EUROPEAN COMMISSION Brussels, 18.11.2021 SWD(2021) 324 final COMMISSION STAFF WORKING DOCUMENT Evaluation of Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL based on Article 29(2) of Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA {COM(2021) 701 final}



Table of contents 1.Introduction 1.1. General introduction 1.2. Purpose and scope of the evaluation 2 2.Background to the intervention 2.1 Context 3 2.2 Description of the intervention and its objectives 2.3 Baseline and points of comparison 3.Implementation / state of Play 3.1. Description of the current situation 3.2. Definition of terrorism-related offences 7 3.3. Investigation, prosecution and adjudication of terrorism-related offences 8 3.4 Cooperation and exchange of information 3.5 Victim protection and assistance 9 4.Method 4.1 Short decription of methodology 4.2 Limitations and robustness of findings 5.Analysis and answers to the evaluation questions 5.1 Relevance

5.2 Effectiveness 20 5.3 Efficiency 5.4 Coherence 5.5 EU added value 5.6 Impact on fundamental rights and freedoms 5.7. Impact on the rule of law 5.8 Impact on the level of assistance and protection provided to victims of terrorism 6.Conclusions Annex I: Procedural information Annex II: Stakeholder consultation Annex III: Methods and analytical tools Annex IV: Evaluation criteria and questions Annex V: Intervention logic Annex VI: Main differences between Framework Decision 2002/475/JHA and Directive (EU) 2017/541 Annex VII: Approach to quantification of costs Glossary Term or acronym Meaning or definition The Directive Directive (EU) 2017/541 on combating terrorism The Framework Decision Framework Decision 2002/475/JHA Member States Member States bound by the Directive, i.e. all Member States except Denmark and Ireland The FRA The Fundamental Rights Agency The EESC The European Economic and Social Committee Terrorist offence A terrorist offence as defined by Article 3 of Directive (EU) 2017/541 on combating terrorism Offences related to a terrorist group The offence of Article 4 of Directive (EU) 2017/541 on combating terrorism Offences related to terrorist activities The offences of Title III of Directive (EU) 2017/541 on combating terrorism, i.e. Articles 5-12. Terrorism-related offences Not an official legal category, but used here to refer to all the offences covered by Directive (EU) 2017/541. The Council Decision Council Decision 2005/671/JHA on the exchange of information and cooperation concerning terrorist offences Adjudication The legal process of deciding a case, often ending in either conviction or acquittal Intent Intent to perform a criminal act CT-SIENA A secure platform operated by Europol, which allows EU law enforcement, cooperating partners and cooperating states outside the EU to exchange information, including restricted content on counter- terrorism 1. Introduction

1.1. GENERAL INTRODUCTION

On 15 March 2017, the Parliament and the Council adopted Directive (EU) 2017/541 on combating terrorism (hereafter “the Directive”). The Directive replaced Framework Decision 2002/475/JHA (hereafter “the Framework Decision”) and was adopted to strengthen the EU legal framework in this field by extending the crimes related to terrorism, providing police and prosecutors with the tools to prevent and combat terrorist offences and by better responding to the specific needs of victims of terrorism. Member States bound by the Directive (hereafter “Member States”) are to criminalise conduct such as training and travelling for terrorism, as well as terrorist financing. These harmonised definitions of terrorist offences, and the minimum rules set by the Directive, serve as a benchmark for cooperation and information exchange between national authorities. A common baseline within the EU also prevents the existence of legal loopholes that may be exploited by terrorists. The Directive also complements legislation on the rights for victims of terrorism. They are entitled to access to professional, specialist support services, immediately after an attack and for as long as necessary. Member States should have in place protocols and mechanisms to provide for efficient emergency response, including access to reliable information, thereby avoiding any additional suffering for victims of terrorism and their families. The deadline for incorporating the rules into national law was 8 September 2018.



In September 2020, the Commission adopted its report assessing the extent to which the Member States have taken the necessary measures to comply with the Directive, pursuant to Article 29(1). The transposition report concludes that the Directive represents a comprehensive legal instrument, the transposition of which has led to a substantive strengthening of the Member States’ criminal justice approach to terrorism and the rights afforded to victims of terrorism. 23 Member States adopted new legislation in order to ensure transposition of the Directive. However, a number of transposition issues encountered by the Commission in one or several Member States pose a particular concern: ·the incomplete or incorrect transposition of one or more of the terrorist offences listed in Article 3 of the Directive, including not qualifying the listed offences as terrorist offences, which impacts on the transposition of several other provisions; ·the lack of transposition of the element “contribute to the commission” in Articles 6, 7, 8, 9 and 11 of the Directive; ·the incomplete or incorrect transposition of Article 9 on travelling for the purposes of terrorism and Article 11 on terrorism financing, i.e. two of the new provisions introduced by the Directive; and ·shortcomings in the transposition of specific provisions for victims of terrorism.



These transposition issues could affect the application of the Directive and are therefore taken into account throughout the evaluation. In addition, the Commission is currently further assessing the transposition of the Directive and has opened infringement procedures against 13 Member States, urging these Member States to ensure correct transposition of the Directive.



1.2 PURPOSE AND SCOPE OF THE EVALUATION

Article 29(2) of the Directive requires the Commission to submit a report, by 8 September 2021, to the European Parliament and the Council, assessing the added value of the Directive with regard to combating terrorism. The report shall also cover the impact of the Directive on fundamental rights and freedoms, including on non-discrimination, the rule of law, and the level of protection and assistance provided to victims of terrorism. Annex IV lists in detail the evaluation criteria and questions. On the basis of the evaluation, the Commission shall, if necessary, decide on appropriate follow-up actions. In line with the Better Regulation guidelines, the Commission also takes this opportunity to assess the relevance, effectiveness, efficiency, coherence and EU added value. The Commission shall take into account the information provided by Member States under Decision 2005/671/JHA and any other relevant information regarding the exercise of powers under counter-terrorism laws related to the transposition and implementation of the Directive.



The evaluation criteria are assessed from the date of entry into force of the Directive, i.e. 20 April 2017, until June 2021. To assess the baseline situation, however, the temporal scope of the evaluation is from 2015 until June 2021. The Commission put forward its legislative proposal in 2015, which is why that year is taken as the baseline situation. During 2015 and the following year, the Framework Decision was in place, which was replaced and its provisions strengthened by the Directive. The functioning of the Framework Decision was last assessed with an implementation report in 2014 (for more details, please see section 2.3). The evaluation will cover the entirety of the Directive and all Member States that are bound by it. All EU Member States are bound by the Directive except for Denmark and Ireland, which did not take part in the adoption of the Directive. An external evaluation study was carried out by a contractor to support the Commission, following a call for services under a framework contract (for more information, please see Section 4.1).



The evaluation does not include other related interventions, as the Directive does not allow for delegated or implementing acts. However, Article 22 of the Directive amends Council Decision 2005/671/JHA on the exchange of information and cooperation concerning terrorist offences (hereafter “the Council Decision”). This amendment and any potential effects it has produced are therefore part of the evaluation. The Council Decision requires Member States to transmit certain information in relation to terrorist offences to Europol and Eurojust (Article 2(3)). In addition, Member States are required to make available any relevant information in relation to terrorist offences to the authorities of other interested Member States (Article 2(6)). Terrorist offences are defined in the Council Decision as the offences referred to in the Directive.



Another relevant intervention, which equally is not included in the evaluation, is the Terrorist Content Online Regulation, which entered into force in June 2021. This Regulation, which sets measures to address the dissemination of terrorist content online, will apply alongside the Directive and will be evaluated by June 2024.



In addition to the legal obligation of Article 29(2) of the Directive, there is a political urgency to evaluate the Directive. As the Commission concludes in its Counter-Terrorism Agenda for the EU, adopted in December 2020, the EU remains on high terrorist alert and the terrorist threat has evolved. Fully embedded in the Commission’s EU Security Union Strategy of July 2020, the Counter-Terrorism Agenda is the Commission’s strategic framework to counter terrorism for the years to come, and aims to step up the fight against terrorism and violent extremism and boost the EU’s resilience against terrorist threats. The Counter-Terrorism Agenda notes that the jihadist threat from or inspired by Daesh, al-Qaeda and their affiliates persists. Threats from violent right-wing and left-wing extremists are on the rise. The nature of attacks is also shifting. The vast majority of recent attacks have been carried out by individuals acting alone – often with limited preparation and easily available weaponry – targeting densely crowded or highly symbolic spaces. While single actor attacks are likely to remain prevalent, more sophisticated attacks cannot be excluded. The Counter-Terrorism Agenda therefore emphasises the need for the EU to be prepared for existing threats as well as to anticipate and prepare for emerging threats.



