The objective of Union policy in the field of external border management is to develop and implement European integrated border management at national and Union level, which is a necessary corollary to the free movement of persons within the Union and is a fundamental component of an area of freedom, security and justice. European integrated border management is central to improving migration management. The aim is to manage the crossing of the external borders efficiently and address migratory challenges and potential future threats at those borders, thereby contributing to addressing serious crime with a cross-border dimension and ensuring a high level of internal security within the Union. At the same time, it is necessary to act in full respect for fundamental rights and in a manner that safeguards the free movement of persons within the Union.
(2)
The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union was established by Council Regulation (EC) No 2007/2004 (4). Since taking up its responsibilities on 1 May 2005, it has been successful in assisting Member States with implementing the operational aspects of external border management through joint operations and rapid border interventions, risk analysis, information exchange, relations with third countries and the return of returnees.
(3)
The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union has been renamed the European Border and Coast Guard Agency (the ‘Agency’), commonly referred to as Frontex, and its tasks have been expanded with full continuity in all its activities and procedures. The key roles of the Agency should be: to establish a technical and operational strategy as part of the implementation of the multiannual strategic policy cycle for European integrated border management; to oversee the effective functioning of border control at the external borders; to carry out risk analysis and vulnerability assessments; to provide increased technical and operational assistance to Member States and third countries through joint operations and rapid border interventions; to ensure the practical execution of measures in a situation requiring urgent action at the external borders; to provide technical and operational assistance in the support of search and rescue operations for persons in distress at sea; and to organise, coordinate and conduct return operations and return interventions.
(4)
Since the beginning of the migratory crisis in 2015, the Commission has taken up important initiatives and has proposed a series of measures with a view to strengthening the protection of the external borders and restoring the normal functioning of the Schengen area. A proposal for significantly enhancing the mandate of the European Agency for the Management of Operational Cooperation at the External Borders was presented in December 2015 and negotiated swiftly in 2016. The resulting regulation, Regulation (EU) 2016/1624 of the European Parliament and of the Council (5), entered into force on 6 October 2016.
(5)
However, the Union framework in the areas of external border control, return, combating cross-border crime, and asylum still needs to be further improved. To that end, and to further underpin the current and future envisaged operational efforts, the European Border and Coast Guard should be reformed by giving the Agency a stronger mandate and, in particular, by providing it with the necessary capabilities in the form of a European Border and Coast Guard standing corps (the ‘standing corps’). The standing corps should gradually but swiftly reach the strategic target of having a capacity of 10 000 operational staff, as set out in Annex I, with executive powers, where applicable, to effectively support Member States on the ground in their efforts to protect the external borders, to fight cross-border crime and to significantly step up the effective and sustainable return of irregular migrants. Such a capacity of 10 000 operational staff represents the maximum available capacity required to effectively address existing and future operational needs for border and return operations in the Union and third countries, including a rapid reaction capacity to face future crises.
(6)
The Commission should carry out a review of the overall number and composition of the standing corps, including the size of individual Member States' contributions thereto, as well as of its training, expertise and professionalism. By March 2024, the Commission should, where necessary, submit appropriate proposals to amend Annexes I, II, III and IV. Where the Commission does not present a proposal, it should explain the reason therefor.
(7)
The implementation of this Regulation, in particular the establishment of the standing corps, including after the Commission's review of the standing corps, should be subject to the multiannual financial framework.
(8)
In its conclusions of 28 June 2018, the European Council called for further strengthening of the supportive role of the Agency, including in cooperation with third countries, through increased resources and an enhanced mandate, with a view to ensuring effective external border control and significantly stepping up the effective return of irregular migrants.
(9)
It is necessary to monitor the crossing of the external borders efficiently, to address migratory challenges and potential future threats at the external borders, to ensure a high level of internal security within the Union, to safeguard the functioning of the Schengen area and to respect the overarching principle of solidarity. Those actions and objectives should be accompanied by the proactive management of migration, including the necessary measures in third countries. To that end, it is necessary to consolidate the European Border and Coast Guard and to further expand the mandate of the Agency.
(10)
When implementing European integrated border management, coherence with other policy objectives should be ensured.
(11)
European integrated border management, based on the four-tier access control model, comprises measures in third countries, such as under the common visa policy, measures with neighbouring third countries, border control measures at the external borders, risk analysis and measures within the Schengen area and return.
(12)
European integrated border management should be implemented as a shared responsibility of the Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out maritime border surveillance operations and any other border control tasks, as well as the national authorities responsible for return. While Member States retain the primary responsibility for the management of their external borders in their interest and in the interest of all Member States and are responsible for issuing return decisions, the Agency should support the application of Union measures relating to the management of the external borders and return by reinforcing, assessing and coordinating the actions of the Member States which implement those measures. The activities of the Agency should complement the efforts of the Member States.
(13)
To ensure the effective implementation of European integrated border management and increase the efficiency of Union return policy, a European Border and Coast Guard should be established. It should be provided with the requisite financial and human resources and equipment. The European Border and Coast Guard should be composed of the Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks, as well as the national authorities responsible for return. As such it will rely upon the common use of information, capabilities and systems at national level and the response of the Agency at Union level.
(14)
European integrated border management does not alter the respective competences of the Commission and the Member States in the customs area, in particular regarding controls, risk management and the exchange of information.
(15)
The development of policy and law on external border control and return, including the development of a multiannual strategic policy for European integrated border management, remains a responsibility of the Union institutions. Close coordination between the Agency and those institutions should be guaranteed.
(16)
The effective implementation of European integrated border management by the European Border and Coast Guard should be ensured by means of a multiannual strategic policy cycle. The multiannual cycle should set out an integrated, unified and continuous process for providing strategic guidelines to all the relevant actors at Union level and at national level in the area of border management and return so that those actors are able to implement European integrated border management in a coherent manner. It should also address all relevant interactions of the European Border and Coast Guard with the Commission and other Union institutions, bodies, offices and agencies, and cooperation with other relevant partners, including third countries and third parties as appropriate.
(17)
European integrated border management requires integrated planning between the Member States and the Agency for border and return operations in order to prepare responses to challenges at the external borders, for contingency planning and for coordinating the long-term development of capabilities both in terms of recruitment and training and in terms of the acquisition and development of equipment.
