Brexit Preparedness seminar on Consular Protection

Council Working Party

(Article 50 Format)

20 December 2018

Consular protection – basic provisions

An EU citizen is entitled to consular protection from a consular representation of a Member State in

a third country:

• if the Member State of which she/he is a national does not have a consular representation in

that country or if the embassy is unable for any reasons to provide for assistance, and

• under the same conditions as nationals of the Member State from which they seek assistance

(Consular Protection Directive 2015/637)

Consular protection – consequences of no deal

In case of no deal:

• EU citizens will no longer be entitled to request assistance from UK consular

representations in third countries under EU law

• UK nationals will no longer be entitled to request assistance from EU27 consular

representations in third countries under EU law

• UK can no longer be the Chair for local EU consular cooperation networks or Lead

State for leading the assistance of unrepresented citizens during crises

What is being done to address these issues?

• Preparedness actions:

• No specific EU measures are necessary

• Member States should inform their citizens travelling to third countries where they

do not have a consular representation that as of the withdrawal date they are no

longer entitled to assistance from UK consular representations

• Where the UK is currently the Chair for local EU consular cooperation network or

Lead State for leading the assistance of unrepresented citizens during crises,

another Member State could take this role

Consular protection - Background and reference information

Brexit preparedness notice on travelling (point 7.6):

• https://ec.europa.eu/info/sites/info/files/brexit_files/info_site/travelling.pdf

Brexit Preparedness seminar on police and judicial cooperation in criminal matters

Council Working Party

(Article 50 Format)

20 December 2018

No deal scenario

• UK becomes a third country on 30/03/2019

• EU acquis ceases to apply to UK; no transition period and no specific conditions for UK

• EU legal bases no longer applicable to the ongoing procedures

• UK to be disconnected from all networks/information • systems/databases at withdrawal date (29/03/2019 midnight)

• Contingency – fall-back instruments and unilateral measures to mitigate the negative impact

• Aim of contingency is not to replicate status quo

Exchange of security relevant data (1)Disconnection & stock of data

• What is being done?• Mapping of systems/databases/networks; planning and

preparation for disconnection• Mapping of fall-backs (multilateral international instruments)

• Disconnection of UK from EU systems, databases and networks at withdrawal

• In the area of security and criminal law: SIS II, Europol Information System, Eurodac, Eurojust, ECRIS, EMCDDA, and Prüm (in case UK gets connected before withdrawal)

Exchange of security relevant data (2)Disconnection & stock of data

• UK data remaining in EU systems, databases, networks – no general obligation to delete the data, but:

• the UK may request to remove the data, if owner of the data

• personal data protection rules apply to personal data – case by case analysis to determine if further storage and processing is possible in line with EU data protection rules

• Specific case: SIS alerts – law enforcement action based on non-updated data would involve serious risk to fundamental rights

• Therefore, UK SIS alerts need to be deleted; eu-LISA is preparing for the removal

UK SIS alerts need to be removed

Exchange of security relevant data (3)Disconnection & stock of data

• MS data in UK systems: as of the date of withdrawal, UK’s national data protection rules will apply

• Pending exchanges based on EU acquis and not finalized by the withdrawal date are discontinued

• Member States are advised to:• Finalise pending exchanges before withdrawal date• Examine if an alternative framework (international law, national law) may be

used; a valid legal basis is a prerequisite to process data (Article 8 Police Directive)

• Reach out to all concerned law enforcement & judicial authorities to inform them

Europol

• UK no longer participates in Europol and is to be treated like a third country with no operational agreement; exchanges possible on an ad-hoc basis

• Europol can continue to receive data from UK (Articles 17 & 23 Europol Regulation)

• Transfer of non-personal data to UK possible under Article 23

• No systematic transfer of personal data to UK possible, but:

• Transfers on a case-by-case basis can be authorised by the executive director (Article 25(5))

• Sets of transfers can be authorised by Management Board in agreement with EDPS for a period of one year (Article 25(6)); this can be renewed

• EU Policy cycle - UK may no longer be in the lead (driver or co-driver) for EU policy cycle priorities (applies also in transition); Member States need to replace the UK by 29 March 2019

Operational police cooperation

• Operational cross-border cooperation based on EU law discontinues

• Operations to be finalised and planned in advance taking withdrawal date into account

• Alternative framework – Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters from 2001 (CETS 182)

Fall-backs

EU instrument Possible fall-back

SIS System of Interpol notices

PNR None, but:– Directive 2016/681 applies to flights coming into EU from UK- transfers to UK PIU possible on a case-by-case basis (Article 11)

