Report from the Commission based on article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism {SEC(2004)688}
Date: 2004-06-08
Institutions: European Commission
Subjects: drafting of EU law, fight against crime, framework decision, national implementing measure, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 08.06.2004 
COM(2004)409 final 

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REPORT FROM THE COMMISSION 

based on Article 11 of the Council Framework Decision of 13 June 2002 on combating 
terrorism 

{SEC(2004)688} 

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TABLE OF CONTENTS 

1. 

2. 

BACKGROUND.......................................................................................................... 3 

METHOD AND CRITERIA FOR EVALUATION FOR THIS FRAMEWORK-
DECISION ................................................................................................................... 4 

2.1.1.  Framework-Decisions ex-Article 34, paragraph (2), point b) of the Treaty on 

European Union ........................................................................................................... 4 

2.1.2.  Evaluation criteria ........................................................................................................ 4 

2.1.3.  Context of evaluation ................................................................................................... 5 

3. 

ASSESSMENT ............................................................................................................ 6 

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1. 

BACKGROUND 

Under  Article  11  of  the  Council  Framework  Decision  of  13  June  2002  on  combating 
terrorism1  (hereafter  ‘the  Framework  Decision’),  the  Commission  has  to  establish  a  written 
report on the measures taken by the Member States to comply with this instrument. 

Paragraph  (1)  of  that  Article  obliges  the  Member  States  to  take  the  necessary  measures  to 
comply with the provisions of the Framework Decision by 31 December 2002. According to 
paragraph (2), by that same date Member States should forward to the General Secretariat of 
the Council and to the Commission the text of the provisions transposing into their national 
law  the  obligations  imposed  on  them  under  this  Framework  Decision.  The  Council  should 
assess, by 31 December 2003, on the basis of this information and the written report by the 
Commission,  to  what  extent  Member  States  have  taken  the  necessary  measures  to  comply 
with the Framework Decision. 

The quality and timeliness of the national information received by the Commission inevitably 
influences  the  value  and  the  punctuality  of  this  report.  The  Commission  reminded  Member 
States  of  their  obligation  by  means  of  a  letter  sent  the  9  December  2002.  By  31  December 
2002, however, only five Member States (Austria, Germany, Ireland, Italy and Portugal) had 
provided the Commission with information on implementation and only two of them actually 
included the relevant transposing provisions. A document drawn up on this basis would have 
been  virtually  meaningless,  so  the  Commission  has  had  to  admit  late  replies  and  gather 
complementary information from the contact persons, when designated by Member States. By 
February  2003,  seven  more  Member  States  (Belgium,  Denmark,  France,  Finland,  Greece, 
Spain,  and  the  United  Kingdom)  had  responded  although  two  of  them  just  referred  to  new 
draft  legislation.  Sweden  was  the  thirteenth  Member  State  to  reply,  on  5  November  2003. 
Luxembourg and the Netherlands did not reply. 

Therefore, although the deadline for forwarding the text of implementing provisions, as set in 
Article 11(2) of the Framework Decision, was the 31 December 2002, additional information 
provided until the cut-off date of 15 February 2004 has been taken into account. This report 
thus  takes  stock  of  the  transposal  situation  deriving  from  the  legislation  that  had  been 
forwarded  to  the  Commission  by  that  reference  date.  A  Commission  staff  working  paper 
associated with this report contains a detailed analysis of national measures taken to comply 
with  the  Framework  Decision,  as  well  as  a  table  specifying,  in  accordance  with  the 
information  received  by  the  Commission,  the  national  provisions  transposing  each  of  the 
Articles. The Commission will, in a supplementary report, take into account the information 
supplied after that date and update, the case being, the information on national legislation. 

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OJ L164, 22.6.2002,p. 3. 

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2. 

METHOD AND CRITERIA FOR EVALUATION FOR THIS FRAMEWORK-
DECISION 

2.1.1.  Framework-Decisions  ex-Article  34,  paragraph  (2),  point  b)  of  the  Treaty  on 

European Union 

This Framework Decision is based on the Treaty establishing the European Union (TEU), and 
in particular Articles 29, 31 (e), and Article 34(2) (b) thereof. 

Framework  decisions  can  best  be  compared  with  the  legal  instrument  of  a  directive2.  Both 
instruments are binding upon Member States as to the result to be achieved but leave to the 
national authorities the choice of form and methods. However, framework decisions shall not 
entail direct effect. 

2.1.2.  Evaluation criteria 

To  be  able  to  evaluate  on  the  basis  of  objective  criteria  whether  a  framework  decision  has 
been fully implemented by a Member State, some general criteria are developed with respect 
to directives which should be applied mutatis mutandis to framework decisions, such as: 

1. 

2. 

