Germany pushes for EU-wide tracking and monitoring of vehicles

Germany, France and the Netherlands are lobbying the EU Council of Ministers to simplify the cross-border telecommunications surveillance of drivers and other passengers. Tracking vehicles with GPS trackers in other member states should also be made easier for the police. To this end, the trio is pushing for a reform of the legal basis for the European Investigation Order (EIO). This emerges from an unofficial, confidential paper from September, which the General Secretariat of the Council sent to the relevant expert groups of the ministerial committee at the beginning of November and which the British civil rights organization Statewatch has now published.

The EIO Directive has been in force since 2016 and, in principle, already enables cross-border telecommunications surveillance. Police and judicial authorities can also use it to request other member states to carry out further investigative measures, such as questioning witnesses or handing over documents. However, the regulations on cross-border vehicle surveillance need to be clarified, Germany and its two neighboring states emphasize in the non-paper.

According to the trio, relevant operations currently often encounter legal hurdles that require separate authorizations or interruptions when suspects cross borders. This was demonstrated by the highly publicized "Ibiza affair", explains Statewatch. According to critics, Germany and Austria significantly overstretched the powers of law enforcement officers in numerous EEAs on surveillance and radio cell evaluations for one of the suspects behind the video recordings of former Austrian Vice-Chancellor Heinz-Christian Strache (FPÖ).

Prior consent of another EU state unnecessary for EEA

According to the three countries, a new Article 31a of the EEA Directive should allow surveillance to continue seamlessly when vehicles with suspects enter another EU country. It would then only be necessary to notify the authorities there. Obtaining prior consent would no longer be necessary. However, the member state in which the surveillance continues could still stop such measures. To do so, it would have to argue that they violate national law. Germany & Co. see the proposal as a "solid basis" for their concerns.

Cross-border GPS tracking is already regulated in principle in Article 40 of the Schengen Agreement, explains Netzpolitik.org. However, the relevant conditions contained therein are stricter than in the EEA. The new initiative would remove the restrictions on certain criminal offenses and the requirement for the requested state to give its consent within five hours. The EEA Directive does not generally require prior consent. Instead, a cross-border order is deemed to have been approved if the state concerned does not object.

Room for improvement

A relevant recommendation on the EEA amendment also appears in a leaked draft evaluation of the instrument, which the General Secretariat sent to the delegations of the member states at the end of October. In its comments, the Czech Republic calls for additional legal provisions that do not "only relate to vehicles". The government in Prague emphasizes that cross-border surveillance "could also affect aircraft, for example". In addition, the installation of spyware such as state Trojans is "more likely to affect telephones or servers".

The secretariat notes that the current evaluation round has shown "that the directive is frequently applied by the member states and generally works well in practice". However, there is still room for improvement. For example, it has become clear "that the Member States have different approaches to the question of whether surveillance measures using technical means, such as GPS tracking or the interception of vehicles" even fall under the concept of telecommunications surveillance. This alone requires clarification.

(rbr)