What Procedures May Be Used to Contest the Validity of Eu Legal Acts

EU-Japan Agreement on Mutual Assistance in Criminal Matters, signed on 15 December 2009 and entered into force only one year later (2 January 2011). The objective of this study is to provide an EU legal perspective on all these issues in order to better understand the institutional constraints and possibilities of an EU-US agreement on law enforcement access to data. EU law (including EU external relations law) is particularly complex and it is necessary for a US and European/international public to unravel this complexity and present the EU mechanisms, procedures and requirements for an EU-US agreement on access to electronic evidence. Our intention is not to propose which legal instrument is desirable, but to set out clearly, from the point of view of EU law, what options and architectures are available and what could potentially call into question an EU-US agreement on electronic evidence. To do this, we need to return to the specific competences of the European Union as an external actor. Indeed, the EU is now an established player in international relations, but it has not established this status without difficulty. Legal issues arise from the specificities of the EU as a legal entity. Three main characteristics distinguish the EU from a state in the field of external relations. Unlike a federal state, in which the Confederation holds most of the external competence, external competences in the European Union are divided between the Union and the Member States. Another difference is the way the EU negotiates and concludes international agreements and the different roles played by Member States in this process.

Finally, the EU judicial system is also very specific, with the Court of Justice of the European Union acting as a quasi-constitutional court, trying to strike a balance between respect for international law and the autonomy of the European legal order. These three features will serve as a framework for the analysis of the EU-US negotiations on LEA access to data. Parliament must be immediately and fully informed at all stages of the procedure (Article 218(10) TFEU). Although Parliament does not decide when to start negotiations or determine the content of negotiating directives, it gives its consent at the end of the negotiations (since it acts as co-legislator in this area). Therefore, Parliament`s political support is urgently needed and the Commission must report not only to the Council, but also to Parliament. The fact that electronic evidence contains sensitive fundamental rights issues also explains the need for democratic scrutiny. Consequently, the notes published by the Commission at the end of the rounds of negotiations are sent to both institutions. The fact that the European Parliament must approve an EU-US agreement on electronic evidence raises questions about its influence (and a possible right of veto). Previous precedents (notably the TFTP agreement) show that Parliament could use this power to set the conditions for granting consent. Although Parliament has not yet adopted a resolution on the ongoing negotiations between the EU and the US, some MEPs stressed that Parliament would be diligent in introducing important fundamental rights protection provisions and other guarantees and conditions into the agreement. Some have also requested the opinion of the European Data Protection Board on this issue.133 However, past experience also shows that Parliament is pragmatic and understands that the Commission must find a fine line between taking into account the cumulative (but ultimately divergent) expectations of the Council and Parliament and seeking a mutually satisfactory compromise with US negotiators. In the past, temporary objections, or even rejections by the European Parliament, have led to relatively quick solutions.

And there is no precedent for a draft repressive agreement between the EU and the US that failed due to parliamentary opposition. Let us begin by highlighting once again the differences between the content of the ongoing EU-US negotiations at the heart of this article and the Schrems II issue. However, this process is time-consuming, as it requires an agreement with the EU and the Member States. In the mutual legal assistance and extradition precedents, it took a full 8 years for the agreements to enter into force. And let`s not forget that the EU-U.S. LEA agreement on data access could make things even more complicated because: (i) the EU-US agreement cannot be concluded before the adoption of the e-evidence legislation at EU level (a complicated and time-consuming process in itself); and (ii) bilateral agreements cannot be negotiated before the adoption of the EU-US agreement. Waiting years to create an effective transatlantic legal framework could be detrimental to all parties involved: the EU, the US, but above all service providers, who could find themselves in an increasing number of conflict-of-law rules. As noted above, unlike the EU-U.S.

ALM Agreement, the signing of bilateral treaties between the US and individual Member States is not foreseen by the EU. However, it is also worth highlighting the potential convergence between the two themes. In both cases, it is ultimately about government access to data and the safeguards and remedies that should be built into the legal system. In both cases, the challenge is to balance the need for timely access to information by government officials (law enforcement and/or intelligence agencies) with the need for a sufficiently high level of privacy and data protection, including effective judicial remedies. On 6 October 2020, the CJEU delivered a new series of very important judgments141 on States` access to communication data (traffic, location, subscribers). Three of those judgments concerned French and Belgian national legislation requiring electronic communications providers to retain data in the interests of fighting crime and protecting national security, while the fourth judgment concerned UK legislation requiring providers to transmit mass communications data directly to UK intelligence services. These judgments (`the 2020 data retention/collection judgments`) are extremely complex and require in-depth analysis. We shall limit ourselves here once again to two sets of considerations as to the implications they might have for the purpose of this article.

The content of the EU-US agreement on electronic evidence is different. Obviously, it is not negotiated as a mixed agreement and there are no plans to reclassify it as a mixed agreement. Its judgment of 5 February 1963 in Case 26/62 (Van Gend & Loos) established the principle of the direct applicability of Community law before the courts of the Member States. Its judgment of 15 July 1964 in Case 6/64 (Costa v E.N.E.L.) was also fundamental to the definition of Community law as a separate system which takes precedence over national legislation. The Court has always claimed supreme authority to determine the relationship between EU law and national law.