Explanatory Memorandum to COM(2015)671 - European Border and Coast Guard

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This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2015)671 - European Border and Coast Guard.
source COM(2015)671 EN
date 15-12-2015


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The present proposal has the objective of setting up a European Border and Coast Guard in order to ensure a European integrated border management of the EU’s external borders, with a view to managing migration effectively and ensuring a high level of security within the Union, while safeguarding the free movement of persons therein. It is part of a package of measures presented by the Commission in order to better ensure the protection of the EU’s external borders as set out in the accompanying Commission Communication.

In 2015, the European Union witnessed extraordinary pressures at its external borders with an estimated 1,5 million persons having crossed the borders illegally between January and November this year. The sheer scale of the mixed migratory flows which have crossed the external borders of the European Union and the consequent secondary movements, demonstrated that existing structures at Union and Member State level are inadequate to address the challenges arising from such a large influx. In an area without internal borders, irregular migration through the external borders of one Member State affects all other Member States within the Schengen area. The significant secondary movements have led several Member States to reintroduce border control at their internal borders. This has put considerable strain on the functioning and coherence of the Schengen area.

Throughout the current migration crisis, it became clear that the Schengen area without internal borders is only sustainable if the external borders are effectively secured and protected. The control of the Union’s external borders is a common and shared interest which must be carried out in accordance with high and uniform Union standards.

The intensified security concerns following the terrorist attacks of this year have added to citizens’ concerns. Whilst borders can never provide complete security, they can make a significant contribution in terms of increasing security and intelligence and thwarting future attacks. This function has become even more important in the light of the increasing phenomenon of foreign fighters involved in terrorist attacks. Reinforcing security at the external borders is therefore essential to restoring public confidence.

A single travel area without internal borders is only sustainable if the external borders are effectively protected. A chain is always only as strong as its weakest link. A decisive step towards an integrated management system for external borders therefore is needed. This is only possible as a shared task among all Member States, in line with the principles of solidarity and responsibility to which all the EU’s institutions have agreed as the guiding principles addressing the migration crisis.

The European Agenda on Migration identified the need to move to a shared management of the external borders, in line with the objective of the ‘gradual introduction of an integrated management system for external borders’ set out in Article 77 TFEU. In his State of the Union speech in September, President Juncker announced that the Commission would present ambitious steps in this respect before the end of the year in the form of a fully operational European Border and Coast Guard, as was subsequently confirmed in the Commission Work Programme 2016 1 .

The draft Regulation lays down the general principles of European integrated border management; it establishes a European Border and Coast Guard and a European Border and Coast Guard Agency built from Frontex. The objective of this draft Regulation is to provide for a more integrated management of the EU’s external borders, inter alia by providing the European Border and Coast Guard Agency with more competences in the fields of external border management and return than Frontex currently has. This draft Regulation affords the European Border and Coast Guard Agency the additional competences needed for it to effectively implement integrated border management at Union level, to address deficiencies of border management at national level, and to respond to unprecedented migratory flows such as those which have arrived at the external borders of the European Union this year.

Granting these additional competences to the European level of the European Border and Coast Guard is essential to prevent that deficiencies of external border management or unpredicted migratory flows undermine the proper functioning of the Schengen area. The challenges which have arisen from the migratory crisis cannot be adequately dealt with by Member States acting in an uncoordinated manner. Integrated border management is a shared responsibility of the European Border and Coast Guard Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks, and together they constitute the European Border and Coast Guard.

• Consistency with existing policy provisions in the policy area

This draft Regulation responds to the calls of the European Parliament and the European Council to effectively manage the external borders of the European Union. Clear orientations were set out by the European Council in October 2015 2 to strengthen the external borders of the European Union namely by working towards the establishment of an integrated management system for the external borders and by enhancing the mandate of Frontex in the context of discussions over the development of a European Border and Coast Guard System, including as regards the deployment of Rapid Border Intervention Teams in cases where Schengen evaluations or risk analysis demonstrate the need for robust and prompt action, in cooperation with the Member State concerned. The European Council also considered that the mandate of Frontex on return should be expanded to include the right to organise joint return operations on its own initiative, and enhance its role regarding the acquisition of travel documents for returnees.

