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JULIET LODGE

SUSTAINING FREEDOM, SECURITY AND JUSTICE –FROM TERRORISM TO IMMIGRATION

ABSTRACT. This article focuses on two areas central to sustaining freedom, securityand justice: terrorism and immigration. Their inter-relationship and the instruments andmeasures adopted to prosecute them have significantly advanced judicial co-operation,communitisation of security, and re-assessment of the nature and requirements of EUgovernance in an EU committed to human rights, liberal democracy and realising sustain-able freedom, security and justice. The article outlines the background to EU involvementin judicial co-operation. It then explores EU competence, instruments and measuresdeveloped to (i) combat terrorism and international organised crime; and (ii) immigra-tion and asylum. It concludes that the inextricable linkage between the two has seriousimplications for future EU democratic governance.

KEY WORDS: asylum, EU freedom, governance, justice, security, policing

INTRODUCTION

The challenge of combating terrorism while sustaining liberal democraticgovernance in an enlarging EU has become a major preoccupation ofboth the Convention on the Future of Europe and the member states.The former set up a new working party to examine these shortly beforethe June 2002 European Council. The latter have been struggling separ-ately and collectively in the EU to realise the ambitious programmeof some 50 freedom, security and justice (FSJ) measures adopted atthe Tampere European Council in October 1999 and reaffirmed in theDecember 2001 Laeken Declaration. It noted public calls for ‘a greaterEU role in justice and security, action against cross-border crime, controlof migration flows and reception of asylum seekers and refugees fromfar-flung war zones’ and proposed a more integrated approach to policeand criminal law co-operation. Public support for EU action in these areashad risen by April 2002: for EU measures against terrorism (85%), traf-ficking in human beings (80%), combating organised crime (72%) anddrugs (71%).1 Opinion divided over immigration and asylum policy, policeco-operation and more EU measures on justice. However, the Laeken

1 Eurobarometer April 2002.

Liverpool Law Review 24: 41–71, 2002.© 2002 Kluwer Academic Publishers. Printed in the Netherlands.

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Declaration called on the Council to ‘swiftly examine’ the Commission’sGreen Paper proposing the establishment of a European Public Prosecutor2

and for a ‘European network to encourage the training of magistrates’. Italso advocated mutual recognition of civil and criminal judicial decisions.

On 6 March 2002, a new “Eurojust” institution, provided for in theTreaty of Nice, was set up prior to the treaty’s entry into force, whichdepends on the outcome of the second Irish referendum held before theBrussels October summit. While Eurojust’s remit is very limited, it is aflexible instrument. There can be little doubt that it will expand – muchas Europol did before it – from its current co-ordination role between theone-per-member state group of magistrates seconded to Brussels whichmay authorise Eurojust to request a member state to instigate criminalproceedings (and receive justification for any refusal to comply).

EU institutions recognise that continuing problems of establishing trustamong law enforcement agencies within the 15, and in an enlarging EUwhere respect for law and order and common understanding of appropriatejudicial, police and democratic practices to uphold and respect humanrights and civil liberties (which the EU sees as universal, indivisible andinterdependent) are fragile, have the potential to erode the sustainability ofthe FSJ. Consequently, operationally desirable measures, such as commonpolicies, a common border guard, and an integrated judicial system of co-operation could be difficult to set up. If they were abused, public trustwould be eroded and the legitimacy and stability of the EU threatened.The stakes, therefore, are high.

Co-operation in the FSJ area has proceeded apace even though itdirectly impinges upon the sovereignty of the member states and theirdomestic socio-politico-legal cultures.3 While it would be misleading toattribute the spurt in EU concern with these areas to the terrorist attacks onthe World Trade Centre on 11 September 2001, aspects of related policieshave been accelerated as a result, and awareness has grown of the need fora more coherent and joined-up approach to often compartmentalised areas(linking pillars II & III). Combating terrorism by tightening up measuresaffecting civil liberties, border controls, and by constraining aspects ofthe Single Market’s vision of freedom of movement of persons, services,capital and goods would seem to be a contradiction in terms. Indigenousterrorists in Europe since the 1960s – notably in Germany – unsuccess-fully sought to undermine the legitimacy of the state in the eyes of thepublic precisely by goading the state into taking measures which could beconstrued as a limitation on individual liberty, and as such justify public

2 COM (2001) 715.3 S. Peers, EU Justice and Home Affairs Law (London: Longman, 2000).

SUSTAINING FREEDOM, SECURITY AND JUSTICE 43

rebellion against them. The EU faces similar dilemmas and is makingprogress on many fronts: openness and transparency,4 citizen participationin EU governance, linking internal and external aspects of security, insti-tutional reform, freedom of movement of persons in an enlarged EU witha long and leaky eastern border permeable by corrupt agencies, migrantsand criminals. An adequate response to dealing with these issues requiresboth international co-operation (notably with the US, something outsidethe scope of this article), manpower and financial resources. The EU isshort on all counts. What is surprising is the amount of progress that hasbeen made in the face of opposition from member and applicant statesconcerned about the impact on their own sovereignty.

This article focuses on but two key areas central to sustaining theFSJ: terrorism and immigration. Immigration is a matter directly linkedto internal policies under the Single Market’s goal of freedom of move-ment of persons. Measures to combat terrorism seem primarily linkedto the external element of the Single Market – the external frontier –and to external policies. Their inter-relationship and the instruments andmeasures adopted to prosecute them have significantly advanced judicialco-operation, communitisation of security policies, supranational integra-tion and a re-assessment of the nature and requirements of EU governancein an EU committed to human rights, liberal democracy and realisingsustainable freedom, security and justice.

The article begins by briefly outlining the background to EU judicialco-operation. It then explores EU competence, instruments and measuresdeveloped to (i) combat terrorism and international organised crime; and(ii) immigration and asylum. It concludes by arguing that the inextricablelinkage between the two has serious implications for future EU democraticgovernance.

BACKGROUND

Intergovernmental co-operation among the EC’s member states in thebroad areas that presaged internal security co-operation under successivetreaty reforms began in 1967 when the then six member states of the EECsigned the Naples Convention on mutual co-operation between customsauthorities. The Maastricht treaty (TEU) first officially endorsed andrecognised the existence of co-operation on internal security and police

4 Regulation (EC) 1049/2001 of the European Parliament and of the Council of 31 May2001 on public access to European Parliament, Council and Commission documents, OJ L145/43; and COM (93) 258 2/6/93.

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matters in what was known as Pillar III on Justice and Home Affairs5 andthe ‘internal security acquis’. The internal security acquis relates to thefollowing: policing, efforts to combat external organised crime, telecom-munications, data protection, civil liberties, human rights, policing, moneylaundering, fraud, criminal law and legal co-operation, asylum, refugeesand migration.6 These areas are especially controversial. The EU’s juris-diction over them has grown since the first official supranational steps tocomplement the regulatory and legislative measures of the member stateswere taken in the 1990s to reinforce the EU’s common external frontier inthe wake of the completion of the Single Market on 1 January 1993 and therealisation of the four freedoms of movement of goods, persons, servicesand capital.

In 1976, the justice and home affairs ministers of the EuropeanCommunity’s member states met and agreed to ‘co-operate’. Initiallythis was pursued through the intergovernmental procedures affordedby European Political Co-operation, and later through Title III of theSingle European Act7 and the associated Trevi committees. These wereentrenched and developed through the subsequent treaties (Maastricht(TEU), Amsterdam (ToA) and Nice (ToN)) primarily through co-operative, inter-governmentalist mechanisms under pillar III and to alesser extent pillar II. They sat uneasily alongside associated suprana-tional competencies under pillar I in respect of freedom of movementof persons. A number of developments precipitated re-appraisal of EUcompetence in this field, however. The prospect of enlargement to incipientdemocracies in Central and Eastern Europe (having a shaky appreciationof the requirements of rule and order, justice, democratic policing, civilliberty and fundamental rights) coupled with deepening EU integrationimpelled a re-assessment of the potential role of the EU in strengthening itsexternal frontier and realising and sustaining a zone of freedom, securityand justice for its inhabitants as prescribed by the Tampere EuropeanCouncil in October 1999. Even so, there was not much enthusiasm forcommunitisation of responsibilities in this area that lay at the heart ofcommon conceptions of sovereignty. What precipitated the increasinglyhigh priority governments came to attach to the pillar III issues were:

5 D. O’Keeffe and P. Twomey, Legal Issues of the Maastricht Treaty (West Sussex:Chancery Law Publishing, 1994). J Lodge, ‘Freedom, Security and Justice: Pillar IIIand Protecting the ‘Internal Acquis’ ’, in A. Crawford (ed.), Crime and Insecurity: theGovernance of Safety in Europe (Willan: Cullumpton, 2002), pp. 102–133.

