Leg. Dev.: Council Decision 2002/996/JHA Establishing a Mechanism for Evaluating the Legal Systems and Their Implementation at National Level in the Fight Against Terrorism

9 Colum. J. Eur. L. 333 (2003)

Stuart Rosenberg. 

On November 28, 2002, the Council passed a decision “establishing a mechanism for evaluating the legal systems and their implementation at national level in the fight against terrorism” (the Decision).’ The Decision accomplishes one of many objectives defined by the Justice and Home Affairs Council at its pivotal meeting on September 20, 2001: the replacement of Joint Action 97/827/JHA of December 5, 1997, which established an evaluation mechanism for the fight against organized crime. On paper, the November 28 decision is an integral part of the EU’s anti-terror strategy. Whether the mechanism established by the Decision will be effective in practice remains to be seen.

The third paragraph of the Decision’s preamble neatly expresses the importance of an EU mechanism for evaluation of Member States’ anti-terror measures: “The primary responsibility for designing each legal system and implementing it at national level rests with each Member State. Though obvious, this statement by the council concedes the EU’s awkward position in the fight against terror: How can a quasi-federal body counteract terrorist operations, which work through small-scale security lapses to create large-scale damage, without direct control over the design or implementation of the security systems? In the “war on terror,” how can the EU win when it has no direct control over the soldiers on its side?

While other post-September 11 measures, such as directives to freeze specific terrorist assets, create direct controls for the EU, the Decision takes a different tack. Acknowledging that a tight mesh between legal systems, which are firmly controlled by Member States, is the key to a unified EU campaign, the Decision creates an evaluation mechanism that channels the power of peer review.

To begin an evaluation exercise under the Decision, article I of the Decision states, the Article 36 Committee (Police and Judicial Cooperation in Civil Matters) will choose “the specific subject of the evaluation as well as the order in which the Member States are to be evaluated, on a proposal from the Presidency. To actually carry out each exercise, however, the Council will turn to a team of experts assembled precisely for that task (the “evaluation team”).

Articles 3 and 4 of the Decision establish the method by which the Council will assemble an evaluation team for a given exercise. Within four weeks of the Article 36 Committee’s decision to start an evaluation, each Member State must send to the General Secretariat of the Council “the names of one to three experts having substantial experience with the subject to which the evaluation relates in the field of combating terrorism, and who are prepared to participate in at least one evaluation exercise. The Presidency then chooses, from the names submitted, two experts to evaluate each Member State, “ensuring that they are not nationals of the Member State in question.

Once the evaluation team has been selected, the Presidency, assisted by the General Secretariat of the Council and the Commission, will create a questionnaire “for the purposes of evaluating all Member States in the framework of the specific subject” of the evaluation. In the first stage of actual evaluation, the Member State being evaluated will have one month to answer the questionnaire, attaching where necessary, “all legal provisions and technical and practical data required.”, Although the Decision does not explicitly require the Presidency to consult the evaluation team while preparing the questionnaire, article 5 provides that “the opinion of any Council Working party with competence in the subject matter covered by the evaluation shall be requested. Both this provision and the statement that “the questionnaire shall be designed to establish all information useful for the conduct of the evaluation, suggest that the evaluation team is intended to participate in preparation of the questionnaire.

Article 6 of the Decision provides that the evaluation team may visit the Member State under evaluation after that Member State replies to the questionnaire, “with a view to clarifying the replies” given. On its visit, the evaluation team may conduct interviews with “the political, administrative, police, customs and judicial authorities and any other relevant body.” Such a visit is only to take place, states the Decision, “where it is considered appropriate,” although by whom is unclear.

After the Member State has replied to the questionnaire and any appropriate visit has taken place, the evaluation team will present a report to the Member State, which will have six weeks to respond with an opinion. The evaluation team will then have an opportunity to amend the report in response to the opinion before submitting the report to the Presidency.

To discuss the report, the Article 36 Committee (or a subordinate Working Committee if one has been designated to conduct the evaluation) will convene, hearing first from the evaluation team and then from the Committee representative of the Member State evaluated, before discussion and adoption of the report’s conclusions by consensus. After the Presidency informs the Council of the results of the evaluation exercise, the Council may “address any recommendations to the Member State concerned” and “invite” the Member State to report back by a deadline. As a last step in the process, the Presidency will inform the European Parliament that an exercise has been completed.

The polite, tentative language in which the Council’s responsive power is couched may open the Decision to criticism as weak legislation. What happens, for example, if a Member State declines to act on Council recommendations? What happens if a Member State cannot afford to act on the recommendations or objects to an evaluation team intrusion? The answer is that the Decision must be considered in context; an evaluation exercise has yet to take place and thus there are bound to be unanswered questions, and the Council can make use of existing procedures to handle contingencies as they arise. In article 10, the Decision itself provides for revision of the mechanism after completion of the first evaluation exercise. However, the Decision’s emphasis on cooperation by Member States as well as their individual responsibilities makes clear that while the EU may be acting to create standards for national security, it cannot yet impose those standards on its members without their active support.

Quite possibly, the Council will make use of the mechanism to its full potential, gathering comprehensive knowledge of national security systems and using strong political pressure to bring lagging Member States up to date. By tying its post-evaluation recommendations to sought-after Union aid or other considerations, either informally or through revision of the mechanism, the Council can make the mechanism stronger than the language creating it. Where the Decision authorizes the Council to use a form of peer review to judge the preparedness of Member States, the Council can take further initiative, using peer pressure to create needed progress.

The outcome of the first evaluation exercise, which the decision directs to finish “no later than mid-2003,” will tell at least as much about the power of the mechanism as does the Decision itself. A detailed assessment of the evaluation mechanism will not be possible until then. Certain at this point, however, is that the Council, balancing a respect for Member State sovereignty with a need for legal uniformity in the fight against terror, will need to act both firmly and carefully to get the most out of this Decision.