Goodbye, cruel world: visas for holidays after Brexit?

Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.  

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a report drawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant data as an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal records was set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fifty non-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23^rd?

Barnard & Peers: chapter 13, chapter 26

JHA4: chapter I:4

Photo credit: welcome2britain.com

With greater power comes no extra accountability: the proposed new Europol Regulation

 

Wannes Bellaert, PhD researcher and academic assistant, Ghent University

Photo credit: OSeveno, via Wikimedia Commons

Once again a new Europol legal framework

On the 24^th of June 2026, the European Commission proposed a new legal framework for Europol (i.e. the European Union Agency for Law Enforcement Cooperation). As reflected in the preparatory documents and the proposal itself, the intentions are clear: extending Europol’s competencies, while refraining from remedying existing shortcomings in Europol’s accountability framework.

Back then, when candidate Commission President Von Der Leyen suggested making Europol a “truly operational police agency”, uncertainty reigned over what she intended. Both the preparatory documents and the proposal demonstrate that a European FBI is still far off. Nonetheless, the European Commission envisages an expansion and codification of several elements. As regards the expansion, the European Commission envisages expanding the scope of cooperation with private parties, Europol’s Prüm competencies (ie a bigger role in the exchange of specific types of data for criminal law purposes), Europol’s interconnectivity with Member States, the obligation(s) to provide Europol data, and Europol’s presence in Member States. All of the preceding happens without remedying the existing accountability shortcomings in Europol’s legal framework.

Strengthening its competencies …

The 2016 Europol Regulation envisioned some restricted cooperation with private parties. Following the 2022 amending Europol Regulation, Europol could exchange personal data with private parties and request data via the national competent authorities to combat terrorism, extremism and online child sexual abuse material. With its proposal, the Commission proposes an overhaul and extension of these competencies to all crime areas for which Europol is competent and limiting the existing restrictions (absence of “upon their request”). In combination with Europol’s Open Source Intelligence (OSINT) collection, this could enable Europol to collect a vast amount of data, either without or with only limited involvement of the Member States. While the collection of this data is not necessarily a problem (as long as the legal framework is respected), Europol cannot conduct its own investigations, leaving open the question of where this leads.

The 2024 Prüm II Regulation enables Europol to consult national police databases when receiving information from third countries. Even though the framework is not yet operational, the Commission already proposes to extend it to data from Member States. With this extension, Europol should become more efficient and effective. Why the European Commission has refrained from offering Europol a general ability to check (including for data from private parties and EU agencies) remains unclear. National competent authorities can easily consult Prüm II, thereby limiting the purpose of extended Europol access rights based on their information. On the contrary, allowing Europol to use Prüm II based on information from private parties and EU agencies could be beneficial, as it would enable Europol to identify interested Member States. Extending Europol’s access rights for Prüm II would still leave the overarching system incomplete as Europol has no access rights to the European Criminal Record Information System (ECRIS).

With its proposal, the Commission seeks to strengthen the interconnectivity between the Member States and Europol by establishing a Europol Cloud Infrastructure. It is intended to support Member States, EU entities and third countries to access Europol’s tools, collaborative environments and other operational and analytical capabilities, including the Joint Operational Analysis Cases (JOACs). Additionally, the Europol Cloud Infrastructure should enable Member States to connect their national system to it through the EU Police Digital Identity. From the proposal, it cannot be deduced how this system will operate. It is unclear what the connection between the national system and the Europol Cloud will entail. Likewise, the impact for JOAC’s remains unclear, as they also remain part of the Europol Analytical Environment. Hence, Member States can have different JOACs in different environments. Furthermore, following the legal abolition of Europol’s pre-determined data systems (e.g. EIS), Europol created a so-called “data lake”. How this “data lake” will interact with the Europol Cloud Infrastructure remains uncertain.

Another interesting point is the obligation to provide Europol with information. For a very long time, the Europol Regulation required Member States only to provide Europol with the “necessary information”. Following the 2005 Council Decision on Terrorism, they should provide Europol with specific information on terrorism. Under the 2025 amending Europol Regulation, Europol should receive information from Member States when participating in Operational Task Forces. However, this new proposal raises several problems. While, in principle, the general obligation to provide Europol with all “necessary” information is retained, the proposed Article 38 on Europol’s cross-checking service obliges Member States to provide the service with “any data that relates to forms of crime falling within the scope of Europol’s competence”. Without any reference to the earlier necessary obligation, this entails a new obligation. Additionally, immigration liaison officers “shall provide Europol with relevant information”. This seems to diverge from the earlier “necessary” obligation once again. Furthermore, the Operational Task Forces should “ensure the continuous and structured exchange of all relevant information”. As a result, three different obligations exist concerning the provision of data. Most important is the first problem: should Member States provide Europol with all information, or only all information concerning crimes for which the Member States find it “necessary”?

Finally, one of the most interesting developments is the “support offices”. It is a misjudgement to compare these with local FBI offices; more apt is it to see them as permanent mobile offices, which Europol currently uses on action days. The Commission proposes to have Europol staff as liaison officers in the Member States “to ensure appropriate uptake by Member States of Europol’s support”. While this concerns Europol staff (thus EU staff), these should act under the responsibility of both Europol and the Member States. The Europol Management Board will set out the division of responsibilities, yet also decide on the organisation and functioning of these support offices. Additionally, the European Commission proposes provisions on the deployment of Europol staff, yet without any actual limits, leaving it open for almost all tasks. Interestingly, in this perspective, is the inclusion of: “to ensure that the outputs produced through operational support … may be used as evidence in national investigative and judicial proceedings”. If adopted, this would link deployment of Europol staff to the production of evidence, yet would not remedy the non-inclusion of the rapporteur’s failed attempt to include a similar provision in the 2025 amending Europol Regulation.

... but leaving its accountability framework untouched

When all preceding elements are combined, Europol’s competencies are clearly expanding once again. Europol should take up more tasks, but most interestingly, its ability to provide Member States with instruments and tools will significantly expand. Still, the number of and the competencies of its accountability forums have not been significantly revised in the proposal. While this could be considered a shortcoming of the European Commission, it is not. The biggest shortcoming is the European Commission’s reluctance to address existing shortcomings in Europol’s legal framework.

Undeniably, the European Data Protection Supervisor (EDPS) and Europol’s data protection officer (DPO) have a strong position to hold Europol accountable for its data processing, yet, unfortunately, without requirements concerning its staffing. Even though the FRO is offered formal independence in the proposal, its tasks remain limited, while these could be expanded and it could be provided with stronger tools to enhance its point of view. Furthermore, the annual reports of Europol’s fundamental rights officer (FRO) and DPO are not provided to the JPSG or the European Parliament. These reports should be made available on a confidential basis to these forums to enable them to be properly informed about Europol’s conduct.