It is therefore timely and necessary to evaluate the functioning of the Directive and to what extent it is future-proof. On the basis of the evaluation, the Commission shall, if necessary, decide on appropriate follow-up actions. This could range from softer measures, such as providing guidance on applying the Directive, to harder ones, such as putting forward legislative proposals. 2. Background to the intervention The Directive is the cornerstone of the Member States’ criminal justice response to terrorism. It is a legal framework common to the Member States, gives a harmonised definition of terrorist offences, and serves as a benchmark for information exchange and cooperation between the competent national authorities. The Directive was, among others, adopted to take account of the evolution of the terrorist threat in the EU, and to fulfil legal obligations on the EU and Member States under international law, in particular in relation to the phenomena of foreign terrorist fighters and terrorist financing. Those addressed by the Directive are the Member States’ authorities, who need to ensure full transposition and implementation of the Directive in their national framework.



2.1 CONTEXT

Europol’s so-called TE-SAT (Terrorism Situation and Trend) reports provide an overview of the terrorism phenomenon in the EU in a given year. At the time of writing this Staff Working Document, the latest information available from the TE-SAT reports concerned the year 2020. For the terrorist threat picture, the evaluation has examined the years 2009-2020 to allow for the identification of longer-term trends. This examination shows several trends in terms of underlying ideologies and the nature of terrorist attacks.

Firstly, jihadist terrorism became an increasing threat to EU security, particularly since 2015. Nearly all fatalities from terrorist attacks in the EU since 2015 were caused by jihadist attacks. By contrast, although attacks specified as ethno-nationalist and separatist terrorism represented the largest proportion of all terrorist attacks, the number of such attacks has seen a significant decrease over the years. Extreme right-wing terrorism, extreme left-wing terrorism and anarchist terrorism, and single-issue terrorism have also been responsible for completed, failed and foiled attacks over the last years, with the overall numbers for these various forms of terrorism reported by Member States to Europol remaining more or less consistent. These developments continued in 2020. This shows how multifaceted the threat is that the EU is facing.



Moreover, a notable trend in the nature of terrorism over the last decade has been the progressive erosion of structured terrorist networks, and, in their place, the emergence of self-radicalised lone actors and small (often semi-structured or quasi autonomous) cells planning and carrying out violent attacks on their own, often without direction from a larger organisation. Many completed or failed attacks were committed by lone actors or small terrorist cells. This trend applies to jihadist terrorism (in 2020, all completed jihadist terrorist attacks were carried out by lone actors), but is also relevant in relation to right-wing extremism, wherein the doctrine of the ‘leaderless resistance’ is used as justification for individuals to perpetrate violent attacks without direction from a group or a leader.



Furthermore, foreign terrorist fighters travelling to and returning from conflict zones (mostly Syria and Iraq) posed a large risk to EU security. While the number of jihadists travelling from Europe has decreased since 2016, several jihadists are currently in detention in or near former conflict zones. A substantial number of foreign terrorist fighters from the EU remain unaccounted for.



2.2 DESCRIPTION OF THE INTERVENTION AND ITS OBJECTIVES

The Directive entered into force in April 2017. The legislative proposal was put forward by the Commission in December 2015, followed an accelerated procedure for its adoption without an impact assessment, and was formally adopted in March 2017 (for further details, see section 2.3). Annex V shows the intervention logic of the Directive in full detail.



As recital 4 of the Directive explains, the terrorist threat had grown and rapidly evolved in the years before adoption of the Directive. There was therefore a need to combat the changing nature and pattern of the terrorist threat (need 1). In addition, (returning) foreign terrorist fighters posed a heightened security threat to all Member States and had been linked to attacks and plots in several Member States. There was therefore a need to be better able to tackle this phenomenon, including through the further criminalisation of preparatory actions (need 2). Recital 9 notes that such offences related to terrorist activities are of a very serious nature and have the potential to lead to the commission of terrorist offences.



Explicitly combating terrorism on the internet was also necessary, to ensure that conduct is criminalised in online as in offline settings (need 3). Finally, there was a need to respond better to the specific needs of victims of terrorism and, more specifically, to further qualify these specific needs in accordance with the Victims’ Rights Directive (need 4).



To tackle these needs, the Directive sought to provide a common EU-wide understanding of what constitutes a terrorist offence and provide a baseline of measures to combat terrorism in light of the evolving and transnational nature of the terrorist threat. The Directive’s general objective is to combat terrorism through criminal law. According to recital 2, “acts of terrorism constitute one of the most serious violations of the universal values of human dignity, freedom, equality and solidarity, and enjoyment of human rights and fundamental freedoms on which the Union is founded”. More specifically, the Directive aims to: ·approximate the definition of terrorist offences, offences related to a terrorist groups and to terrorist activities, serving as a benchmark for information exchange and cooperation between competent national authorities (specific objective); ·establish minimum rules concerning the definition of criminal offences and sanctions in the area of terrorist offences, offences related to a terrorist group and offences related to terrorist activities (specific objective), and; ·enhance measures of protection of, and support and assistance to, victims of terrorism (specific objective). The expected impacts of the Directive are:

·strengthened security, including in relation to (returning) foreign fighters and the online sphere (intended impact), through further criminalisation of related conduct (means); ·enhanced capacity to deal with terrorist threats at an earlier stage (intended impact), through further criminalisation of offences related to terrorist activities which may have a preparatory character (means); ·enhanced cooperation and information exchange between Member States (intended impact), through further approximation of definitions and amendments to Council Decision 2005/671/JHA (means); and ·enhanced protection of, and support and assistance to, victims of terrorism (intended impact) through further specification of their needs (means).

These intended impacts are expected to materialise simultaneously, without an underlying chronology.





2.3 BASELINE AND POINTS OF COMPARISON

Due to the urgent need to adopt the Directive, an impact assessment was not carried out. Initially, the Commission planned to conduct an impact assessment in 2015 and, if warranted, to present a legislative proposal in 2016. However, a series of terrorist attacks across France, Belgium, Denmark and Germany underlined the need to act without delay. There was also an urgent need to integrate new international obligations into EU law. The legislative proposal for a directive on combating terrorism was published on 2 December 2015.



During the baseline period examined for the evaluation (2015), the Framework Decision was in place. Its provisions represent the points of comparison for the Directive. There are various important differences between the Framework Decision (as amended in 2008), and the Directive. A few important examples are mentioned here, with a more detailed overview included in Annex VI. Firstly, the Directive expanded the list of offences related to terrorist activities. For example, the provisions covering traveling for the purpose of terrorism (Article 9) and the financing of terrorism (Article 11) were introduced. The Directive also criminalised the receiving of training for terrorism (Article 8). With the Directive, a new provision on measures against public provocation content online was also introduced (Article 21). Finally, the Directive specifies the needs of victims of terrorism and sets minimum rules for the assistance, support and protection they should receive, which was not specified by the Framework Decision.



In addition to considering differences in provisions, the evaluation considers the differing degrees of national transposition of the Framework Decision. Several reports were produced to evaluate the Framework Decision. For example, a report from 2007 observed several shortcomings in its transposition. This related to, among others, incomplete or incorrect transposition of the provisions covering terrorist offences and of offences relating to a terrorist group. Another implementation report in September 2014 identified potential concerns in the implementation of the legal framework, for example in relation to the criminalisation of indirect provocation and the recruitment of lone actors. Some of these issues have persisted in the transposition of the current Directive, which is further explained in section 3. The baseline situation that the current Directive is compared against is therefore one in which a legal framework was already in place where certain shortcomings had been attested. The Framework Decision has, however, never been comprehensively evaluated according to the Better Regulation guidelines, and was primarily assessed with respect to transposition requirements. 3. Implementation / state of play 3.1. DESCRIPTION OF THE CURRENT SITUATION

The deadline to transpose the Directive expired on 8 September 2018. By this date, seven Member States notified complete transposition of the Directive and two notified shortly after. The Commission launched infringement procedures on 22 November 2018 against 16 Member States for failing to communicate the adoption of national legislation transposing the Directive. By the end of 2020, these Member States had notified complete transposition of the Directive and all pending infringements for non-communication of national measures transposing the Directive were closed. Most Member States bound by the Directive adopted new legislative measures or amended existing legislation in order to ensure full conformity with and transposition of the Directive: 23 Member States adopted new legislation (mostly amendments to pre-existing legislation, notably to the Criminal Code and Code of Criminal Procedure), while two Member States notified pre-existing legislation in transposition of the Directive. As discussed in the introduction, the Commission concluded in its transposition report that the transposition was overall satisfactory, but identified certain transposition issues regarding specific provisions of the Directive. Building on the report, but also updating and complementing the information therein, the evaluation assessed the transposition and practical implementation of the Directive by Member States. The sections below go into more detail about the implementation of specific provisions of the Directive. The external study used a comparative overview in eight focus countries (Belgium, Bulgaria, France, Germany, Greece, Italy, the Netherlands and Spain) to provide more details as to how the Directive is being implemented in practice. In its selection of the eight Member States, the Commission considered the experience of the Member State in dealing with terrorism (historically or recently) and the type of terrorist threats faced, while ensuring a balanced geographical representation.



