The European External Action Service, Counterterrorism and The Imperative of Coherence

The International Spectator
Italian Journal of International Affairs
ISSN: 0393-2729 (Print) 1751-9721 (Online) Journal homepage: http://www.tandfonline.com/loi/rspe20
The European External Action Service,

Counterterrorism and the Imperative of
Coherence
Elodie Sellier
To cite this article: Elodie Sellier (2018): The European External Action Service,
Counterterrorism and the Imperative of Coherence, The International Spectator, DOI:
10.1080/03932729.2018.1504189
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THE INTERNATIONAL SPECTATOR
https://doi.org/10.1080/03932729.2018.1504189
The European External Action Service, Counterterrorism

and the Imperative of Coherence
Elodie Sellier
Université libre de Bruxelles
ABSTRACT KEYWORDS
The European External Action Service (EEAS), specifically man- CFSP; counterterrorism; JHA;
dated with enhancing coherence between the Common governance; intelligence
Foreign and Security Policy (CFSP) and non-CFSP bodies on
the one hand, and the European Union and member states on
the other hand, has the potential to increase CFSP’s contribu-
tion to the fight against terrorism and diminish the boundaries
between CFSP and other policies. Several of the EEAS’ coop-
eration and coordination duties, as well as the inclusive com-
position of the Service, allow for a more coherent approach to
counterterrorism policymaking. In practice, coherence is
unfolding in diplomatic cooperation with third countries and
Common Security and Defence Policy (CSDP) missions, as CFSP
and Justice and Home Affairs actors seem to build on one
another’s strengths. The picture is more nuanced in the area
of intelligence, where the activities of the EU intelligence
centre, transferred from the Council of the European Union
to the EEAS, are conditional upon member states’ willingness
to exchange information. Ultimately, current efforts towards
coherence remain subject to a somewhat paradoxical two-
speed process: one that encourages the meshing together of
institutional actors and policy cultures, while deferring access
to justice to national law, thereby yielding a system of protec-
tion of individuals à géométrie variable.
The terrorist attacks of 2001 created a powerful rhetoric: violence planned from
the outside could infiltrate and endanger the West, targeting societies from the
inside. The post-9/11 ‘War on Terror’ discourse advocated a “de-territorialised”
vision of security, and frontiers begun to be seen as “obstacles in the struggle
against the new enemy”.1 The shockwaves caused by September 11 triggered a
fundamental rethink of the adequacy, relevance, and utility of the EU’s internal-
external security toolbox in addressing vulnerabilities exposed by the terrorist
attacks.2 The Lisbon Treaty which entered into force in 2009 partly arose from
the willingness of EU leaders to enhance coherence between internal and external
security. As a result, coherence shall take place not only between different areas of
CONTACT Elodie Sellier elodie.sellier@ulb.ac.be; @elo.sellier

1
Bigo, “Internal and External Aspects of Security”, 388.
2
See Shepherd, “Irrelevant or Indispensable?”.
© 2018 Istituto Affari Internazionali
2 E. SELLIER
external action, but also between these and other policies, including internal ones.3
The codification of the internal-external security nexus in the Treaties through the
principle of coherence, along with its manifestation in the EU’s approach to
terrorist threats, deserves particular attention.
Even though counterterrorism (CT) has remained historically attached to the realm
of Justice and Home Affairs (JHA), an impressive number of programmatic documents
have acknowledged the “indissoluble link”4 between CT and the Common Foreign and
Security Policy (CFSP),5 not least the EU’s Foreign Affairs Council (FAC) of
9 February 2015, which called for a “mainstreaming” of CT into EU foreign policy,6
and the 2016 European Union Global Strategy (EUGS), which singled out CT as an area
in which the “joined-up union” and the comprehensive approach that it envisages are of
particular relevance.7
Concrete efforts towards coherence in external relations were not solely under-
taken through the de-pillarisation process that occurred in the third pillar on
Police and Judicial Cooperation in Criminal (PJCC) matters. As opposed to the
PJCC, which was transferred to the Treaty on the Functioning of the European
Union (TFEU), CFSP remains isolated in the Treaty on European Union (TEU).8
The following argues that it is therefore through institutional engineering that the
Lisbon Treaty attempted to achieve coherence between internal and external
security. It created new bodies such as the European External Action Service
(EEAS), upgraded the position of High Representative into a Vice-President of
the Commission (HR/VP), and assigned them a specific mandate concerning
coherence and cooperation between CFSP actors and other bodies and services
in the area of EU external action.9 The need to create synergies between internal
and external CT actors was acknowledged more specifically by the EUGS, which
called for “tighter institutional links between our external action and the internal
area of freedom, security and justice”.10 Thus, the following argues that it is the
“institutional innovation ... which will spur – in a practical sense – the drive for
more coherence”.11
This contribution feeds into an ever-expanding body of commentaries addressing the
question of division of labour and turf wars in the complex landscape of CT actors,
ranging from the conventional bodies of the Council, the Commission,12 and the CT
Coordinator,13 to the various EU agencies that have acquired increasing relevance over
3
Article 21(3) TEU. Back then, the Commission, i.e. the main holder of EU external competence, the Council, and the HR,
i.e. a trustee of member states, acted side by side and had difficulties in coordinating their activities and producing a
coherent EU external policy. See Blanke and Mangiameli, A Commentary on TEU, 836.
4
European Council, Laeken, Conclusions and Plan of Action, 3.
5
On the link between CT and CFSP, see European Council, Presidency conclusions of the Tampere Council; European
Council, European Security Strategy; European Commission, COM(2005) 491 final.
6
Council of the EU, 6048/15, 1.
7
European Union, Shared Vision, Common Action, 11.
8
CFSP in the TEU is “subject to specific rules and procedures,” pursuant to Article 24(1) TEU, as opposed to other areas
of external action. They include unanimity in all key CFSP/CSDP decisions, the exclusion of legislative acts, and a
limited role for the European Commission and the European Parliament.
9
External action not only encompasses external policies, but also internal policies with a strong external dimension,
such as those pertaining to justice and home affairs.
10
European Union, Shared Vision, Common Action, 31.
11
Blockmans and Laatsit, “European External Action Service”, 139.
12
Argomaniz, “Post-9/11 institutionalisation”; and, The EU and CT.
13
Mackenzie et al., “European Union CT Coordinator”.
THE INTERNATIONAL SPECTATOR 3
the years.14 That inter-institutional relations in this “intensely politicised area”15 have
gained much attention comes as little surprise, given the sovereignty-sensitive nature of
CT, often considered an “emotive issue”.16
In order to gauge the degree of coherence that has been achieved in CT, this article
looks specifically at the role of the EEAS. Created by the Lisbon Treaty, and located in
the middle ground between the areas of CFSP and JHA, the EEAS was endowed with a
coherence mandate. Given its impact on member states, the Council of the EU and the
Commission, it was dubbed “one of the most wide-ranging institutional changes ever
attempted by the EU”.17 The article opens by placing the creation of the EEAS in the
context of broader attempts by the Lisbon Treaty at enhancing the coherence of EU
external action. It goes on to examine whether synergies between internal and external
security actors have been sought at the institutional level, investigating whether the
EEAS has exploited the possibilities conferred on it by its legal basis to bring CFSP and
JHA actors closer together and instil more coherence in CT policymaking. Finally, the
concrete application of coherence is analysed through two case studies in which
coherence between EEAS and JHA actors has been encouraged in various policy
documents: a) horizontal cooperation between the EEAS and JHA agencies and b)
horizontal and vertical cooperation between the EU’s intelligence centre (INTCEN),
located in the EEAS, and other JHA actors.
The principle of coherence in external action after the Lisbon Treaty

