SD and SN

On 16 November 2021, the Grand Chamber of the Court of Justice delivered its judgment in a case concerning the interpretation of the provisions of the EU-UK Withdrawal Agreement (WA) on the European Arrest Warrant and the provision of the Trade and Cooperation Agreement (TCA) on the newly established surrender regime. In substance, the Court was asked to determine whether those provisions are binding upon Ireland.

On 9 September 2020, SD was arrested in Ireland pursuant to a European arrest warrant issued by the United Kingdom judicial authorities on 20 March 2020, seeking his surrender to serve a prison sentence of eight years. SN was arrested in Ireland on 25 February pursuant to a European arrest warrant issued by the same authorities on 5 October 2020, seeking his surrender for the purposes of conducting criminal prosecution. Both were arrested in Ireland and were remanded in custody pending a decision on their surrender to the United Kingdom judicial authorities. However, SD and SN disputed the legality of their detention before the High Court of Ireland, arguing that Ireland could no longer apply the European arrest warrant regime in respect of the United Kingdom. The High Court determined that the detention of SD and SN was lawful and therefore refused to order their release; the two defendants appealed this decision. According to the Court of Appeal, the European Arrest Warrant Act 2003, which transposes Framework decision 2002/584 into Irish law, may apply in relation to a third country provided that there is an agreement in force between that third country and the European Union and that the agreement in questions is binding on Ireland.

According to this interpretation, the lawfulness of their detention depends on whether the Withdrawal Agreement and the TCA (the EU-UK Trade and Cooperation Agreement) are validly binding on Ireland, which may not be the case since the two agreements contain measures falling within the Area of Freedom, Security and Justice, from which Ireland is exempt under Protocol No 21. In this context, the Supreme court of Ireland stayed the proceedings and referred two preliminary questions to the Court of Justice in order to assess the legality of such a EAW.

Clarifications were sought as to whether the provisions of the Withdrawal Agreement, which provides for the continuance of EAW regime in respect of the United Kingdom, during the transition period provided for in that agreement, can be considered binding on Ireland. The same question was asked regarding the TCA, which provide for the continuance of the EAW regime in respect of the United Kingdom after the relevant transition period.

The Court decided to examine both questions together as in essence they both concern the binding effect on Ireland of post-Brexit agreements. More specifically, it should be examined whether the legal bases of both Agreements – which are Articles 50 TEU and 217 TFEU respectively – were appropriate for the purposes of regulating the surrender regime, or whether instead Article 82(1) TFEU should have also been included in the substantive legal basis for the conclusion of those agreements, thus triggering the application of Protocol (No 21). However, in accordance with the latter no measure adopted pursuant to that title and no provision of any international agreement concluded by the European Union pursuant to that title are to be binding on or applicable to Ireland.

Regarding the Withdrawal Agreement, the court emphazied that this means to cover all the fields and issues covered by Treaties. Thus, Article 50 TEU may constitute the only appropriate legal basis for concluding such an agreement, as its purpose is to organise a withdrawal in an orderly fashion, thus granting the EU the competence to negotiate and conclude an agreement laying down the rules for the withdrawal in all the areas falling within the scope of the Treaties. Pursuant to that competence, the EU concluded the Withdrawal Agreement which provides that EU law, of which Framework decision 2002/584 forms part, is to be applicable to and in the United Kingdom and its territory during the transition period.

Likewise, as far as the TCA is concerned, the rules laid down in the latter regarding the surrender of persons on the basis of an arrest warrant could be included in that agreement on the basis of Article 217 TFEU alone as this empowers the EU to guarantee commitments towards third countries in all the fields covered by the TFEU.

Therefore, the Court ruled, based on its previous jurisprudence and on a teleological interpretation of Article 50 TEU, Article 217 TFEU and Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and the TFEU, that Ireland is bound by the EAW provisions of the Withdrawal Agreement as well as by those enshrined in the TCA.