3.2 DEFINITION OF TERRORISM-RELATED OFFENCES

Article 3 of the Directive requires Member States to ensure that certain intentional acts are criminalised as terrorist offences where committed with a terrorist aim: it does not just entail a requirement to criminalise specific acts, but also that such acts are labelled as terrorist offences in national legislation. Moreover, the Directive requires Member States to ensure that certain offences relating to a terrorist group and to terrorist activities are punishable as criminal offences when committed intentionally (Articles 4 to 12 of the Directive). The evaluation, supported by the findings of the external study, finds that several Member States already had national provisions covering the definition of terrorist offences before the Directive entered into force. Nevertheless, 18 Member States adopted new measures in order to comply with the minimum requirements of the Directive relating to the definition of terrorism-related offences and 15 Member States adopted new legislation related to the sanctions applicable to those offences. In several Member States, the changes were mere adjustments or minor amendments to existing legislation (generally the Criminal Code), but in a few cases, more significant amendments were adopted (e.g. introduction of new offences). More specifically, the rules on terrorism-related offences triggered such amendments in six Member States, while the provisions on sanctions led to significant changes in three Member States. Evidence from eight selected focus Member States show that these provisions have been transposed by the Criminal Code in all these Member States, in combination with other laws in four of those Member States. Moreover, three Member states reported having adopted measures to strengthen existing sanctions.



3.3 INVESTIGATION, PROSECUTION AND ADJUDICATION OF TERRORISM-RELATED OFFENCES

Article 19 of the Directive requires Member States to establish jurisdiction over the offences referred to in Articles 3 to 12 and 14 in certain cases, allowing them, at the same time, to extend that jurisdiction to other specified cases. Article 20 requires Member States to ensure effective investigative tools for investigating or prosecuting terrorism, as well as that authorities freeze or confiscate, as appropriate, the proceeds derived from the commission or contribution to terrorism. Finally, Article 21 requires Member States to ensure the prompt removal (or, if not possible, blocking) of online content constituting a public provocation to commit a terrorist offence. The evaluation, supported by the findings of the external study, finds that Articles 19 to 21 triggered legislative changes in less than half of the Member States. More specifically, 12 Member States adopted measures to comply with the provisions on the adjudication and investigation of terrorism-related cases (Articles 19 and 20) and ten did so to implement the obligation to block or remove provocation content online (Article 21) . Some Member States adopted changes in their national legislation to adapt them to the provisions of Article 21(1) on the removal of the content hosted outside the territory of the Member State. Evidence from the eight focus Member States shows that these provisions are mainly transposed by the Criminal Procedural Code, although other laws are also applicable, including the Criminal Code or laws to counter terrorist-financing. In all but one Member State, measures have been adopted or amended in recent years to strengthen the investigation and prosecution of terrorism-related offences, but only in three Member States were they a consequence of the Directive. In seven of the eight focus Member States, pre-trial investigations are carried out by specialised units within law enforcement agencies, either dealing only with terrorist cases or also with other types of serious crimes. Some Member States have established specialised bodies within the Public Prosecutor’s office or the national courts. In the case of Spain, the specialised bodies have long been established, whereas in France the specialised public prosecutor was established in 2019 as a result of the terrorist attacks. In Bulgaria, the specialised bodies are not responsible for all terrorism-related cases, but only for those against the State. In Belgium, however, pre-trial investigations are carried out by general bodies. 3.4 COOPERATION AND EXCHANGE OF INFORMATION Article 22 of the Directive amends Articles 1 and 2 of Council Framework Decision 2005/671/JHA, requiring Member States to make accessible as soon as possible relevant information gathered by its competent authorities in the framework of criminal proceedings in connection with terrorist offences covered by this Directive to the competent authorities of another Member State where the information could be used in the prevention, detection, investigation or prosecution of terrorist offences. The evaluation, supported by the findings of the external study, finds that Article 22 triggered amendments to national legislation in five Member States, and most of the amendments had a limited scope, concerning the process of exchanging information. Moreover, evidence from the eight focus Member States (as explained in section 4) indicates that some Member States adopted further measures to improve cooperation and information exchange in order to step up cooperation in light of recent attacks. Furthermore, it was concluded that the main factors enhancing cooperation and information sharing are the participation in all relevant investigative channels for information sharing (such as Europol), as reported by 10 Member States, and the presence of internal bodies to exchange information, as reported by six Member States. Three others mentioned the importance of the implementation of information exchange channels such as CT SIENA. Furthermore, 15 Member States reported already having measures in force prior to the entering into force of the Directive. The evaluation is not able to ascertain the frequency with which Article 22 is being applied in practice. The lack of relevant data on the amount of information exchanged within the Member States, as well as the different criteria for collecting and retaining information, does not allow for identifying trends in measuring the frequency of information exchange. Nevertheless, Member States have implemented measures to ensure that information is made available as soon as possible, both spontaneously and upon request, and that overall they are able to quickly and correctly identify the competent authorities of other Member States. In terms of practical implementation, six Member States reported that they have encountered problems when trying to send information to, or receive information from, the relevant authorities of other Member States. In addition, the case studies in eight Member States show that in some Member States, the Directive is deemed to have contributed to the strengthening of cooperation and exchange of information between Member States, and to have facilitated the process of cooperation and information exchange.



3.5 VICTIM PROTECTION AND ASSISTANCE

The Directive complements legislation on the rights for victims of terrorism and includes measures that respond more precisely to the needs of victims of terrorism: Title V of the Directive is dedicated to the protection and support of victims of terrorism, including the rights of victims of terrorism resident in another Member State. Article 24 of the Directive contains specific obligations for Member States with regard to the provision of assistance and support to victims of terrorism. Article 25 requires Member States to ensure that measures are available to protect victims of terrorism and their family members in accordance with Directive 2012/29/EU, and Article 26 lists rights of victims of terrorism who are residents of a Member State other than that where the terrorist offence was committed. The evaluation, supported by the findings of the external study, finds that the obligations established in Title V of the Directive led to the adoption of legislative measures in the majority of Member States: 16 Member States adopted new legislative measures in order to transpose Title V of the Directive, of which six Member States implemented changes that were of major significance. In some cases, these concerned the provision of new types of support, such as the establishment or nomination of a national single contact point and the launch of online information services or helplines. The evidence also shows that, despite some challenges and gaps in the transposition of the provisions, most Member States comply in practice with the obligations of Articles 24 to 26. To provide assistance and support services to victims of terrorism, many Member States combine services provided directly by the state and by NGOs. In some cases, such services are almost fully provided by the state or led by an NGO. Among the Member States where the responsible entity is specialised in victims of terrorism, two set them up recently, one as a result of the Directive or following recent attacks. Additionally, the external study also found that evidence from the eight focus Member States points to a link between the state of development of the system to assist and protect victims of terrorism and the experience in dealing with terrorist attacks. In this regard, three main groups can be distinguished: a) Member States with a long tradition in this area (France and Spain), where no new measures related to the Directive were adopted; b) Member States with more recent terrorism-related experience (Belgium, Germany and the Netherlands), which have strengthened their systems since 2015, mostly as a result of specific attacks (with the exception of some administrative measures in the Netherlands), and c) Member States with less terrorism-related experience, which have implemented measures as a result of the Directive, e.g., the appointment of a national contact person for victims of terrorism (Bulgaria). Moreover, it was concluded that good or innovative practices identified – adopted both before and after 2017 - usually stem from Member States that have experienced terrorist attacks, either historically or more recently.



Additionally, the evaluation also examined the practical implementation of assistance and support services to victims of terrorism and concluded that, overall, Member States have implemented the services required by the Directive, including general victim support, medical support following an attack, emotional and psychological support, the provision of advice and information, and assistance with claims regarding compensation. In most Member States, these services are provided in accordance with the provisions of the Victims’ Rights Directive, but Member States have adopted different approaches in some areas. An example of this is the one-stop-shop solution adopted in Member States such as France and Spain to provide advice and information to victims of terrorism, or the activation of ad-hoc information and advice mechanisms set up after an attack takes place, such as the online information and advice centre in the Netherlands, or hotlines in France and Germany. Similarly, some Member States provide more far-reaching assistance and support services to victims of terrorism. For example, France and Spain grant medals to victims of terrorism and provide long-term psychiatric or psychosocial support (in the case of France, including to people not officially recognised as victims, for a period of two years). Financial compensation provided by the state to victims of terrorism is also provided in at least four of these Member States (France, Italy, Spain, Belgium), in some cases complemented by other financial support schemes, such as scholarships (e.g. Italy, Spain) or tax exemptions (e.g. inheritances from persons who have died as a result of terrorist acts is exempt from tax in France).



The main issues with the practical implementation of Article 24 concern challenges linked to the identification and registration of victims of terrorism, which some stakeholders from victims’ associations underlined as persisting in some Member States. As highlighted in the EU Handbook on victims of terrorism, accurate identification and registration of victims is crucial, as it allows for responding to their needs after the emergency response phase. One stakeholder clarified that the issue is twofold – on one hand, victims who are not badly injured often try to escape the place of the attack as soon as possible after the incident, and on the other hand, sometimes there are difficulties to identify whether a person is a victim, especially in large-scale attacks in open spaces.



