Case C-202/24 Alchaster
29 Jul 2024
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The Grand Chamber of the Court of Justice of the European Union (CJEU) handed down an important judgment today in a reference from the Irish Supreme Court concerning the interpretation of the Trade and Cooperation Agreement between the EU and the UK (the TCA) in conjunction with Articles 49(1) and 52(3) of the Charter of Fundamental Rights of the European Union (the Charter), in the context of extradition.
The UK had sought the arrest and extradition of a person, MA, in Ireland, in relation to terrorism offences (§19). MA claimed that his surrender to the UK would be incompatible with the principle of legality, on the basis of an April 2021 amendment to the UK’s regime for the release on licence of persons convicted of certain terrorist offences (§§22-25). In the UK domestic context, the Supreme Court in Morgan v Ministry of Justice [2024] A.C. 130 had held that this amendment was compatible with Article 7 of the ECHR. According to Article 52(3) of the Charter, Article 7 ECHR and Article 49(1) of the Charter have the same scope (§§26-27).
The CJEU analysed the principle of “mutual trust” between Member States and the UK under the TCA (§§56-78), and the correct approach for an executing judicial authority in a Member State responding to a request for extradition under the TCA (§§79-92), holding that an executing judicial authority had to carry out its own independent assessment of compliance with the Charter (§§93, 98).
As to the compatibility of a change to licence arrangements with Article 49(1) of the Charter, the CJEU adopted the distinction between the imposition and execution of a penalty set out by the ECtHR in the Del Rio Prada v Spain CE:ECHR:2013:1021JUD004275009 line of case law, which had been applied by the UK Supreme Court in Morgan. It held, in summary, that a change to licence arrangements will only be incompatible with Article 49(1) of the Charter if it “retroactively alters the actual scope of the penalty provided for on the day on which the offence at issue was committed”, which is not the case “where that measure merely delays the eligibility threshold for release on licence” (§97).
Sir James Eadie KC and Jason Pobjoy acted for the UK Government, which made written and oral submissions to the CJEU.
The judgment can be found here.
The Court’s press release can be found here.
