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Campbell v Ireland and Anor (Approved) [2021] IEHC 162 (22 February 2021)
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THE HIGH COURT
[2021] IEHC 162
[Record No. 2020/3367 P]
BETWEEN
LIAM CAMPBELL
PLAINTIFF
AND
IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS
JUDGMENT of Mr. Justice Paul Coffey delivered on the 22nd day of February 2021
1.
The plaintiff seeks a declaration that the defendants ("the State") have failed to transpose
into national law the obligations imposed upon Ireland under Council Framework Decision
2008/909/JHA of 27 November 2008 on the application of the principle of mutual
recognition to judgments in criminal matters imposing custodial sentences or measures
involving deprivation of liberty for the purpose of their enforcement in the European Union
[2008] O.J. L327/27 ("the Framework Decision"). It is common case that the State was
obliged by article 29(1) of the Framework Decision to transpose its provisions into
national law by 5 December 2011 and that it has wrongfully failed to do so. It is further
agreed that because the relevant instrument is a framework decision, it cannot have
direct effect and does not therefore confer rights or impose obligations that are part of
domestic law. It is further not in dispute that the obligation imposed on the State by
article 29(1) can only be enforced by the Commission which has in fact commenced
infringement proceedings against the State before the Court of Justice of the European
Union under Article 258 of the Lisbon Treaty. At issue therefore is whether the State's
admitted breach of its obligation under article 29(1) of the Framework Decision to
implement its provisions by 5 December 2011 is in the circumstances of this particular
case justiciable at the suit of the plaintiff as a private individual before the national courts
of this State.
Background
2.
By plenary summons dated 11 May 2020, the plaintiff sought the following declaratory
reliefs: -
(1)
a declaration that the State has failed to transpose into national law the obligations
imposed upon them under the Framework Decision;
(2)
a declaration that the State has failed to transpose into national law the obligations
imposed upon them under Council Framework Decision 2008/829/JHA; and
(3)
a declaration that the failure of the State to transpose the Framework Decisions
amounts to an infringement of the plaintiff's rights under Article 6 and 7 of the
Charter of Fundamental Rights of the European Union.
3.
At the hearing of this action, senior counsel for the plaintiff indicated that the latter two
reliefs were no longer being pursued for the following reasons: -
(1)
it was accepted that Council Framework Decision 2008/829/JHA has been given
legal effect by the Criminal Justice (Mutual Recognition of Decisions on Supervision
Measures) Act 2020 which was enacted on 26 November 2020; and
(2)
it was further accepted that the plaintiff has not as yet suffered any breach of any
right, his complaint being that he anticipates a possible breach of rights that he
does not currently have but which may accrue to him in the future.
4.
The Framework Decision is a measure that was adopted by the Council of the European
Union on 27 November 2008 pursuant to Article 34(2)(b) of the Amsterdam Treaty to
approximate the laws and regulations of Member States in the area of Justice and Home
Affairs and specifically to apply the principle of mutual recognition to judgments in
criminal matters imposing custodial sentences or measures involving deprivation of liberty
for the purpose of enforcement in the European Union.
5.
The Framework Decision replaces the provisions of previous conventions on the transfer
of sentenced persons (which are referred to in article 26(1)) with provisions that allow a
Member State to enforce a prison sentence imposed by another Member State against a
person who resides in its territory. It further sets up a system for the transfer of
convicted prisoners back to the Member State of which they are nationals or where they
normally live or to another Member State with which they have close ties in order to serve
their prison sentence there.
6.
The plaintiff is an Irish national and the subject of a European Arrest Warrant which seeks
his surrender to the Republic of Lithuania for the purposes of prosecuting him for three
offences. On 15 July 2020 the High Court (Donnelly J) made an order for his surrender
which the plaintiff has appealed to the Court of Appeal who heard the matter on 19
January 2021 following which it reserved its judgment.
7.
The plaintiff's case is that if he is surrendered, prosecuted, tried and convicted, he is
likely by reason of the gravity of the relevant offences to serve a lengthy sentence of
imprisonment in Lithuania which he could at least apply to serve in Ireland if the
declaration sought is granted by this Court and the State acts upon it to give legal effect
to the Framework Decision prior to the execution of such sentence as may be imposed on
him in the future.
8.
No evidence was advanced at the hearing of this action on behalf of the plaintiff who
instead has adopted the findings of fact which were made by the High Court that resulted
in the making of the order for his surrender on 15 July 2020 insofar as they are relevant
to this case.
