A. Introduction
The European Union Agency for Law Enforcement Cooperation (Europol) is the largest and most significant hub for information exchange between the European Union (the Union, the EU) and its Member States, with one of its main tasks being the collection, storage, processing, analysis, and exchange of information that includes criminal intelligence. Footnote 1 The establishment of the Joint Parliamentary Scrutiny Group (JPSG) marked the beginning of a new era whereby the European Parliament and the national parliaments cooperate in overseeing Europol’s activities. Footnote 2 The effectiveness of the oversight exercised by the JPSG has been seriously hindered by the so-called originator control principle (ORCON) since access to EU classified information was made possible but “only with the prior written consent of the originator.”Footnote 3 The ORCON principle, commonly also referred to as the “third-party rule,” Footnote 4 confers upon the “originator of secrets” the exclusive discretion to decide if and how their secrets are to be distributed and shared. Footnote 5
Despite its fundamental significance for protecting the highly sensitive sources and methods used for acquiring intelligence information, the ORCON principle is generally considered to be “a major impediment” to intelligence sharing in practice, Footnote 6 which also holds true in the context of EU intelligence sharing. Footnote 7 In the case of JPSG’s monitoring activities, this means that some of the questions addressed to the Europol Executive Director may be left unanswered since they may choose not to reveal confidential information (or may be compelled to do so). Footnote 8 Further, the ORCON principle renders sensitive information used in finance or strategic analysis reports, threat assessments, and general situation reports inaccessible to the JPSG, reserving the classified version only for the executive community of intelligence and security actors. Footnote 9
However, it must be noted that the restrictive effect of the ORCON principle goes far beyond joint parliamentary scrutiny at Europol. The ORCON principle is deeply entrenched in the European Union Classified Information (EUCI) legal framework and has been articulated in different rules across a wide spectrum of legal instruments used by the Council, the Commission, other EU bodies and agencies, and oversight institutions. Footnote 10 Broadly speaking, the ORCON principle in the EUCI postulates the following:
…if the information has been classified by State (or Agency) A, it cannot be reclassified or declassified by State B (or an international organisation) unless State A consents to the change. Similarly, no information provided by State A can be given by State B (or an international organisation) to a third party — such as another government, non-governmental organisation or citizen — without the consent of State A. The ORCON rule thus eliminates the ability of states/agencies/international organisations to make their own judgments about the wisdom of releasing shared information. Footnote 11
Today, the ORCON rule exists in ‘hard’ form in the EUCI, Footnote 12 as it expressly places the burden of responsibility on the requesting party to obtain written approval from the originator, whose consent is considered “(almost) absolute.” Footnote 13 For the purposes of this Article, “absolute originator control” denotes the uncompromising implementation of the ORCON principle that requires the EU overseer (more specifically, the European Parliament as represented in the JPSG) to request the originator’s consent to access confidential information for the purposes of exercising its monitoring functions at Europol. Note that this Article takes issue with the absolute implementation of the originator control principle but does not oppose the originator control principle itself. In other words, it will be shown that the European Parliament must be allowed at least some degree of access to classified information, which the originator of that information cannot block if the requirements of EU constitutional law are satisfied.
There is no shortage of suggestions for legal reform designed to relax the uncompromising implementation of the ORCON principle. While some recommend that the ORCON rule be amended at the national level to make an exception for the overseer, Footnote 14 others favor the idea that the institutional design, legal rules, and parliamentary oversight at the EU level should be adapted to accommodate the ORCON principle. Footnote 15 Regardless of the preferred future practical solution, one must first build a solid theoretical foundation to justify such changes, based on EU law as it stands today.
For this purpose, Vigjilenca Abazi observes that the flawed practice of absolute originator control in the EUCI violates the duty of sincere cooperation (Article 4(3) TEU), which demands that the Union and its Member States assist each other “in full mutual respect” when executing the tasks prescribed by the EU Treaties.Footnote 16 Abazi argues that the European Parliament’s access to classified information must be allowed based on its function as a provider of democratic legitimacy through direct representation, as a guarantor of openness and transparency, and as a guardian of fundamental rights. Footnote 17 Although the current legal approach to this problem covers the foundational aspects of its EU constitutional dimension succinctly and competently, it is unhelpful in clarifying the limits of the duty of sincere cooperation owed to the Union by its Member States and to the Member States by the Union.
The central EU constitutional problem exposed by absolute originator control is how the tension between the duty of sincere cooperation (Article 4(3) TEU) and the Union’s commitment to respecting the national identities of its Member States (Article 4(3) TEU) must be resolved in this context. The absolute implementation of the ORCON principle is directly related to the latter consideration. According to Article 4(2) of the 2011 Agreement between the Member States and the Council, Footnote 18 the principle of originator consent must be respected “in accordance with [the] constitutional requirements, national laws and regulations” of each party to [the] said agreement. This formulation suggests that the ORCON principle is a manifestation of a Member State’s desire to protect its national sovereignty, which means that compliance with the ORCON principle is a matter of respecting the division of competences, as determined in Article 4(2) TEU. In practice, a Member State’s willingness to share intelligence with the Union would be jeopardized if that red line were to be overstepped by the EU. The necessity to avoid such an unfavorable constitutional outcome certainly plays a substantial role in justifying the absolute implementation of the originator control principle in the exchange of EU classified information. Thus, the main difficulty in resolving this EU constitutional problem is identifying the legal criterion, according to which the Member States’ duty of sincere cooperation must take precedence over the Union’s commitment to respecting their national identities. Abazi notes that although the principle of conferral might be relevant, it is of limited use in this specific practical context. Footnote 19
Following the traditional path of legal reasoning leads to a dead-end street. It is here that doctrinal analysis meets its natural limits in resolving this EU constitutional problem. This is because this is no ordinary EU constitutional problem but one that is grounded in considerations of the sociopolitical phenomenon of trust in international intelligence cooperation. The existing legal framework and its theoretical justification often fail to incorporate considerations of trust. On the rare occasion they do, the preservation of trust between the originator and the Union through absolute originator control is prioritized above all else, without paying due regard to the adverse effects of the uncompromising implementation of the principle of originator control might have on other trusting relationships in the Union. Thus, to construct a truly compelling argument against absolute originator control in the EU legal order, legal arguments must be meaningfully aligned with trust considerations. In other words, the current gap between these two areas of knowledge must be bridged. In addition, the theoretical account of trust used in this context must be developed and refined towards a broader and more productive conceptualization of trust in the Union.
I. A novel interdisciplinary approach based on trust
This interdisciplinary Article addresses this concern by combining doctrinal legal analysis with insights from trust theory in the social sciences. Applying trust theory in this context is necessary because the sociopolitical phenomenon of trust has been recognized as an essential prerequisite for intelligence sharing. Footnote 20 For intelligence cooperation to take place based on trust, the parties must believe that “the relationship will be mutually beneficial, that confidentiality will be maintained, and that the rules of intelligence sharing will be obeyed,” the latter necessarily including the principle of originator control. Footnote 21
In the absence of a strictly defined formal obligation to share information with EU agencies, except in cases of information gathered in criminal proceedings in connection with terrorist offenses,Footnote 22 Member States are free to decide whether to share or withhold intelligence information. No Member State can be compelled to “supply information the disclosure of which it considers contrary to the interest of its security” (Article 346(1a) TFEU). Thus, the Union’s main motivation behind allowing the uncompromising implementation of the ORCON principle thus far is clearly needed to safeguard and sustain the trust of the Member States towards its institutions and agencies so that the former will continue to voluntarily share intelligence with the latter.
