A legal lacuna in hard Brexit

There is much talk about ‘less Europe’ these days. Those bureaucrats in Brussels have finally got the message that their citizens are rebelling against further harmonisation, that they desire nothing more than to be left in peace by the European super-state. This applies in all areas but that of … criminal law. Here, the message has not even been received, let alone acted upon. That is because governments do not want less Europe in this area, but more.

The harmonisation measures in this sector are being pumped out as if we are back in the halcyon days of Jacques Delors and Rick Astley.

Even Pitchfork Theresa, the fiercest of the European peoples’ tribunes, had this to say about criminal justice in her 12 guiding principles of Brexit: ‘With the threats to our common security becoming more serious, our response cannot be to cooperate with one another less, but to work together more.’

And so, whereas the production of laws in the single market and elsewhere has slowed to a dribble, the ivory-tower Eurocrats are happily back to fulfilling their natural function in DG (Directorate-General) Justice, and have produced a flow of criminal justice measures. I will deal with just three new developments.

First, some weeks back on the same day two new proposals were issued. The first was a proposed regulation on the mutual recognition of freezing and confiscation orders. Only just over 1% of proceeds of crime are ever recovered across Europe, and the EU would like a higher rate. Part of the problem lies with an inefficient mutual recognition framework for freezing and confiscation orders, allowing criminals to exploit the gaps and effectively ‘forum shop’ where to park their proceeds.

The second proposal was a draft directive on countering money laundering by criminal law. Again, stopping forum shopping by criminals was a principal rationale. There are differences in the definition, scope and sanctions of money laundering offences in EU member states, affecting cross-border police and judicial cooperation as well as the exchange of information. Harmonisation, it is hoped, will help combat the financing of terrorism and other serious crimes.

As for the third development, it is not entirely new, but is making significant progress. Politico leaked an early advanced draft of the conclusions of the EU Leaders Summit taking place this week (March 9-10). Yes, I know it’s shocking that they draft the conclusions before they have even met, but here is what the draft said about the European Public Prosecutor’s Office (EPPO).

The EPPO is designed to be an independent EU body with the authority to investigate and prosecute EU-fraud and other crimes affecting the EU’s financial interests, by individual prosecutions undertaken by a European prosecutor in a national court (smelling salts, quick): ‘Following the referral by 17 member states … the European Council discussed the draft and noted that the condition set out at the beginning of Article 86(1), third subparagraph was met, thus opening the way to the possible establishment of enhanced cooperation.’

Enhanced cooperation is the procedure whereby a minimum of nine EU member states are allowed to establish advanced integration or cooperation in an area within EU structures, even though the other members are not involved. 17 of them have decided to go ahead with EPPO. Rest assured, Brexiteers, we are not one.

But the fact that 17 want to go ahead is significant. Only a handful of measures have so far progressed through this procedure – for instance, divorce law, property regimes of international couples, and the one which threatens to tear a hole in Brexit itself, the unitary patent.

The addition of EPPO with such high member state support raises an important question – which was raised by none other than the Devil himself this week. Jean-Claude Juncker launched his white paper on the future of Europe, in the light of the UK leaving, and in any case because of general citizen unhappiness at the responses to crises like those caused by migration and the euro.

The white paper laid out five scenarios for future direction, which should be read in detail for their nuance.

The headline directions are:

• carrying on;
• doing nothing but the single market;
• those who want more doing more;
• doing less but more efficiently; and
• doing much more together.

France and Germany favour ‘those who want more doing more’, and it is rumoured that the Commission prefers this outcome, too. The EPPO development also heads in this direction. But there has been immediate kick-back from Eastern European states which fear being left on the periphery.

Our former home secretary prime minister wants us to continue co-operating in criminal law. And all the member states, apparently also including the UK, want more action from the Commission here, not less. Aux armes, Brexiteers!

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs