Europe’s Newest Attempts at Anti-Terror Regulation Could Shake the Foundations of the EU

UK border patrol ship3

A British border force boat on patrol. Credit: Vicky Brock via Wikimedia Commons

In the aftermath of the Copenhagen shootings this weekend, the results of a summit of 28 European Union leaders in Brussels last week takes on increased salience and is likely to further EU-wide counterterrorism measures that may forever alter the foundations upon which the European experiment was created.

A key aspect of the summit’s work on counterterrorism is that it addresses restrictions on a core and hitherto almost untouchable arena of EU regulation, the free movement of persons. This deceptively simple concept, one of “four freedoms” contained in the Treaty of Rome, is now showing strain, feeling the pressure on internal free movement in the face of a growing fear of radicalized Islamists exploiting free movement to advance a European terrorism strategy.

While the summit also provided a collective debrief on French and German efforts in Minsk to promote a ceasefire in Eastern Ukraine, the EU’s counterterrorism agenda topped the political action list in the wake of the Paris attacks. The work done in Brussels last week can be sorted into three main pillars: 

(1) Ensuring the security of citizens;

(2) Preventing radicalization and safeguarding values; and

(3) Cooperating with international partners.

Unless the events in Copenhagen change the agreed timetable, the next steps will be an April 2015 proposal presentation for a European Agenda on Security. The European Council is to report on implementation at its meeting in June.

Discussion on a European Agenda on Security organically followed the completion of the 2010-14 EU Internal Security Strategy. However, ongoing terrorist attacks, fears of returning jihadist fighters, and the spectre of “home-grown” terrorism give renewed urgency to inter-state and inter-institutional agreement. The new Agenda is advanced by the European Commission with a 2015-2020 timetable. The Agenda is intended to provide an agreed framework to harness the institutions and powers of the Union to address and prevent radicalization, to utilize and adapt the Union’s legal powers to target terrorism financing and to deepen cooperation between Europol and other European agencies to address the challenge of arms trafficking. The Agenda also involves significant inter-institutional cooperation including finding agreement with the Commission, the European Parliament and the Council to approve EU rules on a European Passenger Name Record system. These are all highly contentious issues, and the overarching challenge involves striking a balance between European security needs and the core values upon which the Union was founded including a commitment to fundamental human rights.

Ensuring the Security of EU citizens

Under this heading, the summit’s substantive regulatory question was how to undertake and enforce a variety of restrictions in the context of the Schengen Framework. Two previous conferences for interior ministers, in Paris (January 11) and in Riga (January 29), addressed potential changes to the Schengen framework in anticipation of this February summit. European Voice described this conversation as a conflict between the European Parliament/European Commission and member states, with states asking for revisions to the Schengen rules to allow for systematic checks of EU citizens entering the passport-free zone and possible internal border checkpoints, and ongoing resistance to fundamental changes by the core institutions of the Union.

Current rules

Internal border checkpoints within the Schengen zone were dismantled in waves beginning in 1995 and are now only permitted during extraordinary circumstances. The current rules allow for non-systematic border checks which allowing ad hoc inspections of passports and other documents at borders and other points of territorial entry within the EU free movement area. These rules have been interpreted by most countries as a prohibition on checking the passports of every traveler entering from a particular country (e.g., Syria). More worryingly, for Member states and their law enforcement/border control agencies is the lack of a consistent ability to check EU citizen IDs against criminal databases at external border crossings. Under contemporary practice, approximately 30% of all passports are checked to assess if they were lost, stolen, or fraudulent. The proposal envisages that this capacity would move checking rates close to 100% of travelers.

State reactions

Despite increasing fear at public and institutional levels in Europe about the Islamic threat, there is both caution and critique in responses to these proposed changes. The European Parliament and the European Commission have broadly maintained that revisions to the rules would risk “full-scale dismantling of EU free movement rights” and would create a slippery slope towards reinstituting internal border checks.

Similarly, Italian Foreign Minister, Paolo Gentiloni, argued that sacrificing freedom of circulation would be an unacceptable price to pay to terrorism. The statement was echoed by Italian Prime Minister Matteo Renzi, who rejected calls to change the Schengen Agreement:

Noting that the alleged perpetrators of the attacks had been in France a long time, Mr. Renzi said that closing European borders is “not a solution” for combating terrorism.

German Chancellor Angela Merkel says Schengen free movement is “not in question.” However, the German government recently approved “draft legislation that would allow authorities to revoke the national ID card from suspected Islamist radicals and replace it with one that would bar them from traveling outside Germany,” and Germany remains at the forefront of those states seeking to take aggressive measures to restrict the exploitation of the EU’s free movement provisions countries.

The most vocal state advocating for changes in the Schengen framework appears to be Spain, led by Interior Minister Jorge Fernández Díaz and supported by French opposition leader Nicolas Sarkozy and other center-right French politicians. This is not surprising given the long history of anti-terrorism legislation in the region and the 2004 bomb attack in Madrid. The French president is reportedly against allowing internal border checkpoints but does indicate a need to revise the border code.

