Intelligence and Police Cooperation in Countering Terrorism
The role of Europol and the European Counter Terrorist Center
Intro al capitol
The establishment of cooperation and its difficulties.
As seen in the first chapter, terrorism is not unknown both inside and outside the EU. As a reaction to some of the terroristic waves, most of the states attempted to contrast terrorism on a domestic level by modifying the internal legislation or by creating their own counter terrorist institutions.1 Moreover, terrorism was treated as an internal security problem despite most of the groups were acting on the international level and the international cooperation in the states suffering the attacks was not sufficient. According to Javier Argomaniz, this reflected the lack of common source of such threat from outside, which represent the reason why there is a domestic approach to terrorism instead of an external one.2 In addition, the main reason for the early attacks in Europe occurred to achieve political changes.
A certain degree of complexity among the machine of EU cooperation in the field of counter-terrorism, has been reached and modified after EU’s institutionalization. But it is important to underline that, prior to the 9/11 attacks, only six European states had some specific counter-terrorism legislation. Despite the threat of terrorism in Europe raised over the last decade, there is still a lack of harmonization in the perception of intelligence services among EU’s members. This can be seen inside counter-terrorism institutions in intelligence, security and police structure among the member states. For example, in the UK and Germany the intelligence services are detached from the police powers, while in Sweden and France are parts of national police.3
The Treaty on the European Union creates the three pillars structures, as seen before, as well as the cooperation ion the sphere of internal security on a supranational level. The early steps were taken with the creation of the European Security and Defense Policy, in 1999. Another innovation coming from the creation of the ESPD was the establishment of the institutional framework, consisting of different decision-making and legislative institutions, European agencies and the third parties, which are communicating independently.4 On of the key agencies is the Europol (European Police Office), appeared for the first time in 1995 as an output of the Europol Convention, and that became an official EU institution in 2010. Since the beginning of its mandate, Europol became the principal actor in countering terrorism among the other institutions and agencies. As for Eurojust (European Judicial Agency), it works on cross-border prosecution and is involved in counter-terrorism activities since 2001.5
Another form of cooperation was launched within Europol and the Club of Berne.6 Despite some form of cooperation, as James Walsh underlines, the main problem in this form of cooperation is the lack of trust that creates the limits of the partnership in intelligence sharing. The need to solve the problem of mistrust emerge in 2002, when the EU Council launched the EU Situation Center (EU SitCen), which respond to the High Representative and bring together intelligence officers from the member states.7 In the first part of the first chapter it has been said that European Policies on counter-terrorism are crisis driven, and it can be stated the same in the field of intelligence cooperation and evolution of the EU’s agencies and bodies in the field of counter-terrorism. After the attacks in Madrid, the SitCen capacities were strongly upgraded.8 The SitCen, by receiving the intel from the member states, offers the European Council and the High Representative with threat valuation and provides support to the internal security cooperation. The Lisbon treaty, provided another change in the SItCen and, in 2011, it was reorganized under the EEAS and renamed as the EU Intelligence Analysis Centre (EU IntCen), resulting in a “single entry point in the EU for classified information”.9
Despite this innovation, other intelligence-sharing bodies continued to exist. For instance, the Club of Berne was replaced by the Counter Terrorist Group (CTG) and established in 2001. The CGT includes nowadays all of the EU’s member states, together with Switzerland and Norway. It is important to underline that the group works autonomously from any of the EU’s institutions, bodies or agencies. It provides cooperation for the chief of states intelligence. The main focus of this actor is the cooperation on Islamic Terrorism. Regardless the fact that the CGT is unrelated to the EU, the cooperation is boosted through the EU IntCen. There were some attempts to initiate a deeper intelligence cooperation, after the Madrid attack, Austria and Belgium begun the creation and launch of a European Intelligence Service, which could serve as a European CIA in the United States.10 However, the reaction among the prominent member states, led by the UK, was of an opposition to the establishment of the Agency, fearing security leaks. This reject, clearly shows the reluctance of some states to hand over the control of the intelligence sphere.
Developing it further, just after the Madrid attacks the Council adopted the Declaration on Combating Terrorism, which called the member states for full implementation of law-enforcement and judicial cooperation, together with the strengthening of the cooperation with the EU institutions. The outcome has been the creation of the Counter-Terrorism Coordinator in 2007, with Gilles de Kerchove appointed as CTC and still in charge. Another contribution in the field of cooperation comes as a response to the London bombings. The adoption of the EU Counter Terrorism strategy, remarked that the member states are responsible for combating terrorism, while the EU will contribute in “strengthening national capabilities”, “facilitating European cooperation”, “developing collective capability” and “promoting international partnership”.11 Moreover, the document call on a strategic commitment to “combat terrorism globally while respecting human rights…”.12 The main problematic still remain the coordination between member states, the EU and the external partners. One of the main critics to the document comes from Oldrich Bures, which stated that the document was issued slowly and is composed of a set of objectives and not as a comprehensive strategy.13
As a consequence, we can see that the terrorist attacks in 2001, 2004 and 2005 clearly influenced the policy-making in the field of counter-terrorism, but it has been insufficient to boost and create an intelligence cooperation inside the EU and, on the contrary, some states are still reluctant to share this field out of national control.
