Annexes to COM(2020)795 - Counter-Terrorism Agenda for the EU: Anticipate, Prevent, Protect, Respond

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dossier COM(2020)795 - Counter-Terrorism Agenda for the EU: Anticipate, Prevent, Protect, Respond.
document COM(2020)795 EN
date December  9, 2020
agreements in force between Member States53.

The Commission will continue to support the activities of various law enforcement networks. These activities include, for example, joint trainings and exercises, developing channels and capabilities for cross-border communication and operations, and improving the pooling of resources that can be mobilised during incidents. The Commission will continue supporting and ensuring the sustainability of the ATLAS network of special intervention units of the EU Member States, which aims to improve police response in cross-border counter-terrorism operations.

Within Interreg cross-border cooperation programmes, the European Regional Development Fund (ERDF) has supported cooperation between police and other security services in internal border regions. Under the 2021-2027 programming period, while such support may continue, the ERDF may also contribute to actions in the fields of border and migration management, such as for the economic and social integration of third-country nationals, including beneficiaries of international protection.

The Commission will also encourage cross-sectoral cooperation with other crucial first response actors, such as those deployed under the Union Civil Protection Mechanism, which can play a crucial role in response to major incidents with the capacity to overwhelm national capacities, such as terrorist attacks or chemical, biological, radiological or nuclear incidents.

Strengthening information

exchange

52       Task Force Fraternité analysed 19 terabytes of information to investigate further the international connections of the terrorists by analysing communication, financial, internet and forensic records. Europol’s processing of large and complex data resulted in 799 intelligence leads.

53       The proposal will be accompanied by an impact assessment and consultation of Member States, Schengen associated countries and relevant EU bodies.

In order to prevent, investigate and prosecute terrorist and other criminal offences, law enforcement authorities need access to the relevant information at the right time. The existing Prüm Decisions54 have been instrumental in allowing Member States to exchange fingerprints, DNA and certain vehicle registration data. However, in light of technical, forensic, operational and data protection developments, the Prüm Decisions should be updated and could be further extended to better support Member States in their criminal and terrorist investigations. The Commission will propose in 2021 a revision of the Prüm Decisions to assess how they can be adapted to make them fit for the current and future operational needs of law enforcement authorities and to align those decisions with the EU data protection legal framework.

Justice and Home Affairs Agencies (such as Europol, Eurojust and Frontex) will need to strengthen their coordination in order to combat terrorism. Together with Member States, and given their respective responsibilities, connecting factors should be identified and solutions implemented in view of an efficient approach at the EU level. The Commission will make specific proposals to that effect, in particular to establish an efficient mechanism of information exchange in counter-terrorism cases, which should include a digital collaboration platform for Joint Investigation Teams, and step up the implementation of a hit/no-hit system between Europol and Eurojust to detect links between their data. The Commission is also proposing as part of the reinforced mandate of Europol to establishing a hit/no-system between Europol and the European Public Prosecutor’s Office (EPPO). In addition, it remains an objective to extend the mandate of the European Public Prosecutor’s Office to crossborder terrorist crimes.

The recent series of attacks have highlighted the importance of a reliable analysis of the threat posed by persons regarded as terrorists or violent extremists. The Commission supports the work set out recently by the Council55. There is a need for more regular strategic discussions on this pertinent topic, better mutual understanding and awareness of national concepts, as well as facilitation of information exchange when it comes to entering relevant information into the EU’s information systems. The regular strategic exchange should include exchanges on practical tools, such as risk assessments, and their evaluation.

While increased information exchange among EU Member States is an absolute necessity, it is not always sufficient to effectively address global threats. This is why, international cooperation is a key component to an effective response to threats. Bilateral agreements with key partners play an important role in exchanging information, securing evidence and investigative leads from jurisdictions outside the EU. In that regard, Interpol, the international criminal police organisation, fulfils an important role. Despite the long-standing cooperation between the EU and Interpol, there are areas where cooperation should be established or reinforced. Interpol is a key partner on counter-terrorism, for example due to their expertise on foreign terrorist fighters. This includes, for instance, their work on the collection of battlefield information and the prevention of undetected border-crossings. Several EU bodies are faced with the operational need to have access to Interpol databases to perform their tasks. In order to enable such access in accordance with the requirements of EU legislation, the Commission is preparing the appropriate instruments to negotiate a cooperation agreement between the EU and Interpol.