9.
Those findings disclose that the plaintiff is sought by the Republic of Lithuania on foot of a
European Arrest Warrant of 26 August 2013 for the purpose of prosecuting him for three
offences: -
(1)
Preparation for a crime under article 21(1) and article 199(2) of the Criminal Code
of Lithuania which has a maximum sentence of a term of imprisonment of ten
years;
(2)
Terrorism under article 250(6) of the Lithuanian Criminal Code which has a
maximum sentence of a term of imprisonment of twenty years; and
(3)
Illegal Possession of Firearms under article 253(2) of the Lithuanian Criminal Code
which has a maximum sentence of a term of imprisonment of eight years.
10. In her judgment delivered on 26 June 2020 Donnelly J summarised the details of the
alleged offences that were given by the issuing Judicial Authority as follows: -
"(The plaintiff) is alleged to have made arrangements, while acting in an organised
terrorist group, the Real Irish Republican Army ("RIRA") to acquire a substantial
number of firearms and explosives from Lithuania and smuggle them into Ireland.
The EAW states that during the period from the end of 2006 to 2007, the
respondent made arrangements with Seamus McGreevy, Michael Campbell (his
brother), Brendan McGuigan and other unidentified persons ("named persons") to
travel to Lithuania for the purposes of acquiring firearms and explosives, including,
automatic rifles, snipper guns, projectors, detonators, timers, trotyl, and to return
them to Ireland, without specific permission from the Lithuanian Authorities and
without declaring them to the Irish customs. In the middle of 2007, (the plaintiff)
organised conspiracy meetings concerning the logistics of how to acquire the
firearms and explosives and provided money for the purpose of the weapons to the
named persons and introduced them to go to Lithuania to test the weapons,
purchase them, arrange training of how to use the weapons with the weapons
dealer, and return them to Ireland without the detection of customs. In this way,
the EAW states that (the plaintiff) together with the named persons provided
support to the terrorist group."
11. It is common case that the relevant alleged offences so described are very serious in
nature such that if the plaintiff is in fact surrendered and thereafter prosecuted, tried and
convicted in Lithuania, it is highly likely that he will be sentenced to a lengthy term of
imprisonment. It is not in dispute that if transposed into national law, the Framework
Decision would be of potential benefit to the plaintiff but only in the event that he is
ultimately convicted and sentenced to a term of imprisonment in Lithuania insofar as it
would give him an entitlement to at least apply to be transferred back to the Member
State of which he is a national, namely Ireland, so that he could serve his prison sentence
in this State.
12. Senior counsel for the State opposes the granting of any relief to the plaintiff on the
following grounds: -
(1)
that the obligation imposed by article 29(1) of the Framework Decision to transpose
the measure into national law is enforceable only by the European Commission
(which has referred Ireland to the Court of Justice in early December 2020) and is
not justiciable at the suit of a private individual before the national courts of this
State by reason of the fact that the Framework Decision is a legal instrument that is
not capable of direct effect and therefore a measure that does not impose
obligations or confer rights that are part of national law;
(2)
that the proceedings are premature by reason of the fact that the plaintiff has as
yet to be surrendered, prosecuted, tried, convicted and sentenced in respect of all
or any of the three offences for which his surrender is sought; and
(3)
that the proceedings are pointless because the Government is currently preparing
legislation to give legal effect to the Framework Decision which it expects to be
enacted by the end of this year.
