Not as special: The Court's decision on the risk of a breach of the Charter following surrender to the United Kingdom in Case C-202/24 Alchaster

Abstract

This note examines the Court of Justice's ruling in the Alchaster case concerning judicial authorities’ assessment of the risk of a breach of fundamental rights following surrender to the United Kingdom. The Court of Justice denied the application of the principle of mutual trust to the surrender procedure established by the Trade and Cooperation Agreement, despite having applied the principle to the surrender agreement with Norway and Iceland. A ‘particular’ reason for the inapplicability of mutual trust is that the UK is not part of the ‘European area without internal borders’. Norway is part of that area by virtue of implementing the Schengen acquis and participating in the internal market through the EEA Agreement. The Court ruled that the UK does not have ‘as special’ a relationship with the EU as Norway does. Since the principle of mutual trust does not apply to the TCA surrender procedure, judicial authorities cannot use the two-step test from the Aranyosi and Căldăraru to determine if the Charter prevents surrender. Instead, judicial authorities must conduct an independent review following the Court’s approach in cases concerning extradition to third states.

1. Introduction

The Alchaster case concerns the assessment of risk of a breach of fundamental rights following surrender to the United Kingdom after Brexit. ¹ The Supreme Court of Ireland sought guidance on how to assess whether the principle of non-retroactivity prevents surrender to the UK. After withdrawing from the EU, the UK is no longer part of the European Arrest Warrant (EAW) system, which was established by Framework Decision 2002/584/JHA. ² Instead, the relationship is governed by the Trade and Cooperation Agreement (TCA), ³ which includes provisions establishing a surrender procedure. ⁴ One issue arising under the new legal framework for surrender between Member States and the UK is how to assess claims that the risk of a breach of fundamental rights prevents surrender. One solution to this issue is, as the Irish Supreme Court suggested, to treat the UK ‘as if it were a Member State’. ⁵ The Court of Justice did not follow that approach. It addressed the issue by focusing on the principle of mutual trust and the EU's ‘special relationship’ with neighbouring states.

EU law is based on the fundamental premise that Member States share common values on which the Union is founded, which underpins and justifies the principle of mutual trust. ⁶ In Opinion 2/13, the Court emphasized the importance of the principle of mutual trust, as it allows for an area without internal borders to be created and maintained. That principle requires Member States to presume that all other Member States comply with EU law, except in exceptional circumstances. ⁷ In its seminal judgment in Aranyosi and Căldăraru, the Court introduced a two-step test to determine if such circumstances exist. The first step is whether there are systemic deficiencies in the issuing state. The second step is whether there are substantial grounds for believing that the person will run a real risk of being subject to treatment contrary to the Charter after surrender. ⁸ Since the two steps have different criteria, they must be carried out separately and autonomously. ⁹ By following this test, the executing judicial authority both relies on and preserves the mutual trust existing between Member States.

Norway and Iceland are part of the European area without internal borders by virtue of implementing the Schengen acquis and the European Economic Area (EEA) Agreement. ¹⁰ To prevent the right to free movement from being exploited by individuals seeking to evade criminal liability, which is the objective of the EAW system, the EU-Norway/Iceland surrender agreement must be interpreted in line with the EAW Framework Decision. ¹¹ Cases concerning free movement and surrender suggest that the Court interprets the relevant agreements as if Norway and Iceland were Member States, whereas it has rejected such an interpretation in cases involving other neighbouring states. ¹² In I.N., the Court considered that the instruments governing Iceland's special relationship with the EU made the right to free movement of an Icelandic citizen objectively comparable to that of EU citizens. ¹³ The Court used identical wording in I.N. and J.R to describe Iceland and Norway's equally special relationship with the EU. ¹⁴ Since the Court in Alchaster compares the UK with Norway, this annotation will focus on Norway. As both Norway and Iceland are parties to the agreements references in I.N. and J.R., their relationship with the EU is equally special, at least in this context.

The ruling in Alchaster concerns three legal problems. The first is when the principle of mutual trust is applicable to agreements with third states that have a special relationship with the EU. The second legal problem is how a judicial authority should determine if the risk of a breach of fundamental rights prevents surrender to a third state. The third legal problem is the scope and threshold of Article 49(1) Charter in the context of surrender. The Court's emphasis on the first legal problem is remarkable and pivotal to the assessment of the second and third legal problems. That emphasis may have come at the expense of the clarity of the assessment of the third legal problem. This may partly explain why the Irish Supreme Court made a new reference to the Court of Justice in Alchaster II, asking if the amended rules constitute a ‘heavier penalty’ within the meaning of Article 49(1) of the Charter. ¹⁵

This note starts with an overview of the factual background in section 2. The opinion of Advocate General Szpunar and the judgment of the Court will be presented in sections 3 and 4. In section 5, I analyse why the UK is not as special as Norway. Some concluding remarks are given in section 6.