54     Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA.

55     In the respective part of the Council Conclusions on Internal Security as adopted by the JHA Council on 4 December and the detailed Conclusions agreed by the Terrorism Working Party and endorsed by COSI on 19 November.

Supporting investigations and prosecution

Financial Intelligence Units have an essential role in detecting financing of terrorism as they receive suspicious transaction reports from a wide range of financial and non-financial institutions, which they analyse with other relevant information before disseminating the results of their analysis to law enforcement authorities or prosecutors. The Commission will consider how to improve their analytic capacity through the establishment of an EU Coordination and Support Mechanism for Financial intelligence units56.

Financial investigations following the money trail and identifying previously unknown associates are crucial. New structures are needed to support financial investigators, to facilitate their cross-border work and reinforce the effectiveness of financial investigations in terrorism cases. The Commission proposes to establish a network of counter-terrorism financial investigators. Such a network would support the exchange of investigation techniques and experiences on financial investigations, taking into account the work done by national Financial Intelligence Units. It should involve Europol and its European Financial and Economic Crime Centre, cooperate with the Network of Asset Recovery Offices, and contribute to improve investigators’ analysis, understanding of trends and emerging risks, and strengthen their capacity.

To investigate terrorist financing and wider terrorist networks, investigators need access to bank account information. The Commission has highlighted the need for Financial Intelligence Units and law enforcement to have swift cross-border access to national bank account information in other Member States57. This could be achieved by means of an interconnection of central bank account registries, which the Commission deems feasible58. This would also respond to the Council’s call on the Commission to consider enhancing the legal framework to interconnect national centralised mechanisms59. In 2021, the Commission intends to propose legislation to achieve this interconnection and create interconnected bank account registers. The Commission will consider enabling access to such register by law enforcement authorities and asset recovery offices, subject to an impact assessment including on fundamental rights and in full respect of principles of proportionality60. This will enhance cross-border cooperation. In 2021, the Commission will also reassess the threats and vulnerabilities related to the foreign financing of terrorism and the collection and transfers of funds through non-profit organisations61, taking into account recent developments in this

The Terrorist Finance Tracking Programme62 (TFTP) has generated significant intelligence that has helped investigate and detect terrorist plots and trace those behind them63. The EU-US TFTP Agreement on the exchange of financial information gives the US and EU law enforcement authorities a powerful tool in the fight against terrorism and has safeguards that ensure the protection of EU citizens’ privacy. The next joint review of the

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As suggested in the Anti-Money-laundering Action Plan of 7 May 2020, C(2020) 2800 final.

The Anti-Money-laundering Action Plan of 7 May 2020, C(2020) 2800 final.

COM(2019) 273 final.

June 2020 Council Conclusions on enhancing financial investigations, Council doc. 8927/20.

See also COM(2020)605 final.

Previous assessments were made in the Commission’s 2019 Supranational Risk Assessment, COM(2019) 370 and in

the Commission’s Communication on the prevention of and fight against terrorist financing through enhanced national

level coordination and greater transparency of the non-profit sector, COM(2005) 620.

OJ L 195, 27.7.2010, p. 5.

COM(2013) 843 final.

area.

agreement will take place in 2021.

Today, a substantial part of investigations against all forms of crime and terrorism involve encrypted information. Encryption is essential to the digital world, securing digital systems and transactions. It is an important tool for the protection of cybersecurity and fundamental rights, including freedom of expression, privacy and data protection. At the same time, it can also be used as a secure channel for perpetrators where they can hide their actions from law enforcement and the judiciary. The Commission will work with Member States to identify possible legal, operational, and technical solutions for lawful access and promote an approach which both maintains the effectiveness of encryption in protecting privacy and security of communications, while providing an effective response to crime and terrorism.

As recognised by EU Ministers in their joint Statement of 13 November 202064, availability of and access to digital evidence is of the essence. A clear and robust framework for timely cross-border access to electronic evidence and investigative leads is required since digital evidence is needed in about 85% of all criminal investigations. The Commission calls on the co-legislators to ensure speedy and reliable access to e-evidence for authorities, by urgently adopting the e-evidence proposals. In addition, it is important that all Member States establish a connection to the -Evidence Digital Exchange System (eEDES) without undue delay. The Commission intends to lay down the future scope of eEDES in a legislative proposal on the digitalisation of judicial cooperation procedures65.

