SECURITY, LAW ENFORCMENT AND JUDICIAL COOPERATION IN CRIMINAL MATTERS
Ensuring the safety and security of both the EU’s and UK’s citizens against common and evolving threats such as cross-border crime, cybercrime and terrorism remains a shared priority of the EU and the UK.
This requires effective and swift cooperation, data sharing and analysis.
At the same time, close and comprehensive police and judicial cooperation with any third country must be accompanied by solid and lasting guarantees for the protection of human rights and fundamental freedoms of individuals, including data protection.
All relevant provisions take into account the status of the United Kingdom as a third country outside of the Schengen area.
What changes on 1 January 2021?
Over the years, the EU has built up a comprehensive legal framework for swift and structured cross-border cooperation between EU Member States in order to close down the space in which criminals and terrorists operate and to ensure speedy and effective investigations and prosecutions.
The UK’s choice to leave the EU and be a third country outside of the Schengen cooperation zone effectively means that it also leaves the EU’s area of freedom, security and justice. Therefore, this legal framework will cease to apply to the UK as of 1 January 2021.
Without an Agreement, cooperation between the EU and the UK would have relied on international cooperation mechanisms only (such as Interpol and the relevant Council of Europe Conventions). The UK would not have been able to benefit from a cooperation framework with EU law enforcement agencies such as Europol and Eurojust.
What does the draft Trade and Cooperation Agreement cover?
The Agreement covers cooperation on law enforcement and criminal justice.
In particular, the EU and the UK have agreed to establish a new framework for law enforcement and judicial cooperation in criminal matters, allowing for strong cooperation between national police and judicial authorities, including ambitious extradition arrangements, and the swift exchange of vital data.
Why did the EU ask the UK to sign up to safeguards for fundamental rights and individual freedoms in the context of police and judicial cooperation? What was agreed?
The Agreement provides for close relations between the EU and the UK on law enforcement and judicial cooperation in criminal matters. It would cover, amongst other things, ambitious extradition arrangements and the exchange of sensitive information that may impact human lives or rights (e.g. by leading to deprivation of liberty). Such relations require a high degree of confidence that the human rights concerned will be upheld and a common understanding on how we protect those rights.
To this end, the Agreement commits the EU, its Member States and the United Kingdom to continue to respect democracy and the rule of law, and protect and give domestic effect to fundamental rights such as those set out in the European Convention on Human Rights (ECHR), which is the reference text on fundamental rights in 47 countries in the European continent and beyond.
Will my data still be protected under the agreement?
The Agreement also includes a commitment by the EU and UK to uphold high levels of data protection standards. In principle, where personal data are transferred, the transferring Party shall respect its rules on international transfers of personal data.
For law enforcement and judicial cooperation, high levels of data protection standards are essential. These are to be ascertained by adequacy decisions taken unilaterally by each side. On the EU side, this means decisions attesting that UK standards are essentially equivalent to the EU standards set out in the EU’s General Data Protection Regulation (GDPR) and Law Enforcement Directive, and that they respect specific additional data protection standards stemming from opinions of the EU Court of Justice.
The European Commission has been intensively working on its adequacy decisions for the UK since March. Once it is satisfied with the information received, the Commission will launch the adoption process without delay. The adoption of each adequacy decision requires an opinion from the European Data Protection Board (EDPB) and the green light from Member States (as part of a comitology procedure).
This means that there will be a time gap between the possible entry application of the Agreement and the adoption of the adequacy decisions. For this reason, a bridging solution has been found and inserted in the Agreement to ensure stability and continuity during that interim period.
What happens if the UK does not respect its commitments on fundamental rights and data protection?
In addition to a specific dispute settlement mechanisms, the agreement contains provisions on suspension and termination of the law enforcement and judicial cooperation part of the agreement, in case guarantees to protect human rights fundamental freedoms and personal data are no longer ensured, or in case of serious breach of an obligation under the Agreement.
Will Passenger Name Records (PNR) continue to be exchanged to prevent, detect and investigate terrorism and other forms of serious crime?
The draft EU-UK agreement includes ambitious arrangements for timely, effective and efficient exchanges of Passenger Name Records (PNR) and the protection of data shared by EU airline carriers to the UK.
An essential precondition for these arrangements is that the UK applies data protection standards essentially equivalent to those set out in the EU’s standards, i.e. the General Data Protection Regulation and Law Enforcement Directives, and complies with specific additional data protection standards stemming from the CJEU opinion on EU-Canada PNR agreement (opinion 1/15).
