Law enforcement and judicial cooperation in criminal matters under the EU-UK Trade and Cooperation Agreement

Briefing 27-05-2021

On 1 May 2021, the Trade and Cooperation Agreement (TCA) between the European Union (EU) and the United Kingdom (UK) entered into force, having been provisionally applied since 1 January 2021. One of the areas covered by the TCA, in its Part Three, is security cooperation between EU and UK law enforcement and judicial authorities in criminal matters. The 13 titles under Part Three contain extensive provisions aimed at enabling the continuation of information exchange, including personal data, between competent authorities in the UK and the EU Member States, as well as cooperation related to the surrender of wanted persons. Part Three also provides for close links with Europol and Eurojust, the EU's agencies for, respectively, law enforcement and criminal justice cooperation, although limited by the UK's third-country status. Rules on exchange of information related to criminal records, on mutual legal assistance, on freezing and confiscation of criminal property, as well as on fighting money laundering and terrorist financing, are also covered by Part Three of the TCA. A specific political mechanism will be relied on to settle disputes. While enabling unprecedented cooperation between the EU and the UK as a third country, the TCA reduces the UK's access to EU databases and marks a return to divergence, especially as the agreement excludes the jurisdiction of the EU Court of Justice. In addition, the disapplication of the mutual recognition principle and of the EU Charter of Fundamental Rights in relation to the UK brings the challenge of maintaining mutual trust in security cooperation to the fore. In this context, the conditionality linking suspension or termination of Part Three to UK respect of its commitments to fundamental rights, including under the European Convention on Human Rights, as well as in relation to personal data protection, has been welcomed by many.