Putting Pupino in its Place

Anita Davies

The decision is Assange v The Swedish Prosecution Authority [2012] UKSC 22 yielded a number of surprises. Firstly, the decision of the majority to rely on a point not argued before the Court (the 1969 Vienna Convention on the Law of Treaties) and secondly, the finding that the CJEU’s decision in Criminal Proceedings Against Pupino (Case C-105/03), which establishes that member states must interpret domestic law in conformity with the wording and purpose of framework decisions, does not bind UK courts. While this finding did not have a material impact on the outcome of Assange, as the majority concluded that the common law presumption that the UK will legislate in accordance with it international obligations would result in the same outcome as if Pupino had applied, it established an important constitutional point that appears, somewhat curiously, to have been overlooked in previous case law.

The Assange decision has already been detailed in a number of excellent blog posts on the UK Human Rights Blog and UKSC Blog, but a brief outline is required to put the Court’s findings with regard to Pupino in context. The Supreme Court was tasked with deciding the meaning of the phrase ‘judicial authority’ within the European Arrest Warrant Framework Decision and then deciding whether ‘judicial authority’ in s 2(2) of the Extradition Act 2003, the domestic legislation giving effect to the Framework Decision, bore the same meaning, and in particular whether it included public prosecutors within the definition. Until Assange, it was assumed that interpretation of the Extradition Act and the extent to which it gave effect to the Framework Decision was guided by two principles:

 (i) the rule deriving from the decision of the Court of Justice of the European Union in Pupino that national courts must interpret national law ‘as far as possible in light of the wording and purpose of a framework decision in order to attain the objectives it pursues’; and

(ii) the domestic rule of statutory interpretation that when Parliament legislates to give effect to an international law obligation, it is presumed to do so in full.

The Pupino Principle

Pupino was a 2005 case in which an Italian court asked the Court of Justice whether the Framework Decision on the rights of crime victims in criminal procedure had ‘indirect effect’ equivalent to that of Directives. The Court found that it did, on the grounds of the comparisons between Directives and Decisions, the binding nature of Decisions and the principle of loyalty to the Union as set out in Article 10 TEC.

It was assumed that this principle applied to the EAW Framework Decision. In Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31, Lord Bingham stated at [5] that:

“By article 34(2)(b) of the Treaty on European Union, reflecting the law on directives in article 249 of the EC Treaty, framework decisions are binding on member states as to the result to be achieved but leave to national authorities the choice of form and methods. In its choice of form and methods a national authority may not seek to frustrate or impede achievement of the purpose of the decision, for that would impede the general duty of cooperation binding on member states under article 10 of the EC Treaty. Thus while a national court may not interpret a national law contra legem, it must “do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU” (Criminal proceedings against Pupino (Case C – 105/03) [2006] QB 83, [2005] EUECJ C-105/03, paras 43, 47).”

That legislation should be interpreted in conformity with the EAW Framework Decision was reaffirmed in Calderelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, again by Lord Bingham, at [22].

However, what both Dabas and Caldarelli appear to have overlooked is the fact that crime and policing measures agreed under Title VI of the TEU are not given effect under s 2 of the European Communities Act 1972. Therefore EU law and CJEU decisions in that area do not bind the UK. Unfortunately, until Assange, no one appears to have noticed.

UK – 1 : CJEU – 0

Lord Mance at [198] – [218] delivered the main analysis of the European legal position, with which the majority agreed. He began with a brief history of the introduction of the EAW Framework Decision. The Decision was a “third pillar” measure agreed under Title VI TEU. With regard to third pillar measures in the criminal area Member States are not obliged to accept the jurisdiction of the CJEU, and the European Commission has no power to take enforcement measures against them in respect of any failure to implement the requirements of a Title VI measure. Under Protocol No. 36 of the Treaty of Lisbon the position remains the same. Article 9 provides that the legal effect of agreements concluded between Member States on the basis of the TEU prior to the Treaty of Lisbon shall be preserved until such agreements are repealed, annulled or amended in implementation of the Treaties. Article 10 provides that with regard to acts of the Union in the field of police co-operation and judicial co-operation in criminal matters which have been adopted before the Treaty of Lisbon, the powers of the Commission and ECJ remain the same until the relevant Title VI measure is by agreement amended, or until five years have elapsed from the entering into force of the Treaty if Lisbon (1 December 2014). Until now, the EAW Framework Decision, as a Title VI measure, has not been amended.

