Opinion of the Advocate General — ECLI:EU:C:2018:644
Date: 2018-08-07
Language of the case: English
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Preliminary reference - urgent procedure
Origin: Ireland

summary, I do not see that the issue of a lack of jurisdiction of the Court after 29 March 2019 constitutes an impediment to R O’s surrender to the UK. Concluding remarks 78. It is apparent from the assessment above that the execution of an EAW from the UK on the basis of the Framework Decision should go ahead just as it would if the UK had not, pursuant to Article 50 TEU, notified the European Council of its intention to leave the EU. The case at issue is not, therefore, about the possible intricacy of a transitional or implementation period, simply because there is not (yet) such a period in the law as it stands. Ergo, the EU’s rich experience in transitional periods which, in many forms, (75) are nothing new to Union law, (76) cannot be resorted to at this moment in time. (77) 79. Brexit constitutes terra incognita in terms of EU law. (78) Little is known about the arrangements to be put in place between the EU and the UK after 29 March 2019, neither in general nor regarding the system of the EAW in particular. (79) What is sure is that after withdrawal from the EU, at some point the tide will be receding. EU law will be flowing down the rivers and out of the estuaries. (80) 80. But as regards the case at issue, it is still business as usual. 81. It should also be added that the Cour de cassation (France), in a decision of 2 May 2018, saw no reason to stay proceedings pending a reply from the Court in a(nother) request for a preliminary ruling on the consequences of Brexit for the Framework Decision. (81) 82. I do not, therefore, see any reason why the referring court should alter its legal assessment in any way, by mere reason of the UK’s withdrawal notification of 29 March 2017. Conclusion 83. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the High Court (Ireland) as follows: In a situation in which a Member State has, (1) in accordance with Article 50(2) TEU, notified the European Council of its intention to withdraw from the European Union and (2) in accordance with the relevant provisions of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, issued a European arrest warrant (EAW) with a view to surrender by another Member State of a requested person, the legal assessment to be carried out by the judicial authorities of that other Member State when executing the EAW is not altered by virtue of the abovementioned withdrawal notification. 1 Original language: English. 2 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24, ‘the Framework Decision’). 3 See Conclusions of the Tampere European Council of 15 and 16 October 1999, referred to in recital 1 of the Framework Decision. 4 Set out by the Irish Supreme Court in Minister for Justice v Rettinger [2010] IESC 45. 5 See judgment of 5 April 2016, Aranyosi and CăldăraruAranyosi and CăldăraruAranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198). 6 Case C-191/18. 7 The request for a preliminary ruling was made by decision of 12 March 2018. KN, who has been found guilty, in the UK, of tax fraud offences and sentenced there to prison sentences, absconded to Ireland while on bail waiting sentence. Subsequently, a UK court issued an EAW against him. As in the present case, the Supreme Court would like to know, in essence, whether the implications of Brexit are such as to compel it to alter its legal examination of the case. A request by the referring court that the Court apply an expedited procedure pursuant to Article 105(1) of its Rules of Procedure was refused by order of the President of the Court. In the order it was held that the fact that the UK may, in the near future, no longer form part of the EU and, as the case may be, no longer be subject to EU law, in particular to the provisions of the Framework Decision, does not in itself create a situation of urgency for the parties in the main proceedings. See order of the President of the Court of 30 May 2018, KN (C‑191/18, not published, EU:C:2018:383, paragraph 21). 8 Which fully comply with Article 94 of the Rules of Procedure of the Court of Justice. 9 See, by way of example, judgment of 28 September 2006, Gasparini and OthersGasparini and Others (C‑467/04, EU:C:2006:610, paragraph 44). 