The European Union’s response to 11 September 2001: Bases for action, performance and limits



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The European Union’s response to 11 September 2001:

Bases for action, performance and limits

Jörg Monar1


1. INTRODUCTION


One of the most significant developments of the European integration process in the 1990s has been the growing role of the European Union (EU) as a "comprehensive" actor in the security domain. "Comprehensive" in the sense that after more than four decades of an extremely reduced role in this domain the 1990s saw the EU moving towards both actor capabilities in the military security area – through the development of the "European Security and Defence Policy" (ESDP) – and in the internal security area – through the introduction of EU justice and home affairs policies, ultimately taking the form of the EU's "Area of freedom, security and justice".

The devastating terrorist attacks in the United States on 11 September 2001 confronted the EU with the most immediate and complex challenge to its emerging role as a "comprehensive" security actor so far. Immediate in the sense that it was widely felt that the EU had to rapidly close ranks with the US on this threat and that European countries were among the most likely next targets, all of which required an urgent and effective response. Complex in the sense that this was a non-traditional security challenge which required a response through a variety of measures, involving to a varying degree decision-making bodies and instruments of all three of the Union’s “pillars”. In addition the Union had to deal with three major distinct tasks at the same time, and this under considerable time pressure: Responding to the challenge through adequate internal security measures, participating effectively in the international front against the terrorist networks and providing credible solidarity with the United States, its most important international partner. Each of those tasks on its own would have put a considerable strain on the Union’s capacity to act. Together they formed quite a formidable test under duress for the Union as a security actor, especially in the internal security domain, and one of longer term importance, as global terrorism is likely to remain at the forefront of the non-traditional security threats in the post-Cold War era.

In this paper we are first going to look at the current legal, structural and political bases of EU action against international terrorism, then analyse the Union’s performance in response to 11 September 2001 and finally provide an overall evaluation of the Union’s current potential and limits as a "comprehensive" security actor in this field.

2. THE BASES FOR EU ACTION AGAINST INTERNATIONAL TERRORISM


2.1. Legal bases


At the time of the 11 September attacks the EU Member States could already look back to a quarter of a century of cooperation against terrorism. The TREVI cooperation, which had come into operation in 1976 and can be regarded as the ancestor of the “third pillar” of the 1990s, had in fact originally focussed entirely on the cross-border fight against the terrorist groups which were trying to destabilise several of the EC Member States at that time, especially Germany, Italy and the UK. Yet TREVI, although gradually expanded, had remained a loose intergovernmental cooperation structure without legal bases, competences, permanent structures and financial means, largely limited to information exchange. It was only with the introduction of Title VI TEU through the Treaty of Maastricht (1993) that EU action in the fight against international terrorism was for the first time provided with a legal basis, a basis which was then strengthened and expanded by the Treaty of Amsterdam which entered into force in May 1999. As a result of the Amsterdam reforms, there are now two different levels of legal bases for EU action against international terrorism, that of fundamental treaty objectives and that of specific competences to act.

At the level of fundamental treaty objectives the most important provision is Article 2 TEU which provides for the maintenance and the development of the Union as an “area of freedom, security and justice” as one of the fundamental treaty objectives. That internal security lies at the core of this new integration objective is made clear by the major emphasis placed in Article 29 TEU on the objective of providing “citizens with a high level of safety” within the area of freedom, security and justice, an objective which is repeated in almost identical terms in Article 61(e) TEC (“high level of security by preventing and combating crime”). The Union has therefore been given an explicit mandate as a provider of internal security - which in itself is a major innovation - and in Article 29, second paragraph, terrorism is specifically mentioned as one of forms of crime which should be targeted “in particular” to achieve this objective. There is no explicit mentioning of the fight against terrorism as an objective in the context of the provisions on the “common foreign and security policy” (CFSP) in Title V TEU. Yet Article 11(1), second sub-paragraph, defines the strengthening of “the security of the Union in all ways” as one of the central objectives of the CFSP, a definition which is surely broad enough to include international action against security threats posed by global terrorism within the remit of CFSP.