A theoretical approach to coherence
The multi-faceted concept of ‘coherence’18 is a constitutional principle of EU law, as
evidenced by the numerous references to coherence in the treaties as a legal obligation
assigned to EU institutions. It not only relates to the construction of an integrated
approach whereby policies do not contradict each other, but also implies the creation of
a “united whole”, to be seen as a “desirable plus”19 whereby synergies and added-value
are sought in the implementation of these policies.20 Here, the emphasis is placed on
the degrees of synergies achieved between EEAS and JHA actors in CT policymaking.21
The need for synergies corresponds to the Lisbon Treaty’s spirit of a “more holistic and
integrated approach”22 to external relations, through cooperation and complementarity
between actors.23 In Articles 13(2) and 4(3) TEU24 and the Preamble of the TEU, the
need for “a single institutional framework” is highlighted as a primary condition for the
EU institutions to be able to carry out the tasks entrusted them. Given the institutional
14
Such as Europol, INTCEN and Eurojust. See Den Boer, “CT, Security and Intelligence”; Coninsx, “The fight against
terrorism”.
15
Duffy, The ‘War on Terror’, 3.
16
O’Neill, “The Protection of Fundamental Rights”, 76.
17
Smith, “EEAS and the security-development nexus”, 1304.
18
For categorisations of ‘coherence’, see Keukeleire and Delreux, Foreign Policy of the European Union, 113.
19
Missiroli, “European Security Policy”, 182.
20
Hillion “Tous pour un, un pour tous!”, 14.
21
Orbie et al., “Humanitarian Aid as an Integral Part”, 2.
22
Blockmans and Russak, The Commissioners’ Group.
23
Secretariat of the European Convention, Final report of working group VII, 16.
24
Imposing an obligation of sincere cooperation on EU institutions and bodies in their inter-institutional relations and
between member states and the EU.
4 E. SELLIER
focus of this contribution, the extent to which the principle of coherence has been
applied to CT is measured by the degree of cooperation between the EEAS and JHA
structures in the CT policymaking chain.
The principle of coherence in post-Lisbon external relations

EU external action has traditionally been afflicted by a strong fragmentation of compe-
tences and organisational structures. In an attempt to enhance the coherence of the
system, the Lisbon Treaty endeavoured not only to unify the external relations frame-
work, but also to link it more closely to other (internal) policy areas. Changes were
introduced at both the substantial and institutional levels.
From a substantial perspective, Article 21 TEU lays out a set of core objectives
applicable to both CFSP and other external activities, in an attempt to create an
integrated and unified conceptual framework for all types of EU external activities.25
The imperative of coherence, encapsulated in Article 21(3) TEU, applies individually to
the different areas of EU external action and between them and other policies. Thus,
coherence must be ensured not only between CFSP and other external action policies,
such as trade, development and the Neighbourhood Policy,26 but also between CFSP
and internal policies, including in the JHA realm, into which CT historically falls.
Whether this normative framework will result over time in enhanced coherence in CT
remains to be seen, however Article 21 TEU sends a clear signal that more cross-pillar
policymaking between the different silos is needed.27
A corollary to developments towards more coherence at the level of substantial law is
the process of ‘institutionalisation’ of the CFSP,28 whereby powers have been conferred
on new actors, including the HR/VP and EEAS.29 The HR/VP’s function was designed
to ensure the coherence of EU external action30 through its strong bridge-making
dimension, involving both intergovernmental and supranational responsibilities.
Among its intergovernmental duties, the HR/VP conducts the CFSP through the
right of initiative,31 alongside that of member states,32 and presides over the Foreign
Affairs Council.33 Supranationally, the Vice-President of the Commission ensures the
coordination of approaches between external policies on the one hand, and internal
policies with a strong external dimension on the other hand, since the latter remain in
the hands of the Commission. Combining intergovernmental duties and supranational
responsibilities supports the objective of coherence in EU external relations.34 The
“formal institutional linkage”35 provided by the HR/VP between not only external
25
Along with the set of values under Article 3(5) TEU. See Craig and De Burca, EU Law: Text, Cases, Materials, 318.
26
Since Lisbon, the distinction between ‘external relations’ (the low politics of trade and development) and ‘foreign/
security policy’ (the high politics of CFSP/CSDP) no longer exists. See Smith, “EEAS and the security-development
nexus”.
27
Craig and De Burca, EU Law: Text, Cases, Materials.
28
Morillas, “Institutionalization or Intergovernmental Decision-Taking”, 121.
29
Article 22 TEU lays out the new labour division.
30
Article 18 TEU.
31
Articles 18(2), 22(2) and 27(1) TEU.
32
Article 30(1) TEU.
33
Article 18(3) TEU.
34
Van Vooren and Wessels, EU External Relations Law.
35
See Smith, “EEAS and the security-development nexus”,1302.
and internal policies, but also external and internal actors, was also meant to boost the
EU’s external response to terrorism, which lagged far behind its internal reaction in
terms of “political impetus, resources and sheer number of initiatives”.36
Nevertheless, the mandate of the HR/VP has been referred to as a “mission
impossible”.37 Just like any foreign minister,38 the HR is assisted by the administrative
bureaucracy of the EEAS.39 Both the Preamble and the first provisions of the ‘Tasks’ set
down in the EEAS Council Decision reaffirm the objective of coherence of the Lisbon
Treaty, copied from the text of Article 21(3) TEU. However, events called for an
examination of the role of the EEAS in achieving more coherence in CT. Indeed,
after the 9 February 2015 FAC conclusions released after the Charlie Hebdo attacks,
the burden of fulfilling the bulk of the short- and medium-term objectives as a matter of
urgency fell upon the EEAS.40 These range from developing “targeted and upgraded
security and CT dialogues” and “CT action plans” with a number of select countries, to
cooperation with relevant regional organisations.41
In spite of the express recognition by the Council of the central role of the EEAS in
the fight against terrorism, CT policies do not fall squarely within the realm of CFSP,
and could easily belong to other ambits, such as development policy, or the external
dimension of JHA, where the EEAS’ room for manoeuvre is extremely limited.42
Therefore, achieving these ambitious targets is to some extent conditional upon close
cooperation with other institutional and national actors competent in other EU ambits,
and ensuring institutional coherence could arguably be considered a key aspect of EEAS
success in fulfilling the mission it was assigned.
Institutional coherence and the EEAS’ role in CT policymaking