2. Factual background

In November 2021, the District Judge of the Magistrates’ Courts of Northern Ireland issued four arrest warrants for the prosecution of MA for allegedly committing terrorist offences in July 2020. ¹⁶ The Irish High Court accepted the surrender of MA in the autumn of 2022. In January 2023, the Supreme Court of Ireland granted leave to appeal against the judgment and orders of the High Court.

MA claimed before domestic courts that surrender is incompatible with the principle of non-retroactivity in Article 7(1) ECHR and Article 49(1) Charter. At the time of the alleged offences, persons convicted of certain terrorist offences were automatically entitled to be granted release on licence after serving half of the sentence. Those rules were amended before the arrest warrants against MA were issued, pursuant to which release became contingent on approval by a specialized authority after two-thirds of the sentence is served. MA argued that the amendments retrospectively imposed a stricter penalty than what was provided for at the time the alleged offences were committed.

The Irish Supreme Court rejected MA's claim that surrender was incompatible with Article 7(1) ECHR. The case law of the European Court of Human Rights (ECtHR) confirms that Article 7(1) ECHR does not prevent changes to the system of remission or early release. The Irish Supreme Court relied on the UK Supreme Court's decision that the amendments concern only the execution of the custodial sentence. Furthermore, MA failed to demonstrate the existence of systemic deficiencies suggesting a flagrant violation of Article 7(1) ECHR.

The Irish Supreme Court was uncertain if the same conclusion may be reached under Article 49(1) Charter. ¹⁷ Consequently, the Supreme Court decided in March 2024 to stay the proceeding and refer the questions of the case to the Court of Justice. The Irish Supreme Court asked the Court of Justice whether the TCA, read in conjunction with Article 49(1) of the Charter, requires a judicial authority to assess the risk of a breach of the Charter after ruling out the risk of a breach of Article 7 ECHR. ¹⁸

3. Advocate General Szpunar's opinion

Advocate General Szpunar approached the legal problems by focusing on the principle of mutual trust. He conducted a detailed examination of when the principle is applicable to third states, describing trust as operating on a sliding scale. According to Szpunar, systems of cross-border surrender have an inherent challenge of balancing the effectiveness of the system and the protection of fundamental rights. A proper balance between those considerations requires adequate measures preventing surrenders with sufficient risk of a breach of fundamental rights, which is also required by the Charter. ¹⁹ The effectiveness of the EAW system is ensured by an obligation to execute an arrest warrant, which requires a high level of trust. ²⁰ In Szpunar's view, trust and scrutiny are interconnected, meaning that a high degree of trust allows for reduced scrutiny of fundamental rights’ concerns in individual cases. The surrender procedure of the TCA builds on a high level of trust that fundamental rights have been and will be protected, but not at the same level as between the EU Member States. ²¹ Consequently, Szpunar rejected the application of the principle of mutual trust to the EU-UK relationship.

The Advocate General advised against applying the two-step test developed in Aranyosi and Căldăraru. As that test is based on the highest degree of mutual trust in the EU legal order, existing only between Member States, Szpunar viewed it as ‘futile’ to apply the test to the TCA surrender procedure. ²² Instead, the Advocate General suggested that the Court apply the criteria for extradition to third states laid down in Petruhhin, which is similar to the test used by the ECtHR. The Petruhhin test entails a single assessment, where the judicial authority executing an arrest warrant carries out an independent assessment of the risk of a breach of fundamental rights in the third state based on objective, reliable, specific and updated information. ²³

On the question of scope and threshold of Article 49(1) Charter, the Advocate General relies on ECtHR case law concerning Article 7(1) ECHR. The ECtHR distinguishes between the execution of a penalty and measures constituting a penalty. Subject to this distinction, retrospective changes to systems of remission or early release are generally not considered a ‘penalty’ under Article 7(1) ECHR. The case of Del Rio Prada v. Spain represents an exception to that, but Szpunar describes that case as exceptional and not comparable to the present case. Szpunar instead relies on the subsequent decision in Devriendt where the ECtHR accepted Belgian amendments raising the minimum threshold for parole from 10 to 15 years. ²⁴ Despite arguing that judicial authorities must carry out an independent assessment, the Advocate General is clear that nothing indicates that the amendments is in violation of the principle of non-retroactivity. Hence, Szpunar is clear that the arrest warrants against MA must be executed. Furthermore, in the absence of any discernible constitutional tradition indicating stronger substantive protection, the threshold of Article 49(1) Charter must be the same as Article 7(1) ECHR. ²⁵

