Chad Heimrich, LLM in International Human Rights Law student at QMUL, questions if the ‘pick and choose’ approach can still stand after 29th March 2019 when the UK is due to exit the EU.
10 December 2018
“I certainly agree with the principle that the European Arrest Warrant is an effective tool and is absolutely essential to delivering effective judgment to the murderers, rapists and paedophiles that we have managed to seek judgment on” and “[i]t is a priority to ensure that we do remain part of it and I can also reassure Honourable colleagues throughout the House that this is something European partners want to achieve as well.”
The idea underpinning these statements by former Home Secretary Amber Rudd from March 2017 to continue the UK’s best practice to ‘pick and choose’ in matters of security cooperation even after the official exit from the EU in March 2019 was hardly surprising. It would be perfectly in line with the UK policy of opt-outs to Title V of the Treaty on the Functioning of the EU (TFEU) on the Area of Freedom, Security and Justice. During the negotiations of the Lisbon Treaty, these opt-outs were already marked as problematic in terms of creating a coherent EU-wide system of cooperation in judicial and police matters. Hence, the predominant question to consider is whether the ‘pick and choose’ approach can still stand after the 29th March 2019, the agreed date for the UK to exit the EU.
On many occasions, high-ranked politicians such as David Davis, former secretary for Exiting the EU, have cherished the value of a close and efficient judicial cooperation between the EU and the UK. The European Arrest Warrant (EAW) has been praised as the flagship of cooperation and termed as being an indispensable instrument owing to its success. While a continued involvement in this system would be for many the ideal outcome, the prospect of this happening is very unlikely.
In June 2018, Michel Barnier, the EU’s chief Brexit negotiator, categorically rejected the idea, stating the UK cannot remain part of the system if, at the same time intends to end the judicial oversight by the CJEU, free movement of persons and the applicability of the Charter of Fundamental Rights, all forming components of the system. The new EU-UK Withdrawal Agreement (at the time of writing awaiting Parliament’s approval), as proposed by Theresa May, states in Art. 62(1)(b) (Title V of Part 3 ‘Separation Provisions’) that the EAW system ‘shall apply in respect of European arrest warrants where the requested person was arrested before the end of the transition period for the purposes of the executing of a European arrest warrant’.
Consequently, a continued application after the transition period -as it stands today, the 31 December 2020- is not foreseen in the agreement. This inevitably leads us to the question of what form the so-called future ‘security partnership’ with the EU will look like in practice. In the British Government’s draft political declaration, the UK and the EU are to endeavour to ‘establish effective arrangements based on streamlined procedures and time limits enabling the United Kingdom and Member States to surrender suspected and convicted persons efficiently and expeditiously’. However, a concrete framework for such a system is yet to be negotiated. Additionally, there exist several concerns regarding a continued involvement of the UK in the EAW system; two of which I will explore further.
The idea of the EAW was to create a simplified and accelerated system of surrender in the ASFJ which is founded on mutual recognition among EU Member States, meaning that the issuing judicial authority ‘quasi-unrebuttably’ presumes the sufficiency of level of fundamental rights in the executing Member States. In such situations, the question arises as to whether mutual recognition can also exist between Member States and third countries such as the UK after Brexit?
Given the current form of negotiations, the fundamental rights protection for Member States when applying EU law is covered by the Charter, an instrument, which will no longer directly apply to the UK post-Brexit. The system was conceptualised as to not allow the executing judicial authority to refuse the execution of a EAW, based on alleged violations of fundamental rights in the issuing Member State. However, we find ourselves on a different footing since the decision of the CJEU in joint cases Aranyosi and Caldararu (Joined Cases C-404/15 and C-659/15). The CJEU explicitly referred to Art. 4 of the Charter and held that if the executing authority ‘finds that there exists […] a real risk of inhuman or degrading treatment, […] the execution of that warrant must be postponed’ (para. 98). Consequently, Member States could refuse to execute EAWs issued by the UK on the ground that it can no longer be seen as fulfilling the level of fundamental rights as enshrined by the Charter, given the Charter will not be part of UK law after Brexit.
