On September 19, 2018, the Court of Justice of the European Union (CJEU), First Chamber, delivered a judgment in the Case C‑327/18 PPU RO.
This is the first time the CJEU was called to rule on complicated Brexit issues, especially in the area of criminal justice and law enforcement as well as cooperation within the EU. The question put before the Court concerned whether Ireland was still obliged to execute a European Arrest Warrant (EAW) issued by the UK, in light of the UK’s expected withdrawal from the EU, having notified its intention to leave on the basis of Article 50 Treaty on the European Union.
However, this is not the first case in which the CJEU has been asked to clarify this issue. Similar questions were referred by the Irish Supreme Court in March 2018 in KN v Minister for Justice and Equality, which is currently pending before the CJEU (Case C-191/18). The only difference is that in the C-181/18 case the CJEU refused to apply an expedited procedure as requested by the defendant.
The issue arose also in the case Minister for Justice and Equality v. O’Connor. The Ireland’s Supreme Court refused to extradite an Irish businessman to the United Kingdom upon an EAW issued by the London court. At the same time, the Court ruled that his case should be referred to the CJEU to resolve the issue.
In 2016 the United Kingdom issued two European arrest warrants (‘EAWs’) in respect of RO (the first in January 2016 and the second in May 2016) for the purposes of conducting prosecutions of the offences of murder, arson and rape. RO was arrested in Ireland on the basis of these arrest warrants and has been in custody since 3 February 2016. RO raised objections to his surrender by Ireland to the United Kingdom on the basis, amongst other things, of issues related to the United Kingdom’s withdrawal from the EU.
The High Court (Ireland) ruled against RO on all his points of objection, other than the issues of the consequences of Brexit. It therefore asks the Court of Justice whether, in light of the fact that the United Kingdom gave notice on March 29, 2017 of its intention to withdraw from the EU, and of the uncertainty as to the arrangements which will be in place after the United Kingdom’s withdrawal, it is required to refuse to surrender to the United Kingdom a person subject to an EAW whose surrender would otherwise be mandatory.
In the present case, the Irish Court asked the CJEU whether, in light of the fact that the United Kingdom gave notice on March 29, 2017 of its intention to withdraw from the EU, and of the uncertainty as to the arrangements which will be in place after the United Kingdom’s withdrawal, it is required to refuse to surrender to the United Kingdom a person subject to an EAW whose surrender would otherwise be mandatory. Specifically, the Irish Court asked whether, having regard to the uncertainty concerning the legal position of RO after Brexit, a requested Member State is required by EU Law to decline to surrender to the UK a person the subject of a EAW, whose surrender would otherwise be required under the national law of the Member State, (i) in all cases; (ii) in some cases, having regard to the particular circumstances of the case; or (iii) in no cases?
In its ruling, the CJEU follows an opinion issued by the Attorney General (AG) in this case on August 7, 2018, and stating clearly that stating that extraditions to the UK should not be stopped because of Brexit. The test proposed by the AG to determine future extraditions to States leaving the EU was whether at the time of executing the EAW, the executing State expects the issuing State to abide by the content (including rights) contained in the 2002 EAW Framework Decision, and that: “Such a presumption can be made if other international instruments will continue to apply to the Member State that has left the EU. Only if there is tangible evidence to the contrary can the judicial authorities of a Member State decide not to execute the arrest warrant.”
The Court began by noting that mutual trust between Member States was founded on “common values” referred to in Article 2 TEU. This principle means, as regards justice and home affairs, which “save in exceptional circumstances” Member States must presume all other Member States “to be complying with EU law and particularly with the fundamental rights recognized by EU law.” Accordingly, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly.
Throughout the judgment, the Court frequently refers to its the ruling in another Irish case in which the judge referred a question as to whether a surrender under the EAW system is allowed to Poland. Following the ruling in the joined cases of Aranyosi (C‑404/15) and Căldăraru (C‑659/15 PPU), the Court has adopted a two-step examination of facts by the executing authority.
Interestingly, the CJEU has adopted the same reasoning and methodology in the present case. However, the Court has acknowledged that this case differs from an earlier ruling in that the question arises whether mere notification by a Member State of its intention to withdraw from the EU in accordance with Article 50 TEU is such as to justify, under EU law, a refusal to execute a EAW.
The Court opines that such a notification does not have the effect of suspending the application of EU law in the Member State that has given notice of its intention to withdraw from the European Union and, consequently, EU law, which encompasses the provisions of the Framework Decision and the principles of mutual trust and mutual recognition inherent in that decision, continues in full force and effect in that State until the time of its actual withdrawal from the European Union.