(18)
The Agency should develop technical standards for information exchange as provided for in this Regulation. In addition, for the effective implementation of Regulation (EU) 2016/399 of the European Parliament and of the Council (6), common minimum standards for external border surveillance should be developed. To that end, the Agency should be able to contribute to the development of common minimum standards in line with the respective competences of the Member States and the Commission. Those common minimum standards should be developed taking into account the type of borders, the impact levels attributed by the Agency to each external border section and other factors such as geographical particularities. When developing those common minimum standards, possible limitations deriving from national law should be taken into account.
(19)
The technical standards for information systems and software applications should be aligned with the standards used by the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) for other IT systems in the area of freedom, security and justice.
(20)
The implementation of this Regulation does not affect the division of competence between the Union and the Member States or the obligations of Member States under the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the United Nations Convention against Transnational Organized Crime and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the 1951 Convention relating to the Status of Refugees, the 1967 Protocol thereto, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the United Nations Convention relating to the Status of Stateless Persons and other relevant international instruments.
(21)
The implementation of this Regulation does not affect Regulation (EU) No 656/2014 of the European Parliament and of the Council (7). Sea operations should be carried out in a way that, in all instances, ensures the safety of the persons intercepted or rescued, the safety of the units that take part in the sea operation in question and the safety of third parties.
(22)
The Agency should carry out its tasks in accordance with the principle of subsidiarity and without prejudice to the responsibilities of the Member States with regard to maintaining law and order and safeguarding internal security.
(23)
The Agency should carry out its tasks without prejudice to the competence of the Member States as regards defence.
(24)
The extended tasks and competence of the Agency should be balanced with strengthened fundamental rights safeguards and increased accountability and liability, in particular in terms of the exercise of executive powers by the statutory staff.
(25)
The Agency relies on the cooperation of Member States to be able to perform its tasks effectively. In that respect, it is important for the Agency and the Member States to act in good faith and to exchange accurate information in a timely manner. No Member State should be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security.
(26)
Member States should also, in their own interest and in the interest of the other Member States, contribute relevant data necessary for the activities carried out by the Agency, including for the purposes of situational awareness, risk analysis, vulnerability assessments and integrated planning. Equally, they should ensure that the data are accurate and up-to-date and are obtained and entered lawfully. Where those data include personal data, Union law on data protection should apply in full.
(27)
The communication network established under this Regulation should be based on and replace the EUROSUR communication network developed in the framework of Regulation (EU) No 1052/2013 of the European Parliament and of the Council (8). The communication network established under this Regulation should be used for all secured information exchanges within the European Border and Coast Guard. The level of accreditation of the communication network should be increased to the classification level of CONFIDENTIEL UE/EU CONFIDENTIAL in order to improve information assurance between the Member States and with the Agency.
(28)
EUROSUR is necessary for the European Border and Coast Guard to be able to provide a framework for the exchange of information and the operational cooperation between Member States' national authorities and with the Agency. EUROSUR provides national authorities and the Agency with the infrastructure and tools needed to improve their situational awareness and to increase reaction capability at the external borders for the purpose of detecting, preventing and combating illegal immigration and cross-border crime, thereby contributing to saving the lives of migrants and ensuring their protection.
(29)
Member States should establish national coordination centres to improve the exchange of information and cooperation between Member States and with the Agency with respect to border surveillance and the carrying out of border checks. It is essential for the proper functioning of EUROSUR that all national authorities with a responsibility for external border surveillance under national law cooperate via national coordination centres.
(30)
The role of the national coordination centre to coordinate and exchange information among all authorities with a responsibility for external border control at national level is without prejudice to the competence established at national level with regard to planning and implementing border control.
(31)
This Regulation should not hinder Member States from also making their national coordination centres responsible for coordinating the exchange of information and for cooperation with regard to other components of European integrated border management.
(32)
The quality of the information exchanged between the Member States and the Agency and the timeliness of the exchange of such information are prerequisites for the proper functioning of European integrated border management. Building on the success of EUROSUR, that quality should be ensured through standardisation, the automation of the information exchange across networks and systems, information assurance and control of the quality of the data and information transmitted.
(33)
The Agency should provide the necessary assistance for the development and operation of EUROSUR, including the interoperability of systems, in particular by establishing, maintaining and coordinating EUROSUR.
(34)
EUROSUR should provide an exhaustive situational picture not only at the external borders but also within the Schengen area and in the pre-frontier area. It should cover land, sea and air border surveillance and border checks. The provision of situational awareness within the Schengen area should not lead to operational activities of the Agency at the internal borders of the Member States.
(35)
Air border surveillance should be an element of border management since both commercial and private flights and remotely piloted aircraft systems are used for illegal activities related to immigration and cross-border crime. Air border surveillance aims to detect and monitor such suspicious flights crossing or intending to cross the external borders and to perform related risk analysis with a view to triggering reaction capabilities by the competent authorities of the Union and the Member States. For that purpose, inter-agency cooperation at Union level should be promoted between the Agency, the Network Manager of the European Air Traffic Management Network (EATMN) and the European Union Aviation Safety Agency (EASA). Where relevant, Member States should be able to receive information on suspicious external flights and react accordingly. The Agency should monitor and support research and innovation activities in that area.
(36)
The reporting of events related to unauthorised secondary movements in EUROSUR will contribute to the monitoring by the Agency of migratory flows towards and within the Union for the purpose of risk analysis and situational awareness. The implementing act laying down the details of the information layers of the situational pictures and the rules for the establishment of specific situational pictures should further define the type of reporting to best meet this objective.
(37)
The EUROSUR fusion services supplied by the Agency should be based on the common application of surveillance tools and inter-agency cooperation at Union level, including the provision of Copernicus security services. EUROSUR fusion services should provide the Member States and the Agency with value-added information services related to European integrated border management. EUROSUR fusion services should be expanded to support border checks, air border surveillance and the monitoring of migration flows.
