Brexit: judicial oversight of the European Arrest Warrant Contents

Chapter 2: Ending CJEU jurisdiction over criminal justice cooperation with the EU

14.The Court of Justice of the European Union is the ultimate arbiter on matters of EU law, and alongside Member States’ own courts and tribunals is charged with providing consistent interpretation and enforcement of EU law across the Member States. The CJEU is tasked with ensuring that “in the interpretation and application of the Treaties, the law is observed”.17

15.At present, questions of EU law that arise in a case before any national court or tribunal of a Member State may be referred by that national court to the CJEU for a “preliminary ruling”.18 The ruling given by the CJEU on the interpretation of EU law is binding on the national court, and will be followed by all other courts in the EU, but the application of the ruling, and the finding of facts—that is, resolving the particular dispute—are for the national court.19 In 2009, given the expansion of the CJEU’s jurisdiction into Justice and Home Affairs matters including the EAW, the preliminary ruling procedure was reformed to include an expedited process for cases involving persons in custody.

16.Professor Sir Francis Jacobs QC, Advocate General at the European Court of Justice from 1988–2006, told us that the jurisdiction of the CJEU in the UK would end automatically upon withdrawal: “It will follow necessarily from the exit of the UK from the EU”.20 With the end of its jurisdiction, the CJEU’s preliminary ruling procedure will also no longer be available to UK courts. Thus the automatic jurisdiction of the Court to hear disputes, and the possibility for UK courts to refer questions on the interpretation of EU law, including on the EAW to the CJEU, “will both disappear on exit”.21

17.In the 1960s, before the UK joined the (then) EEC, the Court gave two key constitutional judgments on the primacy of EU law22 and its direct effect23 that shaped EU law in ways that differ markedly from traditional approaches to international law. In Costa vs ENEL, the Court ruled that EU law takes precedence over the domestic law of the Member States, such that if a domestic provision is contrary to an EU provision, the authorities in that Member State must apply the EU provision. In Van Gend en Loos, the Court ruled that individuals may directly invoke their rights under EU law before national courts, even if the Member State in question has not incorporated the relevant EU law in its domestic law.24

18.Drawing on these decisions, Professor Sir Alan Dashwood QC, Professor Emeritus of European Law at Cambridge University and a former member of the Council Legal Service, observed that “rulings of the [CJEU] penetrate to the level of the individual in a different way because of the principles of direct effect and primacy. People can go to court in a Member State and invoke a rule of EU law and cite a judgment of the [CJEU] in support of their contention”.25 He contrasted this with other international courts whose jurisdiction the UK submits to, and noted that there are also “far more ways of bringing proceedings before the [CJEU] than there are before any other international tribunal”.26 As we argue below, and despite the Government’s plans as set out in its White Paper, this distinction—between the role played by the CJEU and that played by other international arbitration mechanisms to which the UK is party—will mean that replicating the CJEU’s role in interpreting and applying EU criminal justice matters, including the EAW, post-Brexit will not be an easy task.

The post-Brexit role of the CJEU

19.The Government has said that it “will bring an end to the jurisdiction of the CJEU in the UK”,27 and announced that the European Union (Withdrawal) Bill “will not provide any role for the CJEU in the interpretation of … new law”, and “will not require the domestic courts to consider the CJEU’s jurisprudence”.28 We therefore explored with our witnesses what the Government’s objectives in relation to the CJEU would mean in practice, and whether they would, indeed, be achievable—particularly with regard to whether CJEU judgments and case law would still have a role to play in British courts. We wanted to assess the ramifications of the Government’s stance for criminal justice cooperation with the EU in general, and the European Arrest Warrant in particular.

20.We have seen that the jurisdiction of the CJEU to hear disputes, and the possibility for UK courts to refer to the Court, will disappear once the UK leaves the EU. But the question remains as to how the Court’s functions in creating a level playing field between states participating in the EAW will be replicated in future criminal justice agreements between the UK and the EU.

