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# Populism: New Political Parties in Europe, Governments and Ideas and their Support for a Less Integrated Europe

RAISSA RAQUEL DE PAULA ALMEIDA

TALLINN UNIVERSITY OF TECHNOLOGY

ALMEIDARRP@GMAIL.COM

**Abstract:** Populism has become one of the most important and mentioned word in the world of politics. It has been especially important in the European politics of recent period. The very formation of the European Union holds a direct link with the need to make amends in a society that was viciously damaged by the mainstream populist rhetoric of an "us" versus "them". This article analyses current political situation in the EU and the role of populism in it, related consequences and the possible solution scenarios.

**Keywords:** Brexit, European Integration, European Union, EU politics.

## INTRODUCTION

In 2017, the Cambridge University Press chose ‘Populism’ as the word of the year. According to the publication, this choice is made not only based on the most researched words in their online platform during the timeframe of a year, but it also considers the so-called “spikes”, circumstances when that specific word is repeatedly searched much more than usual in particular days, which suggests the occurrence of an event or chain of events directly related with the sought word<fnref n="1" />.

It comes with no surprise that so much attention has been directed over the term populism, especially since for the last few years this phenomenon has grown in representation in both local and international spheres, and issues such as immigration, rising nationalism and economic discontent continue to raise tensions between people and their leaders.

However, populism should not be interpreted as a political phenomenon in itself, and that is because it has a direct link with a global political scenario that has been shaping itself for the last three decades with the advent and development of globalization. This process goes further beyond decreasing the financial, cultural, social, technological and economic barriers between countries and people, and in several cases, one of which Europe is included, this boarder globalization pattern has transformed the ways national and foreign policies interact.

As mentioned, this phenomenon is global, but perhaps it can be seen with unequalled strength in European Union - EU because no other political and economic group has yet reached such a complex and institutionalized interdependence between their member states as the EU has, with the creation of the Single Market, the common currency and the free movement of people. The way the Union has conducted its own establishment and decision making is a clear example of how governments must, in a great number of areas, make joint decisions with other states and institutions that will influence directly their domestic issues<fnref n="2" />.

<footnote n="1">¹ Cambridge University Press (Website). "Populism' revealed as 2017 Word of the Year by Cambridge University Press". November 30, 2017. Accessed November 19, 2018. https://www.cam.ac.uk/news/populism-revealed-as-2017-word-of-the-year-by-cambridge-university-press.</footnote>

<footnote n="2">²Balfour, R., Emmanouilidis, J., Fieschi, C., Grabbe, H., Hill, C., Lochocki, T., Mendras, M., Mudde, C., Niemi, M.K., Schmidt, J. and Stratulat, C. (2016), *Europe's Troublemakers. The Populist Challenge to Foreign Policy*, Brussels: European Policy Centre, p. 17.</footnote>
And while subsidiarity<fnref n="3" />, as one of the main principles of EU Law, assures that decisions are taken as closely as possible to the citizens to be accountable by them, there are certain policy fields falling under EU competence that can really constrain a country's autonomy and impose a challenge to governments that have to remain approachable and accountable to their citizens when their decision-making legitimacy is under scrutiny.

In fact, European countries have become so intertwined in many different areas that unequivocally, the Union can provoke an action in the domestic developments, and at the same time, suffer from a reaction coming from each of its member states domestic policies. What has been seen on recent years is that globalization and this political cooperation/integration have made the lines of concepts such as sovereignty or national identity so faint, with their everchanging and ever evolving meanings, that some citizens feel a big gap between their claims and the Union's Policies<fnref n="4" />.

Thus, the feeling of alienation, lack of connection or representativeness with one's government or plain dissatisfaction with the decisions carried out by a governmental leader can be a political gun in the hands of people willing to promote an agenda against the elites, economic liberalism or internationalization and that is what has been occurring in several European countries as the rise of populist parties and political figures grow, gain support or representativeness in the governments and for some, threat the very existence of the European Union and its integration project.

Understanding the connections between the rise of populism and the European momentum is not an easy task, neither it is to predict if and how the growth of populism in the form of several political parties in different countries can threaten the very existence of the EU or in the very least, how it can influence negatively its integration project.

Overall, this paper aims to shortly explain the meaning of populism, from its historical background to its main characteristics; investigate the reasons behind its popularity and growth inside Europe, highlighting the current main far right populist parties, their approach to EU integration and the challenges they represent. Lastly, this paper intends to discuss alternative measures that could be taken by the European Union and the member states to put populism into a halt.

## "US" VERSUS "THEM": THE POPULIST AGENDA AND ITS CONTRIBUTION FOR A LESS INTEGRATED EUROPE

What is Populism? Where does it come from? What does it eat? Even though the idea of populism is not exactly new, having its first manifestations in the modern society taken back to the 19th century with the Narodnik movement in tsarist Russia and the People's Party in the United States, there is no commonly accepted definition to the term yet<fnref n="5" />.

One of the reasons to this lack of a concept is because the expression populism has been attributed in the last two centuries to a very significative number of different political movements, some so conflicting between themselves that they could be positioned to very different edges of the political spectrum. For instance, populism has been used to define the politically oriented coalition

<footnote n="3">³ European Union Law, EUR-Lex (Website), Glossary, Accessed in November 20, 2018. https://eur-lex.europa.eu/summary/glossary/subsidiarity.html.</footnote>

<footnote n="4">⁴Ibid, p. 16.</footnote>

<footnote n="5">⁵ Surel, Yves. 2011. "The European Union and the Challenges of Populism, in Notre Europe Policy Brief, 27". Accessed in November 20, 2018. http://institutdelors.eu/publications/the-european-union-and-the-challenges-of-populism/?lang=en.</footnote>
of agrarian reformers that sought a change in legislation to give American farmers economic parity with business and the industry in the 19th century, whereas in the 20th century in Latin America, the term is employed to allude to the economic mismanagement, sometimes dictatorial and demagoguery practices of leaders like Argentinian Juan Domingo Perón, Peruvian Alberto Fujimori or Hugo Chávez, from Venezuela<fnref n="6" />.

Currently, in the 21st century, the concept in Europe is largely used to describe political right-wing parties that defend Anti-EU and anti-immigration agendas like the Austrian Freedom Party, the Dutch Party for Freedom, France's National Front, Alternative for Germany, UK Independence Party and so many others; the left-wing Latin American Pink Tide and also both right and leftist groups in the United States, personified by politicians such as Donald Trump and Bernie Sanders.

Hence, there is no precise way to comprehend a term that is far too ambiguous, but an attempt can be made by observing what these different political movements from different political and socio-economical time all have in common.

According to Yves Surel, there are three constants that can be identified in populist speeches, which are:

the reminder (as an extension of the previous point) that all power derives necessarily from the people, a group defined by nationalism or other social criteria (“the people against the powerful”, for example, as shown by Pierre Birnbaum, 1979); the idea that institutions and politicians have undermined this ideal by diverting the exercise of power from its first mission, that of respect for the sovereign people, which gives rise to a rhetoric focusing on betrayal by various elites⁵; and the desire to restore a previous and/or more legitimate order guaranteeing the sovereignty of the people and their representatives<fnref n="7" />.

In sum, populism can be regarded as a ‘thin-centered’ ideology<fnref n="8" /> that very simplistically, divides society in two homogenic and very antagonist groups, the “pure people” and on the other side, the “corrupt elite”. For populists, politics should be an expression of the general will of the people, giving them what they want. And as it was seen, the fact that it is a thin ideology, makes it possible for it to be easily shifted, some might say manipulated, to work alongside “thicker” ideologies like socialism or liberalism, for example.

Interestingly, whichever side of the political scale decides to engage the populist rhetoric believes that only them are fit to make people’s voices heard and people’s wills fulfilled, and that happens due to the fact that populism is by nature exclusive. The “elite” opposed could easily be “foreigners”, “Muslims”, “eurocrats” or “the establishment”, this dichotomy often tries to use people’s will as a way to bypass institutions or vilify opponents, generating a permanent feeling of “us” versus “them”, unable to coexist in harmony<fnref n="9" />.

<footnote n="6">⁶ Muro, Diego. "Let the people rule! Definitions and theories of populism", In *Populism in Europe: from Symptom to Alternative?* edited by Eckart Woertz, p. 9-14. Barcelona: CIDOB, 2017. Accessed November 20th, 2018. https://www cidob org/en articulos cidob report n1 1/let the people rule definitions and theories of populism.</footnote>

<footnote n="7">⁷ Surel, Yves. 2011. "The European Union and the Challenges of Populism, in Notre Europe Policy Brief, 27". Accessed in November 20, 2018. http://institutdelors eu/publications/the-european-union-and-the-challenges-of-populism/?lang=en.</footnote>

<footnote n="8">⁸ Matthews-Ferrero, Daniel. "Populismo europeo contemporáneo y la vuelta de la historia". *Revista CIDOB d'Afers Internacionals* n.119, p. 85-111, September 2018. Accessed in November 21st, 2018. https://www researchgate net/publication/328036611 Populismo europeo contemporaneo y la vuelta de la historia, p. 88-89.</footnote>

<footnote n="9">⁹ Balfour, Rosa. "The (Resistable) Rise of Populism in Europe and its Impact on European and International Cooperation". In *IEMed. Mediterranean Yearbook 2017*. (Barcelona: 2017). p. 56-57. Accessed in November 22nd, 2018. https://www iemed org/observatori/arees-danalisi/arxius-adjunts/anuari/med 2017/IEMed Med Yearbook2017 rise populism europe Balfour.pdf/</footnote>
Without a doubt, populism can be portrait in a pejorative demeanor by the mainstream media, which do not reflect every political group activities and beliefs. In the European case, the presence of populist parties or representatives is not recent, they have been part of the political system since the 1980's, nevertheless, the results of recent elections and exponential growth of populist influences in several countries have raised a red flag to those concerned with the impact of populism in liberal democracies and what the parties' illiberal, nationalist, anti-pluralist or even authoritarian attitudes can represent for European Integration's future.

## THE GROWTH OF POPULIST RADICAL RIGHT PARTIES, THEIR APPROACH AND CHALLENGES TO EU INTEGRATION

Data as recent as June of the current year shows that the European Parliament is currently composed by one Left-wing Populist Party, two Centrist Populist Party and seven Populist Radical Right Party<fnref n="10" />. For the purposes of this research, the analyses will focus under the group composed by the Populist Radical Right Parties – PRRP for two main reasons: first, their political representation composes a majority in comparison with other populist governments/coalitions and second, their anti-establishment and nationalist responses suggest a setback in transnationalization of politics by focusing in national policies that can jeopardize the project of an “ever closer union”.

