Improving Counter-Terrorism Policy Integration in the European Union : An Analysis

This paper takes as its starting point recent terror attacks in the European Union and seeks to understand why the EU has suffered such a wave of high-profile, damaging attacks. Specifically, the paper explores counter-terrorism policy at the EU level and investigates why the integration of EU counter-terrorism policy is not higher among individual member states. Following an examination of previous terrorist incidents in the history of the EU and a literature review on EU-level counter-terrorism policy, the paper explores counter-terrorism institutions and mechanisms within the EU. A substantial analysis of the level of integration (or lack thereof) of these institutions and mechanisms is then undertaken, before by a concluding section that offers policy revisions to increase the implementation of policies by member states. The paper ultimately argues that implementation of counter-terrorism policy is lacking because individual member states are reluctant to cede their sovereignty over such an important policy area. The suggestion is also made that future EU counter-terrorism efforts should both focus on demonstrating how EU-level efforts will make member states safer, and, importantly, on creating mechanisms and institutions that will be of practical benefit to member states within their own domestic arenas.


Introduction
Terrorism attacks are one of the biggest security challenges that governments, states and institutions face today.The very nature of terrorist attacks as low frequency but high impact events renders them incredibly difficult to anticipate and prevent. 1 Over the past few years, European Union member states have faced a wave of high-profile, damaging terrorist attacks.A recent attack in Barcelona, for instance, left 13 people dead and more than 100 injured, gaining the tragic title as Spain's deadliest attack in over a decade. 2Although set -or at least it appears so at the time of writing-to leave the European Union, the United Kingdom has also suffered heavily under recent attacks; six people died and nearly 50 were injured in an attack near the Houses of Parliament this past March, while just two months later 22 people were left dead and 59 injured after a suicide bombing at an Ariana Grande concert. 3These attacks followed on the heels of a disastrous 2016 which included two suicide bombings at the Brussels airport and another in the main subway station, a lone attacker killing 84 people in Nice, France, 4 and two armed men storming a church in Normandy, France, killing a priest and taking four others hostage. 5re than just undermining citizens' confidence in their safety, some believe that these attacks have threatened to destabilize "the two largest countries and potentially doom an already wounded European project". 6Political groups within member states have presented leaving the EU as a tangible measure to safeguard their own security; the debate over migration, and implicitly, terrorism, was invoked by groups associated with the "Leave" campaign in their fight for Brexit 7 , and more recently by Italian parties during the country's 2018 election 8 , a response that is obviously antithetical to the continued existence of the EU should more member states seek to emulate Brexit.What is clear is that the counter-terrorism efforts of member states alone are not enough to keep their citizens safe; some have even described them as "powerless" given the recent attacks. 9One of the perpetrators in the 2016 Normandy attack was a known extremist who was equipped with a tracking tag on his ankle; French authorities still failed to intercept him and prevent the completion of the attack. 10Somewhat surprisingly, it is widely acknowledged that there are "significant implementation deficits" with regards to member states enacting EU-level counter-terrorism policy, even though these policies are considered to add value to the security efforts of EU countries. 11This sets up a puzzling question: if terrorist attacks continue to threaten the internal security of member states, and member states are not able to deal with these attacks entirely on their own, why have they not been more receptive to implementing Union-wide counter-terrorism policy?
This paper attempts to find an answer to this question through an in-depth analysis of EU counter-terrorism policy.A literature review of EU counter-terrorism policy is combined with a brief history of terrorist attacks and counter-terrorism measures in Europe before 9/11, before focusing on literature addressing the current implementation gap between EU-level counter-terrorism policy and its adoption and transposition into domestic law by member states.An analysis of key mechanisms and institutions in EU counter-terrorism policy is then undertaken, before examining EU counter-terrorism efforts through an integrationist lens.Finally, the paper will offer several suggestions to improve EU counter-terrorism policy, and specifically, its implementation by member states moving forward.

