Introduction

On the 7 June 2006 Dick Marty produced a report for the Council of Europe that must have caused considerable political embarrassment within the EU. That embarrassment would have related as much to the institutional response as to the report's content. Marty laid bare the extensive ‘web’ of intrigue that connected the CIA and its treatment of terrorist suspects with many European governments, including several from the EU. It involved practices of abduction, denial of legal safeguards and, most likely, torture. Marty believed that the rule of law was threatened by such disregard for those human rights norms and standards which have enshrined themselves within the European realm over the past half century.

Six months earlier, EU Justice Commissioner Franco Frattini had expressed the view that if any Member State of the Union were to be found to have colluded with US security and intelligence agencies in the transport and incarceration of ‘terrorist suspects’ without recourse to the due process of law, they should be subjected to a severe EU response. ‘I would be obliged to propose to the Council serious consequences, including the suspension of voting rights in the Council’, Frattini was reported as declaring. He was referring to the power under Article 7 TEU to apply sanctions to any Member State thought to have been responsible for a serious breach of those original Article 6(1) TEU principles, which included respect for the rule of law.

When Marty's report appeared, however, the initial silence from Frattini was deafening.