Similarly, the JPSGs' and the European Parliament’s tasks have remained unchanged, without formal ability to sanction Europol or its executive director, besides the discharge procedure for the European Parliament. Meanwhile, the European Commission has proposed to strengthen its own position regarding Europol’s Executive Director. Why not the other way around? Why not allow the joint parliamentary scrutiny group (JPSG) and the European Parliament to propose the dismissal of Europol’s Executive Director? If so, the European Parliament should have the competence to request the Executive Director’s attendance at a public hearing, in contrast to the European Commission’s and the Management Board’s closed-door session. Furthermore, in the proposal, the Council’s powers are limited in comparison to the current legal framework, as it would no longer be able to appoint or dismiss the Executive Director. Europol’s Internal Investigation Service is not offered a specific legal basis either. The inclusion thereof should go alongside the inclusion of specific competencies to combat fraud and corruption within Europol (e.g. access rights to documents).

If all proposed changes are adopted, Europol’s responsibility and autonomy to tackle crime can no longer be ignored or denied. Already, Members of the German Bundestag argue that Europol is a partner, and not merely a supportive entity. As a partner, one should take responsibility and be held accountable. Therefore, besides the previously suggested changes, the immunity of Europol staff cannot be retained when performing similar tasks, as when Europol staff is part of a Joint Investigation Team (JIT), particularly given the divided responsibility (see Supra). As a result, a general waiver should be included in the EU legal framework, and a specific waiver procedure should be included in the Europol Regulation (in conformity with existing CJEU case law). Similarly, the liability of Europol and its staff should be clarified to ensure proper criminal and civil liability.

Additionally, as previously mentioned, the European Commission’s proposal falls short of offering rules concerning the testimony of Europol staff in national courts. The preceding is essential, as in a trial in Malta conflicts arose concerning this practice. The Union legislator should include specific obligations for Europol staff, e.g. when they can refuse to answer a judge, when they can refuse to appear, what information they can disclose and subject to what rules (EU or national rules).

Finally, the new proposal contains no rules concerning the use of information used as evidence in court. The 2023 Exchange of Information Directive copies the phrase of its predecessor (i.e. the Swedish Framework Decision) requiring prior approval from the providing Member State to use information as evidence, but the European Commission falls short of including rules to prevent the Europol Regulation being used to circumvent the 2023 Directive, especially with SIENA becoming the regular instrument for exchanging information. Furthermore, it offers no rules concerning the use of evidence collected as part of a JIT, even though rules have existed since the Naples II convention on customs cooperation.

More power, not more control, just the needed control

If the Union legislator were to adopt this European Commission proposal, Europol would significantly expand its competencies, yet remain a supportive agency without executive powers. Still, concerning some competencies, questions arise about their use. Concerning other competencies, the underlying relationship should be clarified to ensure Europol has a clear legal framework without contradictions. While it is common to argue for increased control over Europol when competencies expand, no additional accountability obligations are required. Europol has a strong accountability framework when considering the powers of the EDPS and its DPO. Nevertheless, shortcomings in its accountability framework exist that should be remedied to ensure Europol is held properly accountable.

Double Jeopardy and EU Law: Court clarifications and Commission reports

Steve Peers

It’s just like buses. You wait almost four years for a CJEU judgment on the Schengen double jeopardy rules, and then two judgments come along almost at once. What’s more, the Commission has also just released two reports on the application of related EU legislation. The judgments have provided a number of useful clarifications of the rules, which the reports paint the familiar disappointing story of tardy implementation of Member States’ legal obligations.

Background

Double jeopardy (or ne bis in idem) in criminal cases, ie trying the same person for the same crime more than once, is banned by many national constitutions and by the Seventh Protocol to the European Convention on Human Rights (although a few Member States have not ratified this Protocol).  However, these rules generally only apply the rule to trials within the same State.

EU law goes further than this, by establishing a cross-border rule. Article 54 of the Schengen Convention, which applies in all Member States except Ireland, as well as the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein), states that ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Article 55 of the Convention allows for a limited number of exceptions to this rule, and Article 56 provides that if there is a second prosecution, any period of deprivation of liberty arising from the same acts in the first Member State must be deducted from any sentence imposed in the second Member State. Article 57 sets up a process of consultation between Member States to implement the rules, while Article 58 allows Member States to apply more generous rules between themselves.

Despite the current limits on the CJEU’s jurisdiction over EU criminal law measures adopted before the Treaty of Lisbon, there have been a considerable number of judgments on these rules over the years, since about two-thirds of Member States have opted into the Court’s jurisdiction. We might expect more cases being sent to the CJEU on these issues after December 1 this year, when those limits will be removed. Cases could even be sent from the UK courts, since the UK intends to opt back in to (among other things) these provisions of the Schengen Convention when it opts out of a lot of pre-Lisbon EU criminal law measures on that date.

EU law does not generally regulate the application of the double jeopardy principle within the same Member State, although it might be relevant where the proceedings concern a substantive criminal law issue linked to EU law (see, for instance, the Fransson judgment).

While national, international and EU law on substantive criminal law often provides for extraterritorial jurisdiction, an investigation into the same person for the same acts in multiple Member States is in prlnciple a waste of time and money, since the person concerned cannot usually be tried twice in both Member States. So back in 2009, the EU adopted a Framework Decision on conflicts of jurisdiction, setting up a process of information and consultation between national authorities if there was an indication that there multiple proceedings concerning the same acts committed by the same person.

On the other hand, if the same person has committed different crimes, national criminal law systems usually impose some form of added penalty, in the form (for instance) of harsher bail conditions or a longer sentence in the event of a conviction. It follows from the cross-border nature of EU Justice and Home Affairs cooperation that this principle should apply even if a prior conviction was handed down by another Member State. So another Framework Decision, adopted in 2008, sets out the details of how this rule applies.

The judgments

The first recent judgment, in Spasic, raised two points. First of all, is the rule limiting the double jeopardy rule to cases where the penalty (if there is one) has been enforced, can no longer be enforced or is being enforced (the ‘execution condition’), valid in light of the EU Charter of Rights? Secondly, how does that condition apply where a criminal conviction has resulted in both a custodial penalty and a fine, where the fine has been paid but the custodial penalty has not been served?

These questions were relevant in this case because Mr. Spasic had paid a fine of 800 euros imposed as a sentence by an Italian court for passing counterfeit currency, but had not served the one-year sentence which was imposed for the same acts. So could he still be prosecuted in Germany for them, given that the double jeopardy right in Article 50 of the Charter does not mention any execution condition?

In the Court’s view, the execution condition was valid in light of Article 52(1) of the Charter, which sets out the rules for limiting Charter rights. Limitations must be provided for by law, respect the essence of the rights and freedoms and be necessary and proportionate in pursuit of an objective of general interest.

Here, the limitation was clearly provided for by (EU) law. It respected the essence of the right, since it only limited the double jeopardy rule where the person concerned had escaped punishment. It aimed at securing objectives of general interest, since the Treaty rules on JHA objectives implicitly aimed to avoid situations of impunity. 

