Proposal for a Council Decision on the transmission of information resulting from the activities of security and intelligence services with respect to terrorist offences
Date: 2005-12-22
Institutions: European Commission
Subjects: EU Member State, EU police cooperation, exchange of information, fight against crime, judicial cooperation in criminal matters in the EU, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.12.2005 
COM(2005) 695 final 

2005/0271 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the transmission of information resulting from the activities of security and 
intelligence services with respect to terrorist offences  

(presented by the Commission) 

EN 

   EN 

 
 
 
  
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  General context 

Terrorism has become an international threat which no Member State is able to tackle alone. 
The  EU  has  been  developing  a  counter-terrorism  policy  in  which  Member  States  fight 
terrorism together with equal  determination,  commitment  and  with  respect  for  human  rights 
and fundamental freedoms. Important legislative measures and policies have been adopted to 
assist the European Union in preventing and combating terrorism. In particular, the European 
Council has adopted an EU Plan of Action on combating terrorism. An EU wide peer review 
of the arrangements in the fight against terrorism in each Member State has also been carried 
out. 

Despite  the  progress  which  has  been  made  at  EU  level  in  the  fight  against  terrorism  much 
work remains to be done. In particular, the relevant measures set out in the EU Plan of Action 
on  combating  terrorism,  in  the  Hague  Programme,  in  the  Council  and  Commission  Action 
Plan  implementing  The  Hague  Programme  and  arising  from  the  Council’s  Declaration  of 
13 July 20051 must be implemented. 

An essential element in the EU’s efforts to prevent and combat terrorism is the transmission 
of  all  relevant  information  by  Member  States  to  Europol.  The  transmission  of  information 
resulting  from  the  activities  of  national  security  and  intelligence  services  is  an  important 
element in this process. 

Member States must also provide any relevant information to other Member States which will 
assist them in preventing and combating terrorism. In this regard the security and intelligence 
services of a Member State have a pivotal role. 

•  Grounds for and objectives of the proposal 

Article 29 of the TEU provides that the Union’s objective to provide citizens with a high level 
of safety within an area of freedom, security and justice shall be achieved by preventing and 
combating crime, organised or otherwise, in particular terrorism and other specific forms of 
crime through: 

–  closer  co-operation  between  police  forces,  customs  authorities  and  other  competent 
authorities  in  the  Member  States,  both  directly  and  through  the  European  Police  Office 
(Europol), in accordance with the provisions of Articles 30 and 32. 

In its Declaration on combating terrorism of 25 March 2004, the European Council underlined 
the importance of: 

– 

– 

1 

EN 

making the optimum and most effective use of EU bodies to promote co-operation in 
the fight against terrorism; 

further developing the relationship between Europol and intelligence services; and 

11158/05 JAI 255. 

2 

   EN 

 
                                                 
– 

improved mechanisms for co-operation and the promotion of effective collaboration 
between police, intelligence and security services. 

The ability of the EU to prevent and combat terrorism requires a focus on the protection of the 
security  of  the  Union  as  a  whole.  This  protection  is  facilitated  by  the  transmission  of  all 
relevant  law  enforcement  and  security  and  intelligence  service  information  to  Europol.  The 
processing  of  this  information  assists  Europol  in  its  operational  and  strategic  analyses  in 
relation to terrorism.  

The Europol Convention already provides a legal framework enabling Member States to share 
information  on  terrorism  with  Europol.  Information  that  originates  from  the  activities  of 
national security and intelligence services is, in principle, not excluded from being transmitted 
to  Europol.  However,  in  its  report  to  the  Council  on  the  implementation  of  the  EU  Action 
Plan on combating terrorism2, Europol illustrates that there is no structured provision of data 
from  the  security  and  intelligence  service  domain  to  Europol’s  analysis  work  files  on 
terrorism.  In  the  evaluation  report  on  the  Second  Counter  Terrorism  Task  Force3  Europol 
estimates  that  most  of  the  data  contributions  from  Member  States  to  the  relevant  analysis 
work file and projects of the Counter Terrorism Task Force are from law enforcement rather 
than from security and intelligence services. 

Both  the  European  Council  and  Europol  have  recognised  the  need  to  strengthen  the 
relationship  between  Europol  and  national  security  and  intelligence  services.  In  this  context 
there  is  a  clear  need  to  establish  a  mechanism  to  ensure  the  transmission  of  information 
resulting  from  the  activities  of  national  security  and  intelligence  services  with  respect  to 
terrorist offences to Europol. This Council Decision establishes such a mechanism.  