At the level of the specific competences to act in areas of relevance to the fight against international terrorism the most extensive set of provisions is to be found under Title VI TEU, the “third pillar” as reformed by the Treaty of Amsterdam. Of primary importance are the following:
- police cooperation between the Member States, including operational cooperation on the prevention, detection and investigation of criminal offences, data collection, exchange and analysis, joint training and exchange of liaison officers and the common evaluation of investigative techniques (Article 30(1) TEU).
- the further development of Europol, including the support of specific investigative actions by national authorities, the initiation and coordination of investigations by national authorities and the promotion of liaison arrangements between prosecuting/investigating officials (Article 30(2) TEU).
- the facilitation and acceleration of cooperation between judicial authorities and competent ministries in relation to judicial proceedings and the enforcement of decisions, including the facilitation of extradition, the ensuring of the compatibility of applicable rules and the prevention of conflicts of jurisdiction (Article 31(a)-(d) TEU).
- the progressive adoption of measures establishing minimum rules relating to the constituent elements of criminal acts and penalties, including the field of terrorism (Article 31(e) TEU).
- the possibility of concluding agreements with third countries or international organisations over matters falling under Title VI TEU (Article 38 TEU in conjunction with Article 24 TEU2).
Although all these competences to act are of a non-exclusive nature and remain in the intergovernmental sphere of Title VI TEU they nevertheless offer substantial possibilities for increased cooperation between national police and judicial authorities, a stronger role for Europol and a harmonisation of national penal laws in areas of importance for the fight against terrorism.

At least two of the newly communitarised areas of Title IV TEC are also of relevance for common measures against terrorism:


- standards and procedures to be followed by Member States in carrying out checks on persons at external borders (Article 62(2)(a) TEC) and
- rules on visas for intended stays of no more than three months, including the list of third countries whose nationals must be in possession of visas when crossing the external borders (Article 62(2)(b) TEC).
The legal instruments to be used for action in the various areas just mentioned depend on the legal basis. Whereas in the communitarised areas of Title IV TEC the well-established EC instruments - primarily regulations and directives - apply, the primary instruments in the intergovernmental domain of Title VI TEU are “decisions” and “framework decisions”. The latter are comparable in their legal effects to EC regulations and directives, the only major difference being that by virtue of the Treaty they do not have direct effect.3 The availability of decisions and framework decisions as legal instruments represents a significant improvement to the situation before the Treaty of Amsterdam when “soft law” instruments were an easy and often used option for the Member States.4 The Council can also agree on “conventions”.5 These, however, are subject to ratification by the Member States, a procedure which can take years and makes “conventions” a very cumbersome instrument to use, clearly not well adapted to rapid action in response to terrorist threats.

Having regard to the cross-pillar dimension of the threats posed by global terrorism two further legal basis for EU action need to mentioned. One is the residual power of Article 308 TEC which can be used for attaining one of the objectives of the Treaty even if the Treaty does not provide for explicit powers in fields where action is considered to be desirable. As the “area of freedom, security and justice” with its emphasis on a high level of internal security is now clearly an objective also of the EC Treaty Article 308 TEC can also be used as a basis for common action against terrorism. The other legal basis to be mentioned concerns the CFSP: The broadness of the CFSP aim “to strengthen the security of the Union in all ways” (Article 11 TEU) provides sufficient justification not only for the use of the specific CFSP instruments listed in Article 12 TEU (common strategies, joint actions, positions,...) and Article 17(2) TEU (rescue, peace-keeping and crisis management tasks) for the fight against international terrorism, but also - via Articles 301 TEC and, where applicable, Article 60 TEC - the use of external economic instruments for sanctions.

It should be noted, however, that the instruments mentioned here - with few and rather marginal exceptions6 - are subject to a major constraint: The need for a unanimous decision in the Council.

