Case C‑202/24

MA

(Request for a preliminary ruling from the Supreme Court (Ireland))

Judgment of the Court (Grand Chamber) of 29 July 2024

(Reference for a preliminary ruling – Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part – Surrender of a person to the United Kingdom for criminal prosecution – Competence of the executing judicial authority – Risk of breach of a fundamental right – Article 49(1) and Article 52(3) of the Charter of Fundamental Rights of the European Union – Principle that offences and penalties must be defined by law – Changes, to the detriment of that person, to the licence regime)

1. Judicial cooperation in criminal matters – Trade and Cooperation Agreement with the United Kingdom – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Refusal to execute an arrest warrant where there is a risk of a breach of a fundamental right – Conditions – Inapplicability of the Charter of Fundamental Rights to the United Kingdom – Irrelevant

   (Charter of Fundamental Rights of the European Union, Art. 51(1); EU and EAEC-UK Trade and Cooperation Agreement, Arts 524(2) and 600 to 604)

   (see paragraphs 46, 49, 51)

2. Judicial cooperation in criminal matters – Trade and Cooperation Agreement with the United Kingdom – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Refusal to execute an arrest warrant where there is a risk of a breach of Article 49(1) of the Charter of Fundamental Rights – Conditions – Retroactive alteration of the scope of the penalty provided for – Real risk of a heavier penalty than the one that was initially provided for – Objective, reliable, specific and properly updated information establishing that there is such a risk

   (Charter of Fundamental Rights of the European Union, Art. 49(1); EU and EAEC-UK Trade and Cooperation Agreement, Arts 3(1), 524(1) and (2), 602(2), 603(2), 604(c) and 613(2); Council Framework Decision 2002/584)

   (see paragraphs 70-82, 84-91, 97, 98, operative part)

3. Fundamental rights – Charter of Fundamental Rights – Principle that offences and penalties must be defined by law – Affirmed both by the Charter of Fundamental Rights and by the European Convention on Human Rights – Identical meaning and scope – Level of protection provided for by the Charter not infringing that guaranteed by that convention

   (Charter of Fundamental Rights of the European Union, Art. 49(1))

   (see paragraph 92)

Résumé

In a reference for a preliminary ruling from the Supreme Court (Ireland), the Court of Justice, sitting as the Grand Chamber, specifies the obligations of the executing judicial authority where a person who is the subject of an arrest warrant issued on the basis of the Trade and Cooperation Agreement concluded with the United Kingdom of Great Britain and Northern Ireland (‘the TCA’) ( 1 ) claims that there is a risk of breach of a fundamental right in the event of surrender to the United Kingdom.

The District Judge of the Magistrates’ Courts of Northern Ireland (United Kingdom) issued four arrest warrants against MA for terrorist offences allegedly committed in July 2020, some of which may justify the imposition of a life prison sentence.

In autumn 2022, the High Court (Ireland) ordered MA to be surrendered to the United Kingdom. MA brought an appeal against that decision before the referring court. He submits that his surrender to the United Kingdom is incompatible with the principle that offences and penalties must be defined by law, enshrined, inter alia, in Article 7 ECHR. ( 2 )

The referring court states that, in the event of MA being surrendered to, and sentenced in, the United Kingdom, his possible release on licence will be governed by United Kingdom legislation adopted after the suspected commission of the offences at issue. The release on licence of a person sentenced for offences such as those of which MA is accused must now be approved by a specialised authority and may take place only after that person has served two thirds of his or her sentence. That was not the case under the old system, which provided for automatic release on licence after the convicted person had served half of his or her sentence.

In that context, in the light, in particular, of the guarantees provided by the United Kingdom judicial system as regards the application of the ECHR, the failure to demonstrate the existence of a systemic deficiency that would suggest a probable and flagrant violation of the rights guaranteed by the ECHR in the event of MA being surrendered and his ability to bring an action before the European Court of Human Rights, the referring court rejected MA’s argument alleging a risk of a breach of Article 7 ECHR.

That court, however, asks whether it is possible to reach a similar conclusion as regards a risk of a breach of Article 49(1) of the Charter, ( 3 ) which states, inter alia, that no heavier penalty is to be imposed than that which was applicable at the time the criminal offence was committed. Furthermore, it questions whether that executing State is competent to rule on an argument alleging that provisions relating to sentences that may be imposed in the issuing State are incompatible with Article 49(1) of the Charter, where the latter State is not required to comply with the Charter and the Court has laid down stringent requirements relating to consideration of a risk of a breach of fundamental rights in the issuing Member State.

Assessment of the Court

In the first place, the Court, after ruling out the applicability of Framework Decision 2002/584 ( 4 ) to the execution of the arrest warrants at issue in the main proceedings, notes that it follows from the structure of Title VII of Part Three of the TCA, which concerns cooperation in criminal matters, and in particular from the respective functions of Articles 600 to 604 of that agreement, ( 5 ) that a Member State may refuse to execute an arrest warrant issued by the United Kingdom only for reasons arising from the TCA.

