Professor Justyna Maliszewska-Nienartowicz, Nicolaus Copernicus University, analyses the new changes in the legal EU framework on terrorism: the replacement of the Council Framework Decision 2002/475/JHA on combating terrorism. This new act contains a long list of terrorist offences, offences related to a terrorist group, and offences related to terrorist activities.
Originally published by the XXXVII Polish Yearbook of International Law.
Taking into account that terrorism has grown in recent years, the EU institutions decided to update the legal framework which provides for fighting this phenomenon. Consequently, the Council Framework Decision 2002/475/JHA was replaced by the EU Directive 2017/541 of the European Parliament and of the Council on combating terrorism, which should be implemented by the Member States by 8 September 2018.
This new act contains a long list of terrorist offences, offences related to a terrorist group, and offences related to terrorist activities. It also stipulates penal sanctions for terrorist offences and provides measures of protection, support and assistance for terrorism victims. This article is a commentary on these groups of provisions and compares them to the previously binding ones. Thus, it indicates the legal changes introduced by the Directive which have to be taken into account by the Member States while implementing it. Thecomparison of these new provisions with the previously binding ones is also helpful in answering thequestion posed in the title: Can the Directive 2017/541 be treated as a new chapter in combating terrorism by the European Union?
Keywords: Combating Terrorism in the EU, Decision 2002/475/JHA, Directive 2017/541, Foreign Terrorist Fighters, Protection of Terrorism Victims, Terrorist Offences, Council Framework
Although terrorism has always been a threat to both internal and external security, since 11 September 2001 combating this phenomenon has become an important task and at the same time a major challenge for the European Union. It has had a great impact on the European Union (EU)’s policies. Indeed, it is fair to say that counterterrorism is one of the fastest developing policy regimes within the EU.(1) In reaction to the World Trade Centre attacks in the US, on 21 September 2001 the European Council reiterated its strong support for the EU’s counterterrorism activities by passing the first “plan of action” on “the European Policy to combat terrorism.”(2) Due to its general nature, the Action Plan did little more than give a green light to various initiatives that had already been put on the agenda in the immediate response to the events of 9/11, but at the same time it represented the first step in reducing the ambiguity that surrounded the overall shape of the EU’s renewed counterterrorism effort.(3) Following the dramatic events of the Madrid train bombing in March 2004 and the London bombings in July 2005, the EU decided to strengthen the general framework for its activities in this area. Consequently, the European Council adopted the Counterterrorism Strategy,(4) based on four strategic objectives (called “pillars”) covering prevention, protection, pursuit, and response. In this way the EU wanted to show that it was going to cover all the stages important for fighting with terrorism, i.e. both before as well as after an attack, and at the level of structure as well as agency.(5) At the same time, the Counterterrorism Strategy underlined that the Member States had the primary responsibility for combating terrorism and that the EU could only add value to their actions by strengthening national capabilities, facilitating European cooperation, developing a collective capability, and promoting international partnership.(6) It should also be noted that according to the Counterterrorism Strategy document, terrorism is a criminal phenomenon that poses a serious threat to the EU’s security. Thus, it was deemed a crime which demands a law enforcement response, but not a war-like aggression.(7)
As a result, the EU has adopted a criminal justice approach, according to which terrorism should be tackled through criminal law.(8) Such model appears more attractive to the Member States, which are not generally ready to allow the EU to interfere with the politically sensitive matters of internal and external security. Moreover, the criminal justice approach reflects the convictions of a number of Member States that have always taken a more integrated view on terrorism and is also in line with the approach the international community has moved toward more recently.(9) Consequently, the legal framework for combating terrorism by the EU is created by means of criminal law, adopted mainly within the Area of Freedom, Security and Justice (AFSJ) under the Lisbon Treaty. This article concentrates on the fight against terrorism based on these provisions, while leaving aside the international dimension realised through Common Foreign and Security Policy. The criminal law measures concerning the fight against terrorism are very numerous. However, the new EU Directive 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism (10) (that replaced the Council Framework Decision 2002/475/JHA on combating terrorism(11)) is at the centre of all the acts which deal with this phenomenon. Not only does it define terrorist offences, but it also sets the minimum level of penal sanctions for terrorist offences and provides for measures of protection, support and assistance for terrorism victims.
