Debate: Lack of actions taken by the Commission in the context of the duty of sincere and loyal cooperation
Date: THURSDAY, 16 MARCH 2023
Speaker: Jeroen Lenaers
Country: France
Language: EN

From the first moments, we knew it would not be an easy task. It is a relatively new phenomenon. It operates in an extremely complicated international ecosystem and it has a highly technical and constantly evolving nature. But luckily, from day one, we could count on great support in conducting our investigation through information exchanges, during and outside our hearings, with a variety of stakeholders – from technical experts to the research community, from industry to journalists and civil society. We engaged with more than 180 interlocutors over the course of the last 12 months. I am frustrated, however, about the reason why I am standing here today representing the PEGA committee here in Strasbourg. Because, ever since the establishment of our committee, there have been two key stakeholders that have not fulfilled the duty of sincere and loyal cooperation, or that have refused to take decisive action in the face of a serious threat: the Member States and the Commission. As part of our fact-finding mission, the PEGA committee sent a questionnaire to the Member States on 14 July 2022, eight months ago. It contained questions about the use of spyware, the legislation governing such use and the establishment of ex-ante authorisation and ex-post supervision. A similar questionnaire was also sent to the Commission. A simple set of questions. We are not asking to divulge State secrets or for full openness on matters of national security. Simple, straightforward, factual questions that any government should be able to answer without any problem. On 12 October, we received a joint answer by the Czech presidency, which did not contain any of the information requested, but contained an assurance that the Member States would fulfil their obligations of sincere and loyal cooperation. So far, we have received answers from only 10 Member States’ governments out of 27. Thanks to parliamentary bodies, we have some more information about other Member States, but from Member States like the Netherlands, the Czech Republic, Denmark, Italy or Malta, we have no information, no response whatsoever and it is absolutely unacceptable. Hundreds of millions of Europeans that we represent as a European Parliament deserve answers to our questions, and answers are very difficult to give if governments who purchase and use this software refuse to answer even the most basic of those questions. It goes further than not just answering questions. In Hungary and Poland, governments were so afraid of checks and balances, so afraid of democratic dialogue and scrutiny that they flat out refused to meet with us. Also this is a scandal. But I also believe the European Commission should have a close look in the mirror. I know, Madam Commissioner, that you are not the responsible Commissioner here, but as a representative of the Commission, I do have to express my great disappointment and my frustration. From the very start of the Pegasus scandal, the European Commission has failed to take this threat seriously, has failed to fulfil its duties as guardian of the Treaty. The first response was ‘We will not investigate. We will not investigate because this is really something for the national authorities. The Commission cannot touch national security issues and people should instead seek justice at their respective national courts’. So the Commission, the same Commission that is taking the Polish Government to the European Court of Justice for depriving individuals of the full guarantees of effective judicial protection and for turning the highest court into a political body, that same Commission tells Polish victims of Pegasus to turn to the same judicial system to get justice. It does not make sense. This is not simply about national security. It is a rule of law issue, and the Commission should act because the Treaty is very clear: ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.’ Now this Parliament is carrying out its tasks, but without any assistance from the Member States or the Commission. The principle is unfulfilled. What we see in practice is not sincere and it is not even cooperation. Therefore, the Parliament, which considers the duty of sincere and loyal cooperation to be unfulfilled, asks the following questions: What action has the Commission taken or will it take in response to this breach of the duty of sincere and loyal cooperation by the Member States? Has it initiated procedures to address this violation? If not, when will it do so? Can it explain what steps it has taken to fulfil its own duty of sincere and loyal cooperation with the PEGA committee?