NOTE Counter-terrorism Coordinator COREPER/Council/European Council Implementation of the EU Counter-terrorism strategy - Discussion paper

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1 Conseil UE COUNCIL OF THE EUROPEAN UNION Brussels, 23 November /07 PUBLIC LIMITE JAI 617 ECOFIN 489 TRANS 382 RELEX 902 ECO 154 PESC 1403 COTER 89 COSDP 964 PROCIV 208 ENER 300 ATO 159 DATAPROTECT 56 TELECOM 163 NOTE from : to : Subject : Counter-terrorism Coordinator COREPER/Council/European Council Implementation of the EU Counter-terrorism strategy - Discussion paper This note covers five subjects which the Counter-terrorism Coordinator wishes to draw to the Council's attention: information sharing and special investigative methods; radicalisation and recruitment; financing of technical assistance to third countries; organisation of work within the Council; and implementation of EU instruments /07 GdK/kve 1

2 Other aspects of the fight against terrorism will be the subject of special reports over the coming months, to cover transport security, the protection of critical infrastructure, the financing of terrorism, and crisis management in particular. In separate documents drawn up by the Counter-Terrorism Coordinator, the Council will find reports on the state of implementation of the various strategies which have been adopted in relation to the fight against terrorism: the EU's overall Counter-Terrorism Strategy (15411/07) the Radicalisation and Recruitment Strategy and Action Plan (15443/07) the Media Communication Strategy (15445/07 RESTREINT UE) the strategy on terrorist financing (11948/2/07 REV 2) 1. Information sharing and special investigative methods 1.2. Information sharing Considerable efforts have been made since 2001 in the sector of processing and exchange of information. New rules will soon improve the exchange of data on requests 1 and work is progressing on direct access to national databases in the context of police cooperation (Decision incorporating the Prüm Convention into Union law) or judicial cooperation (direct access to criminal records). Access to data contained in European databases (SIS, VIS and Eurodac) is improving gradually. The Directive on the retention of telecommunications data and the Commission's recent initiative on PNR data aim at increasing the availability of data which is produced by private players but is crucial for investigations into terrorism. Finally, a general framework for the protection of data in this sector is being finalised. 1 Framework Decision of 18 December 2006 on simplifying the exchange of information /07 GdK/kve 2

3 All this work must be continued in order to ensure practical implementation. The consistency of all the work must be seen to, at both technical level (ensuring the compatibility of the information systems set up) and legal level (in particular defining the scope of the various instruments and guarantees in terms of data protection). For historical reasons, the different files are currently being negotiated and discussed in different working parties, depending on diverse elements such as the legal basis but also the workload of the working parties or the timing of the negotiations. However, the multiplication and growing importance of files in this area require enhanced coordination as there are more and more links and sometimes overlaps between projects, which are not properly or promptly identified in the current Council structures. The principle of availability has many aspects but its implementation or translation into policy proposals and/or legislative texts is not coordinated, sometimes leading to illogical results 1 that demonstrate the lack of a consistent and global view of the principle of availability. To improve this as soon as possible, it is therefore proposed to conduct an assessment of the practical use of EU instruments related to information exchange in order to identify gaps and further specific needs of law enforcement bodies, with regard to categories of data to be shared, as well as consultation technologies and procedures; this assessment should also consider judicial cooperation needs and lead to the adoption by the Council of a common EU Policy on Information Sharing; mandate a single Council Working Party/Committee to reflect on, prepare, develop and monitor the implementation of this common EU Policy on Information Sharing to ensure coordination at an early stage and supervise work at technical level so that all the details of the different instruments are coordinated and overlaps or gaps can be identified. In the coming months stress should be laid on the specific dimension of sharing information and principally on the following aspects: 1 Different constraints in the negotiations on the SIS II and the VIS with the EP have now led to the situation that certain intelligence services will have access, under certain conditions, to the (non-criminal) VIS data but not to the data on criminals entered in the SIS /07 GdK/kve 3

