Ongoing cooperation in criminal matters

Articles 58-61 set out the following proposals, applying both in the UK and in the EU Member States in situations involving the UK.

Under Article 58(1), currently applicable EU law will continue to apply with respect to the following measures, where appropriate, if initiated by the relevant competent authorities before the end of the transition period:

  • European Arrest Warrants 31
  • freezing orders
  • the mutual recognition of financial penalties
  • confiscation orders
  • prisoner transfers
  • criminal records
  • requests for information about convictions. The 15 March draft
  • European Supervision Orders
  • Europan Protection Orders
  • European Investigation Orders
  • Joint Investigation Teams

The 15 March draft inserted a new paragraph 1(a) to Article 58, providing that the Convention on Mutual Assistance in Criminal Matters and the associated Protocol should apply to mutual legal assistance requests received before the end of the transition period.

Regarding ongoing law enforcement cooperation, police cooperation and exchange of information, Article 59 provides that:

  • the existing Schengen Implementing Convention and TEU provisions on mutual assistance and cooperation will continue to apply to any requests for cross-border surveillance and cooperation received before the end of the transition period.
  • existing measures will also cover:

─ the exchange of information and intelligence between law enforcement agencies before the end of the transition period, and the exchange of supplementary information where there was a hit before the end of the transition period on an alert issued in the second generation Schengen Information System (SIS II);

─ requests made by Financial Intelligence Units and Asset Recovery Offices;

─ requests in relation to the use of passenger name record (PNR) data received during the transition period.

The UK Position

On police and judicial cooperation in criminal matters, the UK’s Technical Note stresses that the UK and the EU “broadly agree on the principle” that ongoing cooperation procedures should be completed “under Union law” if past a certain threshold. The UK’s approach sets out a desire for a “clear process for cases already underway” at the end of the transition period, and would like “certainty” in this area.

Articles 58 – 61 of the draft WA may provide such certainty, in that they suggest that all police and judicial cooperation in criminal matters commenced before the end of the transition period continues as set out in relevant EU laws. This appears to address the UK concerns.

Generally, the UK Government’s position is as set out in its Security, law enforcement and criminal justice – a future partnership paper of 18 September 2017: “the UK has ambitions for a deep and special future partnership in this area”, and consequently anticipates that the above provisions in the draft WA will generally be superseded by the  ‘future partnership’ agreement.

Ongoing judicial cooperation in civil and commercial matters

Provisions in the draft WA

Articles 62 – 65 set out proposals for regulating ongoing judicial cooperation in non-criminal matters.

In the UK, the relevant EU laws covering contracts and damages in noncontractual matters – known as the Rome I and II Regulations – will apply to all contracts concluded and events giving rise to damage that has taken place before the end of the transition period (Article 62).

In the UK and in the EU Member States, in those situations involving the UK, all legal proceedings commenced before the end of the transition period will be completed in line with relevant applicable EU law concerning jurisdiction and the mutual recognition of judicial decisions (Article 63).

EU law will also continue to apply to the recognition and enforcement of all legally binding decisions taken before the end of the transition period, and to all requests made by relevant authorities before the end of the transition period as part of ongoing judicial cooperation procedures (Article 64).

EU laws on legal aid and mediation agreements will also apply to all requests for legal aid and requests/orders for mediation received before the end of the transition period (Article 65).

In the 19 March draft, Article 62 on contractual and non-contractual matters, Article 64 on ongoing judicial cooperation procedures, and Article 65 covering legal aid and mediation agreements are colour coded green.

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