Terrorism and Political Violence

ISSN: 0954-6553 (Print) 1556-1836 (Online) Journal homepage: http://www.tandfonline.com/loi/ftpv20

The External Dimension of EU CounterTerrorism Relations: Competences, Interests, and

Institutions
Christian Kaunert
To cite this article: Christian Kaunert (2009) The External Dimension of EU Counter-Terrorism
Relations: Competences, Interests, and Institutions, Terrorism and Political Violence, 22:1,
41-61, DOI: 10.1080/09546550903409551
To link to this article: http://dx.doi.org/10.1080/09546550903409551

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Terrorism and Political Violence, 22:4161, 2010

Copyright # Taylor & Francis Group, LLC
ISSN: 0954-6553 print=1556-1836 online
DOI: 10.1080/09546550903409551

The External Dimension of EU Counter-Terrorism

Relations: Competences, Interests, and Institutions

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CHRISTIAN KAUNERT
School of English, Sociology, Politics and Contemporary History; and
European Studies Research Institute, University of Salford, Greater
Manchester, UK
Some very significant policy developments indicate supranationalisation processes
of EU external relations in counter-terrorism, even in its most significant relationship with the USA. This means that, increasingly, the USA is willing to work
with Europe through its institutionalised forumthe European Union. Thus, the
EU achieves certain recognition on the world stage in areas previously completely
unsuspectedthe high politics of counter-terrorism. This supranationalisation
process proceeds in two stages. Firstly, the construction of an Area of Freedom,
Security and Justice (AFSJ) pools a significant amount of national sovereignty
at the level of the EU through the establishment of internal EU competences. As
a side effect, however, it also constructs an institutionalised structure for external
actors, such as the U.S., to deal with. Through dealing within this institutional
setting, member states interests become defined in such a way that increasingly they
construct a European interest related to counter-terrorism.
Keywords EU area of freedom, EU counter-terrorism, external dimension of EU
counter-terrorism, judicial cooperation, police cooperation, security and justice,
transatlantic relations

Terrorism Has Long Been a Source of Friction Between the

United States and Europe.1
Many traditional terrorism scholars, such as Bruce Hoffman, have argued that the
differences in terrorism perception have had negative implications on U.S.-European
Dr. Christian Kaunert is a Lecturer in EU Politics & International Relations and a
Programme Leader of the Master (MA) in Terrorism and Security, University of Salford,
Greater Manchester, UK. He is the author of several articles on EU counter-terrorism and
internal security and his monograph, European Internal Security? Towards Supranational
Governance, is forthcoming with Manchester University Press.
The first draft of this article was presented at the SGIR=ECPR conference in Turin, and
subsequently revised for the ISA conference in San Francisco in March 2008. I would like to
thank participants at both conferences for their valuable comments. In particular, I would like
to thank Sarah Leonard, John Occhipinti, Mark Rhinard, Thierry Balzacq, Oldrich Bures,
and Raphael Bossong. In addition, I would like to thank the European Studies Research Institute at the University of Salford and the British Academy (award OCG-48623) for their generous financial contribution to this work. The usual disclaimer applies.
Address correspondence to Christian Kaunert, School of English, Sociology, Politics and
Contemporary History, University of Salford, Crescent House, the Crescent, Salford M5
4WT, UK. E-mail: c.kaunert@salford.ac.uk

41

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C. Kaunert

counter-terrorism relations. Yet, a survey conducted by the German Marshall Fund

in 2004 seems to cast doubt on this analysis.2 Both Europeans (71%) and Americans
(76%) share concerns about international terrorism, and thus have a similar perception of the threat. However, they differ markedly in their response to terrorism;
Americans prefer a military response (54%), whereas Europeans agree with this
option only to a more limited extent (28%). Consequently, it is more likely for
America to achieve a positive working relationship with Europe on counterterrorism issues that are of a non-military nature.
For the European Union (EU), the external relations with the United States
regarding the counter-terrorism agenda are of key importance to establish whether
it can become an actor on the international level. While the EU-U.S. relationship
in general has been characterised as a competitive cooperation3 notably in their
economic, political, and security relationship, this article makes the argument that
in non-military areas related to counter-terrorism, the relationship has been mutually
beneficial. While the U.S. derived important substantial benefits from dealing with
European states through the European Union institutionalised framework, the EU
gained recognition as an international actor from the global superpower.
Therefore, this article argues that there have been some very significant developments which indicate supranationalisation processes of EU external relations
and foreign policy, even in its most significant relationship with the USA. This
means that, increasingly, the USA is willing to work with Europe through its
institutionalised forumthe European Union. Thus, the EU achieves a certain
recognition on the world stage in areas previously completely unsuspectedhigh
politics and security. This supranationalisation process proceeds in two stages.
Firstly, the construction of an Area of Freedom, Security and Justice (AFSJ)
pools a significant amount of national sovereignty at the level of the EU through
the establishment of internal EU competences. As a side effect, however, it also
constructs an institutionalised structure for external actors, such as the U.S., to
deal with. Through dealing within this institutional setting, member interests
become defined in such a way that increasingly they construct a European
interest related to counter-terrorism.
The article will proceed in four stages. The first section will analyse the concept
of a European interest within the debate amongst scholars of European Foreign
Policy and will provide a constructivist framework for analysis. The second section
will examine how developments in the AFSJ have led to a process of constructing a
European interest in EU counter-terrorism. The third section will analyse this process within the case study of EU-U.S. counter-terrorism relations. Finally, the article
will conclude that the process of constructing a European interest is discernable in
EU-U.S. counter-terrorism relations.

European Foreign Policy: The Process of Constructing European Interests

Through Internal Competences
The aim of this section is to critically analyse the concept of a European interest
within the debate amongst scholars of European Foreign Policy (EFP). The EU has
embarked upon creating an EFP since the 1970s with European Political
Cooperation (EPC), and more specifically since the Treaty of Maastricht in 1992
which brought foreign policy under the umbrella of the treaties. This section will
provide a constructivist framework for analysing member states interests in their

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43

external relations with external actors, which will be important in order to critically
examine the counter-terrorism relations between the EU and the U.S.
The scholarly debate over interests in EFP falls within the dispute between (a)
structuralist or (b) individualist scholars in their understanding of the causes for
foreign policy change.4 This article suggests that the existence of national interests,
or rather the absence of a complementary European interest, has been seen as a
key obstacle to the construction of a truly European Foreign Policy. Stanley
Hoffmann5 forcefully underlined that nations would prefer to keep control of their
interests rather than integrating such significant matters. The so-called logic of
diversity would put a break on European integration in high politics security
areas. Consequently, ultimately, national interests would prevail over a European
interest, if one were to ever exist. The problematique of the national interest
has puzzled both individualist and structuralist EFP approaches.
However, this article takes a broad understanding of foreign policy in a
European context. Conventionally, the EU structures place foreign policy into
the Second Pillar of the European Unionthe Common Foreign and Security Policy
(CFSP). Yet, even the EU treaties recognise that some of the EUs foreign policy is
conducted through either the First Pillar (the European Community) or the Third
Pillar (Justice and Home Affairs cooperation), but call this external relations. This
article will employ Christopher Hills6 definition of foreign policy: the sum of all
official external relations conducted by an independent actor (usually a state) in
international relations. Counter-terrorism is, of course, a broad term which can
encompass measures across all three pillars, from trade sanction of state sponsors
of terrorism (in pillar 1), to the implementation of UN Security Council decisions
(pillar 2 and 1 combined), to police and judicial cooperation (pillar 3). Therefore,
the debate on the external relations of the European Union in counter-terrorism,
despite its cross-pillar location, nonetheless tells an important story about the
foreign policy of the European Union (for instance with the USA) more generally.
Nonetheless, the usual caveats applythe conclusions can only be generalised to
foreign policy actions related to the pillar concerned.
What are the main arguments in the EFP scholarly debate? Firstly, individualist scholars of the European Union-as-Actor approach concentrate on the
impact of Europe on world politics.7 This approach aims to identify what kind
of an actor the EU is on the global level, thereby relating this research strand
back to the conception by Duchene8 of Europe as a civilian power. The latter
stresses the soft power exercised by the EU, which extend its internal virtues
and values through politico-economic9 and normative means.10 This approach
has significantly contributed to the discipline, particularly to the understanding
of the EUs role in global politics. While scholars may not always find a coherent
policy outcome in the EFP, it would be empirically careless to neglect the role of
the EU on the international stage.
However, understandably, the Europe-as-Actor approach defines the problem
of the absence of a European interest away by assuming that, despite the fact that
there are numerous national interests, Europe does act like an actor on the international stage in certain settings and under certain conditions. While this is empirically
observable, it does not answer the question as to whether there is a Europeanforeign policy based on a common interest. Policy coherence, for understandable
reasons, is not a key determinant in this particular approach. European becomes
European by definitionbecause Europe acts, it is an actor. Consequently, it

