Europe and Counterterrorism: Strengthening Police and Judicial Cooperation

CRS Report for Congress
Europe and Counterterrorism:
Strengthening Police and
Judicial Cooperation
Updated October 15, 2004
Kristin Archick
Analyst in European Affairs
Foreign Affairs, Defense, and Trade Division

Congressional Research Service ˜ The Library of Congress

Europe and Counterterrorism:
Strengthening Police and Judicial Cooperation
The September 11, 2001 terrorist attacks on the United States gave new
momentum to European Union (EU) initiatives to combat terrorism and other cross-
border crimes such as drug trafficking, human trafficking, and financial fraud. For
many years, EU efforts to address such challenges were hampered by national
sovereignty concerns, insufficient resources, and a lack of trust among law
enforcement agencies. However, the terrorist attacks and the subsequent revelation
of Al Qaeda cells in Europe changed this status quo as it became increasingly evident
that the EU’s open borders and different legal systems allowed terrorists and other
criminals to move around easily and evade arrest and prosecution. Thus, EU officials
renewed their efforts to harmonize national laws and bring down traditional barriers
among member states’ police, intelligence, and judicial authorities. As part of this
initiative, the EU has also sought to enhance ongoing cooperation with U.S. law
enforcement and judicial authorities so that information can be meaningfully shared
and suspects apprehended expeditiously.
The March 11, 2004, terrorist bombings in Madrid, Spain, injected a greater
sense of urgency into EU efforts to boost police and judicial cooperation within the
EU and improve EU external border controls. Despite the EU’s progress, however,
the Union faces a number of political, legal, and cultural hurdles as it seeks to
introduce more effective law enforcement tools. For example, some member states
were slow to implement the EU-wide arrest warrant — which eliminates extradition
proceedings among member states for 32 offenses, including terrorism — and other
EU legislative instruments to counter terrorism. National police and intelligence
services remain reluctant to share information. Contentious issues such as the use
of the death penalty in the United States and different data protection regimes have
also posed challenges at times to more robust U.S.-EU cooperation.
The 9/11 Commission recommended that the United States “should engage
other nations in developing a comprehensive coalition strategy against Islamist
terrorism;” the House and Senate have passed intelligence reform legislation (H.R.
10 and S. 2845) with elements that seek to enhance international cooperation against
terrorism. The Bush Administration, backed by Members of Congress, supports EU
efforts to strengthen its counterterrorism capabilities, and welcomes initiatives aimed
at complementing and improving existing bilateral cooperation between U.S. and EU
member states’ intelligence and law enforcement agencies. The United States has
concluded two information-sharing agreements with Europol, signed two treaties
with the EU on extradition and mutual legal assistance, and has been working to
improve cooperation with EU border control officials. Some critics question,
however, whether U.S.-EU-wide cooperation will add much value to existing
bilateral law enforcement relationships.
This report will be updated as events warrant. Also see CRS Report RL31612,
European Counterterrorist Efforts: Political Will and Diverse Responses in the First
Year After September 11, coordinated by Paul Gallis.

In troduction ......................................................1
Progress to Date...................................................2
Boosting EU Police and Judicial Cooperation........................3
Suppressing Terrorist Funding....................................5
Strengthening External EU Border Controls.........................6
Enhancing U.S.-EU Cooperation..................................8
Challenges Ahead................................................11
Internal EU Obstacles.........................................11
Implementation Delays....................................11
Differing Interpretations...................................13
Cultural Barriers..........................................13
Lack of Enforcement Capabilities............................14
National Sovereignty and Domestic Considerations..............15
Civil Liberty Concerns.....................................16
Obstacles to Closer U.S.-EU Cooperation..........................17
Liaison Difficulties.......................................17
Definitional Differences....................................17
Data Protection Worries....................................18
Crime, Punishment, and Diverging Views.....................19
Impact on Bilateral Cooperation.............................20
European Perspectives.............................................21
U.S. Policy and Perspectives........................................23
Appendix A:
Key EU Initiatives to Improve Police and Judicial Cooperation
and Combat Terrorism.........................................25
Appendix B:
EU Decision-making Structures and Bodies with a Role
in Countering Terrorism.......................................34

Europe and Counterterrorism: Strengthening
Police and Judicial Cooperation
The Bush Administration supports the European Union (EU) initiative to
improve cooperation in the police and judicial fields among its 25 member states and1
with the United States. The Administration hopes that EU efforts will augment
European counter-terrorist capabilities, promote better information-sharing among
member states, and ultimately lead to rooting out terrorist cells in Europe that could
be planning other attacks against U.S. interests. Washington is keen to keep the
dialogue with the Union on such issues open, viewing it as serving U.S. interests to
weigh in early and often given Europe’s role as a key U.S. partner in international
law enforcement efforts and the presence of terrorist cells in some EU countries.
This is in line with the 9/11 Commission’s recommendations that the United States
should develop a “comprehensive coalition strategy” against Islamist terrorism,
“exchange terrorist information with trusted allies,” and improve border security
through better international cooperation. Some provisions in U.S. intelligence reform
legislation passed by the House and Senate (H.R. 10 and S. 2845) seek to enhance
international collaboration against terrorism. At the same time, U.S. officials claim
they have been proceeding cautiously in pursuing more robust cooperation with the
EU in order to avoid actions that could damage currently good bilateral relations or
impede ongoing criminal investigations.
EU member states have long sought to improve police and judicial cooperation
among themselves as part of the Union’s drive toward further political integration
and its desire to create a European area of “freedom, security, and justice.” European
interior and justice ministries, law enforcement agencies, and security services began
cooperating informally in the mid-1970s to combat terrorism and other crimes amid
a significant increase in cross-border travel by European citizens and other nationals.
The 1992 Maastricht Treaty on European Union formalized this intergovernmental
cooperation into a “third pillar” of justice and home affairs (JHA) aimed at fostering
common internal security measures and the free movement of people within EU2
borders. Despite this institutionalization, progress in the police and judicial fields
was hampered for years by member states’ concerns about maintaining sovereignty

1 The EU enlarged from 15 to 25 members on May 1, 2004. The 25 EU members are
Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the
Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom.
2 The first “pillar” of the European Union is the European Community, which encompasses
economic, trade, and social policies; the second “pillar” aims to develop an EU common
foreign and security policy.

over national law enforcement authorities, insufficient resources, and a lack of trust
among police and intelligence agencies.
The September 11, 2001, terrorist attacks and the subsequent revelation of Al
Qaeda cells in Europe, however, served as a wake-up call for EU governments. In
the weeks after the attacks, police in many EU member states flushed out dozens of
suspected terrorists linked to Osama bin Laden; Germany and Spain were identified
as key logistical and planning bases for the attacks, and numerous arrests were also
carried out in Belgium, France, Italy, and the United Kingdom. As the 9/11
Commission notes, Al Qaeda was able to exploit relatively lax security environments
in Western Europe. This fact was readily appreciated by European leaders, who
quickly recognized that the EU’s open borders and different legal systems allowed
terrorists and other criminals to move around easily and evade arrest and prosecution.
Most EU member states, for example, lacked anti-terrorist legislation, or even a legal
definition of terrorism.3 Without strong evidence that a suspect had committed a
crime common to all countries, such as murder, terrorists or their supporters were
often able to avoid apprehension in one EU country by fleeing to another with
different laws and criminal codes. Moreover, although suspects could travel among
EU countries quickly, extradition requests often took months or years to process.
Since the attacks on the United States, EU leaders have demonstrated a renewed
political commitment to boosting police and judicial cooperation both among
member states and with U.S. law enforcement counterparts. The March 11, 2004,
terrorist bombings in Madrid, Spain, have further energized EU efforts to combat
terrorism. Although many EU initiatives in the police and judicial fields are directed
primarily against the terrorist threat, observers note that several of them — such as
the EU-wide arrest warrant — will also improve EU abilities to investigate and
prosecute other transnational crimes, and could be the first building blocks of an
eventual EU judicial identity. Nevertheless, translating these EU political
agreements into effective law enforcement tools has not be easy. A number of
political, legal, and cultural challenges remain.
Progress to Date
EU leaders meeting in a special emergency session made key decisions on
September 21, 2001 to boost police and judicial cooperation within the EU, close off
sources of terrorist financing, and enhance U.S.-EU law enforcement coordination
as part of a comprehensive plan to counter terrorism.4 They also endorsed a detailed
work program of over 30 initiatives for closer police and judicial cooperation and
stronger external border controls. Work on many of these proposals had been
underway for much of the past decade.

3 Prior to the September 11 terrorist attacks, only six EU members had specific anti-
terrorism legislation: France, Germany, Italy, Portugal, Spain, and the United Kingdom.
4 The EU’s plan of action against terrorism also includes diplomatic, humanitarian, and
economic assistance measures not addressed in this report.

In the wake of the March 2004 terrorist bombings in Spain, the EU renewed its
commitment to implement existing legal instruments aimed at fighting terrorism and
announced several additional measures in a new Declaration on Combating
Terrorism.5 These new initiatives are aimed primarily at further enhancing
coordination and intelligence-sharing among the various EU and member state
agencies engaged in combating terrorism and improving border controls. The EU
views all of the measures agreed since September 2001 as essential to building a
common internal security area. (See Appendix A for additional background on the
initiatives below and information on others.)
Boosting EU Police and Judicial Cooperation
The bulk of EU initiatives in the police and judicial fields set forth in September
2001 and March 2004 focus on establishing greater cross-border compatibility among
EU member states’ criminal laws and improving cooperation among national police,
intelligence, and judicial authorities. Key measures include the following.
!Establishing a common EU definition of terrorism and common
penalties. In December 2001, EU member states reached a political
agreement that defines as terrorist offenses various types of crimes
committed with the intent to intimidate a population or destabilize
a country’s political or economic system. It also standardizes
penalties for participating in a terrorist group.
!Defining a common EU list of terrorist organizations. The EU
maintains two lists of persons and entities with terrorist links. One
list is directed against persons and entities associated with Osama
bin Laden, Al Qaeda, and the Taliban; it essentially enacts into EU
law U.N. Security Council sanctions against these individuals and
groups. The other EU list currently names 91 additional terrorist
individuals and organizations based both in Europe and worldwide.
Examples include the Basque group ETA, the Turkish-based
Kurdistan Worker’s Party (PKK), the Revolutionary Armed Forces
of Colombia (FARC), and Hamas. All EU members must freeze the
assets of those named on both lists, and provide assistance to each
other in related police investigations and legal proceedings.
!Creating an EU-wide arrest warrant. In December 2001, EU
governments reached a political agreement to implement an EU-
wide arrest warrant to eliminate the need for extradition proceedings
among EU member states for a diverse set of 32 offenses, including
terrorism as well as organized crime, trafficking in persons,
corruption, and murder. EU officials claim the arrest warrant will
expedite the apprehension of criminals given that the entire process,
from arrest to surrender to the issuing authority, must be completed
within a maximum of 90 days. The warrant is based on the principle

