Professor Steve Peers, University of Essex

Brexit’s legal ramifications are vast and multifaceted. For the first time since the UK’s departure, the Court of Justice of the European Union (CJEU) will address these implications, at least from the EU’s perspective.

A recent opinion from a CJEU Advocate General provides insight into expedited questions referred by the Irish Supreme Court (following an appeal from the Irish High Court). This case concerns extradition from Ireland to the UK under both the Brexit withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The withdrawal agreement stipulated that the existing EU framework for simplified extradition—the European Arrest Warrant (EAW) law—remained applicable between the UK and EU during a transition period from February 1, 2020, to the end of that year. It’s important to note that while three Member States chose not to extradite their own citizens, Ireland was not among them.

Following that transition period, the separation provisions of the withdrawal agreement came into effect. These provisions dictate that EAW law remains applicable if an individual was arrested under that law before the transition period’s conclusion. Conversely, if the EAW was issued before the deadline but the individual was not apprehended under EAW law, the TCA’s extradition rules apply. These rules, while similar, are not identical to EAW law. It’s worth noting that TCA rules also govern extradition requests issued after the transition period ended, making the judgment in this case relevant by analogy to those requests as well.

This case involves two individuals arrested in Ireland based on British EAWs. Both individuals are contesting their extradition to the UK. While both EAWs were issued during the transition period, only one resulted in an arrest before the period’s conclusion, meaning the separation provisions were triggered and EAW law applies. In the second case, the arrest occurred after the transition period, subjecting it to TCA rules. The individual in the first case has already been convicted and sentenced to eight years, while the individual in the second case faces prosecution for fourteen alleged offenses.

The legal crux of this case hinges on the argument that neither individual can be subject to these rules because Ireland, despite agreeing to both treaties in the EU Council, did not formally opt-in as outlined in the Justice and Home Affairs protocol attached to the EU Treaties. This protocol pertains to Ireland (and previously applied to the UK). Should this challenge succeed, it could significantly impact not just extradition but various aspects of criminal law cooperation between Ireland and the UK, in both directions (including Irish requests to the UK). Furthermore, it could affect criminal law cooperation between the UK and Denmark, which has a similar, though not identical, opt-in protocol. However, it’s important to note that criminal law cooperation wouldn’t cease entirely, as other international treaties would act as a default. That said, these treaties lack the streamlined cooperation provided by the EU agreements.

The Advocate General’s opinion refutes the argument to limit the treaties’ scope. She highlights that existing CJEU case law concerning the competence to adopt EU laws (which extends to international treaties) focuses on the “predominant purpose” of the act in question.

Applying this principle to the current case, she argues that both the power to enact the withdrawal agreement (Article 50 TEU) and the power to establish association agreements (Article 217 TFEU, the legal basis for the TCA on the EU side) are broad.

Firstly, the Article 50 competence inherently encompasses a wide range of powers to manage the legal separation from the departing Member State, particularly concerning the separation provisions relevant to this case. However, she also points to broad powers regarding the transition period during which these EAWs were issued (para 46):

To that end, as the Commission in particular explains, Article 50(2) TEU provides for the competence to conclude a single, comprehensive agreement, based on a single specific procedure, which encompasses all areas covered by the Treaties that are relevant to the withdrawal. Such an agreement covers the bringing to a conclusion of procedures conducted on the basis of EU law, which are ongoing at the time of withdrawal, as regards the withdrawing State. That requires detailed rules and arrangements in a vast number of different areas falling within the EU acquis. In order to ensure an orderly withdrawal in the interests of the European Union, its Member States and indeed the withdrawing State, those rules and arrangements may include transition periods during which, for limited periods after the withdrawal takes effect, EU law continues to apply to the withdrawing State.

While the rules within the withdrawal agreement “cover many different policies, including, in particular, the surrender regime in criminal cases,” and “[o]rdinarily, to conduct those policies the European Union would act under specific powers and would be required to respect restrictions on those powers, such as Protocol No 21” (paras 49-50, footnote omitted):

However, in the light of the aim of the Withdrawal Agreement all of those specific policies are necessarily ancillary to the predominant overarching objective of providing a comprehensive regime for the transition from membership of the European Union to third-country status. This is an extremely broad objective in the sense that it must be possible for the measures required for its pursuit to concern a very wide variety of specific matters. Indeed, the agreement must be able to deal with the full range of matters covered by EU law.

This situation would have presented complications if the withdrawal agreement granted powers exercised through unanimous voting. This is because Article 50 instead outlines qualified majority voting in the Council to enact such agreements. In her view, this issue couldn’t “be resolved by excluding from a withdrawal agreement matters requiring incompatible procedures because Article 50(2) TEU does not provide for any exceptions to the arrangements for a withdrawal.” More broadly, she justifies this interpretation by citing “the exceptional situation of a withdrawal.” The UK’s departure “has demonstrated” that “such broad arrangements have to be made under intense political pressure and within a very short time frame,” and “[r]equiring unanimity in the Council or excluding certain matters from the general procedure would add complexity to that process and increase the risk that no agreement is reached”.

Therefore, including specific rules on a topic cannot change the overall nature of the agreement. Here, the Advocate-General draws an analogy to case law concerning development policy treaties (discussed further here). This case law has broadly interpreted the EU’s development policy powers, which can cover a wide array of issues pertinent to developing nations. While that case law makes an exception if development policy treaties establish a specific obligation in a specific area outside development policy cooperation, the opinion argues that even if this exception applies to the Article 50 competence, the provisions in the withdrawal agreement don’t overstep the objective of ensuring an orderly withdrawal. The attempted comparison to another Advocate General’s opinion on the Istanbul Convention on violence against women (discussed here) is deemed irrelevant due to the obvious differences between the withdrawal agreement and the Istanbul Convention.

Regarding association agreements, the Advocate General references prior case law (such as Demirel) to argue that the power to establish these agreements is similarly broad, encompassing specific connections between a non-EU nation and the EU. Although the CJEU has highlighted specific legal competences within the framework of association agreements, the Advocate General correctly points out that this applies to measures implementing association agreements (referencing the judgment on social security and the association agreement with Turkey). As with Article 50 and development policy, she posits that the power to conclude association agreements is broad and covers numerous policy areas. Even with an exception for concrete obligations in a specific area, it would be irrelevant here, as the TCA essentially extends the EAW system that previously existed between Ireland and the UK.

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Comments

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It is now practically impossible to reverse the enactment of either the withdrawal agreement or the TCA, barring the invention of time travel. Perhaps those in 2019 should have been prepared for an influx of (former) Tory MPs seeking to prevent their past selves from supporting the same withdrawal agreement they now find repellant. Imagine Owen Paterson arriving in a Randox-branded DeLorean or a disrobed Jacob Rees-Mogg demanding the clothes, boots, and penny-farthing bicycle of a startled commoner.

Legally speaking, a court can rule that a treaty (or other legal act) was invalid from its inception, or, as in this case, that certain aspects never came into effect. However, it’s important to note that the CJEU has, in some instances, limited the retroactive effect of its judgments in such cases (see Test-Achats). So, even if the individuals in this case succeed, the Court might maintain that the extradition provisions within the treaties still apply provisionally to Ireland until the formal opt-in process is finished. This scenario seems likely given Ireland’s prior agreement to these accords.

Is the Advocate General’s analysis, which refutes these arguments, convincing? Concerning association agreements, case law has indeed broadly interpreted their scope. The safeguard for Member States in these situations lies in the requirement for unanimous agreement within the Council to finalize them. Regarding Article 50, the CJEU’s Wightman judgment has already interpreted it as providing for the “orderly withdrawal” of a Member State. The Advocate General’s interpretation aligns with this existing interpretation.

While not an inevitable conclusion, her analysis suggests that the potentially permanent system established by the Northern Ireland protocol falls under Article 50’s purview, as it extends beyond purely transitional or “winding up” rules. Her opinion leans in this direction, referencing “extremely broad” powers to address “the full range of matters covered by EU law” through a “comprehensive regime.” If the only prerequisite is a connection between a provision in the withdrawal agreement and an orderly withdrawal from the EU, it becomes more plausible to argue that the protocol fulfills this requirement.

Barnard & Peers: chapter 26

JHA4: chapter II:2, chapter II:3

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