6 C. Vincenzi and M. Marrington, Immigration Law (London: Sweet and Maxwell,1992).

7 Single European Act, Bull. of the European Communities, Supplement 2/86.


rising illegal immigration8 and associated organised criminal activity, andthe terrorist attacks on the World Trade Centre in 2001. In exploring theEU response since then, the article outlines key measures and instruments;policy priorities; and ethical-philosophical tensions in socio-politico-legaldiscourse on balancing the need to combat terrorism and internationalorganised crime whilst developing a realisable zone of freedom, securityand justice, and sustainable EU liberal democracy.

KEY MEASURES AND INSTRUMENTS

Internal security matters necessarily require a high degree of secrecy toensure operational effectiveness. Reconciling this with openness and trans-parency is fraught. Arguably, the debate over openness and transparency istoo narrowly conceived and presented in terms of public access to officialdocuments,9 opening to the public (as agreed by the Seville EuropeanCouncil in June 2002) and televising of Council sessions when it meetsas a legislature (beginning with the Danish presidency in July 2002), thetelevising of the European Council, citizen forums, internet chats withindividual Commissioners, the relative accountability of the Commissionto the public, and the potential role of national parliaments in EU decision-making. Important though these are as elements of realising and sustainingopen EU democratic governance – they are the icing on the cake. Theyare designed to make the EU palatable to citizens as it increases in size,competence and authority. While they are not just cosmetic, it must berealised that EU concern with showing that it is ‘listening to citizens’ indi-cates real concern with how citizens perceive the EU and how legitimateand justifiable they believe EU procedures and policies are. Openness andtransparency are arguably especially difficult to promote and reconcilewith operationalising and realising a sustainable area of freedom, securityand justice. On occasion, operational imperatives impel the adoption ofmeasures in advance of their legitimation by EU Councils, IGCs or treatyamendments.

This is not surprising since, for example, various crucial instrumentssuch as Schengen and Europol were set up before they were officially and

8 D. Joly, Haven or Hell: Asylum Policies and refugees in Europe (New York:St Martin’s Press, 1996), R. Plender ‘Asylum policy deficits of intergovernmental co-operation’, in R. Bieber and J. Monar (eds.), Justice and Home Affairs in the EuropeanUnion (European Interuniveristy Press: Florence, 1995).

9 See new Regulation (1049/2001) of the European Parliament and of the Council of31 May 2001 regarding public access to European Parliament, Council and Commissiondocuments OJ L145/43.

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openly recognised in treaty amendments10 (see below). The Conventionapplying the Schengen Agreement of 14 June 1985 on the gradual abol-ition of checks at common borders is interesting in indicating the rangeof subsequent policy areas tackled by pillar III. Similarly, Europol hadits origins in the European Drugs Monitoring Unit (EDMU) whose estab-lishment also preceded its official endorsement in treaties from Maastrichtonwards. Like its successor Europol, the EDMU remit was progress-ively expanded from its early brief to collect data on international drugroutes to include other aspects of transnational crime, including traffickingof people (i.e., illegal immigration).11 Europol was mentioned in ArtK1.1 TEU, but it took a further three years to agree on the Conventionestablishing it which entered into force in October 1998. Europol hassignificantly expanded in size and competence since becoming officiallyfully operational in 1999.12

Principled agreements on the need for pillar III measures, instruments,institutions and policies tend to precede their codification in the treaties.This arises for operational security reasons and should not be construed interms of conspiracy theories of malevolent EU intent. The key legal basesfor action in the field of justice and home affairs to realise the FSJ relate tothe Community field (Title IV, Arts 61-69 EC) on visas, asylum, immig-ration, freedom of movement of persons, judicial co-operation in civil lawand the progressive establishment of the FSJ area (Art 61). These include:internal and external border controls, a list of third countries subject tovisa requirements and the conditions permitting third country nationalsto travel in the EU for no more than three months (Art 62); asylum,immigration, combating illegal immigration (Art 63 and the Protocol tothe EC Treaty on asylum for nationals of the EU’s member states); judicialco-operation in cross-border civil matters, documents, taking evidence,eliminating obstacles to the good functioning of civil proceedings (Art 65);and strengthening administrative co-operation between the member statesand the Commission (Art 66). Member states retain competence for thesematters insofar as the EC has not exercised its competence, and mayin certain areas introduce additional matters compatible with the Treaty(Art 63). This provision is a product of the early steps to expedite theSingle Market by a core group of states (subsequently the Schengen group)

10 OJ C 316, 27/11/95, p. 2.11 Joint Action 96/748/JHA of 16 December 1996 on the basis of Art K3 (TEU)

‘extending the mandate given to the European Drugs Unit’, OJ L 343, 31/12/96, p. 4.12 Council of the EU Doc 9093/1/01 EUROPOL 50 on adopting a Council decision

extending Europol’s mandate to deal with serious international crime listed in the Annexto the Europol Convention (but excluding tax and customs fraud) of 31 July 2001.


who ensured that proposed measures were compatible with EC law (andincluded the Commission in their deliberations). Art 64 stipulates that theTreaty shall not affect member states’ law and order and internal securityresponsibilities.

In an unusual procedure, otherwise subject to unanimity in the Counciland weak consultation of the European Parliament, the member states andthe Commission have shared a right of initiative. From 1 May 2004, thiswill revert to the Commission and will provide for subsequent qualifiedmajority voting and co-decision. The UK and Ireland have special ‘opt-in’provisions (in respect of Schengen), and special provisions for Denmark (apartial opt-in) also exist. Only family law will remain subject to unanimityafter ToN has been implemented. Even then, member states must be unan-imous in defining rules etc. on asylum; attaining integrated, supranationalpolicies which will have direct effect may prove difficult.

Added to this complex arrangement is pillar III (Title VI, Arts 29–45TEU). Pillar III covers police and judicial co-operation in all other areasnot subject to the Community method and its aim is to provide a high levelof safety by common action among the member states and by preventingracism and xenophobia,13 combating crime, in particular terrorism, traf-ficking of people, arms, offences against children, corruption and fraud.14

The TEU and Europol provide for closer co-operation among law enforce-ment agencies (Arts 30–32 TEU) and information exchange among themember states (Art 34 TEU). There is a shared right of initiative andthe legal instruments of a common position, framework decisions and adecision which has binding force but no direct effect; and a conventionwhich must be adopted in line with each state’s constitutional require-ments. While unanimous Council voting remains, consulting the EuropeanParliament is mandatory (Art 39 TEU) and national parliaments have arole in stating their position under this pillar (and pillar I) within sixweeks. The ECJ’s role has been minimal, but that will change once theToN comes into force (assuming Ireland ratifies the treaty). The institu-tional set up is significant because it was based on excluding pillar IIIissues from scrutiny and the legislative input of the European Parliament.This minimised democratic accountability and control, and significantlylimited openness and transparency in this highly sensitive sector. Whileoperational needs may require limited transparency at times, a balancehas to be struck between that and democratic legitimacy. This remains acontroversial issue. The ECJ’s role was also relatively limited and Europol

13 European Commission, DGV, The European Institutions in the fight against racism:selected texts, Brussels, 1997.

14 CONV 69/02 p. 4, Secretariat of the European Convention, Brussels 31 May 2002.

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escapes effective democratic parliamentary scrutiny.15 The difficulty ofsecuring public access to Europol documents proved so intractable thatthe ombudsman set up an own initiative inquiry in April 1999 and success-fully challenged Europol to produce its code on access.16 Even so, majorconcerns remain over the democratic legitimacy of activity in this area.

TERRORISM

The EU’s response to the 11 September 2001 terrorist demolition ofthe World Trade Centre and attack on the Pentagon was more complexand considered than may be initially thought. First, and most obviously,the torrent of speeches and unprecedented three-minute silence acrossEurope reflected immediate humanitarian revulsion and condemnation ofthe attacks. Second, the diplomatic emergency sessions of the Councilindicated the importance of the EU’s crisis mechanisms and the widersignificance member states attached to working together on matters ofsecurity, whether under the umbrella of the common foreign and securitypolicy (CFSP) or of pillars I and III.17 Third, the EU has been increasinglyconcerned with the issue of terrorism over the past year and has taken stepsto improve its ability to contribute to sustaining internal security and torealising the area of freedom, security and justice to which it is committedin the treaties. Fourth, the way in which the member states responded, inusing the EU to progress procedures, instruments and legislation bindingupon them, constituted a major politicisation of the EU and an expansionof competence into ‘criminal law fields’ and implicitly therefore requiresa reassessment of the constitutional basis and deliberations leading to the2004 IGC. Of particular note is the fact that the European Council adoptedterminology which appeared to arrogate to itself a right of legislative initi-ative: it ‘instructed’ rather than ‘requested’ the Commission and Councilto act as indicated, for example, and so increased concern about the futureof EU democratic governance.