5 See European Council, “Declaration on Combating Terrorism,” March 25-26, 2004

of mutual recognition of other EU member states’ judicial systems.
The arrest warrant was supposed to have been implemented
throughout the EU by January 2004, but some member states failed
to meet this deadline.
!Strengthening EU police and judicial institutions. The EU has
been working to give Europol, its fledgling joint criminal
intelligence body, a more assertive law enforcement role. Since
1999, Europol has functioned as an information clearinghouse for
cross-border crimes such as terrorism and drug trafficking for
member states’ law enforcement agencies. Europol currently has a
staff of 391, including 60 liaison officers from national police,
customs, immigration, and intelligence agencies. In April 2002, EU
leaders agreed to allow Europol to ask national police services to
launch specific criminal investigations and to participate in eventual
EU joint investigation teams. Europol agents will still be prohibited
from detaining or arresting suspects, and can only participate in joint
investigations into crimes that fall within their mandate. Since
September 11, the EU has also increased Europol’s budget by almost

50 percent to pay for more staff and growing counter-terrorist duties;6

for 2004, Europol’s budget is roughly $74 million. Eurojust, the
EU’s nascent unit of prosecutors and magistrates, was officially
established in February 2002. It is charged with helping to
coordinate the investigation and prosecution of serious cross-border
crimes in EU member states. Some EU officials would also like to
bolster the EU Chiefs of Police Task Force, which meets once every
six months, to foster more systematic information exchanges.
!Increasing cooperation among police and intelligence services.
Following September 11, the EU called on member states’ police,
security, and intelligence services to intensify information-sharing
both among themselves and with Europol. EU leaders directed the
heads of EU police counter-terrorist units to begin meeting, and
called on national security and intelligence services to consult on a
regular basis. However, many national services have remained
reluctant to share information. The March 11, 2004, terrorist attacks
in Madrid highlighted this problem as reports surfaced that several
of the Madrid suspects were known to security services in Spain and
other EU states but fell through communication cracks. Since then,
the heads of the security services of the EU’s 25 members have
established a Counter-Terrorist Group, committed to meeting
regularly in Brussels to exchange information and analysis on the
terrorist threat. The EU is also considering two new proposals: one
seeks to improve information-sharing about ongoing terrorist

6 In comparison to the FBI’s almost 30,000 employees and $3 billion annual budget,
Europol remains small and minimally funded. “EU Boosts Spending on Europol to Fight
Terrorism,” Associated Press, February 28, 2002. Also see “Fact Sheet on Europol,”
January 2004 on the Europol website [].

investigations among national authorities, Europol, and Eurojust; the
other requires information on serious crimes to be shared among
national law enforcement agencies within 12 hours. The European
Police College also seeks to improve cooperation among national
police services.7
!Establishing an EU “counterterrorism czar” and intelligence
capacity. Following the March 2004 attacks in Spain, EU leaders
created a new Counter-terrorist Coordinator to coordinate the efforts
of the various EU bodies engaged in combating terrorism and to
promote effective implementation of agreed measures. Gijs de
Vries, a former Dutch interior ministry official and European
Parliamentarian, was appointed to this post on March 26; he reports
to the EU’s top foreign policy official, Javier Solana. In June 2004,
EU leaders approved enhancing the EU’s counterterrorist
intelligence capacity within the EU’s existing Joint Situation Centre
(SITCEN) to better support EU counterterrorism policymaking. The
SITCEN had been operating for several years but only had a handful
of analysts charged with conducting external threat analyses; the new
proposal would beef up the SITCEN by reinforcing it with more
personnel and broadening its mandate to address internal threats to
the EU.8
Suppressing Terrorist Funding
The EU has made progress on several initiatives since September 2001 aimed
at helping close off sources of terrorist financing and improve financial investigative
tools. Some have built on EU initiatives that date from before September 11 to
clamp down on money-laundering. Major efforts in this area have focused on the
following aspects.
!Expanding the EU’s money-laundering directive. In November
2001, EU finance ministers agreed to broaden the scope of its 1991
directive on preventing the use of the financial system for the
purpose of money laundering, previously applicable only to drug-
trafficking proceeds, to all serious crimes, intended to include
terrorism. The directive also expands the types of professionals who
must notify law enforcement of suspicious transactions. Whereas
initially only those in the banking industry had such obligations, now
lawyers, accountants, and others deemed vulnerable to misuse by
money launderers, do as well. In June 2004, the European
Commission proposed a new money-laundering directive that would
consolidate the two previous directives and expand the definition of
money-laundering to include legally acquired money used to finance

7 Ian Black, “On the Brink of War: EUto Pool Security Intelligence,” The Guardian
(London), September 29, 2001; “European Council Keeps up Pressure to Deliver,”
European Report, No. 2878, June 19, 2004.
8 “EU Urged to Upgrade Joint Intelligence Work,” Agence France Presse, June 8, 2004.

terrorism. The new directive would also further extend the range of
professions subject to reporting requirements and enhance the
“know-your-customer” rules. EU finance ministers will now
consider whether to adopt this new proposal.
!Establishing an EU-wide asset-freezing order. In February 2002,
EU justice and interior ministers reached political consensus on an
agreement that will require national courts to enforce orders issued
by other member states to freeze the assets of suspected terrorists
and other criminals. Such orders could apply to investigations into
any of the 32 offenses subject to the EU arrest warrant. The EU
formally adopted this initiative in July 2003 after six countries
cleared the measure with their respective legislatures.
!Facilitating asset confiscation. In August 2002, Denmark proposed
two measures to ease the confiscation of criminal assets throughout
the EU. In December 2002, member states reached political
agreement on one of these proposals, which would relax the burden
of proof, but it has not yet been formally adopted because two states
must still gain approval from their national parliaments. The other
proposal related to the mutual enforcement of confiscation orders
was more controversial, but political agreement was reached in June
2004. Although these measures will apply to a wide range of
crimes, it is hoped they will prove useful tools in the fight against
terrorism also.
Strengthening External EU Border Controls
EU progress on new proposals to counter terrorism and other cross-border
crimes has been slowest in the border control area. Border control was the least well-
defined category of initiatives to emerge from the EU’s emergency sessions in
September 2001. Developments in this area have also been hampered because many
are linked to EU efforts to decrease illegal immigration, which continue to founder
upon different national policy preferences and domestic political considerations. In
the spring of 2002, however, EU leaders endorsed several measures aimed at
preventing terrorists and common criminals from gaining footholds in the EU’s
territory. These centered on improving cooperation among national customs and
immigration officials, and combating visa and asylum fraud. By 2003, the EU also
began focusing greater attention on travel document security, including the use of
biometric information, and passenger data sharing; the Madrid attacks on March 11,
2004, have given additional impetus to efforts in these areas. Key initiatives to
strengthen external EU border controls and document security include the following.
!Improving cooperation in managing the EU’s external borders.
In June 2002, EU leaders approved a multi-faceted external borders
management plan to help curb illegal immigration, especially at
European air and sea ports. It sought to create networks of member
states’ border control officials, establish common training programs
and equipment standards, and centralize EU funding to share the
financial burden of these measures. EU officials also called for joint

law enforcement operations at external borders to begin by the end
of 2002; at least 15 ad hoc joint border control projects have been
executed so far.9 In November 2003, the European Commission
proposed establishing a new European Borders Agency, which
would further build on the external borders management plan. It
would provide border control, surveillance, and training assistance
to member states, help manage specific crises, and coordinate EU-
wide efforts to repatriate illegal immigrants. The Borders Agency
would not have a law enforcement role, however. EU leaders gave
political approval in December 2003; press reports indicate that EU
officials will soon approve the technical arrangements for the new
Agency, which the EU hopes will become operational in May 2005.
!Reinforcing sea border controls. In April 2002, EU officials
agreed that strengthening maritime border controls was a priority
given the growing number of immigrants attempting to enter the EU
illegally by boat. In November 2003, the EU approved a plan to
better combat illegal immigration across the EU’s maritime borders,
including improving cooperation among members and with third
countries and the possible use of joint patrols to monitor especially
problematic areas, such as those off the coasts of Spain, Italy, and
!Increasing visa coordination. EU officials view establishing a
common visa policy among EU member states as crucial to
stemming illegal immigration and keeping terrorists and other
criminals out. In February 2002, EU justice and interior ministers
approved establishing common consular offices in non-EU countries
to end the practice of “visa shopping” in which non-EU nationals try
their luck at different EU embassies. In April 2002, they approved
creating a common EU visa format with digital photos to prevent
fraud. In June 2002, EU leaders gave a green light to creating an EU
visa database that would list all visas issued and turned down by
member states to counter visa fraud and improve information-
sharing among national law enforcement authorities.
!Implementing Eurodac. In February 2002, EU officials endorsed
implementing Eurodac, an EU-wide fingerprint database of asylum
seekers. Eurodac is intended to counter “asylum shopping,” in
which applicants lodge asylum requests in several member states,
see where they are accepted, and which countries offer the most
favorable reception conditions. The system was officially launched
in January 2003. In its first year of operation, 7% of asylum seekers
had made applications in more than one EU member state. The
European Commission is reportedly considering future plans to
make Eurodac and other EU databases, such as the proposed visa

9 “Justice and Home Affairs: Internal Report Says Border Control Projects Have Mixed
Results,” European Report, No. 2787, June 25, 2003.

database, interoperable, as called for in its March 2004 Declaration
on Combating Terrorism.10
!Improving travel document security. At the June 2003
Thessaloniki Summit, EU leaders called for a coherent EU approach
on including biometric identifiers in visas and residence permits
issued to non-EU nationals, as well as in passports of EU citizens.
In September 2003, the European Commission proposed two
regulations providing a legal basis for the introduction of the facial
image and two fingerprints in European visas and residence permits;
EU officials approved these proposals in November 2003. In
February 2004, the Commission proposed another regulation
requiring all EU passports to contain machine-readable digital
photos with facial recognition data, while keeping the inclusion of
fingerprint data optional; EU leaders endorsed this proposal in June
2004. The EU hopes to begin introducing the new passports with
biometric data in 2005, but it is unlikely that all member states will
be able to meet this goal.
!Establishing new rules for passenger data transfers. In April
2004, EU officials approved new rules requiring airlines to
communicate passenger data to member states before arriving in the
EU. Data will be deleted after 24 hours, unless required for law
enforcement purposes. Airlines that do not comply will face
sanctions. In addition to combating terrorism, this measure is also
aimed at countering illegal immigration in the EU. Member states
must bring their national data regimes in line with this new EU
directive by September 2006.
Enhancing U.S.-EU Cooperation
In addition to boosting cooperation among member states’ law enforcement
bodies, a key EU goal since September 11 has been to bolster coordination with the
United States to better combat terrorism. The United States has welcomed the EU’s
heightened emphasis on better communication and cooperation; as the 9/11
Commission points out, collaboration with other governments is crucial to uncover
terrorist sanctuaries, target terrorist travel and financing, and ensure the integrity of
U.S. borders. Both H.R. 10 and S. 2845 contain provisions in line with these
recommendations and with U.S.-EU counterterrorist efforts, especially those aimed
at improving border controls and travel document security.
EU officials in Brussels have stepped up their diplomatic engagement on police,
judicial, and border control policy matters with U.S. counterparts in the Departments
of State, Justice, Homeland Security, and Treasury. The U.S. Attorney General,
Secretary of State, and Secretary of Homeland Security meet at ministerial level with
EU counterparts at least once a year, and a U.S.-EU working group of senior officials

10 “Justice and Home Affairs: Commission’s New Plans to Boost Police Data Sharing,”
European Report, No. 2878, June 19, 2004.