The impression that the originator control principle is essentially a trust-building mechanism is confirmed upon closer scrutiny of the limited capabilities of the principle of originator control if viewed purely as a legal norm. First, in practice, it is extremely challenging to establish and then prove a breach of the originator control rule, Footnote 23 which makes imposing and enforcing sanctions for any such transgression difficult. Second, although at first glance it might seem that the ORCON requirement is easy to satisfy – one need only ask for the originator’s permission to share information with a third party – that permission may be denied without any justification Footnote 24 or any means of appeal. Third, intelligence services are highly likely to abstain from approaching the originator for permission in the first place since this simple act may be taken as a sign that there are grounds for concern and reassessment of the relationship, both in terms of past and future exchanges. Footnote 25 For these reasons, it appears that:
The third-party rule is essentially a self-enforcing norm or convention which all stakeholders in an intelligence-sharing community have a common interest in upholding because defection may compromise their ‘sent’ information and curtail the flow of inbound information. Footnote 26
Thus, the ORCON rule’s normative power is rooted in its significance for regulating trusting relationships in the intelligence community. This conclusion aligns with the social practice account of the normative model of legal obligation, elucidated by Stefano Bertea. Footnote 27 Further, it conforms to Bruno DeWitte’s understanding of EU institutional practices, such as absolute originator control in the exchange of EU classified information, which is equally important as a doctrinal legal scholarship in the construction of EU legal knowledge. Footnote 28
Based on this evidence, any legal argument against the uncompromising implementation of the principle of originator control in regulating the exchange of EU classified information must necessarily consider how these legal measures impact trust since trust is essential to our understanding of intelligence sharing in the EU. Thus, the main contribution of this Article is to enrich the theoretical basis for the current legal approach by incorporating insights from trust theory to build more compelling legal arguments against absolute originator control in EUCI. This research endeavor demands moving past the narrow focus on the trusting relationship between the Union and the originator of EU classified information to explore the vertical trusting relationships between the Union, its Member States, and its citizens, as well as the horizontal trusting relationships among Member States and between the EU citizens from different Member States. Therefore, this vision entails a multilevel understanding of trust, which has a holistic effect and systemic implications.
The main aim of this novel trust-based approach is to highlight the theoretical potential of the absolute implementation of the principle of originator control to cause detriment to a variety of interstate, institutional, and interpersonal trusting relationships in the EU legal order. It will be demonstrated that the result of absolute originator control would inhibit the Union’s ability to effectively fulfill its duties as a trustee, which contradicts the effet utile of Article 4(3) TEU and other Treaty provisions or general principles of key constitutional significance in EU law. In other words, it will be demonstrated that the absolute implementation of the originator control principle is incompatible with a trust-based reading of some of the main tenets of EU constitutional law.
II. Applying the trust-based approach to the example at hand
To apply this novel approach in practice, this Article puts forward a trust-based understanding of the duty of sincere cooperation (Article 4(3) TEU) and other EU constitutional principles. The example of absolute originator control blocking joint parliamentary scrutiny at Europol was chosen as particularly appropriate due to Europol’s tremendous significance as a center for information exchange in the Areas of Freedom, Security and Justice. Furthermore, the example was selected because of the JPSG’s pioneering approach to EU parliamentary oversight of the exchange of EU classified information at Europol. A similar oversight mechanism is at play at FRONTEX, which is another EU agency that processes intelligence information. The crucial difference is that, at FRONTEX, the principle of originator control does not apply in its absolute form.
The following analysis will begin by elaborating on the notion of trust and its application in the constitutional context of the EU legal order, which includes clarifications as to the choice of specific trust theories to use in this scenario (Section B). Section C explores a trust-based understanding of the effet utile of Article 4(3) TEU. The next three sections include a detailed account of the trust-based arguments against absolute originator control blocking joint parliamentary scrutiny at Europol, as raised above. Section D presents a trust-based interpretation of Article 13 TEU, whereby absolute originator control creates an irresolvable conflict (labelled as “conflict of encapsulated interest”) between the Union’s duties as a trustee, namely its duty to protect the interests of its citizens and its duty to safeguard the interests of its Member States. Section E shows that the uncompromising implementation of originator control would be a violation of the principle of equality of EU citizens contained in Article 9 TEU, which would undermine trust in the Union by making the JPSG unable to give all EU citizens “equal attention.” Furthermore, it would also cause legal incoherence in constitutional terms since it forces a confrontation between the two main components of what Armin von Bogdandy termed the “dual structure of democratic legitimation” in the EU. Footnote 29 In Section F, it will be demonstrated that absolute originator control blocking democratic oversight requires the Union to trust the originator, which undermines trust in the Union in terms of its ability to ensure the effective implementation of the rule of law through oversight, and contravenes the established understanding of mutual trust in the Area of Freedom, Security and Justice. Section G contains concluding remarks, which summarize the main findings. Ultimately, it will be shown that insights from trust theory align with and supplement doctrinal legal analysis to show that absolute originator control must not be allowed to impede joint parliamentary scrutiny at Europol.
B. The Applicable Trust Theories Footnote 30
I. Conceptualizing trust according to rational choice theory
Trust is a multifaceted and multidisciplinary phenomenon with no single universally accepted definition or investigative approach attached to its name. Nevertheless, when it comes to the study of cooperative behavior in the context of cross-border intelligence sharing, “[t]wo distinct agent-based models, or operating mechanisms” stand out as a means to mitigate uncertainty about the partner’s response, namely “the mechanism of rational calculations” and “the mechanism of social relations.” Footnote 31 The former views trust from the prism of rational choice theory, while the latter relies on insights from sociology to analyze trusting relationships.Footnote 32 From the perspective of rational choice theory, one must make rational calculations based on a cost-benefit analysis of their partner’s predicted behavior. To secure their partner’s cooperation, one must decrease the risk of their partner’s unexpected defection by insuring against that possibility through exercising control (for example, by introducing contractual safeguards).Footnote 33
Thus, rational choice theory can help us explain why the notion of trust is an indelible part of the motivation to apply the originator control principle in the relationship between the Union and its Member States in this particular scenario. James Ingoe Walsh argues that the ORCON principle is a remedy for distrust between the senders and receivers engaged in intelligence sharing, even at the EU level, whose main function is to reduce the risk of defection. Footnote 34 In this sense, defection denotes “passing shared intelligence to unauthorized third parties, or sending inaccurate, incomplete, or fabricated intelligence to others.” Footnote 35 The fear of defection, which effectively leads to the violation of the established cooperation agreement between the parties, is the greatest inhibitor to intelligence sharing. Footnote 36 Clearly, the ORCON rule prohibits defection of the first type – the transfer of intelligence to a third party without the prior consent of the originator. In such a case, the receiver will be reneging on the intelligence agreement by purposefully or inadvertently sharing intelligence with a third party, which may well serve the receiver’s best interests but certainly not those of the sender. Footnote 37 In the scenario at hand, Member States are reluctant to share classified information with the EU overseer; that is, the European Parliament as represented in the JPSG, since they fear that information may be leaked, leading to far-reaching damage to intelligence networks and sources and perhaps even the loss of human lives.
