A critical analysis of the EU legal provisions on terrorism

Terrorism and Political Violence

Volumn 20, Issue 1, 2008, Pages 26-48

  O'neill, Maria ^a  

^a UNIVERSITY OF ABERTAY DUNDEE   (United Kingdom)

Author keywords

EU law; Europol; Ireland; Schengen; UK

Indexed keywords

EID: 38349129458     PISSN: 09546553     EISSN: 15561836     Source Type: Journal    
DOI: 10.1080/09546550701723591     Document Type: Article

References (184)

1. TE-STAT 2007 "EU Terrorism situation trend report 207, Europol 2007, available from the Europol website.
2. Ibid.
3. Fundamental Rights and citizenship,2. the fight against terrorism, 3. Migration management, 4. Internal borders, external borders and visas, 5. a common asylum area, 6. Integration: the positive impact of migration on our society and economy, 7. Privacy and security in sharing information, 8. the fight against organised crime, 9. Civil and criminal justice: an effective European area of justice for all, and 10. Freedom, Security and Justice: sharing responsibility and solidarity.
4. The Hague Programme: Ten priorities for the next five years, A partnership for European renewal 2. A Union against terrorism; The fight against terrorism, Working toward a global response, available from the Europa website (http://www.europa.eu.int).
5. For example the setting up of a EU assistance programme to support the Palestinian Authority, Council Decision 1999/440/CFSP. OJ 1999. L171/1.
6. Council Joint Action 2006/418/CFSP, OJ 2006 L165/20.
7. Council Common Position 2001/930/ CFSP on combating terrorism, OJ L334, 28/12/2001, p. 90.
8. Formerly known as Articles K.1 to K. 14.
9. Joint Action 98/733/JHA of 21 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union, OJ L 351.1, 29.12.98.
10. Joint Action 96/610/JHA of 15 October 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the creation and maintenance of a Directory of specialized counter-terrorist competences, skills, and expertise to facilitate counter-terrorist cooperation between the Member States of the European Union, OJ. L 273, 25/10/1996, p. 1.
11. Council Common Position 2001/931/CFSP on the application of specific measures to combat terrorism OJ 2001 L344/93.
12. Council Framework Decision 2002/475/JHA of 3 June 2002 on combating terrorism OJ L22/6/2002, 164/3.
13. The relevant member of the EU being the United Kingdom of Great Britain and Northern Ireland, which does not normally include the Isle of Man, the Channel Islands, or Gibraltar. In contrast it is France Outremere, rather than France Maritime which has joined the EU, therefore territories such as French Guyana, Martinique, Réunion, etc. are part of "France" for the purposes of EU membership and are fully involved in EU matters.
14. For the purposes of Criminal law it must be recalled that the UK is itself comprised of a number of different legal jurisdictions, with, for example, different offences and processes operating on either side of the Scottish-English border.
15. Article 2.1 of Council Framework Decision 2002/475/JHA.
16. Article 3 of Council Framework Decision 2002/475/JHA.
17. Article 1(d) of Council Framework Decision 2002/475/JHA.
18. Sionaidh Douglas-Scott, "The rule of law in the European Union - Putting the security in the area of Freedom, Security and Justice," E.L.Rev.2004, 29(2), 219-242, at p. 228.
19. Article 5 of Council Framework Decision 2002/475/JHA.
20. Article 6 of Council Framework Decision 2002/475/JHA.
21. Article 4 of Council Framework Decision 2002/475/JHA.
22. Article 7 of Council Framework Decision 2002/475/JHA.
23. Article 8 of Council Framework Decision 2002/475/JHA.
24. Article 9 of Council Framework Decision 2002/475/JHA.
25. Article 10 of Council Framework Decision 2002/475/JHA.
26. Council Framework Decision 2001/220/JHA of 15th March 2001 on the standing of victims in criminal proceedings, OJ L82/1, 22.3.2001.
27. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ. 2002, L 190/1.
28. Jan Wouters and Frederik Naert, "Of arrest warrants, terrorist offences and extradition deals: An appraisal of the EU's main criminal law measures against terrorism after '11 September', CMLRev. 41: 909-935, 2004, at p. 909.
