UK and EU Criminal & Policing Law: What Effect of Brexit? Steve Peers May 9, 2016

Withdrawal process Article 50 TEU – added by Lisbon Treaty – would *presumably* be used Treaty amendment re UK or Art 50 amendment would be a legal alternative Or another attempt at renegotiation? Withdrawal begins when notification sent to EU Could delay notification

Withdrawal process Two years to negotiate withdrawal treaty – unless extended (unanimous vote of MS and UK) Not clear if notification can be withdrawn Would withdrawal treaty cover post-Brexit situation (refers to ‘taking account of future framework’?) Transitional issues – very relevant to criminal law cooperation

Withdrawal process UK not involved in Council or European Council re UK/EU negotiations issues; otherwise part of EU institutions Withdrawal treaty ratified by EU Council (by QMV); not clear if national parliaments ratify Not clear legal base and voting rules for post-Brexit treaty/treaties – if separate

Post-Brexit Can negotiate series of treaties or single treaty on EU/UK cooperation in general, or in this field Exact extent of EU competence over criminal law and policing not clear – not exclusive over all issues, but can be exclusive by exercise – no case law clarifying when that is yet

Post-Brexit Five areas of cooperation: 1 substantive criminal law 2 criminal procedure 3 mutual recognition 4 EU agencies 5 police cooperation

Post-Brexit 1 substantive criminal law – only covered by Directives on attacks on info systems, child sex offences, trafficking in persons: reflect CoE treaties 2 criminal procedure – victims of crime, first two suspects’ ‘roadmap’ directives: latter reflect ECHR

Post-Brexit 3 Mutual recognition: EAW; mutual assistance/EIO (from 2017); transfer of prisoners; recognition of penalties; pre-trial orders; protection orders; freezing orders; confiscation orders; ne bis in idem rules; criminal records; conviction effect Partly reflects CoE Conventions; some EU treaties with third states (EAW, mutual assistance)

Post-Brexit 4 EU agencies Europol: current member; opt out of new Reg (to become law on 11 May); can opt in after adoption Eurojust: current member; opt out of 2013 proposal for new Reg (under discussion); can opt in after adoption Police College: don’t participate, booted out EPPO: opt out of proposal, pigs might fly post-Brexit: liaison officers to Europol, Eurojust?

Post-Brexit 5 police cooperation: Schengen Info System; Eurodac (police access; nb proposed reform); Prum (opt back in); PNR Directive; Schengen Convention and ‘Swedish Framework Decision’; Customs Info System; Naples II; also mutual assistance/EIO, criminal record relevance (proposed amendment) EU treaties re some data – mainly Schengen associates – other than SWIFT, PNR

Data protection & police cooperation Transfer to non-EU states: either a) on basis of EU/UK treaty, but needs negotiation and approval, also possible CJEU challenge: Opinion 1/2015, pending or b) on basis of arrangement with EU country, but Directive 2016/680 applies (protects treaties with 3rd states pre-existing 6 May 2016)

Directive 2016/680 Applies from May 2018; doesn’t apply to intelligence agencies as such (but see Schrems) Need either adequacy decision by Commission, or safeguards in place, or emergency derogation Adequacy decision can be reviewed by courts/DPAs; third state must have essentially equivalent law: cf Schrems; presumably safeguards too; nb Davis & Watson, IPBill

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