EU-UK Police and Judicial Cooperation in Criminal Matters (St Antony's Series) 3030714748, 9783030714741

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ST ANTONY’S SERIES

EU-UK Police and Judicial Cooperation in Criminal Matters Mirena Pencheva

St Antony’s Series

Series Editors Dan Healey, St Antony’s College, University of Oxford, Oxford, UK Leigh Payne, St Antony’s College, University of Oxford, Oxford, UK

The St Antony’s Series publishes studies of international affairs of contemporary interest to the scholarly community and a general yet informed readership. Contributors share a connection with St Antony’s College, a world-renowned centre at the University of Oxford for research and teaching on global and regional issues. The series covers all parts of the world through both single-author monographs and edited volumes, and its titles come from a range of disciplines, including political science, history, and sociology. Over more than forty years, this partnership between St Antony’s College and Palgrave Macmillan has produced about 400 publications. This series is indexed by Scopus.

More information about this series at http://www.palgrave.com/gp/series/15036

Mirena Pencheva

EU-UK Police and Judicial Cooperation in Criminal Matters

Mirena Pencheva European Parliament Brussels, Belgium

ISSN 2633-5964 ISSN 2633-5972 (electronic) St Antony’s Series ISBN 978-3-030-71474-1 ISBN 978-3-030-71475-8 (eBook) https://doi.org/10.1007/978-3-030-71475-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Hufton+Crow-VIEW/Alamy Stock Photo Disclaimer: The views expressed in this book reflect the personal views and opinions of the author and do not necessarily represent the official position of the European Parliament. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

1 6

1

Introduction References

2

EU–UK Cooperation Before 1 February 2020 References

7 16

3

EU–UK Cooperation During the Transition Period

17

4

EU–UK Cooperation After the Transition Period—State of Play 4.1 Withdrawal Agreement 4.2 Political Declaration 4.3 EU Negotiating Position 4.3.1 EU Negotiating Mandate 4.3.2 EU Draft Agreement on the New Partnership with the UK 4.4 UK Negotiating Position 4.4.1 UK Negotiation Mandate 4.4.2 UK Draft Agreement on Law Enforcement and Judicial Cooperation in Criminal Matters 4.5 Negotiations References

21 21 25 28 28 33 38 38

43 48 56

v

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EU–UK Cooperation After the Transition Period—Possible Scenarios 5.1 Form of the Future Cooperation 5.2 Content of the Future Cooperation 5.2.1 Europol 5.2.2 Eurojust 5.2.3 Criminal Records 5.2.4 Prüm—DNA, Dactyloscopic Data and Vehicle Registration Data 5.2.5 PNR 5.2.6 SIS 5.2.7 Surrender 5.2.8 MLA Agreement 5.2.9 Data Protection 5.2.10 Jurisdiction of the CJEU References

82 88 92 98 105 111 116 120

Conclusion References

123 133

6

Index

57 57 66 66 75 80

135

Abbreviations

AFSJ AML CFSP CJEU CoE CSDP CT EAW ECHR ECRIS EDPS EEA EFTA EIO EU DA Eurojust Europol FATF GDPR JCCM JITs LE LEAs LED MLA

Area of Freedom, Security and Justice Anti-Money Laundering Common Foreign and Security Policy Court of Justice of the European Union Council of Europe Common Security and Defence Policy Counter-terrorism European Arrest Warrant European Convention on Human Rights European Criminal Record Information System European Data Protection Supervisor European Economic Area European Free Trade Association European Investigation Order Draft text of the Agreement on the new partnership with the United Kingdom published by the European Commission on 18 March 2020 European Union Agency for Criminal Justice Cooperation European Union Agency for Law Enforcement Cooperation Financial Action Task Force General Data Protection Regulation Judicial Cooperation in Criminal Matters Joint Investigation Teams Law Enforcement Law Enforcement Authorities Law Enforcement Directive Mutual Legal Assistance vii

viii

ABBREVIATIONS

MS OLAF PD PNR SIENA TEU TFEU UK DA

WA

Member State European Anti-Fraud Office Political declaration setting out the framework for the future relationship between the European Union and the UK Passenger Name Record Secure Information Exchange Network Application Treaty on European Union Treaty on the Functioning of the European Union Draft working text for an Agreement on law enforcement and judicial cooperation in criminal matters made public by the UK government on 19 May Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community

CHAPTER 1

Introduction

Abstract In the last couple of decades, EU cooperation in the fields of law enforcement and criminal law has evolved dramatically, with the UK driving that cooperation forward on a number of occasions. Brexit adds a layer of complexity and uncertainty as to the future of European integration in these fields and as to the ability of the EU and wider Europe to respond to the existing security challenges and threats. There seems to be little available in terms of a comprehensive overview of the future EU–UK relationship in the fields of police and judicial cooperation in criminal matters. This book aims to address this gap. Moreover, its finding could be transposable to the EU’s policy in these fields with other external partners. Keywords Brexit · Law enforcement · Criminal law · Cooperation

In the last couple of decades, EU cooperation in the fields of law enforcement and criminal law has evolved dramatically, with the UK driving that cooperation forward on a number of occasions, shaping it to fit its own understanding and preferences. The terrorist attacks on EU territory of the last five years gave new impetus to this cooperation, with new legislation proposed, existing legislation revised and a debate launched both in the EU and in the Member © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Pencheva, EU-UK Police and Judicial Cooperation in Criminal Matters, St Antony’s Series, https://doi.org/10.1007/978-3-030-71475-8_1

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States (MSs) as to how to best respond to the terrorist threat (Parliament, 2018, explanatory statement). This in turn led to the creation of bettersuited mechanisms for cooperation in the area of counterterrorism (CT) in particular, and cross-border crimes in general, as well as to MSs making actual use of already existing mechanisms for law enforcement (LE) and judicial cooperation in criminal matters (JCCM), which had until then been neglected. In this context, Brexit adds a layer of complexity and uncertainty as to the future of EU and European integration in the fields of law enforcement and criminal law and as to the ability of the EU and wider Europe to respond to the existing security challenges and threats. Brexit by definition marks a move away from integration within the EU and Europe. Under the Theresa May government, both the UK and the EU had clearly indicated that—despite Brexit—increased cooperation in the fight against terrorism and serious crime is imperative, requiring further integration in this field. Even then, with the clear political will on both sides very much present, it was difficult to find a way to overcome the paradox between the need for closer cooperation in this field, on the one hand, and the UK looking to move further away from the EU, on the other. With the change in government in the UK, the UK ambition for a comprehensive security partnership after Brexit seems to have diminished, which raises a number of questions not only as to the future of EU–UK LE and JCCM, but also as to the future of European integration in this field. A lot has been written about the UK decision to withdraw from the EU. Literature abounds as to the factors that led to this momentous decision and what the legal and political implications in general will be for both the EU and the UK. For example, Armstrong (2017) looks at what brought this decision on, the options for the new legal framework between the UK and the EU and the impact on UK’s political and legal landscape. Fabbrini (2017) covers the background of how Brexit came to be, its implications on the constitutional structure of the UK and of the EU, and how the EU project can go forward beyond Brexit. Glencross (2016) analyses the renegotiation that preceded the Brexit vote and the campaign itself so as to understand why the government’s strategy for winning the referendum foundered. Evans and Menon (2017) argue that Brexit was the product of both long-term dissatisfaction with the EU and a gradual breakdown in the relationship between parties and voters that spawned detachment, disinterest and disenchantment. Kelly and Pearce (2019) focus on what the Brexit decision might mean for

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Britain’s economy, society and politics and how Britain might change in the aftermath of the current Brexit storm. Armour and Eidenmüller (2017) examine the questions of the risk, the negotiating framework and the process of negotiating Brexit. Dougan (2017) offers a series of analyses of some of the key challenges facing the UK legal system in and through the process of “de-Europeanisation” within multiple areas of law. Martill and Staiger (2018) examine the consequences of Brexit for the future of Europe and the EU. This is just a small sample of the large body of literature that exists on these topics. Equally, a lot has been said also on the question of the future foreign and security cooperation between the EU and the UK. For example, Duke (2018) looks at the security and defence consequences of Brexit, the place of security and defence in the debates leading up to the Brexit referendum and in its follow-up and examines options and legal tools available to the UK and the EU as they frame their post-Brexit security and defence relations. Baciu and Doyle (2019) focus on the impact of Brexit on strategic aspects of security, peace, defence and foreign policy for both the EU and the UK. Johnson and Matlary (2018) bring together a number of contributors from Europe, the UK and the USA to evaluate the relative position European states, the UK and the USA will play in Europe’s defence in the era of Brexit. Zyla (2020) discusses Brexit’s implications for the EU’s Common Foreign and Security Policy and NATO. Clarke and Ramscar (2019) look at the immediate and long-term security challenges Britain faces as well as Britain’s security capabilities. However, there seems to have been very little in terms of overall comprehensive research when it comes to the future of the EU–UK relationship in the fields of police cooperation and JCCM. While some of the books mentioned above include chapters dedicated to this issue, it is not the main subject of attention for any of them. The reasons for this lack of consistent focus in academic literature on the issue of criminal justice and home affairs post-Brexit is perplexing, considering its importance. Perhaps this is due to the complex and fairly technical nature of this field, characterised by a multitude of legal acts—both former “third pillar”, former “Community pillar” and “lisbonised” acts; a multitude of agencies, formal and informal fora for cooperation and a variety of databases. Perhaps it is due to a mistaken belief that not much will change after Brexit, which led to this issue not really being given much attention in the pre-referendum discussions. Whatever the reason, there have been few books dedicated to the question of criminal justice and home affairs post-Brexit, even though

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some such publications do exist (see for example Carrera et al. [2018] and Carrapico et al. [2019]). Taking into account its importance, this field requires considerably more attention. This is why this book will be focusing exclusively on police cooperation and JCCM between the EU and the UK. At the time of writing,1 it is too early to say how the negotiations between the EU and the UK will develop. With the coronavirus outbreak, the possibility of an extension of the transition period seems more and more likely. On the other hand, the UK government has so far staunchly rejected any suggestions for extending the transition period. One thing is certain and that is that negotiations have barely begun, while the end of the current transition period is fast approaching. This does not bode well for the clarity, stability and foreseeability of the future of EU–UK relations in the fields of police and JCCM. What is unavoidable, in any case, is that security cooperation between the UK and the EU will not be as close as it was when the UK was an MS. This is inevitable due to the existing legal constraints when it comes to cooperating with non-EU countries. This book will focus on “internal” EU–UK security cooperation, that is to say, cooperation between the EU (and its MSs), on the one hand, and the UK, on the other, in the fields of law enforcement and criminal matters. References in this book to the area of freedom, security and justice (AFSJ), should be understood to refer primarily to judicial cooperation in criminal matters (JCCM) and police/LE cooperation (currently Chapters 4 and 5 of Part III, Title V of the Treaty on the Functioning of the European Union (TFEU)). The objective of the book is to look at the past, present and possible future relationship between the EU and the UK in the fields of LE and JCCM. Chapter 2 looks at the EU–UK relationship prior to 1 February 2020, and notably after the entry into force of the Treaty of Lisbon, when the UK was still an MS of the EU. It focuses in particular on the different UK Protocols in this field. Chapter 3 concentrates on the EU–UK relationship after 31 January 2020 and until the end of the transition period.

1 The main body of this book was finalised on 5 June 2020.

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Chapter 4 looks at the Withdrawal Agreement provisions dealing with the EU–UK AFSJ relationship after the end of the transition period. Afterwards, it analyses the relevant provisions of the Political Declaration, of the EU and UK negotiating mandates and texts, and the state of play of the negotiations. Chapter 5 examines the possible forms that the future LE and JCCM can take. Then it looks at the likely areas, which might be covered by this future cooperation. It also analyses the overarching issues of protection of personal data and the future role of the Court of Justice of the EU (“Court” or “CJEU”). Finally, the book puts forward some ideas as to the possible impact as a result of Brexit on security cooperation within wider Europe. The scenarios for EU–UK agreements in the different areas of justice and home affairs outlined in the book could also serve as a blueprint for the EU in its relationship with other third countries in this field. This can be the case with the European Economic Area (EEA) and European Free Trade Association (EFTA) countries, where some agreements in this field already exist and it is very likely that the relationship with the EU will develop further. This would also be the case with the Western Balkans, which are moving closer to the EU through the enlargement process, but also through formal and informal platforms and fora for engagement and cooperation, including in the fields of police and criminal justice. As such, the findings of the book would be transposable to the EU’s policy in the fields of police and JCCM with other external partners. The book would contribute by highlighting the likely political and legal constraints that would face any future negotiation in this field between the EU and any third country and by outlining the main areas on which the EU is likely to focus in its police and criminal cooperation with third countries. Moreover, the book gives an overview of a number of existing agreements with third countries in this field, which could serve as a useful tool for practitioners and for academics when it comes to future negotiations with third countries in these areas. Finally, as far as the UK’s cooperation with the EU before Brexit is concerned, the overview of the opt-out protocols that existed might prove valuable, as there are still several Member States that have similar opt-out protocols applicable to them.

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References Armour, J., & Eidenmüller, H. (2017). Negotiating Brexit. C. H. Beck Hart Nomos. Armstrong, K. A. (2017). Brexit time: Leaving the EU—Why, how and when? Cambridge University Press. Baciu, C.-A., & Doyle, J. (2019). Peace, security and defence cooperation in postBrexit Europe. Springer International Publishing AG. Carrapico, H., Niehuss, A., & Berthélémy, C. (2019). Brexit and internal security: Political and legal concerns on the future UK–EU relationship. Palgrave Studies in European Union Politics. Carrera, S., Mitsilegas, V., Stefan, M., & Giuffrida, F. (2018). Criminal justice and police cooperation between the EU and the UK after Brexit: Towards a principled and trust-based partnership. Report of a CEPS and QMUL Task Force. Centre for European Policy Studies (CEPS). Clarke, M., & Ramscar, H. (2019). Tipping point: Britain, Brexit and security in the 2020s. I.B. Tauris. Dougan, M. (2017). The UK after Brexit: Legal and policy challenges. Cambridge: Intersentia. Duke, S. (2018). Will Brexit damage our security and defence? Springer International Publishing. Evans, G., & Menon, A. (2017). Brexit and British politics. Cambridge: Polity. Fabbrini, F. (2017). The law and politics of Brexit. Oxford University Press. Glencross, A. (2016). Why the UK voted for Brexit: David Cameron’s great miscalculation. Palgrave Macmillan. Johnson, R., & Matlary, J. H. (2018). The United Kingdom’s defence after Brexit. Springer International Publishing AG. Kelly, G., & Pearce, N. (2019). Britain beyond Brexit. Wiley in association with The Political Quarterly. Martill, B., & Staiger, U. (2018). Brexit and beyond: Rethinking the futures of Europe. UCL Press. Parliament. (2018). Resolution on findings and recommendations of the Special Committee on Terrorism. 2018/2044(INI). Zyla, B. (2020). The end of European security institutions? Springer International Publishing AG.

CHAPTER 2

EU–UK Cooperation Before 1 February 2020

Abstract This chapter looks at the EU–UK relationship prior to 1 February 2020, and notably after the entry into force of the Treaty of Lisbon, when the UK was still a Member State of the EU. It focuses in particular on the different Protocols in this field, which applied to the UK, such as Protocol (No. 19) on the Schengen acquis integrated into the framework of the European Union, Protocol (No. 20) on the application of certain aspects of Article 26 TFEU to the UK and Ireland, Protocol (No. 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the UK, and Protocol (No. 36) on transitional provisions. Keywords Opt-out · Protocols · Third pillar

Whilst the UK was still an EU MS, its relationship with the EU within the AFSJ was complicated. The evolution of the UK position has been marked by a tension between the objective of maintaining sovereignty in the sensitive field of criminal law, while at the same time promoting a strong security agenda at the EU level based on maximising judicial and law enforcement cooperation (Mitsilegas, 2019, 189). Throughout the past decades, the UK had carved its own special status into the EU AFSJ, based on a model of flexible and differentiated integration in © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Pencheva, EU-UK Police and Judicial Cooperation in Criminal Matters, St Antony’s Series, https://doi.org/10.1007/978-3-030-71475-8_2

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EU criminal justice and police cooperation instruments (Carrera et al., 2018, 141). The UK was never a full participant in the AFSJ; it never joined the Schengen Convention and it retained the right to opt-out from the Schengen border control system, enabling it to continue exercising controls at its borders (Curtin, 2018, 148). With the entry into force of the Treaty of Lisbon, the so-called “third pillar” of the EU,1 which was characterised with intergovernmentalism and very limited roles for the European Commission (Commission), the European Parliament (Parliament) and the CJEU, was moved under the “Community [now Union] method”. The AFSJ2 is now explicitly listed as a policy area of shared competence between the Union and the MSs.3 This means that the Lisbon Treaty, which entered into force on 1 December 2009, provided for a new legal framework for JCCM and police cooperation, characterised by supranationalism, right of legislative initiative for the Commission, use of qualified majority voting in the Council of the EU (Council), co-decision powers of the Parliament in most cases, and full powers of judicial control for the Court. In order to understand the importance of this step, it should be recalled that the fields of criminal justice and police cooperation are radically different from other EU policy areas, in that measures adopted in the frame of the AFSJ impinge on fundamental rights and freedoms of individuals and encroach upon punitive powers at the heart of MSs’ sovereignty (Carrera et al., 2018, 22–23). Many perceive EU action in this field as a challenge to state sovereignty and the state’s monopoly over the use of force (Carrera et al., 2018, 6). With this in mind, the Lisbon Treaty provided for transitional measures to apply to this move of the area of JCCM and police cooperation from the “third pillar” into the shared competence of the EU. The transitional measures were set out in Title VII of Protocol (No. 36) on transitional provisions (Protocol 36).4 They aimed to limit the powers of the Commission and the Court as regards measures adopted under the “third pillar” for a certain amount of time. The transitional measures would cease to apply once a former third pillar act was amended, for those MSs to

1 Title VI TEU in its version before the Lisbon Treaty. 2 Part Three, Title V TFEU. 3 Article 4(2)(j) TFEU. 4 OJ C 202, 7.6.2016.

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which that amended act would apply, and in any case once five years had passed since the entry into force of the Treaty of Lisbon.5 The five-year period expired on 1 December 2014. Considering the sensitivity surrounding criminal law and its importance as an expression of the state’s sovereign powers, the UK (as well as Ireland and Denmark) negotiated a number of opt-outs from the AFSJ, annexed in protocols to the Treaties. As Mitsilegas (2019, 189) notes, “[s]overeignty concerns have led to enshrining constitutionally a ‘Europe a la carte’ position for the UK in Europe’s area of criminal justice […] by the adoption of provisions enabling the UK not to participate in ‘supranational’ EU criminal law measures proposed by the Commission after the entry into force of the Lisbon Treaty”. Some of those protocols existed in a similar form already prior to the entry into force of the Lisbon Treaty (e.g. Protocol 196 and Protocol 207 ), while others were introduced with its entry into force (e.g. Protocols 308 and 36). Protocol 36, for example, not only set out transitional provisions for all the MSs as regards the former “third pillar”, but also provided a specific additional “block opt-out” procedure for the UK. According to this procedure, the UK could notify the Council, no later than six months before the expiry of the five-year transitional period established by Protocol 36, that the UK did not accept the new powers of the institutions introduced by the Lisbon Treaty with regard to the former “third pillar” acts.9 Should the UK choose to do so, the acts of the Union in the field of police cooperation and JCCM, adopted before the entry into force of the Lisbon Treaty, would cease to apply to it as from the expiry of the five-year transitional period, i.e. as from 1 December 2014. Moreover, Protocol 36 provided that the UK could, at any time afterwards, notify the Council of its wish to participate in acts which had ceased to apply to it following the “block opt-out”.

5 Article 10(3) Protocol 36. 6 Protocol (No. 19) on the Schengen acquis integrated into the framework of the

European Union. 7 Protocol (No. 20) on the application of certain aspects of Article 26 TFEU to the UK and to Ireland. 8 Protocol (No. 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom. 9 Article 10(4) Protocol 36.

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In July 2013, the UK notified the Council of its decision to opt-out from approximately 130 former “third pillar” measures (Council, 2013). In November 2014, the UK notified the Council of its wish to opt back into 35 former “third pillar” measures (Council, 2014b, 2014a). Six of them concerned the Schengen acquis and included the chapters of the Schengen Convention on police and JCCM and the Schengen Information System—SIS II, which is the police/justice part of the Schengen database (Council, 2014a). The remaining 29 measures related to the European Arrest Warrant (EAW), Europol, Eurojust, exchange of information between financial intelligence units, exchange of information and intelligence between law enforcement authorities (LEAs), the European Criminal Record Information System (ECRIS), joint investigation teams (JITs), the protection of personal data in police and JCCM, the European Judicial Network, security in connection with football matches with an international dimension, as well as a number of mutual recognition measures. This list can give an indication of which measures the UK considered as the most important in this area and can provide some insight into what the UK might wish to focus on in its negotiations with the EU in the field of security cooperation. Special provisions regarding the UK can be found also in Protocol 19 on the Schengen acquis. In 1985 and 1990 the Schengen Agreement and Schengen Convention on the gradual abolition of checks at common borders were signed by some of the MSs of the EU. These documents were integrated into the EU framework by the Treaty of Amsterdam. Even before the Lisbon Treaty, the UK did not participate in all, but only in some parts of the Schengen acquis, namely in the police and judicial cooperation elements of Schengen, but not the border control elements (Report to UK Parliament, 2011). In order to take this particular position of the UK into account, while still allowing for the Schengen acquis to be further developed, Protocol 19 sets out a special procedure to allow the UK (as well as Ireland)10 to accept future provisions of this acquis in full or in part. The UK may at any time request to take part in some or all of the provisions of the Schengen acquis and the Council is to decide on the

10 As far as Denmark is concerned, Protocol 19 refers to the provisions set out in Protocol (No. 22) on the position of Denmark.

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request by unanimity of the MSs defined in Protocol 19.11 Where the UK has not notified, within a reasonable period, its decision to participate in the measure, the Council is considered to have granted authorisation to the other MSs to proceed with enhanced cooperation for the purposes of adopting the measure.12 Where the UK has opted-in to an existing Schengen measure in accordance with Article 4, it retains a right to opt-out of an EU measure building on this Schengen acquis (Lenaerts, 2010, 271–272). However, if the UK exercises the right to opt-out, the Council may decide that the original Schengen measure no longer applies to the UK in whole or in part (Lenaerts, 2010, 271–272). In a further attempt to ensure the UK’s opt-out rights when it comes to border controls, Protocol 20 sets out additional limits to the application of EU law to the UK. The UK is entitled to exercise at its frontiers with other MSs such controls on persons seeking to enter the UK as it may consider necessary for the purpose. This right is notwithstanding Articles 2613 and 77 TFEU,14 any other provision of the Treaties, any measure adopted under the Treaties, or any international agreement concluded by the Union or by the Union and its MSs with one or more third States.15 Reciprocally, the other MSs are entitled to do the same when it comes to persons seeking to enter their territory from the UK.16 Protocol 21 sets out the special opt-in/opt-out procedures granted to the UK and Ireland in respect of the AFSJ.17 In general, the UK does not take part in the adoption by the Council of AFSJ measures pursuant Part Three, Title V TFEU.18 This means that such measures will not be binding on or applicable to the UK, neither will any decision of the Court 11 Article 4 Protocol 19. 12 Article 5(1) Protocol 19. 13 Which refers to the internal market as an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties. 14 Which provides for the adoption of measures on border checks and border management. 15 Article 1 Protocol 20. 16 Or Ireland, to the extent to which Article 1 of Protocol 20 applies to it. 17 The text below will only be referring to the UK, but for the most part the provisions

of Protocol 21 are the same for Ireland. 18 Article 1 Protocol 21.

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interpreting such measures be binding or applicable, nor will they in any way affect the competences, rights and obligations of the UK.19 However, should the UK wish to take part in the adoption and application of any such measure (opt-in), it could notify the Council of its wish to do so within three months after a proposal or initiative has been presented and would be entitled to do so once its wish was notified.20 If after a reasonable period of time the measure cannot be adopted with the UK taking part, the Council may adopt the measure without the participation of the UK. The UK can also decide to opt-in after a measure has already been adopted. In such a case, it needs to notify both the Council and the Commission and the procedure regarding participation in enhanced cooperation in progress would be applied mutatis mutandis.21 The Protocol also applies in cases where a former “third pillar” measure, which is applicable to the UK, is amended—the so-called “lisbonisation” of the “third pillar”. The UK can decide whether to opt into a proposal to amend such “third pillar” measures. If it chooses not to opt into the proposal, then it will not be bound by the amended measure, but will continue to be bound by the “third pillar” measure in its version prior to its amendment. In a way, the “third pillar” measure will continue to exist as far as the UK is concerned, while for the rest of the MSs the “third pillar” measure will be repealed and replaced by the new amended post-Lisbon measure. However, if the UK decides not to opt into a proposal to amend a “third pillar” measure, the Council can determine that the nonparticipation of the UK in the amended version of an existing measure makes the application of that measure inoperable for other MSs or the Union. In that case, the Council can urge the UK to opt into the amended version of the measure. Should the UK maintain its decision not to opt-in, the existing “third pillar” measure will no longer be binding upon or applicable to it.22

19 Article 2 Protocol 21. 20 Article 3(1) Protocol 21. 21 Article 4 Protocol 21. 22 Article 4a(2) Protocol 21.

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In fact, this was the situation with the new Europol Regulation,23 “lisbonising” a number of “third pillar” Europol Decisions. It was clear that a co-existence of Europol under the old Europol Decisions and Europol under the new Europol Regulation would not be possible. Which rules would apply to decisions of the Management Board, to funding, to processing of data, to investigations? This was a clear situation where it would not be possible to have the old “third pillar” measure applying at the same time as the amended measure. The non-participation of the UK, as well as of Ireland and Denmark—the other two opt-out countries, in the amended version of an existing measure would therefore have made the application of that measure inoperable for other MSs and the Union. In order to avoid being unable to cooperate through Europol anymore, Ireland notified its wish to take part in the adoption and application of the Europol Regulation. The UK did not do so, but opted-in after the Regulation was already adopted and before it became applicable.24 Denmark, whose opt-out Protocol25 does not allow it to opt into AFSJ measures and forces Denmark to automatically opt-out of all such measures, was left searching for a creative solution to continue to work with Europol (see more on the solution found in Chapter 5, Sect. 5.2.1). Protocol 21 also provides for an exemption in certain cases from data protection rules adopted on the basis of Article 16 TFEU. Article 16 TFEU provides a legal basis for the adoption of EU measures regarding the processing of personal data. The UK will not be bound by such data protection rules in cases where the UK carries out activities which fall under JCCM or police cooperation measures by which the UK is not bound.26 For example, if the UK has opted-out of the adoption of a police cooperation measure (measure A), the UK will also not be bound by a measure adopted under Article 16 TFEU (measure B), to the extent to which measure B concerns processing of personal data while carrying activities falling under measure A.

23 Regulation (EU) 2016/794 on the European Union Agency for Law Enforcement Cooperation (Europol); see in particular recital (5) and Article 75(1) thereof. 24 Commission Decision (EU) 2017/388 of 6 March 2017 confirming the participation of the United Kingdom of Great Britain and Northern Ireland in Regulation (EU) 2016/794 on the European Union Agency for Law Enforcement Cooperation (Europol). 25 Protocol 22 on the position of Denmark. 26 Article 6a Protocol 21.

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It is interesting that according to Protocol 21 Ireland can notify the Council in writing that it no longer wishes to be covered by the terms of the Protocol, in which case the normal Treaty provisions will apply to Ireland.27 Protocol 21 does not give such an option to the UK. When looking at the LE and JCCM measures adopted after the entry into force of the Lisbon Treaty, it can be observed that the UK opted into some of them, but not into all. As far as a general trend can be discerned, it can be noted that for the most part the UK opted into measures that deal with LE cooperation and exchange of information. This can also give an indication as to what the UK considers important, which could be helpful in the context of ongoing negotiations. The UK, together with Poland, also negotiated a special Protocol on the application of the Charter of Fundamental Rights of the EU to Poland and the UK (Protocol 30). The aim of the Protocol was to clarify the application of the Charter of Fundamental Rights (the “Charter”) in relation to the laws and administrative action of Poland and of the UK and its justiciability within Poland and the UK. To what extent this Protocol meant that the Charter or certain parts of it were not (fully) applicable to the UK is not the main issue here. What is important is that the UK felt the need to negotiate a Protocol with the aim to limit the applicability of the Charter in its territory. This could raise the question as to the willingness of the UK to commit itself, after the end of the transition period, to the full respect of fundamental rights, as understood by the EU. As can be seen, the UK’s position when it came to fundamental rights, data protection, police cooperation, judicial cooperation in criminal matters and border management while an EU MS was complicated. The UK attempted to limit the competence of the EU in these fields through the negotiation of a flurry of Protocols, while at the same time pushing for further integration in some areas. The UK’s approach to LE and JCCM while it was still an MS, therefore, was split between caution and unwillingness to integrate further in some areas, on the one hand, and the UK acting as a driver for further EU integration in other areas. For example, when it came to the Commission’s procedural rights package, which concerned a number of rights for suspects and accused persons in criminal proceedings, the UK opted-out

27 Article 8 thereof.

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of most of the measures.28 The UK also opted-out of the adoption of the Combating Terrorism Directive,29 which established minimum rules concerning the definition of criminal offences and sanctions in the area of terrorist offences, offences related to a terrorist group and offences related to terrorist activities. It opted-out of the adoption of the Confiscation Directive30 as well. On the other hand, the UK has played a significant role in shaping EU criminal law—both before and after Lisbon, for instance by exporting its model of data-driven security cooperation and intelligence-led policing to the EU level (and in particular its influence in the evolution of EU security agencies such as Europol) and promoting the application of the principle of mutual recognition in criminal matters (Mitsilegas, 2019, 190). The UK has the highest number of seconded officers at Europol and was a major advocate of the EAW, the EU PNR Directive31 and the (subsequently annulled) Data Retention Directive32 (Curtin, 2018, 155). Moreover, the UK is one of the leading drivers of and highest contributors to EU databases and EU information-sharing mechanisms, as well as a major beneficiary of these databases (Carrera et al., 2018, 12; Inkster, 2018, 30). Losing access to these databases will have adverse implications 28 The UK opted into the adoption of the first two instruments in the package, namely Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings and Directive 2012/13/EU on the right to information in criminal proceedings. However, the UK opted out of the adoption of the other four directives in the package, that is to say Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in EAW proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, Directive 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, Directive 2016/1919 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in EAW proceedings. 29 Directive 2017/541 on combating terrorism. 30 Directive 2014/42/EU on the freezing and confiscation of instrumentalities and

proceeds of crime in the European Union. 31 Directive (EU) 2016/681 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. 32 Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC.

