European Counter-Terrorism: who is leading who? Historical evolution of the terrorist threat

Terrorism is not a new dynamic within the Europe; indeed, many EU Member States such as Italy, France, Spain, and United Kingdom have a long history of fighting domestic terrorism (Sofija Voronova, 2021). Cooperation between EU member states in combatting terrorism initiated only in the 1970s when the European Community realised the importance of acknowledging terrorism as an issue and considered the exchange of information and lessons learned to be necessary (Rehak, Foltin, Holcner, 2007). In 1975 the intergovernmental platform known TREVI (Terrorisme, Radicalisme, Extrèmisme et Violence Internationale) was established by Belgium, Denmark, France, Germany, Greece, Italy, the Netherlands, Portugal, Spain and the United Kingdom as an informal body independent from the European Community’s institutional structure (Bunyan, 2014), since police matters were excluded from the Community’s competences. Moreover, the security and intelligence services of Member States have initiated cooperation in fighting terrorism within the informal framework of the ‘Club of Bern’; also, in 1976 the European Community established a Police Working Group on Terrorism as a cooperative informal network to contrast terrorism. Nevertheless, informal arrangements were favoured to multilaterally discussion on security-related dynamics, setting a ‘’voluntary character of the information flow’’ (Coolsaet, 2014). Formally, cooperation on terrorism was included in the EU framework with the adoption of the Treaty of Maastricht (Misilegas, 2009); and, at the end of the 20^th century and following the Tampere and Da Feira meetings, the European Council, and member states, introduced different programs facilitating joint action in terrorism matters, mainly on sharing intelligence and strengthening police cooperation. However, EU achievements in this policy area remained low.
EU’s strategy and counter-terrorism agenda has been and remains to certain extent crisis-drivena as illustrated in the following chart.

 
Days after the 9/11, the European Council declared the fight on terrorism to be a European objective through the Council’s Action Plan of 2001 and the European adoption of a Framework Decision to criminalise certain offences in relation to terrorist activities, such as financing it (Council of the European Union, 2002). The Madrid and London terrorist attacks in 2004 and 2005 dramatically opened the chance for a more coherent EU counter-terrorism policy, mainly modelled on structures and know-how activities of the concerned states being the United Kingdom and France. Moreover, it is important to stress out how these two attacks changed EU’s paradigm in understanding the root causes of terrorism, mainly shfting towards radicalisation as the main focal point in combatting terrorism (Coolsaet, 2010); this, shifted EU Member States from the almost exclusive focus on Al-Qaeda prevalent after the 9/11 attacks to home-grown terrorism as a product of intra-EU radicalisation processes and terrorist recruitment” (Bures, 2011). Different measures were taken, like the improvement of border control, judicial cooperation, information exchange and the appointment of an EU counter-terrorism coordinator in 2004. In 2013, the rise of ISIS and Charlie Hebdo and Bataclan attacks shifted again European threat perception, and the issue of foreign fighters became a priority for the Union – highlighting the nexus between external and internal security due to the transnational element of modern terrorism. The transnational nature of terrorism, from Al Qaeda’s plot in 9/11 to foreign fighters, have challenged member states due to the challenging intelligence gathering activity, requiring for a strong cooperation between states. Lastly, the attack in Nice in 2016, and the series of small-scale attacks in Germany, raised the awareness of a new threat for the European internal security: the rise of lone-actor terrorism and the weaponization of ordinary life, shifting terrorist activity to a more spontaneous and unpredictable nature of the attack.
Structure and actors
The European Union is embedded within a plethora of counter-terrorism actors and measures which have evolved over time, mainly in relation to threats’ perception discussed previously.

The EU counter-terrorism policy architecture is the historical result of an incremental process which produced a myriad of EU policies, strategies, action plans, legal and policy measures, through the the presence of different units, bodies and agencies. Indeed, the policy architecture is not a top-down coordinated and coherent strategy, rather the ex-post interpretation of European initiatives following the waves of terror. Moreover, EU counter-terrorism policy and measures range from legally binding (regulations, directives, framework decisions, international agreements) to non-binding measures (soft law such as action plans, recommendations, sharing best practices; non-binding measures are very important in this concern, since they are mostly instrumenting to tackle those particular challenges where the EU does not have the power to act.
Counter-terrorism is a ‘composite’ policy in terms of coordination, consistency, coherence, cooperation and scientific evidence; moreover, given the hybrid nature of the European Union, it is not always clear which body is in charge of a particular function. There are official institutions like the European Council, the Council of the European Union, the European Parliament, the European Commission, the Commissioner for the Security Union, the Court of Justice of the European Union; moreover, there are other actors contributing, such as the Counter-Terrorism Coordinator, established by the European Council, and the Europol’s European Counter Terrorism Centre. Indeed, counter-terrorism is a shared competence, in provisions of the EU’s area of freedom, security and justice (AFSJ), and special competence in relation to the Common Foreign and Security Policy (CFSP).

