EU ANTI-TERRORISM MEASURES

The EU Commission will propose a new wave of EU anti-terrorist measures in a month’s time. It’s not yet known what the content of this law will be. Currently, it would not be problematic to use existing EU anti-terrorism laws if necessary, in order for instance to surrender suspects of crime on the basis of a European Arrest Warrant (EAW), in the event that they fled to another Member State. The question is whether the EU needs more such laws.

Since 11 September 2001,  239 EU counter-terrorism measures have been introduced: 26 action plans and strategy documents, 25 Regulations, 15 Directives, 11 Framework Decisions, 25 Decisions, 1 Joint Action, 3 Common Positions, 4 Resolutions, 111 Council Conclusions, and 8 international agreements. On the top of it, there are operational (or non-legislative) measures, EU agreements with third countries that contain basic counter-terrorism commitments, numerous agreements between EU agencies such as EUROPOL and EUROJUST.

Moreover, there are proposals already under discussion which would apply to terrorism issues (among others) such as a new law on EUROPOL, the EU’s police intelligence agency and proposed EU legislation on the transfer of airlines’ passenger name records (PNR).

So what new laws is the Commission likely to propose ? It may suggest a new version of the data retention Directive, the previous version of which was struck down by the Court of Justice of the European Union (CJEU) last spring, in the Digital Rights judgement. Other ideas under discussion are new laws strengthening mandatory checks at borders.

Are any of these new laws really necessary? Member States can already adopt laws on retention of communications data, pursuant to the EU’s e-privacy directive. As the European Parliament’s legal service has confirmed, if Member States adopt such measures, they will be subject to the constraints of the Digital Rights judgement, which bans surveillance carried out in the absence of safeguards to protect privacy. Equally, Member States are free to establish their own PRN systems, in the absence of any EU-wide measures (besides EU treaties with the United States of America, Canada and Australia on PNR). The question of whether mass surveillance is as such compatible with human rights has already been sent to the CJEU by the European Parliament, which has asked the Court to rule on this issue in the context of the EU/Canada PNR treaty.

It would be possible to adopt new laws calling for systematic border checks in specific cases. In practice, this would likely mean checks on Muslims who are returning after travel to places like Syria. It is questionable whether asking detailed further questions at the external borders will, by itself, really do a lot to prevent terrorism. After all, in the Paris attacks, it unfortunately proved impossible to prevent an apparent attack despite anti-terrorist legislation on the books, and bodyguards protecting the staff of a known terrorist target.

There’s also a question of principle here. The Paris attacks were directed at free speech, the foundation of liberal democracy. Of course efforts should be stepped up to prevent such attacks from happening again ; but existing laws allow for targeted intelligence gathering and sharing already. The direct attack on fundamental democratic principles in Paris is precisely the wrong context to consider that new legislation curtailing other fundamental freedoms is limited.

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
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 (e.g. 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' .
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 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.
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?