DAL REFERENDUM DEL REGNO UNITO DEL 23 GIUGNO 2016 ALL’ACCORDO SUGLI SCAMBI E LA COOPERAZIONE TRA L'UE E IL REGNO UNITO DEL 24 DICEMBRE 2020: STRUTTURA E CONTENUTI PRINCIPALI DELL'ACCORDO E DEL SUO "PILASTRO SICUREZZA", CON UN'ATTENZIONE SPECIFICA AD EUROPOL

Autore: Dott.ssa Laura De Rose, Vice direttore Foroeuropa

La Brexit avrà impiegato più di quattro anni per materializzarsi, dal referendum del 23 giugno 2016 nel Regno Unito fino alla tanto attesa conclusione del nuovo accordo di commercio e cooperazione UE-Regno Unito ("l'Accordo") il 24 dicembre 2020. Il "divorzio" diventerà definitivo a partire dal 1° gennaio 2021, quando scadrà il termine del cosiddetto periodo di transizione, iniziato il 1° febbraio 2020, e l'Accordo inizierà ad essere applicato. Le Parti hanno convenuto di applicare l’Accordo in via provvisoria dal 1° gennaio 2021 fino, al più tardi, il 28 febbraio 2021.

Nel frattempo, sono previste le seguenti fasi: adozione da parte del Consiglio dell'UE, all'unanimità, di una decisione che autorizza la firma dell'Accordo e la sua applicazione provvisoria; presentazione dell'accordo al Parlamento europeo in vista del consenso di quest'ultimo; e, come ultima fase, la decisione finale del Consiglio sulla conclusione dell'accordo.

Sebbene le ragioni e l'impatto di questo processo eccezionalmente lungo e complesso richiedano una valutazione approfondita da entrambe le parti, l'UE può certamente rallegrarsi dell'atteggiamento dei suoi 27 Stati Membri, poiché essi hanno fatto fronte comune e hanno affidato al negoziatore dell'UE il compito di rappresentare i loro interessi. Da questo punto di vista, l'Accordo concluso alla vigilia di Natale, il “regalo” che pochissimi consideravano possibile, è un risultato senza precedenti per l'UE, in quanto costituisce il primo vero esempio della capacità dell'Unione di agire come attore internazionale a nome di tutti i suoi Stati Membri.

“Possiamo finalmente lasciarci alle spalle la Brexit e guardare al futuro. L'Europa prosegue il suo cammino”, ha affermato la Presidente della Commissione Europea annunciando ai media la conclusione dell'Accordo. Tuttavia, non c'è certezza sull'efficacia dell'Accordo stesso, solo il tempo e la pratica potranno confermarlo.

Questa nota, in lingua inglese, intende delineare i contenuti principali dell'Accordo, con particolare attenzione al suo secondo "pilastro", quello dedicato alla Sicurezza. Il testo completo dell’Accordo può essere scaricato sur EUR-lex in Italiano e in tutte le altre 23 lingue ufficiali dell’UE (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2020.444.01.0014.01.ENG)

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From the 23 June 2016 United Kingdom (UK) referendum to the 24 December 2020 Trade and Cooperation Agreement: structure and main contents of the Agreement and of its ‘Security pillar’, with a specific focus on Europol

Brexit will have taken more than four years to materialise, from the 23 June 2016 UK Referendum until the long awaited conclusion of the new EU-UK Trade and Cooperation Agreement(‘the Agreement[1]’) on 24 December 2020. The ‘divorce’ will become final as of 1 January 2021, when the end of the so-called transition period, which started on 1 February 2020, will end and the Agreement will start to apply. The Parties agree to provisionally apply this Agreement from 1 January 2021 provided that prior to that date they have notified each other that their respective internal requirements and procedures necessary for provisional application have been completed. Provisional application shall cease on 28 February 2021 at the latest.

The following steps are planned in the meantime: adoption by the Council of the EU, by unanimity, of a decision authorising the signature of the Agreement and its provisional application; submission of the Agreement to the European Parliament with a view to the latter’s consent; and, as a last step, final Council decision on the conclusion of the Agreement.

