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Proposal for a Regulation of the European Parliament and of the
Council establishing rules for the surveillance of the external sea borders
in the context of operational cooperation coordinated by the European Agency
for the Management of Operational Cooperation at the External Borders of the
Member States of the European Union
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COMMISSION
PROPOSAL
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EUROPEAN
PARLIAMENT POSITION (LIBE VOTE 9.12.2013)
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DRAFT
COUNCIL POSITION (as results from the Coreper meeting on 13.12.2013)
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COMMENTS
AND COMPROMISE TEXT
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THE EUROPEAN PARLIAMENT AND THE COUNCIL OF
THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 77(2)(d) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national
Parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:
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THE EUROPEAN
PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 77(2)(d) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national
Parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:
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Identical.
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AM 1
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(1) The
objective of Union policy in the field of the Union external borders is to ensure the efficient monitoring of the
crossing of external borders including through border surveillance. The
purpose of border surveillance is to prevent unauthorised border crossings,
to counter cross-border criminality and to apprehend or take other measures
against those persons who have crossed the border in an irregular manner.
Border surveillance should be effective in preventing and discouraging
persons from circumventing the checks at border crossing points. To this end,
border surveillance is not limited to the detection of attempts at irregular
border crossing but equally extends to steps such as intercepting ships
suspected of trying to gain entry to the Union without submitting to border
checks, as well as arrangements intended to address situations such as search
and rescue that may arise during a border surveillance operation at sea and
arrangements intended to bring such an operation to a successful conclusion.
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(1) The objective of Union policy in the
field of the Union external borders is to
ensure the efficient monitoring of the crossing of external borders including
through border surveillance, in which the
saving of lives and the protection of fundamental rights should be a priority. The purpose of border surveillance is to prevent unauthorised
border crossings, to counter cross-border criminality and to apprehend or
take other measures against those persons who have crossed the border in an
irregular manner. Border surveillance should be effective in preventing and
discouraging persons from circumventing the checks at border crossing points.
To this end, border surveillance is not limited to the detection of attempts
at irregular border crossing but equally extends to steps such as
intercepting ships suspected of trying to gain entry to the Union without
submitting to border checks, as well as arrangements intended to address
situations such as search and rescue that may arise during a border
surveillance operation at sea and arrangements intended to bring such an
operation to a successful conclusion.
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(1) The
objective of Union policy in the field of the Union external borders is to ensure the efficient monitoring of the
crossing of external borders including through border surveillance. The
purpose of border surveillance is to prevent unauthorised border crossings,
to counter cross-border criminality and to apprehend or take other measures
against those persons who have crossed the border in an irregular manner.
Border surveillance should be effective in preventing and discouraging
persons from circumventing the checks at border crossing points. To this end,
border surveillance is not limited to the detection of attempts at irregular
border crossing but equally extends to steps such as intercepting vessels suspected of trying to gain entry to the Union without submitting
to border checks, as well as arrangements intended to address situations such
as search and rescue that may arise during a border surveillance operation at
sea and arrangements intended to bring such an operation to a successful
conclusion.
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PRES draft compromise:
(1) The objective of Union policy in the
field of the Union external borders is to
ensure the efficient monitoring of the crossing of external borders including
through border surveillance, while contributing to ensuring the
protection and saving of lives. The purpose
of border surveillance is to prevent unauthorised border crossings, to
counter cross-border criminality and to apprehend or take other measures
against those persons who have crossed the border in an irregular manner.
Border surveillance should be effective in preventing and discouraging
persons from circumventing the checks at border crossing points. To this end,
border surveillance is not limited to the detection of attempts at irregular
border crossing but equally extends to steps such as intercepting ships
suspected of trying to gain entry to the Union without submitting to border
checks, as well as arrangements intended to address situations such as search
and rescue that may arise during a border surveillance operation at sea and arrangements
intended to bring such an operation to a successful conclusion.
