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Document 52017PC0607
Proposal for a COUNCIL DECISION on the conclusion, on behalf of the European Union, of the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (CETS No. 217)
Proposal for a COUNCIL DECISION on the conclusion, on behalf of the European Union, of the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (CETS No. 217)
Proposal for a COUNCIL DECISION on the conclusion, on behalf of the European Union, of the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (CETS No. 217)
COM/2017/0607 final - 2017/0266 (NLE)
EUROPEAN COMMISSION
Brussels, 18.10.2017
COM(2017) 607 final
2017/0266(NLE)
Proposal for a
COUNCIL DECISION
on the conclusion, on behalf of the European Union, of the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (CETS No. 217)
EXPLANATORY MEMORANDUM
1.SUBJECT-MATTER OF THE PROPOSAL
The Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism ‘the Additional Protocol’) was adopted by the Committee of Ministers on 19 May 2015. The European Union signed the Additional Protocol on 22 October 2015 1 . The present proposal concerns the decision to conclude the Additional Protocol on behalf of the Union.
The Additional Protocol (Convention No. 217) supplements the Convention on the Prevention of Terrorism (Convention No. 196). To be able to conclude the Additional Protocol, the European Union must have concluded or simultaneously conclude Convention No. 196 2 . The present proposal is therefore accompanied by, and must be read together with, a proposal concerning a decision to conclude Convention No. 196 on behalf of the Union.
2.CONTEXT OF THE PROPOSAL
The objective of the Additional Protocol is to supplement Convention No. 196 with a series of provisions aimed at implementing the criminal law aspects of UN Security Council Resolution 2178(2014) on “Threats to international peace and security caused by terrorist acts”. In the Resolution, the Security Council called on Member States of the United Nations to take a series of measures aimed at preventing and curbing the flow of foreign terrorist fighters to conflict zones.
The Additional Protocol responds to this call by furthering a common understanding of and response to foreign terrorist fighter-related offences, which serves as a benchmark for information exchange and facilitates cross-border investigations and prosecutions of acts of a preparatory nature having the potential and danger of leading to the commission of terrorist offences.
The Additional Protocol thus provides for the criminalisation of the following acts: Participation in an association or group for the purpose of terrorism (Article 2), receiving training for terrorism (Article 3), travelling or attempting to travel for terrorist purposes (Article 4), providing or collecting funds for such travels (Article 5) and organising and facilitating such travels (Article 6). Finally, Article 7 aims at enhancing information exchange by obliging Parties to designate a contact point to provide or treat requests for available information in a timely manner.
Article 2 is considered as an important instrument in effectively investigating and prosecuting those contributing with their activities to the commission of terrorist offences by terrorist groups.
Article 3 provides for the criminalisation of acts of a preparatory nature, i.e. receiving terrorist training, complementing the existing offence of providing training as defined in Article 7 of Convention No. 196. At the same time, the provision in Article 3 enhances legal certainty and the effectiveness of Articles 4 – 6 of the Additional Protocol in that it provides for a definition of receiving terrorist training which is mentioned as one of the purposes of the travel.
Articles 4 to 6 are meant to transpose operative paragraph 6 a) – c) of UNSCR 2178(2014). They expand the scope of criminalisation to other acts of a preparatory nature going beyond those already covered by Convention No. 196 (i.e. public provocation, providing training and recruitment to terrorism).
With the provision on enhanced information exchange/contact points in Article 7, the Additional Protocol responds to a call in operative paragraph 3 of the UNSCR 2178(2014) for more international cooperation while more specifically facilitating the prevention and investigation of departures to third countries with the purpose of committing terrorist offences or participating in terrorist training activities.
The Additional Protocol came into force on 1 July 2017. As of 11 July 2017, three EU Member States have ratified the Additional Protocol, and twenty-four EU Member States have signed it 3 . The European Union signed the Additional Protocol on 22 October 2015.
