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
Date: 2021-11-18
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU Member State, EU police cooperation, criminal law, fight against crime, help for victims, judicial cooperation in criminal matters in the EU, national implementing measure, offence, penalty, terrorism

EN 

  EN 

   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 

1.1. General introduction ................................................................................................ 1 

1.2. Purpose and scope of the evaluation ........................................................................ 2 

2.  BACKGROUND TO THE INTERVENTION ........................................................... 3 

2.1 Context ...................................................................................................................... 3 

2.2 Description of the intervention and its objectives .................................................... 4 

2.3 Baseline and points of comparison ........................................................................... 5 

3. 

IMPLEMENTATION / STATE OF PLAY ................................................................ 6 

3.1. Description of the current situation ......................................................................... 6 

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................................................................ 9 

3.5 Victim protection and assistance .............................................................................. 9 

4.  METHOD .................................................................................................................. 12 

4.1 Short decription of methodology ............................................................................ 12 

4.2 Limitations and robustness of findings ................................................................... 14 

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS ................ 16 

5.1 Relevance ................................................................................................................ 16 

5.2 Effectiveness ........................................................................................................... 20 

5.3 Efficiency ................................................................................................................ 27 

5.4 Coherence ............................................................................................................... 32 

5.5 EU added value ....................................................................................................... 34 

5.6 Impact on fundamental rights and freedoms ........................................................... 37 

5.7. Impact on the rule of law ....................................................................................... 44 

5.8 Impact on the level of assistance and protection provided to victims of terrorism  48 

6.  CONCLUSIONS ....................................................................................................... 50 

ANNEX I: PROCEDURAL INFORMATION ................................................................. 54 

ANNEX II: STAKEHOLDER CONSULTATION .......................................................... 57 

ANNEX III: METHODS AND ANALYTICAL TOOLS ................................................ 70 

ANNEX IV: EVALUATION CRITERIA AND QUESTIONS ....................................... 74 

ANNEX V: INTERVENTION LOGIC ............................................................................ 76 

ANNEX  VI:  MAIN  DIFFERENCES  BETWEEN  FRAMEWORK  DECISION 

2002/475/JHA AND DIRECTIVE (EU) 2017/541 ................................................... 77 

ANNEX VII: APPROACH TO QUANTIFICATION OF COSTS .................................. 79 

 
 
 
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 

The FRA 

The EESC 

Terrorist offence 

Member States bound by the Directive, i.e. all Member 
States except Denmark and Ireland 

The Fundamental Rights Agency 

The European Economic and Social Committee 

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 

Adjudication 

Intent 

CT-SIENA 

Council  Decision  2005/671/JHA  on  the  exchange  of 
information  and  cooperation  concerning 
terrorist 
offences 

The  legal  process  of  deciding  a case,  often  ending  in 
either conviction or acquittal 

Intent to perform a criminal act 

A  secure  platform  operated  by  Europol,  which  allows 
EU 
law  enforcement,  cooperating  partners  and 
to  exchange 
cooperating  states  outside 
information,  including  restricted  content  on  counter- 
terrorism 

the  EU 

 
 
 
 
1. 

INTRODUCTION 

1.1. GENERAL INTRODUCTION  
On 15 March 2017, the Parliament and the Council adopted Directive (EU) 2017/541 on 
combating  terrorism1  (hereafter  “the  Directive”).  The  Directive  replaced  Framework 
Decision  2002/475/JHA2  (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  Directive3  (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 report4 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 

1 Directive (EU) 2017/541 of 15 March 2017 on combating terrorism, OJ L 88/6, 15.3.2017. 
2  Council  Framework  Decision  2002/475/JHA  of  13  June  2002  on  combating  terrorism,  OJ  L  164, 
13.6.2002. 
3 All EU Member States, except Denmark and Ireland.  
4 COM(2020) 619 final, 30.9.2020. 

1 

 
 
 
 
 
                                                           
  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 20145 (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. 

5 COM(2014) 554 final, 5.9.2014. 

2 

 
 
 
 
 
 
 
 
 
 
                                                           
Another  relevant  intervention,  which  equally  is  not  included  in  the  evaluation,  is  the 
Terrorist  Content  Online  Regulation6,  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  EU7,  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  Strategy8  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 

6 Regulation (EU) 2021/784 of 29 April 2021 on addressing the dissemination of terrorist content online, 

OJ L 172/79, 17.5.2021. 
7 COM(2020) 795 final, 9.12.2020. 
8  Communication  from  the  Commission  on  the  EU  Security  Union  Strategy,  COM(2020)  605  final, 
24.7.2020. 

3 

 
 
 
 
 
 
 
 
 
 
                                                           
concerned the year 20209. 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  consistent10.  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  proposal11  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 

9  For  more  information,  please  see  here:  https://www.europol.europa.eu/tesat-report.  Please  note  that 
Europol relies on Member States’ reporting for the TE-SAT reports.  
10 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 11-12. 
11  European  Commission,  2015,  Proposal  for  a  Directive  on  combating  terrorism  and  replacing  Council 
Framework  Decision  2002/475/JHA  on  combating  terrorism  (COM(2015)  625  final).  Available  at: 
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52015PC0625  

4 

 
 
 
 
 
 
 
 
 
 
 
                                                           
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  Directive12 
(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. 

12 Directive 2012/29/EU, OJ L 315, 14.11.2012. 

5 

 
 
 
 
 
 
 
 
 
 
 
                                                           
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 law13. 
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  200714 
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 201415 
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  States16  notified  complete  transposition  of  the  Directive  and  two17  notified 
shortly after. The Commission launched infringement procedures on 22 November 2018 
against  16  Member  States18  for  failing  to  communicate  the  adoption  of  national 
legislation  transposing  the  Directive.  By  the  end  of  2020,  these  Member  States  had 

13 In particular, obligations in relation to foreign terrorist  fighters and terrorist financing:  United Nations 
Council  Security  Resolution  2178,  on  foreign  terrorist  fighters  (2014),  the  Additional  Protocol  to  the 
Council of Europe Convention on the Prevention of Terrorism (2015) and the Financial Action Task Force 
standards on terrorist financing. 
14 COM(2007) 681 final, 6.11.2007. 
15 COM(2014) 554 final, 5.9.2014. 
16 FR, DE, HU, IT, LV, SK, SE  
17 FI, NL 
18 AT, BE, BG, HR, CY, CZ, EE, EL, LT, LU, MT, PL, PT, RO, SL, ES 

6 

 
 
 
 
 
                                                           
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  States19  notified  pre-existing  legislation  in  transposition  of  the 
Directive.  As  discussed  in  the  introduction,  the  Commission  concluded  in  its 
transposition report20  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 offences21.  

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  States22, 
while  the  provisions  on  sanctions  led  to  significant  changes  in  three  Member  States23. 
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 

19 FR, IT 
20 COM(2020) 619 final, 30.9.2020. 
21 AT, BE, BG, CY, EE, EL, ES, FI, HR, LT, LU, LV, MT, PT, RO, SE, SI, SK (definitions); BE, CY, EE, 
ES, FI, HR, IT, LT, LU, LV, MT, NL, PT, RO, SE (sanctions). 
22 AT, CY, EL, FI, MT, SE. 
23 CY, FI, SE. 

7 

 
 
                                                           
laws in  four of those Member States24. Moreover, three Member states reported having 
adopted measures to strengthen existing sanctions25.  

INVESTIGATION, 

PROSECUTION  AND  ADJUDICATION  OF 

3.3 
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)26
.
Some Member States27 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  Code28,  although  other  laws  are  also  applicable, 
including  the  Criminal  Code29  or  laws  to  counter  terrorist-financing30.  In  all  but  one 
Member State31, 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 Directive32. 

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 
cases33  or  also  with  other  types  of  serious  crimes34.  Some  Member  States  have 
established  specialised  bodies  within  the  Public  Prosecutor’s  office35  or  the  national 
courts36. 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.  

24 BG, DE, EL, NL 
25 BE, ES, NL 
26 BE, BG, EL, HR, HU, LT, LU, NL, PT, RO, SE, SK (Articles 19, 20); AT, BE, CY, CZ, DE, LU, MT, 
NL, RO, SE (Article 21). 
27 AT, CY, FI 
28 BE, BG, DE, EL, ES, NL 
29 EL, ES, NL 
30 EL 
31 BG 
32 DE, EL, NL 
33 EL, DE 
34 BG, ES, IT, NL 
35 ES, FR, BG 
36 ES, FR, BG 

8 

 
 
 
 
 
                                                           
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  States37,  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  States38  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  States39,  and  the 
presence of internal bodies to exchange information, as reported by six Member States40. 
Three others mentioned  the importance of the implementation of information  exchange 
channels such as CT SIENA41. Furthermore, 15 Member States reported already having 
measures in force prior to the entering into force of the Directive42.  

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 States43. In terms of practical implementation, six 
Member  States44  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 exchange45.   

3.5 VICTIM PROTECTION AND ASSISTANCE 
The  Directive  complements  legislation  on  the  rights  for  victims  of  terrorism46  and 
includes measures that respond more precisely to the needs of victims of terrorism: Title 

37 AT, CY, EL, HR, HU 
38 BE, EL, FR 
39 IT, HU, ES, FI, LT, LV, PT, SE, SI, SK 
40 BG, CZ, EE, ES, FR, HU 
41 PT, RO, SK 
42 AT, BE, BG, CZ, DE, HR, HU, LT, LV, NL, PT, RO, SE, SI, SK. 
43 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 35. 
44 FR, HR, HU, PT, RO, SK 
45 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 41. 
46 Directive 2012/29/EU (OJ L 315/57, 14.11.2012) establishes minimum standards on the rights, support 
and protection of victims of crime 

9 

 
 
 
                                                           
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/EU47, 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  States48  adopted  new  legislative  measures  in 
order to  transpose Title V of the Directive, of which six  Member States49 implemented 
changes that were of major significance. In some cases50, these concerned the provision 
of  new  types  of  support,  such  as  the  establishment  or  nomination  of  a  national  single 
contact point51 and the launch of online information services or helplines52. 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  NGOs53.  In  some  cases,  such 
services are almost fully provided by the state54 or led by an NGO55. Among the Member 
States where the responsible entity is specialised in victims of terrorism56, two set them 
up recently, one as a result of the Directive57 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 

47 OJ L 315/57, 14.11.2012. 
48 AT, BG, CY, CZ, EE, EL, FI, HU, IT, LT, MT, NL, PT, RO, SE, SK 
49 CZ, EE, EL, HU, LT, MT 
50 AT, CZ, EL, FI, FR, IT, SE 
51 AT, BG, CZ, FI 
52 CZ, EE, SE 
53 For example, BE, DE, EL, ES, FR 
54 BG 
55 NL 
56 DE, EL, ES 
57 EL 

10 

 
 
                                                           
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 compensation58. 

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 solution59 adopted in Member States 
such as France and Spain to provide advice and information to victims of terrorism60, 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)61. 

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 terrorism62, 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  place63.  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 

58 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 35-36. 
59  Single-point-of-access  services  (whether  offline  or  online)  which  act  as  the  first  point  of  contact  for 
victims and either provide the services themselves or can refer the victim to the responsible body.   
60 CoE on Victims of Terrorism, 2020, EU Centre of Expertise for Victims of Terrorism, EU Handbook on 
Victims of Terrorism; German Presidency, 2020, Report on the state of play regarding support for victims 
of terrorism, particularly in cross-border situations (12744/20). 
61 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 37. 
62 EU Centre of Expertise for Victims of Terrorism, EU Handbook on Victims of Terrorism, 2021. 
63 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 37. 

11 

 
 
 
 
 
 
                                                           
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-up64. This 
includes  uncertainty  on  how  to  apply  the  standards  from  the  General  Data  Protection 
Regulation. This is further discussed in Section 5.1.265.  

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 

64 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 38. 
65 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 27. 

12 

 
 
 
 
 
 
 
                                                           
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 
consultation66. 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 

66 https://ec.europa.eu/eusurvey/runner/Combatting_Terrorism 

13 

 
 
 
 
 
                                                           
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  evaluation67.

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  roadmap68.  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)69. 

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 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12545-Combating-terrorism-

67  European  Economic  and  Social  Committee,  Information  report,  Evaluation  of  the  Directive  on 
combating terrorism, SOC/675, 2021. 
68 
evaluation-of-EU-rules_en 
69  Also  to  be  noted  in  this  context,  is  that  the  preceding  Framework  Decision  has  never  been 
comprehensively evaluated according to the better regulation guidelines, and was primarily checked with 
regard to transposition requirements. 

14 

 
 
 
 
 
 
 
 
 
                                                           
the  fact  that  the  Commission  has  very  recently  published  its  transposition  report70  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 

70 COM(2020) 619 final, 30.9.2020. 

15 

 
 
 
 
 
 
                                                           
also  consulted  relevant  stakeholders.  Eurojust  has  also  held  and  reported  on  meetings, 
during which practitioners commented on the relevance and usefulness of the Directive71 
72. 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 

5.1 RELEVANCE 

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. 

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”73.  

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 

71  Eurojust  Expert  Workshops  on  Violent  Right-Wing  Extremism  and  Terrorism  –  Summary  of  the 
Discussions, April 2021, page 2. 
2021_04_summary_of_expert_workshops_on_right_wing_extremism_updated.pdf (europa.eu). 
72  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021, page 14. 
73  European  Economic  and  Social  Committee,  Information  report,  Evaluation  of  the  Directive  on 
combating terrorism, SOC/675, 2021, para. 3.1. 

16 

 
 
 
 
 
 
 
 
 
 
 
 
                                                           
 
 
 
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 need74. 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  Directive75  76.  The  FRA  also  noted  this  in  relation  to  certain 
specific offences77. 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 

74 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 19. 
75 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 21. 
76 European Network Against Racism, Suspicion, discrimination and surveillance, 2021, page 15. 
77 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 2. 

17 

 
 
 
 
 
                                                           
groups78. 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)79,  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  sanctions80.  More  specifically, 
national authorities acknowledged the overall relevance of the minimum rules contained 
in the Directive to counter terrorism in the current context81.  

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. 

78 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 21. 
79 International Commission of Jurists, 2019, Justice Project, Implementing the EU Directive 2017/541 on 
combating terrorism, Report on the European Transnational Roundtables conducted in 2019. 
80 Austrian Presidency of the Council, 2019, The way forward in the field of mutual recognition in criminal 
matters (9317/19). 
81 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 23. 

18 

 
 
 
 
 
 
 
                                                           
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 disagreed82.  

Despite  the  overall  positive  assessment  of  the  relevance  of  the  minimum  rules  of  the 
Directive,  the  evaluation  found  some  gaps  related  to  the  needs  of  victims  of  terrorism. 
Five  main  categories  of  needs  of  victims  of  terrorism  have  been  identified  at  the  EU 
level: recognition and respect, support and information, protection, access to justice, and 
compensation  and  restoration83.  Most  categories  of  needs  are  covered  –  directly  or 
indirectly  –  by  the  Directive,  except  for  the  need  for  recognition  and  respect.  This  is  a 
significant change  compared to  the baseline situation, in  which the needs of victims of 
terrorism  were  not  captured  by  the  Framework  Decision.  In  relation  to  the  need  for 
recognition and respect, it should be noted that Article 1 of the Victims’ Rights Directive 
(which  applies  to  all  victims  of  all  crime,  including  victims  of  terrorism),  holds  that 
“Member  States  shall  ensure  that  victims  are  recognised  and  treated  in  a  respectful, 
sensitive, tailored, professional  and non-discriminatory  manner”.  Nevertheless,  victim’s 
associations  working  with  victims  of  terrorism  in  Spain  found  it  problematic  that  the 
Directive does not cover  the humiliation of victims, as this would enhance the protection 
and  recognition  of  victims  of  terrorism,  and  would  prevent  secondary  victimisation84. 
The  Spanish  criminal  law  does  criminalise  the  humiliation  of  victims,  which  is 
considered by the FRA to potentially increase the risk of arbitrarily limiting the freedom 
of expression85. 

Another  potential  gap  identified  by  stakeholders  is  the  lack  of  guidance  on  the 
organisation  and  set-up  of  memorials.  Some  victim  support  associations  held  the  view 
that this will also enable the recognition of victims of terrorism86.    

Finally,  in  many  terrorist  attacks,  people  of  different  nationalities  fall  victim.  In  this 
cross-border  context,  the  EU  Strategy  on  victims’  rights  (2020-2025)  underlines  the 
importance  of  cooperation  between  national  authorities  and  victim  support 
organisations87.  The  rights  of  victims  of  terrorism  resident  in  another  Member  State 
(Article 26), which are newly included in the legal framework compared to the baseline 
situation,  therefore  are  particularly  relevant,  but,  according  to  some  stakeholders,  not 
sufficient to ensure an adequate level of protection of cross-border victims in all Member 
States. Some victim support associations identified a lack of specific rules or minimum 
standards on how Member States should communicate information on victims in cross-
border cases, for example through single contact points88. This was also identified by the 

82 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 24. 
83  EU  Centre  of  Expertise  for  Victims  of  Terrorism,  EU  Handbook  on  Victims  of  Terrorism,  2021; 
European Parliament, How can the EU and the Member States better help victims of terrorism?, 2017. 
84 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 26. 
85 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 15. 
86 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 26. 
87 Communication from the Commission  – EU Strategy on victims’ rights (2020-2025), COM(2020) 258 
final, 24.6.2020.  
88 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 27. 

19 

 
 
 
 
                                                           
EESC,  which  notes  that  “the  fate  of  foreign  victims  is  a  real  concern,  given  the 
significant  differences  between  arrangements  for  providing  assistance  and  judicial 
procedures  in  the  EU,  especially  in  terms  of  victims  having  access  to  the  necessary 
information in their own language”89. 

5.1.3 Relevance of the Directive in the coming years 
The evaluation finds that the Directive is expected to remain relevant in the next years. In 
December  2020,  the  Commission  set  out  the  threat  picture  in  its  Counter-Terrorism 
Agenda90, which is in line with the picture that emerges from the six-monthly papers of 
the  EU’s  Intelligence  and  Information  Centre.  Next  to  the  trends  identified  in  the 
Counter-Terrorism Agenda for the EU (as outlined in the introduction), the external study 
identified  two  additional  trends  in  the  terrorist  threat  that  it  expects  to  continue  in  the 
coming years, in particular:   

  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 difficult91.  

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  terrorism92,  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. 

89  European  Economic  and  Social  Committee,  Information  report,  Evaluation  of  the  Directive  on 
combating terrorism, SOC/675, 2021, para. 3.4. 
90 COM(2020) 795 final, 9.12.2020. 
91  ICF  (2021).  Evaluation  of  Directive  2017/541  on  countering  terrorism,  final  report,  page  28;  these 
expectations were confirmed by counter-terrorism experts in a validation workshop organised by ICF. 
92 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 29. 

20 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
5.2 EFFECTIVENESS 

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. 

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 

21 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
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 393. 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 organisations94.    

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 

93 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 39. 
94 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 41. 

22 

 
 
 
                                                           
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  report95  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  cases96. 

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 issues97. 
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”98. 

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 

95 COM((2020) 619 final, 30.9.2020. 
96 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 39. 
97 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 40-41. 
98  European  Economic  and  Social  Committee,  Information  report,  Evaluation  of  the  Directive  on 
combating terrorism, SOC/675, 2021, para. 4.2.1. 

23 

 
 
 
 
 
 
 
                                                           
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  sanctions99.  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 offences100. 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  terrorism101.  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 

99 COM(2020) 619 final, 30.9.2020, pages 12-13. 
100 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 42. 
101 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 33. 

24 

 
 
 
 
 
 
                                                           
terrorism”102. 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  offences103  contribute  to  the  effectiveness  of  the  Directive104.

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 online105.  

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 practice106.  

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. 

April 

2021, 

102  Eurojust  Expert  Workshops  on  Violent  Right-Wing  Extremism  and  Terrorism  –  Summary  of  the 
Discussions, 
2. 
https://www.eurojust.europa.eu/sites/default/files/Documents/pdf/2021_04_summary_of_expert_workshop
s_on_right_wing_extremism_updated.pdf. 
103  For  example,  the  Passenger  Name  Record  Directive,  the  Anti-Money  Laundering  Directive,  the 
European Investigation Order Directive, Eurojust’s work, the work of Europol’s Internet Referral Unit and 
the use of systems such as SIENA. 
104 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 45. 
105 Regulation (EU) 2021/784 of 29 April 2021 on addressing the dissemination of terrorist content online, 
OJ L 172/79, 17.5.2021. 
106 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 34. 

page 

25 

 
 
 
 
 
 
 
                                                           
Often, the main evidence in cases of travelling for terrorist purposes is digital evidence 
sourced  from  various  digital  media107.  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 Directive108. 

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”109.  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  one110.  Similarly,  the  European 
Network Against Racism notes that legal systems struggle with classifying extreme right-
wing acts as acts of terrorism111.  

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  proved112.  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 established113. 

107  EJTN,  2019,  THEMIS  2019  Semi-final  A:  EU  and  European  Criminal  Procedure,  2019,  Combating 
traveling for terrorist purposes - real life or just a fantasy? 
108 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 40. 
109 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 15. 
110 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 19. 
111 European Network Against Racism, Suspicion, discrimination and surveillance, 2021, page 16. 
112  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021, page 14-15. 
113  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021, page 15. 

26 

 
 
 
 
 
                                                           
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 level114.  

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 crimes115. 

5.3 EFFICIENCY 

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. 

5.3.1 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’ 

114  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021, page 15. 
115  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021, page 14. 

27 

 
 
 
 
 
 
 
 
 
 
                                                           
 
 
efforts116.  

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 costs117.  

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 

116 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 46. 
117 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 46. 

28 

 
 
 
 
 
 
                                                           
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 Directive118.    

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 

118 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 46-47. 

29 

 
 
 
 
 
 
 
                                                           
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 agencies119.    

Figure 1120: Member States’ assessment of improvements generated by the Directive 

119 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 47-48. 
120 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 48. 

30 

 
 
 
                                                           
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 2121: 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 States122. 

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 

121 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 49. 
122 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 49. 

31 

 
 
 
 
 
 
 
 
 
 
 
                                                           
consultation stating that administrative costs in their organisations have increased due to 
the Directive123.  

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 

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. 

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  Article  11(2)  implies  that  there  is  a 
requirement for the funds to be in fact used, except for the financing of the offences in 
Articles 3, 4 and 9. 

As directives rely on transposition into national law for their functioning, the evaluation 
also examined the degree of consistency in the way that Member States are implementing 
the Directive. Many provisions are being interpreted and applied in different ways across 
Member  States,  partly  because  the  Directive  only  sets  minimum  rules.  However,  the 
different approaches do not seem to be inconsistent or incoherent. The evaluation did not 
identify any inconsistencies in the implementation of the Directive at the national level.

Nevertheless,  one  issue  emerges  from  the  evidence  gathered,  which  relates  to  offences 
related to terrorist activities (Articles 5-12). A member of the judiciary argued that very 
often, several provisions can be applied to the same case (e.g. recruitment, training and 
travelling  for  the  purpose  of  terrorism).  This  results  in  a  wide  margin  of  discretion  for 
judges and could  potentially lead to  an inconsistent  application of the Directive124. The 
FRA makes a similar point in its contribution, where it notes a concern in relation to the 
“use of generic catch-all offences or overlaps between the definitions of different terrorist 
and terrorism related offences”125. 

5.4.2 Coherence and complementarity with other policy interventions    
Apart from two exceptions, all stakeholders consulted reported that they are not aware of 
any inconsistencies between the Directive and other relevant legislation at national level 
in  their  Member  State.  Irrespective  of  their  area  of  involvement  (judiciary,  counter-

123 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 50. 
124 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 50. 
125 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 2. 

32 

 
 
 
 
 
  
 
 
 
 
 
 
 
                                                           
 
 
 
terrorism  units,  ministries),  the  vast  majority  acknowledged  consistency  between  the 
Directive  and  other  related  instruments  at  national  level.  However,  two  Member  States 
reported  a  potential  incoherence  between  the  Directive  and  their  criminal  law  systems; 
German  national  authorities  identified  potential  constitutional  restraints  in  applying  the 
Directive,  and  Spanish  members  of  the  judiciary  pointed  to  the  concept  of  negligence, 
which is used in their national law but not in the Directive126 127. 

The  evaluation  finds  furthermore  that  the  Directive  is  highly  coherent  with  policy 
interventions at the EU level. Of all stakeholders surveyed about the degree of coherence 
and complementarity between the Directive and other relevant instruments at EU level, 
none mentioned any inconsistencies. The evaluation examined the coherence with certain 
interventions  in  particular.  No  coherence  issues  have  been  identified  between  the 
Directive  and  the  Victims’  Rights  Directive.  The  same  applies  to  the  Compensation 
Directive128: the Directive does not present inconsistencies or overlaps but can instead be 
considered complementary. 

The  Directive  is  also  coherent  with  Directives  regarding  the  European  Investigation 
Order129 in criminal matters, on electronic commerce130, and on citizens’ rights and free 
movement131.  In  addition,  the  Regulation  on  addressing  the  dissemination  of  terrorist 
content  online132  is  also  consistent  and  closely  aligned  with  the  Directive,  and 
specifically  Article 21 of the Directive which requires Member States to take measures 
ensuring the swift removal  of online content, limited to  public provocation and leaving 
Member States the choice of the measures. 

Recital  38  excludes  the  provision  of  humanitarian  activities  by  impartial  humanitarian 
organisations  recognised  by  international  law  including  international  humanitarian  law 
from  the  scope  of  the  Directive.  This  humanitarian  safeguard  clause  is  coherent  and 
consistent  with  other  relevant  EU-level  interventions.  Humanitarian  organisations 
consulted agreed that the language used in the recital reflects the core values of the EU, 
as well as  the language  used in  other  relevant  documents and communications, such as 
the Council conclusions on humanitarian assistance and humanitarian law (2019)133 and 
on EU External Action on Preventing and Countering Terrorism and Violent Extremism 
(2020)134  135.  Moreover,  the  exemption  of  Recital  38  is,  according  to  humanitarian 
organisations  consulted,  one  of  the  most  protective  ones  at  international  level  and 
therefore serves as an example at the international stage. 

126 The issue identified by the Spanish members of the judiciary appears to be an issue of more far-reaching 
legislation at national level, rather than incoherence. 
127 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 51. 
128 Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, OJ L 261/15, 
6.8.2004. 
129 Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters, 
OJ L 130, 1.5.2014. 
130  Directive  2000/31/EC  of  8  June  2000  on  legal  aspects  of  information  society  services,  in  particular 
electronic commerce, in the Internal Market, OJ L 178, 17.7.2000. 
131 Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members 
to move and reside freely within the territory of the Member States, OJ L 158, 30.4.2004. 
132 Regulation (EU) 2021/784 of 29 April 2021 on addressing the dissemination of terrorist content online, 
OJ L 172/79, 17.5.2021. 
133  Council  conclusions  on  humanitarian  assistance  and  international  humanitarian  law  adopted  on  25 
November 2019 (14487/19). 
134  Council  Conclusions  on  EU  External  Action  on  Preventing  and  Countering  Terrorism  and  Violent 
Extremism adopted on 15 June 2020 (8868/20). 
135 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 54. 

33 

 
 
 
 
 
 
 
 
                                                           
However,  a  potential  inconsistency  has  been  identified  between  the  Directive  and  the 
Fifth  Money-Laundering  Directive136  (hereafter  “AMLD  V”).  Although  the  Directive 
adopts the same definition of ‘terrorism financing’ laid down in the AMLD V, there is a 
difference  in  their  scope,  particularly  with  regard  to  the  “other  offences  related  to 
terrorist  activities”  (Article  12).  When  defining  the  criminal  offence  of  “terrorist 
financing”,  Article  11  of  the  Directive  excludes  the  financing  of  the  offences  listed  in 
Article  12.  By  contrast,  the  AMLD  V  –  which  was  adopted  in  2018  –  maintained  the 
same definition of terrorist financing laid down in the previous AMLD, which referred to 
the  financing  of  the  offences  “within  the  meaning  of  Articles  1  to  4  of  Council 
Framework  Decision  2002/475/JHA”,  where  the  current  Article  12  offences  were 
included. However, during the consultations, no stakeholder pointed to inconsistencies or 
incoherence between the two instruments137.  

Finally, as regards coherence with international-level policy interventions, the evaluation 
finds the Directive to be coherent with relevant international interventions in the field of 
counter-terrorism, particularly those taken by the UN Security Council and the Council 
of Europe in 2014 and 2015.    

In 2014, the UN Security Council adopted Resolution 2178 which required UN members 
to criminalise the act of travelling or attempting to travel to another country for terrorist 
purposes,  and  the  financing  or  facilitating  of  such  travel.  The  Resolution  also  required 
signatories  to  criminalise  the  act  of  providing  or  receiving  terrorist  training.  The 
implementation  of  the  Resolution  in  the  EU  was  facilitated  the  following  year  (2015) 
when  the  Council  of  Europe  adopted  an  Additional  Protocol  on  its  Convention  on  the 
Prevention of Terrorism. By 2015, a majority of Member States had started to criminalise 
the  act  of  receiving  terrorist  training  and  some  had  similarly  criminalised  travel 
undertaken by  foreign terrorist  fighters  as  a  criminal  offence138. Through the Directive, 
the  EU  brought  the  legal  framework  at  EU  level  in  line  with  practices  in  many  of  the 
Member  States.  At  the  same  time,  the  adoption  of  the  Directive  also  respects  and 
reinforces  international  standards  in  the  field  of  counter-terrorism  by  reaffirming  the 
requirements provided by Resolution 2178139.   

When it comes to the humanitarian safeguard contained in Recital 38, the language used 
in the Directive is – according to humanitarian organisations consulted – one of the most 
protective  ones  at  international  level  (compared  to,  e.g.,  UNSC  Resolution  2462  on 
terrorist financing140 or the UN Counter-Terrorism Strategy) and no inconsistencies in the 
approach adopted or the language used can be reported. Similarly, the exclusion of acts 
of  war  during  an  armed  conflict  (Recital  37)  ensures  consistency  and  coherence  with 
humanitarian law principles, as noted by humanitarian organisations consulted141.  

136 Directive (EU) 2018/843 of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the 
use  of  the  financial  system  for  the  purposes  of  money  laundering  or  terrorist  financing,  and  amending 
Directives 2009/138/EC and 2013/36/EU, OJ L 156, 19.6.2018. 
137 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 53. 
138 Paunovic N., 2018, New EU criminal law approach to terrorist offences, University of Belgrade, Faculty 
of Law, p. 546. 
139 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 54. 
140 Resolution 2462 (2019) Adopted by the Security Council at its 8496th meeting, on 28 March 2019. 
141 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 54-55. 

34 

 
 
 
 
 
 
 
 
 
                                                           
5.5 EU ADDED VALUE 

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. 

The EU-added value of the Directive lies in the fact that it sets a common baseline in the 
EU, which creates a necessary basis for cooperation and information exchange. Council 
Decision  2005/671/JHA  on  the  exchange  of  information  and  cooperation  concerning 
terrorist  offences  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. The Directive 
amended the Council Decision, so that the Council Decision refers to the Directive and 
not  to  the  previous  Framework  Decision.  In  addition,  some  minor  amendments  were 
made, e.g. to clarify that Member States may also share information spontaneously with 
other Member States.   

By setting harmonised definitions and minimum rules, the Directive allows for precisely 
this  cross-border  cooperation  and  information  exchange.  This  harmonisation  could 
neither  have  been  achieved  by  Member  States  alone,  nor  at  the  international  level. 
Instead, it is necessary that the EU sets such rules based on Article 83(1) of the TFEU. It 
is unlikely that such harmonisation would have happened in the absence of the Directive; 
criminal  law  takes  shape  incrementally  and  often  reflects  national  circumstances. 
Without  EU  intervention,  it  is  highly  unlikely  that  Member  States  with  different 
experiences with  terrorism  (in forms  of terrorism  and in  intensity), would have taken a 
harmonised approach towards their criminal law framework. 

5.5.1 Added value compared to national and international interventions 
The  Commission  proposal  for  the  Directive  highlighted  the  need  for  a  new  directive, 
building on the Framework Decision that was to be replaced. The proposal stated in the 
explanatory  memorandum  that  “more  coherent,  comprehensive  and  aligned  national 
criminal  law  provisions  are  necessary”.  The  proposal  mentioned  the  new  international 
standards and obligations, warranting the replacement of the Framework Decision and a 
strengthening  of  its  framework.  Finally,  on  subsidiarity  the  proposal  states  that  the 
“objectives  cannot  be  sufficiently  achieved  by  EU  Member  States  acting  alone,  since 
legislation only at the national level would not have the effect of establishing minimum 
rules on the definitions  of and penalties for terrorist  offences applicable throughout  the 
EU”.  For  this  reason,  and  in  order  to  reduce  the  risks  of  legal  fragmentation,  unclarity 
and divergence, the proposal argued for an EU instrument142.  

142 Proposal for a Directive on combating terrorism, COM(2015) 625 final, 2.12.2015. 

35 

 
 
 
 
 
 
 
 
                                                           
 
 
The  great  majority  of  the  stakeholders  consulted  (representing  national  authorities, 
counter-terrorism units, and members of the judiciary and prosecutors) believed that the 
Directive  has  generated  added  value  compared  to  what  could  have  been  achieved  by 
Member  States  individually,  bilaterally  or  multilaterally.  Their  feedback  also  suggested 
that the main area in which the Directive is perceived to have generated added value is 
the approximation of criminal definitions and sanctions of terrorism-related offences. In 
the view of these stakeholders, the Directive has approximated criminal rules to counter 
terrorism  in  a  way  that  Member  States  would  not  have  been  able  to  do  individually. 
Ultimately,  this  has  also  contributed  –  to  some  extent  –  to  facilitating  information 
exchange and cooperation on terrorism matters between Member States.  In view of the 
evolving  terrorist  threat  and  the  diffusion  in  the  forms  of  terrorism  and  the  modi 
operandi, the Directive is pertinent also for Member States where there might initially (at 
the time of the proposal) have been less of a direct need for combating terrorism through 
criminal law. It has also responded to the threat posed by foreign terrorist fighters, giving 
Member  States  the  tools  to  investigate,  prosecute,  adjudicate  and  sentence  suspects  on 
the basis of traveling for the purpose of terrorism, rather than for example participation in 
a terrorist organisation. This highlights the continued added value of the Directive. 

A  majority  of  stakeholders  from  national  authorities,  counter-terrorism  units,  and 
members  of  the  judiciary  and  prosecutors  found  that  Articles  1  to  23  have  provided 
added  value  compared  to  the  Framework  Decision,  i.e.  added  value  compared  to  the 
baseline  situation.  Several  stakeholders  pointed  out  that  the  Directive  has  made  it 
possible to take into account the evolution of terrorist threats, by bringing together in all 
Member  States  the  definitions  of  offences  related  to  terrorist  groups  and  terrorist 
activities and providing a more comprehensive coverage of behaviour related to foreign 
terrorist  fighters  and  terrorist  financing.  However,  some  stakeholders  from  Member 
States that already had a strong criminal law system to combat terrorist did not consider 
that the Directive added value143.  

On  victims’  rights  (Articles  24  to  26),  the  results  of  the  stakeholder  consultation  show 
less consensus. Representatives from the judiciary and counter-terrorism units answering 
to the surveys were generally positive about the added value of the Directive in this area, 
with  a  majority  of  them  considering  that  it  has  generated  considerable  or  some  added 
value.  However,  the  interviews  with  victims’  associations  showed  more  divided 
opinions.  In  two  Member  States,  victims’  associations  replied  the  Directive  did  not 
generate  added  value,  for  example  because  their  Member  State  already  had  a  strong 
victim protection system in place prior to the Directive. In contrast, victims’ associations 
in  other  Member  States  reported  that  the  Directive  is  clearer  than  the  previous 
Framework Decision. They argue that the Directive is the first EU-level instrument that 
makes  explicit  the  specific  needs  of  victims  of  terrorism,  assures  close  attention  to 
terrorist  attacks  from  the  perspective  of  victims’  rights  and  that  provides  support  for 
victims  outside  their  country  of  residence,  which  is  important  especially  in  cases  of 
transnational terrorism144. 

5.5.2 Likely consequences of withdrawing the Directive   
Overall, withdrawing the Directive are deemed to have a detrimental effect. As with the 
minimum  rules  established  by  the  Directive  the  practical  implementation  varies  across 
Member  States,  in  the  absence  of  such  minimum  rules  the  differences  would  likely 
widen,  which  would  harm  cooperation  and  information  exchange  between  Members 

143 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 55-56. 
144 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 56. 

36 

 
 
 
                                                           
States. The Directive sets minimum rules to allow for a baseline ground for cooperation 
and information exchange. On the other hand, certain international standards – which are 
largely in line with some of the obligations of the Directive – would remain applicable, 
potentially limiting the impact of the withdrawal of the Directive.  

The  evaluation  finds  that  the  most  likely  consequence  of  withdrawing  the  Directive 
would be a reduced harmonisation of the offences of the Directive, which would have a 
negative  impact  on  cooperation  and  information  exchange  between  Member  States. 
Withdrawing  the  Directive  would  lead  to  regulatory  fragmentation  and  legal  unclarity, 
whereas  terrorist  activity  in  the  EU  is  quintessentially  cross-border  and  requires  cross-
border  responses.  The  regulatory  weaknesses  resulting  from  withdrawing  the  Directive 
could,  as  a  result,  be  exploited  by  terrorists.  A  respondent  to  the  public  consultation 
representing  a  public  authority  indicates  that,  in  their  view,  withdrawing  the  Directive 
would have a “very negative impact” on their organisation. They explained this by noting 
that judicial cooperation is  crucial  given that  terrorism is  a trans-national  phenomenon. 
Another  respondent  to  the  public  consultation,  representing  an  NGO,  notes  that  “the 
withdrawal of the [counter-terrorism] Directive would be nefarious for any Member State 
as it constitutes an essential benchmark in the EU fight against terrorism”. 

In addition, given that the Directive has been implemented across the Member States (see 
also  section  3),  there  would  be  costs  involved  in  withdrawing  the  Directive,  as  well  as 
costs related to the detrimental effects of reduced harmonisation and reduced coherence. 

A majority of stakeholders from counter-terrorism units reported that a withdrawal of the 
Directive  would  have  a  negative  impact  on  the  efforts  to  counter  terrorism  in  the  EU, 
while  half  of  them  reported  that  a  withdrawal  of  the  Directive  would  have  a  negative 
impact on the efforts to counter terrorism in Member States as well.  

5.6 IMPACT ON FUNDAMENTAL RIGHTS AND FREEDOMS 

Summary findings – impact on fundamental rights and freedoms 
While  the  Directive  has  had  an  impact  on  fundamental  rights  and  freedoms,  the 
limitations  largely  meet  the  requirements  of  necessity  and  proportionality.  Overall, 
most stakeholders consulted for the external study do not consider the implementation 
of  the  Directive  to  be  problematic  from  a  fundamental  rights  perspective.  However, 
some  issues  have  been  identified  as  having  the  potential  to  create  tension  with  the 
requirements of necessity and proportionality, of which some are linked directly to the 
scope of the Directive, while others are only indirectly linked to it. Despite safeguard 
measures in place in the Member States to prevent discrimination, some stakeholders 
criticise  counter-terrorism  measures,  including  those  covered  by  the  Directive,  for 
potentially leading to adverse effects for groups that are at heightened risk of facing 
discrimination and racism.  

 5.6.1 General impact of the Directive on fundamental rights and freedoms 
The obligations contained in Articles 1 to 23 of the Directive impose limitations on the 
rights  of  individuals,  notably  the  freedom  of  expression,  assembly,  association, 
movement, the right to privacy and family life, the right to political participation or the 
right to liberty. The investigation and prosecution of suspected cases of terrorism, i.e. the 
implementation  of  the  Directive,  may  also  –  depending  on  how  they  are  carried  out  – 
have  an  impact  on  rights  that  are  particularly  important  for  suspected,  accused  or 
convicted individuals (e.g. the right to an effective remedy and to a fair trial). The right to 

37 

 
 
 
 
 
 
 
 
 
non-discrimination  may  be  breached  if  the  obligations  contained  in  the  Directive  are 
applied in a way that, unjustifiably, disproportionally affects specific demographics. The 
fact  that  the  Directive  impacts  these  rights  was  reflected  in  the  feedback  provided  by 
members  of  the  judiciary  and  prosecutors  consulted  for  the  external  study,  with  a 
majority  indicating  that  the  Directive  had  had  an  observable  impact  on  fundamental 
rights145. 

The question is therefore not whether the Directive has posed limitations to fundamental 
rights,  but  to  what  extent  these  limitations  meet  the  requirements  of  the  Charter  and 
whether there are safeguards in place to mitigate adverse effects. When implementing the 
Directive,  Member  States  are  bound  by  the  Charter,  which  has  the  same  value  as  the 
Treaties (Article  6 TEU)146. This  is  explicitly mentioned in  Article 23 of the Directive. 
Any restriction to the rights and freedoms enshrined in the Charter must therefore fulfil 
the requirements of Article 52(1) of the Charter, namely the need to be provided by law 
(see  also  Article  49  of  the  Charter  which  affirms  the  principle  of  legality  of  criminal 
offences and penalties), to be of general interest,  and to be necessary  and proportionate 
(i.e.,  they  must  respect  the  essence  of  the  rights  and  the  limitations  do  not  go  beyond 
what is necessary to achieve the objective of general interest recognised by the Union or 
the need to protect the rights and freedoms of the others). An additional requirement is 
imposed by Articles 20 and 21 of the Charter, requiring all actions of Member States to 
be non-discriminatory, both in intention and effect.   

the  evaluation  do  not  consider 

Overall,  most  stakeholders  consulted  for 
the 
implementation of the Directive to be problematic from a fundamental rights perspective 
(with  the  exception  of  respondents  to  the  public  consultation,  most  of  which  were 
NGOs). This was reflected in the feedback provided by national authorities, but also by 
national human rights organisations consulted. In both cases, a majority of stakeholders 
consulted  –  in  the  case  of  national  authorities,  a  great  majority  –  indicated  that  no 
fundamental  issues  had  been  raised  specifically  concerning  the  Directive.  A  great 
majority  of  national  authorities  did  not  report  any  cases  in  which  investigation  or 
prosecution measures were challenged for their impact on fundamental rights, with some 
arguing that the text of the Directive ensures a fair balance between criminalisation and 
the  respect  of  fundamental  rights.  In  some  of  these  cases,  the  lack  of  impact  was 
attributed to the fact that the Directive had not led to any changes in national legislation, 
which  was  the  case  in  two  Member  States147.  Nevertheless,  a  respondent  to  the  public 
consultation  representing  a  public  authority,  noted  that  there  might  be  a  tension  in 
particular between “glorification of terrorism” (an example of indirect public provocation 
to commit a terrorist offence in Article 5 of the Directive) and the freedom of expression.

Among  national  authorities  and  human  rights  organisations,  concrete  issues  were  only 
reported  by  stakeholders  from  Germany,  where  national  authorities  have  decided  to 
maintain a more general approach to regulating terrorist offences, as they consider that a 
more  literal  transposition  of  the  Directive  would  lead  to  tensions  between  certain 
offences and the principle of culpability and the freedom of expression. This is the case 
especially where the conduct is considered by Germany far from causing harm or posing 
a tangible threat, for example Article 5 of the Directive, which covers public provocation 
to commit a terrorist offence.  

145 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 57-58. 
146 Charter of Fundamental Rights of the European Union, OJ C 326/391, 26.10.2012. 
147 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 58-59. 

38 

 
 
 
 
 
                                                           
The limited impact on fundamental rights that stakeholders attribute to the Directive may 
be  explained  by  the  fact  that  its  implementation  is  done  within  the  context  of  criminal 
law,  an  area  in  which  Member  States  have  long  established  a  legal  framework  which 
incorporates  safeguards  to  ensure  the  legitimacy  of  limitations  to  fundamental  rights. 
This explains why, when national authorities consulted were asked if their Member State 
had put in place measures to ensure that limitations to the exercise of fundamental rights 
are necessary, legitimate and proportionate, a majority indicated that they had, but their 
explanations  showed  that  they  were  usually  referring  to  general  principles,  such  as  the 
Criminal  Code,  the  Constitution  or  the  law  regulating  criminal  procedures.  Similar 
findings emerge from the interviewees with key stakeholders in the eight focus Member 
States, as most interviewees who specifically commented on this indicated that the usual 
fundamental  rights  safeguards  apply  and  are  sufficient.  In  their  explanations,  they  also 
referred to the Constitution, the possibility for judicial or extra-judicial remedies, or the 
safeguards foreseen in the Criminal Code148. 

Despite  the  safeguards  in  place  and  the  overall  positive  assessment  by  stakeholders 
consulted, some issues have been identified by the external study and other sources. The 
general  interest  (which  is  one  of  the  requirements  of  Article  52  of  the  Charter)  of  the 
obligations contained in the Directive is recognised by stakeholders. States have a legal 
obligation  to  investigate  serious  violations  of  human  rights,  which  acts  of  terrorism 
undoubtedly  constitute149.  However,  it  has  been  argued  that  the  implementation  of  the 
Directive could potentially lead to limitations of fundamental rights that do not comply 
with the principles of legality, necessity and proportionality. 

The sections below go into more detail about specific impacts on fundamental rights and 
freedoms, distinguishing between impact caused directly and indirectly by the Directive. 
The  below  focuses  on  necessity,  proportionality,  and  non-discrimination.  Legality  is 
discussed under section 5.7 on the rule of law to avoid repetition.    

5.6.2 Impacts directly linked to the Directive 
In  terms  of  proportionality,  one  of  the  main  concerns  identified  by  the  external  study 
relates to the increasing use of criminal law to prevent terrorist attacks by criminalising 
preparatory offences, as also outlined by several organisations contributing to the public 
consultation150. Indeed, several stakeholders expressed concerns about the criminalisation 
of preparatory  offences  and their  facilitation. For example, the  FRA notes that this can 
entail  “criminalising  activities  considerably  distant  from  an  actual  terrorist  act”151. 
Likewise,  the  European  Network  Against  Racism  also  concludes  a  “shift  towards  pre-
emption  in  the development  of criminal  law offences relating to  terrorism”152. Whether 
criminal law should have a preventive function is an important debate. With the adoption 
of  the  Directive,  the  European  Parliament  and  the  Council  have  clearly  answered  this 
question positively. The FRA research shows that on the one hand, particularly defence 
lawyers and members of the judiciary are concerned about this preventive use of criminal 
law. Some members of the judiciary and prosecutors acknowledge that there is a risk of 
disproportionately interfering  with  the rights  of individuals  – as  well as  the interests of 
the investigations – by intervening too early. On the other hand, however, “some judges 

148 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 58-59. 
149  International  Commission  of  Jurists,  2020,  Counter-Terrorism  and  Human  Rights  in  the  Courts: 
Guidance  for Judges, Prosecutors and Lawyers on  Application of EU Directive 2017/541 on Combatting 
Terrorism, page 8. 
150 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 60. 
151 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 2.  
152 European Network Against Racism, Suspicion, discrimination and surveillance, 2021, page 29. 

39 

 
 
 
                                                           
and prosecutors argue that such anticipatory approach is necessary to prevent attacks by 
radicalised  individuals,  particularly  lone  wolves”153.  As  discussed  in  section  5.1  on 
relevance, the terrorist landscape has seen a disintegration of formally structured terrorist 
organisations  and  the  emergence  of  loosely  networked  terrorist  cells  and  lone  actors.  

In the context of the preventive approach, the International Commission of Jurists notes 
that “criminal law should not punish abstract danger, or where there is no proximate link 
between  the  offender  and  the  ultimate  harm”154.  Linking  certain  behaviour  with  actual 
risk  is  indeed  a  determination  that  has  to  be  made  by  courts  in  certain  cases.  Eurojust 
highlights  a  court  case  in  which  such  a  determination  had  to  be  made  in  relation  to 
Article 5, which covers public provocation to commit a terrorist offence and requires that 
the public provocation “advocates the commission of terrorist offences, thereby causing 
a danger that one or more such offences may be committed” (emphasis added). The 
court acquitted the defendant of public provocation to commit a terrorist attack because 
“it  was  not  possible  to  establish  that  his  propaganda  created  a  realistic  risk  that  one  or 
more terrorist offences could possibly be committed”155.  

Furthermore,  the  evaluation  specifically  examined  the  impact  that  Article  21  of  the 
Directive  (covering  measures  against  public  provocation  content  online)  may  have  had 
on fundamental rights, and whether this was proportionate. Two of the five human rights 
organisations consulted in the context of the external study found the implementation of 
this  article  “potentially  problematic”.  In  one  Member  State,  the  obligation  imposed  on 
online  platforms  to  identify  and  take  down  any  “illegal”  content    has  proven  to  be 
controversial  due  to  the  lack  of  accountability  of  these  platforms  (i.e.,  legal  remedies 
were  not  usually  available  to  individuals  in  these  cases).  Representatives  from  the 
judiciary  and national  authorities consulted were  more optimistic, generally  stating that 
this  provision  has  not  restricted  fundamental  rights  and  freedoms.  Only  one  Member 
State  referred  to  one  instance  in  which  this  measure  had  been  challenged  and  annulled 
recently,  but  this  was  reportedly  an  exception  to  the  rule.  Overall,  the  limitations  to 
fundamental rights that the implementation of this Article entails are largely considered 
proportionate. Most Member States have specific measures and safeguards to ensure that 
the removal and blocking of content respects the fundamental rights of individuals156. It 
should be noted that recently a new Regulation on terrorist content online was adopted157, 
which will be evaluated by June 2024, also for its impact on fundamental rights. 

Additionally, the evaluation also specifically examined whether Recital 38 containing the 
humanitarian  safeguard  clause  has  been  adequate  to  prevent  adverse  effects  on  the 
provision of humanitarian activities.  Recital  38  of  the  Directive  excludes  humanitarian 
activities  by  impartial  humanitarian  organisations  recognised  by  international  law  from 
the  scope  of  the  Directive.  As  the  exemption  is  part  of  the  recital  –  as  opposed  to  the 
operative  part  of  the  Directive  –  Member  States  are  not  obliged  to  transpose  it.  This 
explains  why  only  four  Member  States  have  reflected  this  exemption  in  their  national 

153 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 20. 
154  International  Commission  of  Jurists,  2020,  Counter-Terrorism  and  Human  Rights  in  the  Courts: 
Guidance  for Judges, Prosecutors and Lawyers on  Application of EU Directive 2017/541 on Combatting 
Terrorism, page 15. 
155  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021, page 7. 
156 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 61. 
157 Regulation (EU) 2021/784 of 29 April 2021 on addressing the dissemination of terrorist content online, 
OJ L 172/79, 17.5.2021. 

40 

 
 
 
 
 
 
 
                                                           
legislation. In most cases, the exemption can be inferred from generic legislation like the 
Criminal  Code.  Humanitarian  organisations  consulted  for  the  external  study  recognised 
the added value of the recital, which in their view is one of the most protective ones at 
international  level  and  therefore  serves  as  an  example  at  the  international  stage.  They 
also  acknowledged  that  although  in  theory  some  articles  of  the  Directive  could  pose  a 
challenge to their activities (e.g. Article 4158), no actual issues concerning the prosecution 
of humanitarian workers on the basis of the Directive or national transposing provisions 
had arisen in practice. However, they pointed out that having clearer national legislation 
on the humanitarian exemption would benefit them to prevent problems in the future and 
to  facilitate  cooperation  with  private  entities159.  Seven  respondents  to  the  public 
consultation representing NGOs (who gave a coordinated reply) also noted that the fact 
that not all Member States have transposed the exemption leaves a risk that the activities 
of impartial humanitarian organisations might be impacted.  

In  relation  to  non-discrimination,  Member  States  have  not  generally  implemented 
specific measures to avoid discrimination in the context of the investigation, prosecution, 
adjudication and sentencing of terrorism-related cases. This does not mean, however, that 
no safeguards are in place; the general measures applicable to ensure non-discrimination 
throughout criminal procedures or from acts of the State also apply in this context. This 
is  what  emerges  from  the  responses  of  national  authorities  consulted  for  the  external 
study;  although  two  thirds  of  respondents  indicated  that  they  had  implemented  specific 
measures,  the  open-ended  answers  revealed  that  both  groups  were  mostly  referring  to 
general  non-discrimination  safeguards,  such  as  principles  and  obligations  to  respect 
fundamental  rights  and  ensure  non-discrimination  laid  down  in  the  Constitution  or 
Criminal  Procedural  Code.  Other  examples  include  training  courses  for  judges  and 
prosecutors  and  other  awareness-raising  activities  and  participation  of  law  enforcement 
agencies  in  European  projects  to  prevent  and  combat  racism.  One  Member  State  also 
referred to various measures that are put in place during criminal proceedings to ensure 
that  judges  are  not  biased  or  that  the  information  is  provided  in  a  way  that  is 
understandable  in  case  the  accused  does  not  speak  the  national  language  or  has  a 
disability160. 

Despite  these  safeguards,  counter-terrorism  measures  have  sparked  criticism  for  their 
potential  discriminatory  effect.  Most  of  the  specific  examples  put  forward  in  literature 
and  by  stakeholders  consulted  are  not  directly  linked  to  the  implementation  of  the 
Directive and, in fact, pre-date it161. However, there are also more recent sources which 
link counter-terrorism measures to potential discrimination.  

158 In their role as neutral providers of humanitarian assistance, impartial humanitarian organisations may 
sometimes  have  to  engage  with  organisations  that  have  been  designated  as  terrorist  organisations  by  the 
EU, for example to ensure that the assistance reaches all people in need. This could create a tension with 
Article 4 on offences relating to a terrorist group.  
159 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 63-64. 
160 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 62-63. 
161 For instance, in a report published by Amnesty International in 2016, the organisation argued that the 
then-recent  measures  –  which  predate  the  adoption  of  the  Directive  –  adopted  by  Member  States  had 
resulted in breaches of the right to non-discrimination. The report suggests that certain population groups – 
particularly  Muslims,  foreign  nationals  (e.g.  refugees)  and  people  perceived  as  such  –  had  been 
disproportionally  affected  by  the  national  measures  (Amnesty  International,  2016,  Dangerously 
disproportionate – The ever-expanding national security state in Europe). 

41 

 
 
 
 
 
 
                                                           
For  example,  four  stakeholders162  from  the  eight  selected  Member  States,  and  several 
NGOs that contributed to the public consultation, viewed the recent evolution in counter-
terrorism in their Member States (in general) as having a discriminatory effect. Some of 
the  examples  provided  were  the  use  of  new  investigative  tools  which  are  based  on 
algorithms that may be biased, or increasing suspicion towards certain population groups 
(e.g.  migrants,  Muslims163.  Furthermore,  a  report  published  by  the  European  Network 
Against  Racism  argues  that  the  criminalisation  of  pre-emptive  action  can  lead  to 
investigations which rely on perceived risks and targeting decisions made by intelligence 
and  law  enforcement,  emphasising  throughout  its  report  in  particular  the  negative 
impacts of such issues on Muslims164. Likewise, the International Commission of Jurists 
warns  judges  and  prosecutors  of  the  risk  of  conscious  or  unconscious  bias  throughout 
criminal proceedings165. The FRA notes that “law enforcement, prosecutors and members 
of  the  judiciary  generally  reject  that  the  background  of  a  person  would  be  a  decisive 
factor  but  acknowledge  that  it  is  considered  together  with  other  information.  Some 
lawyers  but  also  members  of  the  judiciary  and  law  enforcement  officers  believe  that  a 
person’s  Muslim  background  plays  a  role  at  least  in  the  initial  suspicion,  and  that 
religion,  ethnicity  or  ideology  may  be  a  basis  for  profiling  and  establishing  terrorist 
intent.  Respondents  across  professional  groups  underline  the  risk  of  subjective 
assessment and assuming intent based on own perceptions and values, which may differ 
from those of persons with a Muslim background, and call for caution in order to avoid 
judging beliefs and criminalising religion”166.  

Additionally,  the  fact  that  Member  States  report  difficulties  to  classify  extreme  right-
wing  violent  acts  as  acts  of  terrorism  could  result  in  discrimination.  This  would  be  the 
case  if  certain  forms  of  terrorism  (and  therefore  certain  demographics)  are  more  often 
investigated,  prosecuted,  adjudicated  or  sentenced  on  the  basis  of  the  Directive  or 
national  transposing  provisions  than  could  be  expected  on  the  basis  of  their  share  in 
committing acts of terrorism.   

5.6.3 Impacts indirectly linked to the Directive 
The  Directive  requires  Member  States  to  take  the  necessary  measures  to  ensure  that 
effective  investigative  tools,  such  as  those  which  are  used  in  organised  crime  or  other 
serious  crime  cases,  are  available  to  persons,  units  or  services  responsible  for 
investigating or prosecuting the offences referred to  in  Articles 3 to  12  (Article 20(1)).  
According to the FRA, in most of the Member States that it conducted fieldwork in, the 
“legal conditions for approving the use of investigative tools generally do not differ from 
other  serious  crimes”.  However,  there  are  some  concerns  with  how  these  investigative 
tools  are  applied  in  practice,  and  “some  judges  and  prosecutors  acknowledge  that  the 
preparatory nature of terrorist offences results in authorising intrusive investigative tools 
with less tangible evidence compared to other crimes”167. 

Sometimes  counter-terrorism  measures  impact  the  procedural  rights  a  suspect  has.  For 

162  One  from  a  national  authority,  one  from  prosecution  or  judiciary,  and  two  from  human  rights 

organisations. 

163 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 63. 
164 European Network Against Racism, Suspicion, discrimination and surveillance, 2021, page 16. 
165  International  Commission  of  Jurists,  2020,  Counter-Terrorism  and  Human  Rights  in  the  Courts: 
Guidance  for Judges, Prosecutors and Lawyers on  Application of EU Directive 2017/541 on Combatting 
Terrorism. 
166 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 7. 
167 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 3-4. 

42 

 
 
 
 
 
 
 
                                                           
example,  “in  some  Member  States,  pre-trial  deprivation  of  liberty  can  be  imposed  for 
longer periods than for other crimes”168. This impact extends to administrative measures, 
for  which  the  FRA  reports  that  in  some  cases,  the  presumption  of  innocence  might  be 
reversed, with defendants having to prove they are not dangerous. This reversion of the 
burden of proof was also noted by a respondent to the public consultation, representing 
an  NGO.  Apart  from  their  procedural  implications,  the  FRA  has  identified  certain 
administrative measures that might impact fundamental rights and freedoms. It identifies 
particular concerns with: 1) measures that aim at monitoring individuals  such as after a 
prison  sentence;  2)  measures  imposing  a  restricting  of  movement  of  a  suspected 
individual, and; 3) specific measures imposed as sanctions, including the deprivation of 
nationality169.  The  proportionality  of  administrative  preventive  measures  was  also 
questioned by a respondent to the public consultation, representing an NGO. 

In the consultations carried out for the external study, several human rights organisations 
expressed concerns about cooperation and exchange of information between the various 
authorities  involved  in  the  investigation  of  suspected  cases  of  terrorism.  One  human 
rights organisation pointed out that the exchange of personal data acquired and collected 
during the investigation of terrorist offences (Article 22(2)) can be problematic from the 
perspective  of  data  protection  rules  (including  the  Charter,  but  also  Directive 
2016/680170)  if  no  mechanism  to  monitor  compliance  other  than  the  oversight  of 
prosecutors and judicial authorities is in place171.  

There  are  cases  in  which  Member  States  go  further  in  their  criminalisation  than  the 
Directive requires. This is not a problem for the functioning of the Directive, as its aim is 
to create a common baseline in the EU to create a basis for cooperation and information 
exchange,  and  to  prevent  the  existence  of  legal  loopholes  that  may  be  exploited  by 
terrorists.  In  fact,  several  Member  States  already  had  more  far-reaching  legislation  in 
place  before  the  adoption  of  the  Directive.  Nevertheless,  this  could  impact  on 
fundamental  rights  and  freedoms  for  individuals  under  the  jurisdiction  of  that  Member 
State.  The  stakeholder  consultation  carried  out  for  the  external  study  reveals  that  the 
criminalisation  of  public  provocation  to  commit  a  terrorist  offence  (Article  5)  sparks 
some debate in light of its fundamental rights impact, especially in certain Member States 
which have gone beyond the minimum requirements laid down in the Directive (such as 
Spain)172. In addition, the FRA, among others, points to the crime of self-indoctrination 
in  the  Spanish  national  framework,  which  goes  further  than  Article  8  of  the  Directive 
covering the receiving of training for terrorism173. Eurojust also points to a court case in 
which  the  High  Court  of  Spain  expressed  that  for  the  offence  of  self-indoctrination,  “a 
restrictive interpretation of the criminal legislation is necessary in order not to violate the 
right  to  freedom  of  thought  and  the  right  to  information”174.  Likewise,  the  European 
Network  Against  Racism  refers  to  the  offence  of  “apology  for  terrorism”  in  France’s 
national law as having potential adverse effects on fundamental rights175.    

168 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 10. 
169 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 24-26. 
170 Directive (EU) 2016/680, OJ L 119/89, 4.5.2016. 
171 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 62. 
172 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 60. 
173 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 21. 
174  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021, page 11. 
175 European Network Against Racism, Suspicion, discrimination and surveillance, 2021, pages 29-30. 

43 

 
 
 
 
 
 
                                                           
Finally, the FRA notes that “counter-terrorism legislation is not sufficiently evaluated at 
the  national  level  and  new  laws  are  passed  without  an  assessment  of  the  impact  of 
existing legislation, including on fundamental rights. This amplifies the impact counter-
terrorism has on various rights,  and raises questions of necessity and proportionality of 
some legislation and policies”. As for independent oversight once measures are in place, 
“while in some Member States, independent bodies with a robust mandate and expertise 
oversee  counter-terrorism  measures  including  with  respect  to  their  fundamental  rights 
compatibility, in many others, such oversight appears to be limited”176. 

5.7. IMPACT ON THE RULE OF LAW 

Summary findings – impact on the rule of law 
The  Directive  has  had  a  limited  impact  on  the  rule  of  law.  Nevertheless,  some 
concerns have been raised in relation to the process for adoption of the Directive (i.e. 
without impact assessment) and its legal clarity, as well as on proving terrorist intent 
and foreseeability, and impact on lawful activities.  Despite these concerns, the overall 
negative  impact  of  these  issues  was  found  to  be  limited.  Finally,  in  two  Member 
States, the Directive is in fact deemed to have had a positive impact on the rule of law, 
by increasing legal clarity. 

The  external  study  points  to  some  fundamental  concerns  amongst  scholars  and  other 
stakeholders,  especially  non-governmental  organisations,  about  the  compatibility  of  the 
Directive with the principle of the rule of law177. These concerns have, however, not been 
echoed by most stakeholders consulted. Most of them reported no issues about the impact 
of  the  Directive  on  the  rule  of  law,  apart  from  two  stakeholders  interviewed.  In  two 
Member  States,  the  Directive  was  in  fact  deemed  to  have  had  a  positive  impact  on  the 
rule of law, by ensuring a more nuanced application of certain offences178.  

The  concerns  that  have  been  raised  with  respect  to  the  Directive  mostly  related  to  the 
formal  aspect  of  the  rule  of  law  (i.e.  requiring  the  law  to  be  general,  prospective 
(meaning  not  retroactive),  clear  and  non-contradictory),  both  linked  to  the  process 
followed for its adoption (ex ante) as well as its content and implementation (ex post)179.

5.7.1 Adoption without impact assessment  
As  for  the  ex  ante  aspect,  i.e.  the  process  followed  for  its  adoption,  the  Directive  was 
adopted  without  an  impact  assessment,  which  reduces  the  scope  for  scrutiny, 
transparency  and  justification180.  As  explained  in  section  2.3,  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  the  EU 
underlined the need to act urgently and without delay. There was also an urgent need to 
implement new international obligations into EU law181. 

176 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 3. 
177 Babická, K., 2020, EU Counter-terrorism Directive 2017/541: impact on human rights and way forward 
at EU level. 
178 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 66. 
179 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 64. 
180  Mitsilegas,  V.,  2020,  Counter-terrorism  and  the  rule  of  law  in  an  evolving  European  Union:  Plus  Ça 
Change?.  
181 In particular, obligations in relation to foreign terrorist fighters and terrorist financing: United Nations 
Council  Security  Resolution  2178,  on  foreign  terrorist  fighters  (2014),  the  Additional  Protocol  to  the 

44 

 
 
 
 
 
 
 
 
 
 
                                                           
 
The Court of Justice of the EU has stated that in cases of such ‘urgent’ legislation, the 
absence  of  an  impact  assessment  could  be  compensated  by  other  data  collected  (e.g.  a 
public consultation or an evaluation once the legislation is in place)182. Indeed, this is one 
of the reasons why the Commission had asked the FRA to carry out its research into the 
impact  on fundamental  rights  and freedoms of  the Directive, with  a view to  feeding its 
findings into the evaluation. The view of the Court of Justice of the EU is not shared by 
some  stakeholders  (including  academics  and  the  European  Parliament),  who  argue  that 
these  sources  of  evidence  “lack  the  specific  framing  and  objectives  of  an  impact 
assessment”183  and,  therefore,  the  requirement  to  justify  legislative  action  can  only  be 
fulfilled  by  properly  assessing,  before  adoption,  the  objectives  and  policy  options,  and 
their impact184. 

5.7.2 The principle of legality and legal clarity 
As for the impact  on  the rule of law  that  the  Directive has had  ex post, i.e. through its 
content  and  implementation,  it  is  important  to  consider  the  concept  of  legality.  The 
principle  of  legality  requires  the  law  to  be  sufficiently  clear  to  ensure  a  minimum 
standard of certainty and foreseeability to  avoid  arbitrariness.  In practice, the European 
Court of Human Rights  argues,  criminal  offences  must be sufficiently defined to  allow 
individuals to model their behaviour to comply with the rules, if needed with appropriate 
advice185.  According  to  the  desk  research  carried  out  for  the  external  study,  certain 
offences  and  their  definitions  of  the  Directive  are  not  seen  as  sufficiently  concrete  or 
clear  by  certain  stakeholders.  This  issue  was  already  raised  at  the  proposal  stage  by 
several  non-governmental  organisations186  and  has  also  been  echoed  in  academic 
literature on various occasions since then. In their view, the vagueness of some of the EU 
and national definitions has resulted in room for interpretation by judges, prosecutors and 
legal practitioners187, inspiring the International Committee of Jurists to draft guidelines 
on  their  interpretation188.  Three  respondents  to  the  public  consultation  (one  EU  citizen 
and  two  NGO  representatives)  held  the  view  that  the  provisions  of  the  Directive  lack 
clarity and pose challenges in their application and interpretation.  

Stakeholders involved in implementing the Directive, as well as members of the judiciary 
and prosecutors, do not generally share this view. While one human rights organisation 
and  one  international  organisation  consulted  for  the  external  study  shared  the  criticism 

Council of Europe Convention on the Prevention of Terrorism (2015) and the Financial Action Task Force 
standards on terrorist financing. 
182 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 64. 
183  Mitsilegas,  V.,  2020,  Counter-terrorism  and  the  rule  of  law  in  an  evolving  European  Union:  Plus  Ça 
Change?.  
184 European Parliament, Directorate-General for Internal Policies (Policy Department C – Citizens’ rights 
and constitutional affairs), 2017, The European Union’s Policies on Counter-Terrorism; Caiola, A., 2017, 
The European Parliament and the Directive on combating terrorism. 
185 The ECtHR requires a degree of foreseeability that is reasonable in the circumstances, recognising that 
absolute certainty would be impossible to attain. 
186  International  Commission  of  Jurists  (ICJ),  Amnesty  International  and  Open  Society  Justice  Initiative, 
2016, Joint submission on the European Commission’s proposal for a Directive of the European Parliament 
and of the Council on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA on 
Combating Terrorism.  
187 Babická, K., 2020, EU Counter-terrorism Directive 2017/541: impact on human rights and way forward 
at EU level.  
188  International  Commission  of  Jurists,  2020,  Counter-Terrorism  and  Human  Rights  in  the  Courts: 
Guidance  for Judges, Prosecutors and Lawyers on  Application of EU Directive 2017/541 on Combatting 
Terrorism. 

45 

 
 
 
 
 
                                                                                                                                                                            
that the Directive is insufficiently clear, most national stakeholders (national authorities, 
counter-terrorism  units  and  members  of  the  judiciary)  found  that  the  terms  of  the 
Directive are sufficiently clear and that no clarification is needed. Similarly, when asked 
about  the  clarity  of  specific  terms  such  as  aiding  or  abetting  (Article  14),  all  national 
authorities  answered  indicated  that  no  clarification  is  needed.  Among  members  of  the 
judiciary and counter-terrorism units, opinions on whether there is a lack of clarity and 
therefore guidance needed varied slightly. While counter-terrorism units did not see such 
a need, a small majority of members of the judiciary and prosecutors who participated in 
the  survey  expressed  that  guidance  concerning  definitions  used  could  be  beneficial189. 

5.7.3 Proving terrorist intent and foreseeability 
As  discussed  in  section  5.2.3,  several  Member  States  reported  difficulties  proving 
terrorist  intent.  This  issue  has  been  discussed  in  sections  5.1  and  5.2  on  relevance  and 
effectiveness,  but  it  also  may  have  an  impact  on  legality  and  the  rule  of  law.  To 
determine terrorist intent, judges and prosecutors usually adopt the same approach as to 
all  other  cases  of  criminal  offences,  based  on  principles  and  rules  contained  in  the 
criminal  procedural  code  (i.e.  using  all  evidence  available  during  the  trials  and 
prioritising  factual  evidence  to  infer  the  subjective  element).  Difficulties  to  prove 
terrorist  intent  was  also  explicitly  mentioned  by  several  judges  and  national  authorities 
interviewed. One respondent to the public consultation from an NGO also pointed to this 
difficulty.  The  main  challenge  is  linked  to  factual  circumstances  rather  than  a  need  for 
further  clarification  of  the  term  ‘intentional  act’  contained  in  the  Directive.  More 
specifically,  it  relates  to  the  gathering  of  evidence,  especially  when  the  evidence  is 
located  outside  of  the  national  territory,  a  circumstance  which  is  very  common  in  the 
current terrorist context190. 

The  FRA  notes  that  for  some  of  the  provisions  of  the  Directive,  “intent  becomes  the 
determining  factor  distinguishing  between  a  lawful  activity  and  a  crime”191.  The  FRA 
notes that “diverging jurisprudence with  regard to intent  leads to different  guidance for 
first  instance  decisions  and  a  lack  of  foreseeability”192.  In  the  context  of  Article  9 
covering traveling for the purpose of terrorism, the FRA notes that the subjective element 
of  intent  may  reverse  the  burden  of  proof  towards  to  the  defendant.  However,  it  also 
seems  that  “courts  are  relatively  strict  when  assessing  intent  in  cases  of  travel,  and  the 
accused can be acquitted even in cases that appear relatively clear to the prosecution”193. 
Likewise, in the context of Article 8 on receiving training for terrorism, the FRA notes 
that  “different  professional  groups  offer  diverging  perspectives  on  the  impact  of  this 
challenge on fundamental rights”. Defence lawyers claim that, in some cases, authorities 
present the activity itself, such as visiting a certain website, as evidence of intent, which 
impacts  the  principle  of  legality.  However,  “some  law  enforcement  officers  emphasise 
that intent is always carefully examined, and unless the police catches a person explicitly 
talking about their plans, it usually has to collect a lot of different elements that together 
prove a terrorist intent”194. 

Eurojust  highlights  several  court  cases  in  which  intent  is  explicitly  discussed.  In  one 
case,  a  person  was  acquitted  for  receiving  training  for  terrorism,  because  “the 

189 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 65. 
190 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 34. 
191 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 7. 
192 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 14. 
193 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 18. 
194 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 22. 

46 

 
 
 
  
 
                                                           
investigation did not establish that the defendant had taken any steps that would suggest 
that  he  had  a  concrete  intention  to  use  the  materials  to  commit  or  participate  in 
particularly serious crimes, that is to say, a terrorist act”195. In another case, the Supreme 
Court referenced the Directive and noted that “with regard to receiving instructions ... in 
addition  to  the  objective  of  the  instruction  being  to  commit  or  contribute  to  a  terrorist 
offence,  the  recipient  of  these  instructions  must  also  have  the  intention  to  commit  or 
contribute to a terrorist offence”. In the case under discussion, this intent was established 
by the court196. 

5.7.4 Potential impact on lawful activities   
Finally,  the  FRA  reports  that  certain  stakeholders  (NGOs,  defence  lawyers,  academics 
and  some  members  of  the  judiciary)  raise  concerns  over  expanding  the  notion  of 
terrorism  and  the  use  of  counter-terrorism  measures  to  other  areas,  although  this  is  not 
strictly  limited  to  the  effects  of  the  Directive197.  In  addition,  one  human  rights 
organisation  interviewed  for  the  external  study  stated  that  the  implementation  of  the 
Directive may lead to situations in which acts that are not linked to a terrorist act may be 
considered as such, which would impact the rule of law198.   

The FRA notes that a preventive approach to criminal law “can lead to criminalisation of 
ordinary activities such as travelling, studying or using online communication channels, 
and impact on lawful activities of actors such as journalists, researchers or humanitarian 
organisations”199  and  has  researched  whether  this  is  the  case  in  practice  for  several 
specific provisions of the Directive (Articles 5, 8 and 9). For Article 5, covering public 
provocation to commit a terrorist offence, the FRA notes that “while many respondents 
state that public provocation does not appear to affect legitimate professional activities, 
such as the work of journalists, some offer practical examples e.g. of a scientist arrested 
for  having  used  in  the  research  language  that  is  associated  with  left-wing  extremism 
(Germany),  or  the  lack  of  harmonised  jurisprudence  in  cases  of  controversial  artistic 
expression (Spain)”200. For Article 8 covering receiving training for terrorism,  different 
stakeholders  hold  different  opinions.  Defence  lawyers,  academics  and  NGOs  raise 
concerns  over  the  possible  criminalisation  of  legitimate  actors.  However,  “most  law 
enforcement  officers,  prosecutors  and  judges  across  the  fieldwork  Member  States 
[meaning the seven Member States the FRA conducted fieldwork in], state that they have 
not experienced such cases, and believe that they could usually be quickly distinguished. 
Some  of  them  nevertheless  consider  that  in  some  cases,  activities  of  legitimate  actors 
may  appear  as  receiving  training  for  terrorism,  and  can  be  difficult  to  establish  at  the 
beginning of investigations when the reasons for someone to e.g. visit a certain website 
are  still  [...]  unclear”201.  Finally,  for  Article  9,  covering  traveling  for  the  purpose  of 
terrorism,  the  FRA  reports  that  “judges  mostly  consider  the  risk  rather  hypothetical  as 
such  cases  would  be  identified  at  an  earlier  stage  by  law  enforcement  and  prosecution. 
However,  law  enforcement  and  public  prosecutors  in  several  Member  States  state  that 
while  they  generally  do  not  encounter  such  cases,  there  is  no  guidance  in  place  that 

195  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021, page 12. 
196  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021, pages 10-11. 
197 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 3. 
198 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 60. 
199 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 2. 
200 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 13. 
201 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 22. 

47 

 
 
 
 
                                                           
would assist them in distinguishing lawful activities from terrorist travel”202. 

5.8  IMPACT  ON  THE  LEVEL  OF  ASSISTANCE  AND  PROTECTION 
PROVIDED TO VICTIMS OF TERRORISM 

Summary findings – impact on the level of protection and assistance provided to 
victims of terrorism   
Overall, the Directive had a positive impact on the level of assistance and protection 
provided  to  victims  of  terrorism.  The  obligations  established  in  Articles 24  to  26  of 
the Directive have led to the adoption of measures concerning the protection, support 
and  rights  of  victims  of  terrorism  in  many  of  the  Member  States.  However,  in  the 
practical implementation of these articles, several stakeholders identified issues with 
regard  to  the  provision  of  assistance  and  protection  to  cross-border  victims.  Such 
factors, although not directly emanating from the Directive, reduce the positive impact 
the Directive overall has on the level of assistance and protection provided to victims 
of terrorism. 

5.8.1  Analysis  of  the  impact  of  the  Directive  on  the  assistance  and  protection 
provided to victims of terrorism 
The  evaluation  finds  that  the  impact  of  the  Directive  on  the  assistance  and  protection 
provided to victims of terrorism varies across Member States. The Directive is observed 
to  have  resulted  in  the  adoption  of  measures  that  are  seen  as  beneficial  for  victims  of 
terrorism in many Member States, but these are usually Member States with no or small 
numbers of victims  of terrorism. This  can be explained by the fact  that  Member States 
that  had  been  subject  to  attacks  and  therefore  had  victims  of  terrorism,  usually  already 
had more developed structures and more comprehensive services in place, as discussed in 
section 3.5.  

Most Member States have taken steps towards improving the assistance and protection of 
victims  of  terrorism  in  the  last  years.  The  extent  and  significance  of  the  advancements 
varies across Member States, and so does the rationale behind them (namely to comply 
with the obligations of the Directive, of the Victims’ Rights Directive, or in response to 
terrorist attacks).  Nevertheless, the Directive has prompted the adoption of measures in 
16 Member States, which are considered useful tools to provide adequate protection and 
assistance to victims of terrorism by ensuring specialised support and services or better 
supporting victims in the Member State of their residence when the terrorist offence was 
committed in another Member State.   

The feedback from stakeholders consulted for the external study was generally positive. 
With the exception of respondents to the public consultation, who mostly held a neutral 
opinion,  the  majority  of  respondents  indicated  that  the  Directive  has  been  effective  in 
enhancing  the  level  of  protection,  support  and  assistance  provided  to  victims  and  their 
family  members.  Overall,  stakeholders  from  national  authorities  and  members  of  the 
judiciary found that procedures through which victims access and are provided protection 
are  designed  in  a  way  that  are  ‘victim-friendly’  and  which  minimise  the  psychological 
and administrative burden on them. Equally, stakeholders from the judiciary agreed that 
the  communication  with  victims  is  given  in  simple  and  accessible  language,  and  takes 
into  account  the  personal  characteristics  of  the  victims  that  may  affect  their  ability  to 

202 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page 17. 

48 

 
 
 
 
 
 
 
 
 
                                                           
 
understand or make themselves understood. The effectiveness of both developments (on 
procedures  and  communication  with  victim)  was  attributed  to  the  Directive  by  most 
stakeholders  from  the  judiciary,  with  the  exception  of  two  respondents,  who  held  the 
view  that  improvements  cannot  be  linked  to  the  Directive.  On  the  other  hand,  victims’ 
associations underlined that a more centralised approach in communicating with victims 
is  necessary.  Some  victims’  associations  specified  that  they  could  benefit  from  more 
elaborate  communications  with  the  general  public  (e.g.  crisis  helpline,  website, 
information  portal),  and  specific  requirements  of  communicating  with  victims  just 
following an attack and in the long-term203.   

According  to  national  authorities  consulted,  the  Directive  has  also  contributed  to  the 
improvement  of  victims’  access  to  information  on  their  rights,  the  available  support 
services  and  compensation  schemes  of  other  Member  States.  In  terms  of  access  to 
information, as a result of the Directive, eight Member States have adopted measures that 
are considered to be very  effective in  ensuring the provision  of information to  victims, 
and  which  are  highlighted  as  good  practices  in  the  EU  Handbook  on  victims  of 
terrorism204.  These  measures  include,  for  example,  the  establishment  of  helplines  and 
specialised websites.    

Nevertheless,  certain  shortcomings  can  be  identified.  Some  stakeholders  from  national 
authorities pointed out that that not all the information provided to victims is available in 
other  languages,  preventing  victims  who  do  not  speak  the  language  from  effectively 
accessing it. Furthermore, not all Member States have designated single contact points - 
currently, 17 of the 25 Member States covered by the Directive have done so205. In fact, 
the  external  study  recommends  the  Commission  to  consider  proposing  an  obligation  to 
establish such single contact points206. In addition, a respondent to the public consultation 
from a national authority noted that the Directive “contributed to the strengthening of the 
regulatory framework for victims of terrorism [but that] the effective implementation of 
both  the  existing  and  new  regulatory  framework  with  regard  to  victims,  remains  in 
question”. 

On  the  effectiveness  of  the  Directive  in  ensuring  adequate  protection  and  assistance  in 
cross-border  cases,  the  evidence  suggests  that  despite  the  challenges  identified  with 
respect to cooperation in specific cases, 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. Some stakeholders from national  authorities found that the Directive has had an 
impact on the better protection of their citizens in other Member States, compared to the 
situation prior to the entry into force of the Directive. However, other factors outside of 
the  Directive  have  also  played  an  important  role  with  respect  to  cooperation  in  cross-
border cases, such as the establishment of single contact points in Member States, as well 
as the connections already established between Member States on a bilateral basis207. The 

203 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, pages 42-43. 
204 EU Centre of Expertise for Victims of Terrorism, EU Handbook on Victims of Terrorism, 2021. 
205  Belgium,  Bulgaria,  Croatia,  Czechia,  Estonia,  France,  Germany,  Greece,  Italy,  Latvia,  Lithuania, 

Luxembourg, the Netherlands, Portugal, Slovakia, Spain and Sweden. 

206 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 69. 
207 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 43. 

49 

 
 
 
 
 
                                                           
European  Network  on  victims’  rights  (ENVR)208  plays  a  central  role  in  organising 
cooperation  between  the  single  contact  points.  The  network  of  single  contact  points  is 
integrated within the structures of the ENVR. 

Nevertheless,  when  it  comes  to  the  impact  of  the  Directive  on  individual,  cross-border 
cases, the feedback differed across stakeholder groups. Among members of the judiciary, 
less than half believe that adequate protection is provided to victims who are resident in 
one  Member  State  and  who  are  victims  of  a  terrorist  attack  in  another  Member  State. 
This point was also supported by a report from the German Presidency, which underlined 
that  it  is  usually  cross-border  victims  who  face  particular  obstacles  that  prevent  them 
from  effectively  exercising their rights209.  Among the obstacles  identified in this report 
and  by  stakeholders  consulted,  the  main  ones  are  language  barriers  and  the  lack  of 
familiarity with the legal system or the services available in the Member State. National 
victim  support  associations  also  underlined  the  psychological  and  logistical  difficulties 
that  victims  of  terrorism  experience  when  returning  to  the  place  where  the  attack  took 
place and where the trial is taking place210.  Two  victims’  associations 
from  Spain 
mentioned  that  adopting  a  document  where  all  the  rights  of  victims  of  terrorism  are 
clearly set out would help to ensure that victims are recognised as such across the EU and 
facilitate  their  access  to  available  services.  The  external  study  also  recommends  the 
Commission  to  produce  a  document  on  all  the  obligations  imposed  by  the  Counter-
terrorism Directive and the Victims’ Rights Directive211. 

Finally,  some  national  authorities  emphasised  that  EU-level  initiatives  have  also 
facilitated  the  exchange  of  information  and  knowledge  between  Member  States  in  the 
field  of  rights  of  victims  of  terrorism,  therefore  contributing  to  the  effectiveness  of  the 
Directive  in  this  area212.  For  example,  the  EU  Centre  of  Expertise  for  Victims  of 
Terrorism assists the Member States in the implementation of EU rules on the rights of 
victims of terrorism by  producing handbooks, organising trainings and by  acting as the 
EU  level  Hub  of  expertise  on  all  issues  relevant  for  victims  of  terrorism213.  The 
facilitation  of  cooperation  between  Member  States  to  improve  support  for  victims  of 
terrorism  in  cross-border  cases  through  the  EU  Centre  of  Expertise  for  Victims  of 
Terrorism  was  among  the  key  activities  listed  in  the  EU  Strategy  on  victims’  rights 
(2020-2025)214. The external study recommends the continuation of the activities of the 
EU Centre.    

6. 

CONCLUSIONS 

The  overall  objective  of  this  Staff  Working  Document  is  to  evaluate  Directive  (EU) 
2017/541 on combating terrorism. The evaluation considers the Directive in light of eight 
evaluation  criteria:  relevance,  effectiveness,  efficiency, coherence,  EU added value, the 

208  The  European  Network  on  Victims’  Rights  (ENVR)  provides  for  a  forum  of  national  experts  created 
under an EU grant who exchange best practices and discuss victims’ rights, including rights of victims 
of terrorism. For more information, please see: https://envr.eu/.  

209  German  Presidency,  2020,  Report  on  the  state  of  play  regarding  support  for  victims  of  terrorism, 
particularly in cross-border situations (12744/20). 
210 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 43. 
211 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 27. 
212 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 45. 
213https://ec.europa.eu/info/policies/justice-and-fundamental-rights/criminal-justice/protecting-victims-

rights/eu-centre-expertise-victims-terrorism_en 

214 Communication from the Commission – EU Strategy on victims’ rights (2020-2025), COM(2020) 258 
final, 24.6.2020. 

50 

 
 
 
 
 
 
 
                                                           
 
impact of the Directive on fundamental rights and freedoms, on the rule of law, and on 
the level of protection and assistance provided to victims of terrorism. 

On the basis of the comparison made between the baseline situation, the implementation 
state of play, and feedback from stakeholders, the evaluation finds that: 

i.  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. 

ii.  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. 

iii.  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. 

iv.  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. 

v. 

In terms of 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. 

vi.  While the Directive has had an impact  on fundamental  rights  and freedoms,  the 
limitations  largely  meet  the  requirements  of  necessity  and  proportionality. 
Overall,  most  stakeholders  consulted  for  the  external  study  do  not  consider  the 
implementation  of  the  Directive  to  be  problematic  from  a  fundamental  rights 

51 

 
 
 
 
 
 
perspective. However, some issues have been identified as having the potential to 
create  tension  with  the  requirements  of  necessity  and  proportionality,  of  which 
some  are  linked  directly  to  the  scope  of  the  Directive,  while  others  are  only 
indirectly  linked  to  it  (e.g.  procedural  rights  of  terrorist  suspects).  Despite 
safeguard  measures  in  place  in  the  Member  States  to  prevent  discrimination, 
some  stakeholders  criticise  counter-terrorism  measures,  including  those  covered 
by the Directive, for potentially leading to  adverse effects  for groups  that are at 
heightened risk of facing discrimination and racism.  

vii.  Likewise, the Directive has had a limited impact on the rule of law. Nevertheless, 
some  concerns  have  been  raised  in  relation  to  the  process  for  adoption  of  the 
Directive  (i.e.  without  impact  assessment)  and  its  legal  clarity,  as  well  as  on 
proving  terrorist  intent  and  foreseeability,  and  impact  on  lawful  activities.  
Despite these concerns, the overall negative impact of these issues  was found to 
be limited. Finally, in two Member States, the Directive is in fact deemed to have 
had a positive impact on the rule of law, by increasing legal clarity. 

viii.  Overall,  the  Directive  had  a  positive  impact  on  the  level  of  assistance  and 
protection  provided  to  victims  of  terrorism.  The  obligations  established  in 
Articles 24 to 26 of the Directive have led to the adoption of measures concerning 
the protection, support and rights of victims of terrorism in many of the Member 
States.  However,  in  the  practical  implementation  of  these  articles,  several 
stakeholders  identified  issues  with  regard  to  the  provision  of  assistance  and 
protection to cross-border victims. Such factors, although not directly emanating 
from  the  Directive,  reduce  the  positive  impact  the  Directive  overall  has  on  the 
level of assistance and protection provided to victims of terrorism. 

In general, the assessment of the functioning of the Directive is positive. The Directive 
has functioned and largely achieved its objectives in the way that was expected.  

On  the  availability  of  relevant  data  for  the  purpose  of  the  assessment,  it  has  to  be 
concluded that there was a lack of certain types of data. This includes quantifiable data in 
relation to the costs or burden of implementing the Directive, but also applies to data on 
the practical  implementation of the Directive across  all Member States.  Member States 
did not always provide sufficient evidence during the consultations for the external study. 
This problem has been mitigated by, firstly, selecting eight focus Member States to study 
more  in-depth  how  the  Directive  is  implemented  in  practice.  Secondly,  after  having 
noticed  the  lack  of  data  available  in  certain  cases,  the  questionnaires  and  surveys  have 
been complemented with specific questions to gather as much relevant data as possible. 
The  evaluation  is  based  on  a  combination  of  extensive  desk  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. 
Nevertheless, the evaluation would have benefitted from having additional data, and this 
is considered a lesson learnt (further discussed below). 

Despite the overall positive assessment, there are several issues limiting the functioning 
of the Directive. There is scope for further improvement based on the lessons learned and 
shared by stakeholders as part of the evaluation.  

Firstly, several Member States reported difficulties in proving terrorist intent. Intent is 

52 

 
 
 
 
an important element for the provisions of the Directive. The evaluation notes diverging 
views  among  stakeholders  whether  this  is  an  issue  that  will  need  to  be  addressed: 
respondents  from  national  authorities  agreed  that  further  clarifications  of  the  term 
“intentional  acts”  are  considered  unnecessary,  while  the  majority  of  respondents  in  the 
judiciary survey reported it is necessary. 

In  addition,  there  are  indications  that  even  though  the  Directive  applies  to  all  forms  of 
terrorism,  some  Member  States  find  it  challenging  to  classify  violent  extreme  right-
wing acts as acts of terrorism. Addressing this issue is important not only to enhance 
the effectiveness of the Directive, but also to ensure that the Directive is applied in a non-
discriminatory  manner.  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. 

Furthermore,  some  of  the  stakeholders  consulted  held  the  view  that  certain  provisions 
might  benefit  from  clarification.  The  external  study  therefore  recommends  the 
Commission to adopt non-regulatory guidance for Member States on the interpretation of 
Articles 1 – 14 of the Directive. Nevertheless, during the workshop with Member States, 
Europol, Eurojust and the EU Counter-Terrorism Coordinator’s office on 1 July 2021, all 
Member  States  that  intervened  were  unanimous  in  their  opinion  that  the  Directive  is 
sufficiently  clear  and  that  they  have  no  need  for  non-regulatory  guidance.  They  also 
pointed  out  that  interpreting  legislation  is  the  sole  competence  of  the  judiciary. 

Other issues have been identified in relation to the Directive’s impact on the protection 
and assistance provided to victims of terrorism. The plight of cross-border victims of 
terrorism  is  particularly  evident  throughout  the  evaluation.  Overall,  the  Directive  had  a 
lower  impact  on  the  protection  and  assistance  provided  to  victims  of  terrorism,  and  in 
particular cross-border victims, than expected. 

The lessons learnt from the evaluation are, firstly, that it is important to monitor whether 
the Directive is equally applied to all forms of terrorism, even when it applies equally on 
paper.  If  one  form  of  terrorism  is  less  often  investigated,  prosecuted,  adjudicated  or 
sentenced  on  the  basis  of  counter-terrorism  provisions,  it,  among  other  things,  poses  a 
lost opportunity in  terms of creating legal  precedence for  future cases. Although it is  a 
sole competence of the judiciary to  assess  whether counter-terrorism  legislation  applies 
to individual cases, more efforts could be made at EU level to enhance the understanding 
of all forms of terrorism.  

This relates to the second lesson learnt, which is that it is important to bring all relevant 
work strands to the attention of those implementing and applying the Directive, including 
through  training  of  justice  professionals.  Some  of  the  challenges  identified  in  this 
evaluation (such as  the difficulty of collecting evidence outside of the national territory 
or combating violent right-wing extremism) are being mitigated but in a different setting, 
e.g.  in  international  fora  or  by  actors  involved  in  the  prevention  of  radicalisation.  It  is 
therefore crucial to bring together all relevant stakeholders at regular intervals. 

Thirdly and finally, it would be beneficial if Member States consistently monitor certain 
aspects  related  to  the  Directive.  For  example,  the  costs  or  burdens  related  to  its 
implementation, or possible complaints by the public for disproportionate limitations of 
fundamental  rights  or  violations  of  the  principle  of  non-discrimination.  This  would 
enhance  both  the  Member  States’  as  well  as  the  Commission’s  ability  to  evaluate  the 
functioning of the Directive in the future. 

53 

 
  
 
 
 
 
 
 
 
 
 
ANNEX I: PROCEDURAL INFORMATION 

1. Lead DG, Decide Planning/CWP references 
The  Evaluation  Roadmap  for  the  initiative  was  published  by  DG  Migration  and  Home 
Affairs (DG HOME) on the Commission’s ‘Have your say’ webpage215 in October 2020. 
The Terms of Reference for engaging a contractor to carry out the external study as part 
of the evaluation  were drawn up  in  the autumn of the same  year. A request  for service 
was  issued  on  27  October  2020,  and  a  contractor  selected  by  an  evaluation  committee 
consisting of staff from  DG HOME later during  the  autumn216. The study  began on 30 
December  2020  and  ended  on  25  June  2020.  The  agenda  planning  (Decide)  reference 
assigned to the evaluation is PLAN/2020/8726. There is no reference to the evaluation in 
the Commission Work Programme 2021. 

2. Organisation and timing   
As  per  the  Better  Regulation  Guidelines,  an  inter-service  steering  group  was  set  up 
within  the  Commission  to  oversee  the  evaluation.  Several  Directorates-General  (DGs) 
within the Commission217 were invited to nominate representatives to the steering group.  

The  meetings  of  the  steering  group  were  chaired  by  DG  Migration  and  Home  Affairs 
(DG  HOME).  The  steering  group  was  regularly  consulted  over  the  course  of  the 
evaluation,  typically in  conjunction with  the submission of specific draft reports by the 
contractor responsible for carrying out the external study. These consultations took place 
both  in  the  context  of  regular  meetings,  via  email  and  telephone.  The  following  list 
provides an overview of the steering group’s work over the course of the evaluation:  

  The  inter-service  steering  group  was  convened  for  the  first  time  on  9  October 
2020 in order to receive initial information about and provide feedback on draft 
versions  of  the  Terms  of  Reference  for  the  external  study  and  the  Stakeholder 
Consultation Strategy, which described how the Commission intended to consult 
with different stakeholder groups in the context of the evaluation;    

  On  1  February  2021,  the  steering  group  received  from  the  contractor  a 
presentation of its draft Inception Report. This report was revised on the basis of 
the  steering  group’s  feedback  and  subsequently  accepted  by  the  steering  group. 
The  meeting  also  served  as  an  opportunity  to  provide  feedback  on  the  draft 
questionnaire  for  the  public  consultation,  and  to  collect  suggestions  from  the 
steering  group as to  possible stakeholders to  invite to  participate in  surveys  and 
interviews; 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12545-Combating-terrorism-

215 
evaluation-of-EU-rules_en 
216  The  call  for  service  was  issued  via  framework  contract  HOME/2018/ISFB/PR/EVAL/0017.  One 
contractor submitted a bid to carry out the evaluation. The evaluation committee considered a number of 
criteria,  namely:  compliance  with  the  technical  specifications  described  in  the  Terms  of  Reference; 
demonstrated  understanding  of  the  objectives  and  tasks;  the  quality  of  the  preliminary  assessment  of 
difficulties  and  expected  results;  the  quality  of  the  proposed  methodology;  and  the  quality  of  the  project 
management and team organisation. The Commission awarded the contract to ICF. 
217  The  DGs  invited  to  participate  in  the  steering  group  included:  the  Secretariat-General  of  the 
Commission  (SG);  Legal  Service  (LS);  European  Civil  Protection  and  Humanitarian  Aid  Operations 
(ECHO);  Justice  and  Consumers  (JUST);  and  Communications  Networks,  Content  and  Technology 
(CONNECT);  

54 

 
 
 
 
 
                                                           
  On  17  March  2021,  the  steering  group  met  again,  this  time  to  receive  a 
presentation of the contractor’s draft Interim Report. The report was subsequently 
accepted after revisions were made to reflect the comments of the steering group; 

  On  15  April  2021,  DG  HOME  organised  a  stock-taking  workshop,  to  which 
Member States’ representatives as well as the steering group was invited. The aim 
of the workshop was to have the relevant stakeholders present the state of play in 
relation to their work on the evaluation. DG HOME, ICF, the FRA and the EESC 
gave presentations, with 24 out of the 25 Member States concerned being present. 

  On 28 May 2021, the steering group convened to receive and provided feedback 
on  the  basis  of  a  presentation  of  the  contractor’s  draft  Final  Report.  The 
participants were invited to provide additional written feedback after the meeting;  

  On  1  June  2021,  the  steering  group  was  convened  to  discuss  the  draft  staff 

working document, and to provide comments. 

  On 21 June 2021, a revised draft of the Final Report was circulated by email to 
the members of the steering group for final review. On 24 June 2021, DG HOME 
provided the contractor with the steering group’s comments;  

  On  21  July  2021,  the  Final  Report  was  re-submitted  by  the  contractor  to  DG 

HOME and subsequently accepted;    

The work of the contractor was extended by approximately two weeks, given the fact that 
the  public  consultation  was  launched  later  than  initially  anticipated.  This  decision  was 
made  out  of  respect  for  the  Better  Regulation  Guidelines  and  in  order  to  allow  the 
contractor adequate time to account for all responses to the Consultation (which ended on 
16 June 2021).  

3. Exceptions to the better regulation guidelines   
In  conducting  the  evaluation,  no  exceptions  from  the  usual  procedural  requirements 
described in the Better Regulation Guidelines were required. 

4. Consultation of the RSB   
The Regulatory Scrutiny Board was consulted on 14 July 2021. On 16 July 2021, it gave 
a  positive  opinion  with  recommendations  for  improvement.  The  current  document  was 
then  revised  to  better  reflect  the  cross-border  component  of  the  Directive  and  its  EU 
added  value.  The  document  was  also  streamlined  and  repetitions  were  deleted.  In 
addition,  the  document  was  revised  to  better  explain  data  limitations  and  how  these 
impacted the findings. Finally, lessons learnt were added.  

5. Evidence, sources and quality 
The  evaluation  drew  on  different  types  of  documents  at  EU,  international  and  national 
level, respectively. Documents at the EU level provided indications as to the nature and 
scope  of  EU  counter-terrorism  policy,  in  particular  when  related  to  criminal  law.  At 
international level, the contractor reviewed documents describing international standards 
and  initiatives  relating  to  criminal  law  provisions  in  the  field  of  counter-terrorism. 
Finally,  at  the  national  level,  national  legislative  measures,  strategies,  administrative 
procedures  and  guidelines  that  in  one  way  or  another  were  relevant  in  transposing  and 
implementing  the  provisions  contained  in  the  Directive  were  of  particular  relevance. 

55 

 
 
 
 
Drawing  on  evidence  from  the  2020  transposition  report  of  the  Directive218,  the 
contractor conducted an in-depth analysis of national implementation measures with the 
aim of creating a better understanding of the situation in practice. More information on 
sources  is  provided  in  Annex  III.  Besides  a  review  of  the  relevant  documents,  the 
evaluation  also  relied  on  extensive  consultations  with  a  wide  range  of  stakeholders. 
These consultations served as opportunities to collect new data or to confirm the validity 
of  already  collected  data.  Additional 
the  stakeholder 
consultations is provided in Annex II.  

information  concerning 

Apart  from  this  work  done  by  the  contractor,  the  Commission  relied  on  two  additional 
sources  of  information.  First,  in  October  2019,  DG  HOME  had  requested  the  FRA  to 
carry out research into the impact on fundamental rights and freedoms of Directive (EU) 
2017/541 on combating terrorism, with a view to feeding its findings into the evaluation 
of the Directive. The FRA submitted their contribution to DG HOME on 14 April 2021. 
The FRA will publish a more elaborate report at the end of 2021. Secondly, in October 
2020,  DG  HOME  had  requested  more  information  from  Eurojust  to  feed  into  the 
evaluation.  Eurojust  sent  DG  HOME  its  contribution  on  29  April  2021.  Finally,  the 
EESC,  conducted  an  evaluation  of  the  Directive  as  well,  and  produced  an  information 
report219. 

218 COM(2020) 619 final, 30.9.2020. 
219  European  Economic  and  Social  Committee,  Information  report,  Evaluation  of  the  Directive  on 
combating terrorism, SOC/675, 2021. 

56 

 
 
 
 
 
 
 
                                                           
ANNEX II: STAKEHOLDER CONSULTATION 

This annex is the synopsis report of all stakeholder consultation activities undertaken for 
the evaluation.  

1. CONSULTATION STRATEGY  
The consultation strategy, as agreed with the inter-service steering group, identified the 
relevant  stakeholders  and  selected  the  appropriate  consultation  methods  and  tools.  The 
strategy identified as the main stakeholders Member States’ authorities responsible for the 
implementation  of  the  Directive.  Other  important  stakeholders  are  relevant  Directorate-
Generals  within  the  Commission,  the  European  External  Action  Service,  the  FRA, 
Europol, Eurojust, civil society, academia and think tanks, and the general public. As for 
the  consultation  methods  and  tools,  the  strategy  proposed  as  a  minimum  to  carry  out 
targeted surveys, semi-structured interviews, and a public consultation. 

2. CONSULTATION ACTIVITIES 
Table  1  provides  an  overview  of  the  consultation  activities  and  the  main  stakeholder 
groups  that  were  targeted  by  the  external  study.  Stakeholders  were  selected  to  be  as 
comprehensive and representative as possible and all relevant groups (at EU, national and 
international  level)  were  given  an  opportunity  to  provide  their  views  and  experiences 
concerning  the  functioning  and  impacts  of  the  Directive.  The  consultation  comprised  a 
mix  of  complementary  methods  including  online  surveys,  semi-structured  interviews,  a 
public consultation and a webinar for victims’ support associations.   

Table 1: Consultation strategy activities and tools per each stakeholder group 

Stakeholder group 

EU institutions and bodies 

Consultation 
activity/tool 
Interviews (including 
scoping interviews) 

Answers received/ 
Interviews carried out 
10 

International stakeholders  Interviews 

6 

Other stakeholders  

Interviews  

National authorities in 
Member States 

Counter-terrorism units 

4 (3 humanitarian 
organisations) 

23 Member States 

Email questionnaire in 
Member States 

Interviews in focus 
countries  

13 interviews in 8 Member 
States 

Public consultation 

2 representatives from public 
authorities 

Online survey in Member 
States 

7 responses in 7 Member 
States 

Interviews in focus 
countries  

1 interview in 1 Member 
States 

57 

 
 
 
 
 
 
 
Stakeholder group 

Judiciary and prosecutors 

Human rights 
organisations 

Victims support 
associations  

Consultation 
activity/tool 
Online survey in Member 
States 

Answers received/ 
Interviews carried out 
15 responses covering 10 
Member States  

Interviews in focus 
countries  

Interviews in focus 
countries 

5 interviews covering 5 
Member States  

5 interviews in 5 Member 
States 

Public consultation 

15 

Interviews in focus 
countries 

7 interviews in 5 Member 
States 

Webinar in Member 
States 

10 organisations covering 7 
countries  

General public 

Public Consultation 

6 

In  addition  to  these  consultations,  the  FRA  also  conducted  interviews  with  107 
practitioners (defence lawyers, judges and investigative judges, law enforcement, public 
prosecutors,  NGOs,  and  academia)  in  their  focus  Member  States  (Belgium,  France, 
Germany, Greece, Hungary, Spain and Sweden).  

2.1 Questionnaires 
A  comprehensive  questionnaire,  covering  all  the  evaluation  criteria  and  designed  to  be 
able to answer all the evaluation questions, was sent to the competent authorities in each 
Member  States.  The  questionnaire  was  provided  in  Microsoft  Word  to  facilitate 
circulation and elaboration of a consolidated answer from national competent authorities. 
The  questionnaire  was  launched  on  24  February  2021  and  disseminated  via  email. 
National competent authorities were given until end May 2021 to reply, although initially 
the deadline was set at 22 March 2021.  

Replies  were  received  from  23  Member  States,  mostly  from  national  Ministries  of  the 
Interior (including units involved in  counter-terrorism  as well as  victim protection) and 
Ministries of Justice. Participants provided comprehensive replies covering all questions 
and evaluation criteria, especially on ‘effectiveness’ and ‘relevance’. 

2.2 Online surveys 
Two  online  surveys  were  carried  out,  one  targeting  counter-terrorism  units,  and  a 
second one designed for judiciary and prosecutors dealing with terrorism-related cases. 
Both were launched, in English, on 24 February 2021. The surveys remained live for 13 
weeks and were closed on 26 May 2021. The surveys were disseminated via email; the 
survey  for  the  judiciary  was  also  disseminated  through  national  associations  of  judges 
and  prosecutors.  The  survey  for  counter-terrorism  units  collected  seven  replies  from 
seven  different  EU  Member  States,  while  the  one  for  members  of  the  judiciary  and 
prosecutors collected 15 responses from 10 Member States.  

The two online surveys collected fewer replies than anticipated, despite a dissemination 
campaign  and  reminder  emails,  including  in  the  own  language  of  the  target  audience. 

58 

 
 
 
 
 
 
 
 
 
Respondents  provided  a  good  level  of  detail  for  all  questions  and  evaluation  criteria, 
although  the  information  on  ‘effectiveness’  and  ‘relevance’  (especially  the  questions 
related to criminal law and investigation and prosecution) was more comprehensive than 
for the other evaluation criteria (especially ‘efficiency’).  

2.3 Targeted interviews  
EU  and  international  level  stakeholders  were  interviewed  face-to-face  or  by  telephone. 
ICF  carried  out  ten  such  interviews,  covering  EU  bodies  and  institutions,  international 
institutions and international humanitarian organisations.  

Interviews were carried out with key stakeholders in eight Member States (BE, BG, DE, 
EL,  ES,  FR,  IT,  NL),  selected  in  collaboration  with  the  Commission.  These  targeted 
interviews  (31  in  total)  focused  on  the  implementation  of  the  Directive  in  the  selected 
Member  States.  Interviews  were  conducted  with  national  competent  authorities 
(Ministries of Interior and Ministries of Justice, depending on the institutional set-up in 
the  Member  State);  counter-terrorism  units;  judiciary  and  prosecutors;  human  rights 
organisations;  and  victims  associations.  The  information  collected  via  the  targeted 
interviews focused in particular on the evaluation criteria of effectiveness, relevance, and 
impacts on fundamental rights.  

2.4 Webinar with victims’ associations and NGOs 
A  1.5-hour  webinar  was  hosted  on  26  April  2021  via  the  online  platform  of  the  EU 
Centre  of  Expertise  for  victims  of  terrorism  (EU  CVT).  The  webinar  focussed  on  the 
protection  and  support  to  victims  of  terrorism  and  targeted  mostly  services  and 
professionals  supporting  victims.  In  addition  to  the  Commission  and  ICF,  10 
organisations from seven Member States participated in the webinar.  

2.5 Stock-taking workshop   
DG HOME organised a stock-taking workshop, to which Member States’ representatives 
as  well  as  the  steering  group  was  invited.  The  aim  of  the  workshop  was  to  have  the 
relevant stakeholders present the state of play in relation to their work on the evaluation. 
DG HOME, ICF, the FRA and the EESC gave presentations. 57 representatives from 24 
(out of the 25) Member States were present, with representatives from different relevant 
services,  such  as  ministries  of  interior,  ministries  of  justice,  the  judiciary,  law 
enforcement and intelligence.  

2.6 Public Consultation 
The  Public  Consultation  (PC)  was  launched  on  24  March  2021  via  the  EU  Survey 
platform  and  remained  open  until  16  June  2021  (duration  of  12  weeks).  The  PC  was 
available in all EU official languages220 and was open to all stakeholders and the general 
public.  So  far,  the  PC  has  collected  23  replies,  which  is  used  as  anecdotal  evidence.  

3. RESULTS   
This  section  first  presents  the  feedback  received  on  the  roadmap,  and  then  presents  a 
summary  of  the  results  of  the  stakeholder  consultation  by  evaluation  criterion.  The 
criteria of relevance and effectiveness have been merged to reduce repetition.  

3.1 Feedback received on the roadmap 
Seven  stakeholders  submitted  feedback  on  the  evaluation  roadmap,  of  which  one 

220 Except Irish (Gaelic).  

59 

 
 
 
 
 
 
 
 
 
 
 
                                                           
twice221.  One  represented  a  business  association,  two  a  non-governmental  association, 
one  a  public  authority,  and  three  were  unspecified.  Two  stakeholders  noted  the 
importance  of  assessing  the  Directive’s  impact  on  fundamental  rights  and  freedoms,  of 
which  one  also  noted  the  importance  of  an  efficiency  assessment.  Two  organisations 
submitted issues to be taken into account in the assessment of the impact of the Directive 
on the level of protection and assistance provided to victims of terrorism, for example in 
relation to the right to information. One stakeholder made observations in relation to the 
protection of critical infrastructure. Another stakeholder commented on the link between 
religion  and  terrorism.  Finally,  one  stakeholder  commented  on  the  Counter-Terrorism 
Agenda for the EU, rather than the Directive. 

3.2  Effectiveness  (including  the  impact  on  the  level  of  protection  and  assistance 
provided to victims of terrorism) and relevance  

Definitions (Articles 3-12) 
Respondents to the online survey of counter-terrorism units  generally considered the 
scope and elements of the Directive relevant to combatting terrorism in the EU, although 
some thought that there was further room to tackle the threat posed by  foreign terrorist 
fighters and returnees and online terrorist content. Counter-terrorism units also generally 
indicated that the Directive is equipped to address possible future terrorist trends in the 
EU.  

Most  counter-terrorism  units  reported  that  new  measures  had  been  adopted  in  their 
Member State related to aspects of the  Directive, including legislative measures, policy 
measures and administrative measures. Counter-terrorism units considered the Directive 
somewhat successful in approximating the definition of criminal offences in the field of 
terrorism,  establishing  minimum  rules  across  the  EU  on  sanctions  for  terrorism-related 
criminal offences and enhancing the protection of and support and assistance to victims 
of terrorism. In general, counter-terrorism units considered the scope and content of the 
Directive  and  the  way  in  which  it  has  been  applied  in  practice  to  have  had  a  positive 
impact.  

Respondents  to  the  online  survey  of  judiciary  and  prosecutors  considered  the  scope 
and  elements  of  the  Directive  as  relevant  for  combatting  terrorism  in  the  EU,  and  the 
majority  concurred  that  the  Directive  is  equipped  to  address  possible  future  terrorist 
trends  and  threats.  Respondents  mentioned  non-comprehensive  coverage  of  extreme 
right-wing terrorism, uncertainties as to whether the Directive is equipped to address new 
trends,  and  the  inclusion  of  targeted  assassinations  with  a  racist  motive  concealed  as 
criminal acts in Article 3 as areas for improvement. The majority reported no gaps in the 
Directive  that  need  to  be  addressed,  and  no  difficulties  in  terms  of  being  able  to  prove 
terrorist  intent.  However,  among  the  replies  that  reported  gaps,  lack  of  clarity  on  the 
definition  of  terrorism  and  insufficient  provisions  on  "lone  actor  terrorism”  were 
mentioned, as was the need for a clearer definition of ‘intentional acts’. Most respondents 
did not report any difficulties related to the investigation or prosecution of terrorist cases. 

The definitions for criminal offences in the Directive were considered suitable and fit by 
the  majority  of  respondents  to  the  online  survey  of  counter-terrorism  units, 
considering the current  and likely  future terrorist threats and trends in the EU.  Limited 
concerns were expressed about definition of terrorist offences in Articles 3-12 and 14, the 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12545-Combating-terrorism-

221 
evaluation-of-EU-rules_en 

60 

 
 
                                                           
investigation and prosecution of terrorist offences in Articles 19 and 20, the blocking or 
removal of content constituting a provocation to commit a terrorist offence in Article 21 
and  the  cooperation  and  exchange  of  information  in  the  context  of  terrorist  offences  in 
Article 22.  

Most  respondents  to  the  online  survey  of  counter-terrorism  units  consider  the 
Directive  to  be  effective  in  establishing  minimum  rules  across  the  EU  on  sanctions  for 
terrorism-related criminal offences; enhancing cooperation and information sharing with 
counterparts  in  other  Member  States;  enhancing  cooperation  and  information  sharing 
with relevant EU agencies; and approximating the definition of terrorism-related criminal 
offences across EU Member States. 

The  vast  majority  of  respondents  to  the  questionnaire  for  competent  authorities 
considered  the  definitions  contained  in  the  Directive  to  be  relevant.  Respondents 
considered  the  definition  of  “terrorist  offences”  in  article  3  ‘just  right’,  and  did  not 
consider that the term ‘intentional acts’ requires further clarification. 

The  majority  of  Member  State  competent  authorities  indicated  that  terrorist  offences 
were already defined before the  Directive  came into  force.  In two Member States,  pre-
existing measures were identical to the ones provided for by the Directive, while in many 
others some amendments/extensions were made. 

Most Member State competent authorities gave a positive assessment of the effectiveness 
of the Directive in approximating the definition of terrorist offences:  

  Terrorist offences (Article 3): 10 Member States considered the Directive helped 
‘to  some  extent’,  while  10  Member  States  considered  the  Directive  helped  to  a 
very or to a very great extent; 

  Offences related to a terrorist group (Article 4): 6 Member States considered the 
Directive  helped  ‘to  some  extent’,  while  10  Member  States  considered  the 
Directive helped to a very or to a very great extent; and  

  Offences  related  to  terrorist  activity  (Title  III):  6  Member  States  considered  the 
Directive  helped  ‘to  some  extent’,  while  12  Member  States  considered  the 
Directive helped to a very or to a very great extent. 

Interviews  with  international  level  organisations  revealed  that  the  Directive  was 
designed as a response to a specific terrorist threat (jihadist terrorism) and that there is a 
need  to  consider  the  evolution  of  the  context,  with  the  emergence  of  other  forms  of 
terrorism (such as right-wing extremism). Interviewees also commented that the scope of 
the Directive might leave too much room for interpretation to Member States. They noted 
that the notions of intent and participation are too broad and difficult to apply (e.g. in the 
case  of  returning  foreign  terrorist  fighters).  Interviewees  also  highlighted  that  the 
repatriation of children should be included in the Directive.  

Interviewees  at  EU  level  highlighted  that  the  Directive  provides  a  stronger  and  more 
harmonised treatment of national travel for terrorism purposes. However, on the topic of 
foreign terrorist fighters, there is still need for more EU guidance for national prosecutors 
and  Eurojust.    Interviewees  explained  that  although  right-wing  extremism  is  becoming 
increasingly relevant, it would be complex to include it in the scope of the Directive.  

61 

 
 
Interviews with competent authorities in selected Member States confirmed the main 
findings  from  the  surveys  and  highlighted  some  difficulties  in  proving  intent. 
Interviewees  highlighted  that  many  issues  that  have  arisen  in  the  Member  States  are 
related to national provisions - many of which were already in place before the Directive.  

The  opinion  of  respondents  to  the  open  public  questionnaire  on  the  relevance  of  the 
definitions was overall slightly more negative than positive. The number of respondents 
who  found  the  Directive’s  definitions  not  suitable  and  fit  for  purpose  in  light  of  the 
changing nature and pattern of terrorist threats faced by the EU (9 of 21 respondents) was 
higher than those who believed they are (6 of 21 respondents) 

Sanctions (Articles 15-18) 
In the online survey for judiciary and prosecutors, most respondents  considered that 
sanctions  rendered  for  terrorist  offences  in  their  Member  State  are  effective, 
proportionate  and  dissuasive.  Respondents  also  specified  that  terrorist  offences  are 
subject to high penalties under national law, the criminal law provides for a wide span of 
possible  punishment  for  most  offences  related  to  terrorism,  penalties  for  promoting 
terrorist  propaganda  range  from  one  to  three  years  imprisonment  and  that  sanctions 
already imposed are considered as effective and proportionate. 

In  the  Member  States’  questionnaire,  nine  competent  authorities  reported  that  their 
Member  State  had  adopted  measures  to  implement  the  Directive’s  provisions  on 
sanctions.  In  many  cases,  they  aligned  their  sanctions  by  increasing  fines  and  prison 
sentences. In other cases, national legislation already defined sanctions more severe than 
those laid down in the Directive. 

Respondents  reported  that  the  sanctions  have  been  used  so  far  mostly  in  cases  against 
jihadists,  and  more  rarely  against  right-wing  extremists.  They  have  been  applied  in 
several Member States for different offences as defined in the Directive:  

  Terrorist offences: 3 Member States; 

  Offences relating to a terrorist group: 3 Member States;  

  Public provocation to commit a terrorist offence: 2 Member States;  

  providing and receiving training for terrorism: 1 Member State; 

  Travelling for the purpose of terrorism: 2 Member States; 

  Financing of terrorism: 5 Member States; 

  Other offences: 1 Member State; and  

  Aiding and abetting, inciting and attempting: 1 Member State. 

Member  State  competent  authorities  considered  that  the  Directive’s  minimum  rules  on 
penalties for natural and legal persons are suitable and fit for purpose. 

The  opinion  of  respondents  to  the  open  public  questionnaire  on  the  relevance  of  the 
minimum rules laid down by the Directive on sanctions and penalties linked to terrorism-
related offences was slightly more negative than positive (5 of 18 respondents disagreed 
that they were suitable and fit for purpose to address current and possible future trends, 
while 3 respondents agreed and 4 held a neutral position). 

62 

 
 
 
 
 
Investigation, prosecution and adjudication (Articles 19-20) 
The online survey to judiciary and prosecutors highlighted several relevant court cases 
that have taken place, as well as rulings, and convictions/acquittals. Sanctions have also 
been reported, including five imprisonments, ranging from 1 to 10 years.  

The  scope  and  content  of  the  Directive  and  the  way  in  which  the  Directive  has  been 
applied in practice have a positive impact on the effectiveness of the Directive according 
to  many  respondents.  Many  respondents  reported  that  their  organisation  could  benefit 
from  European  Commission  legal  guidance  in  interpreting  the  provisions  of  the 
Directive, especially via training courses and seminars and legal guidance combined with 
examples from complying jurisprudence in Member States.  

The  questionnaire  to  competent  authorities  in  Member  States  found  that  new 
measures were adopted since 2017 in 13 Member States. Most concerned amendments or 
extension of existing legislation. 

A  limited  number  of  respondents  indicated  that  the  Directive  had  an  overall  positive 
impact on the ability of authorities in the Member States to:  

 

Investigate terrorism-related criminal offences; 

  Prosecute terrorism-related criminal offences; 

  Adjudicate terrorism-related criminal offences. 

The  vast  majority  of  respondents  did  not  report  issues  faced  by  their  Member  State  to 
implement the provisions in Articles 19 and 20 of the Directive, and indicated that they 
are adequate given the changing nature and pattern of terrorist threats. 

Interviews  at  EU  level  highlighted  the  benefit  of  further  guidance  on  the  relationship 
between international humanitarian law and terrorism law to listing terrorist groups.  

Online content (Article 21) 
Most  respondents  in  the  online  survey  of  counter-terrorism  units  thought  that  the 
Directive  is  suitable  to  tackle  the  threat  of  online  terrorist  content  but  there  was  no 
consensus  on  whether  online  terrorist  content  is  removed  or  blocked  more  swiftly  now 
than before 2017.  

Respondents  to  the  questionnaire  for  competent  authorities  reported  that  most 
Member  States  adopted  practical  measures  to  ensure  that  online  content  constituting  a 
public  provocation  to  commit  a  terrorist  offence  is  removed  or  blocked,  which  were 
legislative  measures,  administrative  measures,  a  combination  of  legislative  and 
administrative  measures,  judicial  measures,  and  policy  measures.    Most  respondents 
considered that Art. 21 and the national provisions that transpose it, have been effective 
in ensuring that online terrorist content is removed or blocked. 

Interviews  at  EU  level  and  with  national  competent  authorities  in  eight  Member 
States  highlighted  that  the  new  Regulation  on  online  content  will  introduce  some 
changes.  

Cooperation and exchange of information (Article 22) 
The  online  survey  to  counter-terrorism  units  did  not  provide  a  clear  assessment  on 
whether the Directive made information sharing and/or cooperation more efficient. Some 
respondents  reported  that  cooperation  has  been  enabled  or  facilitated  through  joint 
operations  and  investigations  and  through  collaboration  on  terrorism  issues  between 

63 

 
 
 
 
Member  States,  and  that  Article  22  has  strengthened  information  sharing  for  electronic 
and biometric information or evidence. 

The  views  from  the  online  survey  to  judiciary  and  prosecutors  were  similarly 
fragmented,  with  only  five  respondents  considering  that  Article  22  has  enabled  their 
organisation  to  share  information  with  counterparts  in  other  EU  Member  States. 
Respondents specified that the Directive has strengthened information sharing in relation 
to  particular  types  of  information  or  evidence,  on  travel  of  citizens  to  other  Member 
States  that  could  be  related  to  terrorist  intentions,  and  on  evidence  resulting  from 
measures of surveillance of telecommunication.  

Results  from  the  questionnaire  to  competent  authorities  in  Member  States  indicate 
that most Member States already had measures in place to ensure information exchange 
with  other  Member  States  before  the  Directive  entered  into  force.    Most  respondent 
agreed  that  the  Directive  has  improved  the  exchange  of  information  between  Member 
States, making it easier to:  

  Send more information spontaneously to other Member States; 

  Receive more information spontaneously from other Member States; 

  Respond to more requests for information from other Member States; 

 

Issue more requests for information to other Member States; 

  Respond  more  promptly  to  requests  for  information  from  other  Member  States; 

and 

  Respond more promptly to requests for other Member States. 

In  the  interviews,  competent  authorities  stressed  the  importance  of  cooperation  and 
exchange of information among Member States, which they considered as improved over 
time. However, some highlighted that they already had good exchanges and cooperation 
with other Member States and EU agencies to counter terrorism (Europol and Eurojust) 
prior to the Directive. 

In  the  interviews,  human  rights  organisations  in  Member  States  reported  some 
concerns  on  the  extent  of  cooperation  and  exchange  of  information  among  Member 
States,  especially  when  intelligence  services  are  involved.  They  noted  that  there  is  no 
clear understanding of the conditions under which the transfer of information is required, 
of what threshold the intelligence agencies should use to transfer information to police, 
nor of the obligations to do so.  

Only  one  respondent  to  the  open  public  questionnaire  reflected  on  the  effect  that  the 
Directive had on exchanges of information and cooperation, indicating that it had led to 
significant improvements in cooperation in the field of counter-terrorism, both between 
Member States  as  well as Member States and  Union  agencies  and bodies active in  this 
area (e.g. Europol and Eurojust). More specifically, the respondent found that Article 22 
had  led,  to  some  extent,  to  more  proactive  cooperation  and  information  sharing  for  all 
forms  of  information  and  evidence,  including  electronic  evidence,  between  Member 
States. 

Victims (Articles 24-26) 
Most  respondents  in  the  online  survey  of  judiciary  and  prosecutors  reported  that 
victims  of  terrorism  in  their  Member  States  receive  adequate  protection,  that  the 

64 

 
 
 
 
procedures through which victims’ access and are provided protection are designed in a 
way that are ‘victim-friendly’ and that the communication with victims is given in simple 
and  accessible  language  and  considers  personal  characteristics.  However,  most  thought 
that  inadequate  protection  is  provided  in  their  Member  State  to  residents  who  become 
victims of terrorist attacks in other EU Member States and to victims of terrorist attacks 
that take place in their Member State but who are resident in other EU Member States. 
Most respondents affirmed that the protection of victims of terrorism has improved, but 
few attributed this to the Directive. 

The  questionnaire  to  competent  authorities  found  that  many  Member  States  already 
had measures to support and protect victims of terrorism, which have not been modified 
as a result of the Directive. Some Member States had measures in place, which have been 
modified  as  a  result  of  the  Directive  and  some  new  measures  have  been  implemented. 
Member States provide different types of assistance and support to victims of terrorism, 
including  general  victim  support,  medical  support  following  an  attack,  emotional  and 
psychological  support,  provision  of  advice  and  information,  and  assistance  with  claims 
regarding compensation. Most respondents thought that the Directive has been effective 
in  providing  assistance  and  support  to  victims  of  terrorism,  and  that  it  is  adequate  to 
respond to their needs. 

The  interviews  with  competent  authorities  in  eight  Member  States  similarly 
highlighted that Member States already had provisions to support and protect victims of 
terrorism  aligned  with  those  of  the  Directive.  Interviewees  also  commented  that  the 
cross-border  protection  included  in  the  Directive,  while  very  important,  has  not  been 
used yet. 

Similarly, interviews with human rights organisations and victims’ organisations in 
Member States highlighted that most of the provisions and practices implemented by the 
Directive were already in place in the Member States due to the Victims’ Right Directive. 
Much of the effectiveness of the protection and support mechanisms still depends on the 
implementation  by  Member  States,  which  differs  greatly  across  the  EU.  Victims’ 
organisations also stressed that victims of terrorism may suffer long-term consequences, 
which  are  currently  hardly  considered.  They  considered  the  cross-border  protection 
included in the Directive as very important. 

The webinar highlighted e.g. the distinction between victims and witnesses, which can 
be  difficult  to  make.  Several  issues  were  highlighted  including  the  difficulty  of 
identifying victims (e.g.  victims sometimes do not  consider themselves  as such, if they 
are not injured). Participants commented that the definition of support is somewhat vague 
when applied in  practice, and some elements  (such as specialised treatment,  or support 
care  for  trauma)  are  often  not  provided.  Most  participants  indicated  that  single  contact 
points and specialised training are important best practices.  

Most  respondents  to  the  open  public  questionnaire  who  expressed  their  opinion  on 
whether the Directive has led to better protection of and assistance to victims of terrorism 
held a neutral opinion (6 of 20 respondents neither agreed nor disagreed, while 4 agreed 
and  1  disagreed).  Among  those  who  believed  that  the  Directive  impacted  victims  of 
terrorism positively, three noted that the Directive contributed to the strengthening of the 
regulatory  framework  for  victims  of  terrorism.  The  respondent  who  disagreed  with  the 
statement above criticised that the Directive does not recognise persons who have been 
indirectly affected by the attack (e.g. first responders or second-degree family members) 
as victims. 

65 

 
 
3.3 Efficiency  
The  majority  of  respondents  in  the  online  survey  to  counter-terrorism  units  said  the 
Directive had no or little impact on costs associated with familiarisation and training on 
the  provisions  of  the  Directive,  update  of  IT  systems,  update  of  operating  costs,  and 
monitoring  costs;  on  human  resources  and  administrative  burden;  and  on  financial 
resources. The counter-terrorism units also disclosed some (limited) positive impacts of 
the  Directive  on  efficiency,  such  as  making  meeting  objectives  more  effective  and 
improving procedures. Counter-terrorism units also agreed that benefits generated by the 
Directive  have  been  achieved  at  a  reasonable  cost  for  national  authorities  in  their 
Member State, and for organisations providing assistance to victims of terrorism. 

Respondents to the online survey to judiciary and prosecutors reported that the impact 
of  the  Directive  has  not  inferred  costs  or  that  they  do  not  know.  Many  respondents 
highlighted  that  such  information  is  unavailable,  as  the  costs  of  the  Directive  were  not 
calculated separately from pre-existing costs, and that, when costs and staff for counter-
terrorism increased over time, this was a consequence of national provisions and actions, 
rather than of implementing the Directive.  

The  majority  of  respondents  to  the  online  survey  to  judiciary  and  prosecutors  reported 
that  the  Directive  had  no  or  little  impact  on  costs  (based  on  the  limited  amount  of 
information available), including on:  

 

financial 
authorities/prosecutors; 

resources 

for 

their 

units/teams 

and 

for 

other 

judicial 

  costs  of  human  resources  for 

their  units/teams  and  for  other 

judicial 

authorities/prosecutors; and  

  on human resources and administrative burden for their units/teams and for other 

judicial authorities/prosecutors. 

The  online  survey  to  counter-terrorism  units  also  disclosed  some  (limited)  positive 
impacts of the Directive on efficiency, such as making meeting objectives more effective 
and  improving  procedures.    One  counter-terrorism  units  reported  that  the  Directive  has 
had a positive impact as it has created uniform European standards to combat terrorists. 

Respondents  in  the  questionnaire  to  competent  authorities  in  Member  States  were 
similarly  unable  to  allocate  specific  costs  (staff,  IT  and  other  equipment,  training,  etc.) 
directly to the Directive, or to activities related to the transposition and implementation 
of the Directive (e.g. costs for transposing and familiarising with the Directive, costs of 
investigation  and  prosecution,  costs  of  providing  protection  to  victims  of  terrorism  and 
their families, costs of providing information to victims of terrorism, costs of monitoring 
and reporting and of cooperating with other authorities). Some noted that there had been 
an increase in staff (and thus budget) to combat terrorism and cybercrime, but linked this 
to national initiatives and priorities, rather than the Directive. Respondents identified the 
following as the main benefits of the Directive:  

  enhanced legal clarity; 

 

improved ability to cooperate with other bodies and agencies in the same Member 
State, in another Member State and with EU agencies to counter terrorism such as 
Europol and Eurojust; and  

 

improved ability to counter the threat from terrorism. 

66 

 
In  the  interviews,  the  national  competent  authorities  in  eight  Member  States  were 
similarly unable to attribute specific costs directly to the Directive, or to activities related 
to the transposition and implementation of the Directive. 

As  for  the  open  public  questionnaire,  most  respondents  could  not  assess  the  costs 
incurred as a result of the Directive or the benefits generated for their Member State. 

3.4 Coherence 
A large majority of respondents in the online surveys to counter-terrorism units and 
to judiciary and prosecutors considered the provisions of the Directive to be internally 
consistent. Most respondents were unaware of any inconsistencies between the Directive 
and other legislation in their Member State or other legislation at EU level. Stakeholders 
also  considered  the  Directive  to  be  coherent  and  complementary  with  legislation  at 
international level, at EU level and in Member States. 

The questionnaire to competent authorities in  Member States  also  revealed that the 
Directive is considered internally consistent (i.e. they are logical, non-contradictory, easy 
to  interpret).  The  competent  authorities  also  considered  the  Directive  to  be  consistent 
with  other  policy  and  legislative  interventions  in  the  field  of  counter-terrorism  and 
protection  of  victims’  rights  at  EU  and  national  level.  Respondents  provided  a  very 
similar  assessment  of  the  complementarity  of  the  Directive  with  other  policy  and 
legislative interventions in the field of counter-terrorism protection of victims’ rights at 
EU and national level. Doubts were expressed on the relationship between Article 21 of 
and the future TCO (terrorist content online) Regulation, and how they will interact. 

Interviews at international level considered the Directive to be internally consistent and 
coherent  with  legislation  in  Member  States  and  with  UN  minimum  rules.  However, 
respondents also highlighted that reference to the UN measures (including the Budapest 
Convention  and  the  so-called  “19  legal  instruments  against  terrorism”)  could  be 
strengthened  in  the  Directive,  as  UN  provisions  on  CBRN,  aviation  setting,  maritime 
related  issues,  financing,  kidnapping  are  reflected  only  partially  in  the  Directive. 

Interviews at EU level also highlighted the consistency of the Directive, both internally 
and with other legislation and policy interventions on counter-terrorism and protection of 
victims’ rights at EU level. 

Interviews with national authorities and judiciary and prosecutors in eight selected 
Member States also stressed the consistency and complementarity of the  Directive with 
the  national  legislative  and  policy  frameworks  on  counter-terrorism  and  protection  of 
victims’  rights.  Specific  issues  include  the  notion  of  ‘conspiracy’,  which  is  included  in 
some  national  framework  but  not  in  the  Directive,  and  the  risk  of  putting  too  much 
emphasis to victims of terrorism compared to victims of other crimes. Some respondents 
commented  on  Article  11  (Terrorist  Financing),  which  is  considered  contradictory 
regarding the necessity or not of the use of funds. 

Human rights organisations similarly highlighted the consistency and complementarity 
of the Directive with national provisions. They also stressed the risk of putting too much 
emphasis  on  victims  of  terrorism  versus  victims  of  other  crimes,  and  the  fact  the 
Directive  protects  victims  and  their  image,  but  does  not  cover  other  important  aspects, 
such as humiliation of victims. 

Respondents to the open public questionnaire found the Directive to be overall coherent 

67 

 
  
 
 
 
 
 
to  and  complementary  with  other  interventions  at  the  EU,  national  and  international 
level. 

3.5 EU added value   
The online survey to counter-terrorism units revealed that the Directive provided EU 
added  value  to  defining  criminal  offences  in  the  area  of  terrorism,  sanctions  and 
protecting  victims  of  terrorism.  Counter-terrorism  units  reported  that,  without  the 
Directive, there would be a negative impact on efforts to counter terrorism in the EU and 
in Member States. 

The online survey to judiciary and prosecutors found that the Directive has provided 
added  value  in  defining  criminal  offences  in  the  area  of  terrorism,  and  in  particular  in 
creating uniform standards for prosecuting terrorist offences and beneficial explanations 
in  the  preamble.  The  Directive  has  provided  added  value  concerning  sanctions  and  in 
protecting  victims  of  terrorism.  Respondents  also  affirmed  that,  without  the  Directive, 
there  would  be  a  negative  impact  on  efforts  to  counter  terrorism  in  the  EU  and  in 
Member  States.  The  Directive  has  contributed  to  harmonising  Member  States’  national 
legislation  on  terrorism  matters,  increased  judicial  and  police  cooperation  and  has 
encouraged  Member  States  to  update  their  national  legal  frameworks  in  relation  to 
terrorism. 

The  questionnaire  to  competent  authorities  in  Member  States  confirmed  that  the 
Directive provided added value, especially in comparison to the Framework Decision. A 
clearer definition of terrorism and terrorism-related crimes and a more comprehensive set 
of provisions are the features considered to have more EU added value. The Directive is 
also considered providing added value to Member States. While many Member States did 
not  introduce  new  laws  due  to  the  Directive,  as  their  frameworks  were  already  as 
comprehensive,  it  is  acknowledged  that  the  Directive  helped  harmonising  national 
frameworks.  

Interviews  at  international  level  pointed  out  that  the  Directive  provides  added  value, 
but it is quite broad in the definition of terrorism-related offences, and this leaves broad 
room for interpretation by Member States. 

Interviews at EU level stressed the added value provided by the Directive, especially in 
comparison  to  the  Framework  Decision,  as  the  Directive  takes  into  account  a  changed 
context,  and  includes  provisions  (such  as  those  on  terrorist  content  online  and  FTSs), 
which were absent from the previous framework. 

Interviews  with  national  authorities  and  judiciary  and  prosecutors  highlighted  that 
the  Directive  provides  added  value,  mostly  by  providing  legal  clarity,  harmonising 
national legislations, and by increasing judicial and police cooperation. Interviewees also 
commented  positively  on  the  added  value  provided  by  the  Directive  in  responding  to 
emerging threats, especially cross-border and concerning FTFs. 

Interviews  with  victims’  associations  also  identified  the  harmonisation  of  legislative 
frameworks and increased cooperation as the main added values of the Directive.   

To  assess  the  value  added  by  the  Directive,  respondents  to  the  open  public 
questionnaire  were  asked  to  reflect  on  the  impact  that  its  withdrawal  would  have  on 
their  Member  State  (and  their  organisation  if  they  answered  on  behalf  of  one).  The 
responses  revealed  split  views  on  this.  In  both  cases  the  same  number  of  responses 
pointed  to  a  positive  and  a  negative  impact  (4  out  of  15  respondents  concerning  the 

68 

 
 
impact  on their Member State, and 2 of 11 respondents  concerning the impact  on their 
organisation).  It  is  worth  noting,  however,  that  most  respondents  representing 
organisations were not in a position to assess what the impact on their organisation would 
be (7 of 11 respondents). 

3.6 Impact on Fundamental Rights and Rule of Law 
The majority of respondents in the online survey to judiciary and prosecutors deemed 
the  Directive  to  have  impacts  on  fundamental  rights  and  freedoms,  by  reducing  the 
freedom of speech and increased criminalisation in some Member States. The limitations 
to fundamental  rights and freedoms are directly linked to the measures in the  Directive 
(always  or  in  some  instances)  by  many  respondents.  Of  these,  some  specified  that 
national case-law is aligned with the standards in the EU Charter of Fundamental Rights.  
Several respondents reported that Article 21 of the Directive has not had any observable 
impacts on fundamental rights and freedoms. 

The questionnaire to competent authorities in Member States found that the Directive 
has not raised any issues in terms of fundamental rights. Only one Member State reported 
the existence of legal cases taken in this context (DE). Some Member States reportedly 
took  measures  to  ensure  that  limitations  on  the  exercises  of  fundamental  rights  are 
necessary,  legitimate  and  proportionate.  Many  Member  States  put  in  place  specific 
measures to ensure non-discrimination during the investigation, prosecution and trial and 
sentencing stages.  

Interviews with national authorities and judiciary and prosecutors in eight selected 
Member States also found no major negative impacts on fundamental rights and rule of 
law. Even when the Directive restricts fundamental rights and freedoms, such as during 
the 
legitimate  and 
proportionate  and  they  are  subject  to  strict  procedural  guarantees.  In  some  cases,  the 
Directive also reduced the application of more restrictive national provisions. 

limitations  are  necessary, 

investigation  proceedings, 

these 

Interviews with human rights organisations confirmed that the Directive has not had 
major adverse impacts  on fundamental  rights  and the rule of law. Some  concerns were 
expressed  on  Article  22(2),  and  the  right  to  protection  of  personal  data  acquired  and 
collected during the investigation of terrorist offenses, which could  require establishing 
an  independent  authority  to  monitor  compliance  with  the  right  to  protection  of 
suspect’s/accused’s personal data other than Prosecutors and Judicial Authorities.   

The  vast  majority  of  respondents  to  the  open  public  questionnaire  (16  of  21 
respondents)  agreed  that  the  implementation  of  the  Directive  had  raised  issues 
concerning  its  impact  on  fundamental  rights  at  Member  State  or  EU  level.  Only  two 
respondents disagreed, with the remaining respondents indicating that they did not know. 

69 

 
 
 
 
 
ANNEX III: METHODS AND ANALYTICAL TOOLS 

In  this  annex,  the  methods  and  sources  that  were  drawn  upon  in  carrying  out  the 
evaluation are described, as well as the limitations that were encountered.   

1. METHODS AND SOURCES 
The stated aim of the Directive is to combat terrorism. A range of methodological tools 
and techniques were included in the analytical framework that was developed during the 
preparatory  phase  of  the  study.  This  contained  both  desk  and  field  research  involving 
interviews, online surveys, questionnaires  workshops, and case studies targeting a wide 
range  of  stakeholders.  The  contractor  also  made  use  of  the  results  of  the  public 
consultation, which was open from 24 March 2021 until 16 June 2021. 

1.1 Desk research 
For the desk research, ICF identified and screened relevant documents and data, based on 
a  template  developed  at  inception  stage.  The  template  was  structured  around  the  key 
evaluation questions for which the desk research was expected to be most relevant. The 
list of documents was continuously updated throughout the study as new documents and 
evidence  were  identified  and  reviewed.  A  complete  list  of  documentation  reviewed 
throughout the study can be found in Annex 3 of the external study222. 

In addition, for the desk research phase, the Commission reviewed the contributions from 
the FRA223 and Eurojust224. The FRA’s contribution is partly based on field research. The 
Commission also reviewed the EESC’s information report225. 

1.2 Field research 
See above in Annex II for details on the stakeholder consultation process.   

ICF carried out its field  research using different  consultation methods. It  developed the 
questionnaire,  which  was  translated  and  launched  by  the  European  Commission  on  24 
March  and  open  until  16  June  2021.  ICF  supported  the  dissemination  of  the  public 
consultation. In particular, certain groups of key stakeholders not specifically targeted by 
other  consultation  activities  were  specifically  invited  to  respond  to  the  public 
consultation.  This  concerns  mostly  human  rights  organisations  and  other  NGOs  not 
invited to an interview, as well as other NGOs and members of academia. ICF also asked 
humanitarian associations interviewed to disseminate the link among their members and 
network if they considered the questions to be relevant for other organisations providing 
humanitarian assistance. 

Targeted  online  surveys,  email  questionnaires  and  online  webinars  included  targeted 
consultations  with  key  stakeholders  in  all  Member  States.  The  targeted  consultations 
consisted of: 

222 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report. 
223 European Union Agency for Fundamental Rights, Contribution to the Commission, 2021, page. 
224  Eurojust  contribution  to  the  evaluation  of  Directive  (EU)  2017/541  of  15  March  2017  on  combating 
terrorism, 2021. 
225  European  Economic  and  Social  Committee,  Information  report,  Evaluation  of  the  Directive  on 
combating terrorism, SOC/675, 2021. 

70 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
  An  email  questionnaire  targeting  national  authorities  responsible  for  transposing 
and implementing the Directive (e.g., Ministry of Justice or Ministry of Interior); 

  Two  online  surveys  using  the  online  platform  VoxCo,  one  targeting  counter-
terrorism units in law enforcement agencies, and one designed for members of the 
judiciary  and  prosecutors  dealing  with  terrorism-related  cases.  The  surveys 
covered all evaluation criteria but focused on the practical implementation of the 
Directive  during  the  investigation,  prosecution  and  adjudication  of  terrorism-
related cases; 

  A  webinar  session  gathering  national  associations  and  other  stakeholders 
representing the interests of victims of terrorism, via the EU Centre of Expertise 
for Victims of Terrorism. 

  A  stock-taking  workshop  organised  by  DG  HOME.  DG  HOME,  ICF,  the  FRA 
and the EESC gave updates on the work they were carrying out, providing space 
for Member States to comment and provide feedback. 

To  reach  the  most  relevant  stakeholders  at  national  level,  ICF  requested  support  from 
Member  States’  Permanent  Representation  to  the  EU,  national  associations  of 
prosecutors and members of the judiciary, and Eurojust. The two online surveys and the 
email  questionnaire  were  launched  on  24  February  2021.  The  deadline  to  submit 
responses was initially set on 22 March (i.e., four weeks) and postponed until mid-April. 
Several  reminders  were  sent  to  non-respondents  –  where  possible,  in  their  national 
language - over the course of April. To accommodate stakeholders who would have not 
managed  to  submit  their  responses  before  then,  it  was  ultimately  decided  to  allow 
stakeholders  to  submit  responses  until  the  end  of  the  project.  45  responses  have  been 
received to the questionnaire and the two online surveys. 

The Commission organised a stock-taking workshop on 15 April 2021, 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)  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 EESC gave updates on the work they were carrying out, providing space for Member 
States to comment and provide feedback. 

The webinar on victims’ rights was held using the EU Centre of Expertise for Victims of 
Terrorism  platform  on  26  April  2021.  National  associations  and  stakeholders 
representing the interests of victims of terrorism received an invitation to participate on 
the week of 12 April. The initial approach envisaged up to four alternative sessions, but 
the  number  was  reduced  to  two  to  adapt  the  strategy  to:  a)  delays  in  the  design  of  the 
webinar, and b) the number of attendees that were expected. Ultimately, only one session 
took  place  due  to  the  low  number  of  attendees  registered  for  the  other.  A  total  of  10 
associations  and  stakeholders  representing  the  interests  of  victims  of  terrorism  in  7 
Member States (BE, ES, HR, IE, IT, PT, and SE) participated in this session. 

Targeted interviews were conducted with key stakeholders at EU and international level, 
as  well  as  with  national  stakeholders  from  the  eight  selected  Member  States.  The 
deadline  to  carry  out  interviews  was  originally  planned  for  mid-April  2021,  but  it  was 
postponed  until  early  May.  National  stakeholders  also  targeted  by  the  written 
questionnaire  or  online  surveys  were  asked  to  fill  out  the  questionnaire  before 

71 

 
 
 
 
participating in a (follow-up) interview, but they were also given the option to take part 
in  an  in-depth  interview  instead.  Some  of  them  preferred  the  latter  alternative,  an 
approach that was also prioritised towards the end of the consultation period in order to 
avoid further delays. In total, 41 interviews were carried out. 

2. LIMITATIONS 
The ability of the evaluation to assess the practical implementation of the Directive in all 
Member States  has been limited by the difficulty to  obtain additional evidence to  what 
was provided in  the transposition study. This  is  particularly the  case  for  some Member 
States, especially those where terrorism is not considered a key priority. To mitigate this 
risk, specific questions on the measures  applied because of the Directive, as well as on 
implementation  issues,  were  included  in  the  surveys  and  questionnaires  for  national 
stakeholders. This allowed the evaluation to fill many of the gaps identified at the interim 
stage.  It  also  meant  that  some  of  the  findings  are  based  on  evidence  reported  by 
stakeholders  which  has  not  been  triangulated,  also  affecting  the  robustness  of  these 
findings and limiting the ability of the report to ensure a more balanced focus on Member 
States.  

For the external study, the response from stakeholders was lower than expected. Several 
limitations  have  affected  the  information  and  feedback  provided  by  stakeholders  in  the 
consultations. 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 evaluation.    

The external study also reports that stakeholder fatigue appears to have also limited the 
interest and availability of key stakeholders to contribute to the evaluation. For example, 
another  evaluation  of  the  same  Directive  was  carried  out  simultaneously  by  the  EESC, 
and the FRA very recently carried out its research project on the Directive (on the request 
of  the  Commission).  This  meant  that  the  same  stakeholders  were  requested  to  provide 
similar feedback for three different studies within a brief period of time. 

To  ensure  the  highest  possible  number  of  responses  from  stakeholders,  ICF  sent  up  to 
three general reminders to non-responsive stakeholders, where possible in their national 
language  and  via  telephone.  For  specific  stakeholders  whose  feedback  was  considered 
particularly  crucial,  ICF  continued  to  make  efforts  to  secure  their  participation,  also 
involving the Commission. The deadline to  participate was also  extended several  times 
and ultimately until the end of May 2021. 

Another  limitation  is  the  lack  of  data  or  the  poor  quality  of  the  data  provided  by 
stakeholders  on  implementation,  but  especially  on  costs.  It  has  impacted  the  ability  to 
assess  the  practical  implementation  of  the  Directive  across  all  Member  States,  and  in 
particular  the  analysis  of  the  efficiency  of  the  Directive.  This  is  due  to  the  inability  of 
Member  States  to  provide  costs  related  to  its  implementation.  Several  reasons  were 
highlighted by Member States as to why this is the case, notably: 

 

Incremental costs are not monitored and reported. By and large, national authorities 
involved in implementing the Directive do not report and monitor counter-terrorism 
related costs as a separate item in their budgets or financial reports. Therefore, it is 

72 

 
 
 
 
 
 
 
 
 
 
difficult  to  compare  a  baseline  (prior  to  the  Directive)  and  the  incremental  costs 
incurred due to the Directive.  

  Multitude  of  institutions  involved.  The  implementation  of  the  Directive  in  each 
Member  States  is  carried  out  by  a  multitude  of  institutions,  including  legislative 
authorities,  national  security/counter-terrorism  units,  judiciary,  victim  support 
agencies and NGOs. There is no central entity which could compile and report the 
counter-terrorism related costs of all authorities involved.  

  Multiple types of costs. Costs related to the implementation of the Directive cover a 
great  number  of  needs,  such  as  transposition  costs,  infrastructure  and  equipment 
costs,  investigation  and  prosecution  costs,  cooperation  costs,  support  to  and 
protection of victims of terrorism, costs for reporting, etc. While some of these costs 
may  be  possible  to  account  for  (e.g.  victim  support  or  procurement  of  specific 
counter-terrorism equipment or software), many costs like investigation, prosecution 
or cooperation cannot  be clearly distinguished from  the regular  costs which would 
have been incurred regardless of the implementation of the Directive.  

  Shared resources. In many organisations resources are shared, e.g. a unit monitoring 
online terrorist  content would also handle online fraud, child pornography or other 
online crimes; agencies supporting victims of terrorism may also support victims of 
other crimes.   

  Scale  of  counter-terrorism  costs.  For  the  majority  of  national  authorities  involved, 
counter-terrorism  activities  represent  a  relatively  small  portion  of  their  regular 
activities. This is particularly true for Member States with few or no terrorist cases. 
As  a  result,  the  cost  of  counter-terrorism  activities  is  not  budgeted  or  reported 
separately.  A  few  exceptions  were  identified,  e.g.  the  budget  and  staff  of  the 
Directorate  General  for  Support  of  Victims  of  Terrorism  in  Spain,  or  the  Victims 
Support Finland. However, in many Member States even the support for victims of 
terrorism could not be identified, as victim support institutions also provide support 
to victims of crime in general. 

To  mitigate  the  impact  of  these  limitations,  the  ICF  carried  out  targeted  searches  to 
obtain further evidence. In the case of the eight focus Member States, ICF followed up 
with stakeholders to clarify or expand on certain aspects, where feasible. To conclude, in 
order  to  provide  an  answer  to  the  evaluation  questions  on  efficiency,  ICF  conducted  a 
qualitative  analysis  using  the  limited  data  provided,  combined  with  assumptions  on 
efforts required based on the changes adopted as a result of the Directive. Nonetheless, 
the limitations have to some extent impacted the overall assessment and triangulation of 
the evidence and, consequently, the robustness of the findings.  

73 

 
 
 
 
 
ANNEX IV: EVALUATION CRITERIA AND QUESTIONS 

Relevance 

1.  To what extent are the scope and definitions of the Directive still suitable and fit 
for  purpose  considering  the  main  current  terrorist  trends  in  the  EU  and  the 
changing nature and pattern of terrorist threats faced by Member States? 

2.  To  what  extent  are  the  minimum  rules  on  criminal  offences  (articles  4-12)  and 
sanctions in the area of terrorism, and the measures of protection of and support 
to  victims  of  terrorism  still  suitable  and  fit  for  purpose  considering  the  main 
current  terrorist  trends  and  the  changing  nature  and  pattern  of  terrorist  threats 
faced by Member States? 

3.  Is the Directive expected to remain relevant in the coming years? 

Effectiveness 

4.  How  has  the  Directive  been  implemented  in  practice,  including  in  relation  to 
exchanges  of  information  between  Member  States?  Has  it  been  implemented 
equally to all types of terrorism-related offences? 

5.  To what extent has the Directive achieved its stated objectives (with regard to all 

types of terrorism)? 

6.  Are there any factors that have contributed to or limited the effectiveness of the 
Directive,  including  to  effectively  combat  terrorism  from  a  criminal  justice 
perspective? 

Efficiency 

7.  To  what  extent  do  the  implementation  costs  and  the  benefits  of  the  Directive 

differ in the individual Member States and for the EU as a whole? 

8.  Are  the  implementation  costs  reasonable  and  proportionate  to  the  benefits?  Are 
the  costs  and  benefits  justified  and  proportionate  for  all  Member  States  and  all 
stakeholder groups, and what factors have played a role in this? 

9.  What  is  the  scope  for  simplifying  or  reducing  the  administrative  burden  of 
implementing  the  Directive  without  undermining  the  intended  objectives  of  the 
intervention? 

Coherence 

10. To what extent is the Directive coherent internally? 

11. To  what  extent  is  the  Directive  coherent  and  complementary  to  other  policy 
interventions  with  similar  objectives  (at  EU/Member  State/international  levels)? 
What  are  the  main  synergies,  inconsistencies,  gaps  or  overlaps  between  the 
Directive and the relevant EU/Member State legislative frameworks? 

74 

 
 
 
 
 
EU added value 

12. To what  extent has  the  Directive achieved European  added value  as  opposed to 

what could have been achieved at either national or the international level? 

13. What would be the most likely consequence of withdrawing the Directive? 

Impact on fundamental rights and freedoms 

14. To what extent and how does the Directive have an impact on fundamental rights 
and  freedoms  as  enshrined  in  the  EU  Charter  of  Fundamental  Rights  (the 
Charter)? What  safeguard measures  are in  place  to  ensure that  any limitation  to 
the exercise of fundamental rights is necessary, legitimate and proportionate? 

Impact on the rule of law 

15. To what extent does the Directive have an impact on the rule of law? 

Impact on the protection and assistance provided to victims of terrorism 

16. To what extent has the Directive impacted the level of protection and assistance 

afforded to victims of terrorism? 

75 

 
 
 
 
ANNEX V: INTERVENTION LOGIC 

76 

 
 
ANNEX VI: MAIN DIFFERENCES BETWEEN FRAMEWORK DECISION 2002/475/JHA AND DIRECTIVE (EU) 2017/541 

Topic 
Terrorism-
related 
criminal 
offences 

Framework Decision 2002/475/JHA 
Sets  an  obligation  for  Member  States  to  criminalise  terrorist 
offences  and  offences  related  to  a  terrorist  group  and  includes  a 
definition of these offences. 

Sets an obligation for Member States to criminalise offences related 
to  terrorist  activities,  but  it  does  not  establish  minimum  rules  for 
their  definition.  The  offences  included  are:  public  provocation  to 
commit a terrorist offence, recruitment for terrorism and training for 
terrorism. 

Inciting, aiding or abetting and attempting to commit an offence are 
made punishable. 

Only required criminalisation of terrorist financing to the extent that 
funding is  provided to  a terrorist group but  not  e.g., if provided to 
all  offences  related  to  terrorist  activities,  including  recruitment, 
training or travelling abroad for terrorism.  

Directive 2017/541/EU 
Expands  the  list  of  offences  that  Member  States  need  to  criminalise  to  also 
include: public provocation to commit a terrorist offence; receiving training for 
terrorist  purposes;  travelling  or  organising  /  facilitating  travelling  for  the 
purpose of terrorism; terrorist financing (see below) ; illegal system and illegal 
(cyber-attacks),  when  committed  against  a  critical 
data 
infrastructure information system. 

interference 

Provides  minimum  rules  concerning  the  definition  of  offences  related  to 
terrorist activities. 

Aiding  and  abetting,  inciting  and  attempting:  some  amendments  to  ensure 
consistency  and  effective  application  of  the  relevant  rules  and  to  avoid 
loopholes. 

Article  11  introduced  a  distinct  terrorist  financing  offence  consisting  of  the 
provision  or  collection  of  funds  with  the  intention  (or  in  the  knowledge)  that 
they be used to commit terrorist offences.  

Sanctions 

Sets  an  obligation  for  Member  States  to  provide  effective, 
proportionate and dissuasive criminal penalties. 

Differentiates  penalties  for  natural  persons  from  sanctions  for  legal  entities 
liable for the offences. 

Prosecution, 
investigation 
and 
adjudication 

Sets  obligations  for  Member  States  to  establish  their  jurisdiction 
over offences  

Jurisdiction  and  prosecution:  some  amendments  to  ensure  consistency  and 
effective application of the relevant rules and to avoid loopholes. 

A provision on investigative tools and confiscation was added. 

Article 21 sets obligations for Member States to ensure the prompt removal (or 
blocking)  of  online  content  constituting  a  public  provocation  to  commit  a 
terrorist offence.  

77 

 
Cooperation 
and 
exchanges  of 
information 

No  specific  provisions  on  cooperation  and  exchanges  of 
information. 

Article 22 strengthens information  sharing (in relation  to  criminal  proceedings 
on terrorist offences) and cooperation among Member States and from Member 
States to Europol and Eurojust.  

Protection 
and  support 
of victims 

Sets an obligation for Member States to protect and assist victims of 
offences  without  establishing  specific  rules  on  the  provision  of 
protection/support to victims of terrorism.  

In addition to setting the obligation to protect and assist victims of terrorism, it 
establishes  a  minimum  rules  concerning  the  assistance,  support  and  protection 
to victims of terrorism, in accordance with Directive 2012/29/EU. 

78 

 
ANNEX VII: APPROACH TO QUANTIFICATION OF COSTS 

This annex provides a description of the approach taken to quantify the costs to EU and 
national public authorities that can be attributed to the Directive.  

Costs 
The  costs  for  public  administrators  (both,  national  and  EU-level)  are  related  to 
transposition,  monitoring  and  reporting  and  can  be  subdivided  into:  one-off  costs  and 
ongoing costs. The one-off costs relate to costs that public administrators incurred when 
the  Directive  was  transposed.  Ongoing  costs  are  costs  that  public  administrators  have 
continued to face after the introduction of the Directive.   

The  costs  are  based  on  one-off  and  recurrent  costs  for  which  the  FTE  have  been 
estimated  based  on  similar  estimates  for  other  evaluations.  The  national  public 
administrators’ wages are based on Eurostat data of wages of public sector staff for each 
EU Member States. The EU wages are based on AD10 wages226. 

Costs for national public administrations 
The  recurrent  costs  of  national  public  administrations  related  to  the  transposition  and 
implementation of the Directive are related to the transposition, monitoring and reporting 
of the Directive. The methodology and assumptions followed to calculate these costs are 
summarised in Table 1227. 

Table 1 Approach to recurrent costs of public administrations 

Methodology 

Recurrent cost 
Transposing the Directive  Unit cost = No. of days per 
person  X  Average  daily 
wages for the public sector 
X No. of persons involved 

Assumptions 
2 official per MS 

5  to  10  days  per  official 
per month 

Average daily wage for the 
public  sector  per  country 
from Eurostat 

1 official per MS 

1  day  per  official  per  year 
to monitor compliance 

Total cost = Unit cost X 27 
Member States 

Unit cost = No. of days per 
person  X  Average  daily 
wages for the public sector 
X No. of persons involved 

Total cost = Unit cost X 27 
Member States 

Unit cost = No. of days per 
person  X  Average  daily 
wages for the public sector 
X No. of persons involved 

1 official per MS 

2 to 3 days per official per 
year 

Monitoring 

Reporting 

226 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 106. 
227 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 106. 

79 

 
 
 
 
                                                           
Recurrent cost 

Methodology 
Total cost = Unit cost X 27 
Member States 

Assumptions 

Costs for EU public administration   
The  recurrent  costs  of  EU  public  administration  related  to  the  transposition  and 
implementation  of  the  Directive  are  related  to  the  drafting  of  the  Directive.  The 
methodology and assumptions followed to calculate these costs are summarised in Table 
2228. 

Table 2: Approach to recurrent costs of public administrations 

Recurrent cost 
Drafting the Directive 

Methodology 
Unit cost = No. of days per 
person  X  Average  daily 
wages for the public sector 
X No. of persons involved 

Total cost = Unit cost X 27 
Member States 

Assumptions 
2 official per MS 

10  days  per  official  per 
month, for 6 months 

Average daily wage for the 
public  sector  per  country 
from the EC website 

228 ICF (2021). Evaluation of Directive 2017/541 on countering terrorism, final report, page 107. 

80