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for both UK and EU security (Inkster, 2018, 30) including as regards no longer having access to important information that is stored by the other party and which may be crucial to prevent or detect serious crime in the EU or in the UK (Carrera et al., 2018, 12). As a rule of thumb, it can be noted that the UK seemed to be in favour of measures that have to do with LE operational cooperation and exchange of information. However, it seemed to adopt a less enthusiastic approach when it came to measures to do with substantive criminal law and the rights of persons in criminal proceedings.

References Carrera, S., Mitsilegas, V., Stefan, M., & Giuffrida, F. (2018). Criminal justice and police cooperation between the EU and the UK after Brexit: Towards a principled and trust-based partnership. Report of a CEPS and QMUL Task Force. Council. (2013). UK notification according to Article 10(4) of Protocol No 36 to TEU and TFEU. Document 12750/13. Council. (2014a). Press release. “UK’s block opt-out and partial re-opt-in to the ex-third pillar acquis”. ST 15687/14. Council. (2014b). Notification of the United Kingdom under Article 10(5) of Protocol 36 to the EU Treaties. Document 15398/14. Curtin, D. (2018). The ties that bind: Securing information-sharing after Brexit. In B. Martill & U. Staiger (Eds.), Brexit and beyond: Rethinking the futures of Europe. UCL Press. Inkster, N. (2018). Brexit and security. Survival. Published online on 20 Nov 2018. https://doi.org/10.1080/00396338.2018.1542797. Lenaerts, K. (2010). The contribution of the European Court of Justice to the area of freedom, security and justice. International and Comparative Law Quarterly, 59, 255–301. Mitsilegas, V. (2019). The future of EU-UK security cooperation: The triple paradox of Brexit. Archives de politique criminelle, 41(1), 189–206. Report to UK Parliament. (2011). Home office report to parliament on the application of protocols 19 and 21 to the treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) (‘the Treaties’) in Relation to EU Justice and Home Affairs (JHA) Matters (1 December 2009–30 November 2010). Publisher: TSO (The Stationery Office). Last accessed February 2020. https://assets.publishing.service.gov.uk/govern ment/uploads/system/uploads/attachment_data/file/228737/8000.pdf.

CHAPTER 3

EU–UK Cooperation During the Transition Period

Abstract This chapter concentrates on the EU–UK relationship after 31 January 2020 and until the end of the transition period. For the most part, during the transition period the relationship between the EU and the UK will remain unchanged, with the exception of the cases specifically provided for in the Withdrawal Agreement. This chapter outlines a number of cases where EU law no longer applies to the UK during the transition period. Keywords Withdrawal agreement · Transition period

According to Article 50 TEU, when an MS decides to withdraw from the EU, the EU is to negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. The Treaties cease to apply to the State in question from the date of entry into force of the withdrawal agreement.1 In line with Article 50 TEU, the EU and the UK negotiated and concluded an Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the 1 Article 50(2) and (3) TEU.

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European Atomic Energy Community2 (the “WA”). The UK left the EU on 31 January 2020 and as of 1 February 2020, the relationship between the two has been subject to the provisions of the WA. The WA provides for a transition period from the date of entry into force of the Agreement until 31 December 2020.3 It sets out the regime that will apply between the EU and the UK during the transition period as well as provisions that will be applicable after the end of the transition period4 (subject to subsequent agreements between the EU and the UK being adopted, which could supersede these provisions). A single decision to extend the transition period for up to 1 or 2 years can be adopted before 1 July 2020.5 The provisions of the WA and the provisions of Union law made applicable by the WA will produce in respect of the UK and in the UK the same legal effects as those which they produce within the EU and its MSs.6 Provisions of the WA referring to EU law will, in their implementation and application, be interpreted in conformity with the relevant case law of the CJEU handed down before the end of the transition period.7 Moreover, the case law of the CJEU handed down after the end of the transition period could also be relevant. This is because the WA states that, in the interpretation and application of the WA, the UK is to have due regard to relevant case law of the Court handed down after the end of the transition period.8 Aside from EU law provisions and concepts specifically referred to in the WA, EU law in general remains applicable to and in the UK during the transition period, unless otherwise provided in the WA.9 During that period, EU law produces in respect of the UK and in the UK the same legal effects as those which it produces within the EU and its MSs. It will be interpreted and applied in accordance with the same methods and general principles as those applicable within the EU.10

2 OJ L 29, 31.1.2020. 3 Article 126 WA. 4 Article 185 WA. 5 Article 132(1) WA. 6 Article 4(1) WA. 7 Article 4(4) WA. 8 Article 4(5) WA. 9 Article 127(1) WA. 10 Article 127(3) WA.

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This means that, for the most part, during the transition period the relationship between the EU and the UK in the AFSJ will remain unchanged, with the exception of the cases specifically provided for in the WA. There are several exceptions in the WA as regards the AFSJ. For example, while in general references to MSs and their competent authorities in provisions of Union law made applicable by the WA include also the UK and its competent authorities, this will not be the case when it comes to the nomination, appointment or election of members of the bodies, offices and agencies of the Union, as well as the participation in the decision-making and governance of the bodies, offices and agencies of the Union.11 This is one of the exceptions to the applicability of EU law to the UK and it also covers bodies, offices and agencies in the AFSJ. In fact, on the date of entry into force of the WA, the mandates of all members of institutions, bodies and agencies of the Union who were nominated, appointed or elected in relation to the UK’s membership of the Union ended automatically as a result of the withdrawal.12 Other exceptions as regards AFSJ include the following: • provisions of the Treaties and acts which, pursuant to Protocols 19 and 21 or pursuant to the provisions of the Treaties on enhanced cooperation, were not binding upon and in the UK before the date of entry into force of the WA as well as acts amending such acts, will not be applicable to and in the UK during the transition period.13 This means that if the UK was not bound by a provision of the Treaty or by an act adopted before the entry into force of the WA— be it because the UK had exercised its rights under the Protocols it had negotiated, or because the UK had chosen not to take part in enhanced cooperation—these provisions and acts, as well as any amendments to them, will continue not to be binding upon and applicable in the UK.

11 Article 7 WA. 12 Recital (4) of Council Decision (EU) 2020/135 of 30 January 2020 on the conclu-

sion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. 13 Article 127(1)(a) WA.

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• in cases of enhanced cooperation, including as regards AFSJ issues, the UK will not be able to participate (i) if the authorisation for the enhanced cooperation was granted after the date of entry into force of the WA or (ii) within the framework of which no acts were adopted before the date of entry into force of the WA.14 • certain provisions of Protocols 19 and 21 will continue to apply mutatis mutandis during the transition period in relation to measures which amend, build upon or replace an existing AFSJ measure. The UK, however, will not have the right to notify its wish to take part in the application of new AFSJ measures.15 Finally, the WA provides for a special provision as far as the EAW is concerned, which constitutes an exception to the normal functioning of the EAW Decision.16 According to the WA, MSs may declare that, during the transition period, in addition to the grounds for non-execution of an EAW referred to in the EAW Decision, an MS may also refuse to surrender its own nationals to the UK pursuant to an EAW. In such a case, the UK may make a reciprocal declaration that the UK may refuse to surrender its nationals to that MS.17 Three Member States have made such a declaration—Germany, Austria and Slovenia. Article 5 of the Protocol on Gibraltar provides that Spain and the UK are to establish a coordination committee as a forum for monitoring and coordination between the competent authorities of any questions related to cooperation in police and customs matters and that the EU is to be invited to participate in the meetings of that coordination committee. The Protocol on Gibraltar forms integral part of the WA18 with the effect that a breach of the Protocol will constitute a breach of the WA with all the consequences attached to such a breach. The Protocol on Gibraltar, with the exception of Article 1, will cease to apply at the end of the transition period.19 14 Article 127(4) WA. 15 Article 127(5) WA. 16 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. 17 Article 185 WA. 18 Article 182 WA. 19 Article 185 WA.

CHAPTER 4

EU–UK Cooperation After the Transition Period—State of Play

Abstract This chapter looks at the Withdrawal Agreement provisions dealing with the EU–UK police and judicial cooperation in criminal matters after the end of the transition period. It then focuses on the relevant for that cooperation provisions of the Political Declaration and of the EU and UK negotiating mandates and draft legal texts. Finally, the chapter outlines the state of play of the negotiations. Keywords Political declaration · Negotiating mandate · Negotiation

4.1

Withdrawal Agreement

The Withdrawal Agreement not only establishes the applicable regime between the EU and the UK during the transition period, but also sets out a number of provisions that would apply in the relationship between the EU and the UK as of the end of the transition period. Part Three of the WA, entitled “Separation provisions”, sets out in its Title V the arrangements regarding ongoing police and JCCM that would be applicable between the EU and the UK as from the end of the transition period.1 These arrangements establish the way in which certain EU 1 Article 185 WA.

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acts will apply in the UK, as well as in the MSs in situations involving the UK, when it comes to ongoing judicial cooperation proceedings in criminal matters and to ongoing LE cooperation proceedings, police cooperation and exchange of information. For the most part, these arrangements concern situations where a request, order, EAW, decision or judgment has been received before the end of the transition period; where criminal proceedings have been initiated or cross-border surveillance has started before the end of the transition period,2 etc. The common element is that these provisions deal with “transitional” situations, which have begun before the end of the transition period, but have not yet been concluded. The UK may also continue, under certain conditions, to participate in JITs in which it had been participating before the end of the transition period3 or which had been set up before the end of the transition period.4 In such cases, the UK can continue to use, for no longer than one year after the end of the transition period, the Secure Information Exchange Network Application (SIENA) to the extent strictly necessary for the purpose of exchanging information within such JITs. SIENA is a Europol platform which enables the secure and swift exchange of operational and strategic crime-related information. In 2016, SIENA was upgraded to EU Confidential and peer-to-peer communication, allowing it to handle restricted content and providing a higher security platform for exchange of information and intelligence on counterterrorism (CT SIENA). The WA also provides that Eurojust can, on request by the UK, provide information, including personal data, from its Case Management system, if necessary to complete one of the ongoing procedures referred to in the WA or if necessary for the activities of JITs set up before the end of the transition period. Reciprocally, the UK can provide Eurojust, on request, with information in such cases. Unless otherwise provided in the Agreement, at the end of the transition period the UK will no longer be entitled to access any network, information system and database established on the basis of Union law.5

2 Articles 62 and 63 WA. 3 Article 62(2) WA. 4 Article 63(1)(b)(ix) WA. 5 Article 8 WA.

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The WA does provide for some exceptions, including in the AFSJ. These exceptions are as follows: • the use of SIENA, mentioned above, for no longer than one year after the end of the transition period, to the extent strictly necessary for the purpose of exchanging information within JITs in which the UK participates6 ; • the use of SIENA, for no longer than one year after the end of the transition period, to the extent strictly necessary to complete ongoing procedures in the cases referred to in the WA7 ; • the UK can use, for no longer than three months after the end of the transition period, the Communication Infrastructure as referred to in Council Decision 2007/533/JHA8 on the establishment, operation and use of the second generation Schengen Information System (“SIS” or “SIS II”). It can only make such use to the extent strictly necessary for the purpose of exchanging supplementary information where there was a hit before the end of the transition period on an alert issued in SIS.9 Part Three, Title VII of the WA deals with situations and information processed or obtained before the end of the transition period or on the basis of the WA. This can therefore also have an impact on AFSJ cooperation to the extent to which it concerns processing of data in this area, for example as regards the prevention, detection, investigation and prosecution of cross-border crimes. According to the WA, EU data protection law will apply in the UK in respect of the processing of personal data of data subjects outside the UK, provided that the personal data: • were processed under EU law in the UK before the end of the transition period; or

6 Article 62(2) WA. 7 Article 63(2) WA. 8 OJ L 205, 7.8.2007. 9 Article 63(1)(e) WA.

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• are processed in the UK after the end of the transition period on the basis of the WA.10 One can imagine a number of cases where this second option would apply, for example as regards data processing in ongoing LE and judicial cooperation proceedings in criminal provided for in Part Three, Title V of the WA. However, EU data protection law will not apply in such cases, to the extent to which the processing of the personal data is subject to an adequate level of protection as established in applicable decisions under the GDPR Regulation11 or under the Law Enforcement Directive (LED).12,13 Therefore, if and when adequacy decisions are adopted, they will take over the provisions of the WA as regards data protection. There are also some other general provisions, which will apply after the end of the transition period and which could have an impact on AFSJ. Such provisions can be found, for example in Part Three, Title V, Chapter 1 of the WA, which deals with pending and new cases before the Court, applicable procedural rules, binding force and enforceability of judgments and orders, etc., or in Chapter 2 as regards investigations by the European Anti-Fraud Office (OLAF). The unique circumstances on the island of Ireland required that a specific solution be found in order to ensure the orderly withdrawal of the UK from the Union. This unique solution consisted of negotiating a Protocol on Ireland/Northern Ireland, which forms an integral part of the WA.14 As far as AFSJ cooperation is concerned, the Protocol on Ireland/Northern Ireland mentions justice and security only once, in its Article 11, as just one element in a long list of areas where the necessary conditions for continued North–South cooperation should be

10 Article 71 WA. 11 Regulation (EU) 2016/679 on the protection of natural persons with regard to

the processing of personal data and on the free movement of such data (General Data Protection Regulation). 12 Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data. 13 Article 71(2) WA. 14 Article 182 WA.

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maintained. No other special provisions are made regarding security cooperation. Article 11 of the Protocol will apply as from the end of the transition period.15 In brief, once the transition period comes to an end, the de facto current treatment of the UK as an MS of the EU will expire (Peers, 2020a). While the WA’s provisions on issues like citizens’ rights and Northern Ireland will still apply, most of the relationship between the UK and the EU will end at that point unless new treaties replace it (Peers, 2020a).

4.2

Political Declaration

In parallel with the WA, the UK and the EU agreed a Political Declaration16 setting out the framework for the future relationship between the EU and the UK (“PD”). Article 184 WA states that the EU and the UK are to “use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration […] and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period”.17 There is an interpretative declaration concerning this text, included in the minutes of the European Council (Art. 50) meeting of 25 November 2018 (European Council, 2018). According to the interpretative declaration, the sole purpose of Article 184 WA is to create best endeavours’ obligations for the EU and the UK to negotiate agreements governing their future relationship and it imposes no obligations regarding the territorial scope of such agreements. The UK for its part also made a declaration that it shares this interpretation. To the extent to which the PD is not binding and has been somewhat superseded by the negotiating mandates and texts adopted by the EU and by the UK since the end of February 2020, the book will highlight only briefly some of the AFSJ-relevant provisions of the PD.

15 Article 185 WA. 16 OJ C 34, 31.1.2020. 17 Article 184 WA.

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The EU and the UK agreed that their future relationship should be underpinned by shared values such as the respect for and safeguarding of human rights and fundamental freedoms, democratic principles and the rule of law and that these values are an essential prerequisite for cooperation.18 The PD clearly stipulates that the future relationship should incorporate the UK’s continued commitment to respect the framework of the European Convention on Human Rights (“ECHR”), while the EU and its MSs will remain bound by the Charter, which reaffirms the rights as they result in particular from the ECHR.19 This particular aspect of the PD is worth highlighting, considering that during the first three negotiating rounds the UK indicated that it did not wish to have references to the ECHR in the agreement, which could in turn have as a consequence reducing the level of police cooperation and JCCM (see this chapter, Sect. 4.5). Such a development seems all the more likely if one looks at the part of the PD dedicated to law enforcement and JCCM, which specifically states that such cooperation should be “underpinned by long-standing commitments to the fundamental rights of individuals, including continued adherence and giving effect to the ECHR, and adequate protection of personal data, which are both essential prerequisites for enabling the cooperation envisaged by the Parties, and to the transnational ne bis in idem principle and procedural rights ”.20 Part III of the PD is dedicated to the future EU–UK security partnership. This partnership should be broad, comprehensive and balanced and should comprise law enforcement and JCCM, foreign policy, security and defence, as well as thematic cooperation in areas of common interest.21 According to the PD, the future relationship in the field of LE and JCCM should cover arrangements across three areas of cooperation: data exchange; operational cooperation between LEAs and JCCM; anti-money laundering (AML) and counterterrorism financing.22 The future relationship should take into account the geographic proximity, the shared and evolving threats the EU and the UK face and the mutual benefits to the safety and security of their citizens, while at the same time taking into 18 Paragraph 6 PD. 19 Paragraph 7 PD. 20 Paragraph 81 PD. 21 Paragraphs 78 and 79 PD. 22 Paragraph 82 PD.

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account the fact that the UK will be a non-Schengen third country which does not provide for the free movement of persons.23 The instruments and type of cooperation that are specifically mentioned in the PD include: exchanges of PNR data and of DNA, fingerprints and vehicle registration data (Prüm)24 ; cooperation via Europol and Eurojust25 ; establishing procedures to surrender suspected and convicted persons26 ; use of JITs27 ; agreeing standards on beneficial ownership transparency and ending the anonymity associated with the use of virtual currencies28 ; cooperation with Europol and the European Border and Coastguard Agency in order to tackle illegal migration.29 The PD confirms “the clear intent of both Parties to develop in good faith agreements giving effect to this [future] relationship” and to begin negotiations as soon as possible after the UK’s withdrawal from the Union, so that they can come into force by the end of 2020.30 It envisages that the Parties will negotiate in parallel the agreements needed to give the future relationship legal form and that they will convene to take stock of progress with the aim of agreeing actions to move forward in negotiations on the future relationship, in particular, at a high level in June 2020 for this purpose.31

23 Paragraph 80 PD. 24 Paragraph 84 PD. 25 Paragraph 86 PD. 26 Paragraph 87 PD. 27 Paragraph 88 PD. 28 Paragraph 89 PD. 29 Paragraph 114 PD. 30 Paragraph 135 PD. 31 Paragraphs 137 and 141 PD.

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4.3

EU Negotiating Position

4.3.1

EU Negotiating Mandate

The EU adopted its negotiating directives32 (the “EU Mandate”) and the Decision to open negotiations with the UK33 on 25 February 2020, nominating the Commission as the Union negotiator.34 The negotiations are to be conducted in accordance with the negotiating directives, subject to any directives which the Council may subsequently issue to the Commission.35 The negotiations of the envisaged partnership should be premised on the effective implementation of the WA and its Protocols.36 According to the EU Mandate, the aim of the negotiations is to establish a new partnership between the EU and the UK which is comprehensive and covers the areas of interest outlined in the PD: trade and economic cooperation, LE and JCCM, foreign policy, security and defence, and thematic areas of cooperation. While this possibly implies a single treaty, the EU Mandate does not say so expressly, so it would also be possible to have separate treaties which are linked in some way (Peers, 2020a). However, the EU draft legal text adopted on 18 March 2020 seems to favour the option of one comprehensive treaty (see this chapter, Sect. 4.3.2). The envisaged partnership should form a coherent structure and be embedded in an overall governance framework.37 It should reflect the UK’s status as a non-Schengen third country, and be based on the principle that a non-member of the Union, which is not subject to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member.38

32 Directives for the negotiation of a new partnership with the United Kingdom of Great Britain and Northern Ireland, Council document 5870/20, ADD 1 REV 3. 33 Council Decision (EU, Euratom) 2020/266 of 25 February 2020 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement. 34 Article 2 of Council Decision 2020/266. 35 Article 3 of Council Decision 2020/266. 36 Point 5 EU Mandate. 37 Point 7 EU Mandate. 38 Point 10 EU Mandate.

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The EU Mandate specifically refers to the values and commitments which should be at the foundation of the future partnership. The respect for and safeguarding of human rights and fundamental freedoms, democratic principles and the rule of law—including the UK’s continued commitment to respect the ECHR—should constitute essential elements for the cooperation envisaged in the partnership.39 The envisaged partnership should affirm the Parties’ commitment to ensuring a high level of personal data protection, and fully respect the Union’s personal data protection rules, including the Union’s decision-making process as regards adequacy decisions. The adoption by the Union of adequacy decisions, if the applicable conditions are met, is also a condition to achieve the high level of ambition on LE and JCCM.40 Part III of the EU Mandate is dedicated to the future security relationship between the EU and the UK. In line with the wording of the PD, the EU would like to negotiate a broad, comprehensive and balanced security partnership, which takes into account geographic proximity and evolving threats, including serious international crime, organised crime,41 terrorism, cyber-attacks, disinformation campaigns, hybrid-threats, the erosion of the rules-based international order and the resurgence of statebased threats.42 The security partnership should comprise: LE and JCCM; foreign policy, security and defence; thematic cooperation in areas of common interest.43 The security partnership should provide for close LE cooperation and JCCM, subject, however, to a number of caveats,44 namely: • due account should be taken of the UK’s status of a non-Schengen third country which does not provide for the free movement of persons; • due account should be taken of the fact that a third country cannot enjoy the same rights and benefits as an MS; 39 Point 12 EU Mandate. 40 Point 13 EU Mandate. 41 There is no reference to organised crime in the corresponding text of the PD (point

78 thereof). 42 Point 115 EU Mandate. 43 Point 116 EU Mandate. 44 Points 117 and 118 EU Mandate.

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• the security partnership should ensure reciprocity, preserve the autonomy of the Union’s decision-making and the integrity of its legal order; • the security partnership should be underpinned by commitments to respect fundamental rights including adequate protection of personal data, which is a necessary condition for the envisaged cooperation. As far as this last caveat is concerned, the EU Mandate specifies that the future partnership should provide for automatic termination of the LE and JCCM if the UK were to denounce the ECHR. It should also provide for automatic suspension if the UK were to abrogate domestic law giving effect to the ECHR, thus making it impossible for individuals to invoke the rights under the ECHR before the UK courts. The importance of the protection of personal data as a fundamental right is further highlighted by clarifying that the level of ambition of the future LE and JCCM will depend on the level of protection of personal data ensured in the UK. In order to facilitate such cooperation, the Commission will work towards an adequacy decision, if applicable conditions are met. The future partnership should provide for the suspension of the LE and JCCM, if the adequacy decision is repealed or suspended by the Commission or declared invalid by the CJEU. The security partnership should also provide for judicial guarantees for a fair trial, including procedural rights, e.g. effective access to a lawyer. Just like the Political Declaration, after setting out the general objectives and principles of the desired future EU–UK LE and JCCM, the EU Mandate focuses on three particular areas of cooperation: data exchange; operational cooperation; AML and counterterrorism financing. The EU Mandate refers specifically to PNR and Prüm.45 It also states that, without prejudice to the exchange of LE information through Interpol, Europol, bilateral and international agreements, the partnership should provide for alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the UK and MSs’ LEAs, in so far as is technically and legally possible, and considered necessary and in the Union’s interest. This would include information on

45 Points 119 and 120 EU Mandate.

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wanted and missing persons and objects.46 This last part could potentially be considered as suggesting that arrangements similar to SIS could be envisaged (for more details, see Chapter 5, Sect. 5.2.6). On operational cooperation, the future partnership should: • provide for cooperation between the UK and Europol and Eurojust in line with arrangements for the cooperation with third countries set out in relevant Union legislation47 ; • establish arrangements based on streamlined procedures enabling the UK and the MSs to surrender suspected and convicted persons efficiently and expeditiously48 ; • facilitate and supplement, where necessary, the application of relevant Council of Europe (CoE) conventions, including by imposing time limits and providing for standard forms49 ; • cover necessary supplementary forms of mutual legal assistance (MLA) and arrangements, including on JITs50 ; • supplement and facilitate the application of the European Convention on Mutual Legal Assistance in Criminal Matters of 20 April 1959 (1959 MLA Convention) and its Additional Protocols by putting in place arrangements on exchange of information on criminal records.51 When it comes to AML and counterterrorism financing, the PD and the EU Mandate are very similar. Both provide that the future partnership should include commitments to support international efforts to prevent and fight against money laundering and terrorist financing, particularly through compliance with Financial Action Task Force (FATF) standards and that the partnership should go beyond the FATF standards on beneficial ownership.52 The EU Mandate, however, is a bit more detailed on

46 Point 121 EU Mandate. 47 Point 122 EU Mandate. 48 Point 123 EU Mandate. 49 Point 124 EU Mandate. 50 Ibid. 51 Point 125 EU Mandate. 52 Point 126 EU Mandate.

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the issue of beneficial ownership than the PD. On the other hand, unlike the PD, the EU Mandate does not refer specifically to virtual currencies. The EU Mandate also sets out provisions regarding intelligence exchanges, namely that the future partnership should provide for the possibility of such exchanges on a timely and voluntary reciprocal basis as appropriate, while preserving the autonomous production of intelligence products of the EU.53 The future partnership should enable the exchange of intelligence and sensitive information between the relevant Union institutions, bodies, office and agencies and the UK authorities.54 On thematic security cooperation, the EU Mandate mentions only cyber security, irregular migration and health security, whereas the PD covered also civil protection, counterterrorism and countering violent extremism. The scope of the EU Mandate when it comes to security cooperation is quite similar to what had been agreed between the EU and the UK in the PD. What is worth noting though is the extra emphasis that the EU Mandate has put on fundamental rights and data protection. According to the EU Mandate, the future partnership should be embedded in an overall governance framework covering all areas of economic and security cooperation.55 It should be possible to refer disputes to an independent arbitration panel if a mutually satisfactory resolution cannot be found.56 More importantly, the EU Mandate requires that, should a dispute raise a question of interpretation of EU law, the arbitration panel must refer the question to the CJEU as the sole arbiter of EU law, for a binding ruling. The arbitration panel should decide the dispute in accordance with the ruling given by the CJEU.57 In terms of territorial scope, the EU Mandate stresses that any agreement between the Union and the UK negotiated on the basis of the EU Mandate should be without prejudice to the Protocol on Ireland/Northern Ireland and to the Protocol relating to the Sovereign

53 Point 138 EU Mandate. 54 Point 139 EU Mandate. 55 Point 147 EU Mandate. 56 Point 159 EU Mandate. 57 Point 160 EU Mandate.

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Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus.58 It will also not include Gibraltar.59 4.3.2

EU Draft Agreement on the New Partnership with the UK

On 18 March, the Commission’s Task Force for Relations with the UK published a Draft Agreement on the New Partnership with the UK (“EU Draft Agreement” or “EU DA”),60 translating into legal text the EU Mandate. The EU DA is divided into six parts: Part One: Common provisions; Part Two: Economy and Trade; Part Three: Security partnership; Part Four: Participation in Union programmes, sound financial management and financial provisions; Part Five: Institutional and horizontal provisions; Part Six: Final provisions. The overall aim of the EU is to conclude one agreement, providing for a comprehensive partnership between the EU and the UK, with any future agreements constituting supplementing agreements to the main agreement.61 The EU DA underlines that the Parties are to continue to uphold the shared values and principles of democracy, the rule of law, respect for human rights; their respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties; as well as their continued commitment to respect the ECHR and Protocols 1, 6 and 13 thereto.62 Moreover, this constitutes an essential element of the future partnership.63 The Common provisions include several other texts that are worth mentioning. On personal data protection, the Parties are to affirm their commitment to ensuring a high level of personal data protection.64 As far as counterterrorism is concerned, the Parties are to:

58 Point 166 EU Mandate. 59 Point 167 EU Mandate. 60 UKTF(2020)14. 61 Articles COMPROV.1 and 2. 62 Article COMPROV.4. 63 Article COMPROV.12. 64 Article COMPROV.10.

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• cooperate at bilateral, regional and international levels to prevent and combat acts of terrorism in all its forms and manifestations; • enhance cooperation on counterterrorism, including preventing and countering violent extremism and the financing of terrorism, with the aim to advance their common security interests, “without prejudice to law enforcement and judicial cooperation in criminal matters and intelligence exchanges ”; • establish a regular dialogue on these matters.65 Another text from the Common provisions worth mentioning is Article COMPROV.16(1), which provides that “[w]ith the exception of Articles [Cross-refer] of Part Three [Security], nothing in this Agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement to be directly invoked in the domestic legal systems of the Parties ”. This suggests that certain provisions of Part Three, which is the part dealing with security cooperation, do confer rights or create obligations on persons other than those created between the Parties under public international law and may be directly invoked in the domestic legal systems of the Parties. The concrete provisions to which this would apply though are yet to be specified. Part Three of the EU DA is dedicated to the future security partnership. It is divided into three titles: Title I: Law enforcement and judicial cooperation in criminal matters; Title II: Foreign Policy, Security and Defence; Title III: Thematic Cooperation. Title I takes by far the majority of Part Three. Title II is not to be found in the EU DA text, but in a separate document. Title I is composed of eleven chapters. They will not be described in detail here, but some of the main elements will be highlighted and then Chapter 5 will go into more detail as regards the texts where agreement could be found. The EU DA makes clear that Title I will only apply to LE and JCCM taking place exclusively between the Parties, and does not regulate situations arising within the EU, which remain defined by EU law.66 Transfers

65 Article COMPROV.9. 66 Article LAW.GEN.1.

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of personal data to the UK under Title I may only take place on the basis of an adequacy decision.67 Nothing in Title I is to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in the ECHR, or, in case of the EU and its MSs, in the Charter.68 Moreover, cooperation under Title I is conditional upon the UK’s continued adherence to the ECHR and Protocols 1, 6 and 13 thereto, as well as upon the UK giving continued effect to these instruments under its domestic law.69 Should the UK abrogate the domestic law giving effect to these instruments or make amendments thereto to the effect of reducing the extent to which individuals can rely on them before domestic courts of the UK, Title I will be suspended from the date such abrogation or amendment becomes effective.70 In the event that the UK denounces any of these instruments, Title I will be disapplied from the date that such denunciation becomes effective.71 Similarly, in case the adequacy decisions on the basis of which personal data under Title I is transferred are repealed or suspended by the Commission or declared invalid by the CJEU, the provisions of Title I will be suspended.72 Chapter 2 of Title I is dedicated to exchanges of DNA, dactyloscopic data and certain vehicle registration data (Prüm). Its objective is to establish reciprocal cooperation between the competent LE authorities of the UK and the MSs on the automated transfer of such data.73 Chapter 3 concerns PNR data and establishes the rules under which PNR data may be transferred to, processed and used by the UK for flights between the Union and the UK. It also provides that the UK and the MSs are to cooperate to pursue the coherence of their PNR data processing regimes.74 This is not an obligation for the Parties to have similar or identical PNR data processing regimes, but a much weaker one “to cooperate to pursue the coherence” of their respective regimes. Chapter 3 shall not 67 Article LAW.GEN.4. 68 Article LAW.GEN.3. 69 Article LAW.OTHER.136(1). 70 Article LAW.OTHER.136(2). 71 Article LAW.OTHER.136(3). 72 Article LAW.OTHER.136(5) and (6). 73 Article LAW.PRUM.5. 74 Article LAW.PNR.35.