While the reasons and the impact of this exceptionally long and complex process will require a thorough assessment by both parties, the EU may certainly rejoice at the attitude of its 27 Member States, as they have united in the face of Brexit and have been a cohesive force in support to the EU negotiator. From this standpoint, the Agreement concluded on Christmas Eve, the ‘gift’ that very few considered possible, is anunprecedented achievement for the EU, at any rate the first concrete example of the capacity of the Union to perform as a truly international actorwhile representing the interests of all its Member States.

“With Brexit behind us,we can look to the future. Europe is now moving on”, said the President of the European Commission while announcing the conclusion of the Agreement to the media. Yet, there is no certainty about the effectiveness of the Agreement itself, only time and practice will say.

This note intends to outline the main contents of the Agreement, with specific focus on its second ‘pillar’, the one devoted to Security.

Besides the aforementioned ‘pillar’ on Security, the Agreement includes two other ‘pillars’, namely:

• A Free Trade Agreement, which does not only cover trade in goods and services, but also a broad range of other areas, such as investments, competition, State aid, tax transparency, air and road transport, energy and sustainability, fisheries, data protection, and social security coordination; and
• A horizontal agreement on Governance, regulating howthe Agreement will be operated and controlled and how possible disputes will be settled and enforced.

Relating to Security, the Agreement establishes a framework for law enforcement and judicial cooperation in criminal and civil law matters. It also builds new operational capabilities, taking account of the fact that the UK, as a non-EU member outside of the Schengen area, will not have the same facilities as before.

While, further toits choice to leave the EU, the UK no longer participates in the EU agencies for police and judicial cooperation - Europol and Eurojust - and no longer has access to important EU databases such as SIS II -, the Agreement ensurestheUK’s continued cooperation with both Europol and Eurojust.

A Partnership Councilwill oversee the implementation of the Agreement. Comprised of representatives of the EU and the UK, the Partnership Council will meet in different configurations depending on the matter at hand.Relating to the ‘Security pillar’, the partnership Council will be assisted by the Specialised Committee on Law Enforcement and Judicial Cooperation.

We now turn to the structure and main contents of the ‘Security pillar’ of the Agreement, with a specific focus on Europol.

The ‘Security pillar’ is set out in Part Three of the Agreement: “Law enforcement and judicial cooperation in criminal matters” (pp. 300–381), whose objective is to provide for law enforcement and judicial cooperation between the Member States and Union institutions, bodies, offices and agencies, on the one side, and the UK, on the other side, in relation to the prevention, investigation, detection and prosecution of criminal offences and the prevention of and fight against money laundering and financing of terrorism. As such, this Party only applies to law enforcement and judicial cooperation in criminal matters taking place exclusively between the UK, on the one side, and the Union and the Member States, on the other side.

This Part includes 13 Titles, covering matters such as: exchangesof DNA, fingerprints and vehicle registration data (the so-called “Prüm decisions”); transfer and processing of Passenger Name Record (PNR) data; cooperation on operational information; cooperation with Europol and Eurojust; Surrender; mutual assistance; exchange of criminal record information; anti-money laundering and counter terrorist financing; freezing and confiscation;and a mechanism for dispute settlement.

Pursuant to the related ‘General Provisions’ (Title I), the cooperation provided for in this Part is based on the Parties’ long-standing respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals [including as set out in the European Convention on Human Rights], as well as on their long-standing commitment to ensuring a high level of protection of personal data.

The fundamental data protection principles are laid down under Article 4. Amongst others, the Parties shall process personal data lawfully and fairly in compliance with the principles of data minimisation, purpose limitation, accuracy and storage limitation, and data subjects shall be granted enforceable rights of access, rectification and erasure.

Title II establishes reciprocal cooperation between the competent law enforcement authorities of the UK, on the one side, and the Member States, on the other side, on the automated transfer of DNA profiles, dactyloscopic data and certain domestic vehicle registration data. The general implementing measures set out therein provide that States shall make all categories of data available for searching and comparison to the competent law enforcement authorities of other States under conditions equal to those under which they are available for searching and comparison by domestic competent law enforcement authorities.