In that context, as stated in Article 524(2) of the TCA, Member States are obliged to comply with the Charter, given that a surrender decision constitutes an implementation of Union law within the meaning of Article 51(1) of the Charter. The executing judicial authorities of the Member States are therefore required to ensure respect for the fundamental rights afforded, inter alia, by Article 49(1) of the Charter to the person who is the subject of an arrest warrant issued on the basis of the TCA, without the fact that the Charter is not applicable to the United Kingdom being relevant in that regard.

In the second place, the Court points out that the requirement to undertake a two-step examination, which stems from the case-law relating to Framework Decision 2002/584, ( 6 ) cannot be transposed to the TCA. The simplified and effective surrender system established by that framework decision is based on the principle of mutual trust which specifically characterises relations between the Member States and from which stems the presumption of respect for fundamental rights by the issuing Member State. It is true that it cannot be ruled out that an international agreement may establish a high level of confidence between the Member States and certain third countries, such as certain Member States of the European Economic Area. That consideration cannot, however, be extended to all third countries and, in particular, to the United Kingdom.

First of all, the TCA does not establish, between the European Union and the United Kingdom, a special relationship capable of justifying that high level of trust. In particular, the United Kingdom is not part of the European area without internal borders, the construction of which is permitted, inter alia, by the principle of mutual trust. Next, although it is apparent from the TCA that cooperation between the United Kingdom and the Member States is based on long-standing respect for the protection of the fundamental rights and freedoms of individuals, ( 7 ) that cooperation is not presented as being based on the preservation of mutual trust between the States concerned which existed before the United Kingdom left the European Union on 31 January 2020. Finally, there are substantial differences between the provisions of the TCA relating to the surrender mechanism and the corresponding provisions of Framework Decision 2002/584.

In the third place, the Court specifies, in those circumstances, the examination which the executing judicial authority is required to undertake where the person concerned invokes before it the existence of a risk of breach of Article 49(1) of the Charter in the event of surrender to the United Kingdom. It points out that the obligation to respect fundamental rights requires that executing judicial authority to determine specifically, following an appropriate examination, whether there are valid reasons to believe that that person is exposed to a real risk of such a breach. To that end, the executing judicial authority must examine all the relevant factors in order to assess the foreseeable situation of the requested person if he or she is surrendered to the United Kingdom, which, unlike the two-step examination referred to above, assumes that both the rules and practices that are generally in place in that country and the specific features of that person’s individual situation are to be taken into account simultaneously. It may refuse to give effect to an arrest warrant issued on the basis of the TCA only if it has, in the light of the individual situation of the requested person, objective, reliable, specific and properly updated information establishing substantial grounds for believing that there is a real risk of a breach of Article 49(1) of the Charter.

In addition, before being able to refuse to execute an arrest warrant, the executing judicial authority must, in accordance with the obligation of mutual assistance in good faith laid down in Article 3(1) of the TCA, first request from the issuing judicial authority information concerning the rules of law of the issuing State and the manner in which those rules may be applied to the individual situation of the requested person and, where appropriate, additional guarantees to rule out the risk of breach of Article 49(1) of the Charter.

Lastly, as regards the scope of the latter provision, the Court states that a measure relating to the execution of a sentence will be incompatible with that provision only if it retroactively alters the actual scope of the penalty provided for on the day on which the offence at issue was committed, thus entailing the imposition of a heavier penalty. That is not the case where that measure merely delays the eligibility threshold for release on licence. However, the position may be different, in particular if that measure essentially repeals the possibility of release on licence or if it forms part of a series of measures which have the effect of increasing the intrinsic seriousness of the sentence initially provided for.

( 1 ) Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (OJ 2021 L 149, p. 10).

( 2 ) Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).

( 3 ) Charter of Fundamental Rights of the European Union (‘the Charter’).

( 4 ) Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).

( 5 ) Those articles concern, inter alia, cases of refusal to execute an arrest warrant issued on the basis of the TCA and the guarantees which must be provided by the issuing State in particular cases.

( 6 ) As regards the execution of a European arrest warrant, the executing judicial authority must, as a first step, determine whether there is evidence indicating that there is a real risk of a breach, in the issuing Member State, of a relevant fundamental right on account of either systemic or generalised deficiencies, or deficiencies affecting more specifically an objectively identifiable group of persons. In the context of a second step, the executing judicial authority must determine, specifically and precisely, to what extent the deficiencies identified in the first step are liable to have an impact on the person who is the subject of a European arrest warrant and whether, having regard to his or her personal situation, there are substantial grounds for believing that that person will run a real risk of a breach of a relevant fundamental right if surrendered to the issuing Member State.

( 7 ) Article 524(1) of the TCA.