Avv. Nicola Pietrantoni (International Journal for Lawyers n. 7/2019, Euro-Latam-Lex)
Notoriously, after the June 2016 referendum and the victory of the “leavers” with 51.9%, the United Kingdom notified the European Council, pursuant to Article 50 of the TEU, of its intention of withdrawing from the Union, thus opening the delicate phase of negotiations on the withdrawal process.
Article 50 provides that “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement…”. The extraordinary complexity of an endless list of issues underlying Brexit, of a substantial and formal nature, then set off a period of extensions granted by the Extraordinary European Council – the latest of which on 10/4/2019 with deadline on 31/10/2019 – specifically with a view to encouraging the reaching of an agreement ensuring an orderly departure of the United Kingdom from the European Union, and thus averting a dreaded “no deal” Brexit, with all of the negative consequences this would entail.
The term “Brexit”, in its double option (deal or no deal), thus expresses a multitude of problematic issues, including of a legal nature, which need to be faced. For example, the right of resident citizens; the circulation of workers, industrial stock and capital; competition rules; programmes on research and development. Among the most important issues, specific importance falls on future cooperation between the UK and the judicial authorities of the other EU states to prevent transnational crime. The European Council, in its “Guidelines following the United Kingdom’s notification under Article 50 TEU” issued on 29/4/2017, specified that “The withdrawal agreement would also need to address potential issues arising from the withdrawal in other areas of cooperation, including judicial cooperation, law enforcement and security” (point 14) and that “The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy” (point 22).
In July 2018, the then-Prime Minister Theresa May presented Parliament with the document “The future relationship beetween the United Kingdom and the European Union”,with which she assured that the UK would continue complying with security procedures, including the European Arrest Warrant (EAW), a necessary protection because it “has streamlined the extradition process within the EU and made it easier to ensure wanted persons are brought to justice, or serve a prison sentence for an existing conviction”.
The European Arrest Warrant, introduced by Council Framework Decision 2002/584/JHA of 2002, consists in the provision, issued by a member state, for the arrest and handover, by another member state, of a wanted person, for purposes of exercising criminal action or executing a sentence or security measures restricting freedom. The EAW, differently from extradition, produces its effects across the entire EU, limiting as far as possible the possibility for the state receiving the request of refusing the handover of an individual to the foreign authorities making such request.
The extradition procedure is instead more complex, and provides for the strict verification of compliance with the fundamental rights of the person involved. For these reasons too, the Court of Justice, in its Sentence of 19/9/2018 in the ROcase, noted the need to assess – on a case-by-case basis – whether the person receiving the Euro-warrant – after withdrawal from the Union of the issuer member state – risks being deprived of fundamental rights as provided in art. 4 of the Charter (“Prohibition of torture and inhuman or degrading treatment or punishment”), equally recalled in art. 3 of the European Court of Human Rights. In our case, it is noted that the UK is part of the ECHR and its intention of withdrawing from the EU does not affect the obligation of compliance with the principles of the Convention. The issues underlying the EAW, and more in general, judicial cooperation in terms of criminal law issues during Brexit times, may also lead us to presume that in case of ratification of the withdrawal agreement, there may be bilateral agreements between the EU and the UK, inspired precisedly by the EAW mechanism, similarly to the ones executed with Iceland and Norway (countries that are not in the EU but are Schengen Area participants).
Avv. Nicola Pietrantoni (International Journal for Lawyers n. 7/2019, Euro-Latam-Lex)
Notoriously, after the June 2016 referendum and the victory of the “leavers” with 51.9%, the United Kingdom notified the European Council, pursuant to Article 50 of the TEU, of its intention of withdrawing from the Union, thus opening the delicate phase of negotiations on the withdrawal process.
Article 50 provides that “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement…”. The extraordinary complexity of an endless list of issues underlying Brexit, of a substantial and formal nature, then set off a period of extensions granted by the Extraordinary European Council – the latest of which on 10/4/2019 with deadline on 31/10/2019 – specifically with a view to encouraging the reaching of an agreement ensuring an orderly departure of the United Kingdom from the European Union, and thus averting a dreaded “no deal” Brexit, with all of the negative consequences this would entail.
The term “Brexit”, in its double option (deal or no deal), thus expresses a multitude of problematic issues, including of a legal nature, which need to be faced. For example, the right of resident citizens; the circulation of workers, industrial stock and capital; competition rules; programmes on research and development. Among the most important issues, specific importance falls on future cooperation between the UK and the judicial authorities of the other EU states to prevent transnational crime. The European Council, in its “Guidelines following the United Kingdom’s notification under Article 50 TEU” issued on 29/4/2017, specified that “The withdrawal agreement would also need to address potential issues arising from the withdrawal in other areas of cooperation, including judicial cooperation, law enforcement and security” (point 14) and that “The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy” (point 22).
In July 2018, the then-Prime Minister Theresa May presented Parliament with the document “The future relationship beetween the United Kingdom and the European Union”,with which she assured that the UK would continue complying with security procedures, including the European Arrest Warrant (EAW), a necessary protection because it “has streamlined the extradition process within the EU and made it easier to ensure wanted persons are brought to justice, or serve a prison sentence for an existing conviction”.
The European Arrest Warrant, introduced by Council Framework Decision 2002/584/JHA of 2002, consists in the provision, issued by a member state, for the arrest and handover, by another member state, of a wanted person, for purposes of exercising criminal action or executing a sentence or security measures restricting freedom. The EAW, differently from extradition, produces its effects across the entire EU, limiting as far as possible the possibility for the state receiving the request of refusing the handover of an individual to the foreign authorities making such request.
The extradition procedure is instead more complex, and provides for the strict verification of compliance with the fundamental rights of the person involved. For these reasons too, the Court of Justice, in its Sentence of 19/9/2018 in the ROcase, noted the need to assess – on a case-by-case basis – whether the person receiving the Euro-warrant – after withdrawal from the Union of the issuer member state – risks being deprived of fundamental rights as provided in art. 4 of the Charter (“Prohibition of torture and inhuman or degrading treatment or punishment”), equally recalled in art. 3 of the European Court of Human Rights. In our case, it is noted that the UK is part of the ECHR and its intention of withdrawing from the EU does not affect the obligation of compliance with the principles of the Convention. The issues underlying the EAW, and more in general, judicial cooperation in terms of criminal law issues during Brexit times, may also lead us to presume that in case of ratification of the withdrawal agreement, there may be bilateral agreements between the EU and the UK, inspired precisedly by the EAW mechanism, similarly to the ones executed with Iceland and Norway (countries that are not in the EU but are Schengen Area participants).
In the absence of specific agreements and in the case of no deal, the UK, as a third party state, would have no other option but to rely on extradition, regulated by the Council of Europe Convention of 1957, and would have to ensure – in case of its own request of extradition to a EU member state – the a level of protection of fundamental rights is equal to the one provided in the EU Charter, as interpreted by the Court of Justice.
In the absence of specific agreements and in the case of no deal, the UK, as a third party state, would have no other option but to rely on extradition, regulated by the Council of Europe Convention of 1957, and would have to ensure – in case of its own request of extradition to a EU member state – the a level of protection of fundamental rights is equal to the one provided in the EU Charter, as interpreted by the Court of Justice.