The main aim of the article is to comment on these groups of provisions and to compare them to the previously binding ones. Such a comparison is necessary in order to indicate the legal changes foreseen by the Directive 2017/541 on combating terrorism (which have to be introduced by the Member States into their legislation in the process of its implementation). Taking into account its provisions, the following preliminary hypothesis can be formulated: The content of the Directive 2017/541 generally represents a continuation of existing legislation, but this act can contribute to combating the phenomenon of ‘foreign terrorist fighters’ within the EU, as it introduces new rules in this field based on international standards and it also extends the scope of protection for terrorist victims. Moreover, as this is a new form of the EU legislation (a Directive instead of a Council Framework Decision) it has a greater potential, in particular with regard to its direct effect. As a result, the first part of the article concentrates on the provisions of the Treaties on terrorism, including the legal basis for the new act, as it is important to explain why the previous Framework Decision has been replaced by the new Directive and what are the consequences of this change. The next section deals with the definition of terrorist offences, offences related to a terrorist group, and offences related to terrorist activities, with particular attention given to the provisions on counterterrorism financing and travel by “foreign terrorist fighters.” The third part presents the penal sanctions for these offences as well as the jurisdictional rules. Finally, new measures of protection, support and assistance for terrorism victims are described.
1. The Treaty provisions on terrorism (including the Area of Freedom, Security and Justice – Title V of TFEU). The legal basis for the Directive
Under the Maastricht Treaty, preventing and combating terrorism was mentioned in Article K.1 among other “matters of common interest.” In other words, the EU counterterrorism policy could have been developed as part of the Member States cooperation in the field of Justice and Home Affairs (‘the third pillar’ of the EU). After the entry into force of the Amsterdam Treaty the old Article 29 of the Treaty of the European Union (TEU) continued to list the fight against terrorism as one of the primary objectives of Police and Judicial Co-operation in Criminal Matters (Title VI TEU).(12) Consequently, both the policy and legal acts adopted in this field were still under the regime of ‘the third pillar’, with all the constraints inherent in it (in particular, the exclusion of such acts as Regulations and Directives).
The primary instruments in the intergovernmental domain of Title VI TEU were decisions and framework decisions. The latter were comparable in their legal effects to EC Directives (as they bound the Member States only to the result to be achieved but left the choice of form and methods to the national authorities). However, by virtue of the Treaty they did not have direct effect (Article 34(2)(b) TEU). Therefore, the first anti-terrorism acts took the form of framework decisions without the direct effect. Moreover, they fell under the unanimity requirement in the Council, which not only delayed the adoption of acts but also had an impact on their content. It is also important to note that the European Parliament played a very limited role in the adoption of the framework decisions and other EU anti-terrorism measures, as it had mainly consultative powers in this field, while adequate parliamentary control should be regarded as very important when one takes into account that some of the EU measures have given rise to serious concerns about negative effects on civil liberties in the EU.13 Finally, the Court of Justice did not enjoy full jurisdiction over the framework decisions combating terrorism and other acts adopted in this field. First of all, it had jurisdiction to make preliminary rulings on the interpretation or validity of framework decisions only when a Member State made a declaration under the (pre-Lisbon) Treaty on European Union indicating the circumstances in which the Court could exercise such a jurisdiction. Moreover, the European Commission could not bring enforcement proceedings against the Member States for failing to implement a framework decision or for implementing it incorrectly. However, the Court did have jurisdiction in relation to review of the legality of framework decisions in actions brought by a Member State or the Commission, and it could resolve disagreements between the Member States concerning their interpretation or application. Hence, it has been underlined that “the pre-Lisbon anti-terrorism cooperation was founded on a mixed third and second pillar basis, which suffered not only from a mostly intergovernmental integration but also from gaps regarding the jurisdiction of the ECJ.”(14).
Professor Justyna Maliszewska-Nienartowicz is Chair of International and European Law, Faculty of Political Sciences and International Studies, Nicolaus Copernicus University, Toruń (Poland), email: firstname.lastname@example.org.
Maliszewska-Nienartowicz, Justyna, A New Chapter in the EU Counterterrorism Policy? The Main Changes Introduced by the Directive 2017/541 on Combating Terrorism (September 1, 2017). Polish Yearbook of International Law, Vol. 37 (2017), pp. 185-201. Available at SSRN: https://ssrn.com/abstract=3320856