The EU internal security strategy – promoting more EU integration rather than cooperation

The European Committee debated yesterday the European Commission Communication on the EU Internal Security Strategy in Action: Five steps towards a more secure Europe. The Government’s plans “of working with other Member States to strengthen the security of EU citizens”, should be supported. However, the Commission calls for further EU legislation, hence one could say that it is promoting more EU integration rather than cooperation in this area.

The new multi-annual programme for the area of freedom, security and justice, the so called Stockholm Programme is aimed at “creating a genuine European area of freedom, security and Justice in the next five years.” The Lisbon Treaty facilitates the Union to develop its own action and policies concerning security and justice. There will be an increase in the number of legislation passed in this area.

The Stockholm Programme calls for the development of a comprehensive EU internal security strategy. Internal security is a national responsibility. Article 72 TFEU reads “This Title (Title V) shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” It’s hard to imagine how the Member States responsibilities on “maintenance of law and order and the safeguarding on internal security” will not be affected. For instances, a standing committee has been set up with the power to coordinate the actions of national police as well as other authorities.

It is important to recall that the Lisbon Treaty has abolished the Maastricht Treaty pillar structure and moved “Police and Judicial Cooperation in Criminal Matters” to the Treaty on the functioning of the European Union. This area is no longer intergovernmental but is subjected to the Community method. The co-decision and qualified majority voting have been extended to this area and the ECJ has full jurisdiction to review and interpret measures on judicial cooperation in criminal matters and police cooperation. But, at least, according to Article 276 TFEU “the Court of Justice of the European Union has no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security."

The EU Member States have their own national security policies and strategies. However, it has been considered that member states cannot respond to today's security challenges on their own, as most of these challenges are cross-border. One could say that just a state can organise and implement an internal security strategy, however the EU is developing its own. The Lisbon Treaty and the Stockholm Programme have, therefore, enabled the EU to take further action in this area.

The Internal Security Strategy for the European Union: “Towards a European Security Model” was adopted by the Justice and Home Affairs Council on 25 February 2010 and endorsed by the European Council on 26 March 2010. The strategy identifies common threats for the internal security of the EU such as terrorism, serious and organised crime, cyber-crime, cross-border crime, youth violence or hooligan violence at sports events, natural and man-made disasters and road traffic accidents and calls for “an EU-wide approach” to respond to these challenges. One could wonder whether road traffic accidents can be considered a threat to internal security.

The Internal Security Strategy concentrates, for the first time, in one document a European approach to internal security and attempts to define a European security model. The Council agreed, “The time has come to harness and develop common tools and policies to tackle common threats and risks using a more integrated approach.” Consequently, the strategy sets out a European security model, “which integrates action on law enforcement and judicial cooperation, border management and civil protection.” The scope of the Strategy is very broad and includes very different actors. It brings together law enforcement authorities, immigration and customs, internal security agencies, the military, judges, national and local government, the private security industry, universities, civil society. The main aim was to strengthen cooperation as regard police, judicial, border control and civil protection matters, but it seems the Commission’s aim for further EU integration would prevail. The ISS gives the idea that the EU will balance “security, freedom and privacy.” It reads “The values and principles established in the Treaties of the Union and set out in the Charter of Fundamental Rights have inspired the EU's Internal Security Strategy: justice, freedom and security policies which are mutually reinforcing whilst respecting fundamental rights, international protection, the rule of law and privacy. transparency and accountability in security policies, so that they can be easily understood by citizens…” Brussels has not achieved such balance and there is no such thing as “transparency and accountability” in the EU decision-making.

The strategy puts strong emphasis on “prevention and anticipation” based on an “a proactive, intelligence-led approach.” It states “Member states need to step up information sharing, making full use of biometric and other technologies.” It calls, therefore, for the development and improvement of “prevention mechanisms such as analytical tools or early-warning systems” including a European Passenger Names Record (PNR). Moreover, the strategy is also focus on information exchange. In fact, it provides for the “Development of a comprehensive model for information exchange” based on “mutual trust and culminating in the principle of information availability.” In this way law enforcement authorities will be force to share further data.