Europol Cooperation with UK as third country + Interpol

Swedish Initiative Interpol; existing bilateral channels

Fall-backs

EU instrument Possible fall-back

Eurodac None; UK not part of Dublin system anymore

Prüm UK not connected yet; no fall-back

FIU Financial Action Task Force (FATF), Council of Europe Warsaw Convention (CETS 198) and Egmont Secure Web

ARO Camden Asset Recovery Inter-agency Network (CARIN)

EMCDDA United Nations Office for Drugs and Crime (UNODC)

Judicial cooperation in criminal matters (1)

EU instruments on judicial cooperation in criminal matters

Ex: European Arrest Warrant, transfer of prisoners, Supervision orders, freezing and confiscations, European Investigation Order, joint investigation teams, ECRIS requests

EU law not applicable after the withdrawal date

- Handling of ongoing procedures?

- Fall-back for cooperation requests introduced after the withdrawal date?

- ECRIS – see slides 8-10

Judicial cooperation in criminal matters (2)

The special case of ongoing proceedings and pending requests

• EU law no longer applies

• What to do? Finalise/continue/discontinue cooperation?• This is a matter for national law, in the light of

applicable international law

Judicial cooperation in criminal matters (3)- legal framework after withdrawal date

Fall-back

• National law

• International Conventions (in particular from the Council of Europe on extradition, mutual legal assistance, confiscation, transfer of prisoners)

• N.B. previous bilateral agreements do not revive

Fall-back CoE instruments for EU27 and UK (4)EU instrument Possible fall-back: CoE conventions and protocols

European Arrest Warrant

CoE Convention on Extradition4 protocols (3 ratified by UK, limited ratification by EU27 MS ofall protocols)

Mutual Legal Assistance

CoE Convention on Mutual Assistance in Criminal Matters(3 protocols ratified by UK, 2nd and 3rd not by all EU27).CoE Convention on Cybercrime (Ratified by UK and 25 of EU27 MS)

European Freezingand Confiscation Order

CoE Convention on Laundering, search, seizure andconfiscation of the proceeds of crimeCoE Convention on Laundering, Search, Seizure andConfiscation of the Proceeds from Crime and on the Financingof Terrorism (ratified by UK, but only 17 of EU27 MS)

Transfer of Prisoners

CoE Convention on the transfer of sentenced personsTwo protocols (1 ratified by UK, 24 of EU27 MS)

ECRIS CoE Convention on Mutual Assistance in Criminal Matters

Joint InvestigationTeams

2nd Protocol CoE Convention on Mutual Assistance in Criminal Matters (ratified by UK, 23 of EU27 MS)

Eurojust and EJN Cooperation with UK as third country

Judicial cooperation in criminal matters (5) - EUROJUST

• No participation in EUROJUST – UK is a third country (no national member, no participation in governance or operational cooperation)

• No access to Case Management System

• No exchange of operational personal data

• Possible future cooperation with UK: as for other third countries, according to EUROJUST’s legal framework.

Judicial cooperation in criminal matters (6)– What is being done to address the issues

• Member States: • Make an inventory of and assess impact on pending and ongoing cooperation

procedures and ECRIS requests• Assess fall-back, national and applicable international legal framework• Assess need for ratification of existing international conventions

• EU: Prepare disconnection from the ECRIS system

• Stakeholders: Eurojust and European Judicial Network preparations

Data protection (1) Key issues

• Transfers of personal data from the EU to the UK will becomesubject to the rules in Chapter V of the Law enforcementDirective (LED) and Chapter V of the Europol Regulation oninternational transfers

• For personal data originating from the UK that would be kept inEU databases but no longer updated, data quality issues couldarise

Data protection (2)Law Enforcement Directive (LED) – Toolbox for transfers

• LED provides a broad toolbox for data transfers to third countries, such as:

• Legally binding instrument providing appropriate safeguards

• Self-assessment by transferring authority that appropriate safeguards exist;requires information of DPA about categories of data

• In addition, LED provides direct statutory bases for data transfers (so-calledderogations), e.g. on the following grounds:

• Protection of vital interests

• Prevention of an immediate or serious threat to public security of a MS/thirdcountry

• In an individual case for the purposes of criminal law enforcement, including thesafeguarding against and the prevention of threats to public security, unlessfundamental rights of individual override public interest (balancing)

Data protection (3) Law Enforcement Directive – General conditions for transfers

LED imposes a number of general conditions for any data transfer:

• Necessary for the purpose of fighting crime (Article 1(1))

• Transfers only to competent law enforcement authorities

• In case of personal data originating from another Member State, need for priorauthorisation from that Member State (unless urgency)

• Documentation of transfers (Art. 37(2), 38(3), 39(4))

• Transfers must not result in undermining the level of protection ensured by the LED

Same conditions apply to so-called onward transfers, which in addition must be subject toprior authorisation by transferring authority/another competent authority of same MS

Data protection (4)- What additional action is required?

