22 November 2018

Brexit’s impact over the European Union’s internal security

Marian Tutilescu

Image source: Mediafax

The recent draft of the United Kingdom of The Great Britain and Northern Ireland (UK) withdrawal consequences and conditions from the European Union (Brexit) raises both parts’ major interest, considering the impact that it will produce, if it is adopted, over European Union’s citizens and the British ones. The afflicted domains are, mainly, the rights of EU’s citizens who are working in the UK and British citizens’ who are working in the EU; the movement of goods and services from and to the UK, from the custom charges point of view; the police, administrative and judicial cooperation; the establishment of Great Britain’s financial obligations when withdrawing from the EU and Ireland and Northern Ireland’s statute.  

In the following paragraphs we will be focusing on Brexit’s consequences in ensuring EU’s internal security, considering its impact over the current police and judicial cooperation tools in criminal matters, but also over the European framework on managing migration. 

Current cooperation framework between the UK and the EU in Justice and Home  Affairs domain

At the moment, according to Protocol no. 21 from the Treaty on the Functioning of  the EU (TFEU), the UK can choose which regulations wants to participate at (opt-in regime) or it can choose not to apply for those regulations (opt-out regime) from police and judicial cooperation domain. This is possible because, according to art. No.4 from this Protocol, the UK has a special status which allows it not to apply EU’s acquis entirely in Justice and Home Affairs domain (JHA), but only in those notified documents (opt-in) which are serving its national interest.

In July 2013, the UK, through the Home Affairs Minister from that time (Theresa May), notified the JHA Council its decision to opt-out regarding the police and judicial cooperation measures, which existed before the current TFEU (Lisbon Treaty). Yet, after that moment, through the same minister, the UK demanded to adhere again (opt-in) to 35 of those measures, seen as having a significant impact in combatting transborder frauds and preventing terrorism.

The legal documents for police and judicial cooperation in criminal matters, wherein the United Kingdom is still a member, can be grouped into 5 categories:

  - the cooperation among member states’ authorities – it includes legal documents about custom cooperation and the cooperation among financial information units and the ones across the joint investigation teams. This field also includes the mutual recognition of judicial decisions, seizure order and European arrest warrant, which simplify a lot the seizure of criminal assets and the extradition procedure among  member states;

- the exchange of information and data protection - it includes the legal documents about exchanging information among member states (providing data from criminal files), but also creating European database, like EURODAC, Schengen Information System (SIS), Visa Information System (VIS), European Travel Information and Authorisation System (ETIAS), etc. The exchange of data about passengers’ names on air routes (Passenger Name Record) or information in financial transfers domain also go under the same category.

- criminal frauds - it includes the offences committed outside the national borders or which involve the transborder tracking, specific rules to combat organized crime, infantile pornography, human trafficking or cyber-crime.

-  EU organizations and agencies in police and judicial cooperation domain - it includes the legal regulations about EUROPOL, EUROJUST and European Police College’s (CEPOL) activity;

-  approximation of the criminal procedures - it includes the tools regarding the criminal procedures for certain situations or people, like victim’s status in criminal procedures, the regulation on the European Investigation Order, European Protection Order.

We must mention that the UK does not apply the Schengen acquis in borders’ domain, including the one regarding control lift of  EU’s internal borders.

Regarding Frontex actions, if the United Kingdom decides to ask for the participation at any of these, Frontex Management Board, which consists of agency’s leadership and the representatives of all member states, decides if accepts or not the request, as well as the respective financial contribution. Currently, the United Kingdom has been constantly involved  in Frontex’s actions.

On asylum and migration, in 2014, the United Kingdom decided not to participate at the majority of legal documents in this area, choosing to participate at reforming the Dublin Regulation and those legal documents which are contributing to illegal migration prevention and control.

United Kingdom’s involvement in Schengen Information System (SIS) is limited to information about police cooperation and judicial cooperation in criminal  matters, like the wanted people based on a European arrest warrant, missing persons, wanted objects, but it does not have access to data about citizens of third countries , to whom the access on EU’s territory is denied.

Regarding the police cooperation regulated by Prüm Treaty, which became part of the  EU acquis, we have to mention that it regulates the exchange of data among member states about the identification system based on fingerprints (Automated Fingerprints Identification System - AFIS) or DNA profiles, the owners of vehicles registered in member states and the associated countries (EUCARIS), combatting terrorism on air flights and joint actions of neighbouring countries in preventing crimes. On 1st of December 2014, the UK decided not to apply the provisions of this treaty anymore, yet, two years later, asked through the opt-in mechanism, to reapply these measures 

British government’s contradictory options, made during the last years, lead to the perception of a quite arguable approach about applying  police and judicial cooperation measures in criminal matters, which raised some reactions, sometimes virulent, from the other member states.

Brexit’s expected impact over EU’s internal security based on the provisions of the current treaty project

Without speculating over the adoption  chances of the draft  treaty regarding Brexit, agreed on in the last days by the EU and United Kingdom’s officials, we would like to make a summary of its provisions in police and judicial cooperation in criminl matters domain, and the impact over  the security environment for both of the involved parts.

Foremost, we must draw attention upon the fact that the United Kingdom will officially withdraw from the European Union on 29th March 2019, two years after the notification of this intention, made by Theresa May in the name of the British Government. According to the actual draft  of the withdrawal treaty, a transition period until 31th of December 2020 was established

As for the police and judicial cooperation in criminal  matters, the withdrawal treaty’s project envisages rules for the continuation of the criminal  procedures which involve  the United Kingdom, until their end. In other words, the provisions of the current cooperation framework between EU and the United Kingdom will be applied, until the end of the transition period.  

For example, if someone is arrested by the British authorities based on a European warrant arrest, he/she will be sent to the member state which asked for it. Or, if a member state receives a demand from the United Kingdom, before the transition period expires, to seize goods of a fraud, it will be executed accordingly with the existent rules at that specific date.

In other words, things seem to be quite simple in this field, at least until the end of the transition period. However, what will happen in the near future, following the transition period, remains uncertain.

Firstly, we must specify  that the text of the treaty’s project also envisages the possibility to extend, one time only, the transition period, through the decision of the Joint  Committee, made of officials of both entities, taken before 1st  July 2020. But, after the transition period expires, no matter its duration time, the United Kingdom will have the status of a third country in relation to the EU.

From this point of view, the United Kingdom will no longer use any of the current tools for police and judicial cooperation in criminal  matters, which will have a major impact over all  EU member states. Let us consider the following scenario : in order to bring back to Romania someone  who got to the UK and who is wanted based on arrest warrant for murder,  his track and arrest are demanded through Interpol, but then it is necessary to initiate the  extradition procedure, which could take months or even years, while using  an European Arrest Warant the procedure  takes only 2-3 weeks. Also, the exchange of data with the United Kingdom will no longer be made automatically, using the current European platforms, but at a bilateral level, for instance, through liason  officers, detached to diplomatic  offices .

It is possible for the United Kingdom to ask, after the withdrawal from EU, for negotiations in order to become an associated country   - like Norway or Switzerland- a status which would allow it to cooperate on some policies from JHA’s domain, like the participation to EUROPOL, FRONTEX or EUROJUST.

It would be premature to make such speculations, considering that the atmosphere in the British Parliament is quite hot regarding a series of provisions of the actual treaty project. We are waiting for their decision, analyzing other potential consequences of the treaty project in Romania’s interested areas.

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