History and Literature Review
Even before 9/11, the EU had significant historical experience with terrorism.Wittendorp notes that its involvement with counter-terrorism efforts dates to the times of the European Community in the mid-1970s, with the hostage-taking of Israeli athletes during the Munich Olympics of 1972 serving as an infamous failure.12It is also generally accepted that terrorism has been "solidly entrenched in Europe's past."13Yet in the grand scheme of internal security policy, counter-terrorism took a back seat to organized drug and crime prevention, both of which had EU-wide action plans created in an attempt to deal with their perceived threats.It was only after the 9/11 attacks that the EU started to consider counter-terrorism policy as a key internal security priority. 14ademic literature is divided on the role of the European Union as a counter-terrorism actor today.Wade argues that with the arrival of the Treaty of Lisbon the EU has evolved from a supra-national community focused largely on facilitating economic policy into a "supra-national entity with a clear role in the criminal justice sector". 15Bures, Kaunert, Léonard and Mackenzie are strongly in favour of the external dimension of the EU's counter-terrorism activities.In particular, they praise the EU's counter-terrorism coordinator, who in their judgment is "increasingly considered an important component [of counter-terrorism policy] by both member states and third actors"). 16nversely, Argomaniz et.al promulgate that the EU is still largely a subsidiary to most member states in the field of counter-terrorism policy. 17This is corroborated by Den Boer and Wiegand 18 and Bossong 19 , with the latter arguing that the EU's "consistent preference for loose coordination networks" is largely ineffectual in bringing about the coordination and consistency that is needed when dealing with counter-terrorism efforts between 28 different member states.Another criticism is that although EU may have achieved international "actorness" with regards to counter-terrorism policy on the world stage, its persistent struggles with internal terrorist attacks damage its external credibility.To use a colloquial phrase, the Union must be able to "walk the walk" -and become more successful in dealing with internal terrorist attacks -before being able to "talk the talk" in telling other state actors how to best confront their own problems.Indeed, individual member states have in some cases actively resisted European Unionlevel efforts to bring about a greater degree of coordination and consistency of counter-terrorism policy.Argomaniz's study over a five-year time period of the speed of EU-level counter-terrorism policy implementation by member states found that the initial deadline set by the Council was never met by all member states for any of the instruments.Moreover, in a number of instances the deadline was missed by the majority of member states, and the length of the implementation delay was significant; "mechanisms that were approved in 2002 and considered essential in the European fight against terrorism" were still not translated into domestic law until seven years later by certain member states. 20Although one may expect that delays would perhaps be less related to a reluctance to implement counter-terrorism policy and more a function of general bureaucratic slowness, the study also found that the average delay for member states to transpose EU internal market directives was a mere nine months after the deadline, less than one-third of the average delay for states to implement counter-terrorism directives. 21Seen through this prism, certain member states have clearly consciously and consistently dragged their feet in operationalizing EU counter-terrorism policy into domestic law.
Further literature has picked up where Argomaniz's 2010 study left off in addressing member states' undue slowness in acting on certain EU counter-terrorism policy directives.A recent study conducted after the 2015 Paris attacks found that a Joint Investigative Team framework endorsed at the EU level has not, or has not correctly "been transposed by Member States [into domestic law]" despite repeated appeals to the framework's importance by the European Council of Strategic Guidelines in June 2014 and the JHA council. 22I more fully elaborate on the reasons members states have been reluctant to implement certain counter-terrorism policies in the following sections, but one illustrative example of just how fast member states can agree to and implement counter-terrorism when motivated to is the case of the European Passenger Name Record (PNR).The PNR -which established a new database tracking the movement of and allowing for blanket data collection on all EU citizens and residents travelling by air within the Union -was first tabled by the Commission in November 2007.The EU Parliament refused to vote on the proposal in November 2008 due to data concerns and privacy issues at the national level. 23In other words, representatives from member states were reluctant, at least in part, to submit to a collaborative mechanism over which they would not have final control or the agency to be the ultimate deciding authority.The Commission presented a new version of the initiative in 2011, which the LIBE Committee of the European Parliament again rejected in 2013. 24Yet despite its outright rejection twice by member states for ostensible privacy reasons, the PNR received a sort of resuscitation by fire directly following the 2015 Paris attacks.A joint statement just days after the attacks by the Ministries of Interior and Justice of Latvia, Germany, Austria, Belgium, Denmark, Spain, Italy, the Netherlands, Poland, the United Kingdom and Sweden, and adopted in the presence of the European Commission for Migration and Home Affairs, explicitly called for the adoption of the PNR framework. 25The framework was subsequently passed on April 27, 2016, almost ten years after its initial tabling by the Commission, but only a few months following the attacks.Although no studies of the its initial successes or failures could be found in the public domain at the time of writing, the speed at which the PNR was adopted by member states and implemented -especially considering its long and drawn-out history of rejection -serves as fascinating example of how quickly member states can actually adopt EU counter-terrorism measures when they choose to.