Legal sovereignty

21.Commenting on the role currently performed by the CJEU in interpreting EU law, Professor Sir Alan Dashwood QC told us that “the main idea behind this red line is what is seen as the restoration of the United Kingdom’s legal sovereignty”. He expected that the “most important practical manifestation of that would be the Court of Justice no longer having jurisdiction …. or more particularly, its rulings no longer having the status of binding authority for the courts in this country”.29 Rosemary Davidson, a barrister at 6KBW College Hill, similarly suggested that the binding nature of the CJEU’s rulings was the nub of the issue.30

22.Sir Francis Jacobs nevertheless suggested that the UK “may well wish to rely upon past case law” of the CJEU, which though “not formally binding”, might be helpful to follow in most cases: “If it were not, there would be a very high degree of legal uncertainty, because every past point of law could simply be reopened and argued afresh. That would be undesirable”.31 The Government in fact appeared to concede this point, noting in its White Paper on Legislating for the United Kingdom’s withdrawal from the European Union that the European Union (Withdrawal) Bill “would provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court”.32 As for new CJEU case law arising post-Brexit, the Government said that the European Union (Withdrawal) Bill “would not require the domestic courts to consider the CJEU’s jurisprudence”.33

23.Andrew Langdon QC, however, told us that “whatever the express provision is in relation to whether we should be having regard to the case law … no lawyer worth his salt is going to go into court … without knowing what the most recent cases are on both sides of the fence”.34 He and Sir Francis agreed that it would not be feasible to prevent references being made to the CJEU’s case law before UK courts, even if such case law had no formal status.35 Mike Kennedy, former President of Eurojust and former Chief Operating Officer of the Crown Prosecution Service, also expected that “the court and its rulings will always have persuasive authority”, and suggested that “defence lawyers and prosecution lawyers would be using previous judgments of the court to argue their case. They would not be binding precedents. That is the important thing and that is what the Government want to avoid”.36 Andrew Langdon QC also drew our attention to the position pre-2014, when the CJEU did not have express jurisdiction in relation to extradition. He pointed out that “domestic courts were perfectly able to develop case law without there being any significant divergence. It may be that one overstates the risk of divergence hereafter”.37

24.While it might be the case that CJEU case law will continue to be invoked post-Brexit, albeit in a non-binding fashion, witnesses were more sceptical about the wider ramifications of the Government’s stance on the CJEU for criminal justice cooperation with the EU in general, and for the EAW in particular. Mike Kennedy judged that if the CJEU “is not to be a final arbiter on any of the instruments of mutual recognition … it seems very difficult to see how they would operate in practice”.38 Aled Williams, another former President of Eurojust, expected that there would be “different prospects for different organisations and institutions within the framework of European Union cooperation. I would be optimistic about the UK continuing its presence and participation at Europol and Eurojust. I would be less optimistic about the situation with the European Arrest Warrant”.39

Creating a level playing field and resolving disputes

25.In its White Paper on The UK’s exit from and future partnership with the European Union, the Government devoted a section (Paras. 2.4–2.9) and an Annex (Annex A) to dispute resolution mechanisms, recognising that “ensuring a fair and equitable implementation of our future relationship with the EU requires provision for dispute resolution”. It noted that dispute resolution mechanisms ensured that all parties to agreements—for instance, the states participating in international trade agreements—shared a single understanding of the agreements, both in terms of interpretation and application, and “can also ensure uniform and fair enforcement”.40 The Government also underlined that although the UK participates in a number of dispute resolution mechanisms on the international plane, “unlike decisions made by the CJEU, dispute resolution in these agreements does not have direct effect in UK law”.41

26.Sir Francis Jacobs’ evidence underlined the tensions inherent in the Government’s objective. In his estimation, full restoration of the United Kingdom’s judicial sovereignty would make it more difficult to create a level playing field in criminal justice cooperation between the UK and the EU after Brexit: “In the fields in which the UK will want to cooperate in partnership with the European Union”, an approach that privileges national judicial sovereignty “cannot be realistic”.42 In Sir Francis’s view, it could not “be expected that disputes of the kind in issue can be resolved exclusively by UK courts. On the contrary … they are increasingly likely to be settled by transnational courts and tribunals, and such means of settlement can no longer be sensibly regarded as an affront to UK sovereignty”.43 Indeed, in order to be effective, such a system was “bound to encroach on national sovereignty”.44 He continued: “If there is to be a resolution of [a] dispute, one has to start with the assumption that judicial sovereignty is not really attainable in that area any more than it is attainable under the World Trade Organization system”.45

