The legal framework of the European Union's counter-terrorist policies: full of good intentions?

Terrorism has become one of the main buzz words of our times. This has not left the European Union (EU)’s policies unaffected. Indeed, it is fair to say that counter-terrorism is one of the fastest developing policy regimes within the EU. This might be particularly surprising given that it is somewhat controversial whether the EU should play a role in the fight against terrorism at all. Certainly the particularities of the European legal order create additional obstacles to adopting a coherent counter-terrorist policy regime. In the last decade both the quality and the quantity of activities aimed to contain terrorism have increased tremendously within the EU. Today, the EU has developed its own counter-terrorist policies that include measures under the former Community pillar. In particular, the European Council’s ‘Action Plan’ to fight terrorism on 21 September 2001 marks the opening of a new chapter in the EU’s counter-terrorist activities. Part of this development is that the fight against terrorism has become one of Justice (AFSJ). This both reflects and shapes the EU’s choice of taking a criminal law approach to fighting terrorism. The Council described the objectives of the AFSJ as: (1) extending free movement of persons, protecting fundamental rights, and promoting EU citizenship while facilitating the integration of third country nationals (freedom); (2) fighting against all forms of organised crime (security); (3) guaranteeing European citizens equal access to justice and facilitating cooperation between Member States’ judicial authorities (justice).

The aim of this chapter is twofold. First, it will highlight and discuss the specific problems of justification that the EU faces when fighting terrorism. If one accepts that some form of action aiming at containing terrorism is necessary, it is widely accepted that states should take a role in this. By contrast, a basic doubt remains whether the EU is the right actor to adopt a counter-terrorist policy regime. Secondly, this chapter will examine how the constitutional particularities of the European legal order shape the EU’s counter-terrorist policies. This includes comparing the EU’s counterterrorist policies to international and national counter-terrorist policies.