The Evolving EU Counter-terrorism Legal Framework

Maria O'Neill

• Publisher: Routledge
• Year: 2011
• Print ISBN: 9780415557580
• eBook ISBN: 9781136493836
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

Since the coming into force of the Lisbon Treaty in 2009, and the contemporaneous publication of the Stockholm Programme, the area of freedom, security and justice has obtained a more secure legal basis within the EU treaty framework and now has a coherent policy programme set out for its development.

A key aspect in the area of freedom, security and justice are the EU's provisions dealing with counter-terrorism. This book examines the rapidly emerging area of EU law and policy on counter-terrorism, addressing these twin disciplines from both a theoretical and practical perspective. The Evolving EU Counter-Terrorism Legal Framework is the first comprehensive exposition of EU anti-terrorism law, bringing together laws and policies on terrorism from across the three distinct EU pillars, as well as exploring the legal framework for EU external relations in counter-terrorism.

In focusing on this challenging area of EU legal policy which is presently under construction, the book brings greater clarity and critical analysis to the existing legal framework currently in place. In addition to considering the current legal circumstances, Maria O'Neill goes on to highlight potential difficulties which may occur in the future and suggests possible avenues for development of counter-terrorism provisions.

1 Introduction

Introduction

The European Community (EC) as a legal framework, for many of its first 50 years of existence, defied definition, being neither a national legal system nor part of either public or private international law. Writing in 1983, Dagtoglou¹ spoke about the ‘basic problem’ of the then European Economic Community (EEC) being ‘the legal nature and in general, the character and identity of the European Community’ saying that after 30 years of development and academic commentary, ‘no complete and final answer’ to this question had then been given. Affecting both private individuals and its constituent member states, and, in particular after the supremacy and direct effect case law,² with the ability of individuals to sue for damages on the basis of the principle of state liability for the non-implementation of directives, pursuant to the Francovich line of European Court of Justice (ECJ) case law,³ adding to the armoury of those seeking the enforcement and operability of EC law, legal academics resorted to classifying EC law as being sui juris or one of a kind.

The EC has been a spectacularly successful experiment in western European integration, with its legal framework and detail being ‘in a permanent state of evolution’.⁴ Granted there is always room for improvement. The principal policy areas of free movement of goods, persons, services and capital, have led – with the lowering of the borders between the member states, both through core EC policy provisions, and their subsequent acceleration by the adoption of the Schengen acquis⁵ – to the free movement of criminals, and criminal assets, both of which the EC member states have attempted to grapple with.

The integration of policing and criminal justice provisions into the inter-state relationships was written into the legal framework by the Maastricht Treaty⁶ in 1992. With the ‘European’ experiment increasingly affecting core ‘nationality’ or ‘sovereignty’ provisions of its member states, there was national political reluctance to the increased ‘pooling of sovereignty’ at a supranational level, within the European Union (EU) structure, with its established democracy and human rights deficits. The construction of the area of ‘Freedom, Security and Justice’, has to steer itself around valid domestic political concerns. This is nothing new for the EU, with Dagtoglou, in 1983 stating, with regard to the then developmental stage of the EC, that the determination of the EC commercially focused relationships concerned ‘not only law, but above all politics’.⁷ Writing in the context of criminal or ‘low’ policing,⁸ Shearing has written about the ‘the complex relationships that are emerging between state, supra-state and non-state entities’.⁹ As the political realities within which we all operate change, with an increasing focus on cross-border legitimate and illegitimate activity, new structures and institutions need to be created not only for commercial activity, but also for countering criminal activity. As Hough has observed in the context of UK ‘low’ policing, the ‘institutions of the criminal justice system evolved in Victorian times into a shape that is still recognizable today’.¹⁰ These institutions need modification and further developments are required, in order to adequately address current realities.