In the European Agenda on Migration, the Commission proposed to make the management of the external borders into shared responsibility of the Member States and the European Union. On this basis, the European Agenda on Migration proposed changes to the legal basis of Frontex so as to strengthen its role and capacity. Among the other suggested steps to be taken by the Commission was the foundation of a European Border and Coast Guard, an increased role for the European Border and Coast Guard Agency in the organisation and coordination of returns, inter-agency cooperation, better management of Agency and Member State assets and the initiation of the new ‘hotspot’ approach.

With this draft Regulation, the Commission contributes to rendering border management more effective and reliable by bringing it to a new level of responsibility and solidarity. Over the past few years, the European Union established a policy to enable Member States to build and maintain sound external borders. However, in the absence of strategic implementation of integrated border management at Union level, there are discrepancies in implementation that still remain at national level among Member States. Hence, there is a need, as identified by the Commission in the European Agenda on Migration, to have Union standards for border management to cover all aspects of the Union’s external border management.

This proposal builds on the existing border management policy, including the Frontex Agency but brings it to a qualitatively different level. Frontex was established by Council Regulation (EC) No 2007/2004 which was subsequently amended by Regulation (EC) 863/2007, 3 which introduced the rapid border interventions, and by Regulation (EU) No 1168/2011, 4 which highlighted the responsibility of Frontex as regards the protection of fundamental rights. This proposal substantially expands upon the ability of the Agency to respond effectively to present or future threats at the external borders by proactively reinforcing, assessing, and coordinating the actions of Member States in the implementation of appropriate measures at the external borders.

The proposal complements existing legislation by following a similar approach as the one on the European Border Surveillance System (Eurosur) 5 in further fostering a spirit of cooperation, information exchange and the coordination of efforts between the Member States and the European Border and Coast Guard Agency, as well as among national authorities and Union Agencies, with concrete and binding commitments. It also builds upon Regulation (EU) No 656/2014 6 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex. The proposal also develops and reinforces the rapid border interventions.

The proposal, and in particular the establishment of a vulnerability assessment, complements the Schengen evaluation mechanism established by Regulation (EU) No 1053/2013. 7 The Schengen evaluation mechanism is intended to maintain mutual trust among Member States. It consists of a technical and legal assessment intended to verify the correct application of the Schengen acquis and the necessary conditions for the lifting of internal border control. In cases where it results from a Schengen evaluation that there are serious deficiencies at the external border, the Commission may recommend initiating the deployment of European Border and Coast Guard Teams or presenting strategic plans to the Agency for its opinion. The present proposal is also without prejudice to the measures which may be adopted under Article 19a and 26 of the Schengen Borders Code.

The vulnerability assessment focuses on prevention so as to avoid reaching a crisis situation. It is an assessment of the operational capabilities of Member States at the external borders and for this purpose it looks into the technical equipment, capacities, resources and contingency plans. That assessment is carried out by the Agency, the Supervisory Board advises the Executive Director, who in turn decides on the necessary measures. Where a Member State would fail to comply with the decision of the Executive Director and as a result it would risk putting in jeopardy the functioning of the Schengen area, the Commission can adopt an implementing decision requiring the direct intervention by the Agency on the ground.

This proposal builds upon and further develops those existing policy provisions and brings them together in the European Border and Coast Guard, thus establishing an integrated management system for external borders at Union level as provided for in Article 77(2)(d) of the Treaty on the Functioning of the European Union.

• Consistency with other Union policies

1.

