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Document 52019DC0195

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS AND THE EUROPEAN INVESTMENT BANK Addressing the impact of a withdrawal of the United Kingdom from the Union without an agreement: the Union’s coordinated approach

COM/2019/195 final

Brussels, 10.4.2019

COM(2019) 195 final

COMMUNICATION FROM THE COMMISSION

Addressing the impact of a withdrawal of the United Kingdom from the Union without an agreement: the Union’s coordinated approach


COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS AND THE EUROPEAN INVESTMENT BANK

Addressing the impact of a withdrawal of the United Kingdom from the Union without an agreement: the Union’s coordinated approach

1.Introduction

On 29 March 2017, the United Kingdom notified its intention to withdraw from the Union. The Commission continues to consider that an orderly withdrawal of the United Kingdom from the Union on the basis of the Withdrawal Agreement, which has been agreed by the United Kingdom Government and which the European Council (Article 50) endorsed on 25 November 2018, is the best outcome. The Commission continues to focus its efforts on that goal. It is nevertheless the case, that two days before the deadline of 12 April 2019, as extended by the European Council 1 , the likelihood of a disorderly withdrawal has significantly increased. The purpose of the present communication is to take stock of the intense preparations for that scenario which have been underway since 2017.

The Commission has repeatedly drawn the attention of all stakeholders, including in the three Brexit Preparedness Communications of 19 July 2018 2 , 13 November 2018 3 and 19 December 2018 4 , to the fact that a no-deal scenario would create significant disruptions. This assessment has not changed. In a no-deal scenario, it will not be possible to replicate the orderly transition foreseen in the Withdrawal Agreement.

Consequently, EU institutions, Member States administrations at all levels and all stakeholders have worked together to mitigate the impact of a no-deal scenario. Today, as a result of this collective effort, the EU is prepared for a disorderly withdrawal.

The contingency measures which have been adopted at European and national levels are based on the general principles set out in the Communication of 13 November 2018. Contingency measures do not replicate the benefits of membership of the Union, nor the terms of any transition period, as provided for in the Withdrawal Agreement. They are temporary in nature, and were adopted unilaterally by the European Union in pursuit of its interests. They fully respect the division of competences that the Treaties lay out, as well as the principle of subsidiarity.

In a no-deal scenario, these temporary contingency measures provide the United Kingdom the space in which to address the three main separation issues, which are a precondition for discussions on the way forward with the United Kingdom. As stated by President Juncker to the European Parliament on 3 April 2019 5 , these issues are (i) that rights of EU27 and UK citizens who have exercised their right to free movement before withdrawal would still need to be upheld and protected, (ii) that the United Kingdom would still have to honour its financial commitments made as a Member State, and (iii) that a solution would still need to be found to preserve peace on the island of Ireland and the integrity of the internal market. The United Kingdom must fully respect the letter and spirit of the Good Friday Agreement.

2.The contingency preparations are finalised

Preparing for the withdrawal of the United Kingdom has been a joint effort of EU institutions and bodies, national, regional and local authorities, as well as of economic operators. All these actors have been called upon to take their responsibilities to prepare for the withdrawal without an agreement and to mitigate its worst impacts.

The EU institutions and bodies and the EU27 Member States have been preparing actively for a no-deal scenario since December 2017. Beyond the three Communications which have provided political guidance on the approach to be followed, the Commission has published 92 6 notices to help stakeholders and authorities to prepare. It has also made 19 legislative proposals, 18 of which have been adopted and will apply from the withdrawal date, and one, on the EU budget for 2019, which will apply retroactively from the withdrawal date, once finalised 7 . The Commission has also adopted 45 non-legislative acts across a number of policy areas 8 .

The Commission has held extensive technical discussions with the EU27 Member States both on general issues of preparedness and contingency work and on specific sectorial, legal and administrative issues. Commission representatives have visited the capitals of all EU27 Member States to provide clarity on the Commission’s preparedness and contingency actions and to discuss national preparation and contingency plans. The visits showed a high degree of preparation by the Member States for all scenarios.

Key areas in which contingency efforts have been necessary include citizens’ rights (social security, residence rights and travel), transport (basic connectivity and safety), police and judicial cooperation, the management of the new Union external borders with the United Kingdom, fisheries and the Union’s budget. The Union and the Member States have adopted measures in other selected areas as well.

For citizens, Member States are providing continued (temporary or permanent) residence rights for UK nationals that are resident in the EU at the time of the withdrawal, inspired by the generous approach recommended by the Commission 9 .

Citizens’ social security entitlements in relation to the United Kingdom before the withdrawal are protected. The contingency Regulation will ensure for the persons covered, irrespective of their nationality, the principles of equality of treatment, assimilation and aggregation of facts or events that occurred, and of periods of residence, insurance or work that were completed prior to the withdrawal 10 . Member States are also implementing measures at national level to secure the protection of social security entitlements for these citizens after the withdrawal.

The Union has also agreed that United Kingdom nationals will not need a visa when travelling to the EU for short stays of 90 days in any 180-day period, for business and tourism, as long as the United Kingdom provides the same treatment for all citizens of the EU27 11 .

Contingency Regulations are also in place to maintain essential transport connections for the key modes of transport: aviation 12 , rail 13 , and road both for passengers and for freight 14 .

Following the withdrawal of the United Kingdom from the Union, police and justice cooperation will take place on the basis of multilateral international conventions, rather than on the basis of EU law. EU institutions and Member States have together identified the appropriate instruments that can be used in that context. Member States have invested significant efforts in ensuring that these instruments are operational by the withdrawal date.

Member States have worked closely with the EU institutions to ensure that the integrity of the internal market is preserved by putting in place appropriate infrastructure and resources to apply custom formalities and controls as well as sanitary and phytosanitary checks of goods at the border.

In the financial sector, only a limited number of EU measures were considered necessary to minimise risks to financial stability in the European Union. This decision was based on a joint analysis of no-deal risks done by the Commission, the European Central Bank, the Single Resolution Board and the European Supervisory Authorities, and on the analysis of a joint technical group between the European Central Bank and the Bank of England.

As regards fishing activities, the measures taken will allow continued reciprocal access by Union and United Kingdom vessels to each others waters throughout 2019 15 , if the United Kingdom grants access to Union vessels and respects the Fishing Opportunities Regulation 2019 16 . If this is not the case, financial support will be available for EU fishermen if there is a temporary cessation of their activities 17 .

All these measures will mitigate for a period of time the biggest disruptions resulting from a disorderly withdrawal of the United Kingdom, as depicted in the chart in Annex 1 to this Communication.

3.The 2019 Budget and additional financial support

The Commission has adopted a proposal for a contingency Regulation providing that the payment of funds from the EU general budget to UK recipients can continue during 2019 if the United Kingdom continues to pay its budget contributions for 2019 and allows the required audits and controls to take place 18 . If the United Kingdom does not agree to contribute to the financing of the 2019 budget as set out in the proposed contingency Regulation, the Commission will present a Draft Amending Budget in due time in order to deal with the resulting financing gap. In this context, the Commission calls upon the Parliament and the Council to formally adopt the proposal.

Even in the absence of these contributions, the Union has decided that certain activities should continue in any case. The PEACE IV Programme and the United Kingdom-Ireland cooperation programme will continue as they provide essential support for peace in Northern Ireland and Ireland 19 . All ongoing Erasmus+ learning mobility activities involving the United Kingdom that have started by the withdrawal date can also be concluded, to avoid disruption for students as well as for their sending and hosting institutions 20 . 

In addition, business organisations and stakeholders have argued that financial support from the Union may be necessary to mitigate the economic effects of a disorderly withdrawal of the United Kingdom from the Union. The impact of a no-deal withdrawal will be felt throughout the European Union, but it is clear that some regions and economic sectors will be affected more significantly.

First, significant costs will be borne by the Member States neighbouring the United Kingdom. Although all Member States will have to perform checks and controls linked to customs rules, sanitary and phytosanitary regulations and other security and safety standards, for some Member States the volumes will be particularly high. For this reason, they had to build new border control posts or upgraded existing ones. Second, the economic cost will be particularly high for sectors that are most exposed to the United Kingdom. This is the case, for example, for agri-food exporters targeting the UK market, fishing businesses who depend on access to UK waters, and tourist businesses in regions that are popular with UK tourists. Third, it has become clear in the course of the Commission’s preparedness work that small and medium-sized enterprises (SMEs) trading with the United Kingdom have been less equipped to prepare than large companies. SMEs sometimes lack the administrative and legal capacity to implement a full contingency plan.

While the need for financial support is clear, the constraints stemming from a withdrawal without an agreement must be taken into account. The Commission has consistently argued that the United Kingdom remains bound by its financial obligations towards the European Union in all scenarios, and the European Union will similarly uphold its own financial obligations towards the United Kingdom, including in case of a no-deal withdrawal.