EU norms on counter-terrorism, once in place, need to be ensured by Member States, which should act in line^[1]: and EU actors, following the subsidiarity principle^[2], adopt measures where EU-level initiatives will be more functional to reach the objectives contained in the EU Treaties. Nevertheless, art. 72 TFEU stipulates that the exercise of responsibilities incumbent upon Member States relating to the safeguarding of internal security is not to be affected, resulting in a safeguard clause that allows Member States to deviate from common decisions adopted at EU level, to the extent that they can prove that law and order as well as internal security are affected by such an initiative or action (Wollf, Goudappel, De Zwaan, 2011). In addition, art. 4(2) of the Treaty on European Union (TEU) stipulates that “national security remains the sole responsibility of each Member States”; meaning, any action at EU level will be complementary and subject to the principle of subsidiarity (Kaczorowska,, 2011), making the European Union dependent on the willingness of Member States to Europeanise ‘internal security’. The role of the Commission, on the other side, is to make proposals for the European Union legislation (European Commission, 2005) and to monitor how the legislation is implemented once it has been adopted by the EU Council of Minister (European Commission, 2005). Moreover, it shares its right to make legislative proposals with Member States in the AFJS (European Commission, 2005). After the 9/11, in response to the Council and the EU Council, the Commission has made most of the proposals in the field of counter-terrorism. (The House of Lords, p. 50).
Such temporal ordering of terrorist attacks had a significant impact on outcomes of European counter-terrorism policy (Pierson, Ebbinghaus, 2005); functional transformation of the European Union took the form of layering, through the addition of institutional arrangements whereby new authorities are layered upon already existing institutions (Pierson, Ebbinghaus, 2005). Formative moments like 9/11 is to be seen as triggering points leading to institutional change. Timing and sequencing framing the political context during formative moments have shaped the political responses, outcomes, and the future path of European institutions in relation to counter-terrorism policy through directives and decisions by the EU (Pierson, 2004). Later, formative moments such as Madrid attack, London bombings and Charlie Hebdo worked as self-reinforcing feedback; in relation to the timing and the political context of the decisions, EU institutions followed the same path; this is true also since it is more beneficial continuing down the same path, than switching or departing from the path since the path generates increased returns (Pierson, Ebbinghaus, 2005).
EU evolution in the field of counter-terrorism is sprawled out amongst a variety of different policy areas with multiple action plans and strategies, drawn up by several committees, actors and law enforcement agencies (Daly, 2017). This plethora of actors and strategies, being the result of the crisis-driven path, lays down the problematic nature of the EU counter-terrorism policy. Europe has done a lot, developing a horizontal cohesion between member states in creating heterogeneous strategies and a strong collaboration between them. Nevertheless, the real actors in counter-terrorism remain Member States for a variety of reason endorsed above. For example, EU Member States different strategic interests, makes counter-terrorism a dimension of foreign policy, and of national security, mainly based on national strategic capabilities; Member States, for these reasons, continue to lead in counter-terrorism policy. It is Member States that have historically decided when and how to unite under a common vision; moreover, EU institutions themselves are not clearly arranged in terms of hierarchy and strategy. “Currently, too many actors are involved in the design and implementation of this policy area, the tasks of the individual actors at times overlap. This is notably the case when it concerns strategies that can be issued by the European Council, the Council of the EU and by the Commission, making it unclear who is in the lead” (Wensink 2017). Hence, the convergence of counter-terrorism systems within the EU, as Monica De Boer and Irina Wiegand have stated, is the result of an intergovernmental cooperation and initiatives between member states, rather than a supranational cooperation. The evolution of the European Union has shifted to a certain extent the balance of power towards an increased integration and convergence between Member States; nevertheless, the overcrowding of EU counter-terrorism policies caused and still causes Member States to work on their own and to cooperate, in line with a Europeanist vision, only in times of crisis. The EU provided cooperation, coordination and to certain extent harmonisation tools; nevertheless, primary responsibility for combating terrorism intrinsically lies with the Member States.
Francesco Pagano
References:
[1] The Union and the Member States may legislate and adopt legally binding acts in that area and that the Member States exercise their competence to the extent that the Union has not exercised its competence (art. 2(2) TFEU).
[2] Art. 5(3) TEU and the Protocol on the Application of the Principles of Subsidiarity and Proportionality