This proposal is closely linked and complements other Union policies, namely:


(a)The Common European Asylum System with the setting up of migration management support teams at hotspot areas which is closely linked to the relocation of persons in clear need of international protection;

(b)Internal security as was underlined in the European Agenda on Security, common high standards of border management are essential to prevent cross-border crime and terrorism; this proposal further contributes to achieving a high level of internal security by enabling the Agency to cover aspects of cross-border crime and terrorism in its risk analysis, by enabling it to process personal data of persons suspected to be involved in acts of terrorism and by providing that the Agency cooperates with other Union Agencies and international organisations on the prevention of terrorism. As regards access to national databases and European databases, the draft Regulation provides for an obligation for Member States to allow access to members of the European Border and Coast Guard Teams to such databases. The Commission will explore the possibility of giving the Agency access to European databases, such as SIS and EURODAC, and will consider presenting proposals to modify the legal acts on which these databases are based;

(c)The Union Customs Risk Management and Supply Chain Security Strategy, which provides for promoting inter-agency cooperation and information sharing among customs, law enforcement and security agencies to ensure complementarity of roles, the development of common risk criteria and sharing of risk information;

(d)Maritime security and safety, as well as maritime surveillance with the establishment of European cooperation on coast guard functions among the European Border and Coast Guard Agency, the European Fisheries Control Agency and the European Maritime Safety Agency;

(e)External relations policy of the Union given that the European Border and Coast Guard Agency should facilitate and encourage operational cooperation between Member States and third countries, including by coordinating such operational cooperation in the field of management of external borders and by deploying liaison officers to third countries, as well as by cooperating with the authorities of third countries on return, including as regards the acquisition of travel documents.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

This legislative proposal is based on Article 77(2)(b) and (d) and Article 79(2)(c) of the Treaty on the Functioning of the European Union (TFEU).

Article 77(1)(b) and (d) provides that the Union shall 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. For those purposes, under Article 77(2)(b) and (d), the European Parliament and the Council acting in accordance with the ordinary legislative procedure, shall adopt measures concerning the checks to which persons crossing external borders are subject, and any measure necessary for the gradual establishment of an integrated management system for external borders.

Article 79(2)(c) authorises the European Parliament and the Council to adopt measures in the area of irregular immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation.

• Subsidiarity

The objective of this proposal is to ensure a European integrated border management of the EU’s external borders, with a view to managing migration effectively and ensuring a high level of security within the Union, while safeguarding the free movement of persons therein. In an area without internal borders, irregular migration through the external borders of one Member State affects all other Member States within the Schengen area. An area without internal borders is only sustainable if the external borders are effectively secured and protected.

Since the control of the Union’s external borders is a common and shared interest which must be carried out in accordance with high and uniform Union standards, the objectives of this proposal cannot be sufficiently achieved by the Members States, and can be better accomplished at the level of the Union, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.

• Proportionality

The draft Regulation is intended to respond to the new challenges and political realities faced by the Union, both as regards migration management and internal security. It puts in place a tool box of measures to deal with border management comprehensively. It ensures that rules on integrated border management are fully and correctly implemented by Member States, that appropriate action is taken to prevent crisis situations and to intervene at an early stage at the external borders, and it is only if the situation still becomes critical, that urgent action is taken at Union level for direct intervention on the ground. In view of its objectives and in accordance with the principle of proportionality, as set out in Article 5 of the Treaty on European Union, this Regulation does not go beyond what is necessary in order to achieve those objectives.

• Choice of the instrument

Only a regulation can provide for the necessary degree of uniformity required for ensuring the integrated management of the external borders. Moreover, having regard to the fact that the Frontex Agency, renamed European Border and Coast Guard Agency, was established by means of a Regulation, the same legal instrument is also appropriate for this proposal.

