The GA firmly rejected the argument that the European arrest warrant regime falls within the scope of Protocol No 21, which means that Ireland is not obliged to participate: Protocol No 21 applies only to measures founded or should have been based on jurisdiction resulting from Title V of Part Three of the FEU Treaty. Conversely, a measure affecting the area of freedom, security and justice is not covered by the Protocol if it is not necessary to base it on that competence. On 9 November 2021, Advocate General Kokott delivered his Opinion in Case C-479/21 on Mr Sn and Mr Sd following a request for a preliminary ruling from the Supreme Court of Ireland dated 3 August 2021. Their opinion stated that the provisions of the Withdrawal Agreement and the ACC guaranteeing the maintenance of the European arrest warrant regime as regards arrest warrants issued by the United Kingdom (`the United Kingdom`) during the transition period are binding on Ireland. On 16 November 2021, the Court of Justice of the European Union (CJEU) ruled in case C-479/21 PPU, Governor of Cloverhill Prison, that the provisions of the Withdrawal Agreement “on the regulation of the European arrest warrant in respect of the United Kingdom” and the provision of the Trade and Cooperation Agreement (ACC) between the EU and the United Kingdom “on the new surrender mechanism” are binding on Ireland. According to a CJEU press release, the case concerned two refugees arrested in Ireland who had challenged their extradition to the UK. The case was eventually brought before the Supreme Court of Ireland, which referred the case back to the CJEU to determine whether the relevant provisions of the Withdrawal Agreement and the ACC are binding on Ireland, in particular in the light of Protocol No 21 (see page 295 here), which allows Ireland to decide to opt, inter alia, for the provisions of the European arrest warrant and the surrender mechanism. Mr Sn was arrested in Ireland on 25 February 2021 (after the end of the transition period) on the basis of a European arrest warrant issued by the United Kingdom (before the end of the transition period) on 5 October 2020, which asked him to surrender to prosecute 14 offences. He was remanded in custody pending extradition proceedings. In essence, the Court has been asked to determine whether Ireland is required to execute the European arrest warrants issued by the United Kingdom despite the united Kingdom`s withdrawal from the Union. That question required a technical analysis of EU law on which the two relevant agreements (`the agreements`) are based.
The opinion states that the agreements are based on the liability of withdrawal regimes (Article 50(2) TEU) and on the competence to conclude an association agreement (Article 217 TFEU). Jurisdiction is not based on issues concerning the AFSJ. The Trade and Cooperation Agreement also contains additional safeguards for a requested person which are not included in either the Framework Decision or the Iceland-Norway Agreement, including: (a) the right of the requested person to be informed of his or her right to appoint a lawyer in the issuing State to assist the lawyer of the executing State in the arrest warrant proceedings; and (b) the right to inform the consular authorities of their State of their arrest. Article 62(1) of Part Three of the Withdrawal Agreement governs ongoing judicial cooperation procedures in criminal matters and provides: secondly, Part 3 of the Trade and Cooperation Agreement, in clear contrast to the Framework Decision and, to a lesser extent, to the Agreement between Iceland and Norway, does not mention `mutual trust` or `mutual trust` in each other`s legal systems. Although the principle of mutual trust is a defining feature of the MFA system (see, for example, Konecny v District Court in Brno-Venkov  WLR per Lord Lloyd-Jones), the practical importance of this change in tone is likely to be limited given the general presumption of good faith that applies to all close extradition partners of the United Kingdom (see Ahmad and Aswat v Government of the United States  EWHC 2927). This is particularly true in light of Article LAW Gen 3 of the Trade and Cooperation Agreement, which states that Part 3 is based on “long-standing respect for democracy, the rule of law and the protection of the fundamental rights and freedoms of individuals, including the provisions set out in the Universal Declaration of Human Rights and the European Convention on Human Rights. and on the importance of the implementation of the rights and freedoms of this Convention at the national level”. As indicated below, the Trade and Cooperation Agreement contains a number of new provisions which distinguish it from both the Framework Decision and the Agreement between Norway and Iceland. However, there are two points of general importance regarding regulation as a whole that are worth mentioning at the beginning. M.
Sd was arrested in Ireland on the basis of a European arrest warrant issued by the United Kingdom on 20 March 2020, which called for his surrender for eight years` imprisonment. Mr Sd was arrested in Ireland on 9 September 2020 (before the end of the transition period). On 8 February 2021, the Irish High Court ordered his surrender to the UK and he was sent to prison. (b) Council Framework Decision 2002/584/JHA. . . . .
. apply to European arrest warrants if the requested person has been arrested before the end of the transitional period for the purpose of executing a European arrest warrant; …; In addition to the grounds for refusing to execute a European arrest warrant set out in Framework Decision 2002/584/JHA, the executing judicial authorities of that Member State may refuse to surrender their nationals to the United Kingdom on the basis of a European arrest warrant. Ireland`s obligations with regard to the European arrest warrant The Trade and Cooperation Agreement also contains a provision (similar to that contained in the Agreement between Norway and Iceland) stipulating that dual criminality should not constitute an obstacle to extradition in cases involving collective responsibility for terrorist offences, drug trafficking or serious violence (Article 79(3)). The Framework Decision does not contain such a provision, but its inclusion in the Trade and Cooperation Agreement is unlikely to have much practical impact in circumstances where the offences of terrorism, drug trafficking and serious violence have already been included in the `framework list`.  The article numbers of the following Trade and Cooperation Agreement are subject to change once the Agreement is concluded. Finally, the ATT 2021 entered into force on May 1, 2021. Title VII of Part Three of the ACC (Articles 596 to 632) provides for an extradition regime between the Member States and the United Kingdom. Article 632 provides that Title VII `shall apply to European arrest warrants issued in accordance with Council Framework Decision 2002/584/JHA.
by a State before the end of the transitional period, if the requested person has not been arrested for execution before the end of the transitional period”. Firstly, the Court of Justice of the European Union does not have jurisdiction to hear the new surrender rules; Part 3 of the Trade and Cooperation Agreement is controlled by a “Specialised Committee on Law Enforcement and Judicial Cooperation” established for the purposes of the Agreement (see the dispute settlement provisions of Title XIII of Part 3). As previously reported in EU Law Live here, the present case concerns two persons who were arrested in Ireland on the basis of an EAW issued by the UK authorities and who subsequently remained in detention. Following a series of appeals alleging that they were being illegally detained on the grounds that the EAW regime between Ireland and the UK no longer applied, the Irish Supreme Court asked a question The UK Government`s written statement on the future relationship suggests: “It is in the mutual interest of the UK and the EU to: reach a pragmatic agreement” on law enforcement and judicial cooperation. However, the UK government`s position states that EU law “must in no way restrict the autonomy of the UK legal system”. In November 2019, a “transfer agreement” between the EU, Norway and Iceland (non-EU countries, but in the Schengen area) entered into force. It reflects the MFA in many ways and is the first extradition agreement with a third country to do so. However, it contains a similar exception for the extradition of a country`s own nationals as in the AO.
Norway, Iceland and the EU first accepted the principle of these agreements in 2006, but the completion of the necessary legal formalities by all the countries concerned took considerable time. The Trade and Cooperation Agreement contains a provision which is not contained in either the Framework Decision or the Agreement between Iceland and Norway and which expressly provides for the use of diplomatic assurances in cases where there are substantial grounds for believing that there is a real threat to the fundamental rights of the requested person (art. Law Surr 84). . . . . .