Evolution of the Institutional Foundations for Combating Terrorism The position of the European Community on the issue of terrorism has

undergone a significant evolution: from a flexible and informal coopera-tion between the police and experts to the making of regulations effective in all member states. At the early stage, the measures under penal law di- rected at terrorism were considered as belonging to the exclusive jurisdic-tions of each member state of the Community. The mounting threat from the leftist and separatist terrorist organizations in the 1970s motivated the establishment of the first institutionalized forms of cooperation on home security. In 1975, the meeting of ministers of justice and internal affairs in Rome appointed the TREVI Group,²⁷ gathering experts from the Commu- nity member states, whose responsibility was to collect and share informa- tion on the activity of terrorist groups, as well as offer training and expe-rience exchange. The police in individual states formed permanent units

26 The Warsaw Convention (I) exerted direct infl uence on the content of Council Frame- The Warsaw Convention (I) exerted direct influence on the content of Council Frame-work Decision 2008/919/JHA of 28 November 2008 (OJ L 330, 9.12.2008),

27 Cf. Julien-Laferri�re, F. „Entry, Residence and Employment of Foreigners in the Com- Cf. Julien-Laferri�re, F. „Entry, Residence and Employment of Foreigners in the Com-munity,” in: What Kind of Criminal Policy for Europe? Delams-Marty, M., ed., The Hague 1996, p.

53, Lodge, J. “Sustaining Freedom, Security and Justice –From Terrorism to Integrity,” LLRev 24 (2002), p. 49.

 The European Union’s Position on Terrorism maintaining direct contact with one other and allowing quick response and assistance in investigations.²⁸

The normative grounds for the harmonization of penal law on com-bating terrorism were given by the Treaty on European Union done at Maastricht on 7 February 1992²⁹ (hereinafter: the MTEU). Cooperation in justice and home affairs was recognized as one of the three “pillars” of the European Union. Terrorism was ranked among the most serious crimes whose combating is one of the “matters of common interest” of the EU member states (Article K.1(9) of the MTEU). To ensure closer cooperation and coordinated action, the Maastricht Treaty granted the Council the right to adopt joint positions, adopt joint action and draw up conventions (Article K.3 of the MTEU). In practice, however, none of these three legal instruments played a part in the unification of legal solutions prevailing in individual states. They were rather seen more as a declaration of a united Europe than a platform for legislative action. A hindrance to the harmoniz-ing of home laws was not only the diversity of legal systems and culture, but also the traditional attachment of each member state to exclusive ju-risdiction in criminal matters resulting from the principle of sovereignty.

It was difficult to achieve the required unanimity in the decision-making process in the Council; likewise, there were no mechanisms put in place allowing for the control of the implementation of relevant commitments made by individual states.³⁰ The establishment of the European Police Of-fice (Europol), under Article K.3 of the MTEU, should then be regarded as a success. This organization was established by a convention done at Brus-sels on 26 July 1995,³¹

and its main responsibility was to foster effective col-28 Cf. Den Boer, M. „Law-Enforcement Cooperation and Transnational Organized Crime in Europe,” in: Transnational Organized Crime and International Security. Business as Usual? Ber-dal, M., Serrano, M., eds., Boulder 2002, pp. 103-104, Harding, Ch., Swat, B. “Intergovernmental Co-operation in the Field of Criminal Law,” in: Criminal Justice In Europe. A Comparative Study, Harding, Ch., Fennell, Ph., Jörg, N., Swat, B., eds., Oxford 1995, p. 96, Jasiński, F., Rakowski, P. „Unia Europejska wobec walki z terroryzmem,” in: Zwalczanie przestępczości w Unii Europej-skiej. Współpraca sądowa i policyjna w sprawach karnych, Górski, A., Sakowicz, A., eds., Warszawa 2006, pp. 131-132, Messelken, D. Europas Antiterrorismus-Politik. Entstehung, Entwicklung, Per-Entstehung, Entwicklung, Per-spektiven, Berlin 2003, pp. 9-10, Van Oudenaren, J. Uniting Europe: An Introduction to the European Union, Lanham 2005, pp. 232-233.