Stakeholders:

• Agencies: Prepare for disconnection and change of rules for data transfer to UK

Member States:

• Try to finalize ongoing procedures before withdrawal date

• Consider whether to request the UK to remove the data from its systems

• Work together with eu-LISA on the disconnection and further processing/deletion of UK data

• Sensitize law enforcement and border authorities on UK alerts in SIS

Background and reference information

• Brexit preparedness notice on data protection

https://ec.europa.eu/info/sites/info/files/file_import/data_protection_en.pdf

Brexit Preparedness seminar on International Agreements

Council Working Party

(Article 50 Format)

20 December 2018

International agreements

I. International agreements forming part of “Union law”cf. Art. 2 (a) (iv) and (v) of the Withdrawal Agreement

II. Bilateral agreements between a Member State and UKexisting bilateral agreements ; possible future bilateral agreements

Overview

I. International agreements forming part of Union law

In case of no deal:

Pursuant to Art. 50(3) TEU, ‘the Treaties’, which includes internationalagreements forming part of Union law, ‘shall cease to apply’ in and to theUK

Key questions:

1. What international law instruments cease to apply? 2. What does ‘cease to apply’ mean for the UK ?

3. What consequences for the EU, for the 27 Member States ?

4. Any action to be undertaken ?

1 What international instruments are considered part of Union law?

- The international agreements concluded by the Union and/or Euratom(or concluded on their behalf by the Member States) be it as ‘Union-only’ or as ‘mixed agreements’

- a fortiori those only signed or provisionally applied

- including MoUs and soft law instruments

- including decisions of bodies set up by these agreements

- The agreements concluded between the Member States “in their capacity as Member States of the Union”

- as well as acts of the Representatives of the Governments of Member States “meeting within the Council”

2 What consequences for the UK ? (1)

Art. 50(3) TEU (‘.. cease to apply ..’) regulates only the fate under Union law of these

agreements with regard to the UK, not under international law in general.

Therefore a distinction has to be made between :

- agreements which were binding upon the UK only because it was a Member State:

- all agreements concluded only by the Union (and/or Euratom)

- “bilateral” mixed agreements (e.g. association and cooperation agreements)

- agreements between the Member States (e.g. Internal Agreement on the financing

of the EDF)

- agreements to which the UK is also a party in its own right,

namely the “multilateral” mixed agreements

WTO agreements, Council of Europe agreements, Energy Community

2 What consequences for the UK? (2)

A) agreements which were binding upon the UK only because it was an EU Member State

- cease to be binding upon the UK (Art. 216(2) TFEU ceases to apply)

- generate no rights anymore for the UK, its residents, its companies

- for “mixed” agreements, the UK will not anymore be a ‘High Contracting Party’

This is without prejudice to Art 70(1) Vienna Convention on the law of treaties : ‘ … the termination of a treaty .. (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination’.

2 What consequences for the UK? (3)

B) agreements to which the UK is a party in its own right continue to applyto the UK under international law

- the UK becomes internationally responsible for the whole agreement(i.e. also for the part which was under EU exclusive competence)

- UK is not covered anymore by ‘REIO’ (Regional Economic Integration Organisation) or‘disconnection’ clauses

Note : global commitments (eg WTO schedules) to be divided between EU and UK; possibly through negotiation with the other parties

3 What consequences for the EU, for the 27 Member States ? (1)

A) agreements which were binding upon the UK only because it was an EU Member State

- UK simply ‘drops out’

- ongoing ratification processes : no need anymore for UK ratification.

Note : European Council Guidelines of 29 April 2017 stated : “13. .. The Union will continue to have its rights and obligations in relation to international agreements .. “.

3 What consequences for the EU, for the 27 Member States? (2)

B) agreements to which the UK is a party in its own right

(mixed ‘multilateral’ agreements)

- govern henceforth relations between UK and EU/27 Member States in the area concerned, instead of Union law

- REIO and disconnection clauses cease to apply in relation to UK

- EU has no international responsibility anymore for UK (e.g. trade disputes)

Note : global commitments (e.g. WTO schedules) to be divided between EU and UK; possibly through negotiation with the other parties

4 Any action to be undertaken ?

In principle no action required (no denunciation, no termination, no succession): the consequences are automatic consequences of the withdrawal pursuant to Art. 50 TEU.