Will DNA, fingerprints and vehicle registration data be exchanged between the UK and EU for law enforcement purposes? (Prüm)
The negotiating directives provide that arrangements should be established for timely, effective, efficient and reciprocal exchanges of data on DNA, fingerprint and vehicle registration data (so-called ‘Prüm data’ – which have never before been exchanged between the EU and a non-Schengen third country).
However, with regard to DNA and fingerprint data there will be no direct, real-time access to such sensitive personal data but only through a decentralised system that confirms that there is a match (hit/no-hit). In case of a match, additionals steps are needed to obtain further personal data in compliance with the applicable laws of the country that holds those data.
Essential preconditions for any such arrangements are that the UK applies data protection standards essentially equivalent to those set out in the EU’s Law Enforcement Directive, and provides reciprocal access to EU Member States of data available at UK national level in the same way as EU27 Member States do.
Will the UK keep access to the Schengen Information System (SIS)?
The Schengen Information System (SIS) is the most widely used and largest information-sharing system for security and border management in Europe. It enables competent national authorities in the Schengen area, such as the police and border guards, to enter and consult alerts on persons or objects.
The UK, like other non-Schengen third countries, cannot have acces to SIS. Indeed, SIS is intrinsically linked to the free movement of persons and acces is provided only to Member States and very closely associated countries that accept all accompanying obligations (e.g. third countries building Schengen together with Member States).
Instead, the agreement sets up new ways of data sharing taking into account the UK’s future status, including information on wanted and missing persons and objects.
This will be achieved via different complementary tools. These are:
- making full use of Interpol alerts;
- existing bilateral arrangements for the exchange of alerts or other information between law enforcement authorities;
- arrangements for UK cooperation with Europol as a third country; and
- secure communication channels to facilitate and speed up cooperation.
Will the UK still participate in Europol and Eurojust?
As a third country, the UK will no longer participate in EU law enforcement and judicial cooperation agencies such as Europol and Eurojust. It will no longer have a say in the decisions of those agencies.
Nonetheless, the draft EU-UK agreement will enable effective cooperation between the United Kingdom and Europol and Eurojust, in line with the rules for third countries established in EU legislation.
This will help ensure robust capabilities in tackling serious cross-border crime.
In practice, provisions on Europol and Eurojust would enable the UK to take part in common operations, in investigation teams and in analysis projects on specific crime areas such as drug trafficking or terrorism, get analytical support from Europol, use common secure communication channels, second Liaison Officers to Europol and a Liaison Prosecutor to Eurojust, share data, and be informed about relevant data concerning the UK. The UK would not have access to the Europol Information System nor full access to Eurojust’s case management system, nor have any role in the governance of the two EU agencies.
Will the UK still participate in the European Arrest Warrant?
The European Arrest Warrant is an internal EU instrument, used exclusively among Member States and subject to the jurisprudence of the Court of Justice of the EU. Therefore, it will no longer be used with the UK.
The draft EU-UK agreement will nevertheless enable the swift surrender of criminals between the EU and the UK, avoiding lengthy extradition procedures thanks to streamlined procedures, strict deadlines, robust safeguards, procedural rights and judicial control. This level of cooperation is unprecedented for a non-Schengen third country.
Under the agreement, the UK or EU Member States can still refuse surrender or ask for additional safeguards in a number of specific cases, namely in respect of own nationals.
Mutual legal assistance in criminal matters, including asset freezing and confiscation
The future partnership will facilitate and supplement the application of the Council of Europe convention on mutual assistance with third countries in criminal matters, for example by streamlining procedures, fixing time limits, and using standard forms and technological advancements. The cooperation includes a wide range of investigative measures, including requests for freezing and confiscating property.
Will the EU and the UK cooperate on anti-money laundering?
The EU-UK agreement provides for cooperation on combating money laundering and the financing of terrorism. It does so by confirming the EU and UK’s continued commitment to Financial Action Task Force (FATF) standards.
Beyond that, it sets out arrangements to ensure the transparency of beneficial ownership for companies and trusts and the exchange of such information between competent authorities.
Will the EU and the UK still cooperate on foreign policy, security and defence issues?
While the EU had also proposed to establish a framework for cooperation on foreign policy, security and defence to address external security threats, the UK did not wish to negotiate provisions in these areas.
As of 1 January 2021, there will therefore be no framework in place between the UK and the EU to develop and coordinate joint responses to foreign policy challenges, for instance the imposition of sanctions on third country nationals or economies.
Any participation of the UK in the EU Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP), including defence integration and capability development efforts, such as the European Defence Fund (EDF), Permanent Structured Cooperation (PeSCo) or the Coordinated Annual Review on Defence (CARD), will be subject to strict rules on participation of third countries.