27.In oral evidence to the House of Commons Select Committee on Exiting the European Union, the Secretary of State for Exiting the European Union, Rt Hon David Davis MP, raised the prospect of “more than one” arbitration mechanism:

“You might have one mechanism that applies to trade and another one to arbitration in Justice and Home Affairs, for example, and they may be different in style. We are looking at that. We have already done some work on it”.46

Mr Davis also drew a distinction between “arbitration mechanisms” and “political resolution mechanisms”, highlighting for example the political resolution mechanism used to resolve disputes arising from bilateral agreements between the EU and Switzerland, which he suggested “has not worked”.47

28.We asked our witnesses what a similar ‘bespoke’ dispute resolution mechanism might look like in the area of criminal justice cooperation, and whether there were any precedents or templates that would merit further exploration.

29.Contrary to David Davis MP’s misgivings, some raised the prospect of a political resolution mechanism being used. Andrew Langdon QC told us that “what you see in many extradition arrangements—and in mutual legal assistance arrangements—are mechanisms for political resolution of those disputes”. In practice, that might mean “an obligation on the parties to seek resolution as soon as possible, and sometimes they might appoint specific people whose job will be to resolve disputes”.48

30.Sir Francis, on the other hand, criticised the dispute resolution mechanisms that the Government had chosen as exemplars. The mechanisms set out in Annex A to the Government’s White Paper on The UK’s exit from and future partnership with the European Union were, he told us, “in several important respects inadequate” compared with the mechanisms available under the EU Treaties. For example, in many instances the mechanism was “available only to States”. He also noted that “States are often reluctant to take up a dispute with other States; this is apparent from general experience, ranging from the EU itself to the World Trade Organization. Companies and individuals will have no remedy”.49

31.Sir Francis also emphasised that many of the mechanisms outlined in the White Paper “provide for arbitration rather than judicial settlement”. This had “some disadvantages … notably, the procedure is not transparent, there may be difficulties with enforcement, and arbitration does not give rise to a body of case law”.50

32.Sir Francis concluded that “if one is looking at enforcement of criminal judgments and the European Arrest Warrant and such like, the only dispute mechanism that you can have … is a court. There has to be a court available to review any decision affecting the liberty of the individual”. He therefore suggested that the Government’s use of “the language of arbitration” was a “totally inappropriate concept in this particular context”.51 Similarly, Mike Kennedy, while acknowledging that bilateral negotiations hosted by Eurojust had helped to resolve difficulties over arrest warrants in the past, was sceptical that a political resolution mechanism would be sufficient in future. What was needed, he suggested, was “some sort of superior overarching judging authority, a court”.52

33.Sir Alan Dashwood QC suggested that the EFTA Court could offer a useful template for a new dispute resolution mechanism. The issue of legal sovereignty had in his view been “resolved in the EFTA Court by having what is known as a two-pillar structure. The enforcement of the rules on the EU side is in the hands of EU institutions, the European Commission and the Court of Justice, and on the EFTA side in the hands of the EFTA Surveillance Authority and the EFTA Court”.53 He also noted that the EFTA Court “follows the jurisprudence of the Court of Justice but takes its own decisions, and these are not directly effective within the EFTA countries”.54

Box 2: The EFTA Court

A two-pillar system of supervision underpins the operation of the EEA Agreement. EU Member States are monitored by the European Commission, while EFTA States party to the EEA Agreement are monitored by the EFTA Surveillance Authority. Meanwhile the EFTA Court operates in parallel to the Court of Justice of the European Union.

The EFTA Court has jurisdiction with regard to EFTA States party to the EEA Agreement (Iceland, Liechtenstein and Norway). The Court deals with infringement actions brought by the EFTA Surveillance Authority against an EFTA State with regard to the implementation, application or interpretation of EEA law. It also gives advisory opinions to courts in EFTA States on the interpretation of EEA rules, and hears appeals concerning decisions taken by the EFTA Surveillance Authority. Thus the functions fulfilled by the EFTA Court are similar to those fulfilled by the CJEU, save that the CJEU’s opinions are binding on domestic courts in EU Member States, while those of the EFTA Court are only advisory.