Against this background, the Commission has explored how existing programmes and instruments of the Union budget, after any necessary adjustment, could be mobilised in case of no deal. This is meant to mitigate the impact in the areas where it would be most strongly felt, within the available funds. These measures will be proposed with due consideration of the adjustments on the expenditure and revenue side of the EU budget which might result from a disorderly withdrawal and with full use made of existing budgetary instruments and available resources. By reprogramming certain structural funds, activating measures against disturbance of agricultural markets on the basis of the Common Markets Organisation Regulation 21 , including use of all possible financial sources, and using specific instruments such as the programme for Competitiveness of Small and Medium-Sized Enterprises (COSME), the European Globalisation Adjustment Fund (EGF), the Solidarity Fund and the European Fund for Strategic Investment (EFSI), additional dedicated funding could be made available under the EU budget in case of a no-deal withdrawal.

For more immediate support to affected stakeholders, for example small and medium-sized companies with a significant exposure to the United Kingdom, EU State aid rules offer flexible solutions for national support measures.

4.Guidance on a coordinated approach following a disorderly withdrawal

The unity and solidarity displayed by the EU27 Member States during the negotiations with the United Kingdom and the preparations for the withdrawal have served a common purpose, despite the different levels of economic exposure to the United Kingdom across the Union. It is crucial that the steps taken following a disorderly withdrawal remain coordinated and consistent. This unity strengthens the effectiveness of any remedial action, safeguards our common rules and a level playing field, increases the predictability for those worst affected, and preserves the Union’s negotiating objectives for discussions on a future relationship with the United Kingdom. For these reasons, bilateral agreements between Member States and the United Kingdom must be avoided.

To provide additional support to Member States implementing contingency measure, the Commission is today providing additional guidance in five key areas. These will help to ensure that the contingency measures are implemented smoothly, and will also help to achieve and maintain a coordinated approach:

·Citizens’ residence and social security entitlements;

·police and judicial cooperation in criminal matters;

·medical products and medical devices;

·Fishing activities; and

·data protection.

The Commission will provide additional guidance, should the need emerge. The Commission remains at the disposal of the EU27 Member States to discuss issues concerning the impact of a no-deal withdrawal, continuing the transparent and intense cooperation that has characterised the period of negotiations. In the period following the withdrawal, Member States are encouraged to report to the Commission and to each other problems that arise, foreseen and unforeseen, and best practices identified for handling them, for the benefit of all Member States. For the period immediately after the withdrawal, the Commission has established a call centre for Member State administrations, giving them access to the Commission’s expertise. EU citizens, businesses and other stakeholders can contact Europe Direct for any questions (Freephone 00 800 6 7 8 9 10 11 from anywhere in the EU).

5.Conclusion

Since the UK referendum on 23 June 2016, the Union has consistently expressed its regret and respect for the United Kingdom’s decision to leave the Union. The Commission continues to hold the view that an orderly withdrawal in accordance with the Withdrawal Agreement is the best possible option. However, a disorderly withdrawal can only be avoided if the United Kingdom ratifies the Withdrawal Agreement.

The EU has therefore taken the necessary measures to be prepared for a withdrawal without an agreement, whilst remaining determined to avoid such an outcome. Unity and solidarity between Member States will continue to be necessary, to respond to the challenges that will arise and to continue to uphold the Union’s core values.

(1)      European Council Decision 2019/476 taken in agreement with the United Kingdom of 22 March 2019 extending the period under Article 50(3)TEU, OJ L 80I, 22.3.2019, p. 1.
(2)      COM(2018) 556.
(3)      COM(2018) 880.
(4)      COM(2018) 890.
(5)      Statement by President Juncker on the United Kingdom’s withdrawal from the European Union at the European Parliament's plenary session, Brussels, 3 April 2019, http://europa.eu/rapid/press-release_SPEECH-19-1970_en.htm .
(6)       https://ec.europa.eu/info/brexit/brexit-preparedness/preparedness-notices_en . 
(7)      The European Parliament is expected to give its consent to the proposal during its plenary meeting starting on 15 April 2019.
(8)      19 additional non-legislative acts are in the process of being adopted, depending on submissions from the United Kingdom and other external actors.
(9)      A list of residence rights granted to UK nationals in the EU States is available on the Commission’s website: https://ec.europa.eu/info/brexit/brexit-preparedness/residence-rights-uk-nationals-eu-member-states_en .
(10)      Regulation (EU) 2019/500 of the European Parliament and of the Council of 25 March 2019 establishing contingency measures in the field of social security coordination following the withdrawal of the United Kingdom from the Union, OJ L 85I, 27.3.2019, p. 35.
(11)      Amendment to Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. The formal adoption will take place in the coming days.
(12)      Regulation (EU) 2019/494 of the European Parliament and of the Council of 25 March 2019 on certain aspects of aviation safety with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union, OJ L 85I, 27.3.2019, p. 11; and Regulation (EU) 2019/502 of the European Parliament and of the Council of 25 March 2019 on common rules ensuring basic air connectivity with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union, OJ L 85I, 27.3.2019, p. 49.
(13)      Regulation (EU) 2019/503 of the European Parliament and of the Council of 25 March 2019 on certain aspects of railway safety and connectivity with regard to the withdrawal of the United Kingdom from the Union OJ L 85I, 27.3.2019, p. 60.
(14)      Regulation (EU) 2019/501 of the European Parliament and of the Council of 25 March 2019 on common rules ensuring basic road freight and road passenger connectivity with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union, OJ L 85I, 27.3.2019, p. 39.
(15)      Regulation (EU) 2019/498 of the European Parliament and of the Council of 25 March 2019 amending Regulation (EU) 2017/2403 as regards fishing authorisations for Union fishing vessels in United Kingdom waters and fishing operations of United Kingdom fishing vessels in Union waters, OJ L 85I, 27.3.2019, p. 25.
(16)      Council Regulation (EU) 2019/124 of 30 January 2019 fixing for 2019 the fishing opportunities for certain fish stocks and groups of fish stocks, OJ L 29, 31.1.2019, p. 1; and Council Regulation (EU) 2018/2025 of 17 December 2018 fixing for 2019 and 2020 the fishing opportunities for Union vessels for certain deep-sea fish stocks, OJ L 325, 20.12.2018, p. 7.
(17)      Regulation (EU) 2019/497 of the European Parliament and of the Council of 25 March 2019 amending Regulation (EU) No 508/2014 as regards certain rules relating to the European Maritime and Fisheries Fund following the withdrawal of the United Kingdom from the Union, OJ L 85I, 27.3.2019, p. 22.
(18)      Proposal for a Council Regulation on measures concerning the implementation and financing of the general budget of the Union in 2019 in relation to the withdrawal of the United Kingdom from the Union COM/2019/64 final. The proposal has been endorsed by the Council.
(19)      Regulation (EU) 2019/491 of the European Parliament and of the Council of 25 March 2019 in order to allow for the continuation of the territorial cooperation programmes PEACE IV (Ireland-United Kingdom) and United Kingdom-Ireland (Ireland-Northern Ireland-Scotland) in the context of the withdrawal of the United Kingdom from the Union, OJ L 85I, 27.3.2019, p. 1.
(20)      Regulation (EU) 2019/499 of the European Parliament and of the Council of 25 March 2019 laying down provisions for the continuation of ongoing learning mobility activities under the Erasmus+ programme established by Regulation (EU) No 1288/2013, in the context of the withdrawal of the United Kingdom from the Union, OJ L 85I , 27.3.2019, p. 32.
(21)      Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) 1037/2001 and (EC) No 1234/2007, OJ L 347, 20.12.2013, p. 671.
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Brussels, 10.4.2019

COM(2019) 195 final

ANNEX

to the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS AND THE EUROPEAN INVESTMENT BANK

Addressing the impact of a withdrawal of the United Kingdom from the Union without an agreement: the Union’s coordinated approach

Timeline for key EU contingency measures


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Brussels, 10.4.2019

COM(2019) 195 final

ANNEX

to the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS AND THE EUROPEAN INVESTMENT BANK

Addressing the impact of a withdrawal of the United Kingdom from the Union without an agreement: the Union’s coordinated approach

Citizens’ residence and social security entitlements:
Coordinated approach in case of a withdrawal of the United Kingdom from the Union without a deal


1.Introduction

On 29 March 2017, the United Kingdom notified its intention to withdraw from the Union. The Commission continues to consider that an orderly withdrawal of the United Kingdom from the Union on the basis of the Withdrawal Agreement, which has been agreed by the United Kingdom Government and which the European Council (Article 50) endorsed on 25 November 2018, is the best outcome. The Commission continues to focus its efforts on that goal. However, two days before the deadline of 12 April 2019, as extended by the European Council 1 , the likelihood of a disorderly withdrawal of the United Kingdom from the Union has significantly increased. 

2.Citizens’ residence rights

As of the withdrawal date, UK nationals 2 residing in the EU will no longer be EU citizens and thus will no longer enjoy free movement rights 3 . They will automatically be subject to the general rules that apply to third country nationals in the EU. Conversely, EU citizens residing in the United Kingdom will no longer be protected by the EU rules on free movement. This will have an impact on the right to stay and work where those UK nationals and EU citizens currently live.

2.1.Guaranteeing a continued right to reside for UK nationals already residing in the EU

The Commission has consistently made clear that protecting the legal status of UK nationals currently residing in the EU is a priority, and it has called upon Member States to adopt a generous approach towards them. There are different situations regarding the right to stay of UK nationals in EU27 Member States; for some situations national contingency measures have been taken, while others are adequately covered by existing rules.

