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New counter-terror powers coming after hasty, secret negotiations on EU Directive completed

01 November 2016

Less than a year after it was proposed, agreement on the EU's new counter-terrorism law has been reached following the seventh and final secret "trilogue" meeting on 17 November between the Council, the Parliament and the Commission. The final text of the new Directive is little-changed changed from a previous version published by Statewatch on 14 November.

See the final text to be approved by the Parliament and the Council's Permanent Representatives Committee: Outcome of the final trilogue with a view to agreement (Brussels, 17 November 2016) (14673/16, LIMITE, 21 November 2016, pdf)

The broad scope of the new Directive - which counts the criminalisation of "travel for terrorist purposes" amongst a number of new offences - has been criticised by civil society organisations and legal experts.

Dr Marloes van Noorloos of the Meijers Committee recently said to EUobserver that: "Any glorifying remark you could make about Nelson Mandela or Che Guevara, in principle, it is part of the definition [of terrorism]."

The text will be sent to the Council's Committee of Permanent Representatives (COREPER) for approval next week, on 30 November. The date foreseen for its approval by Parliament is currently 14 February 2017.

The UK, Ireland and Denmark will not be bound by the Directive, which will have to be implemented in all other Member States within a maximum of 18 months after its adoption.

At this point the Commission will draft a report on Member States' efforts at implementation. Three years after the adoption of the Directive another Commission report will assess "the added value of this Directive on combating terrorism," and its "impact on fundamental rights and freedoms."

The final version of the text includes a joint statement by the Council, Parliament and Commission in an annex (text copied below).

It is noteworthy that despite a stated commitment "to continue to develop and invest in effective preventive measures... including... all stakeholders, including civil society organisations," this ambition has not been matched in the negotiations on the new law.

Amnesty International, the International Commission of Jurists and the Open Society Foundations noted in July this year that:

"Throughout the drafting process the EU has bypassed crucial democratic steps. From the start the legislative process has been characterised by undue haste [the Directive was only proposed in December 2015] and closed-door meetings: no impact assessment was carried out to inform the Commission’s proposal; there was no public hearing in the European Parliament to discuss the draft with experts and practitioners; and negotiations will now start without parliamentary-wide review of the LIBE text."

See also: the previous version of the text: New counter-terrorism Directive: Council text finalised (Statewatch News Online, 14 November 2016) and further background: Directive on combating terrorism (SEMDOC)

From the annex to the text of the new Directive (pdf):

"Joint statement by the Council of the European Union, the European Parliament and the European Commission upon the adoption of the Directive on Combating Terrorism

Recent terrorist attacks in Europe have highlighted the need to reinforce efforts to safeguard security while promoting the respect of our common values including the rule of law and respect for human rights. To provide a comprehensive response to the evolving terrorist threat, an enhanced criminalisation framework to combat terrorism need to be complemented by effective measures on prevention of radicalisation leading to terrorism and efficient exchange of information on terrorist offences.

It is in this spirit that the EU institutions and Member States collectively express their commitment - within their respective area of competence - to continue to develop and invest in effective preventive measures, as a part of a comprehensive cross sectoral approach that involves all relevant policies, including in particular in the field of education, social inclusion and integration, and all stakeholders, including civil society organisations, local communities or industry partners.

The Commission will support Member States' efforts in particular by offering financial support to projects aimed at developing tools to tackle radicalisation and through EU wide initiatives and networks, such as the Radicalisation Awareness Network.

The Council of the EU, the European Parliament and the European Commission underline the necessity for an effective and timely exchange of all relevant information for the prevention, detection, investigation or prosecution of terrorist offences between competent authorities in the Union. In this respect, making full use of all the existing Union instruments, channels and agencies to exchange information, as well as a swift implementation of all adopted Union legislation in this field is key.

The three institutions reaffirm the need to assess the functioning of the general EU information exchange framework and to address with tangible actions the possible shortcomings, including in light of the Roadmap to enhance information exchange and information management, including interoperability solutions in the JHA area."