The EFTA Court consists of three judges, one nominated by each of the EFTA States party to the EEA Agreement, and sits in Luxembourg.

Source: EFTA Court, Introduction to the EFTA Court: http://www.eftacourt.int/the-court/jurisdiction-organisation/introduction [accessed 19 July 2017]

34.The two-pillar structure was devised because the EEA EFTA States (Norway, Iceland and Liechtenstein) are not subject to oversight and judicial review by the EU institutions. Sir Alan told us that the system “leaves the courts of the EFTA countries effectively outside the scope of the jurisdiction of the Court of Justice but nevertheless guarantees sufficient homogeneity between the two systems to avoid significant disputes”. He added that “these parallel institutional systems have worked so well in practice that there has not ever been a need to have recourse in respect of disputes about case law to the arbitration system that is provided for by Article 111” [of the EEA agreement].55 He stressed, however, that this system applied only to the internal market. It does not apply to Justice and Home Affairs matters, nor does it adjudicate on Norway and Iceland’s participation in the European Arrest Warrant. As Sir Alan noted, the EFTA Court represented an “ingenious” solution to legal sovereignty concerns, but its jurisdiction had not been enlarged to include the EAW, because “the judges are essentially economic lawyers rather than criminal”.56

35.Andrew Langdon QC agreed with Sir Francis Jacobs that “ultimately, there has to be a court”, but judged that it was not difficult, “in theory anyway”, to envisage “some parallel court to the Court of Justice”. He concurred that “theoretically, and perhaps in reality”, the EFTA Court model could work.57

36.In our report on Brexit: future EU-UK security and police cooperation we concluded that there “must be some doubt as to whether the EU-27 will be willing to establish the ‘bespoke’ adjudication arrangements envisaged by the Government”.58 We revisited this issue with our witnesses. Andrew Langdon QC observed that creating a new court “depends upon a lot of good will on the part of the other Member States … we can understand what some of the politics may be there”.59

37.Mike Kennedy judged that “some would find it irritating to have to negotiate this again. Some might accept it. It would be difficult. We would be starting from a position that the other Member States would understand, because of the referendum and what is happening, but I cannot see that there would be a huge amount of sympathy for our situation”.60

Conclusions

38.In its White Paper on The United Kingdom’s exit from and new partnership with the European Union, the Government confirmed that it plans to “bring an end to the jurisdiction in the UK of the Court of Justice of the European Union”. In practice, the jurisdiction of the CJEU will end automatically when the UK ceases to be an EU Member State. But this change leaves open the question of how the role of the CJEU in providing a level playing field between the UK and EU in criminal justice matters is to be provided for in any future agreement between the two parties, and what status the case law of the CJEU will have post-Brexit.

39.The CJEU will have at least an indirect role in the interpretation of any agreement between the UK and the EU. In any agreement, on any subject between the UK and the EU, the terms of the agreement will—on the EU side—be subject to the jurisdiction of the CJEU, whose interpretation will be binding on the EU and its Member States.

40.As for the CJEU’s case law, the Government has already accepted that existing case law will stand the day after Brexit, because the European Union (Withdrawal) Bill “will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court”. The Government also said that the European Union (Withdrawal) Bill would not require the domestic courts to consider the CJEU’s jurisprudence, implying that new CJEU case law that develops post-Brexit will have no formal status in the UK. However, our witnesses were clear that CJEU case law is likely still to have persuasive authority. Indeed, it is conceivable that it could be a requirement of any future UK-EU extradition agreement for the UK formally to take account of relevant CJEU case law that develops post-Brexit.

41.It was suggested to us that in the field of criminal justice, any alternative to the CJEU must be a court and not an arbitration mechanism, since only a court can review decisions affecting the liberty of the individual. The EFTA Court model has the advantage that individuals and businesses, as well as the Contracting Parties to the EEA agreement, can bring actions before the Court, replicating one of the more effective features of the CJEU. But it should be noted that at present, this model applies only to internal market-related disputes. Its jurisdiction was not expanded to cover Norway and Iceland’s participation in the EAW. Furthermore, the section of the Government’s White Paper dealing with dispute resolution mechanisms does not mention the EFTA model—perhaps implying that the Government has already ruled out this option.