2.2. Structural bases
As a result of the rapid development of EU justice and home affairs in the 1990s the structural bases for the fight against terrorism at EU level have improved considerably. The rather loose intergovernmental cooperation structures of the TREVI framework have been fully integrated into the Council structure with the Justice and Home Affairs Council (of Ministers) (JHA Council) at its top. This Council brings together representatives of both the national ministries of the interior and of justice and the responsible Member of the European Commission. The JHA Council deals with all anti-terrorism measures of a justice and home affairs nature, with only the CFSP related aspects being left to the General Affairs Council which regroups the Foreign Ministers. General coordination of the decision-making process below the ministerial level is formally the task of COREPER. Yet in the justice and home affairs domain the COREPER normally only plays an active role when there are difficulties in reaching an agreement in the specialised senior Council committees or if there are cross-cutting issues such as inter-pillar coordination or the use of the EC budget. In practice the most important Council committee in the justice and home affairs domain for preparing ministerial decisions on anti-terrorism measures is the Article 36 Committee (also known under its abbreviation as “CATS”) which regroups senior national and Commission officials dealing with judicial and police cooperation. The Article 36 Committee also gives instructions to the Council working party “Terrorism” which regroups national and European Commission desk officers dealing with anti-terrorism measures. While this working party is in charge of working out details of anti-terrorism measures it is not exclusively in charge of this domain as issues more specifically relating to judicial cooperation and police cooperation are discussed and negotiated in other specialised Council working parties.

In the CFSP context there is a different set of decision-making bodies which ranges from the General Affairs Council at the top over the COREPER and the Political and Security Committee to the counter-terrorism working Party (“COTER”) which deals with the details of anti-terrorism measures in the foreign and security policy sphere. This separation of the different strings of decision-making may not appear optimal but it mirrors similar separations between the justice and home affairs and the foreign and security policy domains in the national administrations.

Since 1999, when its non-exclusive right of initiative was extended to all justice and home affairs areas, the European Commission has - as already before the Secretariat-General of the Council - built up a Directorate-General “Justice and Home Affairs”. Although lack of expert personnel and comprehensive information by the Member States has clearly limited the available in-house expertise in the field of terrorism the Commission has been able to build up strengths in certain areas, such as judicial cooperation, which enable it prepare substantial and well motivated initiatives. The Prodi Commission has also adopted a much more pro-active role in justice and home affairs than its predecessor, with Commissioner Antonio Vitorino opting for an ambitious agenda and an extensive use of the Commission’s right of initiative. The latter’s non-exclusive nature, however, and the persisting unanimity requirement continue to limit the Commission’s political weight in the decision-making process.

Next to Council and Commission as the most important decision-making institutions - the European Parliament only needs to be consulted only legally binding acts in justice and home affairs, but has no blocking or amending powers - Europol is clearly the most relevant EU structure for the fight against international terrorism. In 1999 - as a result of a strong Spanish insistence - its remit was extended to the fight against international terrorism. Yet the role of its currently around 300 members of staff has remained limited to the collection, transmission and analysis of data provided by national police forces through the national Europol contact units. Europol does not enjoy any operational powers, and even the supply of data from the national sources has tended to vary considerably from one member State to the other. Nevertheless as the only permanent central police structure of the EU with a now already quite substantial infrastructure Europol must clearly be regarded as a major EU resource in the fight against terrorism, and after the 11 of September several steps have indeed be taken to further exploit its potential in this respect (see below).

Of importance for police cooperation in the fight against terrorism is also the “Police Chiefs Task Force” (PCTF). It was only established in 2000 and is intended to provide - in cooperation with Europol - a basis for the exchange of experiences, common evaluations and the planning of common operations in the fight against cross-border crime. Unlike Europol, however, the Task Force is not an institution with legal competences and a permanent infrastructure but a high level coordination group which meets at least once per Presidency with changing priorities.

Another structure to be mentioned in the area of police cooperation is the European Police College. Established by a Council Decision of December 2000 initially as a network of existing training institutes the College has the task to provide training courses for senior law enforcement officers in various fields relating to the fight against cross-border crime, including terrorism, with a focus increasing the knowledge about the different national police systems and structures of other Member States, Europol and international policing instruments and methods.

In the area of judicial cooperation the most important structure is the newly established cross-border prosecution agency Eurojust which started its work with a provisional unit (“Pro-Eurojust”) in March 2001 and was only fully established following the adoption of final Council Decision on its establishment of 28 February 2002.7 Eurojust, which is in many respects the counterpart to Europol in the judicial cooperation area, has been designed as a facilitator of cooperation between national prosecution authorities, including the speeding up of legal assistance and extradition, support for the coordination of parallel prosecution operations in several Member States and information exchange. It does not enjoy any operational powers. Yet Eurojust has been given a broad mandate as to the types of cross-border crime in the prosecution of which it can support the competent authorities of the Member States - including terrorism - and can ask competent authorities of the Member States concerned to consider the launching of certain investigations or prosecution of specific acts or to set up joint investigation teams.