Counter-Terrorism Institutions and Mechanisms at the EU Level
EU institutions and mechanisms have become increasingly devoted to counter-terrorism since the 9/11 attacks.Indeed, a conservative estimate of counter-terrorism initiatives currently spanning across the EU's three pillars is at more than 80. 26 Importantly, as I will go on to discuss, the existence of certain institutions and mechanisms profiled here does necessarily mean they enjoy widespread support, or even use, by all EU member states.Rather, this section intends to give an overview of the EU's most significant efforts to date and those judged to have the most potential to support contemporary counter-terrorism efforts, so that we may better understand why member states have been so slow to integrate certain policies and mechanism in the domestic context.
There are several key EU counter-terrorism documents.The first is the EU's Anti-Terrorism Roadmap, created by the Council Secretariat shortly after the 9/11 attacks.Revised in 2004 after the Madrid bombings, it has become "the document for maintaining an overview of the many initiatives undertaken to govern terrorism". 27In 2005, the EU created a counterterrorism strategy to "provide a snapshot of the progress made towards the realisation of targets established." 28The strategy consists of four pillars: "Prevent", focused on preventing the recruitment and radicalisation that leads to some terrorist attacks; "Protect", to protect citizens and infrastructure from attacks; "Pursue", to pursue and investigate terrorists across Europe; and "Response", to be able to manage and minimize the consequences of a terrorist attack.The counter-terrorism strategy also led to establishment of an EU Counter-Terrorism Coordinator (CTC) who was expected to help in three main areas: to coordinate the work of the Council in combating terrorism; to maintain an overview of all the counter-terrorism instruments at the EU's disposal; and to "closely monitor the implementation of the EU Action Plan on Combating Terrorism" 29 The EU-level institutions of Europol and Eurojust also contribute to EU counterterrorism efforts.A 2005 decision by the European Council required member states to inform Europol of their ongoing national investigations relating to terrorism, legitimizing it as a significant EU-level player in counter-terrorism. 30Its mandate further expanded in 2009 to cover "all forms of serious cross-border crimes" allowing the agency to pursue crimes indirectly tied to terrorism, such as illegal financing, weapons procurement, and offenses of similar nature 31 Eurojust functions as an "independent group of magistrates" tasked with improving coordination and cooperation among investigators and prosecutors dealing with serious crimes. 32Given that the four freedoms of the EU all center around movement, it is inevitable that most terrorist attacks, although perhaps occurring in a single member state, will in some way connected to multiple member states.In this sense, Eurojust facilitates judicial cooperation between member states when trying to prosecute those involved in terrorist attacks, as well as supporting and funding joint investigation teams in complex terrorism cases. 33 overview of key anti-terrorism institutions and mechanisms would not be complete without acknowledging the European Arrest Warrant (EAW).Based on the quintessentially EU values of mutual recognition and trust, member states are expected to surrender wanted persons to any member state who asks, given legitimate reason and evidence. 34The EAW aids individual member states in their counter-terrorism investigations, given the EU's freedom of movement clause as discussed above, because they do not have legal jurisdiction to apprehend wanted persons outside of their borders. 35Monar also notes that the success of the EAW on the mutualrecognition front galvanized the creation of parallel mechanisms to combat counter-terrorism, such as the 2005 Framework Decision on Confiscation of Crime-Related Proceeds and the 2008 Framework Decision on the European Evidence Warrant (EEW).The EEW is complimentary to the EAW, allowing "a judge in one member state to 'use' law enforcement authorities in another member state" for the search and seizure of objects, documents and data for use in criminal proceedings, with terrorism obviously falling within this mandate. 36

Analysis of Integration
This paper argues that the lack of policy implementation by member states can primarily be explained by intergovernmental theory of EU integration.-relatively analogous to realism in contemporary international relations theory -argues that nation-states are the primary driver of EU integration.The theory also draws a distinction between "high" and "low" politics, arguing the former -issues of war and peace -drives integration decisions.