As for proportionality, while there were other relevant EU measures, the Framework Decision on conflicts of jurisdiction did not ensure that the person would be punished, and the Framework Decision on transfer of prisoners was subject to the conditions of consent of the person concerned and of the sentencing State. However, the CJEU accepted that it would not be proportionate to bring a second set of proceedings in Germany, if Italy wanted to enforce its sentence (Mr. Spasic had not served that sentence simply because he was imprisoned in Austria for different offences at the time).

On the second point, the Court ruled that custodial and non-custodial penalties were severable for the purpose of applying the execution condition. So paying an 800-euro fine did not equate to partial satisfaction of a one-year jail term, and so did not exempt the person concerned from being prosecuted in a second Member State.

The second case, M, concerned allegations of child abuse against an Italian man living in Belgium. The Belgian authorities investigated these, but a pre-trial chamber gave a ‘non-lieu’ ruling, meaning that the case could not proceed to trial due to insufficient evidence. This ruling was eventually upheld on appeal. In the meantime, the Italian courts had begun their own investigation, and wanted to know if the Belgian ruling was a ‘final judgment’ which prevented them from proceeding to trial.

In the Court’s view, it was. A final judgment could include a pre-trial measure (like the plea bargain accepted by prosecutors in the earlier Gozutok and Brugge case), as long as it finally determined the case on the merits according to national law (applying the test in Turansky). That was the case here, once the appeal was decided. Referring to the Zolukhtunin judgment of the European Court of Human Rights, the CJEU ruled that a possibility of an extraordinary remedy did not preclude a trial from being final. Nor did the possibility, referred to in the ECHR Protocol and Belgian law, of bringing a fresh prosecution, as a derogation from the double jeopardy rule, in the event of new or newly discovered evidence. The Court confirmed that in that case, only the first Member State, not the second, could bring a fresh prosecution.

The reports

For the Framework Decision on conflicts of jurisdiction, the Commission report notes first of all that only about half of the Member States have implemented it (the deadline was June 2012). This makes sense for the UK, since it does not seek to opt back in to this measure. It should be noted that infringement proceedings against Member States will also be possible when the 1 December deadline soon expires.

Overall, while the Commission refers to this measure as a ‘first step’, it states that it cannot draw ‘general conclusions’ about the quality of implementation, because few Member States have practical experience in its implementation. But it does note that some Member States have not applied the key rules on the information to be transferred between authorities. Most Member States permit parallel investigations to take place, even after the consultation process, although they are a waste of time and money. Only Croatia has an express rule (corresponding to the M judgment) that a final judgment in one Member State must terminate a pending prosecution in another.

As for the report on the Framework Decision on the consequences of convictions, six Member States have still not applied it (the deadline was back in 2010). This time, the UK, which seeks to opt back in to this measure, has applied it.

The Commission is rightly concerned that Member States limit the mutual recognition obligation to cases of a final conviction, for otherwise they would be infringing the presumption of innocence. Overall, the Commission expresses dissatisfaction mainly with a group of nine Member States which have claimed to implement the Framework Decision without giving further detail. Obviously it would be wise for those Member States to provide that further detail over the next six months, before infringement actions can be launched. The Commission does not assess the practical application of the European Criminal Records Information system (ECRIS), established by separate EU legislation, which is the main way of ensuring that the relevant information is transferred between Member States in the first place.

Comments

The Court’s ruling that the ‘execution condition’ in the Schengen rules was valid is convincing in light of the great public interest in preventing impunity for those convicted of criminal offences. For the same reasons the Court was right to reject the argument that payment of an 800-euro fine was equivalent to serving a year in jail. That would have amounted to de facto impunity.

Crucially, the Court rightly applied the principle of proportionality to rule that on the facts of the case, a second prosecution could nonetheless not take place if it was still possible in practice to serve the initial sentence instead. This rule ensures that the person concerned does not end up serving two separate sentences for the same crime (recalling that any time served in one Member State would have to be deducted from the time served in another one), and could prevent the cost and waste of time of a second prosecution if it proves to be unnecessary after all.

It should be noted that the Court did not rule here on whether the national derogations permitted by Article 55 of the Schengen Convention are valid. Unlike the execution condition, these rules do not aim to avoid impunity, but rather allow a second prosecution to be brought where: the act took place on a Member State’s territory; the act concerned national security or ‘equally essential’ interests; or the person concerned was an official of the State concerned. In all these cases, justice would best be served by giving the Member State concerned the first opportunity to bring a prosecution, and the Framework Decision on conflicts of jurisdiction should facilitate that. But it may be questioned whether those interests are strong enough to justify the power to bring a second prosecution (although again it must be recognised that any time served in the first Member State must be deducted from any sentence in the second).  

As for the M case, it answers a number of important issues. It is now clear that the double jeopardy rule is triggered only on disposition of a final appeal in the first Member State, and (implicitly) that the rule not only prevents the start of proceedings in a second Member State, but also terminates proceedings that are already underway. Again, the relevance of the Framework Decision on conflicts of jurisdiction becomes clear: whichever of the Member States concerned lost the ‘race’ to a final judgment (stereotypically, this was Italy) would end up having wasted its time and money.

The clarification of what happens in the event of new evidence is also important. It should be noted that, as the Advocate-General pointed out, if new evidence surfaces in Italy (or any other Member State), EU rules can facilitate its transfer to Belgium for the authorities to consider it. Also, the Court makes a general statement that only a ruling on the ‘merits’ counts as a final judgment. This sits oddly with its judgment in Gasparini, where it ruled that a proceeding which was time-barred in one Member State counted as a final judgment, so that case must be seen now as an anomaly.

More broadly, the two new judgments go a long way to reconcile the Schengen double jeopardy rules with human rights law. Oddly, the Court had never before mentioned Article 50 of the Charter in the context of the Schengen rules, until the Spasic case forced it to. Afterward, in the M case, the Court now refers to interpreting the Schengen rules in light of the Charter. As for the ECHR, the CJEU positively dismissed its relevance back in the Van Esbroeck judgment, but since the Strasbourg Court aligned itself with the CJEU's interpretation of the principle in Zolukhtunin, the CJEU is now happy to rely upon the other Court's rulings as a source of interpretation.   

What about the EU legislation? The Court itself, in the Spasic case, said in effect that the Framework Decision on conflicts of jurisdiction was too weak to affect its interpretation of the double jeopardy rules, since it did not ensure that the person concerned would be punished (although actually, that isn’t its main purpose). The M case shows, as noted above, how an early decision on conflicts of jurisdiction is necessary to avoid wasting time and money, and to reduce complications for suspects, particularly given that (in the view of the Belgian courts) there was insufficient evidence to prosecute in that case.

Overall, there seems to be plenty of reason to fear that, as I predicted some time ago, the Framework Decision on conflicts of jurisdiction has done nothing much to avoid multiple prosecutions, in particular because it lacks an obligation in principle to centralise prosecutions, never mind a list of criteria to apply to determine where the prosecution should take place. It has obviously had no effect in the half of Member States which have not bothered to transpose it at all. Since the Commission regards this measure as a ‘first step’, it should have considered measures to amend it to this end at the earliest opportunity.