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AM 2
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(1a) Article 80 of the Treaty on the Functioning
of the European Union (TFEU) provides that the policies of the Union set out
in Chapter 2 on border checks, asylum and immigration and their
implementation are to be governed by the principle of solidarity and fair
sharing of responsibility, including its financial implications, between the
Member States, and that, whenever necessary, Union acts under that Chapter
are to contain appropriate measures to give effect to that principle.
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PRES considers that AM 2, 3, 12, 15 and 53 need to be examined
together as part of an overall compromise.
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(1a) The scope of
application of this Regulation is limited to border surveillance operations
carried out by Member States at their sea external borders in the context of
operational cooperation coordinated by the European Agency for the Management
of Operational Cooperation at the External Borders of the Member States of
the European Union (Ôthe AgencyÕ) established by Council Regulation (EC) No
2007/2004 of 26 October 2004. Investigative and punitive measures
are dealt with under national criminal law and in the existing instruments of
mutual legal assistance in the field of judicial cooperation in criminal
matters in the Union.
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PRES suggests to keep the
Council text.
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AM 3
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(1b) The lack of a Union burden sharing system
contributes to the overburdening of the Member States bordering the
Mediterranean Sea.
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PRES considers that AM 2, 3, 12, 15 and 53 need to be examined
together as part of an overall compromise.
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AM 4
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(2) The
European Agency for the Management of Operational Cooperation at the External
Borders of the Member States of the European Union (Ôthe AgencyÕ) established
by Council Regulation (EC) No 2007/2004 of 26 October 2004
is responsible for the coordination of operational cooperation between Member
States in the field of management of the external borders, including as
regards border surveillance. The Agency is also responsible to assist Member
States in circumstances requiring increased technical assistance at the
external borders, taking into account that some situations may involve
humanitarian emergencies and rescue at sea. Specific rules with regard to
border surveillance activities carried out by maritime and aerial units of
one Member State at the sea border of other Member States or on the high seas
in the context of operational cooperation coordinated by the Agency are
necessary to further strengthen such cooperation.
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(2) The European Agency for the Management
of Operational Cooperation at the External Borders of the Member States of
the European Union (Ôthe AgencyÕ) established by Council Regulation (EC) No
2007/2004 of 26 October 200413 is responsible for the coordination
of operational cooperation between Member States in the field of management
of the external borders, including as regards border surveillance. The Agency
is also responsible to assist Member States in circumstances requiring
increased technical assistance at the external borders, taking into account
that some situations [É] involve
humanitarian emergencies and rescue at sea. Specific rules with regard to
border surveillance activities carried out by maritime and aerial units of
one Member State at the sea border of other Member States or on the high seas
in the context of operational cooperation coordinated by the Agency are
necessary to further strengthen such cooperation.
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(2) The [É] Agency [É] is responsible
for the coordination of operational cooperation between Member States in the
field of management of the external borders, including as regards border
surveillance. The Agency is also responsible to assist Member States in
circumstances requiring increased technical assistance at the external
borders, taking into account that some situations may involve humanitarian
emergencies and rescue at sea. Specific rules with regard to border
surveillance activities carried out by maritime, land and aerial units of one Member State at the sea border of other
Member States or on the high seas in the context of operational cooperation
coordinated by the Agency are necessary to further strengthen such
cooperation.
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Agreement on:
(2) The [É] Agency [É] is responsible
for the coordination of operational cooperation between Member States in the
field of management of the external borders, including as regards border
surveillance. The Agency is also responsible to assist Member States in
circumstances requiring increased technical assistance at the external borders,
taking into account that some situations may involve humanitarian emergencies
and rescue at sea. Specific rules with regard to border surveillance
activities carried out by maritime, land and aerial units of one Member State at the sea border of other
Member States or on the high seas in the context of operational cooperation
coordinated by the Agency are necessary to further strengthen such
cooperation.