The Commission envisages to send, upon Brexit, to all third countries and relevant international organisations a ‘Note Verbale’ informing them officially of the withdrawal of the UK, and the consequences for international agreements

II. Bilateral agreements between a Member State and the UK

Bilateral agreements : including administrative arrangements, MoUs, intergovernmental cooperation in other international fora, etc.

A distinction needs to be made between

I Existing bilateral agreements

- A) on matters outside EU law

- B) on matters governed in the meantime by EU law

- C) concluded pursuant to EU law

II Possible future bilateral agreements

1 Existing bilateral agreements (1)

A. Existing bilateral agreements on matters outside EU law can continue to be applied.

More generally: bilateral relations, including as the case may be in international organisations remain unaffected by Brexit.

1 Existing bilateral agreements (2)

B. Existing bilateral agreements on subject-matters governed in the meantime by EU law must be considered terminated

Application of Art. 59(1) Vienna Convention on the law of treaties (VCLT): no revival

Exception:

- where EU law expressly foresees or allows the continuation of bilateral agreements

- no termination of provisions not covered by EU law, if they are separable (Art. 44 VCLT), i.e. provisions which, lawfully, continued to be applied

1 Existing bilateral agreements (3)

C. Existing bilateral agreements concluded pursuant to EU law must be considered terminated, as the basis for their existence has ceased to apply.

2 Possible future bilateral agreements:Member State - UK

The conclusion of new bilateral agreements with the UK (including the agreement to apply again a bilateral agreement which has to be considered terminated, above 1B, 1C) is, in principle, possible unless this is contrary to EU law.

In other words :

- not in areas of EU exclusive competence (Art. 3(1) TFEU), and

- not if the agreement might affect common rules or alter their scope (Art. 3(2) TFEU),

unless ‘so empowered by the Union’ (Art. 2(1) TFEU)

./.

2 Possible future bilateral agreements

Further detail :

- scope of Art. 3(2) TFEU : see extensive ECJ case-law (e.g. Opinion 1/13, paras

71-74)

- unless ‘so empowered by the Union’ (Art. 2(1) TFEU): by existing legislation, or by a specific empowerment (to be adopted on substantive legal basis, usually ordinary legislative procedure)

- principle of sincere cooperation: duty of Member States to abstain where the Commission has been authorised to negotiate (judgment C-246/07)

Brexit Preparedness seminar on digital and telecommunications

Council Working Party

(Article 50 Format)

20 December 2018

Key sectoral issues- Electronic Communications

• Both UK and EU operators will be able to apply surcharge on roaming customers

• New safeguard cap on intra-EU call prices would also not apply to EU-UK calls

• Rules on wholesale voice termination rates will no longer apply to providers as regards calls between the EU and the UK. Subject to national regulatory authorities' specific decisions, this may lead to increased retail tariffs for such calls.

What is being done to address these issues

• Brexit preparedness notice on electronic communications

https://ec.europa.eu/info/sites/info/files/file_import/electronic_communications_en.pdf• Brexit preparedness notice on travelling between the EU and the United

Kingdom (e.g. roaming)

https://ec.europa.eu/info/sites/info/files/brexit_files/info_site/travelling.pdf

What additional action / communication is required

• No legislative action is required at national or EU level

• Roaming providers operating in a Member State will still have to inform their customers about the roaming charges whenever they travel to the United Kingdom

Key sectoral issues – E-commerce Directive

• EU firms active in UK will be subject to UK rules

• UK service providers will no longer benefit from the exemption of liability for intermediaries when serving the EU market

Key sectoral issues – Geoblocking

• UK firms offering their goods or services to customers in EU will continue to be bound by EU rules e.g. non-discrimination between different EU-27 markets

• Legal or natural persons established or residing in UK cannot benefit from this Regulation

What additional action / communication is required

• No legislative action is required at national or EU level

• Stakeholder awareness could be needed to inform EU traders providing services to the UK

• National administrations in the EU to address UK firms as third country firms

Background and reference information

• Brexit preparedness notices

• E-commerce:https://ec.europa.eu/info/sites/info/files/file_import/e_commerce_en.pdf

• Geoblocking: https://ec.europa.eu/info/sites/info/files/file_import/geoblocking_en.pdf

Key sectoral issues – Audiovisual

• The establishment criterion is principal criterion determining the jurisdiction under the Audiovisual and Media Services Directive (AVMSD). For UK-based media service providers, establishment in the EU remains the safest way to benefit from country of origin principle

• The European Convention on Transfrontier Television (ECTT), applicable to 20 Member States, will continue to apply to the UK as regards linear services

• No change for EU media service providers in fulfilling the share obligations under AVMSD - UK works will continue to count as European works (Arts 13, 16, 17 AVMSD)