The largest problem at the member state level with implementing EU-level counterterrorism policy is the inevitability that some member states will be more concerned about terrorism than others.In 2015, for instance, France saw 73 terrorist attacks and 424 terrorist arrests, while Romania had only 11 arrests and no attacks. 37Such large discrepancies in the realities for different member states frustrate the process of substantive cooperation at the EU level because member states clearly have different interests. 38States such as Poland and the Czech Republic, with only 4 and 5 attacks in 2015, respectively, are likely to not view EU counter-terrorism efforts as important because they perceive little threat to their own internal security. 39mplicating the issue, all EU counter-terrorism efforts are subject to the subsidiary principle of Article 5(3) of the Treaty on European Union, in which the Union should only act "if and so far an objective cannot be sufficiently achieved by the Member States and can be better achieved at the Union level. 40Counter-terrorism convergence has failed in part because only some states believe that EU action would produce added value; others seem perfectly fine to handle their own affairs.Consequently, member states -as well as the European Parliamentwho view EU counter-terrorism policy as compromising their sovereignty have been quick to challenge it legally, further delaying its implementation.Since 9/11, seven of the EU counterterrorism acts passed at the Commission level have been challenged in front of the European Court of Justice, with five "annulled or experiencing a similar invalidation." 41As intergovernmentalism suggests, integration has been severely delayed due to the desires of individual member states who have been averse to integrating their counter-terrorism policy at the EU level.
While some may argue that intergovernmental theory would expect member states to see the violence caused by terrorist attacks as motivation to integrate counter-terrorism policy, countries are realistically wary about ceding so much sovereignty in such a key area.Within national intelligence communities -the biggest players in the "prevent" pillar of counterterrorism strategy -the preference for trading intelligence rather than sharing it under an integrated model continues to prevail. 42Such ingrained resistance at the member-state level to a communal approach has also doomed proposals for greater cooperation, such as the joint Austria-Belgium submission in 2004 to create a European CIA, which conceivably would have been an extremely effective tool in EU-level counter-terrorism efforts. 43Indeed, far from integrating intelligence forces at the EU level, bureaucratic officials in member states are reluctant to share information with Europol, as they prefer the isolation and relative secrecy of their individual networks.Individual member states, therefore, have remained the prime collectors, producers, and user of counter-terrorism intelligence. 44A recent report on member states' sharing of information with Europol also noted that collaboration in the field of terrorism is especially low. 45ormer Europol director Jurgen Storbeck has explained this phenomenon, in part, by suggesting that: "for a policeman, information about his own case is like property.He is even reluctant to give it to his chief or to another department, let alone giving it to the regional or national services.For an international body like Europol, this is very difficult." 46 this sense, even if European politicians promise to improve the fight against terrorism through enhanced cooperation, it can be quite another thing ford them to persuade the relevant national agencies to comply. 47As Nicolas Sarkozy's former spy chief attested, "no one wants to share their details on sensitive operations…[N]o one wants to disclose details on covert operations, the sources you have infiltrated or taken out of judicial procedures." 48Even when individual member states might signal their willingness to form a communal model of intelligence sharing, those executing counter-terrorism policy in real -in this case, police and investigative forces -have in some cases resisted the idea, slowing the integration or actual use of counter-terrorism policy and mechanisms across the EU and impeding overall effectiveness.
A final issue slowing counter-terrorism integration is that the capabilities of member state intelligence services vary widely.It would seem to make sense to pool resources and harmonize policy, but member states with strong intelligence services -the UK (before Brexit), France and Germany -have resisted some aspects of integration because they are worried about contributing disproportionately to the work, allowing weaker member states to get by with doing little. 49Bossong does valuable work on this point interpreting the convergence of counterterrorism policy through public good theory.He argues that states will often choose to prioritize private benefits over highly uncertain public goods, as they are hindered by problems "arising from the risk of free-riding and the use of scare assets." 50Convergence counter-terrorism policy has not happened because internal security is of such a fundamental nature that member states believe it should be their essential function to provide.States do not want to concede their responsibility, and inherently, their sovereignty on such an important matter, especially when they perceive a communal model may leave them with less power -even if a shared responsibility model could tangibly increase domestic security.As Argomaniz et.al conclude, counterterrorism policy in the EU is "nothing but a high profile example of long running tension… between the notions of security and sovereignty." 51Again, we see that the desires of individual member states influence integration, as intergovernmentalism predicts.