The EU also needs strong rules for cooperation with our international partners in digital investigations. The Budapest Convention on Cybercrime is the international framework for such cooperation. The Commission will do its utmost for the finalisation of the negotiations in early 2021 on an updated framework (second additional protocol), which addresses the challenges of today’s cyber-enabled crimes, including terrorism, through new and reinforced cooperation tools with the requisite safeguards for the protection of fundamental rights. The Commission will advance the negotiations on an EU-U.S. agreement on cross border access to electronic evidence as swiftly as possible, while ensuring that the outcome of the negotiations is compatible with the Union’s internal rules on electronic evidence.

Furthermore, battlefield evidence, namely information uncovered and collected by military forces during battlefield operations or by private parties in a conflict zone, is paramount for prosecution. The Commission will continue to support Member States to use battlefield information to identify, detect and prosecute returning foreign terrorists fighters through the establishment of best practices66, the exchange of information as well as possible project financing. In particular, the Commission and the European External Action Service will continue to support and strengthen the cooperation with key third countries such as the United States, including the exchange of information and ensuring the integration of battlefield information in the European security architecture and networks.

In order to ensure access to digital evidence and investigative leads, Member States rely on data retention frameworks to safeguard national and public security and in conducting

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https://www.consilium.europa.eu/en/press/press-releases/2020/11/13/joint-statement-by-the-eu-home-affairs-ministers-on-the-recent-terrorist-attacks-in-europe/ Cf. Commission Work Programme 2021.

Eurojust’s 2020 Memorandum on Battlefield Evidence: https://www.eurojust.europa.eu/battlefield-evidence-increasingly-used-prosecute-foreign-terrorist-fighters-eu.

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criminal investigations. The Court of Justice’s recent rulings on data retention67, while confirming that EU law precludes general and indiscriminate data retention, identified certain situations where retention is permissible, based on clear and proportionate obligations laid down in law and subject to strict substantive and procedural safeguards.68 In their recent joint statement69, EU Home Affairs Ministers underlined the importance of devising a way forward on data retention for crime fighting purposes. The Commission will assess available options to ensure that terrorists and other criminals can be identified and traced, while respecting EU law as interpreted by the Court of Justice.

Enhancing Member States’ capabilities for investigation and evidence gathering is an important aspect of the criminal justice response to terrorism. The Commission will also assess the need for rules on the cross-border use of evidence in criminal proceedings. Moreover, there is a need to identify potential links between judicial proceedings (investigations and prosecutions) in terrorism cases in Member States. For this purpose, Eurojust has set up the Counter-Terrorism Register in 2019. The Register should become a proactive tool for ensuring coordination in cross-border judicial counter-terrorism proceedings and Eurojust be adequately resourced. To this end, in 2021, the Commission will adopt a legislative proposal to improve information exchange and coordination in judicial proceedings in cross-border terrorism cases, so as to make this exchange secure and efficient and enable Eurojust to react to it in a timely manner.

Strengthened support to victims of terrorism

Ensuring that victims of terrorism receive the necessary support, protection and recognition is a crucial part of responding to terrorism. The EU has adopted a robust set of rules on support and protection of victims’ rights, including victims of terrorism70. In addition, the 2004 Compensation Directive71 requires that Member States have in place national compensation schemes, including for victims of terrorism.

In January 2020, the Commission set up an EU Centre of Expertise for victims of terrorism as a two-year pilot project72. The Centre assists Member States and national victim support organisations with the application of EU rules, by providing guidelines, training activities and acting as a hub of expertise. The need for its continuation will be assessed by the end of 2021. A possible integration into a future EU Knowledge Hub on prevention of radicalisation will be explored as well. In June 2020, the Commission adopted its first EU Strategy on victims’ rights (2020-2025)73. The Strategy pays special attention to the most vulnerable victims, including victims of terrorism. To improve cooperation and coordination for victims of terrorism, Member States should set up national single contact points for

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Judgments in C-623/17, Privacy International and Joined Cases C-511/18, C-512/18 and C-520/18 Quadrature du Net a.o. of 6 October 2020.