2.3. Political bases
Already before 11 September 2001 there was a consensus among the Member States that international terrorism had to be regarded as a major challenge to the democratic societies of the European Union. In the 1970s cooperation among the member States in the JHA domain had actually started with cooperation against terrorism in the TREVI context. In the 1990s the common interest was reaffirmed: On the occasion of the informal Council meeting in La Gomera on 14 October 1995 the ministers had agreed on the “Declaration of La Gomera” which was subsequently adopted by the Madrid European Council of December 1995 and which identified terrorism as a fundamental threat to democracy, human rights and economic and social development which could not any longer be countered by national measures alone. The Declaration therefore emphasised the need for common action, especially in the areas of police and judicial cooperation.8 Since the mid-1990s there had also been a growing awareness in the EU of the emergence of new forms of Islamic terrorism marked by increased ideological radicalism, more extensive international networks and unprecedented logistical capabilities. France – having been the object of a series of bloody terrorist attacks in 1995 – had been at the forefront of the EU countries monitoring the activities of radical Islamic groups and warning about the terrorist threats posed by them.9

Yet there are at least four factors which make the basic political consensus amongst the Member States regarding the fight against international terrorism slightly less homogeneous and solid than the official declarations suggest:


(1) These first of these factors are the differences in national experiences with terrorism: Threat perceptions and practical experiences regarding terrorism vary widely between Member States which have been engaged in a protracted fight against terrorism - such as France, Spain and the United Kingdom - and others which have experienced only a temporary or even hardly any terrorist threat. This makes it more difficult for the Council to arrive at common threat assessments, priorities and programmes of action.
(2) As a result of the different extent of the challenges Member States have had to face in the fight against terrorism national capabilities in terms of specialised forces, organisational structures, training and equipment also vary considerably between the Member States. Those with strongly developed anti-terrorism capabilities do not necessarily see much advantage in cooperating with those with very limited capabilities in the field, this also because cooperation normally involves the sharing of very sensitive information which requires a trust which cannot always be taken for granted.
(3) During the last three decades the fight against international terrorism has seen the emergence of many informal bilateral and multilateral cooperation relationships, often involving even non-EU countries such as the US. Law enforcement authorities in the Member States still tend to prefer such “proven” working relationships to the often cumbersome and in some areas rather “new” cooperation structures involving all 15 Member States.
(4) Cooperation between the Member States is occasionally affected by diverging political and legal positions. There have been several instances of conflict, for instance, between Spain and Belgium in the 1990s over the treatment of suspected ETA terrorists as asylum seekers on the Belgian territory. Major differences in assessment have also appeared as regards acts of violence committed by Palestinians and in relation with initial attempts by the Italian Berlusconi government - before the background of the riots on the occasion of the G-8 summit in Genoa - to classify certain violent demonstrators as terrorists.
Overall one can therefore assume a high degree of consensus amongst the Member States as to the need for a common front against international terrorism, but when it comes to deciding on common action differences in national experiences, threat perceptions and political assessments can still endanger the postulated common front.

3. EU RESPONSES TO THE 11TH OF SEPTEMBER10


The terrorist attacks of 11 September 2002 - unprecedented in scale and ruthlessness - put the EU before a triple challenge: First, it had to provide an effective response on the internal security side, which meant primarily action in the context of the Union’s “third pillar”, backed up by some measures also in the “first pillar” context. Second, the challenge required a parallel response on the external security side, which meant primarily action in the context of the “second” (CFSP) pillar, yet this with supporting action using “first pillar” external economic instruments. Third, it had to demonstrate convincingly solidarity with the US, its most important international partner, which in this situation clearly expected more than just words from the European side.

