Coherence in EU counterterrorism
Disentangling national, internal and external security
Table of Contents
List of abbreviations...9
Introduction...12
I. Background...12
II. Research questions...14
III. Objectives of the research...19
IV. State of the art...20
V. Methodology and structure...23
A. Defining coherence...23
B. Rejecting the doctrinal approach to law...27
C. The socio-legal approach...28
D. Data collection and structure...30
Chapter I. Historical perspectives on coherence and the crafting of a European security space 33 Introduction...33
I. Coherence in the early years of EU integration: papering over the cracks?...34
A. The fragmentation of security spheres in the early 1970s...34
1) Institutional decoupling of internal and external security under intergovernmental arrangements...34
2) Trevi as a laboratory for cooperation across external, internal and national boundaries...37
B. First diplomatic attempts at coherence in the 1970s-1980s...38
1) A political commitment under the Single European Act...38
2) Security affairs largely escaped parliamentary and judicial oversight...41
C. Push and pull dynamics in the 1990s: living up to promises of coherence...42
1) Reconciling intergovernmental cooperation and formal integration under Maastricht...42
2) Burgeoning initiatives in justice and home affairs: towards more fragmentation?...45
3) Consolidating and deepening integration in the late 1990s...46
II. Coherence halfway through under Lisbon...49
A. Rhetorical coherence in the lead-up to the Lisbon Treaty...49
1) 9/11 and the comprehensive approach across internal and external security...49
2) Hierarchy between internal and external security...50
B. Actual coherence under the Lisbon Treaty?...53
1) The legal separation: constitutionalisation versus insulation...53
3) Abolishing hierarchy between the TFEU and the TEU...58
C. Towards the integration of national security?...61
1) Lisbon’s leftovers: A presumption in favour of member states’ competence under Art 4(2) TEU...61
2) National security beyond the territory of member states...65
3) Flexibility in AFSJ provisions: towards a competence creep?...66
Concluding remarks...68
Part I. Coherence through legal integration...70
Chapter 2. Antiterrorist sanctions: a political instrument with supranational characteristics...72
Introduction...72
I. Bridging the CFSP and the TFEU in the area of antiterrorist sanctions...73
A) A single framework for the CFSP and the TFEU under Art 215 TFEU...73
1) Reconciling political objectives defined in the CFSP …...73
2) … With powerful means of action at the implementation stage...75
B) … Complemented by institutional bridges...76
II. Asymmetrical coherence: sanctions as a fundamentally political instrument...76
A) The politicisation of sanctions procedures under Art 215 TFEU...77
1) The sequenced approach under Art 215 TFEU and the subordination of the TFEU to political objectives...77
2) Sanctions decision-making as a platform for member states to upload their interests?...78
B) The concentration of power in the hands of the Council...79
1) The procedural power of the Council...79
2) The institutional power of the Council...81
3) A limited role for other institutions, including in the CFSP...84
C) Broadening CFSP competences under the imperative of coherence...84
1) The exclusion of the AFSJ as a potential legal basis...84
2) Limits to the internal-external integration paradigm: Art 215 TFEU to target EU external....87
3) Broadening the scope of the CFSP under the imperative of coherence?...88
III. Another gap in the search for coherence? The prominence of national security in the CFSP...89
A) National security as an obstacle to evidence-based listings...90
B) Addressing incoherences through ad hoc solutions …...93
1) Reliance on open sources...93
2) … Raising the broader question of the evidentiary threshold...94
C) … and legal and institutional adaptation: EU rules on data control...95
1) The EU’s legal framework of data control...95
2) Secret proceedings in the General Court...97
Concluding remarks...99
Chapter 3. Values-based coherence? The role of EU courts in striking a balance between
effectiveness and fundamental rights...100
Introduction...100
I. Coherence in judicial protection: Maximising the Court’s jurisdiction on the CFSP?...101
A. The EU’s role in reviewing antiterrorist sanctions...101
1) The global shift to a system of targeted sanctions...101
2) The EU’s moral and constitutional responsibility to ensure judicial review in sanctions procedures...102
B. Coherence through integration: the CFSP within the jurisdiction of the Court?...103
1) Judicial control and Art 275 TFEU: remedying an anomaly of the Treaties...103
2) Expanding the scope of judicial control: ‘the necessary coherence of the system of judicial protection’...105
II. Judicialising the politics? The Court’s one-sided approach to coherence in antiterrorist sanctions ...108
A. Incoherence with fundamental rights: the narrow judicial review performed by the courts...108
