A Critical Examination of the Terrorism Directive’s Prohibition of Receiving

Training for Terrorism and Travelling

for the Purpose of Terrorism

Anna Harkkila

LEGAL UNCERTAINTY IN EU’S QUEST TO COMBAT

TERRORISM

Autumn Semester 2019

Master's Thesis, 30 Credits

Master of Laws, 270 Credits

Supervisor: Fanny Holm

”Those who would give up essential Liberty, to purchase a little temporary Safety,

deserve neither Liberty nor Safety.”

– Benjamin Franklin, 1755

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Table of Contents

Abbreviations ............................................................................................................................ 5

1 Introduction ....................................................................................................................... 6

1.1 Background ................................................................................................................ 6

1.2 Aim of Study and Research Questions ...................................................................... 8

1.3 Delimitations .............................................................................................................. 8

1.4 Method and Material .................................................................................................. 8

1.4.1 Methodical premises .................................................................................... 9

1.4.2 Specification of the Method and Material used ......................................... 10

1.4.2.1 Method and material for the theoretical framework ................. 10

1.4.2.2 Method and material for studying the Terrorism Directive ...... 12

1.5 Research contribution .............................................................................................. 15

1.6 Disposition ............................................................................................................... 16

2 Legal certainty – the theoretical framework ................................................................ 17

2.1 The elements of legal certainty ................................................................................ 17

2.2 Legal certainty in EU Criminal Law........................................................................ 19

2.3 Conclusion: How legal certainty will be applied in this thesis ................................ 21

3 Combating terrorism in the EU ..................................................................................... 22

3.1 EU’s legislative powers in the area of counterterrorism ......................................... 22

3.2 The EU’s fight against terrorism – a historical context ........................................... 23

3.2.1 The 9/11 attacks and the emerging threat of terrorism .............................. 23

3.2.2 The Madrid and London attacks and the threat of home-grown terrorists 24

3.2.3 The rise of ISIS and the threat of foreign terrorist fighters ....................... 25

3.3 Conclusions from the historical background ........................................................... 26

4 The Terrorism Directive ................................................................................................. 27

4.1 Defining terrorism and the terrorist intent ............................................................... 27

4.1.1 The lack of an international definition ...................................................... 27

4.1.2 EU’s definition of terrorism (Article 3) ..................................................... 29

4.1.3 Analysis of the definition of terrorism and its legal uncertainty ............... 30

4.2 Offences related to terrorism activities .................................................................... 32

5 Receiving training for terrorism (Article 8) ................................................................. 33

5.1 What conducts have been criminalised through Article 8? ..................................... 33

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5.2 Analysing Article 8 from the perspective of legal certainty .................................... 34

5.2.1 Formal elements of legal certainty ............................................................ 34

5.2.2 The substantial element of legal certainty ................................................. 36

5.3 Conclusions .............................................................................................................. 37

6 Travelling for the purpose of terrorism (Article 9) ...................................................... 38

6.1 What conducts have been criminalised through Article 9? ..................................... 38

6.2 Analysing Article 9 from the perspective of legal certainty .................................... 40

6.2.1 Formal elements of legal certainty ............................................................ 40

6.2.2 The substantial element of legal certainty ................................................. 43

6.3 Conclusions .............................................................................................................. 46

7 Final analysis and proposal for de lege ferenda ............................................................ 47

7.1 Legal uncertainty in the Terrorism Directive’s articles ........................................... 47

7.2 Proposal for de lege ferenda .................................................................................... 50

7.2.1 How could the EU’s definition of terrorism be improved? ....................... 50

7.2.2 How could the legislation be improved regarding Article 8? .................... 51

7.2.3 How could the legislation be improved regarding Article 9? .................... 52

7.3 Concluding remarks ................................................................................................. 53

References ............................................................................................................................... 54

Legislation and public materials ....................................................................................... 54

Table of Cases ................................................................................................................... 58

Bibliography ...................................................................................................................... 59

Other Sources .................................................................................................................... 63

Abbreviations

9/11 The terrorist attacks on the 9th of September 2001on the World Trade

Centre and Pentagon

Additional Protocol Additional Protocol to the Council of Europe Convention on the

Prevention of Terrorism

CJEU The Court of Justice of The European Union

CoE The Council of Europe

EC European Commission

ECHR Convention for the Protection of Human Rights and Fundamental

Freedoms (also known as the European Convention on Human Rights)

EESC The European Economic and Social Committee

EU Council Council of the European Union

EU European Union

ICoJ The International Commission of Jurists

ISIS The Islamic State of Iraq and Syria (also known as the Islamic State,

Islamic state in Levant or Daesh)

OSEPI The Open Society European Policy Institute

OSJI The Open Society Justice Initiative

Terrorism Directive The EU Directive 2017/541 on combating terrorism and replacing

Council Framework Decision 2002/475/JHA and amending Council

Decision 2005/671/JHA

TEU Treaty on European Union

TFEU Treaty on the Functioning of the European Union

The Convention The Council of Europe Convention on the Prevention of Terrorism

UN United Nations

UNSCR 2178 The United Nation Security Council Resolution 2178(2014)

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1 Introduction

1.1 Background

Terrorism has been perceived as one of the most prominent threats to both national and

international security during the last decade, with an average of 21 000 annual deaths. 1

Particularly jihadist terrorism, foremostly posed by Al-Qaida and the Islamic State of Iraq and

Syria (hereinafter ISIS), has been regarded as a serious threat to not only international peace

but also to the safety of the European Union’s (hereinafter EU) Member States.2 Especially

individuals travelling abroad with the purpose of participating in terrorist activities, known as

foreign terrorist fighters3, as well as returning foreign terrorist fighters, have been considered

as a heightened security risk to the EU’s Member States, and as an issue of great concern.4

Even if there has been a reduction in terrorism impact in the EU after the military defeat of the

ISIS,5 statistics show that the level of threat from terrorism has not been reduced.6 Instead, the

situation is regarded as more multifaceted and complicated than before.7 Because of the

evolving threat posed by terrorism, the EU’s legislators deemed it necessary to correspondingly

update the counterterrorism measures.8

Therefore, in order to efficiently combat terrorism in the EU and to fulfil international

obligations, the European Parliament and the Council of the European Union (hereinafter EU

Council) adopted a new directive on 15th of March 2017: the EU Directive 2017/541 on

combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending

Council Decision 2005/671/JHA (hereinafter the Terrorism Directive).

1 Regarding the international threat: Global Peace Index 2019, p. 30. In 2014, there were over 32,000 deaths

from terrorism, which is a 287 % increase from 2006. Even if deaths from terrorism has decreased since the peak

in 2014, the levels are still higher in 2018 than they were before 2008. For the annual death toll: Online article by

Ritchie et al. Terrorism, last revised in November 2019 [https://ourworldindata.org/terrorism] 2020-02-10. 2 TE-SAT 2019, p. 4. 3 Hurley, 2018, p. 1. ‘Foreign terrorist fighters’ is defined by the United Nations as “individuals who travel to a

State other than their State of residence or nationality for the purpose of the perpetration, planning or preparation

of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection

with armed conflict” in UNSCR 2178, p. 2. 4 Recital (4) of the Terrorism Directive. 5 Global Peace Index 2019, p. 15. Regarding the military defeat of the ISIS in 2019, see p. 3 in Operation

Inherent Resolve – Lead Inspector General Report to the United States Congress, April 1, 2019 to June 30, 2019,

publication available online at [https://oig.usaid.gov/node/2486] 2019-10-04. 6 TE-SAT 2019, p. 4, see also that globally over 63 % of countries have reported increased levels of terrorist

activity according to the Global Peace Index 2019, even though the deaths from terrorism has declined since

2014. Global Peace Index 2019, p. 4 and 6. 7 TE-SAT 2019, p. 4. 8 Recital (4) and (6) of the Terrorism Directive.

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One of the main purposes of the Terrorism Directive is to address the issue of both foreign

terrorist fighters and individuals who are self-training for terrorism. Thus, the directive contains

a new definition of terrorism and also criminalises new conducts related to terrorist activities

that were not previously criminalised by the EU. The two new principal offences are: Receiving

training for terrorism (Article 8) and Travelling for the purpose of terrorism (Article 9).9 These

new prohibitions are therefore the epitome of EU’s new arsenal in the fight against terrorism.

Through the new prohibitions, the directive aims to create a unified counterterrorism legislation

in the EU that strives to prevent acts of terrorism from happening at all. As terrorism has caused

a great deal of concern among the EU’s Member States’ citizens, it is understandable that the

EU’s legislators wanted to curb the threat posed by terrorism. The solution, however, may have

overlooked some fundamental issues this kind of legislation could result in. The question

therefore arises, whether the EU has gone too far in its quest to combat terrorism. Particularly

in regard to the new offences of receiving training for terrorism and travelling for the purpose

of terrorism, as these provisions criminalise otherwise lawful activities if they are conducted

with terrorist intent. As terrorism and terrorist intent is well-known for being hard to define,

which can be illustrated through the old saying “one man’s terrorist is another man’s freedom

fighter”,10 these prohibitions might be problematic. For example, how can individuals foresee

what constitutes as ‘receiving training for terrorism’ when it comes to self-studying? And is it

predictable when travelling is perceived as the offence ‘travelling for the purpose of terrorism’?

One of the most essential principles in the EU is the principle of legal certainty. This principle

protects the individual from arbitrary use of power by demanding that legal rules are clear,

precise and predictable in their effect, in order for individuals to determine what their rights and

obligations are so they can act accordingly.11 As there appears to be uncertainties with the EU’s

new criminalisation of receiving training for terrorism and travelling for the purpose of

terrorism, it is dubious if this important principle is met. In other words: do the new prohibitions

meet the demands of being clear, precise and predictable? Or does the EU, when trying to keep

up with the terrorists, criminalise acts and offences in ways that are legally uncertain?

9 See Chapters 3.2.3 and 4 of this thesis. 10 This phrase is over 130 years old, as even the oldest source that I found refers to it as ‘the cliché’. See the

American Academy of Political and Social Science, 1890, p. 12. 11 This is the interpretation of the CJEU, See Case C-110/03 Belgium v Commission, para. 30; Case C-344/04

IATA and ELFAA, para. 68; Case C‑482/17 Czech Republic v Parliament and Council, para.124; C-147/13

Spain v Council, para. 79; Case C-308/06 Intertanko, para. 69. Legal certainty, as used in this thesis, will be

specified and explained in Chapter 2.2.

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1.2 Aim of Study and Research Questions

The aim of this study is to critically examine the EU’s criminalisation of ‘receiving training for

terrorism’ (Article 8) and ‘travelling for the purpose of terrorism’ (Article 9) in the new

Terrorism Directive from the perspective of legal certainty.

The aim of the study will be approached through the following research questions:

1. What are the elements of legal certainty and what does the principle of legal certainty

mean in the context of EU criminal law?

2. What conducts have been criminalised through the prohibitions in Article 8 and 9 in the

Terrorism Directive?

3. Do Articles 8 and 9 in the Terrorism Directive meet the demands set out by the principle

of legal certainty?

4. How could the Articles 8 and 9 in the Terrorism Directive be improved in order to

become more consistent with the principle of legal certainty?

As the aim of this thesis is to examine two new offences related to terrorist activities, where the

terrorist intent separates the crime from otherwise lawful activities, the definition of ‘terrorism’

and ‘terrorist intent’ consequently plays an essential role and will hence also be studied. Thus,

analysing Article 3 of the Terrorism Directive is accordingly a part of the aim of this study.

1.3 Delimitations

Even though the purpose of this study is to examine the Terrorism Directive, this thesis will not

analyse the implementation or actual application of the directive in national courts. Nor will it

discuss the directive’s probable practical concerns regarding evidence, aside from what is

directly relevant when discussing legal certainty on an abstract level. Instead, this thesis aspires

to analyse the directive itself and the concerns raised from the formulation of the articles.

1.4 Method and Material

The purpose of this chapter is to demonstrate the method and present the material used in this

thesis. In order to give the reader a better understanding of the method, the methodological

premises will first be explained. Thereafter, the methods and materials will be specified.

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1.4.1 Methodical premises

To answer the research questions and fulfil the aim of this study, I have analysed the applicable

law and criticised it using the perspective of legal certainty. This method is described by

Sandgren as a Legal analytical method.12 Whereas the traditional method of legal dogmatism

concentrates on establishing positive law, the legal analytical method goes further and focuses

also on analysing the law. A result of the method’s analytical nature is therefore that a self-

evident part of this method is to criticise the law.13 I chose this method since the aim of this

thesis is not only to establish what has been criminalised through the articles in the directive,

but also to further analyse and criticise the articles from the perspective of legal certainty. This

method also allows the use of other materials besides the classical legal sources of legislations,

preparatory acts, case-law and doctrine.14 Accordingly, as the directive is rather new, which

results in a deficiency of relevant legal material, and as legal philosophical discussion is

conducted in this thesis, not only classical legal sources but also literature and statistics from

legal philosophy and criminology have been used. This choice to expand the type of sources

has consequently been a direct result from the subject of this study.

As the subject of this study is an EU directive, the EU legal sources are in focus. Therefore, I

have also applied what Reichel describes as the EU legal method for this examination and

analysis. The EU legal method should, according to Reichel, be comprehended as the process

of managing EU legal sources.15 The EU legal sources are separated into three categories:

primary law, secondary law and supplementary sources of law.16 Primary sources of law consist

of both the treaties establishing the EU: The Treaty on the European Union (hereinafter TEU)17

and the Treaty on the Functioning of the European Union (hereinafter TFEU) 18, as well as

amending EU treaties and protocols to these. According to Bernitz and Kjellgren, also general

principles of law belong to this category. 19 The treaties determine the distribution of

competences between the EU and the Member States, and accordingly regulates the legal

12 Translated from the Swedish term ”Rättsanalytiska metoden”. 13 Sandgren, 2018, p. 50f. 14 Sandgren, 2018, p. 50f. 15 Reichel, 2013, p. 109. It is notable that there does not exist a uniform definition of what the EU legal method

per se is, even there have been attempts to create one, see Reichel, 2013, p. 128f. 16 EUR-Lex, Sources of European Union law, updated 13.12.2017 [https://eur-lex.europa.eu/legal-content/EN/

TXT/?uri=LEGISSUM%3Al14534] 2020-02-04. 17 Consolidated version of the Treaty on European Union, OJ C 326/13. 26.10.2012. 18 Consolidated version of the Treaty on the functioning of the European Union, OJ C 326/47. 26.10.2012. 19 Bernitz & Kjellgren, 2018, p. 184f. For comparison, see EUR-Lex where general principles of law is

categorized as a supplementary source of law, EUR-Lex, Sources of European Union law, updated 13.12.2017

[https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=LEGISSUM%3Al14534] 2020-02-04.

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framework for how the EU can implement policies.20 The secondary sources of law are, on the

other hand, legal instruments that are based on the treaties. This includes unilateral acts such as

regulations, directives, decisions, opinions and recommendations, as well as agreements

between the EU Member States, the EU and a non-EU country, or inter-institutional agreements

between EU institutions.21 Finally, supplementary sources of law consist of sources that are not

explicitly mentioned in the treaties. This includes e.g. case law from the Court of Justice of the

European Union (hereinafter CJEU) and customary international law.22

In the final part of this thesis, a concluding analysis of the legal uncertainty in the articles will

be conducted. I will also give suggestions for de lege ferenda. According to Sandgren, this

method is called a Legal Political Argumentation.23 The goal of this method is generally to

propose how a legislation could be changed to better fulfil a perspective,24 thus the method is

suitable for the final analysis where I seek to propose how the articles in the Terrorism Directive

could be amended in order to become more consistent with the principle of legal certainty.

1.4.2 Specification of the Method and Material used

As the method and material used for studying the principle of legal certainty for the theoretical

framework differ profoundly from the method and material used for the examination of the

prohibitions in the Terrorism Directive, they will be assessed in separate chapters.

1.4.2.1 Method and material for the theoretical framework

As the aim of this study is to analyse the legal uncertainty in EU’s new prohibitions of receiving

training for terrorism and travelling for the purpose of terrorism, it is necessary to initially

outline what is meant by legal certainty. Even if legal certainty is recognised as an important

principle, the precise meaning of ‘legal certainty’ is, somewhat paradoxically, disputed.25

Therefore, I have decided to focus mainly on the doctrines by Alexander Peczenik and Aulius

Aarnio, as well as on the interpretation of the principle by the CJEU, in order to determine what

legal certainty is in the scope of this essay.

20 EUR-Lex, Sources of European Union law, updated 13.12.2017 [https://eur-lex.europa.eu/legal-content/EN/

TXT/?uri=LEGISSUM%3Al14534] 2020-02-04. 21 EUR-Lex, Sources of European Union law, updated 13.12.2017 [https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=LEGISSUM%3Al14534] 2020-02-04. 22 Bernitz & Kjellgren, 2018, p. 187; EUR-Lex, Sources of European Union law, updated 13.12.2017

[https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14534] 2020-02-04. 23 Sandgren, 2018, p. 50ff. 24 Sandgren, 2018, p. 52f. 25 See e.g. Peczenik, 1995, p. 89.

11

I have chosen to begin the theoretical chapter with a brief introduction to the principle of legal

certainty by mentioning Radbruch, as he made a significant impact in legal philosophy post

World War II. He regarded legal certainty to be one of the fundamental pillars of the law, thus

demonstrating the importance of the principle. Because of the lack of availability of Radbruch’s

original work “Rechtsphilosophie” from 1932 and its English translation "Legal Philosophy"

from 1950, it has been necessary to use secondary sources when referring to his writings.

As the principle of legal certainty plays an essential role in this thesis, I found it necessary to

not only outline how the principle will be applied in the analytical parts, but also decided to

conduct a thorough examination of the two elements of legal certainty, i.e. the formal and

substantial.26 By doing this, I seek to provide a deeper understanding of the principle of legal

certainty before applying it in the analysis. When scrutinising the elements of legal certainty,

literature from the field of legal philosophy has primarily been used as the subject is of

philosophical nature. The main materials have been Aarnio’s The Rational as Reasonable: A

Treatise on Legal Justification27 and Peczenik’s Vad är rätt? Om demokrati, rättssäkerhet, etik

och juridisk argumentation28. I decided to use a Nordic perspective as categorised by J. Raitio

in The Principle of Legal Certainty in EC Law,29 to delimitate the scope of legal certainty.

Furthermore, I specifically chose the Nordic perspective, since both Aarnio and Peczenik are

regarded as prominent scholars on the subject, and as there is a coherence amid their doctrines.

Legal certainty in the specific context of EU criminal law is thereafter studied. As particularly

Peczenik’s interpretations of the elements of legal certainty are generally acknowledged,30 this

examination focuses more on the importance and role of the principle in EU criminal law. As

material for this part, I have mostly used relevant case law from the CJEU. The selection of

cases has been made on the basis of their relevance for the principle of legal certainty. The cases

relevance have been deducted through the reference to these cases from doctrine and other

judgements by the CJEU. Relevant articles have also been used, e.g. Suominen’s What Role for

Legal Certainty in Criminal Law Within the Area of Freedom, Security and Justice in the EU.31

26 See Chapter 2.1. ’The elements of legal certainty’ for what the formal respective substantial elements entail. 27 Aarnio, 1987. 28 Peczenik, 1995. 29 See ‘Chapter 7.3.1. The Concept of Legal Certainty – A Nordic Perspective’, Raitio, 2003, p. 337. 30 See e.g. Suominen, 2014, p. 7. 31 Suominen, 2014.

12

In the final part of the chapter on legal certainty, I have concluded how the principle will be

applied in this thesis based on the preceding study of the principle. As this final part focuses on

the summarisation, mainly materials from the previous parts of this chapter have been used.

1.4.2.2 Method and material for studying the Terrorism Directive

I decided to focus this thesis specifically on Articles 8 and 9 in the Terrorism Directive since

these articles contain offences that were not previously criminalised by the EU. Article 10,

which prohibits organizing or otherwise facilitating travelling for the purpose of terrorism is

also a new criminalisation alongside Articles 8 and 9. Article 10 is however not included in this

thesis, since it is an extension of the prohibition in Article 9. Thus, the problems with Article

10 are primary a result from the lack of clarity in Article 9.32

In order to provide a context to the prohibitions in Articles 8 and 9 of the Terrorism Directive,

I have begun the study of EU’s counterterrorism measures by briefly outlining EU’s legislative

powers in the area of criminal law. This aims for an understanding of how the EU can create

legislation in the area of counterterrorism and what they can criminalise. In order to determine

the question of the EU’s competence, primary sources of law, namely the TEU and the TFEU

have been in focus. Additionally, supporting material such as Petter Asp’s Internationall

Straffrätt33 and explanatory Fact Sheets from the European Parliament is used.

The development of terrorism in the EU is thereafter examined alongside a study of how the

EU’s legislature has responded. This background is included to set the EU’s fight against

terrorism into a context and to understand what has led to the prohibitions in Article 8 and 9.

For this examination, mostly legal but also criminological sources have been used, as well as

news articles. For the study of the international and European instruments prior to the Terrorism

Directive, the instruments themselves and interpreting doctrine have been the primary material.

The study of the Terrorism Directive begins with a general presentation of the directive, where

mainly the directive itself is used as material. Thereafter, the definition of terrorism is discussed.

First from an international perspective as the problems regarding an international definition can

also be relevant for an EU-level definition, then through the Terrorism Directives new definition

32 See Caiola, 2017, p. 410. 33 Asp, 2011.

13

in Article 3. Mostly relevant doctrine and public materials have been used for both the study of

the international definition and for the examination of Article 3.

Whilst studying the Articles 8 and 9, and accordingly the primary aim of this thesis, I have

begun the examination of the respective article by outlining the prohibition and studying what

conducts have been criminalised. The material used in these parts are the Terrorism Directive

itself and its preparatory acts. Preparatory acts are in this context documents from the EU’s

legislative procedure before adopting the new directive, which includes all documents produced

during the various stages of the legislative process. 34 It is worth noting that the role of

preparatory acts is not as influential in EU law as it is in, for example, the Nordic legal

systems.35 The preparatory acts have nevertheless been key material for this study, as the aim

is not to examine the implementation of the directive, and through the preparatory acts I have

gained knowledge of the origin of the formulation of the articles in the directive itself. As there

is no case law from the CJEU regarding the Terrorism Directive, the preparatory acts have

further been one of the main sources for understanding the offences.

Of these preparatory acts, the Final Proposal by the European Commission (hereinafter EC)

has been of great importance, and within it the Explanatory Memorandum is especially

important as it motivates the criminalisation of the new offences. Other relevant preparatory

acts have been the Opinions of the European Economic and Social Committee (hereinafter

EESC) and discussions in the stage of the First reading in the EU Council. Besides the

preparatory acts, relevant international instruments have been used as well. The Additional

Protocol to the Council of Europe Convention on the Prevention of Terrorism (hereinafter the

Additional Protocol) has been significant, as it was the international instrument that resulted in

the EU’s criminalisation of the new offences. Therefore, the EC often refers to this instrument

in the directive’s motivations.

In conjunction with the examination of the offences manifested in Article 8 and 9 of the

Terrorism Directive, I have analysed the consistency of the respective articles with the principle

of legal certainty through the demands set out by the theoretical framework in Chapter 2.4. I

34 EU Open Data Portal, EU Preparatory acts [https://data.europa.eu/euodp/en/data/dataset/eu-preparatory-acts]

2020-02-04. 35 Bernitz & Kjellgren, 2018, p. 211f. For a more comprehensive study of the differences between particularly

the Swedish legal method and EU legal method, see chapter 7.6 “Europeisk och svensk juridisk metod – en

jämförelse, in Bernitz & Kjellgren, 2018, p. 210ff.

14

have assessed the articles conformity firstly with the formal elements of legal certainty and

secondly with the substantial element. 36 Articles 8 and 9 in the Terrorism Directive and their

consistency with legal certainty have, at the time of writing, not been tried or examined by the

CJEU. Consequently, the evaluation of the legal uncertainty in the articles have in this thesis

been conducted through a theoretical study of probable concerns deriving from the wording of

the provisions in the directive itself.

The lack of case law further results in the use of hypothetical scenarios to demonstrate some of

the articles possible problems regarding legal certainty. Moreover, a comparison between

Article 9 and its prohibition of ‘preparatory acts’ and the case of of Intertanko37 from the CJEU

is carried out in the analysis of Article 9, to aid in the analysis of what the outcome could be.

Similarly, discussions from some of the Member States’ national authorities have been used to

illustrate the problematics arising from this sort of legislations. The aim has however not been

to study the implementation of the directive, which is why these discussions in the Member

States has only been used as examples in the analytical parts. The selection of these Member

States has primary been made on the basis of relevance for the discussion, along with a

consideration for the language of the material to avoid the need for translation.

For the analysis of the articles’ conformity with legal certainty, the preparatory acts mentioned

above have been studied with a focus on arguments or thoughts relevant to the discussion of

legal certainty. It is notable that the Impact Assessment, which is usually considered to be one

of the main documents preceding new legislation, is absent.38 This assessment would have been

important for analysing how legal uncertainty was considered in the drafting process. As the

material relevant to legal certainty in the EU documents are sparse, I have also consulted

opinions from human rights organisations, foremostly the Joint Submission by Amnesty

International, the International Commission of Jurists (hereinafter ICoJ), the Open Society

Justice Initiative (hereinafter OSJI) and the Open Society European Policy Institute (hereinafter

OSEPI). The Meijers Committee’s comments on the directive have moreover been significant,

as they point out inadequacies in the Articles. Thus, I have assessed their opinions and included

arguments that I have deemed relevant for the study of the aspects of legal certainty.

36 For an explanation of what the formal and substantial elements are, see Chapter 2.2. 37 Case C-308/06 Intertanko, para. 67-80. 38 Concerning the importance of the Impact Assessment, see e.g. EU Open Data Portal, EU Preparatory acts

[https://data.europa.eu/euodp/en/data/dataset/eu-preparatory-acts] 2020-02-04.

15

Since I am analysing the aspects of legal uncertainty in conjunction with the examination of the

articles, an ongoing analysis is conducted in this thesis. Therefore, the last chapter consists of

a concluding analysis and proposal for de lege ferenda, and thus focuses on how the EU’s

legislation could be improved. For this evaluation, the problems exposed in the prior analyses

are used as the outset. I have also considered suggestions from the Joint Submission of Amnesty

International, the ICoJ, and OSJI and OSEPI as well as from the Meijers Committee, when

analysing what could be improved in the new prohibitions from a perspective of legal certainty.

1.5 Research contribution

Counterterrorism legislation has been subjected to several critical research studies through the

years both internationally and in the EU, especially regarding the infringements on human

rights.39 Similarly, studies of legal certainty in conjunction with counterterrorism have been

conducted, see e.g. G. Gunatilleke’s article Counter-Terrorism and Legal Certainty regarding

international and Sri Lankan terrorism legislation.40 Additionally, the CJEU has previously

assessed if articles in other directives are legally uncertain.41 There have also been prior

student’s dissertations regarding the offence of ‘travelling for the purpose of terrorism’.42

Furthermore, there exists an essay by Estonian Assistant Prosecutors about Article 9 in the

Terrorism Directive: Combating traveling for terrorist purposes - real life or just a fantasy?43

However, at the time of writing, there are no studies focusing on the EU’s Terrorism Directive

and its consistency with the principle of legal certainty. Neither are there cases from the CJEU

regarding the Terrorism Directive’s conformity with legal certainty. Thus, there have not been

any prior studies or students’ thesis on this subject to be used as guidelines, which has been

both a challenge and an inspiration when writing. By researching a new topic, I have received

the chance to contribute with an original analysis not tinted by preceding authors.

39 To name a few: Almqvist, J., A Human Rights Criticue of European Judicial Revew: Counter-Terrorism

Sanctions, 2008; Shor E., Counterterrorist Legisltion Effects on Human Rights and Civil Liberties: A Global

Perspective, 2019; Salinas de Frias, Counter-terrorism and Human Rights in The Case Law of The European

Court of Human Rights, 2012; English, The Enduring Illusion of Terrrorism and Counter-Terrorism, 2016;

Dreher et al, Does Terrorism Threathen Human Rights? – Evidence from panel data, 2010; Murphy, EU

Counter-Terrorism Law: Pre-emption and the Rule of Law, 2012. 40 Gunatilleke, 2017. 41 To name a few: Case C-110/03 Belgium v Commission; C-147/13 Spain v Council; Case C-308/06 Intertanko. 42 E.g. from Sweden Elin Andersson’s Kriminalisering av terrorresor - En undersökning av Sveriges

förpliktelser enligt FN-stadgan, Lund University, 2017, and Erik Albano’s Förbud mot terrorismresor - Hur

Sverige bör implementera artikel 6.a i FN:s säkerhetsråds resolution 2178, Uppsala University, 2015. These are,

however, studies of the International obligations and the Swedish legislations before the Terrorism Directive. 43 Assistant Prosecutor Rahamägi, Raudsepp and Vainola, Combating traveling for terrorist purposes - real life

or just a fantasy?, EU and European Criminal Procedure, Estonia, 2019.

16

The EC has nevertheless received the task to conduct two reports concerning the Terrorism

Directive. The purpose of the first report, which shall be published in March 2020, is to analyse

the member states implementation of the directive into national legislation.44 In the second

report, that is supposed to be published in 2021, the EC aims to assess the added value of the

directive to the counter-terrorism measures. The second report will moreover evaluate the

impact of the directive on non-discrimination, human rights and freedoms and the Rule of Law,

as well as on the protection of victims of terrorism.45

These upcoming reports by the EC are thus focusing on the directive’s implementation and its

consistency with human rights. My hypothesis is, however, that there might be problems with

legal uncertainty regarding the new prohibitions in the directive, which the EU has not properly

assessed. This aspect of legal certainty is of uttermost importance to discuss when creating new

legislation, as the principle of legal certainty is one of the foundations for well-functioning

legislation in democratic countries.46 The fact that the EU has not satisfactory studied this topic

at an earlier stage is a problem, since the legal uncertainty can have vast consequences in the

implementation. Therefore, this thesis aims to contribute to the discussion on counterterrorism

in the EU, by making a critical analysis if the articles in the directive itself are consistent with

the important principle of legal certainty, and if not, how the articles could be improved.

1.6 Disposition

Chapter 1: the initial parts for the understanding of what, how and why this subject is studied.

Chapter 2: the theoretical framework is outlined, i.e. how the principle of legal certainly is used.

Chapter 3: the historical background to the Terrorism Directive is summarised for context.

Chapter 4: the Terrorism Directive is presented and the main terrorist offence (art. 3) examined.

Chapter 5: the prohibition of receiving training for terrorism (art. 8) is examined and analysed.

Chapter 6: the offence of travelling for the purpose of terrorism (art. 9) is studied and analysed.

Chapter 7: the concluding analysis is conducted and my proposals for de lege ferenda presented.

44 Article 29(1) of the Terrorism Directive. 45 Article 29(2) of the Terrorism Directive. 46 According to the Legal philosopher Gustav Radbruch, see Bix, 2011, p. 47.

17

2 Legal certainty – the theoretical framework

The legal philosopher and theorist Gustav Radbruch argued in his early writings that in the

“idea of law” there exists three different elements: justice, suitability for a purpose and legal

certainty.47 Radbruch further argued that the element of legal certainty was the most important

of these, as he considered the existence of a legal order to be more important than its justice

and practicality.48 Even today, the concept of legal certainty is considered to be of uttermost

importance in both national legal orders as well as within EU criminal law.49

2.1 The elements of legal certainty

Even if legal certainty is an important and recognised principle, the precise meaning is

disputed.50 A coherence can nevertheless be found between the interpretations by legal scholars

from the Nordic jurisprudence, especially amongst Aarnio and Peczenik.51

In Nordic jurisprudence, scholars have divided the principle into formal and substantive legal

certainty. 52 According to Peczenik, the most essential part of formal legal certainty is

predictability.53 If a state’s exercise of power is in line with the legislative regulations, then the

exercise of power in that state will be predictable. The predictability of the outcome of the

decisions will protect the individuals from arbitrary use of power, which results in a high degree

of formal legal certainty.54 Aarnio expresses a similar view, as he regards the genuine content

of (formal) legal certainty to be the avoidance of arbitrariness.55 Avoiding arbitrariness means,

according to Aarnio, nearly the same as predictability.56 J. Ratio further describes formal legal

certainty as a requirement to “eliminate randomness from legal decision-making activity”.57

Consequently, all three scholars seem to agree on formal legal certainty being the demand for

predictability and non-arbitrariness.

47 Bix, 2001, p. 47. 48 It is however noteworthy that Radbruch changed his mind regarding the order of importance of the three

elements, so that justice instead comes first in his article from 1946. Nevertheless, he believed legal certainty to

be a cornerstone in the idea of law. Paulson, 2006, p. 39. 49 Suominen, 2014, p. 1; See Groussot & Minssen, 2007, p. 388. 50 Peczenik, 1995, p. 89. 51 See Ratio, 2003, p. 337. 52 Peczenik, 1995, p. 89ff.; Aarnio, 1987, p 4f.; See also Ratio, 2003, p. 337, on the connection between Aarnio

and Peczenik. 53 Peczenik, 1995, p. 89. 54 Peczenik, 1995, p. 51. 55 Aarnio, 1987, p. 4. 56 Aarnio, 1987, p. 44. 57 Ratio, 2003, p. 337.

18

While formal legal certainty focuses on predictability, substantive legal certainty focuses on the

ethical aspect of decision-making.58 Aarnio sees this substantial legal certainty to be a demand

on a decision to be both lawful and “in accordance with morals and with other social norms

than the law”.59 Aarnio further expresses this as a demand for the decision to be “proper”.60

Therefore, legal decision-making should not be decided at random or arbitrarily, but through

rational consideration that ends in an acceptable conclusion. As a result, Aarnio places

rationality and acceptability as the cornerstones of substantial legal certainty. 61 Peczenik

similarly argues, that substantial legal certainty should be understood as the demand on

authorities’ decision-making to be based on a sensible assessment between predictability and

ethical values. Peczenik sets out five components for this substantial element: (1) there is a

decision, (2) the decision is made by a public authority, (3) it is predictable, (4) follows the

existing laws and rules, and (5) is ethically acceptable.62 Peczenik concludes, that even if

predictability is an essential value, it needs to be assessed alongside ethical values and

substantial legal certainty is the product of that assessment.63

The importance of the substantial legal certainty has further been illustrated by Peczenik in his

“Hitler argument”.64 In his argument, Peczenik points out that even if the Nazi’s laws were

predictable, as the Jews could easily anticipate the persecution, the laws were far from morally

acceptable. Thus, the requirements of legal certainty were not satisfied.65 Aarnio expresses a

similar view, as he argues that it is not enough for decisions to be nonarbitrary, they also have

to be substantially proper.66 As an example similar to that of Peczenik, Aarnio refers to the legal

orders during Hitler’s or Pol Pot’s regimes.67 It is however notable that the Hitler argument has

received criticisms, particularly by legal positivists who wish to differentiate between law and

morality.68 What is furthermore at fault in these definitions of the substantial element, is that

neither Aarnio nor Peczenik has motivated how they determine if something is morally right.

58 Peczenik, 1995, p. 92ff.; Ratio, 2003, p. 341f. According to Peczenik, something is “ethical” if it follows

values that are reliant on what is best for humans. Peczenik, 1995, p. 92ff. 59 Aarnio, 1987, p. 4f. 60 Aarnio, 1987, p. 3. 61 Aarnio, 1987, p. 23. 62 Peczenik, 1995, p. 94. 63 Peczenik, 1995, p. 94f. 64 Original name is “Hitlerargumentet”, Peczenik, 1995, p. 97. 65 Peczenik, 1995, p. 97f. 66 Aarnio, 1987, p. 4. 67 Aarnio, 1987, p. 38. 68 Ratio, 2003, p. 342; Peczenik also meets some of the criticism in Peczenik, 1995, p. 97f. It is furthermore

notable that Frändberg argues that legal positivism instead stands conceptually in a necessary relation to

morality, thus this criticism might be exaggerated. Frändberg, SvJT 2019, p. 853.

19

They appear to determine what is ethical and acceptable according to their own beliefs and

perceptions of what is (or should be) ethical in our societies, in the context of generally accepted

values in our western cultures. Therefore, even if there is no question about the importance of

the substantial side of legal certainty, it might be difficult to measure.

Peczenik summarises his thoughts on legal certainty by saying that in a utopia, the law would

be morally right to such an extent that the formal legal certainty would automatically entail the

substantial legal certainty. Subsequently, it also means that the further away the reality is from

the ideal world, the more we need to take the substantial element into account.69

2.2 Legal certainty in EU Criminal Law

Legal certainty is classified as a general principle of law by the CJEU,70 and considered to be a

fundamental principle in EU law.71 According to the CJEU, the principle of legal certainty

requires legal rules to be clear, precise and predictable in their effect so that individuals can

unmistakably determine what their rights and obligations are and act accordingly.72 Thus, the

principle aims to ensure that situations and legal relationships governed by EU law remain

foreseeable.73 The principle of legal certainty is hence used to preserve the certainty, stability,

unity and consistency of the EU legal order.74

Regarding legal certainty in the specific context of EU criminal law, the principle is often

connected to the principle of legality (nulla poena sina lege). 75 In criminal law, the principle

of legality contains three (or four, depending on the interpretation) different rules: first, the

criminal offences and penalties must be provided by law and only the legislator can create the

definitions for the crimes and penalties (nullum crimen sine lege; nulla poena sine lege).

Secondly, criminal offences must be clearly defined and foreseeable, as well as precise (nullum

crimen sine lege certa; nullum crimen sine lege stricta).76 Thirdly, the application of law cannot

69 Peczenik, 1995, p. 98. 70 C‑63/93, Duff and Others, para. 31; Opinion of Advocate General Sharpston, in Cases C‑542/18 RX-II and

C‑543/18 RX-II, para. 90. 71 Case C-308/06 Intertanko, para. 69. 72 See Case C-110/03 Belgium v Commission, para. 30; Case C-344/04 IATA and ELFAA, para. 68; Case

C‑482/17 Czech Republic v Parliament and Council, para.124; C-147/13 Spain v Council, para. 79; Case C-

308/06 Intertanko, para. 69. 73 C‑63/93, Duff and Others, para. 20. 74 Opinion of Advocate General Sharpston in Cases C‑542/18 RX-II and C‑543/18 RX-II, para. 90. 75 Suominen, 2014, p. 9. 76 Grădinaru, 2018, p. 290.

20

be retroactive (nullum crimen sine lege praevia).77 According to the CJEU, the principle of

legality in EU law entails that the EU legislation needs to clearly define its offences and

penalties.78 This requirement is fulfilled when an individual can determine from the wording of

the provision and, if necessary, with the assistance of the court’s interpretation of the provision,

which acts or omissions will make them criminally liable.79

The relation between the principle of legality and the principle of legal certainty is disputed.

Some scholars see legal certainty as a part of the legality principle,80 while others still see them

as two separate principles.81 A third opinion, which is used by the CJEU, is that the principle

of legality is a “specific expression of the general principle of legal certainty”. 82 This

connection between the principles can for example be seen in Case C-308/06 Intertanko and in

the joined cases C-74/95 and C-129/95 Criminal proceedings against X.83 The CJEU has further

specified the balance between the principle of legality and the principle of legal certainty in the

Joined cases C-42/59 and C-49/59, S.N.U.P.A.T. v High Authority, by stating that when it comes

to the question of which principle should prevail, the answer in each particular case depends

upon a comparison of the public interest with the private interests in question.84 The principle

of legality through the demand of a clear and precise legislation, can thus be seen as a part of

the principle of legal certainty in EU criminal law.

Legal certainty in the context of EU criminal law can also be exemplified through certain rights

guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms

(hereinafter ECHR).85 For example, through the rights to liberty and security (Article 5), a fair

trial (Article 6), to not be punished without law (Article 7) and the right to not be tried or

punished twice (Article 4 of additional protocol 7).86 Subsequently, human rights and the

principle of legal certainty are tightly interwoven, especially on the subject of EU criminal law.

If a legislation or legal decision-making in an unproportioned manner infringes on the rights

and freedoms of the ECHR, it cannot be seen as consistent with the principle of legal certainty.

77 Grădinaru, 2018, p. 292. 78 Case C-308/06 Intertanko, para. 71. 79 Case C-303/05 Advocaten voor de Wereld, para. 50; Case C-308/06 Intertanko, para. 71. 80 See e.g. Peršak, 2018, p. 35. 81 See e.g. Avila, 2016, p. 485; Groussot & Minssen, 2007, p. 415. 82 Case C-308/06 Intertanko, para. 70. 83 Joined cases C-74/95 and C-129/95 Criminal proceedings against X, para. 25. 84 Joined cases C-42/59 and C-49/59, S.N.U.P.A.T. v High Authority, para. 87. 85 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950. The EU

acceded to the ECHR through the Lisbon Treaty. Article 6(2) of the Lisbon Treaty. 86 Suominen, 2014, p. 7.

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2.3 Conclusion: How legal certainty will be applied in this thesis

The principle of legal certainty accordingly consists of two elements: formal and substantial.

The formal element demands predictability and non-arbitrariness, while the substantial element

requires a morally acceptable outcome. In EU criminal law, legal certainty is closely linked to

both the principle of legality and the rights under the ECHR. Nonetheless, even if the principles

can be summarised and differentiated, the meaning and scope of the term legal certainty and

legality are never completely foreseeable in the possible variety of their use.87 Subsequently,

for the principle of legal certainty to be a useful tool in the analysis, legal certainty needs to be

further defined for the practical application.

Consequently, legal certainty will in this thesis be perceived as the demand for predictability,

legality and reasonability. This universalisation tries to capture the essence of legal certainty

by including the core from the elements described by Aarnio and Peczenik, as well as by taking

into account the CJEU interpretation of the principle. In this regard, especially the CJEU

understanding of the principle of legality being a crucial part of legal certainty is emphasised.

In this framework, predictability means whether the legal decision-making will be non-arbitrary

and foreseeable in its potential use, and is thus in line with Peczenik’s and Aarnio’s formal

element of legal certainty. Legality, on the other hand, means here whether the legal framework

in the directive is sufficiently clear and precise. This demand accordingly entails the CJEU’s

interpretation of the principle of legality as a demand for a legislation to clearly define its

offences and penalties. This requirement can therefore be seen as the second component of the

general principle of legality (nullum crimen sine lege certa; nullum crimen sine lege stricta).

Finally, an aspect of the substantial element is assessed in the last demand: reasonability. In

this connotation, reasonability requires a rational and morally acceptable outcome, as advocated

by Aarnio. Since the question of how something could be determined to be “reasonable” or

“morally right” is debatable and could fill an essay of its own, this thesis will resort to values

that are generally perceived to be right and acceptable in the 21th century in the EU and are in

accordance with the human rights and freedoms in the ECHR.88 These three elements will hence

be tested when analysing the prohibitions in the Terrorism Directive.

87 Claes et al., 2009, p. 16. 88 At this point it seems appropriate to clarify, that as this thesis does not aim to focus on the consistency with

human rights and individual freedoms, it will only discuss the rights and freedoms actualized in the context of

legal certainty, and only from the ECHR and its Additional Protocols.

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3 Combating terrorism in the EU

Before reviewing the EU’s legal framework regarding counterterrorism, the matter of what

gives the EU the competence to create and adopt legislation in the area of criminal law is

studied. This is to better understand what and how the EU can criminalise in the area of

counterterrorism. Thereafter, the development of the crimes of terrorism is examined alongside

the EU’s legal framework prior to the new directive. The purpose of this chapter is thus to give

an understanding of the historical context for the Terrorism Directive and the new provisions

in Article 8 and 9. The directive itself is afterwards analysed in following chapters of its own.

3.1 EU’s legislative powers in the area of counterterrorism

The EU’s competences are laid out and specified in the Lisbon Treaty.89 The Treaty of Lisbon

amended the TEU and TFEU and simultaneously clarified the powers of the EU and gave the

EU a complete legal personality.90 Consequently, the competence to regulate European criminal

law became subject to the ordinary legislative procedure.91 This ordinary legislative procedure

creates decisions with qualified majority voting, using the legal instruments of regulations,

directives and decisions.92 The most significant regulation concerning EU criminal law and

counterterrorism is Article 83(1) TFEU:

The European Parliament and the Council may, by means of directives adopted in accordance

with the ordinary legislative procedure, establish minimum rules concerning the definition of

criminal offences and sanctions in the areas of particularly serious crime with a cross-border

dimension resulting from the nature or impact of such offences or from a special need to combat

them on a common basis.

The article gives the European Parliament and the Council the competence to create legislation

through directives, and terrorism is explicitly mentioned as an example of such a particularly

serious crime with a cross-border dimension in the second section of the article.93

89 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community

(OJ C 306, 17.12.2007); entry into force on 1 December 2009. 90 European Parliament, Fact Sheets on the European Union, 2019, p. 2.

[http://www.europarl.europa.eu/factsheets/en/sheet/5/the-treaty-of-lisbon], 2019-11-08. This also resulted in the

former three pillar structure of the EU being abandoned. For a more extensive analysis of the Lisbon Treaty and

the third pillar, see Herlin-Karnell, 2008. 91 This competence belonged previously to the third pillar, Herlin-Karnell, 2008, p. 3. 92 European Parliament, Fact Sheets on the European Union, 2019, p. 2.

[http://www.europarl.europa.eu/factsheets/en/sheet/5/the-treaty-of-lisbon], 2019-11-08. 93 Article 83(1) TFEU (ex. Article 31 TEU), which is based on the article 69 B of the Lisbon Treaty.

23

Article 83 TFEU accordingly restricts the EU’s competences on the subject of terrorism and

other serious crimes to the use of directives. Directives are compulsory regarding the outcome,

but the Member States can decide how they want to implement the demands of the directive

into their national legislation. The use of directives aims therefore to harmonise the national

legislation in the Member States, and not to create EU criminal law per se. Directives are

consequently an instrument used in order to change the national legislation in a certain way.94

Article 83 TFEU provides, as mentioned, the EU the right to create minimum rules for defining

certain crimes, their requisites and penalties.95 Minimum rules mean that the Member States

can choose to criminalise more than the directive demands, but not less. Hence, the Member

States legislative powers are only restricted from one direction. 96 This also entails that the EU

cannot create too far-reaching legislation, as the Member States needs certain freedom to

implement the prohibitions into their national legislation in a suitable way.97

3.2 The EU’s fight against terrorism – a historical context

As previously mentioned, the criminalisation of receiving training for terrorism and travelling

for the purpose of terrorism are motivated by the evolving threat of terrorism and pursues to

give effect to international obligations. Therefore, the historical context should be studied in

order to grasp the context and motivations behind the EU’s new prohibitions.

3.2.1 The 9/11 attacks and the emerging threat of terrorism

Crimes of terrorism have, regardless of their transnational features,98 previously been seen in

Europe as either national or international problems, and responses have accordingly been taken

through the Member States’ own criminal justice systems.99 This was changed by the notorious

attacks on the World Trade Centre in New York and on the Pentagon in Washington DC on the

11th of September 2001 (hereinafter 9/11) that killed 2 973 victims and 19 terrorists.100 This

event came to drastically change the legal and political debate regarding terrorism.101

94 Asp, 2011, p. 129. 95 Asp, 2011, p. 126. 96 Asp, 2011, p. 130. 97 See Asp, 2011, p. 130. 98 Acts of terrorism are commonly planned in one state, supplied with material such as weapons from another

state, executed in a third state and finally meant to cause effects in multiple states: this is what gives terrorism its

transnational features. Boister, 2012, p. 63. 99 Murphy, 2012, p. 17. 100 Murphy, 2012, p. 3. 101 See Murphy, 2012, p. 3 in conjunction with p. 7-8.

24

Within ten days of 9/11, the EC declared that the fight against terrorism is an EU priority.102

The EU’s response to 9/11 was the establishment of the first coordinated EU counterterrorism

legislation: Council Framework Decision 2002/475/JHA.103 This Framework Decision sought

to create a harmonised legislative approach to terrorism in the EU’s Member States. It required

the Member States to criminalise the offence of terrorism and provided a list of acts that should

be considered as terrorist offences, as well as the corresponding penalties.104

3.2.2 The Madrid and London attacks and the threat of home-grown terrorists

After the bombings in Madrid in 2004 and London in 2005 that killed a total of 247 and injured

over 2 200, 105 the EU established the Counter-Terrorism Coordinator who introduced the

European Union Counter-Terrorism Strategy. 106 As the jihadist terrorists in the London

bombings were ‘home-grown’ and operated without support from a central terrorist

organization like Al-Qaida, the EU realised they needed to change the perception of the terrorist

threat in Europe, which had focused almost exclusively on Al-Qaida after 9/11.107 Thus, these

attacks resulted in the need for a refocus on home-grown terrorists and the prevention of

radicalisation, and a unified policy in the EU regarding these.108

After the attacks, the Council of Europe (hereinafter CoE) Convention on the Prevention of

Terrorism (hereinafter “the Convention”) was signed by the EU and its Member States.109 The

Convention required the signing parties to introduce three new offences. These new offences

were public provocation, providing training for terrorism and recruitment for terrorism.110

Consequently, the cornerstone of the EU’s counterterrorism measures, namely the Framework

Decision from 2002, was amended by the Council Framework Decision 2008/919/JHA in order

to include these new offences.111 The inclusion of these conducts can be seen as a shift in focus

towards preparatory acts in the counterterrorism policy.112

102 The European Union’s Policies on Counter-terrorism: Relevance, Coherence and Effectiveness, p. 32. 103 Hurley, 2018, p. 9. 104 Hurley, 2018, p. 9. 105 DW, Madrid to Manchester to Barcelona: A chronology of terror in Europe, 17.08.2017

[https://www.dw.com/en/madrid-to-manchester-to-barcelona-a-chronology-of-terror-in-europe/a-38949481]

2020-02-05. 106 The European Union Counter-Terrorism Strategy, p. 1. 107 The European Union’s Policies on Counter-terrorism: Relevance, Coherence and Effectiveness, p. 33. 108 Hurley, 2018, p. 10; The European Union’s Policies on Counter-terrorism: Relevance, Coherence and

Effectiveness, p. 33. 109 Council of Europe Convention on the Prevention of Terrorism, Warsaw, 16.V.2005. 110 Hurley, 2018, p. 11. 111 Framework Decision 2008/919/JHA, para. 9. 112 Hurley, 2018, p. 11.

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3.2.3 The rise of ISIS and the threat of foreign terrorist fighters

The need for changes to the EU’s counterterrorism measures arose again in connection with the

Syrian Civil War and the emerging trend of individuals travelling from Europe to join ISIS.113

These individuals travelling from Europe to Syria, in other words the foreign terrorist fighters,

were numbered around 2 500 in June 2014 and became more than 5 000 in November 2015.114

Most of these foreign terrorist fighters joined extremist groups and approximately a third

returned to Europe.115 Even if all returnees do not pose a risk of becoming terrorists, the

majority of these individuals had been exposed to radicalisation and violence, and thus they

presented a heightened risk.116 These risks were exemplified by two attacks in Paris that killed

over 137 individuals, as the perpetrators of the attack on Charlie Hebdo’s headquarters had

received training in Yemen, and some of the perpetrators of the coordinated attacks on the

Bataclan music venue and the Stade de France football stadium were EU citizens who were

returnees from Syria.117

The United Nation Security Council Resolution 2178(2014) (hereinafter “UNSCR 2178) 118

became a reaction to the emerging threat of ISIS and other jihadist terrorist groups developed

from Al-Qaida and focused therefore on these foreign terrorist fighters.119 The UN Security

Council consequently required all Members States of the UN to ensure that offences related to

the phenomenon of foreign terrorist fighters are punishable under national law. 120 Among these

offences were receiving training for terrorism and travelling for the purpose of terrorism.121

CoE adopted in this regard the Additional Protocol to give effect to the obligations emerging

from the UNSCR 2178.122 The Additional Protocol correspondingly demanded that measures

would be taken to criminalise conducts such as receiving training for terrorism and travelling

abroad for the purpose of terrorism.123 The EU signed the Additional Protocol in 2015.124

113 Hurley, 2018, p. 11. 114 Voronova, 2017, p. 2. 115 The European Union’s Policies on Counter-terrorism: Relevance, Coherence and Effectiveness, p. 34. 116 The European Union’s Policies on Counter-terrorism: Relevance, Coherence and Effectiveness, p. 34. 117 Hurley, 2018, p. 11; The European Union’s Policies on Counter-terrorism: Relevance, Coherence and

Effectiveness, p. 35. 118 Resolution adopted by the Security Council at its 7272nd meeting, United Nations S/RES/2178 (2014). 119 UNSCR 2178, p. 2. 120 UNSCR 2178, para. 6, p. 4. 121 UNSCR 2178, para. 4, p. 4. 122 Recital (5) of the Terrorism Directive. 123 Additional Protocol, p. 2. 124 COM(2015) 625 final, p. 5.

26

These international obligations were further implemented into the EU’s legislation through the

Terrorism Directive. The directive became accordingly the new “cornerstone of the EU

countries’ criminal justice response to counter terrorism” as it replaced the previous Framework

Decisions.125 Another reason for the updated EU legislation was the need for harmonisation of

the terrorism legislation on an EU level, as numerous Member States had undertaken differing

legislative amendments to meet the abovementioned international obligations.126 The Member

States different approaches to terrorism created a risk for so-called ‘safe havens’ inside the EU

for returning terrorist fighters.127 Therefore, an aligned EU-wide legislation was desirable.128

The EU’s new criminalisation of receiving training for terrorism and travelling for the purpose

of terrorism was accordingly done in order to implement the Additional Protocol, based on the

UNSCR 2178.129 The aim of the Terrorism Directive was consequently to adjust the EU law in

order to encounter the evolving threat of terrorism, mainly posed by foreign terrorist fighters,

and to better take the international aspect into account.130 The Terrorism Directive has therefore

been considered a fundamental step forward in the area of criminal law harmonisation.131 These

new offences of receiving training for terrorism and travelling for the purpose of terrorism,

alongside the updated definition of terrorism, are thus the EU’s newest counterterrorism

measures.

3.3 Conclusions from the historical background

It is seemingly apparent that the EU’s counterterrorism measures have been motivated by

different major terrorist attacks, including 9/11, the bombings of Madrid and London, the rise

of the ISIS and the attacks in Paris (as well as in Brussels and Berlin). Consequently, the EU’s

responses have been ‘crisis-driven’, and as these events mentioned were all related to jihadist

terrorism, this has accordingly been the focus of the counterterrorism measures in the EU.132

125 Council Framework Decision 2002/475/JHA, p. 3. For the replacement: Recital (43) of the Terrorism Directive. 126 See Voronova, 2017, p. 2. 127 Voronova, 2017, p. 4. 128 Voronova, 2017, p. 4. 129 COM(2015) 625 final, p. 17. 130 Hurley, 2018, p. 7. 131 Caiola, 2017, p. 411. 132 The European Union’s Policies on Counter-terrorism: Relevance, Coherence and Effectiveness, p. 30.

27

4 The Terrorism Directive

The Terrorism Directive has applied in the EU since the 20th of April 2017 and had to be

implemented into the Member States national legislation by 8th of September 2018.133 The

directive determines the minimum rules regarding the definition of terrorist offences and

offences related to terrorism as well as the penalties for these.134 Besides the new offences in

Article 8 and 9, new elements to the main terrorist offence (Article 3) were also added. These

included more grounds for aiding, abetting, inciting or attempting to commit a terrorist

offence.135 The directive is accordingly an important piece of legislation that reinforces the

EU’s arsenal to more efficiently combat terrorism on both a European and International level.136

4.1 Defining terrorism and the terrorist intent

As the prohibitions in Article 8 and 9 are dependent on the definition of terrorism in Article 3,

it is natural to begin the study of the articles by outlining this definition. However, as crimes of

terrorism often are international, the problems regarding an international definition are relevant

for EU’s definition as well. Thus, this chapter begins with a global outlook. Thereafter, EU’s

definition in Article 3 is presented. Finally, the legal uncertainty in the definition is analysed.

4.1.1 The lack of an international definition

Even if terrorism is categorised as an international crime, there does not exist a universally

acknowledged definition of terrorism.137 Though there are numerous conventions, resolutions

and treaties about terrorism and counterterrorism, not a single one of these yields an

internationally accepted definition.138 The reason behind this is that there are some matters in

which the states disagree to such an extent that an agreement is simply not possible.139 As

examples of such matters are if the definition should include ‘state terrorism’ or not and whether

‘acts of state armed forces’ should be included.140 Another problem is the political value of an

international definition. This can be illustrated through the old saying “one man’s freedom

133 Article 28(1) of the Terrorism Directive. 134 COM(2015) 625 final, p. 9. 135 See Voronova, 2017, p. 6. The Terrorism Directive also sets out procedures regarding support, protection and

assistance for victims of terrorism, Recital (27) of the Terrorism Directive. 136 Caiola, 2017, p. 410. 137 Bates, 2011, p. 11. 138 Bates, 2011, p. 1f. 139 Report of the Ad Hoc committee, Annex II, para. 4. 140 Report of the Ad Hoc committee, Annex I, para. 1 and 6.

28

fighter is another man’s terrorist”.141 Therefore, some argue that the political value of an

international definition of terrorism triumphs over the legal definition as the term terrorism is

easily used for the states own interest.142 For example, Osama bin Laden and the Taliban were

once called freedom fighters and supported by the CIA in the resistance of the Soviet occupation

of Afghanistan. Likewise, the UN considers Palestinians to have a legitimate reason for their

resistance, when Israel, on the other hand, considers them to be terrorists.143

Problems with misuse of the definition of terrorism can already be seen at the borders of the

EU. In Turkey, the reigning president Recep Tayyip Erdoğan required to broaden the definition

of terrorism to also include opposing the regime. Erdoğan declared that he does not differentiate

between a terrorist holding a gun or a pen and that titles such as academics, authors or journalists

do not change the fact that they are terrorists.144 Thus academics criticising Turkey’s military

operations against Kurds were prosecuted for engaging in ‘terrorist propaganda’.145

Regardless of the issues with the definition of terrorism, the need to define terrorism is still

persistent. Finding a suitable definition is the key to efficiently combating terrorism, because

of the political, moral and legal consequences that would follow.146 Not having a common

definition leads to uncertainty and allows the states to define what constitutes as terrorism.147

According to Ben Saul, terrorism needs therefore to be defined in order to protect human rights

and ensure international peace and security, and to avoid arbitrary abuse by the states.148

The search for a suitable definition of terrorism is compared by Nicholas J Perry to the search

for the ‘Holy Grail’ by King Arthur’s Knights of the Round Table. Perry nevertheless argued

that “unlike the Grail Quest, where many sought the Grail but only a few knights accomplished

the quest, many searchers located a definition of terrorism. The different proposed scholarly

141 The American Academy of Political and Social Science, 1890, p. 12. 142 Zeidan, 2004, p. 491f. 143 Zeidan, 2004, p. 491f. 144 AmnestyPress, Turkiet: 2 000 rättsfall mot personer som anklagas för att ha skymfat Erdoğan, 26.4.2016,

[http://www.amnestypress.se/notiser/15090/turkiet-2-000-rattsfall-mot-personer-som-anklagas-] 2020-01-28. 145 The Guardian, Turkey rounds up academics who signed petition denouncing attacks on Kurds, 15.1.2016,

[https://www.theguardian.com/world/2016/jan/15/turkey-rounds-up-academics-who-signed-petition-denouncing-

attacks-on-kurds] 2020-01-28; Istanbul - BIA News Desk, First Arrested Academics for Peace Acquitted,

30.9.2019, [https://bianet.org/english/freedom-of-expression/213759-first-arrested-academics-for-peace-

acquitted] 2020-01-28. 146 OSCE/ODIHR 2007, Countering Terrorism, Protecting Human Rights – A Manual, p. 23. 147 Proulx, 2012, p. 17. 148 Saul, 2007, p. 190.

29

and legal definitions of terrorism are more numerous than the 150 knights seeking the Grail,

and definitional consensus has been at least as elusive as the Grail”.149 In other words, the

problem does not lie with the lack of a definition, instead it lies in finding a suitable definition.

4.1.2 EU’s definition of terrorism (Article 3)

The EU’s updated definition of terrorism is found in Article 3 of the Terrorism Directive. The

purpose of the new definition is to serve as a standard in EU context. Thus, the definition will

also be used for co-operation and information sharing between the Member States’ national

authorities.150 The main terrorist offence, and accordingly the EU’s definition of terrorism, is

formulated as:

1. Member States shall take the necessary measures to ensure that the following intentional acts, as

defined as offences under national law, which, given their nature or context, may seriously

damage a country or an international organisation, are defined as terrorist offences where

committed with one of the aims listed in paragraph 2:

(a) attacks upon a person’s life which may cause death;

(b) attacks upon the physical integrity of a person;

(c) kidnapping or hostage-taking;

(d) causing extensive destruction to a government or public facility, a transport system, an

infrastructure facility, including an information system, a fixed platform located on the

continental shelf, a public place or private property likely to endanger human life or

result in major economic loss;

(e) seizure of aircraft, ships or other means of public or goods transport;

(f) manufacture, possession, acquisition, transport, supply or use of explosives or weapons,

including chemical, biological, radiological or nuclear weapons, as well as research into,

and development of, chemical, biological, radiological or nuclear weapons;

(g) release of dangerous substances, or causing fires, floods or explosions, the effect of

which is to endanger human life;

(h) interfering with or disrupting the supply of water, power or any other fundamental

natural resource, the effect of which is to endanger human life;

(i) illegal system interference, as referred to in Article 4 of Directive 2013/40/EU of the

European Parliament and of the Council (1) in cases where Article 9(3) or point (b) or

(c) of Article 9(4) of that Directive applies, and illegal data interference, as referred to

in Article 5 of that Directive in cases where point (c) of Article 9(4) of that Directive

applies;

(j) threatening to commit any of the acts listed in points (a) to (i).

2. The aims referred to in paragraph 1 are:

(a) seriously intimidating a population;

(b) unduly compelling a government or an international organisation to perform or abstain

from performing any act;

(c) seriously destabilising or destroying the fundamental political, constitutional, economic

or social structures of a

(d) country or an international organisation.

149 Perry, 2004, p. 249. 150 E.g. Council Framework Decision 2006/960/JHA, p. 89, Council Decision 2008/615/JHA, p. 1, Regulation

(EU) No 603/2013 of the European Parliament and of the Council, p. 1, Council Framework Decision

2002/584/JHA, p. 1, Council Framework Decision 2002/465/JHA, p. 1, The directive also amended parts of the

Council Framework Decision 2006/960/JHA, p. 89.

30

The definition of terrorism in the main terrorist offence in Article 3 accordingly consists of two

elements: an objective and a subjective. The objective element is a list of serious criminal

conducts in Article 3(1), where the EU refers to the Member States’ national law to define the

offences. The subjective element, on the other hand, is the demand of a specific intent, “the

aim” in Article 3(2).151 According to Article 3(2), the aim or the ‘terrorist intent’ is to (a)

seriously intimidate a population; by (b) unduly compelling a government or an international

organisation to perform or abstain from performing any act; (c) seriously destabilising or

destroying the fundamental political, constitutional, economic or social structures of a (d)

country or an international organisation.152

4.1.3 Analysis of the definition of terrorism and its legal uncertainty

The main terrorist offence and its terrorist intent have significant impacts on the scope of the

new offences of receiving training for terrorism and travelling for the purpose of terrorism.153

Thus, the definition and the intent needs to be further analysed and scrutinised from a

perspective of legal certainty, as this will affect the legal certainty of the other articles as well.

The definition of terrorism in Article 3 has received vast criticism from Amnesty International,

the ICoJ, and OSJI and OSEPI in their Joint Submission, as well as from the Opinion of the

EESC.154 The core of this criticism lies in the overly generalised definition of terrorism and

diffuse formulations, which results in the scope of what constitutes as ‘terrorism intent’

becoming unclear. As examples of this vagueness, Amnesty International, the ICoJ, and OSJI

and OSEPI point out the problems in foreseeing how the criteria of “seriously destabilising or

destroying the fundamental political, constitutional, economic or social structures of a country

or an international organisation” will be satisfied.155 Likewise, it is questionable how the criteria

of “seriously intimidating a population” can be determined in a foreseeable way.

The EESC expresses further concerns regarding the diffuse definition, as it might results in the

acts related to terrorism activities being defined too broadly.156 This broad definition might

151 Caiola, 2017, p. 418f. 152 Article 3(2) of the Terrorism Directive. 153 Regarding the significant impact of this definition on the new offences, see e.g. Joint Submission by Amnesty

International, the ICoJ, and OSJI and OSEPI, p. 8. 154 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 8ff, and Opinion of the EESC,

para. 3.2.2.1 to 3.2.2.3. 155 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 9. 156 Opinion of the EESC, para. 3.2.2.1.

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therefore result in the risk of arbitrary use of what constitutes as terrorism, and consequently

the article cannot be considered to satisfy Peczenik’s and Aarnio’s demand for predictability.

Likewise, it does not seem to fulfil the principle of legality as used in this thesis, as the definition

is neither clear nor precise enough. Thus, the formal elements of legal certainty are not

satisfactory met. Therefore, even if this definition is updated from the ones found in the

previous EU legislations regarding counterterrorism, the problems connected to the vagueness

of the terrorist intent remains unsolved.157

The definition of terrorism has also received criticism that demonstrates the inconsistency with

the substantial demand for legal certainty, namely the aspect of reasonability. As defined in the

theoretical framework, reasonability stands for a rational and morally acceptable result. The

EESC has in this regard raised concerns about the current Article 3(1)(i), that equals

‘threatening to commit’ a terrorist act as with actually committing one. According to the EESC,

this equalisation cannot be seen as proportional, as a threat is only a potential act and not an

actual, committed terrorist offence. 158 Thus, it is not reasonable to compare the threat of

committing an offence with actually committing a terrorist offence.

Another problem regarding the substantial element is that the current Article 3(1)(d) declares

“causing extensive destruction […] to an infrastructure facility, including an information

system” to be terrorism. This is problematic, as the formulation in its current form include

malicious breaches to IT systems (commonly called hacking) as a terrorist act. What makes this

troublesome is mainly that there have been occasions where hackers have intended to publicise

secret documents of public interest.159 Even if obtaining and publicising these documents

undeniably constitutes as criminal acts, these should not fall under the category of terrorism.160

In conclusion, as the definition of terrorism is diffuse, it correspondingly becomes too broad

and the limits of what constitutes as terrorism too vague to be precise and clear enough to fulfil

the demand of legality. In addition, the broad definition of the intent leads to problems regarding

predictability, as the possible application of the definition becomes unforeseeable and might

result in arbitrary use of power. Moreover, there are substantial problems with the diffuse

157 Caiola, 2017, p. 419. 158 Opinion of the EESC, para. 3.2.2.3. 159 Opinion of the EESC, para. 3.2.2.2. 160 Opinion of the EESC, para. 3.2.2.2.

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definition as it could lead to applications that restrict individual rights and freedoms in an

unproportioned way, thus resulting in an unreasonable outcome. Particularly problematic in this

regard is the conduct of threatening to commit a terrorist offence being equivalent with actually

committing one, as well as the possibility of hackers being labelled as terrorists. Hence, the

definition of terrorism in Article 3, which is an essential part of the other articles of the

Terrorism Directive, needs to be further specified and amended to be consistent with the

principle of legal certainty.

4.2 Offences related to terrorism activities

The prohibitions of receiving training for terrorism and travelling for the purpose of terrorism

are both offences related to terrorism, as they are preparatory acts that facilitates the possible

enactment of future terrorist attacks. The need to criminalise not only terrorist offences but also

these offences related to terrorism activities has been motivated by the EC in their proposal of

the Terrorism Directive. The EC declared that the offences related to terrorism activities are “of

a very serious nature as they have the potential to lead to the commission of terrorist offences

and enable terrorists and terrorist groups to maintain and further develop their criminal

activities”. 161 The European Parliament and the EU Council justify the criminalisation of these

conducts in the Terrorism Directive’s recital with the same argument.162

Consequently, these offences related to terrorism activities do not require that a terrorist attack

is, or will immediately be, committed.163 Therefore, these offences related to terrorism activities

are considered independent criminal offences in themselves, as they contain both objective and

subjective elements. According to the proposal, the objective elements are the “clearly defined

conduct and circumstance” and the subjective “the intent or knowledge of the perpetrator or

potential perpetrator as to his or her conduct having the potential to lead to the commission of

or contribution to terrorist offences”.164 The offences related to terrorist activities that this thesis

focuses on, namely receiving training for terrorism and travelling for the purpose of terrorism,

will hereafter be examined. The following chapters will thus begin by answering what has been

criminalised and continue with an analysis of the prohibitions from the perspective of legal

certainty as outlined in the theoretical framework.

161 COM(2015) 625 final, p. 16. 162 Recital (9) of the Terrorism Directive. 163 COM(2015) 625 final, p. 19. 164 COM(2015) 625 final, p. 16.

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5 Receiving training for terrorism (Article 8)

5.1 What conducts have been criminalised through Article 8?

Article 8 in the Terrorism Directive criminalises ‘receiving training for terrorism’, and aims to

complement the already existing offence of ‘providing training for terrorism’.165 This provision

implements Article 3 of the Additional Protocol.166 The article has a preventative purpose as it

aspires to address the threat posed by individuals or groups preparing to commit terrorist

offences, including those acting alone.167 By criminalising receiving training for terrorism, the

EC reasons that the receiver will not be able to complete or contribute to the commission of

terrorist attacks.168 Thus it tackles potential perpetrators.169 Article 8 is phrased as follows:

Member States shall take the necessary measures to ensure that receiving instruction on the

making or use of explosives, firearms or other weapons or noxious or hazardous substances, or

on other specific methods or techniques, for the purpose of committing, or contributing to the

commission of, one of the offences listed in points (a) to (i) of Article 3(1) is punishable as a

criminal offence when committed intentionally.

Accordingly, there are two requisites. First, the objective element: receiving instructions on

the making or use of explosives, weapons or noxious or hazardous substances, or on other

specific methods or techniques (the criminal act, actus reus). Secondly the subjective element:

the previously mentioned acts are committed intentionally with the purpose to commit or

contribute to a terrorist offence listed in Article 3(1) point (a) to (i) (the intent, mens rea).

The acts criminalised by this article (actus reus) include acquiring knowledge, documentation

or practical skills regarding terrorism.170 The receiving of the training could occur in person,

e.g. when attending a training camp run by a terrorist association, or through media, e.g. through

the internet.171 Also self-studying, either through the internet or by consulting other material,

which is done actively with the intent to commit or contribute to a terrorist offence should be

within the scope of the crime according to the recital of the Terrorism Directive. For example,

downloading a manual on how to make explosives to use that information in committing

terrorist offences would constitute as receiving training for terrorism.172 Even participation in

165 Recital (11) of the Terrorism Directive. See Article 7 of the Terrorism Directive for the offence of Providing

training for terrorism. 166 COM(2015) 625 final, p. 17. 167 Recital (11) of the Terrorism Directive; COM(2015) 625 final, recital (9), p. 25. 168 COM(2015) 625 final, p. 16. 169 COM(2015) 625 final, p. 17. 170 Recital (11) of the Terrorism Directive; Outcome of the European Parliament's first reading, p. 12. 171 COM(2015) 625 final, p. 17. 172 Recital (11) of the Terrorism Directive; Outcome of the European Parliament's first reading, p. 12.

34

normally lawful activities, such as attending a chemistry course at a university, flying lessons,

or receiving military training, can be criminal according to the article if it can be shown that the

person receiving the training had the intent to use the knowledge or skills in order to commit or

contribute to terrorist offences.173 This intent (mens rea) could further be concluded from e.g.

“the type of materials and the frequency of reference”. However, if a person has a legitimate

purpose for visiting websites and collecting material of terrorism, the act would not fall under

the scope of this article. Such legitimate aims could be for academic or research purposes.174

5.2 Analysing Article 8 from the perspective of legal certainty

When analysing if the prohibition in Article 8 is consistent with the principle of legal certainty,

the three demands set out by the theoretical framework will be assessed. These were the formal

demands for predictability and legality and the substantial demand for reasonability.

5.2.1 Formal elements of legal certainty

Starting with the demand for predictability, the prohibition states that any type of learning can

be criminal given that there is an intention to aid or commit a terrorist offence. This vagueness

of what exactly is prohibited makes it questionable if the offence truly can be foreseeable in the

varieties of its use. This is further emphasised by the lack of guidance on when the receiving of

training should take place; for example, is it criminal to attend a chemistry course with an intent

to commit an offence after a few days or a few years? These issues become particularly

problematic, as the intent is the only thing separating a lawful activity from a terrorist offence.

It might nevertheless be fairly straightforward to prove the terrorist intent if someone is

participating in a terrorist training camp, but it is dubious whether the terrorist intent of self-

studying truly can be manifested in ‘the type of materials and the frequency of reference’.175 In

order to illustrate some of the problematics emerging from the criminalisation of self-studying,

a hypothetical scenario can be presented: two young individuals are on the shooting range

practicing. One is there for recreational purposes, he or she also has a political and societal

interest and hence reads a lot about terrorism and terrorist offences on the internet. The other

person is there to practice for a terrorist offence that he or she plans to commit, and reads the

exact same articles and with the same frequency as the first person for inspiration. According

173 COM(2015) 625 final, p. 17. 174 Recital (11) of the Terrorism Directive; Outcome of the European Parliament's first reading, p. 12. 175 Recital (11) of the Terrorism Directive.

35

to Article 8, the second person is committing a crime, whilst the first individual is doing nothing

wrong. If neither writes their intentions down or otherwise clearly expresses their intent, how

can the national authorities differentiate between these individuals? If the line between lawful

and criminal activities rests in the thought of the individuals, then how can the application of

the prohibition be even remotely predictable for the citizens?

Consequently, the problems with predictability emerge mainly from the criminalisation of self-

study. It is noteworthy that the Additional Protocol’s corresponding criminalisation of receiving

training for terrorism did not include self-studying.176 The fist proposal for the directive had a

similar approach:177

Member States shall take the necessary measures to ensure that to receive instruction, from

another person in the making or use of explosives, firearms or other weapons or noxious or

hazardous substances, or in other specific methods or techniques, for the purpose of committing

of or contributing to the commission of one of the offences listed in points (a) to (h) of Article

3(2) is punishable as a criminal offence when committed intentionally.178 (emphasis added)

The international obligations did accordingly not demand for self-studying to be criminalised,

which is why it is interesting that the EU decided to take the legislation a step further, and

explicitly mention self-studying in the recital of the Terrorism Directive.179 Subsequently,

making it mandatory for all the Member States to criminalise self-studying.180

One could argue, that if self-studying is criminalised in all Member States, then it would be

more foreseeable in the EU in general, as the same prohibitions would apply for all citizens in

the EU, regardless of where the studying is conducted. Thus, it could be more predictable in

inter-governmental collaboration as the same rules would apply in all Member States. However,

even if it would be more foreseeable on an EU-level, criminalising self-studying would still be

unpredictable for individuals as the scope of the offence becomes too broad. The principle of

legal certainty focuses on the individual’s perspective, which is why the matter of predictability

in the collaboration between Member States authorities should not be prioritised in this regard.

176 Additional Protocol, ‘Article 3 – Receiving training for terrorism’, p. 2. 177 See COM(2015) 625 final, p. 17. 178 COM(2015) 625 final, p. 30. 179 Self-study was added in the amendments done after the Parliament’s first reading, See Outcome of the

European Parliament's first reading, p. 12. 180 The Recital (11) of the Terrorism Directive states that “Self-study … should also be considered to be

receiving training for terrorism when resulting from active conduct and done with the intent to commit or

contribute to the commission of a terrorist offence” (emphasis added). Regarding the word “should”, I use the

same interpretation as the Swedish Government and understands it as an obligation for Member States to

criminalise self-studying. Prop. 2017/18:174, p. 55.

36

The second demand for legal certainty, legality, entails that the EU legislation needs to clearly

define its offences.181 There has been problems with legality in Article 8 from the beginning,

as the article already in the first reading182 was considered to be too unspecific.183 The Joint

Submission of Amnesty International, the ICoJ, and OSJI and OSEPI also voiced concerns

regarding Article 8, and considered the offence to be “not drafted with sufficient clarity and

precision to prevent arbitrary application of the criminal law”.184

Particularly problems regarding the intent is pointed out, as the demand for the receiving of the

training to be committed “intentionally” does not make it clear that the receiving also needs to

be committed wilfully.185 Therefore, the article does not establish a specific intent of carrying

out, or contributing to the commission of a terrorist offence as a result of the training. According

to the Joint Submission, the lack of such a demand on the intent creates a “risk of criminalising

conduct that lacks a sufficient proximate causal link with the principal criminal offence”.186

5.2.2 The substantial element of legal certainty

Finally, the last element of legal certainty, namely if the criminalisation of receiving training

for terrorism is reasonable in accordance with the factors presented in the theoretical

framework, is analysed. Article 8 criminalises, among other acts, consulting terrorist websites

if it is done with a terrorist intent. A similar provision has, however, been ruled unconstitutional

by the French Constitutional Council on two occasions.187 In the most recent case from 15th of

December 2017,188 the court considered a provision that criminalised ‘regular consultation’ of

websites that were considered to incite or glorify terrorism, to be unconstitutional. The court

found the provision to restrict the freedom of communication in a manner that was not

appropriate, suitable or proportional. 189 The court furthermore stated that the French law

enforcement agencies had sufficient tools to fight terrorism without this provision.190

181 See Chapter 2.2. and 2.3; Case C-308/06 Intertanko, para. 71. 182 The stage of the first reading includes the discussions within the Council or its preparatory bodies. 183 See e.g. in the Opinion of the Romanian Senate, it was considered crucial to clarify the definition of Article 8.

Opinion of the Romanian Senate on the application of the Principles of Subsidiarity and Proportionality, p. 4. 184 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 11. 185 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 11f. 186 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 11f. 187 Online article by Ana Ollo for European Digital Rights (EDRi), 24.1.2018 [https://edri.org/can-we-ensure-eu-

terrorism-policies-respect-human-rights/] 2020-01-15. 188 French Constitutional Council, Decision no. 2017-682 QPC of 15 December 2017. 189 Decision no. 2017-682 QPC of 15 December 2017, para. 16. 190 Decision no. 2017-682 QPC of 15 December 2017, para. 9.

37

This provision in the French case did, on the other hand, not require a terrorist intent, which

makes it different from Article 8 of the Terrorist Directive.191 The case is nevertheless relevant,

as it ruled the provision to have an unproportioned restriction the freedom of communication.

Similarly, it is questionable if the EU has restricted the Member States’ citizens’ freedoms in

an unproportioned manner by setting these minimum rules in Article 8, demanding all Member

States to create legislations that could punish individuals from visiting certain websites.

Amnesty International, the ICoJ, and OSJI and OSEPI further argued that the lack of clarity of

Article 8 could risk violating the freedom of association and freedom to receive information.192

Similar concerns have been expressed by the Swedish Union of Journalists in the discussion

regarding the implementation into national law, as they stated that the criminalisation of self-

studying will result in a too far-going restriction of the freedom to receive information 193

Therefore, Article 8 and particularly the aspect of criminalising self-learning in the form of

consulting websites, can arguably be seen as incompatible with the values of the EU and

accordingly lead to results that are not acceptable nor morally right or proportionate. Thus, the

article is not meeting the substantial element of legal certainty: the demand for reasonability.

5.3 Conclusions

As demonstrated above, the prohibition of receiving training for terrorism includes issues

regarding both formal and substantial elements of legal certainty. What raises most concerns is

the criminalisation of self-study, as the prohibition becomes too diffuse regarding what exactly

is criminalised and when the learning must take place, in order to fulfil the demand for legality

through a clear and precise legislation. Likewise, this results in the prohibition being too vague

as to what constitutes as an offence under Article 8 for the prohibition to be regarded as

sufficiently foreseeable in order to meet the demand for predictability. There are also grave

concerns as to whether criminalising self-study, without a clear connection to an upcoming

terrorist offence, restricts both the freedom of communication and to receive information in an

unproportioned manner. Therefore, the substantial demand for reasonability is not satisfactory

met either. In conclusion, the prohibition of receiving training for terrorism cannot be seen as

fulfilling the principle of legal certainty.

191 Decision no. 2017-682 QPC of 15 December 2017, para. 15. 192 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 11. 193 Prop. 2017/18:174, p. 55 containing The Swedish Union of Journalists (Svenska Journalistförbundet)

statement of opinion in the proposal for implementing the Terrorism Directive into Swedish national legislation.

38

6 Travelling for the purpose of terrorism (Article 9)

6.1 What conducts have been criminalised through Article 9?

Article 9 criminalises ‘travelling for the purpose of terrorism’ and aims specifically to combat

the threat posed by foreign terrorist fighters.194 This article is intended to implement Article 4

of the Additional Protocol.195 The aim of the provision in Article 9 is to oblige a Member State

to criminalise the act of travelling to another country, if it can be demonstrated that the intended

purpose of travel is to either 1) commit or contribute to terrorist offences, 2) to participate in a

terrorist group or to 3) provide or 4) receive training for terrorism: 196

1. Each Member State shall take the necessary measures to ensure that travelling to a country

other than that Member State for the purpose of committing, or contributing to the commission

of, a terrorist offence as referred to in Article 3, for the purpose of the participation in the

activities of a terrorist group with knowledge of the fact that such participation will contribute

to the criminal activities of such a group as referred to in Article 4, or for the purpose of the

providing or receiving of training for terrorism as referred to in Articles 7 and 8 is punishable as

a criminal offence when committed intentionally.

2. Each Member State shall take the necessary measures to ensure that one of the following

conducts is punishable as a criminal offence when committed intentionally:

(a) travelling to that Member State for the purpose of committing, or contributing to the

commission of, a terrorist offence as referred to in Article 3, for the purpose of the

participation in the activities of a terrorist group with knowledge of the fact that such

participation will contribute to the criminal activities of such a group as referred to in Article

4, or for the purpose of the providing or receiving of training for terrorism as referred to in

Articles 7 and 8; or

(b) preparatory acts undertaken by a person entering that Member State with the intention to

commit, or contribute to the commission of, a terrorist offence as referred to in Article 3.

Article 9(1) consequently criminalises outbound travelling, which according to Article 4(1) of

the Additional protocol means travelling to a state that is not the state of the traveller’s

nationality or residence.197 The travel to the state of destination can either occur directly or

through other states en route.198 Article 9(1), however, criminalises more than the Additional

Protocol, as Article 9(1) also includes travelling for the purpose of partaking in activities of a

terrorist group as referred to in Article 4.199 The EC and the European Parliament considered it

194 Recital (12) of the Terrorism Directive; COM(2015) 625 final, p. 17. 195 COM(2015) 625 final, p. 17. 196 Recital (12) of the Terrorism Directive; COM(2015) 625 final, p. 17. 197 Additional protocol, Article 4(1). 198 COM(2015) 625 final, p. 18. 199 Article 4 of the Terrorism Directive contains offences relating to a terrorist group, such as intentionally

directing a terrorist group (Article 4(a)) or participating in the activities of a terrorist group, including by

supplying information or material resources, or by funding its activities in any way, with knowledge of the fact

that such participation will contribute to the criminal activities of the terrorist group (Article 4(b)). The concept

of ´terrorist group’ is further defined in Article 2(3) as a structured group of more than two persons, established

for a period of time and acting in concert to commit terrorist offences. The concept of a ‘structured group’

39

to be equally important to criminalise travelling for this purpose, as it provides more tools for

the investigators and prosecutors to pursue the different activities of foreign terrorist fighters.200

Article 9 has been extensively amended by the European Parliament, as the whole second

section (Article 9(2)) was added by the EC after the first reading and thus at a quite late stage

of the legislative procedure.201 Similarly to Article 9(1), Article 9(2) goes further than the

Additional Protocol, as it obliges the Member States to criminalise inbound travel, which was

not criminalised by the Additional Protocol.202 Article 9(2) gives the Member states two options

for the execution of this criminalisation of inbound travel to the EU.203

The first option is to criminalise travelling to a Member State for the purpose of committing or

contributing to the commission of terrorist acts in accordance with Article 9(2)(a). This option

prohibits the same conducts as Article 9(1), but instead of outbound travel it focuses on inbound

travel.204 The difference between 9(1) and 9(2)(a) is therefore that 9(1) criminalises travelling

from a Member State to another country, whilst 9(2)(a) criminalises the same conduct when the

perpetrator is travelling to the Member State in question.

The second option is to criminalise preparatory acts in accordance with Article 9(2)(b). These

preparatory acts are to be undertaken by a person entering the Member State in question with

the intention to commit or contribute to the commission of a terrorist attack. As examples of

what constitutes as preparatory acts, the directive mentions planning or conspiracy with the aim

of committing or contributing to a terrorist offence.205

As a summary, Article 9 criminalises both travelling abroad for terrorism and returning to the

EU with the purpose of carrying out or aiding in terrorist offences. Consequently, the article

aspires to “stem the flow of foreign terrorist fighters”.206 This article is furthermore seen as one

of the key provisions for the European Parliament in the fight against terrorism.207

moreover means a group that is not randomly formed for the immediate commission of an offence and that does

not need to have formally defined roles for its members, continuity of its membership or a developed structure.

See Article 2(3) of the Terrorism Directive. 200 COM(2015) 625 final, p. 17. 201 Caiola, 2017, p. 420; Outcome of the European Parliament's first reading, p. 36. 202 Compare Article 9(2) of the Terrorism Directive with Article 4 of the Additional protocol. 203 The return of foreign fighters to EU soil – Ex-post evaluation by EPRS, 2018, p. 7f. 204 Caiola, 2017, p. 420; The return of foreign fighters to EU soil – Ex-post evaluation by EPRS, 2018, p. 8. 205 Recital (12) of the Terrorism Directive. 206 Recital (12) of the Terrorism Directive. 207 Follow up of the second trilogue of 8 September 2016, p. 2.

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6.2 Analysing Article 9 from the perspective of legal certainty

Similarly to the scrutiny of legal uncertainty in Article 8, Article 9 will hereafter be analysed

through the three demands outlined in the theoretical framework: the formal demands of

predictability and legality and the substantial demand for reasonability.

6.2.1 Formal elements of legal certainty

Regarding the formal demand of predictability, concerns were raised already in an early stage

of the legislative process by the EESC.208 In the first proposal for the directive, the crime was

named ‘travelling abroad for terrorism’.209 The EESC held this definition of ‘for terrorism’ in

the proposition as “extremely unclear” and stated that the situation might be clear in situations

where someone organizes an attack or takes part in terrorist training, but that it is far from clear

when someone participates in an uprising, armed rebellion or civil war in e.g. Syria. 210 As

further examples, the EESC brings up if participation in a quasi-conventional war would be

considered travelling abroad for terrorism and if European combatants fighting in Syria

alongside Kurdish soldiers who are opposing Daesh would also commit a crime in accordance

with Article 9.211 In addition, there might be other cases of European soldiers fighting alongside

insurgent groups, which are classified as terrorist groups by the national governments of the

country in which they are fighting or by third governments.212 This uncertainty of how the

prohibition could be applied resulted therefore in a possible risk of arbitrary use of the offence.

After the opinion of the EESC was taken into consideration, the article was changed to

‘travelling for the purpose of terrorism’.213. Simultaneously, the intent for travelling to join or

assist a terrorist group was specified after the first reading to become “with knowledge of the

fact that such participation will contribute to the criminal activities of such a group as referred

to in Article 4”.214 Both of these clarifications can be considered commendable amendments

from a perspective of legal certainty, as they made the provision in Article 9(1) slightly more

foreseeable, since the intent became more specific. Nevertheless, as the matter of what

constitutes as terrorism is still rather unclear as demonstrated in Chapter 4.1.3, this alteration

might not completely reduce the risks expressed by the EESC.

208 Opinion of the EESC, para. 3.2.2.5. 209 COM(2015) 625 final, p. 30. 210 Opinion of the EESC, para. 3.2.2.5. 211 Opinion of the EESC, para. 3.2.2.5. 212 Opinion of the EESC, para. 3.2.2.5. 213 Outcome of the European Parliament's first reading, p. 36. 214 Outcome of the European Parliament's first reading, p. 36.

41

Continuing to the demand for legality through a clear and precise legislation, the above-

mentioned amendments also resulted in Article 9(1) being slightly more precise. Nevertheless,

there has been further problems with legality in the EU’s legislative procedure with Article

9(2).215 Particularly regarding the concept of “preparatory act” found in Article 9(2)(b) of the

Terrorism Directive.216 As previously mentioned, Article 9(2)(b) was added to the article quite

late in the legislative procedure.217 The article criminalises preparatory acts of a person entering

a Member State, if these preparatory acts are conducted with the intent to commit or contribute

to a terrorist offence. Concerns regarding the vague formulation of this prohibition were uttered

by numerous members of the European Parliament, but the formulation was still accepted.218

What is mostly problematic with Article 9(2)(b) from the perspective of legal certainty, and

more specifically the demand for legality, is the fact that these “preparatory acts” are not defined

anywhere in the directive. The term is therefore vague as to what constitutes as preparatory acts

and unclear when these acts should take place, if it is before, simultaneously or after entering a

Member State.219 Accordingly, the predictability and clarity of this prohibition is questionable.

The case Intertanko220 is relevant in this regard, as the CJEU had to take a stand on whether the

phrase “serious negligence” in Article 4 of the directive in question infringed the principle of

legal certainty.221 In this case, the focus was on whether the article is clear and precise enough

for individuals to foresee what their obligations are.222 The scrutinised article of the directive

obligated the Member States to punish ship-source discharges of polluting substances if the act

was committed “with intent, recklessly or by serious negligence”, without defining these

concepts.223 The claimants therefore submitted that as the directive does not define the concept

of ‘serious negligence’, the persons concerned cannot determine the “degree of severity” of the

rules that they have to follow. As a result, they claimed that the directive lacked clarity.224

215 Caiola, 2017, p. 414. 216 Caiola, 2017, p. 414. 217 See Outcome of the European Parliament's first reading, p. 36. 218 Caiola, 2017, p. 414f. 219 Caiola, 2017, p. 421. 220 Case C-308/06 Intertanko. 221 Case C-308/06 Intertanko, para. 29(4). The directive in question was the Directive 2005/35/EC of the

European Parliament and of The Council of 7 September 2005 on ship-source pollution and on the introduction

of penalties for infringements. 222 Case C-308/06 Intertanko, para. 68 in conjunction with para 71. 223 Case C-308/06 Intertanko, para. 72. 224 Case C-308/06 Intertanko, para. 68.

42

The CJEU acknowledged that the concept of ‘serious negligence’ was indeed not defined in the

directive, but pointed out that the concept corresponded to “tests for the incurring of liability

which are to apply to an indeterminate number of situations that it is impossible to envisage in

advance and not to specific conduct capable of being set out in detail in a legislative measure,

of Community or of national law”.225 In other words, it was not possible to define all imaginable

situations in which ‘serious negligence’ could occur. The court further stated that the concept

of ‘serious negligence’ is both used and fully integrated into the Member States legal systems,

and that the actual definition and applicable penalties are correspondingly those within the

national legislations.226 Thus, the directive’s criminalisation of ‘serious negligence’ without

defining this concept did not result in a violation of the principle of legal certainty in this case.227

It is interesting to speculate if the CJEU would end in the same conclusion, if Article 9(2)(b)

and the concept of ‘preparatory acts’ would be scrutinised by the CJEU in a similar manner.

This, as the CJEU could use the same argument of the impossibility to foresee all thinkable

situations while drafting the legislation. However, the concept of ‘serious negligence’ refers to

the intent, and this form of intent is commonly used in the Member States, whilst ‘preparatory

acts’ refers to criminal conducts and thus to the actions taken. What constitutes as preparatory

acts differs substantially from crime to crime, and therefore the concept of ‘preparatory acts’

does not have the same kind of consistency in the Member States national legislations’ case law

as the concept of ‘serious negligence’. Besides, the Terrorism Directive’s recital mentions

‘planning or conspiracy’ to commit a terrorist offence as examples of what could constitute as

preparatory acts.228 The precise meaning and scope of these concepts is even more unclear, and

there is no further guidance on when the offence is completed. Consequently, it is neither clear

nor precise what the actual acts that the provision criminalises are. The lack of a definition for

‘preparatory acts’ should thus result in more legal uncertainty than in the case of Intertanko.

Therefore, I argue that Article 9 in the Terrorist Directive infringes on the principle of legal

certainty’s formal elements, particularly the demand for legality. This is motivated mostly by

the unclear criminalisation of preparatory acts in Article 9(2)(b), which does not define what

the criminalised conducts are or when they should take place.

225 Case C-308/06 Intertanko, para. 72 and para. 73. 226 Case C-308/06 Intertanko, para. 78. 227 Case C-308/06 Intertanko, para. 79. 228 Recital (12) of the Terrorism Directive.

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6.2.2 The substantial element of legal certainty

Finally, the substantial element of legal certainty, namely the demand for reasonability is

analysed. As outlined in the theoretical framework, this evaluation focuses on whether the

legislation is reasonable in the sense of being consistent with values in the EU regarding

individual rights and freedoms. Similar to Article 8, Article 9 criminalises normally lawful

activities, i.e. travelling or preparing for travel, if those are done with terrorist intent. Therefore,

all individuals who travel to another country can potentially be affected by this provision. The

EC and the European Parliament states in this regard that even if the seriousness of the threat

of the foreign terrorist fighters allows for a strong response, this response should be completely

compatible with fundamental rights and freedoms.229 They thus argue, that Article 9 fulfils this,

as “Article 9 is only concerned with the criminalisation of the act of travelling under very

particular conditions, and with a specific intent as to the purpose of the travelling”.230 Yet, even

if the EC and European Parliament declares this to be the case, it does not ensure it to be true.

In the EC’s first proposal for the directive, not only outbound travel to third countries was

criminalised, but also travelling within the EU as well as from a third country into the EU. They

did also not differentiate Member State’s nationals or residents from third-country nationals.231

Even though this proposal was supported by the European Parliament, the Council expressed

concerns regarding if the proposed offence sufficiently respects Article 3 of the Fourth Protocol

to the ECHR stipulating that "No one shall be deprived of the right to enter the territory of the

State of which he is a national".232 The final provision in the Terrorism directive can be seen as

a compromise, as it allows Member States to decide on criminalising inbound travel to the EU

either through the act of travelling for terrorism or as a preparatory act.233 This compromise

does still not erase the fact that criminalising travelling to an EU citizen’s own state is allowed.

The EU’s new offence of travelling abroad for terrorist purposes can therefore restrict the

fundamental right to move and reside freely within the territory of the Member States as

guaranteed under Article 21(1) of the TFEU and Directive 2004/38/EC. 234 The Directive

2004/38/EC however permits the restriction of free movement if it is motivated by policy and

229 COM(2015) 625 final, p. 18. 230 COM(2015) 625 final, p. 18. 231 Follow up of the second trilogue of 8 September 2016, p. 2. 232 The return of foreign fighters to EU soil – Ex-post evaluation by EPRS, 2018, p. 8; Article 3 of the Fourth

Protocol to the ECHR. 233 The return of foreign fighters to EU soil – Ex-post evaluation by EPRS, 2018, p. 8. 234 COM(2015) 625 final, p. 14.

44

public security, which includes prevention of crime.235 Thus, the EU refers to this exception in

the proposal as to why Article 9 might not be consistent with individual rights and freedoms.236

It is in this regard notable that the Terrorism Directive both states that Article 9 should be “fully

compatible with fundamental rights and freedoms” and simultaneously admits that Article 9

possibly restricts the freedom of movement. 237 Even if a restriction on the freedom of

movement is allowed in some specific cases, resulting in the restriction not constituting in a

violation of the freedom, the restriction in this case cannot be seen as proportionate as not even

an Impact Assessment was conducted before the new directive.238 The EC stated in the proposal

for the directive, that “Given the urgent need to improve the EU framework to increase security

in the light of recent terrorist attacks including by incorporating international obligations and

standards, this proposal is exceptionally presented without an impact assessment”.239 This lack

of an Impact Assessment has been vastly criticised by Amnesty International, the ICoJ, and

OSJI and OSEPI in their Joint Submission, as the absence of an appropriate examination of the

impacts of this directive increases the risks this directive poses on the human rights and

freedoms.240 Likewise, The Meijers Committee has stated that the proportionality of the new

offence of travelling for terrorism has not been sufficiently demonstrated, and found Article 9

to be “too loosely defined for such far-reaching restrictions” on the freedom of movement.241

Amnesty International, the ICoJ, and OSJI and OSEPI observed in their Joint Submission

further issues with the possible impact of Article 9, mainly on the freedom to leave any country,

including one’s own, which is a part of the right to freedom of movement. This right can only

be restricted when it is strictly necessary and proportionate and for a legitimate purpose. 242 The

Joint Submission thus voiced concerns of the article not being specific enough to meet the

demands for allowing such restrictions. They also stated that Article 9 should be worded with

greater precision, to ensure that the preparatory acts have a “sufficiently close (proximate)

connection to the commission of the principal offence, with intent, and a real and foreseeable

risk that such principal criminal conduct would in fact take place”.243

235 Directive 2004/38/EC, Chapter VI, especially Article 27; See also recital (22) of the Directive 2004/38/EC. 236 COM(2015) 625 final, p. 14. 237 Compare COM(2015) 625 final, p. 14 with p. 18. 238 For the lack of an Impact Assessment, see COM(2015) 625 final, p. 12. 239 COM(2015) 625 final, p. 12. 240 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 5. 241 The Meijers Committee comments on the EC's proposal for a Directive on combating terrorism, 2016, p. 6. 242 Article 2 in the Fourth Protocol to the ECHR. 243 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 12.

45

Furthermore, as the terrorist intent is diffuse and hard to prove, it leads to probable difficulties

in the prosecution of these offences. An illustrating example can be taken from Svea Court of

Appeals in Sweden, in which the terrorist intent was tried in conjunction with the offence of

travelling for the purpose of terrorism. 244 In this case, the prosecutor did successfully

demonstrate an intent of the defendant to join an extremist group in Syria that had connections

to Al-Qaida. The prosecutor did, however, not succeed in proving that the defendant also had

an intent to commit a terrorist offence. Thus, the court reaffirmed a lower court’s decision and

the defendant was acquitted.245 Accordingly, the critical element of prosecuting is proving the

intent. This might lead to the prohibition being more of a preventative norm than an actually

effective tool in the fight against terrorism.246 The preventative norm of a criminalisation is

nonetheless limited and will not stop people from travelling to join terrorist organisations.247 It

is thus questionable whether it is motivated to restrict the freedom of movement, if it is only to

create a preventative norm that might not even be effective in its practical application in court.

Additionally, the Swedish professors Cameron and Jonsson Cornell criticised the offence of

travelling for the purpose of terrorism by pointing out that a fundamental principle within a

Constitutional state is that thoughts cannot be criminalised, only actions. Subsequently, the

intent to commit a crime must be embodied in an act that can be seen as dangerous in itself, and

for example buying a train ticket or leaving your home does not fulfil this demand.248 Therefore

it is also problematic that the EU has not specified when the travelling needs to take place. The

offence could consequently be completed already when the travel with a terrorist intent is

begun, resulting in a need for an examination of the traveller’s intentions.249 The Meijers

Committee has in this regard observed, that in the field of terrorism there is a higher risk for the

national authorities to conclude these intentions from religious beliefs or ideologies, which

creates a risk of Muslims becoming targeted in a disproportioned manner in the application.250

This is particularly problematic as the term ‘terrorism’ is already applied more easily to acts

244 Svea Court of Appeals judgement 2016-12-09 in B 6344-16. It is notable that the provision of travelling for

the purpose of terrorism in this case was implemented into the Swedish national legislation based on the UNSCR

2178 already in 2010, thus before the Terrorism Directive. The result would, however, probably be the same

even after the Terrorism Directive, as the question whether the prosecutor could prove that there is an intent to

not only to join but also to contribute to the criminal activities of the terrorist group would likely remain. 245 Svea Court of Appeals judgement 2016-12-09 in B 6344-16 p. 1 and 5; Cameron & Jonsson Cornell, SvJT

2017, p. 729. 246 Cameron & Jonsson Cornell, SvJT 2017, p. 727. 247 Cameron & Jonsson Cornell, SvJT 2017, p. 728. 248 Cameron & Jonsson Cornell, SvJT 2017, p. 729. 249 Cameron & Jonsson Cornell, SvJT 2017, p. 728. 250 The Meijers Committee comments on the EC's proposal for a Directive on combating terrorism, 2016, p. 4.

46

made by Muslims perpetrators than others.251 As an example, the only official terrorism crime

in Finland has been one knife attack in the city of Turku, where the perpetrator was a Muslim

who claimed to be an ISIS soldier.252 This was the “first” terrorist attack in Finland, even though

similar attacks had been carried out before where the label ‘terrorism’ could easily have been

opted for.253 In the same way there exists a risk of Muslims being disproportionately targeted

in the application of Article 9, which is further amplified by the focus on jihadist terrorism in

EU’s counterterrorism measures, as demonstrated in Chapter 3.3.

Article 9 is consequently not consistent with the EU’s values of individual rights and freedoms,

and neither are the requirements to lawfully restrict these freedoms fulfilled. Even if terrorism

could constitute as a legitimate purpose for restricting the right to free movement, the provisions

are not specific enough to be seen as strictly necessary to motivate such infringements. It is

furthermore unclear what the extent of the article’s criminalisation are in order to accurately

evaluate whether the restrictions would be proportionate. There is also a risk of an unreasonable

and discriminating outcome, as thoughts rather than actions are being criminalised. Therefore,

in the light of the article’s unclear scope, diffuse formulations and insufficiently studied impact

of the prohibition, Article 9 cannot be regarded as consistent with the demand for reasonability.

6.3 Conclusions

In conclusion, Article 9 exhibits legal uncertainty regarding both the formal and substantial

elements. Particularly, the criminalisation of ‘preparatory acts’ raises concerns as it is unclear

what these acts consists of. Thus, the legislation is neither clear nor precise enough to fulfil the

demand of legality. It is consequently not foreseeable for individuals as to what their obligations

are. This furthermore results in the risk for the demand of predictability to not be satisfied, as

an unclear legislation increases the risk for arbitrary use. Neither is it certain that the restriction

on the right to freedom of movement is proportionate, as Article 9 is too diffuse in its current

form. Accordingly, it restricts fundamental rights and freedoms in the EU in ways that are not

consistent with the demand for reasonability. To conclude, the prohibition of travelling for the

purpose of terrorism is not satisfying the demands of the principle of legal certainty.

251 Malkki & Sallamaa, 2018, p. 862. 252 Yle News, Finland’s first terror attack: Life sentence for Turku stabber [https://yle.fi/uutiset/osasto/news/

finlands_first_terror_attack_life_sentence_for_turku_stabber/10257371] 2020-02-07. 253 Malkki & Sallamaa, 2018, p. 863 in conjunction with p. 869 and Yle News, Finland’s first terror attack: Life

sentence for Turku stabber [https://yle.fi/uutiset/osasto/news/finlands_first_terror_attack_life_sentence_for_

turku_stabber/10257371] 2020-02-07.

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7 Final analysis and proposal for de lege ferenda

7.1 Legal uncertainty in the Terrorism Directive’s articles

The offences of receiving training for terrorism and travelling for the purpose of terrorism are

both offences related to terrorism, criminalising conducts that can be comprehended as

preparatory stages to the main terrorist offence. Noteworthy in this regard is that the EESC

considers it dangerous for any democracy to legislate against anticipated crimes, in other words

criminalising offences that have not yet been committed.254 Terrorism is however perceived as

such a serious threat to the EU, which would motivate these preventative measures. The

seriousness of the terrorism threat might, however, be exaggerated by the EU, particularly as

Europe is the most peaceful region in the world.255 Nevertheless, the fear of foreign terrorist

fighters is evident.256 Therefore, the EU’s criminalisation of the new prohibitions might be

motivated. These measures should, however, always respect the principle of legal certainty.

As both the provision of receiving training for terrorism and travelling for the purpose of

terrorism criminalise otherwise lawful activities if they are conducted with a terrorist intent,

they place significant weight on the definition of terrorism and the ‘terrorist intent’. Using

vague terminology together with the ongoing problems of establishing 'terrorist intent' bears a

risk of creating a conflict between security and human rights.257 Therefore, when the problems

regarding the terrorist intent in Article 3 are combined with the diffuse acts criminalised through

Article 8 and 9, the result becomes prohibitions that clearly lack legal certainty.

The Meijers Committee has observed in this regard that when the acts (actus reus) in the

provisions cannot differentiate normal activities from criminal offences, an individual’s

intention (mens rea) becomes the crucial element. As earlier shown there is a higher risk of

such intentions being concluded from religious beliefs or ideologies, which creates a risk of

particularly Muslims becoming disproportionately targeted.258 It is therefore crucial to clarify

the terrorist intent in order to avoid a specific religious group getting discriminated and the

application thus becoming uneven, as it leads to both the distinct risk of arbitrary application of

the prohibitions in Article 8 and 9 and in unreasonable outcomes.

254 Opinion of the European Economic and Social Committee, 1.5. 255 Global Peace index 2019, p. 15. 256 Babanoski, 2020, p. 11. 257 The return of foreign fighters to EU soil – Ex-post evaluation by EPRS, 2018, p. 8. 258 The Meijers Committee comments on the EC's proposal for a Directive on combating terrorism, 2016, p. 4.

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What is furthermore problematic is that the conducts in Article 8 and 9 could take place

temporally close to an upcoming terrorist offence, but they could just as well occur months and

even years before the planned terrorist attack, assuming that there even exists a specific plan.

This leads to a very weak causal or proximate link to the main terrorist offence, as Amnesty

International, the ICoJ, and OSJI and OSEPI have pointed out.259 A result of this weak link is

consequently the difficulty to justify the restrictions that these offences put on fundamental

freedoms as being necessary and proportionate for legitimate aims, such as combatting serious

crime and protecting national security.260 Subsequently, Amnesty International, the ICoJ, and

OSJI and OSEPI recommend that the prohibitions are clarified in this regard.261 The lack of

proximity between the criminalised conduct and the main terrorist offence in the current

formulation of the prohibitions accordingly results in the legislation being unreasonable. This

weak causal link furthermore results in an unclear legislation that lacks predictability, as it is

not even remotely clear what is criminalised. When the outcome of the application becomes

unpredictable, there also exists a risk for arbitrary use of the provisions.

As the aspects of the fundamental principle of legal certainty have not been properly assessed

before the Terrorism Directive, it gives the impression that the legislative process has been

rushed through, without appropriate considerations of the impacts of the legislation. This is

further emphasised by the absence of an Impact Assessment. The Meijers Committee has given

a similar opinion, and they additionally argued that this hurried legislative procedure does not

respect the importance of constructing a balanced legal response to the threat of terrorism. This,

particularly, as the directive gives far-reaching competences that can be exercised already at

quite an early stage and might result in extensive impacts on individuals’ lives.262

The Meijers Committee has further criticised the EU’s lack of a critical assessment of the

possible impact of the prohibitions. They stated that “The fact that international obligations in

this area have already been adopted does not discharge the EU legislature of the obligation to

make its own critical assessment of these measures, especially since these existing international

obligations have been adopted without much democratic oversight and scrutiny”. 263 The

critique by Meijers Committee is justified because it is crucial for the EU to make their own

259 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 4. 260 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 4. 261 Joint Submission by Amnesty International, the ICoJ, and OSJI and OSEPI, p. 4. 262 The Meijers Committee comments on the EC's proposal for a Directive on combating terrorism, 2016, p. 2. 263 The Meijers Committee comments on the EC's proposal for a Directive on combating terrorism, 2016, p. 2.

49

evaluation of the conformity of a new legislation with the fundamental principles and values in

the EU. This is particularly significant since the EU’s counterterrorism measures, as

demonstrated in the historical context, tend to be ‘crisis-driven’. It appears as if it has been

more important to quickly create new offences after major terrorist attacks than it has been to

create sustainable and well-reasoned legislation. This seems to have occurred for the new

prohibitions as well.

As the EU has created an unspecific and far-going demand for criminalising acts that are not

clearly defined, it could further be seen as the EU overstepping their competences on the area

of EU Criminal Law. Article 83 TFEU gives, as previously mentioned, the EU the competence

to create minimum rules for defining certain crimes and their requisites, including for terrorism.

Thus it is questionable, if the EU has gone too far in the Terrorism Directive, as they arguably

demand more than just minimum repressions from the Member States. This is particularly

troublesome in conjunction with the legislation being ‘crisis-driven’ and legally uncertain.

Accordingly, it is safe to conclude that the prohibitions in the Terrorism Directive have serious

problems with the principle of legal certainty. This legal uncertainty is mostly because of the

unclear and diffuse formulations in the articles, the diffuse intention being the crucial element

and the lack of a strong causal link to the main terrorist offence. These considerations are

general in the sense that they constitute severe issues with legal certainty in both provision of

receiving training for terrorism and travelling for the purpose of terrorism.

Beside these general remarks, the most acute problems for the articles from a perspective of

legal certainty can be summarised as follows: Article 3 is problematic due to the vague

definition of terrorism, which is unclear, not precise enough and enables the possibility for

arbitrary application, e.g. regarding hackers. Furthermore, Article 3 is unreasonable as it

equates threatening to commit a terrorist offence with actually committing one. Continuing to

Article 8, the main issue lies in the criminalisation of ‘self-study’, as it both results in an unclear

and unpredictable legislation, and an unreasonable infringement in the freedom to communicate

and receive information. Finally, the most critical problem with Article 9 lies in the

criminalisation of preparatory acts, as it is unclear what these conducts are and when they

should occur, resulting in an uncertainty of what is criminalised. Article 9 also restricts freedom

of movement in an unproportioned manner, which leads to an unreasonable legislation.

Consequently, these are the main issues that the upcoming chapters will focus on.

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7.2 Proposal for de lege ferenda

As the lack of legal certainty in the articles of the Terrorism Directive has been affirmed, the

question subsequently arises how the legal uncertainty in the prohibitions could be reduced.

Therefore, a proposal of de lege ferenda is hereafter provided to discuss the ways in which the

Terrorism Directive could be improved from the perspective of legal certainty.

7.2.1 How could the EU’s definition of terrorism be improved?

The definition of terrorism is, as formerly affirmed, essential for the other terrorist offences as

they include the demand for terrorist intent. Thus, it is crucial to improve Article 3. Improving

the definition of terrorism and the terrorist intent is however easier said than done, since the

definition of terrorism has such a strong political value, as confirmed in the chapter regarding

the international definition (or lack thereof). Even though misuse of the term terrorism, similar

to that seen in Turkey, appears unlikely in the modern EU, the political atmosphere in Europe

could change. As opposing opinions are a vital part of a democratic society, it is important to

ensure that the definition of terrorism cannot be arbitrary used for political gain.

Consequently, as the EU’s definition of terrorism in its current form theoretically allows for

hackers to be labelled as terrorists, the definition should be amended in this regard to be more

specific. This could, for example, be achieved by clarifying that it is not enough for the intent

in 3(1)(d) that the act is committed intentionally and with the aims in Article 3(2), the intent

also cannot be to spread information to the public or otherwise acting in the public’s interest.

Even though this hypothetical example lacks clarity of what would be considered ‘acceptable’

spreading of information or what can be classified as acting ‘in the public’s interest’, and is

thus far from an optimal solution, it would nevertheless be an improvement from the current

legislation. It would be the legislator’s duty to conduct a thorough evaluation (including an

Impact Assessment) of how the definition of terrorism and terrorist intent should be specified.

The current definition of terrorism moreover equates threatening to commit a terrorist offence

with actually committing one, which is unreasonable. Thus, the definition should completely

remove the prohibition in Article 3(1)(i) in accordance with the recommendations by EESC.

Therefore, besides the removal of Article 3(1)(i), I find it is necessary to clarify the definition

of terrorism and terrorist intent to reduce the legal uncertainty. It could even be motivated to

differentiate between the various forms of terrorism intent to allow for a more specific definition

of what exactly constitutes as ‘terrorism’, to reduce the legal uncertainty.

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7.2.2 How could the legislation be improved regarding Article 8?

Since the criminalisation of ‘receiving training for terrorism’ especially targets self-learners

and individuals ultimately acting alone, it could be an efficient contribution to the counter-

terrorism measures regarding lone-wolf terrorists. However, Article 8 in its current form is too

broad and unspecific. As the criminalisation of self-study might further be unconstitutional, this

results in such grave issues regarding legal certainty that the article needs to be amended. From

a perspective of legal certainty, the most crucial problems are the criminalisation of self-study

and the articles diffuse formulation, which results in a weak proximate link between the

receiving of the training and the main terrorist offence.

Therefore, I find it necessary to specify the intent in Article 8 in accordance with Amnesty

International, the ICoJ, and OSJI and OSEPI’s recommendation, to include a requirement of

the receiving of the training to be temporally close to an upcoming terrorist offence. The

training should also be an important element in the planned terrorist attack. In other words, the

planned terrorist offence could not happen without the receiving of the training. In the practical

application of the prohibition, this specified intent could be shown for example through the

perpetrator’s plans of how and when the planned terrorist attack will occur.

Additionally, I find it motivated to adopt the original formulation in the Additional Protocol

and correspondingly only criminalise receiving training for terrorism from another person or

terrorist organisation as an offence in itself. This would result in the provision being more

specific, as the scope of the criminal conduct would be narrowed. Consequently, Article 8

would be more consistent with legal certainty.

Self-studying should, however, not be completely de-criminalised. Instead of being an

independent crime, learning how to commit and actively planning for a specific and upcoming

terrorist offence could be perceived as a begun attempt to commit the main terrorist offence.

Thus, in some very specific cases in which the learning would be in a temporally close

connection to a planned attack, self-studying could be seen as an attempt to commit a terrorist

offence as defined in Article 3. The difference would accordingly be that receiving training for

terrorism from someone else is an offence in itself, if a terrorist intent can be proven. Whereas

self-learning would only be criminal in exceptional cases, where it can be directly linked to

clear and detailed plans to commit a terrorist attack in the foreseeable future and thus seen as

an initiated attempt to commit a terrorist attack.

52

7.2.3 How could the legislation be improved regarding Article 9?

As previously mentioned, Article 9 aims to specifically combat the threat that foreign terrorist

fighters pose to the EU. Nevertheless, Article 9 has severe problems from the perspective of

legal certainty regarding both formal and subjective elements. The most critical problems lie in

the lack of a close temporal proximity between the travelling and the planned terrorist offence,

the unreasonable infringement on the freedom of movement and in the absence of a definition

for what constitutes as ‘preparatory acts’ in Article 9(2)(b).

Accordingly, a definition of what constitutes as these preparatory acts in Article 9(2)(b) should

first of all be included. Regarding the argument of the impossibility to foresee all possible

situations made by the CJEU in the case Intertanko, it might be a motivated excuse for defining

‘serious neglect’, but not regarding ‘preparatory acts’, as neglect is the absence of an act, whilst

‘preparatory acts’ are actively performed conducts. Thus, not defining these acts results in an

unclear legislation and in the impossibility to determine exactly what is criminalised. A specific

definition or list of these preparatory acts is therefore motivated and should be included in the

Terrorism Directive to reduce the legal uncertainty.

To tackle the problems raised from of the lack of demand of temporal proximity between

travelling and the planned terrorist attack in the legislation, Article 9 should be specified in a

similar manner as proposed for Article 8. Consequently, a requirement of the travelling being

temporally close to the planned terrorist offence should be added. Correspondingly to the

suggestion for Article 8, this could be shown through detailed plans of when and where the

terrorist offence will take place. The national authorities must therefore have actual evidence

of upcoming plans to commit or contribute to a terrorist attack before they can prosecute

travelling for the purpose of terrorism. This would result in a clearer and more precise offence.

As the Member States’ authorities would have to prove the upcoming or planned terrorist attack,

the risk of arbitrary application would be reduced, resulting in better predictability. These

amendments could also lead to a more reasonable outcome, as it would hopefully decrease the

risk of discriminating or uneven application. With a more precise legislation, restrictions on the

freedom of movement could be considered more proportional. However, an assessment of the

impacts of the prohibition would have to be conducted for a proper evaluation regarding the

proportionality. Nevertheless, these adjustments would make Article 9 more consistent with the

principle of legal certainty, in the light of both the formal and substantial elements.

53

7.3 Concluding remarks

Even if terrorism is perceived as one of the biggest security threats to the EU, the fundamental

principle of legal certainty cannot be compromised. Therefore, the prohibitions introduced by

Article 8 and 9 need to be amended, as well as the definition of terrorism. A summarisation of

my suggestions de lege ferenda can be presented as follows:

1) Article 3: The definition of terrorism should be revised; this could be achieved by dividing

the terrorist offence into sub-categories based on the differing intent. The definition should

further, in accordance with the EESC recommendations, remove Article 3(1)(i) because a

threat to commit an offence should never be equal to actually committing one.

2) Article 8: In line with the recommendation by Amnesty International, the ICoJ, and OSJI

and OSEPI, the article should add requirements of the receiving of the training to (a) be

temporally close to an upcoming terrorist offence and (b) enabling the completion of the

planned terrorist offence. Furthermore, the EU should amend the prohibition to only

criminalise receiving training for terrorism from another person or from a group or

association as a criminal offence in itself, and only prosecute self-learning in exceptional

cases as a begun attempt to commit a planned and imminent terrorist offence.

3) Article 9: In conjunction with the prohibition of ‘preparatory acts’ in Article 9(2)(b), a

definition of what constitutes as ‘preparatory acts’ should be included. This addition could

either be integrated in Article 9(2)(b) or in an explanatory text in the recital of the directive.

Moreover, Article 9 should have a similar demand on the travelling occurring in temporally

close proximity with the planned terrorist attack, as suggested for Article 8.

Through these amendments, the articles would become more specific. That would inevitably

result in the application of the articles becoming significantly narrower. However, besides

reducing legal uncertainty, narrowing the scope of the articles would result in the Terrorism

Directive becoming more consistent with the purpose of directives as minimum rules.

In conclusion, through the above-mentioned proposals the prohibitions in Article 8 and 9, as

well as Article 3, the Terrorism Directive would become more precise and clear to better meet

the demand for legality, which would result in a reduced risk for arbitrary application and lead

to a more foreseeable outcome to meet the demand for predictability. This would further result

in the legislation being slightly more reasonable. Consequently, these suggestions constitute a

solution for how the legal uncertainty in the Terrorism Directive could be decreased.

54

References

Legislation and public materials

International instruments and public materials

Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms

as amended by Protocols Nos. 11 and 14, Rome, 4.XI.1950 [cit. “ECHR”].

Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental

Freedoms, securing certain rights and freedoms other than those already included in the

Convention and in the first Protocol thereto, as amended by Protocol No. 11, Strasbourg,

16.IX.1963 [cit. “Fourth Protocol to the ECHR”].

The Council of Europe Convention on the Prevention of Terrorism, opened for signature in

Warsaw on 16 May 2005 [cit. “the Convention”].

Treaty of Lisbon, Amending the Treaty on European Union and the Treaty Establishing the

European Community (2007/C 306/01), entry into force on 1 December 2009 [cit. “Lisbon

Treaty”].

Report of the Ad Hoc committee established by General Assembly Resolution 51/210 of 17th

of December 1996, 13th session, 29 June to 2 July 2009, United Nations, New York 2009 [cit.

“Report of the Ad Hoc committee”].

Consolidated version of the Treaty on European Union, OJ C 326/13. 26.10.2012 [cit. “TEU”].

Consolidated version of the Treaty on the functioning of the European Union, OJ C 326/47.

26.10.2012. 2012/C 326/01 [cit. “TFEU”].

United Nations Security Council Resolution 2178 (2014) Adopted by the Security Council at

its 7272nd meeting, on 24.9.2014, UN Doc. S/RES/2178 [cit. “UNSCR 2178”].

Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, Riga,

22.X.2015, Council of Europe Treaty Series - No. 217 [cit. “Additional protocol”].

55

EU legislation and public materials

Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams (OJ

L 162, 20.6.2002, p. 1).

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (OJ L

164, 22.6.2002).

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant

and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the

right of citizens of the Union and their family members to move and reside freely within the

territory of the Member States amending Regulation (EEC) No 1612/68 and repealing

Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC,

90/364/EEC, 90/365/EEC and 93/96/EEC.

Directive 2005/35/EC of the European Parliament and of The Council of 7 September 2005 on

ship-source pollution and on the introduction of penalties for infringements.

Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and

cooperation concerning terrorist offences.

The European Union Counter-Terrorism Strategy, The European Union’s strategic

commitment: To combat terrorism globally, and make Europe safer, allowing its peoples to live

in freedom, security and justice, within a framework that respects human rights Brussels,

Council of the European Union, 15 November 2005, 14469/05 [cit. “The European Union

Counter-Terrorism Strategy”].

Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the

exchange of information and intelligence between law enforcement authorities of the Member

States of the European Union (OJ L 386, 29.12.2006, p. 89).

56

Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border

cooperation, particularly in combating terrorism and cross-border crime (OJ L 210, 6.8.2008,

p. 1).

Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework

Decision 2002/475/JHA on combating terrorism.

Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013

on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective

application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for

determining the Member State responsible for examining an application for international

protection lodged in one of the Member States by a third-country national or a stateless person

and on requests for the comparison with Eurodac data by Member States’ law enforcement

authorities and Europol for law enforcement purposes, and amending Regulation (EU) No

1077/2011 establishing a European Agency for the operational management of large-scale IT

systems in the area of freedom, security and justice (OJ L 180, 29.6.2013).

Proposal for a Directive of the European Parliament and of the Council on combating terrorism

and replacing Council Framework Decision 2002/475/JHA on combating terrorism,

COM/2015/0625 final - 2015/0281 (COD) [cit. “COM(2015) 625 final”].

Opinion of the European Economic and Social Committee on the ‘Proposal for a directive of

the European Parliament and of the Council on combating terrorism and replacing Council

Framework Decision 2002/475/JHA on combating terrorism’ (COM(2015) 625 final —

2015/0281(COD)) (2016/C 177/09) [cit. “Opinion of the EESC”].

Proposal for a Directive of the European Parliament and of the Council on combating terrorism

and replacing Council Framework Decision 2002/475/JHA on combating terrorism (14926/15

DROIPEN 164 COPEN 343 JAI 968 CODEC 1644 - COM(2015) 625 final) - Opinion on the

application of the Principles of Subsidiarity and Proportionality. ST 6299 2016 INIT -

2015/0281 (OLP) [cit. “Opinion of the Romanian Senate on the application of the Principles of

Subsidiarity and Proportionality”].

57

Joint Submission by Amnesty International, the International Commission of Jurists, and the

Open Society Justice Initiative and the Open Society European Policy Institute on the European

Commission’s proposal for a Directive of the European Parliament and of the Council on

Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA on

Combating Terrorism (AI Index: IOR 60/3470/2016), February 2016 [cit. “Joint Submission

by Amnesty International, the ICoJ, and OSJI and OSEPI”].

The Meijers Committee comments on the European Commission's proposal for a Directive on

combating terrorism, proposals made in the Council and the European Parliament's draft report

from March 2016. CM1603 [cit. “The Meijers Committee comments on the EC's proposal for

a Directive on combating terrorism, 2016”].

Proposal for a Directive of the European Parliament and of the Council on combating terrorism

and replacing Council Framework Decision 2002/475/JHA on combating terrorism - Follow up

of the second trilogue of 8 September 2016 (12051/16) Brussels, 12 September 2016 (OR. en)

[cit. “Follow up of the second trilogue of 8 September 2016”].

Proposal for a Directive of the European Parliament and of the Council on combating terrorism

and replacing Council Framework Decision 2002/475/JHA on combating terrorism - Outcome

of the European Parliament's first reading (Strasbourg, 13 to 16 February 2017), ST 6338 2017

INIT - 2015/0281 (OLP) [cit. “Outcome of the European Parliament's first reading”].

Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on

combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending

Council Decision 2005/671/JHA [cit. “Terrorism Directive”].

Member States’ preparatory acts

Regeringens proposition 2017/18:174 En mer heltäckande terrorismlagstiftning (from Sweden)

[cit. “Prop. 2017/18:174”].

58

Table of Cases

Cases from the Court of Justice of the European Union

Joined cases 42/59 and 49/59, S.N.U.P.A.T. v High Authority, EU:C:1961:5.

Joined cases C-74/95 and C-129/95, Criminal proceedings against X, EU:C:1996:491.

Case C-63/93, Duff and Others, EU:C:1996:51.

Case C-110/03, Belgium v Commission, EU:C:2005:223.

Case C-344/04, IATA and ELFAA, EU:C:2006:10.

Case C-303/05, Advocaten voor de Wereld, EU:C:2007:261.

Case C-308/06, Intertanko, EU:C:2008:312.

Case C-147/13, Spain v Council, EU:C:2015:299.

Case C‑482/17, Czech Republic v Parliament and Council, EU:C:2019:1035.

Opinions of the Advocate Generals

Opinion of Advocate General Sharpston, delivered on 12 September 2019(1), in Cases

C-542/18 RX-II and C-543/18 RX-II, EU:C:2019:977.

Cases from the Member States’ national courts

Svea Court of Appeals in Sweden, judgement 2016-12-09 in Case no. B 6344-16.

French Constitutional Council, Decision no. 2017-682 QPC of 15 December 2017.

59

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