As for the Framework Decision on the consequences of prior convictions, the Commission assesses its implementation on paper, but not its implementation on the ground. The real question is how it works in conjunction with the ECRIS system, and in particular whether there are any problems as regards the classification of convictions rendered in other Member States.

These reports are released as justice ministries begin their last lazy summer before the prospect of infringement proceedings to make them to live up to their legal obligations (as we have seen previously on this blog, these failures extend also to legislation on prisoners and probation, and to hate crime law too). Time will soon tell whether the Commission will step up to the plate and assume its role as the guardian of EU law in this field.

Barnard & Peers: chapter 9, chapter 25

What just happened? The House of Commons ‘vote’ on the European Arrest Warrant

Steve Peers

Last night, the UK House of Commons voted in favour of the UK opting back in to 35 EU policing and criminal law measures, including the European Arrest Warrant (EAW). Or rather, it didn’t: it voted in favour of the UK opting back to 11 such measures, not including the EAW. Amid scenes of parliamentary confusion and chaos, it wasn’t quite clear what was going on. This blog post explains exactly what the vote was about.

Background

I wrote a detailed analysis for Statewatch of the UK’s opt back in to EU policing and criminal law measures earlier this year, and I will write an update for this blog in the start of December once all of the final steps in the process are in place. But for now, here is a brief recap, to put last night’s vote in context.

The Treaty of Lisbon sets out a five-year transitional period for EU policing and criminal law measures adopted before that Treaty’s entry into force (1 December 2009). At the end of that period, those measures become subject to the full jurisdiction of the Court of Justice of the European Union, including both references from national courts and the Commission’s power to sue Member States for non-application, or incorrect application, of such measures. The majority of Member States (but not including the UK) had already opted in to the former jurisdiction, but the latter jurisdiction is entirely new.

From the same date, the UK can decide to opt out of all the pre-Lisbon policing and criminal law measures (except for those which have been amended since that Treaty entered into force, which the UK could decide to opt in to or out of individually as each of the amended versions was adopted).  If it exercises this block opt-out, the UK can then choose to opt back in to some of these pre-Lisbon measures individually. The decision on its application will be taken by the Commission or the Council, depending on the type of measure (the Council decides where the measure is linked to the ‘Schengen’ treaty on border controls; the Commission decides on all other matters, including the EAW).

The UK has indeed exercised the block opt-out, and has applied to opt back in to 35 measures, as described above. Last night’s vote was the crucial point at which the House of Commons got to vote on the government’s intentions (the House of Lords will vote shortly). The formal decisions on the opt-in will now be taken by the Commission and Council, probably on December 1.

While EU law sets out the overall procedure relating to the opt-out and opt-in, it doesn’t govern the details of parliamentary scrutiny of the government’s decisions within the UK. That’s a matter for  UK law only. So what exactly happened in the House of Commons last night?

The House of Commons vote

The UK government had long promised that Parliament would get to vote on the decision to opt back in to all of the 35 measures. In the event, the Home Secretary declared that last night’s vote, was in effect politically binding as regards all of these measures. But according to a ruling of the Speaker of the House of Commons, the vote was only legally binding as regards 11 of them.

What did the vote concern exactly? It was on a resolution to approve delegated legislation, ie an individual measure which the UK executive can adopt because a previous Act of Parliament gives it powers to adopt that measure, subject to parliamentary scrutiny. Last night’s vote was the key point in that parliamentary scrutiny, as far as the House of Commons was concerned.

The Act of Parliament which gave the government those powers was the European Communities Act, which is the main Act governing the status of EU law in the UK’s national legal order. In particular, section 2(2) of this Act gives the government power to adopt delegated legislation to implement EU obligations, subject to certain limits. That section is very frequently used in practice.

However, it’s never been used before to adopt delegated legislation to implement EU obligations regarding pre-Lisbon policing and criminal law. That’s because it couldn’t be, before December 1 2014. This is due to a limitation in the Act itself. Because policing and criminal law issues were ‘intergovernmental’ (ie essentially decided upon by governments, not the EU institutions) before the Treaty of Lisbon entered into force, they took a different form, and had a different legal status, than ordinary EU law. To take account of this, the European Communities Act never applied to them until now (when the transitional period ends).  

The exclusion of these measures from the Act is implicit in the definition of EU law in section 1(2) of the Act. In particular, that definition excludes Title VI of the original Treaty on European Union (the Maastricht Treaty) and Art. 1 of both the Treaty of Amsterdam and the Treaty of Nice from its scope. Incidentally, the Act still continues to exclude EU foreign policy measures from its scope.

So what does the delegated act which MPs were voting on do? It takes the form of (UK) Regulations, and is further explained in an explanatory memorandum. It makes changes to UK law which the government deemed were still necessary to ensure that 11 of the 35 Acts which the UK is opting back in to are fully and correctly applied in our domestic law.

Six of those measures concern the UK’s mutual recognition of criminal law decisions adopted by other Member States (and vice versa), as regards: confiscation of assets obtained by crime; freezing of such assets provisionally during an investigation and trial; financial penalties (fines) imposed by courts as a result of a criminal conviction; the transfer of foreign prisoners serving a custodial sentence; general rules on in absentia trials as regards mutual recognition; and the European Supervision order, which permits foreigners to be freed pending trial, provided that their home State agrees to supervise them until they face trial in the country concerned.

Three more measures concern police cooperation. Two of them concern ECRIS, a system for the exchange of criminal records between Member States. The third concerns the so-called ‘Swedish initiative’, which governs requests for other forms of information in individual cases between  national police forces.

The final two measures concern joint investigation teams (groups of police officers from multiple Member States, as well as Europol, the EU police intelligence agency) examining cross-border crimes, and data protection rules applying to cross-border exchange of police information (this is distinct from the EU’s data protection Directive).

The political context

As noted above, the Commons vote applied to all 35 measures in a political sense only, not in a legal sense. Legally speaking, the government did not need parliamentary scrutiny of the opt in to the remaining measures, since there was no need to change UK law in order to apply them. However, the UK had promised such scrutiny nonetheless, leading to the confusion and disappointment of many MPs.

It was clearly right in principle to promise full parliamentary scrutiny of the opt in decision, given the public concern and interest in the issue. So it was wrong not to give full effect to that promise, which could have been implemented (for instance) by holding a vote also on a resolution explicitly concerning the opt in to all 35 measures.

The government may have decided not to do this because it wanted to avoid critics of the EAW trying to amend the resolution to force a vote on the EAW separately. But if there is enough concern in Parliament about the opt in to this particular measure (or any others on the list), then MPs should get the chance to vote on it individually.

