In this blog post, Clíodhna Kelleher of Monckton Chambers discusses the case of C-479/21 PPU Governor of Cloverhill Prison and ors , in which the CJEU discusses the interpretation of the Trade and Cooperation Agreement and the European Arrest Warrant provisions in the Withdrawal Agreement.
In November 2021, the CJEU handed down a significant judgment on the interpretation of the Withdrawal Agreement (“WA”) and of the Trade and Cooperation Agreement (“TCA”). In it, the Court concluded that Ireland is bound by the European Arrest Warrant provisions of the WA and TCA notwithstanding that these measures relate to the area of freedom, justice and security, which Ireland is ordinarily required to opt-into in order to be bound. Aside from the narrow point of whether Ireland is bound by the EAW provisions of the Agreements, the dispute also serves as a vehicle for the Court to clarify the nature of EU competence to enter into agreements under Articles 50 TEU and 217 TFEU.
The judgment in the Court is available here. The judgment of the Irish Supreme Court is available here.
Background
The case involved a reference for a preliminary ruling in relation to the execution of European arrest warrants (“EAWs”) which had been issued in respect of two individuals, “SN” and “SD”. Both SN and SD had been arrested in Ireland pursuant to EAWs on behalf of the UK, and both brought habeas corpus proceedings in Ireland to challenge the legality of their detention on the basis that the EAW regime no longer applied between Ireland and the UK.
As a matter of Irish law, the execution of an EAW is only permissible where the Irish authorities are under an obligation to do so in EU law. Previously, that obligation had been contained in Framework Decision 2002/584, which no longer applied between Ireland and the UK once the UK ceased to be subject to the general application of Union law on 31 December 2020. There is provision in Irish law for EAW obligations to apply to third countries in cases where the EU has entered into a binding agreement with a third country. Accordingly, the Irish Supreme Court referred a question to CJEU as to whether the EAW provisions contained in the WA and the TCA were binding on Ireland.
The WA and the TCA contain different provisions relating to the EAW scheme. Under Article 62 of the WA, Framework Decision 2002/584 continued to apply where both the relevant EAW had been issued and the requested person had been arrested prior to the end of the transition period. Article 632 of the TCA applies in relation to EAWs which were issued prior to the end of the transition period, but where the requested person had not been arrested prior to the end of the transition period. SD had been arrested prior to the end of the transition period. SN had not, and was arrested in February 2021 on foot of an EAW issued in September 2020. Accordingly, it was necessary for the Court to consider the effect of both the WA and the TCA.
The central controversy in the case arose from the fact that, pursuant to Article 1 of Protocol 21 to the TFEU, measures relating to the area of freedom, security and justice (“AFSJ”) are not binding on Ireland unless Ireland specifically opts into a such a measure (a position it shared with the UK prior to its withdrawal). Given that the relevant provisions of the WA and TCA did relate to AFSJ, and Ireland had not specifically opted into the mechanisms, the question for the Court was whether those provisions were nonetheless binding on Ireland.
The answer to this turned on the underlying competence of the EU to enter the Agreements. The stated legal basis for entering the WA is Article 50 TEU, and the stated legal basis for the TCA is Article 217 TFEU. SN and SD argued that neither could justify the inclusion of measures which fell within the AFSJ, and that it was necessary for the Agreements to additionally derive their lawful basis from Article 82(1) TFEU (“judicial co-operation in criminal matters”) . That being the case, Protocol 21 was engaged and the fact that Ireland had not opted into the measure meant that it was not binding on Ireland, and their arrests and detention were, accordingly, unlawful.
The Court’s consideration of the questions referred
The Court held that Article 50 and Article 217 were sufficient legal bases for the conclusion for the Agreements and that it was not necessary for the Agreements to derive an additional legal basis from Article 82(1).
The Withdrawal Agreement
The Court reiterated its general approach to assessing the appropriate legal basis for a Community measure, namely, that it falls to be assessed in light of objective factors which are amenable to judicial review, including the purpose of the measure and of its content. Against that backdrop, the Court engaged in a purposive interpretation of Article 50, noting (in common with Wightman) that the purposes of Article 50 are to enshrine the sovereign right of a Member State to withdraw from the community and to provide for such a withdrawal to occur in an orderly fashion. As such, it confers on the Union the exclusive ability to negotiate and conclude a withdrawal agreement that “is intended to regulate, in all the areas covered by the Treaties, all questions relating to the separation between the European Union and the State withdrawing from it” (para 50).
It was not possible to introduce into the operation of Article 50 procedures that were incompatible with the procedure laid out in Article 50 itself (which would be the case if Article 82 were to be added as a legal basis), and, as a result, the Court concluded that:
“…only Article 50 TEU, as an autonomous legal basis independent of any other legal basis set out in the treaties, can ensure that all of the fields falling within the scope of those treaties are treated consistently in the Withdrawal Agreement, thus enabling the withdrawal to take place in an orderly manner.”
