Explanatory Memorandum to COM(2010)61 - Amendment of Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU (FRONTEX) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)61 - Amendment of Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational ... |
|---|---|
| source | COM(2010)61  |
| date | 24-02-2010 |
This proposal addresses amendments to Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) that are necessary in order to ensure a well defined and correct functioning of the Frontex Agency in the coming years. The objective of the proposal is to adapt the Regulation, in the light of the evaluations carried out and practical experiences, to clarify the mandate of the Agency and to address identified shortcomings.
The Frontex Agency was set up in 2004 and became operational in 2005. As requested by the Hague programme the Commission adopted on 13 February 2008 a Communication on the evaluation and future development of the FRONTEX Agency (COM(2008) 67 final), accompanied by a impact assessment.
The Communication issued recommendations for the short to medium term and launched ideas for the future development of the Agency in the longer term.
The 2008 Communication was welcomed by the Council and the European Parliament, who both shared the Commissions assessment that the Agency had been very successful since its inception and called for a further strengthening of the Agency. This ambition has been further reflected in numerous conclusions by the Council and the European Council, in the Pact on immigration and asylum, and in the Stockholm programme, adopted by the European Council of 10-11 December 2009 calling for a reinforcement of the Agency including through a revision of its legal framework. The role of the Agency in the integrated border management of the Union, and its overall future direction, is therefore subject to a strong interinstitutional consensus.
In addition to the abovementioned Commission Report on the evaluation and future development of the FRONTEX Agency an independent evaluation took place during 2008, as requested by Article 33 of the Frontex Regulation. On the basis of this evaluation the Frontex Management Board addressed a series of recommendations concerning changes to the legal basis of the Agency to the Commission.
This proposal reflects all recommendations of the 2008 Communication and the Management Board recommendations to the extent they require a revision of the legal framework of the Agency, with the exceptions as described in the impact assessment.
Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.
Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers.
Council Decision 2005/358/EC of 26 April 2005 designating the seat of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.
In the follow-up to the Communication extensive discussions were held in the Council and the European Parliament. Civil society and academia also organised discussions on the role of Frontex in the context of the Union's immigration policy.
Regular discussions and information exchange have taken place with Member States in the context of the Management Board meetings of the Agency. The Agency has continuously reported on its activities in the Management Board, in the institutions, and through the various reports foreseen by the legal basis. Moreover, consultations have taken place between Commission officials dealing with the FRONTEX Agency and their counterparts in the Agency.
Frontex, in association with the Austrian authorities, organised a workshop for the members or representatives of the Management Board, chaired by the Commission, on the review of the legal framework of the Agency on 10 September 2009 in Baden, Austria. The Commission also consulted Member States in the Committee on Immigration and Asylum in its meeting on 5 October 2008.
An impact assessment has been carried out - Commission staff working document SEC(2010) 149. Suboptions in relation to the following 'building blocks', reflecting core objectives and activities of the Agency, have been assessed:
- Revising existing provisions on the use of technical equipment in joint operations, including the mechanisms for contributions from the Member States of such equipment;
- Mechanisms to improve the availability of border guards in joint operations;
- Revising the role of the Agency in preparing, coordinating and implementing operations, including with regard to the sharing of tasks between the Agency and the Member States;
- Expanding the mandate of the Agency in cooperating with third countries on border management;
- Mandating the Agency to collect and process personal data;
- Revising the mandate of the Agency as concerns return operations;
- Mandating the Agency to contribute to evaluating the performance of Member States in the area of border management.
The policy options were assessed against the following criteria:
- Does the option contribute to meeting the identified shortcoming, ie to better reaching the relevant objective(s)?
- Does the option have an impact on third countries?
- Does the option have a budgetary impact on the Agency or on the Member States?
- What are the possible impacts on fundamental rights?
The preferred option of the impact assessment consists of a combination of the following suboptions:
- A revised mechanism with compulsory contributions of equipment from Member States combined with the gradual acquisition/leasing by Frontex of its own equipment, based on further analyses of needs and costs;
- A revised mechanism with compulsory contributions of human resources from Member States combined with a pool of border guards on semi-permanent detachment from Member States to Frontex, with the status of national experts;
- Awarding the Agency a co-leading role for the implementation of joint operations, with detailed rules for the operational plan, evaluation, and incident reporting, to be enforced by Frontex;
- Allowing Frontex to finance and implement technical assistance projects in third countries and to deploy liaison officers in third countries;
- Giving Frontex a limited mandate to process personal data related to fight against criminal networks organising illegal immigration, under condition that such processing of personal data by Frontex is lawful, necessary and proportionate in relation to the tasks of the Agency;
- Giving Frontex a coordinating role in implementing joint return operations;
- Giving Frontex a mandate to analyse operational risks and requirements in the Member States.
Following the opinions of the impact assessment board of 8 December 2009 and 11 January 2010, the impact assessment has been revised substantially especially with regard to the problem definition and baseline, the definition of the general and operational objectives, the sections related to subsidiarity and proportionality, and costs.
The preferred option is fully reflected in this legislative proposal with the exception of giving Frontex a limited mandate to process personal data related to fighting criminal networks organising illegal immigration. The Commission does consider that all possibilities to reinforce the fight against the smuggling of migrants and against trafficking of human beings should be explored. However, it prefers to return to the question of personal data in the context of the overall strategy for information exchange to be presented later this year and also taking into account the reflection to be carried out on how to further develop cooperation between Agencies in the justice and home affairs field as requested by the Stockholm programme.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- Grounds for and objectives of the proposal
- General context
- Existing provisions
- 2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- Impact assessment
- Summary
- Legal basis
- Subsidiarity principle
- Proportionality principle
- Choice of instrument
- 5. ADDITIONAL INFORMATION
- United Kingdom and Ireland
- Denmark
- Iceland and Norway
- Switzerland
- Liechtenstein
- Succinct overview of the proposed amendments
- Article 3, Joint operations and pilot projects at the external borders
- Article 3b, Composition and deployment of Frontex Joint Support Teams (FJST) (New)
- Para 1 the overall conditions on the profiles and number of border guards to be made available to the FJST
- Article 5, Training
- Article 6, Research
- Para 1 Clarification of the mandate of the Agency regarding the acquisition or lease of technical equipment and the rules of registration for heavy equipment
- Article 8e, Operational plan
- Para 5 Clarification of the role of the Agency regarding the identification of the relevant third countries
- Article 11a, Data protection (New)
- Article 11b, Security rules on the protection of classified information and non-classified sensitive information (New)
- Article 13, Cooperation with European Union agencies and bodies and international organisations
- Article 14, Facilitation of operational cooperation with third countries and cooperation with competent authorities of third countries
- Para 2 possibility for the Agency to deploy liaison officers in third countries
- Para 5 obligation on Member States to clarify where appropriate the role of the Agency in their bilateral agreements with third countries
- Article 17, Staff
The most important proposed amendments to Council Regulation (EC) No 2007/2004 reflect the changes necessary to accommodate the preferred option of the impact assessment. Moreover a number of minor amendments of an essentially administrative character have been introduced taking into account the Management Board recommendations as well as the introduction of new 'standard' provisions used in other Commission proposals for the setting up of new Agencies.
Articles 74 and 77 i (b) and (c) of the Treaty on the Functioning of the European Union.
This proposal amends Council Regulation (EC) No 2007/2004 establishing the Frontex Agency, which has been amended in 2007 by Regulation (EC) No 863/2007 of the European Parliament and of the Council establishing a mechanism for the creation of Rapid Border Intervention Teams, which were based on the equivalent provisions of the Treaty establishing the European Community, that is, Articles 62(2)(a) and 66.
Article 74 provides that the Council shall adopt measures to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Title, as well as between those departments and the Commission.
Article 77(1)(b) and (c) empowers the Union to develop a policy with a view to carrying out checks on persons and efficient monitoring of the crossing of external borders, and the gradual introduction of an integrated management system for external borders.
The current proposal is within the limits set by these provisions and, in particular, respects the shared competencies of the Treaty in that Member States remain responsible for controlling their external borders. Notably this proposal upholds the principle that in the context of operations coordinated by the Agency, guest officers may only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards of the host Member State. Decisions to refuse entry in accordance with the Schengen Borders Code shall be taken only by border guards of the host Member State. No decision-making power in this regard is transferred to the Agency.
The objectives of this proposal, while respecting the same fundamental limitations of the existing provisions, are to further develop an integrated management of operational cooperation, cannot be sufficiently achieved by the Member States.