42.We question, moreover, whether in the context of the EAW the EU-27 will be willing to establish bespoke adjudication arrangements such as a parallel court in order to accommodate the UK’s objectives. We observe in this context that the UK has already had to decide, as recently as the Protocol 36 Decision in 2014, whether to accept the jurisdiction of the CJEU in return for continued use of tools like the EAW. Now as then, the safety of the people of the UK should be the Government’s overriding consideration.


17 Article 19 (1), Treaty on European Union (OJ C 326, 26 October 2012, pp 13–390)

18 Article 267, Treaty on the Functioning of the European Union (OJ C 326, 26 October 2012, pp 47–390). Subject to minor exceptions, the highest courts in each Member State’s legal system (“a court … against whose decision there is no judicial remedy”) must refer questions on the interpretation of EU law to the CJEU if the specific interpretation is central to the Court’s ability to give judgment.

19 The CJEU also has jurisdiction to hear infringement actions against Member States by the Commission or other Member States for non-compliance with EU law, and to review the legality of acts by the EU institutions, including actions for annulment of EU legislation or to require an institution to act—actions that may be brought by a Member State or by one of the EU institutions.

20 Written evidence from Sir Francis Jacobs (EAW0001), para 4

22 Flaminio Costa v E.N.E.L (1964) Case 6/64 ECR 1141: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61964CJ0006

23 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration (1963) ECJ 26/62 ECR 1: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61962CJ0026&from=EN

24 For a fuller exposition, see Eur-Lex, The direct effect of European law (January 2015): http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3Al14547 [accessed 19 July 2017]

27 Department for Exiting the European Union, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, para 2.3: https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union--2 [accessed 04 July 2017]

28 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, March 2017, para 2.13: https://www.gov.uk/government/publications/the-great-repeal-bill-white-paper/legislating-for-the-united-kingdoms-withdrawal-from-the-european-union [accessed 04 July 2017]

32 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, March 2017, p 14 and paras 2.12–2.17: https://www.gov.uk/government/publications/the-great-repeal-bill-white-paper/legislating-for-the-united-kingdoms-withdrawal-from-the-european-union [accessed 04 July 2017]

33 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, March 2017, para 2.13: https://www.gov.uk/government/publications/the-great-repeal-bill-white-paper/legislating-for-the-united-kingdoms-withdrawal-from-the-european-union [accessed 04 July 2017]

40 Department for Exiting the European Union, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, para 2.5 :https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union--2 [accessed 04 July 2017]

41 Department for Exiting the European Union, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, paras 2.8 and 2.9: https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union--2 [accessed 04 July 2017]

42 Written evidence from Sir Francis Jacobs (EAW0001), paras 37 and 38

43 Ibid.

44 Ibid.

46 Oral Evidence taken before the Committee on Exiting the European Union, 15 March 2017 (Session 2016–17), 1498

47 Oral Evidence taken before the Committee on Exiting the European Union, 15 March 2017 (Session 2016–17), 1498

49 Written evidence from Sir Francis Jacobs (EAW0001), paras 52 and 53

50 Written Evidence from Sir Francis Jacobs (EAW0001), para 54. It is worth noting in this context that among the “examples that illustrate how other international agreements approach interpretation and dispute resolution”, the Government has listed Investor-State Dispute Settlement (ISDS) provisions, which proved contentious in the context of negotiations on a Transatlantic Trade and Investment Partnership (TTIP) between the UK and the US. See Department for Exiting the European Union, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, para 2.10 footnote 5: https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union--2 [accessed 04 July 2017] and the European Union Committee, The Transatlantic Trade and Investment Partnership, (14th Report, Session 2013–14, HL Paper 179) paras 156–170.

58 European Union Committee, Brexit: future EU-UK security and police cooperation (7th Report, Session 2016–17, HL Paper 77) para 39




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