You can’t uphold the law by breaking the law

The Alliance of Liberals and Democrats for Europe (ALDE) invited EDRi member Bits of Freedom to speak at their annual New Year’s Seminar. Hans De Zwart, Director of Bits of Freedom, talked about how the rule of law can only be defended by the European Union taking an exemplary role including by strictly adhering to the rulings of the Court of Justice of the European Union and urgently taking action to be more transparent in its legislative processes:

Thank you very much for the opportunity to talk about these urgent topics. It is a pleasure to be here at the ALDE new year’s seminar.

For us, it might be stating the obvious that a Union can only successfully protect democracy, the rule of law and fundamental rights if it performs an exemplary role on all these points. And unfortunately, it is currently also obvious that the EU is not yet fulfilling that role. Two points need to be stressed. For one the EU should vigorously respect the rulings of the European Court of Justice and secondly, the EU must become (even) more transparent in its legislative processes.

So if we take a bird’s-eye view, we can see for example that the Court of Justice has ruled twice against data retention and those rulings have been wilfully ignored (meaning that in the Netherlands we had to go to a Dutch court to get the unlawful retention of data stopped).

We have seen the Court of Justice of the EU (thanks to tireless work by key ALDE MEPs like Sophie in’t Veld) rule against the proposed deal between Canada and the EU on PNR, the registration and profiling of air passengers. But the consequences of this ruling for the EU/Australia and EU/US agreements have been left wilfully unexplored.

We have seen the Court of Justice rule against the mandatory filtering of internet access and social media services while at the same time seeing this ruling being explicitly circumvented through the introduction of an upload filter in the proposed Copyright Directive.

We’ve seen the EU adopt the Charter of Fundamental Rights, which requires that restrictions on our rights have to be necessary and provided for by the law, while also seeing the Europol Regulation giving unaccountable power to Europol’s Internet Referral Unit to make referrals not based on the law, but based on terms of service for the “voluntary consideration” of internet companies. There is no review process for these referrals, no statistics on subsequent investigations and — ironically in light of the data retention demands for records of innocent people — no retention of the associated evidence.

When it comes to transparency we have seen a shift from the traditional treaty-based decision-making process of legislation in the EU towards a non-democratic, non-accountable and non-transparent process of legislating: the trilogues.

The EU Ombudsman has demanded more transparency around the trilogues. She proposes that the documents in and around the trilogue negotiations — the trilogue dates, the initial positions, the agendas, the “four column documents”, the notes, the list of political decision makers involved and the final compromise texts — should all be made available to the public. This too is underpinned by a decision of the EU Court of Justice which states that the ability of EU citizens to find out the considerations that underpin legislative action is a precondition for the effective exercise of their democratic rights.

And very recently the Dutch COSAC delegation has also recommended to make the EU more transparent to its citizens. Their prime recommendation is, once again, for the EU to stick to its own law, in this case the Transparency Regulation and thus make legislative documents public in a systematic way and without any delay. Too often is too hard for people like me — civil society as the representation of citizens — to get access to the documents that they need to do their work.

So my ask here today for this Alliance of Liberals and Democrats for Europe is twofold, and I ask it with urgency:

Firstly, the Union can’t afford the current lackadaisical attitude towards the rulings of the European Court of Justice. Due process starts with respecting the law. Or in other words: you can’t uphold the law by breaking it.

And secondly, ALDE should support the Dutch perspective on transparency of the EU and at a minimum argue for a full implementation of the European Ombudsman’s position on the trilogues.

Because we can only develop a Europe of values by defending those values when it is difficult. And we develop a Europe of values by making decisions in public and not in closed-door trilogues. We should empower citizens by making the institutional changes necessary to ensure that citizens are truly heard.

This article was originally published at https://www.bof.nl/2018/01/09/you-cant-uphold-the-law-by-breaking-the-law/

(Contribution by Hans de Zwart, EDRi member Bits of Freedom, the Netherlands)