There are various elements to this, which are outside the scope of thisarticle. However, to put these measures into context, it is important to recallthat the member states’ first attempts, nearly thirty years ago, to improveco-operation in areas now subject to pillar III, grew out of an endeavour

15 Commission ‘Democratic control of Europol’, COM (2002) 95, 26 February 2002.16 Ombudsman decision of 1 January 1999 closing the own initiative inquiry stipulates

that Art 41 TEU endorses the applicability of Art 195 EC to provision relating to areasunder Title IV TEU (police and judicial co-operation in criminal matters).

17 J. Lodge with V. Flynn, ‘The CFSP after Amsterdam: The Policy Planning and EarlyWarning Unit’, International Relations 14/1 (1998), pp. 7–22.


to combat terrorism. Accordingly, this article briefly examines how thisdeveloped in the EC before examining the more recent measures takensince September 2001.

History of EU Action to Combat Terrorism

Sporadic and ad hoc co-operation had grown among police and lawenforcement agencies in different bodies, including the Council of Europe,over the years. Judicial co-operation began under European Political Co-operation (which was essentially about foreign affairs) from 1973 onwards.It used the encrypted telex network of COREU. From 1976, ad hoc groupswere set up under a group known as Trevi, which was itself set up in 1975to deal with terrorism.18 Real inroads into judicial co-operation were madefrom the time of the Single Act onwards, as awareness of the consequencesof a frontier-free Europe grew. By then, initial disagreement over whetheror not terrorism constituted a political act or a crime had given way tocommon views that it was tantamount to a criminal offence and shouldbe prosecuted as such using the tortuous methods of the Council ofEurope’s Convention on the Suppression of Terrorism.19 It was based onthe principle of ‘extraditing or trying’ terrorist suspects. Difficulties inimplementing this effectively spurred efforts to adopt a European arrestwarrant by the end of 2002.20 By then, a linkage had been made, andattention had switched, to combating illegal immigration.

Following a UK initiative, an Ad Hoc Group on Immigration was estab-lished in 1988 to promote co-operation on terrorism, policing, customs,drugs, immigration and asylum, and legal co-operation. A co-ordinatedwork programme followed in 1989 – the Palma Document – and newstructures were developed subsequently under Title VI, Art K TEU. TheTEU outlined as ‘matters of common interest’ nine policy areas:

• Asylum policy• Controls on crossing the external borders21

18 Trevi is explained variously in terms of the Rome fountain where ministers werephotographed or the French acronym for terrorism, radicalism, extremism and internationalviolence.

19 See EP Working Document 513/76,327/77 rev:PE50.776. J. Lodge, ‘The EuropeanCommunity and terrorism: establishing the principle of extradite or try in J. Lodge (ed.),Terrorism: A challenge to the State (Oxford: Martin Robertson, 1981).

20 Proposal for a Council framework decision of 14 January 2002 on the European Arrestwarrant and the surrender procedures between member states, Doc 5327/02.

21 See Commission Communication to the Council and the European Parliament of 10December 1994 on proposals for crossing the external frontier (Art K TEU) and regulationon third country national visa requirements (Art 100c TEC) Com (93) 684 final, Brussels.

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• Immigration policy in respect of third country nationals• Drugs• Fraud• Judicial co-operation on criminal and civil matters• Customs co-operation• Police co-operation (notably for combating drug trafficking and other

forms of serious crime)• A union wide system for the exchange of information with a European

Police Office (subsequently Europol)

The key goal was defined as being to set up an area of freedom, securityand justice, in which the free movement of persons is assured, in conjunc-tion with appropriate measures with respect to external border controls,immigration, asylum and the prevention and combating of crime. Memberstates remained responsible for maintaining law and order within theirdomestic boundaries and jurisdictions, but subsequent consultation and co-operation among the member states led to measures to foster collaborationin respect of hooliganism and civil disturbances both arising from foot-ball fixtures, other sport and protest demonstrations.22 In April 2002, theCouncil decided that each member state should set up a ‘national footballinformation point’ to exchange information among police, law enforce-ment and security bodies to facilitate, co-ordinate or implement policeco-operation in respect of football matches with an international dimen-sion. This involves accessing personal data on ‘high-risk supporters’.23

In addition, measures have been improved to combat financial fraudthrough the Commission-based European Anti-Fraud Office (OLAF)24

which is responsible for uncovering financial malpractice and seriousfraud in the agricultural sector (e.g., irregularities involving subsidies forflax growing); customs fraud; and the appointment of a European PublicProsecutor.25

For the first time, the ToA conferred on the Community powers andresponsibility for immigration and asylum. After the ToA’s entry into forcein May 1999, asylum and immigration moved from the intergovernmental

22 The 2002 Danish Presidency seems ready to accept ‘civil policing’ by trade unionpersonnel for anti-EU and globalisation protests partly to defuse civilian animosity andpartly owing to police personnel limits.

23 Council Decision (2002/348/JHA) of 25 April 2002 concerning security in connectionwith football matches with an international dimension, adopted pursuant to Title VI TEU,OJ L 121/1, 8 May 2002.

24 See B. Laffan, ‘Financial Control: The Court of Auditors and OLAF’, in J. Petersonand M. Shackleton (eds.), The Institutions of the European Union (Oxford: OUP, 2002),pp. 233–256.

25 Bull 12-2000 pt.1.7.8.


pillar III to supranational pillar I.26 They are subject to Community instru-ments and procedures under Title IV on ‘visas, asylum, immigration andother policies related to the free movement of persons’, including provi-sions aimed at ensuring respect for human rights (Art 7 TEU and Art 13EC) and the EU Charter of Fundamental Rights.27 The European Parlia-ment is especially keen to ensure that in the light of enlargement, themember states and applicants should ensure that the high standards setby a common asylum policy can be attained as quickly as possible by theapplicant countries.28

Art 63(1)(b) (Title IV) of the EC Treaty calls on the Council to adoptby 1 May 2004, ‘minimum standards’ inter alia for the qualification ofthird country nationals as refugees and for procedures for granting andwithdrawing refugee status. The European Council meeting in Tamperestated: ‘in the longer term, Community rules should lead to a commonasylum procedure and a uniform status for those who are granted asylumvalid throughout the Union’. This and the Plan of Action adopted by theVienna European Council in 1998 formed the basis of a common policy.

The ToA divided the original pillar III into three main areas:

1. A new title ‘Free Movement of Persons, Asylum and Immigration’is eventually to be subject to Pillar I decision rules (that is thenormal decision-making procedures which produce binding legislationdecided upon and subject to oversight by the European Parliament, andthe ECJ). It therefore falls under the EU’s supranational competence.This is logical given its close connection with the Four Freedoms ofthe Single Market.29

2. A revamped pillar III which provides for police and judicial co-operation in criminal matters.

3. A protocol to incorporate the Schengen Agreement30 acquis into thenew Treaty.

26 On decision-making structures see J. Monar, ‘Institutionalizing Freedom, Securityand Justice’, in J. Peterson and M. Shackleton (eds.), The Institutions of the EuropeanUnion (Oxford: OUP, 2002), pp. 186–209.

27 Charter of Fundamental Rights of the European Union, OJ C 364/01 of 18 December2000.

28 EP Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Provi-sional Report 2001/2048 (COS) of 28 June 2001, p. 10.

29 V. Flynn, ‘The Treaty of Amsterdam and the implication on free movement of personsand internal security’, Intersec, January 1998, pp. 18–20.

30 House of Lords, Select Committee on the European Communities, Incorporatingthe Schengen Acquis into the European Union, 31st Report, Session 1997–98 (London:HMSO, 1998). Council of the European Union, 1998 Annual Report on the Implementationof the Schengen Convention, Brussels, 1999.

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Even the ToN amendments do not adequately deal with some of themost contentious problems in respect of openness. But they do permitthe extension of what might loosely be called the Schengen experienceof enhanced co-operation among a core group of states (which is essen-tially how pillar III grew out of Schengen31). Integration will follow andfacilitate ‘common action on judicial co-operation in criminal matters’.However, efforts to examine potentially difficult policy areas were steppedup following the fall of the Berlin wall, German re-unification, the war inYugoslavia and the disintegration of the East European bloc. In 1990, forexample, the Commission had reports drawn up by experts on immigrationpolicies and the social integration of migrants which subsequently fed intothe development of policy in these areas.32 These were supplemented bythe statistical data collated by the EU’s Centre for Information, Discussionand Exchange on the Crossing of Frontiers and Immigration (CIREFI).

Extradition was and remains problematic but many of the difficultiesencountered then in promoting judicial co-operation have helped toclarify and encourage means of making judicial co-operation today moreeffective. Thus, for example, in the 1970s, there was concern over differentinterpretations of terrorism: for some states, this represented a legitimatepolitical act of opposition; for others terrorism was synonymous withcrime and was to be prosecuted as such. Much effort went into sortingout definitional problems and the logistical implications for judicial andpolice co-operation of implementing any agreement. While work initiallyrelated to problems of extradition in respect of terrorist offences, it soonmoved into areas that now inform policy relating to migrants. None ofthis has been easy or straightforward. It took, for example, many yearsto agree on a list of so-called safe third countries and safe countries oforigin after sensitive discussions on measures to combat terrorism, by iden-tifying states which provided either safe harbours or training grounds forwould-be terrorists.

