UK/EU TCA Includes Preliminary Agreement on Sharing Information/Databases

This information is drafted in my personal blog. I am in no way suggesting that the information provided herein is the reason as to why the United Kingdom and Spain have not as yet finalised the agreement made on the exchange of the UK driving licence for a Spanish permit. I do though consider that It is only logical that one would look at the relevant information (TCA) to find evidence and information about bilateral agreements.

The information I provide may help to give many an insight of how complicated negotiations can be either, between the EU or bilaterally with individual member states. Some content irrelevant on data sharing for prevention of crime or licensing and vehicle information have not been added.

The consideration of protection of data should also be taken into account

Spain is the preferred holiday destination for U.K. nationals. Therefore it should be no surprise that the Spanish traffic department wish to have access to drivers and licensing database but also the database of vehicles and other databases to avoid crime. These can include DNA and  fingerprint information. It is also considered that in future there could be a prum 2 and could include biometric facial recognition driving licenses.

It should be understood that all points on a future relationship and agreements between the United Kingdom and the Union including bilateral agreements between the U.K. and individual member states was drafted into the Trade and Corporation Agreements known as the TCA.

“PRINCIPLES OF INTERPRETATION AND DEFINITIONS

1. The provisions of this Agreement and any supplementing agreement shall be interpreted in good faith in accordance with their ordinary meaning in their context and in light of the object and purpose of the agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969.

2. For greater certainty, neither this Agreement nor any supplementing agreement establishes an obligation to interpret their provisions in accordance with the domestic law of either Party.

3. For greater certainty, an interpretation of this Agreement or any supplementing agreement given by the courts of either Party shall not be binding on the courts of the other Party.
The Parties shall, in full mutual respect and good faith, assist each other in carrying out tasks. (ii)

The Trade and Cooperation Agreement was signed on 30 December 2020, was applied provisionally as of 1 January 2021 and entered into force on 1 May 2021.

It is important important to understand the TCA was put in place for a continued corporation between the United Kingdom and the union and that amendments can be made to  the agreement and any bilateral agreements.

“CONSIDERING that cooperation between the United Kingdom and the Union relating to the prevention, investigation, detection or prosecution of criminal offences and to the execution of criminal penalties, including the safeguarding against and prevention of threats to public security, will enable the security of the United Kingdom and the Union to be strengthened,

DESIRING that an agreement is concluded between the United Kingdom and the Union to provide a legal base for such cooperation,

ACKNOWLEDGING that the Parties may supplement this Agreement with other agreements forming an integral part of their overall bilateral relations as governed by this Agreement and that the Agreement on Security Procedures for Exchanging and Protecting Classified Information is concluded as such a supplementing agreement, and enables the exchange of classified information between the Parties under this Agreement or any other supplementing agreement.”

“Brexit has led to a realignment of police cooperation and information exchange between the EU and the UK. This has been affected by Titles II-V and IX of Part III of the Trade and Cooperation Agreement. The terms governing the exchange of DNA, fingerprint and vehicle registration data, the transfer and processing of passenger name record data, cooperation on operational in- formation, membership of Europol and the exchange of criminal record information are henceforth governed by that instrument. This article describes the changes and comments upon how future EU-UK police cooperation may be impacted.

Title II of the TCA provides that the UK can continue to be involved in the transfer of DNA data, fingerprint information and vehicle registration data with EU Member States. The extent of the operational impact on police work and police cooperation is yet unclear. The ‘evaluation visit and pilot run’ provides the basis for the determination of the date or dates from which personal data may be supplied by Member States to the UK under Title II.17 It is possible, therefore, that the evaluation report is such that the date for cooperation to commence is delayed (the 9-month grace period noted). More particularly, certain of the bespoke arrangements within the TCA of course remain to be tested operationally. For example, as to vehicle registration data, ANNEX LAW-1 Art 14 provides that for automated searching of vehicle registration data ‘… States shall use a version of the European Vehicle and Driving Licence Information System (EUCARIS) software application, especially designed for the purposes of Art

LAW.PRUM.15’. It is not certain, of course, how well this new software system will operate. Overall, then, in general terms this area of police cooperation and information exchange under the TCA is set to be relatively similar to that operating previously, in law and for the initial 9-month period in any event. Operationally, the nature of cooperation and information exchange remains to be seen.

Although Titles II–IV and IX facilitate important aspects of information exchange, the loss of real-time data access will have an operational impact. Greater emphasis will have to be placed on ‘soft’ cooperation between the United Kingdom and Member States in the years to come in order to enhance efficient data exchange. This will be particularly important in ensuring that EU–UK arrest warrants – as opposed to the still necessary underlying domestic arrest warrants – are circulated efficiently.62 The exchange of red notices via Lyon (Interpol) remains unchanged. Title IV foresees the use of bilateral agreements to facilitate cooperation on operational information, and the United Kingdom’s relationship with Europol will undoubtedly continue to be important.

The continued efficient exchange of personal data as envisaged in Title III’ (i)

TITLE II: EXCHANGES OF DNA, FINGERPRINTS AND VEHICLE REGISTRATION DATA

Article LAW.PRUM.5: Objective
The objective of this Title is to establish reciprocal cooperation between the competent law enforcement authorities of the United Kingdom, on the one side, and the Member States, on the other side, on the automated transfer of DNA profiles, dactyloscopic data and certain domestic vehicle registration data.