4 Sharing information at European level: Pooling information at European level makes it possible to carry out strategic and operational analyses which are not made possible merely by ad hoc cooperation between Member States in specific cases. A priority for the near future in this field should be the monitoring of implementation of Decision 2005/671/JHA of 20 September 2005, which provides for the systematic transmission of information to Europol and Eurojust. With regard to Europol, and although this is a long-standing concern, the impression remains that there is too great a disparity in the way Member States treat this obligation: the situation remains largely unsatisfactory for certain Member States. The situation is currently that Europol itself identifies ongoing terrorism cases in the Member States using open sources and contacts the State concerned in order to be sure of receiving the relevant operational information. By June 2008, the Council should be provided with a qualitative and quantitative evaluation carried out by Europol concerning inputs into its information system and analysis files in the terrorist sector by the various Member States. It is time for such evaluations to be submitted at political level. The situation concerning implementation of the 2005 Decision is different with regard to Eurojust, for which the question of systematic transmission and processing of information is quite recent. In addition to reminding Member States of the obligations resulting from the 2005 Decision, three aspects should be emphasised: the establishment of the necessary procedures at national level for ensuring systematic transmission (such procedures exist in only a few Member States), the provision of technical means by Eurojust so that this transmission can be carried out in a structured way and finally a clear definition by Eurojust of the practical purposes of using the mass of information resulting from systematic transmission /07 GdK/kve 4

5 The latter aspect prompts the question of the interaction between Eurojust and Europol. Criminal analysis is the main reason for Europol's existence: Eurojust should not have to develop the same kind of activities. This means that Eurojust must be able to benefit fully from Europol's capacity in this context. However, the legal frameworks of the two bodies keep them radically separated. In the last stage of negotiation of a new legal framework for Europol, Eurojust therefore continues to be regarded merely as a third party. Structural links must urgently be created between these two agencies, which form part of the same continuum in coordinating criminal investigations Sharing information at national level The first round of evaluation in the context of terrorism revealed a trend towards setting up central bodies at national level with the task of coordinating the sharing and analysis of information concerning terrorism. These national central bodies could explore how to develop reciprocal cooperation. An initial meeting is being considered for the first half of Sharing Internet-related information The "check the web" project carried out by Europol is a natural consequence of the need to pool resources with regard to the surveillance of websites advocating terrorism. Because it is so obviously useful and because it is relatively simple, a lack of participation by Member States would be difficult to justify. Member States must contribute intensively to the project, keeping in mind the possibilities it offers through its intranet portal, managed by Europol, and its sub-projects. The carrying out of sub-projects should be multiplied, such as the ongoing project on the media wing of Al-Qaeda, As-Sahab. Furthermore, the development of the second phase of "Check the Web" (wider number of user accounts in EU Member States, several technical improvements and opening to third parties), planned for 2008, should be accelerated /07 GdK/kve 5

6 Sharing information with third countries Sharing of information with third countries, in particular with the United States, is vital to effectively combating terrorism. At the same time, care must be taken to ensure that personal data transferred to third countries are sufficiently protected and are not used for unacceptable purposes or procedures. The draft Framework decision on data protection in the context of police and judicial cooperation, on which the Council reached a general approach at its meeting of 7 and 8 November 2007, lays down certain data protection requirements with regard to onward transfer of personal data received from another Member State to a third State. One of these requirements is that the third country concerned must have an adequate data protection regime. With regard to the United States, concerns have sometimes been voiced over the US data protection regime and more particularly over the use that is made of personal data obtained from European citizens. This debate has been sparked, in part, by a lack of understanding of US data protection principles. The ongoing exercise, in the context of the EU-US High Level Contact Group on Data Protection and Data Sharing, to draft common data protection principles on the adequacy of these principles is potentially very helpful. Not only could it lead to a better mutual understanding, but if it results in comprehensive data protection principles to which both the EU and the US can adhere, it can foster mutual trust between the EU and the US and lead to an increased exchange of data between EU and US law enforcement authorities. In that perspective, it would be preferable for the proceedings of the EU-US High Level Contact Group on Data Protection and Data Sharing to result in a document, irrespective of its legal status, to which both parties could at least politically sign up. In the context of transatlantic cooperation against terrorism, it seems essential that all Member States take the same position with regard to data protection issues, including the question of the adequacy of the US data protection regime Special investigative methods One of the major specific features of investigations into terrorism cases, particularly with a proactive approach, is the need for frequent recourse to special investigation methods such as the interception of telecommunications, the use of undercover agents, recourse to surveillance devices placed inside buildings, etc /07 GdK/kve 6

