Explanatory Memorandum to COM(2003)687 - European Agency for the Management of Operational Co-operation at the External Borders - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2003)687 - European Agency for the Management of Operational Co-operation at the External Borders. |
|---|---|
| source | COM(2003)687  |
| date | 11-11-2003 |
In the field of the EU external borders, Community policy aims at an integrated management, thereby ensuring a high and uniform level of control of persons and surveillance at the external borders as a prerequisite for an area of freedom, security and justice. This objective of an integrated border management requires, as foreseen by Article 62 i (a) of the Treaty, the establishment of common rules as to the standards and procedures to be followed by Member States when controlling the external borders.
Given that the Member States are responsible for implementing, at an operational level, such common rules, Community policy would inevitably benefit from an increased co-ordination of their activities with regard to control and surveillance of the external borders.
In the Communication from the Commission to the Council and the European Parliament with the title 'Towards integrated management of the external borders of the Member States of the European Union' from 7 May 2002 i, the Commission advocated the setting up of an "External borders practitioners' common unit" tasked with managing operational co-operation at the external borders of the Member States.
The Plan for the management of the external borders of the Member States of the European Union (the Plan) agreed by the Council on 13 June 2002 i endorsed the setting up of an external borders practitioners' common unit (the Common Unit) in the framework of the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) as a means to establish an integrated management of the external borders.
In the Plan, the main tasks of the Common Unit, which started its work as SCIFA+ during the second half of 2002, is defined as acting as 'head' of the common policy on management of external borders and as a 'leader' co-ordinating and controlling operational projects.
In its report to the Council on the implementation of programmes, ad hoc centres, pilot projects and joint operations from 11 June 2003 i, the Greek Presidency concluded that with regard to the pilot projects and joint operations, the absence of a monitoring mechanism and of a method for independent and thorough evaluation as well as for the processing and utilisation of results was particularly evident. The Presidency accordingly called for an examination of the necessity of a new institutional structure in order to enhance operational co-operation for the management of external borders.
In the Communication from the Commission to the European Parliament and the Council in view of the European Council of Thessaloniki on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders and the return of illegal residents i from 3 June 2003, the Commission pointed out, that the Common Unit has shown structural limits with regard to the co-ordination of the operational co-operation at the external borders. The Commission therefore proposed that certain more strategic co-ordination tasks could remain with the Common Unit, whereas the more operational tasks could be entrusted to a new permanent Community structure able to exercise day-to-day management and co-ordination tasks and to respond in time to emergency situations.
In its Conclusions on effective management of the external borders of the EU Member States of 5 June 2003 i, the Council called for the reinforcement of the Common Unit as a Council Working Party by experts seconded from the Member States to the Secretariat General of the Council.
The Thessaloniki European Council at its meeting on 19 and 20 June 2003, endorsed the above mentioned Council Conclusions of 5 June 2003, and invited the Commission to examine the necessity of creating new institutional mechanisms, including the possible creation of a Community operational structure, in order to enhance operational co-operation for the management of external borders.
In the conclusions of the European Council on 16 and 17 October 2003, the European Council welcomes the Commission's intention to present a proposal for an Agency for the management of external borders, in time for the Council to reach political agreement on its main elements by the end of the year.
This proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders intends to meet that invitation of the European Council. It takes into account the experiences of co-operation between the Member States in the framework of the Common Unit from which the Agency shall take over the co-ordination of the operational co-operation.
In comparison with the Common Unit, the Agency has been given the additional task of co-ordinating and organising return operations of Member States and identifying best practices on the acquisition of travel documents and removal of third country nationals from the territories of the Member States. This is justified by the fact that in most Member States, the operational aspects of removal of third-country nationals fall under the competencies of the authorities responsible for controlling the external borders.
Conducting a credible immigration policy requires the possibility of returning third-country nationals residing illegally in the Member States. Based on the Communication from the Commission to the Council and the European Parliament on a Community return policy on illegal residents i, the Council has adopted an action plan on a Community return policy. The Commission is the driving force behind the implementation of the Community return policy, tabling a proposal for a Financial Instrument for Return Management and in early 2004 a proposal for a Council Directive on minimum standards for return procedures and mutual recognition of return decisions. Moreover, the Community has already entered into, or is in the process of negotiating, readmission agreements with a number of key third countries. Co-ordination by the Agency of the operational aspects of removal of third country nationals illegally residing in the Member States is thus an important task in the implementation of the Community return policy.