meets once every six months to discuss police and judicial cooperation against
terrorism. In April 2004, the United States and EU held its first high-level policy
dialogue on border and transport security; this formation intends to meet at least
twice a year to keep dialogue open on issues such as passenger data-sharing, cargo
security, biometrics, visa policy, and sky marshals. In June 2004 at the U.S.-EU
Summit in Ireland, the two sides issued a joint declaration on combating terrorism;
among other measures that seek to reinforce ongoing police, judicial, and border
security cooperation, the declaration also establishes a regular dialogue on terrorist
financing.11 EU officials are also seeking closer working relationships for Europol
and Eurojust with the FBI, CIA, and other law enforcement agencies.12 Major efforts
include the following.
!Increasing working-level cooperation between U.S. and EU
police and judicial counterparts. In the immediate aftermath of
the September 11 attacks, the EU established a task force of
counterterrorism specialists, housed in Europol and composed of
police and intelligence representatives from each member state, both
to increase communication among these services and to work on
liaison with U.S. counterparts. EU leaders directed that this task
force be reactivated in the wake of the March 2004 terrorist
bombings in Madrid. The FBI will station a U.S. liaison officer in
The Hague to coordinate with the task force, and the U.S. Secret
Service will appoint a liaison to Europol to work on counterfeiting
issues. Two Europol liaison officers have been operating in
Washington since June 2002. In addition, EU and U.S. judicial
officials are collaborating in Eurojust, and U.S. representatives have
reportedly been invited to attend meetings of EU heads of
counterterrorist units.
!Establishing U.S.-Europol information exchanges. In December
2001, the United States and the EU agreed to allow U.S. law
enforcement authorities and Europol to share “strategic” or
“technical” information, including threat tips, crime patterns, risk
assessments, and investigative procedures. In December 2002,
negotiations were completed on a second Europol agreement to
permit U.S. and European investigators to share “personal”
information, such as names, addresses, phone numbers, and criminal
records, about suspects in all crimes covered by Europol’s mandate.
!Establishing U.S.-EU cooperation agreements on extradition and
judicial assistance. In April 2002, EU leaders approved opening

11 See “U.S.-EU Declaration on Combating Terrorism,” U.S.-EU Summit, June 26, 2004
[ ht t p: / / www.whi t e news/ r el eases/ 2004/ 06/ ml ] .
12 On the U.S. side, the State Department has the lead in managing the interagency
policymaking process toward enhancing U.S.-EU police, judicial, and border control
cooperation, while the Justice and Homeland Security Departments provide the bulk of the
technical legal expertise. The Treasury Department has the lead on efforts to suppress
terrorist financing.

negotiations with the United States on agreements aimed especially
at promoting cooperation in extraditing terrorist suspects and
providing legal assistance in such cases. At the May 2002 U.S.-EU
summit in Washington, the Bush Administration agreed to explore
developing such instruments with the Union. Two treaties, one on
extradition and the other on mutual legal assistance, were concluded
in February 2003, and signed in June 2003. Washington and
Brussels hope they will help harmonize the bilateral accords that
already exist between the United States and individual EU members,
simplify the extradition process, promote better information-sharing,
and be useful tools in combating fraud and organized crime as well
as terrorism. The provisions of the treaties must now be transposed
into national law by EU members, and ratified by the U.S. Senate.13
!Improving border control and transport security cooperation.
The United States and the EU have been placing increasing
emphasis on collaboration in these areas, as seen by the creation in
April 2004 of the U.S.-EU high-level policy dialogue on border and
transport security. A number of initiatives have also been concluded
or are under discussion. In April 2004, the United States and EU
signed a customs cooperation accord; among other measures, it calls
for extending the U.S. Container Security Initiative (CSI) throughout
the EU. The CSI stations U.S. customs officers in foreign ports to
help ensure that U.S.-bound cargo containers do not contain
weapons of mass destruction or other dangerous substances. In May
2004, the United States and the EU approved an agreement
permitting airlines operating flights to or from the United States to
provide U.S. authorities with passenger name record (PNR) data in
their reservation and departure control systems. This accord
formalizes a practice in place since March 2003, but it has been
controversial in the EU. European Parliamentarians and civil liberty
advocates continue to challenge the agreement, claiming it violates
privacy rights. The United States and the EU have also pledged to
enhance international information exchanges on lost and stolen
passports and to promote travel document security through the use
of interoperable biometric identifiers. Such efforts are in line with
provisions in H.R. 10 that call for curtailing terrorist travel by
working with other countries to improve travel document security
and with measures in both H.R. 10 and S. 2845 related to biometric
entry/exit controls and passport requirements. U.S.-EU cooperation

13 Interviews of EU and U.S. officials, 2003 and 2004. The United States and EU member
states have been working on concluding protocols that will reconcile the terms of their
respective bilateral treaties with the new EU-wide treaties. U.S. and EU officials hope that
the protocols with the EU’s original 15 members will be concluded by December 2004; a
second round will then begin with the EU’s newest 10 members. U.S. officials may send
the initial 15 protocols to the Senate for ratification as early as the beginning of 2005. For
the texts of the U.S.-EU extradition and mutual legal assistance agreements, see the Council
Decision of June 6, 2003 (2003/516/EC) in the Official Journal of the European
Communities [].

on biometric identifiers is aimed in part at helping to minimize
conflicts over new U.S. rules for its Visa Waiver Program (VWP)
and to facilitate legitimate transatlantic travel.14
Challenges Ahead
Despite the EU’s strides since September 11, 2001 to foster closer police and
judicial cooperation, the Union still faces significant political, legal, and cultural
hurdles as it seeks to translate its initiatives into effective EU-wide law enforcement
tools. Although the political commitment of EU leaders is strong at present, the
“devil is in the details.” Implementing many of the agreed measures will take time
and some have bogged down in the legislative processes of individual member states.
Different interpretations of agreed measures, long-standing reluctance of police and
intelligence services to share information, weak EU enforcement capabilities,
ongoing national sovereignty concerns, domestic preoccupations, and civil liberty
considerations of various member states have also hindered EU progress. Following
the March 11, 2004, terrorist attacks in Madrid, the EU acknowledged these delays
and renewed its commitment to fully and quickly implement all existing legal
instruments aimed at fighting terrorism. This was a key rationale for establishing a
new EU counter-terrorist coordinator tasked with overseeing and promoting member
state compliance. EU leaders called for all member states to transpose many of the
already agreed EU initiatives, such as the arrest warrant, into national law by the end
of June 2004. Several member states, however, have still not fully met this goal.
In addition to sorting out these issues among 25 member states, the EU is
confronting challenges in improving coordination with U.S. law enforcement
authorities and putting judicial relations with the United States on an EU-wide
footing. Although some U.S.-EU problems are similar to obstacles facing the EU
internally, such as law enforcement communication issues or differences in terrorist
definitions, others have their origins in different legal traditions and societal attitudes
toward personal privacy, and crime and punishment.
Internal EU Obstacles
Implementation Delays. Most observers view the EU as having made rapid
progress since September 11, 2001, on forging political agreements on many
initiatives in the police and judicial fields that had been languishing for years.

14 Fifteen of the EU’s 25 member states participate in the VWP, which allows travel to the
United States without a visa. New U.S. regulations require citizens of VWP countries to
have machine-readable passports by October 26, 2004, but Congress extended the deadline
for biometrics requirements for VWP passports to October 26, 2005, to allow more time to
resolve technical and operational issues. EU officials, however, admit that not all EU
member states will be able to meet the new deadline and are pressing for another extension
to October 2006. To mitigate security concerns, VWP entrants as of September 30, 2004,
will be processed through the U.S. VISIT program, in which U.S. visitors are fingerprinted
and photographed upon arrival. For more information, see CRS Report RL32221, Visa
Waiver Program, by Alison Siskin.

Indeed, the pace has been speedy for the EU, a traditionally slow-moving body
because of its intergovernmental nature and largely consensus-based decision-making
processes. Nevertheless, it is an inescapable fact of EU life that considerable lag
times often exist between when an agreement is reached by EU leaders in Brussels
and when it is implemented or enforced at the national level. Often, member states
must alter their laws to bring them into line with EU decisions or directives.
Following the March 2004 attacks in Madrid, the European Commission released a
summary of EU legislative instruments to fight terrorism, which indicated that
various EU member states had not yet implemented many of the already agreed
measures, including the EU arrest warrant.15
In laying out the plans for the warrant, EU leaders set January 1, 2004, as the
date for it to take effect in all member states to allow time for them to enact the
necessary constitutional amendments or updated criminal codes. Despite this long
lead time, the arrest warrant’s implementation lagged. At the time of the deadline,
only eight of the EU’s then 15 members had transposed the warrant into national law.
Civil liberty concerns slowed the passage of legislation in some countries, such as
Germany, where it finally entered into force in late August 2004. Ongoing concerns
over the extradition of their own nationals has delayed the warrant in other countries
such as Italy and the Czech Republic, among others. Italy is now the only member
of the enlarged EU of 25 that has still not passed the required legislation; the arrest
warrant is expected to enter into force in the Czech Republic in November 2004.16
Some observers suggest that some EU member states may not implement all
parts of the EU arrest warrant immediately. They note that it may take Germany,
Austria, Denmark, and Greece five years or more to enact new constitutional
provisions permitting their nationals to stand trial in other EU member states.
Despite such possible delays, all members will likely claim they are in compliance
by 2004 because they will be able to execute the warrant against citizens of other
states within their territory. For example, Danish judicial officials could still execute
the arrest warrant on a French national wanted in Germany.17
Other critics question how effective the EU counterterrorism coordinator will
be in promoting the implementation of already agreed EU legislation against
terrorism. They point out that although the coordinator is meant to provide oversight
and a measure of peer pressure on laggard member states, the position lacks
enforcement or sanction capabilities. Some also suggest that because the coordinator

15 See Press Release, “Existing Legislative Instruments Relevant to the Fight Against
Terrorism, and Draft Measures Already on the Council Table,” European Commission,
March 18, 2004.
16 See “Javier Solana to Take Stock of Cooperation Against Terrorism,” Agence Europe,
October 9, 2004. Italy was the most reluctant of all EU members to agree to the arrest
warrant in 2001; it claimed that the 32 offenses were too many and varied. Italy initially
wanted the warrant’s 32 offenses reduced to six, including terrorism but excluding financial
crimes. Press reports speculated that this was due to allegations of corruption and tax
evasion pending against Prime Minister Berlusconi in Italy and elsewhere in Europe. James
Blitz, “Italy Falls into Line on Arrest Warrants,” Financial Times, December 12, 2001.
17 Interview of U.S. official, May 2002.

