DIRECTORATE GENERAL FOR INTERNAL
POLICIES
Justice, Freedom &
Security
National Programmes for
Mass Surveillance in EU
Member States and
Compatibility with EU Law
Presentation by
Authors:
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
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Prof. Didier Bigo (CCLS, Sciences Po, Kings College)
Dr. Sergio Carrera (CEPS)
Mr. Nicholas Hernanz (CEPS)
Dr. Julien Jeandesboz (CCLS, UvA)
Ms. Joanna Parkin (CEPS)
Dr. Francesco Ragazzi (CCLS, Leiden U. Sciences Po)
Dr. Amandine Scherrer (CCLS)
Policy Department C
Responsible Administrator: Alessandro DAVOLI
poldep-citizens@europarl.europa.eu
Outline
A. Overview of EU programmes
B. Five features of an unprecedented scale
of surveillance
C. Legal Modalities of EU Action
D. Policy Recommendations to the EP
A. Overview of EU programmes
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Tapping of internet cables and private
companies data
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A network of collaborating agencies with
GCHQ at the centre
Intelligence Agencies’ Budget
Intelligence Agencies’ Manpower
B. Five features of an
unprecedented scale of
surveillance
1.
An unprecedented scale
2.
A blurred line of legitimacy
3.
Beyond a US vs EU problem: the question
of oversight of intelligence
4.
Beyond the states : the involvement of
private actors
5.
The erosion of core of democratic and free
market principles
C. Legal Modalities of EU Action
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Are Member States large scale surveillance
programmes outside EU’s intervention? ‘Illegal’ or
‘A-Legal’
Three EU law modalities:
First, national security in a democratic rule of law framework
Second, insecurity of the Union and its citizens
Third, EU home affairs agencies
1. National Security and Democratic
Rule of Law
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MS Programmes incompatible with democratic rule of law
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Not ‘National security’ as framed by intelligence services,
rather…
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‘Democratic rule of law with fundamental rights’:
First, ECHR standards: *in accordance to the law and necessary in a
democratic society / *separation of powers and European supervision
Second, EU Charter of Fundamental Rights part of national
constitutions
2. Whose Security? Sincere
Cooperation and Privacy
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The common internal security of the Union as a whole and
sincere cooperation and trust (bypassing MLAA)
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Privacy and effective legal protection of data owners
→ Whose Ownership? Illegal access, collection and processing
→Legal (un)clarity: Different legal frameworks: ‘privacy shopping’?
→Legal loopholes: blurring external/internal interception
communications and inadequate safeguards: Discrimination?
3. EU Home Affairs Agencies
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Europol and INTCEN gathering, exchanging and processing
data from national ‘intelligence’ agencies
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No mechanism to verify data transferred to EU (sources and
means) are trusted and in compliance with democratic rule of
law – OVERSIGHT DEFICIT

Who is responsible (Liability)? and what is police and what
is intelligence?
Recommendations to the EP
A RED-LINE APPROACH
1. Professional Code and Guidelines for Transnational
Management of Data / Red-Lines (Including ECHR
standards)
2. European Privacy Cloud
3. Data Protection Draft Regulation (Article 43a)
4. EU Policy Infrastructure – Committee chaired by CounterTerrorism Coordinator, Common Model of EU
Cooperation on Intelligence and Yellow/Red Card System
Recommendations to the EP
A RED-LINE APPROACH
5. EU Home Affairs Agencies – Points of intersection subject to
democratic, legal and judicial controls AND Special
(Permanent) Inter-Parliamentary Committee
6. EU level protection for whistle-blowers
7. Suspensions of existing EU-USA agreements and
transatlantic bill or rights
*More Research and Specific Inquiry on largescale surveillance in the EU