Professor Steve Peers, University of Essex

While there are many legal discussions surrounding the impact of Brexit, the ultimate authority on these matters, at least for the EU, is the EU Court of Justice. The Court’s first ruling on Brexit, released today, clarifies the legal standing until Brexit Day and potentially influences the approach after that.

The judgment in the case of RO addressed whether Ireland remained obligated to enforce a European Arrest Warrant (EAW) issued by the UK considering its impending withdrawal from the EU after triggering Article 50 TEU. The draft withdrawal agreement, if enacted, would address this to some extent. EU law, including the EAW, would still apply to the UK during a transition period until the end of 2020, although EU Member States could choose not to extradite their own citizens under a UK-issued EAW (with the UK having the same right). At the transition period’s conclusion, existing EAWs could still be executed as long as the arrest occurred before that date. However, these provisions, along with the entire withdrawal agreement, remain under negotiation, and were not considered in the Court’s decision.

The UK issued two EAWs for RO on charges of murder, rape, and arson. He contested their execution in Ireland, where he is currently detained. The Court expedited the case due to his detention. It is noteworthy that the Court had previously refused to fast-track a similar referral from the Irish Supreme Court and another related case concerning the Dublin asylum rules’ applicability to a post-Brexit UK. RO asserted a risk of torture or inhumane treatment in UK prisons, based on 2016 CJEU case law (later clarified in July). The Irish High Court requested and received assurance from the UK that detention conditions in Northern Ireland met minimum standards.

However, the Irish High Court, still apprehensive about Brexit’s impact on RO’s case, sought the CJEU’s opinion on its implications for executing the EAW. RO argued that the UK’s adherence to EAW law after Brexit Day was uncertain, specifically regarding the deduction of custody periods, the ‘specialty’ rule (limiting prosecution to offenses specified in the EAW), restrictions on further extradition to EU or non-EU states, and the protection of human rights under the EU Charter of Fundamental Rights. He further argued that the CJEU would lack jurisdiction on these issues post-Brexit.

Judgment

The Court emphasized that mutual trust between Member States is based on shared values outlined in Article 2 TEU. In justice and home affairs, this means presuming, except in extraordinary circumstances, that all Member States comply with EU law, including fundamental rights. For the EAW, this translates into mutual recognition, requiring execution unless specific grounds for refusal exist. However, ’exceptional circumstances’ allow an executing state’s court to halt the EAW process if there’s a risk of torture, as per Article 4 of the Charter (mirroring Article 3 ECHR). In RO’s case, the national court saw no immediate risk of rights violations. The question remained about the situation after Brexit.

The Court stated that an Article 50 notification doesn’t suspend EU law’s application within the withdrawing state. Thus, EU law, including the EAW legislation and its inherent principles of mutual trust and recognition, remains fully in effect until the actual withdrawal. While relevant to the case, the Court did not address the possibility of rescinding the Article 50 notification, as this was not raised (likely because it wouldn’t aid RO and is hypothetical as long as the UK isn’t considering it).

The Court viewed disapplying the EAW simply due to an Article 50 notification as a unilateral suspension, contradicting the EAW’s preamble, which allows suspension only if the EU determines a breach of EU values by the issuing state. A recent CJEU judgment on Poland confirmed that EAWs could only be suspended on a case-by-case basis without such a finding. An Article 50 notification didn’t constitute ’exceptional circumstances’ to suspend mutual trust.

However, RO could still argue for ‘substantial grounds for believing’ that after Brexit, he risked being denied fundamental rights and rights under the EAW provisions (listed previously). The Irish court already dismissed the risk of torture based on current UK prison conditions, a position Brexit wouldn’t change according to the Court:

“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.”

Concerning specific EAW provisions, there were no ‘ongoing legal proceedings’ to potentially violate the specialty rule, nor ‘concrete evidence to suggest’ any were planned. The same applied to potential extradition to an EU or non-EU state. The Court pointed out that these EAW provisions reflect provisions in the Council of Europe’s extradition Convention, ratified by the UK and implemented in its national law. Therefore, the Court concluded that “[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 prior prison time also exists in UK law and applies regardless of the extradition process’s relation to EU law.

Because rights based on 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 EAW law to the UK. The court found “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 post-Brexit.

The potential lack of CJEU jurisdiction wasn’t considered decisive, as RO could still assert those rights in a UK court, and CJEU jurisdiction wasn’t always applicable to the EAW law (it applied from 2004, but full jurisdiction began in 2014).

In conclusion:

“…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.”

Comments

The judgment confirms that little will change before Brexit, though some legal processes initiated before may conclude afterward. The statement that EU law applies to the UK until Brexit Day holds true, with minimal impact as long as the UK continues to uphold the ECHR, the Human Rights Act, EU legislation, and other relevant treaties. While the Court implicitly mentions the UK’s Extradition Act, the EU Withdrawal Act more broadly ensures EU law’s retention in UK law post-Brexit.

Only if the UK alters that retained law before Brexit Day would issues arise. The test would be whether specific EU law rights relied upon by the litigant are removed post-Brexit, requiring ‘concrete evidence’. A government intention to amend policy or a bill presented before parliament could potentially suffice.

Post-Brexit, whether the EAW continues largely during the transition period, with an agreed phase-out (if the withdrawal agreement is reached), remains to be seen. Focus will shift to the specifics of the future UK/EU relationship. This judgment, acknowledging that Member States can rely on a non-Member State’s future actions as long as it complies with the ECHR and EU legislation (even without CJEU jurisdiction), does not support claims that a close relationship in this area is impossible. (The NS judgment also suggested that mutual trust can apply to non-EU states). Regardless, limitations on extraditing citizens to non-EU states will apply.

Without a withdrawal agreement, conflicting approaches to EAWs pending on Brexit Day might arise, likely requiring CJEU resolution. There would be a return to the Council of Europe extradition treaty, with EAWs treated as extradition requests or requiring reissue. The UK would immediately lose access to the Schengen Information System, impacting EAW transmission and likely leading to fewer extraditions and longer processes. This represents one of many legal and practical challenges stemming from such a significant disruption.

Barnard & Peers: chapter 25; chapter 27

JHA4: chapter II:3

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