position reports to the EU’s top foreign policy official, the post lacks sufficient clout
and visibility and merely represents another ineffectual bureaucratic layer.18
Differing Interpretations. Despite EU efforts to harmonize national laws
and criminal codes related to terrorism, EU definitions and common penalties will
still be open to interpretation by individual member states. The European
Commission originally recommended specific standardized sanctions for terrorist
activities ranging from maximum penalties in each member state of at least two to
twenty years depending on the offense. Member states, however, could not agree on
such exact penalties and found the proposed system too complicated. As a result,
specific penalties were spelled out for only two offenses: leading a terrorist group
and participating in or financing the activities of a terrorist organization. Sanctions
for other offenses, such as murder, kidnaping, or hijacking, are largely left to the
discretion of each member state, although the EU decision allows for the imposition
of a heavier sentence if the acts were committed with a terrorist intent. Observers
note that even for those sentences specified in the decision, the maximum/minimum
construction leaves states free to set penalties as high as they want, but also allows
lesser sentences to be imposed. A June 2004 report by the European Commission on
the implementation of a common EU definition of terrorism and common penalties
found that considerable divergences still exist in the interpretation and transposition19
of these measures among the member states.
Cultural Barriers. The EU views increasing communication and information-
sharing among members’ national police, judicial, and intelligence services as crucial
to improving its ability to counter and apprehend terrorists and other cross-border
criminals. This issue has received renewed focus in the aftermath of the Madrid
bombings. News reports indicate that several individuals suspected in the Madrid
attacks were known to security services in Spain and other EU states, but this
information was not shared. As in the United States, long-standing law enforcement
traditions against information-sharing as well as rivalries between and among the
various local, regional, and national services must be overcome in order to improve
cooperation and close security loopholes. Thus, such cooperation is a tall order
because it will require changing well-entrenched police cultures and mentalities.
Perhaps nowhere are such tensions more evident than in Europol, which is
dependent on receiving information from member states’ law enforcement services.
Jürgen Storbeck, Europol’s director and a former German police official, summed
the problem up this way: “For a policeman, information about his own case is like
property. He is even reluctant to give it to his chief or to another department, let
alone giving it to the regional or national services. For an international body like
Europol, it is very difficult.”20 According to some EU watchers, national police and
intelligence services harbor a deep mistrust of Europol. Qualms about sharing

18 “EU Anti-terror Tsar Faces Pitfalls,” Reuters, March 25, 2004; “EU’s Anti-terrorism
Tsar: Mission Impossible?,” Agence France Presse, March 28, 2004.
19 “Commission’s Damning Indictment of Member States,” European Report, No. 2875,
June 9, 2004.
20 Quoted in Judy Dempsey, “Europol’s Bid for Success,” Financial Times, February 27,


sensitive intelligence information, and possibly compromising sources and methods,
also torpedoed calls from Austria and Belgium in the wake of March 11 for creating
a centralized EU-wide intelligence agency.
The lack of a common language in the EU can also pose problems for closer
cooperation among police services, especially at local or regional levels. Along the
French-Belgian border, for example, Belgian police officers are not required to speak
French, and most French police officers do not speak Flemish. And in some states
such as Germany, where the history of its Nazi past still weighs heavily, legal
prohibitions restricted information-sharing between police and intelligence services.
Despite these difficulties, EU officials counter that the changing nature of crime
and the growth in cross-border terrorist and criminal organizations will increasingly
force police agencies to cooperate at the national and international level. They
recognize that building trust and fostering greater communication among these law
enforcement authorities will take time, but note that this is a key reason for the EU’s
backing of the European Police College and other common training programs. They
also point out that the problems facing the EU in this regard are not that different
from those currently confronting the United States as it seeks to improve the flow of
information among the FBI, state and local police forces, and customs officials to
prevent suspected terrorists and other criminals from falling through the cracks.21
Lack of Enforcement Capabilities. Strengthening EU police and judicial
institutions, especially Europol, has emerged as a central piece of EU efforts to
bolster cooperation. Nevertheless, critics point out that Europol and Eurojust are still
largely talk shops, remain minimally funded, and have few enforcement capabilities.
Even though EU leaders have agreed that Europol should have a more operational
role in cross-border investigations and the right to ask national authorities to initiate
criminal investigations, these new powers will not take effect until all national
parliaments ratify the required changes to Europol’s 1995 Convention. Eurojust can
recommend that national authorities initiate an investigation, but cannot launch one
itself. Data privacy issues have also slowed some efforts to enhance Europol and
Eurojust’s capabilities. For example, EU leaders agreed in principle in December
2002 to grant Europol and Eurojust partial access to the Schengen Information
System (SIS) to help improve information-sharing, but this has not yet been formally
adopted because of ongoing data protection concerns. The SIS is an EU database,
used primarily by customs and immigration officials, containing information on
convicted or suspected criminals, forged passports, and stolen vehicles.
EU officials, however, believe these criticisms that Europol and Eurojust lack
sufficient authority — and the underlying assumption that these bodies provide little
value — are unfair. They note that Europol and Eurojust are still in the early stages
of development. A key current objective of these bodies is to foster closer
coordination, routine communication, and greater trust among police, intelligence,
and judicial officials from the member states. Other proponents point out that
Europol has had some analytical successes, helping identify narcotics and human

21 Judy Dempsey, “Europol’s Bid for Success,” Financial Times, February 27, 2002;
Interview of EU official, March 2002.

trafficking networks that have led to coordinated law enforcement operations in both
EU member states and other European countries.22 And since the March 2004
terrorist attacks in Spain, EU officials have focused renewed attention on measures
to bolster both Europol and Eurojust. In 2005, Europol will receive an extra $2.1
million for counterterrorism activities. And in June 2004, Europol and Eurojust
signed a cooperation agreement that allows the two organizations to share
National Sovereignty and Domestic Considerations. Traditionally, law
enforcement and criminal justice have been jealously guarded national prerogatives.
Progress in building an EU police and judicial sphere has thus been brought about
through mutual recognition of member states’ legal systems rather than wholesale
harmonization. Despite the EU’s achievements since September 2001 in pushing
forward its common judicial agenda, some EU-watchers maintain that member
states’ will proceed cautiously. Leaders will resist measures that smack of EU
judicial federalism, thereby exposing themselves politically to domestic opposition
and public outcries that they are ceding national sovereignty to Brussels. Many
European politicians note the rise of extreme right parties like those in France and the
Netherlands that have made electoral gains partly on anti-EU platforms, and a
number of anti-EU parties, especially in the UK, did very well in recent European
Parliament elections. Skeptics suggest these concerns will inhibit Europol’s
development into the equivalent of the FBI or Eurojust’s maturation into a European
public prosecutors office, able to initiate and direct criminal investigations as well
as prosecute cases in national courts, for the foreseeable future. They point out that
the proposal in the EU’s recently-agreed “constitution” to develop a public
prosecutors office limited to handling crimes against EU financial interests provoked
fierce British opposition initially; the UK eventually relented, however, in order to
secure other negotiating priorities.
Furthermore, skeptics suggest that enhancing external EU border controls has
been difficult because some member states have been reluctant to relinquish any
control of national borders or police activity within them to Brussels. At the Seville
Summit in June 2002, EU leaders stopped short of calling for a common EU border
guard corps for precisely this reason. And, although agreement has been reached to
soon establish the European Borders Agency, critics contend it will have limited
powers and resources and no law enforcement role.23
Some analysts also point out that the effectiveness of EU efforts to strengthen
external border controls will partly depend on the EU’s success in combating illegal
immigration and standardizing immigration and asylum rules throughout the EU. For
years, EU attempts to do so were impeded by vastly different national preferences
and sensitivities toward immigrants and asylum seekers. Although EU member

22 For example, in May 2002, with help from Europol, police in a dozen EU countries
searched 30,000 containers at ports and railways, found 200 illegal immigrants, and arrested
ten suspected human traffickers. “European Police Forces Target Illegal Immigration
Networks,” Agence France Presse, May 29, 2002.
23 Raphael Minder, “Modest EU Border Agency Plans Point to Unease,” Financial Times,
November 11, 2003.

states have reached political agreement on a package of measures to harmonize
asylum rules, managing other aspects of immigration and asylum policy remains
complicated.24 Several common measures proposed over the last few years have
been deemed excessively draconian by some member states and have been rejected.
For example, in June 2002, Britain and Spain proposed suspending EU financial
assistance to developing countries that failed to crack down on illegal immigration
or refused to readmit their nationals. France and Sweden led the charge against this
initiative; they argued that imposing sanctions on development aid would only add
to the poverty that forces people to emigrate. Commentators noted that France,
whose bulk of both legal and illegal immigrants come from Africa, also feared that
sanctions would upset its bilateral relations with those countries and produce
domestic unrest at home. Similarly, France and Sweden continue to oppose on
human rights grounds proposals to establish asylum centers outside the EU to process
refugee claims.
Other analysts argue that national sovereignty issues are becoming less
important to many EU member states. They claim that the EU continues to knit itself
closer together on a number of fronts, and less integrationist-minded states such as
the UK, Ireland, and Denmark are in the minority. For example, many members,
including France, Germany, and Italy, back the formation of an EU border police
force. These optimists also point out that some member states’ attitudes toward
cross-border policing and arrest capabilities may be changing. Within the Schengen
area, some “hot pursuit” bilateral agreements already exist between member states
to allow each other’s police officers to pursue but not arrest suspects that cross into
another member’s territory. France, however, has found receptivity in Germany,
Belgium, and Spain to proposals that would give their police forces the right of arrest
on each other’s soil.25 Some view these bilateral arrangements as potentially paving
the way for a similar EU-wide accord in the future.
Civil Liberty Concerns. Distrust among some members of other countries’
legal regimes and wariness about the degree of protection they offer for individual
civil rights may also pose obstacles to closer police and judicial cooperation. As
noted earlier, civil liberty concerns have slowed the passage of implementing
legislation for the EU arrest warrant in Germany. Conservative opposition parties in
Sweden and the UK also objected, albeit unsuccessfully, to the arrest warrant on
grounds that it would compromise domestic legal protections. They feared that their
fellow citizens would be exposed to the whims of other judicial systems that they
considered less than trustworthy. British commentators pointed to the 2002
conviction of 12 British tourists in Greece on allegedly trumped-up charges of spying

24 The EU views establishing common asylum definitions, standards, and timetables for
processing requests as crucial to ending “asylum shopping” and preventing the exploitation
of differences in members states’ asylum procedures. In 2002, EU members concluded
agreements setting out minimum reception standards for asylum seekers and rules
determining which member state should process asylum claims. In the spring of 2004,
although well behind the original deadlines, EU members finally reached agreement on a
common definition of a refugee and common asylum procedures.
25 “French, German Deal on Police Arrests,” Agence France Presse, May 27, 2002; “Paris
and Madrid in Cross-border Police Deal,” The Guardian, November 7, 2003.

