General provisions under the EU–UK Trade and Cooperation Agreement

Relevant new provisions

Article LAW.GEN.1: Objective

Summary of major changes

With Brexit, the United Kingdom (UK) became a ‘third country’ vis-à-vis the EU and its Member States. As such, a new basis for law enforcement and judicial cooperation had to be established. One option would have been to agree individual international agreements between the UK and the respective Member State. This option would not only have required lengthy negotiations between each Member State and the UK, it would also have created legal uncertainty during the time of negotiations.

Another alternative would have been to apply already existing international agreements between the UK and the respective Member State. This would have created the risk of causing diverging legal frameworks because not all Member States are parties to the same international agreements.

Instead, the EU chose to enter into one agreement governing the areas of law enforcement and cooperation, such as extradition ³ and mutual legal assistance, ⁴ with binding effect for all Member States. By entering into the TCA, the EU is exercising its powers to conclude an agreement with a third country. ⁵ As such, the TCA is binding not only to EU institutions but also on those of the Member States and the UK. With regard to the EU, the wording of the TCA goes beyond what is stipulated in the Treaty on the Functioning of the European Union (TFEU) ⁶ in that it not only refers to ‘institutions’ but also to ‘bodies, offices and agencies’ thereby incorporating in particular Eurojust and Europol.

Scope of application

The last-minute negotiation of the TCA may have created another difficulty: Notifications were to be made by the time the TCA entered into effect. However, time was limited and it appears the Member States and the UK did not have sufficient time to make all notifications in relation to important topics such as the extradition of nationals – in jurisdictions such as Germany (and perhaps other jurisdictions), a notification is required by the constitution. As a consequence, the TCA entered into force prior to the notifications being made, but the Member States and the UK were given a deadline of two months to submit these. In the interim, one is to assume that no such notification has been made. With regard to certain notifications, these may be made, amended and withdrawn at any time. In particular, but not only, during the interim period, this causes unnecessary uncertainty with respect to the applicable law and fundamental issues of national (constitutional) law.

Preliminary analysis

It appears questionable whether the aim of unifying the cooperation between the UK and the Member States could be achieved in the TCA. While it does include a common basis of cooperation, the TCA provides individual Member States and the UK with several options to set individual rules of cooperation by way of notification, ⁷ for example, with regard to the extradition of nationals or political offences. It remains to be seen whether, by creating common basic rules for cooperation, the EU and the UK were able to achieve a unified approach as well as diverging rules with different Member States. Such diverging rules could, in particular, cause difficulties if multiple Member States and the UK are cooperating in the same matter. It will also remain to be seen, whether by applying the TCA, a more comprehensive set of rules will be applicable than those of the existing Council of Europe agreements. ⁸

Another aspect that may lead to a diverging application of the TCA arises from the lack of a court competent to provide a binding interpretation of the provisions of the TCA. While the rulings of the Court of Justice of the European Union (CJEU) on the TCA’s interpretation will be binding on the Member States and their courts, interpretations of the TCA by the courts in the UK or in the Member States are not binding to courts of the other party. ⁹

Given that the TCA has been concluded between the EU and the UK, the question will arise if and to what extent an individual may rely on its provisions. This question will need to be assessed with respect to the individual provisions of the TCA taking into account the case law of the CJEU on the direct effect of EU law. ¹⁰

Relevant provisions

Article LAW.GEN.3: Protection of human rights and fundamental freedoms

Summary of major changes

With Brexit, the Charter of Fundamental Rights of the European Union (CFREU) ceases to apply to the UK. Instead, the TCA in Part III ¹³ refers in general terms to the Universal Declaration of Human Rights and the ECHR and reflects the obligations under the ECHR and – for the EU and the Member States – the CFREU. It further refers to national rules on the safeguarding of human rights such as the UK Human Rights Act 1998.

The TCA marks an end to what can only be described as a difficult relationship between the UK and the EU regarding the application and implementation of the CFREU into the UK law as set out in the protocol on the application of the CFREU to the UK. ¹⁴ Notably, the TCA does not specifically refer to the case law of the European Court of Human Rights (ECtHR). Nevertheless, the UK continues to fall under the jurisdiction of the ECtHR and will thus continue to be bound by its decisions.

The importance attributed to the protection of human rights is evident only from reading the rules on the termination of the TCA. These foresee a termination of the TCA if the UK or a Member State denounces the ECHR. ¹⁵ In that case, Part III is not void vis-à-vis all Member States but rather ceases to be effective only with respect to the Member State denouncing the ECHR.

Scope of Application

The TCA does not provide for specific rules on the application of human rights as guaranteed under the CFREU. As a consequence, it remains to be seen whether the protection under the CFREU will cease with an immediate effect. This may have severe effects on individuals.

Until Brexit, the principle ne bis in idem ¹⁶ guaranteed that no EU citizen is ‘prosecuted for the same acts in several Contracting States on account of the fact that he exercises his right to freedom of movement … It ensures that persons who, when prosecuted, have their cases finally disposed of are left undisturbed’. ¹⁷ With regard to the underlying law, at least with respect to Art. 50 CFREU, the TCA indicates that the CFREU shall no longer be applicable in the UK. ¹⁸ The situation regarding Art. 54 of the Schengen Agreement (CISA) ¹⁹ is somewhat more difficult. The UK participated in certain provisions of the Schengen acquis, inter alia its Art. 54. ²⁰ The TCA does not specify whether this participation remains in effect or whether the withdrawal of the UK from EU also includes the withdrawal from the participation in the CISA – compared to other provisions of the CISA, the Withdrawal Agreement does not refer to Art. 54 ²¹ . With the CFREU no longer in force in the UK and the application of Art. 54 CISA being uncertain, an individual convicted in a Member State but now residing in the UK may no longer be protected under the principle ne bis in idem. Can, will or must the UK exercise its jurisdiction over this individual now that the protection of the CFREU and CISA may no longer exist or is this individual protected from further prosecution for the same act?

