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EU seeking to simplify cross-border use of police drones

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05 November 2020

As part of the German Presidency's plan to establish a 'European Police Partnership', extending and simplifying the legal framework is high on the agenda, including for the use of drones in cross-border surveillance operations. Drones are also cited in a Commission consultation on an 'EU police cooperation code'. Although the documents contains generic references to fundamental rights and data protection, there are no details on how to improve means for legal or political accountability.

See: NOTE from: Presidency to: Delegations: Draft Council Conclusions on enhancing cross-border law enforcement cooperation (11516/20, LIMITE, 12 October 2020, pdf)

There is a subsequent version of the draft Conclusions (Council, link) that has not yet been made public.

The recitals cite numerous issues, including the fact that "practical requirements" and "necessities" are no longer in line with the law:

“...growing discrepancies between the Convention implementing the Schengen Agreement and the Prüm decisions on the one side, and the dynamically evolving bi-, tri- and multilateral treaty practice and the practical requirements of contemporary police work

(...)

...the need to adapt the legal requirements of instruments such as cross-border surveillances and cross-border hot pursuits to the necessities of contemporary police work"

And:

“...the fundamental importance of conferring adequate executive powers on law enforcement officers involved in cross-border cooperation, in particular the possibility to equip the respective police forces with symmetrical powers, while respecting fundamental rights and observing the principle of national sovereignty..." (emphasis added)

The draft Conclusions assert that:

“public trust in law enforcement authorities is essential to maintaining the citizens’ subjective sense of security...” (emphasis added)

The Council makes demands of various entities (Statewatch emphasis in bold, non-italic text):

“CALLS ON THE MEMBER STATES:

– to take all necessary steps to further strengthen operational cross-border law enforcement cooperation by effectively implementing existing instruments and, where appropriate, by extending, consolidating and simplifying the legal foundations, including:

Joint patrols, units, offices and operation points…

- clarify and, where appropriate extend, the conferral, in a symmetrical manner, of adequate executive powers on foreign officers operating outside of the territory of their home state in fulfilment of their duties; while respecting the principle of national sovereignty

(…)

Cross-border surveillance: to clarify and simplify the legal requirements for conducting such surveillance, while upholding the existing standards for the protection of fundamental rights, to standardise the measures that may be approved and the technical means that may be deployed, e.g. drones and localisation devices, and to enhance the authorisation procedures, including by dropping the distinction between urgent and non-urgent surveillance, extending the required time frame for obtaining authorisation for urgent surveillance and where necessary allowing surveillance to be launched in the territory of another country before it continues in the home country of the officers involved,

Hot pursuits: to clarify legal conditions for hot pursuits, to adapt the legal requirements to the needs of the practitioners by broadening both the scope for hot pursuits and the competences of officers operating across borders, including by improving the sharing of localisation data, enabling hot pursuits whenever a person attempts to evade law enforcement procedures and allowing for hot pursuits to be carried out via land, air, sea and waterways;

Single Points of Contact (SPOCs) and Police and Customs Cooperation Centres (PCCCs): to strengthen the existing PCCCs and SPOCs and their areas of competence, to build up further structures of this kind and to increase efforts in the field of joint operational planning and exercises to foster recourse to cross-border cooperation, in particular in situations of mass gatherings, disasters and serious accidents;

Specialised intervention units: to further strengthen and establish such structures in EU Member States and associated countries with a view to enhanced cooperation;

(...)

CALLS ON THE COMMISSION:

– to consider adjusting the EU legal framework to further strengthen cross-border law enforcement cooperation while guaranteeing data protection and fundamental rights, addressing current operational needs… especially regarding hot pursuit and cross-border surveillance, which should be fully functional across Europe...

– to assess whether adjustments of the legal framework or common guidelines for cooperation in crises situations, e.g. pandemic crises, are necessary, as well as with regard to new technologies impacting cross-border law enforcement cooperation,

(...)

 CALLS ON EUROPOL:

(…)

– to explore, together with other stakeholders, the possibilities for advancing mobile solutions (or for interconnecting existing solutions), in order to allow for swift and secure communication between field officers and investigators.

CALLS ON FRONTEX:

– to support law enforcement authorities of EU Member States and Schengen Associated Countries in managing their external borders to provide a high level of security for all EU citizens."

Commission Consultation on a Police Cooperation Code

As noted above, the European Commission's 'inception impact assessment' (a document presented as part of a public consultation, link) also highlights the need to simplify the legal framework for cross-border use of drones for police surveillance operations.

See: Inception Impact Assessment on an EU police cooperation code (Ares(2020)5077685, 28 September 2020, pdf)

The document provides a long list of topics that could be covered in a future EU legal instrument aimed at simplifying and extending the law on cross-border police powers (emphasis added):

"...it should be considered whether the following features (all taken from existing bilateral agreements) should be included in a Police Cooperation Code, and with which safeguards:

o Allow cross-border hot pursuits without time or geographic limitations, and regardless of the type of border (land, sea, air or river) ;
o Allow cross-border surveillances without prior authorisation in case of urgency;
o Covert gathering of information onto the neighbouring country's territory;
o Prepare cross-border situational reports/risk analyses;
o Joint purchase or lending of equipment;
o Right to wear its country's uniform, and weapons, in other Member States;
o Right to stop and detain a suspect in the neighbouring country’s territory, including through means of coercion, physical force or the necessary use of firearms;
o Joint crime prevention programs;
o Joint trainings and joint exercises;
o Cross-border investigative actions;
o Assistance in witness protection and protection of persons close to them;
o Own initiative action in the territory of a neighbouring country in case of urgency in matters of public security or cross-border danger avoidance;
o Undercover investigation in neighbouring country’s to investigate crime or prevent criminal offences;
o Police interview on the neighbouring country' territory, including by phone or video;
o Establishment of Joint Crime Detection teams;
o Use of a common network of liaison officers with access to a common information system (e.g. Nordic liaison offciers network).

Expanding the scope of the EU legal framework for police cooperation (while guaranteeing data protection and fundamental rights) to some or all of the above actions (or more) would significantly improve the effectiveness of Member States in fighting serious and organised crime and terrorism in their border regions, and would effectively boost law enforcement cooperation between EU Member States."

It is worth pointing out that the Commission's consultation document refers to "better protecting citizen’s lives and their rights, including to security". However, as was recently highlighted by Juraj Safjert, in a recent ruling the Court of Justice of the EU provided:

"an authoritative rebuttal of a flawed argument on the existence of a collective ‘right to security’ enshrined in the Charter and the necessity to reduce protections provided for by Articles 7 and 8 [private life and data protection] in order to strike a proper balance with Article 6." (emphasis in original)

See: Bulk data interception/retention judgments of the CJEU – A victory and a defeat for privacy (27 October 2020)