Abstract
On Christmas Eve of the year 2020, the European Union and the United Kingdom of Great Britain and Northern Ireland reached an agreement in principle: the draft EU–UK Trade and Cooperation Agreement (TCA). It was made available to the public 3 days later, on 27 December 2020, and published in the OJ on 31 December 2020. This version, which is ‘provisionally’ applicable since 1 January 2021, formed the basis for the contributions in the present issue, including its original numbering. As this numbering will fall apart, for ease of reference, please find attached to this editorial a synopsis of the old and new numbering of the relevant Articles. The TCA is already ‘provisionally’ applicable as of 1 January 2021.
On the EU side, the legislative process, including required notifications from all EU Member States, is not yet finalised at the date of writing this editorial (31 January 2021). The UK has already implemented the TCA into its domestic legislation. It published the European Union (Future Relationship) Bill on 29 December 2020, accepted by its Parliament 1 day later. Just on time, by 31 December 2020, the European Union (Future Relationship) Act 2020 came into force.
After publishing a first general commentary on social media 1 in relation to Part III of the TCA, which addresses law enforcement and cooperation in criminal matters, an extraordinarily strong feedback showed that a quick, yet more thorough in-depth analysis and commentary of this bulk of new and confusing provisions is necessary. To our great delight, Irene Wieczorek and Vania Costa Ramos of NJECL were immediately enthusiastic about this idea. Without their on-going commitment and the full support of the NJECL this publication would not have been possible in the envisaged short period of time. We are also extremely grateful to our co-authors, all recognised international criminal law experts. In a joint effort, we managed to complete this difficult task, and are happy to present a provisional analysis of a provisional text already now.
It is important to take a closer look at the TCA’s provisions governing criminal law, since they are not only difficult to digest, but, more importantly, they are already applied in practice. Uncertainties in interpretation and regulatory gaps run like a red thread through all the compiled essays. The most striking, however, remains the actual threat the TCA poses to human rights, which can hardly be underestimated. This threat is manifested particularly in three aspects: 1. the exclusion of the Charter on Fundamental Rights of the European Union, meaning, inter alia, that the principle of double jeopardy (ne bis in idem) is no longer applicable between the Parties 2. the absence of any superior judicial control, and 3. the real risk that cooperation may cease at any moment if any of the Member States or the UK leave the European Convention of Human Rights.
Not least for this reason, we would like to dedicate this special issue to Scott Crosby, founding editor of the NJECL and Human Rights Officer of the European Criminal Law Association. Since the beginning of the Brexit negotiations, Scott never got tired of drawing attention to this risk.
