EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 08.06.2004 
COM(2004)409 final 
. 
REPORT FROM THE COMMISSION 
based on Article 11 of the Council Framew ork Decision of 13 June 2002 on combating 
terrorism 
{SEC(2004)688} 
. 
. 
 
EN 2   EN TABLE OF CONTENTS 
 
1. BACKGROUND.......................................................................................................... 3 2. METHOD AND CRITERIA FOR EVAL UATION FOR THIS FRAMEWORK-
DECISION ................................................................................................................... 4 
2.1.1. Framework-Decisions ex-Article 34, pa ragraph (2), point b) of the Treaty on 
European Union ........................................................................................................... 4 
2.1.2. Evaluation criteria ..................................................................................................... ... 4 
2.1.3. Context of evaluation ................................................................................................... 5 
3. ASSESSMENT ............................................................................................................ 6 
 
EN 3   EN 1. BACKGROUND 
Under Article 11 of the C ouncil Framework Decision of 13 June 2002 on combating 
terrorism1 (hereafter ‘the Framework Decision’), the Commission ha s to establish a written 
report on the measures taken by the Member St ates to comply with this instrument. 
Paragraph (1) of that Article obliges the Member  States to take the necessary measures to 
comply with the provisions of the Framew ork Decision by 31 December 2002. According to 
paragraph (2), by that same date Member States  should forward to the General Secretariat of 
the Council and to the Commissi on the text of the provisions transposing into their national 
law the obligations imposed on them under th is Framework Decision. The Council should 
assess, by 31 December 2003, on the basis of this  information and the written report by the 
Commission, to what extent Member States ha ve taken the necessary measures to comply 
with the Framework Decision. 
The quality and timeliness of the national information received by the Commission inevitably 
influences the value and the punctuality of this report. The Commission reminded Member 
States of their obligation by means of a letter sent the 9 December 2002. By 31 December 
2002, however, only five Member States (Austria , Germany, Ireland, Italy and Portugal) had 
provided the Commission with in formation on implementation a nd only two of them actually 
included the relevant transpos ing provisions. A document drawn up on this basis would have 
been virtually meaningless, so the Commissi on has had to admit late replies and gather 
complementary information from the contact pe rsons, when designated by Member States. By 
February 2003, seven more Member States (B elgium, Denmark, France, Finland, Greece, 
Spain, and the United Kingdom) had responded a lthough two of them just referred to new 
draft legislation. Sweden was the thirteenth  Member State to reply, on 5 November 2003. 
Luxembourg and the Netherlands did not reply. 
Therefore, although the deadline fo r forwarding the text of implementing provisions, as set in 
Article 11(2) of the Framework Decision, wa s the 31 December 2002, a dditional information 
provided until the cut-off date of 15 February 2004 has been taken into account. This report thus takes stock of the trans posal situation deriving from th e legislation that had been 
forwarded to the Commission by that refere nce date. A Commission staff working paper 
associated with this report contains a detailed analysis of national meas ures taken to comply 
with the Framework Decision, as well as a table specifying, in accordance with the 
information received by the Commission, the national provisions transposing each of the 
Articles. The Commission will, in a supplementa ry report, take into account the information 
supplied after that date and update, the case being, the information on national legislation. 
                                                
 
1 OJ L164, 22.6.2002,p. 3. 
 
EN 4   EN 2. METHOD  AND  CRITERIA  FOR  EVALUATION  FOR  THIS  FRAMEWORK-
DECISION 
2.1.1.  Framework-Decisions ex-Art icle 34, paragraph (2), point b) of the Treaty on 
European Union 
This Framework Decision is based on the Treaty establishing the European Union (TEU), and 
in particular Articles 29, 31 (e), and Article 34(2) (b) thereof. 
Framework decisions can best be compared with the legal instrument of a directive2. Both 
instruments are binding upon Member States as to  the result to be achieved but leave to the 
national authorities the choice of  form and methods. However, framework decisions shall not 
entail direct effect. 
2.1.2.  Evaluation criteria 
To be able to evaluate on the basis of objec tive criteria whether a framework decision has 
been fully implemented by a Member State, some  general criteria are developed with respect 
to directives which should be applied mutatis  mutandis to framework decisions, such as: 
1. form and methods of implementation of  the result to be achieved must be 
chosen in a manner which ensures that th e directive functions effectively with 
account being taken of its aims3; 
2. each Member State is obliged to implement directives in a manner which 
satisfies the requirements of clarity and le gal certainty and thus  to transpose the 
provisions of the directiv e into national provisions having binding force4, 
3. transposition need not n ecessarily require enactment in precisely the same 
words in an express legal provision; t hus a general legal context (such as 
appropriate already existi ng measures) may be sufficient, as long as the full 
application of the directive is assure d in a sufficiently clear and precise 
manner5; 
4. directives must be implemented w ithin the period prescribed therein6. 
Both instruments are binding ‘as to  the results to be achieved’. Th at may be defined as a legal 
or factual situation, which does justice to the in terest, which in accordance with the Treaty the 
instrument is to ensure7. 
                                                 
