Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism
Date: 2008-11-28
Institutions: Council of the European Union
Subjects: approximation of laws, fight against crime, fundamental rights, rule of law, terrorism

9.12.2008

EN

Official Journal of the European Union

L 330/21

ACTS ADOPTED UNDER TITLE VI OF THE EU TREATY

COUNCIL FRAMEWORK DECISION 2008/919/JHA

of 28 November 2008

amending Framework Decision 2002/475/JHA on combating terrorism

THE COUNCIL OF THE EUROPEAN UNION,

inter-link international networks and increasingly rely on
in particular the Internet.
the use of new technologies,

Having regard to the Treaty on European Union, and in
particular Article 29, Article 31(1)(e) and Article 34(2)(b)
thereof,

(4)

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Whereas:

Terrorism constitutes one of the most serious violations
of the universal values of human dignity, liberty, equality
and solidarity, respect for human rights and fundamental
freedoms on which the European Union is founded. It
the most serious attacks on
also represents one of
democracy and the rule of
law, principles which are
common to the Member States and on which the
European Union is based.

is the basis of

Council Framework Decision 2002/475/JHA of 13 June
2002 on combating terrorism (2)
the
the European Union. The
counter-terrorist policy of
achievement of a legal
framework common to all
Member States, and in particular, of a harmonised defi­
terrorist offences, has allowed the counter-
nition of
terrorism policy of the European Union to develop and
expand, subject to the respect of fundamental rights and
the rule of law.

(1)

(2)

(3)

(5)

(6)

The Internet is used to inspire and mobilise local terrorist
networks and individuals in Europe and also serves as a
source of information on terrorist means and methods,
thus functioning as a ‘virtual training camp’. Activities of
offences,
public
recruitment
terrorism
have multiplied at very low cost and risk.

commit
terrorist
terrorism and training for

provocation
for

to

The Hague Programme on strengthening freedom,
security and justice in the European Union, adopted by
the European Council on 5 November 2004, underlines
that effective prevention and combating of terrorism in
full compliance with fundamental rights requires Member
States not to confine their activities to maintaining their
own security, but to focus also on the security of the
Union as a whole.

Programme on strengthening

The Council and Commission Action Plan implementing
freedom,
the Hague
security and justice in the European Union (3), recalls
that a global response is required to address terrorism
and that the expectations that citizens have of the Union
cannot be ignored, nor can the Union fail to respond to
them. In addition, it states that attention must focus on
different
and
and where necessary
response
complement, Member
fight
capabilities
concentrating particularly on recruitment,
terrorism,
financing,
infra­
risk analysis, protection of critical
structures and consequence management.

aspects of prevention, preparedness
to further

enhance,
States’

to

The terrorist threat has grown and rapidly evolved in
recent years, with changes in the modus operandi of
terrorist activists and supporters including the replace­
ment of structured and hierarchical groups by semi-
autonomous cells loosely tied to each other. Such cells

(7)

This Framework Decision provides for the criminalisation
of offences linked to terrorist activities in order
to
contribute to the more general policy objective of
preventing terrorism through reducing the dissemination
of those materials which might incite persons to commit
terrorist attacks.

(1) Not yet published in the Official Journal.
(2) OJ L 164, 22.6.2002, p. 3.

(3) OJ C 198, 12.8.2005, p. 1.

L 330/22

EN

Official Journal of the European Union

9.12.2008

(8)

(9)

(10)

(11)

for

a global

the Secretary-General of

United Nations Security Council Resolution 1624 (2005)
calls upon States to take measures that are necessary and
appropriate, and in accordance with their obligations
law, to prohibit by law incitement
under international
terrorist act or acts and to prevent such
to commit
conduct. The report of
the
United Nations ‘Uniting against
terrorism: recommen­
counter-terrorism strategy’ of
dations
27 April 2006,
interprets the above-mentioned Reso­
lution as providing for a basis for the criminalisation
of
recruitment,
including through the Internet. The United Nations
Global Counter-Terrorism Strategy of 8 September
2006 mentions that
the UN
to coordinate
resolve to explore ways and means
efforts at the international and regional level to counter
terrorism in all
its forms and manifestations on the
Internet.

the Member States of

incitement

terrorist

acts

and

to

The Council of Europe Convention on the Prevention of
Terrorism establishes the obligations of States parties
thereto to criminalise public provocation to commit a
and training for
and recruitment
terrorist offence
terrorism, when committed unlawfully and intentionally.

to

activities,

The definition of terrorist offences,
linked
be
terrorist
approximated in all Member States, so that
public provocation to commit
recruitment
for
when committed intentionally.

including offences
further
it covers
terrorist offence,
terrorism,

terrorism and training for

should

a

Penalties should be provided for natural persons having
intentionally committed or legal persons held liable for
offences,
public
recruitment
terrorism.
These forms of behaviour should be equally punishable
in all Member States irrespective of whether they are
committed through the Internet or not.

terrorist
commit
terrorism and training for

provocation
for

to

(12) Given that the objectives of this Framework Decision
cannot be sufficiently achieved by the Member States
unilaterally, and can therefore, because of the need for
European-wide harmonised rules, be better achieved at
the level of the Union, the Union 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, as
the EC
Treaty, this Framework Decision does not go beyond
what is necessary in order to achieve those objectives.

in Article 5 of

set out

(13)

the principles

recognised by
The Union observes
Article 6(2) of
the EU Treaty and reflected in the
Charter of Fundamental Rights of the European Union,
thereof. Nothing in this
notably Chapters II and VI
interpreted as being
Framework Decision may be
intended to reduce or restrict
fundamental rights or
freedoms such as freedom of expression, assembly, or
for private and
of association,

to respect

the right

family life, including the right to respect of the confiden­
tiality of correspondence.