Over the last months, EU27 Member States have prepared national contingency measures, in a process coordinated by the Commission, to ensure continued legal residence in the immediate aftermath of a no-deal withdrawal for all UK nationals who are already legally residing in a Member State at the moment of withdrawal. These measures will also facilitate the crossing of the internal and external borders of the EU immediately after withdrawal.

While the voluntary coordination of Member States’ actions aims to ensure a coherent approach, the approaches and procedures chosen by the Member States may differ depending on their individual situation. Indeed, each Member State is faced with different challenges, depending on the number of UK nationals residing on its territory and its legal and administrative system.

Member States have taken the necessary steps to adopt their respective national measures in due time and they have accordingly informed the Commission. The Commission compiles and publishes an up-to-date overview with the latest input on the national measures from the EU27 Member States on its Brexit Preparedness webpages 4 in order to inform UK nationals residing in the Union about their rights. At national level, Member States are taking numerous actions to reach out to UK nationals residing in their territory 5 . The Commission notes that the necessary measures are already in place now. It urges those Member States, which have not yet finalised their adoption processes, to do so as quickly as possible.   

Member States’ measures are largely convergent with some differences in terms of exact scope with regard to UK nationals already resident in their territory. Most Member States have opted for a form of targeted permanent or temporary national “regularisation” legislation. In many Member States the envisaged status and rights are inspired by the Free Movement Directive 6 or the Withdrawal Agreement. A number of Member States underline the importance of reciprocity by the United Kingdom as a guiding principle in their national measures.

UK nationals, who have already been lawfully resident in a Member State for over 5 years, have access to the EU long-term resident status, subject to meeting the conditions of Directive 2003/109/EC 7 . This is a solid status in the Member State of residence, anchored in Union law 8 , guaranteeing equal treatment with the nationals of that Member State and the right to move to live, work or study in another EU Member State, provided certain conditions are fulfilled 9 . The Commission recalls that it considers that periods of legal residence of UK nationals in an EU27 Member State before the withdrawal date should be considered as periods of legal residence in a Member State of the European Union in accordance with Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents 10 .

The Commission invites Member States to consider further measures to guarantee the legality of the continued stay of all UK nationals lawfully residing in the territory of the EU27 Member States on withdrawal date (especially for those resident in a Member State for less than 5 years) when the temporary contingency measures come to an end. Where permanent status was not granted upfront, this end point varies, depending on the approach chosen by the Member State concerned, from several months to several years after the withdrawal.

2.2.Rights of UK nationals coming to the EU after withdrawal date

For short stays (up to 90 days in 180 day-period), the European Parliament and the Council have agreed on a regulation exempting UK nationals 11 from a visa requirement conditional on reciprocity for EU citizens from the UK 12 .

UK nationals who arrive in the EU after the withdrawal date for stays of longer duration (more than 90 days for any purpose) will be subject to the EU and national legal migration rules applicable to third-country nationals 13 . These rules allow in particular for an authorisation, subject to the relevant criteria, to stay to work 14 , study, do research, or join a family member in the EU.

2.3.Continued right to reside for EU citizens already residing in United Kingdom

The Commission sets as a priority the protection of the legal status of EU citizens already residing in the United Kingdom, even though this will become a matter of UK national competence, just as it seeks to secure the status of UK nationals already lawfully residing in the EU The Commission has therefore welcomed the UK’s reassurances and policy measures taken which will ensure that, even in a no deal scenario 15 , the rights of EU citizens in the United Kingdom will be protected through the so-called EU Settled Status 16 .

The Commission’s Representation Offices in the United Kingdom and relevant services in Brussels closely monitor and analyse the preparatory steps taken by the United Kingdom to turn the policy announcements into legislative acts and concrete actions, to ascertain that the status of the EU citizens will be adequately secured. The Commission invites the Member State diplomatic representations in the United Kingdom to continue to coordinate with the Commission Representation in the United Kingdom to provide information, expertise and legal advice to EU citizens in the United Kingdom, as appropriate 17 .

3.Citizens’ social security entitlements

In a no-deal scenario, Union rules on social security coordination will no longer apply to and in the United Kingdom. Without any contingency measures, the social security entitlements of EU27 citizens as well as UK nationals which involved the United Kingdom and are based on facts and events that occurred, and periods of insurance, employment, self-employment or residence that were completed, before the withdrawal date, would be at risk.

Contingency measures have been taken both at Union and national level.

3.1.Contingency Regulation on Social Security Coordination

On 25 March 2019, the Regulation of the European Parliament and of the Council establishing contingency measures in the field of social security coordination following the withdrawal of the United Kingdom from the Union was adopted 18 .

This contingency Regulation, which is unilateral, binding in its entirety and directly applicable in all Member States, will apply from the date of a disorderly withdrawal. It covers the following persons:

·nationals of a Member State, stateless persons and refugees who are or have been subject to the legislation of one or more Member States and who are or have been in a situation involving the United Kingdom before the withdrawal, as well as members of their families and survivors;

·nationals of the United Kingdom who are or have been subject to the legislation of one or more Member States before the withdrawal, as well as members of their families and survivors.

Under the Regulation, Member States will continue to apply:

·the principle of aggregation as regards periods of insurance, employment, self-employment or residence in the United Kingdom that were completed before withdrawal;

·the principle of assimilation as regards benefits or income acquired and facts or events that have occurred in the United Kingdom before the withdrawal; and

·the principle of equality of treatment as regards any situation that has occurred before withdrawal.

The Regulation does not cover facts and periods that occur after the withdrawal, nor does it cover the principle of exportability of cash benefits to the United Kingdom.

3.2.The unilateral coordinated contingency approach

All EU27 Member States have been invited 19 to apply after the withdrawal a unilateral coordinated contingency approach that would complement the Regulation in ensuring the widest possible protection for persons affected by the withdrawal.

Similarly to the Regulation, the coordinated approach would apply to all insured persons with entitlements in the EU27 Member States and involving the United Kingdom before the withdrawal date, and to whom the relevant Regulations on coordination of social security systems would have applied, had it not been for the withdrawal.

This would cover EU27 citizens and UK nationals, who, as a result of exercising their right to free movement before the withdrawal date, acquired or will acquire entitlements in the EU in respect of periods completed or facts or events occurred prior to the withdrawal date 20 . The coordinated approach goes beyond the Regulation in its scope by also covering:

·export of old-age pensions to persons residing in the United Kingdom;

·reimbursements of healthcare costs or of costs related to unemployment benefits for frontier workers that are ongoing at the time of withdrawal;

·reimbursement requests dealt with by an EU27 Member State involving the United Kingdom that are made after withdrawal but relating to a treatment before the withdrawal;

·planned and necessary medical treatment in the United Kingdom that is ongoing on the withdrawal date;

·reimbursement requests after withdrawal for unemployment benefits provided by the United Kingdom before withdrawal to frontier workers residing in the United Kingdom but working in an EU27 Member State.

3.3.National, unilateral measures that can go further

In some areas, individual Member States could complement the coordinated contingency approach through their own, national, unilateral measures that provide for further protection for citizens 21 . EU27 Member States could do so by continuing the export to the United Kingdom of cash benefits other than old-age pensions, such as unemployment benefits, maternity/paternity benefits, invalidity pensions, sickness benefits, survivors’ pensions, pensions in respect of accidents at work and death grants.

3.4.Bridging the gap between withdrawal and the steady-state

The no-deal scenario, in contrast to a situation with a ratified Withdrawal Agreement, will inevitably leave a period of time after withdrawal, a ‘gap’ during which periods of work, residence or insurance in the UK by citizens are not covered by the Union-wide contingency measures. The Commission considers that the impact on citizens of this ‘gap’ has to be minimised.

EU27 Member States are taking measures with regard to the situation of citizens after a no-deal withdrawal. These measures, which may go beyond the Union-wide contingency measure, should be unilateral and time-limited.

EU27 Member States could consider, inter alia, to ensure the continued application of the principle of aggregation also to these persons’ post-withdrawal periods of work, insurance and residence in the United Kingdom. Furthermore, EU27 Member States could also allow access to healthcare to UK nationals who are UK-insured but reside on their territory, under the condition of reciprocity.

