Extradition post-Brexit: the Irish questions answered

8 February 2022

On 16 November the CJEU delivered its judgment following the publication of the Advocate General’s opinion on the UK-Ireland extradition questions which we wrote about here. The decision concerned the mechanisms for extradition to the UK from Ireland in two scenarios (1) under the terms of the withdrawal agreement from 1 February to 31 December 2020 and (2) under the EU-UK Trade and Cooperation Agreement (“TCA”) from 1 January 2021.
 

The judgment confirms the AG’s Opinion that Ireland is bound by the withdrawal agreement and the TCA (“the agreements”) in respect of extradition arrangements with the UK and accordingly extradition from Ireland to the UK post-Brexit will continue under those terms.

Extradition arrangements post-Brexit

As a reminder:

  1. Under the terms of the withdrawal agreement, the European arrest warrant (“EAW”) mechanism continues to apply to any extradition between the UK and EU Member States from 1 February to 31 December 2020;[1]
  2. If an EAW was issued before the 1 January 2021 but the arrest took place on or after that date, the TCA mechanism for extradition would apply;
  3.  Any warrants issued on or after 1 January 2021 will proceed under the terms of the TCA.

Questions for the CJEU

The Irish Supreme Court’s questions to the CJEU were:

Having regard to the fact that Ireland has the benefit of retaining sovereignty in the [Area of Freedom Security and Justice] ASFJ subject to Ireland’s entitlement to opt into measures adopted by the Union in that area made pursuant to Title V of Part Three TFEU;

Having regard to the fact that the stated substantive legal basis for the Withdrawal Agreement … is Article 50 TEU;

Having regard to the fact that the stated substantive legal basis for the [TCA] … is Article 217 TFEU; and

Having regard to the fact that it followed that it was not considered that an opt in was required or permitted from Ireland so that no such opt in was exercised:-

  1. Can the provisions of the Withdrawal Agreement, which provide for the continuance of the [EAW] regime in respect of the United Kingdom, during the transition period provided for in that agreement, be considered binding on Ireland having regard to its significant AFSJ content; and
     
  2. Can the provisions of the [TCA] which provide for the continuance of the EAW regime in respect of the United Kingdom after the relevant transition period, be considered binding on Ireland having regard to its significant AFSJ content?’

Since the Lisbon Treaty, Ireland has had to formally “opt-in” to European measures that touch on ASFJ matters as set out in the Justice and Home Affairs protocol (or join as a separate contracting party). It was argued by the requested persons in this case that neither Article 50 TEU nor Article 217 TFEU (which constitute the legal basis for the Withdrawal Agreement and the TCA respectively) can justify the inclusion of measures within the AFSJ in those agreements. They argued that Article 82 TFEU[2] ought to have been considered and that the procedure outlined in Protocol 21 must be complied with.

The Court rejected this argument noting: “To add point [82(1)](d) … to the substantive legal basis for the Withdrawal Agreement would give rise to uncertainty since, because of the resulting applicability of Protocol (No 21), Ireland, which had chosen to be bound by the European arrest warrant regime, including with regard to the United Kingdom, would be treated as if it had never participated in it. Such a situation would be difficult to reconcile with the objective of reducing uncertainty and limiting disruption so as to enable an orderly withdrawal…”

The Central Question

In short, the central question could be framed as follows: Is Ireland bound by the post Brexit extradition arrangements in circumstances where it has not formally “opted in” to those arrangements for the purposes of Protocol 21 nor entered into the agreements as a party in its own right?

The Court’s answer is: yes. Article 50 TEU and Article 217 TFEU alone provided the necessary legal basis for the new arrangements to be binding.

In respect of Article 50 TEU, the Court focused on the objectives of Article 50: 1) to enable a Member State to withdraw and 2) to provide for such a withdrawal to take place in an orderly fashion.

In respect of Article 217 TFEU regarding association agreements, the Court cited case law confirming that this article empowers the European Union to guarantee commitments towards third countries in all the fields covered by the TFEU.[3]

The Court drew parallels with case law in relation to development cooperation agreements holding that “to require that such an agreement also be based on a provision other than its generic legal basis whenever the agreement touches on a specific area would, in practice, be liable to render the competence and procedure set out in that legal basis devoid of substance”.[4]  The Court held that the TCA necessarily had sufficiently wide scope “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” and bound Ireland accordingly.

Comment

It is of note that in the EU-Ukraine Association Agreement, Ireland and the UK were individual signatories as separate contracting parties in respect of any provisions in the agreement that fell within the scope of AFSJ but this approach was not taken in respect of the Withdrawal Agreement and TCA and is not apparently addressed by the Court.

From an EU law perspective it is interesting to consider the way in which the CJEU has limited the reach of Protocol 21 in this case. It appears that matters which touch on AFSJ issues can fall within the competence of the EU and therefore be imposed on Ireland by the EU without the Protocol 21 procedures being followed so long as the agreement does not predominantly relate to AFSJ. One wonders if that was a position that was fully appreciated by the UK and Ireland when Protocol 21 was carved out.

With the UK’s departure from the EU, Protocol 21 is now only relevant to Ireland and it remains to be seen whether this judgment will apply to the EU’s competence in respect of other AFSJ matters that affect Ireland in future or whether the argument is simply academic. The judgment means that for now the post-Brexit Irish-UK extradition questions have been settled and it is difficult to see how they could be revived on the basis of the substance of the Brexit agreements without a radical departure from this decision by the CJEU itself.


[1] Article 62(1)(b)

[2]   Which forms part of Title V (relating to the ASFJ) of Part Three of TFEU:

‘Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to:

(d)      facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.’

[3] Judgment of 18 December 2014, United Kingdom v Council, C‑81/13, EU:C:2014:2449, paragraph 61.

[4] See judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C‑180/20, EU:C:2021:658, paragraph 51 and the case-law cited.

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