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be construed to derogate from any obligation between the UK and MSs or third States to make or respond to a request under a mutual assistance instrument.75 Chapter 3 does not cover the transfer, processing and use by the EU of PNR data for flights between the UK and the EU, as this is covered by the EU PNR Directive. Chapter 4 is dedicated to cooperation regarding operational information. Its objective is to ensure that the competent LEAs of the UK and the MSs may exchange existing information and intelligence for the purpose of conducting criminal investigations or criminal intelligence operations in the context of the detection, prevention or investigation of certain criminal offences and under certain conditions. However, no data processed in databases established on the basis of Union law can be provided to the UK in response to a request under Chapter 4.76 Agencies, bodies or other units dealing especially with national security issues are not considered competent LEAs for the purpose of Chapter 4.77 The chapter does not impose any obligation on States to provide information and intelligence to be used as evidence before a judicial authority, nor does it give any right to use such information or intelligence for that purpose.78 Chapter 5 deals with cooperation between the UK and Europol and Chapter 6 concerns the cooperation with Eurojust. The objective of Chapter 7 is to provide for an extradition system between the MSs and the UK based on a mechanism of surrender pursuant to an arrest warrant.79 An arrest warrant is to be understood as a judicial decision issued by an MS/the UK with a view to the arrest and surrender of a requested person for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.80 Chapter 7 follows a very similar logic and structure to the EAW Decision, although with some differences.81

75 Article LAW.PNR.36. 76 Article LAW.OPIN.38. 77 Article LAW.OPIN.39. 78 Article LAW.OPIN.40(6). 79 Article LAW.SURR.76. 80 Article LAW.SURR.77. 81 See for example the provisions regarding the political offence exception and the nationality exception (Articles LAW.SURR.81 and LAW.SURR.82). Chapter 7 also incorporates the main achievements of the package on procedural rights for suspects and

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Chapter 8 is entitled “mutual assistance”. Its objective is to supplement the provisions and facilitate the application between the UK and the MSs to which the following Convention and Protocols are applicable of: (a) the 1959 MLA Convention; (b) its Additional Protocol of 17 March 1978; (c) its Second Additional Protocol of 8 November 2001.82 For the purposes of Chapter 8, the European Public Prosecutor’s Office is also to be considered a “competent authority”.83 Chapter 9 concerns the exchange of information extracted from criminal records. Its objective is to enable such exchange of information between the UK and the MSs, as well as to supplement certain provisions of the 1959 MLA Convention and its Additional Protocols.84 Chapter 10 is dedicated to AML and CT financing. The objective of Chapter 10 is “to support and strengthen” the EU and UK action for preventing and combating money laundering and terrorism financing, including through compliance with FATF standards, “as well as ensuring high standards on transparency and entities subject to anti-money laundering and counter-terrorism frameworks ”.85 Most of the chapter addresses different issues regarding beneficial ownership, as well as the questions of customer due diligence and obliged entities. Part Three, Title III—Thematic Cooperation, is divided into three chapters dealing with the fight against irregular migration, health security and cybersecurity, respectively. Several other interesting provisions, which are not found in Part Three on security, but are worth mentioning nonetheless, concern: • EU competences in the UK as regards the fight against irregularities, fraud and other criminal offences affecting the financial interests of the EU86 ;

accused persons, which was adopted after the entry into force of the Lisbon Treaty (see e.g. Articles LAW.SURR.89 and LAW.SURR.90). These achievements do not form part of the EAW Decision for obvious reasons of chronology of adoption. 82 Article LAW.MUTAS.113. 83 Article LAW.MUTAS.114. 84 Article LAW.EXINF.120. 85 Article LAW.AML.127. 86 Article UNPRO.4.2.

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• the role of the CJEU in disputes submitted to arbitration, when questions of interpretation or application EU law are raised87 ; • the possibility to take appropriate measures, including suspension in part or in full of the Agreement, in case of breach essential elements.88 One such essential element concerns upholding the shared values and principles of democracy, the rule of law, respect for human rights; the respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties; as well as the continued commitment to respect the ECHR and Protocols 1, 6 and 13 thereto.89 • exceptions as regards essential security interests of the Parties.90

4.4

UK Negotiating Position

4.4.1

UK Negotiation Mandate

The UK negotiation mandate is set out in a paper entitled “The Future Relationship with the EU. The UK’s Approach to Negotiations ” (the “UK Mandate”),91 presented to Parliament by the Prime Minister in February 2020. The UK Mandate provides for the negotiation of a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit, with full control of the UK over its laws and political life and with no obligations for UK laws to be aligned with the EU’s, or for the EU’s institutions, including the Court, to have any jurisdiction in the UK.92 The UK Mandate states that the parameters of the future relationship are set out in the Political Declaration. Yet, when one looks at what the UK Mandate outlines as a future relationship, quite a few differences become apparent. The UK Mandate argues that the PD calls for a Comprehensive Free Trade Agreement to be at the core of the future 87 Article INST.16. 88 Article INST.35. 89 Article COMPROV.4 read in conjunction with Article COMPROV.12. 90 Article FINPROV.4. 91 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/att achment_data/file/868874/The_Future_Relationship_with_the_EU.pdf. 92 Point 5 UK Mandate.

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relationship, “supplemented by a range of other international agreements covering, principally, fisheries, law enforcement and judicial cooperation in criminal matters, transport, and energy”, with no role for the Court.93 Taking this understanding of how the PD envisages the future relationship as a starting point, the UK Mandate then goes on to elaborate the UK’s negotiating lines. It makes clear that, if it is not possible to negotiate a satisfactory outcome, then the future trading relationship with the EU will rest on the WA.94 The UK Mandate does not, however, say what would happen with AFSJ cooperation in such a scenario. The UK Mandate also clarifies that, although all the areas of policy set out in the PD will be relevant to the UK’s future cooperation with the EU, this does not require every area to be incorporated into a negotiated Treaty or similar arrangement. Many policy areas—for example foreign or immigration policy—are for the UK Government to determine, within a framework of broader friendly dialogue and cooperation between the UK and the EU, and do not require an institutionalised relationship.95 The UK Mandate makes clear that the transition period provided for in the WA will not be extended. In case no sufficient progress has been achieved in time for the June high-level meeting, the UK will decide whether its attention should move away from negotiations and focus solely on domestic preparations to exit the transition period in an orderly fashion.96 After setting out the main principles and overall arrangements that would guide the UK in the negotiations, the UK mandate is divided into three parts: Part 1: The Comprehensive Free Trade Agreement (CFTA); Part 2: Other Agreements; Part 3: Technical and other processes beyond the scope of the future relationship negotiations. The issue of LE and JCCM is dealt with in Part 2: Other Agreements, alongside a range of other international agreements covering fisheries, transport, energy, social security coordination, etc. The UK Mandate provides for the conclusion of an agreement on LE and JCCM, to the extent that this is in both parties’ interests, which should include:

93 Point 6 UK Mandate. 94 Point 7 UK Mandate. 95 Point 8 UK Mandate. 96 Point 9 UK Mandate.

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arrangements that support data exchange for LE purposes; operational cooperation between LEAs; and JCCM.97 The UK Mandate makes clear that the agreement on LE and JCCM should be a separate agreement with its own governance mechanism; that it must not constrain the autonomy of the UK’s legal system in any way and should not provide any role for the CJEU in resolving UK–EU disputes.98 This is one of the points of divergence between the EU and the UK. The UK advocates for separate agreements with their own governance mechanisms, while the EU would like to have one comprehensive agreement with one overarching governance mechanism. While the UK Mandate states that LE cooperation and JCCM will be underpinned by “the importance attached by the UK and the EU to safeguarding human rights, the rule of law and high standards of data protection”, it makes clear that the agreement should not specify how the UK or the EU MSs should protect and enforce human rights and the rule of law within their own autonomous legal systems.99 This marks another point of divergence between the EU and the UK—one that is not likely to be easily overcome, considering the EU has elevated the issue of fundamental rights to an essential element of the future relationship, which suggests that the EU views this as a red line. The agreement should include a clause that allows either party to suspend or terminate some or all of the agreement, but should not specify the reasons for invoking any suspension or termination mechanism.100 This is also a point of divergence compared to the EU Mandate. The latter contains a clause on suspension and termination in case the UK denounces the ECHR, domestic law giving effect to it or in case of a repeal, suspension or declaration of invalidity of the adequacy decisions. Peers (2020b) notes that a possible compromise would be that the treaty provides for its suspension or termination if either party decides, without mentioning the grounds, while the EU provides in its own law that it will automatically trigger these clauses for specified human rights or data protection reasons.

97 Part 2, point 28 UK Mandate. 98 Part 2, point 30 UK Mandate. 99 Part 2, point 31 UK Mandate. 100 Part 2, points 32 and 33 UK Mandate.

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The UK Mandate then focuses on data exchange for LE purposes and operational cooperation between LEAs. The future agreement should provide for: • exchange of criminal records data between the UK and individual EU MSs. The capabilities for such exchange should be similar to those provided by ECRIS101 ; • exchange of national DNA, fingerprint and vehicle registration data between the UK and individual EU MSs to aid LE agencies in investigating crime and terrorism, providing similar capabilities to those currently delivered through the Prüm system102 ; • reciprocal transfers of PNR data103 ; • a mechanism for the UK and EU MSs to share and act on real-time data on persons and objects of interest including wanted persons and missing persons, which is a capability currently provided by SIS II, making alerts accessible to officers on the border as well as to frontline police officers in the UK.104 The agreement should provide capabilities similar to those delivered by SIS II.105 On several occasions, including here, the UK Mandate specifically refers to the cooperation between the EU and third countries such as Norway, Iceland, Liechtenstein (which are both EEA and Schengen countries), and Switzerland (which is a Schengen country, but not an EEA country). The UK mandate suggests that cooperation with these countries be taken as precedent for the future cooperation between the UK and the EU.106 The UK Mandate also emphasises that these precedents include a political dispute resolution mechanism with no jurisdiction in these third countries for the CJEU.107 What is notable is that the UK mandate clearly recognises that Switzerland, Norway, Iceland and Liechtenstein are non-EU countries, but that 101 Part 2, points 35 and 36 UK Mandate. 102 Part 2, points 38 and 39 UK Mandate. 103 Part 2, point 40 UK Mandate. 104 Part 2, point 43 UK Mandate. 105 Part 2, point 45 UK Mandate. 106 See Part 2, points 30, 33, 37, 39 and 45 UK Mandate. 107 See Part 2, points 30, 39 and 45 UK Mandate.

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they are Schengen countries.108 However, the UK Mandate does not seem to draw a distinction between the situation of the UK (as a nonEU and non-Schengen country), on the one hand, and Switzerland, Norway, Iceland and Liechtenstein (as non-EU, but Schengen—and in three out of the four cases also EEA—countries), on the other. The UK Mandate seems to suggest that the same arrangements that exist with these Schengen (and in some cases also EEA) countries can be used just as easily to regulate the future relationship between the EU and the UK in the field of law enforcement. As far as cooperation with Europol is concerned, the UK Mandate states that the UK is not seeking membership of Europol, but rather cooperation on the basis of dedicated third country arrangements. However, the UK Mandate specifies that the agreement could go beyond existing precedents given the scale and nature of cooperation between the UK and Europol, pointing out that the UK was the highest contributor of data to Europol for strategic, thematic and operational analysis in 2018.109 This mention serves as a reminder of what the EU stands to lose in case no appropriate arrangements for cooperation with Europol are found in time for the end of the transition period. In terms of JCCM, the agreement should cover cooperation with Eurojust; extradition; MLA; arrangements on the transfer of prisoners. It is worth noting that the UK Mandate does not call for going beyond the currently existing arrangements for third-country cooperation with Eurojust,110 unlike the case with Europol. This highlights once again the areas where the UK sees the most value-added in EU cooperation in this field. When it comes to extradition, the UK Mandate stresses that the UK is not seeking to participate in the EAW. The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the EAW.111 Once again, the UK Mandate draws on existing

108 See Part 2, points 44 and 45 UK Mandate. 109 Part 2, points 46 and 47 UK Mandate. 110 Part 2, point 50 UK Mandate. 111 Part 2, point 51 UK Mandate.

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arrangements between the EU and non-EU (but Schengen and EEA) countries. The agreement should provide for arrangements delivering fast and effective MLA in criminal matters, including asset freezing and confiscation, building and improving on the arrangements provided by relevant CoE Conventions.112 The agreement should establish effective and reciprocal arrangements to transfer prisoners between the UK and EU MSs, building and improving on arrangements provided by the 1983 CoE Convention on the Transfer of Sentenced Persons and its Protocols.113 Beyond the agreement on LE and JCCM, the UK Mandate also provides for the conclusion of an agreement on asylum and illegal migration. Finally, as far as data protection is concerned, Part 3 contains several provisions on this,114 such as that the UK: • will have an independent policy on data protection at the end of the transition period; • will remain committed to high data protection standards; • will seek “adequacy decisions” from the EU under both the GDPR and the LED before the end of the transition period. These adequacy decisions are separate from the wider future relationship, do not form part of trade agreements and will allow “the continued free flow of personal data from the EEA States to the UK, including for law enforcement purposes ”.115 4.4.2

UK Draft Agreement on Law Enforcement and Judicial Cooperation in Criminal Matters

Before the second negotiating round between the EU and the UK, which took place on 20–24 April, the UK sent draft working texts for agreements in a number of fields to form the basis for discussions with the EU. One of the fields was on LE and JCCM, for which the UK proposed 112 Part 2, point 52 UK Mandate. 113 Part 2, point 53 UK Mandate. 114 Part 3, points 59–62 UK Mandate. 115 Part 3, point 60 UK Mandate.

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a separate draft agreement (the “UK DA”). Initially the UK insisted that these texts remain confidential to the extent that even the MSs and the European Parliament were not allowed access to them. On 19 May 2020, the UK Government decided to make the texts public.116 According to the published texts, when developing the UK DA117 the UK took account of relevant international precedents, including the EU’s own agreements with other third countries. The UK DA provides for the establishment of a joint committee to enable the EU–UK cooperation under the UK DA. The preamble reaffirms the respect of the UK and the EU “for human rights and fundamental freedoms, for example as laid down in the Universal Declaration of Human Rights proclaimed in Paris on 10 December 1948 and for the principles of democracy and the rule of law”. No mention of the ECHR is made in the text. The preamble states that “it is appropriate for either Party to be able to suspend or terminate cooperation under all or any part of this Agreement, including where one Party has concerns about the other party’s level of protection of human rights, fundamental freedoms, democracy, or the rule of law”. However, the actual article on suspension and termination118 does not give any examples of grounds for termination. Moreover, that article provides that the UK may decide to suspend or terminate the Agreement only as regards a specific MS. That would essentially mean that the UK can pick and choose which MSs to cooperate with and which ones not to, de facto treating the EU–UK LE and JCCM agreement as a cluster of 27 bilateral agreements with MSs, rather than as one single EU–UK agreement. As far as dispute settlement is concerned,119 the UK DA provides that the UK and the EU will only have recourse to the procedures provided for in the agreement. The UK and the EU will at all times endeavour to agree on the interpretation and application of the agreement, and will make every attempt, through cooperation and consultations, to arrive 116 https://www.gov.uk/government/publications/our-approach-to-the-future-relati onship-with-the-eu?utm_source=987e7f2a-ddf3-41ef-bb3c-d06b80493019&utm_med ium=email&utm_campaign=govuk-notifications&utm_content=immediate. 117 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/att achment_data/file/886019/DRAFT_Agreement_on_Law_Enforcement_and_Judicial_ Cooperation_in_Criminal_Matters.pdf. 118 Article FINAL 7 UK DA. 119 See Article INSTITUTIONAL 3 UK DA.

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at a mutually satisfactory resolution of any matter that might affect its operation. They will endeavour to resolve any dispute regarding the interpretation and application of the provisions of the agreement by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution. No other procedures than the ones provided for in the agreement are to be allowed for resolving disputes arising under the agreement. The agreement is to be interpreted in accordance with the customary rules of public international law, including those in the Vienna Convention on the Law of Treaties.120 Nothing in the UK DA is to be construed as conferring rights or imposing obligations on persons nor as permitting the Agreement to be directly invoked in the domestic or internal legal systems of the UK or the EU.121 This seems to contradict the EU DA, according to which there are to be some exceptions to the “no direct effect on persons” rule, without however specifying what these exceptions are.122 The UK DA also creates certain obligations for the EU towards the UK in case of future accessions of third countries to the EU.123 Part 2 of the UK DA is dedicated to criminal records. Its objective is the same as the objective stated in the relevant texts of the EU DA.124 Part 3 of the UK DA deals with PNR data. It provides that the UK and the MSs are to process PNR data strictly for the purposes of preventing, detecting, investigating and prosecuting serious crime and of overseeing the processing of PNR data within the terms of Part 3. There are a number of differences between the EU and the UK DA (see Chapter 5, Sect. 5.2.5). The objective of Part 4 of the UK DA is to provide for an extradition system between the MSs and the UK based on a mechanism of surrender pursuant to an arrest warrant.125 Part 4 sets out fairly detailed provisions as to how this extradition system is to work (for more details, see Chapter 5, Sect. 5.2.7).

120 Article FINAL 6 UK DA. 121 Article FINAL 8 UK DA. 122 Article COMPROV.16(1) EU DA. 123 Article FINAL 11 UK DA. 124 See Article CRIMINAL RECORDS 1 UK DA and Article LAW.EXINF.120 EU

DA. 125 Article SURR 2 UK DA.

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Part 5 of the UK DA deals with the future cooperation between Europol and the UK and Part 6 is dedicated to the future cooperation with Eurojust. Part 7 is entitled “Continued dialogue” and contains one article labelled “Cooperation on criminal matters etc.”. It provides that, with a view to advancing their common security and shared interests, the UK and the EU will work towards facilitating cooperation between their respective LEAs and their judicial authorities dealing with criminal matters where there is, or may be, a cross-border element. The EU and the UK will also cooperate on preventing, detecting and investigating counterterrorism and countering violent extremism where there is, or may be, a cross-border element. This cooperation should include close dialogue covering issues including (but not limited to) emerging threats and new capabilities, and the sharing of best practice. The objective of Part 8 of the UK DA is to afford the widest measure of cooperation in respect of the transfer of sentenced persons. It sets out, among other: the conditions that need to be met for a transfer; what information and supporting documents need to be provided; rules about the requests and replies to requests for transfer; consent and transfer without consent; decision to accept and enforce, grounds for refusal and deadlines; exceptions to the dual criminality requirement; termination of enforcement; information on enforcement; rules on transit, etc. The EU Mandate and DA do not provide for arrangements on the transfer of sentenced persons. Part 9 of the UK DA is dedicated to MLA. Its objective is to supplement the provisions and facilitate the application between the UK and the MSs the 1959 MLA Convention and its Protocols. Chapter 3 deals with data protection and confidentiality. Part 10 is entitled “Real time data exchange”. It consists of a text in brackets regarding SIS, according to which: the EU DA does not provide for the real-time exchange of alerts on persons or objects; the Commission believes that it is not legally possible for a non-Schengen third country to cooperate with the EU through the SIS II database and that the agreement need not provide similar capabilities. The text clarifies that according to the UK there is a mutual interest in providing capabilities similar to SIS II and that this is legally possible. The UK DA concludes that the UK maintains its offer to the EU in this regard, as set out in the UK Mandate.

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Part 11 consists of provisions regarding the exchange of fingerprint, DNA and vehicle registration data. It also has a separate chapter dealing with the issue of data protection. Part 12 sets out a framework for future cooperation for the purposes of investigations and proceedings aiming at the confiscation of instrumentalities and proceeds. It sets out an obligation to assist in the identification and tracing of instrumentalities, proceeds and other property liable to confiscation and provides a framework as regards requests for information on bank accounts, on banking transactions and requests for monitoring banking transactions. Part 12 also lays down rules regarding, among others: provisional measures; the obligation to confiscate and execution of confiscation; the confiscated property; grounds for refusal of cooperation; recognition of foreign decisions, etc. Part 13 covers the establishment and remit of a Joint Committee. The Joint Committee is to be responsible for the implementation and application of the agreement. The UK and the EU may refer to it any issue relating to the implementation, application and interpretation of the agreement. Part 13 also provides for the framework for dispute settlement described at the beginning of this section. Part 14 consists of general and final provisions. It provides that the UK and the MSs may continue to apply or enter into bilateral or multilateral agreements or arrangements in so far as such agreements or arrangements allow the objectives of the agreement to be extended or enlarged and help to simplify or facilitate further the procedures for cooperation within the scope of the agreement. Part 14 also lays down rules as regards: the interpretation of the agreement; the suspension and termination of the agreement; the lack of direct effect of the agreement; the role of the UK when it comes to future accessions of third countries to the EU, etc. It should be noted that there are a number of issues and areas that are covered by the PD, the EU Mandate and the EU DA, but are not mentioned at all in the UK Mandate and the UK DA. These include exchange of intelligence, AML and cybersecurity. Counterterrorism is also not mentioned in the UK Mandate, but is mentioned briefly in the UK DA. However, cooperation and exchange of information when it comes to terrorist offences is covered in the relevant provisions of the specific area of cooperation (e.g. with Europol, Eurojust, Prüm, etc.). The UK Mandate and the UK DA, on the other hand, specifically provide for arrangements on prisoner transfers, which is an issue not mentioned at all in the PD, the EU Mandate or the EU DA. The UK

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Mandate and the UK DA also set out arrangements for freezing and confiscation. There is no mention of freezing and confiscation in the PD and the EU Mandate. As for the EU DA, it refers to freezing and confiscation only in the context of AML.

4.5

Negotiations

According to the Terms of Reference on the UK–EU future relationship negotiations,126 the negotiations are to take place in eleven different negotiating groups. One of those groups is dedicated to LE and JCCM. The Terms of Reference provide that full negotiating rounds will in principle take place every two to three weeks and will alternate between London and Brussels. A timetable for the negotiating rounds was agreed, setting out the dates for five negotiation rounds. The first negotiating round took place as agreed from 2 to 5 March 2020. However, following the outbreak of the COVID-19 pandemic within Europe and the consequent restrictions introduced by a number of countries, including by the UK and Belgium, as well as both the EU and the UK Chief Negotiators testing positive for the virus, no other negotiation rounds took place until 20 April 2020. In his remarks after the first negotiating round,127 the EU’s Chief Negotiator explained that there were very serious differences in the positions of the EU and the UK, even though this was not unexpected after only a first round of negotiations. One of the difficulties mentioned concerned specifically police and JCCM and had to do with commitments on fundamental rights. The UK had informed the EU negotiators that it will not formally commit to continue applying the ECHR. Moreover, the UK did not want the CJEU to play a role, including as regards interpreting European law. Barnier concluded that if this position was maintained, it would have immediate and practical consequences for future cooperation, which would remain possible on the basis of international agreements but would not be as ambitious as initially wished.

126 https://ec.europa.eu/info/publications/terms-reference-uk-eu-future-relationshipnegotiations_en. 127 https://ec.europa.eu/commission/presscorner/detail/en/speech_20_402.

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Another point of divergence related to the difference in approach over the governance of the future agreement and the horizontal provisions. It opposed the UK approach of having several agreements with their own governance mechanisms to the EU approach of having one comprehensive agreement with one governance mechanism. It is a bit more difficult to comment on the UK take of the first round of negotiations. The UK’s Chief Negotiator does not seem to provide a public briefing after each round of negotiations in the same way that the EU’s Chief Negotiator does. A fairly laconic statement by a UK Government Spokesperson on the conclusion of the first round of negotiations was posted on the UK Government website on 5 March 2020.128 According to it, the first round was a chance for both sides to set out their positions and views. The UK team “made clear that, on 1 January 2021, we would regain our legal and economic independence – and that the future relationship must reflect that fact ”. The statement noted that in some areas there seemed to be a degree of common understanding, while in other areas, “such as fishing, governance, criminal justice and the so-called ‘level playing field’ issues there are, as expected, significant differences ”. Not much more was added in the written statement made on 9 March 2020 to the House of Commons by Michael Gove, Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office.129 It could, however, be noted that the 9 March statement no longer referred to criminal justice as an area of significant differences. It referred to “governance and dispute settlement ” instead. No further details as to any of the fields of negotiations were given in either statement. The second round of negotiations, which took place a month and a half later, did not seem to bring any significant movement as regards the main differences that emerged after the first round. In his remarks after the second negotiating round,130 Michel Barnier referred to the EU DA from 18 March as proof that it was possible to put together a complete Treaty

128 https://no10media.blog.gov.uk/2020/03/05/statement-on-the-conclusion-of-thefirst-round-of-negotiations/. 129 Written statement—HCWS153. https://www.parliament.uk/business/publications/ written-questions-answers-statements/written-statement/Commons/2020-03-09/HCW S153/. The same statement was also made to the House of Lords by Lord True, Minister of State—HLWS146, https://www.parliament.uk/business/publications/wri tten-questions-answers-statements/written-statement/Lords/2020-03-09/HLWS146/. 130 https://ec.europa.eu/commission/presscorner/detail/en/statement_20_739.

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covering all areas of the future partnership within a limited timeframe, if there was the will to do so. He also pointed to the fact that the UK had, for its part, sent text proposals in some areas as well. However, the UK had insisted that these remain confidential, which meant that even the MS and the European Parliament were not allowed access to them.131 Barnier also made some strongly worded remarks, putting into question the EU’s patience with the way the negotiations had been advancing so far. He noted that the EU’s absolute priorities right now lay with resolving the challenges posed by the COVID-19 pandemic and that conducting the second round of the negotiations in this context might appear out of touch and had even been qualified as “surreal ”. He stressed the need to be realistic given the tight deadlines that have been set by law: 30 June 2020 for a joint decision to extend the transition period and 31 December 2020 as the end of the transition period if not extended. He also noted that the UK government had made clear that it would refuse any extension of the transition period. Barnier explained that the aim of the second round was to advance on all areas of the negotiation in parallel—including the most difficult areas. He emphasised that the EU could not accept to make selective progress on a limited set of issues only and that the UK “cannot refuse to extend the transition and, at the same time, slow down discussions on important areas ”. One of the areas where progress was disappointing concerned police and JCCM specifically. Just like after the first negotiating round, the EU’s Chief Negotiator pointed to the UK’s refusal to provide firm guarantees on fundamental rights and individual freedoms. However, this time he added that the UK “insists on lowering current standards and deviating from agreed mechanisms of data protection”. He reiterated that this created serious limitations for the future EU–UK security partnership. Barnier specifically referred to the UK’s choice to be a third country, which brought as a consequence that the UK would not be treated as an MS. He expressed his conviction, however, that the security partnership that was envisaged was still “unprecedented for a non-Schengen third country that rejects the free movement of people, both due to the number of fields covered and the closeness of cooperation proposed”.

131 This highlights yet again the difference of approach between the EU and the UK when it comes to the transparency in the conduct of the negotiations.

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The UK’s continued adherence to the ECHR, which should be given effect in domestic law so that individuals can rely on it, was again highlighted as a point of divergence and as a point which was particularly important in the field of law enforcement and internal security. Barnier also stressed—once again—that the Partnership cannot deliver on the high level of ambition expressed in the Political Declaration without the UK recognising the role of the CJEU when concepts of Union law are used—especially for the exchange of personal data. Just as was the case after the first negotiating round, a statement by a UK Government spokesperson on round two of the UK-EU negotiations was posted on the UK Government website on 24 April 2020.132 The statement focused primarily on the differences between the two sides as regards trade and fisheries. It noted that there were also significant differences of principle in other areas and that it would not be possible to make progress on the so-called “level playing field” and the governance provisions “until the EU drops its insistence on imposing conditions on the UK which are not found in the EU’s other trade agreements and which do not take account of the fact that we have left the EU as an independent state”. Negotiations on LE and JCCM were not mentioned at all. A further written statement was made on 28 April 2020 to the House of Commons by Michael Gove,133 which added some more details. According to the statement, prior to the negotiating round both sides had shared legal texts. The UK had shared, among others, a text on LE and criminal justice cooperation. The statement added that, “[i]n accordance with normal negotiating practice, the Government has not made these texts public, but keeps this issue under close review and would be ready to do so at a moment when it helped the negotiating dynamics ”. As far as LE and JCCM are concerned, the statement noted that the second round covered a UK presentation of the UK Law Enforcement Treaty with detailed discussions on operational capabilities. Some areas of significant differences of principle remained, including governance and dispute

132 https://no10media.blog.gov.uk/2020/04/24/statement-on-round-two-of-uk-eunegotiations/. 133 Written statement HCWS209—https://www.parliament.uk/business/publications/ written-questions-answers-statements/written-statement/Commons/2020-04-28/HCW S209/. The same statement was also made to the House of Lords by Lord True, Minister of State—HLWS205, https://www.parliament.uk/business/publications/wri tten-questions-answers-statements/written-statement/Lords/2020-04-28/HLWS205/.

