ANNEX
Proposal for a
REGULATION OF
THE EUROPEAN PARLIAMENT AND THE COUNCIL
amending Council Regulation No 2007/2004
establishing a European Agency for the
Management of Operational Cooperation at the External Borders of the Member States
of the European Union (FRONTEX)
Article 1
Amendment
Regulation (EC) No 2007/2004 is amended as follows:
(1) In
Article 1 paragraph 2 is replaced by the following:
"2. While considering that the responsibility for the control
and surveillance of external borders lies with the Member States, the Agency
shall facilitate and render more effective the application of existing and future European Union
measures relating to the management of external borders, in particular
the Schengen Borders Code,
and in accordance with relevant Union law, International law, obligations
related to access to international protection, and fundamental rights. It shall do so by ensuring the
coordination of Member States' actions in the implementation of those measures,
thereby contributing to an efficient, high and uniform level of control
on persons and surveillance of the external borders of the Member States."
(2) Article
1a is amended as follows:
(a) point 2 is replaced by the following:
"2. "host Member
State" means a Member State on the territory of in which,
or adjacent to, a deployment of a Rapid Border Intervention Team or a joint
operation or a pilot project takes place or from which it is launched;"
(b) point
4 is replaced by the following:
"4. "members of the
teams" means border guards of Member States serving with the Rapid Border
Intervention Team or the Frontex Joint Support Team other than those of the
host Member State;"
Point 7 has been deleted
(3) Article
2 is amended as follows:
(a) paragraph
1 is amended as follows:
(i)
points (c) and (d) are replaced by the following:
"(c) carry
out risk analyses, including studies of the preparedness the
evaluation of the capacity of Member States to face threats and pressure at
the external borders;
(d) participate
in the development of research relevant for the control and surveillance of
external borders;"
(ii) point (f) is replaced
by the following:
"(f) provide
Member States with the necessary support, including, upon request, coordination
regarding organising joint return operations;"
(iii) the following points (h) and
(i) are added:
"(h) develop and operate information
systems that enable swift and reliable exchanges of information regarding
emerging risks at the external borders, including the Information and Coordination
Network established by Council Decision 2005/267/EC;
(i) provide the
necessary assistance to the development and operation of a European border
surveillance system and, as appropriate, to the development of a common
information sharing environment, including interoperability of systems."
(b) the following paragraph
1a is inserted:
"All border guards and other personnel
of the Member States, as well as the staff of the Agency shall, prior to their
participation in operational activities organised by the Agency, have received
training in relevant EU and international law, including fundamental rights and
access to international protection."
(c) In paragraph 2 the last
subparagraph is replaced by the following:
"Member States shall report to the Agency on these operational
matters at the external borders outside the framework of the Agency. The
Executive Director shall inform the Management Board on these matters on a
regular basis and at least once a year."
(4) Article
3 is replaced by the following:
"Article
3
Joint operations and pilot projects at the external borders
1. The
Agency shall evaluate, approve and coordinate proposals for joint operations
and pilot projects made by Member States, including the requests of Member
States related to circumstances requiring increased technical and operational
assistance.
The Agency
may itself initiate joint operations and pilot projects in cooperation with
Member States in agreement with the host Member State(s).
It may also
decide to put its technical equipment at the disposal of Member States
participating in the joint operations or pilot projects.
Joint
operations and pilot projects should be preceded by a thorough risk analysis.
The Agency
may also terminate joint operations and pilot projects if the conditions to
conduct these initiatives are no longer fulfilled. Where appropriate,
participating Member States may request the Agency to terminate a joint
operation or pilot project.
2. The
Agency shall constitute a pool of border guards called Frontex Joint Support
Teams in accordance with the provisions of Article 3b, for possible deployment
during joint operations and pilot projects referred to in paragraph 1. It shall
decide on the deployment of human resources and technical equipment in
accordance with Articles 3a and 7.
3. The
Agency may operate through its specialised branches provided for in Article 16,
for the practical organisation of joint operations and pilot projects.
4. The
Agency shall evaluate the results of the joint operations and pilot projects
and transmit the detailed evaluation reports within 60 days following the end
of the activity to the Management Board. The Agency shall make a comprehensive
comparative analysis of those results with a view to enhancing the quality,
coherence, efficiency and effectiveness of
future operations and projects to be included in its general report provided
for in Article 20(2)(b.
5. The
Agency may decide to finance or co-finance the joint operations and pilot
projects referred to in paragraph 1, with grants from its budget in accordance
with the financial rules applicable to the Agency."