7 The legal framework for transnational cooperation in this type of measures is not non-existent (mainly the Convention of 29 May 2000) but it is either too complicated (in particular for the interception of telecommunications) or largely insufficient to solve the problems resulting from differences between national laws and practices. In such a sensitive sector, these differences have a major impact: frequently they obstruct cooperation and, when they do not obstruct it, they are likely to lead to the invalidity of evidence in the State of prosecution. Initial work was carried out under the German Presidency in the context of undercover activities and is being continued. These efforts should be extended to other special investigation methods. A working method and a programme should be adopted to structure the work. Mere recourse to the principle of mutual recognition does not enable difficulties in this sector to be resolved, given the extreme sensitivity of the measures concerned. The first stage should be learning about other Member States' systems by means of questionnaires, as is already done for undercover activities, and an in-depth discussion of the results by the competent working parties. This learning process would concern solutions found at national level for making measures sufficiently effective and making recourse to them subject to appropriate guarantees concerning fundamental rights. 2. Radicalisation and Recruitment Over the last twelve months, the Council and the Commission have made some progress in the implementation of the Strategy for Combating Radicalisation and Recruitment. As was already mentioned in last year's implementation report, the adoption of the Strategy has ensured that the issue of prevention is now a very prominent feature of the EU's counter-terrorism agenda. Follow-up discussions about the implementation of the Strategy have led to an exchange of Member States' experiences and best practices in the framework of COTER and TWG (the Terrorism Working Group). The development and implementation of the Strategy have also compelled national experts to look more broadly at the European dimension of processes of radicalisation /07 GdK/kve 7

8 Overall, however, implementation has been uneven. While in some areas new initiatives have been launched, in others there has been no action. An impetus for new work in the field of justice and home affairs came from the Commission which developed a number of initiatives to carry out the recommendations of the Strategy. To pull some of these activities together (studies, seminars, questionnaires), the Commission is preparing a communication for mid-2008 which will identify good practices on how to address violent radicalisation within the EU and make concrete recommendations to the Member States. For both Council working parties, a major challenge is the identification of funds for the implementation of various aspects of the Strategy. The funding tends to be either national or from the Community budget. The Commission is responsible for various financial programmes, both within the EU and for third countries, which support many activities and projects in the fight against terrorism. It is essential that Community funds are allocated in line with the Council's political priorities. To this end, relevant Council working parties should be duly informed about the Commission's intentions and where appropriate given sufficient opportunity to make recommendations with regard to the allocation of these funds. Finally, EU policy in the field of radicalisation and recruitment, particularly in the area of integration, is the result of a compromise between Member States whose traditions and policies are sometimes divergent. In consequence, the wording of some of the recommendations in the Strategy and the classified Action Plan attached to it is vague and difficult to translate into operational action. Attempts at implementation sometimes give rise to additional political debate where one would expect a mere technical discussion. If the European Union wishes to supplement Member States' efforts in the field of prevention, then fresh ideas for implementation of the Strategy for Combating Radicalisation and Recruitment need to be developed /07 GdK/kve 8

9 The Council (Presidency and Counter-Terrorism Coordinator) ought to step up efforts to implement the Strategy for Combating Radicalisation and Recruitment. They need to continue to seek cooperation with other relevant actors in the area, including Council working parties that do not deal with counter-terrorism, and encourage them to work on the various aspects of the Strategy where counter-terrorism officials do not have primary competence. The Council and the Commission could consider setting targets for the implementation of the Strategy in areas where progress has to be made within the next twelve months. These targets may include the enhancement of EU capacity to communicate its policies in Arabic and the development of instruments for de-radicalisation on the Internet. Of course, close coordination between the EU Presidency and future Presidencies would be indispensable for such a course of action. The EU Counter-Terrorism Coordinator could facilitate discussion between the Member States and the Commission on targets and present proposals to the Council. With the exception of some Commission initiatives in the internal field, there has been too little involvement of experts (such as integration officials at local level, youth workers, teachers, management of penitentiary institutions, development assistance practitioners, etc.) in the implementation of the Strategy, which has been largely left to the generalists responsible for COTER and TWG. In order to generate greater "ownership" among experts, the Council may wish to entrust informal groups of experts from Member States and the Commission with the implementation of various aspects of the Strategy. Of course, it would be important to reflect thoroughly on the institutional challenges such a course of action would entail. Alternatively, individual Member States could be asked to take the lead in implementing various aspects of the Strategy. The EU Counter-Terrorism Coordinator intends to invite national coordinators or equivalents (and as appropriate other high-ranking national officials responsible for counter-terrorism) to a meeting in the first half of 2008 to discuss a division of labour and targets for future action. A debate among high-level officials would have the additional benefit of enhancing awareness of the Strategy within Member States' administrations /07 GdK/kve 9