Despite its utility in this context, the rational choice theory approach could be criticized because it assumes that the intelligence services possess a rationality that allows them “to fully grasp the indirect and asymmetric cost and benefits of cooperation and adjust their behavior accordingly.” Footnote 38 In practice, rational calculation may be inhibited by “incomplete information, cognitive biases, imperfect memory, and an inability to fully analyze the complexities of the environment.”Footnote 39 After all, it would be challenging to constantly and simultaneously keep track of the different outcomes of past cooperation with a wide variety of partners and factor that into decision-making, monitoring, and sanctioning in future interactions with each of them.Footnote 40 More importantly, the rational choice theory approach is said to leave little margin for error, interpretation, or uncertainty.Footnote 41
For all of these reasons, some scholars give preference to the social relations approach in analyzing international intelligence cooperation. This mechanism fosters cooperative behavior “when the partners accept to be vulnerable in their dealings with a specific counterpart or exchange framework.”Footnote 42 In contrast to the objective assessments that underpin risk calculations in rational choice theory, the social relations approach requires that one partner relies on their “subjective beliefs and perceptions” to create reasonable expectations of the other’s behavior.Footnote 43 Thus, the decision to trust depends on a partner’s trustworthiness, as exhibited by their character and past behavior in repeated interactions.Footnote 44 This account defines trust as “the intentional and behavioral suspension of vulnerability by a trustor on the basis of positive expectations of a trustee.”Footnote 45 Therefore, trust between intelligence services is categorized as a form of interorganizational trust that indicates “the extent to which members of one organization hold a collective trust orientation toward one another.”Footnote 46 This understanding of trustworthiness could be extended to individuals, organizations, and networks.Footnote 47
The social relations understanding of trust might be appropriate for describing cross-border cooperation between national intelligence services, but this theoretical approach might not necessarily be sufficient or productive when conceptualizing the trusting relationship between EU institutions and agencies and Member States, as represented by their respective national intelligence services. The fact that EU institutions, agencies, and Member States are bound by EU law reduces the complexity and uncertainty that would otherwise exist in transnational, interstate, or interorganizational interactions. More importantly, it creates a shared foundation of EU values and objectives. The constitutional importance of (mutual) trust as a fundamental building block to the EU rule of law, as defined by Article 2 TEU values, has now been recognized in the CJEU’s jurisprudence and legal scholarship in the EU.Footnote 48 Therefore, trust is deeply ingrained in the constitutional makeup of the EU, which demands a closer look into the way legal norms promote trust and mitigate distrust on a global scale in the Union. Such an ambitious investigative agenda recognizes and accepts the importance of social relations for building and sustaining trusting relationships in the Union. However, regulating cooperative interactions and assessing trustworthiness on a case-by-case basis, based on subjective criteria, would be empirically challenging and make it extremely difficult to draw generalized conclusions on a trust-based interpretation of EU Treaty provisions. With its emphasis on objectivity and rational motivations for trusting a partner, rational choice theory is the more appropriate methodological choice.
Thus far, preserving the trusting relationship between the originator of EU classified information and the Union has been the sole focus of any legislative efforts or academic analysis in this area. The central purpose of this Article is to highlight the cost of prioritising this trusting relationship above all else, namely the detrimental effects on other trusting trusting relationships in the Union. To this end, one needs to move on from the narrow conceptualization of social-relations trust, which is characteristic of the trusting relationship between the originator of EU classified information and the Union, to a broader understanding of trust in rational choice theory. This would only be possible if one were to allow for the coexistence of these two conceptualizations of trust, with the former being subsumed by the latter. Admittedly, some may question whether it is methodologically sound to mix rationalist/calculative and extra-rationalist/non-calculative approaches to trust. After all, trustworthiness based on shared values is an inherently extra-rationalist approach in that it relies on the criteria of benevolence, integrity, and a special relationship between the actors to justify the decision to trust. However, it could be argued that “rationalist forms of trust can be seen as a pre-stage of non-calculative norms of trust.” Footnote 49 Indeed, once a channel of exchanging EU classified information is established at the EU level to serve EU constitutional values and to pursue EU objectives through trust (as explained by rational choice theory), repeated successful cooperative interactions with the same actors will, in all likelihood, progress to building trust at all levels (through the social relations mechanism). The former mechanism sets the scene for the latter.Footnote 50 Therefore, these two visions of trust cannot and must not be isolated from each other. Rather, it must be acknowledged that they influence and feed off each other.
II. Trust as encapsulated interest
The analytical framework at the center of this Article is based on Russell Hardin’s theory of trust as encapsulated interest Footnote 51 , which is rooted in rational choice theory.Footnote 52 Hardin explains his theory of trust in the following terms:
Your trust turns not directly on your own interests but rather on whether these are encapsulated in the interests of the trusted. You trust someone if you believe it will be in her interest to be trustworthy in the relevant way at the relevant time, and it will be in her interest because she wishes to maintain her relationship with you. Footnote 53
According to this account, trust is not generated on mere expectations of the partner’s behavior but on the reasons behind such behavior. Footnote 54 Hardin asserts that “[t]he typical reason for the expectations is that the relations are ongoing in some important sense,” whether that is in the context of a dyadic (one-way trust or mutual trust) or a thick (group or societal) trusting relationship. Footnote 55 Within this setting, thick trusting relationships define the trust and mistrust dynamics between EU Member States and the EU at an interstate and interorganizational level. The reason is that EU Member States share a rich history and an ongoing relationship of repeated cooperation between themselves and the Union on a wide array of issues, including intelligence information exchange.Footnote 56
The theory of trust as encapsulated interest was specifically selected to be applied to this scenario because it helps us gain a more in-depth understanding of the undertheorized notion of an agent’s “interest” in this scenario, which is directly related to an objective assessment of the agent’s motivations, objectives, and values. This is particularly helpful in terms of the concept of the Union’s interest, discussed in Sections C and D. Thus, trust theory can help us formulate a more realistic and faithful interpretation of Article 13 TEU, which clarifies that there are a number of stakeholders whose interests are entangled in the matter of the exchange of EU classified information between the originator and Europol – those of the Union (as represented by its institutions and agencies), its Member States, and its citizens. This configuration involves a set of diverse actors bound together by trusting relationships at interpersonal, interinstitutional, and interstate levels. To rely on social relations theory to discern the subjective perception of trustworthiness in pairs of intelligence-sharing partners in the hope of finding empirical evidence of an increase or decrease in trust in this wide array of trusting relationships would be a tremendous challenge. However, rational choice theory allows us to predict outcomes about trusting behavior based on the partner’s objectively ascertained motivations. The values and objectives, which create legal obligations and impose limits on these parties’ behavior, are formulated in the EU Treaties. Therefore, rational choice theory, specifically Hardin’s theory of encapsulated interest, is better suited to serve as the theoretical basis for conceptualizing trust in this context.
