Professor Steve Peers, University of Essex
This week, the Court of Justice of the European Union (CJEU) issued its first ruling concerning the impact of Brexit on the EU since the UK’s departure. This follows closely on the heels of last week’s opinion from the Advocate General. The case was referred to the CJEU by the Irish Supreme Court, which was considering an appeal against a previous Irish High Court decision.
Background
This judgment centers around extradition from Ireland to the UK under both the Brexit withdrawal agreement and the EU/UK Trade and Cooperation Agreement (TCA). The former agreement stipulated that the existing EU framework for simplified extradition, specifically the European Arrest Warrant (EAW) law, would remain in effect between the UK and EU throughout the transition period. This period, which spanned from February 1, 2020, to the end of that year, saw Ireland continue to extradite individuals to the UK under this framework.
Following the transition period, the separation provisions of the withdrawal agreement came into play. These provisions maintained the application of EAW law if a fugitive was apprehended based on an EAW issued prior to the end of the transition period. Conversely, if an EAW was issued before the deadline but the individual was arrested after the transition period concluded, extradition would be governed by the TCA. These TCA extradition rules share similarities with the EAW law but are not identical. Furthermore, any extradition requests made after the transition period are subject to the TCA’s regulations.
The case at hand involves two fugitives apprehended in Ireland based on British-issued EAWs. Both individuals challenged their extradition to the UK. Both EAWs were issued during the transition period, however, one arrest occurred before the period ended, triggering the separation provisions and full application of EAW law. The other fugitive was arrested after the transition period, subjecting their case to the TCA rules. The former case involved a convicted individual serving an eight-year prison sentence, while the latter concerned an individual facing prosecution for fourteen alleged offenses.
Both fugitives argued that these treaty rules should not apply to them. Their claim rested on the fact that while Ireland had agreed to both treaties within the EU Council, it had not formally opted into the Justice and Home Affairs protocol concerning Ireland. This protocol, previously applicable to the UK as well, outlines procedures for participation. Had they been successful, their challenge could have had wide-ranging consequences. It would have significantly complicated extradition procedures and other forms of criminal law cooperation between Ireland and the UK, in both directions. Moreover, it could have impacted cooperation between the UK and Denmark, which has a similar opt-in protocol. While not completely halting cooperation, relying solely on other international treaties would have lacked the streamlined approach offered by EU agreements.
Judgment of the Court
The CJEU’s judgment began by examining the scope of Article 50 of the Treaty on European Union (TEU), emphasizing its two primary objectives. These objectives, as established in the Wightman judgment, are to enshrine a Member State’s right to withdraw from the European Union and to establish a process for achieving this withdrawal in a structured manner. The Court elaborated further:
50 To effectively achieve this objective, Article 50(2) TEU grants the European Union sole competence to negotiate and conclude an agreement outlining the detailed rules for withdrawal. This agreement is designed to regulate all aspects of the separation between the EU and the withdrawing state, encompassing all areas covered by the Treaties.
51 It was under this competence that the European Union negotiated and concluded the Withdrawal Agreement. This agreement, among other things, ensures the continued application of a significant portion of EU law in relation to the United Kingdom. This aims to mitigate uncertainty and minimize disruptions stemming from the Treaties ceasing to apply to the departing state upon withdrawal, as evident in point 4 of the guidelines adopted by the European Council at its special meeting on April 29, 2017, following the United Kingdom’s notification under Article 50 TEU.
The Court also recognized a potential conflict between the usual procedure for the EU Council to ratify international treaties, which may require a unanimous vote, and the process for a withdrawal agreement, where Article 50 TEU allows for a qualified majority vote. Therefore, the Court concluded:
54 The withdrawal agreement aims to address all fields and issues outlined in paragraph 50. It is not permissible to supplement Article 50(2) TEU with legal bases that establish procedures incompatible with those detailed in paragraphs 2 and 4 of that article (see, to that effect, judgment of 2 September 2021, Commission v Council (Agreement with Armenia), C‑180/20, EU:C:2021:658, paragraph 34 and the case-law cited). Thus, only Article 50 TEU, as an autonomous legal basis independent of any other legal basis within the treaties, can ensure consistent treatment of all fields within the scope of those treaties within the Withdrawal Agreement, thus facilitating an orderly withdrawal.
Moreover, the Court highlighted potential uncertainty if Ireland, having previously agreed to participate in the EAW system with the UK, were to be treated as if it had never been a part of it. This scenario, according to the Court, would contradict the objective of minimizing uncertainty and disruption to enable a smooth withdrawal.
Turning to the TCA, which was concluded under Article 217 TFEU (empowering the EU to conclude association agreements), the Court referenced existing case law. This case law establishes that Article 217 enables the European Union to guarantee commitments to non-EU countries across all areas covered by the TFEU. The Court deduced that:
58 Consequently, agreements established under this provision can encompass rules concerning all fields within the European Union’s competence. Given that, under Article 4(2)(j) TFEU, the European Union holds shared competence regarding Title V of Part Three of the TFEU [which covers justice and home affairs], measures within this competence area may be incorporated into an association agreement based on Article 217 TFEU, such as the TCA.