One of the consistent problems with EU law in the UK (and to some extent in other Member States as well) is its perceived lack of democratic legitimacy. Often that’s the fault of the EU itself, due to a lack of transparency for instance. But in this case, since only UK law governs the process of parliamentary scrutiny relating to the opt in, it’s entirely the fault of the UK government. The likely result of the decision to limit the scope of parliamentary scrutiny will be to damage the legitimacy of the EU further – and to increase, not reduce, the number of Conservative MPs who are very critical of the EU.

Barnard & Peers: chapter 25

Justice and Home Affairs in the future UK/EU relationship: analysis of the negotiation positions

Professor Steve Peers, University of Essex

The EU has now adopted its negotiation mandate for future relationship talks with the UK (discussed here). The UK has now done the same. Lots of commentators have looked in detail at the two sides’ approach to the future relationship on economic issues: this blog post aims to do the same on justice and home affairs issues (immigration, asylum, civil cooperation, judicial and police cooperation).

I’ve reproduced the full text of both sides’ positions side-by-side, thematically, with detailed commentary – plus links to relevant treaties and legislation.

Warning: this blog post criticises both sides where warranted. Supporters of Brexit probably already have my photo pinned to a dartboard; cheerleaders for every position the EU takes might now wish to do the same. In particular, the latter group of people really need to stop claiming that the UK must accept the CJEU’s jurisdiction for any treaty in this field, given that the EU has never insisted on any such thing for any other non-EU country.

In particular, the EU negotiation position for these talks is that in the event of disputes between the parties relating to EU law, the CJEU has to be the final arbiter. The EU has taken that position because the CJEU requires it – but we can find ways to avoid the situations in which the CJEU requires it, in particular by not referring to EU law as such, and/or avoiding a dispute settlement system which includes arbitrators that might be called on to interpret it. Indeed, the EU and other non-EU countries have found ways to do just that many times before, in all the areas covered by this blog post. If the EU doesn’t trust the UK, it will have the possibility to terminate or suspend the treaty if its concerns are confirmed in practice.

In some ways, this is an update of a previous blog post I wrote on the possibility of a security treaty between the two sides post-Brexit – although obviously events have moved on since then, which I have fully taken account of. Another background source is the House of Lords committee report on a future UK/EU security treaty (which I was a special adviser to).

Note that the withdrawal agreement already provides for the details of winding up the UK’s participation in these issues at the end of the transition period. In the event of future treaties on these issues, arguably the agreement’s Joint Committee can amend these provisions to suit (see Article 164(5)(d), giving it the power to amend the agreement ‘to address situations unforeseen when this Agreement was signed’).

Since there is a significant possibility that the UK/EU negotiations on economic relations will be about as successful as the recent Cats movie, a lot turns on whether there will be a separate treaty on this issue. This is an explicit demand by the UK side, although the EU position is vague. We can only speculate at this point whether a collapse of the economic talks would anyway scupper other negotiations on separate treaties for political reasons.

To ease comparison, the EU position is in italics throughout. The UK position is underlined. My commentary is in ordinary text. I have marked each point by a traffic light system to indicate my assessment of the likelihood of agreement as things stands: Green is more likely than not; Amber is possible, but complicated; Red is unlikely.

In an alternate universe, there’s an alternative Professor Peers, who has the technical ability to do more exciting things with a text; but we are all stuck in this universe.  

Civil cooperation

59. In areas not covered by existing international family law instruments and taking into account the United Kingdom's intention to accede to the 2007 Hague Maintenance Convention, the Parties should explore options for enhanced judicial cooperation in matrimonial, parental responsibility and other related matters.

64. The UK proposes continuing to work together with the EU in the area of civil judicial cooperation through multilateral precedents set by the Hague Conference on Private International Law and through the UK’s accession as an independent contracting party to the Lugano Convention 2007.

Amber. The Hague Conference is an international process to draft treaties (among other things) facilitating civil judicial cooperation worldwide. The EU as such is a member alongside its Member States, and has signed up to some of the relevant treaties, including the 2007 Hague Maintenance Convention. (the UK’s ratification is planned for the end of the transition period: see these declarations).  The EU has gone further than the Hague Conference on some civil law issues, by adopting legislation going into more detail on civil jurisdiction (which country’s court has jurisdiction over a cross-border dispute), conflict of law (which country’s law applies in a cross-border dispute; this does not necessarily match the court with jurisdiction), and recognition of judgments as between countries (ie how an American judgment might be enforced in Japan). The Lugano Convention is a treaty copying the text of general EU law on civil jurisdiction and recognition of judgments as it stood in 2007 (it was amended in 2012) and extending it to Norway, Iceland, and Switzerland.

The EU refers specifically to family law, apparently contemplating specific arrangements, while the UK refers generally to the Hague Conference and more precisely to the Lugano Convention. There’s a specific process for signing up to that Convention, in Articles 70 and 72. For a country not part of the EU and EFTA, as the UK will be, it needs the unanimous consent of the existing Contracting Parties. The EFTA States have already supported the UK’s accession; it remains to be seen what view the EU will take. The existing parties ‘shall endeavour to consent’ to the request for accession within a year after they agree to it. As part of the accession request, the applicant country must, among other things, supply ‘information on the appointment and independence of judges’.

Note that although the Lugano Convention copies an EU law text, it does not give the CJEU jurisdiction over the treaty as regards non-EU signatories. Rather Protocol 2 to the Convention says that the parties shall give ‘due account’ to each other’s court’s judgments, including the judgments of the CJEU. There is a system for discussing divergences in interpretation of the Convention, but this does not include any binding dispute settlement – therefore no arbitrators who might be called upon to ask the CJEU how to interpret EU law. Note that the UK’s intention to sign up to the Convention indicates that this does not violate the UK’s ‘red line’ objections to CJEU jurisdiction, presumably because it does not involve jurisdiction for the CJEU or provide for arbitrators to refer questions to the CJEU in the event of a dispute. Equally we can deduce it doesn’t violate EU ‘red line’ objections either – given that the EU signed up to the Convention already.

There’s also no ‘dynamic alignment’, ie no obligation to keep up with changes in EU law. Indeed, the 2012 amendment of EU law did not affect the Convention, which still reflects the EU law on this issue adopted in 2001.

In order to move things forward, the UK would have to apply as soon as possible to sign up to the Lugano Convention. If the EU wants to continue cooperation on family law it should table a text soon. Copying the existing EU law texts into a separate treaty, following the format of the Lugano Convention, would be the easiest way forward. As explained above, the Lugano Convention does not breach the UK’s red lines. 

Immigration and asylum

145. The envisaged partnership should envisage cooperation to tackle irregular migration of nationals other than those of the Parties, including its drivers and consequences, whilst recognising both the need to protect the most vulnerable and the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. This cooperation should cover: a) cooperation with Europol to combat organised immigration crime in line with arrangements for the cooperation with third countries set out in the relevant Union legislation; b) a dialogue on shared objectives and on cooperation, including in third countries and international fora, to tackle irregular migration upstream.