31 The Schengen Agreement was signed in 1985 in the village of Schengen, on theborders of Luxembourg, France and Germany. Its purpose was to remove all controls atinternal land, sea and airport frontiers but to maintain internal security using a variety ofmeasures, including co-ordination of visa controls at the external borders of the MemberStates through a common approach to visa policies and asylum procedures. Italy andGreece signed up in 1990 and 1992 respectively but have still to complete the physicalpreparations needed for the strengthening of security controls at external borders. TheSchengen acquis consists of the original agreement and a convention, accession proto-cols and agreements. The Schengen Convention was signed in June 1990 (by Belgium,Germany, France, Luxembourg and the Netherlands) implementing the Agreement on thegradual abolition of checks at their common borders signed at Schengen in 1985 withrelated Final Act and common declarations.

32 SEC (90)1813 final, 28 September 1990.


The EU’s interest in combating international crime grew out of ad hocattempts to promote bilateral co-operation between member states in the1970s, notably in respect of combating international terrorism. Art 29 TEUspecifically refers to terrorism as a serious form of crime to be combatedat EU level by common action in police and judicial co-operation in crim-inal matters and the approximation, where necessary, of rules on criminalmatters in the member states. Initially, the EU focused on operationalissues and juridical matters. The Amsterdam and Nice treaties reiteratethese issues. Art 31(e) TEU empowers the EU to adopt measures onminimum rules relating to the constituent elements of criminal acts andto penalties in the fields of organised crime, terrorism and illicit drugtrafficking.33

THE EU RESPONSE IN SEPTEMBER 2001

Within two weeks of the attack on the United States, the EU headsof state and government, which convened in an emergency summit on22 September 2001, were faced with 37 proposed measures to combatterrorism, some of which had been on the table for over two years. Manyreflected much earlier concerns about the operational capacity of the EUto deal with external threats. Several significantly augmented the memberstates’ collective and EU’s competencies. The EU’s immediate responsereflected principles that have conditioned all EU subsequent action andstatements. In this respect, the EU has behaved in much the same way asgovernments do in times of crisis: policy options tend to be compressedearly on and little deviation from them ensues until resolution is assured.

The EU responded both in its own right and through the separate officesof each of the member states. Meetings were speedily convened and thevarious extraordinary councils all worked to an agenda that inevitablyimplied that a far deeper level of integration among the 15 was acceptableand necessary. The extra-ordinary summit itself reviewed the work of thevarious different EU bodies in order to respond politically and concretely,by planning measures to strengthen the common fight against terrorism.These included: the General Affairs Council on 12 September, attendedby the NATO General Secretary Lord Robertson;34 the informal Trans-

33 Arie OOSTLANDER (EPP-ED, NL) Report on the Commission proposal with a viewto the adoption of a Council framework decision laying down minimum provisions on theconstituent elements of criminal acts and penalties in the field of illicit drug trafficking(COM (2001) 259 – C5-0359/2001 – 2001/0114 (CNS)) Doc A5-0460/2001, of 5 February2002.

34 Agence Europe 13 September 2001, p. 14.

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port Council on 14 September; the changed agenda of the Justice andHome Affairs Council (JHAC) on 20 September, focusing on combatingterrorism; and the informal ECOFIN Council starting in Liege on 21September. EU support for the US was tempered by strong signals to see aproportionate, targeted and well-thought-out military response as but oneweapon in a multifaceted arsenal whose resources had to be deployed toencourage peace in the Middle East and to ensure that terrorism and Islamwere not conflated. Governments, EU institutions and Non-GovernmentalOrganisations (NGOs) – including the European Federalists, and EuropeanConference of Bishops – reiterated this throughout.

On 14 September the EU issued a declaration affirming the intentionof the Fifteen to: develop a common foreign and security policy (CFSP)to enable the EU to speak with a single voice; facilitate the operationalisa-tion ‘as soon as possible’ of the foreseen European security and defencepolicy (Esdp); accelerate the creation of a common legal area; and promoteinternational action to create a sustainable counter-terrorist network at theinternational level which would leave no hiding place for the perpetrators,trainers and harbourers of terrorists. The text stated that those who bearthe responsibility for aiding, supporting and harbouring the perpetrators,organisers and commissioners of these acts will have to answer for them.That this was not mere rhetoric was borne out by the speed with whichthe relevant EU institutions responded in trying to secure the adoption ofappropriate measures, some of which had been envisaged for many years.

The Commission presented its proposal on a uniform definition ofterrorism, essential to implement the proposed European arrest warrant,and the Council approved the Commission’s proposal within days, on 21September.35 Parliament and the Council opened discussions to resolvetheir technical differences over the plan aimed at strengthening the fightagainst money laundering (European intervention was limited to thecontrol of money gained from drug trafficking, but was extended to alloffences of organised crime, including bio-terrorism). The control ofillegal or dubious financial transactions was placed on the agenda of theinformal EcoFin Council meeting in Liege. An extra-ordinary summitwas convened to discuss the actions of the different specialised Councils.In the European Council the traditional letter of the President (BelgianPrime Minister Guy Verhofstadt) canvassed ideas for discussion at thesummit on the consequences of the attacks on the United States.36 Thisformed the basis of subsequent EU discussions of the Council’s Strategic

35 Assemblee Nationale, Delegation pour L’Union Europeenne sur la lutte contre leterrorism, rapporteur A. Barrau, No. 3501, 20 December 2001, pp. 17ff.

36 Agence Europe 20 September 2001.


Committee on Immigration, Frontiers and Asylum meeting with the US inOctober 2001.37 The EU confirmed solidarity with the USA; signalled toEU citizens the need to develop and establish a genuine, sustainable, globalEuropean policy to combat terrorism covering the political, diplomatic,economic, financial and transport aspects of the problems; expedited thereinforcement of operational measures by EU governments to strengthensecurity and to protect citizens; and gave re-assurances to the markets,issued also by the European Central Bank.38 Commission President Prodisubmitted to the EU Heads of State and Government a series of urgentmeasures to accelerate implementation and strengthening of operationalCFSP and JHA instruments. These included: establishing a mechanismfor the short-term joint assessment of threats; updating regularly a list ofterrorism organisations compiled by police forces in the member states; aframework decision for penalties on terrorist activities (both adopted by7 December 2001); and providing Europol with the means to co-operateclosely with the United States and other key partners, including Russia.

These seemingly innocuous phrases implied a good deal. ChancellorSchroder had already hinted at the desirability of ‘appropriate information(that is intelligence) exchange’. To operationalise this, however, meantthat the EU needed to be far more open towards its own citizens as tointelligence-sharing operations and activities within the member states,as well as with the US. The Echelon system was, for example, contro-versial39 (see below). Moreover, although the possibility of transforminginformation-sharing into operational capabilities had been signalled in theTEU and the Tampere European Council conclusions, actual participa-tion by intelligence services in operational actions in a support capacitywas now a reality. The Task Force of Police Commissioners (agreed atTampere) and EU-US negotiations over a sensitive and contentious bilat-eral co-operation agreement between Europol and the US were expedited.The US and EU member governments also differed in their interpret-ation of how to balance the need to heighten operational capabilitiesto combat terrorism (including cyber-terrorism) and organised interna-tional crime with maintenance of civil liberties while bolstering provisionson information storage, retrieval, and accessibility. If the EU assumed

37 Council of the EU Doc. ASIM21/13803/01 of 12 November 2001.38 Agence Europe 20 September 2001 reported that in an interview in the German

business magazine Capital Eurogroup President Didier Reynders suggested creating a“European economic government” to counterbalance the European Central Bank (ECB).The Belgian Finance Minister said that the Eurogroup might retain its informal nature untilenlargement when it would have to be replaced.

39 See report by the EP’s Temporary Committee on the Echelon interception systemadopted on 5 September 2001 by 376 to 159 votes with 39 abstentions, Doc. A5-0264/2001.

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responsibility for identifying complementary measures and proposedCommission action in this sphere, the expansion of EU competencewould be implicitly endorsed. At the same time, however, it would meanexpediting measures to promote co-operation with intelligence servicesto ensure coherence over instruments, including banking directives, tocombat money-laundering.40 Equally controversial was a scheme to facil-itate trans-Atlantic legal assistance, notably over extradition requests. Thiswas tested when the US apprehended EU nationals as terrorist suspectsin Afghanistan. The EU had consistently refused to extradite suspects whomight face the death penalty41 under US law, and by early 2002 were facedwith the task of securing their repatriation to EU territory. Disquiet over thenotion of trial by US military Commissions which do not conform to theEuropean Convention on Human Rights led to calls for either a Lockerbie-type court, as brokered by the UN, or an ad hoc tribunal established by theUN Security Council under Chapter VII powers.