10 Cf. Article 267(2) TFEU. See also my Opinion in AY(Arrest Warrant - Witness) (C‑268/17, EU:C:2018:317, points 25 and 26). 11 Since judgment of 3 May 2007, Advocaten voor de WereldAdvocaten voor de WereldAdvocaten voor de WereldAdvocaten voor de WereldAdvocaten voor de Wereld (C‑303/05, EU:C:2007:261, paragraph 28). 12 Of the Council of Europe. See European Convention on Extradition. Text available at: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/024. 13 See judgments of 5 April 2016, Aranyosi and CăldăraruAranyosi and CăldăraruAranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 75); of 10 November 2016, Kovalkovas (C‑477/16 PPU, EU:C:2016:861, 25); and of 10 November 2016, Poltorak (C‑452/16 PPU, EU:C:2016:858, paragraph 24). 14 See, moreover, my Opinion in AY(Arrest Warrant - Witness) (C‑268/17, EU:C:2018:317, point 42). 15 Save in exceptional circumstances, as explained in point 43 below. 16 See judgments of 1 December 2008, Leymann and PustovarovLeymann and PustovarovLeymann and Pustovarov (C‑388/08 PPU, EU:C:2008:669 paragraph 51), and of 16 November 2010, Mantello (C‑261/09, EU:C:2010:683, paragraph 37). 17 See judgment of 29 June 2017, Popławski (C‑579/15, EU:C:2017:503, paragraph 19 and the case-law cited). 18 For more details, see my Opinion in AY(Arrest Warrant - Witness) (C‑268/17, EU:C:2018:317, point 45 et seq.). 19 The conditions listed in Article 5 of the Framework Decision are exhaustive, see judgments of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 36); of 28 June 2012, West (C‑192/12 PPU, EU:C:2012:404, paragraph 55); and of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 38). 20 See also judgment of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628, paragraph 51). 21 Since judgment of 20 February 1979, Rewe-Zentral (120/78, EU:C:1979:42, paragraph 14, ‘Cassis de Dijon’). 22 It appears that the English language versions of the Court’s cases sometimes refer to ‘mutual confidence’ instead of ‘mutual trust’. See, by way of example, judgment of 5 April 2016, Aranyosi and CăldăraruAranyosi and CăldăraruAranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 77). I understand that these terms have exactly the same meaning and can be used in an interchangeable manner. 23 See, by way of example, judgment of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628, paragraph 49). 24 See, to that effect, judgments of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 78 to 80), and of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraphs 37 to 63). 25 See also Jeney, P., ‘The European Union’s Area of Freedom, Security and Justice without the United Kingdom: legal and practical consequences of Brexit’, ELTE Law Journal, 2016, pp. 117-137, at pp. 126-127. That author goes on to add that the EAW ‘also proved to be the most problematic mutual recognition instrument’, the proportionality of its use, the lack of fundamental rights guarantees and the absence of fundamental rights-based grounds for refusal remaining recurring issues of concern in its application and interpretation. 26 See Lenaerts, K., ‘La vie après l’avis: exploring the principle of mutual (yet not blind) trust’, 54 Common Market Law Review 2017, pp. 805-840, at p. 806. 27 See Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454, paragraph 191). 28 Judgment of 5 April 2016 (C‑404/15 and C‑659/15 PPU, EU:C:2016:198). On a normative level, this results for the Court from Article 1(3) of the Framework Decision, pursuant to which that decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU: see, in particular paragraphs 74 and 83 et seq. as well as the grounds of the judgment. See also judgments of 25 July 2018, ML (Detention conditions in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 117); of 25 July 2018, LM (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraphs 47, 59, 73 and 79); and Advocate General Tanchev’s Opinion in that case (C‑216/18 PPU, EU:C:2018:517, points 5, 55, 59 and 121). 