November 29
2021
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22nd November 2021
External Relations & Trade Institutional law Justice & Litigation

Op-Ed: “The New EAW Regime Upheld by the Court of Justice – An Olive Branch Extended to the UK?” by Annegret Engel

In its landmark ruling on 16 November 2021, the Court of Justice’s Grand Chamber held that the new European Arrest Warrant (EAW) regime post-Brexit is binding on Ireland, thus following the Opinion of Advocate General (AG) Kokott  (I commented in this Analysis). The case Governor of Cloverhill Prison and Others (C-479/21 PPU) was brought before the Court of Justice by a preliminary reference from the Irish Supreme Court regarding two requests for surrender issued by the UK after its withdrawal from the EU. Both fall within the transitional period, for which the provisions of the new EAW regime established under the Withdrawal Agreement (WA) and the Trade and Cooperation Agreement (TCA) apply.

The judgment comes only a week after the AG’s Opinion, having been fast-tracked under the urgent preliminary ruling procedure. The Court’s choice for urgency was mainly motivated by the continued detainment of the two subjects during the time their case is still pending. However, considering the wider political context and the unresolved conflict between the EU and the UK with regards to Northern Ireland, the decision could not have come at a better moment.

Legal Assessment

The crux of the case concerned Ireland’s opt-out from measures related to the Area of Freedom, Security and Justice according to Protocol No 21. This is particularly crucial as Ireland made use of its option to opt into a select number of measures which are indeed covered by this generic opt-out, inter alia the previous EAW regime under Framework Decision 2002/584. As such, the Court of Justice was asked to determine whether the new EAW regimes under the WA and the TCA constitute a continuation of the previous one (which Ireland opted into and therefore forfeited its competence on the matter), or whether both the WA and the TCA should have used an additional legal basis within Title V of Part Three TFEU which would have required a renewal of Ireland’s opt-in as a consequence.

Echoing general criteria of legal basis litigation derived from settled case law, as well as coinciding with the AG’s Opinion to a large extent, the Court’s analysis revolves around the centre of gravity theory with the predominant aim and content of a measure as the decisive factor for the choice of legal basis. Any incidental effects resulting from the measures are not sufficient for justifying the addition of further legal bases according to that theory, unless they are intrinsically linked and do not prescribe conflicting legislative procedures. It is therefore unsurprising that the Court found that both the WA and the TCA were correctly adopted on the sole bases of Article 50(2) TEU and Article 217 TFEU respectively without the need for an additional legal basis such as the second subparagraph of Article 82(1) TFEU. This confirms the broad interpretation of the scope of the EU’s exclusive competences to conclude complex international agreements which are touching upon a wide variety of different policy areas.

In its judgment, the Court also made an effort to explain the effet utile of its reasoning. In particular with regards to the principle of legal certainty, a consistent approach was deemed necessary in order to ensure an ‘orderly’ withdrawal with limited disruption. Multiplying the amount of legal bases – and thus procedural requirements – in order to do justice to the complexity of the agreements in question or even the splitting up of such measures would not be in the interest of coherence. In addition, opting in and out of an evidently continuous line of measures relating in effect to the same mechanism under different conditions – namely the change in the UK’s membership status – would indeed create legal uncertainty. As a result, Ireland has forfeited its opt-out in the specific case of the EAW regime by once making use of its option to opt in; the requirement of a renewal of such an opt-in would essentially imply opting back out, which is contrary to the principle of legal certainty.

The Wider Political Context

The judgment constitutes another precedent in the Brexit saga and has implications far beyond the actual case at hand. First, while the new EAW regime allows for more exceptions than under the previous mechanism (for example a possibility of refusing extradition of own-nationals to the UK), the proper functionality of this streamlined version becomes ever more vital. Not only would a different outcome to this case have had a detrimental impact on the shared land border between Ireland and the UK creating escape routes for criminals to avoid prosecution, but it would have also had repercussions on the surrender between the UK and other EU Member States (in particular Denmark which has a similar opt-out under Protocol No 22) which would have created additional uncertainty and potentially the need for further judicial review.

Second, the delivery of the judgment falls into the midst of a resurgence of debates surrounding the Northern Ireland Protocol and the looming threat of pulling the emergency brake under Article 16 which could ultimately jeopardise the entire WA and TCA arrangements. Again, a different outcome in this case could have easily aggravated this conflict in an already tense political environment. The message sent with this judgment is therefore timely and could not be any clearer: Ireland – or any other Member State – cannot escape its obligations once entered into under EU law and, derived from that, its compliance with international law. The EU thus demonstrates a strong commitment to uphold what was previously agreed upon with the UK and a readiness to enforce those provisions against its Member States.

The judgment could hence be seen as an olive branch extended to the UK in an attempt to appease the wider political disputes. It is now up to the UK, not only to fulfil its own side of the requirements for a continuous functioning of the EAW regime as specified in the TCA (such as the adherence to the European Convention on Human Rights), but also to comply with other international obligations vis-à-vis the EU in the wider context of the WA and the TCA as a whole.

 

Annegret Engel is a Senior Lecturer in EU Law at Lund University, Sweden. She has recently published articles on the TCA and EU Criminal Procedural Law as well as a monograph on the Choice of Legal Basis in EU law. A full list of her publications can be found here.

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