Commissioner Patten called for international action through other inter-national bodies, such as the UN, G8, Council of Europe and NGOS, toco-operate in combating terrorism in order to “ ‘destroy the terrorists’hiding places, starve them out and penetrate and destroy their networks,but without forgetting to deal with the breeding ground that nurtures ‘menof violence and hate’, that is to say, the ‘divisions and inequalities of thisworld”.42 Specifically, the Commission advocated action with the US topersuade countries to support the Convention against money-launderingand eleven other UN anti-terrorism conventions with a view to height-ening international action against terrorism and ensuring coherence in therange of instruments at the disposal of the international community. Theseincluded: ‘a follow-up to the Convention on light weapons (includingon the places of sales and destination of these weapons), that coulddevelop into international action’; measures to deter the proliferation ofdual purpose products and technologies; stepping-up joint EU, bilateraland multilateral action in the field; enhancing resources to combat illegal

40 See the Opinion of Advocate General Philippe LEGER delivered on 23 April 2002Case C-153/00 On Criminal proceedings against Paul der Weduwe (Reference for apreliminary ruling from the investigating judge at the Rechtbank van eerste aanleg teTurnhout (Belgium)) (This relates to Art 234 EC – Freedom to provide services – Nationalrules imposing an obligation of professional secrecy on persons engaged in professionalactivities in the banking sector – Reference for a preliminary ruling to determine whetherlegislation of another Member State is compatible with Community law – Serious disputeas to the content of relevant legal provisions – Inadmissibility. Eur-Lex.

41 Turkey’s retention of the penalty continues to bedevilled its bid for EU membership.42 Agence Europe 20 September 2001.


production and trafficking in drugs43 and so deny terrorists access to thissource of revenue; and examining the implementation of the EU’s emer-gent penal policy through heightening and checking the effectiveness ofcontrols on entries and visas. All EU institutions adopted a thoughtfuland concerted response and largely fell back on existing agreements andinstruments.

REINFORCING OPERATIONAL CAPACITY

The need to strengthen the EU’s operational capacity to counter terrorismand associated criminal activity had long been recognised. The EU hadbut rudimentary and not much tested-competence in the area of internalsecurity. While attention had switched to securing the ‘internal securityacquis’ in preparation for enlargement to European states with some-what unpredictable and sometimes corrupt, untrustworthy law enforce-ment agencies, implementing measures – such as Europol, a Euro-arrestwarrant,44 judicial co-operation, and so on – had faltered.

By September 2001, the adoption and implementation of many items inthe pipeline was accelerated following decisions of the extraordinary meet-ings convened in its aftermath and especially in the light of the Septemberdecisions of the Extraordinary Justice and Home Affairs Council meeting.It endorsed stronger EU-US co-operation, and the Commission’s dual aimof harmonising instruments to combat terrorism and introduce the Euroarrest warrant. It supported the Belgian Presidency’s aims to enhancejudicial co-operation (rapidly convening meetings of judges, magistratesand the police giving the public a common sense of justice), intelligencesurveillance, co-operation over the issuing of visas, tighter external bordercontrols and co-operation between (sometimes mutually suspicious andcompetitive) national forces and Europol and Eurojust, and the expeditionof a Euro arrest warrant as an alternative to tortuous extradition procedures.Interestingly, Germany complained that operational matters had taken backseat to legislative issues and advocated action on adopting the proposalfor a framework decision to be extended to terrorist activities for freezingassets, avoiding the problem of double incrimination, improving intelli-gence, border controls and a common visa policy. Europol’s (German)

43 N. Dorn, J. Jepsen and E. Savona, European Drug Policies and Enforcement (London:Macmillan, 1996).

44 Graham WATSON (ELDR, SouthWest) Report on: 1. the proposal for a Councilframework decision on combating terrorism (14845/1/01 – C5-0680/2001 – 2001/0217(CNS)); 2. the proposal for a Council framework decision on the European arrest warrantand the surrender procedures between the Member States(14867/1/01 – C5-0675/2001 –2001/0215 (CNS)); Doc. A5-0003/2002, February 2002.

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head, Jorgen Storbeck was charged with reporting on the transmissionof information by police by the next (December) JHA meeting. AnotherGerman, Kammerhof, took over command of the EU Rapid ReactionForce.45

The Council conclusions stressed that the gravity of the Septemberattacks had accelerated the creation of an area of freedom, security andjustice and intensified co-operation, particularly with the US and applicantmembers. They also agreed on the need for co-ordination to re-establishinternal EU border controls in the case of terrorist threat of exceptionalgravity, a possibility set out in the Schengen agreements; and to urgentlyexamine the implications of an anticipated flow of refugees from Afgh-anistan and surrounding areas in the event of US military retaliation and tosee whether provisionally the Council’s directive for temporary protectioncould be applied.

What is interesting, is the readiness with which governments tradition-ally hostile to any integrative measures that might compromise nationalautonomy, supported measures whose implementation would necessarilycurtail it. This was marked in respect of military matters but also clearfrom statements by other ministers. British Home Affairs Minister Blun-kett called for an urgent report to be submitted to the December LaekenEuropean Council and Daniel Vaillant, French Minister of the Interior,insisted on a strengthened role for Europol stating: “all Member Stateswithout exception undertake to pass on relevant information to Europol”,and on the constitution within Europol of a group of specialists on thefight against terrorism (an idea mirrored in the Council of Europe wherein November 2001, the Committee of ministers set up a Multidiscip-linary Group on international action against terrorism (GMT) which metin December 2001 and set up two working parties – GMT-REV – toreview the operation of existing Council of Europe instruments to combatterrorism, including the 1977 European Convention on the Suppression ofTerrorism; and GMT-Rap on additional measures).

However, some EU states preferred an intergovernmental option: paral-lelism between the Council of Europe and the EU provided a meansto facilitate wider co-operation. Others were internally divided over theexpansion of the EU’s competence since Art 29 TEU objectives allowbroad interpretation and EU and member state competence in respect

45 The European rapid reaction force may not be operational by its scheduled datein 2003, due to shortfalls in capabilities, ranging from transport to combating nuclear,biological and chemical threats. The European Capabilities Action Plan (ECAP) notes thatmember states have met 104 of 144 capability targets. The EU also needs Nato assets, butGreece blocked an agreement giving Turkey consultation rights. See euobserver.com 28June 2002.


of criminal law matters is opaque. Intuitively, it may be supposed thatEU action would require a trans-European dimension to be present inthe transnational crime being prosecuted or the consequences of suchaction. But because the instruments for pillar III action derive largely frompillar II CFSP practice, they are not sufficiently robust to sustain the FSJ.A series of Council framework decisions followed in 2002 designed toensure that prosecuted terrorists were punished by ‘custodial sentencesheavier than those imposable under national law . . . . save where thesentences imposable are already the maximum possible under nationallaw’.46

In general EU member states supported wider regional co-operation,ratification of relevant international agreements and UN Conventions, newinitiatives in the Middle East and clear distinction between EU and USpolicy. The differential membership between the EU and NATO meant thatEU members rather than the EU itself were allied to the US. However,at an in camera joint meeting between the European Parliament’s andthe national parliaments’ committees on Foreign Affairs and Defence, theconcept of the EU as a non-aligned ally was coined to imply mutual influ-ence and information. It was argued that Art 5 of the Atlantic Alliancementioned assistance and support, but not necessarily war. Art 5 of theWashington Treaty implied total solidarity between NATO members, butaccording to the President of the Belgian Senate Armand de Decker alsoimplied equal solidarity between its members.47 NATO General SecretaryLord Robertson’s criticism of EU member states’ unwillingness to increasetheir defence spending to enable them to realise robust measures usingmilitary capabilities highlighted the gap between the rhetoric and actualcapacity to meet fast-rising expectations of the EU which far exceeded itslegal competence, resources and decision-making structures.

The member states’ insistence on their different perspective to thatof the US continues to be reflected in arguments over a range of instru-ments to give effect to the basic decisions taken at that time. However,this cannot mask the extent of discreet co-operation on key issues withUS agencies, including the FBI across a spectrum of terrorism, police co-operation and security related issues. Given the slowness in implementingdecisions that depend on the ToN’s ratification (such as those on Europol’sdirect involvement in joint investigations in an operational as opposed topurely intelligence analysis capacity) the JHA Council has made political

46 Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA) Art 5(2), OJ L 164/3, 22 June 2002.

47 Agence Europe 19 September 2001.

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agreements which condone an expansion in operational capabilities notsubject to appropriate democratic scrutiny.48

Measures to combat terrorism and international organised crime havebeen adopted on a piecemeal basis, often in response to particularproblems. These include action to deal with football hooliganism, anti-globalisation and rock concert demonstrators and surveillance activities toexchange information,49 intercept electronic communications and upgradethe Schengen Information System (SIS) linking police and immigrationforces (which Ireland only joined in 2002, and to which Europol has beengranted access with a right to amend and add to information stored there).50

Each element seems to be discrete but each has become part of a widerpackage of instruments designed to enhance the EU’s ability to combatinternational criminal activity with a view to realising a zone of freedom,security and justice in an enlarging EU. Member governments have ditchedthe security taboo and acknowledged the obvious inseparability of internaland external security matters.