III. A multilevel conceptualization of trust
One objection against the choice of this approach might be that Hardin’s theory on trust as encapsulated interest was originally intended to be primarily applicable in the context of interpersonal relationships. In this context, it could be problematic to speak of trust in terms of imputing intentions to institutions or states Footnote 57 (in a manner similar to individuals) because of the inherently impersonal nature of institutions. Footnote 58 Such an argument could cast doubt on its applicability in the context of explaining the dynamics of the relationship between the Union and its Member States or among Member States.
In response, it could be argued that trust theory has previously been used to describe the trust dynamics behind the intelligence-sharing that occurs between the Union, as represented by its institutions and agencies, and its Member States.Footnote 59 Furthermore, scholars of international relations recommend the adoption of an “encompassing concept of trust,” which pertains to both trust between collective actors (international organizations, states) and non-collective actors (individuals). Footnote 60 Such a conceptualization of trust could be endorsed subject to a set of specific conditions; namely, the level of analysis must be explicitly defined, the transfer of trust from the individual level to the organizational level must be clearly theorized, and the international organization must not be anthropomorphized.Footnote 61 Similarly, social scientists specializing in management and organizational studiesFootnote 62 propose a multilevel perspective on trust, which blurs the lines between interorganizational and interpersonal trust. The justification behind this approach is that “the isolation of trust at a single level of analysis, ignoring processes and factors from other levels creates non-trivial gaps in our understanding of trust” and inhibits the study of the relationship between interpersonal and interorganizational trust.Footnote 63 It must also be pointed out that organizational structures could influence an individual’s level of trust and vice versa.Footnote 64 Thus, the insistence on drawing a firm line between interpersonal and interorganizational trust might be unfounded.
The multilevel understanding of trust proposed here is particularly appropriate to this research setting due to the specificities of the EU as an international organizationFootnote 65 , as per Brugger et al.’s recommendation.Footnote 66 In the EU legal order, EU citizens (individuals), EU Member States (states), and EU institutions and agencies (organizations) are all bound by EU values and pursue EU objectives in their decision-making and conduct. Trust is both the cause and effect of shared EU values, whereas distrust is an expression of disregard for such values. The fact that this fundamental ideological agenda reaches every level of the constitutional makeup of the Union, without exception, is evident in the wording of Article 2 TEU, which specifies that the Union is “founded” on such values. The TEU explicitly regulates trusting relationships at all three levels. Article 2 TEU makes it clear that EU values are “common to the Member States” (emphasis added). Article 13 TEU declares that “[t]he Union shall have an institutional framework which shall aim to promote its values…”(emphasis added). Finally, Article 1 TEU holds the promise of “an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen” (emphasis added). The latter finding reinforces the impression that EU integrationist policy, including the legal rules on the exchange of EU classified information, is intended to benefit EU citizens.
In contrast to any international organization whose scope of action is restricted to the intergovernmental level, the EU sustains a direct, close, and personal relationship with the nationals of Member States through the notion of EU citizenship. That is why any EU legal norm that impacts a single trusting relationship in the Union has a holistic effect on other trusting relationships. For this reason, it would be erroneous and counterproductive to analyze the trusting relationship between the Union and the originator of EU classified information in isolation, without taking into consideration its influence on other trusting relationships unfolding at other levels in the Union.
IV. The Systemic Impact of Trust in the Exchange of EU Classified Information
The multilevel and holistic understanding of trust is applied appropriately in this context since trust has a systemic – not just incidental or random – impact on the exchange of EU classified information. On a systemic level, the originator control principle plays a central role because it helps promote trust among EU institutional actors, the EU overseer, and the national executive actors; that is, the national intelligence services of EU Member States. According to Piotr Sztompka, the originator control principle is a manifestation of institutionalized distrust. Footnote 67 Further, Abazi offers an explanation as to how the influence of the ORCON principle spreads in the EU legal order “as a domino effect” Footnote 68 to allow national executive actors to dictate the regulation of the exchange and classification of such information at the EU level, which means they essentially retain full control over the shaping and evolution of the EUCI. For this reason, the ORCON principle could be viewed as a codified trust-building mechanism in the EUCI.
These findings further reinforce the impression that any legal interpretation that determines the fate of the originator control principle in the EU legal order must always entail considerations of trust. This evidence also confirms that trust unfolds in a systemic fashion in the exchange of EU classified information, tying up the threads of a variety of trusting relationships at all levels. Thus, the trusting relationship between the originator of EU classified information and the Union is but one of many interrelated established bonds of trust in the EU. Therefore, it stands to reason that the impact of absolute originator control on trust in the Union cannot possibly be contained within this trusting relationship. The following sections present an attempt to theorize some of the major EU constitutional implications of absolute originator control in terms of trust and show its detrimental impact on other trusting relationships in the Union.
C. Trust and the Effet Utile of Sincere Cooperation (Article 4(3) TEU)Footnote 69
In this section, the connection between the principle of sincere cooperation, as formulated in Article 4(3) TEU, and trust will be explored in greater detail as the theoretical basis for bridging the gap between trust and law. This Article puts forward a novel trust-based understanding of the effet utile of sincere cooperation, articulating precisely how trust theory is integrated into the legal analysis. As a first step, explaining why the effet utile of Article 4(3) TEU needs to be used as the gateway for incorporating considerations of trust into the legal analysis is important.
The notion of effet utile refers to the practical effectiveness Footnote 70 of a provision of EU law. The assessment of the practical effectiveness of a norm of EU law comes into play when the wording of the provision and the tools of doctrinal legal analysis are unable to provide a definitive answer to the legal question under deliberation. Footnote 71 Further, the effet utile of a provision is debated in the CJEU’s reasoning when the uniformity and effectiveness of EU law might be threatened by a particular interpretation or through the behavior of a certain Member State. Footnote 72 Since the wording of Article 4(3) TEU gives no indication as to whose interests – whether those of the Union or those of the Member States – should take precedence in a situation where the parties must assist each other “in full mutual respect,” the provision leaves some interpretative freedom to the adjudicator. Footnote 73
The effet utile of any legal norm in EU law is a reflection of the Union’s efforts to find legal solutions that will facilitate the fulfillment of the Union’s integrationist agenda – “an ever closer union among the peoples of Europe” (Article 1 TEU). Empirical studies show that arguments based on effet utile are used in the CJEU’s jurisprudence to “stabilize the law. .. and also to convey an impression of doctrinal continuity, effectiveness, and relevance.” Footnote 74 Thus, effet utile could be understood as “a legal judicial means that allows the Court to develop a coherent body of case law without risking [a] major political backlash from the Member States.” Footnote 75 These findings indicate that the inclusion of effet utile in the CJEU’s argumentation is intended to safeguard the relationship between the Union and its Member States by ensuring the coherence and acceptability of the Court’s jurisprudence. Following this line of reasoning, it makes sense to conclude that the effet utile of any provision of EU law is necessarily directed at preserving the close and cooperative vertical relationship between the Union and its Member States. In the all-encompassing spirit of Article 1 TEU, this logic could be extended to preserving the horizontal relationships between EU Member States and the vertical relationship between the Union and its citizens.