13. Senior counsel for the plaintiff accepts that there is no authority to be found in any
decided case, text book or academic article which supports his entitlement under national
or European law to quia timet relief arising from a wrongful failure to implement a
framework decision. Instead he contends that the plaintiff's entitlement to relief flows
from the high-level principles of primacy and the effective enjoyment of rights which were
applied by the Court of Justice in the seminal case of Francovich v. Italy (Joined Cases C-
Council Framework Decision 2008/909/JHA
14. The key provisions of the Framework Decision that are relevant to this case are as
follows: -
(1)
article 3(1) declares that the purpose of the Framework Decision is
"to establish the rules under which a Member State, with a view to facilitating the
social rehabilitation of the sentenced person, is to recognise a judgment and
enforce the sentence";
(2)
by virtue of article 1(c) and (d), the "issuing State" is the Member State in which a
judgment is delivered whilst the `executing State' is the Member State to which the
judgment and a required accompanying `certificate' in a prescribed form is
forwarded for the purpose of its recognition and enforcement;
(3)
by virtue of article 1(b), a "sentence" means any custodial sentence or any
measure involving deprivation of liberty imposed for a limited or unlimited period of
time on account of the criminal offence on the basis of criminal proceedings;
(4)
article 4(1) sets out the criteria applicable to the forwarding of a judgment and a
certificate to another Member State and provides, inter alia, that the issuing State
may with the consent of the sentenced person where so required, forward the
relevant documents to, among others, the Member State of the nationality of the
sentenced person. The forwarding of the judgment and certificate may only take
place where the competent authority of the issuing State, where appropriate after
consultations between the competent authorities of the issuing and executing
States, is satisfied that the enforcement of the sentence by the executing State
would serve the purpose of facilitating the social rehabilitation of the sentenced
person. During such consultation, the competent authority of the executing State
may present the competent authority of the issuing State with a reasoned opinion,
that enforcement of a sentence in the executing State would not serve the purpose
of facilitating the social rehabilitation and successful reintegration of the sentenced
person into society;
(4)
article 4(5) (which is specifically relied upon by the plaintiff) provides, inter alia,
that the sentenced person may request the competent authorities of the issuing
State or the executing State "to initiate a procedure for forwarding the judgment
and certificate under the Framework Decision". Article 4(5) expressly provides,
however, that a request made pursuant to its provisions "shall not create an
obligation of [sic] the issuing State to forward the judgment together with the
certificate";
(5)
article 8(1) provides that the competent authority of the executing State "shall"
recognise a judgment that has been forwarded to it in the prescribed manner and
that it "shall forthwith" in such circumstances enforce the sentence unless it decides
to invoke one of the grounds for non-recognition and non-enforcement provided for
in Article 9 which sets out twelve such grounds;
(6)
article 12(2) requires the competent authority in the executing State to make a
final decision on the recognition of the judgment and the enforcement of the
sentence within a period of 90 days of receipt of the judgment and the certificate
unless a ground for postponement arises under article 11 or article 23(3);
(7)
article 13 provides that as long as the enforcement of the sentence in the executing
State has not begun, the issuing State may withdraw the certificate from that State
provided it gives reasons for doing so whereupon the executing State "shall" no
longer enforce the sentence.
15. Senior counsel for the plaintiff contends that the result to be achieved by article 4(5) is in
effect the conferring on a sentenced person the right to apply to the issuing State to
serve his or her sentence in, among others, the Member State of his or her nationality.
Whilst article 4(5) seeks to give to a sentenced person the entitlement "to initiate a
procedure for forwarding the judgment and certificate under the Framework Decision",
the issuing State is not obliged to comply with such a request and is not expressly obliged
to give reasons for not so doing. Moreover, even where an issuing State has complied
with such a request and forwarded the judgment and certificate to the executing State, it
retains an entitlement to withdraw the certificate provided it gives reasons for so doing
and enforcement in the executing State has not begun.
16. It follows from this that whilst the Framework Decision seeks to confer on the sentenced
person what is in effect a right to apply to the issuing State to initiate a procedure that
may result in the execution of the judgment in the Member State of the nationality of that
person, there is no right to repatriation per se and the issuing State is not under any
obligation to forward the judgment and certificate, not even where such would be in the
interests of the sentenced person.
The nature and legal effect of a Council Framework Decision
17. As the plaintiff's case primarily concerns the legal consequences that follow from the
failure of a Member State to implement a framework decision by its prescribed specified
date, it is important to consider the nature and legal effect of such a legal instrument in
its proper historical context.
18. The Maastricht Treaty of 1992 established the European Union and its "three pillars", the
pillars being the European Communities, a Common Foreign and Security Policy and
Cooperation in Justice and Home Affairs.
19. Within each "pillar", a different balance was struck between the use of supranational
legislation and intergovernmental cooperation. Thus, prior to the Lisbon Treaty of 2009,
the EU could not enact ordinary legislation by way of regulations or directives in the area
of Justice and Home Affairs but instead could only proceed by way of intergovernmental
cooperation, initially by way of "joint action" under the Maastricht Treaty of 1992 and
thereafter by way of "Council Framework Decision" under the Amsterdam Treaty of 1997.