2 Article 249 EC Treaty. 
3 See relevant case law on the implementation of directives: Case 48/75 Royer  [1976 ECR 497 at 518]. 
4 See relevant case law on the implementation of directives: Case 239/85 Commission v. Belgium  [1986] 
ECR 3645 at 3659. See also Case 300/ 81 Commission v. Italy  [1983] ECR 449 at 456. 
5 See relevant case law on the implementation of directives for instance Case 29/84 Commission v. 
Germany  [1985] ECR 1661 at 1673. 
6 See substantial case law on the implementati on of directives, for example : Case 52/75 Commission v. 
Italy [1976] ECR 277 at 284, See, generally, the Commission annual reports on monitoring 
the application of Community law, fo r instance COM (2001) 309 final.  
7 See PJG Kapteyn and P. Verloren van Themaat ‘Introduction to the Law of the European 
Communities’, third edition, 1998, p. 328. 
 
EN 5   EN The general assessment provided for in Article 1 1, of the extent to which the Member States 
have complied with the Framew ork Decision, is -where possi ble- based on the criteria 
mentioned above. 
2.1.3.  Context of evaluation 
A first preliminary observation concerns the (l egal) context and follo w up of the evaluation 
report. Whereas the Commission has within the first pillar the authority to start an infringement procedure against a Member State this possibility does not exist within the TEU. 
The nature and purpose of this report differ, th erefore, from a report on the implementation of 
a first pillar directive by Member States. Nevert heless, as the Commission fully participates in 
third pillar matters
8, it is coherent to confer on it a task of a factual evaluation of the 
implementation measures enabling the Council to assess the extent to which Member States 
have taken the necessary measures in orde r to comply with this Framework Decision. 
Secondly, the Framework Decision must not be  regarded as a series of fragmentary 
provisions, but as a whole: a global system  whose elements are inevitably intertwined. 
Basically, it requires Member States to inco rporate the qualified concept of “terrorist 
offences” to their legal systems and, in particul ar, to incorporate the sp ecific terrorist intent, 
which is also implicit in Articles 2 (“Offences relating to a terrorist gr oup”) and 3 (“Offences 
linked to terrorist activities”). This requirement derives from the obligation, set up in Article 
5(2), to punish terrorist offences with heavie r custodial sentences than those imposable under 
national law for the correspondent “common” offe nces. Additionally, the obligations set up in 
Article 9 which provides for extended extraterrito rial jurisdiction without the possibility of 
making declarations and establishes a mechanism of  priority factors to be taken into account 
in case of positive conflicts of competence, al so go beyond the obligations ordinarily imposed 
by framework decisions. Although structurally si milar to other instruments aimed at the 
harmonisation of a particular field of criminal law, this Framework Decision thus differs from 
those that do not require the inco rporation of “specific offences” as long as the conduct to be 
criminalised is already covered by a generic incrimination9. In these cases, obligations 
regarding penalties can also be respected by applying the ge neral rules on the matter. 
Therefore although the evaluation can and will refer to each article these can not be 
contemplated separately. Partial or inexistent impl ementation of an article or part of an article 
will also reflect on linked provisions that cons idered independently might seem to comply 
with the requirements of the Framework Decisi on and will affect the system as a whole. 
Nonetheless, as divergences still exist the eval uation shall take, as far as appropriate, account 
of the general criminal legal background of the Member States. 
                                                 
8 Article 36 (2) Treaty on European Union. 
9 For example the “theft of a credit card”, to which Ar ticle 2(a) of the Council Framework Decision of 28 
May 2001 on combating fraud and counterfeiting of non-cash means of payment refers could be 
covered by the general provision on theft in the Criminal Code. 
 
