With a specific agreement on security cooperation and police and judicial cooperation, the EU and the UK have managed to retain fairly close links in the fight against terrorism or serious crime, although the exchange of information will also become less fluid.
As the United Kingdom has become a non-Member State again, it can no longer enjoy the same access to certain databases, such as the Schengen Information System, nor can it participate in the same way in the European agencies for policing (Europol) and judicial cooperation (Eurojust).
In order to retain a minimum level of cooperation in this area, London has had to accept the standards of the European Convention on Human Rights (ECHR), but is no longer subject to arbitration by the EU Court of Justice.
A special dispute settlement mechanism will be set up and cooperation may stop if London no longer adheres to the ECHR standards. Specialised committees will thus be responsible for settling disputes and identifying solutions.
The United Kingdom will also need a personal data protection adequacy decision (see other news) to make this cooperation work.
What are the main points of this new cooperation?
The EU and the UK have agreed to cooperate in eight priority areas, including passenger name record (PNR) data, extradition, participation in Europol and the Prüm framework for the exchange of DNA data, fingerprint data and certain national vehicle registration data.
For PNR, the scheme therefore concerns flights between the EU and the UK and the transfer of that data by airlines to the respective competent authorities. In this area the United Kingdom will also have to provide Europol and Eurojust with all relevant information relating to a terrorist threat or serious crime. It will not be able to keep PNR data for more than 5 years and will have to depersonalise it after 6 months.
The UK, like any non-Schengen country, did not have direct access to the Schengen Information System, but had limited access, which it has now lost. In exchange, it benefits from new means of receiving operational information on wanted persons or objects or exchanging alerts on the basis of bilateral agreements and will still have secure channels for exchanging information with member countries. The United Kingdom, in addition to having bilateral agreements with Member States, will in fact be able to use Europol’s secure communication line.
As regards Europol, in addition to the exchange of personal data to combat terrorism or other forms of crime, cooperation may include expert opinions, strategic analyses, information on criminal investigation procedures, support in certain criminal investigations and even participation in joint investigations. Cooperation is similar with Eurojust.
On extradition, the parties have agreed on a type of arrest warrant and set the conditions for refusal of execution. An arrest warrant may be issued for acts which are punishable under the law of the issuing State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences or detention orders of at least 4 months.
The European Arrest Warrant (“EAW”), in which the United Kingdom participated, made the warrant issued by a judicial authority valid throughout the EU.
Finally, the agreement also creates mutual provisions on the exchange of data on criminal records or on the freezing and confiscation of terrorist assets as well as on money laundering.
A separate agreement on information security
London and the EU have not clarified their future diplomatic cooperation. However, if a common security threat so requires, certain EU classified information may be shared with the UK, and vice versa, under a security of information agreement.
Nothing on migration
The Commission did not have a mandate in this area and London did not take up the idea of thematic forums. The UK and the EU will negotiate an agreement on the readmission of illegal citizens and an agreement on unaccompanied minors.
An agreement that preserves the essentials
For the former European Commissioner for Home Affairs, the Briton Julian King, this loss of access to the SIS is “a real challenge” for the United Kingdom, which could benefit from real-time and simultaneous access to all Member States’ alerts. The planned alternative routes may not be as effective, he recently said in a recent opinion editorial.
Centre for European Reform (CER) researcher Camino Mortera-Martinez agrees. There are potential risks “for both sides”, she explained to EUROPE, as the UK had also provided a lot of data to its partners, if not more. It is also thanks to the British that Europol has been able to develop and grow.
Ms Mortera-Martinez was especially critical that cooperation “could not be closer for political reasons” and the United Kingdom’s red lines, particularly on the Court of Justice. Her hope? That once the “political passions have died down”, the two partners should come closer and intensify their cooperation in these areas.
However, the researcher believes that the essential elements have been preserved and that exchanges should remain fairly effective between the two partners. It is hard to see, however, how the EU Court of Justice could have no role at all. “It is not written in the Treaty, but it will still be difficult to have a criminal cooperation process without the Court of Justice of the EU”, she said.
She also expressed regret about the transfer of personal data, which she would have preferred to see governed by a specific treaty, rather like the framework agreement negotiated with the United States (‘umbrella agreement’). This would have given more legal certainty to the EU.
See the Trade and Cooperation Agreement between the EU and the United Kingdom: https://bit.ly/3s3wH1R
See the agreement on information security: https://bit.ly/39hqIh4 (Original version in French by Solenn Paulic)