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EU to gold plate international anti-terrorism obligations with "urgent" new law

02 December 2015

The EU will update its terrorism law to meet international obligations at the same time as introducing new powers "to tackle the evolving terrorist threat in a more effective way, thereby enhancing the security of the EU and the safety of its citizens." The Commission has not carried out an impact assessment of the proposals due to the "urgent need" for new anti-terrorism measures.

The new offences to be introduced are "receiving training for terrorism, travelling abroad for terrorism and the organising or otherwise facilitating travelling abroad for terrorism," and the "financing of travelling abroad for terrorism".

The proposal: European Commission, 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, COM(2015) 625 final, 2 December 2015 (pdf)

Gold plated powers

One aim of the Commission's proposal aims is to meet requirements stemming from the UN, the Council of Europe and the Financial Action Task Force, but they go further:

"the draft Directive also proposes to criminalise the following behaviours: attempt of recruitment and training, travel abroad with the purpose of participating in the activities of a terrorist group, and the financing of the various terrorist offences defined in the draft Directive."

The term "gold plating" has been used in the UK to describe the process of giving EU rules "extra strength" when transposing them into national law; it could equally be applied to the Commission's proposal to tack further powers onto a law implementing international obligations.

Urgency trumps "logical reasoning"

Despite the extensive new proposals, the Commission says that due to "the urgent need to improve the EU framework security in the light of recent terrorist attacks," they are "exceptionally presented without an impact assessment."

Any Commission proposals "expected to have significant economic, social or environmental impacts" are supposed to be the subject of an impact assessment, which:

"must set out the logical reasoning that links the problem (including subsidiarity issues), its underlying drivers, the objectives and a range of policy options to tackle the problem. They must present the likely impacts of the options, who will be affected by them and how."

A section in the proposal on "fundamental rights", meanwhile, largely limits itself to outlining the rights which "have to be taken into account", but there is no serious interrogation of how they may be affected by the new measures.

Third time lucky

The law to be replaced is Framework Decision 2002/475/JHA on combating terrorism, which has been amended once before, in 2008. That was to: "update the Framework Decision and align it with the Council of Europe Convention on prevention of terrorism, by including public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism."

The Commission's new proposal says:

"The existing rules need to be aligned taking into account the changing terrorist threat Europe is facing. This includes adequate criminal law provisions addressing the foreign terrorist fighter phenomenon and risks related to the travel to third countries to engage in terrorist activities but also the increased threats from perpetrators who remain within Europe."

From the UN to the EU

The Commission is proposing more amendments partly to meet international obligations: UN Security Council Resolution 2178 on foreign terrorist fighters was agreed last September and requires a whole host of new criminal law measures, amongst others on "recruiting, organizing, transporting or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning of, or participation in terrorist acts".

To meet these requirements the Council of Europe amended its anti-terrorism Convention, which the EU has now signed. To conclude the process, the EU needs to "incorporate the standards set by the Additional Protocol into Union law," the Commission's proposal notes.

The UNSC Resolution also led the Financial Action Task Force (an international body concerned with money laundering and terrorist financing) to amend "the Interpretative Note to Recommendation 5 on the criminal offence of terrorist financing." This includes the requirement for states to:

"criminalise not only the financing of terrorist acts but also the financing of terrorist organisations and individual terrorists even in the absence of a link to a specific terrorist act or acts."

The Commission notes that although Member States are obliged to meet these requirements "and have to a large extent adopted the necessary implementing measures," updating the EU's anti-terror law:

"ensures that Member States are not subject to different legal obligations and that the differences in the scope of criminal offences do not affect cross border information exchange and operational cooperation."

From above and below

The latest proposal to revise EU anti-terrorist law was approved last December after discussions in October. Initially, a majority of Member States preferred to change their national laws and cited a need for speed: "the timing aspect of providing an effective judicial response in this respect is particularly relevant."

Member States are bringing their national laws into line with UNSC Resolution 2178 anyway, but the Commission wants to "avoid any legal gaps that may result from a fragmented approach".

As an MP recently noted in regard to proposed new British surveillance legislation:

"But legislation done in a rush is never going to be as well thought through as legislation done properly. The pressure will be on parliamentarians to ensure the bill passes, lest they be seen as somehow on the side of the terrorists. The rhetoric becomes grander, more fundamentalist in its tone, more critical of anyone who dares dissent.

(...)

"If we try to rush legislation through... mature debate – one of the democratic 'freedoms' which terrorists seek to attack – will be yet another casualty."