3. CONSULTATION OF INTERESTED PARTIES

In preparation of this proposal, the Commission has relied upon the discussions that have been regularly taking place in the European Council and in the Council of Ministers, as well as in the European Parliament on border management and the measures needed to address the migratory crisis. The future of border management and, in particular, the reinforcement of the Frontex Agency has recently been the subject of discussion in the Council of Ministers meeting of 8 October 2015. 8 This was followed by a meeting of the European Council on 15 October 2015, 9 which in its orientations on the future of border management, called for the strengthening of the external borders of the European Union by, amongst others, working towards the establishment of an integrated management system for external borders and by enhancing the mandate of Frontex.

Since Frontex took up its responsibilities on 1 May 2005, there have been continued discussions with relevant stakeholders at European and national level. In particular, there have been regular discussions in the context of reporting by the Agency in the European Parliament and in the Council. The Agency continuously reports on its activities at the Management Board meetings and through various reports it issues during the year. There have also been regular information exchanges with other Union Agencies in particular the European Asylum Support Office, the European Union Agency for Fundamental Rights, and Europol, as well as with the European Ombudsman. Also, several discussions have been organised with civil society and academia.

In 2014, the Commission launched a Study on the feasibility of the creation of a European System of Border Guards to control the external borders of the Union, the results of which were taken into account in the preparation of this proposal.

The Commission has made sure to also take into account the views of relevant stakeholders by closely considering the results of the external evaluation of the Frontex Agency. This external evaluation, based on Article 33 of Regulation (EU) No 2007/2004, was carried out between July 2014 and June 2015, and covers the period from July 2008 to July 2014. The final report was discussed in the Management Board of Frontex on 10 September 2015, and the Management Board has issued recommendations regarding possible modifications to the founding Regulation of Frontex. This proposal reflects the majority of recommendations made by decision of the Management Board on 28 October 2015.

The Commission has also taken into account the Report of the European Parliament on the Special Report of the European Ombudsman in own-initiative inquiry OI/5/2012/BEH-MHZ concerning Frontex in developing a complaint mechanism for the Agency.

• Fundamental rights

This Regulation respects the fundamental rights and observes the principles set out in the Charter of Fundamental Rights of the European Union, in particular Articles 18 and 19.

This proposal safeguards fundamental rights by setting out the need for the European Border and Coast Guard Agency to have a Fundamental Rights Strategy, by establishing a Consultative Forum on fundamental rights, by providing for an expanded role for the Fundamental Rights Officer and by including a complaint mechanism by which any person who considers himself or herself to have been the subject of a breach of fundamental rights during activities carried out by the Agency, or any third party intervener, may make a complaint to the European Border and Coast Guard Agency.

The proposal is thus in line with Articles 2 and 6 of the Treaty on European Union and with the Charter of Fundamental Rights of the European Union.

4. BUDGETARY IMPLICATIONS

The European Border and Coast Guard Agency, to be built from the existing Frontex, is tasked with the management of the external borders alongside the Member States. The subsidy for Frontex, which is to be renamed European Border and Coast Guard Agency, already forms part of the Union’s budget.

The Agency’s budgets for 2015 and 2016 have been reinforced in 2015 in order to enable it to address the migratory crisis, in particular by tripling the financial resources for joint operations Poseidon and Triton, extending the Agency’s support to the Member States in the area of returns and giving to necessary resources to implement hotspots. The final EU subsidy for 2016 as adopted by the Budgetary Authority is EUR 238 686 000.

Given the necessity that the Agency continues with its work in external border management at the same level of intensity, including as regards search and rescue and in the area of return, it is essential that in the future the level of the 2016 subsidy is maintained as the basis for the annual budget of the European Border and Coast Guard Agency.

However, for the Agency to adequately address its new tasks as foreseen in this proposal, in 2017 an amount of at least EUR 31,5 million will need to be added to the Agency’s Union budget in addition to that one for 2016 and an additional 602 posts until 2020 together with the corresponding financial resources are necessary, including 329 establishment plan posts and 273 external staff.

