On May 17, 2019 the Council of the European Union has established
a framework which allows the EU to impose targeted restrictive measures to deter and respond to cyber-attacks which constitute an external threat to the EU or its member states, including cyber-attacks against third States or international organisations where restricted measures are considered necessary to achieve the objectives of the Common Foreign and Security Policy (CFSP).
In other words, this framework allows the EU to enforce a series of sanctions – including the prohibition of entry into the EU – to those who attack the computer resources located in the Union from other countries. At first glance, everything would look normal and – all in all – acceptable. But since the devil is in the details, a more in-depth look at the matter reveals a few problems.
Firstly, the violation of the principles of due process: a computer attack is a crime and for sanctions to be applied to the culprits, a proper trial is necessary. In the outline envisaged by the Council of European Union, this is not foreseen. A blatant violation of the fundamental rights of the individual (also) recognized by the Nice Charter.
Secondly, even if the first condition is met, it must be remembered that in criminal matters the jurisdiction belongs strictly and solely to the national legislator. What cases and which penal codes or similar rules will be applied in order to decide whether we are dealing with an event which falls within the scope of the ‘framework’ laid down by the Council?
Thirdly, are we talking about public policy, state security or the defense of the interests of the Union? The question is not trivial because in the first case the “domain” is that of a hypothetical “EU Ministry of the Interior”, in the second of the hypothetical “European secret services” and in the third case of the “Ministry of Defense”. Ambiguously, however, the Council speaks of “discouraging” (i.e. “preventing”) and “opposing” (i.e. “reacting”) in order to achieve the objectives of the foreign policy “And” those of the common security. This means that “prevention” and “reaction” to the cyber attacks are instruments of “enforcement” of the foreign policy of the EU also independently of security issues.
Let’s get ready to face very interesting issues…