20. The Council Framework Decision is therefore a legal instrument of intergovernmental
cooperation under the "Third Pillar" and derives its legal effect from Article 34 of the
Amsterdam Treaty whereunder such a decision is binding upon a Member States only "as
to the result to be achieved" but does "not entail direct effect". Insofar as the making of
such a decision left to the national authorities "the choice of form and methods" to
achieve the result, framework decisions are at first blush similar to directives but unlike
directives, framework decisions are not capable of direct effect and were prior to the
Lisbon Treaty unenforceable by the Commission against any Member State before the
Court of Justice and were subject only to a limited and conditional jurisdiction of that
Court.
21. The Lisbon Treaty entered into force on 1 December 2009 and replaced the old three
pillars of Maastricht with a new European Union. For the first time the EU's supranational
competence (albeit on a shared competence basis) was extended into the area of
"freedom, security and justice" (Part Three, Title V TFEU) and, in particular, to "judicial
cooperation in criminal matters" (Part Three, Title V, Chapter 4 TFEU) by extending the
"ordinary legislative procedure" to the "mutual recognition of judgments and judicial
decisions". Article 288 of the TFEU provides that "the Union's competences" are
exercisable by "regulations, directives, decisions, recommendations and opinions" but
does not include within this exhaustive list "framework decisions" which were clearly
thereby abolished sub silentio, no doubt because they were seen by the drafters of the
Treaty to be an outmoded tool of intergovernmental cooperation that was no longer
suitable to a new era of supranational competence in the area of what had previously
been referred to as "Justice and Home Affairs".
22. The legal status and effect of the framework decisions that were still in force at the time
of the entry into force of the Lisbon Treaty on 1 December 2009 were provided for in
Protocol (No. 36) of the TFEU. By virtue of Article 9 of the Protocol, framework decisions
that had not been subject to repeal, annulment or amendment continued to have the
legal effect attributed to them under Article 34(2)(b) of the Amsterdam Treaty. Since the
expiry of a five year transitional period on 1 December 2014, however, such framework
decisions can now by virtue of Article 10 of the Protocol be enforced by the Commission
against Member States before the Court of Justice under the infringement procedure for
non and incorrect implementation and are also now fully subject to the jurisdiction of the
Court.
The remedy given in Francovich v. Italy
23. Whilst conceding that this case concerns not a directive but a framework decision and not
an accrued right that has been breached but rather the anticipated breach of a right that
may or may not accrue to the plaintiff at an unknown time in the future, senior counsel
for the plaintiff nonetheless contends that the principles which underlay the finding of
state liability in Francovich v. Italy apply mutatis mutandis to this case.
24. The significance of Francovich is that it was the first case in which the European Court of
Justice created a remedy under community law (now EU law) that is directly enforceable
by individuals in the national courts of Member States to protect Community law rights
(now EU law rights) other than those which are directly effective.
25. In that case, the applicants were the employees of a company that had become insolvent
as a result of which they were owed significant sums by way of unpaid income which
would have been guaranteed and paid had Italy implemented by its prescribed specified
date Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the
member states relating to the protection of employees in the event of the insolvency of
their employer [1980] O.J. L283/23 ("Directive 80/987/EEC") whereunder it had an
obligation to organise and finance a guarantee system save that the payment obligation
would lie not with the State but with a guarantee institution. The Court of Justice found
that whilst the obligation to organise and finance the guarantee system was
unconditional, the provisions in Directive 80/987/EEC did not identify the relevant
institution that was liable to discharge the payment obligation and therefore lacked the
precision necessary to be enforceable against the Member State before its national courts.
Having found that the wording of Directive 80/987/EEC was insufficiently precise to allow
for direct effect, the Court went on to hold that the Italian State was nonetheless liable in
damages to the applicants on the principle of community law that Member States are
obliged to make good loss and damage caused to individuals by breaches of community
law for which they could be held responsible.
26. The Court of Justice gave the following reasons for its finding that state liability existed
"as a matter of principle": -
"31. It should be borne in mind at the outset that the EEC Treaty has created its own
legal system, which is integrated into the legal systems of the Member States and
which their courts are bound to apply. The subjects of that legal system are not
only the Member States but also their nationals. Just as it imposes burdens on
individuals, Community law is also intended to give rise to rights which become part
of their legal patrimony. Those rights arise not only where they are expressly
granted by the Treaty but also by virtue of obligations which the Treaty imposes in
a clearly defined manner both on individuals and on the Member States and the
Community institutions (see the judgments in Case 26/62 Van Gend en Loos [1963]
ECR 1 and Case 6/64 Costa v. ENEL [1964] ECR 685).
