FRA opinions
Ensuring efficient
whistleblower protection
The European Court of Human Rights has held that
whistleblowing by civil servants should be ensured.
Whistlebowers can significantly contribute to a wellfunctioning accountability system. FRA’s research
revealed different whistleblowing practices across
EU Member States. Interviewed experts expressed
diverging views about whistleblower protection.
FRA opinion 8
EU Member States should ensure efficient protection
of whistleblowers in the intelligence services. Such
whistleblowers require a regime specifically tailored
to their field of work.
Defining in law oversight
bodies’ competences over
international intelligence
cooperation
FRA’s comparative legal analysis shows that most
Member States’ laws do not have clear provisions on
whether oversight bodies can oversee international
cooperation exchanges. Eight EU Member States
establish oversight bodies’ competences over
international intelligence sharing – either with or
without limitations; laws in three EU Member States
exclude any form of independent oversight. In the
remaining 17 Member States, legal frameworks are
subject to interpretation to determine oversight bodies’
competences over international intelligence sharing.
FRA opinion 10
Subjecting international
intelligence cooperation to
rules assessed by oversight
bodies
FRA’s comparative legal analysis shows that almost all
Member States have laws on international intelligence
cooperation. However, only a third require intelligence
services to draft internal rules on processes and
modalities for international cooperation, including
safeguards on data sharing. When they exist, these
rules are generally secret. Only a few Member States
allow for external assessments of international
intelligence cooperation agreements.
FRA opinion 9
EU Member States should define rules on how
international intelligence sharing takes place.
These rules should be subject to review by
oversight bodies, which should assess whether
the processes for transferring and receiving
intelligence respect fundamental rights and
include adequate safeguards.
EU Member States should ensure that legal
frameworks regulating intelligence cooperation
clearly define the extent of oversight bodies’
competences in the area of intelligence services
cooperation.
Exempting oversight bodies
from the third-party rule
In international intelligence service cooperation, the
third-party rule prevents a service from disclosing to
a third party any data received from a partner without
the source’s consent. FRA’s research underlines that
the third-party rule protects sources and guarantees
trust among intelligence services that cooperate.
However, FRA’s data show that oversight bodies are
often considered as ‘third parties’ and therefore cannot
assess data coming from international cooperation. In
some Member States, oversight bodies are no longer
considered as ‘third parties’ and so have full access
to such data.
FRA opinion 11
Notwithstanding the third-party rule, EU Member
States should consider granting oversight bodies
full access to data transferred through international
cooperation. This would extend oversight powers
over all data available to and processed by
intelligence services.
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