The extraordinary European Council of 21 September 2001 decidedon an inter-disciplinary approach to combating terrorism. This meantthat the traditional compartmentalisation would give away to a co-ordinated approach cutting across the usual divisions. Accordingly, itembraces developments under the Common Foreign and Security Policy(Amsterdam treaty) and the operationalisation of the European Securityand Defence Policy (ESDP) under the Nice treaty, even in advance of itsfull ratification by all the member states. The Seville European Councilnoted Ireland’s position in view of its impending referendum.

In February 2001, the first European Conference on terrorism wasorganised by Europol and the Spanish Ministry of the Interior. Thisresulted in a document called the Madrid document which has been seenas the Europol guide to combating terrorism. It includes proposals to:

• support the initiative between Spain, Portugal and Greece on settingup a joint investigation team into ‘anarchist terrorism’. It is believedthat this is in part a response to the anti-globalisation demonstrationsin Prague (concurrent with the Madrid conference).

• create a database on the most wanted terrorists, and support for aproactive search for them;

48 The JHA April 2002 Council condoned Europol participation in joint investigationteams.

49 See Joint Action 97/339/JHA of 26 May 1997 with regard to co-operation on law andorder and security OJ L 147, 5 June 1997, pp. 1–2.

50 Irish Times, 17 February 2002.


• fund those in Central and Eastern Europe who provide information onterrorists, subject to the approval of Europol’s Executive Committee;

• mutually recognise member states’ anti-terrorism legislation;• implement interrogation commissions, swiftly and effectively;• simplify extradition processes;• carry out a feasibility study for the creation of a Euro-Order (on

search and apprehension of criminal suspects).

It is significant that much of the progress on Europol and EU steps tooperationalise the technical aspects of the zone of freedom, security andjustice relate to Europol and its activities, and initiatives by Spain. InNovember 2000, Interpol elected a Spaniard as its president. Interpol, with178 members, exchanges information on international crime and a jointcommission now exists comprising officers from Interpol and Europol.

There has been growing controversy over the matter of access to docu-ments and to data storage and retrieval under both the EU in general andEuropol in particular. EU proposals for data retention (for periods for 12months initially to combat cyber-crime)51 for law enforcement purposesand the surveillance of telecommunications gave rise to concern amongpublic and civil liberty organisations as well as the EU Commission. InJune 2001, the EU Commission, many MEPs and the EU’s Data ProtectionWorking Party opposed the initiative to retain such data which was stronglysupported by the UK. The EU divided over the issue with the UK, Belgiumand Sweden supporting law enforcement demands, and the Netherlands,Italy and Greece opposing them.

Interception of internet activity:52 the adoption of a new directiveto permit authorities to intercept civilian internet messages and activitywas justified on the grounds of combating money laundering, illicittrade in goods and substances, trafficking of human beings, and counter-terrorism.53 While the EU had broadly agreed the need to combat inter-national organised crime a few years earlier,54 implementing measureswere slow to surface. Proposals on exchanging and developing electronic

51 Common Position on the basis of Art 34 TEU on negotiations relating to the draftconvention on Cyber Crime held in the Council of Europe and adopted on 27 May 1999,OJ L 142, 5 June 1999, pp. 1–2.

52 On data retention see http://www.epic.org/privacy/intl/data_retention.html.53 Directive 97/66/EC of the European Parliament and of the Council of 15 December

1977 on the processing of personal data and the protection of privacy in the telecomssector OJ L 024 of 30 January 1998, pp. 1–8; and its successor COM (2000) 385 final –C5-0439/2000 – 2000/0189 (CPD) in OJ C 365 E, 19 December 2000, pp. 223–229.

54 Council Resolution of 21 Dec 1998 on the prevention of organised crime with refer-ence to the establishment of a comprehensive strategy for combating it, OJ L 408, 29December 1998, pp. 1–2.

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surveillance fuelled suspicion of pressure from the USA. In some countriesthere was little public opposition (or awareness) of what was proposed. Inothers, before the adoption of the Telecommunications directive, 40 civilliberties organisations from the fifteen member states made representationsto MEPs to limit its reach and to secure their support against generaldata retention of communications by law enforcement authorities.55 TheEP’s Committee on Citizens’ Freedoms and Rights, Justice and HomeAffairs cautioned against too broad a remit for this directive56 and initiallyaccepted the idea of data being retained by net providers for access by lawenforcement agencies, providing such measures were exceptional, ‘neces-sary, appropriate, and proportionate and temporary . . . within a democraticsociety to safeguard national security, defence, public security, the preven-tion, investigation, detection and prosecution of criminal offences or ofunauthorised use of the electronic communication system as referred to inArt 13(1) of Directive 95/46/EC.’57

The amendment subsequently accepted by MEPs accepted surveillanceand access to such material by customs, police, immigration and internalsecurity services.

It was clear by May 2001 that the issues relating to the collation of suchelectronic data, its storage and access to it were becoming increasinglyproblematic. Access in pursuit of operations to combat crime inevit-ably implied law enforcement operations and there was concern thatdiversity among the member states and others in this crucial respect coulderode fundamental rights. The European Parliament had also set up atemporary committee on the ECHELON Interception System and it, too,had cautioned that compliance with fundamental rights was contingent onadequate monitoring systems and guarantees against abuse. It stressed thatdata collection and action to apprehend criminals must be conducted bylocal national agencies and not, for example, by the USA whose surveil-

55 For details see Statewatch News Online, 28 May 2002.56 PE311.019/20-37 (of 10 April 2002) on www.europarl.eu.int and the draft recom-

mendation for a second reading on the Council common position for adopting a EuropeanParliament and Council directive on the processing of personal data and the protectionof privacy in the electronic communications sector: 12 March 2002 PE 311.019; and theCommunication from the Commission to the EP pursuant to second subparagraph 251(2)of the directive SEC/2002/0124 fin-COD2000/0189.

57 The Committee insisted: These measures shall be entirely exceptional and based on aspecific law which is comprehensible to the general public, and shall be authorised by thejudicial or other competent authorities on a case-by-case basis. Under the Convention onHuman Rights and the EU Charter of Fundamental Rights and pursuant to rulings issuedby the European Court of Human Rights, any form of widespread general or exploratoryelectronic surveillance is prohibited’ EP report (Marco Cappato, rapporteur) Statewatch,28 May 2002.


lance operations on European territory would have to be subject to localnational control bodies to safeguard fundamental rights. The measuresshall be entirely exceptional and based on specific principles of open,transparent, democratically accountable government. Statewatch reportedthat member states wanted to seek standardisation or harmonisation oflegislation, at least in respect of basic legal principles because the 1989Recommendation of the Council of Europe (which inspires much nationallegislation) is not binding. But if the Council of Europe’s draft Conventionwas to be ratified and implemented, the EU could accede ex officio tothis criminal law convention to combat cyber-crime.58 This issue high-lighted not only the sensitivity over the question of ensuring adequatetransparency, and respect of individual privacy (since the storage of infor-mation was linked to abolishing the anonymity of users) but also fearsas to the potential abuse of such fundamental liberties and human rights.After the confrontation between police and protesters in Gothenburg, someEuropean governments backed a call for new public order legislation atnational and EU level, and increased international co-operation. The G8Conference on High-Tech Crime in May 2001 in Tokyo dealt with similarissues under recommendations on international user requirements.

At the heart of this disagreement lie concerns over the inadequacy ofinstitutional arrangements to protect and sustain the EU’s commitment touphold and strengthen democratic controls. Moreover, seemingly anodyneagreements to collate, analyse, store and exchange data imply a greatdeal more than merely creating an information depository. There is littlepoint in such an exercise if the information cannot be used for justifiableoperational purposes. While the EU had moved towards the creation ofa directory of specialised counter-terrorist competences to facilitate co-operation,59 the civil liberties implications were weakly acknowledged.Given that data storage, moreover, had historically led to strengthening ofEuropol, information collection and exchange inevitably signalled furtherexpansion of Europol’s potential even prior to the ratification of theconvention establishing it. The implication is that as Europol’s operationalremit expands, so will arrangements to heighten public awareness andreinforce democratic controls.

58 Statewatch News, 5/2001 <www.statewatch.rog/soseurope.htm>. This has the text ofthe draft Council of Europe Convention on Cyber crime.

59 Joint Action of 15 Oct 1996 on the basis of Art K3 TEU on ‘the creation and mainte-nance of a Directory of specialised counter-terrorist competences, skills and expertiseto facilitate counter-terrorist co-operation between the member states of the EU’, OJ L272, 25 October 1996, pp. 1–2; and 96/474/jha Joint Action of 29 November 1996 for asimilar directory ‘in the fight against international organised crime, in order to facilitate lawenforcement co-operation between the member states of the EU’, OJ L 342, 31 December1996, pp. 2–3.

