The recent Brexit negotiations brought further attention to the role of the Court of Justice of the European Union (more commonly referred to in the UK as the ECJ). The negotiations have also emphasised a level of misunderstanding about the role of the ECJ and the European Court of Human Rights (ECHR).
The Court of Justice of the European Union and the ECHR are not the same thing. The ECHR was set up in 1959. Its function is to rule on alleged breaches of the European Convention on Human Rights. All 47 Council of Europe members have signed up to the Convention, and agree to be bound by the decisions of the ECHR.
The ECHR has previously ruled on this country’s ability to set whole-life prison terms; the rights of prisoners to vote and whether Abu Qatada could be deported.
The Court of Justice of the European Union was established in 1952. It is the highest court of the European Union, and rules on matters of European Law. Individuals cannot apply to the ECJ. Instead, national courts refer cases to the ECJ. It is then up to the national court to interpret its own laws in accordance with the decisions of the ECJ.
One of the most well-known ECJ decisions was the case of Jean-Marc Bosman, (the Bosman ruling) which was a freedom of movement decision. This resulted in professional footballers being able to join another club at the end of their contract without a transfer fee being paid. The Court has also ruled in issues relating to religious clothing and symbols at work, such as head-scarfs.
Whatever the terms of the Brexit deal, the UK will not be leaving the ECHR. Our relationship with the ECJ is likely to be much more complicated, but the court is likely to continue to have an influence even after the UK leaves the EU.
John Howey, Senior Solicitor
Image attribution: Adrian Grycuk (Own work) [CC BY-SA 3.0 pl (https://creativecommons.org/licenses/by-sa/3.0/pl/deed.en)], via Wikimedia CommonsRead More
What lies ahead for the EAW after Brexit?
The European Arrest Warrant is a tool used very often by Governments within the EU to secure the arrest and extradition of people who have committed or are accused of committing crimes in their own country.
Some countries confine their use of the EAW to very serious offences such as people trafficking or murder. Others adopt a hard-line approach and will issue an EAW for what may seem trivial such as shoplifting or a simple possession of cannabis.
Notwithstanding the difference in approaches, the UK government accepts that the EAW is instrumental in fighting cross-border crime and presently at least, is keen to remain part of the EAW post-Brexit.
If the UK is not part of the EAW, then any requests for a extradition to and from the UK will most likely follow the system we currently have for non-EU countries; this is a more onerous and costly route than the EAW.
If the UK continues to be part of the EAW, in all likelihood, they will have to submit to the jurisdiction of the European Court of Justice (“ECJ”). This will no doubt prove unpopular with those seeking a clean break from the EU, or ‘hard-Brexit’.
Some interpretations of the EAW
The ECJ has made important interpretations on the framework decision relating to the EAW. Kovalkovas [C-477/16 PPU] is a case brought by the Government of the Netherlands and decided by the ECJ in November 2016. The ECJ concluded that a Ministry of Justice was not a Judicial Authority for the purposes of an EAW and therefore cannot issue a valid EAW. This contradicted the UK Supreme Court’s decision in 2013 (case of Bucnys v Ministry of Justice Lithuania  UKSC 71. As a result of the ECJ’s decision, it was binding on all EU countries including the UK. The UK Courts and the CPS had to disregard Bucnys.
It is unworkable for the UK to remain part of the EAW after Brexit, yet be excluded from the jurisdiction of the ECJ. The UK will have to choose.Read More