Brexit and Eu Criminal Law – The Norwegian Approach

Abstract

Norway is not a Member State of the EU. Its main connection to the EU is the Agreement on the European Economic Area (the “EEA Agreement”). Norway is also part of the Schengen Agreement. These agreements do not regulate Norway’s participation in EU criminal law, nor is Norway involved in the judicial cooperation in criminal matters regulated in Art. 82–86 of the Treaty on the Functioning of the European Union (“TFEU”). If Norway wants to apply an EU criminal law instrument, there are two possibilities. Norway can conclude agreements tying it to a specific instrument regulating cooperation in criminal matters (such as the European Arrest Warrant) or to an EU criminal law institution (such as Eurojust). Norway can further support EU criminal law legislation, either politically or by aligning its own legislation in accordance with relevant EU criminal law legislation (such as a directive regulating either substantive criminal law or minimum procedural rights). This means that for each mutual recognition instrument a new agreement has to be made with the EU, and that each EU criminal law instrument needs to be taken into account separately. This rather pragmatic approach is therefore not very suitable for a post-Brexit UK. Before analysing the different approaches, the paper will touch upon some general tendencies relevant to the further analysis. Finally, concluding remarks sum up the important aspects and make some suggestions in relation to the UK’s position