4.Additional information

Public authorities and stakeholders can find further information on the impact of the United Kingdom’s disorderly withdrawal on citizens’ residence and social security entitlements on the following website of the Commission:

https://ec.europa.eu/info/brexit/brexit-preparedness/preparedness-notices_en

(1)      European Council Decision 2019/476 taken in agreement with the United Kingdom of 22 March 2019 extending the period under Article 50(3)TEU, OJ L 80I, 22.3.2019, p. 1.
(2)      The term ‘UK nationals’ should be understood as covering also their third-country family members already resident in the respective host State at the time of withdrawal.
(3)      UK nationals who also have the nationality of an EU Member State remain EU citizens and fully retain free movement rights.
(4)      https://ec.europa.eu/info/brexit/brexit-preparedness/residence-rights-uk-nationals-eu-member-states_en
(5)      Nearly all Member States are in contact with British embassies and consulates. Some also communicate via specific websites on residence issues and social media. Others publish leaflets; set up Brexit hotlines; reach out to NGOs and employers´ organizations. Some Member States also individually contact each UK citizen residing on their territory.
(6)      Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.04.2004, p. 77.
(7)      Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 016, 23.01.2004, p. 44. This Directive does not apply in Ireland or Denmark.
(8)      For a recent overview of the implementation by the Member States see Report from the Commission to the European Parliament and the Council of 29 March 2019 on the implementation of Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents (COM(2019)161 final).
(9)      See Chapter III of Directive 2003/109/EC (Arts. 14-23).
(10)      Communication from the Commission of 13 November 2018 on Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019: a Contingency Action Plan (COM(2018)880 final).
(11)      Note that British nationals who did not enjoy free movement rights under EU law were already exempted from a visa requirement.
(12)      Amendment to Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. The formal adoption will take place in the coming days.
(13)      EU Immigration Portal: https://ec.europa.eu/immigration/  
(14)      Various forms of work migration are possible for which each time different rules are applicable.
(15)      Policy paper on citizens’ rights in the event of a no deal Brexit (Published 6 December 2018; last updated 28 March 2019), see https://www.gov.uk/government/publications/policy-paper-on-citizens-rights-in-the-event-of-a-no-deal-brexit ; Policy paper on Immigration from 12 April 2019 if there is no deal (Published 28 January 2019), see https://www.gov.uk/government/publications/eu-immigration-after-free-movement-ends-if-theres-no-deal/immigration-from-30-march-2019-if-there-is-no-deal  
(16)       https://www.gov.uk/eusettledstatus  
(17)      See www.eurights.uk
(18)      Regulation (EU) 2019/500 of the European Parliament and of the Council of 25 March 2019 establishing contingency measures in the field of social security coordination following the withdrawal of the United Kingdom from the Union, OJ L 85I , 27.3.2019, p. 35.
(19)      See draft Guidance note of the Commission services: BREXIT contingency joint approach at EU-27 level in a no-deal scenario (‘unilateral coordinated contingency approach’) discussed at the technical expert seminar on 20 December 2018.
(20)      The approach also applies to stateless persons and refugees in an analogous situation, as well as to family members and survivors of these categories of persons. The approach also extends the application to third-country nationals who are or have been subject to Regulation (EU) No 1231/2010 or Regulation (EC) No 859/2003 prior to the withdrawal date, and their family members and survivors in respect of their entitlement acquired or to be acquired relating to situations involving the United Kingdom prior to withdrawal. This means that third country nationals who were, prior to the withdrawal date, in an intra EU cross-border situation involving the United Kingdom, as well as their family members and survivors, would maintain their entitlements in the EU27 Member States in respect of periods completed, or facts or events occurred prior to the withdrawal date. Regulation (EU) 1231/2010 does not apply to Denmark.
(21)      As set out in the draft Guidance note (see footnote 19).
Top

Brussels, 10.4.2019

COM(2019) 195 final

ANNEX

to the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS AND THE EUROPEAN INVESTMENT BANK

Addressing the impact of a withdrawal of the United Kingdom from the Union without an agreement: the Union’s coordinated approach

Police and judicial cooperation in criminal matters:
Coordinated approach in case of a withdrawal of the United Kingdom from the Union without a deal


1.Introduction

On 29 March 2017, the United Kingdom notified its intention to withdraw from the Union. The Commission continues to consider that an orderly withdrawal of the United Kingdom from the Union on the basis of the Withdrawal Agreement, which has been agreed by the United Kingdom Government and which the European Council (Article 50) endorsed on 25 November 2018, is the best outcome. The Commission continues to focus its efforts on that goal. However, two days before the deadline of 12 April 2019, as extended by the European Council 1 , the likelihood of a disorderly withdrawal of the United Kingdom from the Union has significantly increased. 

2.Contingency framework: Existing fall-backs

In a no-deal scenario, the Union’s legal framework on police and judicial cooperation will cease to apply to the United Kingdom as of the withdrawal date. This means that EU legal instruments can no longer be used to underpin cooperation procedures or information exchange mechanisms in relation to the United Kingdom. This implies in particular, that:

·the United Kingdom will be disconnected from all EU networks, information systems and databases 2 ;

·judicial cooperation procedures 3 with the United Kingdom will no longer be pursued in an EU framework;

·the United Kingdom will no longer be able to participate in the EU Agencies 4 and will be treated as a third country with no specific agreement in place.

Whilst the withdrawal will entail a significant change in the way that the EU27 Member States currently cooperate with the United Kingdom, this does not mean that police and judicial cooperation with the United Kingdom cannot continue. Cooperation between EU27 Member States and the United Kingdom on police and judicial matters will have to be based on alternative legal frameworks and cooperation mechanisms, based on international law and national law.

In order to guarantee a high level of security for all citizens, the EU’s contingency planning has therefore focussed on identifying reliable fall-back mechanisms 5 , preparing to revert to alternative legal frameworks and cooperation mechanisms, and making the necessary operational preparations at national level. While cooperation between the EU27 Member States and the United Kingdom will be different, the aim of contingency is to ensure that law enforcement and judicial cooperation can continue with the United Kingdom as a third country, in full respect of Union law and without major disruptions.

Furthermore, the United Kingdom’s withdrawal will not change police and judicial cooperation between the 27 remaining Member States 6 . The Union will continue to build an effective and genuine Security Union, where all members cooperate closely. The Union has robust instruments that allow national authorities to exchange information and share intelligence, detect suspects and pursue and punish them through the criminal justice system, protect Europeans online and effectively manage its borders. Likewise, the EU27 Member States will continue to cooperate closely and exchange information via Europol to fight against terrorism, cybercrime and other serious and organised forms of crime. In addition, the future rollout of border management technologies, such as the Entry Exit System and the European Travel Information and Authorisation System will further contribute to a high level of security within the entire Schengen Area. Increased interoperability of all systems will provide law enforcement authorities with more reliable and complete information. The EU27 Member States will also further benefit from the Union’s web of international agreements.

This framework for police and judicial cooperation in criminal matters will continue to guarantee a high level of security to people who live, work in or travel to the EU.

The United Kingdom and the EU27 Member States are aware that reverting to alternative cooperation mechanisms will require adaptations and changes at operational level. The level of adaptation depends on existing national procedures, structures, tools, staffing and other resources and is, therefore, for each Member State to assess. The Commission has worked with all Member States to ensure appropriate contingency action in order to be ready in good time for any scenario.

3.Specific preparations and guidance to Member States

Disconnection of the United Kingdom from EU networks, information systems and databases

The access of the UK authorities to EU networks, information systems and databases will stop at withdrawal date. For centralised systems (including, but not limited to, Schengen Information System/SIRENE, Europol Information System, Eurodac), the disconnection will be prepared and performed by the relevant EU agencies, where necessary in close cooperation with Member States. The Commission is in constant and close contact with the agencies and all preparatory steps have been taken to ensure disconnection on withdrawal day. For decentralised systems, Member States have been made aware of both the need to take action and the steps to take. Accordingly, all traffic through the TESTA connections (Eurodomain) in the United Kingdom will, by default, be discontinued as of the withdrawal date in the event of no-deal. Unless the European Council decides, in agreement with the United Kingdom, to extend further the period provided for in Article 50 of the Treaty on the Functioning of the European Union, this measure will be implemented on 13 April 2019.

Stock of data in EU networks, information systems and databases

The stock of data in the systems, i.e. either EU data in the United Kingdom or data received from the United Kingdom before the withdrawal date, and the actions to take have been discussed with Member States’ experts, taking into account the specificities of the different systems.

In general, with regard to UK data in EU or national information systems exchanged before the withdrawal date, there is no general obligation to delete such lawfully obtained data from EU or national systems, except in two cases: (i) Where the United Kingdom remains the owner of the data, the United Kingdom may request its removal; (ii) in case of personal data, where it will have to be determined on a case-by-case basis, under the applicable rules, such as the General Data Protection Regulation 7 and the Law Enforcement Directive 8 , to what extent processing is still allowed. In some cases, there will be an obligation to delete such data, notably UK SIS alerts, which become quickly outdated and therefore cannot serve as a basis for taking coercive measures on persons as well as UK data in Eurodac. Acting upon outdated alerts could create a serious risk for the protection of fundamental rights (e.g. the arrest of a person who has in the meantime been acquitted).

Transition from the Schengen Information System to Interpol for exchange of law enforcement information between EU27 Member States and the United Kingdom

The Schengen Information System II (SIS) enables competent national authorities, such as the police and border guards, to share information for border management and security in EU and Schengen states. The United Kingdom will be disconnected from the Schengen Information System (SIS) and SIRENE cooperation on the withdrawal date. Interpol and its system of notices has been identified both by the EU27 Member States and the United Kingdom as the appropriate fall-back to the SIS for further exchange of law enforcement information between EU27 Member States and the United Kingdom. Both EU27 Member States and the United Kingdom are preparing – separately yet along the same lines – for the transition to equivalent Interpol notices and diffusions for information that is currently shared through the SIS 9 . Appropriate use of Interpol channels will ensure, according to the UK Home Secretary, that ‘the UK can continue responding to important operational alerts raised by Member States’ 10 . Furthermore, Member States are preparing for the switch from national SIRENE bureaux, i.e. contact points for information exchange and coordination related to SIS alerts, to Interpol’s I-24/7 global police communications network for their exchanges with the United Kingdom.