4. The decision of the Court of Justice

The Court addressed the legal problems by focusing on the European area without internal borders. It did not describe the principle of mutual trust as a sliding scale but instead focused on the importance of the principle for the functioning of that area. The Court views the principle of mutual trust as a normative principle which is either applicable, or not. The inapplicability of the principle has legal implications for the assessment of judicial authorities faced with claims that surrender is incompatible with the Charter. Despite the slightly different understanding of the principle of mutual trust, the Court and the Advocate General agreed that the principle is inapplicable to the TCA surrender procedure. The Court followed Szpunar's suggestion to apply the approach developed by the Court in Petruhhin regarding extradition to third states.

In Alchaster, the Court denied the application of mutual trust to the UK, a particular reason for this being that the UK is not part of the European area without internal borders. ²⁶ Reiterating Opinion 2/13, the Court, unlike Szpunar, links the principle of mutual trust to the creation and functioning of the European area without internal borders. ²⁷ According to the Court, the UK's relationship with the EU is not as special as Norway's. Norway has a long-standing relationship with the EU, going beyond an economic relationship, including participation in the internal market through the Agreement on the EEA Agreement, implementing the Schengen acquis, and agreements on asylum and surrender. ²⁸ As the two-step test is built upon mutual trust, there was no reason to use that test to assess claims that the Charter prevents surrender to the UK. Instead, the Court followed Szpunar's suggestion to approach from cases concerning extradition to third states, meaning that a judicial authority must conduct an independent review of all relevant factors, without presuming that the UK complies with the Charter.

Similarly to the Advocate General, the Court relied on ECtHR case law to determine the substantive threshold of Article 49(1) Charter. The distinction between the substance of a penalty and the execution of a penalty serves as the basis for that assessment. Mere hardening of a detention due to extension of the eligibility threshold for release on licence does not in itself affect the substance of a penalty. A measure relating to the execution of a sentence will only be incompatible with the Charter if it retroactively alters the actual scope of the penalty provided, resulting in a heavier penalty than originally envisaged, which is for the Irish authorities to determine.

5. Having a special relationship is not special: What makes a relationship ‘special’?

A. ‘Special relationship’ with neighbouring states

The concept of ‘special relationship’ plays a key role in the Court's judgment in Alchaster. Article 8 TEU commits the EU to develop a ‘special relationship’ with its neighbouring countries. ²⁹ This suggests that the UK has a special relationship with the EU, but also that it is not special to have a special relationship. However, the precise legal implications of such a relationship remain unclear. The association agreements concluded by the EU with neighbouring states are individually tailored, encompassing different degrees of cooperation. ³⁰ Alchaster illustrates that application of the principle of mutual trust in relation to Norway and Iceland is the exception to the main rule that mutual trust ‘specifically characterises relations between Member States’. ³¹

The Court is clear that the UK's relationship with the EU is not as special as Norway's. ³² This raises two questions. The first question is what it means to be more special. In the case of Norway, the special relationship means applicability of the principle of mutual trust. The second question, which will be examined below, is why the Court applied the principle of mutual trust to the relationship with Norway but not the UK. Or, phrased differently, why is the UK's relationship with the EU not as special as Norway's?

B. Why is the UK's relationship with the EU not ‘as special as’ Norway's?

The EU and the UK have a long-standing relationship, and the TCA confirms that this relationship remains close and trusted. Both the Court and the Advocate General agree that the TCA surrender procedure is premised on an obligation to surrender. This reflects and requires a high level of trust, but not the legal principle of mutual trust. The objective of TCA is to establish the basis for a broad relationship encompassing a close and peaceful cooperation that is respectful of the autonomy and sovereignty of the parties. ³³ This stands in contrast to the EEA Agreement's objective of homogeneity, which lies at the core of the special relationship between the EU and Norway and Iceland. ³⁴ However, the objectives of these agreements do not determine whether the principle of mutual trust applies. The Court identified three reasons why the UK's relationship is not as special as Norway's.

First, the UK is not part of the European area without internal borders. The Court reiterated the findings of Opinion 2/13, emphasizing the importance of the principle of mutual trust for the functioning of that area, allowing it to be created and maintained. ³⁵ According to the Court, the non-participation in that area is of ‘particular’ importance to explain the inapplicability of mutual trust to the UK. ³⁶ Norway's participation in this area refers not only to its implementation of the Schengen acquis, which removes border controls, but also to its participation in the internal market through the EEA Agreement. ³⁷ The two other agreements mentioned by the Court, the Common European Asylum System and the agreement on surrender procedure, are connected to Norway's involvement in the European area without internal borders.

The objective of the EAW system illustrates that it is not necessary to apply the principle of mutual trust to the surrender provisions of the TCA. In L and P, the Court underlined the EAW system's objective of combating impunity when assessing whether claims that systematic and generalized deficiencies in the receiving state is sufficient to prevent surrender. ³⁸ According to the Court, removing the second step of the two-step test would entail a high risk of impunity for persons seeking to exploit the free movement of the internal market to flee justice. ³⁹ Since the UK does not participate in that area, there is no basis or reason to apply the principle of mutual trust to it. As the two-step test is constructed upon that principle, there is no reason to transpose the two-step test to the TCA surrender procedure. By contrast, since Norway and Iceland are part of that area, the principle of mutual trust and two-step test must be applied to the EU-Norway/Iceland surrender agreement.

Second, the TCA is not predicated on preserving mutual trust. ⁴⁰ In contrast to the EU­-Norway/Iceland surrender agreement, the UK and EU do not express mutual confidence in the functioning of each other's legal systems. ⁴¹ Although Article 524 TCA indeed encompasses preservation and respect of human rights, the protection of those rights is not based on mutual trust. Considering the previous paragraphs, this is evident given the particular importance of that principle in the European area without internal borders. As the TCA does not extend that area to the UK, there is no reason why the surrender procedure should be predicated on preserving mutual trust.

Third, the provisions on surrender in the TCA are substantially different from the provisions of the Framework Decision. ⁴² Contrary to the opinion of the Court, the referring court considered the provisions on surrender in the TCA identical to those of the Framework Decision. Advocate General Szpunar took the middle road, acknowledging that the TCA establishes a ‘surrender system marked by considerable closeness and a high level of mutual trust’ to the Framework Decision, while also noting the exception from the duty to surrender as illustrative of the differences between the provisions. ⁴³ The Court in particular notes that the exception from the obligation to surrender for political offences and nationals in Article 602(2) and Article 603(2) illustrates the limit of trust between the parties. ⁴⁴ Interestingly, the wording of those provisions in the TCA is almost identical to the corresponding provisions of the Norway/Iceland-EU surrender agreement, which the Court describes as very similar to the Framework Decision. ⁴⁵ This clearly shows that the Court interprets agreements with Norway differently than most other third states, including the UK.

The Court also highlights Article 604(c) TCA, which enables judicial authorities to request additional guarantees if there are substantial grounds for believing that there is a real risk of a breach of fundamental rights. In essence, this is a mechanism for obtaining guarantees that mirrors the wording of the first step from Aranyosi and Căldăraru. The risk of a breach of the Charter was accepted by the Court as a reason justifying non-execution of arrest warrants in 2016, which raises the question whether the Framework Decision would have included such a mechanism if it were concluded today. The Framework Decision includes mechanisms to receive guarantees where a decision is issued in absentia, where the offence is punishable by life sentence, or that nationals and residents will be returned for serving a sentence upon conviction. ⁴⁶ Article 604(c) TCA does not reflect greater mistrust than either the two-step test developed by the Court or the existing mechanisms in the EAW Framework Decision.

C. Remaining issues: The Court's findings on the second and third legal problems

The Court's assessment of the second and third legal problem hinges on the findings regarding the first. Both the Advocate General and the Court reserve significant parts of their assessment for the first legal problem. Given the Court's conclusion that the principle of mutual trust does not apply to the TCA surrender procedure, it logically follows that the two-step test does not apply either. A key feature of the Alchaster case is its illustration of how central the principle of mutual trust is to both the EAW surrender mechanism and the two-step test. Another important, though less apparent, feature is that the principle of mutual trust is a normative principle with concrete legal implications, which is not contingent on an actual high level of trust between two states. Those legal implications include the obligation to assume that all other Member States comply with EU law, an assumption important for preserving mutual trust.

