12 January 2021/
By John Bell
The clock is no longer ticking. As of 1 January 2021, the EU-UK Trade and Cooperation Agreement (TCA) is provisionally applied, heralding a new era for EU-UK relations. In addition to the widely reported provisions on tariffs, fair competition and fishing, Part 3 of the TCA contains crucial provisions on law enforcement and criminal justice cooperation, designed to assuage the impact of Brexit on the security of UK and EU nationals. Notably, it creates an extradition surrender mechanism, which has been described as ‘unprecedented for a non-Schengen third country.’ With the exception of its governance and human rights provisions, it is almost a carbon copy of the EU-Norway and Iceland Surrender Agreement.
It is no secret that governance and human rights were constant stumbling blocks to an agreement on law enforcement and criminal justice cooperation. In the following, I will consider the compromises revealed by Part 3 of the TCA on bespoke governance mechanisms and ECHR conditionality, and their implications for the new surrender mechanism.
1. Governance: the institutional structure of TCA and the role of the Partnership Council
a) The Partnership Council and the Specialised Committee on Law Enforcement and Judicial Cooperation
Article INST.1 of the TCA establishes a Partnership Council (PC), co-chaired at ministerial level by a member of the European Commission, and a member of the UK Government, with an annual meeting. The PC oversees the attainment of the objectives of the TCA, supervising and facilitating its interpretation and application. Either the UK or EU may refer to the PC ‘any’ issue relating to the implementation, application and interpretation of theTCA. Moreover, the PC has the power to make binding decisions where provided for in the TCA, as well as non-binding recommendations, and amendments to TCA itself. Article INST.2(1)(r) establishes a Specialised Committee on Law Enforcement and Judicial Cooperation (Specialised Committee) to ‘address matters’ covered by Part 3 of the TCA. The Specialised Committee has a key role in the governance of Part 3 of the TCA, with the power to recommend joint interpretations and actions to the PC in the event of the suspension of Part 3 of the TCA (Article LAW.OTHER.137(7)), as well as the power to take decisions to conclude cooperation, in the event of the termination of Part 3 of the TCA (Article LAW.OTHER.136(3)). It also has various discrete powers to receive notifications from the UK and EU in relation to the surrender mechanism.
b) Principles of interpretation in the TCA: the role of public international law
Notably, there is no role for the CJEU in the institutional structure of the TCA, and it has been argued that TCA is not EU law. Article COMPROV.13 of the TCA provides that it is to be interpreted in accordance with customary rules of public international law, such as those codified in the Vienna Convention on the Law of Treaties. Two revealing articles, each commencing with the words ‘for greater certainty,’ make clear that the TCA does not create an obligation to interpret its provisions in accordance with UK law or EU law (Article COMPROV.13(2)), and an interpretation of the TCA given by a UK court or the CJEU shall not be binding on each other (Article COMPROV. 13(3)).
This is in contrast to Article COMPROV.14 of the original EU draft treaty, which provided for concepts of EU law to be interpreted in accordance with CJEU case law. Although the fact that this clause did not make it into the TCA can be attributed to the UK’s ‘red line’ on the CJEU, the autonomy of the EU legal order is also jealously guarded, as demonstrated by Opinion 2/13. It is noteworthy that Article COMPROV.15 on taking into account WTO case law equally did not make it into the TCA.
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