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
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
on the same issues, referred by the Irish
Supreme Court
. It also refused
to fast-track a similar
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
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
, 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
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.
…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
, 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.
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