Matthias Monroy

British authorities continue to participate in many EU instruments in the area of justice and home affairs, and cooperation in some cases even goes further than with the Schengen states Norway, Iceland or Switzerland. The exit from Europol and the Schengen Information System could strengthen the secret services.

With its withdrawal from the European Union, the UK will have left the „European Area of Freedom, Security and Justice“ as of 1 January 2021, and the country will become a third country from the EU’s perspective. This will also end cooperation within the framework of the Schengen Agreement. The government in London will lose its place as one of the most important partners in the EU security architecture. The loss of participation in the Schengen Information System (SIS II) will probably weigh heavily in the UK. In 2019, British police forces and intelligence services had around 37,000 persons and 4.5 million objects stored there. Many covert Article 36 alerts, which allow police and domestic intelligence to track the movements of wanted persons across the EU, also originated in the UK.

However, British authorities are to be allowed to continue to participate in important EU information systems in the area of Justice and Home Affairs (JHA) and also to cooperate with agencies. These are the provisions of the provisional „EU-UK Trade and Cooperation Agreement“ (TCA), which the parties negotiated at the last minute before the turn of the year.

New special status

Ultimately, the TCA perpetuates the UK’s special status in the EU-JHA area. Since the Treaty of Amsterdam, the country has benefited from a special arrangement with regard to the Schengen acquis. Ireland and the UK were not bound by it and could request that only individual provisions should also apply to them. With the Treaty of Lisbon and the communitarisation of police-judicial cooperation, the government in London was given the opportunity to opt out of all previous regulations and selectively opt back in to individual, newly enacted regulations. The United Kingdom withdrew from participation in around 100 legal acts with this „block opt-out“. Further participation took place from 2014 in individual instruments in the five areas of cooperation between the authorities of the member states, exchange of information and data protection, special criminal acts, bodies and agencies at European level, and procedural harmonisation.

The TCA that has now been negotiated consists of seven pillars; in addition to the regulations for cooperation in the areas of trade, transport and fisheries as well as the observance of fair competition conditions, it regulates law enforcement and judicial cooperation in criminal matters. The provisions for cooperation in the area of justice and home affairs are listed in individual „titles“ in the third part of the agreement. Not all of the implementing provisions of the TCA have been established by a long shot; the signatories have set up a Special Committee for Cooperation in the Area of Law Enforcement and Justice for the concrete structuring of cooperation in the area of JHA.

Prüm, PNR and small „Swedish Initiative“

Among the privileged partnerships is the UK’s continued participation in the 2008 Prüm Decisions, in which EU member states agreed to search and exchange DNA data, fingerprints and vehicle registration data of suspects and convicts. As Schengen associated states, Iceland, Norway and Switzerland are also connected to the Prüm police cooperation. The UK is the first non-Schengen state in the agreement. In the context of the block opt-out, in which the British government withdrew from numerous forms of cooperation with the EU, the UK initially also withdrew its participation in the Prüm Decisions in 2014 and did not recognise it again until 2016. It is actually a case of re-entry under the TCA, so cooperation should first be evaluated. As a compromise, the parties have therefore agreed to continue the exchange for an initial nine months with a possible extension to a further nine months on a transitional basis and to conduct the evaluation in parallel.

EU governments are planning to expand the Prüm system to include facial recognition, possibly linking police records and national weapons registers via this „next generation Prüm“ (Prüm.ng). The UK would have to follow the change in the associated legal framework, which according to the plans will also take place within the next 18 months.

The exchange of Passenger Name Record (PNR) data between EU Member States and the UK will also continue. The contact point in London will remain connected to the network of EU PNR Central Units for this purpose. In return, the UK commits to sharing analyses generated from this data with the agencies Europol and Eurojust as well as the law enforcement agencies of the EU member states. As a special feature, the Commission emphasises compliance with the standards set by the European Court of Justice in 2017 on the occasion of the ultimately failed EU PNR agreement with Canada. Thus, the data received is to be deleted when the passengers leave the UK again. However, the UK PNR central office must be technically reorganised for this, for which the TCA grants a transitional period of up to three years from the date of entry into force. PNR data may be requested from other Central Units solely for „preventing, detecting, investigating or prosecuting terrorism or serious crime“, but their further processing may also be for other purposes.

Under the title „Cooperation on Operational Information“, the TCA defines a framework for an efficient exchange of information between police, customs and other authorities. It is interpreted as a „slimmed-down version“ of the EU Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the EU countries („Swedish Initiative“). The purposes of the agreement are broad; mutual legal assistance is to be provided, for example, for the prevention, investigation, detection and prosecution of criminal offences, for the execution of criminal penalties, for the protection against and prevention of threats to public security, and for the prevention and combating of money laundering and the financing of terrorism. As among SIS II participants, information on wanted and missing persons or objects can also be requested. As in the „Swedish Initiative“, there are no grounds for refusal as long as the cooperation is within the framework of the respective national law. The time limits for executing requests are to be a maximum of 90 days, depending on their nature.

