Severe differences of agenda: antiterrorism debate in Romania and the EU

CRPE-Policy-Brief-36 Dezbaterea anti terorism in Romania si UE.1-page-001CRPE Policy Brief no. 36 / February 2015. Authors: Cristian Ghinea, Alexandru Damian. The Romanian Center for European Policies (CRPE) analyzes in the policy brief “Severe differences of agenda: Anti terrorism debate in Romania and the EU” the legislative package on national security, known to the public as the “Big Brother laws”, and their similarities and differences with EU legislation.

After every attack that shook the public conscience, the anti-terrorism legislation in the EU had the tendency to accelerate the process of cooperation and unification – although without ignoring that justice and internal affairs remain, in essence, a prerogative of the intergovernmental spectrum.


Big Brother 1 – Telecommunications Data Retention

In 2009, the Romanian Constitutional Court (CCR) rejected the first directive transposition law, being confirmed in its decision by the European Court of Justice in 2014. After the decision of the Luxembourg Court, the CCR unanimously rejected the second law transposing the directive.

Interesting to mention that rejection by the European Court does not automatically abrogate the transposition law voted by the national Parliaments, leaving at the judgement of the Member States the subsequent steps. The initial aim of this directive was to standardize the data retention rules of the companies in this domain. This aim was nevertheless reached through the transposition laws. Even after the abrogation of the directive, the goal remains reached, with the exception of the states where the law is explicitly annulled by the national Constitutional Court – as in Romania.  The case of the UK is special: the London Government decided, after the rejection of the directive, to implement a new set of national laws – “DRIPA” (Data Retention and Investigatory Power Acts 2014). The laws sparked protests due to the rapid adoption (three days), leaving no space for any public debate.

Big Brother 2 – Prepaid phone cards and Wi-Fi networks.

The Romanian debate on the registration of prepaid SIM card users forewent the European one that was an extension of the discussions that followed the implementation of the data retention directive in the Member States. In 2011, the increase of the number of Member States that adopted measures which

required the registration of prepaid SIM cards (The Nederland, Spain, Italy, Greece, Slovakia and Bulgaria, measure that was subsequently supported by Poland, Cyprus and Lithuania) determined the European Commission to consider a call for action at EU level. The main argument favoring the regulation of the European framework focused on the possibility that a person could buy a prepaid SIM card in one Member State and use it in committing a felony in another, this implying an impossibility to identify the person in cause. Curiously, at that time Romania was not among the countries that supported the adoption of this measure at EU level.

After discussions, the Commission was not convinced by the necessity to act in this regard. In Romania, the debate on the registration of prepaid SIM card users appeared as consequence of the terrorist attack in July 2012 in Bulgaria, when the attackers uses such SIM cards.  The discussions concretized after the modification of the Government Ordinance OU111/2011 on electronic communications, decision which was later on adopted by the Parliament in July 2014. In addition to the EU level debate, Romania imposed the Wi-Fi operators to solicit and store users’ personal data.

The Constitutional Court rejected this law as well in September 2014. Immediately after the Paris attacks, the Minister of Internal Affairs convened a joint session of the Strategic Inter-ministerial group for the prevention and combat against macro-criminality and the National Committee for Special Emergency Situations, having on the agenda “the need to ensure the normative instrument necessary to the national security structures”. On the background of complex name labels and cumbersome language, we see the use of the Paris events as opportunity to readdress the laws rejected by the Court, however without offering solutions to the problems signaled by the rejection decision.

Big Brother 3 – Cyber Security

The form of the cybernetic security law adopted by the Parliament on 19 December 2014 is in extreme contradiction with the pattern set by the directive at EU level. It is interesting to observe that in the rejection of this law (CCR Decision no. 17/2015) the Court invokes a form of the European directive that is not the final one, but only a layout voted by the European Parliament. We consider this to be a positive precedent: the legislative debates in Romania have to take into account the European ones which will be applied to Romania in the near future.

The major difference observed by the Court between the NIS directive and the cyber security law refers to the coordination authorities of cybernetic security. In the last variant of the directive, the one adopted by the EP in March 2014, these are defined as civil organisms under complete democratic supervision. The Cyber Security Law establishes as national authority in the field of cybernetic security the Romanian Intelligence Service (SRI), and as contact point the national Center for Cybernetic Security, which is under the SRI authority.

It is hard to understand why the Romanian Government proposes in May 2014 and the Parliament votes in December 2014 a law which makes out of the SRI the institution of coordination when the EP specifically decided in March 2014 that the Member States should empower in this case a civil authority.

The full report in Romanian language can be found here.

Cristian Ghinea is the Director of the Romanian Center for European Policies and coordinates projects in the field of foreign affairs, justice and anti-corruption. He graduated in Political Science and further studied European Governance at the London School of Economics (2007 – 2008). He authored the volume “Eu votez DNA – De ce merita sa aparam institutiile anticoruptie” published by Humanitas Publishing House in 2012 and for over 15 years writes editorials in “Dilema veche” newspaper.

Alexandru Damian is a researcher within the Romanian Center for European Policies, his interests being the security and foreign policy of the EU, more specifically the fields of justice and anticorruption. He graduated in Political Science and attended a MA focused on Security Studies at the free University of Brussels.

This policy Brief was elaborated in the framework of the project Influent, alert and informed in the EU negotiations – Expertise and consultancy in European policies, financed through the SEE Grants 2009-2014 under the framework of the NGO Fund in Romania.

The contents of this report may not necessarily represent the official position of the SEE Grants 2009-2014.  The project promoter, the Romanian Centre for European Policies and the authors are entirely responsible for the correctness and coherence of the information presented herewith.