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

2. 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

3. 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Not clear if notification can be withdrawn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

4. 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

5. 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

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

7. 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

8. 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)

9. 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?

10. 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

11. 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)

12. 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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speers at essex.ac.uk