(38)
The practice of travelling in small and unseaworthy vessels has dramatically increased the number of migrants drowning at the southern maritime external borders. EUROSUR should considerably improve the operational and technical ability of the Agency and the Member States to detect such small vessels and to improve the reaction capability of the Member States, thereby contributing to reducing the loss of lives of migrants, including in the framework of search and rescue operations.
(39)
It is recognised in this Regulation that migratory routes are also taken by persons in need of international protection.
(40)
The Agency should prepare general and tailored risk analyses based on a common integrated risk analysis model, to be applied by the Agency itself and by Member States. The Agency should, based also on information provided by Member States, provide adequate information covering all aspects relevant to European integrated border management, especially border control, return, the phenomenon of unauthorised secondary movements of third-country nationals within the Union in terms of trends, volume and routes, prevention of cross-border crime including facilitation of unauthorised border crossings, trafficking in human beings, terrorism and threats of a hybrid nature, as well as the situation in relevant third countries, so as to allow for appropriate measures to be taken or to tackle identified threats and risks with a view to improving the integrated management of the external borders.
(41)
Given its activities at the external borders, the Agency should contribute to preventing and detecting cross-border crime, such as migrant smuggling, trafficking in human beings and terrorism, where it is appropriate for it to act and where it has obtained relevant information through its activities. It should coordinate its activities with Europol, which is the agency responsible for supporting and strengthening Member States' actions and their cooperation in preventing and combating serious crime affecting two or more Member States. The cross-border dimension is characterised by crimes that are directly linked to unauthorised crossings of the external borders, including trafficking in human beings or smuggling of migrants. In accordance with Council Directive 2002/90/EC (9), Member States are able to decide not to impose sanctions where the aim of the behaviour is to provide humanitarian assistance to migrants.
(42)
In a spirit of shared responsibility, the role of the Agency should be to monitor regularly the management of the external borders, including the respect for fundamental rights in the border management and return activities of the Agency. The Agency should ensure proper and effective monitoring not only through situational awareness and risk analysis, but also through the presence of experts from its own staff in Member States. The Agency should therefore be able to deploy liaison officers to Member States for a period of time during which the liaison officer reports to the executive director. The reports of the liaison officers should form part of the vulnerability assessment.
(43)
The Agency should carry out a vulnerability assessment based on objective criteria to assess the capacity and readiness of the Member States to face challenges at their external borders and to contribute to the standing corps and technical equipment pool. The vulnerability assessment should include an assessment of the equipment, infrastructure, staff, budget and financial resources of Member States as well as their contingency plans to address possible crises at the external borders. Member States should take measures to address any deficiencies identified in that assessment. The executive director should identify the measures to be taken and recommend them to the Member State concerned. The executive director should also set a time limit within which those measures should be taken and closely monitor their timely implementation. Where the necessary measures are not taken within the set time limit, the matter should be referred to the management board for a further decision.
(44)
If the Agency is not provided with the accurate and timely information necessary for carrying out a vulnerability assessment, it should be able to take that fact into account when performing the vulnerability assessment, unless duly justified reasons are provided for withholding the data.
(45)
The vulnerability assessment and the Schengen evaluation mechanism established by Council Regulation (EU) No 1053/2013 (10) are two complementary mechanisms for guaranteeing Union quality control on the proper functioning of the Schengen area and ensuring constant preparedness at both Union and national levels to respond to any challenges at the external borders. While the Schengen evaluation mechanism is the primary method for evaluating the implementation of and compliance with Union law in the Member States, the synergies between the vulnerability assessment and the Schengen evaluation mechanism should be maximised with a view to establishing an improved situational picture of the functioning of the Schengen area, avoiding, to the extent possible, duplication of efforts on the Member States' side, and ensuring the better-coordinated use of the relevant Union financial instruments supporting the management of the external borders. For that purpose, the regular exchange of information between the Agency and the Commission on the results of both mechanisms should be established.
(46)
Given that the Member States establish border sections, to which the Agency attributes impact levels, and that the reaction capabilities of the Member States and of the Agency should be linked to those impact levels, a fourth impact level — the critical impact level — should be established to be attributed to a border section on a temporary basis where the Schengen area is at risk and where the Agency should intervene.
(47)
Where a high or critical impact level is attributed to a maritime border section due to an increase of illegal immigration, the Member States concerned should take that increase into account for the planning and conducting of search and rescue operations since such a situation could generate an increase in requests for assistance for persons in distress at sea.
(48)
The Agency should organise appropriate technical and operational assistance to Member States in order to reinforce their capacity to implement their obligations with regard to external border control and to face challenges at the external borders resulting from an increased number of arrivals of irregular migrants or cross-border crime. Such assistance should be without prejudice to the relevant national authorities' competence to initiate criminal investigations. In that respect, the Agency should, either on its own initiative and with the agreement of the Member State concerned or at the request of that Member State, organise and coordinate joint operations for one or more Member States, deploy border management teams, migration management support teams and return teams (collectively referred to as ‘teams’) from the standing corps and provide the necessary technical equipment.
(49)
Where there is a specific and disproportionate challenge at the external borders, the Agency should, either on its own initiative and with the agreement of the Member State concerned or at the request of that Member State, organise and coordinate rapid border interventions and deploy both teams from the standing corps and technical equipment, including from the rapid reaction equipment pool. The rapid reaction equipment pool should contain a limited number of items of equipment needed for possible rapid border interventions. Rapid border interventions should provide reinforcement for a limited period of time in situations where an immediate response is required and where such an intervention would provide an effective response. To ensure that such intervention is effective, Member States should make staff that they second to the Agency, provide to the Agency for short-term deployment and deploy for the purposes of the reserve for rapid reaction available to form relevant teams and provide the necessary technical equipment. Where the crew deployed with the technical equipment of a Member State originates in that Member State, it should count as part of that Member State's contribution to the standing corps. The Agency and the Member State concerned should agree upon an operational plan.
(50)
Where a Member State faces specific and disproportionate migratory challenges at particular areas of its external borders characterised by large, inward, mixed migratory flows, the Member States should be able to rely on increased technical and operational reinforcements. Those reinforcements should be provided in hotspot areas by migration management support teams. Those teams should be composed of operational staff to be deployed from the standing corps and experts from the European Asylum Support Office (EASO), Europol and, where relevant, the European Union Agency for Fundamental Rights, other Union bodies, offices and agencies, and Member States. The Commission should ensure the necessary coordination of the assessment of needs submitted by Member States. The Agency should assist the Commission in the coordination among the different agencies on the ground. The Commission should, in cooperation with the host Member State and relevant Union agencies, establish the terms of cooperation at hotspot areas. The Commission should ensure the cooperation of the relevant agencies within their respective mandates and be responsible for coordinating the activities of the migration management support teams.
(51)
Member States should ensure that any authorities which are likely to receive applications for international protection, such as the police, border guards, immigration authorities and personnel of detention facilities, have the relevant information. They should also ensure that such authorities' personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged and instructions as to how to refer persons in a vulnerable situation to the appropriate referral mechanisms.
(52)
In its conclusions of 28 June 2018, the European Council reconfirmed the importance of relying on a comprehensive approach to migration and considered that migration is a challenge not only for one Member State but also for Europe as a whole. In that respect, it highlighted the importance for the Union of providing full support to ensure an orderly management of migration flows.
(53)
The Agency and EASO should cooperate closely in order to address effectively migratory challenges characterised by large inward mixed migratory flows, in particular at the external borders. In particular, the Agency and EASO should coordinate their activities and support Member States to facilitate procedures regarding international protection and the return procedure with regard to third-country nationals whose applications for international protection are rejected. The Agency and EASO should also cooperate in other common operational activities such as shared risk analysis, the collection of statistical data, training, and support to Member States in connection with contingency planning.
(54)
National authorities carrying out coast guard functions are responsible for a wide range of tasks, which may include maritime safety, security, search and rescue, border control, fisheries control, customs control, general law enforcement and environmental protection. The Agency, the European Fisheries Control Agency (EFCA) and the European Maritime Safety Agency (EMSA) should therefore strengthen their cooperation both with each other and with the national authorities carrying out coast guard functions to increase maritime situational awareness and to support coherent and cost-efficient action. Synergies between the various actors in the maritime environment should be in line with European integrated border management and maritime security strategies.
(55)
In hotspot areas, the Member States should cooperate with the relevant Union agencies, which should act within their respective mandates and powers, under the coordination of the Commission. The Commission, in cooperation with the relevant Union agencies, should ensure that activities in hotspot areas comply with relevant Union law and fundamental rights.
(56)
Where justified by the results of the vulnerability assessment or risk analysis or where a critical impact level has been temporarily attributed to one or more border sections, the executive director of the Agency should recommend to the Member State concerned to initiate and carry out joint operations or rapid border interventions.
(57)
Where external border control is rendered ineffective to such an extent that it risks jeopardising the functioning of the Schengen area, either because a Member State does not take the necessary measures in line with a vulnerability assessment or because a Member State facing specific and disproportionate challenges at the external borders has not requested sufficient support from the Agency or is not implementing such support, a unified, rapid and effective response should be delivered at Union level. For the purpose of mitigating these risks, and to ensure better coordination at Union level, the Commission should propose to the Council a decision that identifies the measures to be implemented by the Agency and requires the Member State concerned to cooperate with the Agency in the implementation of those measures. The implementing power to adopt such a decision should be conferred on the Council because of the potentially politically sensitive nature of the measures to be decided, which are likely to touch on national executive and enforcement powers. The Agency should then determine the actions to be taken for the practical execution of the measures indicated in the Council decision. The Agency should draw up an operational plan with the Member State concerned. The Member State concerned should facilitate the implementation of the Council decision and the operational plan by fulfilling, inter alia, its obligations as provided for in this Regulation. If a Member State does not comply with that Council decision within 30 days and does not cooperate with the Agency in the implementation of the measures contained in that decision, the Commission should be able to trigger the specific procedure provided for in Article 29 of Regulation (EU) 2016/399 to address exceptional circumstances putting the overall functioning of the area without internal border control at risk.
(58)
The standing corps should be composed of four categories of operational staff, namely statutory staff, staff seconded to the Agency by the Member States for a long term, staff provided by Member States for short-term deployments and staff forming part of the reserve for rapid reaction for rapid border interventions. Operational staff should consist of border guards, return escorts, return specialists, and other relevant staff. The standing corps should be deployed in the framework of teams. The actual number of operational staff deployed from the standing corps should depend on operational needs.
(59)
Operational staff deployed as members of the teams should have all the necessary powers to carry out border control and return tasks, including the tasks requiring executive powers, set out in relevant national law or in this Regulation. Where statutory staff exercise executive powers, the Agency should be liable for any damage caused.
(60)
Member States should contribute to the standing corps in accordance with Annex II for long-term secondments and Annex III for short-term deployments. The individual contributions of Member States should be established on the basis of the distribution key agreed during the negotiations in 2016 on Regulation (EU) 2016/1624 for the purposes of the rapid reaction pool and set out in Annex I to that Regulation. That distribution key should be proportionally adapted to the size of the standing corps. Those contributions should also be established in a proportionate way for the Schengen associated countries.
(61)
When selecting the numbers and profiles of staff to be indicated in the decision of the management board, the executive director should apply the principles of equal treatment and proportionality, in particular with regard to the national capabilities of Member States.
(62)
The exact timing for short-term deployments from the standing corps and for making available technical equipment co-financed under the specific actions of the Internal Security Fund or any other dedicated Union funding should be agreed between each Member State and the Agency through annual bilateral negotiations, taking into account capacity and proportionality. When requesting national contributions to the standing corps, the executive director should apply as a general rule the principles of proportionality and equal treatment of Member States with the aim of preventing situations that would substantially affect the discharge of national tasks in one Member State by requesting the deployment of the annual contributions of that Member State in one particular period of four months. Such arrangements should include the possibility for Member States to fulfil their obligations regarding deployment periods by means of non-consecutive periods. With regard to short-term deployments from the standing corps, Member States should also be able to fulfil their obligations for short-term deployment in a cumulative manner, by deploying more staff for shorter periods or by deploying the individual staff members for more than four months in accordance with the planning agreed through annual bilateral negotiations.