The Internal Security Strategy, adopted last year, sets out the security challenges, principles and guidelines for how to deal with them but called on the Commission to propose actions for implementing it. Moreover, developing, monitoring and implementing the Internal Security Strategy is one of the tasks of the Standing Committee on Operational Cooperation on Internal Security (COSI).

The Lisbon Treaty provided for the creation of a standing committee “to ensure that operational cooperation on internal security is promoted and strengthened within the Union." The Justice and Home Affairs Council has not wasted time, and on 26 February 2010 adopted a decision setting up the Standing Committee on Operational Cooperation on Internal Security (COSI). The COSI is composed by Member States´s representatives. However, it is not clear who are the member states representatives. It seems that not only representatives of national ministries of the EU Member States, participate on COSI meetings, but also police officials. Moreover, representatives of the different EU agencies such as Eurojust, Europol , Frontex may attend COSI meetings as observers.

Under the Council’s decision, COSI is focus on promoting and strengthening operational cooperation between Member States’ competent authorities with responsibility for internal security. The decision states that COSI “shall not be involved in conducting operations” as this will “remain the task of the Member States”, nevertheless it will have a coordination role. In fact, it has the power to coordinate the actions of national police, customs and civil protection authorities, external border protection authorities as well as “judicial cooperation in criminal matters relevant to operational cooperation in the field of internal security.” It will “ensure effective operational cooperation and coordination” of the abovementioned Member States’ authorities, however it is not clear yet in which circumstances. Moreover, it is in charge of “evaluating the general direction and efficiency of operational cooperation with the goal to identify possible shortcomings” as well as adopting “recommendations to address them.” Hence, it will not only have an impact on the Council’s policy priorities in this area, but also on national policing policies. It can, at least indirectly, have an impact on the UK’s internal security matters.

The COSI will also assist the Council in applying the so called ‘solidarity clause’, introduced by the Lisbon treaty. COSI’s mandate is therefore very vague. It remains to be seen what will be COSI’s precise scope and tasks and what ‘operational cooperation on internal security’ really means.

The Standing Committee would not be involved in preparing legislative acts but it has an advisory role. Nevertheless, it has a lot of room for manoeuvre. It is set to be a very influential body overseeing operational actions on internal security within the EU.

Whereas the committee is required to report its activities to the Council, the Council solely is required to “keep the EP and national parliaments informed.” Hence, such committee will not be subject to a proper parliamentary control. COSI lacks, therefore, transparency and accountability. There have been already few meetings, however no one knows about its workings and its documents are not publicly accessible. This will, definitely, not improve the EU transparency in the area of internal security.

It is important to mention that COSI is in charge of "developing, monitoring and implementing" the EU Internal Security Strategy.

Last November, the Commission adopted a Communication: The EU Internal Security Strategy in Action: Five steps towards a more secure Europe. The Commission has presented several initiatives to address the identified common threats. The Commission proposes to focus on five objectives: organised crime, terrorism, cybercrime, border management, and crisis management, and outlines several actions to be implemented within the next four years. The Commission has therefore presented a “shared agenda for Member States, the European Parliament, the Commission, the Council and agencies and others, including civil society and local authorities.”

The Coalition Government generally supports the EU internal security strategy as well as the five priority objectives proposed by the European Commission. The Government is very keen to see more “cooperation between Member States and EU institutions and agencies.” Although the Commission is planning to put forward proposals aim at enhancing practical cooperation, it seems its main focus has been on proposing further EU legislation.

According to the Commission “practical law enforcement cooperation should be strengthened”, so that it is possible to “Identify and dismantle criminal networks.” The Commission has already proposed EU legislation on the collection of Passenger Name Records of passengers on flights entering or leaving the territory of the EU. The Commission is also considering to revise by 2013, the EU Anti-Money Laundering legislation, intend to facilitate identification of owners of companies and trusts.

