Disarming a ticking bomb: Can the Withdrawal Agreement ensure EU-UK judicial and police cooperation after Brexit?
Maintaining strong cooperation in police and criminal justice matters after Brexit is a matter of priority for the EU and the UK. However, the departure of the country from the Union raises the question of whether current EU legislation in the field will still be able to apply to future EU-UK relationships in areas such as extradition, evidence-gathering, and information-sharing.
In November 2018, EU and UK negotiators reached a common position on the content of the Withdrawal Agreement, though a few procedural steps are required before its entry into force, notably the approval of the UK Parliament. The Agreement is based on the principle that the UK remains bound during the transition period by EU acts applicable to it upon its withdrawal. Hence, the country will continue to participate in EU agencies, mutual recognition instruments and information-sharing mechanisms until the end of the transition period. The adoption of the Agreement is thus an essential precondition for avoiding ‘cliff-edge’ scenarios where the UK, in the aftermath of Brexit, would be abruptly prevented from exchanging European Arrest Warrants with other member states or from participating in Europol or Eurojust.
Nevertheless, the departure of the UK from the bloc will already change the status of this country vis-à-vis EU instruments and agencies from the very beginning of the transition period. From Brexit day on, the UK will not be able to take part in the management bodies of EU agencies nor to opt into new measures concerning the Area of Freedom, Security and Justice. The EU may invite the UK to cooperate in relation to such new measures, but only under the conditions set out for cooperation with third non-Schengen countries.
During the transition period, the essential benchmarks of EU fundamental rights and data protection standards must be respected in order to maintain the trust required for sustaining any form of cooperation between the parties following Brexit. Beyond the end of the transition period, EU and UK cooperation in the field of police and criminal justice will have to rely on a new legal basis. Any new agreement will need to be aligned with the rules governing EU relations with third countries outside Schengen.
Marco Stefan is a Research Fellow within the Justice and Home Affairs Section at CEPS. Fabio Giuffrida is a postgraduate research student at Queen Mary University of London. This paper was prepared for the SOURCE Network of Excellence, which is financed by the EU FP7 programme.