29 Treaty on European Union signed in Maastricht on 7 February 1992 (OJ C 191, 29.7.1992).

30 Cf. Den Boer, M. „The Fight against Terrorism in the Second and Third Pillars of the Maastricht Treaty: Complement or Overlap?” in: European Democracies Against Terrorism. Gov-ernmental policies and intergovGov-ernmental cooperation, Reinares, F., ed., Ashgate 2000, pp. 222-223, Maroń, H. Integracja europejska a prawo karne, Toruń 2003, p. 22.

31 OJ C 316, 27.11.1995.

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The Approach of the Council of Europe and the European Union  

laboration and liaison among the competent authorities of the EU member states in preventing and combating terrorism (Article 2(1)).

Important changes in the field of EU justice and home affairs were in-troduced by the Treaty of Amsterdam, signed on 2 October 1997.³² The trea-ty named one of the EU’s objectives as “to provide citizens with a high level of safety within an area of freedom, security and justice” (Article 29). When determining the scope of judicial cooperation in criminal matters, the treaty expressly refers to, for example, progressively adopting measures estab-lishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking (Article 31(e)). The cited provisions of the Treaty of Amsterdam created, in their respective scope of influence, a normative basis for the use of legal means binding for all the EU member states and enabling the ap-proximation of national laws. Essential for this harmonization of penal law were framework decisions issued by the European Council.

The trend towards the gradual approximation of penal laws of the EU member states as regards the suppression of terrorism was vindicated in the Action Plan adopted at the European Council meeting in Tampere on 15-16 October 1999.³³ Among the basic EU’s objectives called “the Tampere milestones,” the following were listed: protection of the victims of crime (paragraph 32), setting up of joint investigative teams (paragraph 43), and setting up of Eurojust (paragraph 46) – the body facilitating the coordina-tion and support of criminal investigations in different countries.

The terrorist attacks of 11 September 2001 in the United States exerted a tremendous influence on the speeding up of terrorism-related decision-making under the third pillar of the EU.³⁴ These events triggered a pro-found change in shifting from political and program-like declarations to tangible legislative action. In consequence, many past proposals shelved

32 OJ C 340, 10.11.1997.

33 Full text available at: www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/

ec/00200-r1.en9.htm; conclusions from the meeting are discussed at length in Gruszczak, A. „III filar Unii Europejskiej po Tampere: Wnioski i perspektywy,” SE 3 (2000), pp. 87-106.

34 These developments in the literature are deemed to be „a catalyst” for the EU’s action in combating terrorism and cooperation in criminal matters; cf. Vennemann, N. „Country Report on the European Union,” in: Terrorism as a Challenge for National and International Law: Security versus Liberty? Walter, C., Vöneky, S., Röben, V., Schorkopf, F., eds., Springer 2004, pp. 229-230, Den Boer, M. “The EU Counter-Terrorism Wave: Window of Opportunity or Profound Policy Transformation?” in: Confronting Terrorism, European Experiences, Threat Perceptions and Policies, Van Leeuwen, M., ed., Hague 2003, p. 189.

 The European Union’s Position on Terrorism for years finally took the shape of purpose-made legal measures effective in all member states.

Having arrived at a political agreement, the Council issued several important framework decisions directly affecting the matter of penal law.

Pivotal for this subject was Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism,³⁵ which obliges the EU member states to accept an approximated definition of terrorist offences in national laws and enforce sanctions reflecting the seriousness of such offences. Pro-cedural measures against terrorism were introduced in Council Frame-work Decision 2002/465/JHA of 13 June 2002 on joint investigation teams³⁶ and in Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.³⁷

3.2. Terrorism Suppression Strategy Adopted in the European Union