54. The UK has made a specific commitment to seek to negotiate a reciprocal agreement for family reunion of unaccompanied children seeking asylum in either the EU or the UK, with specified family members in the UK or the EU, where this is in the child’s best interests.

55. Beyond this, the UK is open to an agreement regulating asylum and migrant returns between the UK and the EU, or alternatively with individual Member States, underpinned by data sharing, to help counter illegal migration and deter misuse of our asylum systems.

Red. The EU seems to be interested in operational cooperation in this area, while the UK wants to negotiate on unaccompanied children seeking asylum, and is also open to a broader arrangement on ‘asylum and migrant returns’ either with the whole EU or individual Member States. The CJEU has not clarified whether this is an issue within EU exclusive competence (ie Member States can’t sign treaties with non-EU countries) or not. The European Parliament also supported the idea of a treaty in this field (para 61 of its resolution on the future relationship), but it is not the negotiator.

In order to move this issue forward, the UK should table a text in this area as soon as possible. If the EU is not interested, the UK should adapt that text into a model treaty with individual Member States and table it to them. NGOs interested in asylum issues should do their best to encourage interest on the EU side.

It is sometimes suggested that the EU should only sign treaties on asylum responsibility with non-EU countries which have signed up to Schengen. But as discussed below, the ‘signed up to Schengen’ rule is not consistently applied by the EU in these negotiations. And frankly, it is not defensible to prioritise an arbitrary and incoherent ‘rule’ above the family unity of vulnerable unaccompanied children seeking asylum.

Note that the EU’s treaties in this field do not require the non-EU country to accept CJEU jurisdiction. For instance the treaty with Norway and Iceland refers to an exchange of case law, political dispute settlement, and the possible termination of the treaty.

56. Mobility arrangements, including on visa-free travel for short-term stays, in the envisaged partnership should be based on non-discrimination between the Union Member States and full reciprocity.

57. The envisaged partnership should aim at setting out conditions for entry and stay for purposes such as research, study, training and youth exchanges.

58. The envisaged partnership should address social security coordination.

60. Any provisions should be without prejudice to the Common Travel Area (CTA) arrangements as they apply between the United Kingdom and Ireland, as referred to in Article 38(2) of the Withdrawal Agreement and in Article 3 of the Protocol on Ireland/Northern Ireland.

17. Social security coordination can remove barriers and support mobility of labour between countries. Arrangements that provide healthcare cover for tourists, short-term business visitors and service providers, that allow workers to rely on contributions made in two or more countries for their state pension access, including uprating principles, and that prevent dual concurrent social security contribution liabilities, could be good for business and support trade. These arrangements could benefit UK nationals and EU citizens travelling or moving between the UK and the EU in future.

18. The UK is ready to work to establish practical, reciprocal provisions on social security coordination. Any agreement should be similar in kind to agreements the UK already has with countries outside the EU and respect the UK’s autonomy to set its own social security rules. These arrangements should support mobility by easing the process for those working across borders, including underpinning the reciprocal arrangements on the temporary entry and stay for business purposes (‘Mode 4’ provisions).

Green (social security, visas, CTA); Red (students etc). The two sides both seem interested in negotiating a social security treaty. The UK does not reply to the EU’s visa point, but the relevance of that is limited because the EU has already waived short-term visitor visa requirements for UK citizens unilaterally, as discussed here. The UK also does not reply to the EU’s points about researchers and students, although both sides have their own legislation on admission of these groups of people already (the EU law is discussed here). Nor does the UK refer to the Common Travel Area, but the withdrawal agreement refers to it already.

Police and criminal law: General

115. With a view to the Union’s security and the safety of its citizens, the Parties should establish a broad, comprehensive and balanced security partnership. This partnership will take into account geographic proximity and evolving threats, including serious international crime, organised crime, terrorism, cyber-attacks, disinformation campaigns, hybrid-threats, the erosion of the rules-based international order and the resurgence of state-based threats.

116. The envisaged partnership should reaffirm the Parties’ commitment to promoting global security, prosperity and effective multilateralism, underpinned by their shared principles, values and interests. The security partnership should comprise law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence, as well as thematic cooperation in areas of common interest.

27. The safety and security of our citizens is the Government’s top priority. The UK already has world leading law enforcement capabilities. At the end of the transition period, we will fully recover our sovereign control over our borders and immigration system, which will further enhance our security capabilities.

28. Against this background, the UK stands ready to discuss an agreement on law enforcement and judicial cooperation in criminal matters, to the extent that this is in both parties’ interests. It should include: arrangements that support data exchange for law enforcement purposes; operational cooperation between law enforcement authorities; and judicial cooperation in criminal matters.

29. The agreement should facilitate police and judicial cooperation between the UK and EU Member States; equip operational partners on both sides with capabilities that help protect the public and bring criminals to justice; and promote the security of all our citizens.

Both sides support motherhood. And puppies. Lots of puppies. Other than the international criminal puppies.

Police and criminal law: Red Lines

117. The security partnership should provide for close law enforcement and judicial cooperation in relation to the prevention, investigation, detection and prosecution of criminal offences, taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. The security partnership should ensure reciprocity, preserve the autonomy of the Union’s decision-making and the integrity of its legal order and take account of the fact that a third country cannot enjoy the same rights and benefits as a Member State.

30. This should be a separate agreement with its own appropriate and proportionate governance mechanism. The agreement must not constrain the autonomy of the UK's legal system in any way. It should not provide any role for the CJEU in resolving UK-EU disputes, which is consistent with the EU’s approach to cooperation with third countries on law enforcement and judicial cooperation in criminal matters, including between the EU and neighbouring non-EU countries on tools such as the Second Generation Schengen Information System (SIS II) and Prüm.

Both sides emphasising the importance of the ‘autonomy’ of their own legal order here – but emphasising different examples of what their ‘red line’ is in that context. For the UK, it’s no ‘role for the CJEU in resolving UK-EU disputes’. (The UK doesn’t – and couldn’t seriously – object to a role for the CJEU in interpreting the treaty on the EU side; see, for instance, the CJEU judgment on the EU/US extradition treaty, discussed here).  The UK government correctly points out that in practice the EU has consistently agreed treaties with non-EU countries on these issues without requiring jurisdiction for the CJEU to settle disputes. For the treaties it refers to, see for instance the Schengen association agreement with Norway and Iceland (review of the case law; political dispute settlement; termination if dispute is not settled), and the Prüm agreement with the same countries (review of the case law; political dispute settlement).

Having said that, the EU has not made any specific demand on the CJEU issue – besides the general position that if arbitrators are called upon to settle a dispute involving interpretation of EU law, they must ask the CJEU. But the EU makes no mention of how it thinks dispute settlement should work in this specific area. There is no reason why arbitrators must always be involved in settling disputes about interpretation of a treaty, and the EU has never insisted on it before in this field.