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settlement. The statement concluded that “[p]rogress in these areas will require the EU to engage with the political realities of the UK as an independent state”. According to both UK statements, the second round was “a full and constructive negotiating round”—an assertion, which appears to be in contradiction with the views expressed by the EU’s Chief Negotiator in his remarks after the second negotiating round. The third negotiating round took place on 11–15 May and both Chief Negotiators appeared frustrated and disappointed at the end of it. In his remarks after the third negotiating round,134 Barnier explained that “with the exception of some modest overtures, we failed to make any progress on any of the other more difficult topics ”. For the first time, the UK’s “lack of ambition in a number of areas that may not be central to the negotiation, but which are nonetheless important and symbolic” such as the fight against money laundering was mentioned. As regards police and judicial cooperation in criminal matters, Barnier noted that there was broad agreement on the objectives, but that two fundamental obstacles remained and must be resolved before any new tools for cooperation could be put in place. These obstacles were the same as in the previous rounds, namely: • the UK’s refusal to commit in the text of the agreement to guarantees protecting fundamental rights and individual freedoms resulting from the ECHR; and • data protection. On the issue of data protection, the EU’s Chief Negotiator commented that the UK “insists on lowering current standards and deviating from agreed mechanisms of data protection – to the point that it is even asking the Union to ignore its own law and the jurisprudence of the European Court of Justice on passenger data (‘PNR rules’ )”, which would be “of course impossible”. Barnier concluded that the next round must bring new dynamism in order to avoid a stalemate. Unlike in the previous two rounds, this time the UK’s Chief Negotiator made a statement at the end of the third round of negotiations.135

134 https://ec.europa.eu/commission/presscorner/detail/en/speech_20_895. 135 https://no10media.blog.gov.uk/2020/05/15/david-frosts-statement-at-the-endof-round-3-negotiations-with-the-eu/.

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He expressed his regret that very little progress had been made towards agreement on the most significant outstanding issues. David Frost noted that “[i]t is very clear that a standard Comprehensive Free Trade Agreement, with other key agreements on issues like law enforcement, civil nuclear, and aviation alongside, all in line with the Political Declaration, could be agreed without major difficulties in the time available”. He pointed to the fact that both sides had tabled full legal texts, that there were plenty of precedents, and that there was clearly a good understanding between negotiators. The UK’s Chief Negotiator argued that the major obstacle to an agreement was the EU’s insistence on including “a set of novel and unbalanced proposals on the so-called “level playing field” which would bind this country to EU law or standards, or determine our domestic legal regimes, in a way that is unprecedented in Free Trade Agreements and not envisaged in the Political Declaration”. He emphasised that as soon as the EU recognised that the UK will not conclude an agreement on that basis, it would be possible to make progress. There were no specific details given on the negotiations in the field of police and JCCM. However, the UK’s Chief Negotiator explained that the UK intended to make public all the UK draft legal texts. The third negotiating round was followed by an exchange of letters between the Chief Negotiators. On 19 May 2020, the UK made its draft legal texts public. This was accompanied by a letter from Frost to Barnier,136 in which the UK’s Chief Negotiator commented that he found it “perplexing that the EU, instead of seeking to settle rapidly a highquality set of agreements with a close economic partner, is instead insisting on additional, unbalanced, and unprecedented provisions in a range of areas, as a precondition for agreement between us ”. He reiterated his view that the EU’s proposals were novel and unbalanced and would bind the UK to EU law or standards. The letter mentioned law enforcement as well. According to Frost, the EU proposals on LE did not provide for an unprecedentedly close relationship, contrary to what the EU had been arguing. He remarked that in fact “they do not go beyond agreements [the EU has] made with other third countries, many of whom have far less data to offer the EU and are less closely involved in the mutual fight against crime”. Frost concluded 136 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/att achment_data/file/886168/Letter_to_Michel_Barnier_19.05.20.pdf.

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that the UK did not agree that the simple fact of putting a set of standard measures into a single agreement could in itself justify the exceptional and intrusive safeguards the EU was seeking in this area. Barnier responded by letter to Frost on 20 May 2020.137 The EU’s Chief Negotiator wrote he did not believe an exchange of letters regarding the substance of the negotiations “is necessarily the best way to discuss on substantial points ” and that this “cannot be a substitute for serious engagement and detailed negotiations ”. In particular, he noted he would not like the tone that Frost had taken “to impact the mutual trust and constructive attitude that is essential between us ”. Barnier stressed that “there is no automatic entitlement to any benefits that the EU may have offered or granted in other contexts and circumstances to other, often very different, partners ”, that the EU did not accept “cherry picking from our past agreements ” and that the EU “is looking to the future, not to the past, in these negotiations ”. As regards LE and JCCM, Barnier explained that the EU had never previously offered such a close and broad security partnership with any third country outside the Schengen area. He observed that “[s]ome UK demands in this area go well beyond the well-precedented approach it declares to be taking ”. The EU’s Chief Negotiator mentioned in particular the UK’s wish for continued access to EU or Schengen databases, noting that such access is linked to the obligations that MSs have to comply with. Barnier underlined that these are all areas that by their nature require strong safeguards in terms of protection of fundamental rights and that the EU needed the UK “to provide those guarantees, as agreed only seven months ago in the Political Declaration, such as adequate data protection standards ”. This public exchange of harshly worded letters constituted yet another step forward in the escalation and progressive hardening of tone which could be observed after each negotiating round. While it might have served the purpose of setting the scene for a blame game if negotiations failed, it would certainly not help foster a feeling of goodwill around the negotiating table.

137 https://ec.europa.eu/info/sites/info/files/brexit_files/info_site/uktf-202030 60790-mb-reply-to-df-wd.pdf.

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A de-escalation, at least nominally, could be observed after the fourth negotiating round which took place on 1–5 June. In his statement,138 Frost underlined that progress remained limited but that the talks had been positive in tone. He considered that the limits of what could be achieved through remote negotiating rounds were being reached and that for progress to be made the work must be intensified and accelerated. No specific mention of LE and JCCM, data protection or fundamental rights was made in the statement. On the EU side, in his remarks after the fourth negotiating round,139 Barnier thanked Frost and the two negotiating teams for the mutual respect, the quality of their work and their professionalism. He then went on to say that, yet again, no substantial progress had been made; that this had been the case since the beginning of the negotiations; and that this could not continue forever, especially given the UK’s continued refusal to extend the transition period. As far as police and JCCM go, he noted there had been a “slightly more constructive discussion” on the question of commitment to the ECHR, although important questions remained as to how to reflect this commitment in the agreement and the discussions still fell short of what had been agreed in the PD. Barnier mentioned a number of other objectives set out in the Political Declaration on which the negotiating teams were still far apart, including paragraph 82 of the PD, according to which the future agreement should cover AML and counterterrorism financing. The UK Mandate and DA do not provide for these issues to be covered by the future agreement. It remains to be seen how negotiations will progress. However, with the end of the transition period approaching, the question of whether an extension is necessary has come sharply to the fore. Time is running out and the chances of even the most basic agreement being negotiated and concluded before the end date of the transition period come to pass are getting smaller and smaller. The progressive hardening of tone after each of the negotiating rounds, though somewhat appeased after the fourth round, also does not bode well for the future EU–UK relationship in this field or for the likelihood of the EU searching for creative solutions to accommodate the UK.

138 https://no10media.blog.gov.uk/2020/06/05/david-frosts-statement-followingthe-conclusion-of-round-4-negotiations-with-the-eu/. 139 https://ec.europa.eu/commission/presscorner/detail/en/speech_20_1017.

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References European Council. (2018). Special meeting of the European Council (Art. 50) (25 November 2018)—Statements for the minutes. Document EUCO XT 20017/18. Peers, S. (2020a). Negotiating the future relationship between the UK and EU: The EU negotiating mandate. EU Law Analysis (blog). https://eulawanalysis. blogspot.com/2020/02/negotiating-future-relationship-between_26.html. Peers, S. (2020b). Justice and home affairs in the future UK/EU relationship: Analysis of the negotiation positions. EU Law Analysis (blog). https://eulawanalysis.blogspot.com/2020/02/justice-and-homeaffairs-in-future-ukeu.html.

CHAPTER 5

EU–UK Cooperation After the Transition Period—Possible Scenarios

Abstract This chapter examines the possible forms that the future law enforcement and judicial cooperation in criminal matters can take. Then it looks at the likely areas, which might be covered by this future cooperation, such as cooperation with EU agencies like Europol and Eurojust; exchange of criminal records data; exchange of DNA, dactyloscopic and vehicle registration data; exchange of passenger name records (PNR) data; exchange of information on wanted and missing persons and objects; surrender procedures and mutual legal assistance. It also analyses the overarching issues of protection of personal data and the future role of the Court of Justice of the EU. Keywords Europol · Eurojust · ECRIS · Prüm · PNR · SIS · Surrender · MLA · Data protection · Jurisdiction of the CJEU

5.1

Form of the Future Cooperation

The EU and the UK have a mutual interest in maintaining strong cooperation in the fields of security (police) and criminal justice (Carrera et al., 2018, iii). However, this alone does not guarantee that the future relationship in this field will provide for strong cooperation.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Pencheva, EU-UK Police and Judicial Cooperation in Criminal Matters, St Antony’s Series, https://doi.org/10.1007/978-3-030-71475-8_5

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Any kind of future EU–UK police and JCCM requires that a certain legal framework be put in place—both domestically and internationally. The different options for a legal framework for cooperation after the end of the transition period include: (a) a comprehensive security agreement with the EU; (b) separate sectoral agreements with the EU, e.g. for cooperation with Europol, for surrender cooperation, etc.; (c) CoE and UN conventions; (d) bilateral agreements with MSs. The status quo after the end of the transition period will see a legal framework built on the basis of existing conventions in this field, such as CoE and UN conventions, coupled with the WA provisions dealing with transitional situations. This will be the absolute minimum that will exist if nothing different is negotiated before the end of the transition period. Such a development will mark a sharp decrease in the ability of LEAs and judicial authorities of the EU MSs and the UK to cooperate with each other. Mitsilegas (2019, 204) notes in this respect that falling back to the CoE Conventions on Extradition and MLA would be a return “back to the 5os” for the UK. When it comes to the option of negotiating bilateral agreements separately with the MSs, caution should be exercised. This is a very complicated option, not just because the UK authorities will end up with a panoply of fragmented regimes for cooperation, exchanges of data and information, depending on the type of data and the MS with which the cooperation is to take place. It is also a risky option, because it will be dependent on the extent to which MSs can even negotiate such bilateral agreements. The extent to which MSs can negotiate bilateral agreements would, for its part, depend on the distribution of competences between the EU and the MSs and the extent to which the EU has acted internally. EU competence is governed by the principle of conferral, according to which the Union can act only within the limits of the competences conferred upon it by the MSs in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the MSs.1 1 Article 5(1) and (2)TEU.

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When it comes to the AFSJ, this is an area of shared competence internally.2 This means that internally, the EU and the MSs may legislate and adopt legally binding acts in that area. The MSs can exercise their competence to the extent that the Union has not exercised its competence.3 Even though the AFSJ is an area of shared competence internally, it can be an area of exclusive EU competence externally. One of the cases in which the EU has exclusive competence for the conclusion of an international agreement (which is what an EU–UK agreement will be) is when the conclusion of the agreement may affect common rules or alter the scope of common rules.4 Whether the EU has exclusive competence is important, because if the EU has exclusive competence, this means that only the Union may conclude such international agreements, with MSs being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.5 Should the MSs find themselves in such a scenario, they will not be able to negotiate bilateral agreements with the UK, as only the EU will have the competence to negotiate such agreements. This codifies the long-standing case law of the Court dating back to the 70s, according to which each time the Union adopts provisions laying down common rules, whatever form they may take, the MSs no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules.6 The system of internal Union measures cannot therefore be separated from that of external relations.7 The Court subsequently developed its case law further. It found there is a risk that common EU rules may be adversely affected by international commitments undertaken by the MSs, or that the scope of those rules may be altered in a way to justify an exclusive external competence of the EU,

2 Article 4(2)(j) TFEU. 3 Article 2(2) TFEU. 4 Article 3(2) TFEU. 5 Article 2(1) TFEU. 6 Judgment of 31 March 1971, Commission v Council (‘ERTA’), 22/70, EU:C:1971:32, paragraph 17. See also Opinion 2/15 (EU-Singapore Free Trade Agreement ) of 16 May 2017, EU:C:2017:376, paragraph 170. 7 Ibid., paragraph 19.

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where those commitments fall within the scope of those rules.8 A finding that there is such a risk does not presuppose that the area covered by the international commitments and that of the EU rules coincide fully.9 It is sufficient that the commitments fall within an area, which is already covered to a large extent by such rules.10 The exclusive competence of the EU in such cases must have its basis in conclusions drawn from a comprehensive and detailed analysis of the relationship between the international agreement envisaged and the EU law in force. That analysis must take into account the areas covered, respectively, by the rules of EU law and by the provisions of the agreement envisaged, their foreseeable future development and the nature and content of those rules and those provisions, in order to determine whether the agreement is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish.11 A risk of common EU rules being affected may also be found to exist where the international commitments at issue, without necessarily conflicting with those rules, may have an effect on their meaning, scope and effectiveness.12 This means that it will be very difficult or even impossible for the MSs to conclude bilateral agreements with the UK in the AFSJ, if the EU has already adopted an internal act dealing with the subject matter of the planned bilateral agreement. The reason is that, if common EU rules exist, then a bilateral agreement would be likely to affect those common rules or alter their scope. Moreover, according to the case law of the Court, a bilateral agreement may be precluded also when the bilateral agreement falls within an area covered not fully, but only to a large extent by such rules, or even in cases where the foreseeable future development of EU rules might cover this area.

8 Opinion 3/15 of the Court (Grand Chamber) of 14 February 2017, EU:C:2017:114, paragraph 105 and case-law cited therein. 9 Ibid., paragraph 106, and case-law cited therein. 10 Ibid., paragraph 107, and case-law cited therein. 11 Ibid., paragraph 108, and case-law cited therein. See also Judgment of the Court (Grand Chamber) of 20 November 2018, Commission v Council, Joined Cases C-626/15 and C-659/16, EU:C:2018:925, paragraph 113. 12 Joined Cases C-626/15 and C-659/16, cited above, paragraph 114 and case-law cited therein.

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The UK’s main interests when it comes to AFSJ cooperation concern ultimately exchanges of personal data. This, however, is an area which is covered to a large extent (one could even argue fully) by common EU rules such as the provisions of the Charter, the GDPR, the LED, the data protection provisions in sectoral instruments such as the Europol and Eurojust Regulations, PNR Directive, etc. It is therefore very unlikely that the MSs will be able to negotiate any meaningful bilateral agreements with the UK as regards exchanges of personal data in the AFSJ. Moreover, the issues of common interest for the EU and the UK in terms of future AFSJ cooperation concern areas where there are EU instruments already. The goal on both sides appears to be to put in place arrangements similar to the ones that exist on EU level. This inevitably means that these are areas in which the EU has legislated internally, quite probably resulting in exclusive EU competence externally and precluding the MSs’ ability to conclude bilateral agreements with third countries. MSs are free to negotiate bilateral agreements in areas where the EU has not yet exercised its competence to adopt common rules. However, should the EU in future decide to adopt EU acts in those areas, then this could lead to the adoption of common EU rules where there were none before. If the bilateral agreements contravene those new EU acts and rules, it could be argued that the MSs might find themselves in a situation where they would need to either amend their bilateral agreements to put them in line with EU law, or terminate them, at the risk of the MS’s national law finding itself in breach of EU law. This could be avoided if the new EU act contains a provision regarding the relationship with previously concluded international agreements, which allows such agreements to remain in force. This is for example the case with the LED, which provides that international agreements involving the transfer of personal data to third countries or international organisations which were concluded by MSs prior to 6 May 2016 and which comply with Union law as applicable prior to that date shall remain in force until amended, replaced or revoked.13 Even in situations where it would be possible to negotiate separate bilateral agreements with EU MSs, this would still be an undesirable option, as it would be very time consuming and will result in creating

13 Article 61 LED.

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a legal framework, which will be very difficult and complex for LEAs and judicial authorities to navigate. This leaves the option of putting in place an EU–UK legal framework as the most practicable and least disruptive option. This can be done either by negotiating a comprehensive security partnership, or by negotiating separate sectoral agreements covering different aspects on which the EU and the UK have managed to find agreement. The first option would benefit from providing for a more or less comprehensive framework with its own governance model, which should facilitate the work of the EU and the UK LEAs and judicial authorities. The second option would allow to have agreements put in place as and when negotiations on these sectoral issues are concluded, thus ensuring that difficult negotiations in one sector will not prevent agreement being reached and measures being put in place in another sector. The EU’s preferred option is for a comprehensive agreement with an overarching governance mechanism, covering not only the future security partnership, but all areas of interest outlined in the PD. The UK, on the other hand, prefers to negotiate a comprehensive free trade agreement, supplemented by a range of other separate international agreements covering, inter alia, LE and JCCM. The UK Mandate, however, seems to argue in favour of one single LE and JCCM agreement that includes the necessary arrangements on data exchange for LE purposes, operational cooperation between LEAs and JCCM. Considering the time constraints and how slow negotiations have been going so far, it seems unlikely that a comprehensive framework can be negotiated in time for the end of the transition period, especially if the transition period is not extended. This would leave the option of negotiating separate sectoral EU–UK agreements, for example an MLA agreement, a PNR agreement, etc., as the only viable option. Having to negotiate so many different agreements separately would take time and could be quite complicated. It might necessitate new mandates to be adopted by the EU and the UK and then negotiations to restart on the basis of these new mandates. The likelihood that this could be done in time to allow for negotiations to be concluded before the end of the transition period (if it is not extended) is very slim. On the other hand, going for separate agreements might allow for flexibility and to make progress faster in at least some of the areas where the mandates of the EU and the UK seem already quite close. It would also allow to focus on the political priority areas first.

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What could happen is that the negotiators will look at their respective mandates, see where they are broadly converging and attempt to negotiate sectoral agreements in these areas of convergence, to at least avoid a full cliff-edge end of the transition period. If one looks at the mandates as regards LE and JCCM, there are a number of such areas where sectoral agreements can be negotiated. Because these would concern areas of near convergence, the negotiations can potentially be concluded fairly quickly, as they will not be slowed down by the inability to find agreement in other areas. This is, of course, subject to finding a solution to the overarching issues of data protection and the role of the CJEU. Conversely, it could be argued that the proposal to conclude an overarching treaty where instruments established under different EU legal bases are put side by side with each other may risk blurring the boundaries between criminal justice and police cooperation, which is why the conclusion of sectoral agreements in the field of criminal justice may be politically and legally more acceptable than a holistic approach (Carrera et al., 2018, 144). The option of EU–UK separate bilateral sectoral agreements would offer a pragmatic and tailor-made approach, which could be expanded according to the needs of both parties (Carrapico et al., 2019, 59). In fact, a framework of cooperation with the EU built on a series of bilateral agreements already exists with Switzerland, Andorra, Monaco and San Marino (Carrapico et al., 2019, 59). However, as Carrapico et al. (2019, 59) note, despite the flexibility offered by the EU-Switzerland system for example, that system has proved quite challenging, slow moving and constitutes a cumbersome and fragmented basis for a relationship. In its 2019 Conclusions on EU relations with the Swiss Confederation, the Council reiterated what it had emphasised through successive sets of conclusions, namely that the present system of bilateral agreements with Switzerland has reached its limits, due to its complexity, its incompleteness and the resulting lack of homogeneous conditions for citizens and businesses (Council, 2019). On the basis of this track record, even if the UK were interested in exploring this model, it is unlikely that the EU would be willing to do so (Carrapico et al., 2019, 59). Still, the EU-Switzerland system of bilateral agreements covers the whole spectrum of EU-Switzerland relations, including trade, research, education, transport and Switzerland’s participation in the internal market. It could, therefore, be possible that the EU would accept a system of bilateral EU–UK agreements, if they were only in the field of justice and home affairs.

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Ultimately, the form of the future cooperation is a question of political choice. Even the time constraints imposed by the end of the transitional period can be managed with a political choice to extend it. A number of the red lines on both sides reflect political choices rather than legal requirements. We have often seen since 2016 that decisions concerning Brexit have been taken on the basis of what would be considered a politically opportune course of action within the national political power context rather than what would be the best solution in a national and international context. And while internal security has traditionally been one of the main concerns of the British public, such concerns were seldom reflected in the debate running up to the EU exit referendum in June 2016 (Carrapico et al., 2019, 1–2). Even after the Brexit referendum, the questions of the future police and JCCM with the EU have still been largely absent from the wider public debate. As Baker (2018) noted, compared with certain other matters, the nature and extent of post-Brexit relations in the criminal justice arena has received relatively muted debate, which given their intrinsic importance, is both surprising and concerning. In fact, from the onset UK political debates have been largely characterised by an unsubstantiated, although dominant, idea that little will change in this area of cooperation (Carrapico et al., 2019, 43). While the terrorist attacks that took place in the UK between March and June 2017 (the Westminster attack on 22 March, the Manchester Arena bombing on 22 May and the London Bridge attack on 3 June) triggered a multiplication of Brexit and security references among pre-2017 General Election discourses, security proposals for Brexit negotiations remained essentially vague (Carrapico et al., 2019, 3). What is more, neither the November 2019 terrorist attack,which took place in the pre-2019 General Election context less than two weeks before UK’s December election, nor the January and February 2020 terrorist attacks, which took place immediately before and after the UK left the EU, seemed to rekindle any serious debate in the public sphere as to the impact of Brexit on EU–UK security cooperation. One of the reasons for this lack of public debate might be that cooperation in the fields of LE and JCCM is a very technical and complex matter to discuss. Another reason might be that the consequences of the loss of such cooperation are not immediately evident to the average person. This is understandable considering that the economic impact of Brexit after the end of the transition period will be felt almost immediately. The impact of

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the decrease in security cooperation between the EU and the UK will take longer to become noticeable to the general public and even then could easily be explained away with other factors in order to prevent a narrative, which is negative towards Brexit. All this does not make the issue a popular one to debate or to report on. As a result, the impact of Brexit on the UK’s ability to fight crime and convict criminals has been largely left unreported. LE and JCCM seem to get overshadowed by talks about economic cooperation. Not only that, but whenever the issue of security cooperation is mentioned, the focus seems to be on the future defence and security cooperation visà-vis third countries and how the EU and the UK will coordinate this cooperation. This is very surprising, considering not only the importance of LE and JCCM, but also the fact that a lot more will be lost in terms of LE and JCCM than in terms of defence and security cooperation visà-vis third countries. This follows logically from the fact that defence and security cooperation have for the most part remained intergovernmental and therefore cooperation could continue without significant problems outside of the EU framework, which is not the case with LE and JCCM. This ultimately means that there is unlikely to be any pressure from the UK public for a comprehensive security partnership to be negotiated with the EU. If the UK government is focused on the public response to its negotiation strategy, then the lack of public interest in security cooperation would leave the UK negotiators with the freedom to just walk away from any deal, if it comes to that. Moreover, as mentioned above, the impact on public life of any losses in terms of security cooperation with the EU will be far less visible than the impact of the lack of a trade partnership and will go largely unnoticed by the public in the short and medium term. In the end, these political considerations can have a significant impact on the form that the future EU–UK cooperation in these fields will take. The UK Mandate makes it clear that the government does not intend to extend the transition period. If there is no broad outline of an agreement by the time the June high-level meeting takes place, the UK may decide to move away from negotiations and focus solely on domestic preparations to exit the transition period in an orderly fashion.14 The lack of public

14 Point 9 UK Mandate.

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pressure on the government when it comes to LE and JCCM would make this area an easy target to be left behind. On the other hand, a lot of work has been done by the UK civil service and legal teams on analysing what the impact of Brexit would be on the currently existing EU instruments for LE and JCCM and looking at how to minimise that impact. Let us not forget that the May government made clear that it intended to have as close as possible a security relationship with the EU after Brexit. Even if the Johnson government does not seem to be following the same strategy, the foundations are there, the underlying work has been done to allow that, should there be a will, a close security partnership can be negotiated and the necessary analyses and possible scenarios have been researched and are available.

5.2

Content of the Future Cooperation

Considering the time constraints, any successful negotiations are likely to be in the areas of convergence in the EU and UK Mandates. These areas include cooperation with Europol and Eurojust; exchange of PNR data; exchange of dactyloscopic, DNA, vehicle registration data (Prüm); exchange of criminal records data (ECRIS); surrender procedures; MLA. These areas of convergence in the EU and UK Mandates will be dealt with in in more detail below. The particularities of SIS and JITs will also be mentioned, as well as the overarching issues of data protection and the role of the CJEU. The points of divergence will not be dealt with in terms of future scenarios. Considering the limited amount of time available before the end of the transition period, as well as the number of issues that need to be negotiated (not only in the AFSJ), it seems unlikely that there will be much (if any) negotiation on the areas where there is no common ground. This, of course, does not relate to overarching issues such as fundamental rights, dispute resolution, governance mechanism. These issues will need to be negotiated and potentially even decided on before the negotiations on points of convergence can advance. 5.2.1

Europol

Cooperation both with Europol and with Eurojust is specifically mentioned in the EU and the UK Mandates. The UK Mandate puts a

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clear emphasis on strong cooperation with Europol, going beyond what exists with third countries currently. Any meaningful cooperation with Europol, as well as with Eurojust, will have to include processing of personal data and will therefore have to respect the requirements of the relevant EU legal bases for these agencies, including as regards data protection safeguards. While in general it is possible to conclude agreements with third countries which do not include the possibility for transfers of personal data and only concern exchange of strategic information, this would not provide a basis for the kind of cooperation that both the EU and the UK seem to want to have in the future. Given the importance of exchange of personal data for the future EU– UK cooperation with Europol and with Eurojust, the analysis of what options exist will focus on the options that allow for the broadest possible exchange of personal data. Article 25 of the Europol Regulation provides that Europol may transfer personal data to a third country, insofar as such transfer is necessary for the performance of Europol’s tasks, on the basis of one of the following: 1. An adequacy decision adopted under the LED finding that the third country in question ensures an adequate level of protection. 2. An international agreement concluded between the Union and the third country pursuant to Article 218 TFEU adducing adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals. 3. A cooperation agreement allowing for the exchange of personal data concluded between Europol and the third country before 1 May 2017, that is to say before the date when the Europol Regulation became applicable. 4. The Europol Regulation also allows, by way of derogation, the exchange of personal data not on the basis of the above three options in the following cases: • on authorisation by the Executive Director, ad hoc transfers of personal data to a third country may be allowed on a case-bycase basis and provided that a number of conditions are met.15 15 See Article 25(5) and (6) Europol Regulation.

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Such derogations cannot be applied to systematic, massive or structural transfers.16 • the Management Board, in agreement with the European Data Protection Supervisor (EDPS), can authorise a set of transfers for a (renewable) period not exceeding one year, provided that a number of conditions are met and taking into account the existence of adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals.17 Such an authorisation must be duly justified and documented. Going through these four options, it becomes immediately clear that the third option cannot apply to the UK. The UK was a full member of Europol before 1 May 2017 and therefore did not need and did not have a cooperation agreement concluded with Europol. The fourth option would not allow for sufficient stability and certainty in the cooperation and is therefore unlikely to be used as a basis for EU–UK cooperation in the long term. Moreover, the fourth option sets out derogations to the general rules for transfers of personal data, these general rules requiring the presence of an agreement or an adequacy decision. As a derogation, the fourth option is subject to strict interpretation. The fourth option can, however, be used as a bridge for exchanges of personal data if the EU and the UK do not manage to conclude an agreement/adopt an adequacy decision in time for the end of the transition period. This can allow for exchanges of personal data to continue while an adequacy decision under option 1 or an international agreement under option 2 is being finalised. The derogation provided for in Article 25(6) of the Europol Regulation would seem particularly apt in such a situation. Out of the first two options (adequacy decision or international agreement), both the EU and the UK Mandates have expressed a clear preference for an adequacy decision. More details on the procedure and requirements for the adoption of an adequacy decision can be found below in Sect. 5.2.9. Suffice it to say that an adequacy decision would

16 Article 25(5) Europol Regulation. 17 Article 25(6) Europol Regulation.

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be a valid legal basis for the exchange of personal data under the Europol Regulation. As for the other modalities of the future UK cooperation with Europol, the UK Mandate clearly expresses an interest in maintaining as strong as possible a cooperation with Europol. The UK Mandate specifies that the agreement could go beyond existing precedents given the scale and nature of cooperation between the UK and Europol.18 The EU also has a very strong interest in maintaining a very close cooperation with the UK, not least because of the UK’s role as a major contributor of data. Denmark is often mentioned as a possible model to use for the future cooperation of the UK with Europol. As Denmark could not participate in the new Europol Regulation because of the application of Protocol 22, a solution had to be found for Denmark’s continued cooperation with and through Europol. The intention was to construct Denmark-specific arrangements that amounted to less than full membership of Europol and in essence constitute a type of “associate” membership of Europol (Curtin, 2018, 150). There are several reasons why it is very unlikely that Denmark can be used as a template for the future cooperation with the UK. First (and least problematic), Denmark’s cooperation is based on the third option provided for in the Europol Regulation, that is to say, a cooperation agreement concluded with Europol before 1 May 2017. As explained above, such a cooperation agreement is not an option for the UK. This in itself, however, does not exclude using the Denmark template as a model. The agreement does not need to be in the form of a pre-1st of May 2017 Europol cooperation agreement. It can take the form of an international agreement concluded between the EU and the UK pursuant to Article 218 TFEU. Second, Denmark is a MS of the EU. It is not bound by the Europol Regulation, because Protocol 22 did not allow it to opt into the Regulation, even though Denmark wished to do so. Denmark even organised a referendum, hoping to be able to switch from the current application of Protocol 22 to the Annex of Protocol 22. The Annex would have allowed Denmark to benefit from a system similar to the one that exists for the UK under Protocol 21 and would have allowed Denmark to opt into the Europol Regulation. The referendum result, however, did not

18 Part 2, points 46 and 47 UK Mandate.

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allow Denmark to switch to the Annex of Protocol 22 and Denmark was consequently left without any options to participate in the Europol Regulation. Considering that Denmark is a MS of the EU and that it did attempt to utilise every possibility it had to opt into the Europol Regulation, the EU showed the willingness to find a creative solution. The solution found required that Denmark be viewed simultaneously as a MS and a third country. It consisted in including Denmark in the list of third countries with which Europol shall conclude agreements, as set out in Decision 2009/935/JHA,19 on the basis of which Europol negotiated and concluded an agreement with Denmark, which entered into force on 30 April 2017—on the day before the Europol Regulation became applicable. This had to happen before the Europol Regulation became applicable, because the Europol Regulation repealed Decision 2009/935/JHA and set out a new regime for concluding agreements with Europol. It cannot be stressed enough that the solution found for Denmark is not a creative solution found for a third country, but a creative solution found for a MS. In this, it resembles the special treatment, particular arrangements and opt-outs that the UK benefited from while it was a MS. As Curtin (2018, 154) notes, the highly pragmatic solution adopted for Denmark bears witness to the desire of the EU to find solutions that would enable ongoing cooperation and access to databases, even if this is not the same as full participation in Europol. However, as she points out, “fundamental political willingness to engage in these kinds of legal and temporal knotting arrangements was for Denmark as a ‘full’ Member State, and not for a genuine (future) third country, which is what the UK is about to become, albeit from the position of having been a Member State partially ‘opted in’ to the system” (Curtin, 2018, 54). With the UK no longer being a MS, it is questionable how far the EU would be willing to go in the search for creative solutions. Moreover, granting a special status to the UK is likely to raise questions by other third countries as to why they are not granted the same status. As noted by Carrapico et al. (2019, 95), other LEAs are also interested in accessing the millions of shared files on European internal security issues and if the UK is granted access to these files as a non-EU MS, what would be the justification for not giving the same rights to the USA for example. 19 Council Decision 2009/935/JHA of 30 November 2009 determining the list of third States and organisations with which Europol shall conclude agreements.

