Brexit Deal: What Happens To Judicial Cooperation in Civil Matters?
The Brexit deal (officially the [draft] EU-UK Trade and Cooperation Agreement) was agreed upon, finally, on December 24. Relief in many quarters (except Universities participating in the Erasmus program, which is discontinued in the UK).
But private international lawyers worry what happened to judicial cooperation in civil matters: is there any agreement at all? Peter Bert provides a detailed analysis of all available documents and finds almost no mention, which leads him to think we are facing a sectoral hard brexit. (Update: he provides a more comprehensive analysis in German here.) Other experts on social media do not know more. The Law Society also seems worried. There seems to be no new information on the UK application to join the Lugano Convention, let alone any of the other areas of judicial cooperation. Given the intense discussion on these matters since the day of the Brexit vote, this can hardly be an oversight, but on the other hand it seems strange that such a core issue remained unaddressed.
Any further information or analysis in the comments is welcome.
Update: more comments from Ted Folkman
After all, the UK never fully participated in civil and commercial matters. Maybe, here Brexit means Brexit…
Thanks for this interesting post. I think this is not an oversight. As I understand from the UK and EU negotiation mandates published in February 2020, the judicial cooperation area was limited to criminal matters. Accordingly, as far as judicial cooperation is concerned, only criminal matters were on the agenda for negotiation rounds (https://ec.europa.eu/info/european-union-and-united-kingdom-forging-new-partnership/future-partnership/negotiation-rounds-future-partnership-between-european-union-and-united-kingdom_en). Re Lugano, my understanding is that the EU’s position was to see whether there will be a trade deal first. However even if the trade deal is done, given the original purpose of Lugano, the UK’s accession to it may not ever happen (at least not before the end of transition period for sure). But an agreement on judicial cooperation in civil and commercial matters will be much needed (at least) to help facilitate what has been agreed under the EU-UK Trade and Cooperation Agreement. Till then and from 1 January 2021 (costly) gaps and uncertainties likely to arise.
Dear all,
It would be good to get an official explanation from the European Commission indeed. It should be noted that the Notice to Stakeholders of August 2020 (https://ec.europa.eu/info/sites/info/files/brexit_files/info_site/civil_justice_en.pdf)
already took lack of agreement for cooperation in civil matters for granted.
Surprisingly, the press release of the Commission of December 24 (https://ec.europa.eu/commission/presscorner/detail/en/IP_20_2531), under the heading “A new partnership for our citizens’ security” states
“The Trade and Cooperation Agreement establishes a new framework for law enforcement and judicial cooperation in criminal and civil law matters. ”
And to top it all, have a look a recital 47 of the service regulation recast (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32020R1784)
“In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Regulation.”
Probably just a clerical mistake.