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On Thursday morning I will take the early morning train to Paris. Not for a romantic short break or a tourist visit, but for a court case. At 9 a.m. sharp I am expected in the prestigious Conseil d’État, for the hearing in the court case I started against the French state in September 2016.
What is it about? In July 2015 French Magazine Le Nouvel Observateur revealed the existence of a vast secret surveillance programme, authorised already in 2008 by Nicolas Sarkozy, and subsequently by François Hollande.The French Constitutional Court criticised the absence of a proper legal base for the surveillance programme, so in autumn 2015 a law was passed in a rush, more or less legalising the existing practice.
I spend four days on French territory each month (as the European Parliament meets in the French city of Strasburg each month), so in principle, my communications could have been captured as well. And although French parliamentarians are exempt from the 2015 surveillance law, members of the European Parliament are not. I decided to submit a complaint to the oversight body CNCTR. The CNCTR considered no illegal acts had taken place, despite the fact that at least between 2008-2015 surveillance had taken place without a legal base. I subsequently launched a legal challenge before the French supreme court, the Conseil d’État.
Of course law enforcement and security agencies must get all the instruments they need for fighting crime and terrorism. And anyone with a heart will understand that in France, hit so dramatically and frequently by terrorists, security concerns are a top priority.
However, in the fight against terrorism, we have to make sure citizens’ rights are not unduly restricted, and the rule of law not undermined. The EU Court of Justice has indeed stated unambiguously that the EU Charter of Fundamental Rights fully applies to national surveillance laws.
The UK Data Retention and Investigatory Powers Act (DRIPA) for example, was considered to be contrary to EU law, and had to be revised. The Dutch 'Wet op de Inlichtingen en Veiligheidsdiensten (Wiv)' will possibly be challenged in court as well. It is up to the Dutch government to make sure the revised Wiv will be “ECJ proof”.
In France as well, the 2015 surveillance law drew sharp criticism from various sides (including by the man who later on became Prime Minister).
The interceptions from 2008-2015 must clearly be considered unlawful. But the 2015 law, meant to provide a legal base, is not in line with EU law either. There are insufficient legal safeguards, such as the right to adequate legal redress. The law also allows for blanket surveillance, i.e. including persons who are not suspected of any crime, without judicial intervention. The European Court of Justice has repeatedly made clear that such large scale and indiscriminate retention of personal data, without due cause, is not allowed.
Even if all national surveillance laws were in line with EU law, there is a vast grey area of cross border cooperation and exchange of information between national security and intelligence services, that escape any form of regulation or scrutiny, as the recent, alarming report by the Dutch supervisor of the intelligence services CTIVD shows. The CTIVD urgently calls for additional legal safeguards.
We cannot predict or pre-empt the decision of the Conseil d’État. If necessary, it cannot be ruled out to bring the case before the EU Court of Justice or the Human Rights Court in Strasburg. Citizens must be protected by the same rules, regardless of the EU country they are in, and surveillance laws must drawn up in full respect of EU fundamental rights.