3.REASONS FOR THE PROPOSAL
The terrorist threat has grown and rapidly evolved in recent years. Individuals referred to as ‘foreign terrorist fighters’ travel abroad for the purpose of terrorism. Returning foreign terrorist fighters pose a heightened security threat to all Member States. Foreign terrorist fighters have been linked to recent attacks and plots in several Member States. In addition, the Union and its Member States face increased threats from individuals who are inspired or instructed by terrorist groups abroad. Action against terrorism needs to be stepped up, not only at national level, but also at pan-European level and beyond.
Terrorism has a global character and represents a growing threat to fundamental rights, democracy and the rule of law in Europe and all over the world. Terrorist attacks are indiscriminate. The victims of terrorism can come from anywhere.
The terrorist attacks perpetrated in the last years in the European Union and elsewhere in the world were unacceptable infringements of the principles which underpin democratic societies. In the face of such an enduring threat, the European Union is more than ever obliged to act united to promote and uphold the principles which are its raison d’être.
The cross-border nature of terrorism requires strong international cooperation. A common understanding of foreign terrorist-fighter-related offences and criminal offences of a preparatory nature with the potential to lead to the commission of terrorist acts contributes to further enhancing the effectiveness of the criminal justice instruments and cooperation at Union and international level. The fact that legal norms in this sphere – including those that apply within the EU – are often derived from international instruments such as the Additional Protocol further underscores the need for the European Union to speak with a single voice on the international plane.
Finally, the European Union has adopted a comprehensive set of legal instruments to fight terrorism, as described below. The provisions contained in these instruments coincide almost fully with the provisions of the Additional Protocol. The Additional Protocol is liable to affect those common rules or alter their scope.
With the adoption of Directive (EU) 2017/514 on combating terrorism, the European Union is ready to complete its commitment to be a party to the Additional Protocol by conclusion of that instrument.
4.LEGAL ELEMENTS OF THE PROPOSAL
4.1Union competence to conclude the Additional Protocol
Article 3(2) TFEU provides that the Union has exclusive competence “for the conclusion of an international agreement ... in so far as its conclusion may affect common rules or alter their scope.” An international agreement may affect common rules or alter their scope where the area covered by the agreement overlaps with Union legislation or is covered to a large extent by Union law 4 .
The Union has already adopted measures in the area covered by the Additional Protocol, including substantive criminal law provisions as well as a provision on enhanced information exchange. The EU legal framework governing criminal offences related to terrorism is laid down in Directive (EU) 2017/541 on combating terrorism 5 , which replaces the Council Framework Decision 2002/475/JHA on combating terrorism with regard to the Member States bound by the Directive. Recital 5 of the Directive refers specifically to UNSCR 2178(2014) and the Additional Protocol. The Directive sets the criminal legal framework for all crimes defined by the Additional Protocol, and provides accompanying rules on sanctions, jurisdiction and liability of legal persons.
The provisions of the Additional Protocol relating to information exchange are covered by Council Decision 2005/671/JHA on the exchange of information and cooperation concerning terrorist offences 6 , which Directive (EU) 2017/541 also amends.
Other relevant Union instruments in this regard are notably Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union 7 , as well as Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combatting terrorism and cross-border crime (Prüm-Decision) 8 . These instruments regulate on the one hand information exchange for the purpose of criminal investigations in terrorist related matters and the establishment of contact points for the exchange of information on the other. Europol 9 in particular supports the police cooperation between Member States and amongst Member States and Third countries, to adequately respond to the phenomenon of foreign terrorist fighters.
The area covered by the Additional Protocol overlaps with Union legislation and is, in any event, covered to a large extent by Union law. Its conclusion may therefore ‘affect common rules or alter their scope’ within the meaning of Article 3(2) TFEU. The Union accordingly has exclusive competence to conclude the Additional Protocol.
