Steve Peers

Following the horrific attacks in Paris two days ago, the EU Commission wasted no time in announcing its intention to propose new anti-terrorism measures within a month. While the specifics of this legislation remain unclear, the very notion of enacting new laws is fundamentally flawed.

The EU institutions were right to express sympathy for the victims and emphasize their commitment to defending freedom of speech. Utilizing existing EU anti-terrorism laws, such as the European Arrest Warrant (EAW), to apprehend suspects who may have fled to another Member State, would also be appropriate. The crucial question is whether the EU truly needs additional legislation in this area.

The EU already possesses a substantial body of anti-terrorism law, developed in response to previous incidents like 9/11 and the 2004 and 2005 attacks in Madrid and London. The SECILE project provides a comprehensive catalog of these measures here. These encompass not only terrorism-specific measures (like substantive criminal law measures adopted in 2002 and revised in 2008) but also measures facilitating cooperation on terrorism and other criminal offenses. Examples include the EAW, laws concerning the exchange of police information, and regulations on cross-border evidence transmission.

Furthermore, proposals relevant to terrorism are already being discussed, such as a new law governing Europol (the EU’s police intelligence agency) - discussed here - and proposed EU legislation on sharing airlines’ passenger name records (PNR).

Considering this context, what new laws could the Commission realistically propose? One possibility is a revised data retention Directive, replacing the previous version struck down by the Court of Justice of the European Union (CJEU) last spring in the Digital Rights judgment (discussed here). Leaked documents (here and here) suggest that other ideas being considered include new laws reinforcing mandatory border checks.

However, are these new laws truly necessary? Member States can already enact laws on retaining communications data under the EU’s e-privacy directive. The European Parliament’s legal service has confirmed (see advice here) that if Member States implement such measures, they will be bound by the constraints outlined in the Digital Rights judgment, which prohibits mass surveillance without safeguards to protect privacy. Similarly, Member States are free to establish their own PNR systems even without an EU-wide measure (apart from existing EU treaties with the USA, Canada, and Australia on PNR). The European Parliament has referred the question of whether mass surveillance inherently aligns with human rights to the CJEU. This request for a ruling arises from concerns regarding the EU/Canada PNR treaty (see discussion here).

While it would be possible to introduce new laws mandating systematic border checks under specific circumstances, this would likely translate to targeting Muslims returning from countries like Syria. It is doubtful whether intensified questioning at external borders would significantly contribute to preventing terrorism. The tragic events in Paris demonstrate that even extensive anti-terrorist legislation and personal bodyguards for a known terrorist target cannot guarantee absolute prevention.

There is also a fundamental principle at stake. The Paris attacks targeted free speech, the very bedrock of liberal democracy. While efforts to prevent similar attacks are crucial, existing laws already permit targeted intelligence gathering and sharing. The Commission’s immediate response suggests a sense of panic. Furthermore, this direct assault on fundamental democratic principles in Paris is precisely the wrong time to consider new legislation that could potentially erode other fundamental freedoms.

Barnard & Peers: chapter 25