On protection measures (Article 25), most Member States comply with the obligations established by the Directive and the Victims’ Rights Directive, although different approaches exist across Member States. In Germany, for instance, the Federal Government Commissioner can act as an intermediary between victims and the authorities responsible for the criminal investigation, by setting up meetings during which victims can pose questions to the leaders of the investigation. In the Netherlands, a guidance document was developed, which describes the division of responsibilities, the operation of the protection system for victims (and their relatives) and elaborates on the practical protection measures in place. No major implementation issues with the application of this article have been observed.



On assistance to and protection of cross-border victims of terrorism (Article 26), the services provided by Member States are generally available to all victims of terrorism, irrespective of their nationality. In addition, the majority of Member States provide assistance and support to victims’ resident on their territory, even if the terrorist offence was committed in another Member State. However, the evidence collected reveals that the provision of assistance and protection in cross-border cases is the most problematic area within Title V. Coordination in these cases is usually done through diplomatic channels or national contact points. However, there are obstacles hindering effective cooperation and coordination. In some Member States with experience of terrorist attacks, connections that were already established with competent bodies from other Member States greatly facilitated cooperation in cross-border cases. However, where this is not the case, the responsible bodies usually find it difficult to ensure adequate support due to the limited information they have on the situation in other Member States.



Another obstacle to effective cooperation between Member States in relation to cross-border victims is the lack of a secure tool for exchanging information on individual situations, both in the aftermath of the attack or during the longer-term follow-up. This includes uncertainty on how to apply the standards from the General Data Protection Regulation. This is further discussed in Section 5.1.2. 4. Method

4.1 SHORT DECRIPTION OF METHODOLOGY

The evaluation aimed to analyse the implementation and application of the Directive in the Member States according to a number of specific criteria set out in the Commission’s Better Regulation Guidelines (relevance, coherence, effectiveness, efficiency, and EU added value), as well the impact of the Directive on fundamental rights and freedoms, the rule of law and the level of protection and assistance provided to victims of terrorism.

A wide range of stakeholders were consulted as part of the evaluation. These included: Member States’ authorities responsible for the implementation of the Directive, the Commission, the European External Action Service, the Fundamental Rights Agency (hereafter “the FRA”), Europol, Eurojust, civil society, academia and think tanks, and the general public. A more detailed description of the consultations is described in the Synopsis Report in Annex II.



The external evaluation study was carried out by ICF Consulting Services Limited (hereafter “ICF”), following a call for services under a framework contract. The evaluation was conducted through a mixed methods approach and was informed by the triangulation of a variety of sources. A range of methodological tools and techniques were used. For more details on the methods and the stakeholder consultation, please see Annexes II and III of this Staff Working Document. The evaluation was informed by thorough desk research of documentation available online or provided directly to either the Commission or ICF. ICF also conducted a mapping of the practical implementation of the Directive. As for evidence gathered through desk research during the course of the evaluation, 123 documents in the following categories were reviewed: EU legislative and policy documents, reports and documents by EU-level institutions and stakeholders, national sources, documents by international governmental and non-governmental organisations, and civil society sources and academic literature. The external study also produced a comparative overview of national findings in eight selected focus Member States (Belgium, Bulgaria, France, Germany, Greece, Italy, the Netherlands and Spain), providing more details on how the Directive is being implemented in practice.



As for field research, a comprehensive email questionnaire covering all the evaluation criteria and designed to be able to answer all the evaluation questions was used to target national authorities responsible for transposing and implementing the Directive, with the request to Member States to coordinate internally among relevant services. Almost all Member States (23 out of 25) filled out this questionnaire. Additionally, two targeted online surveys were used, one targeting counter-terrorism units in law enforcement agencies, and one designed for members of the judiciary and prosecutors dealing with terrorism-related cases. ICF received a total of 45 responses to the two surveys and the email questionnaire.



Furthermore, ICF held further targeted interviews with 41 stakeholders (see Annex II for more details). ICF also organised a webinar session on 26 April 2021, gathering national associations and other stakeholders representing the interests of victims of terrorism, via the EU Centre of Expertise for Victims of Terrorism. A total of 10 associations and stakeholders representing the interests of victims of terrorism in 7 Member States participated in this session.



In addition to the consultation activities carried out by ICF, the Commission organised two workshops. The first workshop, on 15 April 2021, was a stock-taking workshop, to which Member States’ representatives as well as the Commission’s inter-service steering group was invited. 57 representatives from 24 (out of the 25 concerned) Member States were present, with representatives from different relevant services, such as ministries of interior, ministries of justice, the judiciary, law enforcement and intelligence. DG HOME, ICF, the FRA and the European Economic and Social Committee (hereafter “the EESC”) gave updates on the work they were carrying out, providing space for Member States to comment and provide feedback. The second workshop, on 1 July 2021, presented the preliminary findings to the Member States, Europol and Eurojust, with the purpose of confirming whether the findings are in line with the views of those responsible for implementing and applying the Directive. Next to the targeted consultations, the Commission organised an internet-based public consultation. 23 contributions were submitted through the online questionnaire during the consultation period from 24 March to 16 June 2021, which is used as anecdotal evidence. The contributions were published on the Commission website. In addition, on the request of the Commission, in April 2021 the FRA submitted a contribution to the Commission on the impact on fundamental rights and freedoms of the Directive. For this purpose, the FRA conducted interviews with 107 practitioners (defence lawyers, judges and investigative judges, law enforcement, public prosecutors, NGOs, and academia) in seven selected focus Member States (Belgium, France, Germany, Greece, Hungary, Spain and Sweden). The FRA will publish a more detailed report that includes key findings and FRA opinions. Moreover, Eurojust provided a contribution focusing on provisions used in recent prosecutions and convictions for terrorist offences. Its contribution also contained a highly insightful overview of relevant case law. The Commission had requested such a contribution from Eurojust to be able to take into account the information provided by Member States under Decision 2005/671/JHA, as required by Article 29(2) of the Directive. Finally, at their own initiative, the EESC conducted an independent evaluation of the Directive and produced an information report, which was also used as a source for the current evaluation.

The evaluation is thus based on a combination of extensive desk research and field research, legal analysis including relevant case law, and a wide variety of stakeholder feedback through consultations carried out by the external contractor, but also by the Commission, the FRA and the EESC. This made it possible to triangulate the findings of the evaluation.



There has been no methodological deviation from the evaluation roadmap. A more elaborate description of the methodology applied and the stakeholder consultations are provided in Annexes II and III. 4.2 LIMITATIONS AND ROBUSTNESS OF FINDINGS

Several limitations have impacted the breadth and quality of the evidence collected as part of the evaluation, to varying degrees affecting the robustness of some of the findings presented in this report. This section summarises the key methodological limitations. Further details are provided in Annex III.



4.2.1 Evidence on the practical implementation and the costs of implementation

The mapping of the practical implementation of the Directive in all Member States and the case studies in eight Member States required a good understanding of the legislative framework in the Member States and the changes that were a result of the Directive. In most Member States, the evidence provided by stakeholders and publicly available sources was sufficient to draw evidence-based conclusions. However, this was not the case for a few Member States, which did not always provide sufficient evidence during the consultations for the external study.



In addition, the assessment of the extent to which the Directive is being applied equally to all types and forms of terrorism is exclusively based on stakeholder feedback due to the difficulties to obtain hard data to support it (i.e. if the Directive is not being applied to other types of terrorism they would not be reported as terrorist offences). Consequently, this somewhat limited the ability of the external study to provide a complete assessment of how the Directive is being practically implemented across all Member States. This impacts particularly Chapter 3 on implementation. Specific examples given in this chapter stem from those Member States that provided sufficient input on their practical implementation. Nevertheless, this limitation was mitigated by several factors. The additional consultations and research carried out for the external study in the eight focus Member States partially mitigated the impact of this limitation, as it provides more detailed evidence of how the Directive may have impacted Member States with different experiences as far as countering terrorism and providing support to victims of terrorism concerns. The negative impact of this limitation is also mitigated by the fact that the Commission has very recently published its transposition report and has consequently discussed this report in several Council working groups and with Member States bilaterally, thus enhancing its understanding and knowledge of the practical implementation within the Member States. In addition, Eurojust provided valuable information on the practical implementation of the Directive, by providing an overview of relevant case law. This information also illustrated the practical implementation and functioning of the Directive.



Similarly, the assessment of the impact of the Directive on fundamental rights is limited by the fact that Member States do not regularly monitor this aspect. Even in Member States where this is done, the assessment relates to wider counter-terrorism measures, making it difficult to disentangle the exact impact of the Directive from that of other measures. This point is reflected in section 5.7 on fundamental rights. Given the absence of hard data on fundamental rights issues, the evaluation reflects mostly the views of a wide variety of stakeholders. Finally, another evaluation criteria for which the lack of data has been limiting is the assessment of the efficiency of the Directive. There are multiple reasons for the lack of quantitative data on the costs related to the implementation of the Directive, namely: ·Incremental costs are not monitored and reported as a separate item in national budgets or financial reports; ·A multitude of institutions involved in the implementation of the Directive, with no central entity that compiles and reports on related costs for all authorities involved; ·Multiple types of implementation costs: while some of the costs may be possible to account for, others cannot be clearly distinguished from the regular costs; ·Shared resources in many organisations, e.g. a unit monitoring online terrorist content would also handle other online crimes; agencies supporting victims of terrorism may also support victims of other crimes; ·Scale of counter-terrorism costs, which in many Member States represent a relatively small portion of their regular activities. As a result, the cost of counter-terrorism activities is not budgeted or reported separately, although a few exceptions were identified.