4.2The legal basis for the proposed decision
The choice of legal basis for an EU measure must rest on objective factors that are amenable to judicial review; these include the aim and the content of the measure 10 . If examination of a European Union measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component.
The predominant purpose of the Additional Protocol is to introduce criminal offences related to terrorism, for which the Union has competence based on Article 83(1) TFEU. The substantive legal basis for signing the Additional Protocol is therefore Article 83(1) TFEU. Article 7 on enhanced information exchange through designation of contact points facilitates the detection, prevention and investigation of those traveling or attempting to travel and thus faciltates the practical application of Article 4 of the additional protocol. It is therefore of an ancillary nature.
The Directive on combating terrorism, the main purpose of which is to set minimum rules concerning the definition and sanctions of terrorist and terrorism-related offences, was also adopted on the basis of Article 83(1) TFEU. It also includes provisions to improve the exchange of information and the support and protection of victims of terrorism.
Article 218(6) TFEU provides that the Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement. Article 218(6)(a) TFEU provides that, where an agreement covers fields to which the ordinary legislative procedure applies, the Council shall adopt a decision concluding the agreement after obtaining consent of the European Parliament.
The Additional Protocol covers fields to which the ordinary legislative procedure applies, namely the setting of minimum rules concerning the definition of criminal offences in the area of terrorism (Article 83(1) TFEU) where consent by the European Parliament is required. The procedural legal basis of the proposed decision is therefore Article 218(6)(a) TFEU.
4.3Contact point for exchange of information
Pursuant to Article 7 of the Protocol, Parties are to designate a contact point for the 24/7 exchange of information on foreign terrorist fighters. It is proposed to designate Europol as this contact point, under the conditions stipulated in Regulation (EU) 2016/794 on relations with partners and the transfer and exchange of personal data.
4.4Territorial Application
In accordance with Protocol 22 of the Treaty of the European Union, the Additional Protocol signed and eventually concluded by the European Union is binding upon and applies in all EU Member States with the exception of Denmark. In accordance with Protocol 21 of the Treaty of the European Union, the Additional Protocol signed and eventually concluded by the European Union is binding upon and applies in the United Kingdom only insofar as this Member State notifies the Council of its wish to take part in the adoption and application of this instrument. Ireland is bound by Framework Decision 2002/475/JHA and is therefore to take part in the adoption of this Decision.
2017/0266 (NLE)
Proposal for a
COUNCIL DECISION
on the conclusion, on behalf of the European Union, of the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (CETS No. 217)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 83(1), in conjunction with Article 218(6)(a) thereof,
Having regard to the proposal from the European Commission,
Having regard to the consent of the European Parliament,
Whereas:
(1)In accordance with Council Decision (EU) 2015/1914 of 18 September 2015 11 , the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196) ("the Additional Protocol") was signed on 22 October 2015, subject to its conclusion.
(2)Article 10 of the Additional Protocol provides that the Additional Protocol shall be open for approval by the European Union.
(3)The Union has already adopted measures in the different areas covered by the Additional Protocol.
(4)The Additional Protocol requires parties to designate a contact point for the purpose of exchange of information on persons travelling for the purposes of terrorism.
(5)Ireland is bound by Council Framework Decision 2002/475/JHA 12 and is therefore taking part in the adoption of this Decision.
(6)[In accordance with Article 3 of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom has notified its wish to take part in the adoption and application of this Decision,
OR
In accordance with Articles 1 and 2 of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Decision and is not bound by it or subject to its application,]
(7)In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application,
(8)The Additional Protocol should therefore be approved on behalf of the European Union.
HAS ADOPTED THIS DECISION:
Article 1
The Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196) is hereby approved on behalf of the European Union.
The text of the Additional Protocol is attached to this Decision.
Article 2
The European Union Agency for Law Enforcement Cooperation (Europol) is designated as the contact point provided for in Article 7 of the Additional Protocol and in accordance with Regulation (EU) 2016/794 of the European Parliament and of the Council 13 .