Police communication via Interpol is well embedded in all EU27 Member States and in the United Kingdom. Over the last months, in cooperation with the Commission, EU27 Member States have made preparations to ensure that their operational levels are ready to revert to an increased use of Interpol channels in order to ensure police cooperation with the United Kingdom. Member States have examined and adapted their domestic operational procedures, staffing levels, training and IT tools in view of maximising the effectiveness and accessibility of Interpol notices by law enforcement agents on the ground.

Cooperation between the United Kingdom and EU Agencies, incl. Europol 11 , Eurojust 12 and eu-LISA 13

With regard to the agencies, including Europol, Eurojust and eu-LISA, the United Kingdom will no longer be able to participate and will have to be treated as a third country with no specific cooperation agreement in place. For Europol and Eurojust the rules for the cooperation with third countries will apply to the United Kingdom, including with regard to the use of data. Europol and the United Kingdom can exchange strategic data 14 , and the same applies to Eurojust. The United Kingdom will be able to share personal data with the Europol under the conditions of its national law. Europol could make use of the grounds set out in its founding Regulation, which allow transfer of personal data to third countries with whom there is no cooperation agreement 15 . Europol and Eurojust have taken preparedness steps and will be in a position to put in place the appropriate procedures when needed.

Handling of pending cases - judicial cooperation in criminal matters

In case of a no-deal, Union law stops applying to all cases in the area of judicial cooperation in criminal matters that may be pending in relations with the United Kingdom.

Therefore, in case of a no deal, as from the withdrawal date, EU27 Member States (a) may not proceed further pending judicial cooperation procedures involving the United Kingdom and (b) may not issue new such judicial cooperation procedures involving the United Kingdom on the basis of Union law.

Whether such pending cases will be discontinued or not is not a matter of the Union law. It depends on the internal legal order of each of the EU27 Member States, their national laws on cooperation with third countries or binding international agreements.

Where continuation under national law or a relevant international convention is possible, Union law would not prevent Member States from submitting an additional request under the relevant national law/international convention before the withdrawal date. Such requests would nevertheless need to be conditional upon the no-deal withdrawal of the United Kingdom and executed only as from the withdrawal date.

For such pending cases, the relevant international fall-back instruments (e.g. Council of Europe Conventions) and relevant national measures have been identified and discussed during specific technical seminars. Member States have taken the necessary preparedness measures in order to mitigate any possible negative impact on public security that a no-deal withdrawal could have in relation of such pending cases.

Member States have also been invited to examine, as a part of their contingency planning, whether some Council of Europe Conventions and protocols should be ratified to allow for a more effective cooperation with the United Kingdom. Bilateral agreements that might have existed between Member States and the United Kingdom before the EU instruments were adopted do not revive.

Bilateral contacts between the relevant authorities of the EU27 Member States and the United Kingdom, for strictly operational purposes regarding specific pending cases may be appropriate in order to ensure that the transition from EU cooperation to cooperation on the basis of national or international law in ongoing police and judicial cooperation is as smooth as possible in the period immediately after the withdrawal and is without prejudice to the future relations.

The rights of suspected or accused persons will be guaranteed under the relevant instruments of the Council of Europe and the European Convention on Human Rights, to which the United Kingdom is a party. Moreover, when it comes to victims of crime, they will rely on UK national law and practice for the protection of their rights. The United Kingdom already provides for a set of victims’ rights – that incorporates the EU rules.

4.Additional information

Public authorities and stakeholders can find further information on the impact of the United Kingdom’s disorderly withdrawal on police and judicial cooperation in criminal matters on the following website of the Commission:

https://ec.europa.eu/info/brexit/brexit-preparedness/preparedness-notices_en



ATTACHMENT: Fall-back instruments identified by the Commission 16

EU instrument

Fall-back

Schengen Information System (SIS) 17

Supplementary Information Request at the National Entries (SIRENE bureaux) channel

Interpol databases (documents, vehicles) and notices (persons)

Interpol channel, existing bilateral channels

Europol 18

Interpol, bilateral channels, possibilities of exchange of data by way of derogations based on Article 25 of Europol Regulation (EU) 2016/794

Prüm 19  

UK not connected

Swedish Initiative 20 (general framework for sharing law enforcement information between Member States)

Interpol, existing bilateral channels

Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters from 2001 (ETS 182)

UN Palermo Convention (transnational organised crime) ensures a minimum level of approximation

FIU.Net (Financial Intelligence Units)

Financial Action Task Force (international), Council of Europe Warsaw Convention, EGMONT secure web

ARO (Asset Recovery Offices) 21

Camden Asset Recovery Inter-Agency network (CARIN), bilateral channels

European Image Archiving System (FADO) 22

Interpol Stolen and Lost Documents Database

Cooperation on Football Disorder 23

2016 Council of Europe (CoE) Convention on an Integrated Safety, Security and Service Approach at Football Matches and Other Sports Events (CETS 218) 24

Joint Investigation Teams (JITs) 25 - Mutual Assistance in Criminal Matters between Member States of the European Union 26

Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters from 2001 (ETS 182)

Joint Action on Organised Crime 27

United Nations Convention against Transnational Organized Crime

EURODAC 28

None necessary; UK will no longer participate to the Dublin Regulation (EU) 604/2013

Cybercrime Directive 29

2001 CoE Convention on Cybercrime (ETS 185) 30  with 2003 Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (ETS 189) 31  

Combating the sexual abuse and sexual exploitation of children and child pornography 32

Combating child pornography on the internet 33

2007 CoE Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS 201) 34

Preventing and combating trafficking in human beings 35

United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children; 2005 CoE Convention on Action against Trafficking in Human Beings (CETS 197) 36

