Brexit and the Future of European Criminal Law: A View From Spain

Abstract

The UK public took a momentous decision when they voted to leave the EU in a referendum on 23 June 2016. As is well known, the UK has, since the entry into force of the Treaty of Lisbon on 1 December 2009, occupied a special position in relation to the Area of Freedom, Security and Justice (ELSJ, Title V TFEU). The Treaty introduced fundamental changes to the field of EU Criminal Law, from which the UK had been sheltered through the opt in/opt out clauses as well as the ‘emergency brakes’ solution. This singular arrangement for the UK after having signed the Treaty of Lisbon might, to some extent, have foreshadowed the present situation of Brexit, the consequences of which for EU Criminal Law are foreseen in this paper from a Spanish perspective. It presents an analysis of what the alternatives to the current relationships between Spain and UK could be in the future outside the EU framework, nevertheless while seeking to benefit from the improvements previously established through European institutions and instruments. In this context, three different areas are addressed: the natural framework through the relations that will inevitably exist with European agencies and institutions; the procedural framework in the area of judicial recognition through the application of the principle of mutual recognition; and, the framework in relation to procedural rights through the application of the principle of the approximation of laws. Finally, some brief remarks outline conclusions on a situation that is still unfolding.

Keywords: British Exit/Brexit, UK - EU Criminal Law, Mutual Recognition Instruments, EAW, Procedural Rights

JEL Classification: K14