Article 3
The President of the Council shall designate the person empowered to proceed, on behalf of the European Union, to deposit the instrument of approval provided for in Article 10 of the Additional Protocol, in order to express the consent of the European Union to be bound by the Additional Protocol.
Article 4
This Decision shall enter into force upon its adoption 14 .
Done at Brussels,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 18.10.2017
COM(2017) 607 final
ANNEX
to the
Proposal for a Council Decision
on the conclusion, on behalf of the European Union, of the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (CETS N° 217)
ANNEX
to the
Proposal for a Council Decision
on the conclusion, on behalf of the European Union, of the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (CETS N° 217)
28th Plenary Meeting
Strasbourg (France), 8-10 April 2015
The member States of the Council of Europe and the other Parties to the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196), signatory to this Protocol,
Considering that the aim of the Council of Europe is to achieve greater unity between its members;
Desiring to further strengthen the efforts to prevent and suppress terrorism in all its forms, both in Europe and globally, while respecting human rights and the rule of law;
Recalling human rights and fundamental freedoms enshrined, in particular, in the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) and its protocols, as well as in the International Covenant on Civil and Political Rights;
Expressing their grave concern about the threat posed by persons travelling abroad for the purpose of committing, contributing to or participating in terrorist offences, or the providing or receiving of training for terrorism in the territory of another State;
Having regard in this respect to Resolution 2178 (2014) adopted by the Security Council of the United Nations at its 7272nd meeting on 24 September 2014, in particular paragraphs 4 to 6 thereof;
Considering it desirable to supplement the Council of Europe Convention on the Prevention of Terrorism in certain respects,
Have agreed as follows:
Article 1 – Purpose
The purpose of this Protocol is to supplement the provisions of the Council of Europe Convention on the Prevention of Terrorism, opened for signature in Warsaw on 16 May 2005 (hereinafter referred to as “the Convention”) as regards the criminalisation of the acts described in Articles 2 to 6 of this Protocol, thereby enhancing the efforts of Parties in preventing terrorism and its negative effects on the full enjoyment of human rights, in particular the right to life, both by measures to be taken at national level and through international co-operation, with due regard to the existing applicable multilateral or bilateral treaties or agreements between the Parties.
Article 2 – Participating in an association or group for the purpose of terrorism
1.For the purpose of this Protocol, “participating in an association or group for the purpose of terrorism” means to participate in the activities of an association or group for the purpose of committing or contributing to the commission of one or more terrorist offences by the association or the group.
2.Each Party shall adopt such measures as may be necessary to establish “participating in an association or group for the purpose of terrorism”, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.
Article 3 – Receiving training for terrorism
1.For the purpose of this Protocol, “receiving training for terrorism” means to receive instruction, including obtaining knowledge or practical skills, from another person in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out or contributing to the commission of a terrorist offence.
2.Each Party shall adopt such measures as may be necessary to establish “receiving training for terrorism”, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.
Article 4 – Travelling abroad for the purpose of terrorism
1.For the purpose of this Protocol, “travelling abroad for the purpose of terrorism” means travelling to a State, which is not that of the traveller’s nationality or residence, for the purpose of the commission of, contribution to or participation in a terrorist offence, or the providing or receiving of training for terrorism.
2.Each Party shall adopt such measures as may be necessary to establish “travelling abroad for the purpose of terrorism”, as defined in paragraph 1, from its territory or by its nationals, when committed unlawfully and intentionally, as a criminal offence under its domestic law. In doing so each Party may establish conditions required by and in line with its constitutional principles.
3.Each Party shall also adopt such measures as may be necessary to establish as a criminal offence under, and in accordance with, its domestic law the attempt to commit an offence as set forth in this article.