29 This is an absolute provision from which no derogation is possible: see judgment of 5 April 2016, Aranyosi and CăldăraruAranyosi and CăldăraruAranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 85 and 86, with express reference to Articles 3 and 15(2) of the ECHR). It is central to the rule of law. 30 See judgment of 5 April 2016, Aranyosi and CăldăraruAranyosi and CăldăraruAranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89). Apart from judgments (national or international, in particular the European Court of Human Rights), such information can be obtained from decisions, reports and other documents of international organisations, the leading body being the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe, which administers the corresponding convention. 31 See judgment of 5 April 2016, Aranyosi and CăldăraruAranyosi and CăldăraruAranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 92). 32 It thus raised issues relating to the risk that R O might be subjected to inhuman and degrading treatment in detention if surrendered, pursuant to which the issuing judicial authority had provided information as to how that risk was to be addressed. I gather that the referring court is satisfied with this information, given that it does not refer a separate question on the issue of Article 4 of the Charter but only addresses it incidentally in the question on the withdrawal of the UK from the EU. 33 Obviously, as pointed out in Article 50(1) TEU, in accordance with its own constitutional requirements. 34 See also Hillion, Chr., ‘Withdrawal under Article 50 TEU: an integration-friendly process’, 55 Common Market Law Review 2018, Issue 2/3, pp. 29-56, at p. 53. 35 The agreement is to be negotiated in accordance with Article 218(3) TFEU. Many legal aspects concerning the actual process remain unclear, see e.g. Łazowski, A., ‘Be Careful What You Wish for: Procedural Parameters of EU Withdrawal’, in C. Closa (ed.), Secession from a Member State and Withdrawal from the European Union, Cambridge University Press, Cambridge, 2017, pp. 234-256, at p. 241, and Eeckhout, P., Frantziou, E., ‘Brexit and Article 50 TEU: a constitutionalist reading’, 54 Common Market Law Review, 2017, pp. 695-734. 36 There is merely the text of a draft agreement, issued by the European Commission Task Force for the Preparation and Conduct of the Negotiations with the UK under Article 50 TEU. It was sent to the ‘EU27 Member States’, to the Brexit Steering Group of the European Parliament and published on the task force website on 19 March 2018 so as to ‘highlight … the progress made in the negotiation round of 16-18 March 2018’. It is available at: https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf. It is clear that this is a working document and a progress report which has been published for reasons of transparency. It is also subject to the caveat that ‘nothing is agreed until everything is agreed’. Both these principles are laid down as ‘core principles’ in point 2 of the ‘Guidelines following the United Kingdom’s notification under Article 50 TEU’ (EUCO XT 20004/17), adopted by the European Council on 29 April 2017 on the basis of Article 50(2) TEU, available at: http://www.consilium.europa.eu/media/21763/29-euco-art50-guidelinesen.pdf. 37 Presumably, in his argument R O relies on Article 1(3) of the Framework Decision, just as the Court did in its judgment of 5 April 2016, Aranyosi and CăldăraruAranyosi and CăldăraruAranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198). 38 In the wording employed by R O. 39 Starting with the Member State in question, its economic operators and citizens, through to the Union of the other Member States with their economic operators and citizens, not to speak of third-country nationals enjoying rights derived from EU law, whatever their form. 40 Which strive to create an ever closer union among the peoples of Europe (recital 13 of the EU Treaty), are based on common values (Article 2 TEU) and which have a number of objectives (Article 3 TEU – the four primary objectives being the creation of an area of freedom, security and justice, an internal market, economic and monetary union and a common external presence) which are achieved by the range of policies enumerated in the FEU Treaty. 41 Article 2 TEU. 42 Let us imagine that the execution of the EAW in respect of R O occurred on 28 March 2017. In the absence of a withdrawal notification, the referring court would have executed the EAW. But as regards the situation post surrender for the individual concerned, the situation would be no different from that in the present case. 43 Even if, as in the case at issue, unintentional, as far as the UK is concerned. 