(5) The
following Articles 3a, 3b and 3c are inserted:
"Article
3a
Organisational aspects of joint operations and pilot projects
1. The Executive
Director shall draw up an operational plan for activities referred to in
Article 3(1). The Executive Director and the host Member State, in
consultation with participating Member States, shall agree on the
operational plan detailing the organisational aspects in due time before the
envisaged beginning of the activity.
The
operational plan shall cover all aspects considered necessary for carrying
out the joint operation or the pilot project, including the following:
(a) a description of the
situation, with modus operandi and objectives of the deployment, including the
operational aim;
(b) the foreseeable
duration of the joint operation or pilot projects;
(c) the geographical area
where the joint operation or pilot project will take place;
(d) description of the
tasks and special instructions for the guest officers, including on permissible
consultation of databases and permissible service weapons, ammunition and
equipment in the host Member State;
(e) the composition of the
teams of guest officers as well as the deployment of other relevant staff;
(f) command and control
provisions, including the names and ranks of the host Member State's border
guards responsible for cooperating with the guest officers and the Agency, in
particular those of the border guards who are in command during the period of
deployment, and the place of the guest officers in the chain of command;
(g) the technical equipment
to be deployed during the joint operation or pilot project, including specific
requirements such as conditions for use, requested crew, transport and other
logistics, and financial provisions;
(h1) provisions on incident reporting by
the Agency to the Management Board and to relevant public authorities.
(h2) a reporting and evaluation scheme
containing detailed provisions on incident reporting, benchmarks for the
evaluation report and final date of submission of the final evaluation report in
accordance with Article 3(4).
(i) regarding sea
operations, specific requirements regarding the applicable jurisdiction and relevant
legislation maritime law concerning the geographical area where the
joint operation takes place.
(j) modalities
of cooperation with third countries, if relevant.
2. Any amendments to
or adaptations of the operational plan shall require the agreement of the
Executive Director and the host Member State. A copy of the amended or adapted operational
plan shall immediately be sent by the Agency to the participating Member
States.
3. The Agency shall,
as part of its coordinating tasks, ensure the operational implementation of all
the organisational aspects, including the presence of a staff member of the
Agency, of joint operations and pilot projects referred to in this Article.
Article
3b
Composition and deployment of Frontex Joint Support Teams
1. On
a proposal by the Executive Director, the Management Board shall decide by an
absolute majority of its members with a right to vote on the profiles and the
overall number of border guards to be made available for the Frontex Joint
Support Teams. The same procedure shall apply with regard to any subsequent
changes in the profiles and the overall numbers. Member States shall contribute
to the Frontex Joint Support Teams via a national pool on the basis of the
various defined profiles by nominating border guards corresponding to the
required profiles.
2.
3. The
contribution by Member States as regards their border guards to specific
operations for the coming year is planned on the basis of annual bilateral
negotiations and agreements between the Agency and Member States. In
accordance with these agreements, Member States shall make the border
guards available for deployment at the request of the Agency, unless they are
faced with an exceptional situation substantially affecting the discharge of
national tasks. Such a request shall be made at least thirty days before the
intended deployment. The autonomy of the home Member State in relation to the
selection of staff and the duration of their deployment shall remain
unaffected.
3. 2. The Agency shall also contribute
to the Frontex Joint Support Teams with competent border guards
seconded by the Member States as national experts pursuant to Article 17(5). To
that effect Member States shall may contribute by seconding
border guards to the Agency as national experts. The maximum duration of such
secondments shall not exceed six months in a twelve month period. They shall,
for the purpose of this Regulation, be considered as guest officers and have
the tasks and powers referred to in Article 10. The Member State having
seconded the border guards in question shall be considered as "home Member
State" as defined in Article 1a(3) for the purpose of applying Articles
3c, 10, and 10b. Other staff employed by the Agency on a temporary basis who
are not qualified to perform border control functions shall only be deployed
during joint operations and pilot projects for coordination tasks.
4. Members
of the Frontex Joint Support Teams shall, in the performance of their tasks and
in the exercise of their powers, fully respect fundamental rights and human dignity.
Any measures taken in the performance of their tasks and in the exercise of
their powers shall be proportionate to the objectives pursued by such measures.
While performing their tasks and exercising their powers, members of the teams
shall not discriminate against persons on grounds of sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation.
5. In
accordance with Article 8g the Agency will nominate a coordinating officer for
each joint operation or pilot project where Frontex Joint Support Team members
will be deployed.
6. The
Agency shall meet the costs incurred by the Member States in making their
border guards available pursuant to paragraph 1 for the Frontex Joint Support
Teams in accordance with Article 8h.
Article 3c
Instructions to the Frontex Joint Support Teams
1. During
deployment of Frontex Joint Support Teams, instructions to the teams shall be
issued by the host Member State in accordance with the operational plan
referred to in Article 3a (1).