If all of the above are true with regard to criminal or ‘low’ policing, then they must also be true in the context of counter-terrorism or ‘high’ policing,¹¹ traditionally defined as the protection of the state. Recent changes under the Lisbon Treaty, which came into force in December 2009, have altered the three-pillar structure of the EU, which will affect, positively, the law enforcement structure of the EU going forward, of which more later, particularly in the concluding chapter of this book. The pre-Lisbon counter-terrorism developments of the EU remain, however, in force in the post-Lisbon era until such time as they are subsequently amended and replaced. The EU, pre the coming into force of the Lisbon Treaty was not, contrary to the views of earlier theorists, an evolving state, but it is very much a partnership between sovereign states, with the EC, pillar I, operating within the context of the pooling of sovereignty, and its allocation to the supranational bodies of the EC, in order to achieve either the core commercial objectives of the EC, or ‘objectives’ which ‘cannot be sufficiently achieved by the Member States and therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community’.¹² The more intergovernmental pre-Lisbon pillars II and III, while differing between themselves, were less integrated than the EC pillar. Pillar III, Police and Judicial Cooperation in Criminal Matters (PJCCM), had more functionality than pillar II, but has a number of examples of ‘variable geometry’¹³ allowing for states to integrate at the PJCCM level at different speeds. In addition, there is a generous sprinkling of international treaties being used by the EU member states to bring into effect policing and crime measures that can not be effectively brought into effect, for political reasons, within EU law. The European territory within which the EU is located also includes the EFTA¹⁴ states,¹⁵ which find that international organised crime is no respecter of their more traditional frontiers, and which feel compelled to participate in some of the policing provisions being operated by the EU member states. Bi-lateral relationships with the rest of the world, in particular the US, with the developing EU policing structures, have also to be added to this evolving mix.

Even more problematic in the context of national sovereignty, than criminal or ‘low’ policing across borders, is the issue of cross-border counter-terrorism provisions and operations, with ‘terrorism’ as a legal concept having been alien to some member states until the coming into force of the EU provisions in this area, and domestic legislation being drafted as ‘offences against the state’. If the EU is not to be a ‘state’, but rather a close relationship between states, then how are counter-terrorism structures and operations to be understood if they are not to be in the context of protecting a ‘state’? The EU does not even see itself as a ‘neighbourhood’, as such a term is reserved for the relationship that the territory which comprises the EU has with those countries outside the EU, under the recently created EU Neighbourhood Policy,¹⁶ part of the external relationships networks of the EU.

The perception of the risk from terrorism has changed in recent years, with the global vulnerability to terrorist attacks and the need for a global response being highlighted by the 9/11 and subsequent attacks. The likelihood of a true global response, along the lines of the global regulation of commerce, through frameworks like the WTO,¹⁷ is limited. There is, however, the possibility for working relationships to develop in the field of counter-terrorism between countries with similar global outlooks and similar legal and administrative frameworks. Within the EU, with an evolving ‘low’ policing framework, the possibility to develop an effective ‘high’ policing framework are raised, given the depth of the partnership between the EU member states, and the shared understanding of the need to work together. As stated by a former director of Europol, ‘international organized crime cannot be effectively addressed by disorganised international policing’.¹⁸ The same could be said with regard to transnational terrorism and counter-terrorism activity.

As an EU counter-terrorism framework is developed, the participants in this framework, as the policing professional would classify them, at the ‘strategic, tactical and operational level’, will have to engage in some very large perception shifts. While, no doubt, the ‘state’ will have to continue to be protected by counter-terrorism operatives, the perceived threat is not just to one state, but to a community of states, and the individuals which inhabit them. Just as the offence or crime is no longer (just) an ‘offence against the state’ but rather encompasses a broader understanding of the threat, now labelled ‘terrorism’, so too the framework for intelligence sharing and operations will also have to operate to reflect this perception shift, while still meeting the underlying need of ‘protecting the (home) state’ of the operative. This perception shift will be challenging. Many of the member states of the EU, however, in just joining the EU, or its predecessor, the EEC/EC, have already engaged in some innovative perception shifts. The founding member states of the EEC were emerging from the ashes of the Second World War when the EEC was originally conceived, with a number of later members either joining directly after moving from dictatorship to democracy, or in the case of the more recent member states, after the collapse of the USSR (Union of Soviet Socialist Republics) and the fall of the iron curtain. Imagination and innovation have never been lacking within the EU. This requirement for imagination and innovation will continue to be required as the EU legal framework dealing with counter-terrorism continues to be developed.

This perception shift of the policy actors in the evolving EU counter-terrorism framework ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Table of cases
• Table of legislation and other material
• List of abbreviations
• 1. Introduction
• 2. The financing of terrorism
• 3. Terrorism as an EU policing concept
• 4. Terrorism as an EU judicial concept
• 5. Terrorism as a frontier issue
• 6. Terrorism as an EU military concept
• 7. External relations of the EU with the US in counter-terrorism
• 8. Other external relations of the EU in counter-terrorism
• 9. Terrorism and human rights
• 10. Prospects for the future/conclusions
• Bibliography
• Index