Ibid. These include possibilities for the general retention of traffic and location data to safeguard against serious threats to national security that are genuine and present and foreseeable, the targeted retention of traffic and location data, based on persons and geographical criteria, for the purpose of combatting serious crime and prevention of serious threats to public safety, the general retention of IP addresses assigned to the source of a communication for a limited period of time and for the purposes of combating serious crimes, and the general retention of so-called civil identity data for the purposes of combatting crime in general.

Joint statement by the EU home affairs ministers on the recent terrorist attacks in Europe, https://www.consilium.europa.eu/en/press/press-releases/2020/11/13/joint-statement-by-the-eu-home-affairs-ministers-on-the-recent-terrorist-attacks-in-europe/

These include Victims’ Rights Directive 2012/29/EU with rights for all victims of all crimes, and Directive (EU) 2017/541 on combating terrorism that responds more directly to the specific needs of victims of terrorism. Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims.

https://ec.europa.eu/info/policies/justice-and-fundamental-rights/criminal-justice/eu-centre-expertise-victims-terrorism_en. COM(2020) 258 final.

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victims of terrorism74. Under the Strategy, the Commission will assess the existing EU rules on victims’ rights and, if necessary, propose legislative changes by 2022. The Commission will also assess how victims’ access to compensation could be improved, including with regard to victims of terrorism in cross-border situations, who are residents of another Member State than that where the terrorist attack occurred. The Commission commemorates victims annually during the European Remembrance Day for victims of terrorism, to show unity and resilience against terrorism within our society.

KEY ACTIONS

The Commission will:

• Propose to revise the Prüm Decisions.

• Create a network of counter-terrorism financial investigators to improve cross-border financia investigations.

• Support Member States to use battlefield information to identify, detect and prosecute returning Foreign Terrorists Fighters.

• Propose a mandate to negotiate a cooperation agreement between the EU and Interpol.

• Support victims of terrorism, including through the EU Centre of Expertise for victims of terrorism.

The European Parliament and Council are urged to:

• Urgently adopt the e-evidence proposals to ensure speedy and reliable access to e-evidence for authorities.

• Examine the proposal to revise Europol’s mandate.

5. REINFORCING INTERNATIONAL COOPERATION ACROSS ALL FOUR PILLARS

Counter-terrorism partnerships, including close cooperation with countries in the EU’s neighbourhood, are essential to improve security inside the EU. The Council has called for further strengthening of the EU’s external counter-terrorism engagement with a focus on the Western Balkans, North Africa and the Middle East, the Sahel region, the Horn of Africa, in other African countries where terrorist activities are increasing, and in key regions in Asia. Such engagement can help Member States in their work to close off terrorist activity, as well as working at a global level to combat terrorist organisations. In this regard, support from the CT/Security experts’ network in EU Delegations in facilitating cooperation and promoting capacity building remains essential.

Cooperation with Western Balkan partners on counter-terrorism, including through relevant EU agencies, remains key. Fully implementing the Joint Action Plan on Counter-

In line with the Council Conclusions on Victims of Terrorism, 4 June 2018 (9719/18).

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terrorism for the Western Balkans75, including integrating further the region into the activities of the Radicalisation Awareness Network is essential. The Commission will continue to prioritise cooperation in the area of police and judicial cooperation. Countering terrorism financing and protection of citizens and infrastructure is also key76. Cooperation with Western Balkan partners in the area of firearms will be stepped up in the coming years with their increased involvement in the Firearms priority of the European Multidisciplinary Platform Against Criminal Threats (EMPACT). The Commission will also continue to support financially the Western Balkan partners, Ukraine and Moldova with the implementation of the EU action plan on firearms trafficking.

Cooperation with priority countries in the Southern Neighbourhood should be further strengthened to reinforce measures to prevent and fight terrorism, including money laundering and terrorist financing, as well as the protection of public spaces and strengthening the rule of law. Southern Mediterranean countries are also a priority for the EU for developing police cooperation, considering their geographical proximity and the common security threats. The Commission has a mandate to negotiate international agreements with Algeria, Egypt, Israel, Jordan, Tunisia, Morocco, and Lebanon to exchange personal data with Europol in the framework of terrorism and serious organised crime. In addition, the Commission is currently seeking authorisation from the Council to open negotiations with ten77 third countries on cooperation between Eurojust and those third countries in order to respond effectively to terrorism. Further afield, the Commission will increase cooperation in key countries in Sub-Saharan Africa and Asia on key areas across the strategy.

