EU Anti-Terrorism Strategy
Outline prepared for ERA Conference on `Developments in EU Criminal Justice' Edinburgh 30 September 2005
Dr Valsamis Mitsilegas Department of Law Queen Mary University of London
New York, Madrid, London: the EU response
3 attacks, 3 Declarations on combating terrorism: 21.9.01, 25.3.04, 13.7.05, and an evolving Action Plan
Post 9/11
§ Acceleration of negotiations and adoption of legislative texts as a matter of urgency (e.g. the European Arrest Warrant, Framework Decision on terrorism, Decision on the establishment of Eurojust)
§ Calls to facilitate the exchange of information and intelligence, create joint investigation teams and enhance the role of Europol (by creating inter alia a specialist anti-terrorist team)
§ Implementation of UN Security Council sanctions concerning suspected terrorists (lists and freezing of accounts) - measures recently upheld by CFI (cases T-305/Ol Kadi, T-306/O1, A1 Yasuf)
§ Strengthening of co-operation with the USA, by the conclusion of the EU-US Agreements on extradition and mutual legal assistance and the Europol-USA Agreement
After Madrid
§ calls for the implementation of counter-terrorism measures `a matter of urgency' - including the measures adopted post-9/11
§ emphasis on operational co-operation, including concrete measures on simplifying the exchange of information between national police authorities, retention of communicating traffic data and the exchange of passenger data (parallel debate on transfer of PNR data to US Customs)
§ reinforcement the role of EU bodies such as Europol, Eurojust, SitCen and the Police Chiefs Task Force
§ calls to maximise the effectiveness of information systems, including `interoperability' between SIS (and the development of SIS II), VIS and Eurodac and introducing biometrics in identity documents
§ emphasis on the need to combat terrorist finance (subsequently - 3`d money laundering Directive, Regulation on cash controls, Commission Communication on terrorist finance)
§ establishment of the position of an EU Counter-Terrorism Co-ordinator working `within the Council Secretariat' - co-ordinating the work of the
Council in combating terrorism and maintaining an overview of the relevant EU instruments
After London
§ calls for adopting pending (and controversial) legislative dossiers as a matter of urgency - eg Fr. Dec. on retention of telecommunications data, the European Evidence Warrant, and legislation on the exchange of information between law enforcement authorities
§ calls for combating terrorist finance by agreeing a number of binding and nonbinding instruments (the 3`d money laundering Directive was formally adopted on 20 September)
§ further development of biometrics and EU databases calls for the improvement of co-operation between EU agencies and national agencies regarding the exchange of information and intelligence (controversy over intelligence in the Hague Programme, which emphasises however the importance of the principle of availability)
§ emphasis on `preventing people turning to terrorism' - see recent Commission Communication on terrorist recruitment (COM(2005) 313 final, 21 September OS)
Some issues for discussion
1. EU counter-terrorism legislation as emergency legislation: adopted as a matter of urgency, with minimal scrutiny and justification/impact assessment of far reaching and controversial measures (see for instance the European Arrest _ Warrant)
2. EU counter-terrorism measures extending beyond terrorism: most of the legislative targets involve measures that are aimed at judicial co-operation in criminal matters in general, and not limited to terrorism - see for instance the European Arrest Warrant, the European Evidence Warrant and Eurojust
3. The association/mixing of the `war on terror' agenda with the immigration control agenda: measures whose aim is to control borders and the flows of people (such as the obligation of carriers to transmit passenger data or the development of EU databases) are adopted with a `war on terror' justification - this allows for more `exceptions' to the protection of human rights in the text and presents immigration and terrorism as part of the same debate
4. The emphasis on operational co-operation and the facilitation of information exchange: major issues of transparency, accountability and democratic control arise. Also the implications of a blanket application of the `principle of availability' considerable.
5. The development and `interoperability' of EU databases: significant issues of data protection arise, especially in the light of the fact that different databases have been set up for different purposes
6. The proliferation of EU structures: new roles to existing bodies (such as Europol), involvement of bodies with different roles (such as SitCen) and creation of new structures (such as the Counter-terrorism Co-ordinator): issues of efficiency/co-ordination on the one hand and transparency, accountability, democratic control and the protection of civil liberties on the other. Also issues of legality and competence eg legal basis for Counter-terrorism Coordinator
7. The cross-pillar character of EU counter-terrorism action: laws adopted and structures established fall within all three pillars - issues of consistency, coherence and inter-institutional balance/competition
8. The increased emphasis on mutual recognition and the impact for national Constitutional traditions and human rights
9. The emphasis on evaluation and implementation
10. The emphasis on co-operation with third countries, including the US: even when there are considerable differences in legal cultures and standards. To what extent should the EU expect its values to be upheld in international counter-terrorism co-operation?
London, 28 September 2005
24/10/2005 Rachel Brailsford 2
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