by Asia Corsano
In September 2021, in a speech at the European Parliament’s plenary, European Commission’s president Ursula Von Der Leyen remarked the need of a common European army, together with a common intelligence system, after the events that led to the conquest of Kabul, Afghanistan, by Taliban forces. Von Der Leyen stated that, to guarantee peace and stability in Europe as well as to avoid drastic future withdrawals like the one occurred in Afghanistan, it is necessary that the EU lay the foundation for a common decision-making system in the field and strengthen collaboration regarding intelligence. But is it possible to have all member states agree on the creation of a Common European Intelligence Agency?
Background-European Policy and Law
Since the attacks of 11th September 2001, politicians started giving major importance to international intelligence cooperation in fighting terrorism, thus making it a constant factor in EU foreign and security policy programmes. The current EU Global Strategy highlights the necessity of timely information sharing and situation awareness, based on which defence decisions can be made: “Member State efforts should […] be more joined-up: cooperation between our law enforcement, judicial and intelligence services must be strengthened. […] We must feed, and coordinate intelligence extracted from European databases, and put […] big data analysis at the service of deeper situational awareness.”
However, the Treaty of Lisbon, in its relevant regulatory areas on security and foreign policy, makes no reference to intelligence cooperation, let alone to the establishment of an independent EU intelligence service. Art.72 and 73 of the Treaty on the Functioning of the European Union (TFEU), still, underline the responsibility of member states of safeguarding international security and states that they are free to organise between themselves in forms of cooperation and coordination in order to do so. This means that, while Member States are not explicitly forbidden to cooperate at the intelligence level, there is no European legal basis for the transfer of powers to a European level.
Forms of cooperation at the EU level
Various forms of intelligence cooperation have been created during the years, obviously within the limits of the EU law. One of the pillars of the European security architecture is the supranational agency Europol: it does not have authority in intelligence matters, but one of its main functions is to promote police cooperation among member states through information sharing. Europol plays an important role in identifying terrorist threats and subsequently developing counterstrategies thanks to its annual Terrorism Situation and Trend Report (TESAT).
As for the other intelligence bodies that exist within the EU, we have the European Union Intelligence and Situation (IntCen), which deals with matters of internal security and counterterrorism. IntCen gathers and evaluates data received by the intelligence services of member states or external ones, as well as internal EU bodies. The results are sent to the High Representative of the Union for Foreign Affairs and Security Policy and the Council of the EU, that refer to them during the developing of measures regarding security. Nevertheless, IntCen cannot be categorised as a European intelligence service since its work depends on the willingness of Member States to provide information.
The largest quasi-intelligence agency is the European Union Satellite Centre (SatCen), which is under the supervision of European External Action Service (EEAS). It is the only EU body to generate original intelligence data based on commercially available satellite images for the preparation of common situation estimates and supports EU operations as part of the Common Security and Defence Policy (CSDP) and FRONTEX, as well as international organisations such as NATO, UN or OSCE.
Challenges of a Common European Intelligence Agency
Surely, the creation of a European Intelligence Service, as proposed by Ursula von Der Leyen and other politicians over the years, could give the Union some advantages: for example, there would be a greater supranational authority that could act in each member state and could help preventing terrorist attacks like the ones occurred in France in 2015. Plus, any delay or lack of information between the states can be avoided if the power is centralized into a single agency.
Despite this, there are several issues concerning this hypothetical agency. Firstly, intelligence is usually considered as a matter of the state and hardly all member states would agree on transferring a part of their power to a supranational authority. The creation of a European Intelligence Service can also be seen as a violation of the core principle of international law, the non-interference, since the national secret services, that also deal with domestic security matters, would then be submitted to the European authority. Secondly, just like any other international body, a hypothetical new intelligence agency would need to be funded, and the funds would directly arrive from the member states, that could object the payment of something that, as remarked before, they probably don’t want. Indeed, many EU members do not spend enough even on domestic intelligence, a trend exacerbated by the recent economic crisis and the efforts to balance national budgets. Consequently, some countries do not have enough resources and agents for their domestic secret services, which makes hard the recruitment of men for a European agency.
Another issue is represented by the different intelligence cultures that exist between member states: an intelligence culture is made by how the intelligence bodies develop their practices and legally register within member states, with repercussions on different institutional designs, different governmental guardianships, different contributions to the internal security and national defence systems, or different mechanisms of oversight etc… These differences can be an obstacle to the agreement on how the European Intelligence Service should run its operations.
Moreover, it is not clear which body would supervise such a new agency. The European Union has yet to establish a sufficient record in relation to such a delicate task, and furthermore, would have to change the EU law to transfer the intelligence power the European level, a process that can require a long debate in the European Parliament.
By analysing the issue, it is evident that, even if a European Intelligence Service could be useful, there are too many obstacles in the process, thus making its creation a utopia, rather than a concrete possibility.