According to Advocate General of the Court of Justice of the EU Juliane Kokott, Ireland is obliged to apply the provisions of the Withdrawal Agreement and the Trade and Cooperation Agreement concluded with the United Kingdom in 2019 and 2020 concerning the regime for the surrender of persons subject to a European Arrest Warrant (EAW). This is despite the fact that the UK is no longer part of the European Arrest Warrant regime and Ireland did not opt in at the time to participate in the measures of the Area of Freedom, Security and Justice and the specific provisions of the EAW.
The Court must rule on Case No. C-479/21 concerning the fate of two Irish nationals who were the subject of an EAW issued by a UK judicial institution during the transitional period (ending on 31 December 2020). They had been detained for this purpose, but had not been released in time during the transition.
European judges must therefore decide whether Ireland is obliged to comply with the EAW regime in a binding manner, and whether the pre-trial detention of these two individuals was lawful.
According to Ms Kokott’s findings, which were released on Tuesday 9 November, the provisions of the Withdrawal Agreement and the Trade and Cooperation Agreement, which provide for the continuation of the European Arrest Warrant regime in relation to the UK, are indeed binding for Ireland.
The Advocate General makes it clear that Irish law only permits the execution of a European Arrest Warrant issued by the UK, and the detention of the wanted person, if there is a corresponding obligation for Ireland under EU law.
But before the UK’s withdrawal from the EU took effect on 31 January 2020, this obligation was a direct result of Framework Decision 2002/584 which continued to apply during the transition.
However, now that this period is over, the Advocate General went on to examine the material scope of Protocol 21 on the area of freedom, security and justice. In examining the two EU/UK agreements in question, she found that they “are not based on competences relating to the Area of Freedom, Security and Justice, but, respectively, on the competence relating to the modalities of a withdrawal and on the competence to conclude an association agreement”.
The remission scheme of Article 62 of the Withdrawal Agreement therefore does not create any new obligations and can be justified on the sole basis of Article 50 of the Treaty on the Withdrawal of a Country.
For the Trade and Cooperation Agreement, the Advocate General further notes that it was concluded on the basis of Article 217 TFEU, which allows for the conclusion of association agreements with third countries. “That competence empowers the European Union to guarantee commitments towards non-member countries in all the fields covered by the Treaties”. Furthermore, “the conclusion of association agreements requires unanimity in the Council and this means that Ireland agreed to be bound by the surrender regime laid down in the Trade and Cooperation Agreement”. (Original version in French by Solenn Paulic)