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After all, the US is also a central partner for the EU in the fight against international terrorism (Carrapico et al., 2019, 95). Norway, Iceland and Liechtenstein can also question why a non-EU, non-Schengen and nonEEA country would be given more rights than they have. Third, Denmark is part of Schengen. The UK is not. The fact that Denmark is both a MS and part of Schengen is specifically mentioned in its Europol Agreement as a reason for going beyond the provisions usually included in operational agreements with third countries.20 Furthermore, the Agreement is conditioned on Denmark’s continued membership of the Schengen area, so that if Denmark were no longer bound by the Schengen acquis, the Agreement would as a consequence be terminated.21 Fourth, the CJEU has jurisdiction as regards questions of validity and interpretation of the Agreement raised by Danish courts or tribunals and as regards compliance by Denmark with the Agreement, as well as with regard to personal data protection and Europol’s liability.22 Fifth, the data protection provisions of the Agreement comprise an obligation for Denmark to apply the LED with respect to the personal data exchanged pursuant to the Agreement and to recognise the role of the EDPS.23 Sixth, the Agreement with Europol specifically refers to the fact that Denmark is bound by the ECHR and to Denmark’s obligations under the Charter.24 The fourth and fifth reasons mentioned constitute red lines for the UK. It seems unlikely that the UK will agree to continue applying EU law and to give the CJEU jurisdiction. The sixth reason—compliance with the ECHR and the Charter, has also emerged as a problem following the first three rounds of negotiations between the EU and the UK. For all of the above, it seems highly unlikely that the Danish model would be used as a template for UK’s future cooperation with Europol. It should, however, be noted that the problems outlined above are more

20 Recital (10) and Article 27 of the Denmark/Europol Agreement. 21 Recital (12) of the Denmark/Europol Agreement. 22 Recital (11) and Article 20 of the Denmark/Europol Agreement. 23 See Recital (12) and Article 10 of the Denmark/Europol Agreement. 24 Recitals (7) and (13) of the Denmark/Europol Agreement.

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of a political rather than legal nature. If one accepts that the creative solution found for Denmark is to be considered as legally sound, and should the EU and the UK show the political willingness to do so, a similar solution could be found for the UK. It would, however, require the UK to compromise on a number of its red lines, including application of EU law and jurisdiction of the CJEU. It would also require significant compromises on the part of the EU—both in accepting that a solution found for a MS could apply to a non-EU country in general, and as regards applying the solution to a non-Schengen country. If the EU opens the Danish model to the UK, it is difficult to see how it could argue against applying it to other third countries (the Schengen associated countries being the first that come to mind). Even if somehow both sides agree to these significant compromises and the Danish model is chosen, this would still not be as close a cooperation as the one that the UK had as a MS and still has under the transition period. The UK will not have direct access to some of the systems, will not be able to have a say on the Management Board (Denmark has been granted observer status on the Management Board though) and will still have to continue to contribute to Europol’s budget. As the Danish model does not appear to be a viable option for the future UK cooperation with Europol, a possible model could be found in the cooperation between the US and Europol. Beyond the legal framework, which is the fairly standard cooperation agreement allowing for the exchange of personal data, the US boasts an impressive presence of staff at Europol’s headquarters. According to December 2019 data, the US has 35 liaison officersworking at Europol.25 In comparison, the secondhighest number of third county liaison officers stationed at Europol belongs to Norway, which has five liaison officers working at Europol. The US presence at Europol is impressive not only in terms of numbers, but also in terms of variety of services covered.26 It could be argued that the more people are stationed at Europol’s headquarters, the more the chances for cultivating and utilising informal channels of information exchange and cooperation increase, allowing de facto much better access to information and use of Europol’s expertise than what is merely provided for in the text of the cooperation agreement.

25 https://www.europol.europa.eu/about-europol/statistics-data. 26 https://www.europol.europa.eu/about-europol/statistics-data.

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This could potentially present a viable option for future UK cooperation, going beyond what is formally included in the future cooperation agreement. In fact, already now, the UK has the largest contingent of seconded officers at Europol, which could be expanded further across different security branches like the US liaison office (Carrapico et al., 2019, 92). As a point of caution, it should, however, be mentioned that the existence of such informal channels of cooperation, while allowing for speed and flexibility in exchanging information and data, constitutes a risk as regards the protection of personal data and the respect for fundamental rights. Finally, the EU and the UK could attempt to go beyond what exists with third countries currently (as the UK Mandate wishes) and explore the possibility of a hybrid between the Danish and US model. Logic would dictate that the closer this hybrid model is to the Denmark agreement, the more likely it is that the UK will have to give up some of its red lines. Therefore, politically it would seem more realistic that the EU and the UK will agree on a framework for cooperation, which is similar to what exists with other third countries in terms of the text of the agreement. This agreement could then be supplemented with a significant presence of the UK at Europol’s headquarters. This, in turn, will potentially allow the UK the possibility to cultivate a much more advanced form of (informal) cooperation than what is merely in the text of the future agreement. It could also potentially give the UK the opportunity to informally influence decisions as to the future direction of the agency. Regardless of the option retained, the impact on UK’s cooperation through and within Europol will be considerable, especially taking into account how active the UK has been within Europol for years. There are significant limitations to the position of third countries in comparison to EU members, most notably relating to the lack of direct access to EU databases and to non-participation in the core functions of the management bodies of these agencies, with limited say or powers to shape the future direction of these agencies (Mitsilegas, 2019, 203). While some of those limitations could be overcome to some extent through informal cooperation, informal cooperation would never be able to replicate the benefits of or provide the same access as full membership. The likelihood of reaching a quick agreement on cooperation with Europol would depend on how close the EU and UK positions are when it comes to the details of such cooperation. When comparing the EU DA and the UK DA, a number of differences become apparent.

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The UK DA follows the structure and content of other Europol agreements with third countries. However, it seems to pick and choose parts of these agreements that the UK likes, while removing parts that the UK does not like or adding parts that are not included in these agreements. If one is to compare the UK DA with two of the most recent third country agreements with Europol—the Agreement with Ukraine, signed on 14 December 2016, and the Agreement with Denmark, a number of examples become apparent. For example, the UK text does not refer to transmissions from private parties and private persons established/residing in the UK to Europol, whereas both of these agreements do. When it comes to liaison officers, the UK DA has removed the provision from the Denmark and Ukraine agreements, according to which, the UK is to ensure that its liaison officers have a speedy and, where technically feasible, direct access to the national databases necessary for them to fulfil their respective tasks. The UK DA then takes some parts of the text on liaison officers that are only present in the Denmark agreement, but not in the Ukraine agreement. Finally, the UK DA adds several paragraphs to the text on liaison officers that are not present in either the Ukraine, or the Denmark text on liaison officers.27 There are other examples as well. Perhaps one of the most notable and clearly problematic issues to be highlighted concerns, unsurprisingly, the exchange of personal data. The UK DA specifically provides for texts allowing for such an exchange even in the case when an adequacy decision is not applicable. As a reminder, the EU DA makes clear that exchanges of personal data, including as regards Europol, are only to take place on the basis of an adequacy decision. Should that adequacy decision be repealed or suspended by the Commission or declared invalid by the CJEU, the provisions on LE and JCCM cooperation between the UK and the EU, including as regards Europol, will be suspended. What is more, while the UK DA has modelled the provisions on exchanges of personal data without an adequacy decision on existing agreements, such as the Ukraine and Denmark agreements, it has once again adjusted the texts. For example, it has removed the text from the Ukraine and Denmark agreements according to which the transfer of sensitive personal data is permitted only if strictly necessary. It has also removed the text according to which the parties are to keep a record of all communications

27 See Article EUROPOL 8 (3), (4) and (6), UK DA.

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of personal data and the grounds for such communications.28 The UK DA provides for additional options for onward transfers of data, which do not exist in the Ukraine agreement, but exist in the agreement with Denmark. However, the agreement with Denmark comprises an obligation for Denmark to apply the LED with respect to the personal data exchanged pursuant to the Agreement and to recognise the role of the EDPS. It also gives the CJEU jurisdiction and specifically refers to the fact that Denmark is bound by the ECHR and to Denmark’s obligations under the Charter. All this means is that, in case there is no adequacy decision applicable, the UK DA not only provides for a continued exchange of personal data, which clearly goes against the EU mandate, but also provides fewer data protection safeguards for such exchanges than what exists in the most recent Europol agreements with third countries. Clearly, this is a red line for the EU and makes the likelihood of an agreement being concluded before the end of the transition period very low. It should finally be recalled here that the examples of third country agreements that are currently available are examples of agreements concluded under the old Europol Decision and its data protection regime. As of yet, there have been no “new generation” international agreements concluded since the new Europol regulation became applicable. With Europol’s legal basis lisbonised, the Charter becoming part of EU primary law and the Court’s recent data protection case law, it remains to be seen what the data protection requirements for such future third country agreements should be. It is difficult to see, however, how they would be lower than what exists in the agreements concluded under the old Europol Decision. As such, the UK DA would quite likely prove to be not only politically, but also legally untenable for the EU. 5.2.2

Eurojust

The Eurojust Regulation29 entered into force on 11 December 2018 and applies from 12 December 2019. Initially, the UK did not opt into its

28 See Article 11(5) and (6) of the Ukraine agreement and of the Denmark agreement compared to Article 10 UK DA. 29 Regulation (EU) 2018/1727 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA.

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adoption. After its adoption, the UK notified its intention to participate in it and its participation was subsequently confirmed.30 The UK Mandate does not seem to wish to go beyond the currently existing agreements with third countries, unlike the situation with Europol. This might be because the agreements concluded by Eurojust with third countries grant access to services that are similar to those offered to full members (Carrera et al., 2018, 101). In general, the future EU–UK cooperation through Eurojust therefore does not seem to be problematic, considering that the UK appears to be happy with an “off-the-shelf” agreement. However, the question of the conditions for the exchange of personal data that need to be met first is still there. The Eurojust Regulation contains detailed provisions on cooperation with third countries, including as regards transfers of personal data. From this point of view, there might be some difficulties in practice on agreeing the modalities of such EU–UK cooperation, especially in a context where respect of the ECHR by the UK might not be guaranteed. Eurojust can transfer operational personal data to a third country. However, such a transfer is subject to compliance with the applicable data protection rules and with a number of other conditions.31 Eurojust can transfer operation personal data on the basis of: 1. An adequacy decision adopted under the LED finding that the third country in question ensures an adequate level of protection.32 2. An international agreement between the EU and the third country pursuant to Article 218 TFEU that provides for adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals.33

30 Commission Decision (EU) 2019/1196 of 11 July 2019 on the participation of the United Kingdom of Great Britain and Northern Ireland in Regulation (EU) 2018/1727 of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust). 31 Article 56(1) Eurojust Regulation. 32 Article 57 Eurojust Regulation. 33 Article 56(2) Eurojust Regulation.

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3. A cooperation agreement allowing for the exchange of operational personal data which has been concluded under the old Eurojust Decision,34 before the Eurojust Regulation became applicable.35 4. In the absence of an adequacy decision, if appropriate safeguards have been provided for in a legally binding instrument or if Eurojust has assessed all the circumstances surrounding the transfer of operational personal data and has concluded that appropriate safeguards exist with regard to the protection of operational personal data.36 5. In the absence both of an adequacy decision and of the appropriate safeguards referred to in option 4, and by way of derogation, Eurojust may transfer operational personal data to a third country only if certain additional conditions are met.37 As this is a derogation from the general rules, it is subject to strict interpretation. The third option cannot apply to the UK, for the same reason as outlined in the case of Europol. The fourth and fifth options would not allow for sufficient stability and certainty in the cooperation, as they require that an assessment be made for each transfer to ensure that the additional conditions set out in the Eurojust Regulation are met. They are therefore unlikely to be used as a basis for EU–UK cooperation in the long term. They can, however, be used for exchanges of personal data if the EU and the UK do not manage to conclude an agreement/adopt an adequacy decision in time for the end of the transition period, thus providing a bridge while arrangements under option 1 or 2 are being put in place. Out of the first two options (adequacy decision or international agreement), both the EU and the UK Mandates have expressed a clear preference for an adequacy decision. In terms of content of the future agreement, the question arises whether Denmark can be used as a model. Similar to the situation with

34 Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (OJ L 63, 6.3.2002, p. 1–13). 35 Article 56(2) Eurojust Regulation. 36 Article 58 Eurojust Regulation. 37 Article 59 Eurojust Regulation.

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the Europol Regulation, Denmark was not able to opt into the new Eurojust Regulation. A creative solution was found for Denmark’s continued cooperation with Eurojust, which is more or less identical to the solution used to allow for continued cooperation of Denmark with Europol. An agreement was signed between Denmark and Eurojust38 before the Eurojust Regulation became applicable, using the old regime established by the Eurojust Decision. The Agreement refers specifically to: Denmark’s position as a MS of the EU; its participation in the EU legal instruments on the EAW, JITs and exchange of criminal records information; Denmark’s participation in Schengen and in the Nordic passport union.39 The CJEU has jurisdiction as regards questions of validity and interpretation of the Agreement raised by Danish courts or tribunals and as regards compliance by Denmark with the Agreement, as well as with regard to personal data protection and Eurojust’s liability.40 The Agreement comprises an obligation for Denmark to apply the LED with respect to the personal data exchanged pursuant to the Agreement and to recognise the role of the EDPS.41 It is conditional upon Denmark’s continued membership of the Schengen area, specifically refers to Denmark’s obligations under the Charter and makes clear that Denmark is to contribute financially to Eurojust’s budget.42 Under the agreement, Denmark will have the status of an observer at Eurojust College meetings and the possibility to set up a full Desk. Denmark’s parliament will be informed in the same way as the parliaments of the other MSs as regards Eurojust’s annual report, its strategic programming documents and working arrangements concluded with third countries. The Danish model would not be an appropriate one to follow for the future EU–UK cooperation for the same reasons as the ones outlined above with regards to the Denmark/Europol agreement. In any case, the question of whether the Danish model can be used for the future cooperation between the UK and Eurojust is rather theoretical, considering

38 https://www.eurojust.europa.eu/doclibrary/Eurojust-framework/Pages/agreementsconcluded-by-eurojust.aspx. 39 See points 5–8 and 14 of the Denmark/Eurojust agreement. 40 Point 16 and Articles 20–22 of the Denmark/Eurojust agreement. 41 Point 17 and Article 11 of the Denmark/Eurojust agreement. 42 Points 18–20, Articles 26 and 29 of the Denmark/Eurojust agreement.

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that the UK has not expressed a wish in its mandate to go beyond the standard agreements with third countries. When it comes to the details of the future cooperation and when comparing the EU DA and the UK DA, a number of differences become evident.43 As expected, some of them concern the exchange of information. The UK seems to be basing itself on the texts of existing agreements with third countries, but once again with certain modifications. For example, the UK DA provides that the UK will only transmit personal data where it is reasonably necessary to enable Eurojust to perform, in accordance with its legal framework, a function that the competent authorities perform in the UK.44 This addition does not exist in the recent Eurojust agreements with third countries.45 Moreover, no corresponding text concerning Eurojust is provided for in the UK DA. Just as was the case with Europol, the UK DA also specifically provides for texts allowing for an exchange of personal data even in the case when an adequacy decision is not applicable. This is in clear conflict with the EU DA, turning the issue of data protection into the main point of contention once again. The UK DA has modelled these provisions on exchanges of personal data without an adequacy decision on existing agreements, such as with Serbia and Georgia, although with some minor differences. If a solution can be found as regards the exchange of personal data, the other differences between the EU and the UK positions are fairly small and could be overcome quite quickly, provided there was the will to do so. It should also be recalled that the UK is using as templates agreements with third countries which were concluded under the old Eurojust Decision and under the old data protection regime provided for in that Decision. However, just as was the case with Europol, Eurojust’s legal basis was lisbonised and provides for a different data protection regime than the one that existed before. Therefore, the data protection provisions 43 See e.g. Article LAW.EUROJUST.68(1) EU DA and Article EUROJUST 7(1) UK

DA. 44 Article EUROJUST 8(5) UK DA. 45 See for example Article 10 of the Agreement on cooperation between Eurojust

and Georgia, which was signed on 29.03.2019. See also Article 9 of the Agreement on cooperation between Eurojust and the Republic of Serbia, which was signed on 12.11.2019.

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of existing Eurojust agreements with third countries should not be taken as necessarily sufficient for the requirements of the new data protection regime after the Eurojust Regulation became applicable. 5.2.3

Criminal Records

ECRIS is a decentralised electronic system allowing for the exchange of criminal record information between EU MSs in a uniform, electronic and easily machine-translatable way, based on the use of a “standardised European format”. Since 1 January 2017, all 28 (at the time) MSs exchange information using the ECRIS system.46 According to the UK Mandate, the future agreement should provide for the exchange of criminal records data between the UK and individual EU MSs. The capabilities for such exchange should be similar to those provided by ECRIS and should draw on precedents for similar networks of national databases for LE purposes between the EU and third countries, such as cooperation between the EU, on the one hand, and Norway, Iceland, Switzerland and Liechtenstein, on the other, as regards Prüm.47 The EU Mandate also foresees the putting in place of “arrangements on exchange of information on criminal records appropriate to the United Kingdom’s future status with the view of delivering capabilities that, in so far as technically and legally possible and considered necessary and in the Union’s interest, approximate those enabled by the Union instrument ” by supplementing and facilitating the application of the 1959 MLA Convention and its Additional Protocols.48 This is further developed into draft legal text in Part Three, Title I, Chapter 9 of the EU DA, which follows a logic and structure similar to that of Council Framework Decision 2009/315/JHA,49 although much less detailed. On the other hand, according to Chapter 9, the technical and procedural specifications are to be laid down in ANNEX.LAW.9, so it is quite possible that the 46 This does not concern the ECRIS-TCN system, which was introduced in 2019 and is a centralised system with information on convictions of third country nationals and stateless persons. 47 Part 2, points 35–37 and 39 UK Mandate. 48 Point 125 EU Mandate. 49 Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States.

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details that are present in Council Framework Decision 2009/315/JHA and are missing from Chapter 9 are to be found in ANNEX.LAW.9. ANNEX.LAW.9 does not form part of the EU DA published by the Commission on 18 March 2020 and it is therefore not yet possible to verify whether this is the case. When comparing the relevant texts of the EU DA and of the UK DA, it becomes evident that there are a lot of similarities between them. The objectives are the same and both texts lay down rules regarding notifications of convictions, requests for information from the criminal record, replies to such requests and channels of communication. In terms of differences, the UK DA provides for shorter deadlines for replies to requests (10 days instead of the 20 days in the EU DA). The provisions of the UK DA are also more detailed than the ones in the EU DA. It is difficult to say whether this is a point of divergence, because the EU DA foresees that the technical and procedural specifications are to be laid down in an Annex. The text of that Annex is not available currently, but it is possible that the details in the UK DA are similar to what the EU DA is planning on including in the Annex. According to the UK DA, the EU is to provide the UK access to ECRIS as established under “Article 3(1) of Council Decision 2009/316/JHA […] in application of Article 11 of Framework Decision 2009/315/JHA”.50 The central authorities of the UK and the MSs are to provide information from criminal records and submit requests using ECRIS. With the text of ANNEX.LAW.9 not available, it is not yet possible to say whether the EU is planning on that exchange taking place using ECRIS or on establishing a parallel system for exchange of information with the UK. Tailoring the provisions of the EU DA on Council Framework Decision 2009/315/JHA reflects the EU’s willingness to put in place arrangements that approximate those on EU level and suggests that agreement between the EU and the UK could be found in this area. However, this is with the caveat that the text of ANNEX.LAW.9 is still not available and so it is not possible to fully compare potential points of divergence. Carrera et al. (2018, 123) observe that only EU MSs are allowed access to ECRIS. This does not, as such, exclude the possibility of having similar arrangements (at least as far as the decentralised ECRIS system is

50 Article CRIMINAL RECORDS 7(1) UK DA.

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concerned) with a third country. Peers (2020) notes that the EU has not previously agreed to such measures with any non-EU country—even the Schengen associates. He does not, however, seem to view this as a stumbling block in itself, because he marks this area as “green”, that is to say, an area where agreement is more likely than not. The fact that the EU has included such arrangements in its draft agreement is an indication of the EU’s willingness to offer and negotiate a far-reaching security partnership beyond anything that currently exists with a third country. The texts of the EU and the UK draft agreements are quite similar and, depending on the content of the ANNEX.LAW.9, there might be very few points of divergence. A possible point of divergence could concern the access to ECRIS, as it is not clear whether the EU is prepared to give the UK access to ECRIS or rather prefers to set up an alternative parallel system. Depending on the EU’s position on this issue, this could potentially turn into an important point of contention. As with the rest of the AFSJ cooperation, the main issue here will most likely be about the data protection standards underpinning any exchange of personal data. Beyond that, both sides seem to want to put in place arrangements on exchange of information on criminal records, which should facilitate reaching agreement on this point. 5.2.4

Prüm—DNA, Dactyloscopic Data and Vehicle Registration Data

The Prüm Decisions—Decision 2008/615/JHA and Decision 2008/616/JHA,51 incorporate the substance of the provisions of the Prüm Treaty (which was agreed on 27 May 2005 by seven European countries) into the legal framework of the EU. The objective of Decision 2008/615/JHA is to step up cross-border cooperation, particularly the exchange of information between authorities responsible for the prevention and investigation of terrorism and cross-border crime. It aims to speed up the procedures enabling MS to find out whether any other MS, and if so which one, has information regarding DNA, fingerprints

51 Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of crossborder cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime.

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and vehicle registration data in the context of an investigation. This is achieved through MSs granting each other access to their automated DNA analysis files, automated fingerprint identification systems and vehicle registration data. The supply of personal data provided for under Decision 2008/615/JHA cannot take place until the data protection provisions set out therein have been implemented in the national law of the territories of the MSs involved in such supply. The Council is to unanimously decide whether this condition has been met. The Prüm framework has been slow to reach its full potential due to a lack of implementation for a long time by some MS of their legal obligations in terms of integrating the network with their own systems. However, currently almost all MSs are connected and able to use the system. As an indication of the importance that the UK attributes to the Prüm framework in the future, it should be mentioned that the UK requested and is entitled as of June 2019 to receive and supply DNA data under the Prüm framework.52 However, the Council implementing decision authorising this53 requires that the UK complete a review of its policy of excluding suspects’ profiles from automated DNA data exchange by 15 June 2020.54 If, by that date, the UK has not notified the Council that it makes available the DNA of suspects in conformity with Decision 2008/615/JHA, the Council will, within three months, re-evaluate the situation with regard to the continuation or termination of DNA data exchange with the UK.55 A draft Council implementing decision regarding the exchange of dactyloscopic data between the UK and the MSs under the Prüm framework is also in the pipeline.56 On 7 May 2020, the Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) gave a negative opinion on starting a fingerprint data exchange between the

52 Council Implementing Decision (EU) 2019/968 of 6 June 2019 on the launch of automated data exchange with regard to DNA data in the United Kingdom. 53 By finding that the UK has implemented into its national law the general provisions on data protection set out Council Decision 2008/615/JHA. 54 Article 2 of Council Implementing Decision (EU) 2019/968. 55 Ibid. 56 https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference= 2019/0819(CNS)&l=en; 2019/0819(CNS).

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UK and EU MSs. Its reasons included concerns to do with data protection and use of the data after the end of the transition period, as well as the lack of reciprocity as regards making available suspects’ profiles, this being the same problem as with the decision on automated DNA data exchange with the UK (Parliament, 2020b). On 13 May 2020, Parliament’s plenary confirmed this position (Parliament, 2020c). It rejected the Council draft decision for the same reasons as the LIBE Committee had the week before, including lack of guarantees on reciprocity and data protection. It should be mentioned that the Parliament is only consulted in this case. This means that, even though it gave a negative option, the Council can still adopt a decision to allow for the automated exchange of dactyloscopic data between the UK and the MS. However, even if such a decision were to be adopted by the Council, it would cease to apply at the end of the transition period. Should the UK wish to negotiate similar arrangements with the EU as a part of the future EU–UK relationship, these arrangements would almost certainly require the consent of Parliament. It is difficult to see how this consent would be gladly given, especially if the Parliament felt that it had been sidelined on the issue in the past. The importance of the UK being allowed to exchange data under the Prüm framework before the end of the transition period is significant. This can allow the UK to argue that there has already been an evaluation and a finding by the Council concluding that the UK data protection legislation is in line with the data protection requirements of the Prüm Decisions. On this basis, the UK can then claim that it should be possible to quickly agree on a framework to allow it to continue such exchanges even after the end of the transition period, as long as the UK does not introduce changes to its national legislation implementing the general provisions on data protection set out Decision 2008/615/JHA. The UK Mandate calls for an agreement providing similar capabilities for the exchange of national DNA, fingerprint and vehicle registration data between the UK and the EU MSs to those currently delivered through the Prüm system, drawing on the precedent for such cooperation with Norway, Iceland, Switzerland and Liechtenstein. According to the EU Mandate, the envisaged partnership should provide for arrangements between the Parties ensuring reciprocal access to data available at the national level on DNA and fingerprints of suspected and convicted individuals as well as vehicle registration data (Prüm). The specific mention in the EU Mandate of DNA and fingerprints of suspected persons should

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be highlighted, considering that currently the UK does not provide such data under the Prüm framework. The provisions of the EU DA follow a logic similar to that of Chapters 1 and 2 of Decision 2008/615/JHA. These two chapters sets out some general provisions and provisions on the conditions and procedure for the automated transfer of DNA, dactyloscopic and vehicle registration data. Chapters 3, 4, and 5 of Decision 2008/615/JHA establish provisions on the supply of data in connection with major events with a cross-border dimension, supply of information in order to prevent terrorist offences and on stepping up cross-border police cooperation through various measures, respectively. Chapter 6 concerns data protection. Chapter 7 deals with implementing and final provisions. The EU DA does not reproduce the provisions of Chapters 3–7. This is not surprising, considering that the PD only referred to DNA, fingerprint and vehicle registration data exchange, which is dealt with in Chapter 2, and that the EU DA contains a horizontal framework as regards data protection. The EU DA provides that the technical and procedural specifications for the exchanges will be laid down in Annex LAW-1. The text of this Annex is not available yet, but it is likely that it will contain provisions similar to those in Decision 2008/616/JHA.57 All this demonstrates the EU’s willingness to provide for a form of future cooperation modelled on what exists currently within the EU. The UK DA is modelled after the Prüm Decision as well, but it also reproduces the provisions of Chapters 3, 4, and 5 and to a large extent of Chapter 6 of Decision 2008/615/JHA.58 Some differences can be noted, however. For example, when it comes to the chapter on data protection (Chapter 6 of Decision 2008/615/JHA and Chapter 8 of the UK DA, respectively), the UK DA does not provide a definition of processing of personal data and does not provide a minimum level of protection of personal data which must be guaranteed in national law, unlike Decision 2008/615/JHA. The UK DA has also removed the references from the relevant text of Decision 2008/615/JHA59 to the ECHR as regards the 57 Council Decision 2008/616/JHA lays down the administrative and technical provisions for the implementation of Decision 2008/615/JHA, in particular as regards the automated exchange of DNA data, dactyloscopic data and vehicle registration data, as set out in Chapter 2 of that Decision. 58 See Chapters 5, 6, 7, and 8 of the UK DA. 59 Article 31(1) Decision 2008/615/JHA.

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meaning of an independent court or a tribunal and to the relevant EU legislation as regards the meaning of independent supervisory authority. These provisions are all present in the existing EU Prüm agreements with third countries. It could be argued that these omissions from the UK DA text on data protection serve to lower the data protection standards provided for in the Prüm Decisions. They also do not correspond to the data protection provisions to be found in the EU Prüm agreements with third countries, to which the UK Mandate specifically points as precedents to be used. Certain provisions of the Prüm Decisions are applicable in the relations of the EU with some third countries. Even though the Prüm Decisions are not Schengen-related measures, so far the only third countries to participate in them are Schengen associated countries. The EU has concluded agreements on the application of certain provisions of the Prüm Decisions with Norway and Iceland,60 Liechtenstein61 and Switzerland.62 The preamble of each of these agreements makes a specific reference to the participation of these third countries in Schengen as a fact demonstrating close cooperation in the fight against crime. When interpreting this reference though, one could wonder whether the main requirement is the belonging to the Schengen area or rather the existence of a relationship with the third country, which demonstrates close cooperation in the fight against crime. If it is the latter, there are a lot of other cases in which close cooperation in the fight against crime can exist, even without the third country belonging to Schengen. Such an interpretation would allow the participation of the UK in the Prüm Decisions in a manner similar to the one with Norway, Iceland, Liechtenstein and Switzerland. The current text of the EU DA suggests that the EU does not view belonging to Schengen as a precondition for the application of a framework similar to the one provided for by the Prüm Decisions. The Prüm agreements with Norway, Iceland, Liechtenstein and Switzerland (similarly to the Norway/Iceland surrender agreement,63 as will be explained below) lay down provisions on application, interpretation and dispute settlement which would most likely not cross the UK red

60 Council Decision 2009/1023/JHA of 21 September 2009 and the Annex thereto. 61 Council Decision (EU) 2019/1172 of 6 June 2019 and the Annex thereto. 62 Council Decision (EU) 2019/1187 of 6 June 2019 and the Annex thereto. 63 OJ L 292, 21.10.2006.