on Greek military aircraft. Supporters counter that the warrant contains an appeals
process that allows for redress at the national level. Similarly, a newly proposed EU
initiative to make the retention of internet, e-mail, and telephone data compulsory for
12 months for crime-busting purposes will likely face opposition from civil rights
groups concerned about privacy protections; the telecommunications industry is also
worried about the potential costs of such a data retention scheme.26 In addition, some
European Parliamentarians and civil liberty organizations have voiced data privacy
and reliability worries about EU plans to include biometric identifiers in EU
passports and other travel documents.
Obstacles to Closer U.S.-EU Cooperation
Liaison Difficulties. Although U.S. officials praise the help provided by
European law enforcement officials after September 11, some doubt the utility of
liaison exchanges with EU-wide bodies. In early 2002, a U.S. liaison officer was
stationed in The Hague to work with the Europol-based counterterrorism task force,
but was withdrawn in August 2002. Some observers suggest that EU task force
officers were less than welcoming to the U.S. representative and not cooperative; at
the same time, they point out that given the information-sharing problems among EU
police and intelligence services, this should not have been a surprise. Other analysts
question how effective Europol officers in Washington can be given that they are
housed in the European Commission’s Washington delegation office, and not with
U.S. law enforcement agencies. EU officials counter that this practice is neither
unusual nor disadvantageous; they point out that U.S. legal attaches abroad (for
example, FBI officials) are customarily located in U.S. embassies rather than in the
headquarters of their foreign counterparts. Critics also argue that direct liaison with
Europol is unnecessary given the good bilateral relationships between U.S. law
enforcement agencies and counterparts in EU member states, and in light of
Europol’s capability deficiencies. Supporters contend that Europol may still evolve
into a more capable and coherent EU law enforcement agency, and therefore, it
behooves U.S. interests to establish close ties now. The United States has announced
that it will appoint an FBI liaison officer to coordinate with the counterterrorism task
force being reestablished at Europol.27
Definitional Differences. The United States and the EU have been working
to bring their respective lists of individuals and groups that engage in terrorist
activities closer together. The United States views this as important not only for its
symbolic value, but also because of the asset-freezing requirements that the EU
attaches to those on its list. Some EU member states were hesitant initially to name
certain groups that are based in nations with dubious human rights records to the list,
such as the Turkish-based Kurdistan Worker’s party (PKK), the Revolutionary
Armed Forces of Colombia (FARC), and Palestinian-related organizations. A

26 The initiative to retain telecommunications data for law enforcement purposes was
proposed in April 2004 by France, Ireland, Sweden, and the UK. The EU hopes to reach
agreement on this initiative by June 2005. “European Data Retention Proposal Criticized,”
Communications Daily, May 10, 2004.
27 Interviews of U.S. and EU officials, August 2004. Also see, “US to Send FBI Liaison
Officer to Europol,” Agence France Presse, September 30, 2004.

number of commentators also suggest that the EU has been slower to add such
groups on its list because some member states view them as more revolutionary than
terrorist in nature. In other cases, the EU drew distinctions between the political and
military branches of the same organization, such as Hamas. Although the EU
terrorist list included Hamas’s military wing since its first iteration in December

2001, the EU did not agree to add the political wing until early September 2003.

Some member states argued that Hamas’s political wing provided crucial social
services in the West Bank and Gaza, and worried that listing it would only further
inflame the Israeli-Palestinian conflict. The EU’s decision to include Hamas’s
political wing came amid an escalation in suicide bombings and a growing sense that
Hamas is a single organization. The EU was unable to reach agreement, however,
on adding related charities or individuals suspected of raising money for Hamas.
The United States and other countries such as Turkey, Colombia, and Israel have
successfully lobbied the EU to include the PKK, FARC, Hamas, and other
organizations on its terrorist blacklist. The United States has also taken some cues
from the EU, adding to its terrorist asset-freezing list a number of Basque separatists,
several Northern Ireland paramilitary organizations, and two Sikh separatist groups,
among others. The United States and Israel continue to press the EU to add the
Lebanon-based Hezbollah to its terrorist list. As with Hamas previously, however,
some member states remain concerned that including Hezbollah, which also provides
needed social services, would be counterproductive.28
Data Protection Worries. In order to forge closer police and judicial
cooperation with the EU, the United States had to overcome worries that it did not
meet EU data protection standards. The EU considers the privacy of personal data
a basic right; EU data privacy regulations set out common rules for public and private
entities in the EU that hold or transmit personal data, and prohibit the transfer of such
data to countries where legal protections are not deemed “adequate.” According to
the EU, the United States falls short. European officials insist, however, that this
view stems more from fundamentally different data privacy regimes than from EU
beliefs of nefarious U.S. practices. They note that the European approach has been
structured to keep personal data out of the hands of authorities as much as possible;
in the United States, this is not as much of a concern because there is greater
confidence that the judicial system will correct law enforcement mistakes. U.S.
officials believe the underlying problem is different perceptions of law enforcement.
While Americans see the police as providing a societal benefit, Europeans regard law
enforcement as a necessary evil that must be constrained lest it run amok. Europe’s
past experience with totalitarian regimes clearly informs this view, and contributes
to the demand of European politicians and publics for strict data privacy rules.
Bridging the gap between U.S. and EU data protection regimes has been and
will likely remain a challenge. Negotiations to allow U.S. law enforcement officers
and Europol representatives to share “personal” information on suspected terrorists

28 David E. Kalish, “European Slow to Block Terror Assets,” Associated Press, March 8,
2002; Paul Geitner, “EU Says Won’t Step in to Help Palestinians Replace Any Frozen
Hamas Funds,” Associated Press, September 8, 2003; Interviews of EU officials, Spring-
Summer 2003.

and other criminals were arduous and took over a year to complete. The EU also
contested new U.S. regulations requiring airlines operating flights to or from the
United States to provide U.S. authorities with passenger data (PNR information)
from their reservation and departure control systems. In May 2004, the United States
and EU signed an agreement that sought to calm European concerns about the length
and type of data stored and how it could be used by U.S. law enforcement. The
European Parliament and European civil liberty groups, however, continue to
challenge the deal. The European Parliament has lodged a case against the PNR
agreement in the EU Court of Justice, which could nullify the deal if the Court finds
it violates EU privacy rules. The Court is not expected to issue its ruling for at least

18 months; the EU will abide by the terms of the May 2004 accord until then.

Washington would like to establish an umbrella agreement in which the EU
would largely accept U.S. data privacy standards as adequate and permit the routine
transfer of personal data between EU bodies and U.S. law enforcement agencies. The
EU resists this idea, claiming that only tailored agreements will guarantee an “added
level of protection” for EU citizens against possible U.S. infringements of their
privacy rights. They point out that it would be burdensome for EU citizens to gain
redress for any wrongs committed through the U.S. judicial system.29 Regardless,
some U.S. analysts assert that the conclusion of the Europol and PNR agreements
establish U.S. data protection “adequacy” in practice and predict that similar U.S.-EU
efforts in the future to improve information-sharing for law enforcement purposes
will face fewer challenges. They also note that the EU has begun to reconsider its
data privacy rules and their relation to law enforcement, in part in response to the
need to improve communication among EU police and intelligence agencies to better
counter the terrorist threat.30
Crime, Punishment, and Diverging Views. The EU was keen to establish
cooperation agreements with the United States on extradition and mutual legal
assistance to aid the fight against terrorism and other transnational crimes, help
harmonize member states’ policies vis-à-vis the United States, and expedite the
judicial process. Concluding these U.S.-EU-wide accords proved challenging,
however, because U.S. and EU negotiators had to grapple with a number of
contentious issues rooted in different U.S. and European societal attitudes toward
crime and punishment. Many Europeans are increasingly wary of what they view as
a widening divide between the two sides of the Atlantic over concepts of justice and
U.S. tendencies toward retribution rather than rehabilitation. They struggle to
understand how a country with which they share such fundamental values regarding
the protection of individual human rights can take such a different perspective on
capital punishment. For many in the EU, the U.S. handling of Al Qaeda prisoners at
Guantánamo Bay and the Bush Administration’s decision to “unsign” the U.N. treaty
creating the International Criminal Court are further proof of underlying
philosophical differences.

29 Interviews of U.S. and EU officials, 2002 and 2003.
30 In June 2004, the European Commission issued a paper aimed at launching a debate on
EU privacy rules for law enforcement authorities and enhancing their access to personal and
passenger information.

Topping the list of EU concerns in the extradition treaty negotiations was the
use of the death penalty in the United States. EU law bans capital punishment among
member states and prohibits the extradition of suspects to countries where they could
face the death penalty. The EU laid down a clear redline that it would not conclude
an accord in which a suspect extradited from an EU member state could be subject
to capital punishment. With little room for compromise by the EU side, Washington
effectively agreed to EU demands that suspects extradited from the EU to the United
States would not face the death penalty. EU officials say this merely formalizes past
ad hoc practices in which EU member states have extradited suspects wanted for
capital crimes on a case-by-case basis on the condition that the death penalty would
not be imposed or carried out. EU member states may refuse extradition to the
United States if these conditions are not guaranteed.
Some EU leaders and European human rights activists oppose the U.S.-EU
extradition treaty and could slow its transposition into national law in certain member
states. These critics contend that the guarantees against the imposition of the death
penalty in the current text are not strong enough. Moreover, they point out that the
guarantee to a fair trial is ambiguous, and worry that the treaty does not explicitly
prohibit trial by military tribunal. Many Europeans oppose the proposed use of
military tribunals for suspected terrorists in the United States on grounds that they
lack transparency and curtail civil rights protections.31
Impact on Bilateral Cooperation. Many working-level U.S. police and
judicial officials were initially hesitant to pursue U.S.-EU-wide cooperation on
extradition and mutual legal assistance (MLA) because they were doubtful it would
add much value to existing bilateral arrangements. In particular, they worried that
an EU-wide accord on mutual legal assistance could weaken currently strong and
effective MLA treaties with individual member states. They pointed out that the
difficulty of reaching consensus among the 25 EU member states often results in
common positions founded upon the lowest common denominator, such as
conditions acceptable to all but that may not be optimal. U.S. officials feared that
certain issues, such as German views on data protection, could hold U.S.-EU
negotiations hostage. They noted that Berlin’s redline that even basic legal assistance
provided by German authorities must not lead to the pursuit of a capital case in the
United States had precluded the conclusion of a U.S.-German bilateral MLA treaty
for over ten years. U.S. officials asserted that they were not interested in signing onto
an EU-wide accord that might have to subscribe to this principle in order to get
German agreement and that could call into question U.S. bilateral MLA treaties with
other individual EU members that were less restrictive. U.S. officials were
somewhat more enthusiastic about the potential benefits of a U.S.-EU-wide
extradition accord. They had hoped to secure a provision permitting any EU national
to be handed over to U.S. judicial authorities. Under current bilateral arrangements,
only some EU countries permit the extradition of their nationals to the United States.
Ultimately, the resulting U.S.-EU agreements on extradition and mutual legal
assistance reflect several compromises. U.S. concerns that these Union-wide accords

31 “EU Agrees to Extradition Deal with United States,” Reuters, June 6, 2003; Interviews
of U.S. and EU officials, 2002 and 2003.