Contents
- 2. OBJECTIVE
- 3. IMPLEMENTATION
- 4. FUNDING
- 5. CHOICE OF COMMUNITY STRUCTURE
- 6. CHOICE OF THE LEGAL BASIS
- United Kingdom and Ireland
- Denmark
- Norway and Iceland
- Acceding States
- 7. SUBSIDIARITY AND PROPORTIONALITY
- Subsidiarity
- Proportionality
- 8. COMMENTARY ON ARTICLES
- Article 2
- Article 3
- Article 4
- Article 5
- Article 6
- Article 7
- Article 8
- Article 9
- Article 10
- Article 11
- Article 12
- Article 13
- Article 14
- Article 15
- Article 16
- Article 17
- Article 18
- Article 19
- Article 20
- Article 21
- Article 22
- Article 23
- Article 24
- Article 25
- Article 26
- Article 27
- Article 28
- Article 29
- Article 30
- Article 31
The main objective of Community policy in the field of the EU external borders is to create an integrated border management, which would ensure a high and uniform level of control and surveillance, an essential prerequisite for an area of freedom, security and justice. This objective requires, as foreseen by Article 62 i (a) of the Treaty, the establishment of common rules as to the standards and procedures to be followed by Member States when controlling the external borders.
With the integration of the Schengen acquis into the framework of the EU, such common rules on the control and surveillance of external borders already exist at Community level.
The common rules are applied at an operational level, by the competent national authorities of the Member States, who form part of the area without internal borders. Experience has, however, shown, that for optimal effectiveness, it is not sufficient that national authorities simply apply common rules, rather it is imperative that they apply those common rules in a harmonised way, thus ensuring at all external borders an equally high level of control and surveillance. For this reason, it has been increasingly recognised that Community policy on control and surveillance of the external borders would benefit from an increased co-operation between the competent national authorities.
The objective of this Regulation is, thus, to render more effective the implementation of Community policy on the management of the external borders by better co-ordinating the operational co-operation between the Member States via the creation of an Agency. The mission of this Agency would be to facilitate the application of existing and future Community measures relating to the management of the external borders by ensuring the co-ordination of Member States' actions in the implementation of those measures.
The Agency will therefore not be given a policy making role, nor would it make legislative proposals or exercise implementing powers within the meaning of Article 202 of the Treaty. It shall simply assist Member States in implementing Community legislation in the fields of control and surveillance of the external borders and removal of third-country nationals.
The Agency shall for this purpose develop and apply guidelines, inter alia, on training of border guards, but such guidelines will have the character of 'soft law' only.
Community legislation on control and surveillance of the external borders and removal of third-country nationals shall, of course, continue to be created in accordance with the Community method.
The Commission will be represented on the Agency's Management Board and will provide any relevant advice and guidance, where Community legislation may be concerned.
The Agency's activities will be purely supplementary to those of the national services of Member States responsible for control and surveillance of the external borders and removal of third- country nationals.
The main tasks of the Agency are:
- Co-ordination of the operational co-operation between Member States in the field of control and surveillance of the external borders.
- Rendering assistance to Member States on training of their national border guards by providing training at European level for national instructors of border guards, as well as holding seminars and offering additional training to officers of national border guards.
- Carrying out of general and tailored risk assessments.
- Follow-up on developments in research relevant for the control and surveillance of the external borders.
- Rendering assistance to Member States confronted with circumstances requiring increased operational and technical assistance at the external borders.
- Co-ordination of operational co-operation between Member States on removal of third-country nationals illegally residing in Member States.
The tasks listed above are essentially similar to those of the Common Unit.
In executing its duties, the agency should co-operate with and take account of the work of other services involved in controls at the external border, in particular customs who have the main responsibility for the control of goods at the external borders. In this respect, and in the light of the recent Communication on the role of customs in the integrated management of external borders there should be periodic reviews of possible synergies between the work carried out by the agency and that carried out by customs and other services operating at the frontier.
On the basis of the experiences derived from this Agency, the Commission can proposeto widen the scope of the Agency's tasks to encompass other matters related to the management of the external borders.
As can be seen from the list of tasks, the Agency will take over the activities that are today covered by various projects on the development of a common integrated risk assessment model (CIRAM), a common core curriculum for border guards' training and research in technologies relevant for control and surveillance of the external borders respectively.
This is done, because these activities are horizontal matters at the very core of the concept of integrated management of the external borders. They are not linked to a particular type of border, and they should accordingly be managed centrally in order to ensure the coherence and the uniformity of the concepts and criteria to be applied in all the Member States.
The creation of an Agency tasked with co-ordinating the operational aspects of control and surveillance of the external borders constitutes a concrete and important step towards achieving solidarity between Member States in the field of the management of the external borders.
The Agency will thus set up and keep centralised records of technical border control equipment, that Member States would be willing to put at the disposal of each other on a temporary basis following a needs and risks assessment carried out by the Agency.
The Agency will itself acquire technical equipment for its experts, but this equipment can also be put at the disposal of Member States participating in joint operations and pilot projects. In this way the agency will make a really significant contribution with regard to burden sharing.
One of the main advantages of establishing a centralised structure such as an agency in the field of operational border management would be the improved ability to assist in tackling a possible critical situation at the external borders at European level.
As can be seen from the recent past, such crises are bound to occur from time to time, especially in the Mediterranean. Large numbers of illegal immigrants trying to cross the same external borders area of the European Union under conditions requiring special efforts from the Member State(s) responsible for guarding that particular external border, require co-ordination and co-operation not just at local or regional, but at European level.
In these cases the Agency could assist the affected Member States on co-ordination matters. The agency could also temporarily deploy its experts with equipment to support the competent national authorities.
The Agency shall co-operate directly with Member States and co-ordinate all joint operations and pilot projects at the external borders.
The Agency shall establish its own specialised branches responsible for dealing with the specific aspects of control and surveillance of land, air, and maritime borders by transforming the existing, more informal, centres' structure into a Community structure.
The specialised branches are, as local offices of the Agency, an integrated part of structure of the Agency. They shall report to and take instructions from the Agency.
Member States may submit proposals for joint operations and pilot projects to the Agency for evaluation and approval. When deciding on the proposals, the Agency shall emphasise on their relevance, compatibility and added value. In addition, the Agency may decide itself to launch initiatives for joint operations and pilot projects with the Member States. The Agency operates through its specialised branches for the operational organisation of such joint operations and pilot projects.
It should be stressed that the staff of the Agency, including the national experts detached by Member States, as a starting point, does not have any law enforcing competencies in Member States and consequently does not carry out actual controls at the external borders.
As for the funding of operations, the Agency may decide to co-finance joint operations and pilot projects proposed and carried out by Member States. It shall evaluate the results of operations and projects and make a comparative analysis thereof with a view to enhancing the quality of future operations.
The horizontal matters (training for border guards, risk analysis and follow-up on research) will be carried out by the Agency alone.
Concerning the co-ordination and organisation of joint return operations, the Agency will provide Member States with the necessary technical support in organising joint return operations, e.g. by developing a network of contact points to that end, by keeping an up-to-date inventory of existing and available resources and facilities, or by preparing specific guidelines and recommendations on joint return operations.
As mentioned above, the Agency can assist Member States confronted with circumstances requiring increased technical and operational assistance at the external borders on co-ordination matters. It can also deploy its own experts and technical equipment in the Member State(s) concerned. However, the experts will have a purely consultative role and not participate actively in strictly law enforcing activities.
The Agency may co-finance joint operations and pilot projects at the external borders with grants from its budget in accordance with the Agency's Financial Regulation. The Agency, in its proposal for the annual working programme, will be able to identify some of these operations and projects, and invite Member States to participate in their implementation.
The choice of establishing an agency in the field of management of the operational co-operation at the external borders is justified by the clear need for creating an independent, specialised Community operational structure, as foreseen by the Thessaloniki European Council in order to improve the operational co-operation between Member States.
When settling for the option of establishing an agency, the Commission has emphasised the fact, that the Agency will be in a better position than even the Commission itself to accumulate the highly technical know-how on control and surveillance of the external borders that will be necessary, if the Agency shall give an added value to the operational co-operation in its field. Moreover, the establishment of an Agency is expected to lead to increased visibility for the management of external borders in the public and cost-savings with regard to the operational co-operation falling under its competence.
The present proposal for a Regulation establishing a European Agency for the Management of the operational co-operation at the External Borders has been drafted with account to the White Paper on European Governance i from 25 July 2001, the Meta-Evaluation on the Community Agency System i carried out by the Commission, the Communication from the Commission on the operating framework for the European Regulatory Agencies i, and the Commission Regulation of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities i.
In this framework, specific attention should be paid, besides standard questions on the efficiency and effectiveness of the Agency, to issues such as coherence with Community policy, the actual contribution of the Agency to the delivery of such a policy, the added value provided by the Agency as an organisational form of implementation of Community policy, the longer-term impact of the Agency's activities on its final beneficiaries (i. e. the national competent authorities of Member States). A more formal analysis to that end will be undertaken in parallel with the legislative process.
The Agency established by this Regulation is a regulatory one tasked with the mission of rendering assistance to Member States in implementing Community legislation in this field by co-ordinating operational aspects of co-operation at the external borders.
Article 66 of the Treaty establishing the European Community is the legal basis of this Regulation whose immediate objective is to support the progressive establishment of an area of freedom, security and justice via the reinforcement of the administrative co-operation between the relevant departments of each Member State and the Commission concerning the implementation of the Schengen acquis on control and surveillance of the external borders and on return.
As the legal basis for the proposal for a Regulation is under Title IV of the Treaty establishing the European Community, it is affected by the 'variable geometry' arising from the Protocols on the positions of the United Kingdom, Ireland and Denmark. The Community policy on integrated management of the external borders is Schengen acquis, and the present proposal for a Regulation consequently builds upon the Schengen acquis. Consideration must therefore be given to certain consequences arising from the various Protocols.
According to Articles 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union, 'Ireland and the United Kingdom of Great Britain and Northern Ireland, which are not bound by the Schengen acquis, may at any time request to take part in some or all of the provisions of the acquis.'
This proposal constitutes a development of the Schengen acquis, in which the United Kingdom and Ireland do not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland, and Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis. The United Kingdom and Ireland are therefore not taking part in its adoption and are not bound by it or subject to its application.
Under the Protocol on the Position of Denmark annexed to the Treaty on European Union , Denmark does not take part in the adoption by the Council of measures pursuant to Title IV of the Treaty establishing the European Community, with the exception of 'measures determining the third countries whose nationals must be in possession of visas when crossing the external borders, or measures relating to a uniform format for visas' (former Article 100c of the Treaty establishing the European Community).
As these proposals constitute a development of the Schengen acquis and following Article 5 of the Protocol, 'Denmark shall decide within a period of 6 months after the Council has decided on a proposal or initiative to build upon the Schengen acquis under the provisions of Title IV of the Treaty establishing the European Community, whether it will implement this decision in its national law'.
In accordance with Article 6 first indent of the Schengen Protocol, an Agreement has been signed on 18 May 1999 between the Council, Norway and Iceland in order to associate those two countries with the implementation, application and development of the Schengen acquis i.
Article 1 of the Agreement provides that Norway and Iceland are to be associated with the activities of the EC and the EU in the fields covered by the provisions referred to in Annexes A (provisions of the Schengen acquis) and B (provisions of European Community acts which have replaced corresponding provisions of - or were adopted pursuant to - the Schengen Convention) to the Agreement and their further development.
According to Article 2 of the Agreement, the provisions of all acts or measures taken by the European Union amending or building upon the Schengen acquis (Annex A, B) shall be implemented and applied by Norway and Iceland.
The present proposal builds upon the Schengen acquis as defined in Annex A of the Agreement.
The matter must therefore be discussed in the 'Mixed Committee' provided for in Article 4 of the Agreement to allow Norway and Iceland 'to explain the problems they encounter in respect of' the measure and 'to express themselves on any questions concerning the development of provisions of concern to them or the implementation thereof.'
Since the initiative constitutes an act building upon the Schengen acquis or otherwise related to it within the meaning of Article 3 i of the Act of Accession, it shall apply in the new Member States from accession onwards.
Title IV on visas, asylum, immigration and other policies related to the free movements of persons creates a Community responsibility in these fields. This responsibility must, however, be exercised in accordance with Article 5 of the Treaty establishing the European Community; i. e. if and in so far as action taken at Community level offers clear advantages, by reason of its scale or effects, over action at Member State level. The proposal for a Regulation satisfies these criteria.
Individual national administrations are not able to establish a comprehensive and integrated European management of the operational co-operation in the fields of control of the external borders and removal of third-country nationals from the territories of the Member States. A Community structure is therefore necessary for improving the operational co-operation among them. The actual carrying out of the joint operations and pilot projects are reserved to the Member States.
The Regulation establishes a Community Agency providing co-ordination of operational co-operation, financial support, as well as training and other horizontal matters in the field of control and surveillance of the external borders and removal of third-country nationals to the Member States. As a Community structure, the Agency must be subject to clear and uniform rules contained in a Council Regulation, which is the appropriate instrument for establishing Community Agencies.
Article 1
The Article deals with the establishment of the Agency. It sets down the objective of the Agency.
The Article describes the main tasks of the Agency.
The Article describes the competencies of the Agency with regard to joint operations and pilot projects at the external borders.
By 'joint operation' is meant operational activities carried out by two or more Member States, and possibly in co-operation with the Agency, with a view to strengthen surveillance and control at a section of the external borders.
By 'pilot project' is meant operational activities related to surveillance and control of the external borders with a view to examining the feasibility of applying a certain operational methodology and/or certain technical equipment.
The operational activities covered by Article 3 would correspond to those in the field of external border control and surveillance presently co-financed under the ARGO programme. The ARGO programme will be replaced by the Agency in so far as operational co-operation at external borders is concerned.
The Agency shall on the basis of proposals from Member States select operations and projects for co-funding and co-ordinate these projects. It may also itself launch projects and operations in coo-operation with Member States. The Agency may decide to put its technical equipment at the disposal of Member States participating in projects and operations. The Agency shall evaluate the results of all operations and projects and publish a comparative analysis of the results in its general annual report to the European Parliament, the Council, the Commission, the European Social Committee and the Court of Auditors, cf. Article 17 i (b).
According to the Article, the Agency shall carry out general and tailored risk assessments.
General risk assessments are used to determine the risks with regard to all the EU external borders posed by illegal immigration, whereas the tailored risk analyses focus on local particularities of a certain part of the external borders or on particular trends in the modus operandi of illegal immigration. An example of what risk assessments can entail, could be the assessment of the risk of illegal immigrants trying to cross a particular section of the external border, taking into account information on the surveillance of that section of the border, the geographical features of the area, as well as intelligence on the modus operandi of illegal immigration in the area in question. On the basis of an analysis of these informations, possible remedies should be identified. As risk assessment is a horizontal task at the core of the concept of integrated management of the external borders, the Agency will take over the responsibility for this task from the Finnish Risk Analysis Centre (RAC). In developing a common integrated risk assessment model, the Agency shall build upon the already established CIRAM.
According to the Article, the Agency shall be responsible for the training of national instructors and offer seminars and additional training for officers of the national border guards. As this is a horizontal task at the core of the concept of integrated management of the external borders, the Agency will take over the responsibility for this task from the Austrian Ad-hoc Centre for Border Guard Training (ACT). In developing a common core curriculum for border guards' training, the Agency shall build upon the already established Common Core Curriculum. The common core curriculum would contain guidelines on how to carry out the tasks of a border guard officer focusing e. g. on lessons on enforcement measures/sanctions, control activities, investigation activities, administration, operations equipment and methods and personality development.
According to the Article, the Agency shall closely follow developments in scientific research relevant for the control and surveillance of external borders.
As examples of types of research that the Agency should follow up on, could be mentioned research in devices for detection of illegal immigrants hiding in cars, lorries or trains, and independent scientific studies of patterns in illegal immigration.
It shall disseminate the information it obtains to the Commission and the Member States, e. g. through seminars and reports.
As a measure to attain a higher degree of solidarity between Member States in this field, the Agency shall set up and keep centralised records of technical equipment of Member States for control and surveillance of the external borders. On the basis of a needs and risks assessment, the Agency can request the Member State, which owns the technical equipment in question, to put it at the disposal of another Member State for a temporary period.
Member States confronted with circumstances requiring increased technical and operational assistance when controlling the external borders may request the Agency for assistance.
The Agency can organise the appropriate operational and technical assistance, This may consist in assistance on co-ordination with other Member States and deployment of experts on control and surveillance of the external borders together with their technical equipment. The experts can only support the competent national authorities and have no law enforcing competencies in the Member State(s) in which they are deployed.
It should be underlined, that the 'circumstances requiring increased technical and operational assistance' of Article 8 of this Regulation do not correspond to the 'emergency situation characterised by a sudden inflow of nationals of third countries' mentioned in Article 64 i of the Treaty. Moreover, whereas the provisional measures adopted by the Council with reference to Article 64 i are of a legislative and political nature, the actions that could be taken by the Agency under Article 8, are obviously limited to purely operational and technical assistance on the ground in order to re-establish a high level of control and surveillance of the section of the external border in question.
The Agency will provide Member States with the necessary technical support in organising joint return operations, e.g. by developing a network of contact points to that end, by keeping an up-to-date inventory of existing and available resources and facilities, or by preparing specific guidelines and recommendations on joint return operations.
This Article authorises the Agency to set up information exchange systems with the Commission and the Member States. The Agency may for this purpose decide to use already existing facilities, such as the ICONET system.
The Agency should be able to exchange strategic non-personal information both with EUROPOL (acting within the third pillar of the Community framework and tasked with the fight against illegal immigration networks and trafficking in human beings) and relevant competent authorities of third countries, as well as international organisations, such as Interpol. Such information exchange is deemed vital for the Agency's ability to gather the necessary intelligence for its risk assessments. Already today, EUROPOL is heavily involved in the work done in this field in the framework of the Common Unit.
As mentioned above, the information exchanged between the Agency and other relevant actors would not contain personal data, but focus on general information on recent trends in and modus operandi of illegal immigration.
The Article consequently authorises the Agency to co-operate on exchange of strategic non-personal information with the above mentioned actors. The information exchanged must be relevant for the tasks of the Agency.
The Article deals with the legal status of the agency and its location.
The specialised branches provided for in this Article will build upon the existing land, air, and maritime border centres set up by Member States in the framework of the External Borders Practitioners' Common Unit, which will then become integrated parts of the Agency. The specialised branches of the Agency shall be staffed with national experts seconded by Member States, in so far as possible drawing on the expert staff of the existing border centres.
The Article contains the general rules concerning the staff of the Agency.
The Article deals with the privileges and immunities conferred on the staff of the Agency.
The Article stipulates the liability of the Agency.
The Article deals with the powers of the Management Board of the Agency.
The Article describes the composition of the Management Board of the Agency.
The Article deals with the chairmanship of the Management Board of the Agency.
The Article contains the provisions on meetings of the Management Board of the Agency.
The Article contains the provisions on voting in the Management Board of the Agency.
The Article describes the functions and powers of the Executive Director of the Agency.
The Article sets out the procedure for appointing and dismissing the senior officials of the Agency as well as describes the general qualifications they shall meet. It defines the terms of office applicable to the senior officials.
The Article deals with translation of documents and correspondence of the Agency.
The Article deals with transparency of the Agency and the rules applicable to its communication.
The Article deals with the budget of the Agency.
This Article deals with the implementation and control of the budget of the Agency.
The Article provides for combating fraud.
The Article contains an evaluation clause according to which the Agency shall submit itself to an independent external evaluation within three years from the date it has taken up its responsibilities and every five years thereafter.
The Article deals with the adoption of the Agency's financial rules.
The Article contains the date of entry into force of the Regulation. It prescribes that the Agency will take up its responsibilities from 1 January 2005.