(63)
Without prejudice to the timely conclusion of the operational plan regarding sea operations, the Agency should provide participating Member States, at the earliest possible stage, with specific information on the relevant jurisdiction and applicable law, in particular on the prerogatives of the commanders of ships and aircraft, the conditions of the use of force and the imposition of restrictive or custodial measures.
(64)
The long-term development of human resources to secure the contributions of the Member States to the standing corps should be supported by a financial support system. For that purpose, it is appropriate to authorise the Agency to use the award of grants to the Member States without a call for proposals under financing not linked to costs subject to the fulfilment of the conditions set out in Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (11). The financial support should enable Member States to hire and train additional staff to provide them with the necessary flexibility to comply with the mandatory contributions to the standing corps. The financial support system should take into account the time required for recruitment and training, and it should therefore be based on the N + 2 rule. The dedicated financing system should strike the right balance between the risks of irregularities and fraud and costs of control. This Regulation sets the essential conditions for triggering the financial support, namely the recruitment and training of the adequate number of border guards or other specialists corresponding to the number of officers seconded to the Agency for a long term or the effective deployment of officers during the Agency's operational activities for a consecutive or non-consecutive period of at least four months or on a pro-rata basis for deployments for a consecutive or a non-consecutive period of less than four months. Given the lack of relevant and comparable data on actual costs across Member States, the development of a cost-based financing scheme would be overly complex and would not address the need for a simple, fast, efficient and effective financing scheme. For the purpose of fixing the amount of such financing to different Member States, it is appropriate to use as a reference amount the annual salary of contractual agents in function group III, grade 8, step 1 of the institutions of the Union, adjusted by a corrective coefficient per Member State in line with the principle of sound financial management and in the spirit of equal treatment. When implementing such financial support, the Agency and Member States should ensure that the principles of co-financing and no double funding are complied with.
(65)
In order to alleviate the possible impact on the national services related to the recruitment of statutory staff for the standing corps, support should be provided to the relevant services of Member States to cover training investments for new personnel replacing such departing personnel.
(66)
In view of the deployment of the standing corps on the territories of third countries, the Agency should develop the capabilities for its own command and control structures as well as a procedure to ensure that the members of the teams can be held civilly and criminally liable.
(67)
In order to allow for effective deployments from the standing corps beginning on 1 January 2021, certain decisions and implementing measures should be taken and put in place as soon as possible. Therefore, the Agency, together with the Member States and the Commission, should engage in the preparation of such implementing measures and decisions for adoption by the management board. Such a preparatory process should encompass the relevant recruitment by the Agency and the Member States as referred to in this Regulation.
(68)
In order to ensure the continuity of the support for operational activities organised by the Agency, however, all deployments, including under the rapid reaction pool, to be made by 31 December 2020 should be planned and implemented in accordance with Regulation (EU) 2016/1624 and in accordance with the annual bilateral negotiations carried out in 2019. To that end, the relevant provisions of that Regulation should only be repealed with effect from 1 January 2021.
(69)
The Agency's workforce should consist of staff performing the tasks devoted to the Agency, either in the Agency's headquarters or as part of the standing corps. Statutory staff within the standing corps should primarily be deployed as members of the teams. It should be possible to recruit only a limited and clearly defined number of statutory staff to perform supportive functions for the establishment of the standing corps, in particular at headquarters.
(70)
To overcome the persistent gaps in the voluntary pooling of technical equipment from Member States, in particular as regards large-scale assets, the Agency should have its own necessary equipment to be deployed in joint operations or rapid border interventions or any other operational activities. Those assets should be authorised by the Member States as being on government service. While the Agency has been legally able to acquire or lease its own technical equipment since 2011, that possibility was significantly hindered by the lack of budgetary resources.
(71)
Consequently, in order to match the level of ambition underlying the establishment of the standing corps, the Commission earmarked a significant envelope under the 2021-2027 multiannual financial framework to allow the Agency to acquire, maintain and operate the necessary air, sea and land assets corresponding to its operational needs. While the acquisition of the necessary assets could be a lengthy process, especially for large assets, the Agency's own equipment should ultimately become the backbone of the operational deployments with additional contributions by Member States to be called upon in exceptional circumstances. The Agency's equipment should be largely operated by the Agency's technical crews that are part of the standing corps. In order to ensure the effective use of the proposed financial resources, the acquisition of the necessary assets should be based on a multiannual strategy decided as early as possible by the management board. It is necessary to ensure the sustainability of the Agency by means of future multiannual financial frameworks and to maintain comprehensive European integrated border management.
(72)
In the implementation of this Regulation, the Agency and the Member States should make the best possible use of existing capabilities in terms of human resources as well as technical equipment, both at Union and national level.
(73)
The long-term development of new capabilities within the European Border and Coast Guard should be coordinated between the Member States and the Agency in line with the multiannual strategic policy cycle for European integrated border management, taking into account the long duration of certain processes. That includes the recruitment and training of new border guards, which, during their career, could serve both in Member States and as part of the standing corps, the acquisition, maintenance and disposal of equipment, for which opportunities for interoperability and economies of scale should be sought, and the development of new equipment and related technologies, including through research.
(74)
The capability roadmap should converge the capability development plans of Member States and the multiannual planning of the Agency's resources to optimise long-term investment to best protect the external borders.
(75)
Taking into account the enhanced mandate of the Agency, the setting up of the standing corps and its strengthened presence on the ground at the external borders and its increased engagement in the field of return, it should be possible for the Agency to establish antenna offices situated at locations in the proximity of its significant operational activities for the duration of those activities, to act as an interface between the Agency and the host Member State, to deal with coordination and logistical and support tasks and to facilitate cooperation between the Agency and the host Member State.
(76)
In light of the fact that inter-agency cooperation forms part of European integrated border management, the Agency should closely cooperate with all relevant Union bodies, offices and agencies, in particular with Europol and EASO. Such cooperation should take place at the level of headquarters, in operational areas and, where relevant, at the level of antenna offices.
(77)
The Agency and the Member States, in particular their training academies, should cooperate closely with respect to the training of the standing corps, while ensuring that training programmes are harmonised and foster the common values enshrined in the Treaties. The Agency should be able, after obtaining the approval of the management board, to set up an Agency training centre to facilitate further the inclusion of a common European culture in the training provided.
