Commission evaluates the implementation of the Framework Decision on terrorism

The Commission has adopted a report on the measures taken by the Member States to comply with the Council Framework Decision of 13 June 2002 on combating terrorism. This is one of the measures which the European Council identified in its Declaration on the fight against terrorism adopted the 25 March 2004. The legislation ensures that terrorist activities are defined as criminal offences throughout the Union and that each Member State provides for a minimum level of criminal sanctions for these offences. This means that, once the legislation is fully implemented, there will be no safe havens anywhere in the Union where terrorists can hide from justice.

On the basis of the information received from 12 Member States, the Commission notes that most Member States have adopted new legislation, or at least amended certain internal provisions to approximate the definition and the penalties applicable to terrorism. However there are still gaps in the implementation of the different provisions.

The report and its annexes contain a detailed analysis of national measures taken to comply with the Framework Decision, as well as a table specifying, in accordance with the information received by the Commission, the national provisions transposing each of the articles.

The Commission invites Member States, (including the new Member States that have the obligation to comply with the Framework Decision as of 1 May 2004) to take the remaining measures necessary to fully transpose this legal instrument in their domestic legal systems and to send their respective national legislation to the Commission.

Member States' obligations

Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism obliges Member States to take the necessary measures to comply with the provisions of the Framework Decision by 31 December 2002. By that same date Member States were required to forward to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. The Council was asked to assess, by 31 December 2003, on the basis of a report drawn up from that information and the written report by the Commission, to what extent Member States have taken the necessary measures to comply with the Framework Decision.

Not all Member States have transmitted all relevant texts of their implementing provisions in due time. By 31 December 2002 only five Member States had provided the Commission with information on implementation and only two of them actually included the relevant transposing provisions. By February 2004 the Commission had received no information from Luxembourg and the Netherlands and no legal texts were provided by Greece. This has led to a delay in the production of the report. It also means that the factual assessment and subsequent conclusions drawn might sometimes be based on incomplete information.

Level of transposition

The situation regarding transposition of the specific provisions in the twelve Member States which provided the necessary information to the Commission is as follows:

Article 1 requires Member States to incorporate the qualified concept of terrorist offences into their legal systems in order to distinguish terrorist crimes from common offences.

Eight of the twelve Member States in question have specifically defined terrorist offences as a separate category of crimes, although there are differences as to the extent and method of implementation. Ireland was in the process of amending its legislation to this end. Italy and the United Kingdom provide only for a limited number of specific terrorist offences and then qualify common offences by a terrorist intent either as an aggravating circumstance (in Italy) or by applying a general definition of terrorism (United Kingdom). Germany appears not to have transposed this provision as required.

Article 2 aims at ensuring that directing a terrorist group and participating in its activities are by themselves considered as independent criminal acts.

Most Member States have or will have legislation that separately incriminates terrorist acts committed in relation to terrorist groups. In Sweden and in Denmark (except certain acts of participation) terrorist groups and directing or participating in their activities have not been specifically incriminated, although in some cases those who carry out such conduct may still be punished as principal or secondary parties to the relevant terrorist offence.

Article 3 requires Member States to ensure that aggravated theft, extortion and drawing up false administrative documents with a view to committing terrorist acts are dealt with as terrorist-linked offences

Only four of the twelve Member States in question appear to have legislation that fully complies with the obligations under this Article 3. Ireland should also comply after its new legislation enters into force. The rest of Member States which provided information to the Commission will be able to comply only partially with this provision.

As regards Article 4, although only some Member States have specific provisions on inciting, aiding or abetting in relation to terrorism, it appears that by applying general rules on complicity and inchoate offences they will be able to comply implicitly with this Article, provided the preceding articles have been fully implemented.

Article 5 aims at harmonising penalties applicable to terrorist offences.

Eight Member States have or will have succeeded in punishing terrorist offences with a heavier penalty than the one internally imposable for the same offence without a terrorist intent. For Germany, Spain, Ireland and the United Kingdom it cannot be concluded that enhanced penalties will be provided for all the relevant offences.

As regards directing a terrorist group, seven Member States provide for the required penalties and three more, in which this conduct is not specifically incriminated, would also comply partially with this provision. When it comes to participating in the activities of a terrorist group eight Member States fully meet the required terms, which can be considered as partially met in four more Member States.

Article 6 allows Member States to reduce penalties if the offender renounces terrorist activity and provides the authorities with useful information.

National legislation in six Member States specifically envisages this possibility, whereas the rest have not referred to specific measures to implement this optional provision.

As regards implementation of Article 7, eight Member States have or will have, after completing their legislative procedure, legislation ensuring that legal persons can be held liable for terrorist offences. From these, however, only four have provided enough information to demonstrate that liability will also cover cases where lack of supervision or control has made possible the committing of an offence. Spain, Austria, Sweden and the United Kingdom did not provide enough information to allow this Article to be considered fully implemented. Seven Member States provide or will provide for criminal or non-criminal fines for legal persons as required in Article 8. Most of them also apply all or some of the optional penalties indicated in this provision.

As regards the rules on jurisdiction set up in Article 9, all Member States will presumably be able to comply with this Article as regards the application of the territoriality principle and a majority of Member States have or will have rules which to different extents cover the required extra-territorial jurisdiction. Eight Member States have or will have legislation fully complying with the principle "aut dedere aut iudicare" and other three will be able to comply partially with this provision. Finally, whilst Ireland will partially transpose Article 9(2), none of the Member States appear to have incorporated in their national legislation the criteria for solving positive conflicts of jurisdiction referred to in this provision.

Only Austria provided enough information to demonstrate compliance with Article 10(1) (on the treatment of terrorist offences as public offences) although it seems likely that terrorist offences are in all Member States treated as public offences for the purposes of investigation and prosecution, as this Article requires. Eight Member States provided information on additional measures to assist terrorist victim's families, to which Article 10(2) refers.

Finally, as concerns territorial application, the Commission has not received specific information on transposition in Gibraltar.

In view of these conclusions, the Commission ends its report by inviting the Member States to take the remaining measures necessary to ensure the rapid and complete transposition of the Framework Decision into their national law and to inform it immediately of the measures taken with the text of the statutory or administrative provisions in force in support. In its March Declaration on combating terrorism the European Council urged all Member States to take the necessary measures to fully implement this instrument.

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• EU action in response to 11th September 2001 (9/9/2002)