32. Furthermore, it has been consistently held that the national courts whose task it is
to apply the provisions of Community law in areas within their jurisdiction must
ensure that those rules take full effect and must protect the rights which they
confer on individuals (see in particular the judgments in Case 106/77
Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629,
paragraph 16, and Case C-213/89 Factortame [1990] ECR 1-2433, paragraph 19.)
33. The full effectiveness of Community rules would be impaired and the protection of
the rights which they grant would be weakened if individuals are unable to obtain
redress when their rights are infringed by a breach of Community law for which a
Member State can be held responsible.
34. The possibility of obtaining redress from the Member State is particularly
indispensable where, as in this case, the full effectiveness of Community rules is
subject to prior action on the part of the state and where consequently, in the
absence of such action, individuals cannot enforce before the national courts the
rights conferred upon them by Community law.
35. It follows that the principle whereby a State must be liable for loss and damage
caused to individuals as a result of breaches of Community law for which the State
can be held responsible is inherent in the system of the Treaty.
36. A further basis for the obligation of Member States to make good such loss and
damage is to be found in Article 5 of the Treaty, under which Member States are
required to take all appropriate measures, whether general or particular to ensure
fulfilment of their obligations under Community law. Among these is the obligation
to nullify the unlawful consequences of a breach of Community law (see, in relation
to the analogous provision of Article 86 of the ECSC Treaty, the judgment in Case
27. Having found that it was a principle of community law that the Member States are obliged
to "make good" loss and damage caused to individuals by breaches of community law for
which they may be held responsible, the Court of Justice went on to state the conditions
under which such liability gave rise to "a right to reparation" where, as in that case, the
breach of community law arose from the failure of a Member State to fulfil its obligation
to implement a directive. The Court stated that in such a case, the Member State's
liability to give a right of reparation did not arise unless the following three conditions
were met: -
(1)
the result prescribed by the directive should entail the grant of rights to individuals;
(2)
it should be possible to identify the contents of those rights on the basis of the
provisions of the directive; and
(3)
a causal link should exist between the breach of the State's obligation and the loss
and damage suffered by the injured parties.
28. Having modified the second condition to require that the rule of law breached must be
serious, the Court of Justice has since accepted that failure to take any measure to
transpose a directive in order to achieve the results it prescribes within the period laid
down for that purpose constitutes per se a serious breach of Community law.
29. Prior to Francovich Community law required the national courts of Member States to
ensure the effective enjoyment of Community law rights by applying Community law and
giving it primacy where it was directly effective against Member States and, where not, by
adopting a communautaire interpretation of national laws so that national courts were
required to construe national law conformably with Community law. The significance of
Francovich is that it was the first case in which the Court of Justice applied the principles
of primacy and effective enjoyment of rights to afford individuals the possibility of
obtaining redress in a national court against a Member State where their rights have been
infringed by a breach of Community law(now EU law) attributable to that Member State.
30. The remedy given by Francovich is limited in two important respects that are relevant to
this case. First, it is a remedy that was characterised by the Court of Justice as a "right of
reparation" and applies therefore only where the breach of EU law complained of has
caused loss and damage. Secondly, where the breach complained of is the wrongful
failure of a Member State to implement a directive by a prescribed specified date, the
injured party cannot recover compensation unless he or she can demonstrate compliance
with all three of the limiting criteria (as modified) that were set out by the Court. Critical
to the availability of the remedy in such a case therefore is proof that the wrongful failure
by the Member State to implement a directive has resulted in the impairment of the
effective enjoyment of a right that ought otherwise to have accrued to the injured party
had the directive been properly implemented. Accordingly, the remedy is not available to
protect a right entailed by a directive that has not accrued or which may never accrue to
a claimant in the future. It follows from this that even if it were to be accepted that the
remedy given by Francovich is not confined to the non or incomplete or incorrect
transposition of secondary EU legislation like directives, the three conditions specified by
the Court of Justice would nonetheless continue to apply whatever legal instrument of EU
law is being relied upon.