(78)
The Agency should further develop common core curricula and adequate training tools for border management and return, including specific training on the protection of vulnerable persons, including children. It should also offer additional training courses and seminars related to integrated border management tasks, including for officers of the competent national bodies. The Agency should provide the members of the standing corps with specialised training relevant to their tasks and powers. That should include training on relevant Union and international law and on fundamental rights. The Agency should be authorised to organise training activities in cooperation with Member States and third countries on their territories.
(79)
The return of third-country nationals who do not fulfil or who no longer fulfil the conditions for entry, stay or residence in the Member States, in accordance with Directive 2008/115/EC of the European Parliament and of the Council (12), is an essential component of the comprehensive efforts to tackle illegal immigration and represents an important issue of substantial public interest.
(80)
The Agency should step up its assistance to Member States for returning third-country nationals, subject to Union return policy and in compliance with Directive 2008/115/EC. In particular, the Agency should coordinate and organise return operations from one or more Member States and organise and conduct return interventions to reinforce the return systems of Member States that require increased technical and operational assistance to comply with their obligation to return third-country nationals in accordance with that Directive.
(81)
The Agency should, in full respect for fundamental rights and without prejudice to the Member States' responsibility for issuing return decisions, provide technical and operational assistance to Member States in the return process, including in the identification of third-country nationals and in other pre-return and return-related activities of the Member States. In addition, the Agency should assist Member States in the acquisition of travel documents for return, in cooperation with the authorities of the relevant third countries.
(82)
The Agency should allow, subject to the agreement of the Member State concerned, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe to conduct visits to where it carries out return operations, within the framework of the monitoring mechanism established by the members of the Council of Europe under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
(83)
The assistance to Member States in carrying out return procedures should include the provision of practical information on third countries of return relevant for the implementation of this Regulation, such as the provision of contact details or other logistical information necessary for the smooth and dignified conduct of return operations. The assistance should also include the operation and maintenance of a platform for the exchange of data and information necessary for the Agency to provide technical and operational assistance in accordance with this Regulation. That platform should have a communication infrastructure enabling the automated transmission of statistical data by the Member States' return management systems.
(84)
The possible existence of an arrangement between a Member State and a third country does not absolve the Agency or the Member States from their obligations or liability under Union or international law, in particular as regards compliance with the principle of non-refoulement and the prohibition of torture and inhuman or degrading treatment.
(85)
Member States should be able to cooperate at operational level with other Member States or third countries at the external borders, including as regards military operations with a law enforcement purpose, to the extent that that cooperation is compatible with the actions of the Agency.
(86)
The Agency should improve the exchange of information and cooperation with other Union bodies, offices and agencies, such as Europol, EASO, EMSA, the European Union Satellite Centre, EASA and the Network Manager of the EATMN in order to make the best use of information, capabilities and systems which are already available at European level, such as Copernicus, the Union Earth observation and monitoring programme.
(87)
Cooperation with third countries is an important element of European integrated border management. It should serve to promote European border management and return standards, to exchange information and risk analysis, and to facilitate the implementation of returns with a view to increasing their efficiency and to supporting third countries in the area of border management and migration, including through the deployment of the standing corps where such support is required to protect external borders and the effective management of the Union's migration policy.
(88)
Where the Commission recommends that the Council authorise it to negotiate a status agreement with a third country, the Commission should assess the fundamental rights situation relevant to the areas covered by the status agreement in that third country and inform the European Parliament thereof.
(89)
Cooperation with third countries should take place in the framework of the external action of the Union and in line with the principles and objectives laid down in Article 21 of the Treaty on European Union (TEU). The Commission should ensure consistency between European integrated border management and other Union policies in the field of the Union's external action and, in particular, the Common Security and Defence Policy. The Commission should be assisted by the High Representative of the Union for Foreign Affairs and Security Policy. Such cooperation should take place with regard to, in particular, the activities of the Agency taking place on the territory of third countries or involving the officials of third countries in areas such as risk analysis, planning and conduct of operations, training, information exchange and cooperation.
(90)
In order to ensure that the information contained in EUROSUR is as complete and up to date as possible, in particular with regard to the situation in third countries, the Agency should cooperate with the authorities of third countries either in the framework of bilateral and multilateral agreements between the Member States and third countries, including regional networks, or through working arrangements concluded between the Agency and the relevant authorities of third countries. For those purposes, the European External Action Service and Union delegations and offices should provide all information that could be relevant for EUROSUR.
(91)
This Regulation includes provisions on cooperation with third countries because well-structured and permanent exchange of information and cooperation with such countries, including but not limited to neighbouring third countries, are key factors for achieving the objectives of European integrated border management. It is essential that any exchange of information and any cooperation between Member States and third countries take place in full compliance with fundamental rights.
(92)
The assistance to third countries should complement the Agency's support for Member States in the application of Union measures relating to the implementation of European integrated border management.
(93)
It should be possible for the bilateral and multilateral agreements concluded by Member States with third countries in the areas covered by European integrated border management to contain security sensitive information. Where notified to the Commission, such information should be handled by the Commission in accordance with the applicable security rules.
(94)
To establish a comprehensive situational picture and risk analysis covering the pre-frontier area, the Agency and the national coordination centres should collect information and coordinate with immigration liaison officers deployed in third countries by Member States, the Commission, the Agency or other Union bodies, offices and agencies.
(95)
The False and Authentic Documents Online (‘FADO’) system was established by Council Joint Action 98/700/JHA (13) within the General Secretariat of the Council enabling Member States' authorities to have at their disposal information on any new forgery methods that are detected and on the new genuine documents that are in circulation.
(96)
In its conclusions of 27 March 2017, the Council stated that the management of the FADO system is outdated and that a change of its legal basis is required in order to continue meeting the requirements of justice and home affairs policies. The Council also noted that synergies could be exploited in that regard using the Agency's expertise in the area of document fraud and the work the Agency has already been carrying out in the field. It is therefore intended that the Agency take over the administration and the operational and technical management of the FADO system from the General Secretariat of the Council as soon as the European Parliament and the Council have adopted the relevant legal act on the FADO system replacing Joint Action 98/700/JHA.
