The legal regime applicable until the end of the transition period

As from 1 February 2020, the legal regime governing judicial cooperation in criminal matters between the UK and the 27 EU Member States has changed. Organised by the final version of the Withdrawal Agreement (WA),’9 this regime is unique, and only applies to the UK, a third country which is a former EU Member State. The text allows for the preservation of most of the cooperation mechanisms for the duration of the transition period, which may be extended beyond December 2020 (Article 132). Nevertheless, in accordance with the European Union (Withdrawal) Act,40 the possibility of requesting an extension is at the moment foreclosed.41

The general provisions of the WA have an impact on the UK’s participation in the work of Eurojust. As from 1 February, as EU law remains applicable until the end of the transition period, the UK remains an active participant in the activities of Eurojust, but it no longer participates in its management body (Article 7). The UK also retains until the end of the transition period its access to the networks, information systems and databases established under EU law (Article 8), which covers the Case Management System used by Eurojust.

In the field of judicial cooperation in criminal matters stricto sensu, the UK’s withdrawal has a limited impact, provided that the requests for cooperation are made before the end of the transition period.42 The WA preserves the continuity of ongoing judicial cooperation proceedings, by providing that 12 instruments, such as the Framework Decision on the EAW,4’ the Framework Decision on the European Criminal Records Information System44 or the Directive in the EIO4’ continue to apply (Article 62(1)). As the UK had previously tailored its participation in pre- and post-Lisbon EU criminal law instruments, this does not cause a major disruption. It is furthermore in line with the case law of the CJEU, which had the occasion in 2018 to stress that the UK’s withdrawal from the EU does not bar the execution of EAWs as long as there is no concrete evidence to suggest that the persons concerned will be deprived of the opportunity to assert his/her fundamental rights before the UK’s courts and tribunals.46 The

British authorities also retain the possibility of continuing their participation in joint investigation teams (Article 62(2)), and to share and request information from Eurojust (Article 62(3)).

The main change probably concerns the UK’s participation in new EU criminal law measures, as the country retains only the possibility to opt in for proposals amending, replacing or building upon measures in which the UK previously opted in. Regarding new proposals, the UK may only be invited to cooperate with the EU Member States under the modalities foreseen for third countries (Article 127(5)), which marks the change in the status of the UK as a third country, with whom cooperation starts to form part of the external dimension of judicial cooperation in criminal matters.

Another element marks such change of status, as three Member States — namely Germany, Austria and Slovenia — declared that, during the transition period, their national executing judicial authorities may refuse to surrender its nationals to the UK pursuant to an EAW (Article 185).*7 This is due to reasons related to fundamental principles of their national law, in particular constitutional limits regarding the extradition of their nationals outside the EU. In Germany for instance, Article 16(2) of the Fundamental Law limits the extradition of nationals to situations in which the request comes from an EU Member State and/or an international court. Even though Germany, Austria and Slovenia are not the EU Member States sending the highest numbers of EAWs to the UK, these notifications are important. In cases involving nationals of these countries, surrender is now barred, and other instruments, relating notably to the transfer of criminal proceedings,49 must be applied, with additional costs and difficulties. They thus mark a first decrease in the intensity of judicial cooperation in criminal matters between the UK and the EU.

In conclusion, the WA preserves, as it does in other policy areas, in large part, existing judicial cooperation in criminal matters between the UK and the 27 EU Member States. A clear gap can nonetheless be identified: the end of the UK’s participation in the European Judicial Network,’" composed of contact points that act as active intermediaries to ease judicial cooperation, liaising either with a judicial authority of their own State or with the contact points of other Member States. Despite the usefulness of this network, as of February 2020, the UK is now considered a third country and the tools developed by the network are no longer available to practitioners. Nevertheless, the WA avoided a ‘cliff-edge scenario’ and ensured continuous cooperation, while the future relationship between the UK and the EU is being negotiated.

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