The EU’s specific ‘red line’ is ‘taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons.’ That correctly describes the UK’s future status; but as we will see, the EU applies this test inconsistently, objecting to the UK continuing to participate in the second-generation Schengen Information System (SIS II), but supporting the UK continuing to participate in some other EU measures only extended to non-EU Schengen associates, or not extended to non-EU countries at all.

Police and criminal law: human rights and data protection

118. The envisaged 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. In this context, the envisaged partnership should provide for automatic termination of the law enforcement cooperation and judicial cooperation in criminal matters if the United Kingdom were to denounce the European Convention of Human Rights (ECHR). It should also provide for automatic suspension if the United Kingdom 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 United Kingdom’s courts. The level of ambition of the law enforcement and judicial cooperation envisaged in the security partnership will be dependent on the level of protection of personal data ensured in the United Kingdom. The Commission will work toward an adequacy decision to facilitate such cooperation, if applicable conditions are met. The envisaged partnership should provide for suspension of the law enforcement and judicial cooperation set out in the security partnership, if the adequacy decision is repealed or suspended by the Commission or declared invalid by the Court of Justice of the European Union (CJEU). The security partnership should also provide for judicial guarantees for a fair trial, including procedural rights, e.g. effective access to a lawyer. It should also lay down appropriate grounds for refusal of a request for cooperation, including where such request concerns a person who has been finally convicted or acquitted for the same facts in a Member State or the United Kingdom.

31. Cooperation 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. The agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems.

32. The agreement should include a clause that allows either party to suspend or terminate some or all of the agreement. This should enable either the UK or the EU to decide to suspend – in whole or in part – the agreement where it is in the interests of the UK or the EU to do so.

33. In line with precedents for EU third country agreements on law enforcement and judicial cooperation in criminal matters, the agreement should not specify the reasons for invoking any suspension or termination mechanism.

Amber. Both sides express their concern about data protection and human rights, but diverge on what that might mean in practice – although that divergence is not so broad that compromise is impossible.  The EU wants to suspend or terminate the treaty for reasons related to human rights or data protection, while the UK accepts the possibility that the treaty could be suspended or terminated, but does not want the treaty to specify the reasons why it might be suspended or terminated. The obvious compromise is 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. (This approach could apply equally to divergences from case law: the UK could hardly object to the EU terminating a treaty on those grounds, having accepted that either side should be able to terminate the treaty on grounds they may choose).

The UK refrains from responding to the EU’s implied concern about human rights protection in the UK, but a neutral observer concerned with this issue might well call for a plague on both their houses: the disturbing attacks on judicial independence in Poland being matched by British politicians and commentators who slaver to follow this example. Once the British establishment fantasised that it was Greece to America’s Rome; now it aspires to be Mini-Me to Poland’s Dr. Evil.  

Data exchange

119. The envisaged partnership should establish arrangements for timely, effective, efficient and reciprocal exchanges between Passenger Information Units of Passenger Name Record (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 United Kingdom for the flights between the United Kingdom and a Member State. Such arrangements should comply with the relevant requirements, including those set out in the Opinion 1/15 of the CJEU.

40. The agreement should provide for reciprocal transfers of PNR data to protect the public from serious crime and terrorism.

41. The transfer of Passenger Name Record data from airlines to the UK or EU Member State competent authorities is an important law enforcement capability. It enables law enforcement and security agencies to identify known and otherwise unknown individuals involved in terrorism related activity and serious crime, and track criminal networks from their patterns of travel.

42. The agreement should be based on, and in some respects go beyond, precedents for PNR Agreements between the EU and third countries – most recently, the mandate for the EU-Japan Agreement.

Green. Both sides agree to negotiate on passenger name data, with no big conflict between their positions – although it’s not clear what the UK seeks by ‘going beyond’ the usual EU treaties. On this issue, the EU has a record of agreeing treaties with non-EU countries (including non-Schengen countries), as the UK points out. There’s no CJEU jurisdiction required for the non-EU countries: see the EU/US PNR treaty, for instance (political dispute settlement).

The EU side refers to a 2017 CJEU judgment (discussed here), which criticised the EU/Canada PNR agreement on data protection grounds, but did not rule out the EU agreeing such treaties if there were stronger safeguards. Note that a further CJEU challenge is pending, on the EU’s own PNR legislation; this might have implications for the EU’s external treaties on this issue too. The EU cannot simply negotiate away these safeguards, as the CJEU rulings are based on EU primary law (the EU Charter of Fundamental Rights).

120. 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).

38. The agreement should provide for the fast and effective exchange of national DNA, fingerprint and vehicle registration data between the UK and individual EU Member States to aid law enforcement agencies in investigating crime and terrorism.

39. The agreement should provide similar capabilities to those currently delivered through the Prüm system, drawing on the precedent for such cooperation between the EU, Norway and Iceland as well as between the EU and Switzerland and Liechtenstein. These precedents include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.

Green. Both sides agree to negotiate on this particular form of exchange of data, with no conflict between their positions. The UK correctly points out that the EU has already signed agreements with Schengen associates linking them to the EU legislation on this exchange of information, with no CJEU jurisdiction for the non-EU countries and political dispute settlement.

121. Without prejudice to the exchange of law enforcement information through Interpol, Europol, bilateral and international agreements, the envisaged partnership should provide for alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the United Kingdom and Member States law enforcement authorities, in so far as is technically and legally possible, and considered necessary and in the Union’s interest. This would include information on wanted and missing persons and objects.

43. The agreement should provide 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. This capability is currently provided by the Second Generation Schengen Information System II (SIS II), making alerts accessible to officers on the border as well as to front-line police officers in the UK.

44. SIS II is used by EU and non-EU Schengen members (Switzerland, Norway, Iceland and Liechtenstein). The UK will continue to use SIS II until the end of 2020.

45. The agreement should provide capabilities similar to those delivered by SIS II, recognising the arrangements established between the EU and non-EU Schengen countries (Switzerland, Norway, Iceland and Liechtenstein). The EU’s agreements with these non-EU Schengen countries include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.

Red. The UK seeks something ‘similar’ to SIS II, while the EU rules out the UK’s participation in SIS II as such. This is not explicit in the EU position, but is set out unambiguously in the Q and As published by the Commission. Currently the UK participates in the criminal and police information exchange in SIS II, not the immigration aspects of the database, as discussed here. There’s another law known informally as the ‘Swedish Framework Decision’, but it concerns exchange of information in specific cases, not a database. So while both sides are willing to negotiate something, it’s not clear what that might be.

122. The envisaged partnership should provide for cooperation between the United Kingdom and Europol and Eurojust in line with arrangements for the cooperation with third countries set out in relevant Union legislation.

46. The agreement should provide for cooperation between the UK and Europol to facilitate multilateral cooperation to tackle serious and organised crime and terrorism. The UK is not seeking membership of Europol. Europol already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements.

47. The agreement could go beyond existing precedents given the scale and nature of cooperation between the UK and Europol. For example, the UK was the highest contributor of data to Europol for strategic, thematic and operational analysis in 2018.