European Arrest Warrant 37

1957 CoE Convention on Extradition (ETS 24) 38  

1975 First Additional Protocol (ETS 86) 39

1983 Second Additional Protocol to the European Convention on Extradition (ETS 98) 40

2010 Third Additional Protocol to the European Convention on Extradition (CETS 209) 41

2012 Fourth Additional Protocol to the European Convention on Extradition (CETS 212) 42

European Investigation Order 43

1959 CoE Convention on Mutual Assistance in Criminal Matters (ETS 30) 44

1978 Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS 99) 45

2001 Second additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS 182) 46  

2001 CoE Convention on Cybercrime (ETS 185) 47

European Freezing and Confiscation Orders 48

1990 CoE Convention on Laundering, search, seizure and confiscation of the proceeds of crime (ETS 141) 49

2005 CoE Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS 198) 50

Transfer of Prisoners 51

1983 CoE Convention on the transfer of sentenced persons (ETS 112) 52

1997 Additional Protocol to the Convention on the Transfer of Sentenced Persons (ETS 167) 53

2017 Protocol amending the Additional Protocol to the Convention on the Transfer of Sentenced Persons (CETS 222) 54

European Criminal Records Information System (ECRIS) 55

Article 13 of the 1959 CoE Convention on Mutual Assistance in Criminal Matters

Mutual Recognition of Financial Penalties 56

1970 CoE Convention on the International Validity of Criminal Judgments (ETS 70) 57  

(1)      European Council Decision 2019/476 taken in agreement with the United Kingdom of 22 March 2019 extending the period under Article 50(3)TEU, OJ L 80I, 22.3.2019, p. 1.
(2)      Such as the Schengen Information System (SIS-II), the Europol Information System (EIS), EURODAC, ECRIS.
(3)      Such as the European Arrest Warrant.
(4)      Such as Europol, Eurojust and eu-LISA.
(5)      For an overview of identified fall-back mechanisms, see Annex I.
(6)      The Schengen Associated Countries, i.e. Iceland, Liechtenstein, Norway and Switzerland, are also bound by certain instruments of the police and judicial cooperation acquis, to extent that these instruments are part of the Schengen acquis. Therefore, for the purpose of this note the term “EU 27 Member States” has to be understood as comprising also the Schengen Associated Countries, in respect of the instruments that are binding upon them.
(7)      Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance), OJ L 119, 4.5.2016, p. 1.
(8)      Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, OJ L 119, 4.5.2016, p. 89.
(9)      Notices are international requests for cooperation or alerts allowing police to centrally share critical crime-related information with all other Interpol member countries. Diffusions are less formal instruments that allow Interpol member countries to directly request cooperation from all or some member countries.
(10)      Letter of 15 February 2019 from the UK Home Secretary, Rt Hon Sajid Javid MP, to Ministers of Interior and Justice of EU27 Member States.
(11)      Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, OJ L 135, 24.5.2016, p. 53.
(12)      Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA, OJ L 295, 21.11.2018, p. 138.
(13)      Regulation (EU) 2018/1726 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), and amending Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) No 1077/2011, OJ L 295, 21.11.2018, p. 99.
(14)      See Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, OJ L 135, 24.5.2016, p. 53.
(15)      In well-determined cases and subject to applicable conditions and safeguards, the founding regulation of Europol allows for transfers of personal data on a case-by-case basis to third countries with whom there is no cooperation agreement. The founding regulation also allows a set of transfers on a temporary basis, provided applicable conditions and safeguards are met, which include the agreement of the European Data Protection Supervisor.
(16)      All fall-backs identified are to be used in full respect of applicable EU data protection rules.
(17)      Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II), OJ L 381, 28.12.2006, p. 4; Regulation (EC) No 1986/2006 of the European Parliament and of the Council of 20 December 2006 regarding access to the Second Generation Schengen Information System (SIS II) by the services in the Member States responsible for issuing vehicle registration certificates, OJ L 381, 28.12.2006, p. 1; Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II), OJ L 205, 7.8.2007, p. 63.
(18)      Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, OJ L 135, 24.5.2016, p.53.
(19)      Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, OJ L 210, 6.8.2008, p. 1–11; Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, OJ L 210, 6.8.2008, p. 12.
(20)      Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, OJ L 386, 29.12.2006, p. 89.
(21)      Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to, crime, OJ L 332, 18.12.2007, p. 103.
(22)      Joint Action 98/700/JHA of 3 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the setting up of a European Image Archiving System (FADO), OJ L 333, 9.12.1998, p. 4.
(23)      Council Decision 2002/348/JHA of 25 April 2002 concerning security in connection with football matches with an international dimension, OJ L 121, 8.5.2002, p. 1.
(24)      AT, BE, BG, HR, CY, CZ, DK, EE, FI, DE, EL, HU, IE, IT, LV, LT, LU, NL, RO, SK, SI, ES and SE have not ratified. UK has not ratified.
(25)      Council Resolution on a Model Agreement for setting up a Joint Investigation Team (JIT), OJ C 18, 19.1.2017, p. 1.
(26)      Convention established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union - Council Declaration on Article 10(9) - Declaration by the United Kingdom on Article 20, OJ C 197, 12.7.2000, p. 3–23; Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ C 197, 12.7.2000, p. 1.
(27)      Joint Action 97/827/JHA of 5 December 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organized crime, OJ L 344, 15.12.1997, p. 7.
(28)      Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, OJ L 180, 29.6.2013, p. 1.
(29)      Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA, OJ L 218, 14.8.2013, p. 8.
(30)      IE and SE have not ratified.
(31)      AT, BE, BG, EE, HU, IE, IT, MT and SE have not ratified. UK has not ratified.
(32)      Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, OJ L 335, 17.12.2011, p. 1.
(33)      Council Decision of 29 May 2000 to combat child pornography on the Internet, OJ L 138, 9.6.2000, p. 1.
(34)      IE has not ratified.
(35)      Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101, 15.4.2011, p. 1.
(36)      Ratified by all Member States.
(37)      Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States - Statements made by certain Member States on the adoption of the Framework Decision, OJ L 190, 18.7.2002, p. 1.
(38)      Ratified by all Member States and the UK.
(39)

     Not ratified by the UK or AT, FI, FR, DE, EL, IE and IT.

(40)

     Not ratified by FR, EL, IE and LU.

(41)      Not ratified by BE, BG, CZ, HR, EE, EL, IE, FI, FR, HU, IT, LU, MT, PL, PT, SE and SK.
(42)      Only ratified by the UK, and LV, AT and SI.
(43)      Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L 130, 1.5.2014, p. 1.
(44)      Ratified by all Member States and the UK.
(45)      Ratified by all Member States and the UK.
(46)      Not ratified by EL, IT and LU.
(47)      Not ratified by IE and SE.
(48)      Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders, OJ L 328, 24.11.2006, p. 59–78; Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L 196, 2.8.2003, p. 45–55.
(49)      All Member States and the UK have ratified.
(50)      Not ratified by AT, CZ, EE, FI, IE, LT and LU.
(51)      Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, OJ L 327, 5.12.2008, p. 27.
(52)      All Member States and the UK have ratified.
(53)      Not ratified by IT, PT and SK.
(54)      Not ratified by any Member States or the UK.
(55)      Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings, OJ L 220, 15.8.2008, p. 32.
(56)      Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, OJ L 76, 22.3.2005, p. 16.
(57)      Not ratified by the UK or HR, CZ, FI, FR, DE, EL, HU, IE, IT, LU, MT, PL, PT and SK.
Top

Brussels, 10.4.2019

COM(2019) 195 final

ANNEX

to the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS AND THE EUROPEAN INVESTMENT BANK

Addressing the impact of a withdrawal of the United Kingdom from the Union without an agreement: the Union’s coordinated approach

Medicinal products and medical devices:
Coordinated approach in case of a withdrawal of the United Kingdom from the Union without a deal


1.Introduction

On 29 March 2017, the United Kingdom notified its intention to withdraw from the Union. The Commission continues to consider that an orderly withdrawal of the United Kingdom from the Union on the basis of the Withdrawal Agreement, which has been agreed by the United Kingdom Government and which the European Council (Article 50) endorsed on 25 November 2018, is the best outcome. The Commission continues to focus its efforts on that goal. However, two days before the deadline of 12 April 2019, as extended by the European Council 1 , the likelihood of a disorderly withdrawal of the United Kingdom from the Union has significantly increased. 

2.Preparedness in the medical sector

The medical sector has been a priority of the European Commission’s preparedness work from the start. Full compliance of medicinal products (human and veterinary) and medical devices with EU legislation is key to patient safety and critical to ensure continued availability in case of a withdrawal of the United Kingdom without a withdrawal agreement.

The Commission has called on stakeholders to prepare for the eventuality of a no deal as early as May 2017 when issuing its first notice on medicinal products 2 . Several notices and questions and answers documents on medicinal products and medical devices have been issued and regularly updated since 3 . The notices invite relevant stakeholders to get prepared for the eventuality of a no-deal withdrawal of the United Kingdom from the EU and identify all the required actions.

Economic operators are responsible for taking the necessary measures to ensure their continued compliance with EU legislation, including as regards EU-localisation requirements for certain functions (e.g. market authorisations holders for medicinal products or authorised representatives for medical devices) and activities (e.g. batch release sites), as well as the replacement of UK competent authorities and UK notified bodies by EU27 authorities and EU27 notified bodies in the approval process for placing products on the EU market.

The Commission, the European Medicines Agency (EMA) and the EU27 Member States have transferred the role of the rapporteur Member State from the United Kingdom to an EU27 Member State, and facilitated the transfer of the role of the Reference Member State, where necessary. Furthermore, the Commission has issued guidance 4 to EU27 Member States to address situations in which the timely transfer of batch testing sites from the United Kingdom to the EU27 is not possible. In particular, an existing exemption in the Directives on human 5 and veterinary 6 medicinal products can be used by competent authorities, in duly justified cases, to allow marketing authorisation holders to rely on quality control testing performed in the United Kingdom for a limited period of time.

For medical devices, the Commission and Member States have been closely monitoring the steady progress of the transfers of certificates from UK notified bodies to EU27 notified bodies (i.e. qualified entities designated by Member States competent authorities to perform conformity assessment tasks under Union product legislation). Neither the Commission nor Member States are part of the process. Where the transfer of critical medical devices may not be completed by the withdrawal date, the Commission has issued guidance to the EU27 Member States on existing national derogations in the Directives on Medical Devices 7 and In-vitro Diagnostics Medical Devices 8 . These derogations may allow Member States, in duly justified cases, to authorise UK certificate holders to continue placing their products on the market in the territory of the Member State concerned for a limited period of time.

The preparation actions and the possible use of the aforementioned exemptions and derogations are expected to significantly mitigate the risk of shortages of medicinal products and of critical medical devices in case of a no-deal. For this reason, no EU-level contingency action has been identified as necessary for medicinal products or medical devices.

3.Remaining issues in the medical sector

Based on available information, the majority of medical products concerned by the UK withdrawal should be compliant with EU legislation on the withdrawal date. It is however possible that, despite best efforts, some medicinal products and medical devices may not be compliant in time and thus there could be a risk of shortages if the economic operators do not act swiftly to remedy the situation. The Commission and Member States will continue to monitor closely the progress of ongoing preparedness actions and provide support to affected stakeholders.

4.Coordinated action to manage shortages

To ensure a coordinated approach to potential shortages of medicinal products across the EU Regulatory Medicines Network 9 , EMA together with national medicines regulators and the Commission will rely on its experience of responding to unexpected situations, such as safety incidents or shortages. This includes coordination of key decision makers from national regulators, the EMA and the Commission to monitor the situation, address problems and inform patients and doctors appropriately. This structure is built on existing strategies to deal with such incidents and shortages under the Network’s Incident management plan 10 and the Heads of Medicines Agency (HMA)/EMA Task Force on Availability of Authorised Medicines for Human and Veterinary Use (TF AAM) 11 , but may take account of the specificities of the UK withdrawal. 12  

In the area of medical devices, the Commission is working closely with the EU27 Member States in the context of the Medical Device Coordination Group (MDCG) and the Competent Authority for Medical Devices (CAMD) network to monitor the progress of certificate transfers and identify critical medical devices that may be at risk of shortages. In particular, the Commission will coordinate a transparent and coherent use of the national derogations by Member States across the EU to avoid any fragmentation of the Single Market.