Section 5.3 on efficiency explains how these limitations were mitigated. In short, the external study quantified the costs of implementing the Directive to the extent possible, and compared these against the benefits of the Directive as reported by stakeholders.

4.2.2 Low response rate from some stakeholders targeted by the stakeholder consultation

The comprehensive questionnaire, which was aimed to capture the entire breadth of the evaluation, was filled out by 23 of the 25 Member States and provides a robust basis for the evaluation. The external study has been successful in getting the views of all relevant types of stakeholders. This means that although the response rate was lower than hoped, especially for the targeted online surveys, the balancing of different stakeholders views can still be adequately done on the basis of the feedback received. In addition, next to the external study, the Commission had two additional sources of information to rely on: the contributions from the FRA and from Eurojust. On top of the external study, the FRA also consulted relevant stakeholders. Eurojust has also held and reported on meetings, during which practitioners commented on the relevance and usefulness of the Directive . These are all important sources of information, next to the external study.



For the external study, the response from stakeholders was lower than expected, especially for the targeted consultations through online surveys. As these targeted consultations targeted in particular members of the judiciary and prosecutors dealing with terrorism-related cases, this means that, comparatively, the evaluation relies on richer input from national authorities responsible for transposing and implementing the Directive, which were consulted through a comprehensive email questionnaire. The external study reports that a short timeline to carry out the consultations, combined with some initial delays in the launch of the surveys and the wide range of stakeholders involved in the implementation of the Directive at national level (and regional in some cases), led to significant delays in the organisation of the first interviews. Other factors (e.g. interviewees affected by COVID-19, holiday period) resulted in further delays on the part of the stakeholders to contribute to the external study.



The external study also reports that stakeholder fatigue appears to have limited the interest and availability of some of these specific stakeholders to contribute to the study. For example, another evaluation of the same Directive was carried out simultaneously by the EESC (referenced in this document as an additional source of information), at their own initiative. This meant that the same stakeholders were requested to provide similar feedback for two different evaluations within a brief period of time. 5. Analysis and answers to the evaluation questions Summary findings – relevance

The scope and definitions of the Directive, as well as its minimum rules, are overall highly relevant. This finding was supported by a large majority of the stakeholders consulted. The relevance has been considered against the main terrorist trends in the EU. In relation to the expected relevance in the coming years, the evaluation finds that the Directive is expected to remain relevant in the next years. Both for the relevance in the reference period, as well as the relevance in the coming years, some minor gaps are identified, in particular in relation to the provisions on victims of terrorism. 5.1 RELEVANCE





The evaluation’s findings on relevance are in line with the EESC’s evaluation of the Directive, which concludes that “its relevance and usefulness are widely recognised by the civil society organisations and public authorities that were consulted”.



5.1.1 Relevance of the scope and definitions of the Directive

This sub-section examines the relevance of what the Directive covers, i.e. its scope and definitions. The evaluation finds that the scope and the definitions of the Directive were overall suitable, and fit for purpose considering the main current terrorist trends in the EU, although it identified minor gaps in light of the changing nature and pattern of the terrorist threats faced by the Member States (which is outlined in the introduction).



Stakeholders involved in the implementation of the Directive and the investigation and prosecution of terrorism in Member States generally deem the scope and definitions of the Directive to be suitable and adapted to the current terrorist trends. The scope was positively assessed by a great majority of counter-terrorism units and members of the judiciary. National authorities also considered the scope adequate, as nearly all of the respondents to the questionnaire carried out for the external study indicated that they could not identify any gaps and that there were no unnecessary provisions. Across these three groups of stakeholders, the great majority of those who participated in the surveys indicated that the definitions contained in Articles 3-12 are still fit for purpose and adapted to the changing nature and pattern of terrorist threats, an opinion that was shared by international organisations consulted. A majority of national authorities and members of the judiciary find the scope of Article 3 (which is the core of the Directive as it covers terrorist offences) to be “just right”, with only a small minority stressing that the definition is too narrow. The definitions are also considered to be complete; when asked whether other terrorism-related offences should be included, all counter-terrorism units answering to the survey indicated that there was no need. This view was echoed by a respondent to the public consultation, representing an NGO, who held the view that “the definition provided in Article 3 seems to offer a comprehensive basis for countries to prosecute all types of terrorist offences ... However, while delivering a solid framework, Article 3 leaves the Member States enough room to adopt a definition that corresponds to their sensitivity”.



Nevertheless, some members of the judiciary, as well as a small number of national authorities, identified minor gaps. For example, these stakeholders saw scope to include in the Directive’s definitions activities such as collecting data and information regarding targets, or to consider also to make more explicit the notions of “extremism” and “lone actor terrorism”. A respondent to the public consultation held the view that food security should be more explicitly covered by Article 3(1)(h), although they also noted that attacks on the food chain may qualify as a “fundamental natural resource” in line with Article 3(1)(h). Some scholars and other stakeholders (mainly non-governmental organisations) were more critical and held the view that the definitions of the Directive are too broad and leave a wide margin of discretion for Member States when transposing and implementing the Directive . The FRA also noted this in relation to certain specific offences. This is further discussed in section 5.8.



Finally, a small number of members of the judiciary, prosecutors and national authorities noted that Article 3 might not have adequately addressed the problem of small-scale terrorist offences, as it requires that terrorist offences “may seriously damage a country or an international organisation”. Likewise, a small number of stakeholders from the judiciary and national authorities noted that the definition of “structured group” (Article 2(3)) might have failed to capture the progressively loosening structure of terrorist groups. Furthermore, some experts held the view that there is a lack of clarity around the level of participation that is required to establish participation in the activities of a terrorist group (Article 4), which could affect the relevance of the provision.



5.1.2 Relevance of the minimum rules on criminal offences and sanctions in the area of terrorism, and the measures of protection of and support to victims of terrorism

This sub-section examines the relevance of how the Directive covers the offences included in its scope, i.e. its minimum rules. The evaluation finds that the minimum rules laid down by Titles I-IV (Articles 1-23) are suitable and fit for purpose considering the main terrorist trends and the changing nature and pattern of terrorist threats faced by Member States. The evaluation also finds that the Directive is relevant to address the needs of victims of terrorism, although some gaps and challenges have been identified.



In 2019, the Council of the EU noted that, in general, minimum rules within the EU substantial criminal law facilitate the application of the principle of mutual recognition by approximating the definition of certain offences and sanctions. More specifically, national authorities acknowledged the overall relevance of the minimum rules contained in the Directive to counter terrorism in the current context.



The Directive contributes to countering terrorism by setting a basis for cooperation and information exchange, which will be further explained in section 5.5. Cross-border cooperation and information exchange is crucial to combat terrorism, as terrorists do not usually operate or stay in only one Member State. It is therefore crucial that relevant information is transmitted as soon as possible to other relevant Member States. For the information to flow smoothly and rapidly, and for all Member States to be able to act on the received information, it is crucial that there is a common legal understanding within the EU of what constitutes a terrorist offence. By setting harmonised definitions and minimum rules, the Directive allows for precisely this information exchange.



Stakeholders representing national authorities, counter-terrorism units and the judiciary expressed positive opinions on the relevance of the minimum rules on the different criminal offences covered in Titles I-IV (Articles 1-23). On sanctions (articles 15-18), also the great majority of national authorities held the opinion that the provisions on sanctions for natural and legal persons were adequate and fit for purpose and did not present specific gaps or issues in terms of their relevance. Only one national authority from one Member State pointed to differences in the implementation by different Member States and concluded that this shows that the minimum rules leave too much space for Member States. In addition, one member of the judiciary stated that the minimum rules on definitions and sanctions were not relevant. A few stakeholders noted that the relevance of the Directive would be stronger if the minimum rules were strengthened for certain provisions. For example, one national authority from one Member State noted that Article 21 on measures against public provocation content online could be strengthened to increase its relevance, and the relevance of the Directive as a whole within the online context. The evaluation also assessed in more detail the minimum rules contained in Title V (Articles 24-26), which seek to ensure that Member States provide a minimum level of support, assistance and protection services that address the specific needs of victims of terrorism. Most stakeholders representing national authorities, counter-terrorism units and the judiciary, as well as two international stakeholders, considered these rules to be relevant and equipped to address the current needs of victims of terrorism. The opinion among victims’ associations was slightly more divided; among the four associations who specifically commented on the relevance of the Directive, three assessed it positively, while another disagreed. ·Current terrorist organisations feature a more flexible and loose structure than old networks. Furthermore, offences carried out by lone actors can be even more difficult to predict; ·Terrorist organisations have become more resilient to law enforcement, which is linked to the increasingly loose structure of terrorist organisations, which makes detection more difficult.

Summary findings – effectiveness

The Directive has achieved its objectives to a satisfactory extent. Overall, the Directive seems to be equally applied to all forms of terrorism, which is important given the current and evolving threat picture. Nevertheless, there are certain factors that limit the effectiveness of the Directive, for example in relation to combating extreme right-wing terrorism.