Member  States  must  work  together  and  share  information  in  order  to  prevent  and  combat 
terrorism. The exchange of information resulting from the activities of national security and 
intelligence services is an important element in this process. The European Council has also 
underlined  that  Member  States  should  bring  immediately  to  the  attention  of  the  competent 
authorities  of  other  Member  States  any  information  available  to  their  services  concerning 
threats  to  the  internal  security  of  these  other  Member  States.  This  Council  Decision  makes 
provision  for  the  transmission  of  information  resulting  from  the  activities  of  security  and 
intelligence services from one Member State to other Member States in order to assist those 
Member States in preventing and combating terrorism. This proposal is without prejudice to 
bilateral mechanisms between the Member States for the transmission of information. 

The  “Bureau  De  Liaison”  BDL  network  is  an  encrypted  information  technology  tool  which 
assists  in  the  transmission  of  information.  Both  Member  State  law  enforcement  bodies  and 
security  and  intelligence  services  and  Europol  should  have  access  to  this  network.  It  could 
provide  a  useful  mechanism  for  the  transmission  of  information  in  accordance  with  this 
proposal for a Council Decision.  

•  Existing provisions in the area of the proposal 

Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and 
co-operation concerning terrorist offences provides for the designation of a specialised service 

2 
3 

9156/05 JAI 178. 
12992/05 EUROPOL 33. 

EN 

3 

   EN 

 
                                                 
within the police services or other law enforcement authorities of each Member State which 
will  have  access  to  and  will  collect  all  relevant  information  concerning  and  resulting  from 
criminal investigations conducted by its law enforcement authorities with respect to terrorist 
offences. It also makes provision for the designation of a Eurojust national correspondent for 
terrorist  matters  or  an  appropriate  judicial  or  other  competent  authority  which  shall  have 
access to and can collect all relevant information concerning prosecutions and convictions for 
terrorist offences. 

That  Decision  provides  for  the  transmission  of  information,  collected  by  a  Member  State’s 
specialised  service  and  by  its  Eurojust  national  correspondent  or  the  appropriate  judicial  or 
other  competent  authority,  to  Europol  and  Eurojust  respectively.  It  also  provides  for  a 
Member State making accessible to other interested Member States information in connection 
with terrorist offences. 

Council  Decision  2005/671/JHA  does  not  specifically  relate  to  security  and  intelligence 
services.  The  adoption  and  implementation  of  the  Council  Decision  on  the  transmission  of 
information resulting from the activities of security and intelligence services with respect to 
terrorist  offences  and  Council  Decision  2005/671/JHA  will  strengthen  the  provision  by 
Member  States  of  law  enforcement  and  security  and  intelligence  services  information  to 
Europol with respect to terrorist offences. 

The Europol Convention of 1995. Article 2 states that the objective of Europol is to improve, 
by means of the measures referred to in the Convention, the effectiveness and co-operation of 
the  competent  Member  State  authorities  to  prevent  and  combat  terrorism  and  other  serious 
forms of international and organised crime. 

The Proposal for a Council Framework Decision on the protection of personal data processed 
in  the  framework  of  police  and  judicial  co-operation  in  criminal  matters4.  This  instrument 
provides for the legal framework for an effective protection of personal data in matters which 
fall under Title VI of the Treaty on European Union. 

•  Consistency with other policies and objectives of the Union 

The  Council  Decision  on  the  transmission  of  information  resulting  from  the  activities  of 
security and intelligence services with respect to terrorist offences seeks to ensure full respect 
for the right to liberty and security, the right to respect for private and family life and the right 
to protection of personal data (Articles 6, 7, and 8 of the Charter of Fundamental Rights of the 
European Union). 

It  does  so  by  establishing  a  mechanism  to  assist  in  preventing  and  combating  terrorism,  by 
providing  that  information  shall  be  transmitted  to  the  national  contact  points  in  accordance 
with national law and by providing that information is transmitted to Europol in accordance 
with the Europol Convention. 

The processing of personal data pursuant to this Council Decision will be done in accordance 
with Council Framework Decision 2006/XX/JHA on the protection of personal data processed 
in  the  framework  of  police  and  judicial  co-operation  in  criminal  matters  and  the  Europol 
Convention respectively. 