5.Additional information

Public authorities and stakeholders can find further information on the impact of the United Kingdom’s disorderly withdrawal on medicinal products and medical devices on the following website of the Commission and EMA:

https://ec.europa.eu/info/brexit/brexit-preparedness/preparedness-notices_en  

https://www.ema.europa.eu/en/about-us/united-kingdoms-withdrawal-european-union-brexit  

(1)      European Council Decision 2019/476 taken in agreement with the United Kingdom of 22 March 2019 extending the period under Article 50(3)TEU, OJ L 80I, 22.3.2019, p. 1.
(2)       https://ec.europa.eu/info/sites/info/files/medicinal_products_for_human_use-veterinary_medicinal_products_en.pdf  
(3)     https://ec.europa.eu/info/sites/info/files/file_import/medicinal_products_for_human_and_veterinary_use-qa_en_0.pdf
https://ec.europa.eu/info/sites/info/files/file_import/industrial_products_en_1.pdf  
https://ec.europa.eu/info/sites/info/files/qa_brexit_industrial_products_en.pdf  
(4)   https://ec.europa.eu/health/sites/health/files/files/documents/brexit_batchtesting_medicinalproducts_en.pdf
(5)      Article 20 (b) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, OJ L 311, 28.11.2001, p. 67.
(6)      Article 24(b) of Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products, OJ L 311, 28.11.2001, p. 1.
(7)      See Article 9(9) of Council Directive 90/385/EEC of 20 June 1990 on the approximation of the laws of the Member States relating to active implantable medical devices (OJ L 189, 20.7.1990, p. 17) and Article 11(13) of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ L 169, 12.7.1993, p. 1).
(8)      See Article 9(12) of Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices (OJ L 331, 7.12.1998, p. 1).
(9)      The Network consists of the European Commission (EC), the National Competent Authorities (NCAs) of the Member States (MSs) and the European Medicines Agency (EMA).
(10)       https://www.ema.europa.eu/en/human-regulatory/post-authorisation/pharmacovigilance/incident-management-plan  
(11)       www.hma.eu/522.html  
(12)      In addition, as regards medical radioisotopes, the European Observatory on the supply of medical radioisotopes is keeping the impact of the United Kingdom’s withdrawal under review.
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Brussels, 10.4.2019

COM(2019) 195 final

ANNEX

to the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS AND THE EUROPEAN INVESTMENT BANK

Addressing the impact of a withdrawal of the United Kingdom from the Union without an agreement: the Union’s coordinated approach

Fishing activities:
Coordinated approach in case of a withdrawal of the United Kingdom from the Union without a deal


1.Introduction

On 29 March 2017, the United Kingdom notified its intention to withdraw from the Union. The Commission continues to consider that an orderly withdrawal of the United Kingdom from the Union on the basis of the Withdrawal Agreement, which has been agreed by the United Kingdom Government and which the European Council (Article 50) endorsed on 25 November 2018, is the best outcome. The Commission continues to focus its efforts on that goal. However, two days before the deadline of 12 April 2019, as extended by the European Council 1 , the likelihood of a disorderly withdrawal of the United Kingdom from the Union has significantly increased. 

2.Contingency preparations in the fisheries sector

After a no-deal withdrawal, access to UK waters will be governed by UK legislation in accordance with international law.

The European Union is ready to continue to provide access to UK vessels until the end of 2019, provided the United Kingdom continues to grant access to EU vessels. As a contingency measure, the European Union has adopted the necessary legal basis for the authorisation of EU and UK vessels to continue to fish in each other’s waters, until 31 December 2019, while respecting the agreed terms of the 2019 fishing opportunities regulations 2 , agreed when UK was still a Member State.

Should the United Kingdom continue to grant access to EU vessels, the Commission is working closely with the Member States to minimise any possible disruption due to the necessity to obtain authorisations for fishing activities for EU vessels in UK waters. For the implementation of this contingency measure, the Commission and the Member States have taken the necessary steps to be in a position to transmit the lists of vessels that request authorisation to fish in UK waters, as soon as the United Kingdom becomes a third country.

The overall objective remains to maintain fishing activities to the extent possible. However, the Union has taken actions to prepare if the United Kingdom were to decide to deny EU vessels access to UK waters. The Union has adjusted the existing legal instrument to enable Member States to grant financial compensation to fishermen who have significant dependence on UK waters and who have to cease these activities temporarily resulting from the lack of access to UK waters 3 . Such compensation for temporary cessation is complementary to other measures available under the European Maritime and Fisheries Fund (EMFF) which can be used to mitigate the adverse economic effects due to the withdrawal of the United Kingdom from the Union.

3.Remaining issues related to fishing activities

The withdrawal of the United Kingdom without an agreement risks having detrimental impacts on the fisheries sector if EU vessels are no longer granted access to UK waters. The consequences of a disorderly Brexit must be subject to continuous, detailed and systematic analysis by the Commission, Member States and the European Fisheries Control Agency (EFCA) to allow rapid, coordinated responses.

Loss of access to the waters of the United Kingdom may increase pressure on stocks in EU waters, and it may have serious socio-economic consequences for those EU vessels that are heavily dependent on access to UK waters as well as for those whose traditional EU fishing grounds may see increased activity due to displacement of fishing effort. Recognising the principle of equal access, coordination of the actions of the EU27 Member States and their fleets is essential.

Full or partial displacement within EU waters of the fishing activity currently taking place by EU27 vessels in UK waters could lead to severe problems: (i) There is a risk that the resulting intensified fishing pressure in EU waters could irreversibly impoverish marine resources, by depleting fish stocks and damaging the ecosystem; and (ii) there is a risk of disputes arising between various fleets and vessels on the fishing grounds in EU waters because of ‘overcrowding’.

An uncoordinated approach by Member States would risk upsetting the Common Fisheries Policy and level playing field between EU fishermen.

4.Coordinated action

The consequences of a no-deal withdrawal need to be managed, both at national and at European level. In compliance with the respective competences under the Treaties, the Commission is ready to play a coordination role.

The principles and actions proposed below are intended to support organised and coordinated management by the EU27 Member States of their use of mitigation measures supporting fishermen, in a situation where, after the withdrawal date, EU vessels would no longer have access to the waters of the United Kingdom.

The main objectives for coordination are to:

·minimise disruptions and maintain fishing activities of EU fleets to the extent possible, taking into account the cumulative effects of such displacement of fishing activity; and

·ensure proportionate and equitable coordinated use of mitigation measures in cases where displacement is not possible or not desirable.

Main guiding principles:

The Commission stands ready to work with the Member States concerned on the basis of the following guiding principles:

·the cumulative effects should be taken into account when assessing displacement of fishing activities;

·mitigation measures should address fleets and stocks impacted by the consequences of loss of access to UK waters; and

·the coordinated approach will not, at any time, prejudge the EU negotiating position on the future relationship with the United Kingdom. .

4.1.Recommended action

4.1.1.Identifying and managing displacement

In addition to measures envisaged in the Control Regulation 4 and the EFCA Council Regulation 5 , the Commission will work with the Member States concerned to agree on a voluntary framework for intensified monitoring of changes in fishing activities in EU waters.

On the basis of an in-depth analysis of current fishing patterns undertaken by the Commission and the Member States concerned, and developed with data provided by the Member States, the Commission stands ready to work with the Member States concerned to identify relevant criteria within the existing framework to assess the viability, sustainability and scale of potential displacements.

These criteria could include the potential usage of current UK catches from EU27 waters, the biological capacity of stocks to cope with increased fishing pressure in EU27 waters, potential alternatives for spreading fishing pressure, uptake of quota, and the economic impact for the vessels concerned.

4.1.2.Coordinated use of mitigation measures, including compensation for temporary cessation

In cases where displacement of fishing activity is not possible or not desirable, following the analysis mentioned above, a choice of the appropriate mitigation tool(s) is warranted. Mitigation can take several forms. In accordance with the respective institutional competences, the Commission is ready to coordinate with the Member States concerned the identification of the relevant instruments as well as the conditions for the use of such instruments, if applicable.

Possible mitigation tools include measures under the Common Fisheries Policy (inter alia, under Articles 9 and 10 of Regulation (EU) 1380/2013 on multiannual plans, Article 12 on Commission measures in case of a serious threat to the conservation of marine biological resources, Article 13 on Member States emergency measures, Article 16 on setting of fishing opportunities and the exchange of fishing opportunities) and under Regulation 508/2014 on the European Maritime and Fisheries Fund.

Tools can be combined if considered necessary.

The Commission will work with the Member States concerned to develop a common approach to managing the fishing activities, including the possible use of compensation for the temporary cessation of fishing activities as a tool to support fishermen for foregone activities.

Regulation (EU) 2019/497 allows for the use of temporary cessation for compensation of losses because of loss of access to UK waters. Making use of the possibilities allowed by the EMFF Regulation, Member States are encouraged to submit to the Commission detailed plans for (the possibility of) using temporary cessation in the period up to 31 December 2019. Based on that, the Commission will work with the Member States with regard to the use of this tool to ensure fairness and proportionality across fleets and across the identified relevant fisheries.

5.Enhanced cooperation with all actors involved

To facilitate the coordination above, Member States are invited to indicate a contact point for direct communication with the Commission and other Member States. In addition, an operational network of correspondents should be put in place to address specific operational issues that may arise as a result of a disorderly withdrawal.

