Trust and the Exchange of EU Classified Information: The Example of Absolute Originator Control Impeding Joint Parliamentary Scrutiny at Europol

Abstract

AbstractThe absolute implementation of the originator control principle (‘absolute originator control’) allows the EU Member States’ national intelligence services to block the access of the European Parliament to confidential information necessary for the effective exercise of joint parliamentary scrutiny at Europol. This research paper will demonstrate that this is a flawed practice in need of urgent reform, since it violates some of the basic tenets of EU constitutional law enshrined in Article 13 TEU and Article 9 TEU. This legal problem is reframed with the help of trust theory, which reveals that absolute originator control causes the Union to be confronted with a constitutional dilemma that is irresolvable in the EU legal order: the Union is revealed to be a trustee to two trustors – the EU Member States and the EU citizens; to protect the interests of one trustor, the Union would necessarily have to betray the trust of the other trustor.