The evaluation finds that the Directive constitutes a solid legal instrument with a high degree of relevance given these current trends, which it expects to continue in the coming years. Some stakeholders highlighted challenges in tackling violent right-wing extremism and terrorism, which is further discussed in section 5.2.3. A respondent to the public consultation, representing an NGO, held the view that “issues that could be considered for a revision are the inclusion of provisions dealing with the need of Member States to take appropriate measures against radicalisation and for the development of more effective reintegration measures, as well as on further strengthening the framework on combatting the financing of terrorism in light of new technologies”.



In relation to the needs of victims of terrorism, national authorities consulted generally expect the Directive – in terms of scope, definitions and minimum rules – to remain relevant to the needs of victims of terrorism. In contrast, the few victims’ associations that specifically commented on this showed a more divided opinion. Two associations questioned the relevance of the Directive in the coming years, while one argued that although there are aspects that could be improved, the Directive is expected to remain relevant and is generally adequate to meet the needs of victims of terrorism.















5.2 EFFECTIVENESS





5.2.1 Achievement of the objectives

The general objective of the Directive is to combat terrorism through criminal law. The specific objectives are to: ·approximate the definition of terrorist offences, offences related to a terrorist groups and to terrorist activities, serving as a benchmark for information exchange and cooperation between competent national authorities; ·establish minimum rules concerning the definition of criminal offences and sanctions in the area of terrorist offences, offences related to a terrorist group and offences related to terrorist activities; and ·enhance measures of protection of, and support and assistance to, victims of terrorism.



This subsection assesses to what extent two specific objectives were achieved. The third specific objective, related to victims of terrorism is assessed separately in section 5.8 for the sake of clarity, as Article 29(2) of the Directive requires the Commission to explicitly report on the impact the Directive has had on the level of protection and assistance provided to victims of terrorism.



5.2.1.1 Approximating the definition of terrorist offences, offences related to a terrorist groups and to terrorist activities, serving as a benchmark for information exchange and cooperation between competent national authorities

The intended impact of this specific objective is to enhance cooperation and information exchange between Member States through the approximation of definitions. The evaluation finds that in terms of approximating the definition of terrorist offences, the Directive has achieved progress as compared to the baseline situation under the preceding Framework Decision.



Article 3 (terrorist offences) and Article 4 (offences related to a terrorist group) of the Directive are similar to their preceding provisions of the Framework Decision, except for Article 3(1)(i) of the Directive. Accordingly, the offences defined in Articles 3 and 4 had already been approximated to some extent before the adoption of the Directive. However, the great majority of national authorities and counter-terrorism units indicated that Articles 3 and 4 of the Directive have approximated the definition of terrorist offences and offences related to a terrorist group at least “to some extent”, which suggests that the Directive has provided some degree of improvement in relation to the baseline situation when the Framework Decision was in place.



The Directive achieved its objective also in approximating the offences related to terrorist activities (Articles 5 to 12), as reported by the great majority of respondents from national authorities and the judiciary. For instance, one national authority from one Member State pointed out that offences related to terrorist activities are defined in a sufficiently precise way to express the various ways of committing such offences. Another national authority from one Member State noted that there is considerable approximation for the offences of Title III of the Directive and especially the offences in Articles 8 to 11, since the Framework Decision did not yet contain these offences, or not in full. Furthermore, the Directive triggered legislative changes in 23 Member States, as explained in section 3. These are important changes compared to the baseline situation. It is important to note, however, that the Directive only sets minimum rules. Some Member States have opted to go beyond this minimum, which has led to a fragmented implementation across the Member States (see section 3). In addition to the room left for Member States to go beyond the minimum requirements set by the Directive, Member States identify challenges in relation to proving terrorist intent, which is discussed in section 5.2.3 as a factor limiting the effectiveness of the Directive. These challenges have potentially hindered the full potential of the Directive to further approximate the definitions of offences related to terrorist activities.



As for the intended impact to enhance cooperation and information exchange between Member States, evidence from the stakeholder consultation carried out for the external study suggests that Article 22 of the Directive has had some impact in terms of facilitating the exchange of information between counter-terrorism organisations in different Member States. The case studies in eight Member States show that, in four of those Member States (Belgium, Germany, Italy and Spain), the Directive is deemed to have contributed to the strengthening of cooperation and exchange of information between Member States, in combination with other EU-level tools. In Germany, stakeholders clarified that while the number of exchanges has not varied since 2017, the Directive has facilitated the process of cooperation and information exchange. The other Member States acknowledged that cooperation has improved in the last years, but whether this is due to the Directive is either questioned (Bulgaria) or rejected (France, Greece, the Netherlands). In addition, and not just related to Article 22 but to the Directive in general, most stakeholders from national authorities and victims’ associations believe that the Directive has facilitated overall cooperation between authorities and entities providing specialist support to victims between Member States. One member of the judiciary in Italy noted that the Directive, together with other European directives, has brought a clear benefit and enhanced the effectiveness of cooperation and exchange of information between the police and the magistrates of the Member States. This has been noted also in the interviews with international stakeholders, who pointed out how the adoption of a common lexicon on combating terrorism at an EU level increased the effectiveness of the exchange of information amongst Member States and international organisations.



5.2.1.2 Establishing minimum rules concerning the definition of criminal offences and sanctions in the area of terrorist offences, offences related to a terrorist group and offences related to terrorist activities

The intended impact of the specific objective to establish minimum rules is to strengthen security and enhance the capacity to deal with terrorist threats at an earlier stage. The evaluation finds that in terms of establishing minimum rules and achieving the intended impact, the Directive has made progress as compared to the baseline situation under the preceding Framework Decision, although there are factors limiting the effectiveness of the Directive, which are further discussed in section 5.2.3.



The functioning of the Directive relies on its transposition into national law, and so does the establishment of minimum rules in practice. The analysis of the implementation in the eight focus Member States of the external study reveals that, while some of the transposition gaps identified in the Commission’s transposition report have been addressed or can be considered to be minor, some transposition issues in certain Member States are more serious and remain. More generally, the Commission identified transposition issues in all Member States in its 2020 transposition report. Some of these issues are further explained in section 3. This impacts negatively the establishment of minimum rules and the setting of a common baseline, and could potentially affect the ability of authorities to effectively investigate and prosecute terrorism-related cases.

The general objective of the Directive is to combat terrorism through criminal law, i.e. through effective investigation, prosecution, adjudication and sentencing of the offences covered by the Directive. If the specific objective of establishing minimum rules is achieved, it was expected that that should positively impact Member States’ ability to investigate, prosecute, adjudicate and sentence the offences covered by the Directive.



However, half of the national authorities consulted reported that the Directive has had no impact on their ability to investigate terrorism-related offences, while one third considered that the Directive made investigation somewhat or significantly easier. Just under half of the national authorities indicated that the Directive has had no impact on their ability to prosecute terrorism-related offences – a notable minority indicated that the Directive has made prosecution somewhat or significantly easier. Just over half the national authorities reported that the Directive has had no impact on adjudication of terrorism-related offences – and a minority indicated that the Directive made adjudication somewhat or significantly easier. The impact of the Directive on sentencing is covered below. These findings are to a certain extent unexpected, especially in light of the strong relevance of the Directive reported under section 5.1. Accordingly, section 5.2.3 covers factors that limit the effectiveness of the Directive. The evaluation examined also the effectiveness of Article 21 of the Directive, covering measures against public provocation content online. The majority of respondents agreed that the minimum rules set by Article 21 (and corresponding national provisions) has been effective in ensuring that online terrorist content is promptly removed or blocked. However, some issues that are external to the Directive have been identified that limit the effectiveness of this provision, for example in relation to national transposition issues. The EESC notes that the stakeholders it consulted also expressed satisfaction with the effects of Article 21, and that “messages directly calling for violence are also removed from commonly accessible sites and networks, which is a major step forward”.



As for the minimum rules on sanctions, the evaluation finds that the Directive achieved its objective by harmonising the minimum rules on sanctions across the Member States, as for example evidenced by the fact that several Member States introduced or amended their rules on penalties to ensure better alignment with the minimum rules. Overall, the Commission’s 2020 transposition report identified only a limited number of transposition issues in relation to the provisions on sanctions. There are, however, significant differences in the sanctions and penalties applicable in the different Member States, which should be understood in light of the fact that the Directive only sets minimum rules. For example, some Member States envisage a possibility for revoking citizenship as a sanction for terrorism-related offences. This does not impact the achievement of the objective, as the objective is not harmonisation but rather setting a baseline throughout the EU. Nevertheless, it is important to note that fundamental rights safeguards are in place (as discussed in section 5.7) and Member States remain bound by the Charter of Fundamental Rights of the EU (hereafter “the Charter”) when they go beyond the minimum rules of the Directive.



5.2.2 Equal application among different forms of terrorism

Section 3 focuses on the implementation of the Directive in practice. The current sub-section focusses on whether the Directive has been applied proportionately among different forms of terrorism. This is important for achieving the general objective of combating terrorism through criminal law, knowing that the forms of terrorism in the EU are diffuse, as described in the introduction. Too limited data is available to draw robust conclusions on whether the Directive has been applied equally to all forms of terrorism. The number of arrests and verdicts per type of terrorism seem to reflect the trends in terrorism identified by the external study. Likewise, national stakeholders and international organisations consulted also assessed that in general, the Directive adequately covers all forms of terrorism. Nevertheless, figures on the number of cases investigated and adjudicated, per type of terrorism, shows that the representation of extreme right-wing terrorism for adjudication is significantly lower than for investigations. A potential explanation for this is that many of these cases are initially categorised as terrorism during the investigation phase, but eventually reclassified as other types of crime (e.g., hate crime) during later stages in the criminal justice process. This observation is in line with the feedback provided by a number of international governmental and civil society organisations interviewed, who referred to the difficulties to agree on a common understanding of extreme right-wing terrorism and expressed concerns about the adequateness of the Directive to tackle this specific type of terrorism. A respondent to the public consultation representing an NGO also noted that right-wing extremist acts are often treated as “hate crimes”. This issue is further discussed in section 5.2.3.



5.2.3 Factors that contribute to or limit the effectiveness of the Directive

There are several factors that contribute to the effectiveness of the Directive. The first factor that significantly contributes to the effectiveness of the Directive, is that it applies equally to all forms of terrorism, regardless of underlying ideology. In that way, it could be used to combat all forms of terrorism. In this respect, Eurojust reported that in expert workshops, reference was also made to the Directive and to some additional terrorist offences introduced, “which can be used to initiate investigations on offences perpetrated by right-wing extremist groups. In relation to the Directive, it was stressed that its implementation will help achieve a more coherent approach in prosecuting all types of terrorism”. However, the issue of classifying extreme right-wing violent acts as acts of terrorism is further discussed below.



According to a national authority from one Member State, mutual recognition tools, as well as EU mechanisms to improve judicial and police cooperation and other instruments adopted in recent years that seek (directly or indirectly) to facilitate the investigation and prosecution of terrorist offences contribute to the effectiveness of the Directive.

Finally, on Article 21, the fact that several Member States address and attempt to tackle terrorist content together with other illegal content online, positively impacts the effectiveness of the Directive. Further enhancement of the effectiveness of the Directive is likely to occur with the new Regulation on terrorist content online.



There are also several factors limiting the effectiveness of the Directive. Section 5.2.1.2 showed that a significant number of the national authorities consulted reported that the Directive has had no impact on their ability to investigate, prosecute or adjudicate terrorism-related offences. The first factor that limits the effectiveness of the Directive relates to proving terrorist intent. Intent is an important element for the provisions of the Directive. For Article 3 on terrorist offences, it is the terrorist aims laid down in Article 3(2) that distinguish a terrorist offence from a “regular” offence. For example, if terrorist intent is established, a murder may be classified as a terrorist offence. Intent is also important for the offences related to terrorist activities, which according to the Directive require that the offence is committed intentionally.



Several Member States reported challenges in proving terrorist intent. This issue is further discussed and explained in section 5.7.3. For example, in relation to the offences on travelling for the purpose of terrorism (Articles 9-10), national authorities and representatives from members of the judiciary and prosecutors reported difficulties to establish the subjective element of the terrorist intent, as well as the fact that the collecting evidence to prove such intent is difficult in practice. Another factor limiting the effectiveness of the Directive is that it is often difficult to obtain evidence when prosecuting individuals suspected of traveling for terrorist purposes. Each Member State has its own material and procedural laws on gathering, admissibility and exclusion of evidence in criminal proceedings. When preparing a criminal case against a person being charged with travelling for terrorist purposes, a wide variety of information could be collected and made admissible as evidence by the authorities. However, obtaining such evidence may be complicated because of the cross-border characteristics of related crimes, despite the efforts that have already been made to strengthen the cooperation mechanisms among and between Member States and specific European agencies such as Europol and Eurojust. Often, the main evidence in cases of travelling for terrorist purposes is digital evidence sourced from various digital media. A successful conviction based on this evidence may be hindered if some essential information is transmitted via encrypted messaging or if the digital information is not presented in a legally recognisable form. The notion of terrorist intent also appears to be difficult to prove in the case of digital evidence, as the information found must constitute evidence following procedural requirements, and in national criminal proceedings, charges based on such evidence are usually dismissed. These practical elements can, and indeed do, impact the extent to which the Directive can be effective in strengthening security, including in relation to (returning) foreign fighters, which is an intended impact of the Directive.



As discussed above, there are some indications that in reality, it proves more difficult to classify extreme right-wing violent acts as acts of terrorism. Several stakeholders confirm this issue. The FRA, for example, notes that in certain Member States “although the legal provisions are not inherently discriminatory, measures to detect and prosecute public provocation may disproportionately affect certain groups [and] this is particularly visible in comparison with right-wing extremism, where similar conduct is not prosecuted in the same manner as jihadist cases are”. One of the examples given by the FRA is in relation to Article 9 of the Directive, which covers traveling for the purpose of terrorism. Respondents in several Member States observe that the offence of travel is not applied in the same manner to different types of terrorism. For example, in one Member State, travel of right-wing extremists (e.g. to attend training in another Member State) would be prosecuted as an extremist offence and not a terrorist one. Similarly, the European Network Against Racism notes that legal systems struggle with classifying extreme right-wing acts as acts of terrorism.



The issue of potential unequal application of the Directive is further explored in section 5.6 on fundamental rights. Relevant for the current section is that Eurojust has identified certain causes for this difficulty. The main recurring issue relates to the difficulty to prove the terrorist intent of an action carried out by a right-wing extremist group or a lone actor. The lack of evidentiary information proving the terrorist intent, which is set out as a requirement in the Directive and national legislations for an act to qualify as a terrorist offence, was presented as one of the main obstacles to use counter-terrorism legislation in the investigation and prosecution of right-wing extremist offences. Even in the most serious cases, where attacks resulting in human casualties took place, investigations were carried out under criminal law provisions on murder, as the terrorist intent could not be proved. The difficulty of proving the terrorist intent of a crime motivated by a right-wing extremist ideology was not only mentioned in relation to lone actors. An example was also given of a recent court decision that sentenced members of a neo-Nazi organisation to several years’ imprisonment on counts of participation in a criminal organisation, as the terrorist intent of the crimes could not be established. Another challenge identified by judicial practitioners participating in Eurojust’s workshops relates to the particularities of the right-wing extremist scene. Groups and movements advocating extreme right-wing views and ideology are characterised by the heterogeneity of their supporters and followers, by numerous interconnections between present-day organisations and old extreme right-wing groups and by the variety of potential targets. In this context of mixed ideologies or adherences and blurred lines between movements, judicial authorities may experience difficulties in considering prosecution on charges of participation in the activities of a terrorist group, which requires that a clear link can be established between the suspect and the incriminated organisation. This difficulty is reinforced by the fact that, unlike other forms of terrorism, there is currently no extreme right-wing organisation designated as terrorist organisation at EU level.



This difficulty was also identified by an EU citizen who responded to the public consultation and noted that the Directive focused too much on the threat from foreign terrorist fighters, which risks “a discriminatory application of anti-terrorism measures (for example: not focussing on right-wing terrorism)”. Eurojust has facilitated discussions on how to mitigate this limiting factor and in these discussions, several terrorist offences introduced by the Directive were specifically pointed out as relevant for initiating investigation and prosecution of right-wing extremist crimes. The first offence concerns the participation in the activities of a terrorist group (Article 4). The second offence mentioned refers to the financing of terrorism (Article 11), based on which investigations into right-wing extremists can be initiated. Finally, reference was made to the provisions introduced by the Directive concerning the aims of terrorist offences (Article 3(2)), in particular those acts of violence defined as seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country, which was presented by a representative of a judicial authority as of growing importance to initiate investigations into right-wing extremist crimes.

Summary findings – efficiency

There is no conclusive evidence on the exact costs for achieving the results of the Directive. A lack of available quantifiable data from the Member States makes it difficult to carry out a detailed assessment of the Directive’s regulatory burden. Nevertheless, the costs associated with the implementation of the Directive appear to be low, whereas the majority of the stakeholders consulted indicated that the Directive generated some or significant improvements, such as enhanced legal clarity and enhanced cooperation. In addition, the evaluation has not found any scope for simplifying or reducing the administrative burden of implementing the Directive. 5.3 EFFICIENCY





5.3.1 Costs and benefits linked to the implementation of the Directive

Based on limited quantitative data on implementation costs (a limitation further explained in Section 4), it appears Member States incurred varying levels of costs in implementing the Directive, with a majority of Member States making ‘medium’ efforts.



Member States were divided into three groups to enable an estimate of efforts in implementing the Directive, which is outlined below. Due to the lack of detailed and comparable data on implementation costs for all Member States and for the EU as a whole, a combination of variables has been used to define the level of expenses incurred by Member States. The main factor taken into consideration in estimating the costs for Member States is the level of changes introduced by each Member State to comply with the requirements of the Directive. The estimates applied for the three groups of Member States in the mapping relate to five areas: ·legislative compliance; ·investigation and prosecution; ·removing or blocking public provocation content online; ·cooperation and exchange of information; ·protection of and support to victims of terrorism.



