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Published online by Cambridge University Press: 22 August 2019
This article examines counter-terrorism efforts in the EU as it matures as a field of law. It sets out three critiques of EU counter-terrorism law: that of ineffectiveness, of anti-constitutionalism, and of contrariness to human rights and the rule of law. It considers these critiques in light of the development of policies and legal initiatives—against foreign terrorist fighters and against radicalisation. It concludes that there are both persistent problems, and some improvements, in the law. The EU's capacity to meet the challenges posed by terrorism and the counter-terrorism imperative, and how it does so, has global impact. The article concludes with an argument for better law-making in the EU to ensure it serves as a better exemplar of transnational law.
Some earlier versions of this work were presented in Leiden, The Hague and Santiago de Compostela. I am grateful to participants there and to the reviewers and editors for their comments. Errors and eccentricities are my own.
1 Europol, European Union Terrorism Situation and Trend Report 2018 (Europol, 2018), p 5.
2 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA  OJ L88/6.
3 Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism  OJ L164/3, amended by Council Framework Decision 2008/919/JHA of of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism  OJ L330/21.
4 COM(2018) 650 final, Proposal for a Regulation of the European Parliament and of the Council on Preventing the Dissemination of Terrorist Content Online (‘TOCR Proposal’).
5 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks  OJ L105/54.
8 ‘Paralysis at the Heart of UK Counter-extremism Policy’ (The Guardian, 7 September 2017). The UK has, however, pursued a new Counter-terrorism and Border Security Act 2019 which addresses, in part, radicalisation.
9 The principal literature of relevance at that time was in the field of police co-operation and Justice and Home Affairs. See Anderson, M, den Boer, M, Cullen, P, Gilmore, W, Raab, C, and Walker, N, Policing the European Union (Oxford University Press, 1996)Google Scholar, and Peers, S, EU Justice and Home Affairs Law (Oxford University Press, first edition 2000, now in its fourth edition, 2016)Google Scholar.
12 Coutts, S, ‘Supranational Public Wrongs: The Limitations and Possibilities of European Criminal Law and a European Community’ (2017) 54 Common Market Law Review 771Google Scholar.
13 Article 83(1) TFEU.
14 For a useful map of the field of EU criminal law (and criminal justice) see Weyembergh, A and Brière, C, ‘EU Criminal Law: An Expanding Field for Research, with Some Uncharted Territories’ in Servent, A Ripoll and Trauner, F (eds), The Routledge Handbook of Justice and Home Affairs Research (Routledge, 2017)Google Scholar.
15 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States  OJ L190/1.
16 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters  OJ L350/72. The European Evidence Warrant was later complemented by the European Investigation Order. See Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters  OJ L130/1.
17 See Borgers, M J, ‘Implementing Framework Decisions’ (2007) 44 Common Market Law Review 1361Google Scholar.
18 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC  OJ L105/54.
19 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC  OJ L141/73.
20 Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime  OJ L119/132.
21 Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan  OJ L139/9.
22 See Eckes, C, ‘EU Restrictive Measures against Natural and Legal Persons: From Counter-terrorist to Third Country Sanctions’ (2014) 51 Common Market Law Review 869Google Scholar, and C Eckes, ‘The Law and Practice of EU Sanctions’ (Amsterdam Centre for European Law and Governance) Research Paper No 2018–01.
23 Ginsborg, L and Scheinin, M, ‘You Can't Always Get What You Want: The Kadi II Conundrum and the Security Council 1267 Terrorist Sanctions Regime’ (2011) 8(1) Essex Human Rights Review 7Google Scholar.
28 For an examination of the question of ‘effectiveness’ of counter-terrorism in legal and other contexts, see Vermeulen, M, Deering, D, and McCarthy, S, Report on Legal Understandings of Impact, Legitimacy & Effectiveness of EU Counter-terrorism (SECILE, 2013)Google Scholar, and Londras, F de, Doody, J, Supe, J, and Zalkalne, S, Cross-Disciplinary Perspectives, on Impact, Legitimacy & Effectiveness in the Context of EU Counter-terrorism (SECILE, 2013)Google Scholar.
31 The distinction is drawn from McCrudden, C, ‘Legal Research and the Social Sciences’ (2006) Law Quarterly Review 632Google Scholar.