The Commission pointed out that “the international nature of criminal networks calls for more joint operations involving police, customs, border guards and judicial authorities in different Member States working alongside Eurojust, Europol and OLAF.” The Commission calls, therefore, for “more use of Joint Investigation Teams”, which “should be set up – where necessary at short notice.” The government has particularly welcomed this proposal. It is important to recall that according to the Commission’s Action Plan on the Stockholm programme, in 2012 the Commission will present a proposal for a regulation providing Eurojust with powers to initiate investigations. In fact, the Lisbon Treaty has enabled Eurojust to initiate criminal investigations. Presently, Eurojust acting as a College may ask the competent authorities of the Member States concerned, to undertake an investigation or prosecution of specific acts however such request is not binding and the Member State is not obliged to act. The Lisbon Treaty expressly provides that Eurojust’s may have the power and the responsibility to initiate criminal investigations and also the power to propose the initiation of prosecutions even though the prosecution would be conducted by the national authorities and according to Article 85 (2) “formal acts of judicial procedure shall be carried out by the competence national officials” without prejudice to European Public Prosecutor. This Provision implies a major take over of the responsibilities of national public prosecutors. In this way Eurojust tasks are too similar to the ones of the European Public Prosecutor. It is therefore essential the UK opts out from such proposals.

The Commission noted that EU action is necessary to “Protect the economy against criminal infiltration”, therefore, it will table, this year, a proposal on monitoring and assisting Member States anti-corruption efforts. The Commission will also consider to introduce further actions for enforcement of intellectual property rights and to combat sale of counterfeit goods on internet. The Commission will propose legislation for tackling online sale of counterfeit goods.

As regards “confiscate criminal assets”, the Commission will propose, this year, legislation to strengthen the EU legal framework on confiscation (Framework Decision 2001/500/JHA on money laundering and confiscation). The Commission will put forward a proposal on third-party confiscation, extended confiscation and non-conviction-based confiscation orders. The Stockholm Programme does not foresee legislation in this area. The Government believes that there is no need for further legislation on the seizure and confiscation of criminal assets.

Under the Council Decision 2007/845/JHA Member State are required to set up Asset Recovery Offices. The Commission has stressed that “Member States must by 2014 establish Asset Recovery Offices equipped with the necessary resources, powers and training, and the ability to exchange information.” Furthermore, according to the Commission “Member States should also by 2014 make the necessary institutional arrangements, for example by creating asset management offices.” The Commission is already considering to give new powers for the, not set up yet, Asset Recovery Offices.

Aiming to “Cut off terrorists’ access to funding and materials and follow their transactions”, the Commission will present a Framework for freezing terrorist assets, under Article 75 TFEU. Under this provision, the European Parliament and the Council, in order to prevent and combat terrorism, in accordance with the ordinary legislative procedure, shall adopt regulations defining a “framework for administrative measures with regard to capital movements and payments, such as the freezing of funds.” Hence, this provision entails further EU integration in this area. Whereas the Commission could have choose Article 74 whereby “The Council shall adopt measures to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Title”, promoting, in this way, cooperation between member states.

The Commission is planning to address transport security issues in a communication on Transport Security Policy to be adopted this year. According to the Commission “There is scope, and justification, for a more active European approach to the broad and complex area of land transport security, and in particular to the security of passenger transport.” Therefore, it aims “to extend existing work on urban transport security to cover (a) local and regional rail and (b) high-speed rail, including related infrastructure.” However, one could wonder what it would be the usefulness of setting up another body, this time “a standing committee on land transport security, chaired by the Commission and involving experts in transport and in law enforcement…”

As regards cybercrime, the Commission is planning to establish in 2013 an EU cyber crime centre to help develop operational and analytical capacity to investigate cyber crime and to improve international cooperation. The Commission wants, therefore, to create a new structure, which is very likely to entail further administrative burdens for member states.

In order to “Strengthen security through border management”, the Commission will put forward this year a legislative proposal to set up EUROSUR to contribute to internal security and the fight against crime. The Commission wants to enhance border surveillance with the aim to guarantee that there are no undetected unauthorised border crossings, diminishing the number of illegal immigrants who lose their lives at sea as well as increasing the EU internal security by attempting to prevent cross border crime. The Commission has stressed that counter these threats is a task for the police forces and intelligence services of Member States. Nevertheless, the Commission believes that “an effective border management system both at national and European level will provide a valuable tool for fighting cross-border crime.” Such system entails the use of new technologies such as satellite imagery to detect and track targets at the maritime border and common instruments, and the creation of a common monitoring and information sharing environment for the EU maritime domain. The Commission wants to integrate all present reporting and monitoring systems in sea areas under the jurisdiction of the Member States and in adjacent high seas into a broader network. According to the Commission EUROSUR “will establish a mechanism for Member States' authorities to share operational information related to border surveillance and for cooperation with each other and with Frontex at tactical, operational and strategic level.” Presently, the UK Government has no intention in opt into a legislative proposal setting up EUROSUR.