1) Reconciling judicial review and limitations on disclosure?...108
2) The courts’ narrow procedural review: the role of the statement of reasons...109
3) … which in practice has upheld the large discretion of the Council...111
4) … leading to more re-listing decisions...113
B. Incoherence in the standard of judicial review...114
III. Politicising the judiciary? The consecration of the political nature of sanctions...116
A. Upholding the administrative nature of sanctions...117
1) Rejecting the Engel jurisprudence?...117
2) … Given the preventive and temporary nature of sanctions...118
3) … and the need to preserve their surprise effect...120
B. Secret proceedings: contradicting previous standards of judicial protection?...122
1) The General Court’s Closed Material Procedure: Backtracking on the gist requirement?....122
2) Tensions between Art 105 of the Rules of Procedure and the principle of adversarial proceedings...124
Concluding remarks...127
Part II – Coherence through delimitation...128
Chapter 4. Coherence between intelligence and law enforcement: the role of national separation rules...130
Introduction...130
I. The relevance of legal boundaries in the context of intelligence and law enforcement activities...130
A. Differing objectives and functions...131
B. Different degrees of judicial control...133
1) Intelligence activities and oversight: beyond the law?...133
II. Member states’ variety of dividing lines and delimitation rules...136
A. Varying degrees of porosity between intelligence and law enforcement across the member states ...136
B. … Including in the degree of involvement of intelligence services in criminal proceedings....138
1) At the investigation stage...138
2) At the evidence admissibility stage...139
III. Uncertainty in the EU’s approach: halfway between separation and integration...142
A. Unclear boundaries between intelligence and law enforcement in EU legislation...142
B. The integrationist approach pursued by EU policymakers...145
1) The failure of early calls for a rapprochement after 9/11...145
2) A new momentum for integration after the terrorist attacks of 2015?...147
IV. Coherence without integration...149
A. Linking the two communities while keeping them separate...149
1) The together but apart approach pursued by the EU...149
2) Coordination within the Security Union...150
3) The Intelligence Centre as a consultative and advisory body...151
4) Towards coherent policymaking?...152
B. ‘Small scale’ attempts at synergies amidst growing porosity at the national level...154
Concluding remarks...159
Chapter 5. Coherence between law enforcement and the military...160
Introduction...160
I. Identifying the unknown terrorist: the need for coherence created by the foreign fighters phenomenon...161
II. The need for boundaries: tensions between military practice and fair trial requirements...165
A. Conceptual dividing lines: The military as a reliable partner in criminal proceedings?...165
B. Legal and practical walls: military practice and evidentiary requirements...168
1) Evidence-gathering methods and chain of custody...168
2) Classification issues...170
3) Diversity of legal frameworks on the use of military intelligence...171
III. Coherence through delimitation: law enforcement working alongside the military...172
A. Softening the internal-external security divide? The judiciarisation of the CSDP...173
1) Towards a more militaristic counterterrorism response?...173
2) An element of pol-mil hybridity: the growing role of the gendarmerie...176
B. Accommodating boundaries: The law enforcement cell model of cooperation...177
1) The Crime Information Cell in Operation EUNVAFOR Med...177
2) The law enforcement cell in Operation Gallant Phoenix...180
Concluding remarks...181
Chapter 6. Coherence through institutional innovation? The creation of the EEAS and
intelligence cooperation in the EU...183
Introduction...183
I. The Intelligence Centre’s coherence function prior to its transfer to the EEAS …...184
A. A bridge between the Second and Third Pillars...184
B. A bridge between civilian and military intelligence...186
II. Institutional coherence reinforced after Lisbon?...187
A. The coherence mandate of the European External Action Service...187
B. Expanding the list of customers beyond the Council...188
C. A reinforced commitment to multidisciplinarity...191
1) Multidisciplinarity as a means to create institutional coherence...191
2) Coherence between civilian and military bodies...193
3) Coherence between intelligence and diplomatic actors...194
III. Coherence with limits: power dynamics, trust issues and the prominence of intergovernmentalism ...195
A. Asymmetrical participation in intelligence structures: the Intelligence Centre as an exclusive intergovernmental ‘club’...196
B. Fragmentation versus coherence: the maintaining of disparate intelligence structures at the national level...198
C. Specific obstacles to intelligence-sharing...201
1) The prominence of the originator principle...201
2) … Resulting in low levels of intelligence sharing with the EU...203
3) … And a focus on strategic intelligence...205
IV. Informal ‘clubs’: reinforcing the relevance of delimitation rules?...207
A. Informality as opposed to institutionalised intelligence cooperation...207
B. Tensions and pervading trust deficit undermining horizontal coherence...211
C. Accountability and legitimacy of these clubs: incoherence and contradictions with fundamental rights...213
Concluding remarks...215
Part III. Coherence through transformation...217
Chapter 7. Coherence between security and non-security actors: the hybridisation of the AFSJ ...218
Introduction...218
I. Transformation of law enforcement...218
A. Broadening the mandate of law enforcement...219
1) Blurring lines between intelligence and proactive policing...219
2) Intelligence-led policing as a compensatory measure for deficiencies in intelligence sharing
...219
B. Coherence reinforced by the UK’s efforts towards the Europeanisation of intelligence-led policing...220
C. An example of blur: Comparing Europol and the Intelligence Centre...223
II. Transformation of cross-border cooperation in criminal matters...225
A. The administrativisation of Europol...225
1) Involvement of ‘competent authorities’ mirrored in Europol’s mandate...225
2) Could Europol replace the Intelligence Centre?...227
B. The administrativisation of horizontal cooperation in criminal matters...230
1) Involving national security...230
2) Despite imbalances in judicial control …...233
3) … and effectiveness concerns...234
III. Transformation of border management and migration...236
A. Blurring the lines with law enforcement...236
1) Post 9/11 and the rise of an intelligence-led agency in border management...236
2) The 2015 terrorist attacks as a critical juncture in blurring the lines with law enforcement..237
B. Transformation through securitisation...239
1) Hybridising old generation databases: the enabling function of depillarisation...239
2) The new hybrids: coherence as the raison d’être of the next generation of AFSJ databases. 241 C. Transformation through intelligencise-ation...242
1) Enabling intelligence access to databases …...242
2) … resulting in more harm than good?...244
IV. Absence of transformation? Status quo in the EU’s system of protection of individual rights....246
A. Coherence and over criminalisation of third-country nationals...247
B. Intelligence escaping data protection standards?...249
1) The unclear applicability of EU data protection law to national security activities...249
2) Some encouraging jurisprudential developments in the context of data retention …...250
3) … With yet some caveats...251
Concluding remarks...254
Chapter 8. Coherence beyond borders: securitising the external dimension of the AFSJ...255
Introduction...255
I. Intelligence sharing with the neighbourhood?...256
A. Europol’s operational agreements...256
1) Exporting internal flexibility to third country agreements...256
2) Despite due process concerns in third countries …...257
3) … and admissibility challenges...262
B. Frontex’s opaque working arrangements: coherence through soft law?...263
II. Closing the military-civilian gap in border management...266
A. Mainstreaming military and intelligence in Frontex’s activities...266
B. Towards a new (semi-military) hybrid?...269
III. Externalisation through privatisation: Private actors as enablers of coherence?...271
A. A maximalist approach to coherence: synergies between national, internal and external security actors through cooperation with private companies...271
B. … With yet a number of caveats from the perspective of data protection...275
C. Regulating intelligence powers abroad? Redressing the balance between the search for coherence and fundamental freedoms in data protection...276
1) Striking a compromise between coherence and data protection in EU-US data exchanges. .276 2) A balance that has yet to be comprehensively reached in the EU...280
General conclusion...283
Coherence between the CFSP and the AFSJ: promising developments yet some missed opportunities...284
The prominence of national security in counterterrorism action: further side-lining the CFSP as a political field?...285
Security as the prominent feature of the AFSJ ...286
Fundamental rights: the absent friend of coherence efforts?...287
Doing things differently?...289
Annexes...292
Annex 1 – Analysis of provisions on coherence in relevant EU counterterrorism documents...292
Annex 2 – Analysis of references to IntCen in EU official documents...296
Annex 3 – Europol’s operational agreements with third countries...324
Annex 4 – Authorities competent to access PNR data in the US, Canada and Australia and related access conditions...331
Annex 5 – Authorities competent to access EU databases, nature of data stored, and related access conditions...333
List of references...341
Interviews...341
Jurisprudence...341
Official documents...345
Academic literature...359
Research and policy reports...373
Other...376