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lines concerning the jurisdiction of the CJEU and the application of EU law in the UK. According to these agreements, the Contracting Parties will keep under constant review the development of the case law of the CJEU and of the competent courts of the respective third country relating to the relevant provisions of the Prüm Decisions to ensure that they are applied and interpreted as uniformly as possible. Any dispute between the Parties regarding the interpretation or the application of the agreement or of any of the relevant provisions of the Prüm Decisions may be referred by a party to the dispute to a meeting of representatives of the governments of the MSs and of the respective third country. The Agreements with Norway, Iceland, Liechtenstein and Switzerland cover almost all of the provisions of Decision 2008/615/JHA, not just Chapter 2. As such, they go beyond what was mentioned in the EU and the UK mandates, and go beyond what is provided for in the EU DA. The UK DA, however, makes clear that the UK would like the scope of the future EU–UK arrangements to extend further than Chapter 2 of Decision 2008/615/JHA and thus to be closer to what the Agreements with Norway, Iceland, Liechtenstein and Switzerland cover. On the other hand, unlike the EU DA, the UK DA does not provide for rules regarding accreditation of forensic service providers carrying out laboratory activities and recognition of their activities carried out in other States. The text of the Norway/Iceland Prüm Agreement also does not provide for such rules. This is logical, considering that the relevant Council Decision 2009/905/JHA on accreditation of forensic service providers was adopted later.64 The more recent Liechtenstein and Switzerland Prüm Agreements, however, do provide for such rules. It remains to be seen whether this was an oversight on the UK part when preparing its DA, or whether this was a conscious choice. As mentioned above, there also seem to be some variations in the provisions of the UK DA on data protection, compared to the provisions of Decision 2008/615/JHA and to the EU agreements with Norway, Iceland, Liechtenstein and Switzerland. These differences in the UK DA data protection regime would arguably lead to lowering the data protection standards provided for in the Prüm Decisions and in the Prüm agreements with third countries.

64 Council Framework Decision 2009/905/JHA of 30 November 2009 on Accreditation of forensic service providers carrying out laboratory activities.

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Most of the differences between the EU and the UK DAs do not appear to be too contentious and could potentially be overcome fairly quickly. Problematic issues which could prevent a future agreement, however, include data protection, the role of the CJEU and the inclusion of DNA and fingerprints of suspected persons. If the EU agrees to use the provisions on application, interpretation and dispute settlement from the Agreements with Norway, Iceland, Liechtenstein and Switzerland as a template, this could unblock the negotiations as regards the role of the CJEU, but would not resolve the questions of data protection and inclusion of DNA and fingerprints of suspected persons. It would also require the EU to compromise on its current negotiating position and it is not obvious that the EU would be willing to do so. 5.2.5

PNR

Both the EU and the UK Mandates consider that the exchange of PNR data should form part of the future EU–UK security relationship. The UK was one of the strongest supporters of the EU PNR Directive and opted into its adoption. In general and at first glance, this does not appear to be a particularly contentious area. The EU has already concluded PNR agreements with some third countries and is in the process of negotiating such agreements with other countries. The EU has concluded agreements on the transfer and use of PNR data with the US65 and with Australia.66 It also negotiated an agreement with Canada, but the CJEU found in its Opinion 1/1567 that the envisaged EU-Canada Agreement signed on 25 June 2014 could not be concluded in its current form. New PNR negotiations with Canada were launched in June 2018 and were concluded in July 2019.68 On 18 February 2020, the Council adopted a decision authorising the opening of negotiations between the EU and Japan for an agreement on the transfer and use of PNR data.

65 OJ L 215, 11.8.2012. 66 OJ L 186, 14.7.2012. 67 Opinion of the Court (Grand Chamber) of 26 July 2017, Opinion 1/15,

EU:C:2017:592. 68 https://www.consilium.europa.eu/en/meetings/international-summit/2019/07/ 17-18/.

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The UK Mandate specifically asks for the future agreement with the EU to be based on, and in some respects go beyond, precedents for PNR Agreements between the EU and third countries. The fact that the UK is looking to go beyond what exists demonstrates once again the importance that the UK attaches to exchanges of PNR data. The UK DA then sets out detailed provisions for the transfer and processing of PNR data. According to the EU Mandate, the envisaged partnership should establish arrangements for timely, effective, efficient and reciprocal exchanges between Passenger Information Units of PNR data and of the results of processing such data stored in respective national PNR processing systems. It should also provide a basis for transfers of PNR data by air carriers to the UK for the flights between the UK and a Member State. The EU Mandate specifically states that such arrangements should comply with the relevant requirements, including those set out in the Opinion 1/15 of the CJEU. The EU DA then sets out detailed provisions for the transfer and processing of PNR data. One of the main difficulties both for the EU and the UK as regards PNR data would be to negotiate an agreement that would respect the requirements set out in Opinion 1/15. Opinion 1/15 concluded that the text of the envisaged EU-Canada PNR Agreement was incompatible with the Charter. It also set out a number of requirements that needed to be fulfilled for the agreement to be considered compliant in particular with the texts of the Charter on the rights to respect for private life and to protection of personal data. The Court has not been ceased since its Opinion 1/15 with another draft PNR agreement between the EU and a third country and therefore the extent to which the EU has managed to incorporate the requirements of the Court in the new generation of PNR agreements is as yet untested. It should also be kept in mind that the more intrusive the future EU– UK PNR agreement is, the more rigorously the data protection safeguards provided in it will be scrutinised. The Court’s case law, in particular Opinion 1/15, should be fully respected upon the risk of the future EU–UK PNR agreement (be it as a separate agreement or a part of a comprehensive security partnership) meeting the same fate as the 2014 EU-Canada PNR Agreement. Against this backdrop, the conclusion of a new EU–UK PNR agreement, albeit not at all impossible, is likely to take a considerable amount of time, as it will have to comply with the high EU data protection standards (Carrera et al., 2018, 135).

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When comparing the PNR texts of the EU DA and of the UK DA, a number of differences emerge. At first glance, the purpose of the processing of PNR data in the UK DA appears similar to the one in the EU DA, but on closer inspection, it becomes clear that it is much broader. The UK DA provides for processing for the purpose of preventing, detecting, investigating or prosecuting serious crime and overseeing the processing of PNR. The UK DA does not define and therefore does not limit in any way what is to be covered by “serious crime”. The EU DA provides for processing for the purpose of preventing, detecting, investigating or prosecuting terrorist offences or serious crime and overseeing the processing of PNR. The EU DA then defines what is to be understood by terrorist offences and what is to be understood by serious crime.69 Only the offences that are to be listed in an Annex to the agreement and that are punishable by a custodial sentence or a detention order for a maximum period of at least three years under domestic law could be considered serious for the purposes of processing of PNR data. The same applies to terrorist offences—only offences referred to in the EU DA could be considered as terrorist offences for the purposes of processing of PNR data. Should the EU agree to the broader purpose for the processing of PNR data set out in the UK DA, the safeguards related to data protection should be increased and adjusted accordingly. A number of other provisions of the EU DA and the UK DA on PNR differ as well. While the EU DA sets out obligations primarily for the UK (with some exceptions, such as the obligation for the EU to ensure that air carriers transfer PNR data to the UK), the UK DA sets out obligations, which apply both to the UK and the MSs. Other differences concern: the automated processing of PNR data; the frequency of transfers; law enforcement and judicial cooperation; exchange of information between the UK and the MSs; domestic sharing (the UK DA requires fewer conditions to be fulfilled for such sharing); onward transfers of PNR data; data retention and depersonalisation (the UK DA provides for laxer requirements than the EU DA, etc.). As a general remark, the differences seem to lead to a significantly broader processing and use of PNR data in the UK DA, with fewer data protection safeguards, than what is provided for in the EU DA. This is not negated by the fact that the UK DA lays

69 Article LAW.PNR.20 EU DA.

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down rules regarding the rights of access, rectification, erasure and judicial redress, while the EU DA does not. The EU DA deals with data protection as a horizontal issue and not separately for each area of LE and JCCM. While some of the differences appear fairly minor, there are some that look insurmountable—either on their own or taken together as a combination of more processing with fewer data protection safeguards. The purpose of the processing, the number of options for sharing data domestically and with third countries, the data retention and depersonalisation rules and data protection safeguards in general are probably the most important points of divergence, especially since a number of those provisions in the EU DA aim to satisfy the requirements set out by the Court, including in Opinion 1/15. This is corroborated by the remarks of the EU’s Chief Negotiator after the third negotiating round, in which he noted that that the UK “insists on lowering current standards and deviating from agreed mechanisms of data protection – to the point that it is even asking the Union to ignore its own law and the jurisprudence of the European Court of Justice on passenger data (“PNR rules” )”. Barnier clearly indicated that this would be impossible. Considering the fate of the EU-Canada PNR agreement, it is obvious that this is not only a political red line for the EU, but also a legal one. With this in mind, and taking into account the significant differences between the EU DA and the UK DA, it appears highly unlikely that an agreement on PNR would be found before the end of the transition period. In the absence of an agreement for the transfer and use of PNR data, transfers of PNR data and the result of processing such data by MSs to third countries can take place on a case-by-case basis under the provisions of the EU PNR Directive. However, such transfers must be: • in full compliance with the LED; • subject to additional requirements relating to the purpose of the transfer; • subject to the principles of necessity and proportionality and to the high level of protection provided by the Charter and by the ECHR.70

70 See recital (31) and Article 11 of the EU PNR Directive.

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Just as was the case with Europol and Eurojust, this would not be sufficient as a permanent solution and would not achieve the level of ambition pursued by the UK. It can, however, provide a bridge and allow for the transfer of PNR data to continue while negotiations of a PNR agreement are ongoing. Another option could consist in the conclusion of bilateral agreements between the UK and the EU MSs, to the extent to which this is even possible, which is highly doubtful considering that the EU has legislated internally in this area with the EU PNR Directive and the LED. Even if it were possible to negotiate such bilateral agreements, this would be much more time consuming and much less effective than an EU–UK agreement and would risk creating a confusing and fragmented framework within the UK for the transfer and use of PNR data. Considering the importance that the UK attaches to PNR data, it seems very unlikely that the UK will choose the option of bilateral agreements with MSs. In principle, the UK Parliament might pass domestic law requiring all airlines flying into the UK, from all over the world, to transfer PNR data to British authorities and this would be possible without any international agreement (Carrera et al., 2018, 129). It should be noted, however, that such an approach risks putting EU and UK law in contradiction with each other and putting airline companies in a position to have to choose whether to breach EU or UK law. Such situations had already surfaced in the past, for example as regards Russia (Parliament, 2013a, 2013b), but seem to have been resolved through diplomatic means. 5.2.6

SIS

SIS is in operation in 30 European countries, including 25 EU Member States (only Ireland and Cyprus are not yet connected), one former EU MS (the UK) and four Schengen Associated Countries (Switzerland, Norway, Liechtenstein and Iceland). The only third countries which have been granted access to SIS are Schengen countries. The only nonSchengen countries with access to SIS were EU Member States at the time they were granted access to SIS. These non-Schengen countries are: • Bulgaria, Romania and Croatia, which are still EU MS. • the UK, which was an EU MS when it was granted access to SIS. As the UK has chosen not to join the Schengen area, it cannot issue or access Schengen-wide alerts for refusing entry and stay into the

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Schengen area.71 The UK still has access to SIS during the transition period on the basis of the WA. After the end of the transition period, and notwithstanding the time-limited derogations in the WA, the UK will no longer have access to SIS. The fact that non-Schengen EU MSs have access to SIS demonstrates that, even if SIS is a Schengen-related measure, it can also be applied (even if with certain limitations) to non-Schengen countries. However, these non-Schengen countries were all EU MSs when they were granted access to SIS. The likelihood of the EU agreeing to allow the use of SIS by a non-Schengen and non-EU country is not high. The EU would risk sending a signal that a country outside the EU and outside of Schengen can get the same benefits as countries within the EU and/or Schengen. Even if such a political choice were to be made, the safeguards as regards the processing of personal data would be of paramount importance. The UK connected to SIS II in April 2015. In 2019, the UK accessed SIS II 571 697,394 times (eu-LISA, 2020, 6). France and Spain are the only two MSs, which accessed SIS more times than the UK. The UK increased its share of alerts in 2019 compared to 2018 with over 1.6 million additional alerts (eu-LISA, 2020, 10). What this data reflects is the interest that the UK will arguably have in being able to connect to SIS II even after Brexit (Carrera et al., 2018, 118). Keeping this in mind, it does not come as a surprise that the UK Mandate calls for the future agreement to provide capabilities similar to those delivered by SIS II.72 The UK Mandate argues in favour of a mechanism for the UK and EU MSs to share and act on real-time data on persons and objects of interest including wanted persons and missing persons, which is a capability currently provided by SIS II, making alerts accessible to officers on the border as well as to front-line police officers in the UK. The UK Mandate highlights that SIS II is used by EU and nonEU Schengen members (Switzerland, Norway, Iceland and Liechtenstein) and calls for the future agreement to provide similar arrangements. It also notes that the arrangements established between the EU and Switzerland,

71 https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/sch engen-information-system_en. 72 Part 2, points 43–45 UK Mandate.

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Norway, Iceland and Liechtenstein include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU. The PD, EU Mandate or EU DA does not mention explicitly the possibility to provide capabilities similar to those delivered by SIS II. Quite the opposite, the EU Mandate refers on several occasions to the need for the future relationship to take into account the UK’s status as a non-Schengen third country that does not provide for the free movement of persons. However, according to the EU Mandate, the partnership should provide for alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the UK and MSs LEAs, which would include information on wanted and missing persons and objects.73 As SIS is a database, which stores alerts and provides information on certain categories of wanted or missing persons and objects, one might wonder whether the EU Mandate is referring indirectly to negotiating arrangements similar to SIS. According to Peers (2020), the EU rules out the UK’s participation in SIS II as such—not explicitly in the EU Mandate, but unambiguously in the Q&As published by the Commission. When one looks at the Commission’s Q&As,74 they do indeed say that non-Schengen third countries do not have access to SIS; that SIS is a measure contributing to security within the EU, in which there are no internal borders; that it is intrinsically linked to the free movement of persons; and that the Court has consistently defended the coherence of the Schengen acquis. However, the Commission’s Q&As also say that new effective ways of data sharing on wanted and missing persons and objects need to be set up, while taking into account the UK’s future status. This would be achieved through alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the UK and MS LEAs, in so far as is technically and legally possible, and considered necessary and in the Union’s interest. In fact, the Q&As say that non-Schengen third countries do not have access to SIS (which is true currently) and explain the link between SIS and the Schengen area. The Q&As do not say that non-Schengen third

73 Point 121 EU Mandate. 74 Future EU-UK Partnership: Question and Answers on the negotiating directives,

https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_326.

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countries could never be given access to SIS, nor that similar arrangements cannot be put in place with a non-Schengen third country. While the link between SIS and the Schengen area is evident, not only because of the name of the system itself (Schengen information system), nonSchengen countries such as the UK, Bulgaria, Romania and Croatia have been allowed access to it. Therefore, this link is not a conditio sine qua non for access to the system. Third countries have also been given access to SIS (although they are all Schengen associated countries). Therefore, the status of a third country does not mean automatically that no access to SIS can be given. The question would be whether the EU would ever contemplate giving access to a non-Schengen and non-EU country. However, this is a theoretical question to the extent to which the UK does not actually seem to ask for access to SIS. What the UK Mandate asks for is that the future agreement provides capabilities similar to those delivered by SIS. What the EU Mandate refers to is providing for alternatives for simplified, efficient and effective exchanges of existing information and intelligence, including information on wanted and missing persons and objects, between the UK and MSs LEAs. The devil is, as always, in the details and in this case it is in the difference between the UK’s understanding of “similar capabilities ” versus the EU’s understanding of “alternatives ”. It is very likely that these two understandings differ quite significantly. This is confirmed by the provisions of the EU DA. When going through the relevant provisions of the EU DA,75 it becomes clear that they seek to introduce a simplified form of cooperation modelled on what is currently available under Council Framework Decision 2006/960/JHA.76 While this constitutes a very significant step in terms of simplifying the exchange of information and intelligence between LEAs, it is very far from the capabilities offered by SIS, as evidenced by the fact that on EU level SIS is not dealt with in Council Framework Decision 2006/960/JHA, but in completely different instruments. What the EU offers is clear time limits for the provision of information and intelligence—within at most eight hours for

75 Part Three, Title I, Chapter 4 of the EU DA. 76 Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying

the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union.

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urgent requests, provided that certain conditions are met.77 It also offers a system where information and intelligence must be provided under conditions no stricter than those applicable at domestic level for providing and requesting information and intelligence. This type of cooperation, however, while extremely advanced in terms of general international MLA provisions and while broader in scope than what is covered by SIS, falls far short of the speed, availability of information and ease of use offered by SIS. It is truly an alternative for a simplified exchange of information, rather than a system allowing for similar capabilities to those offered by SIS. It offers something that currently exists on EU level and is a significant achievement in terms of cooperation, but has nothing to do with SIS. The EU and the UK can therefore agree or not on the provisions of Part Three, Title I, Chapter 4 of the EU DA, but this will have no impact on introducing capabilities similar to SIS. Therefore, while one might question whether the EU Mandate indirectly refers to SIS or not, it is clear that the EU DA does not offer any SIS-like capabilities to the UK. This is recognised also in the UK DA, which notes that the “draft EU legal text does not provide for the real-time exchange of alerts on persons or objects ”.78 The UK DA reiterates the UK’s view that “there is a mutual interest in providing capabilities similar to SIS II and that this is legally possible”. It does not, however, provide any additional details as to what these future capabilities are to look like, but only refers to the UK Mandate in this respect. Considering the EU’s unwillingness to provide for capabilities similar to SIS and the UK’s lack of detail as to what these should look like, it seems very unlikely that an agreement could be reached on introducing SIS-like capabilities in the future EU–UK partnership. The European Parliament has also taken a firm position on this point. While noting how important it is to maintain effective arrangements for LE cooperation, it underlines that the UK is a non-Schengen third country and therefore it cannot enjoy the same rights and facilities as a MS (Parliament, 2020a, point 92). It stresses specifically that the UK cannot have direct access to EU information systems data or participate in the management structures of the EU agencies in the AFSJ (Parliament, 2020a, point 93) and that, as a third country, the UK cannot

77 Part Three, Title I, Chapter 4, Article LAW.OPIN.42 EU DA. 78 Part 10 UK DA.

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have access to SIS (Parliament, 2020a, point 94). In particular, as far as SIS is concerned, the Parliament further calls on the UK to remedy the serious deficiencies identified in its use of SIS immediately and calls on the Council and the Commission to monitor the process very closely to ensure that all deficiencies are addressed correctly without further delay (Parliament, 2020a, point 94). The Parliament makes clear that the arrangements for the future cooperation between the EU and the UK in the area of law enforcement should only be discussed once these deficiencies are remedied (Parliament, 2020a, point 94). This is a clear reminder of the importance of mutual trust for any future security partnership between the EU and the UK. The principle of mutual trust is not only central to EU mutual recognition instruments. It is a precondition for any potential compromises and creative solutions to be found for the future EU–UK security partnership. Without mutual trust as the basis for such a partnership, the UK is very unlikely to be able to negotiate far-reaching arrangements allowing it to get the best of what already exists for third (including Schengen) countries and to go even further in some cases, as for example it wishes to do with Europol and PNR. This is also where past issues undermining mutual trust, such as the ones with the deficiencies identified in the 2017 evaluation of the UK on the application of the Schengen acquis in the field of the Schengen Information System79 or with the suspected UK involvement in Belgacom’s hacking, might end up having a significant impact.80

79 See Nielsen, Nikolaj. 2018. UK unlawfully copying data from EU police system. EUobserver, 28 May; Nielsen, Nikolaj. 2019. UK taking ‘steps’ after illegal copying of EU Schengen data, EUobserver, 25 July; Rankin, Jennifer. 2020. UK accused of ‘behaving like cowboys’ over EU database copying. The Guardian, 9 January; Paulic, Solenn. 2020. MEPs still awaiting a reaction from Commission on SIS data illegally copied by UK. Agence Europe, 10 January. See also Parliamentary question E-002611–19 for written answer to the Commission, dated 3 September 2019, regarding the illegal use of Schengen information system database by UK authorities, and the Commission answer to that question, dated 30 January 2020 (https://www.europarl.europa.eu/doceo/document/E-92019-002611-ASW_EN.html). 80 See Gallagher, Ryan. 2018. How UK spies hacked a European ally and got away with it. The Intercept, 17 February; Boffey, Daniel. 2018. British spies ‘hacked into Belgian telecoms firm on ministers’ orders’. The Guardian, 21 September; Boffey, Daniel. 2018. UK refusal to cooperate with Belgian hacking inquiry condemned. The Guardian, 25 October 2018.

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For all of the above, it looks highly unlikely that the future EU–UK relationship would include capabilities similar to the ones provided by SIS. 5.2.7

Surrender

The UK’s preference when it comes to the future extradition arrangements with the EU is that they be based on the EU’s Surrender Agreement with Norway and Iceland (“Norway/Iceland Surrender Agreement”), which entered into force in 2019, but with appropriate further safeguards for individuals beyond those in the EAW. The EU Norway/Iceland Surrender Agreement follows for the most part the structure and content of the EAW Decision. The EAW Decision for its part aims to compensate for the freedom of movement enabled by the abolition of internal borders by ensuring that MSs’ justice systems can reach extraterritorially to bring individuals to face justice should the latter have taken advantage of the abolition of borders to flee the jurisdiction (Mitsilegas, 2019, 191). If one were to view the EAW Decision purely through the prism of the abolition of internal borders, then it would not appear very likely that the EU would agree to use the Agreement with Norway and Iceland (both of which are Schengen countries) on surrender as a template for its future partnership with the UK. On the other hand, looking at the EU DA provisions, they also follow very similar logic and structure to the EAW Decision, just like the EU Norway/Iceland Surrender Agreement does, although with some differences. This suggests that a negotiated solution on the future surrender proceedings between the EU and the UK might be within reach and might actually resemble the Norway/Iceland Surrender Agreement. Comparing the text of the EU DA, on the one hand, and the Norway/Iceland Surrender Agreement, on the other, it becomes evident that the two are quite alike. This is not unexpected, considering that both are modelled on the EAW Decision. There are, of course, some differences. For example, the Norway/Iceland Surrender Agreement refers on several occasions to the possibility to use SIS. This is not the case with the EU DA. The procedural rights under the EU DA, which are based on the adoption of the procedural rights package in the EU after the entry into force of the Lisbon Treaty, are more developed than the ones in the Norway/Iceland Surrender Agreement. Again, this makes sense

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considering that the Norway/Iceland Surrender Agreement was agreed in 2006, long before the procedural rights package was adopted. Most of the General and Final Provisions of the Norway/Iceland Surrender Agreement are also not to be found in the EU DA or at least not in the chapter on surrender and in any case not with the same content. It should be noted that as far as dispute settlement and case law are concerned, the Norway/Iceland Surrender Agreement does not provide for a role of the CJEU. Disputes regarding the interpretation or the application of the Norway/Iceland Surrender Agreement may be referred to a meeting of representatives of the governments of the EU MSs and of Iceland and Norway81 (i.e. diplomatic channels for dispute resolution). In order to arrive at as uniform an application and interpretation of the provisions of the Agreement as possible, the Contracting Parties are to keep under constant review the development of the case law of the CJEU, as well as the development of the case law of the competent courts of Iceland and Norway relating to these provisions and to those of similar surrender instruments. To this end, a mechanism is to be set up to ensure regular mutual transmission of such case law.82 Despite these differences, the rest of the texts of the EU DA and of the Norway/Iceland Surrender Agreement are very similar. This suggests that the future EU–UK partnership when it comes to extradition can in fact use the Norway/Iceland Surrender Agreement as a template. There were some concerns as to whether the EU would be willing to use the Norway/Iceland Surrender Agreement as a model, considering that Norway and Iceland are Schengen associated EEA states and the UK is not. These were more concerns of a political nature rather than legal obstacles though. The provisions of the EU DA and the UK Mandate show that the political will is present and therefore there do not appear to be any significant obstacles to using the Norway/Iceland Surrender Agreement as a template for the future EU–UK surrender arrangements. This is, of course, notwithstanding the question of the role of the CJEU when it comes to dispute settlement and to the interpretation and application of such an Agreement, which is still a question of contention between the EU and the UK.

81 Article 36 of the Norway/Iceland Surrender Agreement. 82 Article 37 of the Norway/Iceland Surrender Agreement.

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When comparing the UK DA and the EU DA texts, there are a number of other differences that can be noted as well, in addition to the general issue of the role of the CJEU. These include, for example, differences in: • the definitions (the UK DA does not contain a definition of judicial authority); • the scope, including the cases where the double criminality requirement is not to be applied; • the grounds for non-execution of an arrest warrant; • the political offence exception/exemption; • the nationality exception83 ; • the language of the arrest warrant; • the rights of the requested person—the UK DA has opted for the much less developed in this field text of the Norway/Iceland Surrender Agreement, rather than the more detailed text of the EU DA. As mentioned above, the EU DA incorporates the achievements of the procedural rights package in its proposed arrangements for surrender. These achievements are not part of the Norway/Iceland Surrender Agreement, because the Norway/Iceland Surrender Agreement was agreed before the procedural rights package was adopted. The fact that the UK DA seems to prefer the less detailed Norway/Iceland Surrender Agreement does not come as a surprise, considering the UK opted-out of most of the procedural rights package instruments. • decision in the event of multiple requests; • time limits and procedures for the decision to execute an arrest warrant, etc. While these differences do not appear insurmountable, they can slow down or even lead to a blockage in the negotiations, especially considering the hardening of tone on both sides after the first three negotiating rounds. The case law of the Court regarding extradition agreements with third countries should be mentioned here as well. In Petruhhin,84 the

83 Article SURR 9 UK DA. 84 Judgment of the Court (Grand Chamber) of 6 September 2016, Petruhhin, Case

C-182/15, EU:C:2016:630.

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Latvian Supreme Court asked the CJEU whether, for the purposes of applying an extradition agreement concluded between a MS (Latvia) and a non-member State (Russia), the nationals of another MS (Estonia) must benefit, in the light of the principle of non-discrimination on grounds of nationality and the freedom of movement and of residence of Union citizens, from the rule which prohibits the extradition by Latvia of its own nationals. The Latvian Supreme Court also asked whether the requested MS (Latvia) must verify that the extradition will not prejudice the rights protected by the Charter. The CJEU found that in such a situation, in order to combat the risk of impunity while at the same time safeguarding EU nationals from measures liable to deprive them of the rights to freedom of movement, it was first necessary to implement all the cooperation and mutual assistance mechanisms provided for in the criminal field under EU law. Consequently, the exchange of information with the MS of which the person concerned is a national (Estonia) must be given priority. This is so as to afford the authorities of Estonia the opportunity to issue an EAW for the purposes of prosecution, if they can, under their national law, prosecute that person for offences committed outside their territory. In addition, the Court noted that, according to the Charter, no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. It follows that, in so far as the competent authority of the requested MS (Latvia) is in possession of evidence of a real risk of inhuman or degrading treatment of individuals in the nonmember State concerned, it is bound to assess the existence of that risk when it decides on the extradition request. This means that the cooperation and mutual assistance mechanisms provided for in the criminal field under EU law were given priority over the provisions of the bilateral agreement between Latvia and Russia. The need to first give the opportunity of the MS of nationality to issue an EAW before extraditing an EU national was later confirmed in the Pisciotti case.85 This case concerned a situation in which there was an EU extradition agreement in place (the EU-USA Agreement on extradition) and not only a bilateral agreement between a MS and a third country, as was the case in Petruhhin. The Court confirmed that EU law does 85 Judgment of the Court (Grand Chamber) of 10 April 2018, Pisciotti, Case C-191/16, EU:C:2018:222.

