Before and after Lisbon: legal implementation as the ‘Achilles heel’ in EU counter-terrorism?

Abstract

Implementation has often been described as a key weakness affecting European Union (EU) counter-terrorism. However, this view is often adopted as a given and there has not been so far a systematic examination of the degree to which this represents an obstacle to the effectiveness of the EU response. This paper aims to contribute towards this goal through the use of primary sources in the study of the legal transposition of counter-terror instruments into national law, a key stage in the implementation process. It shows the presence of major implementation delays in this policy sector but, importantly, also significant cross-national variation with regards transposition failure associated with the administrative endowment of the individual member states. Furthermore, the mechanisms deployed by the Union to encourage a fluid implementation of European measures are critically evaluated and the potential impact in the process of the institutional transformations brought about by Lisbon is also examined.

Keywords:

• EU
• counter-terrorism
• security

Acknowledgements

Previous versions of this paper were presented at University of Salford in January 2010 and ECPR-SGIR Stockholm in September 2010. I am grateful to the participants and audience for their suggestions. I am also thankful to the anonymous reviewers for their comments.

Notes

1. The European Arrest Warrant being an exception (UK House of Lords 2006).

2. Article 35.7 of the Treaty referred to the legislative acts stated at Article 34.2 (i.e. Framework Decisions, Decisions, Joint Actions…,).

3. Bulgaria and Romania are obviously excluded from the comparison since they joined the Union in 2007 halfway through the analysis period.

4. A periodic – two ‘waves’ per year – survey of public opinion in the European Union carried out by the Directorate-General for Communication of the Commission.

5. Whereas commonalities are strong, variation is also present: Spain, Austria and Portugal, three of the worst laggards in the 2009 internal market evaluation, are average transposers in the FSJ reports. They show widely varying patterns in counter-terrorism: Austria is a top implementer, Spain's record is above average and Portugal's is ordinary.

6. Falkner and Treib's model does not encompass all EU-27 and Cyprus was not included.