In the absence of substantial grounds to believe that the person who is the subject of that warrant is at risk of being deprived of rights recognised by the Charter and the Framework Decision following the withdrawal from the EU of the issuing member state, the warrant must be executed while that state remains a member of the EU.

In 2016 the United Kingdom issued two European arrest warrants (EAWs) in respect of RO (the first in January 2016 and the second in May 2016) for the purposes of conducting prosecutions of the offences of murder, arson and rape. RO was arrested in Ireland on the basis of these arrest warrants and has been in custody since 3 February 2016. RO raised objections to his surrender by Ireland to the United Kingdom on the basis, amongst other things, of issues related to the United Kingdom’s withdrawal from the EU.

The Irish High Court ruled against RO on all his points of objection, other than the issues of the consequences of Brexit. It therefore asks the Court of Justice whether, in light of the fact that the United Kingdom gave notice on 29 March 2017 of its intention to withdraw from the EU, and of the uncertainty as to the arrangements which will be in place after the United Kingdom’s withdrawal, it is required to refuse to surrender to the United Kingdom a person subject to an EAW whose surrender would otherwise be mandatory.

The court states first that, having regard to the fundamental principle of mutual trust between the member states, which underpins the EAW Framework Decision, the execution of an EAW is the rule, and refusal to execute is an exception which must be interpreted strictly.

The court then observes that the notification by a member state of its intention to withdraw from the Union in accordance with Article 50 TEU does not have the effect of suspending the application of EU law in that member state and, consequently, the provisions of the Framework Decision and the principles of mutual trust and mutual recognition inherent in that decision continue in full force and effect in that State until the time of its actual withdrawal from the EU.

The court concludes, therefore, that mere notification by a member state of its intention to withdraw from the European Union is not an ‘exceptional’ circumstance capable of justifying a refusal to execute an EAW issued by that member state. Such a consequence would constitute a unilateral suspension of the provisions of the Framework Decision and would run counter to the provision of that decision which states that it is for the European Council to determine a breach in the issuing member state of the principles set out in Article 2 TEU, with a view to an EAW being suspended.

However, the court states that it remains the task of the executing judicial authority to examine whether there are substantial grounds to believe that, after withdrawal from the European Union of the issuing member state, the person who is the subject of the EAW is at risk of being deprived of his fundamental rights and the rights derived, in essence, from the Framework Decision.

In that regard, the court emphasises that the United Kingdom is party to the European Convention for the Protection of Human Rights and Fundamental Freedoms and that its continuing participation in that convention is not linked to its being a member of the EU. In addition, the United Kingdom is also party to the European Convention on Extradition of 13 December 1957, and has incorporated, in its national law, other rights and obligations currently contained in the Framework Decision.

The court holds therefore that, in such circumstances, the executing judicial authority is able to presume that, with respect to the person who is to be surrendered, the member state that has issued the EAW will apply the substantive content of the rights derived from the Framework Decision that are applicable in the period subsequent to the surrender, after the withdrawal of that member state from the EU. Only if there is concrete evidence to the contrary can the executing judicial authorities refuse to execute the EAW. In the view of the court, such evidence does not appear to exist, but that is for the referring court to determine.