44 See, in this connection, judgment of 25 July 2018, LM (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 72). 45 ‘Theoretically’ is also the view of the referring court, it should be stressed. 46 Another third State, dare I specify, given that R O refers to the period post 29 March 2019. 47 Neither do I purport to have initially coined this expression nor do I, as will be seen in this passage, attribute quite the same meaning to it as is habitually being done. 48 And yet, as the case may be under national criminal law, the authorities of the issuing Member State (in casu the UK), in their assessment post surrender, may be compelled to apply, in a specific case, those provisions (under the Framework Decision or national law) which are more favourable to the person surrendered. 49 It should be pointed out, however, that by virtue of Clause 2(1) of the European Union (Withdrawal) Act 2018, which has received Royal assent on 26 June 2018, ‘EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day’. My emphasis. The text of the European Union (Withdrawal) Act 2018 is available at http://www.legislation.gov.uk/ukpga/2018/16/pdfs/ukpga_20180016_en.pdf. 50 See Article 53 TEU. 51 Obviously, this is not to say that the legal reality of the post-Brexit relationship, whatever its form, between the EU and the UK in the criminal justice field, of which the Framework Decision forms part, will not be complex: see in this connection Mitsilegas, V., ‘Cross-border criminal cooperation after Brexit’, in: M. Dougan (ed.), The UK after Brexit. Legal and policy challenges, intersentia, Cambridge, Antwerp, Portland 2017, pp. 203-221, at p. 217. 52 Mutual trust is widely – and rightly – seen as forming part of the DNA of the area of freedom, security and justice: see Labayle, H., ‘Faut-il faire confiance à la confidence mutuelle ?’, in K. Lenaerts (ed.), Liber Amicorum Antonio Tizzano, De la Cour CECA à la Cour de l’Union: le long parcours de la justice européenne, G. Giappichelli Editore, Turin 2018, pp. 472-485, at p. 479. 53 Quite to the contrary. In the UK’s withdrawal notification of 29 March 2017, the Prime Minister, in her letter to the President of the European Council, stressed her desire for a ‘deep and special partnership’ between the EU and the UK once the UK left. She added that ‘[w]e want to make sure that Europe remains strong and prosperous and is capable of projecting its values, leading in the world and defending itself from security threats. We want the United Kingdom, through a deep and special partnership with a strong European Union, to play its full part in achieving those goals.’ My emphasis. Moreover, she specifically stressed that the EU and UK ‘should continue to work together to advance and protect our European values. Perhaps now more than ever, the world needs the liberal and democratic values of Europe.’ The letter containing the withdrawal notice is available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/604079/Prime_Ministers_letter_to_European_Council_President_Donald_Tusk.pdf. Since the withdrawal notification, it cannot be said that the UK’s position has shifted in this respect. 54 Moreover, during the hearing, the representative of the United Kingdom took care to remind the Court that the UK is a founding member of the Council of Europe and was one of the first states to ratify the ECHR. I may be forgiven for adding that while as recently as 2016, the then UK Home Secretary pleaded for the UK to leave the ECHR (see https://www.bbc.co.uk/news/uk-politics-eu-referendum-36128318 and https://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum), the current government policy does not seem to be endorsing such a position (see https://www.thetimes.co.uk/article/uk-would-not-leave-human-rights-court-if-conservatives-re-elected-3rpblw9zp). 55 Which has, as seen in the Legal framework above, transposed the provisions of the Framework Decision into United Kingdom law. 56 See Clause 2(1) of the European Union (Withdrawal) Act 2018. Obviously, this clause is to be seen in context and is subject to all the other clauses of that act (on issues such as supremacy, the status and interpretation of retained EU law and the implementation of the withdrawal agreement, to name but a few). 