No internal checkpoints, for now

The summit’s outcomes document seems to reflect (for now) a more nuanced position than advocated by Spain and some French politicians. The document frames the approach of the Union by stating:

The Council calls for comprehensive action against terrorism in line with the 2005 EU Counter-Terrorism Strategy and in full compliance with international law, fundamental values and international human rights standards. While Member States have the primary responsibility for addressing terrorism, the EU as such can add value in many ways.

The document does not allow for immediate revisions to the Schengen framework itself but interprets the existing regulations to allow for systematic and coordinated checks on individuals at external borders. Should the Commission conclude that such checks cannot be performed under the current rules the outcomes document leaves open the possibility of amending the code. Thus, the ban on internal checkpoints outside of extraordinary circumstances continues for now, but one suspects there will be a sustained campaign in the months ahead to relax this absolute prohibition.

Passenger Name Record database

The Brussels outcomes document urges the adoption of a Passenger Name Record (PNR) system that would allow countries to share passenger data. A similar proposal has been blocked in European Parliament since 2013, primarily due to civil liberties and privacy concerns, although states already provide such data to the US and may permissibly track it as part of national travel data systems. However, the European Parliament adopted a resolution on February 11 to enact a PNR directive by the end of 2015, overcoming its previous reluctance to do so.

State reactions have been primarily positive, though the Finnish Prime Minister, Alexander Stubb, noted the need for a careful balance between civil liberties and security. The German Interior Minister, Thomas de Maziere, spoke at the Riga conference in favor of a PNR:

We know that the parliament had issues. I also know that a compromise must be reached, but the topic itself is pressing and we are urging for a conclusion.

Information-sharing and cooperation

The remainder of the first pillar, as discussed in the outcomes document, focuses on a variety of information-sharing needs, including in law enforcement, security services, arms trafficking efforts, and between judicial authorities. There is also a call for uncompromising rules on money laundering and terrorist financing.

French Finance Minister, Michel Sapin, described much of terrorist financing as small-scale and anonymous transactions, calling for a better exchange of information between anti-money laundering agencies as well as improved monitoring of transfers between EU countries and “danger zones.”

It remains unclear how many of these exhortations to action will be applied in practice, but as with the freedom of movement it is difficult to envisage extensive internal regulation in the movement of capital occurring without affecting the core compact of free movement contained in the Treaty of Rome. Significant changes have already been seen in the fourth money laundering directive, which obliges EU member states to maintain a central registers on the ultimate ‘beneficial’ owners of corporate and other entities. In this area, as with many others, it is clear that the long shadow of terrorism has penetrated to the core of free movement principles in practices. As the Union acknowledges:

The European financial area must not, however, be exploited for the purposes of laundering money generated by criminal activities. This is the aim of a Directive on prevention of the use of the financial system for the purpose of money laundering and terrorist financing... Taking stock of the events of 11 September 2001 … this directive establishes a new international standard on combating serious crime, organised crime and the financing of terrorism. It requires Member States to combat the laundering of the proceeds of serious crime, as defined in Framework Decision 2001/500 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime …

Preventing Radicalization and Safeguarding Values

The second pillar of the outcomes document discusses the need to detect and remove Internet content promoting terrorism and extremism while affirmatively communicating messages of tolerance, non-discrimination, and solidarity. Part of the prevention strategy includes education, vocational training, and social integration to address factors contributing to radicalization, specifically acknowledging that prisons are an essential place where such work must be done. The Council acknowledged that:

We need to put more emphasis on the prevention of terrorism, in particular countering radicalisation, on recruitment, equipment and financing of terrorism, and address underlying factors such as conflict, poverty, proliferation of arms and state fragility that provide opportunities for terrorist groups to flourish.

The sentiments are laudable, but lack both specificity and the kinds of concrete action that would likely make a dent on the causes conducive to the production of sustained radicalization in many European states. In this regard, while states continue to articulate a language of tolerance and engagement, there seems little concerted and structural willingness at the micro national level, to take serious and complex action addressing the social, cultural and economic contexts enabling and sustaining radicalisation at the local level.

Cooperating with International Partners

Finally, the outcomes document notes the need to cooperate with international partners, particularly stressing the need to rethink the strategic approach used with Syria and Libya and a need to further engage on counterterrorism in the Middle East, North Africa, the Sahel, and the Western Balkans. This was the least developed dimension of the outcomes document, underscoring the intensity of the internal gaze by European states at this moment.

This internal gaze will be further concentrated as the events in Copenhagen underscore the relentless march of violent attacks across European states. Yet, there remains a fragile consensus that extremity in response to extremity is neither the appropriate nor effective solution to the radicalized violence of our times. Rather, one hears in the midst of calls to greater legal and political action, persistent reminders of state overreach in Europe, the dangers of the unfettered exercise of executive power, and the robustness of a human rights language embedded and not detached from the meaning and value of security itself. One hopes that this intrinsic connection of rights with security in Europe has staying power in the months ahead. 

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About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).