Title III lays down rules under which PNR data may be transferred to, processed and used by the UK competent authority for flights between the Union and the United Kingdom, and establishes specific safeguards in that regard. In this context, this Title includes specific cooperation rules with Europol and Eurojust. For instance, the UK shall share with the latter, including at their request,all relevant and appropriate analytical information containing PNR data as soon as possible in specific cases where necessary to prevent, detect, investigate, or prosecute terrorism or serious crime. The exchange of the related information with Europol under this Article shall take place through the secure communication line to be established through specific arrangements between the UK and Europol. Specific provisions regulate, amongst others, the retention of PNR data by the UK, including arrangements for the masking out, deletion and review of PNR data; derogation procedures and related safeguards during the interim period; rules for the disclosure of PNR data within and outside the UK.

Title IV is central to the ‘Security pillar’, as it aims to ensure that the competent authorities of the UK and of the Member States are able to assist each other through the provision of relevant information for the purposes of a) preventing, investigating, detecting or prosecuting criminal offences;b) executing criminal penalties; c) safeguarding against, and preventing threats to public safety; andd) preventing and combating money laundering and terrorism financing. Information may be requested, provided spontaneously or in response to a request, subject to the conditions of the domestic law which applies to the providing competent authority and within the scope of its powers. Information may be provided via any appropriate communication channel, including the secure communication line for the purpose of provision of information through Europol. Further, this Agreement does not affect the operation or conclusion of bilateral agreements between the UK and Member States.

The conditions and modalities for the handling of requests for mutual assistance between the Parties are set out in Title VIII[2], including, amongst others, rules on time limits, the application of the nebis in idem principle, and the setting up of Joint Investigation Teams. This Title is without prejudice to the rules pertaining to the exchange of information extracted from the criminal record, which are laid down in Title IX.

Under Title VII, Part Three sets out a mechanism of surrender pursuant to arrest warrants, while providing that cooperation in this areashall be necessary and proportionate, on the basis of elements such as the rights of the requested person, the interests of the victims, the seriousness of the act, or the likely penalty. Regarding the scope of this mechanism, an arrest warrant may be issued for acts punishable by the law of the issuing State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences or detentionorders of at least four months. Contrary to the European Arrest Warrant[3], which has abolished the dual criminality requirement for the offences under scope,surrender under the Agreement is subject to the condition that the acts for which the arrest warrant has been issued constitute an offence under the law of the executing State. However, Art. 79(4) of Title VII provides that each Party may notify the Specialised Committee on Law Enforcement and Judicial Cooperation that, on the basis of reciprocity, and pursuant to specific conditions, the double criminality requirement will not be applied for the offences listed therein, which include serious organised crime and terrorism. Further, Title VII regulates, amongst others, the grounds for non-execution of the arrest warrant, the conditions for the application of the nationality exception, the content and form of the arrest warrant, the transmission modalities, the procedures pertaining to the actual surrender, the settlement of multiple arrest warrants and the possible Eurojust’s role thereof, as well asthe applicable time limits for the surrender of the requested person.

Part Three dedicates a specific Title (XI) to freezing and confiscation, with a view to ensuring the widest possible cooperation for the purposes of investigations and proceedings aimed at the freezing of property with a view to subsequent confiscation thereof and investigations and proceedings aimed at the confiscation of property within the framework of proceedings in criminal matters. Related provisions match the mutual recognition principle: “the requested State shall ensure that the requests coming from another State to identify, trace, freeze or seize the proceeds and instrumentalities, receive the same priority as those made in the framework of domestic procedures” and “[…] the requested State shall recognise any decision issued by a judicial authority taken in the requesting State regarding rights claimed by third parties”. Furthermore, when requesting confiscation, investigative assistance and provisional measures for the purposes of confiscation, the requesting State shall ensure that the principles of necessity and proportionality are respected. Amongst others, this Title also includes provisions on the requests for information on bank accounts, safe deposit boxes, banking transactions; the obligation of the requested State to take conservative measures and/or to confiscate; grounds for refusal; form and content of the requests; arrangements for dealing with defective or plural requests; and the settlement of costs.

The cooperation between Europol and the UK is regulated under Title V.

As specifically outlined in Article 46, the objective of this Title is to establish cooperative relations between Europol and the competent authorities of the UK in order to support and strengthen the action by the Member States and the UK, as well as their mutual cooperation in preventing and combating serious crime, terrorism and forms of crime which affect a common interest covered by a Union policy. This cooperation relates to the forms of crime listed in Annex 3, which are the forms of crime for which Europol is competent, including related criminal offences.