From consultation and cooperative duties . . .
The EEAS’ mandate to enhance institutional coherence and address issues of overlapping
authority that characterised the previous system is expressed in its autonomous nature and its
multiple addressees. Although defined as a “functionally autonomous body separate from the
General Secretariat of the Council and from the Commission”,43 the autonomy enjoyed by
the EEAS vis-à-vis the Commission and the Council does not mean that the EEAS maintains
“an exclusive relationship” with the HR/VP.44 Instead, particular emphasis was placed on the
“broad range of cooperative duties”45 necessary for the ‘bridge’ function46 imposed on the
36
Keohane, “The Absent Friend”, 127.
37
See, for example, Laursen, The EU’s Lisbon Treaty.
38
The ‘Minister’ figure was foreseen by the Treaty establishing a Constitution for Europe (Article I-28 TCE).
39
Article 27(3) TEU and Article 2(1) EEAS Council Decision.
40
Interviews 2, 3, 6.
41
42
The EEAS’s implementation competence is limited to the ‘programming’ of external assistance instruments (Article
9(3) EEAS Decision). ‘Programming’ covers country and regional allocations; country and regional strategic papers;
and national and regional indicative programmes. It is however difficult to discern which policy areas are covered by
this power delineation. Trade policy remains in the hands of the Commission, whereas development policy is more
opaque, where both the EEAS and the Commission have a role to play. As regards internal policies with a strong
external dimension, such as JHA, it is the Commission that holds power.
43
Article 1(2) EEAS Council Decision.
44
Blanke and Mangiameli, A Commentary on TEU, 750.
45
De Baere and Wessel, “EU Law and the EEAS”, 4.
46
Blockmans and Hillion, EEAS 2.0, 28.
6 E. SELLIER
Service towards a multiplicity of addressees. These include not only the member states, as per
the EEAS’ legal basis under the TEU,47 but also the Council and the Commission,48 as well as
EU agencies and other relevant institutions and bodies, as appropriate.49 These include,
notably, a consultation duty, pursuant to which “the EEAS and the services of the
Commission shall consult each other on all matters relating to the external action of the
Union”.50
Applied to CT, consultation duties between the EEAS and the European
Commission have resulted in the participation of the Service in coordination structures
which, through dialogue and information-sharing, contribute indirectly to CT decision-
making. The scourge of terrorist threats over the past few years drove the Union to
launch cross-institutional initiatives gathering CFSP and non-CFSP actors with a view
to developing a comprehensive response to security challenges. These included both the
revival of the Commissioners’ Group on External Action (CGEA) and the formation of
the Security Union. Chaired by the HR/VP, the CGEA is an awareness-raising tool,
designed as a “forum for upstream discussions before decisions are made”,51 to facilitate
coordination among different bureaucracies, in particular CFSP and other
Commissioners from the former ‘Relex’ family. It was generally welcomed by commen-
tators as one of the most daring steps towards a higher degree of cohesiveness and
institutional and policy coherence.52 Given its function in assisting the HR/VP, the
EEAS takes centre stage in the preparation and coordination of CGEA work. Overall
coordination is supported by a dedicated secretariat of 3-4 full-time staff, which is
jointly led by the ‘International Dimension’ Head of Unit of the Secretariat-General of
the Commission and the ‘Policy Coordination’ Head of Division of the EEAS.53
Synergies between the CGEA and the FAC have been sought, and several joint meetings
held between the FAC and the JHA Council.54
Similarly, the multiplication of terrorist threats was one of the factors that gave rise
to the Security Union portfolio,55 for which Julian King was appointed Commissioner.
A dedicated Task Force bringing together experts from Commission DGs Home, Move,
Connect and Energy was established to support the work of Julian King and enable
cooperation between the various silos. The Task Force associates the EEAS and CT
Coordinator (CTC) very closely to its work,56 with regular updates on the progress57
47
Article 27(3) TEU.
48
49
Article 3(4) EEAS Council Decision reads: “(The) EEAS shall extend appropriate support and cooperation to the other
institutions and bodies of the Union . . . including agencies, as appropriate.”
50
51
HRVP, Implementing of the EEAS Review, 5113/16, 3.
52
See Wouters and Chané, “Brussels meets Westphalia”. Pursuant to Article 1 of the Decision on the creation of the
Commissioners Group on External Action (European Commission, C(2014) 9003), the rationale for the CGEA is “to
ensure coherence in all aspects of external action of the Commission and to support the HRVP in her task of assisting
the Council and the Commission in ensuring consistency between the Union’s external policy and external aspects of
internal Union policies”.
53
Interview 7. The secretariat is tasked with the preparation of CGEA monthly meetings, decides which Commissioners
should take the lead and which should provide inputs, and ensures the distribution of follow-up reports to CGEA
members, CGEA contact points in each Commission DG, the top hierarchy of the EEAS and EU delegations. More
detailed reports are distributed to those interested. See also Commission Decision C(2014) 9003, 5, and Blockmans
and Russack, The Commissioners’ Group, 9.
54
HRVP, 5113/16, 5.
55
European Commission, COM (2017) 354 final, 2.
56
Ibid.
57
Interviews 2, 3, 8.
disseminated within the CT units of the EEAS and INTCEN. From the EEAS’ perspec-
tive, these fora may contribute to clarifying the division of labour between the EEAS
and external (and internal to some extent) players and avoiding “overlaps and frictions”
that may result from the vague allocation of tasks in the EEAS Council Decision.58
. . . to direct participation in decision-making . . .

Alongside this, EEAS Council Decision provided for more direct forms of involvement
in the work of other institutions.59 EEAS officials are now appointed by the HR/VP as
permanent chairs of approximately half of the Council’s external relations Committees
and Working Parties.60 These include Council Working Groups dealing with, inter alia,
Africa and Asia, whose relevance should not be overlooked, as they participate in
negotiations dealing with both the internal and external dimensions of CT.61 Chairs
were previously occupied by officials of the country holding the rotating presidency and
subject to change every six months. By contrast, the officials’ current mandate places
them in a good position to act as ‘policy entrepreneurs’ in those working groups staffed
by Council and Commission representatives, thus “proposing compelling ideas and
approaches to specific foreign policy issues, by devising ‘strategies’ or ‘sub-strategies’ in
single policy areas”.62
As regards Council bodies dealing with CT stricto sensu, the picture is mixed. The
Director of the Security Policy Division of the EEAS participates in and provides
support to the Standing Committee on Operational Cooperation on Internal Security,
and the Working Party on International Aspects of Terrorism (COTER). Unlike the
geographical working groups, the chairmanship of these bodies has remained with the
member state holding the presidency, although it was recommended, in 2013, to
appoint a permanent EEAS chair to COTER.63 Similarly, the Terrorism Working
Group remains under the chairmanship of the rotating presidency. These “institutional
exceptions”64 suggest that there is a degree of reluctance to relinquish to the EU
complete control over the historically member state-driven CT policies.
These limitations are compounded by the legal ‘disconnect’ between the work of
the CTC and CFSP actors, in the absence of provisions regulating interactions
between them. Whereas the HRVP’s office was transferred to the EEAS after
Lisbon, governments opted to leave the CTC office where it was, a missed
opportunity for the EU to strengthen policy convergence in CT among member
states and institutions.65 Coordination between the internal and external dimen-
sion of CT in the Council will, in all likelihood, remain the task of the CTC,
perhaps limiting the EEAS’ ‘bridge-making’ function to some extent, as well as the
58
Blockmans and Hillion, EEAS 2.0, 16.
59
The obligation of cooperation enshrined under Article 3 takes various other guises, such as duties to “support”, “work
in cooperation with”, and “take part in preparatory work”. See Blockmans and Hillion, EEAS 2.0, 17.
60
Under Article 4(4) EEAS Council Decision, the HR/VP shall designate the chairpersons of Council preparatory bodies
that are chaired by a representative of the High Representative, including the PSC. See Wouters and Chané, “Brussels
meets Westphalia”.
61
See Monar, The External Dimension, 37.
62
Balfour et al., European External Action Service at work, 4.
63
HRVP, EEAS review, 16.
64
Renard, EU CT policies and institutions, 9.
65
Ibid.
8 E. SELLIER
overall coherence of CT policies.66 Nevertheless, in practice the EEAS has bene-

