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: Mairead McGuinness
Language: EN

The Commission has already made clear that it condemns any illegal interference in personal communications. We expect that national competent authorities and courts make full use of their powers to thoroughly investigate the allegations regarding any unlawful surveillance activities and restore citizens’ trust. The Commission also made very clear in the 2022 rule of law report that although Member States are competent to guarantee their national security, they must apply relevant EU law, including the case law of the European Court of Justice, when doing so. The rule of law requires that the response to surveillance software by Member States or the recourse, rather, to surveillance software by Member State security services is subject to sufficient control and that it fully respects EU law, including fundamental rights such as the protection of personal data, the safety of journalists and freedom of expression. The use of surveillance means in criminal investigations also has to respect procedural rights, including the rights of defendants. Robust institutional checks and balances are therefore needed to guarantee the functioning cooperation and mutual control of state organs so that power is exercised by one state authority under the scrutiny of others. It is for Member States alone to define their national security interests and to adopt appropriate measures to ensure their internal and external security. Nevertheless, this does not mean that they can merely refer to national security to exclude the application of EU law. The Court of Justice makes clear that Member States must be able to demonstrate that national security would be compromised in the case at issue. The Commission has taken action within the framework of its competence, including by enquiring about data protection implications in all the Member States and by making concrete proposals on the protection of journalists from spyware in the Media Freedom Act. However, the Commission has no competence to assess individual cases and whether specific wiretapping activities are carried out for national security purposes and has no investigatory powers in this area. Along this line, the Commission has followed with great attention the activities of the PEGA Committee of Inquiry since its establishment. It has been and continues to stand ready to assist in its work. This is a matter to which the Commission attaches the utmost importance and it looks forward to the conclusions of the work of the PEGA Committee. Furthermore, the Commission has answered several questionnaires addressed by the PEGA Committee regarding the use of Pegasus and equivalent spyware, as well as a number of parliamentary questions. Members of the College have also made themselves available upon request. They have also taken part in some plenary debates devoted to the use of spyware, including in various Member States. The Commission therefore has always fully cooperated with the PEGA Committee and will continue to do so insofar as the PEGA Committee investigates alleged contraventions or maladministration in the implementation of Union law by the Commission. Concerning the responses given by the Council and Member States to the request from the PEGA Committee. Whilst the Commission is aware of the concerns flagged in the draft PEGA report, the content of these responses has not been shared with the Commission, nor is the Commission aware of contacts or exchanges that could have taken place subsequently with the Council or Member States outside of the formal PEGA sessions. Therefore, the Commission cannot express a position on the more general questions relating to the exercise of the Parliament’s right of inquiry under Article 226 and Decision 85/167 of the European Parliament, the Council and Commission of 6 March 1995 on the detailed provisions governing the exercise of the European Parliament’s right of inquiry, or any application of the fulfilment of the duty of sincere and loyal cooperation by the Council and the Member States.