(97)
Prior to the adoption of the relevant legal act on the FADO system, it is desirable to ensure that the FADO system is fully operational until the transfer is effectively carried out and the existing data are transferred to the new system. The ownership of the existing data would then be transferred to the Agency.
(98)
Any processing of personal data by the Agency within the framework of this Regulation should be conducted in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (14).
(99)
Any processing of personal data by Member States within the framework of this Regulation should be conducted in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council (15) or Directive (EU) 2016/680 of the European Parliament and of the Council (16), as applicable.
(100)
In the context of return, third-country nationals frequently do not hold any identification documents and do not cooperate as regards the establishment of their identity by withholding information or providing incorrect personal data. Given the particular policy need for expedient return procedures, it is necessary for the Agency to be able to restrict certain rights of data subjects so as to prevent the abuse of such rights from impeding the proper implementation of return procedures and the successful enforcement of return decisions by the Member States or from preventing the Agency from performing its tasks efficiently. In particular, the exercise of the right to the restriction of processing could significantly delay and obstruct the carrying out of the return operations. Furthermore, in some cases, the right of access by the third-country national could jeopardise a return operation by increasing the risk of absconding should the third-country national learn that the Agency is processing his or her data in the context of a planned return operation. The right to rectification could increase the risk that the third-country national in question will mislead the authorities by providing incorrect data. In order to enable the Agency to restrict certain rights of data subjects, it should be able to adopt internal rules on such restrictions.
(101)
In order to properly implement its tasks in the area of return, including by assisting Member States in the proper implementation of return procedures and the successful enforcement of return decisions, as well as to facilitate return operations, the Agency might need to transfer the personal data of returnees to third countries. The third countries of return are not often subject to adequacy decisions adopted by the Commission under Article 45 of Regulation (EU) 2016/679 or under Article 36 of Directive (EU) 2016/680, and have often not concluded or do not intend to conclude a readmission agreement with the Union or otherwise provide for appropriate safeguards within the meaning of Article 48 of Regulation (EU) 2018/1725 or within the meaning of the national provisions transposing Article 37 of Directive (EU) 2016/680. However, despite the extensive efforts of the Union in cooperating with the main countries of origin of illegally staying third-country nationals subject to an obligation to return, it is not always possible to ensure that such third countries systematically comply with the obligation established by international law to readmit their own nationals. Readmission agreements concluded or being negotiated by the Union or the Member States which provide for appropriate safeguards for personal data cover a limited number of such third countries. Where such agreements do not yet exist, personal data should be transferred by the Agency for the purposes of facilitating the return operations of the Union, provided that the conditions laid down in point (d) of Article 50(1) of Regulation (EU) 2018/1725 are met.
(102)
Any transfer of personal data by Member States to third countries should be carried out in accordance with Regulation (EU) 2016/679 and Directive (EU) 2016/680, as applicable. In the absence of readmission agreements, and as an exception to the requirement that adequacy decisions have been adopted or appropriate safeguards have been provided for, it should be possible for Member States to transfer personal data to the authorities of third countries for the purposes of implementing Union return policy. It should be possible to use the derogation for specific situations provided for in Article 49 of Regulation (EU) 2016/679 and Article 38 of Directive (EU) 2016/680, as applicable, subject to the conditions set out in those articles.
(103)
This Regulation respects the fundamental rights and observes the principles recognised by Articles 2 and 6 TEU and by the Charter of Fundamental Rights of the European Union (‘the Charter’), in particular respect for human dignity, the right to life, the prohibition of torture and inhuman or degrading treatment or punishment, the prohibition of trafficking in human beings, the right to liberty and security, the right to the protection of personal data, the right of access to documents, the right to asylum and to protection against removal and expulsion, non-refoulement, non-discrimination and the rights of the child.
(104)
This Regulation should establish a complaints mechanism for the Agency in cooperation with the fundamental rights officer, to safeguard the respect for fundamental rights in all the activities of the Agency. This should be an administrative mechanism whereby the fundamental rights officer should be responsible for handling complaints received by the Agency in accordance with the right to good administration. The fundamental rights officer should review the admissibility of a complaint, register admissible complaints, forward all registered complaints to the executive director, forward complaints concerning members of the teams to the home Member State, and register the follow-up by the Agency or that Member State. The mechanism should be effective, ensuring that complaints are properly followed up. The complaints mechanism should be without prejudice to access to administrative and judicial remedies and not constitute a requirement for seeking such remedies. Criminal investigations should be conducted by the Member States. In order to increase transparency and accountability, the Agency should report on the complaints mechanism in its annual report. The report should cover in particular the number of complaints it has received, the types of fundamental rights violations involved, the operations concerned and, where possible, the follow-up measures taken by the Agency and Member States. The fundamental rights officer should have access to all information concerning respect for fundamental rights in relation to all the activities of the Agency. The fundamental rights officer should be provided with the resources and staff necessary to enable him or her to effectively perform all his or her tasks in accordance with this Regulation. The staff provided to the fundamental rights officer should have the skills and seniority that correspond to the expansion of activities and powers of the Agency.
(105)
The Agency should be independent as regards technical and operational matters and have legal, administrative and financial autonomy. To that end, it is necessary and appropriate that it should be a Union body having legal personality and exercising the implementing powers that are conferred upon it by this Regulation.
(106)
The Commission and the Member States should be represented within a management board to exercise oversight over the Agency. The management board should, where possible, consist of the operational heads of the national services responsible for border management or their representatives. The parties represented in the management board should make efforts to limit turnover of their representatives in order to ensure continuity of the management board's work. The management board should be entrusted with the necessary powers to establish the Agency's budget, verify its execution, adopt appropriate financial rules, establish transparent working procedures for decision-making by the Agency and appoint the executive director and three deputy executive directors, each of whom should be assigned responsibilities in a certain field of competence of the Agency, such as managing the standing corps, overseeing the Agency's tasks regarding returns or managing the Agency's involvement in large-scale IT systems. The Agency should be governed and operated taking into account the principles of the common approach on Union decentralised agencies adopted on 19 July 2012 by the European Parliament, the Council and the Commission.