Based on this premise, Irish Courts have asked the CJEU whether the UK’s notification to leave the EU according to Art. 50 Treaty on EU (TEU) provides sufficient ground to refuse EAW requests issued by the UK (C-327/18 PPU RO and C-191/18 KN v The Minister for Justice and Equality, which was removed from the register on 26 October 2018). In RO, the CJEU held that the Art. 50 TEU notification does not suspend the application of EU law until the actual withdrawal from the EU therefore, the notification as such cannot justify a refusal to execute a EAW (para. 48). This finding was barely surprising in light of its previous decision in C-216/18 LM relating to Art. 7 TEU and the violation of the rule of law in Poland, where it was held that a proposal to the Council for determining a serious breach of the values listed in Art. 2 TEU is in itself not sufficient to justify a suspension of the EAW. This gives rise to two questions. First, how protection of individual rights will be ensured? And second, how is the prohibition of inhumane and degrading treatment to be addressed particularly in cases where the EAW was executed before Brexit, but the individual remains imprisoned after the withdrawal from the EU? In that respect, the CJEU relied heavily on the continued application of the ECHR as being transposed into national law via the Human Rights Act 1998, which is independent from the UK’s withdrawal from the EU. Therefore, the UK remains obliged ‘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’ (para. 52). Linking the EAW to the ECHR without substantial justification sets a dangerous precedent and provides fruitful ground for those arguing that the UK’s withdrawal from the Charter is not an insurmountable hurdle for a close cooperation in security matters post-Brexit.
The second hurdle relates to the judicial oversight exercised by the CJEU over the EAW. The UK has made clear its intentions since the beginning of the Brexit negotiations to ‘bring about an end to the direct jurisdiction of the CJEU in the UK’. The EAW is based on the 2002 Framework Decision and over the years has been subject to extensive litigation at the CJEU. As a result, the CJEU has had a large influence on the EAW’s jurisprudence as it stands today. Landmark judgments such as Advocaten voor de Wereld (C-303/05), Melloni (C-399/11) or Aranyosi and Caldararu mentioned above, have evolved the law in a decisive manner. While in principle the UK will continue to be bound by these judgments, any future decision with regard to the EAW after Brexit (or after the transitional period) will not have any binding effects on the UK. Eventually, varying legal standards and interpretations will emerge depending on whether the surrender relates to the UK or another Member State and also raises the question how disputes relating to surrender from or to the UK will be dealt with. The UK Government, following up on the Future Partnership Paper on Enforcement and dispute resolution, proposes the introduction of a new dispute resolution mechanism to guarantee ‘that disputes are not resolved by giving the courts of one party direct jurisdiction over the other’.
However, the CJEU’s jurisprudence spells further bad news for hard-line Brexiteers, as the Court sees its powers not being limited to rule on surrender amongst EU member states, but to third countries as well. In Petruhhin (C-182/15), the CJEU allowed a preliminary ruling regarding a surrender request by a third state to a EU Member State, based on an extradition agreement between those States. What appeared to be a matter of national law –given the lack of EU law rules governing the extradition to third countries- was nonetheless treated by the Court as a matter of EU law ‘in order to safeguard EU nationals from measures liable to deprive them of the rights of free movement and residence provided for in Article 21 TFEU (para. 47). Via this argumentation, the Court not only applied both principles of the EAW Framework Decision and Art. 19 of the Charter regarding protection in the event of removal, expulsion or extradition in the case of an extradition agreement with a third country, in casu Russia. Furthermore, in Pisciotti (C-191/16), the Court strengthened its position by confirming these principles with regard to an extradition request by the US, based on the EU-US Extradition agreement. Hence, as Mitsilegas has noted, any future partnership between the UK and the EU may under certain circumstances still trigger the jurisdiction of the CJEU and severing this umbilical cord from the CJEU might not be as clean as intended.
It remains to be seen whether the UK’s continued intention to ‘pick and choose’ in matters related to the AFSJ puts at risk a European system of surrender, which is the cornerstone of mutual trust and recognition in the EU. A continuation of the EAW is unlikely, but what will follow instead and whether it would be equally efficient is unclear. There are more questions than answers, which need to be dealt with before 29th March 2019 or the UK may be find itself with more legal gaps than it can fill.