fited enormously from the CTC’s longstanding experience with third countries,
and cooperation between the CTC and the EEAS has occurred on an ad hoc basis,
ranging from mere consultation on implementation reports67 to joint visits to
neighbouring countries.68
The EEAS’ legal basis also provides for a more direct form of participation in preparatory
work and procedures relating to external actions being prepared by the Commission.69 The
EEAS is, in fact, uniquely positioned to take part in this preparatory work with its network of
EU delegations (EUDs), which were transferred from the Commission to the EEAS after
Lisbon.70 EUDs now represent the entire Union and all of its policies, instead of solely the
Commission, whose key focus was previously trade and aid.71 The 9 February 2015 FAC
acknowledged the crucial role played by EUDs in providing on-the-ground inputs to policy-
makers and called for the deployment of a network of 13 CT and security experts in EUDs
located in countries identified as top priorities for CT.72 Delegations are best placed not only
to develop stronger ‘local knowledge’ on terrorism-related issues, but also to feed this
knowledge into decision-making processes within the EU, such as those relating to the
granting of financial aid and assistance, but also to crisis prevention and crisis management.73
… supported by the inclusive nature of EEAS staff

The EEAS’ participation in the making of CT policies has been facilitated by the pooling
of “officials and other servants of the European Union, including personnel from the
diplomatic services of the Member States appointed as temporary agents”.74 Bringing
the bulk of EU and national officials dealing with CT under the same roof indeed made
sense, especially when considering the vast spectrum of units, divisions and DGs
involved in terrorism-related policies. Interviewees reveal that the inclusion of seconded
national experts (SNEs) has proved essential in providing the EEAS with personnel
tailored to its needs and building up CT capacity.75 Since the EEAS was insufficiently
endowed with staff competent in the external dimension of policies traditionally
considered internal,76 the changes were welcomed both in EEAS headquarters and by
EU delegations, as a means to professionalise the Service and foster the emergence of a
security culture.
In Brussels, the CT unit expanded from a task force of merely three officials in 2012,
into a full-fledged unit of 12, featuring 11 SNEs, comprising diplomats, law
66
On the CTC’s role in aggregating EU and national interests, see MacKenzie et al., “The European Union CT
Coordinator”.
67
See EU CT Coordinator, State of play on implementation.
68
Those identified as priority countries in the fight against terrorism in the FAC conclusion of 9 February 2015.
69
70
See Article 221 TFEU.
71
Article 221(1) TFEU. Symbolically, the transfer of EUDs was accompanied by a terminological change: Commission
delegations became Union delegations. See Wouters and Duquet, The EU, EEAS and Union Delegations, 8.
72
Algeria, Iraq, Jordan, Lebanon, Libya, Morocco, Nigeria, Pakistan, Saudi Arabia, Tunisia, Turkey, Chad and Bosnia-
Herzegovina. The CT network is being expanded to the Sahel region, Uzbekistan and Malaysia.
73
Trueb, “Boost or Backlash?”.
74
75
Interviews 2, 3. Council of the EU, 6048/15.
76
Balfour, “Change and Continuity”, 37.
enforcement officials and police officers. CT experts have also been hired in the
traditionally more political units of the EEAS, not directly concerned with security-
related issues.77
Externally, the deployment of a network of security/CT experts has complemented
the more traditional ‘developmental’ nature of the EU delegations’ external action. An
interviewee noted that the essential focus on development of EU external action is
reflected in the professional background of its staff.78 As a result, Heads of Delegations
for example, have little knowledge of how to tackle security challenges. The deployment
of a network of CT experts in third countries has laid the groundwork for the
emergence a ‘new’ generation of EU external relations actors, more acquainted with
security issues.79 This acquires particular significance when considering the EU’s
ambition to have a comprehensive approach in those regions of the world where
development and security are inextricably linked, such as in the Sahel.80
Combining different traditions and organisational cultures has proved challenging,
and some have wondered whether an esprit de corps would ever emerge.81 Others eyed
efforts to develop a security culture within the Union critically, fearing they would
result in the ‘securitisation’ of the development agenda.82 They pointed to the institu-
tional dimension of this securitisation process, and cautioned about the coming into
play of CFSP actors, dubbed a potential “threat” to a “pure” development policy that
needs to be “safeguarded”.83
Additionally, endeavours to pool working cultures have failed to overcome comple-
tely the silo mentality that has pervaded some institutions for years. In the European
Commission, despite the widely acknowledged need to pool expertise among the
various internal and external security actors,84 Commission officials have yet to recog-
nise the Vice-President ‘hat’ of the High Representative. Many have not ‘stomached’ the
dissolution of the DG Relex in 2010 and the transfer of only one third of its staff to the
EEAS following its creation.85 Lack of inter-institutional mobility for staff members has
moreover contributed to exacerbating tensions between the EEAS and the European
Commission. Indeed, two-way exchanges of officials have become more difficult since
the EEAS reserves one third of its positions for SNEs, thus undermining the profes-
sional permeability of the new service, which in turn does little to contribute to its
visibility and,86 arguably, its popularity within the Commission.
77
Such as the geographical units. The EEAS is divided into four departments: (i) administration; (ii) geographical
department, essentially dealing with political matters; (iii) security policies, including CT and intelligence; and (iv)
defence and security missions.
78
Interview 3.
79
Ibid.
80
EEAS, Strategy for Security and Development in the Sahel, 2016.
81
Juncos and Pomorska, “Manufacturing Esprit de Corps”.
82
Chandler, “The security-development nexus”.
83
Giovannetti, “The security-development nexus”.
84
See, inter alia, Malström, “Internal Security Strategy in Action”; European Commission, “The Juncker Commission: A
strong team”.
85
Interview 6. The Commission suffered a huge loss in its competence in foreign and security policy through the
creation of the EEAS, as the whole Relations Extérieures (RELEX) DG was subsumed into the new service.
86
HRVP, Implementing the EEAS Review, 8.
10 E. SELLIER
Synergies at work: EEAS-JHA complementarities in practice