(107)
Given the involvement of the European Parliament in the matters governed by this Regulation, the chairperson of the management board should be able to invite an expert of the European Parliament to attend the meetings of the management board.
(108)
Each year, the management board should prepare a single programming document. When preparing that document, the management board should take into account the recommendations of the Interinstitutional Working Group on decentralised agencies' resources.
(109)
In order to guarantee the autonomy of the Agency, it should be granted a stand-alone budget with a revenue which comes mostly from a contribution from the Union. The Agency's budget should be prepared in accordance with the principle of performance-based budgeting, taking into account the Agency's objectives and the expected results of its tasks. The Union budgetary procedure should be applicable as far as the Union contribution and any other subsidies chargeable to the general budget of the Union are concerned. The auditing of accounts should be undertaken by the Court of Auditors. In exceptional situations where the available budget is deemed insufficient and the budgetary procedure does not allow an adequate response to fast-developing situations, the Agency should have the possibility of receiving grants from Union funds to fulfil its tasks.
(110)
The executive director, in his or her capacity as an authorising officer, should assess the financial risks related to the Agency's activities on a regular basis and take the necessary mitigating measures in accordance with the financial framework applicable to the Agency and inform the management board accordingly.
(111)
The Agency is expected to face challenging circumstances in the coming years as regards fulfilling exceptional needs for recruiting and retaining qualified staff from the broadest possible geographical basis.
(112)
In the spirit of shared responsibility, the Agency should require the staff it employs, in particular the statutory staff of the standing corps, including statutory staff deployed in operational activities, to possess the same level of training, special expertise and professionalism as staff seconded or employed by the Member States. Therefore, the Agency should review and evaluate whether its statutory staff conduct themselves properly in operational activities in the field of border control and return.
(113)
Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (17) should apply without restriction to the Agency, which should accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-Fraud Office (OLAF) (18).
(114)
In accordance with Council Regulation (EU) 2017/1939 (19), the European Public Prosecutor's Office should be able to investigate and prosecute fraud and other criminal offences affecting the Union's financial interests as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council (20).
(115)
Regulation (EC) No 1049/2001 of the European Parliament and of the Council (21) should apply to the Agency. The Agency should be as transparent as possible about its activities, without jeopardising the attainment of the objective of its operations. It should make public the information about all of its activities. It should likewise ensure that the public and any interested party are rapidly given information with regard to its work.
(116)
The Agency should also report on its activities to the European Parliament, to the Council and to the Commission to the fullest extent.
(117)
The Commission should carry out an evaluation of this Regulation. That evaluation should assess, inter alia, the attractiveness of the Agency as an employer for the recruitment of statutory staff with a view to ensuring the quality of the candidates and geographical balance.
(118)
The external borders referred to in this Regulation are those to which the provisions of Title II of Regulation (EU) 2016/399 apply, which includes the external borders of Schengen Member States in accordance with Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and to the Treaty on the Functioning of the European Union (TFEU).
(119)
In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (22).
(120)
Since the objectives of this Regulation, namely the development and implementation of a system of integrated management of the external borders to ensure the proper functioning of the Schengen area, cannot be sufficiently achieved by the Member States acting in an uncoordinated manner but can rather, by reason of the absence of controls at internal borders, the significant migratory challenges at the external borders, the need to monitor efficiently the crossing of those borders, and the need to contribute to a high level of internal security within the Union, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.
(121)
As regards Iceland and Norway, this Regulation 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 latters' association with the implementation, application and development of the Schengen acquis (23), which fall within the area referred to in Article 1, point A of Council Decision 1999/437/EC (24). The Arrangement between the European Community and the Republic of Iceland and the Kingdom of Norway on the modalities of the participation by those States in the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (25) provides for rules on the participation by those countries in the work of the Agency, including provisions on financial contributions and staff.
(122)
As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of 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 (26) which fall within the area referred to in Article 1, point A of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (27).
(123)
As regards Liechtenstein, this Regulation 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 (28) which fall within the area referred to in Article 1, point A of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (29).
(124)
The Arrangement between the European Community, of the one part, and the Swiss Confederation and the Principality of Liechtenstein, of the other part, on the modalities of the participation by those States in the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (30) provides for rules on the participation by those countries in the work of the Agency, including provisions on financial contributions and staff.
(125)
In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it, or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.
(126)
This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC (31); the United Kingdom is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.
(127)
This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (32); Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.
(128)
The Agency should facilitate the organisation of specific activities in which the Member States may avail themselves of the expertise and facilities which Ireland and the United Kingdom may be willing to offer, on terms to be decided on a case-by-case basis by the management board. To that end, representatives of Ireland may be invited to attend meetings of the management board which allow them to participate fully in the preparation of such specific activities. Representatives of the United Kingdom may be invited to attend the meetings of the management board until the day on which the Treaties cease to apply to the United Kingdom pursuant to Article 50(3) TEU.
(129)
Although the United Kingdom does not participate in this Regulation, it has been granted the possibility to cooperate with the European Border and Coast Guard in view of its position as a Member State. In view of the submission by the United Kingdom of the notification of its intention to withdraw from the Union pursuant to Article 50 TEU, special arrangements applicable to the operational cooperation with the United Kingdom on the basis of this Regulation should be applicable until the day on which the Treaties cease to apply to the United Kingdom pursuant to Article 50(3) TEU or provided that a withdrawal agreement concluded with the United Kingdom in accordance with Article 50 TEU that regulates such special arrangements has entered into force.
(130)
A controversy exists between the Kingdom of Spain and the United Kingdom on the demarcation of the borders of Gibraltar.
(131)
The suspension of the applicability of this Regulation to the borders of Gibraltar does not imply any change in the respective positions of the States concerned.
(132)
The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council (33) on 7 November 2018 and delivered an opinion on 30 November 2018.
(133)
This Regulation aims to amend and expand the provisions of Regulations (EU) 2016/1624 and (EU) No 1052/2013. Since the amendments to be made are substantial in number and nature, those legal acts should, for the sake of clarity, be repealed,