Suggestions for Improvement
This paper concludes its analysis of EU counter-terrorism efforts by offering several ideas that could be used to help further integrate EU counter-terrorism policy at the member state level.Before that, however, it must be recognized that the EU has certainly achieved some integration success, particularly after the 9/11 attacks.Mutual recognition instruments such as the EAW have been recognized as "pragmatic, value added tools" and have been widely used by member states. 52These tools, however, largely fall under the "pursue" and "respond" pillars of the EU strategy.Integration is highest for the pillars which are not crucial to stopping terrorist attacks, while, paradoxically, integration of the "prevent" pillar is the lowest.This is likely because member states see initiatives that address the "prevent" pillar as being the most compromising to their sovereignty. 53Moving forward, the EU must prioritize the "prevent" aspect of its strategy, as this is the key to a decreased number of attacks.
How, then, should the EU encourage member states to integrate all of the pillars of its strategy, and specifically, the prevent pillar?One solution is to find alternative ways to motivate member states who have not undergone sufficient integration.The "peer pressure" that is currently cited as a coercive mechanism to force states to comply is a very poor motivator when there is such a severe implementation deficit across the entire EU. 54And although the CTC's impact on external counter-terrorism efforts, such as catalyzing the EU's involvement as the driving force behind the Convention against Nuclear Terrorism at the United Nations is impressive, the office severely lacks practical measures that can be asserted to encourage the compliance of member states on internal security matters beyond reports and rhetoric 55 .Rather than increasing punitive penalties -which may push already-hesitant member states to try and stifle EU-level counter-terrorism coordination further rather than encourage its implementation -I suggest that efforts should be undertaken to promote the CTC as a mutual ally and valueadded tool for individual member states in the fight against terrorism.Executed correctly, this approach could increase the soft power and respectability of the CTC in the eyes of member states, which in turn could be leveraged to encourage delinquent member states to increase the pace of policy implementation.
Further, the EU must do a better job of developing practical tools such as the EAW that states will actually want to use.As mentioned, member states are generally reluctant to surrender sovereignty on issues of internal security.Mechanisms like the EAW allow the EU to play a facilitating role in counter-terrorism efforts without rivaling the power of individual countries.Thus, the EU is able to play a constructive role and add value to member states with little to no opposition.The development of tools that specifically help with the "prevent" pillar of the strategy would greatly assist EU-level counter-terrorism policy.
Finally, the EU must convince its member states that convergence on counter-terrorism policy is actually in their best interests.This will admittedly be very hard to do, as the traditional notion of security being a responsibility of individual member states is certainly prevalent.Yet, it is not an impossible task.After 9/11, for instance, aviation security became a key priority for member states, leading the EU commission to create a set of common rules to "raise minimum common standards of security at European airports." 56After an attempted transatlantic airline attack in 2006, the Commission adopted an EU-level ban on most liquids in carry-on luggage 57 .This integration occurred in large part because of the importance of commercial aviation for the economies of EU member states; national governments were convinced to act quickly because they understood the benefits of policy convergence in this area. 58When member states perceive that it is to their benefit to integrate counter-terrorism policy, they clearly act quickly.The EU must do a better job articulating the advantages of an EU-level counter-terrorism strategy for countries in order to speed up integration.The aviation example also demonstrates that, in the face of high-profile events such as 9/11, member states can be encouraged to act decisively.Although one does not hope for more terrorist attacks anywhere, the EU must also be aware that it will generally have more political capital to push member state integration directly after an attack.Accordingly, it must be prepared to press member states during this time to support or implement counter-terrorism policies at the EU level.

Conclusion
In the 15 years since 9/11, the EU has greatly increased its global presence as a comprehensive counter-terrorism actor.Although it has provided significant tools, mechanisms, and policies in the field of counter-terrorism, integration at the member state level has been considerably lower than expected.This paper argues that the intergovernmentalism theory of European Union integration explains the implementation deficit.Ultimately, member states are still reluctant to cede their sovereignty to the EU in such a key area as internal security, particularly when several member states experience few, if any terrorism-related incidents each year.National intelligence communities are also wary of contributing to a more communal approach to preventing terrorism.Both of these factors have worked at the member state level to greatly impact the speed of counter-terrorism policy integration.Moving forward, the EU must do a better job of convincing member states that policy integration will actually benefit their internal security while also creating more tools to aid member states at the national level.Finally, it must act in a more political manner to identify times when member states may be more receptive to implementing specific policies and adjust its priorities accordingly.