Within this framework, it is argued that the effet utile of Article 4(3) TEU is not simply safeguarding and ensuring loyal cooperation between EU actors per se but promoting trust in the Union.Footnote 76 The connection between trust and sincere cooperation has been explicitly recognized by the CJEU: “the principle of sincere cooperation also implies that of mutual trust.”Footnote 77 Further, Damien Gerard has argued that the scope of the application of mutual trust could be extended to “constitutionalism” if attached to the principle of sincere cooperation.Footnote 78 In the context of intelligence sharing in the EU, Satish Sule has commented on the ability of Article 2 TEU and the principle of sincere cooperation (Article 4(3) TEU) to impose limitations on the intelligence activities between EU Member States.Footnote 79 More importantly, Sule highlights the importance of mutual trust, supplemented by mutual consideration and respect, as a minimum requirement for cooperation between Member States in this context.Footnote 80
At the same time, to preserve, build, and sustain trust, the Union must ensure a uniform standard of legal protection in the EU legal order and, to be seen as trustworthy, it must inspire confidence that it can effectively respond to rule of law violations. Footnote 81 While this reasoning has been specifically applied to the context of containing the rule of law crisis in certain backsliding Member States such as Hungary and Poland,Footnote 82 the Union has a similar duty to protect oversight mechanisms by EU institutions for the purposes of monitoring the activities of EU agencies as an expression of the day-to-day implementation of the rule of law. This reasoning is predicated on the belief that, in the EU, “the rule of law does not only have a formal, but also a material side and includes the substantive claims of justice and prohibition of arbitrariness,” which demands that norms regulating decision-making processes are judged according to principles such as legal certainty, legitimate expectations, and proportionality.Footnote 83
The implementation of the principle of sincere cooperation through trust is dependent on the rule of law, binding actors at all levels in the Union:
As an element of constitutionalisation, the principle of the rule of law does not only permeate the Union constitution itself, but the entire Union legal order and all legal relationships within the scope of application of Union law, that is, the relationships between the institutions, the Member States as well as the Union citizens, and vice versa.Footnote 84
Further, the CJEU has held that there can be no mutual trust without compliance with Article 2 TEU values, one of which is the rule of law.Footnote 85 The promotion of the rule of law is further recognized as one of the most important objectives in the institutional framework of the Union (Articles 3(1) and 13(1) TEU), which triggers the duty of sincere cooperation in respect of both obligations articulated in the second and third sentences of Article 4(3) TEU.Footnote 86
Finally, there is one more important reason why the effet utile of the principle of sincere cooperation must be interpreted in the context of trust – the need to clarify the meaning of the notion of Union interest (Article 13 TEU). Marcus Klamert highlights the inherent complexity of this task:
The concept of Union interest can be understood as the broadest possible point of reference for the duty of compliance with or the duty of consideration for certain objectives of Union law. The Union interest itself however does not impose duties of abstention on the Member States. It does not yet serve as another self-sufficient principle for policing the border between the exercise of Union and national powers.Footnote 87
Although the concept of Union interest is incapable of autonomous action in this sense, Klamert goes on to explain how it could be operationalized through the principle of sincere cooperation:
I submit that [Article 4(3) TEU] is the basis for binding obligations of abstention of the Member States to protect the Union[s] interest. The Union interest thus provides a point of reference for locating the objectives protected by Article 4(3) TEU. As such, the Union interest is safeguarded only if it is expressed in a sufficiently concrete form (…) since every action of the Union must serve a certain Union interest, it is also involved when the Union passes a directive or other measure. The more concrete and mature in a legal sense the expression of Union interest is, the stricter the obligations flowing from Union law will become.Footnote 88
As the “gravitational force of European Union law,” loyalty, as expressed in Article 4(3) TEU, is best positioned to represent the Union’s interest and withstand pressure from Member States seeking to protect their own interests through invoking Article 4(2) TEU. Footnote 89 However, this agenda can only be fulfilled if the Union’s interest is articulated with sufficient precision in the context of a specific scenario. Trust theory could help us particularize and contextualize the Union’s interest, which will allow for the principle of sincere cooperation to transform it into a constitutional requirement with sufficient normative force to terminate the flawed practice of absolute originator control impeding joint parliamentary scrutiny at Europol.
D. Argument 1: Trust and the Union’s Duties as a Trustee Under Article 13 TEU
Let us now take a closer look at Article 13 TEU to determine the meaning and content of the notion of Union interest in this particular scenario:
The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. (Emphasis added.)
It is clear from the provisionʼs wording that there are three distinct categories of interests – interests belonging to the Union, interests belonging to the EU citizens, and interests belonging to the EU Member States. Further, by virtue of this provision, the Union commits to serving all three interests through its institutional framework, which includes the European Parliament and the Council, among others.
Article 13 TEU follows the logic of trust as encapsulated interest: the Union commits to protecting the interests of the EU citizens and those belonging to the EU Member States, alongside its own. In other words, the Union is the trustee protecting the interests of two trustors – the EU citizens (Trustor A) and the EU Member States (Trustor B).Footnote 90 In the institutional framework of the Union, the Council represents the Union in its role as a trustee serving the interests of the EU Member States (Article 15(2) TEU). Similarly, given that EU citizens directly elect the EU Parliament, the European Parliament represents the Union in its role as a trustee serving the interests of the EU citizens (Article 14 TEU).
Why could the EU Member States not represent the interests of the EU citizens as well as their own on the EU level? EU citizens are “directly represented at [the] Union level in the European Parliament,” as per Article 10(2) TEU, which clearly makes the European Parliament the principal guardian and representative of their collective interest at the EU level. More importantly, Article 3 TEU explicitly asserts that “the Union shall offer its citizens an area of freedom, security and justice” (emphasis added). Thus, the Area of Freedom, Security and Justice (AFSJ) was created explicitly for the benefit of EU citizens, not EU Member States and their governments. Therefore, the Union’s duty to serve the interests of EU citizens cannot be overlooked or be subsumed under that of serving the interests of EU Member States.
The division between the interests of different stakeholders is crucial to the constructive application of Hardin’s theory here. Encapsulating interest means that the trustee commits to protecting the interests of the trustors alongside its own. It seems Hardin’s theory presupposes that the respective interests of the trustee and the trustor remain separate but inextricably linked. The trustee is considered trustworthy by its trustors because the trustor believes the trustee’s interests and those of the trustor are so closely aligned that, in protecting its own interests, the trustee is bound to protect those of the trustor. Footnote 91 What is the trustee’s primary interest, such that it compels them to protect the interests of the trustor? To secure the trustor’s continued cooperation in the trusting relationship, as explained earlier. Footnote 92 The moment that any or all of the trustee’s other interests outweigh the benefits derived from that cooperation, the risk that the trustee could betray the trustor’s trust (defection), becomes real. Footnote 93
By this logic, betrayal of trust under Hardin’s theory could happen when a trustee prioritizes its own interests before those of its trustor(s). To qualify as a betrayal of trust, the interests of the trustor(s) must not be served at all, whereas the interests of the trustee must be served fully. However, what is missing from Hardin’s theory is theoretical guidance for a scenario where the trustee has encapsulated the interests of two different trustors, and the trustee’s duty to protect the interests of Trustor A conflicts with its duty to protect the interests of Trustor B. Under such extraordinary circumstances, it remains unclear which of the trustee’s respective duties towards its trustors should prevail.
Equally, in the absence of a cardinal criterion to determine the hierarchical order of these duties, it is difficult to conceptualize the choice of one over the other as a betrayal of trust in the classical sense. Perhaps one might argue that the betrayal of trust occurred at an earlier point in time, namely when the trustee agreed to commit to serving the interests of another trustor in addition to the first one. However, Article 13 TEU reveals that the Union is conceptualized as an actor that is capable of simultaneously serving more than one interest, so, in this particular instance, it would be nonsensical to interpret the initial act of committal to the interest of a second trustor as a betrayal of trust towards the first trustor. It would make more sense to argue that the act of encapsulation of the interests of both trustors by the trustee was simultaneous. Therefore, the Union may commit a betrayal of trust towards Trustor A either by prioritizing its own interest to the full detriment of Trustor A or by prioritizing the interests of Trustor B over that of Trustor A. The same principle could be applied from the perspective of Trustor B.
Trust theory might not be able to provide a conclusive solution as to where the boundaries between these interests lie, Footnote 94 but it certainly offers a helpful means of shaping and directing the legal interpretation of Article 13 TEU. Broadly speaking, the aim of the provision seems to be to “[recall] that, in addition to its own interests, the Union must further the interests of its citizens and its [Member States], from which it derives its legitimacy, as emphasized by Article 10 TEU.” Footnote 95 The provision seems to fall in line with the Preamble to the Charter of Fundamental Rights, where it is stated that: “[the Charter] places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.” Footnote 96 Article 13 TEU has been previously interpreted as a guarantee of the trust between EU citizens and Union institutions that serve their interests, especially the European Parliament. Footnote 97 In the context of the CJEU’s duty to serve the interests of EU citizens under Article 13 TEU, trust has been understood to be the confidence that the authorities would not abuse their power to cause harm but would rather adopt conduct that would bring about, if not positive, then at least not negative, consequences to the interests they serve. Footnote 98 The analysis at hand takes a closer look at the European Parliament’s duties to serve the EU citizen’s interests by identifying a high-stakes scenario where that duty must be weighed against the European Parliament’s duty to serve the interests of the EU Member States.
As a result of the analysis of this example of a conflict of encapsulated interest, the following interpretive issues arise: what is the difference between EU citizens and the EU Member States as trustors in their relationship with the Union as a trustee, and where does the disparity between their respective interests lie? On the face of it, the wording of Article 13 TEU contains no clues as to the answers to these questions. However, the interests in question are listed together, with the conjunction “and” uniting them. This evidence, combined with the absence of any express guidance in the legislative text as to how the Union should balance or weigh these interests against each other, leads to the conclusion that the Union is required to serve all of the interests at the same time through its institutional framework, without giving priority to either. If this interpretation is correct, the Union is doing a poor job of fulfilling its duties under Article 13 TEU with respect to serving the interests of EU citizens since it has heretofore applied the originator control principle absolutely.
Crucially, Article 13 TEU must be interpreted according to Article 1 TEU. The latter provision states that the primary aim of the European Union is to work towards an “ever closer union among the peoples of Europe.” Presupposing that “the peoples of Europe” is an oblique reference to Member States, Footnote 99 it would seem that the Union’s primary aim is to secure their cooperation, which implies serving their interests. If the provision ended there with a full stop, the interpretation of Article 13 TEU would be clear – the interests of the EU Member States must take priority above all else. However, Article 1 TEU continues with the following requirement: “… in which decisions are taken as openly as possible and as closely as possible to the citizen.” This suggests that where there is a conflict of encapsulated interest – as absolute originator control in the context of joint parliamentary scrutiny at Europol entails – the Union seems obliged to protect the interests of the EU citizens and its Member States. Thus, Article 1 TEU indicates that Article 13 TEU obliges the Union to strike a balance between both categories of interests without giving priority to either. Since the absolute implementation of the originator control principle with respect to joint parliamentary scrutiny at Europol clearly tips the scales in favor of the interests of Member States at the expense of the interests of EU citizens, it cannot be considered a constitutionally sound legal practice.
But what of the Union’s own interests? Following the above logic, the Union’s interests must be balanced alongside those of its trustors (the EU Member States and the EU citizens). Clearly, the Union’s own interests dictate that the Union, as a trustee, must avoid committing a betrayal of trust against its trustors (the Member States and EU citizens). A misstep like this would jeopardize or even sever its cooperative and trusting relationship with that particular trustor. Therefore, such a task demands an equal commitment to serving the two categories of interests above all else.
However, one might rightfully observe that the Union might be accused of betraying trust by prioritizing its own interests – creating an “ever closer union” per Article 1 TEU – above the individual interests of both of its trustors. That would be true if those two trustors had no interest in achieving the same goal, i.e. if the goal purely served the Union’s interests. But that is not the case here, since Member States and EU citizens draw a wide variety of benefits and entitlements from their continued (and ever closer) relationship with the Union. Therefore, the Union still serves both interests by pursuing this goal.
Finally, there is an extra layer of complexity to the Union’s delicate balancing exercise, namely that the aforementioned conflict of encapsulated interest also projects itself on the interinstitutional plain in the EU. The European Parliament needs full access to classified information shared by Member States, or it would be unable to effectively conduct joint parliamentary scrutiny at Europol for the purposes of exercising its budgetary functions (Article 14(1) TEU, Articles 51(2)(a) and 58(6-8) of the Europol Regulation). Nevertheless, Member States within the Council agreed to respect each other’s national rules on originator control. Footnote 100 Accordingly, the Council conditioned its ability to relay classified information to the European Parliament on compliance with the ORCON principle, Footnote 101 thus limiting the latter institution’s ability to exercise the aforementioned powers. Therefore, the Council could be said to have breached its duties under Article 13(2) TEU: the principle of “mutual sincere cooperation” with the European Parliament as well as “the principle of institutional balance, characteristic of the institutional structure of the European Union…, a principle which requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions.” Footnote 102 In this sense, the Council, acting as a trustee to the EU Member States and the European Parliament, also falls victim to the impossible dilemma inherent in the conflict of encapsulated interest; that is, to protect one trustor’s interests means to betray the other trustor’s interests.
E. Argument 2: Trust and the Union’s Duties as a Trustee Under Article 9 TEU
The problematic interaction between absolute originator control and the EU legal order is further confirmed upon examination of the constitutional implications of the division between the interests of EU citizens and EU Member States. The stark differentiation between the two, exposed in the conflict of encapsulated interest scenario, brings about acute legal incoherence with respect to the traditional understanding of EU citizenship. This is made evident upon a close reading of Article 9 TEU:
In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it. (Emphasis added.)
The dual purpose behind the enactment of Article 9 TEU is said to be as follows: “[The provision] assigns an exceptional weight to EU citizenship in terms of the democratic legitimation of the Union and, in so doing, again attaches special importance to the democratic equality between the EU citizens.” Footnote 103 One might be tempted to assume that this is nothing more than a reference to the general principle of equality before EU law, which is, in turn, associated with non-discrimination on grounds of, for example, equal work and pay, etc. However, Article 9 TEU stands out as a provision addressed to the Union (not Member States), which specifically requires equal treatment of EU citizens. Footnote 104
Based on Article 9 TEU, an argument could be made that the absolute application of the originator control principle violates the key democratic principle of equality of EU citizens. Parliamentary scrutiny of classified information at Europol will be exercised only by some national parliaments, which have such authorization by virtue of their respective national laws. Therefore, classified intelligence pertaining to certain EU citizens will be more closely scrutinized by a national oversight body than that pertaining to other EU citizens. Regarding trust, the Union’s failure here is interpreted as absolute originator control undermining the Union’s ability to fulfill its duties as a trustee to one of its trustors – EU citizens. Again, this will upset the balance of the trustors’ interests that the Union must ensure under Article 13 TEU, which means that, even from this perspective, absolute originator control would open up a conflict of encapsulated interest.
As a consequence of the Union’s failure to uphold the principle of equality for all EU citizens, some members of the JPSG will be better informed than others regarding the activities of some EU citizens, which means that the JPSG as an EU body does not give all EU citizens equal attention. The requirement of “equal attention” might not have an established independent meaning in EU law, but some argue it confers upon the Union a positive duty to ensure transparency within the meaning of Article 11 TEU. Footnote 105 However, “transparency requires knowledge of the motives.” Footnote 106 The duty to provide reasons for the decisions taken and the right to access documents are essential guarantees of accountability in the EU legal order. Footnote 107 Thus, EU citizens may be deprived of the “opportunity to make known and publicly exchange their views in all areas of Union action,” as Article 11(1) TEU requires, if the originator is allowed to fully block the European Parliament’s access to classified information for the purposes of joint parliamentary scrutiny. This is precisely why the originator control principle must not be allowed to shroud the activities of Europol in absolute secrecy, denying the European Parliament the opportunity to exercise scrutiny.
To support the main argument, one may refer to another constitutional requirement – implicitly present in the last sentence of Article 9 TEU – that is inherently incompatible with the absolute implementation of the originator control principle to joint parliamentary scrutiny at Europol. Armin von Bogdandy argues that Article 9 TEU has established the foundation for a “transnational and possibly cosmopolitan” idea of citizenship in the EU legal order, based on the notion that “democracy is conceptually possible beyond the confines of the nation-state and without a ‘people.’” Footnote 108 The concept of EU citizenship, as articulated in Article 9 TEU, reflects the decoupling of the notion of democracy from that of “the people of Europe,” per Article 1 TEU, in the EU. Footnote 109 Thus, the European Parliament embodies the idea that “[a] transnational parliament can confer democratic legitimation although it does not represent a people or a nation and does not fully live up to the principle of electoral equality,” which contrasts with the traditional stance of national constitutional law. Footnote 110 More specifically, Armin von Bogdandy explains that:
The Union’s principle of democracy builds on these two elements: the current Treaties speak on the one hand of the peoples of the Member States, and on the other hand of the Union’s citizens, insofar as the principle of democracy is at issue. The central elements which determine the Union’s principle of democracy at this basic level are thus named. The Union rests on a dual structure of democratic legitimation: the totality of the Union’s citizens and the peoples in the European Union as organized by their respective Member States’ constitutions. This conception can be seen clearly in Article 10(2) EU Treaty. Footnote 111
It is important to stress here that the relationship between these two components of the “dual structure of democratic legitimation” is said to be complementary, not antagonistic. Footnote 112 In fact, these two elements are so closely intertwined that a clash between them would be constitutionally inconceivable. The “inextricable link” between the nationality of an EU Member State and Union citizenship is predicated on the fact that the former entitlement necessarily entails the latter and vice versa. Footnote 113 Every national of an EU Member State is at the same time an EU citizen, and every EU citizen is at the same time a national of an EU Member State. Footnote 114 This setup amounts to a situation where:
Legally speaking, there is no competition between the nationality of the EU Member States and EU citizenship, since these do not exist independently from each other, but instead are tied to each other. (…) All the EU citizens taken together are neither an aggregate whole of individuals, nor a segmented side-by-side collection of the people of the EU Member States, but a federally divided totality (…) Both of these modes of belonging relate to each other neither on hierarchical, nor on mutually exclusive, terms. Rather, the nationality of EU Member States and EU citizenship are bound in a mutually complementary relationship. Footnote 115
Therefore, the absolute implementation of the ORCON principle, which impedes the European Parliament’s access to classified information, undermines the “dual structure of democratic legitimation” in the EU by pitching these two elements against each other in a conflict of encapsulated interest. However, this is a constitutionally impermissible way of interpreting and enforcing the originator control principle in the EU legal order. More importantly, it inhibits the Union’s ability to fulfill its duties as a trustee to the two trustors identified in Article 13 TEU – EU Member States and EU citizens.
F. Argument 3: Absolute Originator Control as Blind Trust
In this section, it will be shown that, by virtue of absolute originator control, the Union is being asked to blindly trust the originator. The position of the originator as a trustee of the Union is evident from the very definition of “EU classified information,” which specifies that, in deciding to share information, the originator must consider “the interests of the European Union or of one or more of the Member States.”Footnote 116 Thus, the Union (the trustor) trusts the originator (the trustee) to protect its own interests and that of at least one of its Member States. This is the basic application of the principle of originator control. The added requirement that this trust be blind comes into play in the case of absolute originator control, when the Union is practically deprived of the opportunity to exercise joint parliamentary scrutiny at Europol over executive decisions, activities, and documentation that contain EU classified information shared by the originator, unless it secures the consent of the originator.
By virtue of its inability to monitor these activities, the Union has proven incapable of ensuring compliance with Article 2 TEU values, especially regarding the rule of law, and of pursuing its objectives effectively. Thus, the Union may be perceived as incompetent to give guarantees of compliance and is, therefore, considered untrustworthy by the Member States. The blind trust required by the originator will undermine the trust and confidence Member States and EU citizens have in the Union’s ability to uphold EU democratic values and the rule of law through effective oversight.
At this stage, one might rightfully point out that every EU Member State is itself an originator of EU classified information. Then, surely, EU Member States would be more interested in preserving their own interests by insisting on absolute originator control. However, that might not necessarily be the case since Member States (trustees) are also entrusted by the Union (trustor) to protect its interests by upholding the EU rule of law and protecting EU fundamental rights, even in matters affecting national security. To this end, it could be argued that “the best method for enforcing the Rule of Law against Member States is a creative reinterpretation of Article 51(1) of the EU Charter of Fundamental Rights (…), whereby the fundamental rights of the Charter are also made applicable in purely domestic cases.” Footnote 117 Besides, Article 49 TEU shows that each EU Member State has committed to a positive obligation of promoting Article 2 TEU values as a requirement for membership in the Union. Therefore, each Member State must balance its own interests with those of its trustor – the Union, otherwise it would enter into a conflict of encapsulated interest. Thus, even from this perspective, absolute originator control disrupts the trusting relationship between the Union and its Member States.
Nevertheless, it must be pointed out that if the Union is incapable of providing guarantees that EU classified information will be handled by the JPSG with the utmost care and confidentiality, it will be deemed untrustworthy by those Member States who seek to share information. However, this Article proceeds under the assumption that there are practical ways in which absolute originator control may be relaxed without substantially compromising this level of security. For example, Born, Leigh & Wills argue in favor of granting the overseer full access to information held by national security services, with information supplied by their foreign partners being no exception. Footnote 118 Raphael Bossong suggests that national intelligence services simply adopt “less restrictive interpretations” of the originator control rule to allow EU oversight bodies access to classified intelligence information. Footnote 119 In addition, one might follow the example of national parliaments. It has been reported that a large number of national parliaments of EU Member States already enjoy limited access to classified information. Footnote 120 Based on their practice, there is a wide array of available solutions: giving the members of the national parliament access to only certain levels of classified information; granting access to classified information only in cases where the information concerns a bill or a recommendation; and allowing only a selected number of parliamentarians to access classified information as individuals or in a committee. Footnote 121 Finally, Abazi recommends that some margin of discretion be allowed for ex-post oversight, especially in situations where an agency claims that the disclosure or the very existence of a policy or a decision would be dangerous. Footnote 122 So, ex-post review, a mechanism in which the JPSG would be granted access to sensitive information after the relevant operations or activities of Europol have already taken place, Footnote 123 could be helpful here.
More importantly, the idea of blind trust is incompatible with the notion of mutual trust in the Area of Freedom, Security and Justice. Mutual trust is predicated on adherence to Article 2 TEU values that include the rule of law and democracy,Footnote 124 which the EU cannot guarantee without an effective oversight mechanism. Trust-based cooperation in the Area of Freedom, Security and Justice is based on equivalence combined with reciprocity.Footnote 125 The idea of reciprocity is not realized on a strict quid pro quo basis, but rather as “the expectation that while complying with cooperative arrangements, Member States expect their partners to do the same.”Footnote 126 For the discussion on blind trust, the presumption of equivalence is of greater interest.
The presumption of equivalence is predicated on the EU Member State’s assumed compliance with Article 2 TEU values and fundamental rights standards by virtue of EU membership.Footnote 127 The fact that the presumption of equivalence is rebuttable, meaning that it could lead to a Member State’s refusal to trust another Member State if certain basic EU standards are not met,Footnote 128 leads us to conclude that mutual trust cannot be interpreted as blind trust. This conclusion was confirmed in the light of the CJEU’s contemporary jurisprudence on the European Arrest Warrant, which led scholars to assert that trust among EU Member States should be earned by the trustee Member State and not enforced as a matter of obligation on the trustor Member State.Footnote 129
At this stage, an objection could be raised to the effect that mutual trust in the AFSJ governs the horizontal trusting relationship among EU Member States, whereas blind trust in the context of the exchange of EU classified information through Europol describes a vertical trusting relationship between the Union and its Member States – the originators of EU classified information. However, it must not be forgotten that the end recipients of this information are still Member States. Therefore, the horizontality or verticality of the trusting relationships makes little difference for the purposes of this comparison.
A more pertinent issue might be that of the limited applicability of the mutual trust doctrine, originally used only in European Arrest Warrant cases. Nevertheless, Valsamis Mitsilegas maintains that the doctrine of mutual trust could be extended beyond its current limits to launch an overarching understanding of trust in the Union that involves different levels of trusting relationships – between the Union and its Member States and between the Union and EU citizens. Footnote 130 The extended use of mutual trust as “a renewed EU constitutionalism” could be given effect in practice by attaching it to the principle of sincere cooperation (as seen in Section C) but could prove to be problematic from the perspective of delimitation of competences.Footnote 131 Regardless, the CJEU’s most recent jurisprudence on the conditionality mechanism speaks of a tendency towards broadening the scope of the application of mutual trust to provide guarantees that the Union budget will be protected against misuse and to ensure compliance with Article 2 TEU values, including the rule of law. Footnote 132 The monitoring activities involved in joint parliamentary scrutiny at Europol are designed to check whether the Union budget is being used appropriately (Article 51(2)(a) of Europol Regulation). Therefore, it would produce a legally incoherent result, when compared to the CJEU’s pronouncement on mutual trust, to allow for blind trust in the form of absolute originator control to block an oversight mechanism that is designed to protect the Union budget against misuse and whose effective implementation is, in and of itself, a guarantee for compliance with the EU rule of law.
G. Conclusion
The absolute implementation of the principle of originator control that impedes joint parliamentary scrutiny at Europol must come to an end. The legal interpretation of the effet utile of Article 4(3) TEU, helpfully reframed by Russell Hardin’s theory of trust as an encapsulated interest, shows that this practice has no place in the EU legal order since it creates an irresolvable “conflict of encapsulated interest” between the Union and two of its trustors – EU citizens and EU Member States. Absolute originator control violates Article 13 TEU, which confers upon the Union as a trustee a duty to strike a balance between the interests of its trustors – the EU Member States and EU citizens. The tension it generates also extends to the interinstitutional level. In addition, the uncompromising implementation of originator control interferes with the principle of equality of EU citizens under Article 9 TEU, which again casts doubt on the Union’s ability to fulfill its duties as a trustee. Lastly, a closer reading of Article 9 TEU reveals that absolute originator control creates legal incoherence in that it creates a clash between the two components of the “dual structure of democratic legitimation in the EU,” which is a constitutionally impermissible outcome and another opportunity for conflicts of encapsulated interests to emerge.
This interdisciplinary analysis, bridging the knowledge gap between trust considerations and legal analysis, confirmed the impression that the European Parliament, as represented in the JPSG, must be granted at least some access to classified information for the purposes of effectively exercising joint parliamentary scrutiny of Europol that cannot be obstructed by the originator. While there is no shortage of ideas for legal reform, the best course of action seems to be amending secondary EU legislation and interinstitutional agreements to incorporate the ORCON principle to limit such powers of review, conditional or ex-post. Change must be effectuated as soon as possible to depart from the current approach of absolute originator control, which has now proven to create tension in the relationship between the Union and its trustors and conflict with some of the constitutional tenets of the EU legal order.
Acknowledgements
I completed the research, writing, and revision process for this Article while working as a Postdoc at the Department of Public Law at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg im Breisgau, Germany. I would like to thank Prof. Dr. Ralf Poscher for his support, helpful advice, and insightful comments during this time. I am also grateful for the thought-provoking questions and comments I received while presenting some of this research material on three separate occasions at the Max Planck Institute for the Study of Crime, Security, and Law - at the “Democracy and Counter-Extremism” workshop (26.06.2023) as well as at two meetings of the Department of Public Law (24.08.2022 and 20.10.2021). I would also like to thank Dr. Jan Ruzicka for his advice on the basics of trust theory in the social sciences at an early stage of development of this research. Further, a small part of the research material included in this Article also appeared in the paper I submitted for consideration and presented at the 2021 International Conference “Questions of Accountability: Prerogatives, Power and Politics,” organized by the University of Worcester and the University of Sheffield, the UK, in November 2021. I am also very grateful to the anonymous reviewer at German Law Journal, whose thoughtful and useful comments helped me improve my manuscript, and to the editorial and proofreading team at German Law Journal for their professional assistance. Finally, I am also thankful to the School of Law at the University of Nottingham, the United Kingdom, where I am currently employed as a Teaching Associate. All errors remain my own.
Competing Interests
None.
Declaration
My contribution is not under consideration elsewhere.
Funding Statement
No funding to declare. I conducted this research during my employment as a Postdoc at the Department of Public Law at the Max Planck Institute for the Study of Crime, Security and Law, Freiburg im Breisgau, Germany, as part of my postdoctoral research project “Intelligence Information Sharing: The Relevance of Trust for the EU Rule of Law Crisis”.
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