Taking into account the inevitable difficulties of consensus building among the fifteen governments, the initial reaction by the EU was both quick and substantial: A first forceful text agreed on already on 12 September by the General Affairs Council was followed two days later by a common declaration of the heads of state or government, the Presidents of the European Parliament and of the Commission and the CFSP High Representative.11 Both texts emphasised full solidarity with the US and the need for both internal and external action, indicating already certain priorities which were then further developed in the “European Union Action Plan to Combat Terrorism” adopted on 21 September on the occasion of a special meeting of the European Council.12 This Action Plan, whose basic lines were agreed in record speed, was subsequently several times revised and added to, its so-called “roadmap” for the implementation comprising in the end over 200 individual measures across all three pillars.13 The Action Plan’s content and implementation - which continues at the time of writing - have revealed both strengths and weaknesses of the EU as an actor in the fight against international terrorism, and this in response of each of the main challenges mentioned above:



3.1. Internal measures
3.1.1. Legislative measures
The 11 September attacks revealed immediately one of the most glaring deficits of EU action against terrorism until then: Although there had been more than a quarter of a century of cooperation against terrorism and in spite of the increased potential for action created by the treaty reforms of the 1990s the EU had never created a common legal basis for the cross-border prosecution of terrorists. There was no common legal definition of terrorist acts, no harmonised system of penalties and - with the extradition agreements of 10 March 1995 and 27 September 1996 still not being ratified by all Member States - no basis for accelerated extradition. Removing these deficits through appropriate legislative acts became a priority for EU action after 11 September, and the European Council itself set the extremely tight deadline of December 2001 for reaching agreement on several legal acts. Most prominent amongst these were the adoption of framework decisions on the introduction of a European Arrest Warrant, on the definition of terrorist offences in combination with a minimum harmonisation of penalties for those offences and on the freezing of assets of terrorist groupings.

The EU decision-making process was greatly helped by the fact that the Commission had already been working on proposals for a European arrest warrant and a common definition of terrorist acts for many months so that it was in position to submit corresponding legislative proposals to the Council already on 20 September 2001. Yet in spite of the common emphasis on the need for rapid action the European Council level the negotiations on the framework decisions - which were largely carried out by the Article 36 Committee - ran into serious difficulties and made only slow progress during the first few weeks. In the case of the European Arrest Warrant the main difficulties were major differences over the list of offences to which the Warrant should apply and about the full abolition of the principle of double criminality, in the case of the framework decision on terrorist offences the main points of contention were the scope of the actual definition and the level of the minimum penalties. The lack of progress led the European Council at its meeting in Ghent on 19 October to issue an unusually sharp reminder to ministers that an agreement should be reached by December.14 The pressure by the European Council and continuous efforts by the Belgian Presidency then made it possible for the JHA Council at its meeting of 6/7 December 2001 to come to an agreement on both the Framework Decision on combating terrorism and on EC Regulation 2580/2001 authorising the freezing of assets of terrorists and terrorist organisations.

The Framework Decision on combating terrorism, whose final adoption was delayed because of parliamentary scrutiny reserves until 13 June 200215, provides for a common definition of terrorist acts, focussing on the aims of terrorist acts such as serious intimidation of the population and destabilisation of fundamental political and constitutional structures, and minimum maximum penalties of fifteen years for directing a terrorist group and eight years for participation in the activities of a terrorist group. Its adoption marked a significant step forward not only in the fight against terrorism but also as regards the harmonisation of national penal laws for serious forms of international crime. As a result of concerns expressed by the European Parliament and several NGOs about a clear enough distinction between terrorist acts and demonstrators the Council agreed on a ‘Council Statement’ to be attached to the Framework Decision which provides that it cannot be construed so as to incriminate on terrorist grounds persons exercising their right to demonstrate, even if in the exercise of this right they commit offences.

Regulation 2580/2001 on ‘specific restrictive measures [...] with a view to combating terrorism’16 was based on definitions from relevant existing international agreements, especially the International Convention for the Suppression of the Financing of Terrorism, and was intended to allow the freezing of assets and other financial measures against terrorist individuals and organisations. In absence of a more specific base for economic measures against terrorism the Regulation was based on a combination of Articles 60, 301 and 308 TEC and a CFSP ‘Common Position’ adopted on the same day which made it in formal terms a CFSP motivated economic sanction. This interesting case of cross-pillarisation found its main justification as an implementation measure of UN Security Council Resolution 1373(2001) on the freezing of terrorist financial assets. Estimates as to the total amount of assets frozen throughout the EU since the 11th of September vary between Euro 40 million and 100 million.17 The Council also agreed on two lists - adopted respectively by written procedure as a Council ‘Decision’ and a ‘Common Position’18 which comprised a total of 13 organisation and 29 individuals, including the Basque terrorist organisation ETA and several armed Irish Protestant and Catholic groups. The list, which has already several times been added to since,19 should be regarded as an important piece of harmonisation in its own right as regards the classification of 'terrorists’ and ‘terrorist groups’. Yet some disagreements persisted as this was shown by Spain’s failed attempt to have ‘Batasuna’, the ETA’s political wing, included in the list.