What is being done to address these issues

• Industry stakeholder awareness ongoing regarding legal implicationsand impact on business model e.g., cross-border activities

What is being done to address these issues –EU/European level

• Brexit Preparedness Notice in the field of Audiovisual Media Services:

https://ec.europa.eu/info/sites/info/files/file_import/eu_domain_names_en.pdf

• Study requested by CULT Committee – Audiovisual Sector and Brexit

• European Audiovisual Observatory - Brexit in context: The UK in the EU28 audiovisual market

What additional action / communication is required

• Industry stakeholders to finalise their internal assessment and take consequent steps

• Member States to inform and advise stakeholders about best course of action and national supervisory requirements

• Further discussion may take place in the AVMSD Contact Committee

Key sectoral issues - Copyright

While an extensive body of international treaties governs many aspects of copyright,

the EU acquis provides for certain measures, which are not in these international

treaties, and will hence no longer apply :

• Broadcasters – Country of origin principle for communication to the public by satellite

• Collective management organisations – Obligation of mutual representation in EU• Use of Orphan works (OW) by Cultural Institutions – Mutual recognition of OW in EU• Exchange of accessible format copies for persons who are blind, visually impaired

or otherwise print-disabled – Circulation of such copies under Marrakesh Directive• Sui generis database right – Recognition of sui generis right for UK rightholders• Online Content Portability – Access to online content services by citizens who are

temporarily in another Member State.

What is being done to address these issues

• Preparedness action has been taken by publishing the Brexit preparedness notice on copyright on 28 March 2018:

https://ec.europa.eu/info/publications/copyright_en

• Stakeholders awareness raising activities, particularly as regards visualartists and in the area of live performances/audiovisual.

• The rules on mutual recognition of notified electronic identity schemes under the eIDAS Regulation will no longer apply to the UK:

• Member States can no longer rely on schemes that have been notified by the UK. Reversely, UK cannot rely on schemes notified by other Member States

• The principle of country of origin benefitting trust service providers established in the EU will no longer benefit trust service providers established in the UK

Key sectoral issues – electronic identification & trust services (eIDAS)

What is being done to address these issues

• Preparedness action has been taken by publishing the Brexit preparedness notice on electronic identification and trust services for electronic transactions:

https://ec.europa.eu/info/sites/info/files/file_import/e-signature_en.pdf

Brexit Preparedness seminar on Public Procurement

Council Working Party

(Article 50 Format)

20 December 2018

Public Procurement

Key issue 1 - Treatment of UK operators by EU contracting authorities & entities

a) For procurement covered by the GPA in case of accession of the UK to the Government Procurement Agreement (GPA)• Contracting authorities should fulfil the obligations under the EU’s GPA coverage schedules vis-à-vis the

economic operators of the UK.

b) For procurement not covered by the GPA (in case there is no accession of the UK to the GPA and for non-covered procurement, in case there is accession to the GPA)• UK economic operators have same status as all other economic operators based in a third country with

which the EU does not have any agreement providing for the opening of the EU procurement market. They shall therefore be subject to the same rules as any third country tenderers.

SPECIFIC CASES: Article 85 of Directive 2014/25/EU - Tenders submitted in the EU may be rejected if the

proportion of the products originating in third countries, exceeds 50% of the total value of the products constituting the tender.

Recital 18 of Directive 2009/81/EC – UK economic operators may be excluded from bidding for defence and security contracts in the EU.

Key issue 2: Ongoing public procurement procedures launched by EU contracting authorities & entities

• Under EU law, it is considered that a public procurement procedure is governed, until its completion, by the law applicable at the time of launching the procedure at stake.

Key issue 3: Review procedures & legal remedies

• Economic operators from the UK will have the same status as all other economic operators based in a third country with which the EU does not have any agreement providing for the opening of the EU procurement market;

Public Procurement

What has been done:

• Brexit preparedness notice to stakeholders as a reminder of legal repercussionshttps://ec.europa.eu/info/files/public-procurement_en

• Participation in negotiations on the UK's accession to the GPA.

Public Procurement

What remains to be done:

• No legislative action is required (without prejudice to the accession process of the UK to the GPA)

• Member States need to inform their contracting authorities and entities on how to treat UK economic operators in ongoing and future procedures

• Stakeholders organisations in the EU27 need to advise their members on future procurement opportunities in the UK, noting that:• EU rules in the field of public procurement will no longer apply to and in the UK as of the withdrawal

date• There is no guarantee what the legal regime for public procurement will be in the UK as of the

withdrawal date• It is not yet certain when the UK will join the GPA.

Public Procurement