Horizontal coherence: EEAS and JHA agencies
The need to foster synergies and complementarities between CFSP and JHA actors
emerged particularly prominently between the EEAS and JHA agencies after the
terrorist attacks of 2015. HR/VP Mogherini called upon the EEAS to reflect on “how
better to use JHA tools and agencies to support the external dimensions of our fight
against terrorism, and also how CFSP instruments can support the priorities of the JHA
Council”, a call reiterated in the EUGS in 2016, and the Council in 2017.87
Synergies and complementarities have become apparent particularly in two domains
where the EEAS takes centre stage: diplomatic cooperation and Common Security and
Defence Policy (CSDP) missions. With respect to the former, JHA agencies sometimes
encounter difficulties in engaging with third countries;88 the information they receive
from EU delegations is therefore crucial for developing cooperative relations abroad,
and “connecting investigations and dismantling sophisticated criminal groups”; addres-
sing challenges outside the EU “cannot be done without the EEAS”.89 For example, EU
delegations “can and should help Europol in its engagement with third countries, by
providing country-specific information, facilitating contacts and representing the EU as
appropriate”.90
Meanwhile, the exercise of JHA agencies’ external competence is limited in that they
cannot commit the EU to any international obligations or officially represent EU
positions externally. Efforts have been made to facilitate the participation of JHA
agencies in EEAS-led meetings held in third countries,91 and enhancing security
dialogues and practical cross-border activities with third countries coordinated by the
EEAS, the Commission and the CTC has become one of the main focuses of the work
of JHA agencies.92 Meanwhile, the HR/VP recently instructed heads of EU delegations
to increase the participation of Europol, Eurojust and CEPOL in high-level meetings
with representatives from third countries on CT matters.93 As a result, Europol, CEPOL
and Frontex have participated in the EU-Lebanon, EU-Turkey and EU-Israel CT
dialogues.94
Enhanced cooperation in diplomatic matters is not a one-way street, as suggested by
the reciprocity requirement connoting the term ‘synergies’. By pooling technical and
specialist expertise, JHA agencies are indeed key players in the implementation of EU
87
HRVP, “Letter to EU Foreign Affairs Ministers”, 1; European Union, Shared Vision, Common Action, 21 in particular; and
Council of the EU, Council Conclusions on EU External Action, 5; respectively.
88
JHA agencies also have an external competence. Europol and Eurojust, for example, can develop cooperation with
third countries and international organisations and conclude working arrangements and conduct information-
exchanges (with the exception of personal data) with them.
89
Europol’s Deputy Executive Director in “Joint Europol–ESDC Seminar on External and Internal Security of the EU”,
News Article, 6 July 2017. https://www.europol.europa.eu/newsroom/news/joint-europol-esdc-seminar-external-and-
internal-security-of-eu
90
Exchanges of letters under the heading “Enhancement of cooperation between the EEAS and Europol” took place in
November and December 2014. See Council of the EU, Strengthening Ties, 18173/11
91
Council of the EU, 14408/15.
92
Council of the EU, 15579/16; Council of the EU, 14408/15.
93
Ibid.
94
Council of the EU, 15579/16, 46. A positive example of these efforts is the more substantial role for CEPOL and
Europol that resulted from the Turkey-EU CT dialogue, which could extend to CT cooperation in training and
exchanges of best practices and personnel in the near future.
CT policies.95 The CT Coordinator recently emphasised that “(EU) delegations could

greatly benefit from Europol expertise and guidance in police related matters and that
an improvement of their cooperation with Europol . . . could be envisaged”.96 Moreover,
the CTC proposed appointing Europol experts in those countries where CT SNEs have
not yet been deployed, thus suggesting that Europol and EEAS staff may complement
one another to some extent.97 Whereas these developments have remained, to our
knowledge, at the embryonic stage, more concrete achievements have occurred con-
cerning training, which CEPOL is now providing to the network of CT experts
deployed in EU delegations.98
Synergies between the EEAS and JHA agencies have occurred at another, more
concrete level, that of CSDP missions. Subsumed in the CFSP after the entry into
force of the Lisbon Treaty, CSDP missions, which fall under the HR/VP’s supervision,
are de facto an area of EEAS activity, as the crisis management structures and crisis
response mechanisms previously pertaining to the Council were transferred to its
premises. As early as 2011, a roadmap had been prepared jointly by the EEAS and
the European Commission laying the groundwork for enhanced interaction between
the two ambits.99 Yet, the CSDP has never been used specifically for CT purposes until
very recently.100 After the granting under Article 43 TEU by the Lisbon Treaty101 of an
express competence to activate CSDP missions on the grounds of the fight against
terrorism, the first two CSDP missions ever mandated to fight terrorism and organised
crime were launched: a capacity-building mission in Niger (EUCAP Sahel Niger) in
2012, and a military mission in Mali (EUTM Mali) in 2013.
In terms of staff, the blurring of boundaries between the JHA and CFSP domains is
striking. This is particularly the case in EUCAP Sahel Niger. The mission’s staff,
comprising a total of 50 advisors, trainers and mission support personnel work along-
side the security and defence forces, providing advice and training to the military in
some of the civilian security functions they perform.102 Conversely, the criminal justice
and rule of law facets of EUCAP Sahel are complemented by the military training
provided to the Malian armed forces by EUTM Mali.
The integrated approach taken to EUCAP Sahel Niger feeds into a broader ‘para-
digm shift’103 in which civilian missions “evolve towards civil–military–JHA synergies
in the framework of the internal–external security nexus rather than large missions with
the ultimate goal of state-building”.104 Clear illustrations of these shifts are the increas-
ing interactions between JHA agencies and CSDP missions in the fields of information-
95
EU CT Coordinator, 6146/18. See also European Parliament, Priorities of the network, 1.
96
97
Ibid.
98
CEPOL, 06/2016/MB.
99
100
Oliveira Martins and Ferreira-Pereira, “Stepping inside?”
101
Pursuant to this provision, operations and missions falling within the scope of Article 42 TEU, such as joint
disarmament operations, humanitarian and rescue tasks, military advice and assistance, conflict prevention and
peace-keeping, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation,
may all contribute to the fight against terrorism, including by supporting third countries in combating terrorism in
their territories.
102
De Kerchove and Höhn, “The fight against terrorism”, 92.
103
CIVILEX, Analysis of CSDP institutional and policy aspects and lessons learned, a project funded by the European
Commission within H2020 Programme, 2016, 10.
104
Ibid.
12 E. SELLIER
sharing and training. For example, Europol made available criminal information from
its database to the EULEX Kosovo CSDP missions, and the two even agreed to step up
exchanges of personal data through Europol national units in 2012.105
Information exchange may soon move however from bilateral arrangements and ad
hocery, to more institutionalised forms of cooperation. Of particular relevance is the
project to create a ‘crime information cell’ within the CSDP mission EUNAVFORMED
Operation Sophia, in order to reinforce the links between CSDP and JHA and between
law enforcement forces and the military in the field of countering terrorism, among
others.106 It would be responsible for enhancing exchanges of information between
CSDP and JHA agencies and would operate on the basis of reciprocity; criminal data
relevant to the fulfilment of Operation Sophia’s mandate would flow from JHA agen-
cies, while feedback on information provided would then be transmitted to JHA
agencies.107 The cell’s staff would include ten national judicial and law enforcement
officers, as well as JHA agencies personnel, thus mirroring the approach taken in
EUCAP Sahel Niger. Although this pilot project is currently limited to information-
sharing, it lays the ground for developing additional instruments to enhance the judicial
dimension of CSDP-JHA cooperation,108 and for involving JHA agencies on a more
structural basis in CSDP missions.
Training is another field in which the contribution of JHA agencies to CSDP
missions is increasingly substantial. The JHA network, established in 2006 to facilitate
coordination and promote synergies between JHA agencies, began to work with the
EEAS in training in 2016.109 CEPOL has taken centre stage in providing training on
CSDP and the external dimension of JHA to law enforcement officials, police officers
and the military staff likely to be deployed in the field, pursuant to its mandate under
Article 3(d) of the 2015 CEPOL Regulation.110
JHA agencies and the CFSP have been increasingly involved “at the very frontiers of
home affairs”.111 The search for synergies has resulted in the establishment of a clearer,
and arguably more efficient, chain of command and action. As regards CSDP missions
in particular, this synergical approach has been confirmed in other areas of JHA
policies, such as migration and border management,112 thus embedding CSDP missions
in a wider EU approach. This iterative process of transformation of the CSDP, dubbed
“judiciarisation” by some authors,113 is emblematic of the growing JHA-CSDP com-
plementarity, and a concrete manifestation of the imperative of coherence embedded in
the Treaties.
105
Trauner, “New kids on the CFSP block”, 2; and Europol, “Europol and Eulex enhance cooperation”, respectively.
106
107
Ibid., 5.
108
Ibid.
109
110
Article 3(d) reads: “(CEPOL) shall develop, implement and coordinate training which aims to support Member States
and Union bodies in training law enforcement officials for participation in Union missions and law enforcement
capacity-building activities in third countries.” See Regulation 2015/2219.
111
CIVILEX, Analysis of CSDP, 10.
112
Frontex, for example, formally participates in Operation Sophia. See Tardy, Recasting EU Civilian Crisis Management,
11.
113
De Kerchove and Höhn, “The fight against terrorism”, 92. Interview 4.
Vertical and horizontal coherence: INTCEN, as an embryonic hub for

intelligence-sharing
From JHA to CFSP: the successful transfer of INTCEN to EEAS
The case of intelligence cooperation through INTCEN deserves particular attention in
the EU’s search for a coherent approach to CT. Institutionally, the creation of the EEAS
heralded a transfer from INTCEN’s historical position within the Private Office of the
General Secretariat of the Council that it had occupied since 1999 as a prime support to
the High Representative and Council bodies dealing with JHA,114 to the premises of the
diplomatic Service. Otherwise put, INTCEN continues to work under the leadership of
the HR/VP, however its position in the institutional architecture has shifted from JHA
Council formations to CFSP bodies. Although, pursuant to Article 4(2) TEU, national
security is a core national prerogative115 and member states remain the “prime collec-
tors, producers and users of intelligence”,116 the monopolistic position of the Council as
prime consumers of INTCEN’s products ended with the relocation of the Centre. Its
current location in the institutional hierarchy has simplified the chain of command to
some extent and facilitated its engagement with both providers and consumers of
intelligence products.117 Indeed, INTCEN’s reports are no longer distributed only to
the HR/VP and the Council;118 they are disseminated to all decision-makers
concerned,119 spanning CSDP missions, different directorates-general of the
Commission, as well as at other levels of governance, such as EU agencies and national
governments. INTCEN’s relations with DG Home have also improved since 2015-16
and the Commission’s push for a more comprehensive and integrated answer to
security threats after the creation of the Security Union.120
Alongside the multiplication of its consumers, INTCEN has also diversified its
information sources. Indeed, its main added value lies in its capacity to provide threat
assessments using inputs from a variety of sources, with a view to reaching a certain
degree of comprehensiveness and soundness in reporting and analysis and eliminating
the national bias of the information it receives from member states.121 Known as “the
hub for strategic intelligence assessment at EU level” on CT,122 INTCEN’s capacity to
open up the road for multidisciplinary intelligence exchange has been successful from a
civil-military and internal-external perspective. The formation of the Single Intelligence
Analysis Capacity in 2007, which juxtaposed INTCEN with the Intelligence Division of
the EU Military Staff,123 strengthened the ‘civ-mil’ link. Meanwhile, increased
exchanges with EU delegations, notably since the deployment of CT experts to third
countries, has bolstered INTCEN’s external expertise. Prior to its transfer to the EEAS,
114
See Müller-Wille, The effect of International Terrorism, 59.
115
Intelligence falls within that realm. In 2005, the first CTC, Gijs de Vries, stated, “You can’t get closer to the heart of
national sovereignty than national security and intelligence services. Yet in Brussels we have these analysts working
together for the first time.” Quoted in Fägersten, For EU eyes, 2016, 1.
116
Den Boer, “CT, Security and Intelligence”, 211.
117
Cross, “A European Transgovernmental Intelligence Network”.
118
INTCEN’s ‘best’ clients include DG Home, DG Just, DG CONNECT, DG Move, plus the CTC, COSI, TWP/COTER, and the
PSC, alongside the rest of the EEAS and EC commissioners, including King.
119
Müller-Wille, The effect of International Terrorism, 61.
120
Interview 6.
121
Ibid.
122
123
See Van Buuren, “Secret Truth”.
14 E. SELLIER
INTCEN could not task the then European Commission delegations to gather informa-
tion on its behalf.124 Symbolically, INTCEN participated for the first time in the annual
meeting of heads of delegations which took place in Brussels in September 2017.
A higher degree of information-sharing has been complemented by attempts at synergies
between INTCEN and Europol, thus mirroring, to some extent, the rapprochement between
CFSP and JHA actors observed in diplomatic cooperation and CSDP missions. Authors
generally contend that INTCEN and Europol are key actors at the forefront of gathering,
exchanging, and processing information,125 in particular to develop a common understanding
of existing threats.126 Since 2015, INTCEN has been consulted on the production of Europol’s
flagship annual publication, the EU Terrorism Situation and Trend Report127 and, since
the second semester of 2016, INTCEN and Europol have agreed to hold joint presentations
at the Terrorism Working Party (TWP)/COTER of their six-monthly reports. Europol deals
with ‘police intelligence’ and its report addresses internal security challenges, while INTCEN
presents findings on external intelligence. The respective inputs of the two structures are then
gathered in a single document which forms the basis of the TWP conclusions and policy
recommendations submitted to COSI for endorsement.128
Legal limitations and the trust conundrum

Endeavours at coherence, through the creation of synergies between the various struc-
tures competent in addressing security threats and between different types of informa-
tion, are nonetheless constrained by the legal limits of Article 4(2) TEU. Those
limitations reverberated in the provisions of the EEAS Council Decision which, despite
several references to cooperation, were mostly silent about a possible reverse duty of
member states to cooperate with the EEAS, unlike an earlier draft of the document.129
Reliance on national law in the realm of intelligence has at least two consequences. First,
the amount and contents of intelligence that INTCEN is able to pool at the supranational
level are conditional upon what member states are willing to share. Here, institutional
constraints existing at the national level may apply. In some countries, the fragmentation
of intelligence-gathering bodies is not conducive to the blending of internal and external
information that INTCEN purports to achieve.130 Some national legal systems preclude the
merger of financial, judicial, police, and intelligence data and operate strict – sometimes
constitutional – boundaries between those fields, although the trend of the last years has been
one of increased porosity.131 The specificities of national legal and procedural frameworks,
such as confidentiality requirements and disclosure rules, also sometimes prevent informa-
tion from being shared at the supranational level, as illustrated by the difficulties encountered
in the field of terrorist financing.132 Issues of classification have already been identified as
124
Cross, “A European Transgovernmental Intelligence Network”.
125
Bigo et al., National Programmes for Mass Surveillance.
126
European Commission, SWD(2017) 278 final, 13.
127
128
Council of the EU, 15277/1/16.
129
Blockmans and Hillion, EEAS 2.0.
130
Interview 6.
131
See FRA, Surveillance by intelligence services, 2017. See also interview 6.
132
As regards the Financial Intelligence Units, whose investigations rely on multidisciplinary resources, including
financial, administrative and law enforcement information subject to different ‘access’ and ‘exchange’ procedures.
FIUs must sometimes obtain a clearance from a third party to share intelligence with another FIU or use evidence in
legal proceedings in another MS. See European Commission, (2017) 275 final.
prospective obstacles to the effective operation of Operation Sophia’s aforementioned crime

information cell.133
Second, cooperation is impaired by trust issues among the member states themselves,
and between the member states and the EU. In this regard, INTCEN’s original location
in the Council came as no surprise, as nowhere else in the EU’s institutional architec-
ture could participating member states keep better control of it. Originally conceived as
an insiders club with limited staff, involving members who trusted each other enough to
exchange information,134 INTCEN’s evolution was slow, marked by the reluctance of
participating countries to expand quickly, unlike other bureaucracies.135 Despite the
broad consensus that more cooperation at the supranational level is needed, national
brakes were applied to early calls for the establishment of a ‘European CIA’ following
the 9/11 attacks,136 as well as to recent proposals to create an integrated governance
structure.137 Even after its transfer to the EEAS, the intergovernmental modus operandi
of INTCEN has been preserved, alongside the ‘networked approach’, whereby national
experts decide what information to pass on.138
To some extent, feelings of distrust explain why, in substantial terms, some intelli-
gence cooperation takes place at the EU level, but the bulk does not.139 National
services are sometimes loath to exchange analyses and data with INTCEN, in particular
because the Centre’s reports are to be distributed to the 28 member states.140 Moreover,
the widely diverging rules for intelligence gathering in the member states do little to
encourage intelligence cooperation.141 While some of them are seen as very protective,
and apply parliamentary and judicial oversight to intelligence services’ activities, along-
side clear standards of judicial accountability and a solid legal framework of procedural
rights (for example, Germany), others are more lax (for example, France).142 These
differences are compounded by rules that apply specifically to intelligence-sharing, of
which the règle du tiers, whereby information provided by a third party cannot be
shared with another party without its consent, is a famous example.143 Intelligence
exchanges with third countries are consequently limited, as INTCEN needs to file a
formal request to the national service of each contributing member state, and must then
wait for their respective consents.144 Cooperation thus continues to take place, through
other, more informal and wider frameworks of intelligence-sharing whose membership
133
134
Comprising seven intelligence analysts from France, Germany, Italy, The Netherlands, Spain, Sweden and the UK. Van
Buuren, “Secret Truth”.
135
Müller-Wille, The Effect of International Terrorism, 62.
136
Ibid, 50.
137
In 2016, the Commission suggested strengthening the governance of Europol’s ECTC with a ‘programme board’ that
would bring together member states’ law enforcement CT authorities, the Commission, JHA agencies, the EEAS and
INTCEN. See European Commission, COM(2016) 602 final, 13. Earlier, the Commission proposed establishing an
“information exchange hub based on the interaction between the law enforcement community and the intelligence
community”. European Commission, COM(2016) 602 final, 15.
138
139
Müller-Wille, The Effect of International Terrorism.
140
Interview 5.
141
Interview 6.
142
Casagran, Global data.
143
Interview 6.
144
The average response time is approximately two weeks. INTCEN attempted developing intelligence exchanges with
the United States and NATO in the past, but member states were reluctant to have their data shared with third
parties, thus limiting exchanges to analyses, opinions and hypotheses.
16 E. SELLIER
extends well beyond the confines of the EU, such as the CTG or the Club de Berne, the
intelligence-sharing forum of the 28 EU states, plus Switzerland and Norway.145
Dispersal of power and related fundamental rights concerns

Trust deficits notwithstanding, the now reinforced security continuum between for-
merly separate intelligence cultures (internal, external, law enforcement, military)
embodied by the growing role of INTCEN146 reveals that a process of ‘hybridisation’
of intelligence has taken place. 147 INTCEN’s relocation within the EEAS places it at the
interface between a variety of actors, and its bolstered coordination role illustrates the
‘denaturalisation’ of the boundaries between security agencies.148 Attempts to achieve
complementarities between Europol and INTCEN through increased interactions
between the two structures is a case in point.149
Meanwhile, both use the terminology of security and refer to their activities as
“gathering intelligence products”. Europol is identified as a key actor in developing
“intelligence-led law enforcement at EU level”,150 while a cursory reading of the
agency’s ‘services and activities’ webpage suggests that its mandate stretches from
“intelligence-led law enforcement” and “cyber intelligence” to “financial intelligence”,
thereby raising the question of differences between the outputs produced by INTCEN
and those produced by Europol. The borrowing of security terminology from intelli-
gence services, as well as the existence of common databases for police information and
intelligence data in some countries,151 create perplexity as to the type of information
which, in fine, supports decision-making.152 This blurring of the line leaves the observer
with the feeling that agencies are facing a “struggle . . . to play a more important role in
the realm of security”, resulting in a hazy distinction between JHA and CFSP actors,153
where mutual encroachments on the competences of one another cannot be excluded.
These alterations brought to the existing division of labour so as to accommodate the
rise of security threats and build more effective investigation systems, also cause tensions
with the regime of legal protection afforded individuals. While some argue that Europol’s
participation in police investigations is constrained by the lack of access to information
collected by intelligence services154 (which could have helped dismantle terror plots155),
others question whether intelligence information should be used for criminal prosecu-
tion. The right to a fair trial and effective judicial remedy is the cornerstone of the rule of
145
See Müller-Wille, The Effect of International Terrorism, 54. Even there, problems do occur. For example, the political
willingness of MSs to share intelligence in the Club de Berne is far from even, especially when a country has not
suffered a terrorist attack. As noted by the former Deputy Director of the French territorial intelligence services, there
are “holes in the racket”. See Assemblée Nationale, Compte-rendu de la Commission d’enquête, 4.
146
McGill, “Democratic and Parliamentary Accountability”.
147
148
149
See, for example, written question by MEP Hugues Bayet on 7 April 2016, in the immediate aftermath of the Brussels
attacks of 22 March 2016.
150
Council of the European Union, 2005/C53/01, 9.
151
FRA, Surveillance by intelligence services, 2017.
152
An information-exchange agreement was concluded between INTCEN and Europol in 2005. It focuses on strategic
and technical information and analyses, to the exclusion of operational or private data. See Council of the EU, 14050/
05.
153
154
Casagran, Global data.
155
See, for example, the dismantling of the Düsseldorf terror cell through cooperation among the intelligence services
of the US, Morocco and Germany.
law and democratic society,156 and it is crucial that the public prosecutor and defence
counsel have equal access to the evidence that is brought against suspects. This can hardly
be squared with the modus operandi of intelligence services, which is premised on a
culture of secrecy as regards the sources and means of obtaining information.157
Concerns over possible encroachments on individuals’ rights has driven EU lawmakers
to enhance Europol’s accountability by granting the European Parliament greater leeway
in overseeing its activities.158 In contrast, the EP’s scrutiny powers vis-à-vis INTCEN
seemingly remain confined to the MEPs’ possibility to “ask questions”.159
Another source of concern lies in the multidisciplinary products prepared by
INTCEN. The aggregation of both internal and external intelligence at the Union
level, supported by a complex web of interactions between the various bodies entrusted
with fact-finding activities, is a logical manifestation of the recognition of the link
between internal and external security. However, it ignores the distinction made by
some countries between the safeguards afforded individuals when subject to one or
another type of intelligence activity. In France, for example, surveillance acts, as well as
interceptions of communications carried out by external intelligence services, are
subject to less scrutiny than activities performed by internal intelligence services.160
One may wonder whether these guarantees are still relevant when internal intelligence
is meshed together with external intelligence in INTCEN threat assessments and
reports, and then circulated within the 28 member states.
This question is all the more important in the absence of an EU system of oversight
of intelligence activities. Although the EU has acknowledged the tension between
effective judicial protection and the increasing relevance of confidential information
in proceedings, a more protective system of judicial control has not been established.
Quite the reverse, in the revised Rules of Procedure of the General Court, a specific
procedure was inserted for the treatment of secret evidence in particular in antiterrorist
sanctions cases.161 Whereas, in principle, relevant information gathered by one party
must be disclosed to the other party, the procedure enables the General Court to
examine confidential evidence submitted by one party, without it being disclosed to
the other party. Thus, the requirements of effective judicial protection, by which
defendants may challenge inculpatory evidence gathered against them pursuant to the
adversarial principle, should be “weighed against considerations flowing from the
security of the Union, that of its member states, or the conduct of their international
relations”.162
The EU’s hands-off approach to judicial control comes as no surprise. While
transnational information exchange developed a long time ago, and the rhetoric of
156
As enshrined in Article 6 ECHR, and Article 47 of the EU Charter of Fundamental Rights.
157
Eijkman, “Al Qaeda Plot in Europe?”.
158
Argomaniz et al., EU CT and Intelligence, 55-6.
159
Answer given by High Representative/Vice-President Ashton on behalf of the Commission to the parliamentary
question raised by Sophia in’t Velde, OJ C 231, 21 January 2014.
160
Guiton, “Quand le gouvernment remanie discrètement”.
161
The heading of Article 105 is formulated in broad terms and reads: “Information or material pertaining to the
security of the Union or of its member states or to the conduct of their international relations”. (Rules of Procedure of
the General Court of 4 March 2015, OJ 2015, L 105/01). The Explanatory Notes however refer to the use of
confidential information or material in sanctions cases, based on the Court’s experience in several antiterrorist
sanctions cases. See Council of the EU, 7795/14, 102-5.
162
Article 105(5).
18 E. SELLIER
2001 intensified data-sharing flows in various areas of global governance, the judiciary
has indeed remained “bound to national territory”.163 The coexistence of a heteroge-
neous body of national rules raises concerns of legal certainty. There are considerable
differences in the legal protection afforded individuals across the Union, in terms of
both oversight of intelligence activities and access to judicial remedies.164 Courts tend
to defer to the executive branch on questions of national security, so as not to frustrate
the control of executive authorities when perceived as inappropriate to do so, for
example in times of national emergency.165 Moreover, the transnationalisation and
fragmentation of intelligence exchanges, called a “dispersal of power”166 across a variety
of agencies and services, diminishes the relevance and effectiveness of national legisla-
tion and oversight.167 In sum, the formalisation of multilateral cooperation in highly
sensitive areas has occurred without “the larger transfer of national autonomy”,168
thereby suggesting that the application of the principle of coherence is premised on
the paradoxical framework of ‘selectivity’ with respect to which law applies, to whom
and for whose protection.169
Concluding remarks
The EEAS has been integrated well into the CT policymaking chain. Increased coopera-
tion has taken place between the EEAS and JHA agencies in the two ambits of
diplomatic cooperation and CSDP missions. Although it is too early to assess the extent
of such cooperation comprehensively,170 the participation of JHA agencies in fulfilling
CFSP objectives raises interesting questions from the perspective of EU integration and
governance. While CFSP remains the sacrosanct domain of the member states, JHA
actors differ in terms of mandate, competence and budget. One may wonder how to
reconcile these two areas in the fight against CT without risking mutual encroachments
on the competences of the other, and creating tensions between national and suprana-
tional prerogatives.171 Reconciling JHA and CFSP players under the same imperative of
coherence has already generated tensions.
Placing INTCEN at the crossroads of different dynamics – intergovernmental and
supranational, internal and external, and civilian and military – has triggered a de facto
embryonic process of supranationalisation, despite member states’ reluctance to do so.
Whereas endeavours towards multidisciplinarity are welcome from the perspective of
163
Ibid., 393.
164
Member states have adopted different approaches to due process rights, alongside procedural frameworks applic-
able to intelligence activities. See FRA 2017, op. cit.
165
Murphy, EU CT Law, 48; De Londras and Davis, “Controlling the executive”, 25; for similar conclusions, see also
Tushnet, “Controlling executive power”, 2673-82.
166
Murphy, EU CT Law, 233.
167
With regard to surveillance activities carried out by intelligence services European Parliament has noted that, “. . . the
world becomes more and more wired and interconnected, . . . leading to an unclear situation regarding jurisdiction
and diminishing the relevance of national legislation and of national oversight”. European Parliament, Working
Document on Democratic oversight, 3.
168
E. Denza, speaking on the CFSP and the pre-Lisbon pillared structure. Quoted in Murphy EU CT Law, 38, footnote 31.
169
The principle of “selectivity” is an underlying feature of the war on terror, see Duffy, The ‘War on Terror’, 921.
170
For an overview of JHA-CSDP ties in CT, see, for example, Tardy, Recasting EU Civilian Crisis Management; CIVILEX,
Analysis of CSDP; on the interplay between JHA and the CSDP in migration law, see Blockmans, New thrust for the
CSDP.
171
Greater involvement of JHA agencies could force member states to accept some loss of control and increased
pooling of sovereignty in CSDP. Tardy, Recasting EU Civilian Crisis Management, 20.
institutional coherence, procedural frameworks devised to oversee intelligence activities

have remained nationally bounded. Current efforts towards coherence remain subject to
a two-speed process: one that encourages the meshing together of institutional actors
and the intertwining of policy cultures, while fundamental rights take the backseat to
supranationalisation. The EU’s piecemeal strategy, alongside the human rights concerns
it raises, will deserve as much attention, if not more, than the need for an effective
response to terrorism emphasised in the many calls for a comprehensive approach.
Interviews
Interview 1. EEAS official, February 2017, Brussels.
Interview 2. EEAS official, March 2017, Brussels.
Interview 4. Council of the EU official, March 2017, Brussels.
Interview 7. EEAS official, April 2017, Brussels.
Interview 8. Commission official, July 2017, Brussels.
Notes on contributor
Elodie Sellier is a PhD candidate at the Centre for European Law of the Université libre de
Bruxelles, Brussels, Belgium.
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The European External Action Service, Counterterrorism

CONTACT Elodie Sellier elodie.sellier@ulb.ac.be; @elo.sellier

The principle of coherence in external action after the Lisbon Treaty

The principle of coherence in post-Lisbon external relations

Institutional coherence and the EEAS’ role in CT policymaking

. . . to direct participation in decision-making . . .

overall coherence of CT policies.66 Nevertheless, in practice the EEAS has bene-

… supported by the inclusive nature of EEAS staﬀ

Synergies at work: EEAS-JHA complementarities in practice

CT policies.95 The CT Coordinator recently emphasised that “(EU) delegations could

Vertical and horizontal coherence: INTCEN, as an embryonic hub for

Legal limitations and the trust conundrum

prospective obstacles to the eﬀective operation of Operation Sophia’s aforementioned crime

Dispersal of power and related fundamental rights concerns

institutional coherence, procedural frameworks devised to oversee intelligence activities

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