not weaken existing bilateral arrangements were eased by a provision calling for each
EU member state to conclude a protocol with the United States reconciling the terms
of its bilateral treaties with the new EU-wide agreements. These protocols will spell
out which parts of the bilateral treaties will be retained, and which parts will be added
to or replaced by provisions in the wider U.S.-EU treaties. Both U.S. and EU
officials claim that this procedure should protect those parts of the bilateral treaties
that are stronger or more effective than those in the U.S.-EU accords. Although
Washington failed to obtain the extradition of all EU nationals to the United States,
U.S. policymakers point out that the EU-wide extradition treaty will update and
modernize existing bilateral accords. In the end, U.S. negotiators were pleased with
the MLA treaty, which will provide U.S. authorities access to European bank account
information on potential terrorists and other criminal suspects, establishes expedited
procedures for processing MLA requests, and permits setting up joint investigative
teams. They note that accepting the banking information provision was difficult for
many EU member states because of their concerns about protecting privacy rights.
EU and U.S. officials also point out that the MLA agreement captures all current and
future EU member states in one agreement; Washington has active bilateral MLA
treaties with only 18 of the EU’s current 25 member states.32
European Perspectives
The March 11, 2004, terrorist attacks in Madrid, Spain, refocused EU attention
on the threat of terrorism in Europe and have injected a greater sense of urgency into
EU efforts to boost police and judicial cooperation within the EU and with the United
States. As noted, the EU has reasserted its commitment to fully implement existing
legal instruments aimed at fighting terrorism. Some observers worry, however, that
as memories of the terrorist attacks fade, so will the EU’s renewed political will.
These skeptics believe the EU’s commitment to pushing its common police and
judicial agenda forward will wane as competing priorities emerge, and as further
progress in this area starts to encroach even more on national sovereignty. Some
suggest that the new EU arrest warrant may represent the current outer limits of EU
judicial cooperation. Critics also doubt that the EU will devote the resources
necessary to build more effective EU-wide police and judicial institutions.
Other European commentators stress that sufficient momentum exists to sustain
the EU’s effort to boost police and judicial cooperation, especially in the aftermath
of the Madrid attacks. They argue that European publics feel a heightened sense of
vulnerability and EU leaders know that the costs of failure are high. Although the
EU as an entity and many individual member states are struggling with establishing
a proper balance between law enforcement, individual privacy, and civil rights in the
post-September 11 world, the changes in some domestic laws demonstrate that
European governments recognize that law enforcement officials need new tools to
tackle emerging challenges. Observers note that even in Germany, which has among
the strictest data protection laws of any EU country, legislators passed a series of

32 The United States has signed mutual legal assistance treaties with EU members Sweden
and Germany, but these have not yet been ratified. No U.S. MLA agreements exist with
Finland, Malta, Portugal, Slovakia, or Slovenia.

measures designed to improve the ability of law enforcement authorities to track
terrorist suspects and enable police and judicial officials to better communicate with
each other. As for EU willingness to pay for new common internal security measures
as well as initiatives to strengthen the EU’s external borders, EU-watchers point out
that the sums involved are relatively small — unlike the anticipated large defense
equipment expenditures necessary to make the EU’s rapid reaction force effective.
Moreover, they claim that EU publics are more amenable to spending scarce
budgetary resources on measures aimed at enhancing “homeland security” than on
new peacekeeping capabilities for use outside of Europe.
Supporters also assert that the EU’s recent enlargement to the east gives further
impetus to EU initiatives aimed at clamping down on cross-border criminals and
closing security loopholes. Enlargement pushes the EU’s borders east to Russia and
further into the Balkans, areas that are havens and conduits for organized crime and
other criminals. By joining the EU, new members will have to beef up their own
border controls, introduce tough visa requirements, and subscribe to the provisions
of new EU law enforcement tools, such as the arrest warrant. Furthermore, EU
officials point out that while September 11 provided the initial spark to accelerate
cooperation in the police and judicial field, the rapid progress since then was only
possible because work on many of the initiatives had been underway for several
years. EU leaders have always viewed greater cooperation in the law enforcement
and judicial fields as a crucial step on the road to further European integration.
The EU recognizes that increased cooperation with U.S. law enforcement and
intelligence authorities (particularly with the FBI, CIA, and agencies under the U.S.
Department of Homeland Security) is essential to improving its internal security,
preventing future terrorist attacks in Europe, and ensuring the safety of EU citizens.
In addition, observers point out that the desire of many EU leaders to build an
eventual judicial identity, complete with common EU institutions such as a public
prosecutors office, is also driving EU efforts to increase cooperation with the United
States both at the investigative level and with policy counterparts at the U.S. State,
Justice, and Homeland Security Departments. The EU views establishing external
relationships with the United States and other countries in the police and judicial
field as an essential part of developing a common judicial identity. EU officials
recognize this will take many years to accomplish, especially as EU efforts to
formulate common policies, definitions, and sanctions for crimes beyond terrorism,
such as drug-trafficking or child exploitation, lag behind. Analysts estimate that a
common EU judicial identity is at least a decade away given the ongoing national
sovereignty concerns of some member states.
Some analysts suggest that transatlantic tensions could negatively affect future
U.S.-EU cooperation against terrorism. Differences in U.S. and European
approaches to counterterrorism have become more evident as Washington has
broadened the war against terrorism beyond Al Qaeda and Afghanistan. Most EU
members continue to view terrorism primarily as an issue for law enforcement rather
than a problem to be solved by military means. Europeans are increasingly worried
that the United States is losing the battle for Muslim “hearts and minds,” not only
because of the war with Iraq and Washington’s traditional support for Israel, but also
because of U.S. decisions that some charge violate human rights, such as keeping
suspected Al Qaeda terrorists at Guantánamo Bay. The 9/11 Commission recognizes

that allegations of U.S. prisoner abuse “make it harder to build the diplomatic,
political, and military alliances” that the Untied States needs in order to combat
terrorism worldwide. Provisions in both H.R. 10 and S. 2845 echo the Commission’s
call for the United States to develop a common coalition approach toward the
detention and human treatment of captured terrorists. Despite ongoing U.S.-EU
frictions, others argue that Europe remains vulnerable to terrorist attacks, and law
enforcement cooperation will continue because it serves both EU and U.S. interests.33
U.S. Policy and Perspectives
The 9/11 Commission recommends that the United States “should engage other
nations in developing a comprehensive coalition strategy against Islamist terrorism,”
including through multilateral institutions. The Bush Administration, backed by
many Members of Congress, supports EU efforts to enhance its counterterrorism
capabilities, and hopes they will ultimately lead to rooting out terrorist cells in
Europe that could be planning other attacks against U.S. interests. The
Administration also welcomes EU initiatives designed to increase cooperation with
the United States and enhance ongoing bilateral law enforcement and border control
relationships. This is in line with entreaties in the 9/11 Commission Report to “do
more to exchange terrorist information with trusted allies” and improve U.S. and
global border security standards “through extensive international cooperation;” some
measures in H.R. 10 and S. 2845 also mirror these sentiments. The U.S.
Departments of State, Justice, Homeland Security, the FBI, and CIA, are actively
engaged in efforts to step up coordination with EU police, judicial, and intelligence
Some working-level police and judicial officials continue to caution that U.S.-
EU-wide cooperation must add value and not detract from good, existing bilateral
law enforcement relationships or impede ongoing cross-border investigations.
Although mindful of these concerns, the Bush Administration appears to have
determined that the political benefits of engaging the EU as an entity on police and
judicial matters outweigh potential negatives. U.S. officials stress they are
proceeding cautiously in engaging the EU to avoid damaging good bilateral relations,
but they also believe that the Union’s renewed efforts on the police and judicial front
may be the first steps on a long road toward a common EU judicial identity. Thus,
they claim it is in U.S. interests to weigh in early and often in this EU process given
Europe’s role as a key U.S. partner in international law enforcement efforts and the
fight against terrorism.
Administration officials assert that this strategy has already garnered some
successes. For example, U.S.-EU coordination in naming terrorist suspects and
freezing their assets is improving, and the EU has taken U.S. concerns into account
in formulating its common arrest warrant. Original language in the EU arrest warrant
agreement gave priority to member states in the event that multiple extradition
requests for a particular suspect existed from countries both within and outside the
EU. The United States successfully lobbied the EU to change this provision to

33 Interviews of European officials, 2002 and 2003.

permit consideration of the seriousness of the offense and the place where the offense
was committed. For example, if an alleged criminal located in Italy is wanted in
Germany for car theft, but in the United States for a terrorist act, Italian judicial
authorities could decide to extradite the suspect to the United States rather than to its
EU partner.
The Administration also believes that room exists for closer cooperation
between the United States and the EU in the border control area and has been seeking
more systematic exchanges of customs and immigration information. U.S. officials
hope this will help both American and EU authorities keep better track of suspected
terrorists and prevent them from entering the United States or finding sanctuary in
Europe. As the 9/11 Commission Report notes, the United States can only guarantee
the security of its own borders through close collaboration with other governments.
The new U.S.-EU high-level dialogue on border and transport security not only seeks
to boost collaboration and communication among border control officials but also
aims to provide a forum in which each side can provide the other with “early
warning” of and input on emerging legislative proposals on issues such as travel
documents, cargo security, passenger data transfers, biometrics, and sky marshals.
Congress is keenly interested in the measures being developed by the EU to
improve the ability of its member states to combat global terrorism. A salient issue
for Congress in relation to EU efforts to strengthen police and judicial cooperation
will be whether the U.S.-EU agreements on extradition and mutual legal assistance
add value to existing, strong bilateral arrangements or threaten to reduce them to the
level of the lowest EU common denominator. U.S. negotiators stress that the U.S.-
EU treaties on extradition and mutual legal assistance protect all U.S. bilateral
agreements with member states and merely add to, update, or strengthen the existing
accords.34 Congressional decisions related to improving U.S. travel document
security and border controls may also affect how U.S.-EU cooperation in these areas

34 Interviews of U.S. officials, 2002 and 2003.

Appendix A:
Key EU Initiatives to Improve Police and Judicial
Cooperation and Combat Terrorism
This Appendix provides additional information on the EU’s main initiatives to
enhance cooperation in the police and judicial fields and combat terrorism. It should
be read in conjunction with the information on pages 3-8 of this Report.
Common EU Definition of Terrorism and Common Penalties. The
common definition applies to groups or individuals committing or threatening certain
acts, including murder, kidnaping and hijacking, with the intent to intimidate a
population or destabilize a country’s political system or economic structures. Each
member state must set a maximum sentence of at least 15 years incarceration for
leading a terrorist group and at least eight years for participating in or financing the
activities of a terrorist organization. EU members were required to bring their
national laws into line with these common provisions by December 31, 2002.35
Common EU Lists of Terrorist Organizations. In October 2001, the EU
expanded its previously existing sanctions against the Taliban, Osama bin Laden, and
Al Qaeda to include a total of 27 individuals or groups. Following subsequent U.N.
Security Council decisions, this list has grown to include over 300 persons and
entities with links to Al Qaeda, including Abu Sayyaf, Algeria’s GIA, Harakat al-36
Mujahideen, and Jemaah Islamiyah. The EU issued the first iteration of its own
common list of 42 additional terrorist individuals and organizations in December
2001; most of the groups on this initial list were European-based, such as the Basque
group ETA, but Hamas’s military wing was also included. In May 2002, the EU
added 7 other individuals associated with ETA and 10 additional entities, such as the
Turkish-based Kurdistan Worker’s Party (PKK) and Peru’s Shining Path. In June
2002, EU leaders added 4 more Basques (but removed 5 others) and 8 other groups
— including the Revolutionary Armed Forces of Colombia (FARC) and two
Palestinian entities with ties to Palestinian Authority president Yasser Arafat (the Al
Aqsa Martyr’s Brigade and the Popular Front for the Liberation of Palestine). In
September 2003, EU member states agreed to include the political wing of Hamas
on this list, but continues to resist adding the Lebanese-based Hezbollah. As of May
2004, this EU list contains 45 individuals and 46 groups; it is updated at least every
six months.37 EU police authorities also maintain a separate, classified list of
suspected terrorists that are the subjects of ongoing investigations.

35 See the “Council Framework Decision on Combating Terrorism” (2002/475/JHA), June
13, 2002. Text may be found in the Official Journal of the European Communities
[ ex/en/search/search_oj .html ].
36 Text of the relevant Council Regulation (EC) No. 881/2002 of May 27, 2002 and
accompanying amendments may be found in the Official Journal of the European
Communities []
37 Text of the most recent relevant Council Common Position (2004/500/CFSP) of May 17,
2004 and Council Decision (2004/306/EC) of April 2, 2004 may be found in the Official
Journal of the European Communities [

EU-wide Arrest Warrant. The EU arrest warrant will effectively end the
practice of non-extradition of EU nationals within the Union and abolish dual
criminality — the principle that a crime must be defined and verified as a crime in
both the issuing and enforcing state — for the 32 agreed upon offenses. Hence, it
will transform the formal diplomatic process of extradition into an administrative
procedure and permit suspects to be handed directly from one judicial authority to
another. For example, an Italian judge could issue an arrest warrant for a French
citizen who committed a crime in Rome and give it to the Dutch police to enforce if
the suspect had fled to Amsterdam; Dutch police would then arrest the suspect and
transfer the individual back to Rome to face trial. The maximum 90-day time frame
for this process includes an appeals procedure. The 32 offenses must be punishable
by at least three years incarceration in the requesting state for the warrant to apply.38
Europol (European Police Office). Europol was established by the 1992
Maastricht Treaty. Agreement and ratification of the Europol Convention, which set
out the agency’s mandate, responsibilities, and competencies, was delayed for many
years because of a dispute between member states over the role of the EU Court of
Justice. Based in The Hague, Europol began limited operations in 1994 in the form
of the Europol Drugs Unit. The Europol Convention was finally signed in 1995 and
ratified in 1998, thereby allowing Europol to become fully operational in 1999.
Europol’s original mandate covered terrorism, money-laundering, Euro
counterfeiting, drug trafficking, human trafficking, and child pornography. In
December 2001, EU leaders extended this mandate to include extortion, corruption,
kidnaping, and racist, cyber, and environmental crimes. As a result of the March

2004 attacks in Madrid, Europol plans to enlarge its small counterterrorism unit,

which provides strategic and operational analyses of the terrorist threat in Europe.
Europol is also seeking to boost cooperation with other transnational police
organizations such as Interpol, and with other countries to facilitate information-
sharing. To date, Europol has signed cooperation agreements with the United States,
Bulgaria, Colombia, Iceland, Romania, Russia, Switzerland, and Turkey. Europol
relations with the 10 new members of the EU will be governed by bilateral
cooperation agreements until each state ratifies the Europol Convention.
Joint Investigation Teams. In October 1999, EU leaders gave the green
light to establish joint investigation teams, composed of law enforcement officers of
two or more member states, to conduct a specific cross-border investigation of
limited duration. The creation of such teams was codified in Article 13 of the EU
Convention on Mutual Assistance in Criminal Matters of May 2000, which has not
yet entered into force. In October 2001, Belgium, France, Spain, and the United
Kingdom submitted a proposal to allow Article 13 to take effect immediately to help
in the fight against terrorism. This proposal was formally adopted by the EU in June

2002, but its implementation has lagged in several member states.39 This decision

38 See the “Council Framework Decision on the European Arrest Warrant” (2002/584/JHA),
June 13, 2002. Text may be found in the Official Journal of the European Communities
[ ex/en/search/search_oj .html ].
39 See the “Council Framework Decision on Joint Investigation Teams” (2002/465/JHA),
June 13, 2002. Text may be found in the Official Journal of the European Communities

will cease to have effect once the May 2000 Convention has been ratified and enters
into force in all member states.
EU Convention on Mutual Assistance in Criminal Matters of May
2000. This Convention seeks to update previous mutual legal assistance agreements
among EU members; it does not require dual criminality as a condition for assistance
and outlines provisions for rendering assistance on restitution, temporary transfer of
persons, hearings by video or telephone conference, and cross-border investigation
methods. Following the 2001 terrorist attacks, the EU called for all members to
ratify the Convention as soon as possible. It has not yet entered into force.
Eurojust. Based in The Hague, Eurojust is a centralized unit of senior lawyers,
prosecutors, judges, and other legal experts charged with helping to coordinate the
investigation and prosecution of serious cross-border crimes involving at least two
member states or one member and the European Commission. It is composed of 25
representatives, one from each EU member state, who reportedly have extensive
knowledge of the legal systems of their own countries, and access to national
authorities. These representatives are charged with providing legal advice and
assistance in cross-border cases to investigators, prosecutors, and judges in the
member states, thereby improving cooperation and communication between the
national courts and making the prosecution of cross-border cases better and more
efficient. Eurojust can recommend that national authorities initiate an investigation,
but cannot launch or carry out one itself. In March 2001, a provisional judicial
cooperation unit (Pro-Eurojust) began work and dealt with 180 cases during its
eleven months of operation. Eurojust has since handled over 500 cases. Eurojust
works alongside the EU’s decentralized European Judicial Network, which began
operations in 1998 and is composed of contact points in all member states who
provide advice and assistance to lawyers and judges working on cross-border cases.
EU Chiefs of Police Task Force. EU leaders called for the establishment
of this Task Force in 1997; it came into being in 2000 as a forum for EU police chiefs
to engage in dialogue with each other and with Europol on best practices and trends
in cross-border crime. It is also charged with providing strategic guidance for
Europol operations and for preventing and combating crime throughout the EU. In
April 2002, the Task Force established a supervisory committee composed of
representatives from the outgoing, incoming, and current EU presidency countries,
Europol, and the Commission. The committee’s goal is to ensure greater continuity
in the Task Force’s efforts and enhance cooperation with Europol. In the wake of the
Madrid bombings in March 2004, European leaders have called for new
arrangements reinforcing the Task Force’s operational capacity to be adopted by
December 2004.
Cooperation among EU Police and Intelligence Services. In 2002,
EU leaders approved three additional measures in this area. One calls for
establishing multinational, ad hoc teams of counter-terrorist experts from agencies
under the control of member states’ Interior Ministries to investigate the working

39 (...continued)
[ ex/en/search/search_oj .html ].

methods of terrorist groups such as the use of joint training camps and sources of
financing. Europol will provide analytical and logistical support, but the member
states in which the operations are carried out will have authority over the teams. The
second initiative requires each member state to designate a police and judicial contact
point for collecting and exchanging information on terrorist investigations. The third
measure allows for the common use of member states’ police liaison officers posted
to non-EU countries; such liaison officers are now able to share information with any
member state and with Europol. Critics charge that these proposals duplicate
existing instruments and could compromise EU data protection rules.
EU Counter-Terrorist Group (CTG). Following the March 11, 2004,
terrorist attacks in Spain, the directors of the security services of the EU’s now 25
members agreed to meet regularly in Brussels in the Counter-Terrorist Group format
to promote intelligence-sharing and build trust. Discussions are expected to focus
on exchanging information and analysis on the threats posed by fundamentalist
Islamic terrorist cells in Europe.
European Police College (CEPOL). EU leaders set up the European Police
College in December 2000 as a network of training institutes for senior police
officers. It seeks to boost knowledge of national police systems and foster a
European police culture, but it has been slow to get off the ground. In February 2002,
EU officials decided Denmark would temporarily host the College, thereby allowing
a director to be appointed and its operating funds to be released. Courses organized
by the College address anti-terrorism, border controls, community policing, and riot
control, among other subjects. In December 2003, EU leaders decided on the UK as
CEPOL’s permanent host.
EU Counterterrorist Coordinator. The new EU Counter-terrorist
Coordinator is charged with coordinating the policy efforts of the various EU bodies
engaged in combating terrorism to improve cooperation and communication. The
Coordinator is also supposed to promote and oversee the effective implementation
of agreed measures and help manage EU relations with other countries in the fight
against terrorism. The Coordinator reports to the EU’s High Representative for
Common Foreign and Security Policy (CFSP).
EU Counterterrorist Intelligence Capacity. In March 2004, EU leaders
backed the idea of reinforcing the EU’s capacity to analyze intelligence in the field
of terrorism and tasked the High Representative for CFSP to make proposals for
doing so by the June 2004 EU summit. At this summit, EU leaders approved
measures to enhance the EU’s ability to provide EU policymakers with intelligence
analyses that integrate information on both external and internal terrorist threats to
the EU’s territory. The EU’s embryonic Joint Situation Centre (SITCEN) will be
beefed up with additional personnel to carry out such integrated analyses, which will
also be made available to member states. Analyses will reportedly be for policy
planning, rather than operational, purposes.40

40 Alexander Ratz, “EUSeeks Greater Sharing of Intelligence to Assess Terrorist Threats
to Europe,” Associated Press, June 8, 2004.

June 2001 Framework Decision on Money-Laundering. In June 2001,
EU leaders reached an agreement directing member states to introduce tougher
money-laundering laws related to the identification, tracing, freezing, and seizing of
criminal assets by December 31, 2002. It also called for harmonizing penalties for
money-laundering offenses. Several EU states, including most of the new members,
have not yet, or only partially, implemented these measures.41
Expanded EU Money-Laundering Directive. This second directive builds
on the EU’s 1991 money-laundering directive. The terms of this directive were
initially proposed in 1999, but final approval was delayed because of the European
Parliament’s concern that it would seriously damage lawyer-client confidentiality
rules. In a compromise reached in November 2001, lawyers will be exempt from
reporting information received from clients during the course of criminal proceedings
and in certain cases, are permitted to warn clients before tipping off law enforcement
agencies. In addition to lawyers and accountants, the new requirement to report
suspicious transactions also applies to auditors, real estate agents, notaries, casino
owners, dealers in high value goods such as precious gems or works of art, and fund
transporting companies. All EU member states were required to bring their national
laws into line with the expanded directive by June 15, 2003, but not all member
states have done so yet.42
New EU Money-Laundering Directive. On June 30, 2004, the European
Commission proposed a new money-laundering directive that would consolidate the
two previous directives and expand the definition of money-laundering to include
legally acquired money used to finance terrorism. The expanded directive agreed in
November 2001 only referred to proceeds resulting from “serious crimes.” Among
other measures, the new directive would also extend the range of professions subject
to reporting requirements, enhance the “know-your-customer” rules by explicitly
stating that banks may not keep anonymous accounts, and further align EU rules with
the 2003 recommendations of the international Financial Action Task Force on
Money Laundering (FATF).43
EU-Wide Asset Freezing Order. This initiative was originally proposed by
France, Sweden, and Belgium in February 2001. Following September 11, its scope
was extended to terrorist-related crimes and linked to the EU-wide arrest warrant.
It will be applicable to specific cross-border investigations, and is distinct from the

41 “Money-laundering: Member States’ Bad Record for Applying Legislation Exposed,”
European Report, No. 2859, April 9, 2004.
42 See Directive 2001/97/EC of the European Parliament and of the Council amending
Council Directive 91/308/EEC on prevention of the use of the financial system for the
purpose of money laundering, December 4, 2001. Text may be found in the Official Journal
of the European Communities [].
43 “Money-laundering: New Directive Tabled to Tackle Terrorist Financing,” European
Report, No. 2882, July 3, 2004.

asset-freezing requirement that accompanies the EU’s common terrorist list. It must
be implemented in all EU member states by August 2005.44
Confiscating Assets in the EU. In August 2002, Denmark proposed two
measures to facilitate the confiscation of criminal assets in the EU. One measure,
approved in December 2002, relaxes the burden of proof necessary for confiscation
of crime-related proceeds. It has not yet been formally adopted, however, because
two states must still clear the measure with their respective legislatures. The other
proposal calls for the swift mutual recognition and enforcement of orders to
confiscate criminal assets wherever they may be located in the EU. After resolving
disagreements on the scope of this initiative and the division of confiscated assets,
political agreement was reached in June 2004, but it must still be formally adopted.45
Ratifying EU and U.N. Mechanisms Against Financing Terrorism.
In October 2001, EU leaders signed the Protocol to the EU Convention on Mutual
Assistance in Criminal Matters. The Protocol seeks to facilitate the exchange of
information among member states on banking records, accounts, and transactions of
criminal suspects under investigation. This Protocol, however, like the Convention
itself, has not yet been ratified. In addition, the EU has called upon member
countries to ratify the 1999 U.N. Convention for the Suppression of the Financing of
Terrorism; all have signed it, but five EU members have not yet ratified it (Belgium,
the Czech Republic, Germany, Ireland, and Slovenia).
Increasing Cooperation among National Financial Intelligence Units
and the International Financial Action Task Force on Money Laundering
(FATF). In September 2001, EU leaders directed member states to improve data
exchange among their national financial intelligence units concerning all sources of
terrorist funding and to take action against countries and territories identified by the
FATF as non-cooperative in the fight against money laundering. In October 2001,
EU justice and finance ministers, meeting in a special joint session, reportedly
approved a ban on EU-based banks opening branches in states blacklisted by the
FATF as non-cooperative and called for those with already existing branches to46
disclose any large financial transactions.
External Borders Management Plan. The terms of this plan were largely
based on recommendations put forward by the European Commission in early May

2002. In June 2002, EU leaders at the Seville Summit approved the bulk of this plan

44 See the “Council Framework Decision on the Execution in the European Union of Orders
Freezing Property or Evidence” (2003/577/JHA), July 22, 2003. Text may be found in the
Official Journal of the European Communities [
search_oj .html ].
45 “Justice and Home Affairs: Irish Presidency Clocks up Impressive Scorecard,” European
Report, No. 2882, July 3, 2004.
46 The intergovernmental FATF was founded in 1989 by the Group of Seven (G7) most
industrialized countries; it is composed of 31 member states, plus the European Commission
and the Gulf Cooperation Council. It currently lists 6 countries and territories as non-
cooperative. Allen Nacheman, “EU Finance Ministers Back Tough New Money Laundering
Measures,” Agence France Presse, October 16, 2001.

and called for establishing a Common Unit of External Border Practitioners,
composed of member states’ heads of border control, to coordinate the plan’s
numerous initiatives. EU leaders at Seville also set near-term deadlines for several
of the plan’s provisions. They directed a network of immigration liaison officers to
be set up by the end of 2002, and by June 2003, they called for undertaking a
common risk analysis, establishing a common core curriculum for border guard
training, and a Commission burden-sharing study on the costs of managing the EU’s
external borders. Although these various studies were completed by 2003, the
regulation formally setting up the network of member states’ immigration officers
posted to non-EU countries was not officially adopted until February 2004.
European Borders Agency. In November 2003, the European Commission
proposed establishing a “European Agency for the Management of operational
cooperation at the common borders.” It sought to build on the external borders
management plan and its Common Unit of External Border Practitioners. The
Commission believed that the Common Unit was encountering structural difficulties
in managing the operational cooperation among member states but could still play
a useful role as a forum for consultation and strategic coordination. The new Agency
would have a small staff of 30 people and a budget of about $7 million for 2005, to
conduct research and risk assessments, facilitate the sharing of surveillance
techniques and equipment, help member states’ train border guards, provide
assistance in immigration crises, and play a coordinating role in chartering flights to
repatriate illegal immigrants throughout the EU. The formal adoption of the
regulation establishing the new Agency was held up for several months because of
a dispute between Spain and the United Kingdom related to the contested island of
Gibraltar. In September 2004, the UK and Spain agreed that the regulation would not
apply to Gibraltar. EU officials hope to decide by the end of 2004 on a locale for the
Agency’s headquarters and for it to become operational by May 2005.47
Reinforcing Sea Border Controls. In April 2002, EU justice and interior
ministers directed the European Commission to conduct a viability study on measures
to improve controls at maritime borders, identify risk zones, and enhance existing
information and early warning systems. This study was presented in September
2003. In November 2003, the EU responded to the study’s findings with a “Plan for
the Management of Maritime Borders,” aimed at improving efforts to combat illegal
immigration across the EU’s sea borders. Several of the ad hoc joint border control
projects that have been undertaken as part of the external borders management plan
have also focused on improving sea border controls.
Increasing Visa Coordination. All measures under consideration are
designed to enable member states to share information on visa seekers and end the
ability of some visa applicants to exploit differences in national policies and
requirements. Progress on the EU visa database, or Visa Information System (VIS),
has been slow as member states have struggled to work out data protection concerns.

47 Press Release, “Establishing a European Agency for the Management of the Operational
Cooperation at the External Borders,” European Commission, November 11, 2003; “Border
Agency Moves Closer to Fruition as Gibraltar Problem Solved,” European Report, No.

2873, September 18, 2004.

However, in February 2004, EU officials adopted political guidelines on the content
and structure of, and access to, the VIS; in June 2004, the EU formally established
the VIS and freed funding for its development. The European Commission is now
working to flesh out the February 2004 guidelines in greater detail. The VIS is
expected to contain information on the applicant’s identity, type of visa issued, or
reason for visa refusal. The VIS is also expected to be accessible to a wide range of
immigration and other law enforcement authorities. It is also likely to be
implemented in two phases, with personal details and digital photos stored by 2006,
and biometric data, such as fingerprints, added by 2007.
Eurodac. This system allows immigration officials to check the fingerprints
of asylum seekers against records held by other EU countries. If an applicant has
already claimed asylum in another EU member state, he or she would be returned to
that country where the original application was made for processing. The use of
fingerprints is also intended to prevent asylum seekers from making asylum claims
in different member states under a pseudonym. Eurodac was originally approved in
principle in December 2000. It became operational in January 2003. Its
effectiveness will depend on member states collecting the necessary fingerprints and
sending them for storage to the central unit in Brussels, as they are legally required.
Schengen Information System (SIS). The SIS is an EU database, used
primarily by customs and border control officials, of information on convicted or
suspected criminals, lost or forged passports, missing persons, and stolen vehicles
and firearms. It was established to facilitate implementation of the Schengen
Convention, which allows for freedom of movement among 13 EU member states
plus Iceland and Norway.48 Each Schengen member decides the amount and type of
information to enter into the system. Following the September 2001 terrorist attacks,
EU leaders called for participating states to ensure that data is fed more
systematically into the SIS. In April 2004, the EU adopted a regulation expanding
SIS access primarily to visa and immigration authorities and has been working on
finalizing an agreement to give Europol and Eurojust access to the SIS. Finally, the
EU has been working on upgrading the technical capabilities of the SIS (SIS II) to
enable it to accommodate by early 2007 information from the 10 new EU members,
as well as additional types of information, including biometric data.
Improving Travel Document Security. Although political agreement has
been reached on the three EU regulations introducing biometric identifiers in EU
visas, residence permits, and passports, these regulations have not yet been formally
adopted. The Netherlands, the current holder of the rotating EU presidency, hopes
to sign off on the three regulations soon to enable the inclusion of biometric data in
EU travel documents to begin in 2005. EU officials admit, however, that some
member states are unlikely to meet this goal as they seek to resolve technical issues
and privacy concerns and say that 2006 is a more realistic compliance deadline.

48 Although the UK and Ireland do not subscribe to the Schengen Convention’s free
movement provisions, they do participate in police and judicial aspects of the Convention,
thus allowing them access to the SIS. The 10 new members of the EU continue to work
toward improving their external border controls to enable them to participate fully in the
Schengen system by 2007-2008.

Some EU members would also support the mandatory inclusion in the future of a
second biometric identifier, such as fingerprints, in EU passports, but others are
reportedly opposed because they fear the financial costs involved and worry it would
further erode data privacy protections.49
New EU Rules for Passenger Data Transfers. The new rules approved
by the EU in 2004 were originally proposed by Spain in April 2003. EU justice and
interior ministers reached political agreement on the new rules in March 2004 in the
wake of the terrorist bombings in Madrid, but official approval was held up by
delaying tactics in the European Parliament. As with the U.S.-EU agreement to
transmit passenger data, members of Parliament opposed the new rules on data
protection and privacy grounds. In April 2004, EU leaders in effect overrode
Parliament’s efforts to delay the initiative and formally adopted the new rules
requiring the advance transfer of passenger data by airlines servicing the EU.50
EU Counterterrorism Task Force. The task force established after
September 11 was composed of police and intelligence representatives from each EU
member state, as well as Europol officials. Task force representatives worked on
liaison with U.S. counterparts and sought to collect and analyze all relevant
information and intelligence about the September 11 attacks. Following the March

11, 2004 attacks in Madrid, EU leaders called for the task force to be reactivated;

reports indicate it will have a broader mandate than the first task force and will work
on a variety of terrorist-related investigations. A key aim of the task force is to
promote communication and intelligence-sharing among EU member states. Europol
headquarters will again provide the administrative and operational support for the
task force.

49 “EU/US: Homeland Security Deputy Says Fingerprints in Passports Preferable,”
European Report, No. 2880, June 26, 2004.
50 “Air Transport: Adoption of Spanish Initiative for Data Transfers,” European Report, No.

2865, May 1, 2004.

Appendix B:
EU Decision-making Structures and Bodies
with a Role in Countering Terrorism
EuropeanEuropean Commission
Parliament25 MembersEuropean Council
732 Members“Guardians of the25 EU Heads of State and Government
Budgets, Legislation,Treaties”plus European Commission President
Oversight- 2 summits per 6 month Presidency
Rotating Council Presidency
Ireland (January-June 2004)
Propose legislationThe Netherlands (July-December 2004)Luxembourg (January-June 2005)
Co nsultatio ns
EU High
Counter-Terrorist Group (CTG)General Affairs & External RelationsCouncil (GAERC)for Common Foreign& Security Policy
25 Member States Heads of
Security Services25 EU Foreign Ministers(CFSP)
Justice and Home Affairs Council (JHA)Counter-TerroristWorking Group (COTER)
25 EU Ministers for Justiceof Officials from Member
and the InteriorStates Foreign MinistriesEU Counter-
Co o r dina t o r
Sit ua t io n
Permanent Representatives CommitteeCenter
( C O R EP ER )Eur o j u st (SITCEN)

25 Member States Ambassadors to the
Unio n
Article 36 CommitteeHeads of 25 EU
Senior officials of the MemberPolice Chiefs Tasksecurity and
States; Coordinate police andForceintelligence
judicial cooperation in criminal25 EU Chiefs counterterrorist
mattersof Policeunits
- 1 meeting per every 6
mo nt hs
Terrorist Working Group
Standing EU BodiesOfficials from the Member States Interior
EuropolAd Hoc Meetings
Heads of 25 EU police services
counterterrorist units
EU Counterterrorism Task Force
Police and intelligence officials from theEuropol Counter-
Member States, plus Europol officialsTerrorism Unit