The publication of the 5th March letter from Kevin Foster MP Minister of Future Borders and Immigration at the Home Office to the Lord’s EU Justice and Security sub-committee concerning the EU Notification under the UK-EU Trade and Cooperation Agreement (TACA) and specifically ‘Article LAW.SURR.83(2): Nationality exception’ on the surrender of Member States’ own nationals to the UK, throws a light on the true state of the relationship between EU Member States and the UK in extradition.

The letter makes for stark reading. No fewer than 12 Member States  Austria, Croatia, Czechia, Finland, France, Germany, Greece, Latvia, Poland, Slovakia, Slovenia and Sweden have effectively triggered the exception. In the words of the letter an ‘absolute bar’ exists in all but two cases (Austria and Czechia who have noted their own nationals will only be extradited with their consent). The identity of the larger Member States says a good deal about their attitude. At least as far as requests made by the UK are concerned, earlier suggestions that TACA was largely a retread of the EAW system with additional knobs on seem wide of the mark. The effect of the Notification excludes 250 million or more EU citizens from extradition to the UK.

TACA does not provide for reciprocity so any action by the EU on behalf of a Member State does not bring about a situation in which the UK would refuse extradition of a UK national simply because nationals of the notified Member State would not be extraditable to the UK. And the UK has never imposed a nationality bar in respect of incoming extradition requests to the UK for its own nationals.

As the letter is careful to point out, Article LAW.SURR.83(3) imposes on those Member States in respect of which a national exception has been notified an obligation to ‘consider proceedings against its own national which are commensurate with the subject matter of the [UK] arrest warrant, having taken into account the views of the issuing State’ and with the obligation to provide appropriate support to victims and witnesses. The obligation is not to commence proceedings but to consider them, thus providing a further decision point where the requested Member State has ‘personal jurisdiction’ over the requested person who is its national and depending upon the subject matter of what would otherwise be an extradition request.

But the fact still remains: the reach of the EAW has been significantly curtailed. It will be further curtailed by the fact that under EU law a Member State in receipt of an extradition request from a third country (the UK) must, if the requested individual is a national of another Member State,  first ‘offer’ the individual for extradition to their home Member State under the EAW system. So in the case of the UK although, say, Italy has not been part of the Nationality  exception Notification, nonetheless a request to Italy for extradition of a German citizen requires Italy to notify Germany of the fact and allow the German authorities to first seek the individual’s extradition to Germany for the same crime under the EAW. The practicalities of achieving this may be questionable. The capacity to seek an EAW where there appears to be no EU law requirement for the UK to share the details of the request to the Member State of which the requested person is a national render that difficult.  And, so far, existing Nationality exceptions as against other states (in particular the US) have not had much influence on the CJEU approach. But where TACA – as an EU wide agreement – expressly provides for the UK to request the EU state of nationality to institute proceedings in Nationality exception cases if the requested person is there, one can see how that situation is more complex. Decisions to extradite from other Member States those protected in their home EU State by the Nationality exception Notification as against the UK appear ripe for challenge in the courts of Member States and the CJEU.