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AM 5
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(2a) Cooperation with neighbouring third
countries is crucial to prevent unauthorised border crossings, to counter
cross-border criminality and to make search and rescue operations more
efficient. In accordance with Regulation (EC) No 2007/2004 and insofar as the
full respect for the fundamental rights of migrants is ensured, the Agency may
cooperate with the competent authorities of third countries, in particular as
regards risk analysis and training, and should facilitate operational
cooperation between Member States and third countries.
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PRES draft compromise:
(2a) Cooperation with neighbouring third
countries is crucial to prevent unauthorised border crossings, to counter
cross-border criminality and to avoid loss of life at sea. In
accordance with Regulation (EC) No 2007/2004 and insofar as the full respect
for the fundamental rights of migrants is ensured, the Agency may cooperate
with the competent authorities of third countries, in particular as regards
risk analysis and training, and should facilitate operational cooperation
between Member States and third countries.
In addition PRES suggests to include here the compromise text
on AM 11:
The Member States and the Agency should comply with norms
and standards at least equivalent to those set by Union legislation also when
the cooperation with third countries takes place on the territory or the
territorial sea of those countries.
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AM 6
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(3) The
establishment of the European Border Surveillance System (EUROSUR)
established by Regulation (EU) No [É/É] of the European Parliament and of the
Council of [É] should strengthen the
information exchange and operational cooperation between Member States and
with the Agency. This ensures that the situational awareness and reaction
capability of Member States improves considerably, also with the support of
the Agency, for the purposes of detecting and preventing irregular migration,
for combating cross-border crime and for contributing to protect and save the
lives of migrants at their external borders. When coordinating border
surveillance operations, the Agency should provide Member States with information
and analysis concerning these operations.
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(3) The establishment of the European
Border Surveillance System (EUROSUR) established by Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October
2013 should
strengthen the information exchange and operational cooperation between
Member States and with the Agency. This ensures that the situational
awareness and reaction capability of Member States improves considerably,
also with the support of the Agency, for the purposes of detecting and
preventing irregular migration, for combating cross-border crime,
including human trafficking, and for
contributing to protect and save the lives of migrants at their external
borders. When coordinating border surveillance operations, the Agency should
provide Member States with information and analysis concerning these
operations. Member States and the Agency should introduce in EUROSUR
all relevant information collected during these operations.
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(3) The
[É] European Border Surveillance System
(EUROSUR) established by Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October
2013 should strengthen the information exchange and operational
cooperation between Member States and with the Agency. This ensures that the
situational awareness and reaction capability of Member States improves
considerably, also with the support of the Agency, for the purposes of
detecting,[É] preventing and
combating illegal immigration [É] and cross-border crime and [É]
contributing to ensuring the protection and saving the lives of migrants at their external borders. When coordinating
border surveillance operations, the Agency should provide Member States with
information and analysis concerning these operations.
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PRES compromise text:
(3) The European Border Surveillance
System (EUROSUR) established by Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October
2013 should
strengthen the information exchange and operational cooperation between
Member States and with the Agency. This ensures that the situational
awareness and reaction capability of Member States improves considerably,
also with the support of the Agency, for the purposes of detecting, preventing and combating illegal immigration and cross-border
crime and contributing to ensuring the protection and saving the lives of
migrants at their external borders. When coordinating border surveillance
operations, the Agency should provide Member States with information and
analysis concerning these operations in accordance with that
Regulation.
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(3a) This Regulation replaces Council Decision
2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as
regards the surveillance of the sea external borders in the context of
operational cooperation coordinated by the Agency which was annulled by the
Court of Justice of the European Union ('the Court') by its judgment of 5
September 2012 in case C-355/10.
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Agreement on:
(3a) This Regulation replaces Council Decision
2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as
regards the surveillance of the sea external borders in the context of
operational cooperation coordinated by the Agency which was annulled by the
Court of Justice of the European Union ('the Court') by its judgment of 5
September 2012 in case C-355/10.
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(3b) In
that judgment, the Court maintained the effects of Decision 2010/252/EU until
the entry into force of new rules. Therefore, as of the day of entry into
force of this Regulation, the said Decision should cease to produce effect.
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Agreement on:
(3b) In that judgment, the Court maintained the
effects of Decision 2010/252/EU until the entry into force of new rules.
Therefore, as of the day of entry into force of this Regulation, the said
Decision should cease to produce effect.
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AM 7
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(4) During
border surveillance operations, Member States and the Agency should respect
their obligations 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 Convention relating to the Status of
Refugees, the European Convention for the Protection of Human Rights and
Fundamental Freedoms, the International Covenant on Civil and Political
Rights, the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and other relevant international
instruments.
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(4) During border surveillance operations,
Member States and the Agency should respect their obligations,
including the principle of non-refoulement,
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 Convention relating to the Status of
Refugees, the European Convention for the Protection of Human Rights and
Fundamental Freedoms, the International Covenant on Civil and Political
Rights, the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, the UN Convention on the
Right of the Child and other relevant
international instruments.
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(4) During border surveillance operations at
sea, Member States [É] should respect their respective obligations under International Law, in particular 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 Convention relating to the Status of
Refugees, the European Convention for the Protection of Human Rights and
Fundamental Freedoms, the International Covenant on Civil and Political
Rights, the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and other relevant international
instruments.
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PRES considers that the reference to the principle of
non-refoulement is already mentioned in Recital (5a) and Article 4.
PRES draft compromise:
(4) During border surveillance operations at
sea, Member States should respect their respective
obligations under International Law, in
particular 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 Convention
relating to the Status of Refugees, the European Convention for the
Protection of Human Rights and Fundamental Freedoms, the International
Covenant on Civil and Political Rights, the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
the UN Convention on the Right of the Child
and other relevant international instruments.
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(4a) When coordinating border surveillance
operations at sea, the Agency should fulfil its tasks in full compliance with
the relevant Union law, including the Charter of Fundamental Rights of the
European Union and relevant international law, in particular as referred to
in Recital (4).
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PRES suggests to keep the Council
text.
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AM 8
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(5) In
accordance with Regulation (EC) No 562/2006 of the European Parliament and of
the Council of 15 March 2006 establishing a Community Code on the rules
governing the movement of persons across borders (Schengen Borders Code)
and general principles of Union law, any measure taken in the course of a
surveillance operation should be proportionate to the objectives pursued,
non-discriminatory and it should fully respect human dignity, fundamental
rights and the rights of refugees and asylum seekers, including the principle
of non-refoulement. Member States and the Agency are bound by the
provisions of the asylum acquis, and in particular of Council Directive
2005/85/EC of 1 December 2005 on minimum standards on procedures in Member
States for granting and withdrawing refugee status with regard to applications for asylum
made in the territory, including at the border or in the transit zones of
Member States.
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(5) In accordance with Regulation (EC) No
562/2006 of the European Parliament and of the Council of 15 March 2006
establishing a Community Code on the rules governing the movement of persons
across borders (Schengen Borders Code) and general principles of Union law,
any measure taken in the course of a surveillance operation should be
proportionate to the objectives pursued, non-discriminatory and it should
fully respect human dignity, fundamental rights, [...] the rights of refugees and asylum seekers and the principle of non-refoulement. Member States and the Agency
are bound by the provisions of the asylum acquis, and in particular of
Directive 2013/32/EU of the European Parliament and of the Council with regard to applications for international protection made in the territory, including at the border, in the
territorial waters or in the transit zones of
Member States.
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(5) In accordance with Regulation (EC) No
562/2006 of the European Parliament and of the Council of 15 March 2006
establishing a Community Code on the rules governing the movement of persons
across borders (Schengen Borders Code) and general principles
of Union law, any measure taken in the course of a surveillance operation
should be proportionate to the objectives pursued, non-discriminatory and it
should fully respect human dignity, fundamental rights and the rights of
refugees and asylum seekers, including the principle of non-refoulement. Member States and the Agency are bound by the provisions of the
asylum acquis, and in particular of Directive
2013/32/EU of the European Parliament and of the Council of 26 June 2013 on
common procedures for granting and withdrawing international protection
(recast) with regard to applications for asylum made in the territory,
including at the border or in the transit zones of Member States.
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Agreement on (subject to confirmation by the Council):
(5) In accordance with Regulation (EC) No
562/2006 of the European Parliament and of the Council of 15 March 2006
establishing a Community Code on the rules governing the movement of persons
across borders (Schengen Borders Code) and general
principles of Union law, any measure taken in the course of a surveillance
operation should be proportionate to the objectives pursued,
non-discriminatory and it should fully respect human dignity, fundamental
rights and the rights of refugees and asylum seekers, including the principle
of non-refoulement. Member States and the
Agency are bound by the provisions of the asylum acquis, and in particular of Directive 2013/32/EU of the European
Parliament and of the Council with
regard to applications for international protection made in the territory, including at the border, in the
territorial waters or in the transit zones of
Member States.
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AM 9
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(5a) This Regulation should be applied in full
compliance with the principle of non-refoulement, according to which no one
may be expelled, removed or extradited to, or forced to enter, a country
where there is a real risk that he or she would be subjected to the death
penalty, torture or other inhuman or degrading treatment or punishment or any
serious violations of their human rights, or where his or her life or freedom
would be threatened on account of his or her race, religion, nationality,
sexual orientation, membership of a particular social group or political
opinion; or from which there is a serious risk of such an expulsion, removal
or extradition to another country.
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PRES draft compromise:
(5a) This Regulation should be applied in full
compliance with the principle of non-refoulement as defined in the Charter of
Fundamental Rights of the European Union and as interpreted by the case law
of the Court and of the European Court of Human Rights.
In accordance with that principle, no person shall be
disembarked in, forced to enter, conducted to or otherwise handed over to the
authorities of a country where there is a serious risk that he or she would be
subjected to the death penalty, torture, persecution or other inhuman or
degrading treatment or punishment, or where his or her life or freedom would
be threatened on account of his or her race, religion, nationality, sexual
orientation, membership of a particular social group or political opinion; or
from which there is a serious risk of such an expulsion, removal or
extradition to another country in contravention of the principle of
non-refoulement.
EP could accept this compromise in combination with a strong
Article 4.
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AM 10
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(5b) The possible existence of an arrangement
between a Member State and a third country cannot absolve Member States from
their international obligations under international and Union law under the
principle of non-refoulement.
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PRES suggests not to accept AM 10, because it considers this
recital to be covered by Recital 6.
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AM 11
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(6) The
possible existence of an arrangement between a Member State and a third
country cannot absolve Member States from those obligations whenever they are
aware or ought to be aware that systemic deficiencies in the asylum procedure
and in the reception conditions of asylum seekers in that third country
amount to substantial grounds for believing that the asylum seeker would face
a real risk of being subjected to inhuman or degrading treatment or where
they are aware or ought to be aware that this third country is engaged in
practices in contravention of the principle of
non-refoulement.
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(6) The possible existence of an
arrangement between a Member State and a third country cannot absolve Member
States from their obligations
under international and Union law, in particular as regards compliance with
the principle of non-refoulement, whenever
they are aware or ought to be aware that [...] deficiencies in the asylum procedure and in the reception
conditions of asylum seekers in that third country do not make it
possible to conduct an individual, fair and effective assessment or where they are aware or ought to be aware that this third
country is engaged in practices in contravention of the principle of
non-refoulement. Units deployed by Member States or the Agency should
also be guided by the provisions of Union law and international law in
instances where operations take place in the territorial waters of third
countries and those countries apply other rules.
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(6) The
possible existence of an arrangement between a Member State and a third
country cannot absolve Member States from those obligations whenever they are
aware or ought to be aware that systemic deficiencies in the asylum procedure
and in the reception conditions of asylum seekers in that third country
amount to substantial grounds for believing that the asylum seeker would face
a real risk of being subjected to inhuman or degrading treatment or where
they are aware or ought to be aware that this third country is engaged in
practices in contravention of the principle of non-refoulement.
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PRES draft compromise:
(6) The possible existence of an
arrangement between a Member State and a third country cannot absolve Member
States from their obligations
under international and Union law, in particular as regards compliance with
the principle of non-refoulement, whenever
they are aware or ought to be aware that systemic deficiencies in the asylum
procedure and in the reception conditions of asylum seekers in that third
country amount to substantial grounds for believing that the asylum seeker
would face a real risk of being subjected to inhuman or degrading treatment
or where they are aware or ought to be aware that this third country is
engaged in practices in contravention of the principle of non-refoulement.
As regards the last sentence, see PRES draft compromise for AM
5.
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AM 12
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(6a) In the spirit of Article 80 of the TFEU,
application of Regulation (EU) No 604/2013 of the European Parliament and of
the Council should not prevent Member States
from applying, on a voluntary basis, a system of relocation of migrants and
asylum seekers.
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PRES considers that AM 2, 3, 12, 15 and 53 need to be examined
together as part of an overall compromise.
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AM 13
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(7) During
a border surveillance operation at sea, a situation may occur where it will
be necessary to render assistance to persons found in distress. In accordance
with international law, every State must require the master of a ship flying
its flag, in so far as he can do so without serious danger to the ship, the
crew or the passengers, to render assistance to any person found at sea in
danger of being lost and to proceed with all possible speed to the rescue of
persons in distress. Such assistance should be provided regardless of the
nationality or status of the persons to be assisted or of the circumstances
in which they are found.
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(7) During a border surveillance operation
at sea, a situation may occur where it will be necessary to render assistance
to persons found in distress. In accordance with international law, every
State must require the master of a ship flying its flag, in so far as he can
do so without serious danger to the ship, the crew or the passengers, to
render assistance proactively and without
delay to any person found at sea in danger of
being lost and to proceed with all possible speed to the rescue of persons in
distress. Such assistance should be provided regardless of the nationality or
status of the persons to be assisted or of the circumstances in which they
are found. Accordingly, no measures, including criminal procedures and
sanctions, should be taken deterring ship masters from rendering assistance
to persons in distress at sea.
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(7) During a border surveillance operation
at sea, a situation may occur where it will be necessary to render assistance
to persons found in distress. In accordance with international law, every
State must require the master of a vessel flying its flag, in so far as he can do so without serious danger
to the vessel, the crew or the
passengers, to render assistance to any person found at sea in danger of
being lost and to proceed with all possible speed to the rescue of persons in
distress. Such assistance should be provided regardless of the nationality or
status of the persons to be assisted or of the circumstances in which they
are found.
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PRES draft compromise:
(7) During a border surveillance operation
at sea, a situation may occur where it will be necessary to render assistance
to persons found in distress. In accordance with international law, every
State must require the master of a vessel flying its flag, in so far as he can do so without serious danger
to the vessel, the crew or the
passengers, to render assistance without delay to any person found at sea in danger of being lost and to proceed
with all possible speed to the rescue of persons in distress. Such assistance
should be provided regardless of the nationality or status of the persons to
be assisted or of the circumstances in which they are found.
The shipmaster and crew should not face criminal sanctions
for the sole reason of having rescued persons in distress at sea and brought
them to a place of safety.
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(8) That obligation should be carried out by
Member States in accordance with the applicable provisions of international
instruments governing search and rescue situations and in accordance with the
requirements concerning the protection of fundamental rights. This Regulation
should not affect the responsibilities of search and rescue authorities,
including for ensuring that coordination and cooperation is carried out in
such a way that the persons rescued can be delivered to a port or a place of
safety.