32 See Murphy, C C, EU Counter-terrorism Law: Pre-emption and the Rule of Law (Hart Publishing, expanded paperback edition, 2015)Google Scholar.
33 By ‘constitutionalism’ is meant that power is exercised in accordance with ‘a set of norms (rules, principles or values) creating, structuring, and possibly defining the limits of, government power or authority’. See W Waluchow, ‘Constitutionalism’ (Stanford Encyclopedia of Philosophy, 20 December 2017), at https://plato.stanford.edu/entries/constitutionalism/. On the general principles of EU law, see Tridimas, T, The General Principles of EU Law, 2nd Edition (Oxford University Press, 2007)Google Scholar.
34 Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Joined Cases C-402/05 P and C-415/05 P, EU:C:2008:461, para 236.
35 By their provision of an explicit legal basis in the Lisbon Treaty, the Member States may give greater credence to the claim that prior to the Treaty, such a basis did not exist. The explicit legal basis for restrictive measures is found in Article 75 TFEU. However, the EU continues to rely on Article 215 TFEU, despite the former article being preferable on both lex specialis and democratic grounds. A contrarian view would be that the clarification of a legal basis post-Lisbon does not mean there was not already a legal basis before that Treaty.
36 Ireland v European Parliament and European Council, C-301/06, EU:C:2009:68.
38 Raz, J, ‘Why the State’ in Roughan, N and Halpin, A (eds), In Pursuit of Pluralism Jurisprudence (Cambridge University Press, 2017)Google Scholar.
39 Advocaten voor de Wereld, C-303/05, EU:C:2007:261.
41 See Digital Rights Ireland, C-293/12, EU:C:2014:238; Tele2 Sverige and Watson v. GCHQ, Joined Cases C-203/15 and C-685/15, EU:C:2016:970.
43 European Parliament v Council and European Parliament v Commission, Joined Cases C-317/04 and C-318/04, EU:C:2006:346, on the EU-US PNR Agreement; and Council v in ‘t Veld, C-350/12 P, EU:C:2014:2039 on access to documents in relation to the EU-US Swift Agreements.
44 Draft agreement between Canada and the European Union on Transfer of Passenger Name Record Data, Opinion 1/15, EU:C:2017:592.
46 See Murphy, note 32 above, pp 227–28.
47 Coutts, note 12 above.
48 Advocaten voor de Wereld, note 39 above, paras 48–54.
50 See DCT, Preamble, Rec 34, amongst other recitals.
51 COM/2015/0625 final, Proposal for a Directive of the European Parliament and of the Council on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA on Combating Terrorism.
52 One additional novel aspect is found in Article 24, which provides for the protection of, and provision of assistance to, victims of terrorism. Of particular note is the requirement to provide ‘emotional and psychological support, such as trauma support and counselling’. It is unclear how Member States are to ensure that the services are ‘confidential, free of charge, and easily accessible to all victims of terrorism’. This provision includes what could be quite a significant commitment of resources for Member States’ mental health services. Insofar as there is new content in the Directive, it largely derives from UN Security Council Resolution 2178 (SCR 2178). UN Doc S/Res/2178 (2014). The Directive sits alongside an Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism agreed on 22 October 2015.
53 COM(2018) 640 final, note 4 above.
54 ‘EU Terrorism Regulation – an EU Election Tactic' (EDRI, 12 September 2018), at https://edri.org/press-release-eu-terrorism-regulation-an-eu-election-tactic/
55 ‘France Invokes EU Article 42.7, but What Does It Mean?’ (The Guardian, 17 November 2015).
56 S Farer, ‘Spain's Foreign Fighters: The Lincoln Brigade and the Legacy of the Spanish Civil War’ (Foreign Affairs, September/October 2016).
59 UN Security Council Counter-terrorism Committee Executive Directorate, The Challenge of Returning and Relocating Foreign Terrorist Fighters: Research Perspectives (UN, 2018), p 4Google Scholar.
61 Europol, TESAT 2018, p 26.
62 UN Doc. S/Res/2178 (2014).
64 UN Doc. S/Res/1566 (2004), para 1. Paragraph 3 does include a definition of terrorism offences: ‘criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism’.
