4 Implementing the EU's Internal Security
Strategy
(32237)
16797/10
COM(10) 673
| Commission Communication: The EU Internal Security Strategy in Action: Five steps towards a more secure Europe
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Legal base |
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Document originated | 22 November 2010
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Deposited in Parliament | 25 November 2010
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Department | Home Office
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Basis of consideration | EM of 29 November 2010
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Previous Committee Report | None
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To be discussed in Council | 2 December 2010
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Committee's assessment | Politically important
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Committee's decision | For debate in European Committee B
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Background
4.1 Security is one element of the Area of Freedom, Security and
Justice which was introduced by the Amsterdam Treaty and which
is now contained in Title V of Part Three of the Treaty on the
Functioning of the European Union (TFEU). While the Treaties establishing
the European Union refer, variously, to "national security",
"public security" and "internal security",
they do not define these terms. The Lisbon Treaty states expressly
that "national security remains the sole responsibility of
each Member State"[14]
but the division of responsibilities in respect of internal security
is less clear-cut.
4.2 Article 72 TFEU suggests that Member States also remain the
principal actors as regards internal security. It provides that
EU measures implementing the Area of Freedom, Security and Justice
"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".[15]
When exercising these responsibilities, Member States remain outside
the purview of the EU's Court of Justice and the Court also lacks
jurisdiction to review the validity or proportionality of operations
carried out by police or other national law enforcement bodies
to maintain law and order or safeguard internal security.
4.3 It is clear, however, that the EU has an increasingly important
role in coordinating action taken by Member States to protect
internal security. This is reflected in the Lisbon Treaty which
established a new standing committee called COSI
responsible for operational cooperation on internal security.[16]
Unlike COREPER, COSI is not involved in preparing legislative
acts. Its purpose is to facilitate, promote and strengthen operational
action in the field of internal security involving national law
enforcement bodies and, where appropriate, EU agencies such as
Eurojust, Europol and Frontex.[17]
4.4 The importance of internal security is also reflected in the
Stockholm Programme, a five-year programme agreed by the European
Council in December 2009 which establishes the priorities for
EU action in the Area of Freedom, Security and Justice for 2010-14
and which, for the first time, calls on the Council and Commission
to develop a comprehensive EU internal security strategy. According
to the European Council, the strategy should:
"further improve security in the Union and thus protect
(the) lives and safety of European citizens and tackle organised
crime, terrorism and other threats. The strategy should be aimed
at strengthening cooperation in law enforcement, border management,
civil protection, disaster management as well as criminal judicial
cooperation in order to make Europe more secure."[18]
4.5 At the same time, the European Council recognised that the
principal challenge for the EU and Member States in implementing
the Stockholm Programme would be "to ensure respect for fundamental
freedoms and integrity while guaranteeing security in Europe",
adding:
"It is of paramount importance that law enforcement measures
and measures to safeguard individual rights, the rule of law,
and international protection rules go hand in hand in the same
direction and are mutually reinforced."
4.6 In February 2010, the Spanish Presidency proposed an EU Internal
Security Strategy which the European Council endorsed in March.
The Strategy sets out the following common threats and challenges
confronting EU Member States:
- terrorism;
- serious and organised crime;
- cybercrime;
- cross-border crime (including petty or property
crime which has a significant impact on the daily lives of people);
- violence (notably, youth violence or hooliganism
at sports events);
- natural and man-made disasters; and
- other common phenomena which create safety and
security threats, such as road traffic accidents.
4.7 The Strategy identifies the ways in which the
EU and Member States can respond to these threats and challenges
and then sketches out the basis for a new "European Security
Model" which would use "a more integrated approach"
to law enforcement and judicial cooperation, border management
and civil protection, based on a common set of principles and
ten strategic guidelines for action. The principles are:
- respect for fundamental rights,
international protection, the rule of law and privacy;
- protection of all citizens, especially the most
vulnerable, with particular focus on victims of crime;
- transparency and accountability in security policies;
- the use of dialogue to resolve differences and
ensure respect for the principles of tolerance and freedom of
expression;
- integration, social inclusion and action to combat
discrimination;
- solidarity between Member States; and
- mutual trust.
4.8 The Internal Security Strategy contemplates that
the Commission will adopt a Communication setting out "action
oriented proposals" to implement the Strategy and also consider
the feasibility of establishing an Internal Security Fund.
The Commission Communication on the EU Internal
Security Strategy
4.9 The Commission first sets out the EU's role in
internal security which, it says, "consists of common policies,
legislation and practical cooperation in the areas of police and
judicial co-operation, border management and crisis management."