The politically most controversial legislative measure turned out to be the Framework Decision introducing a European Arrest Warrant on which agreement was only reached later in December after the Belgian Presidency had brokered a compromise with the Italian Government which - with apparently a strong personal interest of Prime Minister Berlusconi - had wanted to exclude corruption and a number of other offences from the list covered by the warrant.20 Italy in the end accepted the original list but insisted successfully on the amendment of certain constitutional provisions in Italy as a prior condition for implementation. Intended to fully enter into force on 1 January 2004, the European Arrest Warrant will make it possible to arrest and transfer between Member States suspects without formal extradition procedures, and this for 32 offences ranging from terrorism over homicide and fraud to acts of trafficking in human beings and racism. Although it was in the end not possible, as several Member States and the Commission had hoped, to fully abolish the double criminality principle - Member States will still be able to refuse the implementation of a European Arrest Warrant if the offence carries a penalty of at least three years of imprisonment in the requesting state but is not a crime under their own legislation - the Framework Decision on the Arrest Warrant must be seen as a major breakthrough for cross-border judicial cooperation in the EU21 with obvious positive implications for the fight against international terrorism. Because of parliamentary scrutiny reserves, however, the Framework Decision was only formally adopted on 13 June 2002.22

The impetus given by 11 September also contributed to the political agreement reached by the JHA Council of 6/7 December 2001 on the Council Decision setting up the cross-border prosecution unit Eurojust which was then formally adopted on 28 February 2002.23 The Decision enabled the replacement of the ‘Provisional Judicial Cooperation Unit' which had been set up in March 2001 by the permanent Eurojust whose rules of procedure the Council finally approved on 13 June 2002. The Member States were able to agree on a broad mandate for Eurojust - largely similar to that of Europol - as to the types of cross-border crime in the prosecution of which Eurojust can support the competent authorities of the Member States, which obviously include terrorism. Although Eurojust’s primary role as a facilitator of cooperation between national prosecution authorities and information exchange structure without operational powers was reconfirmed, agreement was also reached on that Eurojust would be able to ask competent authorities of the Member States concerned to consider the launching of certain investigations or prosecution of specific acts or to set up joint investigation teams. This opens the possibility for a more active role of the new institution also in the fight against international terrorism.

In respect of other legal instruments of importance to the fight against terrorism the Union’s balance sheet in the months after 11 September was less positive: The adoption of the Framework Decision on joint investigation teams between the competent authorities of two or more Member States for the purpose of carrying out cross-border criminal investigations, which was already under negotiation well before 11 September 2001 and can also be applied to investigations on terrorist activities, continued to be delayed by several months by a Danish reserve.24 By the end of 2002 the two extradition Conventions of 1995 and 1996 had still not been ratified by France and Italy and the Convention on Mutual Assistance in Criminal Matters of July 2000 had only been ratified by Portugal. This demonstrated again the drawbacks of the traditional “third pillar” instrument of conventions with its need for ratification by all national parliaments. Little progress had also been made by that time with the negotiations on a draft framework decision on attacks targeting information systems submitted by the Commission on 22 April 2002.
3.1.2. Operational measures
The EU’s internal measures in response to the 11 September attacks were obviously not limited to legislative action but included also a number of operational measures. These can be broadly divided into three domains:
(a) The enhanced use of existing EU structures for the fight against international terrorism.
Europol has been asked to give a situation report on terrorist activities within the EU to the Council. In this context the Member States committed themselves in the context of the September 2001 Action Plan to the systematic transmission of data relevant to terrorism to Europol which previously had only received rather fragmentary information. On the basis of the improved information basis the Director of Europol has so far given situation reports to the Council on 6/7 December 2001 and on 13 June 2002. As a result of a decision adopted by the Brussels European Council on 21 September 2001 a team of anti-terrorist specialists has been set up within Europol and all Member States have sent intelligence or police specialists to Europol to that effect, making this special task force operational already by November 2001.

