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Council of the EU to intervene in Irish case questioning post-Brexit extradition arrangements

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Country/Region

06 September 2021

The Council of the EU will submit written comments to the Court of Justice of the EU (CJEU) in a case referred from the Supreme Court of Ireland, which has asked the CJEU to clarify whether the extradition arrangements set out in the EU-UK Trade and Cooperation Agreement are valid, given that Ireland did not exercise an 'opt-in' to the Agreement.

See: INFORMATION NOTE from: Legal Service to: Permanent Representatives Committee (Part 2): Case before the Court of Justice of the European Union • Case C-479/21 SN and THE GOVERNOR OF CLOVERHILL PRISON IRELAND • Urgent preliminary reference from the Supreme Court of Ireland (Council doc. 11308/21, LIMITE, 31 August 2021, pdf)

The case concerns two men who were arrested in Ireland in February 2021 on the basis of surrender requests from the UK.

As an article in Irish Legal News explains:

"Both men brought proceedings under Article 40.2 of the Constitution, on the basis that they were being unlawfully detained. The core contention was that the EAW system between Ireland and the UK was invalid because Ireland had not chosen to opt-in to any system between the States pursuant to Protocol 21.

It was argued that the EU did not have competence to bind Ireland to surrender provisions contained in Article 62.1(b) or in Title VII of Part Three in the absence of an opt-in."

Although the Irish High Court rejected their claims, the Supreme Court has agreed that they be heard as they raise important issues of EU law.

The questions referred by the Irish Supreme Court are set out in the Council document:

"Having regard to the fact that it followed that it was not considered that an opt-in was required or permitted from Ireland so that no such opt-in was exercised:

• • Can the provisions of the Withdrawal Agreement, which provide for the continuance of the EAW regime in respect of the United Kingdom, during the transition period provided for in that agreement, be considered binding on Ireland having regard to its significant AFSJ content; and
  • Can the provisions of the Agreement on Trade and Cooperation which provide for the continuance of the EAW regime in respect of the United Kingdom after the relevant transition period, be considered binding on Ireland having regard to its significant AFSJ content?"

The document continues:

"4. In essence, the Supreme Court of Ireland considers that the cases before it raise serious uncertainties affecting fundamental issues of national and Union law, recalling the defendants' arguments that seek to ascertain that Ireland benefits from a "retention of sovereignty in an area through the means of a protocol", which could be endangered if the Union were permitted to enter into sufficiently comprehensive agreements with any third country.

5. Pursuant to Article 23 of the Protocol on the Statute of the Court of Justice, the Council is entitled to submit written observations to the Court in cases where the validity or interpretation of a Council act is in dispute; since this is such a case, the Council intends to exercise that right."

The CJEU file on the case is available here.

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Valeria Fernández Astaburuaga, CC BY-SA 2.0