3. 

form  and  methods  of  implementation  of  the  result  to  be  achieved  must  be 
chosen in a manner which ensures that the directive functions effectively with 
account being taken of its aims3; 

each  Member  State  is  obliged  to  implement  directives  in  a  manner  which 
satisfies the requirements of clarity and legal certainty and thus to transpose the 
provisions of the directive into national provisions having binding force4, 

transposition  need  not  necessarily  require  enactment  in  precisely  the  same 
words  in  an  express  legal  provision;  thus  a  general  legal  context  (such  as 
appropriate  already  existing  measures)  may  be  sufficient,  as  long  as  the  full 
application  of  the  directive  is  assured  in  a  sufficiently  clear  and  precise 
manner5; 

4. 

directives must be implemented within the period prescribed therein6. 

Both instruments are binding ‘as to the results to be achieved’. That may be defined as a legal 
or factual situation, which does justice to the interest, which in accordance with the Treaty the 
instrument is to ensure7. 

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5 

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Article 249 EC Treaty. 
See relevant case law on the implementation of directives: Case 48/75 Royer [1976 ECR 497 at 518]. 
See relevant case law on the implementation of directives: Case 239/85 Commission v. Belgium [1986] 
ECR 3645 at 3659. See also Case 300/81 Commission v. Italy [1983] ECR 449 at 456. 
See  relevant  case  law  on  the  implementation  of  directives  for  instance  Case  29/84  Commission  v. 
Germany [1985] ECR 1661 at 1673. 
See substantial case law on the implementation of directives, for example : Case 52/75 Commission v. 
Italy  [1976]  ECR  277  at  284,  See,  generally,  the  Commission  annual  reports  on  monitoring 
the application of Community law, for instance COM (2001) 309 final.  
See  PJG  Kapteyn  and  P.  Verloren  van  Themaat  ‘Introduction  to  the  Law  of  the  European 
Communities’, third edition, 1998, p. 328. 

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The general assessment provided for in Article 11, of the extent to which the Member States 
have  complied  with  the  Framework  Decision,  is  -where  possible-  based  on  the  criteria 
mentioned above. 

2.1.3.  Context of evaluation 

A first preliminary observation concerns  the (legal) context and follow up of the evaluation 
report.  Whereas  the  Commission  has  within  the  first  pillar  the  authority  to  start  an 
infringement procedure against a Member State this possibility does not exist within the TEU. 
The nature and purpose of this report differ, therefore, from a report on the implementation of 
a first pillar directive by Member States. Nevertheless, as the Commission fully participates in 
third  pillar  matters8,  it  is  coherent  to  confer  on  it  a  task  of  a  factual  evaluation  of  the 
implementation measures enabling the Council to assess the extent to which Member States 
have taken the necessary measures in order to comply with this Framework Decision. 

Secondly,  the  Framework  Decision  must  not  be  regarded  as  a  series  of  fragmentary 
provisions,  but  as  a  whole:  a  global  system  whose  elements  are  inevitably  intertwined. 
Basically,  it  requires  Member  States  to  incorporate  the  qualified  concept  of  “terrorist 
offences” to their legal systems and, in particular, to incorporate the specific terrorist intent, 
which is also implicit in Articles 2 (“Offences relating to a terrorist group”) and 3 (“Offences 
linked to terrorist activities”). This requirement derives from the obligation, set up in Article 
5(2), to punish terrorist offences with heavier custodial sentences than those imposable under 
national law for the correspondent “common” offences. Additionally, the obligations set up in 
Article  9  which  provides  for  extended  extraterritorial  jurisdiction  without  the  possibility  of 
making declarations and establishes a mechanism of priority factors to be taken into account 
in case of positive conflicts of competence, also go beyond the obligations ordinarily imposed 
by  framework  decisions.  Although  structurally  similar  to  other  instruments  aimed  at  the 
harmonisation of a particular field of criminal law, this Framework Decision thus differs from 
those that do not require the incorporation of “specific offences” as long as the conduct to be 
criminalised  is  already  covered  by  a  generic  incrimination9.  In  these  cases,  obligations 
regarding penalties can also be respected by applying the general rules on the matter. 

Therefore  although  the  evaluation  can  and  will  refer  to  each  article  these  can  not  be 
contemplated separately. Partial or inexistent implementation of an article or part of an article 
will  also  reflect  on  linked  provisions  that  considered  independently  might  seem  to  comply 
with  the  requirements  of  the  Framework  Decision  and  will  affect  the  system  as  a  whole. 
Nonetheless, as divergences still exist the evaluation shall take, as far as appropriate, account 
of the general criminal legal background of the Member States. 

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Article 36 (2) Treaty on European Union. 
For example the “theft of a credit card”, to which Article 2(a) of the Council Framework Decision of 28 
May  2001  on  combating  fraud  and  counterfeiting  of  non-cash  means  of  payment  refers  could  be 
covered by the general provision on theft in the Criminal Code. 

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3. 

ASSESSMENT 

Very few Member States have made a timely transmission to the Commission of all relevant 
texts  of  their  implementing  provisions.  The  factual  assessment  and  subsequent  conclusions 
drawn are therefore  sometimes  based on incomplete information.  The Commission  received 
no information from Luxembourg and Netherlands and no specific information from Greece. 
This  being  said,  the  situation  regarding  transposal  of  the  specific  provisions  in  the  twelve 
other Member States is as follows: 

Article 1: Eight Member States have specifically incriminated terrorist offences as a separate 
category  of  crimes,  although  there  are  differences  as  to  the  extent  and  method  of 
implementation while Ireland is in the process of amending their legislation to this end. Italy 
and the United Kingdom provide only for a limited number of specific terrorist offences and 
then  qualify  common  offences  by  a  terrorist  intent  either  as  an  aggravating  circumstance 
(in  Italy)  or  by  applying  a  general  definition  of  terrorism  (United  Kingdom).  Germany 
appears not to have transposed this provision as required. 

Article  2:  Most  Member  States  have  or  will  have  legislation  that  separately  incriminates 
terrorist  acts  committed  in  relation  to  terrorist  groups.  In  Sweden  and  in  Denmark  (except 
certain  acts  of  participation)  terrorist  groups  and  directing  or  participating  in  their  activities 
have  not  been  specifically  incriminated,  although  in  some  cases  those  who  carry  out  such 
conducts  may  still  be  punished  as  principal  or  secondary  parties  to  the  relevant  terrorist 
offence. 

Article  3:  Only  four  Member  States  appear  to  have  legislation  that  fully  complies  with  the 
obligations under this Article. Ireland should be able to comply after its new legislation enters 
into force. The rest of Member States which provided information to the Commission will be 
able to comply only partially with this provision. 

Article  4:  Although  only  some  Member  States  have  specific  provisions  on  the  matter,  it 
appears that by applying general rules on complicity and inchoate offences they will be able 
to  comply  implicitly  with  this  Article,  provided  the  preceding  articles  have  been  fully 
implemented. 

Article  5:  Although  only  two  Member  States  expressly  referred  to  it  in  the  information 
provided to the Commission, it appears they all will be able to meet the terms of paragraph 
(1). Eight Member States have or will have succeeded in meeting the obligation imposed by 
paragraph (2). For Germany, Spain, Ireland and the United Kingdom it cannot be concluded 
that  enhanced  penalties  will  be  provided  for  all  the  relevant  offences.  As  regards  paragraph 
(3), when it comes to directing a terrorist group, seven Member States provide for the required 
penalties  and  three  more,  in  which  this  conduct  is  not  specifically  incriminated,  would  also 
comply  partially  with  this  provision.  Spain  only  complies  with  this  provision  as  regards 
directing  a  terrorist  group  that  merely  threatens  to  commit  terrorist  acts.  When  it  comes  to 
participating in the activities of a terrorist group eight Member States fully meet the required 
terms, which can be considered as partially met in four more Member States. 

Article  6:  National  legislation  in  six  Member  States  specifically  envisages  the  particular 
circumstances set up in this Article, whereas the rest have not referred to specific measures to 
implement this optional provision. 

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Article  7:  Eight  Member  States  have  or  will  have,  after  completing  their  legislative 
procedure,  legislation  ensuring  that  legal  persons  can  be  held  liable  for  terrorist  offences. 
From these, however,  only  four  have provided enough information  to  demonstrate that they 
will be able to comply with Article 7(2). Spain, Austria, Sweden and the United Kingdom did 
not provide enough information to allow this Article to be considered fully implemented. 

Article 8: Seven Member States provide or will provide for criminal or non-criminal fines for 
legal persons. Most of them also apply all or some of the optional penalties indicated in this 
provision. 

Article 9: All Member States will presumably be able to comply with this Article as regards 
the application of the territoriality principle in Articles 9(1)(a), 9(1)(b) and 9(4). As regards 
extra-territorial  jurisdiction,  a  majority  of  Member  States  have  or  will  have  rules  which  to 
different extents cover the principles of active and passive personality, as required in Article 
9(1)(c) and (e). Article 9(1)(d) has only been expressly transposed in Austria and will be in 
Ireland,  although  it  appears  that  Italy,  Portugal  and  Finland  would  also  be  in  line  with  this 
provision. Eight Member States have or will have legislation complying with Article 9(3) and 
other  three  will  be  able  to  comply  partially  with  this  provision.  Finally,  whilst  Ireland  will 
partially  transpose  Article  9(2),  none  of  the  Member  States  appear  to  have  incorporated  in 
their national legislations the criteria for solving positive conflicts of jurisdiction referred to in 
this provision. 

Article  10:  Only  Austria  provided  enough  information  to  demonstrate  compliance  with 
Article 10(1) although it seems likely that terrorist offences are in all Member States treated 
as  public  offences  for  the  purposes  of  investigation  and  prosecution.  Eight  Member  States 
provided  information  on  additional  measures  to  assist  terrorist  victim’s  families,  to  which 
Article 10(2) refers. 

Article  12:  The  Commission  has  not  received  specific  information  on  transposition  in 
Gibraltar. 

In view of the foregoing, the Commission invites the Member States which have not yet done 
so to ensure a rapid and complete transposition of the Framework Decision into their national 
law  and  to  inform  it  immediately  of  the  measures  taken  with  the  text  of  the  statutory  or 
administration provisions in force in support. 

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