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not preclude the requested MS (Germany) from drawing a distinction, on the basis of a rule of constitutional law, between its nationals and the nationals of other MSs and from granting that extradition while not permitting extradition of its own nationals. However, the requested MS (Germany) must first put the MS of which the citizen is a national (Italy) in a position to seek the surrender of that citizen pursuant to an EAW. Peers (2018) notes in this respect that the Court’s approach, which gives a MS the possibility of prosecuting its own nationals first, where it has jurisdiction, will necessarily limit extradition to the UK after the end of the transition period. This case law demonstrates how the rulings of the CJEU can have an impact on an international agreement between the EU and a third country even when that agreement does not provide for the jurisdiction of the CJEU. For more on this, see Chapter 5, Sect. 5.2.10. As an example though, we can take the Pisciotti and Petruhhin cases to demonstrate how this works. In Pisciotti, it was clear that, while the CJEU did not have jurisdiction in the US under the EU-USA Agreement on extradition, the CJEU’s jurisdiction within the EU was liable to indirectly affect the EUUSA Agreement. This is true to the extent to which a MS could not extradite a national of another MS to the USA, without first giving that other MS the opportunity to issue an EAW for the purposes of prosecution of its own national. Moreover, if we look at Petruhhin, it becomes evident that, in so far as the competent authority of the requested MS is in possession of evidence of a real risk of inhuman or degrading treatment of individuals in the non-member State concerned, it is bound to assess the existence of that risk when it decides on the extradition request. This suggests that, despite the presence of an agreement on surrender between the EU and a third country, MSs can and are required under EU law to refuse to grant an extradition request if the MS of nationality of the requested person decides to prosecute its own national or if there is evidence of a real risk of inhuman or degrading treatment of individuals in the non-member State concerned. The Court has also had a chance to give a ruling86 on whether the interpretation given in the Petruhhin and Pisciotti judgments should be followed in a situation concerning someone who was not an EU

86 Judgment of the Court (Grand Chamber) of 2 April 2020, Ruska Federacija, Case C-897/19 PPU, EU:C:2020:262.

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citizen. In its judgment in Ruska Federacija 87 the Court confirmed the applicability of these principles as regards an Icelandic citizen, Iceland being an EFTA State which is party to the EEA Agreement88 and to the Norway/Iceland Surrender Agreement. The Court found that when a MS (Croatia) has to rule on an extradition request pursuant to the 1957 Convention on Extradition by a third State (Russia), concerning a national of an EFTA country (Iceland), which is a party to the EEA Agreement and with which the EU has concluded a surrender agreement, EU law requires that MS to verify that that national will not be subject to the death penalty, torture or other inhuman or degrading treatment or punishment. Moreover, before considering executing the request for extradition, the requested MS (Croatia) is obliged, in any event, to inform the EFTA State (Iceland) and, should Iceland so request, surrender that national to it, in accordance with the provisions of the surrender agreement, provided that Iceland can, under its national law, prosecute that person for offences committed outside its territory. The question is whether, if the UK concludes a surrender agreement with the EU similar to the Norway/Iceland surrender agreement, the same case law would apply to UK citizens or whether this case law presupposes the existence of a right to freedom of movement (as was the case in Petruhhin and Pisciotti) or a right to freedom to provide services (as was the case in Ruska Federacija). If the case law applies, then this would add an additional layer of safeguards for UK citizens in case a third country, other than the UK, requests their extradition. In Ruska Federacija, the Court based itself on the fact that the unequal treatment in allowing the extradition of a national of an EFTA State, which is a party to the EEA Agreement, gave rise to a restriction of the freedom to provide services.89 The Court then referred by analogy to its judgment in Petruhhin, where it found that the unequal treatment in that case gave rise to a restriction of freedom of movement. Moreover, the Court specifically stated that “not only the fact that the person concerned has the status as a national of an EFTA State, which is a party to the EEA Agreement, but also the fact that that State implements and applies the

87 Case C-897/19 PPU, cited above. 88 Agreement on the European Economic Area of 2 May 1992 (OJ L 1, 3.1.1994,

pp. 3–522). 89 See paragraph 57 thereof.

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Schengen acquis, renders the situation of that person objectively comparable with that of an EU citizen to whom, in accordance with Article 3(2) TEU, the Union offers an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured”.90 This does suggest that being a Schengen associated country as well as an EFTA country party to the EEA Agreement were deciding factors for the Court. If that is indeed the case, then this case law would not apply to UK citizens in the EU, even if the UK concludes a surrender agreement with the EU similar to the Norway/Iceland Surrender Agreement. Even if the EU and the UK do negotiate a surrender agreement based on the Norway/Iceland Surrender Agreement, this would still constitute a step back from the cooperation as it currently exists under the EAW Decision. As noted by Carrera et al. (2018, 67), the degree of effectiveness of the Norway/Iceland Surrender Agreement is likely to depend on the declarations of the parties. While most of the rules that have sped up the surrender procedure in the EU feature also in the Norway/Iceland Surrender Agreement, their application is optional and depends on whether Norway, Iceland and the EU MSs decide to apply them (Carrera et al., 2018, 67). The same will be true for a future EU–UK surrender agreement which uses as a basis the Norway/Iceland Surrender Agreement. Carrera et al. (2018, 70) note that, in the absence of any EU–UK arrangement on extradition, extradition procedures between the UK and EU Member States are likely to fall back on the 1957 Convention on Extradition, which does not provide for any time limit for the execution of extradition requests and includes, inter alia, rules providing for double criminality, prohibition of the extradition of own nationals (if the state parties so declare), etc. Extradition under the 1957 Convention on Extradition takes almost 20 times longer than it does with the EAW and is heavily dependent on the state of bilateral relations between countries (Carrapico et al., 2019, 78). On the other hand, albeit quite outdated if compared with the EAW, the 1957 Convention on Extradition would at least have the advantage of providing a common procedure and framework for extradition proceedings with EU countries, something that would be lost should the UK rely on bilateral agreements with each EU MS (Carrera et al., 2018, 147).

90 Case C-897/19 PPU, cited above, paragraph 58.

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MLA Agreement

This section of the book only concerns MLA which is not otherwise specifically dealt with separately in the respective mandates. This means, for example that surrender procedures, exchanges of PNR data, criminal records data, etc. will not be dealt with here. One of the main EU MLA instruments is the European investigation order (EIO) Directive.91 The EIO Directive applies the principle of mutual recognition in the field of evidence. It has replaced for the MSs bound by it (all except Ireland and Denmark—the UK opted into the EIO Directive) the corresponding provisions of the 1959 MLA Convention and its Protocols, the Convention Implementing the Schengen Agreement, the 2000 Convention on MLA in Criminal Matters and its Protocol, the Framework Decision on the European Evidence Warrant92 and the provisions of the Framework Decision on the mutual recognition of freezing orders,93 as regards freezing of evidence.94 In this manner, the EIO Directive has become the sole instrument regulating the exchange of evidence and MLA between EU MSs (Mitsilegas, 2019, 194). Neither the EU nor UK Mandates or DAs refer to the EIO Directive. A possible reason could be that this is a relatively new instrument. As noted by Carrera et al. (2018, 81), the EIO has been used in the UK only since July 2017, which is why the fall-back options (of using CoE, UN Conventions and bilateral agreements with MSs) do not look as suboptimal and exiting the EIO system is perceived as a loss of a potential benefit rather than as a profound change for the worse in cross-border judicial cooperation. However, Mitsilegas (2019, 195–196) notes that being excluded from the EIO Directive would result in relegating the UK to a “second division” of countries the honouring of whose requests will not take precedence over the legal requirement for EU MSs to meet the tight deadlines of EIO execution among themselves.

91 Directive 2014/41/EU regarding the European Investigation Order in criminal matters. 92 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. 93 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence. 94 Article 34(1) and (2) EIO Directove.

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Both the EU and the UK Mandates call for some form of MLA arrangements to be negotiated. The UK Mandate refers to arrangements delivering fast and effective MLA in criminal matters including asset freezing and confiscation. These arrangements should build and improve on those provided by relevant CoE Conventions including the 1959 MLA Convention and its Protocols, for example by providing for streamlined and time-limited processes. According to the EU Mandate, the future partnership should facilitate and supplement, where necessary, the application of relevant CoE conventions, including by imposing time limits and providing for standard forms. It should also cover necessary supplementary forms of MLA and arrangements, including on JITs. When one looks at the EU DA provisions, it becomes evident that some of them are in fact modelled on the EIO Directive.95 However, the EU DA has taken up only a very small number of the provisions of the EIO Directive as a template. In any case, the EU DA contains only seven provisions altogether in its chapter on MLA, which indicates that the EU foresees a lot of the EU acquis in this field to be lost to the future EU–UK cooperation. The EU DA does set some time limits for the execution of requests for MLA, which was a request of both the EU and the UK mandates. It also contains a provision on JITs,96 according to which the competent authorities shall consider to use combined legal bases for the mutual agreement of a JIT to address the specific needs of the different authorities especially setting out, on one hand, the relations between the UK and the MSs and on the other hand, ensuring the application of Union law for the relationship between MSs within the JIT. The UK DA is a lot more detailed than the EU DA. It has been modelled to a large extent on the EIO Directive—much more so than the EU DA. The UK DA reproduces fully or in part the provisions of the EIO Directive regarding the types of proceedings for which a request can be issued; conditions for issuing and transmitting a request; content and form of the request; recognition and execution; grounds for nonrecognition or non-execution; time limits; temporary transfer of persons held in custody for purpose of investigation; hearing by videoconference; 95 See for example Article LAW.MUTAS.115 EU DA and Article 10 EIO Directive; Article LAW.MUTAS.116 EU DA and Article 16 EIO Directive; adding the principle of ne bis in idem as a ground for refusal of MLA (Article LAW.MUTAS.117 EU DA and Article 11 EIO Directive); 96 Article LAW.MUTAS.119 EU DA.

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hearing of witnesses and experts by telephone conference; controlled deliveries; covert investigations; civil and criminal liability regarding officials; confidentiality. Unlike the EIO Directive and the EU DA, the UK DA does not contain a provision as to when recourse to a different type of investigative measure can be had. This means that while both the EU DA and the UK DA seem to have taken over some of the provisions of the EIO Directive, they appear to have chosen different provisions from that Directive, leaving the two positions far apart yet again, despite being partially modelled on the same EU instrument. The UK DA further provides for spontaneous exchange of information,97 which is an issue dealt with in Chapter 4 of the EU DA98 and not in the chapter on MLA. It comprises some other provisions as well, which are not to be found in the EIO Directive or the EU DA, such as for example on sending and service of procedural documents99 and restitution.100 Some differences should be noted as regards the grounds for nonrecognition or non-execution. The UK DA provides for only three of the eight grounds present in the EIO Directive. This effectively means that the regime established by the UK DA would lead to significantly more limited options to refuse recognition and execution and consequently would require significantly higher levels of mutual trust than what the EIO Directive requires from MSs. It should be recalled here that the EIO Directive is an EU instrument based on the principle of mutual recognition. As noted by Carrera et al. (2018, vi), participation in EU mutual recognition instruments builds on some underpinning principles that apply only to EU MS and so far no third countries have joined EU mutual recognition instruments. Mutual recognition is based on mutual trust, premised on the rebuttable presumption that all MSs’ legal and institutional systems share common standards and provide sufficient protection for fundamental rights and rule of law safeguards, including an independent judiciary upholding effective judicial protection of individuals (Carrera et al., 2018, vi and 23; Mitsilegas, 2019, 191).

97 Article MLA 11 UK DA. 98 Article LAW.OPIN.43 EU DA. 99 Article MLA 9 UK DA. 100 Article MLA 12 UK DA.

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Whether the EU would agree to incorporate such a significant part of the achievements of the EIO Directive—a mutual recognition instrument, based on the principle of mutual trust—in its future relationship with the UK remains to be seen. However, past events that have served to undermine the trust between the EU and the UK, such as the issues regarding the UK’s use of SIS and the suspected UK involvement in Belgacom’s hacking, might end up having a significant impact. The unwillingness of the UK to commit in the text of the future agreement to guarantees on protecting fundamental rights and individual freedoms resulting from the ECHR adds another layer of complexity. Therefore, whether the future EU–UK MLA arrangements will be closer to the fairly detailed UK DA or closer to the quite general and schematic EU DA is still unclear and would, to a large extent, depend on the level of mutual trust between the EU and the UK during the negotiations. Some of the other differences in the positions of the EU and the UK worth noting concern JITs and freezing and confiscation. The EU Mandate specifically mentions JITs and one of the seven provisions of the EU DA dealing with MLA is dedicated to JITs. JITs are not mentioned at all in the UK Mandate. The UK Mandate, for its part, specifically refers to asset freezing and confiscation in its text on MLA. The UK DA has a special part—Part 12—separate from the part on MLA dedicated to freezing and confiscation. Freezing and confiscation are mentioned only briefly in the anti-money laundering part of the EU DA, but not in general in the MLA part. The question is whether these differences when it comes to JITs and freezing and confiscation are just due either to an oversight on each side or to a wish on each side to highlight what it finds most important, therefore not listing everything they might wish to cooperate on, but only the priorities. If that is the case, then these differences could potentially be overcome fairly easily and both freezing and confiscation, as well as JITs, can be included in the future EU–UK relationship. On the other hand, if these differences are intentional and reflect an unwillingness for the time being to address any of the issues not mentioned in the respective mandates, then there are two possible scenarios: • the EU and the UK agree on MLA arrangements representing the minimum common ground between the two mandates and therefore excluding JITs and freezing and confiscation;

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• the EU and the UK both insist on including all the parts that are important to them, but oppose the inclusion of the parts that are not in their respective mandates; in that case the likelihood of finding, in a timely manner, an agreement on the future MLA arrangements between the EU and the UK is very low. The situation with JITs seems particularly interesting. JITs are a specific form of MLA. They constitute an international cooperation tool based on an agreement between competent authorities—both judicial and law enforcement—of two or more States, established for a limited duration and for a specific purpose, to carry out criminal investigations in one or more of the States setting up the team. There are a number of practical benefits resulting from the use of JITs, including improved information exchange, exchange of best practices, enhanced collection of evidence and optimisation of the procedures within the investigation by mutual recognition of the actions carried out by the parties. JITs therefore constitute an efficient MLA instrument, which facilitates the coordination of investigations and prosecutions conducted in parallel in several States or in cases with a cross-border dimension and allows for real-time exchange of information/evidence. The UK authorities seem to value their current participation in JITs from both a qualitative and a quantitative point of view (Carrera et al., 2018, 96), which makes it difficult to understand why JITs are not mentioned in the UK Mandate. This becomes even more puzzling when one looks at the data from the 2019 Eurojust annual report (Eurojust, 2020, 57–58), according to which in 2019 the UK participated in the highest number of JITs - 75. For comparison, the second-highest number was 55 (for Romania), so significantly lower than the 75 JITs in which the UK participated. On the other hand, it could be that the UK is planning on using the Second Additional Protocol to the 1959 MLA Convention as a legal basis for the establishment of JITs after the end of the transition period. Therefore, especially considering the time constraints surrounding the negotiations, the UK might not see negotiating additional arrangements with the EU on JITs as a priority for the time being. The Second Additional Protocol is in force in most EU MSs, but not in Greece or

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Luxembourg.101 Carrera et al. (2018, 109) note in this respect that Eurojust seems well equipped to assist MSs and third countries, including in the future the UK, in the choice of the appropriate legal basis/bases for JITs and that, at least with regard to JITs, Brexit should not have any dramatic consequence, as there are already other legal instruments facilitating the establishment of JITs between the UK and EU MSs, or at least the majority of them. This might explain the absence of JITs from the UK Mandate. Unlike the case with surrender procedures, using the Norway/Iceland MLA Agreement with the EU102 as a template for a future EU–UK MLA Agreement does not appear to be an option. Carrera et al. (2018, 83–84) comment that the Norway/Iceland MLA Agreement is clearly connected with the Schengen acquis and due to these inextricable links with the Schengen acquis it may not be an appropriate model for future EU–UK MLA arrangements. Indeed, when one looks at the Norway/Iceland MLA Agreement, it specifically provides that termination of the Norway/Iceland Agreement on the Schengen acquis 103 would constitute grounds for termination of the Norway/Iceland MLA Agreement itself.104 In any case, neither the UK nor the EU has expressed a preference for using any existing EU agreement with a third country as an option for their future MLA cooperation. While both sides have expressed a wish to supplement the provisions and facilitate the application between the UK and the MSs of the 1959 MLA Convention and its Protocols, the EU and the UK DAs differ quite significantly as to the level of ambition of the future cooperation. The EU DA lays down a fairly general and schematic framework. The UK DA, for its part, provides for a much more detailed regime, taking over a significant part of the achievements of the EIO Directive. Whether the future arrangements would be closer to the EU or the UK vision depends largely on the level of mutual trust between the two. In this context, it should be noted that the hardening of tone in the last few rounds of negotiations does not bode well for building mutual trust. 101 See the signatures and ratifications here: https://www.coe.int/en/web/con ventions/full-list/-/conventions/treaty/182/signatures?p_auth=XZrObKg5 (accessed in April 2020). 102 OJ L 26, 29.1.2004. 103 OJ L 176, 10.7.1999. 104 Article 8(3) Norway/Iceland MLA Agreement.

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Data Protection

Data protection is the foundation on which any future EU–UK security partnership must be built. Without this issue being resolved, it is difficult to see how any meaningful arrangements for future cooperation could be put into action. Any worthwhile AFSJ cooperation would require the exchange of personal data. Any exchange of personal data would necessitate a legal framework. Therefore, agreeing on a legal framework with rules and safeguards for the processing of personal data is a precondition for any stable form of future security cooperation. Both mandates seem to have opted for a framework based on the adoption of adequacy decisions. For the purposes of LE and JCCM, the most relevant will be an adequacy decision under Article 36 of the LED. It should be noted, however, that as far as transfers of PNR data by air carriers and transfers of personal data for the purposes of AML and counterterrorism financing are concerned, these transfers would necessitate also an adequacy decision pursuant to Article 45 of the GDPR.105 The LED lays down rules relating to the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.106 As far as transfers of personal data to third countries are concerned, the LED provides that such transfers can only take place if the conditions set out in the LED are met, including: 1. The Commission has adopted an adequacy decision under the LED.107 2. In the absence of such a decision, appropriate safeguards have been provided or exist pursuant to the conditions set out in the LED.

105 Part Three, Title I, Chapter 1, Article LAW.GEN.4, of the EU DA. 106 Article 1 LED. 107 Which can cover the whole third country, a territory or one or more specified sectors within that third country.

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3. In the absence of an adequacy decision and of appropriate safeguards, only in the case of the derogations for specific situations provided for in the LED.108 According to Article 36 of the LED, transfers on the basis of an adequacy decision do not require any specific authorisation. When assessing the adequacy of the level of protection, the Commission has to take account of the following elements: • the rule of law, respect for human rights and fundamental freedoms, relevant legislation, both general and sectoral, including concerning public security, defence, national security and criminal law and the access of public authorities to personal data, as well as the implementation of such legislation, data protection rules, professional rules and security measures, including rules for the onward transfer of personal data to another third country or international organisation, which are complied with in that country, case law, as well as effective and enforceable data subject rights and effective administrative and judicial redress for the data subjects whose personal data are transferred; • the existence and effective functioning of one or more independent supervisory authorities in the third country, with responsibility for ensuring and enforcing compliance with data protection rules, including adequate enforcement powers, for assisting and advising data subjects in exercising their rights and for cooperation with the supervisory authorities of the Member States; and • the international commitments the third country concerned has entered into, or other obligations arising from legally binding conventions or instruments as well as from its participation in multilateral or regional systems, in particular in relation to the protection of personal data. If the Commission is convinced, on the basis of the above assessment, that the third country ensures an adequate level of protection, then it adopts

108 For the specific conditions under which MSs can transfer personal data to third countries without an adequacy decision, see Article 37 LED.

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an implementing act to this effect. It is this implementing act that constitutes the adequacy decision. It should be stressed here that the adequacy decision is a unilateral act of the Commission and not an international agreement negotiated between the EU and the UK. This implementing act must also provide a mechanism for periodic review, at least every four years, which will take into account all relevant developments in the third country. The Commission must, on an ongoing basis, monitor developments in the third country that could affect the functioning of the adequacy decision. If available information reveals, in particular following the review, that the third country no longer ensures an adequate level of protection, the Commission has to, to the extent necessary, repeal, amend or suspend the decision. Article 45 of the GDPR sets out a more or less identical regime as regards the adoption of adequacy decisions under the GDPR. The adequacy assessment both under the LED and under the GDPR therefore covers the entirety of the third country’s national legislation and international commitments, including legislation and policies that fall outside the scope of EU law, as the Commission’s evaluation extends to legislation on “national security” (Carrera et al., 2018, viii, 37, and 150). As a result, the surveillance practices of UK security services will become subject to the Commission’s adequacy evaluation after Brexit (Carrera et al., 37). Moreover, an executive agreement concluded by the UK with the US under the “Clarifying Lawful Use of Overseas Data (CLOUD) Act”109 would also fall within the scope of the Commission’s adequacy assessment (Carrera et al., 43). The Parliament has already raised some concerns as regards future adequacy decisions for the UK. For example, it considers that the UK Data Protection Act provides for a general and broad exemption from the data protection principles and data subjects’ rights for the processing of personal data for immigration purposes and is concerned about the fact that, when non-UK citizens’ data are processed under this exemption, they are not protected in the same manner as UK citizens (Parliament, 2020a, point 32). It believes therefore that the exemption would be in conflict with the GDPR. The Parliament is also of the view that the UK legal framework on retention of electronic telecommunications data does not fulfil the conditions of the relevant EU acquis as interpreted by the

109 CLOUD Act, S. 2383, H.R. 4943.

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CJEU, and hence does not currently meet the conditions for adequacy (Parliament, 2020a, point 32). It should be mentioned that the rules on adequacy decisions in the LED and in the GDPR codify the case law of the Court in the Schrems case.110 In Schrems, the Court noted that while a third country was not required to ensure a level of protection identical to that guaranteed in the EU legal order, it was required to ensure a level of protection of fundamental rights and freedoms that is essentially equivalent to that guaranteed within the EU by virtue of secondary EU law read in the light of the Charter.111 The Court found that, when examining the level of protection afforded by a third country, the Commission was obliged to assess both the content of the applicable rules in that country resulting from its domestic law or international commitments and the practice designed to ensure compliance with those rules.112 Also, in the light of the fact that the level of protection ensured by a third country is liable to change, the Court concluded it was incumbent upon the Commission, after it had adopted an adequacy decision, to check periodically whether the finding relating to the adequacy of the level of protection ensured by the third country in question was still factually and legally justified. Such a check is required, in any event, when evidence gives rise to a doubt in that regard.113 Finally, the Court declared that in view of, first, the important role played by the protection of personal data in the light of the fundamental right to respect for private life and, secondly, the large number of persons whose fundamental rights are liable to be infringed where personal data is transferred to a third country not ensuring an adequate level of protection, the Commission’s discretion as to the adequacy of the level of protection ensured by a third country is reduced, with the result that review of the requirements stemming from the relevant provisions of EU law, read in the light of the Charter, should be strict. One of the main stumbling blocks in the negotiations so far has been the UK’s unwillingness to formally commit to continue applying

110 Judgment of the Court (Grand Chamber) of 6 October 2015, Schrems, Case C362/14, EU:C:2015:650. 111 Schrems, paragraph 73. 112 Schrems, paragraph 75. 113 Schrems, paragraph 76.

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the ECHR. For the EU, this raises questions as to the UK’s dedication to continued adherence to the protection of fundamental rights and inevitably raises concerns as to the UK’s future position as far as the fundamental rights to respect for private life and protection of personal data are concerned. However, one should not go too far in viewing this point of divergence as insurmountable, at least as far as data protection is concerned. The EU exchanges personal data with many third countries, including in the AFSJ field. One only needs to look at the existing Europol and Eurojust agreements allowing for such exchanges of personal data with a number of third countries. Adherence to data protection standards identical to the EU’s is not as such a conditio sine qua non for exchanges of personal data in the AFSJ, as long as it can be concluded that the third country provides data protection standards which are “essentially equivalent ” to those provided in the EU. From that point of view, at least as far as data protection is concerned, it is not strictly speaking obligatory that the ECHR be mentioned in the future agreement(s). The joint requirements in the EU DA that: • transfers of personal data to the UK under Part Three, Title I on LE and JCCM, may only take place on the basis of an adequacy decision and • that in case the adequacy decisions are repealed or suspended by the Commission or declared invalid by the CJEU, the provisions of Title I will be suspended provide sufficiently strong guarantees as regards the protection of personal data. This is coupled with the provisions of the LED, the GDPR and the case law of the Court that the assessment of adequacy is a dynamic assessment, that is to say it is subject to periodic review and the Commission must—on an ongoing basis—monitor developments in the third country that could affect the functioning of the adequacy decision. Moreover, besides the periodic review, the Commission must also check whether the finding relating to the adequacy is still factually and legally justified in any case when evidence gives rise to doubts in this respect. Should the UK

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be found to no longer provide a high enough standard of protection of personal data, the provisions on LE and JCCM will be suspended. Even if the option of sectoral agreements is retained, as opposed to a comprehensive security agreement, a clause could easily be included in every such agreement, specifying that exchange of personal data under the agreement can only take place to the extent to which there is an adequacy decision. Should the adequacy decision, on the basis of which personal data is transferred under the agreement, be repealed or suspended by the Commission or declared invalid by the CJEU, the provisions of the agreement would be suspended. If for some reason, and despite the clear preference in both mandates in favour of adequacy decisions, it is not possible to have an adequacy decision in place in time, there are other options to exchange personal data with a third country. The Europol Regulation, Eurojust Regulation, PNR Directive, LED and GDPR all give the possibility to transfer personal data to third countries without an adequacy decision, provided that certain conditions are met. These conditions are to be found in each separate EU act, under which the transfer is to be made, and are not necessarily always the same. They often require case-by-case checks to be conducted. As such, using these possibilities in the various EU instruments would result in a slow, fragmented, complicated and fairly limited framework for transfers of personal data. At the same time, any meaningful form of AFSJ cooperation would require a stable legal basis for the exchange of personal data, which would not necessitate case-by-case checks and authorisations. The most logical choice from this point of view is an adequacy decision, as it would provide a legal basis for the exchange of personal data in a number of areas of LE and JCCM simultaneously. 5.2.10

Jurisdiction of the CJEU

The possible role and jurisdiction of the CJEU in the future EU–UK security relationship has been another issue of contention. According to the EU Mandate, it should be possible to refer disputes to an independent arbitration panel if a mutually satisfactory resolution cannot be found. However, should a dispute raise a question of interpretation of Union law, the arbitration panel should refer the question to the CJEU as the sole arbiter of Union law, for a binding ruling. The arbitration panel should decide the dispute in accordance with the ruling given by the CJEU. The EU DA translates this position into legal text.

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The UK Mandate, for its part, makes clear that the future relationship should be based on friendly cooperation between sovereign equals, with full control of the UK over its laws and political life and with no obligations for UK laws to be aligned with the EU’s, or for the EU’s institutions, including the Court, to have any jurisdiction in the UK. The UK’s position that the CJEU is to have no role in the future EU– UK relationship is emphasised repeatedly throughout the text of the UK Mandate. The UK DA translates this into legal text and provides for settlement of disputes through cooperation and consultations. The UK DA clearly stipulates that the EU and the UK can only have recourse to the procedures for dispute settlement provided for in the Agreement. As for the interpretation of the Agreement, the UK DA specifies that the Agreement is to be interpreted in accordance with the customary rules of public international law, including those in the Vienna Convention on the Law of Treaties. While the role of the CJEU in the future relationship is undoubtedly a contentious point, it could be argued that it is politically contentious rather than legally. This means that, if there is political will, it might be possible to find a legally sound solution to this problem. In the current models of EU cooperation with third States, third countries are not subject directly to the Court’s jurisdiction and dispute resolution mechanisms have been devised (Mitsilegas, 2019, 204). The EU has concluded a number of sectoral agreements with third countries, none of which provides for the competence of the CJEU to settle disputes concerning their application or interpretation (Carrera et al., 2018, 30). These include, inter alia, the Norway/Iceland surrender agreement,114 the Norway/Iceland Prüm agreement,115 the Liechtenstein and Switzerland Prüm agreements,116 the EU-US PNR agreement,117 the EU-Australia PNR Agreement.118 By and large, these agreements lay down a political or diplomatic mechanism to solve potential conflicts (usually consultation between the

114 Articles 36 and 37 thereof. 115 Articles 3 and 4 thereof. 116 Articles 3 and 4 of these agreements. 117 OJ L 215, 11.8.2012; see Article 24 thereof. 118 OJ L 186, 14.7.2012; see Articles 23 and 24 thereof.

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parties) and may also foresee the possibility to suspend, or even terminate the agreement if the dispute is not solved (Carrera et al., 2018, 30). Peers (2020) makes a similar observation, noting that the EU has never insisted for any other non-EU country to accept CJEU jurisdiction for any agreement in the AFSJ field. It would not therefore be an unthinkable compromise for the EU to agree that the future EU–UK agreement(s) in the AFSJ field does not provide for CJEU jurisdiction and instead establishes a mechanism of regular mutual exchange of case law on the application and interpretation of the agreement, coupled with a diplomatic mechanism for dispute resolution. This issue should not, however, be confused with the role of the CJEU within the EU and the EU MSs when it comes to interpreting EU law. Any future EU–UK agreement—be it a comprehensive one or several sectoral ones—will as from its entry into force form an integral part of the EU legal system.Within the framework of that system, the Court has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement.119 The Court will therefore remain competent to ultimately and authoritatively interpret EU law and the national authorities of the MSs, which are the main actors of judicial and police cooperation proceedings, will continue to have the power or the obligation within the EU to ask the CJEU to rule on the compatibility of the UK’s requests for cooperation with EU law (Carrera et al., 2018, 156). Let us not forget that this is exactly the situation in which Russia and the US as third countries found themselves in the Petruhhin, Pisciotti and Ruska Federacija cases (see Chapter 5, Sect. 5.2.7). In addition to the CJEU having the jurisdiction to interpret—within the EU legal order–any future EU–UK agreement, the Court can also give an opinion as to whether an envisaged EU–UK agreement is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.120 This was the case with the envisaged EU-Canada PNR Agreement in Opinion 1/15 of the Court. 119 Judgment of the Court of 30 September 1987, Demirel, Case 12/86, EU:C:1987:400, paragraph 7; see also Judgment of the Court of 11 March 2015, Oberto and O’Leary, Joined Cases C-464/13 and C-465/13, EU:C:2015:163, paragraph 29. 120 Article 218(11) TFEU.

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The Court therefore has jurisdiction to rule whether an envisaged EU– UK agreement is compatible with primary EU law. This does not mean that the Court has jurisdiction over the UK. An adverse opinion of the Court will create an obligation for the EU institutions to renegotiate the envisaged agreement or for the MSs to revise the Treaties if they wish to conclude the agreement without amending it. An adverse opinion does not create a legal obligation for the UK to renegotiate the envisaged agreement to bring it in line with EU primary law. This is separate from the question that in such a situation the UK will have to decide whether to agree to renegotiate or whether to accept that it will not have an agreement with the EU. Consequently, the UK might find itself affected in practice by the opinion of the Court, even if the opinion will not have legal effect within the UK. The Treaties do not say what happens if an international agreement concluded by the EU is found to be incompatible with primary EU law after its conclusion. Applying Article 218 TFEU by analogy, and following from the hierarchy of norms of EU law according to which international agreements rank below EU primary law, the consequence should be the same as the one provided for in Article 218(11) TFEU. That is to say that, should an international agreement be found to be incompatible with primary EU law, this would create an obligation for the EU institutions to renegotiate the agreement in order to amend it or an obligation on the MSs to revise the Treaties if they do not wish the agreement to be amended. If neither of these options materialises, it could be argued that the EU institutions would be under an obligation to terminate the agreement (as opposed to not concluding it, as is the case in Article 218(11) TFEU). The result in that latter case will ultimately be largely the same as the situation with an agreement envisaged in Article 218(11) TFEU: the incompatible agreement will not materialise in the EU legal order in the case of Article 218(11) TFEU and it will cease to exist in the EU legal order in the case of termination after its conclusion. Regardless of the concrete situation, a judgment or opinion of the CJEU as to the validity or interpretation of an EU–UK agreement will only produce effects within the EU. It will not be binding on the third country (the UK in this scenario), which is the other Party to the agreement, because the CJEU does not have competence and jurisdiction within this third country. As explained above, this is irrespective of the fact that the UK might find itself faced with a binary choice of either

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renegotiating, or accepting that an EU–UK agreement will not/will no longer exist. Any future EU–UK agreement will form part of the EU legal order. Consequently, the CJEU will have jurisdiction within the EU legal order to rule on preliminary rulings concerning the interpretation of such an agreement and will have a say on the compatibility with primary law of such an agreement. This is a legal requirement of the EU Treaties and as such, it is non-negotiable and applies to all EU agreements with third countries. According to Peers (2020), the UK does not object to a role for the CJEU in interpreting the treaty on the EU side. It remains to be seen whether this is indeed the case. However, just as it might be unreasonable for the EU to insist that the UK accept jurisdiction of the CJEU, when the EU does not ask this of other third countries, it would be unreasonable for the UK to tell the EU which courts should have the right to interpret EU law within the EU and with effect within the EU. Moreover, while the former is a political question and thus subject to negotiation, the latter is a legal requirement of the EU Treaties, which applies to all EU agreements with third countries, and as such is non-negotiable.

