Información General de SKU’s

If the draft Withdrawal Agreement is approved in its current version, the UK’s competent authorities will continue to participate in JITs that have been set up before the end of the transition period.419 _{With regard to future cases,} it is worth noting that third countries can participate in JITs supported and financed by Eurojust, which may also reimburse the expenses incurred by third countries’ authorities.420 _{The number of JITs with third countries has} increased in the last few years,421 _{although they are still much less common} than JITs solely among EU Member States.422 _{According to Eurojust’s recent} Second JIT Evaluation Report, two elements usually facilitate the setting-up of JITs with third countries, namely the involvement of these countries in Eurojust’s coordination meetings and, with regard to Switzerland and Norway, their presence at Eurojust by means of liaison prosecutors.423

Even though this bodes well for the future participation of the UK in EU-funded JITs, at least three disadvantages could follow from exiting the EU. First, the UK could not take the lead in the establishment of JITs via Eurojust, but could only be invited by other EU Member States to join them. Bearing in mind that, for instance, the UK has instigated all the JITs (more than 20) in which it currently participates in the field of international human trafficking and slavery, our interviewees expressed concerns about this potential consequence of Brexit. The UK may set up JITs at its own expense and then invite the competent authorities of EU Member States to join, although this seems a suboptimal solution in comparison with the current situation.

Second, the involvement of a third country may require “specific issues to be addressed”,424 _{including data protection and specific confidentiality} requirements, and in some instances “the JIT may be required to adapt the

419 _{Art. 58(2) of the draft Withdrawal Agreement. This provision has not been agreed yet.} 420 _{Eurojust (2018b), p. 1.}

421 _{Eurojust (2018a), p. 33.}

422 _{According to Eurojust’s “Annual Report 2017” (2018c), 11 new JITs involving third}

countries were set up with the support of Eurojust in 2017. In the same year, more than 160 JITs were set up among EU Member States (p. 21).

423 _{Eurojust (2018a), p. 33.} 424 _Ibid.

‘EU approach’ and adjust to the specific legal requirements in the countries concerned”.425 _{Therefore, the participation of the UK in EU-funded JITs} might become more complicated than it is today.

Finally, concerns about the legal basis for the establishment of JITs may arise. Currently, Member States set up JITs in accordance with Article 13 of the 2000 EU MLA Convention and with the 2002 Framework Decision on JITs.426 _{After Brexit, EU and UK national authorities will have to rely on other} legal bases. Some options are already available, such as Article 20 of the Second Additional Protocol to the 1959 MLA Convention.427 _{As seen above,} however, the Protocol is not in force in Italy, Greece or Luxembourg. The above-mentioned United Nations conventions do not represent a legal basis to set up JITs, as they only encourage state parties to “consider concluding bilateral or multilateral agreements or arrangements whereby ... the competent authorities concerned may establish joint investigative bodies”.428 Where there are no such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis.429 _{As for EU} agreements on mutual legal assistance, the EU–Norway and Iceland MLA Agreement provides for the applicability of Article 13 of the 2000 EU MLA Convention to these countries as well. The MLA Agreement with Japan does not cover JITs, unlike Article 5 of the EU–US Agreement, which is notably worded in a way recalling the UN conventions. The EU and the US are required, to the extent they have not already done so, to take such measures as may be necessary to enable JITs to be established and operated in their respective territories. The Commission’s review of the EU–US MLA Agreement, carried out in 2016, reveals that this provision has raised some practical and legal problems and that only one JIT agreement has been concluded so far.430

425 _{Ibid., p. 34.}

426 _{OJ L 162/1, 20.6.2002.}

427 _{See also Hufnagel (2016a), p. 173; Campbell (2017), p. 8.}

428 _{Art. 19 UNTOC and Art. 49 UNCAC (emphasis added). Although phrased in a slightly}

different way, Art. 9(1)(c) of the Vienna Convention conveys the same meaning.

429 _{Art. 19(3) UNTOC and Art. 49 UNCAC.} 430 _{European Commission (2016), pp. 6 and 10–11.}

From the UK side, however, the only option available for the time being would be the Second Protocol to the 1959 MLA Convention. Section 88(7) of the Police Act 1996 recognises three main legal bases for the UK’s participation in JITs. In addition to the 2002 Framework Decision on JITs and the 2000 EU MLA Convention and its Protocol, the third legal basis is represented by “any international agreement to which the United Kingdom is a party and which is specified for the purposes of this section in an order made by the Secretary of State”.431 _{Pursuant to the home secretary’s} International Joint Investigation Teams (International Agreement) Order 2009, the Second Protocol to the 1959 MLA Convention has been recognised as a legal basis to set up JITs with the participation of UK authorities.

It is worth noting that Eurojust has already “supported several JITs that were set up in accordance with a combination of international instruments (not all the States involved had implemented the same legal basis allowing the participation of the third State)”.432 _{In other words,} Eurojust seems well equipped to assist Member States and third countries, including in the future the UK, in the choice of the appropriate legal basis/bases for JITs. At least with regard to JITs, Brexit should not have any dramatic consequence, as there are already other legal instruments facilitating the establishment of JITs between the UK and EU Member States, or at least the majority of them. Nonetheless, the UK could lose its leading role in the field and this may have negative repercussions for common security in Europe.