Article 5 – Funding travelling abroad for the purpose of terrorism
1.For the purpose of this Protocol, “funding travelling abroad for the purpose of terrorism” means providing or collecting, by any means, directly or indirectly, funds fully or partially enabling any person to travel abroad for the purpose of terrorism, as defined in Article 4, paragraph 1, of this Protocol, knowing that the funds are fully or partially intended to be used for this purpose.
2.Each Party shall adopt such measures as may be necessary to establish the “funding of travelling abroad for the purpose of terrorism”, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.
Article 6 – Organising or otherwise facilitating travelling abroad for the purpose of terrorism
1.For the purpose of this Protocol, “organising or otherwise facilitating travelling abroad for the purpose of terrorism” means any act of organisation or facilitation that assists any person in travelling abroad for the purpose of terrorism, as defined in Article 4, paragraph 1, of this Protocol, knowing that the assistance thus rendered is for the purpose of terrorism.
2.Each Party shall adopt such measures as may be necessary to establish “organising or otherwise facilitating travelling abroad for the purpose of terrorism”, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.
Article 7 – Exchange of information
1.Without prejudice to Article 3, paragraph 2a, of the Convention and in accordance with its domestic law and existing international obligations, each Party shall take such measures as may be necessary in order to strengthen the timely exchange between Parties of any available relevant information concerning persons travelling abroad for the purpose of terrorism, as defined in Article 4. For that purpose, each Party shall designate a point of contact available on a 24-hour, seven-days-a-week basis.
2.A Party may choose to designate an already existing point of contact under paragraph 1.
3.A Party’s point of contact shall have the capacity to carry out communications with the point of contact of another Party on an expedited basis.
Article 8 – Conditions and safeguards
1.Each Party shall ensure that the implementation of this Protocol, including the establishment, implementation and application of the criminalisation under Articles 2 to 6, is carried out while respecting human rights obligations, in particular the right to freedom of movement, freedom of expression, freedom of association and freedom of religion, as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights and other obligations under international law.
2.The establishment, implementation and application of the criminalisation under Articles 2 to 6 of this Protocol should furthermore be subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discriminatory or racist treatment.
Article 9 – Relation between this Protocol and the Convention
The words and expressions used in this Protocol shall be interpreted within the meaning of the Convention. As between the Parties, all the provisions of the Convention shall apply accordingly, with the exception of Article 9.
Article 10 – Signature and entry into force
1.This Protocol shall be open for signature by Signatories to the Convention. It shall be subject to ratification, acceptance or approval. A Signatory may not ratify, accept or approve this Protocol unless it has previously ratified, accepted or approved the Convention, or does so simultaneously. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
2.This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the deposit of the sixth instrument of ratification, acceptance or approval, including at least four member States of the Council of Europe.
3.In respect of any Signatory which subsequently deposits its instrument of ratification, acceptance or approval, this Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.
Article 11 – Accession to the Protocol
1.After the entry into force of this Protocol, any State, which has acceded to the Convention, may also accede to this Protocol or do so simultaneously.
2.In respect of any State acceding to the Protocol under paragraph 1 above, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of accession with the Secretary General of the Council of Europe.
Article 12 – Territorial application
1.Any State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Protocol shall apply.
2.Any Party may, at any later time, by declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary General.
3.Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.
Article 13 – Denunciation
1.Any Party may, at any time, denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe.
2.Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General of the Council of Europe.
3.Denunciation of the Convention automatically entails denunciation of this Protocol.
Article 14 – Notifications
The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the European Union, the non-member States which have participated in the elaboration of this Protocol as well as any State which has acceded to, or has been invited to accede to, this Protocol of:
a. any signature;
b. the deposit of any instrument of ratification, acceptance, approval or accession;
c. any date of entry into force of this Protocol in accordance with Articles 10 and 11;
d. any other act, declaration, notification or communication relating to this Protocol.
In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.
Done at …, this … day of … 2015, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the European Union, to the non-member States which have participated in the elaboration of this Protocol, and to any State invited to accede to it.