Actors involved in implementing the EU's Internal Security Strategy
include "Member States, the European Parliament, the Commission,
the Council and agencies and others, including civil society and
local authorities." The Commission adds that the "shared
agenda" which it proposes in its Communication should be
supported by "a solid EU security industry in which manufacturers
and service providers work closely together with end-users."[19]
4.10 The Commission also emphasises the need for
"coherence and complementarity between internal and external
aspects of EU security". It says that the EU's internal security
priorities should play an increasing part in political dialogue
with third countries and that EU delegations should, where appropriate,
include security experts (for example, Europol liaison officers).
4.11 The Commission proposes five Strategic Objectives
as the focus for EU action for 2011-14, each one accompanied by
a set of specific actions identifying which body is responsible
for implementation and indicating when each action should be initiated.
The five Strategic Objectives are highlighted below in bold, followed
by a brief description of the actions envisaged to implement them.
Objective 1 disrupting international criminal
networks
4.12 The Commission advocates the strengthening of
practical law enforcement co-operation "across all sectors
and at different levels" to trace and confiscate the profits
generated by crime, including "where necessary through legislation
on judicial cooperation to strengthen mutual recognition and common
definitions of criminal offences and minimum levels of criminal
sanctions."[20]
Specific actions proposed include:
- new EU legislation on the collection
of Passenger Name Records (PNR data) to help prevent and prosecute
terrorist and other serious criminal offences;
- a strengthening of EU anti-money laundering legislation;
- greater involvement of Europol, Eurojust and
OLAF (the EU's anti-fraud agency) in joint operations tackling
criminal networks and the establishment, where needed, of Joint
Investigation Teams;
- EU proposals to assist Member States in combating
corruption;
- further development of the "administrative
approach" to tackling crime (for example, involving governmental
or regulatory bodies responsible for granting licences or procurement
contracts);
- initiatives to improve the enforcement of intellectual
property rights and to tackle counterfeiting and piracy;
- the establishment of effective Asset Recovery
Offices in each Member State; and
- further legislative measures to seize and confiscate
criminal profits and assets.
Objective 2 preventing terrorism and addressing
radicalisation and recruitment
4.13 The Commission observes that Member States are
the primary actors in tackling terrorism and that "the core
of the action on radicalisation and recruitment is and
should remain at national level."[21]
Actions proposed by the Commission include:
- the creation of an "EU
radicalisation awareness network" bringing together policy
makers, law enforcement officials, local authorities, academics
and civil society organisations to share knowledge and best practice;
- supporting the work of civil society in exposing
and challenging violent extremist propaganda;
- establishing a framework for administrative measures
to freeze the assets of those involved in terrorist activity,
using the powers set out in Article 75 of the Treaty on the Functioning
of the European Union (TFEU);[22]
- regulating access by the public to chemical precursors
used to make explosives and strengthening the EU's dual use export
control system to tighten controls on the supply of substances
which could be used to make explosives or weapons of mass destruction;
- developing an EU terrorist finance tracking programme
which provides for the extraction and analysis of financial messaging
data;
- strengthening aviation and maritime security,
harnessing new technology such as Galileo and GMES (Global Monitoring
for Environment and Security) and working "to ensure public
acceptance by seeking an even better balance between the highest
possible level of security and travel comfort, cost control, and
the protection of privacy and health";[23]
and
- developing a more active EU approach to the security
of passenger transport on land.[24]
Objective 3 raising levels of cyber security
for citizens and business
4.14 The Commission highlights the global scale of
cyber crime and the difficulties it presents for criminal justice
systems in terms of establishing jurisdiction and securing a successful
prosecution. Actions proposed by the Commission include:
- establishing an EU cyber crime
centre by 2013 to help develop operational and analytical capacity
to investigate cyber crime and to improve international cooperation;
- developing guidance on cyber threats, basic precautions
to counter threats, and systems for reporting cyber crime incidents;
- using the European Public-Private Partnership
for Resilience (EP3R) to improve the security of critical infrastructure;
and
- establishing by 2012 a network of governmental
Computer Emergency Response Teams (CERTs) and, by 2013, a European
Information Sharing and Alert System (EISAS).
Objective 4 strengthening security through
border management
4.15 The Commission says that the EU's border management
strategy should integrate the twin objectives of managing migration
and combating crime. The Commission proposes:
- establishing in 2011 a new
European Border Surveillance System (EUROSUR) which will use satellite
imagery and other new technologies to detect and track targets
at the EU's maritime border and which will enable Member States
to share with each other and with Frontex operational information;
- facilitating the sharing of information on criminals
and trafficking networks between Frontex and Europol;
- producing an annual report on specific cross-border
crimes, such as human trafficking or the smuggling of illicit
goods, as the basis for a further assessment of the need for Frontex
and police, customs and other specialised law enforcement authorities
to undertake joint operations;
- improving EU capabilities for assessing the risk
of safety and security threats associated with the free movement
of goods across the EU's external border;
- improving the coordination of border checks carried
out by different national authorities (police, customs and border
guards) and developing, by 2011, common risk analyses to help
identify "hot spots", for example the repeated use of
certain border crossing points to smuggle drugs or people; and
- developing, by 2014, with Frontex, Europol and
the European Asylum Support Office minimum standards and best
practices for interagency co-operation at the external border.