29. Douglas-Scott (see note 18 above), 220.
30. Douglas-Scott (see note 18 above), 923 et seq.
31. and Wouters and Naert (see note 28 above), 911 et seq.
32. Wouters and Naert (see note 28 above), 919.
33. Ibid., 919-920.
34. Ibid., 922.
35. Ibid., 923.
36. Council Common Position 2005/69/JHA of 24 January 2005 on exchanging certain data with Interpol, OJ L 27, 29/01/2005, p. 61.
37. Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems, OJ L 69, 16/03/2005, p. 67.
38. Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences, PJ L 253, 29/09/2005, p. 22,
39. which repealed and replaced Council Decision 2003/48/JHA of 19th December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP, OJ L 16, 22/01/2003, p. 68.
40. Article 2.1 of Council Decision 2005/671/JHA.
41. Article 2.2 of Council Decision 2005/671/JHA.
42. Article 3 of Council Decision 2005/671/JHA.
43. Article 4 of Council Decision 2005/671/JHA.
44. Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, OJ L 22/3/2001, 82/1.
45. Commission Decision 2006/299/EC, OJ L 111, 25/04/2006, p. 9.
46. Council Decision 2002/996/JHA establishing a mechanism for evaluating the legal systems and their implementation at national level in the fight against terrorism, OJ L 349, 24/12/2002, p. 1.
47. Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, OJ L 166, 28/06/1991, p. 77.
48. Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, OJ L 344, 28/12/2001, p. 76.
49. Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, Official Journal L 309, 25/11/2005, p. 15.
50. Article 1.4 of Directive 2005/60/EC.
51. Council Framework Decision of 13 June 2002 on combating terrorism, OJ L 164, 22/06/2002, p. 3
52. The much amended Council Regulation (EC) No 881/2002, OJ L 172, 30/06/2007, p. 50 (by June 07 having been amended for the 80th time, with the insertion of new names ofpersons and organisations associated with the network) which itself repealed Regulation (EC) No. 467/2001, OJ L 67, 9/3/2001, p. 1.
53. OJ 2001 L 344/70, p. 83.
54. OJ L 58, 24/02/2007 p. 1.
55. Treaty on European Union, OJ. C191, 29th July 1992.
56. D. Curtin, "The Constitutional Structure of the Union: A Europe of bits and pieces" (1993) 30 CMLRev 17.
57. Case C-354/04 and Case C-355/04, Opinion of Mr. Advocate General Mengozzi delivered on 26 October 2006 Gestoras Pro Amnistia, Juan Mari Olano Olano and Julen Zelarain Errasti v. Council of the European Union, and Segi Araitz Zubimendi Izaga Aritza Galarraga v. Council of the European Union, ECR 2006 page 00000, at paragraph 132 of the opinion.
58. Case C-105/03 Judgment ECJ Grand Chamber, Criminal proceedings against Maria Pupino, [ECR] 2005 page 1-05285, at paragraph 39 and 40 of the judgment.
59. Ibid. at paragraph 43 of the judgment.
60. Ibid at paragraph 48 of the judgment.
61. Ibid. at paragraph 47 of the judgment.
62. Article 39 EU.
63. Article 34.2, clause 2 EU.
64. See the Japanese case, Kyoto Neckties, which deals with the relationship between Japanese law and World Trade Organisation law: Judgment of June 29, 1984, Kyoto District court, 31 Shōmu Geppō 207, which seems to have been endorsed by the Judgment of Feb. 6, 1990, Supreme Court, slip op.
65. The UK, unlike its fellow EU member states, is in fact a number of domestic legal jurisdictions, inter alia, 1. England and Wales, 2. Scotland, and 3. Northern Ireland. All are dualist legal systems.
66. The United Kingdom of Great Britain and Northern Ireland.
67. The Isle of Man and the Channel Islands are not in the EC/EU, and are therefore not subject to either EC or EU legal provisions, unless expressly written into the legal provisions, as with some of the Schengen provisions.
68. Article 34.2.b. EU.
69. Article 34.2.a. EU.
70. Case C-355/04 Segi, Araitz Zubimendi Izaga and Aritza Galarraga v. Council of the European Union, ECR 2007 page 0000, at point 52 of the judgement.
71. Ibid.
72. Article 34.2.c. EU.
73. Ibid.
74. Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis, OJ L 131, 1/6/2000, p. 43,
75. as implemented by Council Decision 2004/926/EC of 22 December 2004 on the putting into effect of parts of the Schengen acquis by the United Kingdom of Great Britain and Northern Ireland, OJ L 395, 31/12/2004, p. 70.
76. Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis, OJ L 64, 7/3/2002, p. 20.
77. The body of law that has developed on the basis of Schengen.
78. Some of the Schengen provisions, pursuant to the UK "opt in" also apply to Gibraltar, the Isle of Man, and the Channel Islands, although none of these territories are part of the EC/EU.
79. Article 26 and 27 Schengen.
80. Which are covered from Articles 39 to 91 Schengen.
81. Hot pursuit for terrorist offences is now permitted in "Schengenland" by virtue of Council Decision 2003/725/JHA, OJ 2003 L260/37.
82. Article 41 Schengen.
83. Article 40 Schengen.
84. Article 47 Schengen.
85. Articles 77 to 91 Schengen.
86. Or put another way Denmark is adopting at least what the UK and Ireland are adopting. If they are adopting more of Schengen it will be as International law.
87. Pursuant to Council Decision 1999/437/EC, of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application, and development of the Schengen acquis, OJ L 176, 10/07/1999, p. 31.
88. Following an agreement between the EU and the Swiss Confederation, pursuant to Council Decision 2004/849/EC, OJL 368, 15/12/2004, p. 26,
89. and Council Decision 2004/860/EC, OJ L 370, 17.12.2004, p. 78.
90. The 27 EU member states plus Norway, Iceland, and Switzerland.
91. Commission Decision 2006/758/EC of 22 September 2006 on amending the Sirene Manual, OJ L 317, 16/11/2006, p. 41. This document applies to the UK, Ireland, Iceland, Norway, and Switzerland. (Denmark is part of the main EU group for pillar 3 documents.)
92. Commission Decision 2006/757/EC, OJ L 317, 16/11/2006, p. 1. - pursuant to Council Regulation (EC) No 378/2004. This document applies to the EU, but not the UK, Ireland, or Denmark. It does apply to Iceland, Norway, and Switzerland, as international law.
93. Being both Council Regulation (EC) No 2424/2001 of 6 December 2001 on the development of the second generation Schengen Information System (SIS II), OJ L 328, 13/12/2001, p. 4,
94. for visas, asylum, and immigration law participants, and 2001/886/JHA: Council Decision of 6 December 2001 on the development of the second generation Schengen Information System (SIS II), OJ L 328, 13/12/2001, p. 1, for policing and criminal affairs law participants.
95. Council Regulation (EC) No 871/2004 of 29 April 2004 concerning the introduction of some new functions for the Schengen Information System, including in the fight against terrorism, OJ L 162, 30/04/2004, p. 29, as amended.
96. It was repealed and replaced by Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation, and use of the second generation Schengen Information System (SIS II), OJ L 381, 28/12/2006, p. 4, on dates to be fixed by the Council (Articles 53 and 55(2) read together). As technical problems have continued to bedevil SIS II, those dates do not appear to have been so fixed. The 2004 regulation applies to all EU member states, but not the UK, Ireland, or Denmark. It does however apply to Norway and Iceland. The 2006 regulation applies to the same states as the 2004 regulation, with the addition of Switzerland.
97. Council Decision 2005/211/JHA, OJ L 68, 15/03/2005, p. 44, as amended. All countries (27 EU + 3) are involved in this piece of legislation.
98. As explained in paragraph 6 of the introduction to Council Regulation (EC) No. 871/2004, and paragraph 9 of the introduction to Council Decision 2005/211/JHA.
99. New Article 101(2) Schengen, inserted by Article 1.4 of Council Regulation (EC) No. 871/2004.
100. These include lost or stolen vehicles, boats, aircraft, containers, firearms, blank official documents, identity papers of differing classifications, vehicle registration certificates banknotes, and methods of payments (credit cards, etc). New Article 99(1) Schengen, inserted by Article 4.4 of Council Regulation (EC) No. 871/2004.
101. Article 101B Schengen, as inserted by Article 1.9 of Council Decision 2005/211/JHA.
102. http://www.europol.eu.int.
103. Also known as the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention) OJ C 316, 2/11/1995, p. 2.