65 SCR 2178 does explicitly state that participation in ‘armed conflict’ falls within its scope—something which expands rather than limits the definition.
66 K Ambos, ‘Our Terrorists, Your Terrorists? The UN Security Council Urges States to Combat “Foreign Terrorist Fighters”, but Does Not Define “Terrorism”’ (EJIL: Talk!, 2 October 2014).
68 UN Doc. S/Res/1373 (2001). For a critique see Alvarez, note 62 above, pp 874–78.
69 UN Doc. S/Res/1624 (2005).
70 A Peters, ‘Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part I’ (EJIL: Talk!, 20 November 2014).
72 UN Doc. S/Res/2253 (2015).
73 UN Doc. S/Res/2395 (2017).
74 UN Doc. S/Res/2396 (2017).
75 UN Doc. S/Res/2396 (2017), para 18.
76 F Ní Aoláin, ‘The UN Security Council, Global Watch Lists, Biometrics, and the Threat to the Rule of Law’ (Just Security, 17 January 2018).
77 Until the purported departure of the UK from the EU on 31 October 2019 after which France will become the only such member.
78 UN Doc. S/Res/2396 (2017), Art 12.
79 DCT, Preamble, Rec 5.
81 DCT, Art 10.
83 This has been acknowledged in a summary of research by the UN Counter-terrorism Committee Executive Directorate: ‘The Challenge of Returning and Relocating Foreign Terrorist Fighters: Research Perspectives’ (CTED Trends Report, March 2018), p 13: ‘It takes time to develop a brief of evidence; some returnees will not meet the required evidentiary threshold, while those that do may only be prosecuted for relatively minor offences, meaning that prison sentences imposed on FTFs can be relatively short’.
84 Article 2(2) FDEAW provides for surrender for the list of 32 offences ‘as they are defined by the law of the issuing Member State’.
85 Council Decision (CFSP) 2016/1693 of 20 September 2016 concerning restrictive measures against ISIL (Da'esh) and Al-Qaeda and persons, groups, undertakings and entities associated with them and repealing Common Position 2002/402/CFSP  OJ L255/25; Council Regulation (EU) 2016/1686 of 20 September 2016 imposing additional restrictive measures directed against ISIL (Da'esh) and Al-Qaeda and natural and legal persons, entities or bodies associated with them  OJ L255/1.
86 See Coleman, N, ‘From Gulf War to Gulf War – Years of Security Concern in Immigration and Asylum Policies at European Level’ in Baldacinni, A and Guild, E (eds), Terrorism and the Foreigner: A Decade of Tension around the Rule of Law in Europe (Brill Publishing, 2006)Google Scholar.
88 ‘Extend Border Controls to Counter Terror Threat, Say France and Germany’ (The Guardian, 15 September 2017).
89 See European Commission, ‘Security Union: New Rules on Reinforced Schengen Information System Enter into Force’ (Brussels, 28 December 2018).
90 See in general UNCTED, The Challenge of Returning and Relocating Foreign Terrorist Fighters: Research Perspectives, March 2018.
91 Intelligence and Security Committee of Parliament, The 2017 Attacks: What Needs to Change? HC1694, 22 November 2018.
92 Sedgwick, M, ‘The Concept of Radicalisation as a Source of Confusion’ (2010) 22 Terrorism and Political Violence 479, p 480CrossRefGoogle Scholar. For a review of the term's use, see Neumann, P, ‘Introduction’, in Neumann, P and Stoil, J (eds), Perspectives on Radicalisation and Political Violence (ICSR, 2008), p 3Google Scholar.
93 ICSR, Prisons and Terrorism: Radicalisation and De-radicalisation in 15 Countries (ICSR, 2010), p 12Google Scholar.
96 UN Doc. S/Res/1373 (2001), Preamble, Rec 6.
97 UN Doc. S/Res/1624 (2005), Preamble, Rec 5.
99 Bossong, note 98 above, pp 67–70.
100 COM(2004) 698 final, Communication from the Commission to the Council and the European Parliament Prevention, Preparedness and Response to Terrorist Attack.
101 COM(2005) 313 final, Communication from the Commission to the Council and the European Parliament Concerning Terrorist Recruitment, Addressing the Factors Contributing to Violent Radicalisation.