Objective 5 increasing Europe's resilience
to crises and disasters
4.16 The Commission emphasises the need for better
risk assessment and management at EU level and more effective
and coherent crisis response mechanisms. Specific actions proposed
include:
- giving effect to the new "solidarity
clause" established by the Lisbon Treaty;[25]
- developing EU risk assessment and mapping guidelines
for disaster management and drawing on national threat assessments
in order to establish, by 2014, an EU risk management policy which
will ensure a better link between threat and risk assessments
and decision making;
- building the capacity for multi-source analyses
and assessments through better information sharing between Member
States, EU agencies (such as Europol, Eurojust, Frontex), the
European External Action Service and the EU's Situation Centre;
- developing, in 2011, a general framework to protect
"classified information"; and
- establishing a European Emergency Response Capacity
which will draw on a pool of pre-committed assets from Member
States.
4.17 The Commission says that any funding needed
to implement the Internal Security Strategy for the period 2011-13
will be found within the current ceilings of the EU's financial
framework, but expenditure from 2014 onwards remains to be determined
as part of the negotiations for the next multiannual financial
framework. Within that context, the Commission will consider the
feasibility of establishing a dedicated Internal Security Fund.
4.18 The Commission will produce an annual report
to monitor progress in implementing the Internal Security Strategy,
including an assessment of the impact of EU actions and a description
of the internal security situation within the EU.
The Government's view
4.19 The Parliamentary Under-Secretary of State for
Crime Prevention (James Brokenshire) says that the Government
"broadly agrees" with the five Strategic Objectives
identified in the Communication and supports greater practical
cooperation between Member States and EU institutions and agencies.
He adds that the UK has advocated "a more holistic approach
to internal security matters" in COSI and emphasised the
importance of engaging with third countries. However, he also
expresses reservations about a number of actions proposed in the
Communication which, he says:
"departs from the Council's Internal Security
Strategy by proposing new EU structures, including an EU cyber
crime centre, and new competence such as powers for new asset
recovery offices. It also proposes legislation, such as a revised
legal framework on asset recovery, which was unforeseen in the
Stockholm Programme. By contrast, the ISS explicitly acknowledges
'the framework of the Stockholm Programme'. Such legislative proposals
also run counter to the focus of the ISS and COSI on practical
measures and cooperation instead of new EU legislation. In addition,
we do not feel that the Commission's proposals on tackling terrorism
place enough focus on bilateral and multilateral cooperation between
Member States. The Government will present these views at discussions
of the Communication at JHA Council."[26]
4.20 Elements of the Communication which the Government
welcomes include:
- more joint operations and greater
use of Joint Investigation Teams to tackle criminal networks;
- further development of the "administrative
approach" to tackling crime;
- improving information sharing and coordination
on land transport security;
- developing an EU-wide awareness programme to
provide practical guidance to citizens on cyber threats;
- enhancing cooperation between national Computer
Emergency Response Teams;
- facilitating the exchange of personal data between
Frontex and Europol, subject to adequate data protection safeguards;
and
- streamlining existing early warning and alert
systems and improving crisis coordination across the EU.
4.21 While the Government continues to advocate EU
legislation on the collection of Passenger Name Records (PNR data)
for journeys within the EU, it expresses a general reservation
about the need for further legislation, for example:
- on the seizure and confiscation
of criminal assets;
- on the online sale of counterfeit goods; and
- on tackling cyber crime.