Irish authorities relied on by the plaintiff
31. Senior counsel for the plaintiff conceded in argument that Francovich does not speak to
quia timet cases where the impairment of the effective enjoyment of a right entailed by a
directive has not yet occurred but is merely anticipated. Instead he opened and relied on
two judgments which, he suggested, afforded examples of the High Court granting
declaratory relief in circumstances similar to this case where the effect of the relief was
"purely prospective".
32. The first of these cases, Tate v. Minister for Social Welfare [1995] 1 I.R. 418 concerned
claims arising from Council Directive 79/7/EEC of 19 December 1978 on the progressive
implementation of the principle of equal treatment for men and women in matters of
social security [1978] O.J. L6/24 ("Council Directive 79/7/EEC") where the reliefs sought
and granted (including two awards of damages) arose primarily from a holding of the
Court of Justice in an Article 177 reference in a previous case, Cotter and McDermott v.
Minister for Social Welfare (Case 286/85) [1987] E.C.R. 1453. In that case, the Court of
Justice held that article 4(1) of Council Directive 79/7/EEC was a measure that had direct
effect from 23 December 1984 (being the date by which it was due to be implemented) so
that in the absence of measures implementing it from that date, women were entitled to
have the same rules applied to them as were applied to married men. Carroll J. expressly
held that the rights of the plaintiffs in that case came from Council Directive 79/7/EEC
which had "direct effect" from the date on which the State failed in its obligation to
implement Council Directive 79/7/EEC. She went on to state that once the directive under
scrutiny took on "the mantle of direct effect" every type of action which would be
available in the national domestic law is available "to ensure observance of the Directive".
As can be readily seen Tate concerned the vindication of rights under a directive that had
already acquired direct effect, and which had thereby vested rights in the plaintiffs,
eleven years before the case came before the High Court for hearing. The decision does
not, therefore, support the proposition that a national court can grant declaratory relief
quia timet to ensure the effective enjoyment of a right entailed by a directive that has not
yet accrued and which may or may not accrue to a plaintiff at some unknown time in the
future.
33. Senior counsel for the plaintiff further relied on the case of P. v. The Chief Superintendent
of the Garda National Immigration Bureau and Ors [2015] IEHC 222 where the applicant
who had been charged with misuse of drugs offences sought declaratory and other relief
on the basis that the first named respondent had wrongfully failed to identify her as a
victim of human trafficking in breach of her rights under Parliament and Council Directive
2011/36/EU of 5 April 2011 on preventing and combatting trafficking in human beings
and protecting its victims [2011] O.J. L101/1 ("Parliament and Council Directive
2011/36/EU") and further on the basis that the said directive had not been properly
transposed into Irish law. O'Malley J. found that there had been inadequate transposition
of Parliament and Council Directive 2011/36/EU but further held that:
"This therefore being a directive intended to confer rights on individuals, it may be
relied upon directly".
34. In her subsequent ruling as to the appropriate reliefs to be ordered by the Court she
noted that it had already been agreed between the parties that the applicant was entitled
on foot of her judgment to declaratory relief and to damages. On foot of that agreement
she made a declaration that the State had failed to adequately transpose the Directive
insofar as it failed to adopt an appropriate mechanism for the early identification of and
provision of assistance to victims of human trafficking who are suspected of involvement
in criminal offences and made a further declaration that the applicant's application to be
considered as a victim of human trafficking was not assessed in a manner which was
compliant with the Directive. She further awarded the Plaintiff general damages in the
sum of 30,000 for breach of her rights.
35. P is a case in which damages and declaratory relief were granted because the Court found
that there had been a breach of rights entailed by a directive that could be relied upon
directly by the applicant. It is not, therefore, an example of the High Court granting
"purely prospective" declaratory relief in respect of an anticipated breach of rights
entailed by a directive that had not at the time of the hearing of the case accrued to the
plaintiff. No less significantly, it is not a case in which there appears to have been any
consideration given by counsel or the Court to the issue of principle that arises in this
case.
Conclusions
36. Since Francovich was decided in 1991, there has been no decided case which has either
extended the application of the remedy of state liability to framework decisions or which
has dispensed with the three limiting criteria (as modified) which apply to all cases
involving the wrongful failure by a Member State to implement a directive by its
prescribed specified date. Accordingly, the principle of state liability remains a remedy
that is enforceable by private individuals in national courts against Member States but is
applicable only to directives and is, in a case arising from the wrongful failure to
implement a directive, subject to the three limiting conditions (as modified) that were set
out by the Court of Justice in Francovich. Although the remedy given by Francovich is "a
right of reparation" there is no reason in principle why a national court cannot, where
necessary or appropriate, also grant adjunctive declaratory relief particularly where the
wrongful impairment of the full effectiveness of a right entailed by a directive is
continuing.