Or will the CFREU and the human rights enshrined therein and their interpretation by the CJEU continue to be applied to ‘old’ cases, that is, acts committed before the entry into force of the TCA? In that case, who will be in charge of interpreting these rights in the absence of access to the CJEU? The Withdrawal Agreement ²² only governs pending cases brought to the CJEU prior to or on 31 December 2020. However, a (second) conviction could be barred under the common law doctrine of autrefois convict and autrefois acquit under the UK law. Under this doctrine, it is irrelevant, ‘whether the previous conviction or acquittal based on the same facts was by an English court or a foreign court’. ²³ This doctrine will not apply however, if there is no prospect of enforcement of the sentence in the foreign (EU) jurisdiction. ²⁴

It will further need to be reviewed if and how an individual can claim a violation of his human rights under the TCA. While Part III of the TCA stipulates the rules governing invasive actions such as surrender, the reference to the human rights conventions is rather generic, simply noting that the TCA does not modify existing obligations, rather than actively guaranteeing those. In any event, claims could be brought to the ECtHR.

Preliminary analysis

The explicit reference to the ECHR can only be welcomed since it clearly provides for minimum standards between the UK and the EU and the Member States. Further, in addition to the general provision on the protection of human rights, the TCA contains additional safeguards for the protection of human rights such as the provisions on the principle of proportionality. ²⁵

However, the standard created may cause diverging developments of human rights standards in the UK and the EU and its Member States, respectively. Taking this into account, it comes as a surprise that the parties chose to apply a mechanism similar to the European Arrest Warrant (EAW). The application of this mechanism is evident not just from the terminology applied, referring to surrender rather than to extradition, but also from the content of Title VII. However, the EAW was built on the basis of mutual trust and recognition and on the basis of the respect of ‘fundamental rights and […] the principles recognised by Article six of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof’. ²⁶ As such, the fundamental cornerstone of the EAW regime no longer applies in the UK. Nevertheless, under the TCA, the simplified procedure of surrender with limited protection for the individual shall apply with respect to the most severe measure allowing for the deprivation of liberty.

The timing of the decision to apply an extradition mechanism similar to the EAW further comes as a surprise as with the most recent judgements by the CJEU, even surrender between Member States has become subject to additional scrutiny. ²⁷ Providing for a simplified mechanism with regard to a third country, such as the UK after Brexit, seems to contradict this trend.

General remarks on the role of Committees

The Committee generally has monitoring, ³¹ advisory and reporting, ³² and coordinating ³³ functions vis-à-vis the Partnership Council which is the central body set up under the TCA.

The Committee may however adopt non-binding recommendations ³⁴ but also binding ³⁵ decisions. It may do so in areas specifically assigned to it under the TCA but also to the extent that such power has been delegated to it by the Partnership Council. In particular, the latter may provide the Committee with significant power. The Partnership Council is vested with broad powers under the TCA, including amendments to the TCA if provided for in the TCA. ³⁶ The power to delegate its authority to the Committee is only limited to establish or dissolve Committees. ³⁷ In theory, the Partnership Council could thus even delegate its power to amend the TCA to the Committee.

In practice, the question may be of little relevance since – apart from the co-chairs of the Partnership Council ³⁸ – the TCA does not provide for specific requirements for the representatives in either the Partnership Council or the Committees. As a result, the same ‘representatives’ could be part of both the Partnership Council and the Committees.

It will be up to the EU and the UK to determine and to notify the Secretariat of the Partnership Council ³⁹ of the representatives to take part in the respective Committee meeting.

The relevant Council Decision on the TCA determines that the EU will be represented by the Commission – and not by the High Representative of the Union for Foreign Affairs and Security Policy who generally represents the EU vis-à-vis third countries. ⁴⁰ In addition, a representative from each Member State may join the Commission representative in the meeting. ⁴¹ Their role and rights remain uncertain, though. The TCA also makes no determination with regard to the representation of the UK.

The number of representatives has not been determined and may – given the possible presence of representatives from Member States – vary. It will be up to the UK and the EU to determine whose vote will be relevant in order to obtain consent. The Rules of Procedure of the Partnership Councils and Committees provide for a procedure of reaching decisions and recommendations. ⁴²

Meetings of the Committees may, subject to an agreement by the co-chairs of the Committee, be held in public. ⁴³

Given the requirement of ‘mutual consent’ ⁴⁴ between the representatives of the EU and the UK in the Committee, it does not come as a surprise that the TCA does not seem to provide for a settlement mechanism and decisions of the Committee. However, it appears unclear, how an individual Member State or even an individual affected by the decision can challenge a Committee decision.

Role of the Specialised Committee on Law Enforcement and Judicial Cooperation in Part III of the TCA

Part III largely vests the Committee with a coordinating function, receiving and processing notifications from the UK and/or Member States or the EU.

As such, the Committee receives notices amongst others on the respective national competent authorities ⁴⁵ and monitors the processing of PNR data. ⁴⁶ In case of termination ⁴⁷ or suspension ⁴⁸ of the TCA, the Committee would play a vital role in determining measures necessary to conclude ongoing cooperation. ⁴⁹

More importantly, the Committee will decide on the time limits for the execution of mutual legal assistance ⁵⁰ and on the forms used for various measures. ⁵¹ Further, by deciding on the list of forms of serious crimes, ⁵² the Committee can – upon proposal by the Union and following a change of the list on Union level – determine the cases that can be dealt with at Eurojust.