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It must also be recognised that much of the data being collated toucheson immigration. It will supplement existing Eurodac and SIS arrange-ments. It is therefore especially sensitive and links into the objective ofimproving measures to: combat international organised crime (includingtrafficking in human beings); foster peer assessment of national anti-terrorist arrangements; and establish a mechanism to enable member statesto evaluate ‘on a basis of equality and mutual confidence, their nationallegal provisions designed to fight against terrorism, as well as their imple-mentation’.60 More obviously, it links up with action to develop a commonimmigration and asylum policy which was also a high priority of the 2002Spanish Presidency.

ILLEGAL IMMIGRATION AND ASYLUM

Given the EU’s initially very limited competence in respect of the move-ment of people, and the way in which member states’ external policies(for example towards former colonies) has conditioned national measureson immigration, the fact that the EU has shifted towards implementinga common approach, is significant. It is not simply the product of theinflux of migrants and trafficking in human beings from Central andEastern Europe and the Balkans, but also conditioned by other extraneouspressures – combating terrorism and international organised crime, thedevelopment of the European Foreign Security and Defence policy, andincreasing co-operation among domestic police and law authorities. Theneed for synergistic policies has become more pronounced and fuelsdeeper collaboration in these sensitive areas regardless of actual EU legalcompetence. Yet, work on immigration has been going on for a long time,both under the aegis of the Schengen group and outside it. In October 1986an Ad Hoc group on Immigration was set up. In April 1987 it proposedsanctions against airlines bringing in undocumented asylum seekers whilerespecting the Geneva Convention principle of non-refoulement (i.e., notsending such people back to possible persecution). It produced in 1990a draft convention (subsequently the Dublin Convention61 signed in June1990) to prevent multiple asylum applications and in 1991 one on harmon-ising border controls, fingerprinting asylum-seekers (Eurodac), and a range

60 Preparatory Act pursuant to Title VI TEU at the initiative of Spain to establish amechanism for evaluation national legal provisions relating to the fight against terrorismand their implementation, OJ C 151/14 of 25 June 2002.

61 This Convention Determining the State responsible for Examining applications forasylum lodged in one of the member states of the European Communities was taken fromchapter 7 of the Supplementary Schengen Agreement signed at the same time. For detailssee T. Bunyan (ed.), Statewatching the new Europe (Nottingham: Statewatch, 1993).


of other asylum issues. A centre for information, discussion and exchangeon asylum (CIREA) was set up with Council approval under its auspicesat the end of 1991. A European Migration Observatory was also probedunder the ODYSSEUS programme.

Immigration and asylum measures remain controversial and sensitive,subject to national discretion within very broad EU statements of commonstandards and to differential application by individual member states,regardless of EU rhetoric.62 It is impossible to disaggregate them fromthe wider issue of border control around the EU’s external, leaky andvulnerable external perimeter, especially to the east. It is easy to call fora common, even a single, EU policy but securing agreement on one andrendering it subject in all its dimensions to supranational legislative proce-dures remains fraught. The inter-linkage between these areas and broadexternal security issues is underlined by the establishment, as proposedat Tampere in 1999, of a ‘scoreboard’ to ‘keep under constant reviewprogress made towards implementing the necessary measures and meetingthe deadlines’ set by the ToA and Tampere for the creation of an area offreedom, security and justice.63

Immigration and asylum issues fall under pillar I. They are subject toCommunity instruments and procedures under Title IV on visas, asylum,immigration and other policies related to the free movement of personsof the EC Treaty.64 Art 63(1)(b) EC calls on the Council to adopt byMay 2004 ‘minimum standards’ inter alia for the qualification of thirdcountry nationals as refugees and for procedures to grant or withdrawrefugee status.65 The Tampere European Council stated, more ambitiouslythat (a) ‘in the longer term, Community rules should lead to a commonasylum procedure and uniform status for those who are granted asylumvalid throughout the Union’; and (b) that the EU must be committed to a

62 D. O’Keeffe, ‘The emergence of a European Immigration Policy’, European LawReview 20 (1995) pp. 20–36.

63 Commission ‘Scoreboard to review progress on the creation of an area of freedom,security and justice in the European Union’, COM (2000)167, 24 March 2000.

64 D. McGuinness and E. Barrington, ‘Immigration, visa and border controls in theEuropean Union’, in G. Barrett (ed.), Justice Co-operation in the European Union (DublinInstitute of European Affairs, Dublin: 1997).

65 Baroness Sarah LUDFORD (ELDR, London)Report on the proposal for a CouncilDirective concerning the status of third-country nationals who are long-term resi-dents(COM (2001) 127 – C5-0250/2001 – 2001/0074 (CNS)) Doc. A5-0436/2001; andMargot KESSLER (PES, D) Report on the proposal for a Council regulation on the condi-tions in which third-country nationals shall have the freedom to travel in the territory of theMember States for periods not exceeding three months, introducing a specific travel author-isation and determining the conditions of entry and movement for periods not exceedingsix months (COM (2001) 388 – C5-0350/2001 – 2001/0155 (CNS)) Doc.A5-0455/2001.

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‘full and inclusive’ interpretation of the Geneva Convention and so protectand complement the international regime for the protection of refugees.The EU has created a European Fund for refugees and has adopted the EUCharter of Fundamental Rights and is committed to ensuring respect forhuman rights (Art 7 TEU and Art 13 EC).66 The ToA is seen to provide asound basis for EU action to protect refugees67 but the Laeken Council wasdissatisfied with slow progress on a common policy. However, the rise inlegal and especially illegal immigration – coupled with rising xenophobiain some member states – increased pressure on national governments tocontrol immigration. Enlargement alone is expected to result in an extra 5million migrants from Eastern and Central Europe.68

For over a decade, the Commission reported on patterns of immigrationand more recently responded to very specific requests from the membergovernments to draft specific instruments for a Common European AsylumArea (CEAA). The Commission advocated a more flexible and trans-parent approach based on the Treaty of Amsterdam, the Tampere EuropeanCouncil conclusions and the Plan of Action adopted by the ViennaEuropean Council in 1998. The policy proposed had three key elementsgeared towards establishing the area of FSJ:

i) guaranteeing fair treatment of third-country national residing legallyin the EU and giving them comparable rights and obligations to EUcitizens;

ii) the management and regulation of migration to inhibit illegal immig-ration and trafficking in human beings

iii) exchange of information among member states on the numbers ofmigrants and labour market.

Since Art 63 EC cannot serve as a legal base for the regulation of migratoryflows (which remains the prerogative of the member states), there is acontradiction between the Tampere Council and Art 63.69 Consequently,

66 C. Engel, The Charter of Fundamental Rights (Max-Planck Institute, Bonn 2001/2).67 EP Committee of Citizens’ Freedoms, Rights, Justice and Home Affairs Draft Report

on the Commission communication entitled ‘Towards a common asylum procedure anda uniform status, valid throughout the Union, for persons granted asylum’ (COM (2000)755- C5-0101/2001-2001/2048 (COS)) Rapporteur R. Evans, 28 June 2001, PE 302.263.

68 Report of the German Migration Council reported in the Guardian, 27 June 2002 notesPoland’s agreement with the EU that Poles will not be allowed to work in other EU statesuntil 5–7 years after accession.

69 See EO Committee on Legal Affairs and the Internal Market Opinion for the Com-mittee on Citizens’ Freedoms and Rights, Justice and Home Affairs on the Communicationfrom the Commission to the Council and the European Parliament on a Community Immig-ration policy (COM (2000)757-C5-0100/01-2001/2047 (COS)) draftsman M. MedinaOrtega, 26 June 2001, PE 294.960.


a common policy can only emerge if there is treaty reform. This explainswhy there has been a flurry of activity to prepare the way for suchreform using soft law instruments, exploiting Joint actions agreed in 1996-98 on police, customs and law enforcement agencies in combating drugtrafficking, transit route abuses that focused on custom controls.70

European Council Declarations Leading up to the June 2002 SevilleEuropean Council

In September 2000, the Commission issued a proposal on minimum stand-ards for the treatment of asylum seekers and refugees. It was modifiedafter the Laeken European Council of December 2001. In response toEuropean Council pressure, in April 2002, the JHA Council reached polit-ical agreement on a directive on minimum standards for the reception ofasylum seekers to be implemented within two years of its adoption. InJune 2002, the Commission adopted a modified proposal for a Councildirective on minimum standards on procedures for granting and with-drawing refugee status, and in respect of basic minimum standards for howasylum seekers should be treated in EU countries. National practices wereaccommodated and modifications applied primarily to efficiency, fairnessand appeal procedures. Some key features remained the same: The obli-gation to inform an applicant of procedure and rights, additional specificprocedural guarantees for unaccompanied minors and the obligation toensure that a decision is taken, under the accelerated procedures, withinthree months. Coincidentally, German President Rau signed Germany’sfirst immigration law which relates admission to labour market needs.71

The CEAA consists of four pillars:

i) development of agreements for the right of asylum and refugee status,ii) measures to combat illegal immigration and especially trafficking of

human beings,72

iii) improved control of external borders, andiv) co-operation with countries from where immigrants originate.