Lord Mance then continued to outline the means by which EU treaties bind the UK, which is effectively done by s 2 of the European Communities Act 1972. The scope of s 2 and what is meant by reference to ‘The Treaties’ in s 2, is defined by s 1 of the same Act. Section 1 of the 1972 Act defined ‘The Treaties’ as including Title II, III and IV TEU but not Title VI. Given that under Article 9 of Protocol No 36 the Framework Decision remains as a Title VI measure it falls outside of the scope of s 2. Effectively, Title VI has never been incorporated into domestic law. Therefore, any case law under it, such as Pupino, does not bind the UK.

Lord Mance dismissed the argument that while Title VI measures are outside the scope of ‘The Treaties’ under s 2, Title VI ‘instruments’ such as CJEU decisions, are part of domestic law under s 3 of the Act, which was amended in December 2009, on the grounds that it would be bizarre that Title VI should not be binding but that instruments enacted under it should be. He also dismissed the argument that Pupino should find domestic force under the principle of loyalty under Art 4(3) TFEU (ex Art 10 TEC), arguing that it was a duty on the UK as a state, not on its courts and that it can have had no effect prior to December 2009 on Title VI measures agreed under the former TEU rather than under the European Community Treaty.

Mind The Gap

In the end the decision regarding Pupino did not have a great material impact on the Court’s decision in Assange. Applying the common law assumption that the UK legislates with the intention of fulfilling its international obligations resulted in much the same outcome as if Pupino had applied, “the general presumption that the UK legislates in compliance with international obligations would produce the same result” [98], per Lord Brown. But, laying the individual outcome of the case aside, the decision regarding Pupino does throw some light on the general relationship between the UK and EU.

It may appear somewhat surprising that up until this point it was assumed that CJEU case law relating to Title VI measures was binding on the UK when Title VI was clearly not included in the scope of “The Treaties” in the 1992 Act. As Lord Mance made clear, this is an important constitutional point. He referred to Thomas v Baptiste [2000] 2 AC 1:

“Their Lordships recognise the constitutional importance of the principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation. The making of a treaty, in Trinidad and Tobago as in England, is an act of the executive government, not of the legislature. It follows that the terms of a treaty cannot effect any alteration to domestic law or deprive the subject of existing legal rights unless and until enacted into domestic law by or under authority of the legislature.” [23 A-C]

Examining the Hansard record on the European Communities Act it appears that Title VI was not included in the Act as it was considered an intergovernmental measure that did not require domestic implementation. As and when conventions arose under it they would be individually ratified. This is also confirmed by Lord Filkin’s comments on the second reading of the Extradition Act, referred to by Lord Mance:

“My Lord, the constitutional position is clear. On framework agreements to which the Government have been a party and have signed with other member states, there is an expectation that member states will put them into effective law in their own countries. . . the position is that Parliament is sovereign and Parliament can do what it wishes in this respect. Clearly, if there were to be a discontinuity between our treaty obligations and our own law, that is another issue that goes further. But Parliament is sovereign.” (Hansard (HL Debates), col 858)

In hindsight, this appears to have given rise to the interesting side effect that while individual Title VI measures such as the EAW system have been implemented domestically, the failure to include Title VI in the 1972 Act means that none of the more general CJEU case law concerning third pillar measures under Title VI and the EAW Framework Decision itself binds the UK. The possible gap between the Extradition Act and the Framework Decision is wider than previously thought. It does not reflect well on the general understanding of the UK’s complicated legislative relationship with Europe on crime and justice measures that such confusion arose and has taken so long to resolve. As Alex Tinsley on the UK Human Rights Blog points out, the decision in Assange clarifies the position for the moment, but it will all change again once the five-year deadline for amending Title VI measures expires. For the time being, however, Pupino has been firmly put in its place.

One thought on “Putting Pupino in its Place

  1. this is an insightful post. wonder why I didnt come across it earlier. So, putting it into context of the current events, how can we make sense of the UK government#s current position to opt-out of all pre-Lisbon Title VI measures and (probably) opt-in on a case by case basis under the Lisbon Treaty terms after 2014?
    Is the government playing a two-level game (trying to cut slack from domestic constraints – overcome prerogatives of legislature – while at the same time gaining leverage vis-a-vis EU partners in the Council) or stuck between a rock and a hard place (wanting to participate, but being incapacitated by its own parliamentary majority and self-interest to keep this prerogative once out of office)?

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