4 

COM(2005) 475. 

EN 

4 

   EN 

 
                                                 
•  Impact assessment 

The following three legislative options were assessed: 

– 

No new or additional legislation 

Refraining  from  action  would  lead  to  the  continuation  of  the  current  situation  that  does  not 
fully meet the current security challenges. None of the existing instruments or projects brings 
the improvements that this Council Decision aims to deliver. 

– 

Proposal for a Council Framework Decision 

It seems best to allow Member States some flexibility in the designation of contact points and 
the  transmission  of  information  to  other  Member  States.  The  Europol  Convention  already 
provides a legal framework for the transmission of information by Member States to Europol. 
In these circumstances, it is considered contrary to the principle of proportionality to present a 
proposal for the harmonisation of the relevant national laws of Member States. 

– 

Proposal for a Council Decision 

A proposal for a Council Decision is considered as the best option to meet the current need to 
ensure  the  transmission  of  information  resulting  from  the  activities  of  national  security  and 
intelligence services with respect to terrorist offences to Europol and to other Member States. 
It  establishes  a  mechanism  for  the  transmission  of  such  information  without  requiring  the 
creation of new services or the approximation of national laws. 

As  regards  impacts  on  fundamental  rights,  it  should  be  emphasised  that  the  Decision 
contributes to the implementation of Articles 2 and 3 of the Charter of Fundamental Rights of 
the  European  Union  that  states  that  everyone  has  the  right  to  life  and  physical  integrity. 
Enhanced protection of the privacy of persons whose data are processed under this Decision is 
achieved  by  means  of  the  Council  Framework  Decision  on  the  protection  of  personal  data 
processed in the framework of police and judicial cooperation in criminal matters. 

2. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

This Council Decision provides for the designation of a contact point within the security and 
intelligence  services  of  each  Member  State.  These  services  shall  transmit  all  relevant 
information resulting from their activities with respect to terrorist offences to the designated 
contact points. The Council Decision also makes provision for the transmission of information 
received by the contact points with respect to terrorist offences to Europol.  

The  Council  Decision  makes  provision  for  the  transmission  of  information  received  by  the 
contact point of a Member State to the contact points of other affected Member States with 
respect to terrorist offences.  

•  Legal basis 

Articles 30 (1) (b) and 34 (2) (c) TEU. 

EN 

5 

   EN 

 
•  Subsidiarity principle 

The subsidiarity principle applies to the action by the Union. 

The objectives of the proposal cannot be achieved by the Member States acting alone for the 
following reason: 

Terrorism  is  an  international  phenomenon  and  no  Member  State  can  effectively  tackle  it 
alone.  Europol  has  a  pivotal  role  within  the  EU  with  regard  to  preventing  and  combating 
terrorism.  It  must  receive  the  requisite  information  from  the  Member  States  to  enable  it  to 
carry out its tasks, in particular, to enable it to develop its analysis work files on terrorism and 
the projects of its Counter Terrorism Task Force. By transmitting the relevant information to 
Europol or loading it into the Europol Information System each Member States contributes to 
an enhancement of the security of the EU as a whole. 

Union action will better achieve the objectives of the proposal for the following reason: 

The  primary  objective  of  the  Council  Decision  is  to  ensure  the  transmission  of  information 
resulting  from  the  activities  of  national  security  and  intelligence  services  with  respect  to 
terrorist  offences  to  Europol.  As  Europol  is  in  a  position  to  receive  information  from  all 
Member  States  it  is  able  to  develop  an  EU  approach  and  perspective  to  the  prevention  and 
combating  of  terrorism.  This  cannot  be  achieved  by  a  Member  State  acting  alone  or  by 
information transmission between a limited number of Member States. 

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons: 

The  proposal  provides  for  the  establishment  of  a  mechanism  to  ensure  the  transmission  of 
information, leaving the operational aspects to the discretion of the Member States.  

It is envisaged that the implementation of this Council Decision will not impose an excessive 
burden  or  costs  on  the  Member  States.  They  will  not  be  required  to  create  new  bodies  or 
services. Each Member State will be obliged to transmit information to Europol which it may, 
in principle, already transmit, in accordance with the provisions of the Europol Convention. 
Any  costs  imposed  upon  the  Member  States  in  the  implementation  of  the  Council  Decision 
will  be  proportionate  to  the  contribution  of  the  Decision  to  preventing  and  combating 
terrorism. 