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C. Kaunert

sidesteps the legal (and realist) understanding that only states or entities with a legal
personality can be an actor in the international system.
Therefore, can the EU act in counter-terrorism relations with external partners?
The legal basis for external relations activities in Title IV TEC (first pillar) is mostly
implicit in the EUs internal legal competences. According to the EU treaties, first
pillar actions can be derived expressly through treaty articles, such as Article 133
EC, which grants the European Community the power to adopt treaties concerning
trade policy with third countries. However, according to European Court of Justice
(ECJ) Jurisprudence, legal competences can also be implicitly derived from the EUs
internal competences11the doctrine of implied powers, which was derived from
the AETR case.
Originally, the treaties of the EU did not contain many express provisions that
would provide powers to the EU=EC to conclude international agreements with
third countries. Only in 1970, the Commission brought the AETR case12 to the
European Court of Justice. This case was named after the European agreement concerning the work of crews of vehicles engaged in international road transport. The
ECJ reasoned in two parts: (1) Article 281 EC provided the European Community
with a legal personality, enabling it in principle to act on the international stage,
and (2) authority to conclude international agreements is not only derived from
the express powers, but also from the measures of internal competences that would
need to be exercised; after having exercised internal competences to agree on certain
measures, the EC would have to have the capacity to defend those measures
internationally, thereby enabling the EC to enter into international agreements.
The Lisbon Treaty foresees an EU legal personality, as well as the abolition of
the EU pillar structure.13 However, the pre-Lisbon legal framework for external
relations activities in the third pillar remains more complex than that concerning
the first pillar.14 The procedure used to conclude agreements on third pillar matters
with third countries is the same as in the second pillar of the EU. Article 38 TEU
stipulates that agreements listed in Article 24 TEU, which is a second pillar provision, can also cover matters in the third pillar.15 Thus, Monar16 suggests an implicit
intention to provide the EU with an element of actorness in the third pillar at the
international level. This informs decision-making in the following way:
1. If an agreement is deemed necessary, the Council may authorise the Presidency,
assisted by the Commission, to open negotiations; agreements are concluded by
the Council by way of Presidency recommendation.
2. If an agreement for internal matter requires unanimity in the Council, the international agreement follows in parallel; if an internal matter requires qualified
majority vote, the international agreement follows again.
3. Agreements of this nature are binding on EU institutions, and on member states,
unless they state in the Council that they have to comply with the requirements of
their own constitutional procedure.
Despite the Lisbon Treaty (2007),17 the construction of direct internal competences for the European Union is a political precondition in the establishment of
the European Union as an actor on the international scene18 in the area
of counter-terrorism. In the first pillar, it is only through the legal construction of
internal legal competences that the EU becomes an actor on the international stage
in relation to counter-terrorism. However, even in the third pillar, where the EU per
se does not have a clear legal personality, the political consensus follows the first

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The External Dimension of EU Counter-Terrorism Relations

45

pillara political parallelism between the first and the third pillar. With the establishment of internal legal competences, the EU is willing to conclude agreements
on counter-terrorism even in the third pillar. Consequently, this article, in agreement
with this, will use this logical reasoning henceforth.
Secondly, structuralist scholars of European Foreign Policy provide an explanation for member states behaviour as actors. These actors are located in a complex set
of interdependencies, institutions, and structures.19 Member states behaviour is
altered, according to these scholars, as a result of operating in a European institutional context. Institutional structures can include supranational institutions like
the European Commission or the Council Secretariat.20 The merits of this approach
derive from its empirical observation that member statesthough still very significant
are not the only important actors any more. International institutions, especially
European institutions, are increasingly gaining in importance. Bruter21 suggests that
European diplomacy increasingly is not confined to a state structure any longerthe
external delegations of the European Commission work like diplomatic missions.
Current empirical trends have strengthened these developments; the Lisbon Treaty
even provides for an establishment of a European Foreign Service incorporating these
delegations under a European Foreign Minister.22 As a consequence, member states
could be constrained by institutional structures, and in addition, may even change
their ways voluntarily.
Ergo, structuralist scholars examine how member states behaviour is altered
through European institutions and structures. Again, the determining factor for this
approach is behaviourthat of member statesand not interests. However, this
approach opens avenues for future research into interests. If European institutions
and structures altered not just the behaviour of member states, but also shaped
member states interests to increasingly become more European?
This article will use a constructivist institutionalist framework. EU member states
are located in a complex set of interdependencies, institutions, and structures. However, rather than analysing member states behaviour, it will analyse and scrutinise the
concept of the process of constructing a European interest within the institutional
structures provided by the EU by drawing on constructivist International Relations
scholars.23 Katzenstein24 argues that the cultural and institutional elements of states
environments shape national (security) interests and thus their respective policies.
Consequently, applied to the EU, interest formation needs to be seen as endogenous of institutionalised cooperation; thus, partly resulting from the cooperation
itself. Member states do not just use European institutions in the pursuit of their
interests, but their interests are influenced and, in fact, reconstituted by them
through norms. The latter, which form a standard of appropriate behaviour, are
established in the social interaction of EU member states in the institutionalised
structures of the EU and in the interaction with those structures: (1) the European
Commission, (2) the Council of Ministers and the European Council, (3) the
European Parliament, and (4) the European Court of Justice. These norms, through
a reasoning process, have a direct influence over the interests of member states,
initially derived from a domestic context. The latter point has been sufficiently
emphasised by Moravcsik.25 However, through this influence of norms on interests,
the latter may change empirically, and, at times, may even converge around a
European interest.
The following section will proceed to establish empirically how norms constitute
interests in the context of EU external relations in counter-terrorism. This interest

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C. Kaunert

construction is dependent on the construction of internal EU competences. Methodologically, this can be traced in a historical-sociological way. Increasingly, the
AFSJ has developed a strong external dimension.26

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The AFSJThe Process of Constructing European Interests Through EU

Internal Competences
The Area of Freedom, Security and Justice (AFSJ) experienced an extraordinary
dynamism as a special regime of European governance,27 in particular since 1999.
The following section will analyse the changing norms in the AFSJ through a continuous construction of new internal EU competences. These internal competences,
as argued in the section above, are crucial in the establishment of external relations
related to the AFSJ. Only after the establishment of internal EU competences can
the EU even start to negotiate its external relations in counter-terrorism, and thus
set the process of constructing European interests in motion.
Maastricht
The Intergovernmental Conferences (IGC) on Economic and Monetary Union and
on the political union prepared the Maastricht Treaty, which established the area of
Justice and Home Affairs (JHA). The Treaty on European Union (TEU) created a
new legal concept, the so-called nine questions of common interest, which are: (1)
asylum policy; (2) external border control; (3) immigration (entry, circulation, stay,
and fight against illegal immigration); (4) fight against drugs; (5) against international crime; (6) judicial cooperation in civil matters; (7) in criminal matters; (8) customs cooperation; and (9) police cooperation. Effectively, however, these areas of
common interest only brought existing forms of intergovernmental cooperation
under the umbrella of the EU.28
However, the establishment of these internal competences created spill-overs29
into external actions and foreign policy of the European Union. As discussed before,
the external powers created by these new competences were of an implied character
there are no express provisions to conclude international agreements or actions in
international organisations.30 According to Eeckhout,31 Title IV policies are less comprehensive than EU powers in trade agreements. Through the construction of internal
EU powers, the EU also receives the implied competences to conclude agreements on
policies concerning visas, asylum, and immigration. With the adoption of any international agreements, the EU agreements also receive precedence over any potential
national agreements.
Amsterdam
The Treaty of Amsterdam created the Area of Freedom, Justice and Security
(AFSJ).32 While the Treaty of Maastricht had only described common areas of
interests in which cooperation could happen in order to attain other Community
objectives, the Treaty of Amsterdam made the concept of Freedom, Security and
Justice an objective in itself for the EU.33 In addition, the notable achievement
of this treaty was the inclusion of Schengen into the framework of the EU.
Regarding the use of legal instruments, the Treaty of Amsterdam brought about
the most significant change to date, in particular regarding asylum and migration

The External Dimension of EU Counter-Terrorism Relations

47

policies.34 Transferred into the first pillar, the Council was then enabled to adopt the
same legal instruments, such as directives or regulations, as in the rest of the first pillar. Consequently, one significant problem regarding the effectiveness of the Treaty
of Maastricht had been changed. This is in contrast to the newly created third pillar
legal instruments, such as common positions, conventions, framework decisions
(similar to directives), and decisions.
The legislative procedure changed in the following way:35
The Council acts unanimously in the consultation procedure with the European
Parliament;
. The legal right of initiative is with both the Commission and individual Member
States;
. From 1 May 2004, for the first pillar competences asylum and migration, the
treaty establishes the sole right of legal initiative for the Commission;
. The Council could then also decide by unanimity to move towards co-decision
with the European Parliament, and towards qualified majority voting as the
decision-making mechanism in the Council.

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The creation of further internal EU competences, in particular regarding

counter-terrorism and other third-pillar matters, also politically constructed, further
implied powers by the EU in its external relations with third countries, such as the
USA. The EU can now conclude international agreements on third pillar matters,36
including counter-terrorism agreements. Thus, according to Monar,37 in the
context of the third pillar, the Council can make use of the CFSP provisions enabling
it to negotiate and conclude agreements with third countries or international
organisations.
The Tampere Programme, 19992004
The start of the Finnish Presidency on 1 July 1999 marked one of the most critical
junctures in the history of the Area of Freedom, Security and Justice (AFSJ). Significantly, the Tampere Council summit gave the EU a policy direction to what had
been hitherto an incoherent European approach. The conclusions of the summit38
articulate the concept of the EU as an actor on the international scene, a dimension
which had hitherto been missing from the AFSJ.
.
.

A goal of a partnership with countries of origin of migration;

Part D calls for stronger external action, which needs to be read with point 59,
which calls for all competences and instruments at the disposal of the EU to be
used to build the Area of Freedom, Security and Justice.

Thus, in general, the political impetus moved very strongly onwards from
Amsterdam to Tampere. Until Tampere, the normative debate had been structured
between those member states wishing to preserve national sovereignty and those
wishing to pool sovereignty at the EU level. Secondly, there was also some development on the axis of what the aims and the purpose of such legislation would be.
Here, the evolution ranged from Justice and Home Affairs (JHA) as a flanking
measure of the Single Market to a free-standing Area of Freedom, Justice and
Security (AFSJ). Significantly, however, this AFSJ would need to be built with all
internal competences and instruments at the disposal of the EU in the area of
external action. Policy-makers clearly see the importance to build the AFSJ by

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C. Kaunert

Figure 1. Evolution from JHA to AFSJIncreasing development of links to EFP.

means of foreign policy as well as internal competences. This includes external action
related to asylum and migration, as well as crime and terrorism. Thus, as the figure
above indicates, while JHA was linked closely to the Single Market, the AFSJ
becomes increasingly linked to EFP.
In conclusion, this section has used a constructivist structuralist framework by
employing a historical-sociological genealogy of development in the AFSJ. The
section demonstrated that the political norms of the elites of the EU member states
moved from the preserving of national sovereignty in areas of Justice and Home
Affairs to the construction of internal competences in the Area of Freedom, Security
and Justice. As argued in the previous section, the construction of direct competences for the European Union is a conditio sine qua non in the establishment of
the European Union as an actor on the international scene. Only through this legal
construction of the AFSJ does the EU become an actor. The Tampere Council
confirmed this argument itself in the introductory rationale of the conclusions, as
well as explicitly in part D and point 59. Thus, the developments in the AFSJ
contribute to the construction of a European interest. The next section will
analyse this in the significant case of EU-U.S. counter-terrorism relations.

The Case Study of EU-U.S. Counter-Terrorism Relations:

An Absent Friend?
Amongst scholars of EU counter-terrorism there are diverging opinions as to which
extent EU competences matter in the fight against terrorism.39 On the one hand, the
EU is characterised as a paper tiger,40 and not an effective counter-terrorism
device. On the other hand, scholars point out that the EU has taken great strides
forward in increasing integration and encouraging cooperation between
member-states since 9=11.41 Zimmermann42 asserted that on 21 September 2001,
the Union prioritised the fight against terrorism, and accelerated the development
and implementation of measures deliberated on prior to the events of 9=11. Yet,
if one assesses the capabilities of the EU, they need to be put in perspective. Zimmermann43 makes an important caveat to all EU action in the field of counter-terrorism:
. . . the Union does not have a normal government at the supranational level with
all the requisite powers, competencies, and hence, capabilities of regular government;
it is not a federal European state.

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Thus, EU counter-terrorism policy has received significant scholarly attention

recently.44 The Journal of Common Market Studies even published a special issue
on the topic in January 200845 edited by Geoffrey Edwards and Christopher Meyer.
In the introductory article, it is claimed that the entire governance of the European
Union has been changed through its responses to international terrorism, which is
not too surprising if one believes the European security scholars who frequently cite
terrorism as one of the most salient security threats across Europe amongst national
publics. This is also underlined by the aforementioned German Marshall Fund
survey of 2004. This leads Edwards and Meyer to present the puzzle that46 the
politics of counter-terrorism have contributed to the blurring of differences between
the so-called three pillars established by the Maastricht Treaty, but that larger
member states prefer to deal with the US on a bilateral basis rather than through
the EU.47
However, empirically, European Union external action with the U.S. regarding
counter-terrorism could be argued to have received unprecedented attention after the
9=11 attacks. Never before had the United States of America agreed to any international agreements with the European Union.48 Consequently, the question of actorness of the EU in the external relations of counter-terrorism has been crucially
under-researched. Daniel Keohane calls this area even the absent friend.49
The purpose of this section is to examine the role of the EU as an actor in its
counter-terrorism relations with the USA, in particular the construction of a process
to define a European interest. September 11 clearly created a special impetus for
developments in the AFSJ,50 both internally and externally. Consequently, EU-U.S.
counter-terrorism relations acquired a crucial significance. The EU, politically in
order to achieve a consensus, had to establish internal counter-terrorist instruments
first in order to be able to establish fully functioning counter-terrorism relations with
the U.S., which had traditionally always relied on bilateral counter-terrorism
relations with Europe.51 In addition to the United Kingdom, the U.S. had also
established close bilateral counter-terrorism relations with France, Germany, and
the Netherlands. In order for the EU to provide for a better platform for the
U.S. to deal with Europe more efficiently, internal EU competences had to be
established first.
The following section has two parts. Firstly, EU internal counter-terrorism
actions will be examined in order to empirically demonstrate the theoretical argument that the creation of internal EU legal competences is a necessary political
pre-condition for external action. Secondly, EU external action will be examined
in the case of EU-U.S. counter-terrorism relations, which will substantiate some
evidence of an ongoing process in constructing a European interest in counterterrorism.
The Creation of Internal Competences and Legal Instruments in EU
Counter-Terrorism
Many European countries fought terrorism within their borders long before
Al Qaeda; Spain fought the Basque ETA movement, Britain fought the Irish
Republican Army, Italy the Red Brigades, and Germany fought the Red Army
Faction (RAF). Thus, European cooperation to counter-terrorism became established within the framework of the TREVI (Terrorism, Radicalism, Extremism,
Violence, and Internationalism) Group, and was formed by European police officials

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C. Kaunert

to exchange information and provide mutual legal assistance on terrorism and

related international crimes.52 These cooperation activities were subsequently
approved by the Ministers of Justice and Home Affairs of the European Economic
Community. Ultimately, these forms of cooperation thus served as a laboratory for
cooperation which was later codified under the Treaty of European Union in Maastricht 1992, and amended by the Treaty of Amsterdam 1997, and Nice 2001.
The following three areas were of vital importance to create EU competences,
which could then facilitate EU-U.S. counter-terrorism relation: (1) police cooperation, (2) criminalising terrorism, and (3) extradition. As discussed in the previous
section, these internal legal competences create political consensus for the EU in
its external relations regarding these matters. It is a political pre-condition that
the EU has created an internal policy on the matters first.53 This is due to parallelism
of first pillar and third pillar counter-terrorism measures. First pillar counterterrorism measures are built on the implied powers derived from the ECJ verdict
in the AETR case. Therefore, before any external action in counter-terrorism with
the USA can be taken, these measures need to be first agreed to at the EU level.
The European Union derives most of its current internal legal competences in
the area of police cooperation from the revisions of the Treaty of Maastricht through
the Treaty of Amsterdam. According to Article 29 EU, the objectives of the third
pillar are to be achieved through:54
closer cooperation between police forces, customs authorities, and other
competent authorities in the Member States;
. the European Police Office (Europol).
.

However, a limited competence for Europol was already established under the
Treaty of Maastricht,55 and thus the agency started limited operations in The Hague
in the form of a drugs unit in 1994. In 1995, the Europol Convention was formally
drawn up in Brussels, which came into force on 1 October 1998 after full ratification.
The legal mandate of the Convention included:
to improve the effective cooperation among police authorities of the member
states to prevent and combat serious international organised crime;
. to investigate criminal areas, such as drug trafficking and other forms of crime, as
well as terrorism;
. In 2002, the mandate was expanded to deal with all serious forms of crime.
.

Yet, despite its clear value in combating terrorism, Europols newfound fame by
appearing in Hollywoods Oceans Twelve movie,56 is probably slightly overvalued
given its lack of executive powers and autonomous investigative powers.
September 11, on the other hand, had a significant impact on policy makers
in Europe and America. It had two effects in Europe. Firstly, the fundamentalist
terrorists could strike in Europe as wellIslamist terrorism is a global problem.
In general, Al Qaeda aims for coordinated attacks with massive casualties.57 It
has between 5,000 and 12,000 members in at least 24 groups.58 These groups
are scattered all over the world, and this number is only related to the recognised
groups. Consequently, the European Union has had to act internally in order to
create the competences necessary to protect Europe from this particular terrorist
threat.
Europol reacted immediately to the 9=11 attacks.59 An Operational Centre was
created to provide a 24 hours service for the exchange of information. In addition,

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51

on 15 November 2001, a specialised counter-terrorist unit became fully operational,

with experts and liaison officers from police and intelligence services of the member
states, in order to (1) collect relevant counter-terrorist information and intelligence,
(2) analyse the information and create a strategy, and (3) formulate a threat assessment. Currently, there are 15 Europol permanent staff and 10 seconded staff members working on terrorism, as well as 22 analysts.
The EU Commission also responded very quickly to the attacks of September 11
with legislative proposals. In speaking to the European Parliament, the Commissioner responsible for the Area of Freedom, Security and Justice (formerly better
known as Justice and Home Affairs), Antonio Vitorino, remarked:60 Terrorist acts
are committed by international groups with bases in several countries, exploiting
loopholes in the law created by the geographical limits on investigators and often
enjoying substantial financial and logistical resources. Terrorists take advantage of
differences in legal treatment between States, in particular where the offence is not
treated as such by national law, and that is where we have to begin. Vitorino made
the link that was established earlier very clear. In order to combat terrorism, EU
measures were vital. What he did not say was the fact that these legislative proposals
were also necessary for the EU to be able to conclude international agreements with
the USA.
Subsequently, a special EU Council of Justice and Home Affairs ministers on
terrorism met on 21 September 200161 and developed a far-reaching action plan.
In this document measures in five areas are proposed: (1) police and judicial cooperation enhancement, (2) the development of international legal instruments, (3) putting an end to the funding of terrorism, (4) strengthening air security, and (5)
coordinating the EUs global action. Especially the latter point points clearly to
the desire to construct an international role for the European Union. Dubois62 thus
asserts that the events of 11 September have indirectly allowed the EU to become a
consistent actor in the fight against terrorism. Due to limitations of space, this
article will deal with the two measures it considers the most important onesthe
definition of terrorism and the European arrest warrant.
Firstly, the Framework Decision on Combating Terrorism is important. The
European Commission presented a proposal to that effect to the aforementioned
special meeting of EU Justice and Home Affairs ministers in Brussels on countries
in September 2001. It intended to put in place a definition of terrorism, alongside
penalties and sanctions that come on extradition procedures and mechanisms for
exchanging information. Effectively, this is the first time such a definition has been
agreed to on a supranational level, especially in the light that a number of member
states did not even have definitions of terrorism.63
The EUs Framework Decision on Combating Terrorism, agreed to politically in
December 2001, firstly defines what is meant by terrorist acts in three parts: (1) the
context of an action; (2) the aim of the action; and (3) the specific acts being
committed. They must be intentional acts . . . which given their nature or context,
may serve to damage a country or an international organisation. These acts must
be committed with the aim of either seriously intimidating a population or unduly
compelling a Government or international organisation to act or fail to act, or
seriously destabilizing or destroying the fundamental political, constitutional
economic or social structures of a country or international organisation.64 In
addition, a list defines eight specific acts. The definition also covers behaviours
which may contribute to terrorist acts in third countries.

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The Framework Decision on Combating Terrorism thus ensures that terrorist

offences are punished by heavier sentences than common criminal offences in all
EU member states would have provided for. Furthermore, it approximates the level
of sanctions between member states according to the principle that sentences have to
be both proportional and dissuasive. Member states are legally responsible to act in
cases of terrorist incidents that take place on their own territory or that are
committed against their own people. As pointed out by Dubois,65 this Framework
Decision is favourable for EU-U.S. cooperation in the fight against terrorism as this
offence is now recognized as a criminal offence on both sides of the Atlantic.
However, this framework decision also enables the EU to conclude criminal justice
agreements with third countries, such as the USA.
Secondly, the European Arrest Warrant (EAW) is highly significant. It was
politically adopted by the Laeken Council summit on 1415 December 2001, with
the formal legal adoption in June 2002 under the Spanish presidency. This proposal
for the policy had already been under preparation for about two years before it was
launched.66 Vitorino initially intended to launch it under the Spanish Presidency in
the first half of 2002 due to Spains strong support of the issue in order to solve its
own problems with the ETA terrorists. Officials in the Commission67 confirmed the
political decision to bring the proposal of the EAW forward. The timing was crucial
in order to construct the EU response to the war on terror. In addition, the
European Commission and its Commissioner Vitorino proposed action which
clearly demonstrated its support for the United States and its war on terror.68
The Commissions proposal went much further than the plans to simplify extradition law within the EU based on the 1999 conclusions of the Tampere European
Council.69 Firstly, the EAW abolishes the term extradition, and replaces it with
the term surrender.70 The national judicial authorities will be responsible for its
enforcement, thus virtually excluding political decisions by excluding the national
executives from the decision-making process. Secondly, the legal effect of this
measure is subject to the jurisdiction of the European Court of Justice if member
states sign a declaration approving of this. This may be limited, but is an improvement to the previous legal position. Thirdly, the EAW abolishes the principle of
double criminality for serious offences.71
Again, the importance of the European Arrest Warrant for the USA derives
from the ECJ Jurisprudence and the parallelism between first and third pillar
counter-terrorism measures which are built on implied powers. The fact that the
EU has now agreed on an EU-wide extradition policy enabled the Commission
politically to start negotiations on behalf of the Council with the USA in its extradition agreements. Without the EAW, the political consensus to conclude an international extradition agreement between the EU and the USA would not have
existed. For the EU, this would have meant that it might have become sidelined
in future counter-terrorism agreements, whereas the U.S. would have needed to
conclude 27 bilateral agreements with the current 27 member states of the EU
instead.
In addition, the EU also invested a great deal of effort into strengthening its
counter-terrorist financing (CTF) capacities through the transposition of globally
binding standards into EU legislation in order to undercut terrorist funding. These
standards were developed within the international fora of the United Nations (UN)
and the Financial Action Task Force (FATF) since 2001. Accordingly, the EU
developed a large number of legislative instruments, operational measures, and

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institutional venues across all three pillars. Although terrorism and money laundering have long been part of the EU internal security agenda, an EU specific
commitment on CTF was only in its infancy in the pre-2001 period. Especially
the Commission utilised its expertise and competence from dealing with money
laundering in order to initiate legislation related to terrorist financing. Amongst
these are included the Protocol to the Convention on Mutual Assistance in
Criminal Matters, which provides for the exchange of information between
Member States concerning bank accounts held by any person who is subject to
criminal investigations. The protocol represents a considerable improvement of
cooperation in the fight against economic and financial crime. Furthermore,
the Commission pushed also for the adoption of the so-called second
anti-money laundering Directive. The second anti-money laundering Directive
was adopted at the conciliation stage in December 2001 and thereby amended
the earlier 1991 Directive. The 2005 third anti-money laundering Directive,
which repealed the previous two directives, also made the title terrorist financing more explicit, and, once again, reaffirmed the EU objective to comply with
FATF standards. In addition, it also integrated a number of associated measures
aimed at implementing the FATF requirements: (1) Regulation (EC) No
1889=2005 on the control of cash entering or leaving the Community (which
implements SR IX on cash couriers); (2) Regulation (EC) No 1781=2006 on information on the payer accompanying transfers of funds; and (3) Directive 2007=64=
EC on payment services (PSD) in the internal market, which provides the legal
foundation for the creation of an EU-wide single market for payments.
Finally, following the Council Decision 2000=642=JHA of 17 October 2000 concerning arrangements for cooperation between Financial Intelligence Units (FIUs)
of the EU member states, the Commission launched the FIU.Net initiative, an
EU-wide network of all national FIUs aimed at sharing information on terrorist
funding in a secure environment and at supporting the cooperation between the various FIUs. In addition, the Commission set up a forum for discussion, the so-called
EU FIUs Platform, aimed at enabling the EU FIUs to exchange views and experiences on technical issues. The FIU.NET project is co-financed by the Commission
for a period of two years until the end of 2009. The Netherlands are the contracting
party and co-financing is provided by Finland, Germany, Romania, the UK, France,
Greece, and Italy. The Board of Partners of the projects is formed by representatives
of these eight member states. By May 2009, 18 EU member states FIUs have been
connected to the FIU.NET and four are in the process of being connected. The
Counter-Terrorism Coordinator expects that in total 22 FIUs will be connected
before August 2009.
In conclusion, this section demonstrated the fact that the EU made significant
progress in establishing internal counter-terrorist instruments. This was a necessary
first step in order to facilitate counter-terrorism relations with the U.S. While the
main aim of these different legislative and operational developments was to protect
Europe from the international terrorist threat, U.S. pressure was such that it also
provided a necessary step in order to facilitate cooperation on both sides of the
Atlantic. In fact, both sides would benefit from this cooperation; the EU could be
recognised as an international actor by the only remaining world superpower and
would be at the centre of all future counter-terrorism policy, and the USA would
be able to deal with Europe more effectively than with 27 member states on a
bilateral basis.

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EU-U.S. Counter-Terrorism Policy After 9/11

The aim of this section is to demonstrate the link between the adoption of internal
EU counter-terrorism measures and the counter-terrorism relations between the EU
and the U.S. As previously discussed, the construction of direct competences for the
European Union in counter-terrorism is a political requirement due to the parallelism
in first and third pillar counter-terrorism measures in order to establish the European
Union as an actor on the international scene. Thus, this institutionalised cooperation
in the EU enables a process of shaping a European interest. This process derives
from the fact that some areas of counter-terrorism policy are now legislated at the
EU level. Thus, member states are encouraged strongly to adapt their national
interests in the EU institutional framework, which gradually shapes these interests
in such a way as to construct a future European interest.
The September 11 terrorist threat had clear implications on Europes relationship with the USA. Since 9=11, European foreign policy with the USA has been most
fragile and vulnerable. The 11 September 2001 terrorist attacks on the U.S.
homeland were seen by many analysts as a turning point in U.S. history.72 This incident has since been the worst event of modern international terrorismnearly 3,000
people were killed. It was carried out by 19 Al Qaeda terrorists on a martyrdom
mission.73 While the USA had previously been the target of international terrorism,
the American homeland had never suffered any comparable terrorist strike on this
scale, with many commentators drawing parallels to the Japanese attack on Pearl
Harbor on 7 December 1941. Consequently, the political mood in the USA shifted
significantly. In October 2001, the USA PATRIOT Act, intended to make the
American Homeland safer, was passed. Given the importance of the changes
taking place in the USA, scholars expected this to influence American foreign policy,
and thus its relations with the rest of the world.
A platform for the War on Terror was first established with Bushs act of war
speech.74 In this, he declared: The deliberate and deadly attacks, which were carried
out yesterday against our country, were more than acts of terror. They were acts of
war. . . . This enemy attacked not just our people but all freedom-loving people everywhere in the world. . . . We will rally the world. . . . This will be a monumental struggle
of good versus evil, but good will prevail. This demonstrates the significant pressure
for countries to join the war on terror. Bush defined appropriate action in terms of
fighting in the war against terrorism, and made an even stronger case by distinguishing between good and evil. Later, Bush75 enforced this by stating that you
are either with us or against us. Thus, the political pressure is such that the appropriate course of action became defined in its support of the U.S. Germanys Chancellor Gerhard Schroeder called on European nations to band together within the
framework of the EU to fight global terrorism:76 Only if we put in place common
policing and judicial resources can we ensure that there will be no hideouts for terrorists and other criminals in the European Union . . . We are ready to make Europe into
an international player with global influence. Consequently, Europe was meant to
become a true player on the international scene.
The first attempt to link the construction of internal EU counter-terrorism
competences and the construction of an international role for the EU occurred
shortly after 9=11. The Director-General of the Commission, Fortescue,77 had
been part of an EU delegation meeting on 21 September 2001 with Colin
Powell, the U.S. Secretary of State, in Washington the week after the events

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of September 11. As a result of the terror attacks, Sir Fortescue mentioned the
fact that the EU and the U.S. could be drawn together by cooperating. In a
personal interview, the late Sir Fortescue confirmed that it was part of the
Commissions strategy to work closely with the USA also in order to enhance
internal competences for the EU. Furthermore, bilateral extradition arrangements between EU member states and the U.S. could be replaced by an
EU-wide system. Moreover, a letter was sent to Washington asking President
Bush how the EU could assist America.
On the one hand, Bushs reply in the form of a five-page letter provided a list of 47
demands covering judicial and diplomatic cooperation, data protection, the proliferation of biological weapons and other issues, and hence improving cooperation with the
European Union in fighting terrorism. The U.S. would ask Europol to pass on to the
United States all information, including information about individuals, which it may
have on terrorist cases and subsequently expand this cooperation to include criminal
cases.78 Extradition processes from the EU to America should also be streamlined,
the letter requested. In addition, the letter asked the Union to ease extradition procedures internally, which was crucial to enable the EU to agree to an international agreement with the U.S. on extradition. Again, welcome support for the Commissions
cause. Leonello Gabrici, the Commissions Justice and Home Affairs spokesman,
argued that the things that we are doing against terrorism . . . will simplify life for
the Europeans and make it easier for us to co-operate with the United States.79
Wyn Rees80 points out the five issue areas of EU-U.S. cooperation following the
meeting:81 (1) closer police and law enforcement cooperation, (2) judicial cooperation, particularly on extradition matters, (3) information sharing of criminal databases, (4) cooperation over border and transport security, and (5) the targeting of
terrorist financing. Despite the significance of all of these areas for the practical
cooperation between the EU and the U.S., this article will deal mainly with extradition and police and law enforcement matters in order to improve the clarity of the
argument.82 Nonetheless, it needs to be recognised that the same patterns detected
for these matters, are equally true for all the other four of the five areas.
With regards to police and law enforcement, the U.S. had wanted to cooperate
closely with the EU for quite some time83 due to the recognition that it was possible
to achieve efficiency gains in sharing data with the entire entity rather than with 27
individual entities. Equally, in order to cooperate with the EU, the U.S. had to
wait until Europe first established a police and law enforcement agencysuch as
Europol. Naturally, as always in the relations between a federal state (the USA)
and a confederal entity (such as the EU), internal competences are always more solid
in America. Gijs de Vries (the former head of the Office of the Co-ordinator for
Counterterrorism) explained that we are not the United States of Europe . . . we
do not have an EU police force, or an EU army.84
In December 2001, the Director of Europol, Juergen Storbeck, signed an agreement with the U.S. Ambassador to the EU, which facilitates the exchange of
strategic and technical information.85 This agreement also permits the exchange of
liaison officers, as well as the participation in Joint Investigation Teams. Thus, a
U.S. representative is based at the Europol offices in The Hague. Europol, on the
other hand, also received the right to make secondments to the FBI. Finally, in
August 2002, a Europol liaison office was established in Washington DC.86
In December 2002, a Europol agreement on exchange of personal data and related
information with the U.S. was signed.

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In judicial and extradition matters within the EU-U.S. counter-terrorism

relationship, like in law enforcement matters, there are significant philosophical differences between the European and the American side. On police matters, Europeans
perceive Americans too heavy-handed in their approach. This has been particularly
sensitive in Germany, which has one of the strictest data privacy laws in Europe. In
extradition matters, the main philosophical difference between the European side
and the American is related to the existence and execution of the death penalty in
a number of U.S. states. In contrast, Americans perceive the European penal code
as too unjustifiably light more generally, especially the sentencing in relation to
murder.87
Consequently, the EU-US Mutual Legal Assistance Treaty (MLAT) was necessarily controversial.88 The European Parliaments Committee on Citizens Freedoms
and Rights, Justice and Home Affairs, in its report on 12 May 2003, endorsed the
expected benefits as a step forward, but also criticised provisions regarding Human
Rights and data protection, as mentioned above, as well as the accountability in the
EU. It considered the way the agreement was made a breach of the democratic principle, as the Parliament had not been consulted before the adoption, as foreseen by
the treaties.
The MLAT includes a number of judicial areas for cooperation with the U.S.,
and was signed in June 2003. It includes:89
evidence sharing for criminal investigations and prosecutions;
streamlining of extradition arrangements;
. central points of contact between U.S. and EU judicial authorities;
. sharing of sensitive data, such as related to bank accounts and terrorist
finance.
.
.

However, despite the clear benefits for the Americans derived through the
MLAT, there are also drawbacks. The main problems regarding the MLAT are
related to the issue of implementation in the EU member states. This needs to
be seen in the context of the general implementation problems in the EUs third
pillar. In fact, it shadowed the main problems regarding the EAW. Institutionally
in the third pillar, the Commission cannot take member states to the European
Court of Justice (ECJ) for failure to transpose framework decisions, or agreements such as the MLAT, properly or on time as would be the case in infringement proceedings under the TEU. This makes the Commissions role somewhat
unbalancedstronger in the legislative process than in the implementation
phase.90 Again, the EAW and the MLAT serve as a good case in point. Three
member states experienced problems in the implementation of the EAWCyprus
(07.11.2005), Poland (27.04.2005), and Germany (18.07.2005)where it ended up
in the respective national constitutional courts. Poland and Cyprus were consequently required to change their constitutions, while Germany had to adopt a
new transposition law for the EAW which has been adopted by the Grand Coalition under Chancellor Angela Merkel in July 2006. In the case of the MLAT,
the agreement had to be implemented individually between the American government and each of the European signatories, which was very time consuming and
contained many legislative hurdles.
In conclusion, this section explained and examined the link between the adoption of internal EU counter-terrorism measures and the relations between the EU
and the U.S. The establishment of direct competences for the EU was vital for

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acquiring the political consensus to conclude an agreement with third countries

and thus for becoming an interested partner for the U.S. in its counter-terrorism
relations through increased efficiency gains. Internal counter-terrorism instruments, such as the EAW, were crucial in the establishment of similar extradition
agreements between the EU and the U.S., such as the MLAT. The same is true
regarding the establishment of information exchanges between Europol and the
FBI. As a side effect, this institutionalised cooperation in the EU enables a process of shaping a European interest. Areas of counter-terrorism policy are now
legislated at the EU level, which reinforces this process of shaping a European
interest.

Conclusion: A Good Friend in Need, is a Good Friend Indeed

The European Union has considerably broadened its scope of counter-terrorist
activity since the 9=11 attacks. While, as argued before, the EU counter-terrorist
efforts can be described as somewhat of a paper tiger, in some ways this strongly
undervalues the achievements in the Union since September 11. The creation of
Europol, despite the clear limitations of its mandate, has been a very significant
innovation. It may not be important enough to appear in the latest James Bond
movie, but Oceans Twelve is a reasonable first step. It is clear that even with the
Lisbon Treaty, the mandate of Europol will still not include executive powers of
arrest, and it will still be a joint investigative force with nation states police forces
in the lead, but the evolution of the European Union has demonstrated that even
incremental changes are pushed very strongly by the European institutions. The
European Commission is likely to continue to push, and succeed, in gaining extra
powers for the European Union. The same logic is true regarding extradition
arrangement, and despite the problems of implementation, the European Arrest
Warrant is a revolutionary instrument.91
Secondly, this creation of significant internal EU competences in the
counter-terrorism area alongside the adoption of important policy instruments, such
as the EAW, or agencies, such as Europol, constructed the European Union as an
actor on the international stage of counter-terrorism policy, right across all three
pillars due to the parallelism of counter-terrorism activity. The European Court of
Justice with its doctrine of implied powers established that the European Union
can now defend its policies on the international level. The Lisbon Treaty will
actually codify the existing situation. After its entry into force by 01 January
2010, the European Union will gain greater legislative competences in police and
judicial cooperation, the Europol mandate will be expanded, and the Union will gain
express legal powers to act on the international level through the creation of a legal
personality.
While this article demonstrated that there have been some very significant developments which indicate the supranationalisation processes of EU external relations in counter-terrorism, the Lisbon Treaty will continue this process and
accelerate it even further. This means that, in the future, the USA is even more likely
to be willing to work with Europe through its institutionalised forum the European
Union, despite its implementation problems. The USA may benefit from future efficiency gains, at least in some areas, through the introduction of new institutional
mechanisms in the Lisbon Treaty, such as Qualified Majority Vote in the Council
of Ministers, the introduction of co-decision with the European Parliament in police

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C. Kaunert

and judicial cooperation, and the supervisory capacity of the European Court of
Justice (with the potential of future ground-breaking judgements in its interpretations of the Charter of Fundamental Rights). However, all these institutional
changes are also likely to increasingly drive forward the process of shaping member
states interests within the EU institutions in such a way as to construct a
European interest.
However, it needs to be acknowledged that there are several limitations to the
arguments in the article. Firstly, the process of constructing a European interest
is yet only partial. One may be able to observe this process in EU-U.S.
counter-terrorism relations related to the first pillar or the third pillar, and this
may even become accelerated by the Lisbon Treaty, but it is not a process which
can be noticed in the second pillar, Common Foreign and Security Policy, yet.
The War in Iraq demonstrated the existence and reification of national interests in
matters that concern war or peace. In these areas, national sovereignty is still
predominant in the strategic thinking of the diplomatic elites of EU member states.
However, as the case of EU-U.S. counter-terrorism relations demonstrates, the
existence of national interests can also be over-emphasised in its importance.

Notes
1. B. Hoffman, Is Europe Soft on Terrorism, Foreign Policy, no. 115 (Summer 1999),
6276.
2. Cited in F. Cameron, Transatlantic relations and terrorism, in D. Spence, ed., The
European Union and Terrorism (London: John Harper Publishing, 2007), 143.
3. M. E. Smith, Competitive Cooperation and EU=US Relations: Can the EU be a
Strategic Partner for the US in the World Economy?, Journal of European Public Policy 5,
no. 4 (1998), 561577.
4. W. Carlsnaes, Where is the Analysis of European Foreign Policy Going?, European
Union Politics 5, no. 4 (2004), 503504.
5. S. Hoffmann, Obstinate or Obsolete? The Fate of the Nation-State and the Case of
Western Europe, Daedalus 95 (1966), 862915.
6. C. Hill, The Changing Politics of Foreign Policy (Basingstoke: Palgrave Macmillan,
2003).
7. For more detailed analyses by these scholars, read: C. Bretherton and J. Vogler, The
European Union as a Global Actor, 2nd ed. (London: Routledge, 2006); H. Smith, European
Union Foreign Policy: What It Is and What It Does (London: Pluto Press, 2002); K. E. Smith,
European Union Foreign Policy in a Changing World (Cambridge: Polity Press, 2003).
8. F. Duchene, The European Community and the uncertainties of interdependence,
in M. Kohnstamm and W. Hager, eds., A Nations Writ Large? Foreign Policy Problems before
the European Community (London: MacMillan, 1973), 121.
9. R. Rosecrance, The European Union: A new type of international actor, in
J. Zielonka, ed., Paradoxes of European Foreign Policy (The Hague: Kluwer Law
nternational, 1998), 1523.
10. Please see: I. Manners, Normative Power Europe: a contradiction in terms?,
Journal of Common Market Studies 40, no. 2 (2002), 235258; C. Nicoladis and R. Howse,
This is my EUtopia . . . : narrative as power, in J. H. H. Weiler, I. Begg, and J. Peterson,
eds., Integration in an expanding European Union (Oxford: Blackwell, 2003), 341366.
11. P. Eeckhout, External Relations of the European Union (Clarendon: Oxford
University Press, 2004), 82.
12. Ibid., 59.
13. The Lisbon Treaty entered into force on December 1, 2009.
14. Eeckhout (see note 12).
15. M. Fletcher and R. Loof with B. Gilmore, EU Criminal Law and Justice (Cheltenham:
Edward Elgar Publishing, 2008), 153.

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16. J. Monar, The EU as an International Actor in the Domain of Justice and Home
Affairs, European Foreign Affairs Review 9 (2004), 395415.
17. After the yes vote in the second Irish referendum in 2009, the Lisbon entered into
force on December 1, 2009.
18. With the exception of trade agreements.
19. For a more detailed analysis by these scholars, please read: R. H. Ginsberg, The
European Union in International Politics: Baptism by Fire (Lanham, MD: Rowman &
Littlefield, 2001); M. E. Smith, Towards a theory of EU foreign policy-making: multi-level
governance, domestic politics, and national adaptations to Europes common foreign and
security policy, Journal of European Public Policy 11, no. 4 (2004), 740758.
20. B. White, Foreign Policy Analysis and European Foreign Policy, in B. Tonra and
T. Christiansen, eds., Rethinking European Union Foreign Policy (Manchester: Manchester
University Press, 2004).
21. M. Bruter, Diplomacy without a state: the external delegations of the European
Commission, Journal of European Public Policy 6, no. 2 (1999), 183205.
22. This term is used in the Treaty establishing a Constitution for Europe, but changed
under British pressure during the negotiations for the Treaty of Lisbon back to a High
Representative for European Foreign Policy.
23. For more detailed information on constructivist analyses, please read: P. Katzenstein,
The Culture of National Security: Norms and Identity in World Politics (New York: Columbia
University Press, 1996); M. Finnemore, National Interest in International Society (Ithaca, NY:
Cornell University Press, 1996); M. Finnemore, Norms, Culture and World Politics: Insights
from Sociologys Institutionalism, International Organization 50, no. 2 (1996), 325348;
M. Finnemore and K. Sikkink, International Norm Dynamics and Political Change,
International Organization 52, no. 4, (1998), 887917.
24. P. Katzenstein, The Culture of National Security: Norms and Identity in World Politics
(see note 24 above).
25. For more information on Moravcsiks work, please see: A. Moravcsik, Negotiating
the Single European Act: National Interests and Conventional Statecraft in the European
Community, International Organization 45, no. 1 (1991), 1956; A. Moravcsik, Preferences
and Power in the European Community: A Liberal Intergovernmentalist Approach, Journal
of Common Market Studies 33, no. 4 (1993), 611628; A. Moravcsik, The Choice for Europe:
Social Purpose & State Power from Messina to Maastricht (Ithaca and New York: Cornell
University Press, 1998).
26. S. Lavenex, EU External Governance in Wider Europe, Journal of European
Public Policy 11, no. 4 (2004), 680700.
27. J. Monar, An Emerging Regime of European Governance for Freedom, Security
and Justice, ESRC One Europe of Several? Programme Briefing Note 2=99 (1999).
28. C. Kaunert, The Area of Freedom, Security and Justice: The Construction of a
European Public Order, European Security 14, no. 4 (2005), 459483.
29. For the concept of spill-overs, please see: E. Haas, The Uniting of Europe: Political,
Social, and Economic Forces 195057 (Stanford, CA: Stanford University Press, 1958).
30. P. Eeckhout (see note 12 above), 132.
31. Ibid., 134.
32. Which had previously been termed Justice and Home Affairs (JHA).
33. Ibid., 466467.
34. G. Simpson, Asylum and Immigration in the European Union after the Treaty of
Amsterdam, European Public Law 5, no. 1 (1999), 102103.
35. For a more detailed analysis, please consult: Kaunert, The Area of Freedom,
Security and Justice (see note 29 above), 466467; S. Peers, Proposed Framework decision
on European Arrest Warrants, Statewatch post-11.09.01 analyses, no. 3 (2001). Available at:
(www.statewatch.org), retrieved August 8, 2002; Simpson, Asylum and Immigration in the
European Union (see note 35 above), 91124.
36. P. Eeckhout (see note 12 above), 161.
37. J. Monar, The EU as an International Actor in the Domain of Justice and Home
Affairs, European Foreign Affairs Review 9, no. 4 (2004), 400.
38. European Council, Presidency Conclusions of the Tampere European Council (1999),
1516 October 1999, SN 200=99 (Brussels: General Secretariat of the Council).

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39. For more information on the academic debate on EU counter-terrorism, please read:
O. Bures, EU Counterterrorism: A Paper Tiger?, Terrorism and Political Violence 18, no. 1
(2006), 5778; D. Zimmermann, The European Union and Post-9=11 Counterterrorism: A
Reappraisal, Studies in Conflict and Terrorism 29, no. 1 (2006), 123145; F. Gregory, The
EUs Response to 9=11: A Case Study of Institutional Poles and Policy Processes with Special
References to Issues of Accountability and Human Rights, Terrorism and Political Violence
17, no. 1 (2005), 105123; C. Kaunert, Without the Power of Purse or Sword: The European
Arrest Warrant and the Role of the Commission, Journal of European Integration 29, no. 4
(2007), 387404.
40. O. Bures (see note 40 above), 57.
41. C. Kaunert, Without the Power of Purse or Sword: The European Arrest Warrant
and the Role of the Commission (see note 40 above); D. Zimmermann, The European
Union and Post-9=11 Counterterrorism: A Reappraisal (see note 40 above).
42. D. Zimmermann, (see note 40 above), 123.
43. Ibid., 126.
44. For more information on the academic debate on EU counter-terrorism, please read:
D. Spence, ed., The European Union and Terrorism (London: John Harper Publishing, 2007);
and all authors cited in note 40.
45. Guest editors G. Edwards and C. Meyer, Introduction: Charting a Contested
Transformation, Journal of Common Market Studies 46, no. 1 (2008), 125.
46. Ibid., 11.
47. Ibid.
48. This excludes agreements with individual member states or agreements on behalf of
the member states instead of the European Union as a whole.
49. D. Keohane, The Absent Friend: EU Foreign Policy and Counter-Terrorism,
Journal of Common Market Studies 46, no. 1 (2008), 125146.
50. For more information, please see: C. Kaunert, European Internal Security (Manchester: Manchester University Press, forthcoming); C. Kaunert, Without the Power of Purse
or Sword: The European Arrest Warrant and the Role of the Commission (see note 40
above).
51. Ibid.
52. M. Deflem, Europol and the Policing of International Terrorism: CounterTerrorism in a Global Perspective, Justice Quarterly 23, no. 3 (2006), 336359.
53. P. Eeckhout (see note 12 above), 59.
54. Regarding EU police cooperation.
55. J. Occhipinti, The Politics of EU Police Cooperation: Towards a European FBI
(Boulder, CO: Lynne Rienner, 2003).
56. S. Peers, EU Justice and Home Affairs Law, 2nd ed. (Clarendon: Oxford University
Press, 2006).
57. B. Hoffman, Inside Terrorism, 2nd ed. (New York: Columbia University Press, 2006).
58. J. M. Lutz and B. J. Lutz, Global Terrorism (Routledge: London, 2004).
59. M. Deflem (see note 53 above).
60. Available at: (http://www.ft.com), retrieved June 30, 2001.
61. B. Hayes, EU anti-terrorism action plan: legislative measures in justice and home
affairs policies, Statewatch Observatory on post 11 September 2001 and 11 March 2004
effects on civil liberties and democratic standards, no. 6, (2001). Available at: (http://
www.statewatch.org/observatory2ab.htm), retrieved August 10, 2002.
62. D. Dubois, The Attacks of 11 September: EU-US Cooperation Against Terrorism in
the Field of Justice and Home Affairs, European Foreign Affairs Review 7, no. 3 (2002), 324.
63. S. Douglas-Scott, The rule of law in the European Union putting the security into
the area of freedom, security and justice, European Law Review 29, no. 2 (2004), 214219.
64. O. Bures (see note 40 above), 68.
65. D. Dubois (see note 63 above), 326.
66. C. Kaunert, Without the Power of Purse or Sword: The European Arrest Warrant
and the Role of the Commission (see note 40 above).
67. Interviews by author with officials in the European Commission (in total 25
interviews from 01.04.04 until 01.08.04; coded COM1 to COM25), in the European Council
Secretariat (9 interviews from 01.04.04 until 01.08.04; coded CON1 to CON9), and in the

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61

Permanent Representations of the Member States and the Missions to the EU of Candidate
Countries (26 interviews from 01.04.04 until 01.08.04; coded PR1 to PR26); interviews
relevant here are COM 10, 15, 20, 25.
68. Interviews COM10, 25, CON7.
69. For more information: S. Peers, Proposed Framework Decision on European Arrest
Warrants (see note 35 above); W. Wagner, Building an Internal Security Community: The
Democratic Peace and the Politics of Extradition in Western Europe, Journal of Peace
Research 40, no. 6 (2003), 695712; W. Wagner, Analysing the European Politics of Internal
Security, Journal of European Public Policy 10, no. 6 (2003), 10331039.
70. S. Douglas-Scott (see note 64 above).
71. Ibid.
72. G. Martin, Understanding Terrorism: Challenges, Perspectives, and Issues (Thousand
Oaks, CA: Sage, 2006); B. Hoffman, Inside Terrorism (see note 58 above).
73. Martin (see note 73 above), 22.
74. BBC News, Text of Bushs act of war statement, September 12, 2001. Available at:
(http:// www.bbc.co.uk/1/hi/world/americas/1540599.stm), retrieved December 20, 2001.
75. Ibid.
76. BBC News, Schroeder issues EU rallying cry, October 18, 2001. Available at:
(http://www.bbc.co.uk/1/h1/world/europe/1606438.stm), retrieved November 20, 2001.
77. European Voice, Justice Chief warns against rushing EU arrest warrant, 13,
September 27, 2001.
78. BBC News, Washington Presses EU in terror war, October 22, 2001. Available at:
(http://news.bbc.co.uk/1/hi/world/europe/1614139.stm), retrieved October 22, 2001.
79. Ibid.
80. Wyn Rees, Transatlantic Counter-Terrorism Cooperation (London: Routledge, 2006), 80.
81. Wyn Rees points out that the EU Troika Louis Michel, Javier Solana, and Chris
Patten met with U.S. Secretary of State Colin Powell. However, as indicated in this article,
very senior Commission officials from the DG Justice and Home Affairs were also in
attendance, which was very significant for counter-terrorism cooperation.
82. Nonetheless, all other areas are very significant and would merit an article by
themselves. However, this venture shall be left for future articles.
83. Ibid.
84. Quoted in D. Zimmermann (see note 40 above), 38.
85. Wyn Rees (see note 81 above), 84.
86. F. Gregory (see note 40 above), 115.
87. Wyn Rees (see note 81 above), 86.
88. F. Gregory (see note 40 above), 116.
89. Wyn Rees (see note 81 above), 89.
90. C. Kaunert, Without the Power of Purse or Sword: The European Arrest Warrant
and the Role of the Commission (see note 40 above).
91. C. Kaunert, Without the Power of Purse or Sword: The European Arrest Warrant
and the Role of the Commission (see note 40 above).