The decision is Assange v The Swedish Prosecution Authority 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  2 AC 31, Lord Bingham stated at  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)  QB 83,  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  UKHL 51, again by Lord Bingham, at .
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  –  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” , 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 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.
Homewood: EU Law Concentrate 5e
Fred is a laboratory technician employed by the Home Office in London. He has encountered problems at work and is considering bringing proceedings against his employer.
(Fictitious) Directive 2003/555 ('the Directive') provides that all overtime worked by laboratory technicians must be paid at no less than three times the normal hourly rate. The Directive also provides that laboratory technicians must receive health and safety training. An annex to the Directive sets out the details of the required training, which must include sessions covering all new handling techniques relating to toxic substances. The deadline for implementation of the Directive was 31 December 2005.
The (fictitious) Laboratory Technicians Act 1950 ('the Act') provides that all overtime worked by laboratory technicians must be paid at no less than twice the normal hourly rate. The Act also provides that all laboratory technicians must receive health and safety training but does not specify the content of the training.
Fred occasionally works overtime and, under his contract of employment, receives twice his normal hourly rate of pay. He is dissatisfied with this but when he complained, his employer pointed out that this overtime rate complies with the Act.
Last month, Fred came into contact with a toxic substance at work and, as a result, suffered respiratory problems. Whilst Fred has received health and safety training, he has not received training in recently developed handling techniques for toxic substances. He believes that, had he received such training, he would not have been exposed to the associated health risk.
(a) Advise Fred as to whether he has any cause of action against his employer under EU law.
(b) How would your answer differ (if at all) if Fred was employed not by the Home Office but by Fyso (UK) plc ('Fyso')?
[For the purposes of this question, you are NOT required to consider any possible action for damages against the UK government.]
(a) The nature of Fred's complaint and compliance with the Act
- Begin by setting out Fred's two complaints: his overtime pay and his inadequate health and safety training
- His employer, the Home Office, appears to have complied with its obligations under the Act: overtime pay at twice the normal hourly rate and health and safety training
- Fred should therefore be advised to consider seeking to invoke the Directive in the national court, since its provisions give him better rights than the Act: overtime pay at three times the normal rate and training in recently developed handling techniques for toxic substances.
Reliance on the Directive in the national court: direct effect
- The principle of direct effect was established by the Court of Justice in Van Gend. If a provision of Union law is directly effective, it gives rise to rights that can be invoked by individuals in the national court. Directives are capable of direct effect (Van Duyn). Thus, Fred will be able to rely on the Directive, provided it is directly effective.
- The conditions attached to direct effect: the measure must be sufficiently clear and precise and unconditional (Van Gend, Defrenne). Further, in relation to directives, the implementation deadline must have passed (Ratti) and the claim must be vertical, against the state, or a 'public authority' (Marshall).
- Your answer should now apply the conditions for direct effect to the facts.
- Consider first whether the Directive is clear, precise, and unconditional. These conditions appear to be satisfied, as the Directive sets out precise minimum overtime rates, its annex gives details of the required training, and there is no mention of any conditions attached to the rights.
- The implementation deadline was 31 December 2005 and that date has now passed. (always work with today’s date unless the question states otherwise).
- Fred's claim is against the Home Office, which is clearly an organ of the state. This is not affected by the fact that the Home Office acts in the capacity of an employer (Marshall). Fred's claim is therefore vertical.
- Fred will be able to invoke the Directive against his employer in the national court, which must apply the provisions of the Directive and disapply the provisions of the Act.
(b) Fyso as the employer: direct effect?
- Fred wishes to bring his claim against his employer, Fyso
- Consider whether the Directive is directly effective in these circumstances.
- The conditions relating to clarity, precision, unconditionality, and the implementation deadline are satisfied (refer to the relevant parts of your answer to (a))
- However, the status of Fyso must be explored, as a directive can only be directly effective vertically, against the state, or a 'public authority' (Marshall) or 'public body' (Foster).
- Fyso is clearly not the state, but is it a public body? Apply the Foster test: a 'public body' includes a body made responsible by the state for providing a public service; under state control; and with special powers for that purpose, beyond those normally applicable between individuals. The question provides no information giving guidance on any of these elements. However, as a private company, Fyso is very unlikely to satisfy the Foster test and to comprise a public body.
- Assuming that Fyso is not a public body, Fred's claim is horizontal and he cannot therefore rely directly on the Directive.
- Fred may however be able to enforce the rights under the Directive by virtue of the principle of indirect effect.
- This principle was created by the Court of Justice in Von Colson and requires that relevant national law be interpreted in accordance with EU law. This principle is particularly important in situations such as Fred's, where an individual cannot rely directly on a provision of EU law.
- The Court held in Marleasing that the principle applies irrespective of whether the national provisions pre-date the EU provisions, so the fact that the Act pre-dates the Directive is irrelevant.
- However, Marleasing made clear that the national court's duty of consistent interpretation applies only so far as possible. Harmonious interpretation will not always be possible (Wagner Miret) and, in particular, there is no duty to adopt a contra legem interpretation (Pupino).
- Now consider whether the provisions of the Act can be interpreted in line with the Directive. To interpret 'no less than twice the rate of normal pay' to mean 'no less than three times the normal rate of pay' would entail a contra legem interpretation, and the national court would not be required to adopt such an interpretation. On the other hand, it would be likely that a national court would have no difficulty in interpreting 'health and safety training' to include a requirement for 'sessions covering all new handling techniques relating to toxic substances'.
- In conclusion, Fred is likely to be able to rely on the indirect effect of the health and safety provisions of the Directive, but not its overtime pay provisions.