•  Choice of instrument 

Proposed Instrument: A Decision based on Article 34 (2) (c) TEU. 

The  form  of  a  Decision  has  been  taken  because  it  is  necessary  to  adopt  an  act  of  general 
application which is binding on the Member States in its entirety. 

3. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the Community budget. 

EN 

6 

   EN 

 
2005/0271 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the transmission of information resulting from the activities of security and 
intelligence services with respect to terrorist offences  

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, and in particular Article 30(1)(b) and Article 
34(2)(c) thereof, 

Having regard to the proposal from the Commission5, 

Having regard to the opinion of the European Parliament6, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The European Union has set itself the objective to provide citizens with a high level of 
safety  within  an  area  of  freedom,  security  and  justice  by  developing  common  action 
among the Member States in the field of police and judicial co-operation in criminal 
matters.  

In  the  Hague  Programme  on  strengthening  freedom,  security  and  justice  in  the 
European  Union,  adopted  by  the  European  Council  on  4  November  2004,  it  is 
underlined  that  all  the  elements  of  the  European  Council’s  Declaration  of  25  March 
2004  and  the  EU  Plan  of  Action  on  combating  terrorism  must  continue  to  be 
implemented  in  full,  notably  that  enhanced  use  of  Europol  and  Eurojust  should  be 
made. 

The  Council  and  Commission  Action  Plan  implementing  the  Hague  Programme7 
provides  for  reinforcement  of  co-operation  between  the  competent  authorities  to 
combat  terrorism  through  the  development  of  specialised  contact  points  in  Member 
States,  which  will  have  access  to  all  necessary  information  and  intelligence  with 
respect to terrorist activities involving persons, groups or entities. 

Council Framework Decision 2002/475/JHA of 13 June 20028 on combating terrorism 
provides  for  Member  States  to  take  the  necessary  measures  to  ensure  that  certain 
intentional  acts,  as  defined  as  offences  under  national  law,  be  deemed  to  be  terrorist 
offences.  That  Decision  also  provides  for  Member  States  to  take  the  necessary 
measures  to  ensure  that  certain  intentional  acts  relating  to  terrorist  groups  are 

5 
6 
7 
8 

OJ C […] […], p.  
OJ C […] […], p.  
OJ C 198, 12.8.2005, p. 1. 
OJ L 164, 22.6.2002, p. 3. 

EN 

7 

   EN 

 
                                                 
(5) 

(6) 

punishable,  that  terrorist-linked  offences  include  certain  acts  linked  to  terrorist 
activities and inciting, aiding or abetting and attempting to commit certain offences are 
punishable. 

The  Europol  Convention  of  26  July  19959  states  that  the  objective  of  Europol  is  to 
improve,  by  means  of  the  measures  referred  to  in  the  Convention,  the  effectiveness 
and  co-operation  of  the  competent  Member  State  authorities  to  prevent  and  combat 
terrorism and other serious forms of international and organised crime. 

Council  Decision  2005/671/JHA  of  20  September  2005  on  the  exchange  of 
information  and  co-operation  concerning  terrorist  offences10  provides  for  Member 
States  to  transmit  to  Europol  and  Eurojust  information  concerning  criminal 
investigations,  prosecutions  and  convictions  with  respect  to  terrorist  offences.  That 
Decision  also  provides  for  a  Member  State  making  accessible  to  other  interested 
Member  States  information  in  connection  with  terrorist  offences  but  it  does  not 
specifically  relate  to  security  and  intelligence  services  which  also  have  an  essential 
role  in  the  prevention  of  terrorism  within  their  activities  of  gathering  and  producing 
intelligence to preserve national security. 

(7) 

It  is  therefore  necessary  to  strengthen  the  transmission  of  information  to  Europol 
resulting from the activities of national security and intelligence services with respect 
to terrorist offences in order to assist Europol in obtaining all the requisite information 
to enable it to fulfil its tasks. 

(8)  Member  States  should  work  together  and  share  information  to  prevent  and  combat 
terrorism.  The  exchange  of  information  resulting  from  the  activities  of  national 
security and intelligence services is an important element in this process. It is therefore 
necessary  to  make  provision  for  the  transmission  of  information  resulting  from  the 
activities of national security and intelligence services from one Member State to other 
Member States. 

(9) 

Since the objectives of the proposed action, namely to establish a mechanism to ensure 
the  transmission  of  information  resulting  from  the  activities  of  national  security  and 
intelligence services with respect to terrorist offences to Europol and between Member 
States,  cannot  be  sufficiently  achieved  by  the  Member  States  acting  alone  and  can 
therefore,  by  reason  of  the  scale  and  effects  of  the  action,  be  better  achieved  at  the 
level of the European Union, the Council may adopt measures in accordance with the 
principle  of  subsidiarity  as  set  out  in  Article  5  of  the  EC  Treaty  and  referred  to  in 
Article  2  of  the  EU  Treaty.  In  accordance  with  the  principle  of  proportionality,  this 
Decision does not go beyond what is necessary in order to achieve those objectives. 

(10)  This Decision respects the fundamental rights and observes the principles recognised 

in particular by the Charter of Fundamental Rights of the European Union,  

9 

10 

OJ C 316, 27.11.1995, p. 2. Convention as last amended by the Protocol of 27 November 2003, drawn 
up  on  the  basis  of  Article  43(1) of  the  Convention on  the  Establishment  of  a  European  Police  Office 
(Europol Convention), amending that Convention (OJ C 2, 6.1.2004, p. 3). 
OJ L 253, 29.9.2005, p. 22. 

EN 

8 

   EN 

 
                                                 
HAS DECIDED AS FOLLOWS:  

Article 1 

Subject matter and scope 

This Decision establishes a mechanism to ensure the transmission to Europol of information 
resulting from the activities of Member States’ security and intelligence services with respect 
to  terrorist  offences.  It  also  establishes  a  mechanism  to  ensure  the  exchange  of  information 
concerning  terrorist  offences  between  the  security  and  intelligence  services  of  the  Member 
States. 

Article 2 

Definitions 

For the purposes of this Decision, the following definitions shall apply: 

(a) 

(b) 

(c) 

“terrorist  offences”  means  the  offences  specified  in  Articles  1  to  4  of 
Framework Decision 2002/475/JHA;  

“Europol” means the European Police Office as established by the Convention 
of  26  July  1995  on  the  Establishment  of  a  European  Police  Office  (“the 
Europol Convention”); 

“security  and  intelligence  services”  means  those  authorities  of  the  Member 
States  which  are  responsible  for  collecting  and  producing  intelligence  for 
combating threats to the democratic legal order, the security and other essential 
interests of the State, including terrorism; 

(d) 

“relevant  information”  means  intelligence  with  respect  to  terrorist  offences 
which affect or may affect two or more Member States. 

Article 3 

National contact points 

1. 

2. 

3. 

Each Member State shall take the necessary measures to ensure that its security and 
intelligence services transmit to the national contact point designated in accordance 
with paragraph 2 all relevant information resulting from their activities with respect 
to terrorist offences. 

Each Member State shall designate within three months from the date of entry into 
force  of  this  Decision  a  national  contact  point  within  its  security  and  intelligence 
services.  

Member  States  shall  inform  the  General  Secretariat  of  the  Council  and  the 
Commission  in  writing  of  the  designated  contact  points  and  of  any  subsequent 
modifications.  

EN 

9 

   EN 

 
Article 4 

Transmission of information to Europol 

Each Member State shall take the necessary measures to ensure that the information received 
by its national contact point is transmitted to Europol, in accordance with the provisions of the 
Europol Convention.  

Article 5 

Transmission of information to other Member States 

Each Member State shall take the necessary measures to ensure that the information received 
by  its  national  contact  point  is  transmitted  to  the  national  contact  points  of  other  affected 
Member States in accordance with national law.  

Article 6 

Monitoring and evaluation 

1. 

2. 

Member  States  shall  report  to  the  General  Secretariat  of  the  Council  and  the 
Commission  on  the  measures  taken  to  implement  the  obligations  imposed  on  them 
by this Council Decision. Member States shall first report on these measures within 
one  year  from  the  date  of  entry  into  force  of  this  Decision  and  every  two  years 
thereafter. 

The Commission shall submit a report to the Council on the implementation of this 
Decision  on  the  basis  of  information  provided  by  the  Member  States  and  Europol. 
The Commission shall make its first report within eighteen months from the date of 
entry into force of this Decision and every two years thereafter.  

Article 7 

Entry into force 

This Decision shall enter into force on the day following its publication in the Official Journal 
of the European Union. 

Done at Brussels,  

For the Council 
The President 

EN 

10 

   EN