Under a mandate by the Council the PCTF has held several meetings to discuss cross-border operational cooperation possibilities in the fight against terrorism. While there seemed to be little outcome of these meetings in operational terms the PCTF was able to agree on recommendations for the strengthening of cooperation between the heads of anti-terrorist units whose implementation started in April 2002. On the basis of a joint report submitted by the heads of Europol, Eurojust and the PCTF the Article 36 Committee made progress on improving the coordination between the three bodies in the fight against terrorism, although effective measures were delayed by the need for negotiations between Europol and Eurojust and cumbersome internal decision-making in the two bodies. In April 2002 the PCTF agreed to set up a new structure involving the current, previous and forthcoming EU presidencies, Europol and the Commission which should meet between PCTF meetings and improve coordination.25 Eurojust has been asked to strengthen cooperation between anti-terrorist magistrates and has started to act as an intermediary for regular contacts between those magistrates.

In order to increase the information flow to both Europol and Eurojust the Council decided on 19 December 2002 that Member States should designate specialised services within their police services and a Eurojust national correspondent for collecting and forwarding all relevant information regarding the fight against international terrorism to Europol or Eurojust respectively.26 Both bodies can obviously only be as effective as the information they are provided with by national authorities, and there have been problems with a number of national authorities passing on relevant information only reluctantly - and therefore often incompletely or late.

It should also be mentioned that the European Police College has included special training measures for senior police officers on investigation techniques in the domain of anti-terrorism in its work programmes for 2002 and 2003.


(b) The introduction of new structures and mechanisms
One of the most innovative responses to the 11 September challenge in operational terms was the introduction of regular meetings of the heads of intelligence services which had until then remained entirely outside of EU justice and home affairs cooperation. The first of these meetings took already place on 11 November 2001 and was followed by one on 20 February 2002 which agreed on further common work on terrorist profiles. Europol has been associated with these meetings.

A new feature is also the creation of a structure consisting of the previous, current and forthcoming EU Presidencies, Europol, the Commission and the General Secretariat of the Council to follow up the PCTF recommendations on strengthening cooperation between the heads of anti-terrorist units (see above). The most noteworthy amongst the new mechanisms is the introduction of a system of peer evaluation of national arrangements for combating terrorism which include evaluations of both national legal systems and implementation measures. A common mechanism for evaluating national legal systems and their implementation as regards the fight against terrorism was formally agreed on by the Council on 28/29 November 2002.27 It provides for peer evaluation of national arrangements through special evaluation teams which will draw up reports on each of the Member States on the basis of questionnaires and evaluation visits.

. Although a proposed Council Decision on this mechanism had not yet been adopted by then two national experts started work on the process already in June 2002. This runs to some extent parallel to the production of an inventory of national measures and early warning plans for which the Council Working Party on Terrorism and the PCTF are responsible.

The changed threat perceptions regarding international terrorism also strengthened the argument for making progress towards a common management of external border controls. According to some Member States this should eventually lead to the establishment of a common border police force. Italy presented a feasibility study to that effect on 30 May 2002. Yet a plan for the gradual introduction of a coordinated, integrated management of external borders of the Member States adopted by the Seville European Council on 22 June 2002 left it for the time being at joint operations at external borders, pilot projects, improving liaison mechanisms, common risk analysis and training measures.28


(c) Specific security measures.
Specific security measures taken in response to 11 September included a temporary strengthening of checks at external Schengen borders, an agreement reached by the Article 36 Committee on 23 November 2001 on a definition of a terrorist threat of exceptional gravity which would justify the re-establishment of internal border controls29, the inclusion of improved terrorist alert input possibilities into the list of desirable new functionalities of the new Schengen Information System (“SIS II”) and the setting up of a Community mechanism for the coordination of civil protection measures which was adopted by the Council on 23 October 2001. Some of the proposed specific measures have been emerging rather slowly. This is the case, for instance, for the proposed introduction of a common identification an exchange system for visa data and for common rules on increasing security standards at airports and on board aircraft. A controversial “Sky marshals programme” proposed by Austria on 28 February 2002 has so far failed to achieve consensus in the Council.
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