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Documents considered by the Committee on 5 June 2019 Contents

16Eurojust: Agreement on Criminal Justice Cooperation with Denmark

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; drawn to the attention of the Home Affairs Committee and the Justice Committee

Document details

Proposed Council Implementing Decision approving the conclusion by Eurojust of the Agreement on Criminal Justice Cooperation between Eurojust and the Kingdom of Denmark

Legal base

Article 26a(2) of Council Decision 2002/187/JHA setting up Eurojust, QMV

Department

Home Office

Document Number

(40530), 7770/19,—

Summary and Committee’s conclusions

16.1The EU Agency for Criminal Justice Cooperation, “Eurojust”, was established in 2002. Operating alongside Europol in The Hague, Eurojust helps to coordinate the work of national investigating and prosecuting authorities in combating serious cross-border crime. All EU Member States currently participate in Eurojust. Denmark will cease to do so when a new Eurojust Regulation takes effect later this year (on 12 December 2019).151 Denmark cannot participate in the new Regulation as it has an opt-out of all EU justice and home affairs legislation adopted after the Lisbon Treaty entered into force on 1 December 2009. Although entitled to participate, the UK and Ireland chose not to do so when the European Commission first published its proposal for a Regulation in 2013. Both Governments have since indicated that they intend to participate, using the powers contained in the Title V (justice and home affairs) Protocol to opt in following the formal adoption of the Regulation in November 2018.152

16.2The new Eurojust Regulation will repeal the 2002 Council Decision setting up Eurojust for EU Member States participating in it but includes a provision “grandfathering” (maintaining the legal effects of) agreements concluded between Eurojust and any third (non-EU) countries before 12 December 2019.153 These agreements are based on provisions in the 2002 Council Decision authorising Eurojust to negotiate and conclude arrangements with third countries providing for the exchange of personal data and the secondment of liaison officers, subject to formal approval by the Council.154 The Governments of Ireland and the UK have both indicated that they intend to participate, using the powers contained in the Title V (justice and home affairs) Protocol to opt in after the formal adoption of the proposal.

16.3The proposed Council Implementing Decision reflects the shared interest of Eurojust and Denmark in maintaining “close and dynamic cooperation” and avoiding an operational gap in tackling serious crime within the EU once the new Eurojust Regulation takes effect and Denmark is unable to participate in Eurojust on the same basis as other EU Member States. It would treat Denmark as a third country and give the Council’s approval to the conclusion of an Agreement on Criminal Justice Cooperation between Eurojust and Denmark. The Agreement establishes the legal framework for Denmark’s future cooperation with Eurojust from 12 December 2019 onwards. It would allow Denmark to continue to be represented at Eurojust, including within the Eurojust College (Eurojust’s decision making body), but in an observer capacity without voting rights. It also would also allow Eurojust and Denmark to exchange information, including personal data.

16.4The Agreement seeks to ensure cooperation “at a level at least equivalent” to that enjoyed by third countries that have concluded similar agreements with Eurojust.155 The level of cooperation is intended to reflect Denmark’s “specific situation” as a member of the European Union and a full participant in the Schengen rule book, giving its Representative to Eurojust a more extensive role in meetings of the Eurojust College concerning strategic and operational matters than other third country prosecutors seconded to Eurojust and its Parliament greater involvement in overseeing the work of Eurojust.156 Other factors underpinning Denmark’s enhanced status in Eurojust are its:

16.5The Agreement will enter into force on 11 December 2019. It expressly provides that its application is conditional on Denmark remaining a member of Schengen and continuing to apply the Schengen rule book.

16.6In his Explanatory Memorandum of 9 May 2019, the Minister for Policing and the Fire Service (Rt Hon. Nick Hurd MP) notes that “Eurojust is usually only permitted to reach agreements with non-Member States but it has been agreed exceptionally that Denmark can be treated as such in this context to ensure it retains a relationship with Eurojust”. He welcomes the continuation of cooperation between Eurojust and Denmark which would otherwise cease when the new Eurojust Regulation takes effect later in the year. He observes:

The Denmark Agreement […] provides bespoke arrangements which are different to those for other Member States and those hitherto available to third countries. As the Prime Minister has been clear, the UK is seeking a future relationship with the EU on police and criminal justice cooperation which reflects the unique position of the UK and our ability to contribute to European security.

