on those relating to the arrangements for withdrawal and to conclude an association agreement, the provisions on the EAW contained in both agreements are not covered by Protocol 21, and therefore Ireland did not have to expressly opt in in order to be bound by them.

She further noted that to require a withdrawal agreement also to be based on provisions other than Article 50(2) TEU whenever the agreement touches on a specific area would in practice be liable to render devoid of substance the competence and procedure prescribed in said provision. Similarly, she stressed that the competence under Article 217 TFEU empowers the EU to guarantee commitments towards non-member countries in all the fields covered by the Treaties, and that its broad scope is justified by the objective of creating special, privileged links with a non-EU country that will take part, at some extent, in the EU system.

In her view, neither the TCA nor the WA introduce new obligations concerning the EAW regime under Framework Decision 2002/584, which applies to Ireland.

The Opinion will be available here. The Court’s press release can be found here.

An Analysis on this case by Annegret Engel will be published soon on EU Law Live.

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