Improvements after the Lisbon Treaty
The Lisbon Treaty brought important changes in the legal personality of the EU, bringing important enhancements of the law enforcement and security fields. By changing the three pillars structure brought by the treaty of Maastricht, a new political actor was created.14 With the introduction of a simplified decision-making process, the balance of powers among the main institutions, and the “liberty, security and justice” under the jurisdiction of the European Court of Justice and the introduction of an “area of Freedom, Security and Justice without internal frontiers”15, it can clearly be stated that, compared to the previous treaties, within the Lisbon Treaty the security issue becomes one of the most prioritized, reflecting the modern challenges for the EU. In this sense, the treaty introduces certain institutional changes in order to improve the cooperation in internal security. Namely, the Standing Committee on International Security (COSI) was established according to the Article 71 of the TFEU. Its core task is to “facilitate coordination of the action of Member States’ competent authorities” in regard with internal security.16 The internal structure of the committee is made of national ministers sided by the permanent representatives of the EU and the main representatives of the bodies related to the issue such as Europol, Eurojust and Frontex.17 Moreover, as provided in the Article 222 of TFUE, the Committee should cooperate with the Council, following the solidarity clause.18 This constitutes one of the core principles in counter-terrorism cooperation between the member states for emergency situations. In 2010, the COSI agreed on a four-year policy cycle to provide effective cooperation and coherence in the operational activities, among all parties, in the process of fighting “organized and serious international crimes”.19 The documents divide the policy cycle into four stages: threat assessment for the EU and defining the priorities, providing the Multi-Annual Strategic Plans with strategic priorities for dealing with the existing threats, setting up the Operational Action Plans (OAP) for multilateral operational actions and evaluating the actions in order to prepare for the next policy cycle.20
Another important document that facilitate cooperation in counter-terrorism is the Stockholm Program, its sphere of action is in justice, freedom and security.21 Implemented in 2010, it sets new objectives in security cooperation among member states, in regard with the protection of the EU’s citizens. Such cooperation needs an effective implementation of the instruments, improving legislation and coherence between EU’s internal and external components. In 2016, the Council adopted a new European Agenda on Security, accompanied the Stockholm program.22
The framework of security, as already seen, is highly responsive to terrorist attacks and generate further institutionalization to the EU’s agencies and bodies. Despite this institutionalization, reached particularly with the Lisbon Treaty, the cooperation still depends on the will of national governments to activate this network of cooperation in an effective and coherent way.
Europol and ECTC: the counter-terrorism hubs of the EU
As seen before, the counter-terrorism area inside the European Union is made of decision-making institutions and different European agencies, playing a crucial role as operational sector in this field. As stated by different researchers, these agencies are “satellite networks of actors” which “as satellites are not at the heart of the ‘Community method’ as such but in orbit around it, with different ties back to the core political actors and the formal decision-making processes”.23
1 Murphy, C., 2012, EU Counter-Terrorism Law : Pre-Emption and the Rule of Law / Cian C. Murphy, Modern Studies in European Law: 31, Oxford.
2 Argomaniz, J., 2012, The EU and Counter-terrorism: Politics, Polity and Policies After 9/11, Routledge.
3 Müller-Wille, B., 2008, The Effect of International Terrorism on EU Intelligence Co-Operation, Journal of Common Market Studies 46, no. 1: 49–73, doi:10.1111/j.1468-5965.2007.00767.x., 51-52.
4 Argomaniz, J., 2012, The EU and Counter-terrorism: Politics, Polity and Policies After 9/11, Routledge.
5 Den Boer, M., 2005, Counter-Terrorism, Security and Intelligence in the EU: Governance Challenges for Collection, Exchange and Analysis, Intelligence & National Security 30, no. 2/3: 402., 406.
6 The Club de Berne is an intelligence sharing forum between the intelligence services of the 28 states of the European Union (EU), Norway and Switzerland, named after the city of Bern. It is an institution based on voluntary exchange of secrets, experience and views as well as discussing problems. 12 The Club has existed since 1971 and has no secretariat and takes no decisions.
7 The EU Intelligence Analysis Centre – Fact Sheet (2005). Available at: http://eeas.europa.eu/factsheets/docs/20150206_factsheet_eu_intcen_en.pdf
8 Argomaniz, J., 2012, The EU and Counter-Terrorism.
10 Keohane, D., 2008, The Absent Friend: EU Foreign Policy and Counter-Terrorism, Journal of Common Market Studies 46, no. 1: 125–46.
11 Council of the European Union, 2005, The European Union Counter-Terrorism Strategy, http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2014469%202005%20REV%204.
13 Bureš, O., 2012, EU Counterterrorism Policy, A paper tiger?, Routledge, pp. 72-73.
14 Renard, T., 2012, EU Counterterrorism Policies and Institutions After the Lisbon Treaty, Policy Brief (Center on Global Counterterrorism Cooperation).
15 Art. 2.2, Treaty of Lisbon
16 Official Journal of the European Union, 2007, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Signed at Lisbon.
17 This bodies could be invited as observers.
19 Europol, “EU Policy Cycle – EMPACT,” accessed May 15 January, 2018, https://www.europol.europa.eu/content/eu-policy-cycle-empact.
21 The Stockholm Programme, 2009, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Ajl0034.
22 European Commission, 2005, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the Regions. The European Agenda on Security, http://ec.europa.eu/dgs/home-affairs/e-library/documents/basic-documents/docs/eu_agenda_on_security_en.pdf.
23 Busuioc, M., Curtin, D., and Groenleer, M., Agency growth between autonomy and accountability: The European
Policy Office as ‘living institution, Journal of European Public Policy, forthcoming.