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European Parliament report addresses judicial cooperation post-Brexit

Andrew Sheftel

The European Parliament Committee on Civil Liberties, Justice and Home Affairs has published a Report on The implications of the United Kingdom's withdrawal from the European Union for the Area of Freedom, Security and Justice.

The Report covers various topics including security, freedom of movement and data protection, but also touches on the subject of judicial cooperation in civil proceedings post-Brexit, a question which we have considered previously here and here.

Helpfully, the Report recognises the importance of continued judicial cooperation and urges the relevant EU institutions to engage with the UK to discuss future agreements – although it takes the position that a “pre-requisite to the establishment of any future relationships between the UK and the EU in this area is an agreement between the UK and the EU on CJEU jurisdiction” – a point which could prove problematic given the UK’s stated aim of ultimately ceasing to be subject to the jurisdiction of the CJEU.

With regard to the future application of the Brussels Regulation, the Report suggests that even if the Regulation were to fall within the category of "retained EU law" for the purposes of the EU (Withdrawal) Bill, this would not be sufficient to fulfil the requirement of reciprocity because the EU (Withdrawal) Bill is domestic legislation and does not amount to an agreement with other countries. While this is of course correct, the UK would in any event no doubt seek a formal agreement on judicial cooperation post-Brexit - although the UK could of course unilaterally confirm that it will abide by the terms of the Brussels Regulation, this would be of limited value if EU Member State courts did not reciprocate.  Indeed, the UK’s Future Partnership Paper on Providing a cross-border civil judicial cooperation framework sets out the Government’s aspiration for a new agreement with the EU that allows for “close and comprehensive cross-border civil judicial cooperation on a reciprocal basis”.

In terms of other possible future arrangements, the Report notes that although the UK has indicated that it will seek to accede to the Lugano Convention, as it is not currently a party in its own right (as opposed to through its membership of the EU), any of the current parties to the Convention could veto its request to join.

The question of what judicial co-operation will look like post-Brexit clearly still needs to be resolved. It is positive that there appears to be recognition on both sides that the issue needs to be addressed, but this will need to be matched by discussions as to how this will be achieved in practice. 

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