The Court then addressed whether incorporating extradition matters within the TCA necessitated an additional legal basis concerning criminal law cooperation, separate from that of an association agreement. While established case law dictates that competence over association agreements applies only if the measure pertains to a specific area of EU competence and has a corresponding legal basis, the Court emphasized a distinction. This case law, the Court argued, was not about concluding an association agreement but about adopting a position on behalf of the European Union within a body established by such an agreement. In those specific instances, where a decision could be reached by qualified majority without the European Parliament’s participation, an additional specific legal basis was necessary to prevent circumventing stricter procedural requirements in the relevant area. This differs from the nature of an association agreement:
62 In contrast, concluding an agreement like the TCA does not focus on a single, specific area of action. Instead, it encompasses a broad spectrum of EU competence areas to establish an Association between the European Union and a third country. Concluding such an agreement requires, in all cases – as per point (a)(i) of the second subparagraph of Article 218(6) TFEU and the first sentence of the second subparagraph of Article 218(8) TFEU – a unanimous vote and consent from the European Parliament. This eliminates the risk of circumventing more stringent procedural requirements when concluding such an agreement.
The Court also dismissed the applicability of previous case law concerning the use of multiple legal bases when a measure pursues multiple objectives. The Court referenced its case law that broadly interprets the scope of the EU’s development policy powers and extended this interpretation to cover association agreements:
65 These considerations are also relevant, with necessary adjustments, to association agreements with broadly defined objectives, meaning those requiring measures spanning various EU competence areas.
66 This is precisely the case with the TCA. As the Council noted in its observations, to ensure balanced rights and obligations between the agreement parties and preserve the unity of the 27 Member States, the agreement needed sufficient breadth.
67 Therefore, given the TCA’s extensive scope, its adoption context, and the clear statements made by all involved institutions and Member States during negotiations for the United Kingdom’s withdrawal from the European Union, the inclusion of provisions falling under Title V of Part Three of the TFEU is integral to the agreement’s overall objective. This objective is to lay the foundation for a comprehensive relationship between the Parties, characterized by prosperity, good neighborliness, close and peaceful relations based on cooperation, and respect for each other’s autonomy and sovereignty.
68 The TCA’s surrender mechanism contributes to this objective. The Parties, as stated in recital 23, intended for cooperation on investigating, detecting, and prosecuting criminal offenses, as well as executing criminal penalties, to strengthen the security of both the United Kingdom and the European Union. Consequently, the TCA cannot be seen as pursuing multiple objectives or comprising several components, as defined in the case-law referenced in paragraph 63 above.
Comments
Firstly, the Court’s interpretation of Article 50’s scope aligns logically with its earlier ruling that Article 50 partly aims to facilitate an ‘orderly withdrawal’ as the Treaties cease to apply to the departing state. This cessation of the Treaties is not merely an assertion within European Council guidelines, as the Court suggests, but is explicitly stated in Article 50. Logically, this implies that the withdrawal agreement must have a broad scope, encompassing ‘all areas covered by the Treaties,’ because withdrawal can potentially raise issues related to ending membership across any of these areas. The judgment implicitly validates the competence to establish the transition period (’the continued application of a significant part of the EU acquis’), referring to ‘all questions relating to the separation’ in the context of ‘reduc[ing] uncertainty and, to the extent possible, minimis[ing] disruption’ (emphasis added).
Although the potentially permanent system established by the Northern Ireland protocol, which goes beyond purely transitional or ‘winding up’ rules, is not directly mentioned, the Court’s judgment alludes to it. This is especially noticeable in the reference to applying certain EU laws and addressing ‘all questions’ related to withdrawal.
Secondly, regarding association agreements like the TCA, the judgment builds on established case law. It reflects the requirement for unanimous agreement from Member States within the Council to conclude such agreements. This represents a stronger safeguard for Member States compared to development policy treaties, which can be concluded with a qualified majority vote in the Council. However, the judgment indicates that specific provisions within an association agreement should be connected to that agreement’s objective. Importantly, the Court’s description of the TCA’s broad, general objective is not a judicial invention but stems from the treaty’s purpose as agreed upon by the involved parties (refer to Article 1 of the TCA, which was cited earlier in the judgment).
Finally, it is noteworthy that the Court, while confirming the EU’s sole authority to conclude the withdrawal agreement without Member State involvement (para 50: ‘Article 50(2) TEU confers on the European Union alone competence to…’ - emphasis added), does not address the unusual circumstance surrounding the TCA. Unlike typical association agreements, the EU concluded the TCA without the Member States also becoming parties. However, the judgment’s overall tone seems to favor the EU being the sole party to this agreement (refer to the Council legal service opinion on this matter). Considering the Court’s explicit mention of the EU’s shared competence over justice and home affairs, one could reasonably infer that, as the Council legal service argued, the EU alone may conclude association agreements when they include provisions related to shared competence. Conversely, the Council may choose to conclude such agreements alongside the Member States in these cases.
Undoubtedly, the EU and the UK continue to debate the interpretation, implementation, and potential revisions of the Northern Ireland protocol within the withdrawal agreement. Nevertheless, the Court’s firm stance on the EU’s extensive powers to establish the two key Brexit-related treaties should resolve most, if not all, complications that some argued limited the EU’s authority in concluding these agreements. In this sense, at least from the EU’s perspective, the Court of Justice has effectively addressed Brexit.
Barnard & Peers: chapter 26
JHA4: chapter II:2, chapter II:3
Photo credit: Jimmy Harris, via Wikimedia commons