The external dimension of EU counter-terrorism: the challenges of the European Parliament in front of the European Court of Justice

Abstract

Since 11 September 2001, the European Union (EU) has significantly increased its involvement in counter-terrorism. A sizeable cluster of those new EU counter-terrorism acts were challenged in front of the European Court of Justice, and many of those acts ended being annulled by the Court. In the foreign dimension, the European Parliament challenged three counter-terrorist acts: the first Transatlantic Agreement on passenger name records, the EU technical assistance to the Philippines and the EU UN terror list. The analysis of the nature and implications of these three cases shed light on the evolving configuration of the EU foreign policy in terms of both institutional design and ideological choices.

Keywords:

• EU Foreign Policy
• counter-terrorism
• European Parliament
• European Court of Justice
• judicial politics

Acknowledgements

The research for this article was undertaken while being researcher at the Political and Social Sciences Department and, subsequently, at the Robert Schuman Center for Advanced Studies of the European University Institute (Florence, Italy). This research was possible thanks to the support of the program European Foreign and Security Policy Studies (EFSPS) of the Compagnia di San Paolo, the Riksbankens Jubileumsfond and the VolkswagenStiftung. I would like to thank Marise Cremona, Bruno Oliveira Martins, Laura Ferreira-Pereira, Rocco Bellanova, Javier Argomaniz, Stijn Van Wesemael and two anonymous referees for their feedback on earlier drafts of this article.

Notes

1. The term ‘European Court of Justice’ (ECJ) is the common manner of referring to the EU institution officially denominated the ‘Court of Justice’. The Court of Justice consists of three Courts: the Court of Justice (per se), the General Court and the Civil Service Tribunal. The General Court has jurisdiction to adjudicate on certain type of cases in ‘first instance’. Prior to the entry into force of the Treaty of Lisbon, the Court of Justice held the official name of Court of Justice of the European Communities and the General Court held the official name of Court of First Instance.

2. This is a non-exhaustive list of the counter-terrorism cases that the ECJ have accepted since 11 September 2001. It includes cases that have been already adjudicated and those that are still pending in front of the ECJ (both in front of the General Court and the Court of Justice).

3. The Decision 2004/496/EC (Council of Ministers 2004) was challenged through cases C-317/04&C-318/04.

4. The Decision ASIA/2004/016-924 (Commission 2004) was challenged through the case C-403/05.

5. The Directive 2006/24/EC (Council of Ministers and Parliament 2006a) was challenged through the case C-301/06.

6. The Framework Decision 2002/584/JHA (Council of Ministers 2002c) was challenged through the case C-303/05.

7. The Regulation 622/2003 (Commission 2003) was challenged through the case C-345/06.

8. The EU UN terror list consists of two legal acts: a Common Position 2002/402/CFSP (Council of Ministers 2002a) and a Regulation EC/881/2002 (Council of Ministers 2002b). A new Regulation is published each time the list is updated. The initial list and/or its updates have been challenged in numerous occasions including the cases C-402&415/05. After the entry into force of the Treaty of Lisbon, the EU UN list acquired a new legal configuration (i.e. Regulation EU/1286/2009, Council of Ministers 2009). This legal act was taken to Court in the case C-130/10.

9. The EU autonomous terror list was enacted by two legal acts: a Common Position 2001/931/CFSP (Council of Ministers 2001a) and a Regulation EC/2580/2001 (Council of Ministers 2001b). The initial list and their updates have been challenged in front of the ECJ in various instances including the case T-228/02.

10. To be precise, policy tools are practices and programmes (e.g. a project of assistance or a programme for the freezing of assets) that are based upon certain legal acts. As it relates to this article, only legal acts (and not policy tools) can be challenged in front of the ECJ, yet, to facilitate intelligibility, this article may refer to policy tools being challenged in front of the ECJ.

11. See C-402&415/05 and T-228/02.

12. See, for instance, Guild (2008), Kunoy and Dawes (2009), Ziegler (2009) or de Burca (2010).