The Commission also wants to “Increase Europe's resilience to crises and disasters.” According to the Commission potential crises and disasters “require both solidarity in response, and responsibility in prevention and preparedness with an emphasis on better risk assessment and risk management at EU level of all potential hazards.”

The Commission intends to “Make full use of the solidarity clause.” Under Article 222 TFEU, each Member State is obliged to provide assistance to another Member State which is the object of a terrorist attack or the victim of natural or man-made disaster. This new provision provides for a collective assistance between Member States and represents a step further towards an EU common defence clause. The EU is duplicating NATO´s work. The decisions on the implementation of the solidarity clause will be made by the Council on a joint proposal by the Commission and the High Representative. The Commission is planning to present such proposal, this year. In taking such important decisions the Council will act by a QMV. However, the Council will act by unanimity if a decision has defence implications.

The Commission is also planning to develop a European Emergency Response Capacity for tackling disasters, which would be based “on pre-committed Member States' assets on-call for EU operations and pre-agreed contingency plans.” The Commission will put forward, this year, legislative proposals to implement these objectives. It remains to be seen whether the Commission proposal will provide for voluntary pre-committed member states assets or whether member states would be obliged to pre-commit disaster response assets. This would be unacceptable. Civil protection is an area of supporting, coordinating or complementary EU action. These are areas where the Member States should have exclusive competence but the Union provides support or co-ordination. Under Article 196 TFEU “The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.” Member States must continue to be able to decide where to deploy their assets.

The Commission has pointed out that any EU funding necessary for the period 2011-2013 to implement the Internal Security Strategy will come out from the current ceilings of the multiannual financial framework. However, for the period post-2013, the Commission is considering to set up an Internal Security Fund.  It should be mentioned that the Framework Programme for Research and Technological Development (security research programme), which will last till 2013, has a total budget of over €50 billion. The European Security Research Programme spends annually up to €1 billion of tax payer’s money for security research, research into surveillance and control technologies.

On 24 February, the Justice and Home Affairs Council welcomed the Commission's Communication and adopted conclusions on it. It agreed “that the European Security Model, as defined by the Internal Security Strategy and contributed to by the Commission's communication, should be based on a shared agenda for action, an appropriate balance between prevention and tackling the consequences of threats to security, the development of security policies based on common values …” The Commission reiterated “The Internal Security Strategy in Action, and the tools and actions for implementing it must be based on common values including the rule of law and respect for fundamental rights as laid down in the EU Charter of Fundamental." It stresses “Where efficient law enforcement in the EU is facilitated through information exchange, we must also protect the privacy of individuals and their fundamental right to protection of personal data.” However, the Commission has not adequately reflected these values and principles in its proposed implementing actions. One could notice that the strategy is all about gathering and exchanging information. It entails collection, storage and sharing of information between the EU institutions, agencies and the member states, using technological developments: biometrics, EU PNR, DNA and fingerprints, under the "principle of availability.” However, the European Commission’s Communication has no section dedicated to data protection. In fact, according to the European Data Protection Supervisor (EDPS) “the communication refers to privacy and data protection as fundamental rights”, but “the Commission does not explain how this will be ensured in practice.” The EU's Internal Security Strategy, presently, does not ensure a right balance between the aim of guaranteeing citizens' safety and the protection of their personal data.

Following the entry into force of the Lisbon Treaty and the adoption of the Stockholm programme, the EU has now further powers and instruments to interfere with Member States national security policies.

The ISS should be focus in achieving more cooperation between the EU institutions and agencies and the Member States, however the Commission is more concerned in coordinating member states policies and actions, proposing, therefore, further EU legislation in this area. Unsurprisingly, it seems that the Commission main aim is to harmonise member states laws. The UK may opt out from the legislative proposals proposed in the Commission’s Communication.