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EU: German Presidency seeks common approach for data-sharing on "potential terrorists"

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20 October 2020

The German Presidency of the Council has drafted a set of conclusions on the topic of "potential terrorists" ("Gefährder"), setting out ways for the member states to improve information-sharing and coordinate risk assessment and analysis. With increased political pressure to share information on "potential" threats, who will be caught up in the net that shouldn't be?

It should be borne in mind that Europol's annual Terrorism Situation & Trend Report (TE-SAT) (Europol, link), which "provides an overview of the terrorism phenomenon in the EU in a given year", is based entirely on information received from the member states.

In the past Europol has seen fit to include direct action tactics under the banner of "violent extremism", and "left-wing and anarchist terrorism" is now a regular feature of the reports.

The 2020 edition (Europol, link) notes that in 2019: "The number of arrests on suspicion of left-wing or anarchist terrorism in 2019 more than tripled, compared to previous years." However, it goes on to say that 71 of 111 arrests "were linked to violent demonstrations and confrontations with security forces" - a public order issue, perhaps, but not quite terrrorism.

These issues are not discussed directly in the German Presidency's draft conclusions on the issue of "potential terrorists", which state that:

"apart from the specific category of foreign fighter, there are no standards or criteria for examining information on ‘Gefährder’ and coordinating the entry thereof in European databases and information systems."

Developing a shared approach to other "potential terrorists" is a key theme of the draft conclusions. While this might seem like an issue requiring a broad democratic debate, the Presidency wishes to sidestep the development of new legal terminology, and instead prefers to see joint methods developed through behind-the-scenes cooperation.

See: Draft Council conclusions on dealing with persons regarded a violent extremist/terrorist threat ("Gefährder") (11591/20, LIMITE, 12 October 2020, pdf)

The document also includes the following (emphasis added):

"8. The Council... believes it is necessary to develop a shared understanding of which persons are to be regarded as ‘Gefährder’ and in which European databases and information systems (in particular the Schengen Information System (SIS), the Europol Information System (EIS) and Europol analysis projects) information on them is to be entered and under what conditions, without affecting national systems or national law. The aim is to develop a practice of entering such information in the relevant European databases and information systems so that persons who, according to the assessment of a Member State, pose a serious terrorist threat can reliably be found in the databases and information systems and identified as such."

"12. Against this background, the Council asks the Member States, within their own national regulatory frameworks and with regard to all forms of violent extremism and terrorism, to fully utilise the existing instruments for sharing information on ‘Gefährder’, in particular the SIS and Europol databases."

"15. In order to ensure continuing understanding among the Member States’ security authorities of how the security authorities of the other Member States assess persons as being ‘Gefährder’ and deal with them, the Council asks the European Commission and Europol, within the framework of their respective mandates, to establish a regular, long-term strategic exchange of experience on this issue, including an exchange on risk assessment tools.

16. The Council also asks the European Commission, in close cooperation with Europol, to provide the Member States with a compendium of Member States’ approaches to assessing persons as being ‘Gefährder’ and dealing with them. In this context, the Council asks Europol to compile a statistical overview of persons considered a potential terrorist threat.

"18. The Council emphasises that standard terms developed in this way for the purpose of shared understanding and common criteria for examining information and coordinating the entry thereof in European systems should not be accompanied by attempts to establish equivalents in national law. They are intended to add a European practice to existing and effective systems, not replace them.

19. The Council also recognises the potential added value of operational meetings and information boards on individual ‘Gefährder’. The Council asks Europol to make an appropriate platform available for this purpose."

Further reading

• Almost suspicious: the unbearable lightness of legislation by Heiner Busch (Statewatch Analysis, May 2017)