5. OTHER ELEMENTS

• Monitoring, evaluation and reporting arrangements

The European Border and Coast Guard Agency has a number of duties to report upon its activities and to monitor its work. Most importantly the Agency must compile a consolidated annual activity report which is to include an evaluation of joint operations and rapid border interventions. The Commission must conduct an evaluation in accordance with its guidelines every three years to assess the impact, effectiveness and efficiency of the Agency in all of its activities. The evaluation’s findings must be forwarded by the Commission to the European Parliament, the Council and the Management Board of the Agency. These findings are to be made public. Furthermore, the European Parliament or the Council can also invite the Executive Director of the Agency to report to those institutions as to the carrying out of his or her tasks.

• Detailed explanation of the specific provisions of the proposal

This proposal lays down the general principles for a European integrated border management with the objective of managing migration effectively and ensuring a high level of internal security within the European Union, whilst safeguarding the free movement of persons within the European Union.

European integrated border management consists of measures in third countries, measures implemented in conjunction with neighbouring third countries, border control measures at the external border and measures implemented inside the area of free movement including the return of third country nationals who illegally stay in a Member State.

This proposal establishes the European Border and Coast Guard which is responsible for integrated border management and, in comparison to the mandate afforded to Frontex, enhances the European Border and Coast Guard Agency’s powers in all aspects of integrated border management. The European Border and Coast Guard is composed of the European Border and Coast Guard Agency and the national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks. The task of the European Border and Coast Guard is to implement the European integrated border management in accordance with the principle of shared responsibility. Since all national border guards, including coast guards to the extent that they carry out border control tasks, implement the European integrated border management, they are European Border and Coast Guards at the same time as they are national border guards and coast guards.

To reflect the changes to the competences of Frontex, the Agency is to be renamed European Border and Coast Guard Agency. The key role of the European Border and Coast Guard Agency is to establish an operational and technical strategy for the implementation of an integrated border management at Union level, to oversee the effective functioning of border control at the external borders of Member States, to carry out vulnerability assessments and to ensure that deficiencies in the management of the external border by national authorities are addressed, to provide increased operational and technical assistance to Member States through joint operations and rapid border interventions, and to ensure the practical execution of measures in case of a situation requiring urgent action at the external borders, as well as to organise, coordinate and conduct return operations and return interventions.

The European Border and Coast Guard Agency will need to have a broad and effective overview to be able to determine whether a Member State is able to implement applicable EU legislation, and to determine whether there are weaknesses in the border management of a Member State so as to avoid that increases in migration flows lead to serious problems at the external borders. For these purposes, this proposal sets outs out the following elements reinforcing the role of the European Border and Coast Guard Agency, as compared to that of Frontex:

• Establishing a monitoring and risk analysis centre with the capacity to monitor migratory flows towards and within the European Union and to carry out risk analysis which is to be applied by Member States and which covers all aspects relevant to integrated border management, in particular, border control, return, irregular secondary movements of third-country nationals with the European Union, the prevention of cross-border crime including facilitation of irregular immigration, trafficking in human beings and terrorism, as well as the situation at neighbouring third countries with a view to developing a pre-warning mechanism which analyses the migratory flows towards the EU.

• Liaison officers of the Agency to be deployed to Member States so that the Agency can ensure proper and effective monitoring not only through risk analysis, information exchange and Eurosur, but also through its presence on the ground. The task of the liaison officer is to foster cooperation between the Agency and the Member States and in particular, to support the collection of information required by the Agency for carrying out the vulnerability assessment and to monitor the measures taken by Member States at the external borders.

• Supervisory role for the Agency by establishing a mandatory vulnerability assessment by the Agency to assess the capacity of Member States to face challenges at their external borders, including by means of an assessment of the equipment and resources of Member States as well as of their contingency planning. The Executive Director, on the advice of a Supervisory Board created within the European Border and Coast Guard Agency, will identify the measures that need to be taken by the Member State concerned and should set a time-limit within which those measures need to be taken. The decision of the Executive Director will be binding on the Member State concerned, and where the necessary measures are not taken within the set time-limit, the matter will be referred to the Management Board for a further decision. If the Member State would still fail to act, thereby risking putting in jeopardy the functioning of the Schengen area, the Commission may adopt an implementing decision for direct intervention by the Agency.