10 Finally, COTER and TWG should develop closer cooperation in the area of radicalisation and recruitment. 3. Technical assistance to third countries On the basis of the Declaration on Combating Terrorism of 25 March 2004, namely objective 7, the Council (COTER) has selected priority countries for enhanced counter-terrorism cooperation, both in terms of political dialogue and provision of technical assistance. As regards technical assistance, the process has not been able to provide the full leverage for maximising global EU counter-terrorism assistance to third countries. Experience to date shows that the major obstacles are the limited financial resources available at the EU level for purely counter-terrorism external relations activities and the availability of experts to carry out assessment missions and specific projects. Those issues need to be addressed at an early stage so as to avoid a loss of credibility with our external partners for not being able to deliver on our commitments. With respect to financing, the new Stability Instrument under Community funding and the CFSP budget could represent viable solutions. It is important however that when engaging in dialogue with third countries, we know that we can count on a certain amount of funds which could be specifically devoted to counter-terrorism cooperation. This should be duly taken into account when discussing yearly priorities for the CFSP budget or when drafting the Indicative Programme and Action Plan for the implementation of the Stability Instrument Strategic Framework. Obviously, the approach needs to be flexible and realistic. Some reflection would also be needed on how to enhance the EU angle as against bilateral projects, possibly through enhanced cooperation among Member States and between Member States and the Commission. The issue of expertise will also be crucial. The need for experts is expected to increase in the future and engagement of Member States in this respect is essential /07 GdK/kve 10

11 Another path that deserves to be explored is the interaction between security and development. Although the respective objectives and responsibilities under security and development differ, we need to take into account their increasing interdependence. It is important to underline that full respect of the internationally agreed framework for development cooperation should be the starting point for this debate. The European Security Strategy recognises that security is a precondition for development and identifies terrorism as one of the main global challenges to security. The Joint Statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on the EU Development Policy, "The European Consensus", highlights the fact that development and poverty eradication are not possible without peace and security. Terrorism, as one of the most serious threats to security, causes loss of human life, imposes high costs in the short term and in the long term. It also undermines societies and disrupts economies. The EU should therefore include terrorism in the ongoing debate on Security and Development. In this context, we should reflect on the specific relation between terrorism and development and explore ways to ensure complementarity and coherence of policies and actions in these fields. The reflection could address both the short term (assistance in implementing commitments pursuant to relevant international legal instruments) and the long term (addressing conditions that lay the ground for radicalisation and recruitment into terrorism). Development assistance and the countering of terrorism are not competing policies but can be mutually reinforced. 4. Organisation of work within the Council Three Council working parties work exclusively on preparations for the Council's proceedings on preventing and fighting terrorism: the Working Party on Terrorism (TWG), for internal aspects, the Working Party on Terrorism (International Aspects) (COTER) for external aspects and the CP 931 Working Party for the designation of organisations and individuals involved in terrorist acts. Since 2005 a network of contact points (consisting of one representative in each Permanent Representation) has served as a channel of communication between Commission and Council staff and capitals, and has exceptionally been examining the updating of the action plan implementing the Union's counter-terrorism strategy /07 GdK/kve 11

12 For reasons to do with the composition of these three groups and the existence of groups formed for other purposes, several aspects of the fight against terrorism are not satisfactorily covered by the Council's preparatory bodies. Four recent subjects illustrate the difficulty of drawing up integrated policies on terrorism; the updating of the strategy on terrorist financing, the drawing up of an action plan to increase the security of explosives, the drawing up of conclusions on CBRN and bio-preparedness and the protection of critical infrastructures. In many of these cases, the Presidency has had to set up "friends of the Presidency" groups to coordinate the efforts of several working parties. It is proposed that this question should be looked at in more detail over the coming months and that, in the second half of 2008, the Council's structures relating to the fight against terrorism should be reorganised, in the more general framework of preparations for the entry into force of the Reform Treaty. 5. Implementation of EU instruments Adequate implementation of EU instruments at national level is still among the main challenges (see tables of implementation, 15411/07 ADD 1). For some instruments, continuous follow-up in the competent Council working parties is necessary, not only to increase awareness but also to share good practices and identify possible problems. The situation is particularly alarming for the following instruments: the Convention of 29 May 2000 on mutual assistance in criminal matters and its protocol of 2001: no progress has been made compared to last year as five ratifications for the convention and seven ratifications for the protocol ratifications are still lacking. Framework Decision 2003/577/JHA on mutual recognition of judicial decisions on the freezing of assets: implementation is still lacking for 12 Member States. Regular discussions should take place in the COPEN Working Party, as was done for the European Arrest Warrant /07 GdK/kve 12