Among these costs, several national authorities pointed out that costs related to investigation and prosecution, and to victim support represent the highest expense. Therefore, in calculating the index for the efforts dedicated to implementing the provisions of the Directive, efforts in the areas of investigation and prosecution and victim support have been assigned a higher weight than the other three areas listed above. As a result, three groups of Member States were identified: ·Member States with low costs (where little or no change was triggered by the Directive); ·Member States with medium costs (where some adjustments in legislation and counter-terrorism practices were implemented); ·Member States with higher than average costs (where certain changes were implemented, mostly because similar legislation to the Directive was not in place).



None of the Member States indicated that they had invested significant efforts or incurred significant costs in implementing the Directive, and naturally, there are also no Member States that had no costs whatsoever (even those that had already legislation in place similar to the Directive). It can therefore be inferred that all Member States incurred small to moderate costs.



There are seven Member States that reported relatively low efforts in implementing the Directive (Finland, France, Italy, Latvia, Poland, Slovenia, and Spain). This includes Member States that have experienced limited or no terrorist attacks, and Member States where terrorist attacks have occurred in the near or more distant past. The explanation is that Member States with experience in dealing with terrorist threats had developed adequate legislation and institutional structures prior to the adoption of the Directive, while Member States where little terrorist threats have been detected did not prioritise as much investments in measures implementing the provisions of the Directive. It should be noted that most of the Member States with a low level of terrorist threats reported relatively higher costs for legislative efforts triggered by the Directive, but very low costs in the implementation of practical measures for enhancing investigation, prosecution, cooperation and support of victims. This can be explained by the fact that they did typically not have legislation in place and thereby transposing and implementing the Directive had relatively higher costs. At the same time, as the terrorist threat seems lower in these Member States, it follows that the ongoing costs for investigations, prosecution, cooperation and victim support is very low.



13 Member States (Austria, Belgium, Bulgaria, Croatia, Czechia, Estonia, Germany, Hungary, Luxembourg, Portugal Romania, Slovakia, and the Netherlands) reported medium level of efforts to make adjustments in their legislation and to introduce practical measures implementing the provisions of the Directive. Several Member States reported that they invested relatively high level of efforts in legislative changes in compliance with the Directive. Other Member States reported relatively higher costs in implementing measures in victim support or in combating provocation content online.



Five Member States (Cyprus, Greece, Lithuania, Malta, and Sweden) reported relatively high level of efforts in implementing the Directive. In particular, the Member States in this group invested higher than average efforts in victim support and in legislative changes to comply with the provisions of the Directive.



Next to this estimate of efforts in implementing the Directive, the evaluation obtained some data on implementing costs in some of the Member States. While the evidence is incomplete to make any EU-wide conclusions, these data can be used to illustrate the level of public expenses dedicated to counter-terrorism measures before and after the Directive was adopted. The areas where most data is available is the protection of and support to victims of terrorism.



The number of victims of terrorism in Spain for the period 2015-2019 was 503, and the amount spent on supporting victims of terrorism was EUR 50.2 million. The example of Spain illustrates that the level of spending is highly dependent on the number of terrorism cases and victims: the costs incurred in the years prior to the adoption of the Directive were actually much higher than in the period after, simply because more victims were identified and supported in the earlier period (426 victims for the period 2015-2017, compared to only 77 victims in the period 2018-2019, and costs were respectively 36.0M and 14.2 M EUR). The average amount spent for one victim was about EUR 100,000.



In Finland, in implementing the Directive an annual additional state subsidy of EUR 500,000 to 570,000 has been assigned to Victim Support Finland. Austria reported an increase of 30 full-time equivalent staff in the public prosecution office to combat terrorism, cybercrime and hatred online. The cost for these new posts was EUR 1.6 million in 2020 and EUR 3.5 million in 2021. However, it was also pointed out that this staff would not work exclusively on counter-terrorism cases. Greece established a Department for support of victims of terrorism within the Ministry of Citizen Protection. It was the first entity in Greece exclusively dedicated to the victims of terrorism. No cost data is available, as the department was only created in 2020. In Germany, the post of Federal Government Commissioner for the issues of victims of terrorist offences was created in 2018 (however, the establishment of this post was initiated as a response to the terrorist attack in Berlin in 2016, i.e. not directly as a result of the Directive). Similar positions have been established in all states (Länder) to provide assistance to the victims of terrorism. Cost data for these positions is not available. Bulgaria reported a two-fold increase of full-time equivalent staff in the law-enforcement unit combatting cybercrime, including provocation of online content (Article 21). The estimated annual cost for this increase is about EUR 370,000. However, similar to Austria, these costs are not exclusively dedicated to counter-terrorism cases. In all of these cases it is not possible to discern the share of those costs directly attributed to the Directive. In regard to the implementation costs, the external study found that the costs were reasonable and proportionate to the benefits, and that these costs were justified. However, a significant number of stakeholders had no opinion on this issue due to lack of information on the incremental costs for implementing the Directive. The findings on how reasonable and proportionate to the benefits the implementation costs are, are based on the opinions of stakeholders expressed in the surveys and follow-up stakeholder consultations. Stakeholders assessed the improvements generated by the Directives in the following six areas: ·Legal clarity ·Cooperation within a given Member State ·Cooperation with other Member States ·Cooperation with EU agencies ·Ability to counter the threat from terrorism ·Support, assistance and protection of victims of terrorism



For all these areas, the majority of stakeholders indicated that the Directive generated some or significant improvements (Figure 1). The most often cited benefits are enhanced legal clarity (86% of respondents), highlighting the elaboration of common definitions for terrorist offences and a common legal framework, and improved support for victims of terrorism (83% of respondents). A relatively smaller share of stakeholders (about 60%) believed that the Directive enhanced cooperation among institutions in their Member State or cooperation with EU agencies.



Figure 1: Member States’ assessment of improvements generated by the Directive



Source: Online survey of national stakeholders (Note: number of Member States varies by benefit, as not all Member States provided an answer). The majority of national stakeholders (two thirds) held the view that the costs of the Directive were justified and proportionate to the benefits it generated in their Member State, and that these benefits have been achieved at a reasonable cost both at national level and at the level of their own organisation. About one third of respondents could not provide a definite answer to this question, which is indicative of the low level of awareness of the incremental costs attributable to the Directive (Figure 2).



Figure 2: Assessment of costs and benefits by Member States







Source: Online survey of national authorities. (Note: not all Member States responded to the questions on costs and benefits.)



Based on the assumptions indicated in Annex VII, this external study estimates that the costs of drafting the Directive for the EU public administration amounted to approximately EUR 26,000 in the period 2015-2018. For public administrations at national level, the study estimates the costs of transposing the Directive into national law at a total of EUR 250,000 across the Member States. The recurrent (ongoing) costs of monitoring compliance is estimated at less than EUR 3,000 per year, and reporting to the EU at less than EUR 7,000 per year across the Member States.



5.3.2 Scope for simplification and burden reduction

The evaluation has not found any scope for simplifying or reducing the administrative burden of implementing the Directive. Based on the limited number of opinions expressed by stakeholders on the issue of simplifying or reducing the administrative burden of implementing the Directive, it appears that the administrative costs and efforts for implementing the Directive are very small and a reduction does not seem viable. Overall, stakeholders claimed that the administrative burden and costs have not increased due to the implementation of the Directive, with only two national stakeholders and three respondents to the public consultation stating that administrative costs in their organisations have increased due to the Directive. Summary findings – coherence

The Directive is overall internally coherent. The evaluation also finds that the Directive is largely coherent with other relevant interventions, at national, EU and international level, although a potential inconsistency has been identified between the Directive and the Fifth Money-Laundering Directive. Summary findings – EU added value

The Directive has generated added value beyond what could have been achieved unilaterally by Member States or at international level. It has also provided added value compared to the Framework Decision. For the articles covering the rights of victims of terrorism (Articles 24 to 26), stakeholders’ views are slightly more divided, although their assessment is overall positive. As for the consequences of withdrawing the Directive, the evaluation finds that the most likely consequence would be a reduced harmonisation of the offences falling under the Directive, which would have a negative impact on cooperation and information exchange between Member States. It should be noted, however, that this conclusion is based on a small number of stakeholders’ opinions, as most of the participants in the survey and the stakeholder consultations declined to comment on the issue (see also section 4 on data limitations).



5.4 COHERENCE





5.4.1 Internal coherence

The evaluation finds that the different provisions of the Directive are generally deemed as consistent and coherent. Stakeholders consulted generally assessed this aspect positively, including EU and national-level stakeholders. This was particularly the case among national authorities, counter-terrorism units, members of the judiciary and prosecutors, most of whom believed that the provisions of the Directive are internally consistent. Nonetheless, one judge interviewed pointed to a potential inconsistency in the Directive, namely between the first and second subparagraphs of Article 11. Article 11(1) does not require that the funds be used, while Art