4.22 The Government opposes the use of Article 75
TFEU to develop a framework for administrative measures to freeze
the assets of those involved in terrorist activity and suggests,
instead, the use of Article 74 TFEU which contemplates "administrative
cooperation" between national authorities and with the Commission.[27]
While supporting "the principle of a genuinely voluntary
asset pool" for crisis response, the Government says that
it would "resist moves to prioritise EU operations over national
operations, or to introduce a legal presumption that Member States
will pre-commit disaster response assets for EU deployment, or
any move to limit the right of Member States to decide asset deployments
domestically or internationally".[28]
4.23 The Government also highlights what it considers
to be an omission in the actions proposed on border security,
stating that "the only true deterrent to illegal migration
into the EU is an enhanced expectation of swift return to the
migrant's country of origin. The Government would therefore have
welcomed the inclusion of measures to strengthen capacities in
the area of voluntary and forced returns".[29]
4.24 The Minister tells us that the Council is likely
to discuss possible Conclusions relating to the Communication
early in 2011. He anticipates that the General Affairs Council
in December will adopt Conclusions on a related Commission Communication
Towards a stronger European disaster response: the role of
civil protection and humanitarian assistance which concerns
some of the actions proposed for implementing Strategic Objective
5 on strengthening Europe's resilience to crises and disasters.[30]
Conclusion
4.25 The Internal Security Strategy agreed in
March is the first attempt by the EU to articulate in one document
a comprehensive European approach to internal security and to
define a distinctive European security model. The Strategy is
extremely broad in scope, ranging from terrorism and serious organised
crime to hooliganism, petty crime and road traffic accidents.
It also encompasses a large array of actors, from traditional
law enforcement and civil protection authorities to academics,
the private security industry and broader elements of civil society.
4.26 The Internal Security Strategy and the Commission
Communication which seeks to implement it raise a number of important
issues. For example:
- Do they give sufficient
weight to the freedom and justice elements of the Area of Freedom,
Security and Justice?
While the Stockholm Programme, Internal Security
Strategy and Commission Communication all emphasise the common
values and principles that should be
the distinguishing feature of any European Security Model
notably, safeguarding individuals' rights and protecting their
privacy, ensuring that any intrusion is necessary and proportionate,
and complying with international protection rules at the EU's
borders are these values and principles adequately reflected
in the specific implementing actions proposed by the Commission?
- How strategic are the five
Objectives identified in the Communication?
Do they capture the main security challenges confronting
the EU and Member States or are they simply a means of re-packaging
existing initiatives?
- How active a role should
the UK play in the initiatives proposed to implement the Internal
Security Strategy, and how
might the UK best influence the shape and future direction
of the Strategy?
The UK's Opt-In will apply to many of the areas
covered by the Internal Security Strategy. It is clear that the
Commission contemplates further legislation to establish common
definitions of serious crimes and minimum levels of criminal sanctions
as a means of tackling serious crime and disrupting criminal networks,
and cites in the Communication recent initiatives on human trafficking,
sexual exploitation of children and cyber crime. The Government
has expressed a reluctance to support a number of legislative
initiatives proposed in the Communication. It has also already
decided not to opt into a draft Directive on human trafficking
(although it may review its decision once the Directive has been
adopted), but has opted into a draft Directive on the sexual exploitation
of children. A decision is pending on a draft Directive on attacks
against information systems. The Government could therefore be
said to be at a critical juncture in defining the nature and extent
of its participation in many of the areas covered by the Internal
Security Strategy and Communication. How might individual opt-in
decisions taken by the Government affect the UK's broader influence
over the future shape and direction of the European security model?
4.27 In light of the political importance of the
issues we have highlighted, we recommend that the Communication
should be debated in European Committee B.
14 See Article 4(2) of the Treaty on the European Union
(TEU). Back
15
Previously Article 64 of the EC Treaty. Back
16
See Article 71 TFEU. Back
17
See Council Decision 16515/09 establishing COSI. Back
18
See paragraph 1.1 of the Stockholm Programme, Council document
17024/09. Back
19
See page 2 of the Communication. Back
20
See page 4 of the Communication. Back
21
See page 7 of the Communication. Back
22
Article 75 provides for the Council and European Parliament to
"define a framework for administrative measures with regard
to capital movements and payments, such as the freezing of funds,
financial assets or economic gains belonging to, or owned or held
by, natural or legal persons, groups or non-State entities"
in order to prevent and combat terrorism and related activities.
Back
23
See page 8 of the Communication. Back
24
The Commission says that it will issue a further Communication
on Transport Security Policy in 2011. Back
25
Article 222 TFEU requires Member States and the Union to "act
jointly in a spirit of solidarity if a Member State is the object
of a terrorist attack or the victim of a natural or man-made disaster"
and provides for the Union to mobilise all instruments at its
disposal to provide assistance. Back
26
See paragraph 24 of the Minister's Explanatory Memorandum. Back
27
Measures based on Article 74 TFEU are not adopted by a legislative
procedure involving the European Parliament, whereas the general
framework provided for in Article 75 TFEU requires co-decision
with the EP. Back
28
See paragraph 23 of the Minister's Explanatory Memorandum. Back
29
See paragraph 21 of the Minister's Explanatory Memorandum. Back
30
See (32124) 15614/10: HC 428-ix (2010-11), chapter 9 (24 November
2010). Back
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