Part Three of the EU-UK TCA – From a ‘Disrupted’ Area of Freedom, Security and Justice to ‘New Old’ Intergovernmentalism in Justice and Home Affairs?

Abstract

During membership, the UK was the leading protagonist of ‘disrupted integration’ within the Area of Freedom, Security and Justice. Part 3 of the Trade and Cooperation Agreement (TCA) replaces differentiation with a ‘new old’ form of intergovernmental cooperation in justice and home affairs. The substance does simulate – to varying degrees – the EU law acquis in areas such as Passenger Name Records, Europol and Eurojust, and extradition. The protection of fundamental rights – in particular on data protection – has been embedded into the provisions. Part 3 also mandates future dynamic development of EU-UK security cooperation. However, the structures for governance and dispute resolution exclude any role for supranational political and legal institutions. Instead, the paradigm of diplomatic intergovernmentalism of the old Third Pillar of the European Community has been resurrected.

Keywords: Brexit, TCA, Justice and Home Affairs, AFSJ, EU-UK future relationship