The Court summarized the Article 50 process without commenting on whether it would be possible to rescind the notification. That issue is relevant to this case since a withdrawal of the notification would render the fugitive’s argument moot, but the issue does not seem have been raised in the case, presumably because it would not have helped the fugitive and is only hypothetical as long as the UK government is not contemplating withdrawing the notice.
The Court holds that it remains the task of the executing judicial authority to examine whether there are substantial grounds to believe that, after withdrawal from the European Union of the issuing Member State, the person who is the subject of the EAW is at risk of being deprived of his fundamental rights and the rights derived, in essence, from the Framework Decision.
In this context, the Court underlines that the United Kingdom is party to the European Convention for the Protection of Human Rights and Fundamental Freedoms and that its continuing participation in that convention is not linked to its being a member of the EU. In addition, the United Kingdom is also party to the European Convention on Extradition of 13 December 1957, and has incorporated, in its national law, other rights and obligations currently contained in the Framework Decision.
The Court holds therefore that, in such circumstances, the executing judicial authority is able to presume that, with respect to the person who is to be surrendered, the Member State that has issued the EAW will apply the substantive content of the rights derived from the Framework Decision that are applicable in the period subsequent to the surrender, after the withdrawal of that Member State from the EU.
The Court concludes therefore that mere notification by a Member State of its intention to withdraw from the European Union is not an ‘exceptional’ circumstance capable of justifying a refusal to execute an EAW issued by that Member State. Such a consequence would constitute a unilateral suspension of the provisions of the Framework Decision and would run counter to the provision of that decision which states that it is for the European Council to determine a breach in the issuing Member State of the principles set out in Article 2 TEU2, with a view to an EAW being suspended.
It is reported that as many as 20 people, wanted for trial or for absconding from the sentences, are understood to have used a similar argument to resist removal from Ireland to Britain.
It is expected that, following Brexit day, there will be some transition period during which the EAW system will apply. Unfortunately, no agreement has been concluded between the EU and UK. Therefore, if there is no such period, or after the transition period ends, either the UK and EU will come back to traditional extradition law, or conclude a new treaty dealing with these issues. The UK government prefers the latter option. The question will arise whether the CJEU case law on non-EU countries will apply, and that question will arise under either scenario.
* Professor Plachta specializes in criminal law and international criminal law. He has authored numerous publications on a wide range of problems concerning law enforcement and international cooperation in criminal matters. He currently teaches criminal law and European criminal law at the University of Security in Poznan, Poland.
 Minister for Justice and Equality v. O’Connor  IESC 3.
 Michael Plachta, Irish Supreme Court Refuses Extradition Citing Brexit as a Bar, 34 Int’l Enforcement L. Reporter 61-64 (2018).
 CJEU Judgment of September 19, 2018, RO, Case C‑327/18 PPU, ECLI:EU:C:2018:733, paras. 10-17.
 Opinion of Advocate Szpunar in the Case C‑327/18 PPU, ECLI:EU:C:2018:644.
 Decoding the Advocate General’s opinion in RO- what does it spell for the post-Brexit security deal?, August 17, 2018, http://www.fairtrials.org/news/decoding-advocate-generals-opinion-ro-what-does-it-spell-post-brexit-security-deal.
 CJEU judgment in RO, supra note 3, paras 34-37.
 Michael Plachta, EU Court of Justice Allows Member States to Refuse Execution of European Arrest Warrants from Poland, 34 Int’l Enforcement L. Reporter 468-471 (2018).
 Court of Justice of the European Union – Grand Chamber, Judgment of 25 July 2018, in the case C‑216/18 PPU Minister for Justice and Equality v LM, ECLI:EU:C:2018:586, para. 61.
 CJEU Judgment in RO, supra note 3, para. 45.
 Professor Steeve Peers, at http://eulawanalysis.blogspot.com/2018/09/brexit-meansno-legal-changes-yet-cjeu.html.
 CJEU Judgment in RO, supra note 3, para. 51.
 Id., para. 52.
 Id., para. 61.
 Owen Bowcott, Irish courts told to cooperate with UK on extradition, The Guardian (UK), September 19, 2018.
 See, e.g., judgment of April 10, 2018, in the Case C‑191/16, Pisciotti v Bundesrepublik Deutschland, ECLI:EU:C:2018:222.