Article 5 of the Treaty on European Union states that action by the EU must not go beyond what is necessary to achieve the objectives of the Treaty. The form chosen for this Union action must enable the proposal to achieve its objective and be implemented as effectively as possible.
The proposed initiative — amendment of the Regulation — constitutes a further development of the Schengen acquis combating the organisation of illegal immigration and ensures cooperation between the relevant departments of the administrations of the Member States, as well as between those departments and the Commission. The proposal therefore complies with the proportionality principle.
Proposed instrument: Regulation.
Other means would not be adequate as the present proposal amends a regulation.
The proposal amends an existing Regulation regarding the mandate and functioning of a European Agency. The subsidy related to the Frontex Agency forms already part of the Union's budget.
Consequences of the various protocols annexed to the Treaties and of the association agreements concluded with third countries
The legal basis for this proposal is to be found in Title V of Part Three of the Treaty on the Functioning of the European Union, with the result that the system of ‘variable geometry’, provided for in the protocols on the position of the United Kingdom, Ireland and Denmark and the Schengen protocol, applies. The proposal builds on the Schengen acquis . The following consequences in relation to the various protocols therefore have to be considered:
The United Kingdom and Ireland are not taking part in this Regulation in accordance with Article 4 of the Protocol on the Schengen acquis annexed to the TEU and TFEU and Article 8 i of Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis .
Under the Protocol on the position of Denmark, annexed to the TEU and TFEU, Denmark does not take part in the adoption by the Council of measures pursuant to Title V of part Three of the TFEU.
This proposal builds on the Schengen acquis , and under Article 4 of the Protocol Denmark shall decide within a period of six months after the Council has decided on a proposal or initiative to build upon the Schengen acquis covered by this Part whether it will implement this decision in its national law.
As regards Iceland and Norway, this proposal constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis i.
As regards Switzerland, this proposal constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the European Union, the European Community and the Swiss Confederation on the latter’s association with the implementation, application and development of the Schengen acquis i.
As regards Liechtenstein, this proposal constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis i.
Article 1, Establishment of the Agency
- clarification of the legal framework in which the Agency operates
Article 1a, Definitions
- clarification of the definition of 'host Member State'
- introduction of the concept of Frontex Joint Support Teams
- revision of the definition of technical equipment
Article 2, Main tasks
- para 1 (c): widening of the work related to risk analysis
- para 1 (d): strengthening the work related to research
- para 1 (f): introducing the possibility to coordinate joint return operations
- para 1 (h): new task related to the development and operation of information systems
- para 1 (i): new task related to providing assistance to Eurosur
- para 1a: obligation for all personnel taking part in e.g. joint operations or joint return operations to have received appropriate training in fundamental rights
- para 2, 3rd indent: introduction of a reporting mechanism to the Management Board regarding the operational activities of Member States with third countries.
- para 1: introducing an obligation to draw up an operational plan, to conduct a prior risk analysis and giving the Agency the possibility to terminate operations if the conditions are no longer fulfilled
- para 2: new - introducing the obligation for the Agency to set up a pool of border guards (FJST)
- para 4: introducing an obligation to transmit the evaluation reports of the operations to the Management Board within 60 days following the end of an operation
- para 5: possibility for increased financial support
Article 3a, Organisational aspects of joint operations and pilot projects (New)
Introducing a new article which sets out in paragraph 1 the overall conditions related to the obligation to draw up an operational plan for all operations. This article provides for provisions regarding the content and the components of the operational plan, the respective tasks and responsibilities, the composition of the teams, command and control, the reporting mechanisms i.e. evaluation and incident reporting, the technical equipment, and the applicable jurisdiction.
Paragraphs 2 and 3 provide for the obligation that the Agency and the requesting Member State agree on the operational plan and that the Agency needs to ensure the operational implementation of all organisational aspects.
Introducing a new article which sets out:
Para 1 the overall conditions on the profiles and number of border guards to be made available to the FJST
Para 2 the obligation for the Agency to contribute to the FJST
Para 3 the obligation of Member States to make the border guards available for deployment
Para 4 obligation for members of the teams to perform their duties in full respect of fundamental rights and human dignity
Para 5 communication regarding FJST to take place through the national points of contact
Para 6 obligation for the Agency to nominate a coordinating officer where FJST members are deployed
Para 7 obligation for the Agency to meet the costs of border guards of Member States participating in FJST
Article 4, Risk analysis
Introducing an obligation on Member States to provide the necessary information regarding threats at the external borders.
Insertion of a new indent creating an obligation on the Agency to regularly evaluate the capacity of Member States to face upcoming challenges at the external borders.
Insertion of an obligation on Member States to integrate the common core curricula in the training of national border guards, and of an explicit reference to that the training shall, as is already the case in the work programme of Frontex, include fundamental rights aspects.
Reinforcement of the role of the Agency i.e. monitoring and contributing to developments in relevant research activities
Article 7, Technical equipment
The provisions regarding technical equipment are modified as follows:
Para 1 Clarification of the mandate of the Agency regarding the acquisition or lease of technical equipment and the rules of registration for heavy equipment
Para 2 Obligation on the Agency to set up and keep centralised records of a Technical Equipment Pool (TEP)
Para 3 Obligation on Member States to contribute to the TEP to allow for a minimum amount of equipment covering the needs of the Agency
Para 4 Rules regarding the management by the Agency of the TEP
Para 5 Rules for the reimbursement of the minimum numbers per type of equipment, the conditions for deployment and the eligible costs
Para 6 reporting obligation on the composition and deployment of equipment part of the TEP by the Agency and subsequent action of the Management Board
Article 8, Support to Member States in circumstances requiring increased technical and operational assistance at the external borders
Deleted, as this is now sufficiently covered by the provisions on joint operations, technical equipment, and Frontex Joint Support Teams.
Para 1: adjustments necessary following the provisions of the new Article 3a
Article 8h, Costs
Para 1 insertion of a provision for the reimbursement of costs of the FJST
Article 9, Return cooperation
Para 1 clarification of the EU return policy, financial provisions and insertion of the possibility for a Member State to request the Agency to ensure the coordination of a return operation.
Para 2-3 obligation for the Agency to adopt a Code of Conduct to be applied during joint return operations, including with regard to forced return monitoring and respect for fundamental rights.
Para 4 obligation on Member States to inform the Agency of their planned return operations and the degree of assistance requested from the Agency. Obligation on the Agency to draw up a rolling operational plan on which the Management Board decides.
Para 5 Clarification of the role of the Agency regarding the identification of the relevant third countries
Article 11, Information exchange systems
Modification of the role of the Agency i.e. obligation to facilitate the exchange of information.
Insertion of an obligation on the Agency to develop and operate an information system capable of exchanging classified information.
Obligation on the Agency to process data in accordance with Regulation 45/2001 and on the Management Board to establish measures to apply the aforementioned Regulation.
Article 11b, Security rules on the protection of classified information and non-classified sensitive information (New)
Obligation on the Agency to apply the security principles of Decision 2001/844 for classified information. Obligation to process non-classified sensitive information as adopted and implemented by the Commission.
Insertion of the possibility to cooperate with other European Union agencies and bodies.
Article 14, Facilitation of operational cooperation with third countries and cooperation with competent authorities of third countries
Insertion of the following paragraphs:
Para 3 description of the tasks of the liaison officers
Para 4 possibility for the Agency to benefit from Union funding, to launch technical assistance project in third countries and to invite observers.
Para 5 obligation on Member States to clarify where appropriate the role of the Agency in their bilateral agreements with third countries
Para 7 the deployment of liaison officers and the conclusion of working arrangements with third countries are subject to prior approval by the Commission
Article 15a, Headquarters Agreement (New)
Clarification of the need and conditions for a Headquarters Agreement between the Agency and the hosting Member State.
Para 3 clarification of the role of the staff of the Agency providing for qualified staff to participate in operational activities
Article 20, Powers of the Management Board
Para 2 (h) prior agreement of the Commission necessary to adopt/modify the organisational structure and staffing policy of the Agency (new)
Para 2 (i) insertion of a provision regarding the endorsement of the Multiannual Plan of the Agency (new)
Para 4 reflecting the reinforced role of the Agency regarding relevant research activities
Article 21, Composition of the Management Board
Para 1 deletion of the restriction on the extendibility of the term of office
Para 3 insertion of a reference to the concluded association agreements
Article 25, Functions and powers of the Executive Director
Para 3 (g) insertion of the obligation to implement the operational plans.