2. The
Agency, via its coordinating officer as referred to in Article 3b (5), may
communicate its views on those instructions to the host Member State. If it
does so, the host Member State shall take those views into consideration.
3. In
accordance with Article 8g the host Member State shall give the coordinating
officer all necessary assistance, including full access to the Frontex Joint
Support Teams at all times throughout the deployment.
4. Members
of the Frontex Joint Support Teams shall, while performing their tasks and exercising
their powers, remain subject to the disciplinary measures of their home Member
State."
(6) Article
4 is replaced by the following:
"Article
4
Risk analysis
The Agency shall develop and apply a common integrated risk analysis
model.
It shall prepare both general and tailored risk analyses to be
submitted to the Council and the Commission. For these purposes Member States
shall provide the Agency with all necessary information regarding the situation
and possible threats at the external borders.
The Agency shall regularly carry out studies on the preparedness
regularly evaluate the capacity of the Member States to face upcoming
challenges, including present and future threats and pressures at certain
sectors of the external borders of the European Union. These studies are
complementing and supporting elements to the Schengen evaluation mechanism.
Therefore the Agency shall evaluate the national structures, the equipment
and the resources of the Member States regarding border control. The
results of these studies evaluations shall be presented at least
once per year to the Management Board of the Agency.
The Agency shall incorporate the results of a common integrated risk
analysis model in its development of the common core curriculum for border
guards' training referred to in Article 5."
(7) In
Article 5 the first paragraph is replaced by the following:
"The Agency shall establish and further develop common core
curricula for border guards' training and provide training at European level
for instructors of the national border guards of Member States, including with
regard to fundamental rights and access to international protection.
Member States shall integrate the common core curricula in the
training of their national border guards."
(8) Articles
6 and 7 are replaced by the following:
"Article
6
Monitor and contribute to research
The Agency shall monitor and contribute to the developments in
research relevant for the control and surveillance of the external borders and
disseminate this information to the Commission and the Member States.
Article
7
Technical equipment
1. The
Agency may acquire or lease technical equipment for external border control to
be deployed during joint operations, pilot projects, Rapid Border Intervention
Teams, return
operations or technical assistance projects in accordance with the financial
rules applicable to the Agency. Any acquisition of equipment entailing
significant costs to the Agency shall be preceded by a thorough needs and
cost/benefit analysis. Any such expenditure shall be provided for in the
Agency’s budget as adopted by the Management Board in accordance with article
29, 9. In case the Agency acquires or leases important technical equipment
such as open sea and coastal patrol vessels or vehicles, to be used in joint
operations, the following provisions shall apply:
–
in case of acquisition, the Agency
agrees formally with one Member State that the latter will provide for the
registration of the equipment;
–
in case of leasing, the equipment must
be registered in a Member State.
The Agency
shall draw up a model agreement regulating the terms of use of the equipment.
The Member
State of registration or the supplier of technical equipment shall provide the
necessary experts and technical crew to operate the technical equipment in a
legally sound and safe manner.
2. The
Agency shall set up and keep centralised records of equipment in a technical
equipment pool composed of equipment owned by Member States or by the Agency
for external border control purposes. The technical equipment pool shall
contain a minimum number per type of technical equipment defined in accordance
with paragraph 5 of this article. The equipment listed in the technical
equipment pool shall be deployed during the activities referred to in Articles 3,
8a and 9.
3. Member
States shall contribute to the technical equipment pool referred to in
paragraph 2. The contribution by Member States to the pool and deployment of
the technical equipment for specific operations is planned on the basis of
annual bilateral negotiations and agreement between the Agency and Member
States.
To the extent that it forms part of the minimum number of equipment
for a given year, Member States shall make their technical equipment available
within 30 45 days for deployment at the request of the Agency,
unless they are faced with an exceptional situation substantially affecting the
discharge of national tasks. Their contributions to the technical equipment
pool shall be reviewed annually.
4. The
Agency shall manage the records of the technical equipment pool as follows:
(a)
classification by type of equipment
and by type of operation;
(b)
classification by owner (Member State,
Agency, others);
(c)
overall numbers of required equipment;
(d)
crew requirements if applicable;
(e)
other information such registration
details, transportation and maintenance requirements, national applicable
export regimes, technical instructions, or other relevant information to handle
the equipment correctly.
5. The
Agency shall finance the deployment of the equipment which forms part of the
minimum number of equipment provided by a given Member State for a given year.
The deployment of equipment which does not form part of the minimum number of
equipment shall be co-financed by the Agency up to a maximum of 60% of the eligible
expenses.
