Didier Bigo et al. (The Centre for European Policy Sudies)
The attacks in Paris on 7 and 9 January 2015 prompted the EU to reconsider its security policy. There were many initiatives proposed on both the EU and Member State level which were aimed at preventing radicalization, promoting the exchange information between states and institutions, limiting illegal arms trade, etc. Some of them turned out to be controversial with respect to their legitimacy, lawfulness, and effectiveness in the fight against terrorism. For example, the stated objective of the European Passenger Name Record or the revision of the Schengen Information System (SIS) is a systematic control of all travelers, including EU citizens, on the internal as well as external borders of the Schengen Area. This is in contradiction with the principles of free movement and democratic rule of law. The focus on EU citizens who also hold the citizenship of a third country, their specific attributes, or physical appearance may exhibit signs of discrimination.
The new amendments that the European Commission is introducing in SIS II through ‘implementing decisions’ lack democratic legitimacy, especially with regards to the input of the European Parliament and the European Court of Justice (ECJ). The European Parliament is critical towards the lack of debates regarding the appropriateness and effectiveness of the proposed measures. The ECJ adds that the Commission directives mean an unnecessary interference with the right of privacy and data protection. The EU will then have to guarantee the compatibility of the directives with EU laws and norms as well as their compliance with international obligations and ECJ rulings. Any transnational cooperation on national security must go hand in hand with independent judicial accountability and democratic scrutiny of intelligence communities and law enforcement practices.
Due to the disagreement over the effectiveness of these proposals, the future work will focus on the evaluation and improvement of the existing EU instruments. Any changes in the cooperation in the security realm must be in accordance with the democratic rule of law. To that end, one could say that sometimes less is more, particularly when it comes to the use and exchange of data between the police and the intelligence services. The aim should not be to gather a great amount of data – it should rather be their effective utilization in order to meet the standards of quality of the evidence for criminal proceedings in the court. Measures on large-scale data retention should only be introduced if these are essential to attain the objective pursued.
(The study can be downloaded here)