Successful coordination efforts require that all those concerned are involved and play their role in the necessary actions. Strong coordination between fishing representative organisations is essential, and can deliver a key contribution to prevent potential conflicts between fishermen. The Commission will work with the Member States to continue to consult with representative fishing organisations and will continue to promote consultations between these organisations

6.Additional information

Public authorities and stakeholders can find further information on the impact of the United Kingdom’s disorderly withdrawal on fishing activities on the following website of the Commission:

(1)      European Council Decision 2019/476 taken in agreement with the United Kingdom of 22 March 2019 extending the period under Article 50(3)TEU, OJ L 80, 22.3.2019, p. 1.
(2)      Council Regulation (EU) 2019/124 of 30 January 2019 fixing for 2019 the fishing opportunities for certain fish stocks and groups of fish stocks, OJ L 29, 31.1.2019, p. 1; and Council Regulation (EU) 2018/2025 of 17 December 2018 fixing for 2019 and 2020 the fishing opportunities for Union vessels for certain deep-sea fish stocks, OJ L 325, 20.12.2018, p. 7.
(3)      Regulation (EU) 2019/497 of the European Parliament and of the Council of 25 March 2019 amending Regulation (EU) No 508/2014 as regards certain rules relating to the European Maritime and Fisheries Fund following the withdrawal of the United Kingdom from the Union, OJ L 85, 27.3.2019, p. 22.
(4)      Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union control system for ensuring compliance with the rules of the Common Fisheries Policy, OJ L 343, 22.12.2009, p. 1.
(5)      Council Regulation (EC) No 768/2005 of 26 April 2005 establishing a Community Fisheries Control Agency, OJ L 128, 21.5.2005, p. 1.
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Brussels, 10.4.2019

COM(2019) 195 final

ANNEX

to the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN CENTRAL BANK, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS AND THE EUROPEAN INVESTMENT BANK

Addressing the impact of a withdrawal of the United Kingdom from the Union without an agreement: the Union’s coordinated approach

Data protection:
Coordinated approach in case of a withdrawal of the United Kingdom from the Union without a deal


1.Introduction

On 29 March 2017, the United Kingdom notified its intention to withdraw from the Union. The Commission continues to consider that an orderly withdrawal of the United Kingdom from the Union on the basis of the Withdrawal Agreement, which has been agreed by the United Kingdom Government and which the European Council (Article 50) endorsed on 25 November 2018, is the best outcome. The Commission continues to focus its efforts on that goal. However, two days before the deadline of 12 April 2019, as extended by the European Council 1 , the likelihood of a disorderly withdrawal of the United Kingdom from the Union has significantly increased. 

2.Data transfers to the United Kingdom in a no-deal withdrawal

The Union has a comprehensive set of rules governing the transfer of personal data to third countries, and this is the basis on which transfers will take place with the United Kingdom in case of a no-deal scenario. These rules include in particular the General Data Protection Regulation (GDPR) 2 and the Law Enforcement Directive 3 . This note focuses mainly on the tools of the GDPR.

As stated in the Commission´s Brexit preparedness Communication of 13 November 2018 , the Commission considers that the existing tools for data exchange are sufficient to cater for the immediate needs of data transfers to the United Kingdom in a no deal scenario. These tools are already being used for data transfers to all countries in the world, except for the thirteen third countries or territories which are (partially) covered by an adequacy decision 4 . Against this background, the Commission has not adopted a contingency measure in this area, and does not at this stage plan to adopt an adequacy decision with regard to the United Kingdom.

The provisions in Chapter V of the GDPR provide a broad toolbox for data transfers to third countries for both private entities and public authorities, such as:

·Standard Contractual Clauses: The Commission has approved three sets of Standard Contractual Clauses on which business operators can directly rely for their transfers to third countries. These standard clauses can be found on the Commission’s webpage 5 .

·Binding Corporate Rules: Legally binding data protection rules, approved by the competent data protection authority, can apply within a corporate group;

·Codes of conduct and certification mechanisms: These tools can offer appropriate safeguards for transfers of personal data if they contain binding and enforceable commitments by the organisation in the third country, including as regards the rights of individuals.

·Derogations, that is ‘statutory grounds’ for transfers such as e.g. consent, performance of a contract, exercise of legal claims or important reasons of public interest (see section 3 for further information on derogations).

For further information, please see the Brexit preparedness notice on data protection 6 and the info note issued by the European Data Protection Board (EPDB) on data transfers under the GDPR in the event of a no deal Brexit 7 .

3.Practical steps to be taken by EU data exporters (companies and authorities) to ensure continued compliance with EU rules

Data exporters should use the tools, which they consider most appropriate with regard to the individual data transfer to the United Kingdom.

Prior to transferring data to the United Kingdom, they should:

1.identify what processing activities will imply a personal data transfer to the United Kingdom;

2.determine the appropriate data transfer instrument for the situation;

3.implement the chosen data transfer instrument to be ready for the withdrawal date;

4.indicate in the internal documentation that transfers will be made to the United Kingdom; and

5.if relevant, update the privacy notice accordingly to inform individuals.

Data transfers based on derogations

As regards data transfers to the United Kingdom based on derogations 8 , data controllers should be aware that these derogations are exceptions to the rule of having to put in place appropriate safeguards. They must therefore be interpreted restrictively and mainly relate to processing activities that are occasional and non-repetitive.

These derogations include, inter alia, the following situations:

·where an individual has explicitly consented to the proposed transfer after having been provided with all necessary information about the risks associated with the transfer;

·where the transfer is necessary for the performance or the conclusion of a contract between the individual and the controller or the contract is concluded in the interest of the individual;

·where the data transfer is necessary for important reasons of public interest: An example of data transfers for important reasons of public interest can be international data exchanges between services competent for social security matters 9 ;

·where the data transfer is necessary for the purposes of compelling legitimate interests of the organisation, which are not overridden by the interests of the individual. When relying on this derogation, the organisation must provide suitable safeguards with regard to the protection of personal data.

Further guidance and explanations with regard to derogations and how to apply them can be found in the guidelines of the European Data Protection Board on derogations under Article 49 10 .

Instruments exclusively available to public authorities or bodies

Member States’ authorities can also use non-legally binding administrative arrangements, such as Memoranda of Understanding 11 . Such administrative arrangements are subject to an authorisation by the competent national data protection authority, following an opinion of the European Data Protection Board.

Under the Law Enforcement Directive, criminal law enforcement authorities (e.g. the police, prosecutors) may transfer personal data to UK authorities if they conclude, on the basis of their own assessment of the circumstances surrounding the transfer, that appropriate data protection safeguards exist 12 . The Europol Regulation 13 and the Directive on Passenger Name Records 14 include specific provisions on the transfer of personal data to third countries’ authorities from Europol and the responsible authorities of the Member States, respectively.

Transfer of data to the United Kingdom by commercial operators

The tools available for the transfer of data to third countries by private companies should be well known to business operators in the Member States and in the United Kingdom as they are already used today for the transfer of personal data to third countries. Information on the use of such transfer tools has also recently been provided to stakeholders in the context of the entry into application of the new data protection legislation in May 2018. Member States are however encouraged to ensure that companies who are not familiar with data transfers to third countries, e.g. small and medium-sized enterprises that in the past were only dealing with Member States, are made aware of these tools.

Continued support to Member States

The Commission, and in particular its Directorate-General for Justice and Consumers, is working with interested parties and data protection authorities to make the best use of the GDPR transfer toolbox and stands ready to support Member States with regard to the application of the available tools. Moreover, the Commission has set up a stakeholder expert group comprised of industry, civil society and academics, to support the application of the GDPR. Finally, interested parties can turn to their national data protection authorities to receive more specific information with respect to the use of data transfer tools.

4.Additional information

Public authorities and stakeholders can find further information on the impact of the United Kingdom’s disorderly withdrawal on data protection on the following website of the Commission:

https://ec.europa.eu/info/brexit/brexit-preparedness/preparedness-notices_en

(1)      European Council Decision 2019/476 taken in agreement with the United Kingdom of 22 March 2019 extending the period under Article 50(3)TEU, OJ L 80I, 22.3.2019, p. 1.
(2)      Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, p. 1.
(3)      Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, OJ L 119, 4.5.2016, p. 89.
(4)      These countries and territories are Andorra , Argentina , Canada (only commercial organisations), Faroe Islands , Guernsey , Israel , Isle of Man , Japan , Jersey , New Zealand , Switzerland , Uruguay and the United States (limited to the Privacy Shield framework ).
(5)        https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/model-contracts-transfer-personal-data-third-countries_en  
(6)       https://ec.europa.eu/info/sites/info/files/file_import/data_protection_en.pdf  
(7)       https://edpb.europa.eu/our-work-tools/our-documents/other/information-note-data-transfers-under-gdpr-event-no-deal-brexit_en  
(8)      Under Article 49 of the GDPR.
(9)      Recital 112 of the GDPR.
(10)       https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-22018-derogations-article-49-under-regulation_en  
(11)      Article 46(3)(b) of the GDPR. A recent example of such an arrangement that has received a positive opinion from the European Data Protection Board (EDPB) is the administrative arrangement for the transfer of personal data between the European Economic Area (EEA) Financial Supervisory Authorities and non-EEA Financial Supervisory Authorities. The text of the arrangement is available on the EDPB website: https://edpb.europa.eu/our-work-tools/our-documents/other/draft-administrative-arrangement-transfer-personal-data-between_en  
(12)      Article 37(1)(b) of Directive (EU) 2016/680.
(13)      Article 25 of Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol), OJ L 135, 24.5.2016, p. 53.
(14)      Article 11 of Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, OJ L 119, 4.5.2016, p. 132.
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