Based on the principle of mutual trust, the two-step test assumes compliance with EU law by the issuing state and therefore permits reduced scrutiny. ⁴⁷ The two-step test is the legal mechanism used to balance the protection of mutual trust, which is essential for EU integration, with the protection of fundamental rights enshrined in the Charter. Without this principle, the two-step test is neither applicable nor necessary. Drawing on Szpunar's observation that trust and scrutiny are interconnected, the level of trust between the EU and the UK after Brexit does not justify the reduced level of scrutiny inherent in the two-step test. The Court therefore concludes in relation to the second legal problem that the TCA, read in conjunction with the Charter, requires the executing judicial authority to examine all relevant factors without assuming compliance with the Charter. This conclusion leads the Court to the third legal question.

The Court did not directly address whether Article 49(1) Charter provides a more extensive protection than Article 7(1) ECHR. Given the domestic court's conclusion that surrender is compatible with Article 7(1) ECHR, the third legal problem concerns whether the Charter should provide a higher level of protection than the ECHR. Article 53 Charter makes it clear that the Charter may not offer a lower level of protection than the ECHR, but it does not prevent a higher level from being established and guaranteed in the EU legal order. In this case, the Court did not find reasons for a higher level of protection under the Charter. Instead, it reiterated the case law of the ECtHR, thereby aligning the level of protection under the Charter with that of the ECHR. ⁴⁸

A higher level of protection under the Charter would mean establishing standards applicable only to some third states. Within the EAW system, the principle of mutual trust limits the scrutiny, leaving additional protection under Article 49(1) Charter compared to Article 7(1) ECHR without any significance. Domestic criminal proceedings would likely fall outside the scope of ‘Union law’ under Article 51(1) Charter, making the Charter inapplicable to those situations. Moreover, while the TCA is indeed Union law, rules on extradition fall within the competence of the Member States unless covered by agreements between the EU and third states. ⁴⁹ A higher level of protection under the Charter would therefore apply only in cases concerning extradition to third states with which the EU has concluded an extradition agreement, leaving the EAW system, domestic criminal proceedings and bilateral extradition agreements unaffected. This may explain why the Court viewed it as sufficient to align the level of protection under the Charter with that of the ECHR.

Advocate General Szpunar concluded more clearly on the third legal problem than the Court. The Court concluded that the judicial authority must undertake an independent examination of the risk of breach of the Charter before deciding on the execution of that arrest warrant, despite having already ruled out the risk of breach of the ECHR. ⁵⁰ Advocate General Szpunar concluded that there is no reason not to execute the arrest warrant, as there is no discernible tradition among Member States entailing a higher threshold under Article 49(1) Charter than Article 7(1) ECHR. ⁵¹ Upon receiving the Court's conclusion, the Irish Supreme Court referred the substantive question again. This time, it asked the Court if the amendments constitute a ‘heavier penalty’ under Article 49(1) Charter, which may indicate that it did not receive the clarification it had initially sought. ⁵²

6. Concluding remarks

The Court of Justice's ruling in Alchaster extends beyond the mere consideration of whether the Charter prevents surrender to the UK. The Court's emphasis on the concepts underpinning the EAW system reflects the importance of the system for the Union, the internal market of the EEA and the European area without internal borders. Alchaster provides valuable insights into the legal concepts of mutual trust and special relationships, including when mutual trust is applicable to a third state with a special relationship with the EU. Viewed through the special relationship of Norway, Alchaster illustrates that mutual trust is a normative principle with legal effects. The Court has rejected the application of the principle of mutual trust to most third states, which makes its application to the relationship with Norway and Iceland extra special.

The legal framework governing Norway and Iceland's relationship with the EU makes the application of mutual trust necessary for maintaining Europe as an area without internal borders. Norway and Iceland are part of the internal market and implement the Schengen acquis, thereby extending the European area of free movement without border controls to Norway and Iceland. Without the application of the principle of mutual trust to the Norway/Iceland-EU surrender agreement, there would be an increased risk of impunity within the European area without internal borders, undermining the objective of the EAW surrender mechanism.

The Court makes it clear that the UK does not have a relationship with the EU that warrants mutual trust, primarily because the UK is not part of the European area without internal borders. Inapplicability of mutual trust to the TCA surrender procedure does not increase the risk of impunity. To fulfil the objective of the EAW surrender mechanism of combating the increased risk of impunity created by the free movement without border controls in the EEA, it is not necessary to treat the UK as if it were a Member State. Consequently, judicial authorities of Member States cannot use the two-step test to determine if the Charter prevents surrender. Instead, judicial authorities must conduct an independent assessment of the risk of a breach of fundamental rights in the UK based on objective, reliable, specific and updated information.