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Terrorism Directive: Parliamentary committee confirms legal basis as vote on new counter-terror law looms
3.2.17
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The green light has been given for the approval of the EU's new Directive on Combating Terrorism after confirmation from the European Parliament's Legal Affairs Committee (JURE) that the legal basis for the new law is acceptable. The European Parliament's plenary meeting on 16 February will vote on the text, which was agreed in secret negotiations and contains a series of highly controversial provisions that have been condemned by civil society groups and legal experts.

See: Letter from Pavel Svoboda MEP, JURE chair, to Claude Moraes MEP, LIBE chair: Opinion on the legal basis of the proposal for a for a directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism (COM(2015)0625 – C8-0386/2015 – 2015/0281(COD)) (2 February 2017, pdf)

The proposed Directive has faced widespread criticism, as much for its content as for the hasty and secretive process through which it was proposed, negotiated and agreed. See: New counter-terror powers coming after hasty, secret negotiations on EU Directive completed (Statewatch News Online, 23 November 2016)

With negotiations over there is little room left for principled objections to make a difference to the passing of the Directive, but the choice of legal basis remained a potential spanner in the works.

The letter from Svoboda notes that the proposal for a new Directive on Combating Terrorism was originally based on provisions of the Lisbon Treaty on the establishment of EU-wide rules on criminal offences and sanctions (Article 83(1)) and on the establishment of minimum rules on the rights of victims of crime (Article 82(2)(c)), but during secret "trilogue" negotiations the reference to the latter provision was removed.

However, the text of the Directive agreed between the Council and the Parliament contains provisions concerning the rights of victims of terrorism - i.e. crime - and as Svoboda's letter notes, the "choice of an incorrect legal basis may... justify the annulment of the act in question."

Nevertheless, all is well - after an exhaustive analysis, the letter concludes that:

"Article 83(1) TFEU can be considered as being the correct legal basis for the proposal for a directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism, since the fight against terrorism through the harmonisation of criminal law is clearly the predominant component of the act."

A vote on the Directive is on the 16 February agenda of the Parliament, following a debate on 15 February (EP, links).

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