There is no denial that some of the populist claims are funded in real grievances, that being said, the criticism on integration, globalization and the growing Euroscepticism are actually based on cultural and economic aspects that shouldn't be taken for granted. Nevertheless, it is noticeable that the populist approach is not limited to a mere divergence in policies, if that was the case, populism wouldn't be an issue since dialethic is the very point of democracy. Rather than that, populists tend to claim that they are the only legitimate representative of the “real people” and not the so called “elites” or “establishment”<fnref n="11" />.

Previously, it was highlighted that the EU Law works in a complex multi-level competence when it comes to its policies, applying whenever necessary the principle of subsidiarity. Ironically, it is EU's own framework that makes it such an easy target to blame for the multiple crises that fall upon Europe. EU is a convenient scapegoat to populist onslaught, which uses the criticism over European Integration as means to succeed in their main scope of increasing power and influence in the domestic sphere.

To illustrate, we can point out that the nation-states are actually the ones that hold the competence to deliberate and stablish policies regarding migration, social security, education and culture polices. Be that as it may, the mass discontent of the European citizens when the refugee crisis broke down in 2015 fell mostly upon Brussels, even though it was not competent to legislate on the matter. For political parties, transferring blame to an abstract and impersonal notion of EU is easier than facing potential unpopularity for measures approved by them<fnref n="12" />.

<footnote n="10">¹⁰ Falker, Gerda. Plattner, Georg. "Populist Radical Right Parties and EU Policies: How coherent are their claims?" In EUI Working Papers RSCAS 2018/38. June, 2018. Accessed in November 21st, 2018. http://cadmus.eui.eu/bitstream/handle/1814/56165/RSCAS_2018_38.pdf?sequence=1&isAllowed=y. p. 2.</footnote>

<footnote n="11">¹¹ Buti, Marco, Karl Pichelmann. "European Integration and Populism: Addressing Dahrendorf's Quandary." Seven Things I Learned about the Transition from Communism | VOX, CEPR Policy Portal. February 22, 2017. Accessed in November 20, 2018. https://voxeu.org/article/european-integration-and-populism-addressing-dahrendorfs-quandary.</footnote>

<footnote n="12">¹² Colomina, Carme. "Populism "made in the EU" In *Populism in Europe: from Symptom to Alternative?*, edited by Eckart Woertz, p. 23-26. Barcelona: CIDOB, 2017. Accessed November 20th, 2018. https://www.cidob.org/en/articulos/cidob_report/n1_1/populism_made_in_the_eu.</footnote>
Also, the “distance” from a national perspective between citizens and a massive and bureaucratic European institution might provoke a feeling of “illegitimate representation”, lack of participation in the democratic process and loss of sovereignty by a nation and its citizens, increasing the popularity of populist speeches such as “let’s take back control of our country”.

According to Stefan Lehne<fnref n="13" />, it is unlikely that the EU and the radical-right populists could co-exist since they are fundamentally incompatible, and thus, the rise of this phenomenon and its political representation can carry serious consequences for the future of the European union. The scholar highlights three main threats that these Parties represent to EU: first, the power struggles that can happen between the Old and New Parties inside the European Parliament. Currently, the so called “old establishment” still stand as the majority of representation which can anger the new forces, these last ones often hold prestige and popularity on local or national level, but sometimes are unable to represent their countries in Brussels due to the time lag that national policies take to catch with European Union’s. This time lag in power rotation can from one hand insure stability in periods of turmoil, but at the same time, may portray the EU as lacking legitimacy. Also display Brussel’s apparent inflexibility to new ways of democratic participation.

The second challenge identified by him concerns the functioning of the European Union itself. Rapid change in the political scenario will make it hard for the union to govern considering that the whole political system is based on transnational cooperation, negotiation and stability. Open confrontation can compromise the consensus which is the main working method of the union, and the existence of partners who do not share the same views and values might bring stagnation to the entire system.

The third challenge is the menace that these parties signify to EU’s symbolic role. Anti-austerity agenda, anti-globalization, extreme conservationism opposes directly core values and attributions performed by the union such as free trade, internationalism, protection of sexual, religious and foreign minorities.

At the moment, these core values and European Integration are protected under the EU system, but the political representation is the tool necessary to start implementing change by these Parties. In positions of power, it is possible to support other governments that stand by those ideas, it is possible to exercise real influence in political agendas and lastly, becoming a very real, very personified alternative to power.

Earlier this year, in light of the recent elections and the Populist Radical Right Parties – PRRP getting much more votes than in previous decades, an empirical study was conducted by Gerda Falkner and Georg Plattner for the Robert Schuman Centre for Advanced Studies to evaluate the coherence of the policy-specific demands of different parties within the European Union and how much do they actually agree or disagree when it comes to reforming EU policies<fnref n="14" />.

This evaluation was made by analyzing the Radical Right Parties’ programmatic claims on reforming three specific EU Policy field, they are: *EU Foreign and defense policy issues, Actions against various forms of discrimination and The Internal Market*. Regarding the issue of *EU Foreign and defense policies*, the results found point out that the parties do not have a coherent vision that would implicate in joint action capable of bringing reform. The results also showed that these PRRP’s visions and goals are not converging into the same point and it seems that they are not so strongly nationalists that would completely reject any EU-level policies.

<footnote n="13">¹³ Grabbe, Heather. Lehne, Stefan. “Can the EU Survive Populism?”. Carnegie Europe (Website). June 14, 2016. Accessed in November 22, 2018. http://carnegieeurope.eu/2016/06/14/can-eu-survive-populism-pub-63804</footnote>

<footnote n="14">¹⁴ Falker, Gerda. Plattner, Georg. “Populist Radical Right Parties and EU Policies: How coherent are their claims?” In *EUI Working Papers RSCAS 2018/38*. June, 2018. Accessed in November 21st, 2018. http://cadmus.eui.eu/bitstream/handle/1814/56165/RSCAS_2018_38.pdf?sequence=1&isAllowed=y. p. 11-17.</footnote>
To what concerns the second field, *Actions against various forms of discrimination*, when these parties already were expected to oppose liberal policies, results show a much less incoherent approach from the PRRPs. However, conflicts were found while data was analyzed, showing that in countries like Netherlands with longstanding cultural practice of non-discrimination against LGBTQ communities, the country's political and cultural tradition could impact in the Party's approach to reform of the topic.

Finally, according to the authors, for the third topic explored (*Internal Market*), the incoherence is again the word of order. The controversy resides, from one side, in the wishful liberty to be able to alter norms and standards or end supranational competition policies and the other, countries with different geopolitical orientation and weaker domestic market saw advantages in keeping EU's regulations of services that are of common interest<fnref n="15" />.

It may be too early to draw any assumptions regarding weather or how the Populist Radical Right Parties would impact the reform of EU Policies in case their influence continues to grow in member states governments and inside EU's own institutions. It seems clear that as of right now, the different PRRP's approaches to different matters and even worse, total ideological contradiction among them wouldn't allow the creation of a single unified group in the coming months. However, their power and influence should not be taken likely as something from a distance reality, the status quo is shifting, and the European Union and its member states must shift along with it if they want to remain thriving and existing as a political and economic integrated block.

## CONCLUSION

A celebrated quote from Karl Marx said “*Hegel remarked somewhere that all great, world-historical facts and personages occur, as it were, twice. He forgot to add: the first time as tragedy, the second as farce!*”<fnref n="16" />. If he was correct in that statement, and historical facts are bound to repeat themselves, then the unmerciful pages of history will do well to remind us that there were no societies left unscarred from the polarization and conflicts brought on by populism, be it from left or right wing.

The very formation of the European Union holds a direct link with the need to make amends in a society that was viciously damaged by the mainstream populist rhetoric of an “us” versus “them”. Over 70 years ago, the European countries came together and decided to promote integration and cooperation in order to keep the peace, to protect the minorities, to respect the fundamental rights, to promote economic rebuild and growth by uniting.

Maybe this political moment will mend ties that once bind European citizens together, but in order for that to happen is necessary to acknowledge that there is a problem and that as a problem, it needs to be addressed. But what can be done? Well, there are at least a handful of alternatives proposed by different scholars and specialists as to what should be the European Union to put a halt on populism and get back on track towards the path of integration.

Some of the alternatives proposed in a Report commended by the European Policy Center emphasizes the need for EU Policy Makers need to work on the content of the policies, not only how they are communicated to the citizens. In that same aspect, it also underlines the necessity of

<footnote n="15">¹⁵ Falker, Gerda. Plattner, Georg. “Populist Radical Right Parties and EU Policies: How coherent are their claims?” In EUI Working Papers RSCAS 2018/38. June, 2018. Accessed in November 21st, 2018. http://cadmus.eui.eu/bitstream/handle/1814/56165/RSCAS_2018_38.pdf?sequence=1&isAllowed=y. p. 22-25.</footnote>

<footnote n="16">¹⁶ Marx, Karl. Le 18 Brumaire de Louis Bonaparte. París: Nouveau Monde, 2017 [1852].</footnote>
politicians to engage with newer groups of people beyond their regular constituents, using the current that can play an important role providing the environment for that to happen<fnref n="17" />.

The Report even uses humor to state that the only thing mainstream politics should be coping from the populists it's their online popularity and the easy way they can get their ideas spread among several different groups of people. If communication is key, so is the language used to get the idea through, a relatable vocabulary, with non-technocratic terms might be of aid for policy-makers to engage with the voters.

While these first solutions address mostly how to make mainstream politicians as “popular” as populists, other scholars offer suggestions that involve greater core changes in the EU, like for example how essential it is to deliver common public goods like the strengthening of security and internal and external borders, a common migration, asylum, and refugee policy and also, extending the Single Market’s achievements with the creation of a dedicated fiscal capacity for the Eurozone<fnref n="18" />.

Another important challenge that needs to be addressed by the European Union is the attempt to fill the social gaps caused by globalization through the building of a European Pillar of Social Rights and also ensuring a consistency between European and the nation's action budgets.

Finally, perhaps the most important action measure to be taken by the union is the promotion of a more democratic, transparent and accountable process of decision making by all the European citizens, making these decisions always more accessible and comprehensible by the average man. A clear delimitation of what is the national legislator and what is the European Union's is also a way of keeping the representatives in checks and stop the blaming attribution.

There is no magic formula to prevent populism from growing but fixing and improving on European Union's project is certainly a good way preserve the European values and the international cooperation, but it has to start by capturing the approval of the own European Citizens. The general public feels so distant to the bureaucratic and complex system of regulations that is EU that most of them hardly see it as a democracy, and yet, according to a poll conducted after Brexit in six European Countries<fnref n="19" />, a clear majority of the citizens classify their EU participation as something positive whereas only a small minority would be willing to leave the Euro. As it can be seen, the regular citizens don't blindly embrace populism, they don't even reject the democratic the democratic

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<footnote n="17">¹⁷Balfour, R., Emmanouilidis, J., Fieschi, C., Grabbe, H., Hill, C., Lochocki, T., Mendras, M., Mudde, C., Niemi, M.K., Schmidt, J. and Stratulat, C. (2016), *Europe's Troublemakers. The Populist Challenge to Foreign Policy*, Brussels: European Policy Centre.</footnote>

<footnote n="18">¹⁸Buti, Marco, Karl Pichelmann. "European Integration and Populism: Addressing Dahrendorf's Quandary." *Seven Things I Learned about the Transition from Communism* | VOX, CEPR Policy Portal. February 22, 2017. Accessed in November 20, 2018. https://voxeu.org/article/european-integration-and-populism-addressing-dahrendorfs-quandary.</footnote>

<footnote n="19">¹⁹Fouquet, Jérôme. "Les Européens et le Brexit". Fondation Jean Jaurés. July 15, 2016. Accessed in November 22, 2018. https://jean-jaures.org/nos-productions/les-europeens-et-le-brexit.</footnote>
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Chochia, A., Troitiño, D. R., Kerikmäe, T., & Shumilo, O. (2018). Enlargement to the UK, the Referendum of 1975 and Position of Margaret Thatcher. In *Brexit* (pp. 115-139). Springer, Cham.

Chochia, Archil, David Ramiro Troitiño, Tanel Kerikmäe, Olga Shumilo, and Nicole Lindstrom. "The First European Community and the British Position." In *Brexit*, pp. 59-81. Springer, Cham, 2018.

Colomina, Carme. "Populism "made in the EU" In *Populism in Europe: from Symptom to Alternative?*, edited by Eckart Woertz, p. 23-26. Barcelona: CIDOB, 2017. Accessed November 20th, 2018. https://www.cidob.org/en/articulos/cidob_report/n1_1/populism_made_in_the_eu.

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Grabbe, Heather. Lehne, Stefan. "Can the EU Survive Populism?". Carnegie Europe (Website). June 14, 2016. Accessed in November 22, 2018. http://carnegieeurope.eu/2016/06/14/can-eu-survive-populism-pub-63804.

Keedus, L., Kerikmäe, T., Chochia, A., & Troitiño, D. R. (2018). The British Rebate and the Single European Act: Political Ramifications of an Economic Reform. In *Brexit* (pp. 141-151). Springer, Cham.

Kerikmäe, T., Chochia, A., Troitiño, D. R., & Hrebickova, A. (2018). The First Attempts to Unify Europe for Specific Purposes and British Flexibility. In *Brexit* (pp. 21-32). Springer, Cham.

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Matthews-Ferrero, Daniel. "Populismo europeo contemporáneo y la vuelta de la historia". *Revista CIDOB d'Afers Internacionals* n.119, p. 85-111, September 2018. Accessed in November 21st, 2018. https://www.researchgate.net/publication/328036611_Populismo_europeo_contemporaneo_y_la_vuelta_de_la_historia, p. 88-89.

Surel, Yves. 2011. "The European Union and the Challenges of Populism, in Notre Europe Policy Brief, 27". Accessed in November 20, 2018. http://institutdelors.eu/publications/the-european-union-and-the-challenges-of-populism/?lang=en.
# Current Issues in Internal Security

HELDIN MALMET

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA
HELDINMALMET@GMAIL.COM

**Abstract:** Security has always been an important issue of European agenda, however, recently it has become even more topic for discussion as EU faces difference challenges related to its security and security on its borders. This paper analyses these issues, explaining what are the current perceptions and understanding in the EU.

**Keywords:** European Union, European Security, EU Foreign and Security Policy.

## INTRODUCTION

Who wouldn't want to feel themselves safe and secure at their home, in their homeland, in the country they reside, in European Union. According to the Cambridge dictionary the definition of security is protection of the person, building, organization, or country against threats such as crime or attacks by foreign countries. Way to a period of peace and stability unprecedented in European history. The creation of the European Union has been central to this development. It has transformed the relationship between our states, and the lives of our citizens. European countries are committed to dealing peacefully with disputes and to cooperation through common institutions.

Europe has never been so prosperous, so secure and so free. The violence of the half of the 20th century has given way to a period of peace and stability unprecedented in European History. The creation of the European Union has been central to this development. It has transformed the relation between our states, and the lives of our citizens. European countries have committed to deal peacefully with disputes and cooperating through common institutions.<fnref n="1" />

My research topic choice was not easy. I wanted to select a subject that “speaks” to me, that I feel interested in. Truth be told, I did not know lot about the criminality and terrorism, not more that an average person who follows the daily news-flow does. Recently I have found myself thinking about that subject. I believe I have been driven by my own personal experiences of facing criminal activity as well terrorism from close distance.

Living in the little, rather secure country as Estonia is, we do not consider threat as an everyday issue. I travel several times a year to Brussels and I was on my way to the metro station in Brussels, on March 2016, while the bombing inside the station took place. It was rather awful experience that made me feel insecure and threatened in Europe. Second dreadful experience took place this year in Torremolino, Spain while I had “opportunity” to witness a murder that took place in the middle of the touristic area, during the early evening time in the restaurant full of people. Europe is not the same I thought. I believe that only possibility for preventing and countering criminality in European Union is stronger cooperation of the member states. While 26 countries<fnref n="2" /> share the same borders for the free and unrestricted movement of people the Union has to take special measures to secure the citizens the internal security.<fnref n="3" />

<footnote n="1">¹ A secure Europe in a better world. European Security Strategy https://europa.eu/globalstrategy/en/european-security-strategy-secure-europe-better-world</footnote>

<footnote n="2">² https://www.schengenvisainfo.com/schengen-visa-countries-list/</footnote>

<footnote n="3">³ Troitiño, D. R., Kerikmäe, T., & Chochia, A. (Eds.). (2018). *Brexit: History, Reasoning and Perspectives*. Springer.</footnote>
In the essay I will firstly look in the history of how the European internal security has developed over the years. In the second chapter I concentrate on the current state of play Thirdly I will bring out the possible solutions of how the believe the internal security could be improved.

## EUROPEAN UNION ADDRESSING THE THREATS

The post Cold War environment is one of the increasing open boarders in which the internal and external aspects of security are indissolubly linked. Flows of trade and investment, the development of technology and the spread of democracy have brought freedom and prosperity to many people. Others have perceived globalization as a cause of frustration and injustice. These developments have also increased the scope of non-state groups to play a part in international affairs. And they have increased European dependence- and so variability- on an interconnected infrastructure in transport, energy, information and other fields.<fnref n="4" />

Before the Treaty of The European Union national governments monopolized internal security and retained it as a closely guarded issue of sovereignty. <fnref n="5" />

European Union has been active in tackling the key threats. After eleventh of September with measures that included the adoption of a European Arrest Warrant, steps to attack terrorist financing and an agreement on mutual legal assistance with The United States of America. The European Union continues to develop cooperation in the area and to improve its defences.

Even in the era of globalization, geography is still important. It is in the European interest that countries on our borders are well-governed. Neighbors who are engaged in violet conflict, weak states where organized crime flourishing, dysfunctional societies or exploding population growth on its borders all pose problems for Europe. <fnref n="6" />

Large scale aggression against any Member State is now improbable. Instead Europe faces new threats which are more diverse, less visible and less predictable.

Terrorism puts living at risk. It imposes costs, it seeks to undermine the openness and tolerance of our societies and it poses a growing strategic threat to the whole of Europe. Increasingly, terrorist movements are well-resourced, connected by electronic

## INTERNAL SECURITY STRATEGY

The European Union's Internal Security Strategy<fnref n="7" />, adopted by the Spanish presidency early in 2010, followed on from the coming into force of the Lisbon Treaty in 2009, building the previous developments within the European Union in the Area of Freedom Security and Justice policy. The mail focus of the European Union Internal Security Strategy is to prevent and combat "serious and organized crime, terrorism and cybercrime, in strengthening the management of our external borders and in building resilience to national and man-made disasters"<fnref n="8" />.

<footnote n="4">⁴ Solana, J, Civilian Perspective or Security Strategy; A secure Europe in a better world- the European Security Strategy. P 52.</footnote>

<footnote n="5">⁵ Mitsilgas, V; Monar, J and Reed W „The European Union and Internal Security. Guardian of the People?“, Palgrave Macmillan, 2003. p 1.</footnote>

<footnote n="6">⁶ European Security Strategy. A secure Europe in a Better World. https://www.consilium.europa.eu/media/30823/qc7809568enc.pdf p.35</footnote>

<footnote n="7">⁷ Communication for the Commission to the European Parliament and the Council; The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, COM/2010/0673 final.</footnote>

<footnote n="8">⁸ Communication for the Commission to the European Parliament and the Council; The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, COM/2010/0673 final. P.3.</footnote>
The Internal Security Strategy intersects and overlaps with the European Union's Counter-Terrorism strategy<fnref n="9" />, the Strategy for the External Dimension of JHA<fnref n="10" /> and the European Union's Security Strategy.<fnref n="11" />

The Internal Security Strategy for the period 2015-2020 is defined in Council Conclusions of 16th June 2015. It constitutes the European Union's strategy shared by institutions and Member States aiming at tacking the security challenges and threats facing the European Union until 2020. The strategy is composed of several policy documents: The Council conclusions of 4-5th of December 2014 and the Council Conclusions of 16th of June 2015, with the principles it outlines based on the Commission's Communication "European Agenda on Security", taking into account the views expressed by the European Parliament.

In terms of content, the internal security strategy is in line with the principles and priorities for action defined by the Commission in its European Agenda on Security:

Tackling and preventing terrorism, radicalization to terrorism and recruitment as well as financing related to terrorism, with special attention to the issue of foreign terrorism fighters, reinforced border security through systematic and coordinated checks against the relevant databases based on risk assessment as well as integrating the internal and external aspects against terrorism;

Preventing and fighting serious organized crime on the basis of the European Union policy cycle;

Preventing and fighting cybercrime as well as enhancing cyber security;<fnref n="12" />

Due to the entry into force of the Lisbon Treaty, the role of The Court of Justice of the European Union has been significantly strengthened. First, because of the abolition of the pillar structure, the jurisdiction of the Court will extend to the law of the European Union, which means the Court gains jurisdiction in the Area of Freedom, security and Justice. As regards police and judicial cooperation in crime matters, its jurisdiction to give preliminary rulings is binding, and is no longer subject to a declaration by each member state. Under the Treaty of Lisbon, the field of police and criminal justice will become part of the general law, and any court or tribunal will be able to request a preliminary ruling from the Court of Justice.<fnref n="13" />

In order to support and enhance the Union's activities to pursue the establishment and development of Area of freedom, security and justice, the specialized European Agencies were created: Europol<fnref n="14" />, Eurojust<fnref n="15" /> and Frontex<fnref n="16" />.

In my opinion internal and external security have to and do go hand in hand. Considering one without another would be thinking of having an unlocked house without a gate to protect it, or a

<footnote n="9">⁹ Council of the European Union; The European Union Counter-Terrorism Strategy, Brussels, 30 November 2005, 14469/4/05.</footnote>

<footnote n="10">¹⁰ Council of the European Union; A strategy for the External Dimension of JHA, Global Freedom, Security and Justice, Brussels, 30 November 2005, 14366/3/05.</footnote>

<footnote n="11">¹¹ Solana, J., A Secure Europe in a better world, European Security Strategy, Brussels, 12 December 2003.</footnote>

<footnote n="12">¹² Draft Council Conclusions on the Renewed European Union Internal Security Strategy 2015-2020. http://data.consilium.europa.eu/doc/document/ST-9798-2015-INIT/en/pdf p.6</footnote>

<footnote n="13">¹³ Trauner, F and Servent, A-R, "Policy Change in the Area of Freedom, Security and Justice"; den Boer, M. "Police cooperation. A reluctant dance with the supranational EU institutions" p123.</footnote>

<footnote n="14">¹⁴ Council Decision 2009/371/JHA Establishing the European Police Office (Europol: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32009R0371&from=EN).</footnote>

<footnote n="15">¹⁵ Council Decision 2009/426 JHA, on the strengthening of Eurojust and amending serious crime; http://www.eurojust.europa.eu/doclibrary/Eurojust-framework/ejdecision/New%20Eurojust%20Decision%20(Council%20Decision%202009-426-JHA)/Eurojust-Council-Decision-2009-426-JHA-EN.pdf</footnote>

<footnote n="16">¹⁶ Council Regulation 2007/2004/EC Establishing a European Agency for the management of Operational Cooperation at the External Borders of the Member States of the European Union; https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004R2007&from=EN</footnote>
unlocked gate (which would be external security) allowing everyone to enter your back garden. Some days ago, European Council adopted the Commission's proposal to strengthen the Schengen Information System (SIS), the most commonly used information sharing system<fnref n="17" /> for migration, security and border management. According to the Commission, the reinforced SIS system will help border guards and police to better track down dangerous criminals and terrorists.<fnref n="18" />

TERRORISM

Judicial cooperation in Europe against terrorism is not new. It may have gained a new dimension after the attacks in Madrid and London, but the fight against terrorism was one of the reasons why European judicial cooperation became a key theme on the mid-1970s when the so-called TREVI group was founded.<fnref n="19" />

November 22, 2018 the European Commission decided to send notice to Estonia (and 15 other member states: Belgium, Bulgaria, Czech republic, Greece, Spain, Croatia, Cyprus, Lithuania, Luxemburg, Malta, Austria, Poland, Portugal, Romania and Slovenia) for failing to communicate the national measures taken to implement the new rules on combatting terrorism<fnref n="20" />. European Commission communicated, that the law is crucial element of the European Union's fight against terrorism – criminalizing and sanctioning terrorist-related offences, such as travelling abroad to commit a terrorist offence, returning to or traveling within the European Union for such activities, training for terrorist purposes and the financing of terrorism. European Commission stressed that the law sets out specific provision for victims of terrorism making sure they have access to reliable information as well as professional and specialist support services, immediately after an attack and for as long as necessary. Member states had until the 8th of September 2018 to notify the Commission that they have brought into force the national measures necessary to comply with the directive. Commission gave the member states additional time of two months to fully implement the new rules on their national law, not meeting the deadline for second time, Commission is considering addressing reasoned opinion.<fnref n="21" />

That illustrates, that even though Estonia among other countries are doing its best to reach the goals set by European Commission, there are more work to be done to meet the requirement of fighting with terrorism. In that particular case on the other hand, as there were 16 countries who were failing to communicate the national measures, it might me that the communication of the Commission itself was not satisfactory.

Trust is good control is better?

While there has been taken several strategic steps to strengthen the internal security, there is still room for improvement. What happens if we enlarge the power of the law enforcement agencies? Will the level of security increase and therefore the terrorism and criminality decrease? And foremost, will the enforcement agencies act lawfully in a way that they do not violate the human rights?

<footnote n="17">¹⁷ With over 5 billion consultations in 2017, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-security/20181119_update-factsheet-sis_en.pdf</footnote>

<footnote n="18">¹⁸ European Commission Press Release Database http://europa.eu/rapid/press-release_IP-18-6450_en.htm</footnote>

<footnote n="19">¹⁹ Spence, D. „The European Union and Terrorism“ Nilsson, H. „Judicial Cooperation in Europe against terrorism“ p.71.</footnote>

<footnote n="20">²⁰ Directive (EU) 2017/541 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017L0541&from=EN</footnote>

<footnote n="21">²¹ European Union Press Release Database http://europa.eu/rapid/press-release_MEX-18-6523_en.htm (22.11.2018)</footnote>
There was rather interesting case in the Estonian newspaper Eesti Ekspress recently<fnref n="22" /> where was mentioned, that Estonian higher court decided to ask preliminary ruling from European Court of Justice concerning how the police may use the means of communication in the process of investigation. In Estonia, the means of communication (mobile phone positioning) is used under the directive<fnref n="23" /> ²⁴that the usage of in the criminal proceeding was declared a violation of human rights by European Court of Justice. Surveillance of the mobile phones give rather specific date about the persons private life, including the names, the call registers the content of the sms-s and calls, that is allowed to ask only in a case of serious offence or crime. The definition of serious crime is defined variously in different member states. This case illustrates, that even though there are contra and pro argument whether the mobile surveillance is violating the human rights for privacy, it may still prevent serious crimes or even terroristic act to happen. The advocates as well Estonian representative in European Court of Justice N. Grünberg were arguing on both sides.

Estonian investigative media has stated in the article<fnref n="25" /> that even though the level on criminality in Estonia is decreasing, the activity of surveillance of the mobile phones, recordings, databases and other surveillance methods are pretty common in Estonia.

I personally believe that in certain cases there should be rather breach of human rights allowed for a good cause of preventing or avoiding crimes against person. Especially in a light where the role of information and technology play growing role in the internal security and crime.

## CONCLUSIONS

The development of the European Union Internal Security Strategy presents new challenges for not only for European Union Institutions and agencies, from a policy and practice perspective, but its implementation at a security level opens up new challenges in the context of fundamental rights and justice. Many academic authors have raised the issue of the imbalance in development of the Area of Freedom, Security and Justice, pointing out that there has been significant development under the heading of security, but that the freedom and justice elements of the project are lagging behind. In addition the perceived need to develop close working relations with third countries, not only in the European Union's immediate neighborhood, but across the globe, many of which do not operate on the bases of liberal democratic principles, poses new and complex challenges for the maintenance of the rule of law, and the fundamental principles that underpin, not only the European Union, but also each of its individual member states.<fnref n="26" />

I believe that the monetary support by the member states or from the European Union's budget for helping even more develop and coordinate the internal security of European Union is the

<footnote n="22">²² https://ekspress.delfi.ee/kuum/tragi-advokaadi-tegutsemine-viib-koeravorsti-varguse-juhtumi-euroopa-kohtusse?id=84492147&fbclid=IwAR2_w0d-uTHFtYfjWCmrDOHv4bMOIPDTsSEiD_Qn18r--jeEt3PIeps78q0</footnote>

<footnote n="23">²³ Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32006L0024</footnote>

<footnote n="24">²⁴ The directive has been implemented to Estonian Electronic Communication Act. The paragraph Under discussion is § 111¹, obligation to preserve data. https://www.riigiteataja.ee/en/eli/530052018001/consolide</footnote>

<footnote n="25">²⁵ https://ekspress.delfi.ee/kuum/laanemere-meister-nuhkimises-eestis-kuulatakse-inimesi-10-korda-rohkem-pealt-kuiskandinaavia-riikides?id=83701819&fbclid=IwAR1OX27xXKhNBBtW5vsXOG5IWsKt734IBeAFOnxK0bvZE5XdWY3jaRCnB uQ</footnote>

<footnote n="26">²⁶ O'Neill, M., Swinton, K. and Winter, A., "New challenges for the eu International security strategy". Retrieved from: https://www.proquest.com/products-services/ebooks/ebooks-main.html.</footnote>
only possibility to hold or improve the level of internal security. Perhaps the level on knowledge could also be improved so that the level on security could be similar (or almost similar) in all member states. Mutual level around European Union will increase the stability in police structure as well in border control areas.

And last but not least the acknowledgement of the need and necessity of the internal security buy the citizens- the common way of thinking, engagement of the society and common actions of the citizens as well the member states make the strong internal security.

BIBLIOGRAPHY:

1. Solana, J. (2003). *A secure Europe in a better world- the European Security Strategy*. Brussels, 12.12.2003.

2. Mitsilgas, V; Monar, J and Reed W, "*The European Union and Internal Security. Guardian of the People?*", Palgrave Macmillan, 2003.

3. Trauner, F and Servent, A-R, "*Policy Change in the Area of Freedom, Security and Justice*"; den Boer, M. "Police cooperation. A reluctant dance with the supranational EU institutions"

4. O'Neill, M., Swinton, K. and Winter, A. "*New challenges for the eu International security strategy*". Retrieved from: https://www.proquest.com/products-services/ebooks/ebooks-main.html.

5. Spence, D. "*The European Union and Terrorism*" Nilsson, H. "Judicial Cooperation in Europe against terrorism" p.71.

6. A secure Europe in a better world. *European Security Strategy* https://europa.eu/globalstrategy/en/european-security-strategy-secure-europe-better-world

7. Schengen Visa information: reachable: https://www.schengenvisainfo.com/schengen-visa-countries-list/

8. Eesti Ekspress "*Tragi advokaadi tegutsemine viib koertevorsti varguse juhtumi Euroopa kohtusse:*" Kättesaadav: https://ekspress.delfi.ee/kuum/tragi-advokaadi-tegutsemine-viib-koeravorsti-varguse-juhtumi-euroopa-cohtusse?id=84492147&fbclid=IwAR2_w0d-uTHFtYfjWCmrDOHv4bMOIPDTsSEiD_Qn18r--jeEt3PIeps78q0

9. European Union Press Release Database http://europa.eu/rapid/press-release_MEX-18-6523_en.htm (22.11.2018)

10. Eesti Ekspress article: "*Läänemere meister nuhkimises: Eestis kuulatakse inimesi 10 korda rohkem pealt kui Skandinaavia riikides*" https://ekspress.delfi.ee/kuum/laanemere-meister-nuhkimises-eestis-kuulatakse-inimesi-10-korda-rohkem-pealt-kui-skandinaavia-riikides?id=83701819&fbclid=IwAR1OX27xXKhNBBtW5vsXOG5IWsKt734IBeAFOnxK0bvZE5XdWY3jaRCnBuQ

11. European Security Strategy. A secure Europe in a Better World. https://www.consilium.europa.eu/media/30823/qc7809568enc.pdf

12. Communication for the Commission to the European Parliament and the Council; The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, COM/2010/0673 final.

13. Council of the European Union; The European Union Counter-Terrorism Strategy, Brussels, 30 November 2005, 14469/4/05.

14. Council of the European Union; A strategy for the External Dimension of JHA, Global Freedom, Security and Justice, Brussels, 30 November 2005, 14366/3/05.

15. Draft Council Conclusions on the Renewed European Union Internal Security Strategy 2015-2020. http://data.consilium.europa.eu/doc/document/ST-9798-2015-INIT/en/pdf

16. Council Decision 2009/371/JHA Establishing the European Police Office (Europol: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32009R0371&from=EN.

17. Council Decision 2009/426 JHA, on the strengthening of Eurojust and amending serious crime; http://www.eurojust.europa.eu/doclibrary/Eurojust-framework/ejdecision/New%20Eurojust%20Decision%20(Council%20Decision%202009-426-JHA)/Eurojust-Council-Decision-2009-426-JHA-EN.pdf
18. Council Regulation 2007/2004/EC Establishing a European Agency for the management of Operational Cooperation at the External Borders of the Member States of the European Union; https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004R2007&from=EN

19. With over 5 billion consultations in 2017, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-security/20181119_update-factsheet-sis_en.pdf

20. European Commission Press Release Database http://europa.eu/rapid/press-release_IP-18-6450_en.htm

21. Directive (EU) 2017/541 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017L0541&from=EN

22. Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32006L0024

23. Troitiño, D. R., Kerikmäe, T., & Chochia, A. (Eds.). (2018). *Brexit: History, Reasoning and Perspectives*. Springer.

24. Commission, E. (n.d.). Retrieved from https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-security/20181119_update-factsheet-sis_en.pdf

Sterling, L. S. (2009). *The Art of Agent-Oriented Modeling*. London: The MIT Press.
# EU Internal Security: Terrorism and Criminality

ESLEY RODRIGUES CARVALHO

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA
ESRODR@TALTECH.EE

**Abstract:** This research examines the mains concepts involving terrorism and criminality having as scope the European Union territory and its singular characteristic such as supranational legal entity compounded by Member-States without borders. Considering the rule of law upon the EU members, which demand to provide collective security, adds up to the fact that the movement of people and data around the world has increased exponentially, the European Union legal framework comes developing measures to enhance a deep integration in order to provide security to its citizens. This paper highlights the legal sources inside the European Union Constitutional Law and EU Law, as well as its recent amendments defining the Euro-crimes involving transnational criminality as borderless crimes. Besides, we analyze through this paper the concept of terrorism according to the European Union Criminal Law doing a correlation between domestic and international terrorism and the fact that the European Union has the liability to provide personal security and also dealing with the surging of nationalism due to globalization and migration problems. The EU legal system comes advancing to a supranational law structure capable of creating robust cooperation to provide internal security combating terrorism and the borderless criminality.

**Keywords:** Internal security, borderless crimes, terrorism, mutual cooperation.

## INTRODUCTION

Internal security means domestic problems and these problematic situations sometimes are directed towards to people which we most care about or a place that we use to know as home. This subject makes us point fingers to ourselves and start to wonder about failures. The enemy infiltrated and undercover now are capable of creating instability, fear, and insecurity. If we observe societies affected by terrorism and criminality, their actions turn to be becoming heading towards these extreme situations implementing an agenda for the government and increasing the tasks for law enforcement agencies.

Hence, terrorism and criminality call for everyone responsibility into this scenario bearing in mind that the enemy can be living in the next door or coming quietly through the borders as a tourist or even as another citizen coming back home, it implies there are no armies involved using different uniform colors and bringing an explicit menace. We are not exaggerating towards a state of exception explained by Professor Giorgio Agamben<fnref n="1" /> as a desperate situation where the fundamental rights foreseen by law are bent for the purpose to restore the constitutional order. Foremost, internal security is something constant which needs to be thought outside and before times of crisis. Nevertheless, the countries, and talking about the European Union, the member states have to establish a definition of security and its policies to achieve a minimum standard based on stable, structured cooperation.

Our aim with this research paper is to explore these two sensitive variables able to be getting new concerns relating to how to provide internal security for a supranational entity as the European Union. On one segment the terrorism emerges as a form of protest, a way to pay back for something undesirable, an extremist method to impose fear and pain striking innocent people which one will live with constant uncertainty about safeness. The terrorism will appear when political arguing and diplomacy reach the failure converting into a situation that nations are targets and groups are involved in which agreements are no tools to negotiate, and extreme measures have to be taken in order to control the situation.

<footnote n="1">¹ Agamben, Giorgio. State of exception (Chicago: University of Chicago Press, 2005) 5.</footnote>
Under other circumstances, a sensitive increase of criminality can make a place uncomfortable spreading insecurity what can address people to pressure the government or try to solve the problem by their own hands. It is a common view that crime is a social problem intrinsic to human behavior consequently possible to soar among social inequality and lack of education and stability what can be read as an incomplete application of welfare state taking a narrow view "often confined to health, housing, income"<fnref n="2" />. Moreover, some individuals deliberately decide to commit crimes before the results that it can bring especially if the internal law and the prosecution system are inadequate to provide effectiveness against organized criminality and white-collar crimes. Likewise, nowadays several crimes are committed without the necessity of people crossing borders just using the virtual field known as cyberspace.

The European Union is continuously changing to expand its borders by bringing new states, and these fresh members imply more problems to handle internally. In particular, the free movement of persons offered a vast field to issues such as terrorism and criminality spread over the Member States, because people are engaged in crime and terrorism, they are the tools to perpetrated these crimes. Also, we could mention that some European countries have easy requirements to grant citizenship based on jus solis criteria, giving free access to the European area. With that in mind, solutions cannot come separately, and as a community it has must always be thought to have the ideals from the past acting like guidance light to the future avoiding misconceptions.

# 1. BORDERLESS CRIMINALITY AND COLLECTIVE SECURITY

According to Article 3(2) of the Maastricht Treaty, officially known as Treaty on European Union - TEU, one of the fundamental aims of the Union is to offer security to its citizens without internal frontiers. Also, complementing the sense of individual security Article 3(5) brings the directive in which the Union will address its external relations in order to promote the protection of its citizens. Observing these aspects, we can see that security is turning to individuals rather than to the Member States representing a singularity within the Union. Hence, this brief analysis is capable of defining that in a narrow concept the individual is the center of security concerns, on the other hand, taking an extensive insight the State is what matters<fnref n="3" />.

Accordingly, the TEU incorporate into the primary law, as its constitutional structure of the European Union, a common foreign, security and defense policies. Moreover, we should also remark the Treaty on Functioning of European Union - TFEU, which reproduces in its Article 67(1) the constitutional guarantee of security with the strict compliance for fundamental rights, despite differences of the legal systems and traditions of the Member States. It is important to remember there are no internal borders to enforce control for persons which it claims to be a common area for security issues. Each one of the States, being a member of the Union, remaining with its sovereignty to establish a criminal law. In contrast, the constitutional framework assigns an approximation of the criminal laws to avoid substantial differences which could be resulting in relative leniency of the law applied to similar cases ruled by different courts from some the Member States which must observe an interpretation uniform under EU Law principles and European Court of Justice case-laws. Additionally, the new wording of Lisbon Treaty provides to the European Constitutional System a new framework to develop a European Union criminal law bringing the following rule in Article 83:

<footnote n="2">² Cousins, Mel. European Welfare States: Comparative Perspectives (London: Sage Publications, 2005) 7.</footnote>

<footnote n="3">³ Marczuk, Karina Paulina. Towards the EU's internal security strategy: a new paradigm of internal security? ResearchGate.com Website: https://www.researchgate.net/publication/327545113_Towards_the_EU%27s票Internal_Security_Strategy_A_New_Paradigm_of票Internal_Security. Accessed on 10 November 2018.</footnote>
"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.

These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organized crime.

On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament."

Concerning to EU criminal law, under that article, the TFEU set up the directives to European Union criminalize such giving offenses known as transnational crimes, precisely because of these crimes are a borderless dimension which requires special attention and uniform enforcement of the law. Despite this, the Member States remaining its sovereignty regarding other crimes, even though it could be regarded as a twofold criminal system inside the EU. It is equally essential to consider that the exhaustive roll aforementioned transferred the law-making competence from de Member States to EU represented by The Council and European Union Parliament. Notwithstanding the citizenship guarantees provided for in Article 20 et seq. of TFEU, and Articles 309 et seq. of Chart of Fundamental Rights of European Union, the free movement of persons can suffer restraint regarding the protection against expulsion granted for in Article 28(3) of Citizens' Rights Directive 2004/38/EC - CRD<fnref n="4" />. Due to the wording of that law, it can happen exceptionally "if the decision is based on imperative grounds of public security," those borderless offenses provided in Article 83(1) of TFEU are considered especially leading organized criminality, and they are connected with this particular concept of public security, according to the European Court of Justice -ECJ ruling of law in Case C-348/09, P.I. v. Overbürgemeisterin der Stadt Remscheid (May 17, 2013):

"In the light of the foregoing considerations, the answer to the question referred is that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that it is open to the Member States to regard criminal offences such as those referred to in the second subparagraph of Article 83(1) TFEU as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and thus be covered by the concept of 'imperative grounds of public security', capable of justifying an expulsion measure under Article 28(3), as long as the manner in which such offences were committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it."<fnref n="5" />

In the face of that interpretation, the ECJ adequately ensured the abstract concept concerning public security to the Member States setting what sensitive spots might usually be considered heinous, which calls for uniform reprehension by EU law. Nevertheless, the European Union competence to typify crimes and to determine sanctions is not taking out the liability of the States to enforce the law within their borders. A legal system with powerful competencies, especially in the criminal ground, is essential to provide effectiveness for responding and producing adequate and proportional measures to cohabit criminality.

## 1.1. A new vision of integration to enhance internal security

Since the Lisbon Treaty came into force, the EU criminal policy has to increase its sense of cooperation not only based on agreements between surrounding countries but creating particular

<footnote n="4">⁴ Mitsilegas, Valsamis, "EU Criminal Law Competence after Lisbon: From Securitized to Functional Criminalisation", in EU Security and Justice Law: After Lisbon and Stockholm, eds. Murphy, Cian C., & Acosta Arcarazo, Diego (Oxford: Hart Publishing, 2014) 115.</footnote>

<footnote n="5">⁵ European Union, European Court of Justice (website), Reference for a preliminary ruling from the Obverwaltungsgericht für das Land Nordrhein-Westfalen. Freedom of movement for persons, accessed November 19, 2018, http://curia.europa.eu/juris/liste.jsf?num=C-348/09&language=EN</footnote>
bodies inside this supranational entity to handle with dimensional issues. In the prosecution
system, two agencies have to perform strength cooperation, and these agencies are:

The European Police Office - Europol working as a law enforcement agency providing a
host between police departments around EU, although that agency has no power to enforce the
law and its officers are not able to execute policing tasks<fnref n="6" />. The Europol acts being a core offering
support such as database exchange, forensic analyses, and training which demonstrates
conventional forms of cooperation<fnref n="7" />.

Another significant form of mutual assistance is the European Union's Judicial Cooperation Unit - Eurojust. Acting on the bases of Article 85 et seq. of TFEU, this agency performs its duties establishing a framework of cooperation between two or more Member States to investigate, and prosecute felonies. Nevertheless, the said Article 83(1) of TFEU brings these atrocious crimes on a list not exhaustive once the definition of organized criminality still has an open concept inside EU. Recently, in November of 2018, the relations between these two agencies were set by Regulation (EU) 2018/1727 of the European Parliament and of The Council, and according to Annex 1 that brings a wide array of crimes is listed as:

terrorism,
organized crime,
drug trafficking,
money-laundering activities,
crime connected with nuclear and radioactive substances,
immigrant smuggling,
trafficking in human beings,
motor vehicle crime,
murder and grievous bodily injury,
illicit trade in human organs and tissue,
kidnapping, illegal restraint and hostage taking,
racism and xenophobia,
robbery and aggravated theft,
illicit trafficking in cultural goods, including antiquities and works of art,
swindling and fraud,
crime against the financial interests of the Union,
insider dealing and financial market manipulation,
racketeering and extortion,
counterfeiting and product piracy,
forgery of administrative documents and trafficking therein,
forgery of money and means of payment,
computer crime,
corruption,
illicit trafficking in arms, ammunition and explosives,
illicit trafficking in endangered animal species,
illicit trafficking in endangered plant species and varieties,
environmental crime, including ship source pollution,
illicit trafficking in hormonal substances and other growth promoters,

<footnote n="6">⁶ European Union, Europol (website), Activities and Services, accessed November 19, 2018, https://www.europol.europa.eu/activities-services/services-support</footnote>

<footnote n="7">⁷ Cornell, Anna Jonsson, "EU Police Cooperation Post-Lisbon", in European Police and Criminal Law Co-operation, eds. Bergström, Maria, & Cornell, Anna Jonsson (Oxford: Hart Publishing, 2014) 147.</footnote>
sexual abuse and sexual exploitation, including child abuse material and solicitation of
children for sexual purposes,

genocide, crimes against humanity and war crimes.

After analyzing the legal framework showed in this chapter, we can conclude that the European Union comes strengthening its structure of cooperation against transnational criminality which constitutes means capable of menace the internal security and destabilizes the regular order. These borderless crimes not only affect the EU citizens directly but also the institutions causing weakness to them leading to a scenario where States are not able to afford protection and defense. The European integration with the free market and free movement of goods, services, and persons means also sharing common problems to which must coexist in harmony towards a well-functioning of public services<fnref n="8" />, remembering that one of the natural needs of the human being is to feel safe. An intergovernmental system needs to be ruled by singular criminal law in matters of common interest to avoid discrepancies, especially regarding severe crimes. Moreover, the Member States remain with their competences to enforce the EU Criminal Law and also the jurisdiction in criminal proceedings. EU criminal law is trying to prevent that one Member State establishes severe sanctions to a crime differently for the other one which could beget a criminality migration.

## 2. DEALING WITH TERRORISM, AN UNPROFITABLE CRIME

According to the European Union Criminal Law, terrorism is typified as a criminal behavior what means that exists sanctions and perpetrators will be charged before the law. Thus, differently from others crimes, when people commit terrorism, they are not expecting monetary compensations. Conversely, they will expend money to achieve, and their goals and targets are nations, its private or governmental institutions, and society in general. As an unprofitable crime, organized groups acts supporting this crime appearing as a third sponsor. So, one of combating is exhausting the usual sources of money which finance this criminality what justifies the intense struggle to prevent money laundering. It is a premeditated crime whose purpose is not only hit specific targets but to spread fear and panic to the whole society.

Studying the simple classification of terrorism, basically, we find two classes: domestic terrorism and international terrorism and both of them base their motivations in extreme political ideologies such as nationalism in which we found "the most potent of social forces."<fnref n="9" /> However, in the first case, the criminals are the own citizens from the States, and in the second situation, the perpetrator comes from outside<fnref n="10" />. So, bringing those definitions into European Union, observing the right to free movement of persons joined to the context of the citizenship rights, things become clear to understand why this menace can affect each Member State. Cooperation inside the Union is crucial to struggle against terrorism. Historically, EU has a link with many countries around the world and adopting the jus sanguinis right attached to citizenship many people become citizens but without the sense of loyalty to the States and European values which

<footnote n="8">⁸ Davies, Gareth, "Free Movement, the Quality of Life and the Myth that the Court Balances Interests", in Exceptions from EU free movement Law, eds. Koutrakos, Panos, Shuibhne, Niamh Nic & Syrpis, Phil (Oxford: Hart Publishing, 2016) 222.</footnote>

<footnote n="9">⁹ Nairn, Tom; James, Paul (2005). Global Matrix: Nationalism, Globalism and State-Terrorism (London and New York: Pluto Press, 2005) 33.</footnote>

<footnote n="10">¹⁰ Purpura, Phillip. Terrorism and Homeland Security: An Introduction with Applications (Butterworth-Heinemann homeland security series, 2007) 17.</footnote>
implies that a backdoor is open to international terrorism. In a similar situation, but without people crossing borders, the cyberterrorism preaches the same harm. The last conclusions reported by The Council, in the meeting occurred on 18 October 2018, the terrorism and its international and regional ramifications and the theme discussed received the following review:

The last conclusions announced by The Council, in the meeting occurred on 18 October 2018, were about the terrorism and its international and regional ramifications and the theme discussed received the input on its report, drawing the attention to EU adopts measures in order to "strengthen the capacity to prevent and respond effectively to radicalisation and terrorism, in full respect of fundamental rights. The Commission proposal on preventing the dissemination of terrorist content online should be examined as a matter of priority."<fnref n="11" /> Another passage calls attention to "strengthen our crisis management capacity and the coherence and effectiveness of the EU and national crisis response mechanisms. Negotiations on the EU civil protection mechanism proposal should be concluded by the end of the year"<fnref n="12" />.

This concept of civil protection keeps alive the idea of personal security on behalf of EU residents which has the basis on a prompt answer to potential threats to stop the harm and damages caused. Equally the investigation, prosecution and the ruling of law have to follow the same concept. Therefore, besides strengthening of the Europol and Eurojust, EU launched in 2017 the Permanent Structured Cooperation - PeSCo, in reliance on Articles 42(6) and 46 of the TEU this new body came to improve the military and civilian assistance working closely with European Defense Agency. Consequently, it means that the European Union is in constant developing of its internal security and the warfare against terrorism find places inside and outside of the borders.

## CONCLUSION

As shown in this brief study, the problem of internal security in the European Union goes beyond the dilemmas faced for its Member States. It occurs because as supranational entity EU has to deal with multiple concerns and get ready to attend these needs. Regarding this, providing security of person following the definition imposed by the Chater of the Fundamental Rights of EU is not an easy task. The new concept of "Euro-crimes"<fnref n="13" /> adopt under Article 83 of the Treaty on the Functioning of the European Union proved to be a useful and necessary method to uphold the internal protection which passed to adopt an EU Criminal Law as independent legal order directly applicable to the Member States. At the same time, international terrorism increase in EU territory as a result of an extreme sense of nationalism due to globalization phenomena, free movement of persons and migration problems, coupled with the issue of radical external groups that attack European Union Member States in response to their actions in the global scenario. Notwithstanding these facts, the Union is developing tools to keep standing its principles.

Hence, there is a legal framework to enhance the cooperation in the criminal matter, which in addition to the list of international agreements increase the liability of the Member States to take actions towards internal security. The EU legal system advances gradually and only through the uniform of the supranational law is possible to create a safe zone for the European Union. Nonetheless, as we know EU law has no direct impact in the resident citizens and has to be implemented by each Member State which can be seen a weak spot inside the system. On the other hand, at least the national courts have an extra instrument to apply to trial proceedings.

<footnote n="11">¹¹ European Union, The European Council (website), European Council meeting (18 October 2018), accessed November 20, 2018, https://www.consilium.europa.eu/media/36775/18-euco-final-conclusions-en.pdf</footnote>

<footnote n="12">¹² Ibid.</footnote>

<footnote n="13">¹³ Chalmers, Damian, Davies, Gareth & Monti, Giorgio. European Union Law (Cambridge: Cambridge University Press, 4th ed, 2011) 613.</footnote>
Another issue involving internal security is taxation, and it occurs because enhancing local safety in EU territory results in increasing of expenses, especially when it involves external operations which imply in tax increases based on the solidarity principle.

Giving these points, our analyze had the aim to highlight the legal structure of the European Union to provide internal security combating terrorism and the borderless criminality. We could observe that internal security involves constant efforts whereas that sometimes these actions conflict with other fundamental rights such as freedom and private life requiring proportionality and rationality to uphold these rights.

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# Humanising Cyberspace: the EU Legislation and its transformative power

MELDA KAMIL ARIADNO AND PROF. ANIS H BAJREKTAREVIC

**Abstract:** While our troposphere is dangerously polluted, one other space – that of intangible world, created by the interconnected technology – follows the same pattern: a cyberspace. Additionally, our cyberspace becomes increasingly brutalised by its rapid monetisation and weaponisation. It mainly occurs through privacy erosion. How to protect effectively individuals and their fundamental human rights, and how to exercise a right for dignity and privacy?

The EU now offers a model legislation to its Member States, and by its transformative power (spillover) to the similar supranational projects elsewhere (particularly ASEAN, but also the AU, OAS, SCO, SAARC, LAS, etc.), and the rest of world.

**Keywords:** Cyberspace, Data, Privacy, EU, ASEAN; Indo-Pacific, Twining, Transformative power.

While our troposphere is dangerously polluted, one other space – that of intangible world, created by the interconnected technology – follows the same pattern: a cyberspace.

Information is a content and the frame, means and the goal in the world of binary codes. Commodification of information in digital world is nothing else but a search for a cyberspace currency. Hence, what is a black gold, oil/crude for the PEM (Primary Energy Mix) of every national economy that is a personal data in the world of cyber-information – component that predominantly energises and runs the system.

No wonder that our cyberspace becomes increasingly brutalised by its rapid monetisation and weaponisation. It mainly occurs through privacy invasion and its constant erosion due to an expanding exposure and inadequate preservation. How effectively to protect individuals, their fundamental human rights, and how to exercise a right for (cyberspace) dignity and privacy?

The EU now offers a model legislation to its Member States, and by its transformative power (spill-over) to the similar supranational projects elsewhere (particularly ASEAN, but also the AU, OAS, SCO, SAARC, LAS, etc.), and the rest of world. (From a *lege specie* towards the universal jurisdiction.)

***

Rules and regulations to protect personal data do not trigger many sympathies. The corporate world sees it as an unnecessary deterrent; as a limit to their growth – more to pay and less or slower to yield, innovate and expand. Governments would traditionally wish the rules should apply to every societal stakeholder but themselves. And citizenry by large too frequently behave benevolent, nearly careless whether their data is harvested or safeguarded at all.

However, such legislation is needed today more than ever before. The latest round of technological advancements was rapid, global and uneven. No wonder that in the aftermath of the so-called IT-revolutions, our world suffers from technological asymmetries: assertive big corporations and omnipresent mighty governments on one side and ordinary citizenry on the other. Even in the most advanced democracies today – such as the EU, personal autonomy is at the huge risk: Everyday simple, almost trivial, choices such as what to read, which road to take, what to wear, eat, watch or listen are governed (or at least filtered) by algorithms that run deep under the surface of software and devices. Algoritmisation of ‘will’ is so corrosive and deep that users are mostly unaware of the magnitude to which daily data processing rules over their passions, drives and choices.
Clearly, technology of today serves not only a Weberian predictability imperative – to further rationalise society. It makes society less safe and its individuals less free.

Societies are yet to wake up to this (inconvenient) truth. In the internet age of mobile, global and instant communications, people tend to focus more on the ‘here-us-now’ trends: goods, services, and experiences that the IT offers. Individuals are less interested on the ways in which privacy is compromised by software, its originators and devices – all which became an unnoticed but indispensable part of modern life. Despite a wish of many to grasp and know how data processing and harvesting affects them, population at large yet has no appetite for details.

But, the trend is here to stay – a steady erosion of privacy: bigger quantities of data are harvested about larger number of persons on a daily, if not hourly basis. Corporations and the central state authorities want more data and are less shy in how they obtain and use it.

Prevention of the personal information misuse (PIM) —intended or not—is the main reason the European Union (EU) introduced the new set of provisions, as of May 2018. Hence, the General Data Protection Regulation (GDPR) – as the legislation is known – is an ambitious attempt to further regulate digital technology, especially in respect to the private data protection. It is of course in conformity with provisions of both the Universal and European Charter of Human Rights, which hold the protection of human dignity and privacy as an indispensable, fundamental human right.

The intention of legislator behind the GDPR is twofold: to regulate domestically as well as to inspire and galvanise internationally. The GDPR is meant to open a new chapter in the Internet's history at home, while creating, at the same time, a roadmap for other state and corporate sector actors beyond the EU. The challenge is clear: to reconcile the rights of individuals to data protection with the legitimate interests of business and government.

For the rest of the world, the GDPR should be predictive, inspirational and eventually obligatory. Lack of acting now could open a space for the abuse of power – be it for illegitimate corporate or authoritarian gains of the hidden societal actors. In such a negative scenario – on a long run – losers are all. Historically, victimisation of individuals (through constant suspension of liberties and freedoms) ends up in a state or corporate fascism, and that one in a self-destruction of society as whole.

## COMPREHENSIVE LEGISLATION AS POWERFUL DETERRENT

The Internet age exposes individuals in an unprecedented ways to the domestic or foreign predatory forces. Everybody is tempted to participate in digital economy or digital social interaction. This cannot go without revealing personal information to large state or non-state entities of local or international workings. If the field is not regulated, the moment such information leaves its proprietor, it can be easily and cheaply stored, analysed, further disseminated and shared without any knowledge or consent of it originator.

So far, neither market forces nor the negative publicity has seriously hindered companies and governments from tapping on and abusing this immense power. Nothing but a bold and comprehensive legislation is efficient deterrent, which stops the worst misuse. Only the legal provisions to protect personal data may serve a purpose of special and general prevention:

Be it in case a local or transnational corporate greed, governmental negligent or malicious official, or the clandestine interaction of the two (such as unauthorised access to personal phone and Internet records, as well as the unverified or inaccurate health and related data used to deny person from its insurance, loan, or work).
While totally absent elsewhere, early European attempts to legislate a comprehensive regulatory system of personal data protection have tired its best. Still, the EU's Data Protection Directive of 1995 was falling short on several deliverables. (It was partly due to early stage of internet development, when the future significance of cyberspace was impossible to fully grasp and anticipate). Hence, this instrument failed to identify comprehensively the wrongdoings it sought to prevent, pre-empt and mitigate. The 1995 text also suffered from a lack of (logical and legal) consistency when it came to directing and instructing the individual EU member states (EU MS) on how to domesticate data privacy and promulgate it the body of their respective national legislation. Finally, the GDPR solves both of these problems.

This instrument of 2018 clearly stipulates on discrimination combating (including the politically or religiously motivated hate-contents), authentication-related identity theft, fraud, financial crime, reputational harm (social networks mobbing, harassments and intimidation). Moreover, the European Commission (EC) has stated that the GDPR will strengthen the MS economies by recovering people's trust in the security and sincerity of digital commerce, which has suffered lately of a numerous high-profile data breaches and infringements.

However, the most important feature (and a legal impact) of the **GDPR is its power of being a direct effect law. This means that** individuals can invoke it before the MS courts without any reference to the positive national legislation. That guarantees both speed and integrity to this supranational instrument – no *vocatio leagis* and no unnecessary domestication of the instrument through national constituencies. Conclusively, the 2018 instrument is further strengthened by an **extra-territorial reach** – a notion that make is applicable to any entity that operates in the EU, even if entity is not physically situated in the EU.

This practically means that each entity, in every sector and of every size, which processes personal data of the EU citizens, must comply with the GDPR. It obliges governments and their services (of national or sub-national levels); health, insurance and bank institutes; variety of Internet and mobile telephony service providers; media outlets and other social data gathering enterprises; labour, educational and recreational entities – in short, any subject that collects digital information about individuals.

The GDPR further strengthens accountability principle. The state and commercial actors hold direct and objective responsibility for a personal data collecting, storing and processing (including its drain or dissemination). Clearly, this EU instrument strengthens the right for information privacy (as a part of elementary human right – right to privacy) by protecting individuals from misappropriation of their personal data for a harvesting, monetisation or (socio-political) weaponisation purpose.

Namely, the GDPR gives individuals the right to request a transfer of their personal data (account and history information) from one commercial entity to another (e.g. from one bank or phone provider to another). Another right is to request – at short notice and for an unspecified reason – the commercial enterprise to stop both the data collection and the marketing dissemination, or to demand clarification on a marketing methods and nature of services provided. This instrument also offers individuals the right to request that their personal data are deleted (being zipped and sent back to its proprietor beforehand) – as stipulated in art.17 (the right to be forgotten).

The GDPR calls upon all operating entities to hire a data protection officer as to ensure full compliance with the new rules. It also invites all data collecting entities to conduct impact assessments – in order to determine scope frequency, outreach and consequences of personal data harvesting and processing. (For example, if certain entity wished to introduce biometric authentication for its employees and visitors entering daily its premises, it would need at first to run an assessment – a study that answers on the necessity and impact of that new system as well as the exposures it creates and possible risk mitigation measures.)
The GDPR obliges every entity that gathers data to minimise amount and configuration of personal data they harvest, while maximizing the security of that data. (For instance, if the auto dealer or travel agency requires potential customers to fill out the form to request a price quote, the form can ask only for information relevant to the product or services in question.)

The new legislation also mandates data gathering entities to notify the authorities – without any delay – whenever they suspect or witness a personal data breach. Conclusively, the GDPR obliges entities to present the public with clean and through information about the personal data they harvest and process—and clearly why they do so.

On the sanction side, the GDPR supports the regulators with new enforcement tools, including the norm setting, monitoring of and enforcement of compliance. For a non-compliance, the instrument prescribes steep fines.

To answer adequately the accountability standards enacted by this EU legislation will certainly invite large data gathering entities to bear significant investments. However, for the sake of credibility outreach and efficiency, they will have stimuli to introduce the new procedures and systems within the EU, but also beyond – wherever their operations are present. Complementary to it, the GDPR stipulates that if an entity transfers personal data out of the EU, it must safeguard that the data is handled in the new location the same way like within the EU. By this simple but far-reaching and effective spill over notion, the standards embodied by the GDPR will be delivered to the rest of the world. Hence, this instrument is not (only) an inner code of conduct that brings an outer appeal; it is a self-evolving and self-replicating standard of behaviour for our common (digital) future.

## TWINNIG: ASEAN, INDO-PACIFIC, ASIA

It is obvious that the stipulations of the GDPR would serve well interests of Republic of Indonesia (RI). That is actually in line with a very spirit of the 1945 Constitution, which obliges the state to protect, educate and prosper the Indonesian people. This supreme state act clearly proclaims that the respecting individual personal data is resting upon the two principles of the Pancasila. Namely these of; Fair and Civilized Humanity. Mutual grant and observance of everyone's elementary rights is an essence of freedom and overall advancement of society.

The government, with the mandate of its authority to protect the public (public trust doctrine), must manage the personal data fairly and accountably. The GDPR also encourages the formation of an independent personal data protection supervisory institution so that it can correct the policies and rules of the bureaucracy and state administration to act accordingly in managing the personal data of the population. Moreover, every democratic government should be more proactive in protecting society when comes to the management of the personal data of its residents.

Interestingly, the Indonesian legislation already has instruments that follow notion of the GDPR. Thus, the Law No. 11 on Information and Electronic Transactions of 2008 (by a letter of its article 2) emphasizes the principle of extra-territorial jurisdiction. (In this particular case, it is related to the cross-border transactions. Indonesia should always safeguard its national interests: the RI jurisdiction stretches on any legal action that apply in Indonesia and/or carried out by Indonesian citizens. But it also applies to legal actions carried out outside of Indonesian jurisdiction by Indonesian citizens or a foreigner legally residing in RI, or Indonesian legal entities and foreign legal entities that produce legal effects in Indonesia.

This of course assumes the very nature of a use of Information Technology for Electronic Information and Electronic Transactions, which can be cross-territorial and even universal. What is assumed by this Law as "harming the interests of Indonesia" goes beyond pure national economic
interests, while protecting strategic data, national security, territorial integrity and sovereignty, citizens, and Indonesian legal entities.)

When comes to the Right to be Forgotten (Right for Privacy and Right for Dignity), Indonesia must see it as a principle of real protection that is in the best interests of data owners. Further on, such a right should be strengthened by the principle of 'without undue delay', as to avoid the administrative obligation to request a court decision to uphold the right. On a long run, it will surely benefit businesses far more than the personal data originators themselves.

## LEADING BY EXAMPLE

In line with the Right to Portability Data elaborated by the GDPR, Indonesia also needs to closer examine the EU instruments. Hence, the EU Regulation No.910/2014 concerning electronic identification, authentication and trust services (eIDAS) offers an idea how to harmonize the provision of digital identity and personal data in realm of electronic communications. (Electronic identification and authentication is a technology process that has an economic value. Such a business opportunity should be reconciled with a safety and security standards when comes to use of and traffic with of personal data for commercial interests.)

Regarding security, Indonesia must immediately have a clear policy on Cryptography to protect personal data. Cryptography is a double-use process; it can be utilised for civilian purposes, but it can also be used for the vital national interests, such as defense and security. Therefore, privacy and cybersecurity protection is a complementary concept of protection. Holistic approach strengthens the both rights of individuals as well as protection of national interests, rather than it ever conflicts one over the other.

Finally, the ASEAN Declaration of Human Rights in its article 21 stipulates that the protection of personal data is elementary part of Privacy. As one of the founding members, a country that even hosts the Organisation's HQ, Indonesia must observe the notions of this Human Rights Charter. That is the additional reason why RI has to lead by example.

The EU's GDPR clearly encourages a paradigm shift within the public services and government administration services on national, subnational and supranational level for all the ASEAN member states. It is to respect the fundamental freedoms and liberties, a quality that will shield population from random and ill-motivated arbitrary judgments of individual rights under the pretext of public interest.

Indonesia and ASEAN can take a lot of learning from the dynamics of the EU's regulation of GDPR and e-IDAS as to its own benefit – to foster its own security and to elevate a trust in regional e-commerce within the ASEAN economic zone. Since the ASEAN (if combined) is the 4th largest world economy, this is a call of future that already starts now. After all the EU and ASEAN – each from its side of Eurasia – are twin grand projects of necessity, passion and vision.

Naturally, for anyone outside, Indonesia and ASEAN are already seen as the world's e-commerce hub, of pivotal importance far beyond the Asia-Pacific theatre.

Vienna/Jakarta 28 DEC 2018

## REFERENCES:

1. The EU (and EEA) Instrument (2018), *General Data Protection Regulation/GDPR*: REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA
relevance)/, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679(accessed
as of 181218);

2. The UN Charter (1947), *Universal Declaration of Human Rights*, UNIS NY 1947;

3. Council of Europe (1950/1953), *European Convention of Human Rights*, CoE Strasbourg Press (2013 ver.);

4. The EU Instrument (1995), The EU Data Protection Directive of 1995 /DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data/, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31995L0046&rid=5 (accessed as of 181218);

5. Bajrektarevic, A., Karantzeni, D. (2015), *Cybersecurity: Essentials – Institutions, Instruments, Types and Forms*, NOVA Science Publishers;

6. RI Parliament (1945), *Constitution of Indonesia (Undang-Undang Dasar Republik Indonesia 1945, UUD '45)*, Jakarta GovPrintHouse (1964 ed.);

7. Soekarno, K.S., (1945), *Pancasila – the Five Principles (the Indonesian State Philosophy)*, https://www.britannica.com/topic/Pancasila (accessed as of 241218);

8. RI Parliament (2011), *Law of the Republic of Indonesia No. 11 on Information and Electronic Transactions of 2008*, http://www.bu.edu/bucflp-fig/files/2012/01/Law-No.-11-Concerning-Electronic -Information-and-Transactions.pdf (accessed as of 241218);

9. The EU (2014), *EU Regulation No.910 (eIDAS) / Regulation (EU) No910/2014 of European Parliament and of the Council of EU on Electronic Identification and Trust Services for Electronic transactions in the Internal market and repealing Directive 1999/93/EC*, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32014R0910&from=EN (accessed as of 281218)

10. Association of Southeast Asia Nations (2012), *ASEAN Human Rights Declaration and the Phnom Penh Statement on the Adoption of the Declaration – AHRD*, ASEAN HQ Press, Jakarta 2013.

## ABOUT THE AUTHORS:

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**Prof. Melda Kamil Ariadno (SH, LLM, PhD)** is a Professor of International Law at the Faculty of Law Universitas Indonesia, Jakarta. She is currently the Dean of the Faculty of Law Universitas Indonesia and the Head of Center for Sustainable Ocean Policy. She obtained her bachelor's degree from Universitas Indonesia in 1992. Then, she received both her LL.M. and Ph.D. from the University of Washington in 1995 and 2011, respectively.

She has served as *legal* expert for several governmental bodies among others the Ministry of Marine Affairs and Fisheries.

**Prof. Anis H Bajrektarevic** is chairperson and professor in international law and global political studies, Vienna, Austria. He has authored six books (for American and European publishers) and numerous articles on, mainly, geopolitics energy and technology. For the past decades, he has over 1,200 hours of teaching on the subject International Law. Two of his books are related to cyber space, cyber law and cyber wrongdoings.

Professor is editor of the NY-based GHIR (Geopolitics, History and Intl. Relations) journal, and editorial board member of several similar specialized magazines on three continents. His 7th book is to be realised in New York in December.

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**Directeur de la publication/Publication Director:**

**Dr. Michel LABORI** – Docteur d'Etat en sciences économiques et Agrégé d'histoire, ancien Professeur Jean Monnet, Université de Besançon, Chevalier de la Légion d'Honneur, (France)

Editeur/Editor : Prodifmultimedia Paris ISSN: 0248-2851

**Rédacteur en chef/ Chief Editor:**

**Dr. Simion COSTEA**, Senior Lecturer, ex-Jean Monnet Professor of EU Studies and Contemporary History, University of Medicine, Pharmacy, Sciences and Technology of Tirgu-Mures, former advisor in the European Parliament (Brussels)

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* **Dr. Daniel ȘTEFAN**, Senior Lecturer, University of Medicine, Pharmacy, Sciences and Technology of Tirgu-Mures (Romania);

* **Dr. Dragoș PĂUN** – Lecturer, « Babeș-Bolyai » University Cluj-Napoca (Romania);

* **Dr. Colin SWATRIDGE**, UK, guest lecturer, Miskolc University (Hungary)

* **Dr. Nicoleta VASILCOVSKI**, Social Studies and Economics Teacher, QiLu Sino-Canadian Program, Shandong (China)

* **Florent VANREMORTERE** – ancien maître de conférences à l'I.E.P. de Lille (France)

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* **Dr. Tanel KERIKMÄE**, professeur Jean Monnet, directeur de l'École de droit de Tallinn, Université de technologie de Tallinn (Estonia);

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* **Dr. Licínia SIMÃO** – professeur, Université de Beira Interior, expert, Université de Coimbra (Portugal);

* **Dr. Hedi SAIDI**, Professeur, Université de Lille, Chevalier de la Légion d'Honneur et Chevalier des Palmes Académiques (France);

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* **Dr. Beatrice BOISSARD** - Maître de conférence à l'Université de Versailles-Saint-Quentin (France);

* **Dr. Cornel SIGMIREAN**, Professeur, Département d'histoire et sciences politiques, l'Université de Medicine, Pharmacie, Sciences et Technologie de Tîrgu-Mureș (Romania);

* **Dr. Simion COSTEA** – Maître de Conférences professeur Jean Monnet à l'Université de Medicine, Pharmacie, Sciences et Technologie de Tîrgu-Mureș (Romania);

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L'Europe unie/United Europe is an academic international journal edited in Paris (French ISSN) by:

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