102 See Bossong, note 98 above.
103 See Murphy, C C and Arcarazo, D Acosta, ‘Rethinking Europe's Freedom, Security and Justice’ in Arcarazo, D Acosta and Murphy, C C (eds), EU Security and Justice Law: After Lisbon and Stockholm (Hart Publishing, 2014)Google Scholar.
104 COM(2013) 941 final, Preventing Radicalisation to Terrorism and Violent Extremism Strengthening the EU's Response (‘2014 Communication’).
105 European Commission, 2014 Communication, p 2.
112 Bossong, note 98 above, p 69.
114 On the trade-offs see Neumann, note 94 above, p 888.
115 See ‘Radicalisation Awareness Network (RAN)’, at http://ec.europa.eu/home-affairs/what-we-do/networks/radicalisation_awareness_network_en.
116 European Court of Auditors, Tackling Radicalisation that Leads to Terrorism: The Commission Addressed the Needs of Member States, but with Some Shortfalls in Coordination and Evaluation (2018).
118 ‘Each Member State shall take the necessary measures to ensure that inciting or aiding or abetting an offence referred to in Article 1(1), Articles 2 or 3 is made punishable’.
119 Commission (EC), Commission Staff Working Paper. Annex to the Report from the Commission based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism SEC(2004) 688 8 June 2004 (‘First Evaluation Report Annex’), p 19.
120 UN Security Council Resolution 1624 (2005), Council of Europe Convention on the Prevention of Terrorism, CETS No 196, Warsaw, 16/05/2005.
121 FDCT, as amended, Art 3(2)(c).
124 Data Retention Directive, note 18 above.
125 See Vainio, N and Miettinen, S, ‘Telecommunications Data Retention after Digital Rights Ireland: Legislative and Judicial Reactions in the Member States’ (2015) 23(3) International Journal of Law and Information Technology 290CrossRefGoogle Scholar. See further http://www.statewatch.org/news/2019/may/eu-council-data-retention.htm.
126 See, for example, ‘WhatsApp Must Not Be “Place for Terrorists to Hide”’ (BBC News, 26 March 2017), at https://www.bbc.com/news/uk-39396578.
127 Investigatory Powers Act 2016, Sec 253.
128 DCT, Art 21(2)–(3).
129 Terrorism Regulation Proposal, Art 1(1).
131 DCT, Art 29(1)–(2). The latter clause sets out the terms of the ‘added value’ review: ‘assessing the added value of this Directive with regard to combating terrorism. The report shall also cover the impact of this Directive on fundamental rights and freedoms, including on non-discrimination, on the rule of law, and on the level of protection and assistance provided to victims of terrorism’.
132 See Hayes, B and Jones, C (Statewatch), Report on How the EU Assesses the Impact, Legitimacy and Effectiveness of Its Counter-Terrorism Laws (SECILE Consortium, 2014)Google Scholar.
133 DCT, Preamble, Rec 41; with reference to Protocol No 21 of the Lisbon Treaty.
135 See: Criminal Justice and Data Protection (Protocol No 36) Regulations 2014.
136 D Anderson, ‘Terrorism: The EU Picture’ (Counsel, May 2017), at https://www.counselmagazine.co.uk/articles/terrorism-the-eu-picture and D Anderson, Terrorism and the Law (Graham Turnbull Lecture, The Law Society, 21 April 2016).
137 See House of Commons European Scrutiny Select Committee, ‘EU participation in Council of Europe Convention and Additional Protocol on the Prevention of Terrorism: Summary and Committee's Conclusions’, [13.2], 24 January 2018, citing an Explanatory Memorandum of 27 November 2017 by the Minister for Security.
138 DCT, Preamble, Rec 10.
140 Anderson, D and Murphy, C C, ‘The Charter of Fundamental Rights’ in Biondi, A, Eeckhout, P, and Ripley, S (eds), EU Law after Lisbon (Oxford University Press, 2012), pp 164–65Google Scholar.
141 See the reports of the SECILE Consortium, summary available at: https://cordis.europa.eu/result/rcn/164039_en.html.
142 EU Commissioner for Trade, Celia Malmstrom, ‘Changes in Trade’ (Brussels, 28 May 2018).
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