The EU's approach post-September 11: global terrorism as a multidimensional law enforcement challenge

Abstract

In response to the threat of terrorism following 9/11, the European Union has opted for a clear cross-border law enforcement approach that is quite distinct from the putative ‘war on terror’. This choice has been determined by factors of history, divergent threat perceptions, relative value orientations and restricted competences. And yet, far from limiting itself to a traditional ‘internal’ law enforcement focus, the EU has developed an extensive multidimensional approach that combines legislative and operational, repressive and preventive, internal and external, as well as institutional, measures. But weaknesses persist: the preference given by member states to instruments of cooperation and coordination, rather than integration, as well as the poor implementation of many agreed-upon measures, negatively weigh against the effectiveness of the EU's multidimensional law enforcement approach. Legitimacy deficits also exist owing to limited parliamentary and judicial control. These deficits will need to be addressed to reinforce the credibility of the EU's approach as a viable ‘European’ alternative to the US ‘war on terror’.

Notes

¹ According to a Financial Times/Harris opinion poll of June 2006, 36 per cent of respondents in the five biggest member states (Britain, France, Germany, Italy and Spain) identified the US as the biggest threat to global security (Alden et al 2006).

² Terrorisme, Radicalisme, Extrémisme et Violence Internationale.

³ France suffered a series of major attacks in 1985–1986 (by Hezbollah-linked terrorists) and 1995 (by Algerian terrorists).

⁴ A comprehensive set of poll data on US citizens' attitudes regarding the war on terrorism can be found on the ‘Polling Report’ website, < http://www.pollingreport.com/terror.htm>.

⁵ See Article 11(1) TEU.

⁶ Assuming that the EU could actually mobilize military forces for such a purpose, which is far from certain when one has regard to the state of development of the European Security and Defence Policy and the differing positions of the member states on military interventions abroad.

⁷ In the EU's Counter-Terrorism Strategy of 2005, ‘to combat terrorism globally while respecting human rights’ is defined as the Union's ‘strategic commitment’ (Council of the European Union 2005).

⁸ Articles 2 and 29 TEU; Article 61(e) TEC.

⁹ See the second paragraph of Article 29 TEU.

¹⁰ Article 29, second paragraph, and Article 31(e) TEU.

¹¹ ‘A mixture of intelligence, police, judicial, military and other means’ (European Council 2003, 8).

¹² Official Journal of the European Communities, L 164/3, 22 June 2002.

¹³ Official Journal of the European Union, L 139 of 29 May 2005.

¹⁴ Commission Regulation (EC) 301/2005, Official Journal of the European Union, L 51 of 24 February 2005.

¹⁵ Official Journal of the European Union, L 196 of 2 August 2003.

¹⁶ Official Journal of the European Union, L 68 of 15 March 2005.

¹⁷ Official Journal of the European Union, L 309 of 25 November 2005.

¹⁸ Official Journal of the European Communities, L 190 of 18 July 2002.

¹⁹ Its provisions are now part of the Convention on Mutual Assistance in Criminal Matters, which entered into force on 23 August 2005 (Official Journal of the European Communities, C 197 of 12 July 2000).

²⁰ Official Journal of the European Communities, L 16 of 22 January 2003.

²¹ Official Journal of the European Union, L 253 of 29 September 2005.

²² Official Journal of the European Union, L 322 of 9 December 2005.

²³ Official Journal of the European Union, L 105 of 13 April 2006 (although this is a more general instrument, it has been partially motivated by antiterrorism objectives; see paragraphs 8 and 9 of the preamble).

²⁴ Council document 14781/1/05 of 24 November 2005.

²⁵ European Commission Memo/06/269 of 6 July 2006: Commission activities in the fight against terrorism.

²⁶ Agreement of 6 December 2001, < http://www.europol.eu.int/legal/agreements/Agreements/16268-2.pdf>, allowing for the exchange of strategic data, and agreement of 20 December 2002, < http://www.europol.eu.int/legal/agreements/Agreements/16268-1.pdf>, allowing for the exchange of personal data.

²⁷ EU Council document 9153/03 of 3 June 2003.

²⁸ A typical example is the inclusion of terrorism in the risk analysis function of FRONTEX as regards the EU's external borders (EU Council document number 10043/06 of 31 May 2006, point 2.5.8).

²⁹ Reformed unit D/1 in the Directorate General Justice Freedom and Security.

³⁰ See European Commission Press release number IP/05/1031 of 2 August 2005. Much more substantial funding allocations to the fight against terrorism are currently under discussion in the Council for the financial perspective 2007–2013.

³¹ For this and other problems, see Eurojust (2005, 109–110).

³² The Coordinator's position was introduced through a paragraph in the European Council's ‘Declaration on Combating Terrorism’ of 25 March 2004 (Bulletin of the EU 3-2004, point I.41.).

³³ On Europol's information problems, see the summary of the Chairman of the Council's Article 36 Committee of the High Level Conference on the Future of Europol of 23/24 February 2006 (Council document 7868/06 of 29 March 2006).

³⁴ See, on this point, the remarks of Commission Director-General Jonathan Faull in the Report of the House of Lords European Union Committee, ‘After Madrid: the EU's response to terrorism’, 5th Report of Session 2004–2005, Evidence, 43.

³⁵ Council document 9589/06 of 19 May 2006, paragraphs 26 and 31.

³⁶ On these and other missed implementation deadlines see Council document 9589/06 ADD 1 of 19 May 2006.

³⁷ With the exception of the potential infringement of data protection rights because of the processing of relevant personal data by its agencies, in particular Europol and Eurojust.

³⁸ Some examples are given—from a very critical perspective—in Statewatch (2004).

³⁹ The Parliament needs only to be consulted on such legislation—which gives it no power of amendment or rejection—and the jurisdiction of the Court of Justice is limited by several member states not accepting preliminary rulings in this domain and by a more extensive public security exemption (Article 35 TEU).

⁴⁰ Case T–306/01 Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II–0000 and Case T–315/01 Kadi v Council and Commission [2005] ECR II–0000 (not yet reported).