Explanatory Memorandum to COM(2011)873 - European Border Surveillance System (EUROSUR) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)873 - European Border Surveillance System (EUROSUR). |
|---|---|
| source | COM(2011)873  |
| date | 12-12-2011 |
This proposal shall provide for the necessary legal framework to respond to the request of the European Council of 23-24 June 2011 to further develop the European Border Surveillance System (EUROSUR) as a matter of priority in order to become operational by 2013, allowing Member States' authorities carrying out border surveillance activities and the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), hereinafter referred to as the Agency, to share operational information and improve cooperation.
The aim of EUROSUR is to reinforce the control of the Schengen external borders. EUROSUR will establish a mechanism for Member States' authorities carrying out border surveillance activities to share operational information and to cooperate with each other and with the Agency in order to reduce the loss of lives at sea and the number of irregular immigrants entering the EU undetected, and to increase internal security by preventing cross-border crimes, such as trafficking in human beings and the smuggling of drugs.
The works currently carried out for the testing and the gradual establishment of EUROSUR are based on a roadmap presented in a Commission Communication in 2008.[2]
This legislative proposal is based on Article 77(2)(d) of the Treaty on the Functioning of the European Union (TFEU), according to which the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning any measure necessary for the gradual establishment of an integrated management system for external borders.[3]
The establishment of EUROSUR forms part of a policy aimed at reinforcing the management of the external borders of the Member States. Hence EUROSUR will constitute a new policy instrument which will streamline cooperation and enable systematic information exchange between Member States as well as with the Agency on border surveillance, something which currently does not exist at EU level.
Once adopted, the legislative act on EUROSUR would constitute a development of the provisions of the Schengen acquis, in which the United Kingdom and Ireland are not participating, but which is applicable to four associated countries (Norway, Iceland, Switzerland and Liechtenstein). Schengen states are committed to maintaining common standards for external border control.
The purpose of the legislative proposal is to improve the situational awareness and reaction capability of Member States and the Agency when preventing irregular migration and cross-border crime at the external land and maritime borders (Article 1).
This shall be done by establishing a common framework (Article 4), with clear responsibilities and competencies for the national coordination centres for border surveillance in the Member States (Article 5) and the Agency (Article 6), which form the backbone of EUROSUR. These centres, which shall ensure an effective and efficient management of resources and personnel at national level, and the Agency shall communicate with each other via the communication network (Article 7), which would allow to exchange both non-classified sensitive as well as classified information.
The cooperation and information exchange between the national coordination centres and the Agency is done via situational pictures (Article 8), which shall be established at national (Article 9) and European level (Article 10) as well as for the pre-frontier area (Article 11). These three pictures, of which the two latter shall be managed by the Agency, are structured in a similar way to facilitate the flow of information among them.
The situational pictures will as a general rule not involve personal data but rather the exchange of information on incidents and depersonalised objects, such as the detection and tracking of vessels. In exceptional cases personal data may form part of the data shared by Member States with the Agency provided that the conditions of Regulation (EC) No 2007/2004 of 26 October 2004 are met.[4] To the extent personal data forms part of the national situational picture of neighbouring external border sections, it may be exchanged between neighbouring Member States only, under the conditions set by the horizontal EU legal framework on data protection.
Furthermore, the Agency shall provide a service for the common application of surveillance tools (Article 12), taking into account that such a service can be provided more cost-efficiently at European level. Such a service could be implemented with the support of relevant European space programmes, including the operational Global Monitoring for Environment and Security (GMES).
The approach chosen in EUROSUR is to make best use of existing information, capabilities and systems available in other EU agencies to the extent possible (Article 17). For this reason, the Agency would closely cooperate with the EU Satellite Centre, the European Fisheries Control Agency and the European Maritime Safety Agency in providing the service for the common application of surveillance tools as well as with EUROPOL in order to exchange information on cross-border crime.
With regard to maritime traffic data to be provided by the SafeSeaNet system under Directive 2002/59/EC, the Commission intends to make an appropriate proposal modifying the Directive in 2013. It is envisaged that the relevant information in SafeSeaNet will also be made available for purposes other than those related to maritime safety, maritime security and marine environment protection and thereby be part of the surveillance tools used in the EUROSUR framework.
Better awareness of what is going on at the external borders is only of limited value if it is not complemented by an improved capability of EU Member States to react to challenges faced at their external borders. For this reason, Member States shall divide their external borders into borders sections (Article 13), to which – based on risk analysis and the number of incidents occuring – impact levels shall be attributed (Article 14). Depending on which impact levels have been attributed, the national coordination centres and the Agency shall take counter-measures in order to lower the impact on the border section in question (Article 15).
The cooperation with neighbouring third countries is crucial for the success of EUROSUR. Therefore exisiting and planned regional networks set up between Member States and neighbouring third countries shall be linked to EUROSUR via the national coordination centres (compare Article 9(2)(h) and Article 18). Taking into account that Member States and the Agency are already in the process of setting up the different components of EUROSUR at national and European level, EUROSUR should become operational in the second half of 2013 (Article 21). The Joint Research Centre of the European Commission should provide the Agency with technical support on the further technical development of EUROSUR.
As EUROSUR is not intended as a system to regulate the collection, storage or cross-border exchange of personal data, it was not covered by the Commission's Communication on an overview of information management in the area of freedom, security and justice of 2010. The development of EUROSUR has nevertheless been analysed on the basis of the principles set out in that Communication, as further elaborated in the accompanying impact assessment. This concerns notably the principle of necessity where the possibility to use EUROSUR for the exchange of personal data has been kept to the absolute minimum, the principle of cost-effectiveness where a step-by-step approach has been chosen using the least complex technical solutions, and a bottom-up policy design, with the Commission working since 2008 in close cooperation with Member States' experts to assess different technical solutions and to jointly validate findings and recommendations of the studies carried out.
This proposal was subjected to scrutiny to ensure that its provisions are fully compatible with fundamental rights and notably human dignity, prohibition of torture and inhuman or degrading treatment or punishment, right to liberty and security, right to the protection of personal data, non-refoulement, non-discrimination and rights of the child. Particular attention was paid to Articles 4 and 19 of the EU Charter of Fundamental Rights, which prohibit removal of persons to a State where there is a serious risk of death penalty, torture or other inhuman or degrading treatment or punishment. Article 18 of this Regulation explicitly prohibits any exchange of information with a third country that could use this information to identify persons or groups of persons who are under a serious risk of being subjected to torture, inhuman and degrading treatment or punishment or any other violation of fundamental rights.
In addition, Article 24 of the Charter was of importance, as many irregular migrants and victims of trafficking are children. Article 1 explicitly provides that Member States and the Agency shall give priority to the special needs of children, victims of trafficking, persons in need of urgent medical assistance, persons in need of international protection, persons in distress at sea and other persons in a particularly vulnerable situation. Article 8 of the Charter on the protection of personal data is also of particular importance as data sharing may include personal data, in which situation the data protection rules apply and must be fully respected.
Contents
The Commission Staff Working Document accompanying this proposal, which is assessing the impact of this proposal, gives a detailed overview on the consultations carried out in 2008-2011 and also provides for a detailed explanation of the framework of EUROSUR and the different policy options and costs for its establishment.
Article 77 (d) of the Treaty on the Functioning of the European Union is the legal basis for the proposal.
The different components of EUROSUR will be mainly implemented by the Agency and by Member States (shared management) on the basis of the 2008 EUROSUR roadmap (COM(2008)68final).
With regard to setting up the national coordination centres, Member States will be supported by the External Borders Fund in 2012-2013 and the instrument for financial support for external borders and visa as part of the planned Internal Security Fund in 2014-2020.
On the other hand, the Agency will use its own budget to set up the communication network and other horizontal components of EUROSUR, such as the European situational picture and the common pre-frontier intelligence picture, and when necessary this is completed by support under the Internal Security Fund (direct or indirect centralised financial management).
Funding provided under the 7th Framework Programme for Research and Development will support the setting up of the envisaged service for the common application of surveillance tools in 2012-2013.
Measures in neighbouring third countries will be supported in 2012-2013 by the Thematic Programme for Asylum and Migration, as part of the Development Cooperation Instrument.