Accounting for rights in EU counter-terrorism: towards effective review

Since 2001 the European Union (EU) has developed a rich and wide-ranging body of counter-terrorism law. However, in making and implementing that law the EU, its institutions and its member states have often failed to adequately account for fundamental rights. Thus, EU counter-terrorism has been criticized as unduly interfering with the right to privacy, for example, to the extent that the Court of Justice struck down the Data Retention Directive in 2014 on fundamental rights grounds. This Article outlines the mechanisms by which rights are accounted for in EU counter-terrorism, identifying the deficiencies in current practices. The article argues for an effective “feedback loop” in EU counter-terrorism, advocating the design and implementation of a system of regular and evaluative reviews of EU counter-terrorist laws with a view to both identifying and remedying rights-related deficiencies in those laws, and improving the governance of EU counter-terrorism in order to reduce the likelihood of such deficiencies arising in future law-making processes. Such a system, the Article argues, ought to be designed by reference to the principles of cooperation, transparency and responsiveness.