13 Decision 2005/671/JHA on the exchange of information and cooperation concerning terrorist offences: as mentioned above, Europol and Eurojust should produce a report for June 2008 and thorough evaluation should take place in the competent working parties. Framework Decision 2005/222/JHA on attacks against information systems: only 12 Member States have implemented the Framework Decision. The next step will be the report of the European Commission, which was due to be issued before September Furthermore, it should be noted that only four Member States have so far ratified the Council of Europe Convention on the prevention of terrorism of 16 May It is relatively recent convention but ratification should be considered as a priority given its importance for this sector. CONCLUSIONS 1. Information sharing and investigative methods Objective 1: to ensure consistency and efficiency of the work carried out in the Council with regard to information exchange. Proposal : task a single Working Party / Committee with all the preparatory work on information exchange within Justice and Home Affairs, on the basis of a comprehensive report identifying the needs of law enforcement authorities, the types of information concerned and the methods and technology for accessing that information. Objective 2: to ensure implementation of Decision 2005/671/JHA with regard to the transmission of information to Europol. Proposal: that Europol in June 2008 submit to the Council, for discussion, a qualitative and quantitative report concerning inputs into its information system and analysis files in the terrorist sector by the various Member States /07 GdK/kve 13

14 Objective 3: to ensure implementation of Decision 2005/671/JHA with regard to the transmission of information to Eurojust. Proposal : that Eurojust submit to the Council, in June 2008, a report on procedures set up at national level for transmitting information to Eurojust, on measures taken by Eurojust to enable structured transmission, and on the practical purposes of the use of such information. Objective 4: to create structural links between Europol and Eurojust, enabling Eurojust to benefit fully from Europol s capacity in terms of criminal analysis. Proposal: amend the draft Decision on Europol, especially with regard to the relationship between Eurojust and Europol s Analytical Workfiles. Objective 5: to enhance cooperation and mutual learning between national bodies created to coordinate the sharing and analysis of terrorism-related information. Proposal: organise a meeting of such national bodies during the first half of Objective 6: to enhance surveillance of websites advocating terrorism. Proposal: speed up the completion of phase 2 of check the web. Objective 7: to foster mutual trust between the EU and the US regarding exchange of information. Proposal: speed up the work of the EU-US High Level Contact Group on Data Protection and Data Sharing so as to determine common principles and to consider what legal form it should be given. Objective 8: to facilitate the use of special investigative methods in transnational cases. Proposal: define a common method of work on this issue, starting with mutual learning on legislation and practice in the Member States. 2. Radicalisation and recruitment Objective 9: to facilitate the identification of proper Community and EU funding for the implementation of the Strategy for Combating Radicalisation and Recruitment. Proposal: ensure effective communication with regard to possibilities for Community funding to relevant Council working parties /07 GdK/kve 14

15 Objective 10: to increase monitoring of the implementation of the Strategy. Proposal: set targets in areas of the Strategy where progress has to be made within the next twelve months and consider including among these targets issues such as (1) the EU s capacity to communicate its policies in Arabic and (2) the further development of instruments to counter radicalisation on the Internet. Objective 11: to generate ownership of the Strategy among experts and practitioners (such as integration officials at local level, youth workers, teachers, management of penitentiary institutions, development assistance practitioners, etc.). Proposal : entrust informal groups of experts from Member States and the Commission with the implementation of various aspects of the Strategy. Objective 12 : to identify areas where individual Member States could be asked to take the lead in implementing various aspects of the Strategy. Proposal : invite national coordinators or equivalents (and as appropriate other high-ranking national officials responsible for counter-terrorism) to a meeting in the first half of 2008 to discuss a division of labour and targets for future action. Objective 13 : to develop closer cooperation between COTER and TWG in the area of radicalisation and recruitment. Proposal : make better use of the joint meeting between COTER and TWG and involve TWG in work on project proposals and the implementation of the Media Communication Strategy. 3. Technical assistance to third countries Objective 14 : to secure appropriate financial resources at EU level for counter-terrorism activities in the area of external relations, inter alia with regard to radicalisation and recruitment in external relations. Proposal : take due account of counter-terrorism when discussing yearly priorities for the CFSP budget or when drafting the Indicative Programme and Action Plan for the implementation of the Stability Instrument /07 GdK/kve 15

16 Objective 14a : to explore the interactions between policies and actions related to terrorism, as part of the security framework, and development, taking into account their respective objectives and responsibilities. Proposal : include terrorism in the ongoing debate on security and development. 4. Organisation of work in the Council Objective 15 : to improve the preparatory work of the Council with regard to the fight against terrorism. Proposal: discuss the working structure of the Council during the second half of 2008 in the context of preparations for the entry into force of the Reform Treaty. 5. Implementation of EU instruments Objective 16: to increase monitoring of the implementation of EU instruments relevant for the fight against terrorism. Proposal: discuss regularly in the competent working parties the state of play, good practice and problems in the implementation of Framework Decision 2003/577/JHA on mutual recognition of judicial decisions on the freezing of assets /07 GdK/kve 16