(14)

to

commit

terrorist

provocation

offences,
Public
recruitment for terrorism and training for terrorism are
intentional crimes. Therefore, nothing in this Framework
Decision may be interpreted as being intended to reduce
or restrict the dissemination of information for scientific,
reporting purposes. The expression of
academic or
radical, polemic or controversial views in the public
debate
including
political
terrorism,
this Framework
Decision and,
in particular, of the definition of public
provocation to commit terrorist offences.

falls outside the scope of

questions,

sensitive

on

(15)

the criminalisation under this
The implementation of
to the
Framework Decision should be proportional
nature and circumstances of the offence, with respect
to the legitimate aims pursued and to their necessity in
a democratic society, and should exclude any form of
arbitrariness or discrimination,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Amendments

Framework Decision 2002/475/JHA shall be amended as
follows:

1. Article 3 shall be replaced by the following:

‘Article 3

Offences linked to terrorist activities

1.

For the purposes of this Framework Decision:

(a) “public provocation to commit a terrorist offence” shall
mean the distribution, or otherwise making available, of
a message to the public, with the intent to incite the
commission
in
Article 1(1)(a) to (h), where such conduct, whether or
not directly advocating terrorist offences, causes a danger
that one or more such offences may be committed;

offences

listed

one

the

of

of

(b) “recruitment for terrorism” shall mean soliciting another
listed in

person to commit one of
Article 1(1)(a) to (h), or in Article 2(2);

the offences

(c) “training for terrorism” shall mean providing instruction
in the making or use of explosives, firearms or other
weapons or noxious or hazardous substances, or in
other specific methods or techniques, for the purpose
of
in
Article 1(1)(a) to (h), knowing that the skills provided
are intended to be used for this purpose.

committing

offences

listed

one

the

of

9.12.2008

EN

Official Journal of the European Union

L 330/23

Each Member State shall take the necessary measures
2.
to ensure that offences linked to terrorist activities include
the following intentional acts:

(a) public provocation to commit a terrorist offence;

(b) recruitment for terrorism;

(c)

training for terrorism;

(d) aggravated theft with a view to committing one of the

offences listed in Article 1(1);

(e) extortion with a view to the perpetration of one of the

offences listed in Article 1(1);

(f) drawing up false administrative documents with a view
to committing one of the offences listed in Article 1(1)(a)
to (h) and Article 2(2)(b).

3.
For an act as set out in paragraph 2 to be punishable,
it shall not be necessary that a terrorist offence be actually
committed.’

2. Article 4 shall be replaced by the following:

‘Article 4

Aiding or abetting, inciting and attempting

1.
Each Member State shall take the necessary measures
to ensure that aiding or abetting an offence referred to in
Article 1(1), Articles 2 or 3 is made punishable.

2.
Each Member State shall take the necessary measures
to ensure that inciting an offence referred to in Article 1(1),
Article 2 or Article 3(2)(d) to (f) is made punishable.

3.
Each Member State shall take the necessary measures
to ensure that attempting to commit an offence referred to
in Article 1(1) and Article 3(2)(d) to (f), with the exception
of possession as provided for in Article 1(1)(f) and the
offence referred to in Article 1(1)(i), is made punishable.

4.
Each Member State may decide to take the necessary
measures to ensure that attempting to commit an offence
referred to in Article 3(2)(b) and (c) is made punishable.’

Article 2

Fundamental principles relating to freedom of expression

This Framework Decision shall not have the effect of requiring
funda­
Member States to take measures in contradiction of
mental principles relating to freedom of expression, in particular
freedom of the press and the freedom of expression in other
media as they result
traditions or rules
governing the rights and responsibilities of, and the procedural
guarantees for, the press or other media where these rules relate
to the determination or limitation of liability.

from constitutional

Article 3

Implementation and report

shall

take the necessary measures

1. Member States
to
comply with this Framework Decision by 9 December 2010.
In the implementation of this Framework Decision, Member
the criminalisation shall be propor­
States shall ensure that
tionate to the legitimate aims pursued and necessary in a demo­
cratic society and shall exclude any form of arbitrariness and
discrimination.

2.
By 9 December 2010, Member States shall 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.
On the basis of a report drawn up from that information and a
report
the Council shall assess, by
9 December 2011, whether Member States have taken the
necessary measures to comply with this Framework Decision.

from the Commission,

Article 4

Entry into force

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

Done at Brussels, 28 November 2008.

For the Council
The President

M. ALLIOT-MARIE