• New procedures to deal with situations requiring urgent action where a Member State does not take the necessary corrective action in line with the vulnerability assessment or in the event of disproportionate migratory pressure at the external borders, rendering the control of the external borders ineffective to an extent that risks putting in jeopardy the functioning of the Schengen area. This will involve a Commission implementing decision identifying the measures to be implemented by the European Border and Coast Guard Agency as outlined in this Regulation and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The European Border and Coast Guard Agency will then determine the actions needed to be taken for the practical execution of the measures indicated in the Commission decision, and it will intervene directly in the Member State concerned.

• Enhanced tasks for the Agency consisting of the setting up and deployment of European Border and Coast Guard Teams for joint operations and rapid border interventions, the setting up of a technical equipment pool, assisting the Commission in coordinating the activities of the migration management support teams at hotspot areas, and a strengthened role in return, risk analysis, training and research.

• Mandatory pooling of human resources by establishing a rapid reserve pool which will be a standing corps composed of a small percentage of the total number of border guards in the Member States on a yearly basis. The deployment of European Border and Coast Guard Teams from the rapid reserve pool should be immediately complemented by additional European Border and Coast Guard Teams as appropriate.

• Deployment of an own technical equipment pool by acquiring itself or in co-ownership with a Member State and managing a pool of technical equipment provided by the Member States, based on the needs identified by the Agency and by requiring that the technical equipment pool be completed by means of transport and operating equipment purchased by Member States under the Specific Actions of the Internal Security Fund.

• Key role in assisting the Commission with the coordination of migration management support teams at hotspot areas, characterised by mixed migratory flows and where the European Border and Coast Guard Agency together with the European Asylum Support Office, Europol and other relevant Union Agencies provides coordinated and enhanced technical and operational support to Member States.

• Stronger role for the Agency on return by establishing a Return Office within the Agency, which should provide Member States with all necessary operational reinforcement to effectively return illegally staying third country nationals. The Agency will coordinate and organise return operations and return interventions from one or more Member States, and promote their organisation on its own initiative to reinforce the return system of the Member States which are subject to particular pressure. The Agency will need to have at its disposal pools of forced return monitors, forced return escorts and return specialists to be made available by Member States, forming European Return Intervention Teams to be deployed in the Member States.

• Participation by the Agency in the management of research and innovation activities relevant for the control of external borders, including the use of advanced surveillance technology such as remotely piloted aircraft systems and develop pilot projects regarding matters covered by this Regulation.

• European cooperation on coast guard functions by developing cross-sectoral cooperation among the European Border and Coast Guard Agency, the European Fisheries Control Agency and the European Maritime Safety Agency to improve synergies between those agencies, in order to provide more efficient and cost-effective multipurpose services to national authorities carrying out coast guard functions.

• Increased cooperation with third countries by coordinating operational cooperation between Member States and third countries in border management, including the coordination of joint operations, and by deploying liaison officers to third countries, as well as by cooperating with the authorities of third countries on return, including as regards the acquisition of travel documents.

• Strengthen the mandate of the Agency to process personal data by also allowing for the processing of personal data in the organisation and coordination of joint operations, pilot projects, rapid border interventions, return operations, return interventions and in the framework of the migration management support teams, as well as in the exchange of information with Member States, the European Asylum Support Office, Europol, Eurojust or other Union Agencies.

• Guaranteeing the protection of fundamental rights by setting up a complaint mechanism to handle complaints concerning possible violations of fundamental rights in the course of activities carried out by the European Border and Coast Guard Agency. The complaint mechanism is an administrative mechanism since the Agency cannot itself investigate allegations of violations of fundamental rights by members of the European Border and Coast Guard Teams.