Article LAW.PRUM.6: Definitions For the purposes of this Title, the following definitions apply:

(a) “competent law enforcement authority” means a domestic police, customs or other authority that is authorised by domestic law to detect, prevent and investigate offences or criminal activities and to exercise authority and take coercive measures in the context of such activities; agencies, bodies or other units dealing especially with national security issues are not competent law enforcement authorities for the purposes of this Title;

(c) “automated searching”, as referred to in Article LAW.PRUM.15 [Automated searching of vehicle registration data], means an online access procedure for consulting the databases of one, several, or all of the other States;

(l) “vehicle registration data” means the data-set as specified in Chapter 3 of ANNEX LAW-1;

LAW.PRUM.15(1) [Automated searching of vehicle registration data],

(q) “domestic accreditation body” means the sole body in a State that performs accreditation with authority derived from the State.

1. For the prevention and investigation of criminal offences and in dealing with other offences within the jurisdiction of the courts or a public prosecutor in the requesting State, as well as in maintaining public security, States shall allow other States’ national contact points, as referred to in paragraph 2, access to the following domestic vehicle registration data, with the power to conduct automated searches in individual cases:

data relating to owners or operators;

and data relating to vehicles.

2. Searches may be conducted under paragraph 1 only with a full chassis number or a full registration number and in compliance with the requesting State’s domestic law.

3. For the purposes of the supply of data as referred to in paragraph 1, the States shall designate a national contact point for incoming requests from other States. The powers of the national contact points shall be governed by the applicable domestic law.

Article LAW.PRUM.17: Implementing measures
For the purposes of this Title, States shall make all categories of data available for searching and comparison to the competent law enforcement authorities of other States under conditions equal to those under which they are available for searching and comparison by domestic competent law enforcement authorities. States shall supply further available personal data and other information relating to the reference data as referred to in:

Article LAW.PRUM.14 [Supply of further personal data and other information] to the competent law enforcement authorities of other States for the purposes of this Title under conditions equal to those under which they would be supplied to domestic authorities.

2. For the purpose of implementing the procedures referred to in Articles LAW.PRUM.8 [Automated searching of DNA profiles], LAW.PRUM.9 [Automated comparison of DNA profiles], LAW.PRUM.12 [Automated searching of dactyloscopic data] and LAW.PRUM.15 [Automated searching of vehicle registration data], technical and procedural specifications are laid down in ANNEX LAW-1.

Article LAW.PRUM.18: Ex ante evaluation

1. In order to verify whether the United Kingdom has fulfilled the conditions set out in Article LAW.PRUM.17 [Implementing measures] and ANNEX LAW-1, an evaluation visit and a pilot run, to the extent required by ANNEX LAW-1, shall be carried out in respect of, and under conditions and arrangements acceptable to, the United Kingdom. In any event, a pilot run shall be carried out in relation to the searching of data under Article LAW.PRUM.15 [Automated searching of vehicle registration data].

2. On the basis of an overall evaluation report on the evaluation visit and, where applicable, the pilot run, as referred to in paragraph 1, the Union shall determine the date or dates from which personal data may be supplied by Member States to the United Kingdom pursuant to this Title.
3. Pending the outcome of the evaluation referred to in paragraph 1, from the date of the entry into force of this Agreement, Member States may supply to the United Kingdom personal data as referred to in Articles LAW.PRUM.8 [Automated searching of DNA profiles], LAW.PRUM.9 [Automated comparison of DNA profiles], LAW.PRUM.12 [Automated searching of dactyloscopic data] and LAW.PRUM.14 [Supply of further personal data and other information] until the date or dates determined by the Union in accordance with paragraph 2 of this Article, but not longer than nine months after the entry into force of this Agreement. The Specialised Committee on Law Enforcement and Judicial Cooperation may extend this period once by a maximum of nine months.

Note.Myra* (My interpretation of the above, the pilot run would have been nine months from the signing of the TCA , 1 February 2022 and a further extension of 9 months till November 1 2022).

Article LAW.PRUM.19: Suspension and dis-application.
1. In the event that the Union considers it necessary to amend this Title because Union law relating to the subject matter governed by this Title is amended substantially, or is in the process of being amended substantially, it may notify the United Kingdom accordingly with a view to agreeing on a formal amendment of this Agreement in relation to this Title. Following such notification, the Parties shall engage in consultations.

2. Where within nine months of that notification the Parties have not reached an agreement amending this Title, the Union may decide to suspend the application of this Title or any provisions of this Title for a period of up to nine months. Before the end of that period, the Parties may agree on an extension of the suspension for an additional period of up to nine months. If by the end of the suspension period the Parties have not reached an agreement amending this Title, the suspended provisions shall cease to apply on the first day of the month following the expiry of the suspension period, unless the Union informs the United Kingdom that it no longer seeks any amendment to this Title. In that case, the suspended provisions of this Title shall be reinstated.

3. If any of the provisions of this Title are suspended under this Article, the Specialised Committee on Law Enforcement and Judicial Cooperation shall meet to decide what steps are needed to ensure that any cooperation initiated under this Title and affected by the suspension is concluded in an appropriate manner. In any event, with regard to all personal data obtained through cooperation under this Title before the provisions concerned by the suspension provisionally cease to apply, the Parties shall ensure that the level of protection under which the personal data were transferred is maintained after the suspension takes effect” (ii)

I have spent considerable time reading, revising so I am not available to answer questions on what is already available in the TCA.

I have avoided posting this information for some months now as I did not want to refer this information to the driving licence agreement pursued between the UK and Spain. I do though believe that anyone old enough to hold a driving licence should be privy to the complexities of negotiations.

Extract (i) from researchgate.net

Extract (ii) from the TCA.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.