EN 6   EN 3. ASSESSMENT 
Very few Member States have made a timely transmission to the Commission of all relevant 
texts of their implementing provisions. The f actual assessment and subsequent conclusions 
drawn are therefore sometimes based on inco mplete information. The Commission received 
no information from Luxembourg and Netherlands  and no specific information from Greece. 
This being said, the situation re garding transposal of the speci fic provisions in the twelve 
other Member States is as follows: 
Article 1: Eight Member States have specifically incrim inated terrorist offences as a separate 
category of crimes, although there are differe nces as to the extent and method of 
implementation while Ireland is in the process of  amending their legislation to this end. Italy 
and the United Kingdom provide only for a limited number of specific te rrorist offences and 
then qualify common offences by a terrorist intent either as an aggravating circumstance 
(in Italy) or by applying a general defini tion of terrorism (Un ited Kingdom). Germany 
appears not to have transpos ed this provision as required. 
Article 2: Most Member States have or  will have legislation that separately incriminates 
terrorist acts committed in rela tion to terrorist groups. In Sw eden and in Denmark (except 
certain acts of participation) terrorist groups and directing or participating in their activities 
have not been specifically incriminated, alt hough in some cases those who carry out such 
conducts may still be puni shed as principal or secondary pa rties to the relevant terrorist 
offence. 
Article 3: Only four Member States appear to have legislation that fully complies with the 
obligations under this Article. Ir eland should be able to comply after its new legislation enters 
into force. The rest of Member States which provided information to the Commission will be able to comply only partia lly with this provision. 
Article 4: Although only some Member States have  specific provisions on the matter, it 
appears that by applying general rules on complicity and inchoate offences they will be able 
to comply implicitly with this  Article, provided the preceding articles have been fully 
implemented.  
Article 5: Although only two Member States expressly referred to it in the information 
provided to the Commission, it appears they all w ill be able to meet the terms of paragraph 
(1). Eight Member States have or will have succeeded in meeting the obligation imposed by paragraph (2). For Germany, Spain, Ireland an d the United Kingdom it cannot be concluded 
that enhanced penalties will be provided for all the relevant offences. As regards paragraph (3), when it comes to directing a terrorist gr oup, seven Member States provide for the required 
penalties and three more, in which this conduct is not specifically incriminated, would also 
comply partially with this provision. Spain only complies with this provision as regards 
directing a terrorist group that merely threat ens to commit terrorist acts. When it comes to 
participating in the activities of  a terrorist group eight Member States fully meet the required 
terms, which can be considered as part ially met in four more Member States. 
Article 6: National legislation in six Member States specifically envisages the particular 
circumstances set up in this Article, whereas the rest have not referred to specific measures to 
implement this optional provision.  
 
EN 7   EN Article 7: Eight Member States have or will have, after completing their legislative 
procedure, legislation ensuring th at legal persons can be held liable for terrorist offences. 
From these, however, only four have provided enough information to demonstrate that they 
will be able to comply with Article 7(2). Sp ain, Austria, Sweden a nd the United Kingdom did 
not provide enough information to allow this Ar ticle to be considered fully implemented. 
Article 8: Seven Member States provide or will provide  for criminal or non-criminal fines for 
legal persons. Most of them also apply all or some of the optional penalties indicated in this 
provision. 
Article 9: All Member States will presumably be able to comply with this Article as regards 
the application of the territorial ity principle in Articles 9(1)(a),  9(1)(b) and 9(4). As regards 
extra-territorial jurisdiction, a ma jority of Member States have  or will have rules which to 
different extents cover the principles of active and passive personality, as required in Article 
9(1)(c) and (e). Article 9(1)(d) has only been e xpressly transposed in Austria and will be in 
Ireland, although it appears that Italy, Portugal and Finland would also be  in line with this 
provision. Eight Member States have or will ha ve legislation complying with Article 9(3) and 
other three will be able  to comply partially with this  provision. Finally, whilst Ireland will 
partially transpose Article 9(2), none of the Me mber States appear to have incorporated in 
their national legislations the criteria for solvi ng positive conflicts of jurisdiction referred to in 
this provision. 
Article 10: Only Austria provided enough information to demonstrate compliance with 
Article 10(1) although it seems likely that terrorist  offences are in all Member States treated 
as public offences for the purposes of invest igation and prosecution. Eight Member States 
provided information on additional measures to assist terrorist victim’s families, to which Article 10(2) refers. 
Article 12: The Commission has not received specific information on transposition in 
Gibraltar. 
In view of the foregoing, the Commission invite s the Member States which have not yet done 
so to ensure a rapid and complete transpositi on of the Framework Decision into their national 
law and to inform it immediately of the measur es taken with the text  of the statutory or 
administration provisions in force in support.