Lessons learned from existing EU external cooperation
Judicial cooperation in criminal matters counts among the fields in which both the EU and the UK share a mutual interest in maintaining close cooperation. This was already mentioned in the negotiating guidelines adopted by the European Council in March 2018,51 and it was taken on in the Political Declaration.’2 The EU—UK future partnership ‘will provide for comprehensive, close, balanced and reciprocal law enforcement and judicial cooperation in criminal matters’ (para. 80), which should notably be
underpinned by long-standing commitments to the fundamental rights of individuals, including continued adherence and giving effect to the European Convention on Human Rights (ECHR), and adequate protection of personal data, ... and to the transnational tie bis in idem principle and procedural rights.
In order to achieve such an ambitious level of cooperation and to give shape to this future EU—UK relationship, precedents of cooperation with third countries have been referred to as potential sources of inspiration.’3 While the UK government had in the past indicated its preference for special treatment,’4 the EU has remained silent on that particular point.” They nevertheless became a potential parameter for framing the negotiations, so the next paragraphs will analyse the forms of cooperation developed in two key aspects of judicial cooperation, namely extradition and mutual legal assistance (MLA).
Options available for extradition and mutual legal assistance
The first option to be discussed concerns geographically distant third countries such as Australia, Japan or the USA, with whom the EU has developed looser forms of cooperation. The USA is the partner with whom the EU concluded its first international criminal justice agreements:’6 an agreement on extradition’7 and an agreement on MLA,’8 which contain traditional modalities of cooperation. For extradition, dual criminality requirement applies’9 and requests are transmitted through diplomatic channels.6" The agreement is furthermore complemented by bilateral agreements concluded by the USA and each EU Member State. For MLA, traditional mechanisms also apply, with for instance requests being transferred via central authorities.61 These agreements were later complemented by a specific agreement, known as the Umbrella Agreement,62 which provides additional standards for the protection of personal data,63 and the two parties initiated in 2019 discussions on exchange of electronic evidence/14 Cooperation with the USA presents specificities linked to the importance of transatlantic cooperation in security matters and counter-terrorism, yet recent developments illustrate the importance of complying with some standards, in particular data protection standards,6’ and the CJEU has had opportunity to interpret these agreements.66
The EU has also been engaged in cooperation with Japan, with whom it signed in 2010 its first agreement on MLA.67 Resulting from ten years of negotiations, the text is the first that is not complemented by bilateral agreements concluded by Member States, and it is considered a more ambitious agreement.68 It still organises the transmission of requests through central authorities but provides a list of grounds for refusal of assistance, including notably situations in which the request concerns political offences, or the person has already been finally convicted or acquitted for the same facts (Article 11(1)). Dual criminality requirement may be waived, except when coercive measures in obtaining the evidence are required (Article 11 (2)).69
A last and weaker form of cooperation can be found in the partnerships the EU developed with Australia and Canada, which remain very basic. As an example, the EU—Australia Framework Agreement7" contains limited provisions on judicial cooperation in criminal matters, referring to the possibility of enhancing such cooperation on the basis of relevant international instruments, such as Conventions signed within the United Nations of the Council of Europe, and with the cooperation between relevant Australian authorities and Eurojust (Article 32(3)). These options can be disregarded — at least for the time being — as potential sources of inspiration for future EU—UK cooperation, especially in light of forms of cooperation developed with countries geographically closer to the EU.
The second option to be discussed is countries geographically close to the EU which do not participate in the Schengen area and with whom free movement of persons does not apply. Here we can for instance refer to the countries of the Western Balkans participating in the Stabilisation and Association Process. Judicial cooperation is developed on various bases: association agreements including programmatic provisions on judicial cooperation in criminal matters, regional instruments involving third countries and EU Member States, and/or bilateral instruments concluded by EU Member States. Most importantly, in its cooperation with these countries, the EU can rely on the conventions elaborated within the Council of Europe. The
European Convention of Human Rights (ECHR) is of fundamental importance, as its States parties are subject to the jurisdiction of the European Court of Human Rights (ECtHR), which can through its case law develop a level of protection of fundamental rights recognised as adequate by the EU, especially concerning procedural guarantees in criminal proceedings.71
In addition, specific judicial cooperation instruments are relevant: the 1959 European Convention on Mutual Assistance in Criminal Matters72 and its two additional protocols73 on the one hand, and the 1957 European Convention on Extradition,74 and its four additional protocols7’ on the other hand. Although they do not fully replicate the advanced forms of cooperation elaborated within the EU, they remain very important instruments for allowing cooperation in criminal matters with non-EU countries. The 2001 Additional Protocol amends the European Convention on Mutual Assistance and introduced new provisions on the temporary transfer of detained persons, on hearing by video and audio conference, and provided for direct exchanges of requests between judicial (or administrative) authorities, and the spontaneous exchange of information. In other terms, it introduced within the legal framework of the Council of Europe forms of cooperation that are possible between EU Member States, on the basis of the 2000 EU Convention on Mutual Assistance in Criminal Matters,'6 without nevertheless reaching the same intensity of cooperation as under the EIO.