In addition to the exchange of personal data [under the conditions laid down in this Title and in accordance with the tasks of Europol], the cooperation may include elements such as the exchange of specialist knowledge; general situation reports; results of strategic analysis; information on crime prevention methods;  participation in training activities; and the provision of advice and support in individual criminal investigations as well as operational cooperation.

Further, the UK shall designate a national contact point to act as the central point of contact between Europol and the UK competent authorities. The national contact point shall also be the central point of contact in respect of review, correction and deletion of personal data. Besides, the Parties may second liaison officers to each other. In particular, the number of liaison officers, the details of their tasks, their rights and obligations and the costs involved shall be governed by working arrangements concluded between Europol and the UK. Exchanges of information, including personal data, are regulated in detail. Amongst others, such rules provide that:

• The competent authorities shall clearly indicate, at the latest at the moment of transferring personal data, the specific purpose or purposes for which the personal data are being transferred;
• The competent authorities receiving the personal data shall give an undertaking stating that such data will be processed only for the purpose for which they were transferred.
• The transferring competent authority may indicate any restriction on access and/or useof the related persona data, while the receiving competent authority shall comply with any restriction on access or further use of the personal data indicated by the transferring competent authority.
• The transfer of special categories of personal data - for instance in respect of victims, witnesses,or minors - shall be prohibited unless such transfer is strictly necessary and proportionate.

Moreover, the Parties shall endeavour to cooperate with a view to facilitating the reciprocal flow of personal data. To this end, they shall consider the incorporation of any relevant new processes and technical developments. When transferring information, including personal data, each party shall indicate the reliability of the source and the accuracy of the information.

Upcoming working and administrative arrangements between Europol and the UK shall cover the necessary technical and organisational measures to ensure the security of the information exchange, including the establishment, implementation and operation of a secure communication line. Such arrangements shall also regulate the exchange and protection of classified and sensitive non-classified information between the Parties.

Article 59 prescribes that the details of the cooperation between Europol and the UK shall be established by means of working and administrative arrangements in accordance with Articles23(4)[4]and 25(1)[5] of the Europol Regulation.

Subject to a decision by Europol’s Management Board, such arrangements shall include provisions allowing for, amongst others: consultations between Europol and one or more representatives of the national contact point of the United Kingdom on policy issues and matters of common interest; the participation of one or more UK representatives as observer/s  in specific meetings of the Heads of Europol National Units; the association of one or more UK representatives to operational analysis projects; the specification of liaison officers’ tasks, their rights and obligations and the costs involved.The substance of working and administrative arrangements may be set out together in one document.

Finally, Title XII regulates the review, evaluation, termination, and suspension of the Part or any Title there of, while Title XIII establishes a dedicated dispute settlement. Amongst others, the Agreement foresees that such cooperation may be suspended in case of violations by the UK of its commitment for continued adherence to the European Convention of Human Rights and its domestic enforcement.

Each Part of the Agreement is complemented with various thematic Annexes. Furthermore, the Agreement includes three Protocols, respectively on 1) administrative cooperation and combating fraud in the field of value added tax and mutual assistance for the recovery of claims relating to taxes and duties; 2) mutual administrative assistance in customs matters; 3) social security coordination.

[1] “Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, on the other part”, Official Journal of the European Union L 444/14, 31.12.2020.

[2] The legal basis of mutual assistance between the UK and the EU is the European Convention on Mutual Assistance in Criminal Matters, of 20 April 1959, as well as the First and Second Additional Protocols of 1978 and 2001 respectively.

[3] Framework Decision 2002/584/JHA of 13 June 2002.

[4] Pursuant to Article 23(4), Europol may conclude working arrangements with third parties. Such working arrangements shall not allow the exchange of personal data and shall not bind the Union or its Member States.

[5] Pursuant to Article 25(1), Europol may transfer personal data to an authority of a third country or to an international organisation on the basis of i) an ‘adequacy decision by the Commission finding that the concerned third party ensures an adequate level of data protection, or ii) an international agreement concluded between the Union and that third country […] pursuant to Article 218 of the Treaty on the Functioning of the EU adducing adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals.