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EU trial against Britain?

Carla Bleiker
April 3, 2014

The spying scandal is at the forefront of the political agenda in Germany again. This time, however, the focus of contempt is not the NSA but the British intelligence services' GCHQ and its "Tempora" program.

GCHQ headquarters. (Photo: Steve Parsons/PA Wire)
Image: picture-alliance/dpa

The Greens in the German parliament are at the end of their tether. In 2013, the British newspaper "The Guardian" revealed that GCHQ had been tapping fiber-optic cables carrying global phone calls and internet traffic. According to documents shared by whistleblower Edward Snowden, the British spy agency is storing and analyzing data from millions of innocent people's phone calls, emails, Facebook posts and other online communications in the "Tempora" program. But even though German citizens are directly affected by these measures, the German government has not complained to the EU Commission about "Tempora." So now, the Greens in the opposition have lodged a complaint themselves.

"GCHQ is spying on citizens without any cause and on a huge scale," Konstantin von Notz said. "That contradicts international law as well as the European ideal of free democracy." Von Notz, vice-speaker of the Green parliamentary group in the Bundestag, is spear-heading the Greens' complaint and wrote a letter to the EU Commission asking them to act against British spying: "We want the European Union to put Great Britain on trial for violating EU contracts."

Fiber-optic cables with red lights. (Photo: Jens Büttner dpa/lmv)
British intelligence agencies tapped fiber-optic cables to get detailed communications dataImage: picture-alliance/dpa

A long-winded process

The EU Commission is the institution responsible for seeing that all member states stick to the contracts they signed when they joined the union. Therefore, the Commission is also the only power who could decide that Great Britain violated these contracts with GCHQ's spying program. But the complaint by the Green parliamentary group is only the first step in a long line of actions that would need to happen in order for Great Britain to actually put an end to "Tempora."

"If the Commission actually takes up the complaint, they first have to look into the legal basis for 'Tempora' in Britain," Klaus-Dieter Sohn from the Center for European Policy (CEP) in Freiburg said. Sohn hasn't looked into the spying scandal specifically, but is an expert on institutional law at CEP. He adds: "Should the Commission conclude that British law justifying GCHQ's actions does in fact clash with European contracts, they will ask Britain to explain their side of the issue in a written statement."

After reading the member state's statement, the Commission can still decide that the practice violates EU contracts and needs to be stopped. Sohn explains that if member states don't comply with the Commission's order, the Commission can take the issue to the European Court of Justice. But trials here, like at any other court, take time - and there is no injunction. In other words, GCHQ would be allowed to continue their extensive spying until the day a final verdict was issued, Sohn explained.

Where does sovereignty end?

The question remains whether the European Court of Justice, where the Greens want the spying case to go eventually, even has the power to stop the British intelligence agency. "As far as I remember, the European Court has never dealt with national intelligence services," Sohn said. These are issues that squarely fall into each individual nation's sovereignty: "In questions of national defense, for example, Europe has no say," the law expert explained. But where does the spying scandal land on this spectrum between European responsibility and national sovereignty?

Konstantin von Notz giving a speech. (Photo: Bodo Marks/dpa)
Von Notz says the EU has to act when a member state infringes the rules like Great Britain hasImage: picture-alliance/dpa

For Konstantin von Notz, the case is clear: the EU has to intervene. "If GCHQ only spied on British citizens, it would still be problematic, but the British government would have to deal with it," von Notz said. "But they are also collecting communication data from all these other countries and so it's an issue that should be on the European agenda."

Lack of action, in Germany

Von Notz also harshly criticized the German government's behavior ever since Edward Snowden's revealations came to light. "Angela Merkel hasn't commented on the issue except for when it came to her own cell phone being tapped," von Notz said. "During the election campaign, there was talk of a No-Spy Agreement and a data protection law, but now that these have fallen through, the government is just accepting the Status Quo."

This Thursday, the German parliament will hold the first meeting of a fact-finding committee which is leading an inquiry into the intelligence affair. Von Notz wants the inquiry to produce tangible results: "Just accepting the issue with a shrug is not the right way to go and I hope that our complaint leads to a reaction and a greater awareness of the problem."