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New EU counter-terrorism law: worrying provisions remain in text as secret negotiations continue

01 November 2016

Negotiations on a new EU counter-terrorism law are pressing ahead, with the sixth secret "trilogue" meeting between the Council and Parliament due to take place this Thursday, 10 November. A document obtained by Statewatch contains the Council's current preferred text, which contains a number of provisions that threaten to undermine fundamental rights.

See: NOTE from: Presidency to: Delegations: Proposal for a Directive of the European Parliament and of the Council on combating terrorism - Consolidated text (13686/16, 26 October 2016, pdf)

The introduction to the document, written by the Dutch Presidency of the Council, says it "aims to consolidate the positions of the EP and the Council around a balanced compromise package with a view to continuing work on that basis and concluding the negotiations in a timely manner."

However, the overall scope of the text remains very broad and includes numerous troubling provisions, for example on the criminalisation of travel and the blocking of internet content.

The procedure surrounding the new Directive has been remarkably swift: the Commission published a proposal less than a year ago, in December 2015. It did so without producing an impact assessment, citing the "urgent" need for new anti-terrorist measures in the wake of attacks in Paris and Belgium.

Commenting on the Commission's proposal (pdf), the Meijers Committee (a group of legal experts) noted that it:

"creates a far-reaching extension of the scope of Member States' criminal law obligations in the field of terrorism that takes these obligations even further into the preparatory phase of possible harmful conduct...

... the proposal offers unprecedented opportunities to cumulate offences... [enlarging] the scope of the criminal law even further [which] can lead to absurd situations.

...Many of the offences in the proposed directive do indeed target acts that would otherwise be considered 'normal' innocent behaviour, such as taking a chemistry course or buying fertilizer. Thus, because the actus reus cannot make the difference, a person's alleged intention (mens rea) plays an even greater role... In the current societal context, that means that there is a genuine risk that Muslims will be disproportionately targeted in practice."

Criminalisation of travel

UN Security Council Resolution 2178, agreed in September 2014, requires all states to criminalise travel for terrorist purposes. The new Directive contains the EU's attempts to introduce these requirements into its legal order. Article 9 of the Council's proposed text reads as follows:

"Travelling (…) for the purpose of terrorism

1. Member States shall take the necessary measures to ensure that travelling to another country within or outside the European Union, either directly or by transiting through one or several Member States, for the purpose of the commission of or contribution to a terrorist offence referred to in Article 3, for the purpose of the participation in the activities of a terrorist group with knowledge of the fact that such participation will contribute to the criminal activities of such a group as referred to in Article 4, or for the purpose of the providing or receiving of training for terrorism referred to in Articles 7 and 8 is punishable as a criminal offence when committed intentionally.

2. Member States shall take the necessary measures to ensure that one of the following conducts is punishable as a criminal offence when committed intentionally:

a) travelling to their territory, directly or by transiting through one or several Member States, for the purpose of the commission or contribution to a terrorist offence, as referred to Article 3 or

b) preparatory acts undertaken by a person entering their territory with the intention to commit or contribute to a terrorist offence, as referred to in Article 3."

The Meijers Commitee noted in their observations on a previous Council text that the need for provisions on criminalisation of travel was not demonstrated, and that the wording "or contribution to" makes the offence "excessively broad and unclear: there is no explanation of what this could entail."

The Committee argued that overall, Article 9 leads:

"to a greatly expanded scope of criminal liability for an otherwise ordinary activity - travelling abroad. Almost everything will thus come down to the alleged purposes of the traveller, an assessment that is left to domestic law. Some Member States will be able to interpret this very broadly... there is a risk of reversing the burden of proof, which will prove especially problematic for humanitarian organisations or journalists."

It seems that negotiations between the Parliament and Council have done little to address this - in fact, the Council's preferred text now includes further provisions requiring Member States to criminalise travel to their territory "for the purpose of the commission or contribution to a terrorist offence," and "preparatory acts undertaken by a person entering their territory with the intention to commit or contribute to a terrorist offence."

Blocking of internet content

One issue on which the Parliament has got its way is the issue of internet blocking, which was inserted into the text of the proposed Directive through what digital rights group EDRi referred to as "the most ridiculous amendment ever".

Article 14a of the Council's text, based on parliamentary proposals, covers 'Measures against public provocation content online', and requires Member States to take "the necessary measures to ensure the prompt removal of online content constituting a public provocation to commit a terrorist offence."

Where removal is not feasible, Member States "may... take measures to block the access to content... towards the Internet users in their territory."

Who is to decide whether content constitutes a public provocation or not is not made clear. Procedures for removal should be "set by transparent procedures and provide adequate safeguards," according to the Council's text. Those safeguards "shall also include the possibility of judicial redress". It seems that the courts will only be involved after any removal or blocking takes place - a continuation of the current approach to policing the internet for terrorist material (pdf).

"Structured groups" with no "developed structure"

The text also includes the following statement, inserted by the Council:

""Structured group" shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure."

Working out how exactly "structured group" need not have "a developed structure" requires some significant mental gymnastics.

For the parliament, negotiations are being led by Monika Hohlmeier, from the conservative European People's Party group of MEPs.