In particular, the EU should increase its engagement with relevant UN bodies such as the United Nations Office of Counter-Terrorism (UNOCT) as well as with other organisations like the OSCE or the Council of Europe on terrorism-related issues.

The Commission and the EEAS will also step up their engagement with international organisations such as NATO, Interpol, the Financial Action Task Force (FATF), as well as the Global Counterterrorism Forum, and with key strategic partners like the United States, Canada and New Zealand as well as the Global Coalition against Da’esh, to share experiences, foster closer cooperation, including with exchanges on the role of internet and social media, and enhance prevent-related research capacities. Globally, the EU will continue to empower civil society, grass-root and community actors in developing responses to address vulnerable individuals and support resilient societies.

The EU’s approach to external security within the framework of the common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP) will remain an essential component of EU efforts to countering terrorism and violent extremism in order to strengthen stability and protect European security interests. The High Representative/Vice-President, supported by the EEAS will continue to play a key role in enhancing strategic and operational cooperation with third countries and international organisations, by making full use of its external tools, such as the High Level Counter-Terrorism Dialogues, the network of Counter-Terrorism/Security experts in EU Delegations and, where relevant, CSDP missions and operations.

Joint Action Plan on Counter-Terrorism for the Western Balkans, 05.10.2018, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/news/docs/20181005_joint-action-plan-counter-terrorism-western-balkans.pdf Communication on a credible enlargement perspective for and enhanced EU engagement with the Western Balkans. COM (2018)65. p 10; https://www.consilium.europa.eu/en/press/press-releases/2020/10/23/joint-press-statement-eu-western-balkans-ministerial-forum-on-justice-and-home-affairs/          and          also          https://ec.europa.eu/home-affairs/sites/homeaffairs/files/news/docs/20181005_joint-action-plan-counter-terrorism-western-balkans.pdf Algeria, Armenia, Bosnia and Herzegovina, Egypt, Israel, Jordan, Lebanon, Morocco, Tunisia and Turkey.

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KEY ACTIONS:

The Commission and the High Re p r ese n tat ive/Vice- Pr esid e n t, as appropriate, will:

• Step up cooperation with Western Balkan partners in the area of firearms

• Negotiate internati onal agreements with Southern Neighbourhood countries to exchange personal data with Europol.

• Reinforce engagement with international organisations.

• Enhance strategic and operational cooperation with other regions such as the Sahel region, the Horn of Afri ca, with other African countries and key regions in Asia.

The European Parliament and Council are urged to:

• Authorise the opening of negotiations with Southern Neighbourhood countries to allow cooperation with Eurojust.

CONCLUSIONS

The threat from terrorism is real, dangerous, and, unfortunately, enduring. This calls for a renewed and sustained commitment to working together to counter the threat. It calls for unity in face of terrorism, which seeks to divide. This Counter-Terrorism Agenda for the EU sets out the way forward.

To pursue and coordinate this work, the Commission will appoint a Counter-Terrorism Coordinator, whose task will be to coordinate the various strands of EU policy and funding in the area of counter-terrorism within the Commission, including cooperation and coordination with Member States, in collaboration with the Council’s EU Counter-Terrorism Coordinator, as well as the relevant EU Agencies, and the European Parliament.

The inclusive and rights-based foundations of our Union are our strongest protection against the threat of terrorism. An inclusive and welcoming society fully respectful of the rights of all is a society where terrorists will find it more difficult to radicalise and recruit. We must collectively uphold, reinforce and defend our democratic and fundamental values against those that seek to undermine them. For this, we need to invest in social cohesion, education and inclusive societies where everybody feels that his or her identity is respected and that they fully belong to the community as a whole.

This Counter-Terrorism Agenda for the EU builds on existing policies and instruments and will strengthen the EU’s framework to further improve on anticipating threats and risks, preventing radicalisation and violent extremism, protecting people and infrastructures, including through external border security, and responding effectively after attacks.

Whilst this Agenda announces a series of new measures, implementation and enforcement remain key and there must be a common effort to ensure this, from swift adoption and application of the legal framework to speeding up the impact of measures on the ground. The Commission will work with Member States and keep the European Parliament, the Council and stakeholders informed and engaged in all relevant actions to implement the Counter-Terrorism Agenda for the EU.