104. Council Act of 30 November 2000 drawing up on the basis of Article 43(1) of the convention on the establishment of a European Police Office (Europol Convention) of a Protocol amending Article 2 and the Annex to that Convention (2000/C 358/01). In force 29th March 2007 pursuant to Notice concerning the entry into force of the Protocol drawn up on the basis of Article 43(1) of the Convention on the establishment of a European Police Office, OJ L 41, 13/02/2007, p. 21.
105. Council Act of 28 November 2002 drawing up a Protocol amending the Convention on the establishment of a European Police Office (Europol Convention) and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol (2002/C 312/01). In force 29th March 2007 pursuant to Notice concerning the entry into force of the Protocol amending the Convention on the establishment ofa European Police Office, OJ L 41, 13/02/2007, p. 21. Enacted in the UK pursuant to European Communities (Immunities and Privileges of the European Police Office) (Amendment) Order 2004, SI 2004/3330 and European Communities (Definition of Treaties) (European Police Office) Order 2004, SI 2004/3331.
106. Council Act of 27th November 2003 drawing up, on the basis of Article 43(1) of the convention on the Establishment of a European Police Office (Europol Convention), a Protocol amending that Convention, (2004/C 2/01). In force 18th April 2007 pursuant to.... Notice concerning the entry into force of the Protocol drawn up on the basis of Article 43(1) of the Convention on the establishment of a European Police Office, OJ L 41, 13/02/2007, p. 21.
107. Proposal for a Council Decision establishing the European Police Office (Europol) Brussels, 20.12.2006, COM (2006) 817 final.
108. Memorandum to Proposal for a Council Decision establishing the European Police Office, Brussels, 5 January 2007, COM(2006) 817 final at p. 120.
109. Articles 7 to 9 of the Europol Convention.
110. Articles 10 to 12 of the Europol Convention, which are not complemented by Council Act of 3 November 1998 adopting rules applicable to Europol analysis work files, 1999/C 26/01.
111. http://www.eurojust.eu.int.
112. http://www.ejn-crimjust.eu.int, with its legal basis being Joint Action 98/48/JHA of 29 June 1998 adopted by Council on the basis of Article K.3 of the Treaty on European Union, on the creation of a European Judicial Network, OJ L. 191/4.
113. Douglas-Scott (see note 18 above), 230.
114. Leading to the stationing of liaison officers within Europol by both the "United States Secret Service (USSS) and Federal Bureau of Investigation (FBI)." Europol 2005 Annual Report, p. 3.
115. Wouters and Naert (see note 28 above), 910.
116. Council Decision 2002/956/JHA setting up a European Network for the Protection of Public Figures OJ 2002 L333/1.
117. Wouters and Naert (see note 28 above), 910-911.
118. The latest annual report published by Europol on their website.
119. Europol 2005 Annual Report, p. 3.
120. Ibid. at p. 13.
121. Ibid. at p. 15.
122. Ibid. at p. 38-9.
123. Ibid at p. 33.
124. Ibid. at p. 32.
125. Ibid. at p. 13.
126. Which is part of the EU's Common Foreign and Security Policy (CFSP), which is pillar II of the EU.
127. Weapons of mass destruction.
128. House of Lords EU Select Committee on the European Union, 7th report, Appendix 5.
129. Article 4 Europol Convention.
130. And in the UK by Article 5 of European Communities (Immunities and Privileges of the European Police Office) Order 1997,SI 1997/2973, replacing an earlier provision to the same effect, Article 3 of the European Police Office (Legal Capacities) Order 1996 SI 1996/3157.
131. Article 5 Europol Convention.
132. As, for example, in the case of Scottish Europol operations.
133. Case C-354/04 and Case C-355/04;
134. AG Mengozzi in Gestoras Pro Amnistia (note 133)
135. and Case C-355/04 Segi, (note 68), at paragraph 148 of the opinion.
136. Ibid.
137. Ibid. at paragraph 154 of the opinion.
138. Act of the Management Board of Europol of 15 October 1998 concerning the rights and obligation of liaison officers, 1999/C 26/09.
139. Douglas-Scott (see note 18 above), 230.
140. Ibid.
