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The EU and the Fight against Terrorism

The attacks of 9/11 shockingly brought home to the Western democracies their vulnerability to terrorist attacks from certain fundamentalist Islamic extremist groups hostile to them.

While much of the European, including the British, response to those attacks took place through NATO (solidarity with the US, support for the invasion of Afghanistan) and nationally, it was the EU which provided the ideal framework for the kind of cross border co-operation and common action in Europe which the threat called for. Such co-operation against terrorism generally requires unanimous agreement amongst the Member States because the responsibility for combating terrorism lies with national governments and parliaments. The work of the EU is therefore of a co-ordinating and complementary nature. The UK is in a slightly different position to most EU Member States because we have the ability to opt out or to opt in to much of legislation in this aspect of the EU’s work.

The EU already had in the pipeline before 11 September 2001 a number of measures to be agreed to improve internal security. An immediate response to 9/11 was to accelerate these measures. In the autumn of 2001, the European Council agreed on a common definition of terrorism, an EU-wide search and arrest warrant, and a common list of suspected terrorist organisations. The European police co-operation agency, Europol, was given a dedicated anti-terrorism unit and there was increased sharing of intelligence by national agencies.

Following the Madrid bombings of March 2004 further changes were made to strengthen anti-terrorist co-operation with the drawing up of an EU-wide action plan for the fight against terrorism. An EU co-ordinator to help Member States in the fight against terrorism, first Gijs de Vries and now Gilles de Kerchove, was appointed to the Council of Ministers to work under Javier Solana, the Secretary General/High Representative for Foreign and Security Policy.

Agreeing measures to tackle terrorism has proved controversial and difficult in several cases. Proposals on data retention, passenger name records and aviation security have all been criticised on civil liberties grounds both in the European Parliament and in Member States. At times Member State governments appear to have been ahead of their own electorates in advocating changes to the law (for example on data retention).

A Strategic Approach

After the London attacks of July 2005 it was decided that the EU needed to take a more strategic approach. The European Union Counter-Terrorism Strategy was agreed at the December 2005 European Council. It is based on the EU’s strategic commitment: "To combat terrorism globally while respecting human rights, and make Europe safer, allowing its citizens to live in freedom, security and justice".

Four strands of work are included under the headings prevent; protect; pursue; and respond. Under the ‘prevent’ heading, the EU seeks to prevent people turning to terrorism by addressing the root causes or factors which can lead to people becoming terrorists. Priorities include tackling incitement and recruitment (for example, in prisons); promoting good governance, democracy and prosperity in other countries; and developing inter-cultural dialogue.

Under the ‘protect’ heading, the aim is to upgrade measures for protecting people and infrastructure from attack, including improving border security. One of the key priorities here is to make passports issued by Member States more secure through the use of biometrics (that is, recording unique facial characteristics, iris patterns and fingerprints).

The heading of ‘pursue’ covers the investigation and pursuit of terrorists across EU borders and globally. Measures to bring terrorists to justice, to cut off their funds and to disrupt their networks are part of this agenda.

Finally, under ‘respond’ comes work to prepare for the worst so that EU Member States can support one another in the aftermath of major terrorist atrocities.

The European Council reviews progress on the Strategy every six months.

The Action Plan on Terrorism

The initial EU Action Plan drawn up after the Madrid bombings (see para 4 above) detailed over 150 measures agreed within the EU to be necessary in the fight against terrorism. Inevitably much of the EU’s counter-terrorism work is confidential but many of the measures in the Action Plan have been agreed and are being implemented. They include: measures to tighten up the EU’s common rules on aviation security; agreement on the introduction of common biometric security standards for national ID cards and passports; a set of common principles for protecting critical infrastructure; and EU crisis co-ordination arrangements.

An initiative to address the recruitment to radicalism of people in Europe has been launched. This enables Member States to share ideas and best practice in how to discourage people from joining potentially dangerous radical groups and to try to understand why they do so.

Legislation to ensure the retention of data for 12 months by all EU telephone companies so that it makes it possible to trace calls by terrorist suspects later, was agreed in March 2006. Basic data that could be of use in a criminal investigation, such as the caller’s number or the subscriber’s name and address, will have to be retained for at least six months by telephone service and internet service providers. The UK already has such legislation.

The Third Money Laundering Directive was part of a wider programme of activities designed to cut off the funds of terrorist organisations. This Directive tightens controls on the banking sector; other measures include principles for combating the misuse of charities and a Regulation on the control of cash entering or leaving the EU.

Further Measures

A number of significant measures are currently under discussion. They include the a draft framework decision on Passenger Name Records (PNR) - data on people entering or leaving a country, which is used to decide whether further investigation into an individual is needed. Some countries (including the UK) already collect basic PNR data but it has become more significant because of the increased threat from terrorism and organised crime. The intention of the framework decision is that the type of information collected should be expanded and that it should be shared amongst Member States.

This is a highly controversial proposal and is particularly so in the United Kingdom because the British Government has tabled proposals to go further than the draft decision: it wishes the data collected under the decision to be able to be used not just for terrorism and serious organised crime but for other forms of serious crime and for immigration control purposes. No decision on the draft decision is expected before the end of 2008. At present such proposals only require the European Parliament to be consulted; if the Treaty of Lisbon is ratified then co-decision with the European Parliament would apply.

PNR data is also the subject of difficult negotiations between the EU and the United States. Arrangements on the provision of PNR data from EU countries to the US authorities have been in place since 2004 and the third such agreement is now being negotiated. Many civil liberties groups object to the data being transferred and also to it being used as part of anti-terrorist techniques such as profiling likely terrorist suspects.

The Council has proposed a framework decision that would create three new terrorist offences: incitement to commit terrorist offences, terrorist training and recruitment for terrorism. The European Parliament recently debated a report on these proposals and voted for tougher criteria for the personal data to be collected under the proposed decision and for the incitement offence to take account of the need to protect free speech. The Council will now have to consider this response.

A draft regulation on aviation security has been published by the Commission in recent months. This seeks to establish common aviation security standards across the EU in matters such as searches of passengers and their luggage, rules on access to the "airside" part of an airport and other related matters. Contrary to some British press reports, it does not require the use of body scanners for passengers but permits their use alongside other methods such as the use of x-ray machines.

The Benefits of EU Counter-Terrorism Work

The EU has greatly helped and strengthened the fight against terrorism by its Member States through co-ordination and the creation of common standards. The work so far has produced beneficial results. Extradition times were reduced from an average of nine months to just 43 days by the introduction of the European Arrest Warrant. Eurojust helped Spain with its investigation into the Madrid bombings. Common standards for the retention of communications data will make it harder for terrorists to communicate easily in the EU.

Future Developments

Whilst there have been significant successes as a result of EU co-operation in the fight against terrorism (summarised below), the debate about civil liberties continues. There is growing concern in Member States about the amount of data retained by public agencies and other bodies and the security of that data. If public support for EU-wide anti-terrorist measures is to be maintained, it will be necessary for Member States and the EU’s institutions to show convincingly that they have taken civil liberties concerns into account.

Key Successes:

• The UK was able to extradite an alleged terrorist from Italy in a matter of weeks because of the European Arrest Warrant rather than the months it would have taken in the past;

• The EU’s judicial co-operation body, Eurojust – in which the UK has played a very active part - helped to prevent a terrorist attack in 2005 by bringing together representatives from the countries concerned to share information and to co-ordinate their response;

• Agreement on the retention of telecommunications data will make it easier for the security forces to track and identify terrorists;

• The common EU definition of terrorism ends past battles about whether a suspect is a terrorist or a political activist.

May 2006; revised October 2008

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