Similarly, the 1957 European Convention on Extradition fails to offer a level of cooperation as advanced as the EAW. Under the Convention, the principle of dual criminality applies and there is no exception foreseen to it. Extradition shall be granted in respect of offences punishable under the laws of the requesting and requested Parties by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty (Article 2). The Convention does not apply to political offences (Article 3) and each Contracting State has the right to refuse extradition, including on the basis of a series of grounds for refusal (e.g. risk of violation of the principle of ne bis in idem — Article 9, etc.). Some of these features may prevent the execution of an extradition request or cause substantial delays, notably due to the involvement of central authorities and the political dimension in cross-border cooperation.
Last but not least, the EU has also elaborated specific forms of judicial cooperation in criminal matters with third countries which are part of the Schengen area and which accept free movement of persons. These countries, such as Norway, Iceland or Switzerland, are in a particular position. They participate in the Schengen acquis on judicial cooperation in criminal matters.' In addition, Iceland and Norway have concluded with the EU two specific agreements, which allow them to benefit from the closest forms of cooperation a non-EU Member State has obtained. First, a specific Convention on surrender procedures,78 provides for a regime close to the EAW. Although it foresees the possibility of reintroducing double criminality requirements, a higher number of grounds of refusals79 or the possibility for States to refuse the extradition of nationals,80 this agreement allows for smoother extradition procedures. Its entry into force was however complicated: signed in 2006, it only entered into force on 1 November 2019. The two countries also benefit from another Treaty through which certain provisions of the EU Convention on Mutual Assistance in Criminal Matters applies to their cooperation with EU Member States.81 This offers them an advantage as certain provisions of that Convention were borrowed for their insertion in the EIO Directive.82 However, such forms of advanced cooperation come with additional guarantees. Both texts also provide for specific political dispute settlement systems, under which the termination of the agreements may be decided.8’ They also contain a judicial review provision’ under which parties keep under constant review the development of the case law of the CJEU and the case of the competent national courts, and regularly exchange such case law.84
Cooperation with Eurojust
Cooperation with Eurojust is in a way easier to envisage, as the agency has, like its sister agency for police cooperation, Europol, long experience of cooperating with third countries.8’ The evolution of its legal framework, namely the adoption of the Eurojust Regulation in 2018,86 has modernised the legal framework regulating its external cooperation, without fundamentally changing its modalities.87
The most advanced form of cooperation is the posting of Eurojust’s liaison magistrates to third countries (Article 53), whose tasks shall include ‘any activity designed to encourage and accelerate all forms of judicial cooperation in criminal matters’. These magistrates would act for all EU Member States, which has important symbolic value and facilitates even further judicial cooperation with third countries, but this provision has not been used in practice yet.88
Cooperation can also take the form of cooperation agreements. They constitute one of the bases for the exchange of strategic and operational data with third countries. Under the Regulation, such transfer of data can take place on the basis of an adequacy decision of the Commission adopted in accordance with Directive 2016/680/EU;89 an international agreement concluded between the EU and that third country pursuant to Article 218 TFEU;90 or a cooperation agreement signed under the previous regime (Article 45 (1)). These cooperation agreements also permit the posting of Liaison Prosecutors at Eurojust, who have access to Eurojust’s operational tools and can initiate cases requiring coordinated cross-border prosecutions. As of 2020, Eurojust has concluded 12 cooperation agreements91 and six liaison prosecutors have been appointed.92 The countries with whom cooperation is the most advanced are those cooperating with the EU in the field of security on the basis of other instruments, among which we can find Schengen-associated countries, countries participating to the pre-accession process and the USA.
Finally, Eurojust can still assist third countries with judicial cooperation even in the absence of a cooperation agreement. The agency can coordinate, with the consent of the Member States concerned, the execution of requests for judicial cooperation issued by a third country where these requests require execution in at least two Member States as part of the same investigation (Article 54). The agency can also intervene to assist in a case involving one Member State and a third country when there is an essential interest in providing such assistance in a specific case (Article 3(5)). This type of ad hoc cooperation is facilitated by Eurojust’s network of 52 contact points, helping prosecutors to identify and contact the competent authorities in third 93 countries. ■
The discussions reveal that the external dimension of judicial cooperation in criminal matters has reached a certain maturity, marked by a diversity of cooperation mechanisms, not only within the EU, but also beyond. These precedents of cooperation result in a picture of concentric circles — the closer ties the third country has with the EU, the stronger cooperation is. These considerations are not necessarily limited strictly by geography, as illustrated by the close relationship developed with the USA. Yet the forms of cooperation that resemble the most the mechanisms provided under EU law were developed with countries with a particularly close relationship to the EU, being part of the Schengen area and accepting free movement of persons. They also become particularly relevant in the elaboration of the content of the future relationship between the EU and the UK in criminal matters. The question remains whether they will be a strict framework within which such cooperation will be developed; or whether new tailored-made forms of cooperation will be designed.