57 European Convention on Extradition. Text available at: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/024. 58 Article 14 of the European Convention on Extradition. 59 Article 15 of the European Convention on Extradition. This is not to deny that this convention may be considerably less effective than the Framework Decision (see, with respect to Council of Europe conventions in general, Davidson, R., ‘Brexit and criminal justice: the future of the UK’s cooperation relationship with the EU’, in Criminal Law Review 2017, pp. 379-395, at p. 385). But this is inherent in the process of withdrawing, as it goes without saying that that convention as an instrument of public international law does not have the effect of an act of EU law. 60 See judgments of 1 December 2008, Leymann and PustovarovLeymann and PustovarovLeymann and Pustovarov (C‑388/08 PPU, EU:C:2008:669), and of 28 June 2012, West (C‑192/12 PPU, EU:C:2012:404). 61 In EU law, surrender under the Framework Decision refers to a situation between two Member States, whereas extradition in general refers to a situation between a Member State and a third country. However, when the third countries are closely linked to the EU, such as in the case of Member States of the European Economic Area, the term resorted to is ‘surrender procedures’. See e.g. Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway, OJ 2006 L 292, p. 2. This agreement is not yet in force (see footnote 79 of this Opinion). 62 Judgment of 5 April 2016 (C‑404/15 and C‑659/15 PPU, EU:C:2016:198). 63 See judgment of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630, paragraphs 56 to 58). 64 On possible scenarios regarding judicial review in the area of freedom, security and justice after Brexit, see Curtin, D., ‘Brexit and the EU Area of Freedom, Security’, in F. Fabbrini, The law and politics of Brexit, OUP, Oxford, 2017, pp. 183-200, at pp. 186 and 187, and Weyembergh, A., ‘Consequences of Brexit for European criminal law’, New Journal of European Criminal Law, 2017, pp. 284-299, at pp. 295-296. As regards preliminary references stemming from the UK, see Knaier, R., Scholz, M., ‘Rechtsschutz in Großbritannien und der EU nach dem “Brexit”’, Europäisches Wirtschafts- und Steuerrecht, 2018, pp. 10-17, at pp. 15-16. Concerning dispute-settling between the EU and the UK in general, see Fennelly, N. ‘Brexit: legal consequences for the EU. Dispute-settling between the EU and the UK’, 18 ERA Forum, 2018, pp. 493-511. 65 Articles 31(a) and (b) and 34(2)(b). 66 The ‘Amsterdam’ legal regime was applicable between 1 May 1999 and 31 January 2003. For a concise overview of this regime see Peers, S., EU Justice and Home Affairs Law (Volume II: EU Criminal Law, Policing, and Civil Law), 4th ed., OUP, Oxford, 2016, pp. 14‑22. 67 See former Article 35(2) TEU: ‘By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1.’ See also former Article 35(3) TEU, pursuant to which such a declaration had to specify whether only courts of last instance or all courts could refer questions to the Court. 68 See a contrario list provided for in OJ 2010 L 56, p. 14. Indeed, 19 Member States had, over the years pursuant to its entry into force made a declaration: 12 of the (15 Amsterdam) Member States at the time (all bar UK, Ireland and Denmark) and 7 of the 12 Member States that joined the Union in 2004 and 2007 (all bar Estonia, Poland, Slovakia, Bulgaria and Malta). See also, Grzelak, A., ‘Aspekty prawne jurysdykcji Trybunału Sprawiedliwości WE do orzekania w trybie prejudycjalnym w III filarze UE (interpretacja art. 35 ust. 1-4 TUE)’, in J. Barcz, A. Gajda, A. Grzelak, T. Ostropolski (eds), Postępowanie prejudycjalne w Przestrzeni Wolności, Bezpieczeństwa i Sprawiedliwości Unii Europejskiej, LexisNexis, Warsaw 2007, pp. 19-42, at p. 29. 69 Nor in the five years after the entry into force of that Treaty, see point 76 of this Opinion. 70 On 1 December 2009. 