141. Article 24 Europol Convention.
142. Article 23 Europol Convention.
143. Proposai for a Council Decision establishing the European Police Office, Brussels, 5 January 2007, COM(2006) 817 final.
144. Case C-105/03 Pupino [2005] ECR 15285, at paragraph 35.
145. Case C-354/04 and Case C-355/04;
146. AG Mengozzi in Gestoras Pro Amnistia (note 133)at paragraph 123 of the opinion.
147. Pursuant to Article 35(7) EU.
148. Pursuant to Article 35(6) EU.
149. Case C-355/04 Segi, (note 68), at point 53 of the judgement.
150. Enacted pursuant to Article 34 EU.
151. Currently Denmark, UK, Ireland, Poland, Lithuania, Latvia, Estonia, Slovakia, Cyprus, Malta, Slovenia, Romania, and Bulgaria.
152. Currently Hungary and Spain, pursuant to Article 35.3.a EU.
153. Currently France, Belgium, Czech Republic, Germany, Italy, Greece, Netherlands, Luxemburg, Austria, Portugal, Finland, Sweden, pursuant to Article 35.3.b. EU.
154. Information concerning the declarations by the French Republic and the Republic of Hungary on their acceptance of the jurisdiction of the Court of Justice to give preliminary rulings on the acts referred to in Article 35 of the Treaty on European Union, Official Journal L 327, 14/12/2005, p. 19.
155. Case C-354/04 and Case C-355/04;
156. AG Mengozzi in Gestoras Pro Amnistia (see note 127 above) at paragraph 112 of the opinion.
157. Ibid. at paragraph 114 of the opinion.
158. Case C-355/04 Segi(see note 68 above), at point 56 of the judgement.
159. Case C-354/04 and Case C-355/04;
160. AG Mengozzi in Gestoras Pro Amnistia (see note 127 above) at paragraph 99 of the opinion.
161. Article 6(2) EU refers to the European Convention on Human Rights and fundamental freedoms, (ECHR) which forms part of the law of each of the member states of the EU.
162. Case C-354/04 and Case C-355/04; AG Mengozzi in Gestoras Pro Amnistia (see note 127 above), at paragraph 101 of the opinion.
163. Ibid. at paragraph 155 of the opinion.
164. Ibid. at paragraph 138 of the opinion.
165. Opinion 2/94 (re ECHR) [1996] ECR 1-1759; [1996] 2 CMLR 265.
166. The Bundesverfassundsgericht.
167. The cases here were International Handelsgesellschaft mbH v. Enifurh-und Vorrats-stelle für Getreide und Futtermittel (Case 2 BvL 52/71), before the Bundesverfassungsgericht, the International Handelsgesellschaft case before the ECJ, (Case 11/70, [1970] ECR 1125), Re the application of Wünsche Handelsgesellschaft (Case 2 BvR 197/83) before the Bundesverfas-sundsgericht, and Case 46/87, Hoechst v. Commission, [1989] ECR 2859.
168. Case 46/87, Hoechst v. Commission [1989] ECR 2859, at paragraph 13 of the judgement.
169. Bernd Meyring; Intergovernmentalism and supranationality: Two Stereotypes for a Complex Reality, (1997) 22 E.L.Rev. 221.
170. European Economic Area.
171. European Free Trade Association.
172. Case C-354/04 and Case C-355/04;
173. AG Mengozzi in Gestoras Pro Amnistia (note 127), at paragraph 127 of the opinion.
174. Chalmers et al., European Union Law, (Cambridge, UK: Cambridge University Press, 2006), ISBN 13:987-0-521-82041-7, at p. 13.
175. Case C-354/04 and Case C-355/04; AG Mengozzi in Gestoras Pro Amnistia (see note 127 above), at paragraph 128 of the opinion.
176. Under Article 281 EC.
177. Charter of Fundamental Rights of the European Union, OJ 2000 C364/01, the "Nice" charter.
178. Document proposing the adoption of the Treaty of Prüm into EU law by way of a Council Decision OJ C 71, 28/03/2007, p. 35.
179. Article 16.1 of Document proposing the adoption of the Treaty of Prüm into EU law by way of a Council Decision OJ C 71, 28/03/2007, p. 35.
180. Reliance is to be made on the definition of terrorism set out in the Council Frame-work Decision 2002/475/JHA of 3 June 2002 on combating terrorism OJ L22/6/2002, 164/3.
181. Namely Norway, Iceland, and Switzerland.
182. Laurence W.Gormely, "Reflections on the Architecture of the European Union after the Treaty of Amsterdam," Chapter 4 in O'Keefe & Twomey, eds., Legal Issues of the Amsterdam Treaty (Hart Publishing, 1999).
183. TE-STAT 2007 (see note 1 above).
184. Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences, OJ L 253, 29/09/2005, p. 22.