Chief Justice Justice Frank Clarke said it was important that “maximum clarity” be brought to these issues as soon as possible because of their potential to affect many similar cases.

Both men claim that the EU lacks jurisdiction, either under the UK’s Withdrawal Agreement from the EU (the WA Agreement) or the Trade and Cooperation Agreement (l ‘TCA agreement) between the EU and the UK, to bind Ireland to measures within the Security, Freedom and Justice Area (ASFJ) because Ireland has not exercised ‘opt-in to ASFJ. Ireland’s refusal to participate means that the surrender measures do not validly apply to Ireland, they say.

The surrender of one of the appellants is sought to serve an eight-year sentence while the other is prosecuted for 14 offenses. Both requested a referral to the CJEU while the State opposed any referral.

Protocol 21

In delivering the court judgment, the Chief Justice said the UK’s departure from the EU has created a number of legal issues, especially regarding the EAW system between the remaining states in the EU and the UK.

There are potentially particular problems for Ireland in this context, he said. The first is the purely practical consideration, due to proximity, of many requests for remission under the EWA system between Ireland and the United Kingdom.

The fact that Ireland is subject to a Protocol No. 21 annexed to the EU treaties, providing for Ireland’s reserve of sovereignty vis-à-vis the FSAJ, is particularly relevant to these calls, he said. He underlines.

Protocol 21 provides for a mechanism by which Ireland can opt for any measure within the ASFJ, either at the time the measure is considered or at a later stage. Where Ireland does not choose to participate at the time of the adoption of the measure concerned, it is not entitled to participate in the adoption process.

The WA and TCA agreements provide for the continuation of the MAE system and it was accepted that Ireland did not exercise an option under Protocol 21 with respect to either agreement.

The main claim of the men was that the EU had no competence to bind Ireland, in either of the two agreements, to measures within the ASFJ when Ireland had not exercised such an opt-in. .

Other issues

Other questions included whether these questions of European law arose correctly in these proceedings, given that the two men had requested their release under Article 40 of the Constitution on the grounds that they were unlawfully detained. under the EAW arrest warrants because, in their view, there was no legal basis for the continuation of the EAW system between the UK and Ireland.

The Chief Justice was convinced that the legal issues of the EU could be raised in both appeals.

In Irish law, questions of EU law that might arise are “crucial” to the Supreme Court’s final decision on both appeals, he said.

The validity of the legal basis of the EAW regime between Ireland and the United Kingdom depends on whether the WA and / or TCA agreements bind Ireland to the continuation of the regime with regard to the United Kingdom, a he declared.

If they are binding on Ireland, Ireland was entitled, and obliged by EU law, to adopt appropriate measures extending the EAW regime to the UK as a third country outside the EU , since Brexit. While the agreements were not binding on Ireland, there was no proper legal basis for the detention of the men.

The court is obliged to refer questions relating to these matters to the CJEU, he concluded.

The wording of the referral will be finalized after the court receives the parties’ submissions, which will be submitted by July 28.