The rules
including the required overall minimum numbers per type of equipment, the
conditions for deployment and reimbursement of costs shall be decided in
accordance with Article 24 on a yearly basis by the Management Board on a
proposal by the Executive Director. For budgetary purposes this decision should
be taken by the Management Board by 31 March.
The minimum
number of equipment shall be proposed by the Agency in accordance with its
needs, notably be able to carry out joint operations, pilot projects and return
operations, in accordance with the work programme of the Agency for the year in
question.
If the
minimum number of equipment proves to be insufficient to carry out the
operational plan agreed for joint operations, pilot projects, Rapid Border
Intervention Teams or return operations, it shall be revised by the Agency.
6. The
Agency shall report on the composition and the deployment of equipment, which
is part of the technical equipment pool, to the Management Board on a monthly basis.
In case the minimum number of equipment referred to in paragraph 5 is not
reached, the Executive Director shall inform the Management Board without
delay. The Management Board shall take a decision on the prioritisation of the
deployment of the technical equipment urgently and take the appropriate steps
to remedy the identified shortcomings. It shall inform the Commission of the
identified shortcomings and the steps taken. The Commission may subsequently
inform the European Parliament and the Council, together with its own
assessment."
(9) Article
8 is deleted.
(10) In
Article 8e paragraph 1 is amended as follows:
(a) points
(f) and (g) are replaced by the following:
"(f) command and control
provisions, including the names and ranks of the host Member State's border
guards responsible for cooperating with the Rapid Border Interventions teams,
in particular those of the border guards who are in command of the teams during
the period of deployment, and the place of the teams in the chain of command;
(g) the technical equipment
to be deployed together with the teams, including specific requirements such as
conditions for use, requested crew, transport and other logistics, and
financial provisions."
(b) the
following points (h), and (i) and (j) shall be added:
"(h) a reporting and evaluation scheme
containing detailed provisions on incident reporting of unforeseen
events, benchmarks for the evaluation report and final date of submission
of the final evaluation report in accordance with Article 3(4).
(i) regarding sea
operations, specific requirements regarding the applicable jurisdiction and
maritime law provisions concerning information on the application of the
relevant legislation in the geographical area where the joint operation
takes place.
(j) modalities
of cooperation with third countries, if relevant.”
(11) In
Article 8h paragraph 1, first subparagraph, is
replaced by the following:
"1. The Agency shall fully
meet the following costs incurred by Member States in making available their border
guards for the purposes mentioned in Article 3(2), Article 8a and Article
8c:"
(12) Article
9 is replaced by the following:
"Article
9
Return cooperation
1. Subject
to the return policy of the Union, and in particular Directive 2008/115/EC,
the Agency shall provide the necessary assistance, and upon request of the
participating Member States ensure the coordination for organising joint return
operations of Member States. The Agency may decide to finance or co-finance the
operations and projects referred to in this paragraph, with grants from its
budget in accordance with the financial rules applicable to the Agency. The
Agency may also use Union financial means available in the field of return. The Agency shall
ensure that in its grant agreements with Member States any financial support is
conditional upon the full respect of the Charter of Fundamental Rights.
2. The Agency shall develop a Code
of Conduct for the return of illegally present third-country nationals by air
which shall apply during all joint return operations coordinated by the Agency,
describing common
standardized procedures which should simplify the organisation of joint return flights
operations
and assure return in a humane manner and in full respect for fundamental rights,
in particular
the principles of human
dignity, prohibition of torture and of inhuman or degrading treatment or
punishment, right to liberty and security, the rights to the protection of
personal data and non discrimination.
3. The
Code of Conduct will in particular pay attention to the obligation set out in Article 8(6)
of Directive 2008/115/EC to provide for an effective forced-return monitoring
system. The monitoring of joint return operations should be carried out
independently and should cover the whole joint return operation from the
pre-departure phase until the hand-over of the returnees in the country of
return. Furthermore, observations of the monitor, which shall cover the
compliance with the Code of Conduct and in particular fundamental rights, shall
be made available to the Commission and form part of the internal Final Return
Operation Report. In order to ensure transparency and a coherent evaluation of
the forced-return operations, reports of the monitor shall be included in an
annual reporting mechanism.
4. Member
States shall once a month, if necessary, inform the Agency of their situation
with regard to return and indicate to what extent needs for the
assistance or coordination of the Agency is required. The Agency shall draw up
a rolling operational plan to provide the requesting Member States with the
necessary operational support, including technical equipment referred to in
Article 7(1). The Management Board shall decide in accordance with Article 24
on a proposal of the Executive Director, on the content and modus operandi of
the rolling operational plan.
5. The
Agency shall cooperate with competent authorities of the relevant third
countries referred to in Article 14, identify best practices on the acquisition
of travel documents and the return of illegally present third‑country
nationals."