The 21–22 June 2002 Seville European Council affirmed the EU’s inten-tion to accelerate the implementation of all aspects of the Tampere FSJ

70 See, for example, Joint Action 97/373/JHA adopted on 9 June 1997 on ‘refining oftargeting criteria, selection methods, etc and collection of customs and police information’,OJ L 159, 17 June 1997, pp. 1–2.

71 The new law’s goal is to control and restrict immigration of foreigners into Germanyand to allow and regulate immigration in view of the ability to integrate, and economic andlabour market interests. See Frankfurter Allgemeine Zeitung, 21 June 2002.

72 Action plan on illegal immigration (COM 2002 572) OJ C 142, 2002.

68 JULIET LODGE

programme. It highlighted the need to develop a European Union commonpolicy on the separate, but closely related, issues of asylum and immig-ration. The management of migration flows and external borders, andthe directive on minimum standards for the reception of asylum seekersrepresent the first steps in moving towards such a policy.73 The emphasisis now on integrating lawfully resident immigrants and ‘resolute action tocombat illegal immigration and trafficking in human beings’.74 The EUadopted a comprehensive plan to this end which requires the Commissionand Council:

• by the end of 2002, to review the list of third countries whosenationals require visas or are exempt from visa requirements to enterthe EU;

• to introduce, as soon as possible, a common identification systemfor visa data (to be submitted following completion of a preliminaryreport at the end of 2002; and a feasibility study to be submitted inMarch 2003);

• to accelerate the conclusion of readmission agreements75 under nego-tiation and the negotiation of new briefs for the negotiation of suchagreements with countries identified by the Council (the Commis-sion has been authorised to negotiate such agreements with Russia,Morocco, Pakistan, Sri Lanka and the Chinese Special AdministrativeRegions of Hong Kong and Macao);76

• to adopt by the end of 2002, the components of a repatriation pro-gramme based on the Commission Green Paper77 on this, includingthe best possible facilities for early return to Afghanistan. The GreenPaper grew out of the December 2001 Laeken European Council’srequest to the JHA Council to draft an action plan on the basis of theCommission Communication of 15 November 2001 on a commonimmigration and asylum policy which was adopted in February 2002.

73 For list of documents see Statewatch Observatory, <www.statewatch.org/asylum/obseraasylum.htm>.

74 Presidency Conclusions Seville European Council Seville 21 and 22 June 2002.75 These involve reciprocal undertakings between the EU and third countries to co-

operate over the return of illegal residents to their country of origin. Though relativelynew, they have been included in Association and Co-operation agreements. Since 1996,these included frameworks for such measures with Algeria, Armenia, Azerbaijan, Croatia,Egypt, Georgia, the Lebanon, FYROM and Uzbekistan, inter alia.

76 On 22 Nov 2001, the Commission initialled the Community Readmission Agreementwith Hong Kong that is likely to be the first to enter into force. One with Sri Lanka wasinitialled on 29 May 2002. www.europa.eu.int/rapid/ on 25 June 2002.

77 Green Paper on a Community Return Policy on Illegal Residents COM (2002) 175,10 April 2002.


• to adopt formally, at the next JHA Council, the Framework Decisionson combating trafficking in human beings, and one strengthening thepenal framework to prevent the facilitation of unauthorised entry,transit and residence; and the Directive defining the facilitation ofirregular entry, transit and residence.

Securing agreement on this had been difficult owing to divisions overwhether or not third countries that failed to co-operate in combatingillegal immigration should be sanctioned. However, the European Councilwelcomed a number of recent measures, such as the Commissioncommunication ‘Towards integrated management of the external bordersof the member states of the EU’, the feasibility study under Italian leader-ship on setting up a common border police force which the Commissionis exploring, and the OISIN police and border security programme carriedout by three member states designed to control migration. Based on these,an EU common border plan was approved in early 2002 and the EuropeanCouncil urged prompt introduction of a common unit for external borderpractitioners (consisting of member states’ heads of border control) to co-ordinate measures contained in the plan. In addition, the European Councilrequested the Council, Commission and the member states, each within itsrespective sphere of responsibility, to implement the following:

• joint operations at external borders;• immediate initiation of pilot projects open to all interested member

states;• creation of a network of member states’ immigration liaison officers.

Before June 2003, they are enjoined to prepare a common risk analysismodel to achieve common integrated risk assessment; and establish acommon core curriculum for border guard training and consolidation ofEuropean provisions on borders. The Commission is to complete a studyon burden sharing between member states and the EU for the managementof external borders.

The EU is mindful of the need to take into account the underlyingeconomic causes of illegal immigration and pointed out the need to addresstrade and economic co-operation, development assistance and conflictprevention. The suggestion that aid to third countries providing safe havensto international organised criminals and terrorists should be halted provedtoo controversial (as it had in the 1970s) to be adopted. Instead, a dilutedproposal was adopted implying that failure to co-operate with the EU onthis would imperil ‘closer relations’ and result in measures being takenagainst it by the EU under the CFSDP and other EU policies.78 However,

78 Seville Presidency Conclusions, No. 35 and 36.

70 JULIET LODGE

any future co-operation, association or equivalent agreements with othercountries will include a clause on the joint management of migration flowsand on compulsory readmission in the event of illegal immigration bothfor their own nationals and for any who have used that country as a transitroute. The EU will provide the necessary technical and financial assistanceto third countries for this, providing sufficient resources are available underits own financial perspective. It will speed up the adoption, by December2002, of the Dublin II regulation; by June 2003 of the minimum standardsfor qualification and status as refugees and the provisions on family reuni-fication and the status of long-term residents; and by the end of 2003, thecommon standards for asylum procedures.

Readmission agreements set up unambiguous and reciprocal obliga-tions including respect for data protection, protection of internationalrights and obligations, technical provisions governing readmission proce-dures and transit, means of evidence, deadlines and costs. They are seen asa part of the common immigration and asylum policy and cover technicalissues and support facilities, common standards, strengthening networksof immigration liaison officers in third countries, co-ordinating the colla-tion of statistical information and staff training. They form part of theCotonou Agreement signed in June 2000 and ratified by the ACP statesin May 2002. At this stage, they remain in their infancy. Denmark, havingabstained from some measures in the Amsterdam Agreement, has a some-what different status to those of the other member states, for example, eventhough Joint Declarations have been concluded in respect of Iceland andNorway.

By summer 2002, however, more measures had been adopted to dealwith these issues. The linkage between international organised crime andillegal immigration was underscored in the Council Framework decisionof July 2002 on combating trafficking in human beings. As with earlierdecisions in respect of the prosecution and punishment of terrorist acts,the aim was to ensure that penalties be introduced to prevent, suppress,punish and dissuade trafficking in persons (especially women and children,defined as anyone under 18 years old) (Art 1.4) and to assist the victimsof associated violence, threats, debt bondage and coercion79 (Art 7). It isinteresting that this decision slips in the concept of common penalties forsuch crimes committed within the EU by enjoining the member states to‘take the necessary measures to ensure that an offence referred to in Art 1is punishable by terms of imprisonment with a maximum penalty that isnot less than eight years’ (Art 3.2) and that those who aid, abet or try to

79 Council framework decision of 19 July 2002 (2002/629/JHA) adopted pursuant toTitle VI TEU on combating trafficking in human beings, OJ L 203/1, 1 August 2002.


commit a trafficking offence are also punished. (Art 2). The member stateshave to comply with this framework decision before 1 August 2004. TheCouncil will assess by 1 August 2005 at the latest the extent to which theyhave taken the necessary measures. The implication is that more legislationwill follow.

CONCLUSION

Irrespective of the EU’s desire to engage as many people, institutions andNGOs as possible in contributing ideas to the Convention on the Future ofEurope and the 2004 IGC process, the ‘external threat’ has catalysed inte-gration in an unprecedented way which not only presages deeper politicalintegration but requires a response that constitutionalises its structures andcommitment to liberty, freedom and democracy. Europol activities are notsubject to control by either the ECJ or the European Parliament and nordoes the adoption of a common position by the Council require membergovernments to consult the European Parliament or national parliaments.This is incompatible with the accountability in member states of theircriminal law systems. Genuine asylum schemes, a European public prosec-utor and Euro police force, and all that is implied by them, require muchclearer and democratic legislative and judicial controls, and accountab-ility. Operationally useful as the soft law route to advancing securityneeds and goals is, it cannot be sustained over the longer term. Theinter-linkage between citizenship issues, external and internal securityobjectives, and the sustainability of democratic governance in an enlargingEU, necessitates a bold approach to institutional reform.

Jean Monnet European Centre of ExcellenceUniversity of LeedsLeeds, S2 9JTUKE-mail: [email protected]