References Baker, E. (2018). Criminal justice and the “New, Deep and Special Partnership” between the EU and the UK: A critical test for the area of freedom, security and justice? European Journal of Crime, Criminal Law and Criminal Justice, 26, 1–19. Carrapico, H., Niehuss, A., & Berthélémy, C. (2019). Brexit and internal security: Political and legal concerns on the future UK-EU relationship. Palgrave Studies in European Union Politics. Carrera, S., Mitsilegas, V., Stefan, M., & Giuffrida, F. (2018). Criminal justice and police cooperation between the EU and the UK after Brexit: Towards a principled and trust-based partnership. Report of a CEPS and QMUL Task Force. Centre for European Policy Studies (CEPS). Council. (2019, February 19). Council conclusions on EU relations with the Swiss Confederation. Document 6547/19. Curtin, D. (2018). The ties that bind: Securing information-sharing after Brexit. In B. Martill & U. Staiger (Eds.), Brexit and beyond: Rethinking the futures of Europe. UCL Press.

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eu-LISA. (2020). “SIS II—2019—Statistics—report”, published in March 2020. https://www.eulisa.europa.eu/Publications/Reports/SIS%20II%20-% 202019%20-%20Statistics.pdf. Eurojust. (2020). Eurojust annual report 2019. Available here: https://www.eur ojust.europa.eu/doclibrary/corporate/Pages/annual-reports.aspx. Mitsilegas, V. (2019). The future of EU–UK security cooperation: The triple paradox of Brexit. Archives de politique criminelle, 41(1), 189–206. Parliament. (2013a). Parliamentary question for written answer to the Commission, 31 May 2013. Subject: Russia and other third countries using passenger name record (PNR) systems. E-006179/2013. OJ C 42 E, 13/02/2014. Parliament. (2013b). Answer given by Ms Malmström on behalf of the Commission on 9 August 2013 to parliamentary question on Russia and other third countries using passenger name record (PNR) systems. OJ C 42 E, 13/02/2014. Parliament. (2020a). European Parliament resolution of 12 February 2020 on the proposed mandate for negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland. 2020/2557(RSP). Parliament. (2020b). Report on the draft Council implementing decision on the launch of automated data exchange with regard to dactyloscopic data in the United Kingdom. Committee on Civil Liberties, Justice and Home Affairs. 14247/2019. 2019/0819(CNS). Parliament. (2020c). European Parliament legislative resolution of 13 May 2020 on the draft Council implementing decision on the launch of automated data exchange with regard to dactyloscopic data in the United Kingdom. 2019/0819(CNS). Peers, S. (2018). Extradition to non-EU countries – Further developments in EU case law. EU Law Analysis (blog). http://eulawanalysis.blogspot.co.uk/ 2018/04/extradition-to-non-eu-countries-further.html. Peers, S. (2020). Justice and Home Affairs in the future UK/EU relationship: Analysis of the negotiation positions. EU Law Analysis (blog). https://eulawanalysis.blogspot.com/2020/02/justice-and-homeaffairs-in-future-ukeu.html.

CHAPTER 6

Conclusion

Abstract This chapter summarises the main findings of the book. It then puts forward some ideas as to the possible impact as a result of Brexit on security cooperation within wider Europe and as to the possible emergence in the future of a European Security Union within wider Europe. Keywords Brexit · Security cooperation · Security Union

The future form and content of the EU–UK cooperation in the fields of law enforcement and judicial cooperation in criminal matters is still uncertain. Despite the fact that the UK referendum on the UK leaving the EU took place in June 2016 and despite Article 50 having been triggered in March 2017, the UK’s last day as an EU Member State was only on 31 January 2020, which has left very little time for actual negotiations on the future relationship. Without an extension of the transition period, the EU acquis in the fields of law enforcement and judicial cooperation in criminal matters will for the most part cease to apply to the UK as of 1 January 2021. With the EU and the UK only adopting their negotiating mandates at the end of February 2020 and with the coronavirus outbreak, there have been very few negotiating rounds. The rounds that took place did not © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Pencheva, EU-UK Police and Judicial Cooperation in Criminal Matters, St Antony’s Series, https://doi.org/10.1007/978-3-030-71475-8_6

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provide any significant advancement on the main points of contention between the two sides and therefore the likelihood of negotiating a comprehensive legal framework for LE and JCCM before the end of 2020 is low. There are a number of uncertainties that persist both in terms of the form that the future framework might take and in terms of its content. Despite the remaining uncertainties, one thing is unavoidable and that is that security cooperation between the UK and the EU will not be as close as it was when the UK was a Member State. This is inevitable due to the existing legal constraints when it comes to cooperating with nonEU countries. As Carrapico et al. (2019, 100) observe, EU–UK security negotiations are an exercise in damage control. Inkster (2018, 32) also notes that irrespective of what kind of Brexit comes into being, both the UK and the EU look set to be worse off in terms of overall security; how much worse off will depend on the extent of each party’s flexibility and creativity in the final phases of the negotiation. The worry is that the increase in the levels of cooperation in this field, including following the terrorist attacks from 2015 onwards, will therefore stall and even turn backwards with the consequences felt by LEAs, judicial authorities, and criminals alike. If Britain and the EU fail to sign a security deal, the only winners will be criminals (Carrapico et al., 2019, 79). As regards the form of the future EU–UK security cooperation, an EU–UK negotiated legal framework is the most practicable and least disruptive option. The other options include negotiating bilateral agreements with MSs or falling back on CoE and UN Conventions. Neither of those would be sufficient to allow for meaningful cooperation. As noted by Carrera et al. (2018, 146), should traditional international agreements, for example on extradition and MLA, apply in the future EU–UK relationship, extradition and MLA procedures could be expected to be longer and more expensive than they currently are, because UK extradition and MLA requests are not likely to have the same priority in other EU countries. This could have quite an impact on the effectiveness of cross-border investigations, which are notoriously affected by the lengthy procedures to obtain evidence via Letters of Request (Carrera et al., 2018, 82). The other option—of negotiating bilateral agreements with MSs— brings a lot of uncertainty as to the extent to which MSs can even negotiate such bilateral agreements in areas already covered by EU law instruments. Also, having bilateral agreements (in areas where this is

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possible) is likely to lead to a multitude of similar yet different regimes for cooperation and potentially contradicting applications and interpretations of the different bilateral agreements. This would eventually lead to confusion and difficulties especially for the UK authorities, which will have to check which particular procedure applies depending on the EU MS with which they wish to cooperate in any given case. This could be complicated even further in situations where a criminal case concerns several MSs and the UK. Whilst a JIT might be a useful tool in such a situation, without one there will be a lot of practical complications as to which bilateral agreement, if any, to follow for any single procedural action. Both of these options (bilateral agreements or conventions) would be much slower, less efficient and would leave the UK authorities with a panoply of fragmented regimes for cooperation, exchanges of data and information, depending on the type of data and the MS with which the cooperation is to take place. This leaves the option of putting in place an EU–UK legal framework—be it as a comprehensive security partnership, or by negotiating separate sectoral agreements covering different aspects on which the EU and the UK have managed to find agreement—as the best scenario. As far as content is concerned, despite the differences between the EU and the UK in their respective negotiation mandates, both sides converge on quite a few of the areas they would like to see covered by their future AFSJ relationship. Of course, the devil is in the details and if one looks at the details of these areas of cooperation as presented in the two mandates, elements of divergence do emerge. In addition, by far the most problematic issue and an issue that is horizontal for all the areas of AFSJ cooperation, is the issue of compliance with fundamental rights, including the right to protection of personal data, and the different starting positions of the EU and the UK as to how such compliance is to be ensured and guaranteed. As regards cooperation with Europol, the UK has expressed the willingness to go beyond what exists with third countries currently. However, the closer the relationship of the UK with Europol is to that of an MS, the more likely it is that the UK will have to give up some of its red lines. It is also questionable to what extent the EU would wish to offer a relationship to the UK that it has not yet offered to any of its close partners, such as the USA and the non-EU Schengen countries. It is therefore probable that the future EU–UK cooperation through Europol will be based on an agreement similar in content to the agreements that exist

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currently with third countries, perhaps with some solemn declarations underlying the importance of the cooperation with the UK. Basing itself on the USA model of cooperation though, the UK can then supplement this agreement with a very significant presence of the UK at Europol’s headquarters. This would potentially allow the UK the possibility to cultivate a much more advanced form of (informal) cooperation than what follows from the text of the future agreement. It could also potentially give the UK the opportunity to informally influence decisions as to the future direction of the agency. As a point of caution, the danger of such informal channels of cooperation should be highlighted. Whilst allowing for speed and flexibility in exchanging information and data, they also constitute a risk as regards the protection of personal data and the respect for fundamental rights. In terms of the content of the future cooperation with Europol as expressed in the EU and UK DAs, there are a few important differences. A number of them have to do with processing of personal data with the result being that the UK DA provides fewer data protection safeguards for such processing than what exists in the most recent Europol agreements with third countries. With Europol’s legal basis having been lisbonised, the Charter becoming part of EU primary law and the Court’s recent data protection case-law, it remains to be seen what the data protection requirements for the new generation third country agreements with Europol should be. It is difficult to imagine, however, how they would be lower than what exists in the agreements concluded under the old Europol Decision. As such, the UK DA would quite likely prove to be not only politically, but also legally untenable for the EU. As far as cooperation with Eurojust goes, both sides wish to continue that cooperation. The UK has not expressed a wish in its mandate to go beyond the standard agreements with third countries that exist currently. Theoretically, it should therefore be fairly easy to agree on the future EU– UK cooperation through Eurojust. However, when comparing the EU DA and the UK DA, a number of differences become evident. Just as was the case with Europol, the most contentious ones concern the exchange of personal data. Like with Europol, the UK DA specifically provides for texts allowing for an exchange of personal data with Eurojust even in the case when an adequacy decision is not applicable, which contradicts the EU mandate. The UK DA has modelled these provisions on exchanges of personal data without an adequacy decision on existing third country agreements although with some minor differences. It should be recalled in

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this context that the UK is using as templates agreements with third countries which were concluded under the old Eurojust Decision and under the old data protection regime provided for in that Decision. However, the Eurojust Regulation provides for a different data protection regime than the one that existed before. Therefore, the data protection provisions of existing Eurojust agreements with third countries should not be taken as necessarily sufficient for the requirements of the new data protection regime after the Eurojust Regulation became applicable. If a solution can be found as regards the exchange of personal data, the other differences between the EU and the UK positions are fairly small and could be overcome quite quickly. Both the cooperation with Europol and with Eurojust presuppose the existence of a legal basis for the exchange of personal data and this appears to have turned into the politically most difficult issue to resolve—not only as regards the future cooperation with these agencies, but for the future EU–UK security cooperation in general. Both the EU and the UK wish to put in place arrangements on exchange of information on criminal records between the UK and the EU MSs, similar to those provided by ECRIS. The provisions in the EU DA are in fact tailored after Council Framework Decision 2009/315/JHA, although much less detailed. This demonstrates the EU’s willingness to put in place arrangements that approximate the ones that exist on the EU level. As both sides seem to want the same, it is likely that agreement between the EU and the UK could be found fairly quickly in this area. Potential stumbling blocks might include the deadline for replies to requests, giving the UK access to ECRIS (the EU’s position on that point is not immediately clear when reading its mandate and the EU DA), and the overarching issue of data protection, which either needs to be resolved separately for each area of cooperation within the fields of LE and JCCM, or needs to be resolved horizontally. The exchange of DNA, dactyloscopic and vehicle registration data currently takes place within the framework of the Prüm Decisions. The EU has already concluded agreements with several third countries on the application of certain provisions of the Prüm Decisions to these countries, namely with Norway, Iceland, Liechtenstein and Switzerland, which are all Schengen countries. The Prüm Decisions, however, are not Schengenrelated measures as such. It should therefore be theoretically possible to conclude such an agreement with a third country not belonging to the Schengen area. The EU DA seems to corroborate this view, as it

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does set out provisions to enable reciprocal access to DNA, dactyloscopic and vehicle registration data. While there are some differences between the UK and the EU DAs, most of them do not appear to be too contentious and could potentially be overcome fairly quickly. However, issues of contention remain. These include not only the horizontal questions of data protection and the role of the CJEU, but also the issue of the inclusion of DNA and fingerprints of suspected persons. Both the EU and the UK Mandates consider that the exchange of PNR data should form part of the future EU–UK security relationship. The EU has already concluded PNR agreements with some third countries and is in the process of negotiating such agreements with other countries. Therefore, in general and at first glance, this should not be a particularly contentious area. However, when comparing the PNR texts of the EU DA and the UK DA a number of important differences emerge. These differences seem to lead to a significantly broader processing and use of PNR data in the UK DA, with fewer data protection safeguards, than what is provided in the EU DA. This is particularly problematic, considering that a number of provisions in the EU DA aim to satisfy the requirements set out by the Court, including in Opinion 1/15. The practical difficulty for both sides would in fact be in ensuring that the requirements set out by the Court in its Opinion 1/15 are respected. Should the EU–UK PNR agreement go beyond the precedents with other countries in terms of processing of personal data, the data protection safeguards provided for in that agreement would also need to go beyond the precedents with other countries and consequently would also most probably have to go beyond the requirements set out in Opinion 1/15. Judging by the remarks of the EU’s Chief Negotiator after the third negotiating round though, the EU seems to feel that the UK is asking it to ignore EU law and the jurisprudence of the Court on PNR. This is obviously a red line for the EU, not just politically, but also legally. With this in mind, and unless significant compromises are made especially on the UK side, it appears highly unlikely that an agreement on PNR would be concluded in time for the end of the transition period. The UK Mandate clearly argues in favour of a mechanism for the UK and EU Member States to share and act on real-time data on persons and objects of interest, including wanted persons and missing persons, which is a capability currently provided by SIS II. While there might have been some ambiguity as to whether the EU Mandate was referring indirectly to SIS or not, the text of the EU DA makes clear that the EU does not

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intend to negotiate any capabilities similar to what is currently offered by SIS. Moreover, the deficiencies identified in the 2017 evaluation of the UK as to its use of SIS have undermined trust in the UK and this is already having a significant impact. The European Parliament has taken a firm position on this point, not only making clear that the arrangements for the future cooperation between the EU and the UK in the area of law enforcement should only be discussed once the deficiencies are remedied, but also rejecting explicitly the possibility that the UK can have direct access to EU information systems data and SIS. It therefore looks highly unlikely that an agreement can be reached to introduce capabilities similar to the ones provided by SIS in the future EU–UK relationship. The UK’s preference when it comes to the future extradition arrangements with the EU is that they be based on the EU’s Surrender Agreement with Norway and Iceland. When one looks at the provisions of the EU DA on surrender, it becomes evident that they resemble in a number of respects those of the Norway/Iceland Surrender Agreement. This suggests that a negotiated solution on the future surrender proceedings between the EU and the UK might be within reach and might actually be modelled on the Norway/Iceland Surrender Agreement. This is, of course, without considering the question of the role of the CJEU when it comes to such an Agreement, which is still a question of contention between the EU and the UK. There are also quite a few other differences between the EU and the UK texts, which do not appear insurmountable, but can slow down or even lead to a blockage in the negotiations, especially considering the hardening of tone on both sides after the first three negotiating rounds. When it comes to the future MLA arrangements, both sides express the wish to build on the relevant CoE Conventions in order to provide for streamlined and time-limited processes. For the most part the similarities between the two DAs end there. The UK DA has been modelled to a large extent on the EIO Directive—much more so than the EU DA. It takes over—fully or in part—a significant number of the provisions of the EIO Directive. The EIO Directive, however, is an EU instrument based on the principle of mutual recognition and as such is based on mutual trust. Whether the EU would agree to incorporate such a considerable part of the achievements of the EIO Directive in its future relationship with the UK remains to be seen. However, past events that have served to undermine the trust between the EU and the UK, such as

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the issues regarding the UK’s use of SIS and the suspected UK involvement in Belgacom’s hacking, might end up having a significant impact. The unwillingness of the UK to commit in the text of the agreement to the guarantees on protecting fundamental rights and individual freedoms resulting from the ECHR adds another layer of complexity. Therefore, whether the future EU–UK MLA arrangements will be closer to the fairly detailed UK DA or closer to the quite general and schematic EU DA is still unclear and would, to a large extent, depend on the level of mutual trust between the EU and the UK. Data protection is the foundation on which any future EU–UK security partnership must be built. Any worthwhile AFSJ cooperation would require the exchange of personal data. Any exchange of personal data would necessitate a legal framework. Therefore, agreeing a legal framework with rules and safeguards for the processing of personal data is a precondition for any stable (as opposed to ad hoc, case-by-case) form of future security cooperation. Both mandates seem to have opted for a framework based on the adoption of adequacy decisions. This is indeed the most pragmatic course of action, as an adequacy decision would provide a legal basis for exchanges of personal data in a number of areas of LE and JCCM simultaneously. If for some reason, and despite the clear preference in both mandates in favour of adequacy decisions, it is not possible to have an adequacy decision in place in time, there are other options to exchange personal data with a third country. The Europol Regulation, the Eurojust Regulation, the PNR Directive, the LED, the GDPR all give the possibility to transfer personal data to third countries without an adequacy decision, provided that certain conditions are met. These conditions are to be found in each separate EU act, under which the transfer is to be made, and are not necessarily always the same. They often require case-by-case checks to be conducted. As such, using these possibilities in the various EU instruments would result in a slow, fragmented, complicated and fairly limited framework for transfers of persona data. The possible role and jurisdiction of the CJEU in the future EU–UK security relationship has been another issue of contention and is one of the UK’s red lines. In general, while undoubtedly a contentious point, it can be viewed as contentious more politically rather than legally. This means that, if there is political will, it might be possible to find a legally sound solution to this problem. However, this is only true provided that there is a clear understanding of the difference between the CJEU having

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jurisdiction in the UK and the CJEU having jurisdiction in the EU as regards EU law. Any future EU–UK agreement will form part of the EU legal order. Consequently, the CJEU will have jurisdiction within the EU legal order to rule on preliminary rulings concerning the interpretation of such an agreement and will have a say on the compatibility with primary law of such an agreement. This is a legal requirement of the EU Treaties and as such is non-negotiable and applies to all EU agreements with third countries. It should also be noted that, from the EU’s point of view, excessive concessions to the UK may cause upset among other EU partners, especially among those countries that—unlike the UK—are also part of the Schengen acquis (Carrera et al., 2018, 25). This could mean that the UK’s wish, as manifested in the UK Mandate, to base a number of points of future cooperation on existing EU cooperation with non-EU Schengen countries, and to even go beyond those in some cases, might not be so easy to fulfil. The Parliament resolution of 12 February 2020 on the proposed mandate for negotiations (Parliament, 2020) should also be mentioned here, considering that the Parliament has to give consent to any future EU–UK AFSJ agreement. According to that resolution, any association agreement between the EU and the UK must be in strict concordance with a number of principles, including that a third country must not have the same rights and benefits as a Member State of the EU, or a member of EFTA or the EEA. However, should creative and far-reaching solutions be found for the future EU–UK security cooperation, this may have the impact of fuelling further security integration within wider Europe. The reason would be that such solutions, once devised, could then be used to strengthen cooperation with other European countries and even beyond Europe. As such, it cannot be discarded that while Brexit will undoubtedly mark a step back in EU–UK security cooperation, it might end up leading to further increase in cooperation between the EU, on the one hand, and the rest of Europe, on the other, and could ultimately turn into a step towards the creation a European Security Union within wider Europe. On the one hand, this can come about through a more widely spread use of the “precedents” for cooperation that the UK is referring to in its negotiating mandate. These often include examples of agreements with Norway, Iceland, Switzerland and Liechtenstein. The UK is therefore taking the most advanced forms of cooperation between the EU and other European States as a ready “off-the-shelf” model for cooperation in

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certain areas. This could prompt other European States, which do not yet have such close cooperation with the EU in these areas (for example, the Western Balkans), to ask for similar arrangements, thus leading to further integration in the field of security cooperation within wider Europe. On the other hand, beyond using existing agreements as templates more widely, if there is strong political will on both sides to continue cooperating as closely as possible with each other in the field of security after Brexit (which is not a given), then both sides will work hard to try to find new mechanisms to allow for the closest possible security cooperation. These mechanisms, once devised and put into place for the UK, could then themselves become templates and be used to further deepen security cooperation with other non-EU European countries as well, including Norway, Iceland, Switzerland, Liechtenstein and the Western Balkans. Therefore, turning the most advanced precedents for cooperation into a ready “off-the-shelf” model to be used in the future EU–UK security cooperation and devising new mechanisms to allow for the closest possible security cooperation with the UK could in turn incentivise the EU to deploy these “off-the-shelf” models and new mechanisms in its security relationship with other countries within Europe. This would put the EU at the centre of creating a Security Union within Europe, modelled on what exists in the EU, and able to respond to the new security challenges facing Europe. Another possible development could be that the UK tries to bring the rest of the European countries closer together and to deepen security cooperation with them. Should that be the case, this would mean closer security cooperation within the region and could lead to the de facto emergence of a European Security Union of sorts incited by the UK, if not by the EU. Such a possible development already manifested itself during the 2018 Berlin Process Western Balkan Summit, hosted by the UK, which can be seen as a sign that the UK might wish to take a leading role in European security cooperation even after Brexit. The Berlin Process was launched in 2014 with the aim of maintaining the momentum of European integration in the Western Balkans. The Process is supported by the Commission, international financial institutions and a number of MSs— Austria, Croatia, France, Germany, Italy, Slovenia and the UK (in the last few years, Poland and Bulgaria have also joined the group of MSs involved

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in the Process). Berlin Process Summits are organised every year with the participation of the Western Balkans and the MSs involved in the Process. When the UK hosted the Berlin Process Summit in July 2018, a meeting of the interior and security ministers of the Berlin Process participants was included for the first time. Considering that the 2018 summit took place after the UK vote to leave the EU, this can be viewed as a sign of the UK’s willingness and ambition to continue being a key security player within Europe even after leaving the EU. In fact, as Klemenc and Pulko (2018) note, according to Deputy Summit Coordinator Sam Jeremy, UK Foreign & Commonwealth Office, “the UK as chair of the 2018 Summit is to remain committed to helping the Western Balkans and increasing cooperation with the region despite Brexit, and that security remains a key strand of all UK engagement in the Western Balkans, seen through the lens of European security”. Brexit therefore should not necessarily be taken to mean that European security cooperation and integration in a wider context will take a step back, even if EU–UK cooperation would certainly weaken. Europe faces many common security challenges that demand coordinated action and require European countries to work together. These challenges are not going to go away because of Brexit. The geopolitical reality of contemporary security threats will require not only that the EU and the UK cooperate, but also that all European countries develop their security cooperation with each other even further in order to be able to tackle and respond to these evolving threats. And while the outlook for EU– UK security cooperation after Brexit might be bleak, paradoxically Brexit might prompt a new phase for security cooperation within wider Europe and might lay the foundations for the creation of a European Security Union.

References Carrapico, H., Niehuss, A., & Berthélémy, C. (2019). Brexit and internal security: Political and legal concerns on the future UK–EU relationship. Palgrave Studies in European Union Politics. Carrera, S., Mitsilegas, V., Stefan, M., & Giuffrida, F. (2018). Criminal justice and police cooperation between the EU and the UK after Brexit: Towards a principled and trust-based partnership. Report of a CEPS and QMUL Task Force.

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Inkster, N. (2018). Brexit and security. Survival. Published online on 20 Nov 2018. https://doi.org/10.1080/00396338.2018.1542797. Klemenc, J., & Pulko, I. B. (2018). The Berlin process as an actor in internal security and counter-terrorism: Opportunities and pitfalls. Institute for Democracy “Societas Civilis”—Skopje. Parliament. (2020). European Parliament resolution of 12 February 2020 on the proposed mandate for negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland. 2020/2557(RSP).

Index

A Adequacy decisions, 24, 29, 30, 35, 67, 76, 111, 126 AFSJ See Area of freedom, security and justice (AFSJ) AML See Anti-money laundering (AML) Anti-money laundering (AML), 26, 30, 55, 111 Area of freedom, security and justice (AFSJ), 4, 7, 59, 66, 111, 118, 125 Article 50, 17

B Bilateral agreements, 58, 124 Block opt-out, 9 Brexit, 2, 64, 124, 131

C CJEU See Court of Justice of the EU (CJEU) Comprehensive agreement, 62

Confiscation, 43, 47, 108 Counterterrorism (CT), 2, 22, 26, 30, 33, 46, 55, 111 Court, 5, 38, 52, 59, 75, 89, 100, 114, 118, 128 Court of Justice of the EU (CJEU), 5, 8, 32, 40, 48, 51, 63, 66, 71, 78, 87, 94, 99, 116, 130 Criminal records, 41, 45, 66, 80, 105, 127 CT See Counterterrorism (CT)

D Dactyloscopic data, 35, 66, 127 Data protection, 23, 29, 33, 40, 50, 61, 66, 71, 78, 83, 89, 111, 126 Denmark, 9, 69, 77, 105 Dispute resolution, 94 Dispute settlement, 44, 47, 52, 99 DNA, 27, 35, 41, 47, 66, 82, 127

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Pencheva, EU-UK Police and Judicial Cooperation in Criminal Matters, St Antony’s Series, https://doi.org/10.1007/978-3-030-71475-8

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INDEX

E EAW See European Arrest Warrant (EAW) ECHR See European Convention on Human Rights (ECHR) ECRIS See European Criminal Record Information System (ECRIS) EEA See European Economic Area (EEA) EFTA See European Free Trade Association (EFTA) Eurojust, 22, 27, 31, 42, 46, 61, 66, 75, 92, 115, 126 European Arrest Warrant (EAW), 20 European Convention on Human Rights (ECHR), 26, 29, 33, 44, 48, 71, 76, 85, 91, 115 European Criminal Record Information System (ECRIS), 41 European Economic Area (EEA), 5, 41, 99, 131 European Free Trade Association (EFTA), 5, 103, 131 Europol, 27, 30, 42, 46, 58, 66, 92, 115, 125 Europol Regulation, 13 Exclusive competence, 59 Extradition, 42, 45, 102, 124 F Fingerprints, 27, 41, 47, 82 Fundamental rights, 30, 35, 48, 125 G GDPR See General Data Protection Regulation (GDPR) General Data Protection Regulation (GDPR), 24, 43, 61, 111, 130 Gibraltar, 20 Governance, 28, 32, 40, 49, 62, 66

I Iceland, 41, 80, 84, 92, 98, 110, 117, 127 Ireland, 9, 10, 24, 92, 105

J JITs See Joint investigation teams (JITs) Joint investigation teams (JITs), 22, 27, 31, 66, 78, 106, 125 Jurisdiction, 38, 72, 94, 116

L Law Enforcement Directive (LED), 24, 43, 61, 78, 91, 111, 130 LED See Law Enforcement Directive (LED) Level playing field, 53 Liechtenstein, 41, 80, 84, 92, 117, 127 Lisbon Treaty, 8

M MLA See Mutual legal assistance (MLA) Mutual legal assistance (MLA), 31, 46, 66, 105, 124, 129 Mutual recognition, 10, 15, 97, 105, 129 Mutual trust, 54, 97, 107, 129

N Norway, 41, 80, 84, 92, 98, 110, 117, 127

O Opt-out, 5

INDEX

P Passenger Name Record (PNR), 27, 30, 35, 41, 45, 52, 61, 66, 88, 105, 116, 117, 128 Personal data, 5, 22, 26, 29, 35, 43, 51, 61, 67, 76, 111, 125 Petruhhin, 100, 118 Pisciotti, 101, 118 PNR See Passenger Name Record (PNR) Prisoners, 42, 47 Procedural rights package, 14 Protocol 19, 9 Protocol 20, 9 Protocol 21, 11 Protocol 22, 13, 69 Protocol 30, 14 Protocol 36, 8 Protocol on Ireland/Northern Ireland, 24, 32 Prüm, 27, 30, 41, 47, 66, 80, 82, 117, 127

137

Schrems , 114 Sectoral agreements, 58 Secure Information Exchange Network Application (SIENA), 22 Security Union, 131 Sentenced persons, 46 SIENA See Secure Information Exchange Network Application (SIENA) SIS See Schengen Information System (SIS) Sovereignty, 38 Surrender, 27, 31, 42, 45, 58, 66, 98, 105, 117, 129 Switzerland, 41, 63, 80, 84, 92, 117, 127 T Third pillar, 3, 8 Transition period, 4, 18, 39, 50, 58, 84, 123 Treaty of Lisbon, 4, 8

R Ruska Federacija, 103, 118 S Schengen, 8, 27, 28, 41, 50, 71, 78, 86, 92, 99, 105, 127 Schengen Information System (SIS), 23, 31, 41, 46, 66, 92, 128

V Vehicle registration data, 27, 35, 41, 47, 66, 83, 127 W Withdrawal agreement, 5, 17