49. The agreement should provide for cooperation between the UK and Eurojust. Eurojust is an EU agency which brings together prosecutors, magistrates and law enforcement officers to assist national authorities in investigating and prosecuting serious cross-border criminal cases. The UK is not seeking membership of Eurojust.

50. Eurojust already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements. The agreement should follow these precedents to enable ongoing cooperation between the UK and Eurojust.

Green. Both sides are broadly in agreement here, and both correctly point out that there is a framework for Europol and Eurojust to cooperate with non-EU countries (already being applied, as the UK points out).  The UK’s goal of going beyond precedent as regards Europol might not be reciprocated by the EU side. Cooperation with non-EU countries does not go as far as being a Member State. Contrary to the popular belief that ‘cooperation with Europol means CJEU jurisdiction yada yada yada’, there’s no such requirement for non-EU states: see the Europol agreements with the USA, for instance.

Criminal justice cooperation

123. The envisaged partnership should establish effective arrangements based on streamlined procedures subject to judicial control and time limits enabling the United Kingdom and Union Member States to surrender suspected and convicted persons efficiently and expeditiously, with the possibilities to waive the requirement of double criminality for certain offences, and to determine the applicability of these arrangements for political offences and to own nationals, including the possibility for the Union to declare, on behalf of any of its Member States, that nationals will not be surrendered, as well as to allow for the possibility to ask for additional guarantees in particular cases.

51. The UK is not seeking to participate in the European Arrest Warrant as part of the future relationship. 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 European Arrest Warrant.

Amber. Both sides agree on a fast-track extradition system in place of the European Arrest Warrant, which has only ever been applied between EU countries. The UK explicitly refers to the precedent with Norway and Iceland, which is very similar to the EAW with certain exceptions (from the ‘red line’ perspective, there’s no CJEU jurisdiction for the non-EU countries, exchange of case law and political dispute settlement). The only other EU extradition treaty is with the USA. The UK refers to ‘further safeguards’, while the EU refers to ‘additional guarantees’: similar in principle, but the devil will be in the details.

As for those details, the EU position that some Member States might refuse to extradite their own citizens already applies in the withdrawal agreement transition period and in the EU/Norway/Iceland agreement. It’s derived from long-standing national constitutional rules, not a vengeful tantrum by the EU: Barnier did not travel back in time to tell Member States’ constitution drafters and constitutional court judges to punish the UK for leaving the EU decades in the future.

I pointed out that this would happen before the referendum, and was told this was ‘Project Fear’; nobody has had the humility or integrity to apologise for their ignorance on this issue. It’s almost as if not everybody knew what they were voting for after all. And the sight of people who wanted the UK to become a non-EU country becoming upset because the UK is now being treated as a non-EU country is…unappealing.

The EU refers to the possibility of waiving ‘dual criminality’ – the usual rule of extradition law that an act or omission must be a crime in both the State requesting extradition and the State being requested to hand over a fugitive for extradition to apply. The European Arrest Warrant waives that rule as regards 32 crimes; the EU/Norway/Iceland treaty makes the waiver only optional. As a whole, the EU/Norway/Iceland treaty copies most of the EAW legislation, with several other exceptions.

124. To ensure effective and efficient practical cooperation between law enforcement and judicial authorities in criminal matters, the envisaged partnership should facilitate and supplement, where necessary, the application of relevant Council of Europe conventions, including by imposing time limits and providing for standard forms. It should also cover necessary supplementary forms of mutual legal assistance and arrangements appropriate for the United Kingdom future status, including on joint investigation teams and the latest technological advancements, with a view to delivering capabilities that, in so far as is technically and legally possible and considered necessary and in the Union’s interest, approximate those enabled by the Union instruments.

52. The agreement should provide for arrangements delivering fast and effective mutual legal assistance in criminal matters including asset freezing and confiscation. These arrangements should build and improve on those provided by relevant Council of Europe Conventions including the 1959 Council of Europe Convention on Mutual Legal Assistance and its Protocols, for example by providing for streamlined and time limited processes.

Amber. Both sides are willing to supplement the Council of Europe treaties on mutual assistance (the rules on transferring evidence cross-border). The EU has previously negotiated mutual assistance treaties with Norway and Iceland, the USA and Japan. Internal EU law (the European Investigation Order, discussed here), has aimed to replace the Council of Europe measures with a fast-track system too. The details of what is contemplated are not clear, however. The UK refers explicitly to freezing and confiscation (the subject of separate EU and Council of Europe measures), but the EU does not; the reverse is true for joint investigation teams.

125. Supplementing and facilitating the application of the European Convention on Mutual Legal Assistance in Criminal Matters of 20 April 1959 and its Additional Protocols, the envisaged partnership should put in place 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.

35. The agreement should provide for the fast and effective exchange of criminal records data between the UK and individual EU Member States, recognising that this is an important tool for investigations, prosecutions and sentencing, as well as for wider community safety.

36. To that end, the agreement should provide for capabilities similar to those provided by the European Criminal Records Information System (ECRIS). ECRIS is a secure, automated, electronic system providing for exchange of criminal records information held on countries’ own national databases within specific deadlines.

37. These arrangements should draw on precedents for similar networks of national databases for law enforcement purposes between the EU and third countries (see Prüm below).

Green. Both sides agree in principle to exchange of criminal records on a similar basis to existing EU law (ECRIS was initially set up on the basis of two EU laws: a Framework Decision and a Decision. These laws were amended and replaced by a Regulation and Directive). The details remain to be worked out, however. Note that the EU has not previously agreed to such measures with any non-EU country – even the Schengen associates.

Other issues

126. The envisaged 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. The provisions in the envisaged partnership should go beyond the FATF standards on beneficial ownership information, among others by providing for the existence of public registers for beneficial ownership information for companies and semi-public registers of beneficial ownership information for trusts and other legal arrangements.

53. The agreement should establish effective and reciprocal arrangements to transfer prisoners between the UK and EU Member States, enabling prisoners to be moved closer to home and be rehabilitated in the community to which they will be released. These should build and improve on arrangements provided by the 1983 Council of Europe Convention on the Transfer of Sentenced Persons and its Protocols, and could include time limited processes.

Red. The UK wants to go beyond the Council of Europe rules on the transfer of prisoners, although it does not explicitly refer to the EU law on this issue. There is no matching interest in negotiating this from the EU. On the other hand, the UK does not match the EU interest in negotiating on money laundering (again, there’s no explicit reference to EU law on money laundering) – although in this case, the EU position is almost word for word what the UK agreed with the EU in the political declaration on the future relationship (para 89, discussed here). It’s fair to say, as noted above, that the UK refers to freezing and confiscation of assets, which are part of this issue – but the banking law aspects are part of it too.

Photo credit: Wikicommons

Barnard & Peers: chapter 25, chapter 26, chapter 27

JHA4: all of it