The Court also clearly gave weight to the fact that, if Article 82 (and so, Protocol 21) applied, it would result in significant uncertainty given that Ireland, which had agreed to participate in the EAW scheme as it applied under EU law, would nonetheless be treated as though it had never participated in the scheme. This would be difficult to reconcile with the objective of reducing uncertainty and ensuring an orderly withdrawal.
The Court concluded that Article 50(2) was the only appropriate legal basis for the conclusion of the WA, that it was not possible for any other legal basis to apply, and as a result, Article 82 (and Protocol 21) were not engaged, such that the WA is binding on Ireland notwithstanding its AFSJ content.
The TCA
The TCA was concluded on the basis of Article 217, which empowers the Union to guarantee commitments to third countries in the fields covered by the TFEU (United Kingdom v Council C/81/13, para 61), and allows the EU to conclude association agreements that cover any area falling within the competence of the EU, including in areas in which the EU shares competence with Member States.
The Court concluded that it was not necessary for the TCA to draw any part of its legal basis from Article 82 and that it drew its authority from Article 217 alone. Compellingly, the Court notes that if it were instead necessary for an agreement to draw its legal basis from both the “generic basis” of Article 217 and the specific basis touching on the relevant issue (here, Article 82 as it relates to AFSJ), that would render the competence and procedure set out in the generic basis “devoid of substance”. (The opinion of AG Kokott further notes that if it was necessary to include all of the relevant competences as legal bases, the result would be unworkable given the different and often incompatible procedures laid down in different treaty articles).
The Court determined (at para 67):
“in view of the wide scope of the TCA, the context of its adoption and the unequivocal declarations made by all the institutions and Member States involved throughout the negotiations on the withdrawal of the United Kingdom from the European Union, the inclusion in that agreement, alongside rules and measures falling within many other areas of EU law, of provisions falling within Title V of Part Three of the TFEU forms part of the general objective of that agreement, which is to establish the basis for a broad relationship between the Parties, within an area of prosperity and good neighbourliness characterised by close and peaceful relations based on cooperation, respectful of the Parties’ autonomy and sovereignty.”
The surrender mechanisms in the TCA contributed to that objective, and consequently, those mechanisms could be included in the TCA without reliance on Article 82.
Concluding thoughts
In one sense, the judgment is a narrow one: it relates to the status of one particular country operating a specific opt-in and arrives at the (perhaps inescapable) conclusion that Ireland is indeed bound by both the WA and TCA. It is difficult to imagine the Court ever reaching an alternative conclusion. Ireland had participated in identical arrangements prior to the UK’s withdrawal from the EU (and for obvious reasons has historically has a high degree of co-operation in policing and justice matters with the UK), and any other conclusion would have serious consequences for the ability of the EU to move to a new model of relationship with the UK, having engaged in a lengthy and contentious set of negotiations to arrive at the Agreements.
On the other hand, the decision does lead to the anomalous situation in which states like Ireland which benefit from an opt-in could be bound by a treaty entered into with a third country in circumstances where it could not be bound if those measures were introduced on a wholly internal basis. For example, if the EU were to enter into an equivalent EAW scheme with an entirely new third country, it would appear to be the case that Ireland would be bound by those arrangements notwithstanding the fact that it benefits from an opt-in in the field of AFSJ – which is curious given that the political objective of offering and benefitting from those opt-ins is to recognise and attempt to assuage certain Member States sensitivities about sovereignty in specific, contentious policy areas.
This is a point that the Irish Supreme Court indicated might be affected by the fact that Ireland had already been participating in the relevant scheme prior to the withdrawal of the UK from the EU. However, the Court doesn’t rely on that argument. Rather, its response is that, as unanimity is required, the hypothetical situation in which one Member State disagrees but is nonetheless bound cannot arise. This is perhaps not as full an answer as it appears to be given that it skirts the fact that the procedures for exercising an opt-in and for a country assenting to a measure in the Council may differ from one another, even if on a purely domestic basis.
The judgment is most interesting for its articulation of the competence of EU to enter into withdrawal and future relationship agreements, with Articles 50 and Article 217 effectively identified as one-stop shops, without the need for these agreements to draw authority from elsewhere in the Treaties. At the time of Brexit negotiations, it had been argued by some critics that any withdrawal agreement would need to be limited to issues within the Union’s exclusive competence (i.e., the areas set out Article 3 TEU) given that the Article 50 procedure does not require ratification by Member States. Contrary to that position, the Court here confirms the position ultimately adopted by the EU in negotiations, namely, that Article 50 provides an exceptional horizontal and exclusive competence to negotiate all necessary arrangements for withdrawal (see, e.g., para 5 of Council negotiating directives adopted on 22 May 2017, here):
“Article 50 of the Treaty on European Union confers on the Union an exceptional horizontal competence to cover in this agreement all matters necessary to arrange the withdrawal. This exceptional competence is of a one-off nature and strictly for the purposes of arranging the withdrawal from the Union. The exercise by the Union of this specific competence in the Agreement will not affect in any way the distribution of competences between the Union and the Member States as regards the adoption of any future instrument in the areas concerned”
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