37. This Court cannot in the absence of authority or reason extend the protection of rights
that is given by Francovich to rights entailed by framework decisions. Framework
decisions have a history and legal character that is distinct and wholly different to that of
directives to which they have similarities but not equivalence. It is not axiomatic that the
results to be achieved under a framework decision are amenable to the same protection
and redress in a national court of a Member State as is applied to the wrongful
impairment of the effective enjoyment of rights entailed by a directive. National courts
are required to take account of all the essential characteristics of EU law including the fact
that only some of the provisions of that law have direct effect. Framework decisions do
not have direct effect because they were adopted on the basis of the former third pillar of
the European Union and derive their effect solely under Article 34(2)(b) of the Amsterdam
Treaty. Whilst they cannot have direct effect, national courts and authorities nonetheless
have an obligation to interpret national law in conformity with EU law (subject to certain
limits) including framework decisions from the date prescribed for their implementation.
Framework decisions are thus sui generis and relics of a bygone era when Justice and
Home Affairs were not the subject of the supranational competence of the EU but were
rather the subject of enhanced intergovernmental cooperation and action. Unlike a
directive, a framework decision is not a supranational legislative act but rather an ad hoc
legal instrument of intergovernmental action that was designed to be unenforceable by
the Commission against Member States before the Court of Justice for the entirety of the
period that such decisions were made. It would be highly anomalous indeed if the drafters
of the Amsterdam Treaty, who must be taken to have been cognisant of the principle of
State liability, intended framework decisions to be designedly unenforceable by the
Commission against Member States before the Court of Justice but to be nonetheless
enforceable by private individuals in the national courts of Member States. Although by
virtue of Protocol (No. 36), framework decisions can now be enforced by the Commission
against Member States before the Court of Justice, their legal character has not changed
insofar as such measures continue to derive the entirety of their legal character from the
Amsterdam Treaty. At all events, senior counsel for the plaintiff does not rely on Protocol
(No. 36) to the Lisbon Treaty to advance his case.
38. Even assuming without deciding that the principle of state liability can be extended to the
wrongful failure by a Member State to implement a framework decision, the three
conditions attaching to liability would continue to apply. Accordingly, as the remedy
identified in Francovich applies only where there is a causal link between the non-
implementation of the relevant legal instrument and loss and damage that has been
suffered by the individual seeking relief, there is an insuperable difficulty for the plaintiff
in that the remedy is not available quia timet to redress loss and damage that is
anticipated at some unknown time in the future but which has not yet occurred and which
may never occur whether because, as in this case, the plaintiff may never become a
"sentenced person" or because the State will have implemented the Framework Decision
by the time that he has.
39. It may well be that in a future case it will be decided that national courts have a quia
timet jurisdiction to intervene and grant declaratory relief where the person seeking
redress is in imminent peril of an inevitable impairment of the effective enjoyment of a
right entailed by a directive or even a framework directive, but this is not such a case.
The plaintiff has not, for example, placed evidence before the court to suggest that he
has consented to his surrender or that he intends to plead guilty to the charges that are
the subject of the European Arrest Warrant. On the contrary, and as is his absolute
entitlement, he has contested his surrender both at first instance and on appeal and has
not indicated his attitude to the relevant charges or given even an estimation as to when
the relevant trial is likely to conclude or disclosed as to whether he intends to appeal
against conviction if he is not acquitted.
40. I am in any event satisfied that the granting of a declaration in this case would be utterly
pointless and would serve no useful purpose in circumstances in which even senior
counsel for the plaintiff readily acknowledged that the declaration that he is seeking on
behalf of his client does not of itself require the State to take any action but is instead
merely an "intensely modest" and "gentile and polite relief" that will in effect do no more
than encourage the State to continue to do what it is already doing, namely, preparing
legislation to give legal effect to the Framework Decision within the current year.
41. For the reasons stated above, I am satisfied that the obligation imposed on the State by
article 29(1) of the Framework Decision is not justiciable at the suit of the plaintiff before
this Court in the circumstances of this case for which reason I will dismiss the plaintiff's
claim and refuse the relief sought.
Result: The action was dismissed
