Counter-terrorism and police cooperation: combining effectiveness with democracy

20 April 2007

Annegret Bendiek, from the Research Unit, EU External Relations, Stiftung Wissenschaft und Politik (SWP), said the objective of the EU’s counter-terrorism policy was to “confront the networks of terror with networks against terror”, through “prevention, protection, pursuit and response” measures.

In the past, counter-terrorism had been included in the EU’s judicial and domestic policy, but following the attacks in New York, Madrid and London, it has been reclassified as a “decisive cross-cutting task of security policy” to be included in all EU policy strands, an approach which was reflected in the EU’s 2003 European Security Strategy.

EU counter-terrorism activities

Ms Bendiek outlined the EU’s activities in this field, including the European Arrest Warrant, the introduction of joint investigation teams and the compilation of a list of people, groups or entities considered a terrorist threat - such as Hamas in Palestine - against which the EU could use restrictive measures if necessary.

The EU’s counter-terrorism policy was designed to “combat terrorism globally while respecting human rights, allowing its citizens to live in an area of freedom, security and justice”, said Ms Bendiek.  This policy is now included in all three ‘pillars’ of the EU, and plays a central role in the European Security and Defence Policy.

The EU has created the post of EU Personal Representative for Counter Terrorism, and has adopted more than 160 horizontal measures, such as encouraging exchanges between Europol and the Joint Situation Centre (SitCen), and extending cooperation beyond EU borders. Two key measures have been establishing flexible intelligence cooperation between the EU-G6: Germany, France, Italy, Spain, Poland and the UK, and the adoption of the 2005 Prüm Treaty to prevent cross-border terrorism.

However, Ms Bendiek questioned whether all this activity was really helping to coordinate counter-terrorism policy within the EU, or whether it simply created a series of measures across the three EU pillars which lacked any overall coherence.

“Much ado about nothing”

EU counter-terrorism could be described as “much ado about nothing”, she said. Firstly, because some Member States shied away from integrating these policies into their own structures and legislation, particularly when they ran counter to national policies; secondly, because of the dearth of funds to support an EU-wide counter-terrorism policy; and thirdly, because of the need to improve domestic, judicial and defence cooperation. At times this led to a lack of coordination between police and intelligence series, and to the use of the military for domestic issues.

“Institutions are not enough,” she concluded. Member States have strong reservations about forming EU-wide anti-terrorist networks because they fear a loss of sovereignty, and because of national concerns about the potential lack of accountability and disregard for personal rights.

A better way forward was to set up trust-building exercises through regular political dialogue between the main EU actors. The Union could only be trusted as a coherent and credible actor if the EU and its Member States upheld democratic and human rights standards.

The Prüm Treaty

Daniela Kietz, from the Research Unit, EU Integration, Stiftung Wissenschaft und Politik (SWP), focused on the Prüm Treaty and its integration into EU legislation. The aim of the treaty, which covers terrorism, cross-border crime and illegal migration, is to improve cooperation at national borders and enhance the exchange of information through cross-border sharing of DNA databases and finger-printing.

She feared that the “unique way” it had been negotiated outside the EU framework, to be integrated into EU law later, might indicate future patterns for policy-making, which would extend the competence of law-enforcement authorities at the expense of data protection measures.

Prüm’s original signatories were Austria, Belgium, France, Germany, Luxemburg, the Netherlands and Spain, and it was now being ratified in each of these countries, but with little or no discussion in national parliaments, said Ms Kietz. Fifteen Member States have now proposed that the Treaty’s major aspects be incorporated into EU law.

Prüm’s supporters claim that this is a more efficient way of working, with a small group of Member States agreeing on proposals which are then tested in the field before being incorporated into EU law. They also point to the similarities with the way in which the Schengen agreement was established.

Its detractors argue that this process lacks public debate or democratic scrutiny, abuses biometric data and erodes EU citizens’ fundamental rights. They also point out that Schengen was established before many of the EU structures were in place, while Prüm reflects a conscious decision to go outside the EU legal framework, and to sidestep the EU’s third ‘pillar’ of police and judicial cooperation.

However, Ms Kietz argued that integrating the treaty into EU law would give it more legitimacy, because this involves consultation with the European Parliament. Nevertheless, the speed with which it is being forced through - allowing only three months for Parliamentary consultation - does not leave enough time for public debate.

Ms Kietz pointed out that both the EU and national parliaments would now be faced with a body of law that could have been agreed within the third pillar, which already has competence in this area.

If the Prüm Treaty really was about increasing the efficiency of decision-making, then Member States should instead have insisted on doing this within the existing EU framework.

Using soft measures to combat terrorism

Johannes Vos, Head of Unit, Directorate-General for Justice and Home Affairs, Police and Customs Cooperation, Council of the European Union, described how the EU’s counter-terrorism strategy had developed since 9/11.

Europol’s and SitCen’s activities have been stepped up; more is being done with countries outside the EU such as the US and Russia; dialogues are being established with specialist agencies; and the Council has created peer-evaluation mechanisms between Member States.

An important aspect of this strategy is that it is based on democratic principles, drawn up in consultation with the Parliament, the European Commission and civil society. Mr Vos stressed that appropriate safeguards were needed for data protection, based on the Council of Europe’s Resolution 81.

As well as an annual meeting between the Council, Parliament and Commission to discuss data protection, he suggested an annual Parliamentary debate on the EU’s anti-terrorist strategy.

He sounded a note of caution about having higher expectations for a counter-terrorism strategy at the European than the national level, and argued that policies to encourage efficiency did not always protect democratic principles.

Parliamentary scrutiny of the Prüm treaty

Fausto Correia, MEP, Committee on Civil Liberties, Justice and Home Affairs, European Parliament, and Rapporteur on the plan to integrate the Prüm Treaty into EU law, described it as “an ambitious proposal”.

He criticised the short amount of time the Parliament had been given to deliver its views, but said that despite this, MEPs would strive to make the proposal “more European”, to ensure that citizens’ data is protected, and to find a balance between efficient anti-terrorist measures and protecting EU citizens’ fundamental rights.

His committee would also examine the possibility of involving other institutions and would work to establish the perimeters for using DNA databases and finger printing, including drawing up strictly defined criteria for collecting and retaining such information.

Mr Correia argued that a regulatory framework was needed on data protection within the existing EU body of law, as this would help to reconcile public and private interests and protect EU citizens’ fundamental rights.