PERMEABILDIAD DE LA MEZCLA

Despite the sui generis approach, the UK has been an active contributor to the development of EU criminal law and police cooperation, particularly as regards the latter, on four different levels: operations, strategy, legislation and implementation.30

At the operational level, the UK is one of the leading drivers of and highest contributors to EU databases and EU information-sharing mechanisms.31 _{Discussions during the Task Force highlighted that the non-} participation of the UK in these tools and mechanisms post-Brexit may prove costly for the UK and the EU, as each could lose access to important information that is stored by the other party and which may be crucial to prevent or detect serious crime in the EU or in the UK.

The UK has also contributed to EU criminal law in terms of strategy. As the UK House of Lords’ European Union Committee points out, the UK has been a leading protagonist in shaping the nature and direction of

28 _{Just before this report was finalised, Advocate General Szpunar delivered his Opinion,}

where he argues that EAWs issued by the UK before the default Brexit date (29 March 2019) should continue to be executed (Opinion of Advocate General Szpunar, Delivered on 7 August 2018, Case C-327/18 PPU, R O).

29 _{See also Bárd (2018), pp. 4–6.}

30 _{Mitsilegas (2017), pp. 246ff., upon which this section draws.} 31 _{See chapter 5, part II below.}

cooperation on police and security matters.32 _{A recent example of the UK} pushing for further EU action in the field of security is calls for the adoption of an EU passenger name record (PNR) system.33 _{The UK has also assumed} a leading role in furthering European integration while trying to stave off integration attempts that were deemed to challenge unduly state sovereignty in criminal matters. A key example has been the UK’s leadership in securing application of the principle of mutual recognition in the field of criminal law, an idea put forward by the then UK Home Secretary Jack Straw at the Cardiff European Council in 1998.

The strategic input of the UK is also linked with the considerable impact that UK officials have made in the development, drafting and implementation of secondary EU criminal law. UK Government officials have participated actively in the negotiations of EU instruments in Brussels34 and UK Members of the European Parliament have significantly contributed to the adoption of some of these instruments.

Another UK contribution lies at the level of implementation of EU criminal law at the national level. Here, the high level of both advocacy and parliamentary scrutiny within the UK has resulted in substantive contributions in reshaping the relationship between criminal law and fundamental rights at the domestic level. A recent example has been the amendment of the UK Extradition Act 2003 to include proportionality as an express ground for refusal to execute an EAW. While this ground for refusal arguably goes beyond current EU law in the field, the emphasis on the limits of mutual recognition on the grounds of protecting human rights and on proportionality (which has been debated in the UK for a long time) has recently been mirrored in both secondary EU law instruments (e.g. the EIO Directive) and in the CJEU’s case law on the EAW.35

All these examples demonstrate the multi-faceted contribution of UK actors to the development of the EU criminal justice and police cooperation acquis. The EU will develop criminal law with the UK’s influence being less marked after Brexit. It remains to be seen whether this will have an impact

32 _{House of Lords, European Union Committee (2016), para. 27.} 33 _{See section 5.2, part II below.}

34 _{Nowell-Smith (2012).} 35 _{See section 3.2, part II below.}

on the content and direction of EU criminal law in the future. Some experts and a number of our interviewees voiced concerns that EU legislation will pay less attention to principles and rules of common law and adversarial systems of criminal justice.36

36 _{Written evidence of the Scottish Crown Office and Procurator Fiscal Service to the Home}

Affairs Sub-Committee of the House of Lords’ European Union Committee, “Brexit: Future UK–EU security and police cooperation”, FSP0003. See also Hanratty (2018), p. 7.

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2

BREXIT AND THE AFSJ:

ONGOING NEGOTIATIONS

AND CROSS-CUTTING ISSUES

n 29 March 2017, the UK Government formally notified the European Council of its intention to leave the EU. Article 50 of the Treaty on the European Union (TEU) sets out a timeframe of two years for the UK to withdraw from the EU (see Figure 1).

The UK will remain a Member State until the formal date of departure.37 _{As of Brexit day, scheduled for 29 March 2019, the UK will} become a third country vis-à-vis the EU. The Withdrawal Agreement will determine the extent to which EU law applies to the UK as of Brexit day and until the end of 2020, that is, until the end of the so-called transition or implementation period. According to the latest version of the draft Withdrawal Agreement, the EU and the UK have agreed upon the date of 31 December 2020 as the end of the transition period.38

37 _{Łazowski (2017).}

38 _{European Commission, “Draft Agreement on the withdrawal of the United Kingdom of}

Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community highlighting the progress made (coloured version) in the negotiation round with the UK of 16–19 March 2018” (2018e) (‘draft Withdrawal Agreement’).

Figure 1. Brexit timeline

Notes: QMV = qualified majority voting; EP = European Parliament.

* Strong QMV: 72% of the 27 Member States, i.e. 20 Member States representing 65% of the EU-27 population.

Source: European Commission (https://ec.europa.eu/ireland/file/brexit-timeline- webjpg_en).