Europol and Eurojust

One of the painful losses for British authorities is the withdrawal from Europol, as its then British director had already announced in numerous interviews before and after the Brexit vote in 2016. A large part of the data in the Europol Information System (EIS) came from the UK, and the same presumably applies to the analysis projects set up at Europol on various crime areas. It is true that the government in London is losing its right to have a say on matters concerning the police agency. However, according to the TCA, Europol may continue to cooperate closely and intensively with Great Britain. This is governed by the framework of third country regulations, which is why the two partners want to negotiate corresponding working agreements. British authorities could then continue to receive analyses, situation reports and other products from Europol, use the SIENA communication channel, send liaison officers and even participate in joint operations, investigation teams and analysis projects. However, direct access to the EIS remains denied.

The same applies to the continuation of operational cooperation with the Agency for Judicial Cooperation in Criminal Matters (Eurojust). As with cooperation with Europol, the UK will send a liaison prosecutor to the agency. This replaces the national member that the UK, like all EU member states, had sent to Eurojust. In addition, British judicial authorities can participate in the exchange of non-personal and personal data with Eurojust. For „terrorism matters“, the UK establishes an contact point to which requests and communications can be sent. After approval by the other national members, British authorities may also participate in meetings concerning „operational matters“. Details on tasks, rights and obligations as well as the assumption of costs are to be regulated in a working agreement yet to be concluded.

Extradition and mutual legal assistance

The Framework Decision on the European Arrest Warrant is also no longer applicable with regard to cooperation with the United Kingdom, although requests issued or executed before 1 January 2021 can still be processed. British authorities can no longer enter wanted persons for arrest into the SIS II, the Interpol channel must be used instead. The third part of the TCA, however, contains rules on extradition between an EU member state and the UK that continue to apply directly. These are based on the extradition agreement concluded in 2006 between the EU and Iceland and Norway. As with the European Arrest Warrant, there is a list of offences for which the double criminality requirement does not apply, and the grounds for refusal are similar to those in the Framework Decision. However, it is possible to reject arrest warrants on the grounds of discriminatory prosecution or to make guarantees regarding the conditions of detention of the persons concerned after their surrender. If political offences are to be prosecuted, the requesting government must declare this in a separate procedure. If extradition is refused, the states concerned must themselves ensure the prosecution of the persons concerned in accordance with the 1959 Council of Europe Convention.

In the TCA, the UK and EU member states also agree on mutual legal assistance in criminal matters. The agreements are to supplement the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters and its two Additional Protocols of 1978 and 2001 with concrete time limits. A corresponding form is still to be drawn up by the Special Committee on Law Enforcement and Judicial Cooperation. Requests can be transmitted directly between the prosecution services of the UK and EU member states, and in urgent cases the authorities can use the communication channels of Europol and Eurojust. It is also possible to participate in joint investigation teams after UK authorities have been invited to do so by EU member states.

The UK also retains its access to the European Criminal Records Information System (ECRIS). It contains information on convictions that can be searched by prosecutors and courts across the EU. A special rule doubles the time limit within which requests must be completed to 20 days. At least once a month, the UK and EU member states must inform each other of convictions of their citizens. Remaining in ECRIS has a symbolic effect, because so far even the Schengen-associated states do not participate.

Think before suspending

Furthermore, the third part of the TCA regulates the continued cooperation in the field of money laundering and terrorist financing. The text remains largely unspecific in this regard. It states that the contracting parties can exchange „relevant information“, including suspicious transactions or personal data on their participants. British authorities will remain connected to the network of Financial Intelligence Units (FIUs) responsible for combating money laundering or terrorist financing. The signatories have also agreed on a set of rules on investigations and asset freezing procedures. This relates to cross-cutting issues in other chapters on law enforcement and judicial cooperation, such as the joint review of the third part five years after the entry into force of the TCA.

Title XIII of part three contains a framework of dispute resolution, enforcement and sanctions mechanisms. With its exit from the EU, the UK will leave the jurisdiction of the European Court of Justice, which means that it cannot be called upon to resolve disputes. However, the signatories reaffirm their will to comply with the European Convention on Human Rights.

In the area of judicial and police cooperation, the focus is not on establishing and prosecuting a violation of the treaty, but on the question of whether cooperation must be terminated. The routine therefore includes a mutual consultation, according to which the partners are supposed to look for solutions within three months. If this remains unsuccessful and the violations are deemed to be significant, the measures can be suspended.

„Regular dialogue“ for „operational matters“

Contrary to plans, the Brexit agreement does not extend to cooperation in the areas of foreign policy, external security and defence. However, the UK retains access to the European Union’s satellite surveillance and tracking services, including the „Copernicus“ service. The country also remains involved in the EU’s Horizon Europe research framework programme.

Finally, the UK and EU member states have agreed to a „regular dialogue“ to exchange information on relevant developments. The areas mentioned are international security, security of emerging technologies, internet governance, cyber security, cyber defence and cyber crime. The government in London has refused to cooperate on irregular migration, while proposals on the transfer of unaccompanied minors or readmission have been rejected by individual EU member states.

