In the EU, intelligence services function within a legal context, including [parliamentary] surveillance. Furthermore, services have to act in accordance with international treaties and conventions, such as Article 8 of the European Convention on Human Rights.

The EU anomaly

Despite these clear legal provisions, it is common practice for intelligence services to collect intelligence on citizens and companies in other EU countries, even if these citizens and companies act in a complete legal manner. Agencies may spy not because of domestic security concerns, but because of other state interests, such as economic ones. In the intelligence community, this is also referred to as ‘political’ intelligence.

The European Union wants to strengthen the values of the democratic legal order. Economic espionage may be common practice, but it is not in line with the European ideal to promote the democratic legal order and to protect individual rights. Furthermore, it is not in line with the idea of a single market of the European Union – in which ‘people, goods, services, and money can move around the EU as freely as within a single country’ – if one state gains an advantageous position by economic espionage within this single market economy.

European Convention on Human Rights

In Article 8 (Right to respect for private and family life) of the European Convention on Human Rights [ECHR], it is stated that everyone has the right to respect for ‘his private and family life, his home, and his correspondence, and that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, […]’. This phrasing allows countries to collect intelligence abroad for economic reasons, something France and the United Kingdom explicitly mention in their national legislation. The ‘economic well- being’ is an open-ended formulation and allows countries to steal research and development results of companies abroad. Especially in the context of the single market of the European Union such economic espionage is contrary the idea of a single market.

Economic espionage within a country?

Imagine that a successful research and development department of a company in Amsterdam has invested billions of euros, and this company is perceived as a threat to Rotterdam’s economic well-being. And the intelligence unit of the Rotterdam police unit would spy on the Amsterdam-based company. No one would accept such economic spying within a country. But on an international level, it is not only common practice, it is even not illegal according the ECHR- and EU-treaties. As a result, citizens will become the object of intrusive intelligence activities. An intelligence agency can listen in, steal documents, break in, and bug you and your colleagues, just because you may affect the economic interests of the other country with your successful business.

Mind the gap!

Within a nation, such a situation would be perceived as unlawful, but on the international level, it is business as usual. It is a result of both the open-ended provisions of the European Convention on Human Rights, and the layered structure of sovereignty of the European Union with its mix of intergovernmental and supranational elements. Within the EU, the economy – the single market – is organized on a supranational level, but intelligence is organized on a national level. Economic espionage is seen as part of the work of intelligence services [international, so-called ‘political’ intelligence], and not of security agencies [domestic]. It is exactly this difference that leads to the legal deficit of the single market of the EU. Remarkably, this legal deficit is not part of the public debate. But as long as the EU does not put down in its treaties that within the single market, economic espionage is an issue of domestic [/supranational] security – and therefore not allowed – this worrying legal deficit of the single market of the European Union will remain a flourishing business for intelligence agencies.