71 As a result of Article 10(1) and (3) of Protocol (No 36) on transitional provisions, the jurisdiction of the Court continued to be governed, for all Member States except the UK, until 30 November 2014 by former Article 35 TEU. See in more detail, Lenaerts, K., ‘The contribution of the European Court of Justice to the area of freedom, security and justice’, 59 International and Comparative Law Quarterly 2010, pp. 255-301, at pp. 269-270. Regarding the UK, the situation is governed by Article 10(4) and (5) of Protocol (No 36). Pursuant to that provision, the UK exercised its right to an opt-out and, by letter of 24 July 2013, notified the President of the Council that it did not accept the powers of the EU institutions regarding the EU acts adopted in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon (see Council Document 12750/13, ‘UK notification according to Art. 10(4) of Protocol No 36 to TEU and TFEU’, 26 July 2013). Subsequently, the UK opted back into 35 of the measures it had previously opted out of (see Council Document 15398/14, Notification of the United Kingdom under Article 10(5) of Protocol 36 to the EU Treaties’, 27 November 2014 and Council Decision 2014/857/EU of 1 December 2014 concerning the notification of the United Kingdom of Great Britain and Northern Ireland of its wish to take part in some of the provisions of the Schengen acquis which are contained in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters and amending Decisions 2000/365/EC and 2004/926/EC (OJ 2014 L 345, p. 1). The Framework Decision is one of these measures. Consequently, since 1 December 2014, the Court has jurisdiction with respect to the Framework Decision for preliminary references stemming from the UK. On the rather intricate procedure of opting in and out, see Mitsilegas, V., ‘European criminal law after Brexit’, 28 Criminal Law Forum, 2017, pp. 219-250, at pp. 224-226, and Ambos, K., ‘Brexit und Europäisches Strafrecht’, Juristenzeitung 14/2017, pp. 707-713, at p. 710. 72 On the constitutionalisation brought about by the Treaty of Lisbon, see Mitsilegas, V., EU criminal law after Lisbon, Hart Publishing, Oxford and Portland, Oregon, 2016, pp. 4-52. 73 Subject to a few exceptions such as Article 86 TFEU on the European Public Prosecutor’s Office or Article 87(3) TFEU on operational police cooperation. 74 With the exception of the limitation of Article 276 TFEU, which is, however, not of relevance in the case at issue. 75 Be it in the context of primary (e.g. accession Treaties) or secondary (cardinal example: transposition of directives under Article 288(2) TFEU) law. 76 See, in the specific context of Brexit, Dougan, M., ‘An airbag for the crash test dummies? EU-UK negotiations for a post-withdrawal “status quo” transitional regime under Article 50 TEU’, 55 Common Market Law Review 2018, Issue 2/3, pp. 57-100, at p. 83. 77 On transitional periods in EU law, see Kalėda, S.L., Przejęcie prawa wspólnotowego przez nowe państwo członkowskie. Zagadnienia przejściowe oraz międzyczasowe, Prawo i Praktyka Gospodarcza, Warsaw, 2003, pp. 237-240. 78 See Müller-Graff, P.-Chr., ‘Brexit – die unionsrechtliche Dimension’, in M. Kramme, Chr. Baldus, M. Schmidt-Kessel (eds), Brexit und die juristischen Folgen, Nomos, Baden-Baden, 2017, pp. 33-56, at p. 33. 79 Many scenarios are imaginable in this respect, for instance that of a special agreement between the EU and the UK, such as the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway mentioned in footnote 61 of this Opinion, approved on behalf of the EU first by Council Decision of 27 June 2006 (OJ 2006 L 292, p. 1) and, subsequent to the entry into force of the Treaty of Lisbon which necessitated another approval, by Council Decision of 27 November 2014 (OJ 2014 L 343, p. 1). However, to the best of my knowledge, that agreement has not, as yet, entered into force. Incidentally, that agreement, in its Article 36, provides for an intergovernmental dispute settling procedure, as opposed to a judicial one. On other possible scenarios, see House of Lords, Brexit: future UK-EU Security and Police Cooperation, Report, points 124-140, published on 16 December 2016, available at: https://publications.parliament.uk/pa/ld201617/ldselect/ldeucom/77/77.pdf. 80 These words are to be understood as a nod to the late Lord Denning who commandingly affirmed, in HP Bulmer Ltd & Anor v. J. Bollinger SA & Ors [1974] EWCA Civ 14 that ‘when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.’ Available at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1974/14.htm. 81 See Cour de cassation, chambre criminelle, judgment of 2 May 2018, Pourvoi No 18-82167, available at: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechExpJuriJudi&idTexte=JURITEXT000036900182&fastReqId=1561028715&fastPos=1.