Our Conclusions

16.7The Agreement on Criminal Justice Cooperation between Eurojust and Denmark follows the model of an earlier Agreement on Operational and Strategic Cooperation between Europol and Denmark. We questioned then whether there was a legally robust case for Denmark’s cooperation with Europol to be based on a third country agreement.157 The latest Agreement does little to allay our concerns. There is an evident contradiction in Denmark continuing to be bound as a Member State by the 2002 Council Decision establishing Eurojust whilst simultaneously being treated as a third (non-EU) country for the purpose of concluding an agreement with Eurojust under the same Council Decision. Despite this, the Minister makes clear that the Government supports continued practical law enforcement cooperation between Denmark and Eurojust. We therefore infer that the Government does not intend to voice any objection to the proposed Council Implementing Decision approving the Agreement.

16.8From a Brexit perspective, the unorthodox approach taken by the Council in forging a new relationship with Denmark on law enforcement and judicial cooperation might suggest a willingness on the EU’s part to negotiate bespoke arrangements with the UK post-exit to maintain a high level of operational cooperation in investigating and prosecuting serious international crime. The Minister is nonetheless cautious, describing the Agreement between Eurojust and Denmark as “a further model for cooperation” without presenting it as a likely or possible model for the UK once it leaves the EU and becomes a third country. This caution is well-grounded, given that the enhanced role envisaged for Denmark within Eurojust (and also in Europol) depends on a series of requirements, not least continued membership of the EU, full participation in Schengen and recognition of the jurisdiction of the EU Court of Justice, which the UK will be unable or the Government unwilling to meet following its exit from the EU.

16.9We are content to clear the proposed Council Implementing Decision from scrutiny so that the Government, should it so wish, can support its adoption and ensure continued cooperation between Denmark and Eurojust when the new Eurojust Regulation takes effect later this year. We understand that the EU will not enter into negotiations on the terms of any future security cooperation agreement until the UK has left the EU. We reiterate our interest in receiving regular updates on progress once negotiations are underway. Meanwhile, we draw this chapter to the attention of the Home Affairs Committee and the Justice Committee.

Full details of the documents

Proposed Council Implementing Decision approving the conclusion by Eurojust of the Agreement on Criminal Justice Cooperation between Eurojust and the Kingdom of Denmark: (40530), 7770/19,—.

Previous Committee Reports

None on this document but see our earlier Reports on the Government’s decision to opt into the 2018 Eurojust Regulation: Forty-eighth Report HC 301–xlvii (2017–19), chapter 1 (12 December 2018) and Fifty-second Report HC 301–li (2017–19), chapter 7 (23 January 2019).

151 Regulation (EU) 2018/1727.

152 European Committee B, Eurojust, 14 January 2019, col 1 and the press release of 7 May 2019 issued by the Irish Government.

153 Article 56(2)(b) of the new Eurojust Regulation.

154 See Article 26a(2) of Council Decision 2002/187/JHA as amended by Council Decision 2009/426/JHA

155 Eurojust has an extensive network of contact points in 44 countries outside the EU, has concluded ten cooperation agreements which provide for the exchange of information (including personal data), and hosts liaison officers from six non-EU countries. For further details, see the Eurojust website.

156 The Agreement would require Eurojust to send its annual report to the Danish Parliament for consideration as well as other information on its activities.

157 See our Thirty-second Report of Session 2016–17, HC 71–xxx, chapter 16 (22 February 2017), Thirty-fifth Report of Session 2016–17, HC 71–xxxiii, chapter 12 (15 March 2017) and Thirty-ninth Report of Session 2016–17, HC 71–xxxvi, chapter 8 (19 April 2017).



Published: 11 June 2019