Joint measures for „Counter-terrorism“ are laid down in the sixth part of the TCA. There, the parties promise to „cooperate at the bilateral, regional and international levels to prevent and combat acts of terrorism in all its forms and manifestations“. Here, too, a „regular dialogue“ is to be established, which may also include „operational cooperation and exchange of information“. The coordination of „cooperation within the framework of multilateral organisations“ is also to be coordinated there. It remains unclear which organisations are involved.

For the exchange of classified information, the UK and the EU member states have concluded an information security agreement. This is a supplementary agreement to the TCA.

Strengthening the intelligence services

The Trade and Cooperation Agreement thus continues security cooperation with the UK in numerous important areas. „Losses“ such as the withdrawal from SIS II and Europol databases presumably strengthen intelligence cooperation. This concerns the European association “ Club of Berne“ and its „Counterterrorism Group“ (CTG), in which the British domestic service MI5 participates. With more and more measures, the CTG is expanding its counterterrorism cooperation with Europol.

The UK also remains a member of the Police Working Group on Terrorism (PWGT), which brings together police state protection departments or intelligence services from all EU member states as well as Norway, Iceland and Switzerland. The PWGT is an informal association and is not part of the EU. Contrary to what the name suggests, the informal grouping also deals with „extremist crimes“ following an extension of its tasks. Cooperation in the semi-clandestine is also likely to be strengthened by Brexit.

Problems with data protection and Gibraltar

With Brexit, the UK will also withdraw from the General Data Protection Regulation and the EU Justice and Home Affairs Data Protection Directive (JHA Directive). Therefore, the regulations on the exchange and processing of data for companies and authorities must also be reorganised. As a transitional measure, parties have agreed not to consider data transfers from the EU as transfers to a third country for six months. During this time, the EU Commission is working on so-called adequacy decisions, which are supposed to declare data protection in the UK as compatible with EU standards. The Commission presented a draft of these adequacy decisions in February. By the end of April, the European Data Protection Board is to issue an assessment on this, after which the so-called comitology procedure will begin. The adequacy decisions could then be adopted by the Council before the summer break. Possible reasons for rejection could be the well-known close cooperation of the British intelligence services within the framework of the „Five Eyes“. The domestic service GCHQ passes on masses of monitored telecommunications data to partners in the USA, Australia, New Zealand and Canada; the European Court of Justice has declared this to be incompatible with the EU Charter of Fundamental Rights. In the proposal for adequacy decisions, the Commission addresses the problem as a precautionary measure and writes that the mass data collection by GCHQ is not considered „mass surveillance“, as its activities are sufficiently controlled.

There is also dissent regarding the position of Gibraltar. For over 300 years, the southern tip of the Iberian Peninsula has belonged to Great Britain. With Brexit, the Spanish government would consequently have had to introduce border controls for goods and people coming from the British exclave as of 1 January. Britain and Spain therefore propose in a preliminary declaration of principle that Gibraltar can join the Schengen area. Gibraltar would then have to apply the Schengen acquis, this concerns border control and surveillance as well as the issuing of residence permits. The declaration states that all official acts are the responsibility of the Gibraltarian authorities. First of all, border officials from Gibraltar use their own databases to check whether there are any persons on whom an alert has been issued for the purpose of refusing entry. But then Spanish officers query EU databases (and presumably Spanish information systems) and can then refuse entry. The emotions of the British population in Gibraltar are therefore running high, the regional government fears the loss of its sovereignty. Gibraltar’s Prime Minister Fabian Picardo El Pais demands that these border controls should not be carried out by Spanish personnel, but exclusively by Frontex. It would be the first deployment of the brand new “ Standing Corps“, with which the EU border agency in Warsaw has been commanding a force under its own command since 1 January. Frontex has not yet agreed to this request. If the bilateral declaration would become a final agreement, the Spanish Guardia Civil would also be responsible for the maritime border of the British Overseas Territory. The paper states that authorities from Gibraltar and Spain should „perform joint external border surveillance through seamless police and judicial cooperation“. This could mean British and Gibraltarian units patrolling inside territorial waters, and the Spanish Guardia Civil patrolling outside them. In the past, such manoeuvres have repeatedly led to conflicts and clashes between the various coastguards.

EU only?

The TCA still has to be formally adopted by both sides. The Commission and the Council Legal Service agree that the TCA can be concluded as „EU-only“. The term means agreements that do not contain regulatory areas with exclusive competence of the member states. According to this view, the TCA is not a „mixed agreement“ and its conclusion is therefore an exclusive EU competence. The parliaments of the member states are thus not involved in the ratification process.

The UK completed this process on 31 December 2020 with a „Royal Assent“, where the agreement now trades as the „European Union (Future Relationship) Act“. On the EU side, the European Parliament must first be consulted, only then can the TCA be adopted by the Council. Originally, this was to be done by 28 February, but this transitional period was extended to 30 April. After adoption by the Council, the agreement would then enter into force on the first day of the following month.

When and under what conditions the EU Parliament will approve the TCA, however, is unclear. At the beginning of March, MEPs postponed a vote in protest after Great Britain did not want to stop controlling foods in Northern Ireland as provided for in the TCA. Allegedly, the government could not implement the provisions of the agreement as quickly as planned, it was said in London.

Image: Parto Domani, CC-BY-NC-SA 2.0