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(8) That
obligation should be carried out by Member States in accordance with the
applicable provisions of international instruments governing search and
rescue situations and in accordance with the requirements concerning the
protection of fundamental rights. This Regulation should not affect the
responsibilities of search and rescue authorities, including for ensuring
that coordination and cooperation is carried out in such a way that the
persons rescued can be delivered to [É] a place of safety.
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Agreement on:
(8) That
obligation should be carried out by Member States in accordance with the
applicable provisions of international instruments governing search and
rescue situations and in accordance with the requirements concerning the
protection of fundamental rights. This Regulation should not affect the
responsibilities of search and rescue authorities, including for ensuring
that coordination and cooperation is carried out in such a way that the
persons rescued can be delivered to [É] a place of safety.
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AM 14
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(8a) Clear rules should ensure that, when
persons in distress at sea are detected, the responsible Rescue Coordination
Centre is easily and quickly identified. In case of doubt, e.g. when a boat
is floating between different search and rescue regions, the International
Coordination Centre should appoint the responsible Rescue Coordination
Centre.
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PRES suggests not to accept AM 14.
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(8a) The conduct of sea operations in the search
and rescue regions of a third country should be subject to establishing
communication channels with the search and rescue authorities of that third
country when planning a sea operation thereby ensuring that those authorities
would be able to respond to search and rescue cases developing within their
search and rescue region.
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PRES draft compromise:
(8a) When the operational area of a sea
operation includes the search and rescue region of a third country, the
establishment of communication channels with the search and rescue
authorities of that third country should be sought when planning a sea
operation, thereby ensuring that those authorities would be able to respond
to search and rescue cases developing within their search and rescue region.
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AM 15
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(8b) When disembarking intercepted or rescued
persons in a Member State, the Agency and its Member States should fully
respect the principle of solidarity and fair responsibility sharing in
accordance with Article 80 of the TFEU.
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|
PRES considers that AM 2, 3, 12, 15 and 53 need to be examined
together as part of an overall compromise.
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AM 16
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(9) Pursuant
to Regulation (EC) No 2007/2004, border surveillance operations
coordinated by the Agency are conducted in accordance with an operational
plan. Accordingly, as regards sea operations, the operational plan should
include specific information on the application of the relevant jurisdiction
and legislation in the geographical area where the joint operation or pilot
project takes place, including references to international and Union law,
regarding interception, rescue at sea and disembarkation. In turn, this
Regulation governs the issues of interception, rescue at sea and
disembarkation in the context of sea border surveillance operations
coordinated by the Agency.
|
(9) Pursuant to Regulation (EC)
No 2007/2004, border surveillance operations coordinated by the Agency
are conducted in accordance with an operational plan. Accordingly, as regards
sea operations, the operational plan should include specific information on
the application of the relevant jurisdiction and legislation in the
geographical area where the joint operation, pilot project or rapid intervention takes place, including references to international and Union law,
regarding interception, rescue at sea and disembarkation. It should also include rules and procedures
which ensure that persons with international protection needs, victims of
human trafficking, unaccompanied minors and other vulnerable persons are
identified during the operation and provided with appropriate assistance,
including access to international protection.
In turn, this Regulation governs the issues of interception, rescue at sea
and disembarkation in the context of sea border surveillance operations
coordinated by the Agency in accordance with international law and
fundamental rights.
|
(9) Pursuant to Regulation (EC)
No 2007/2004, border surveillance operations coordinated by the Agency
are conducted in accordance with an operational plan. Accordingly, as regards
sea operations, the operational plan should include specific information on
the application of the relevant jurisdiction and legislation in the
geographical area where the joint operation, [É] pilot project or
rapid intervention takes place, including
references to international and Union law, regarding interception, rescue at
sea and disembarkation.[É] The operational plan should be established
in accordance with the provisions of this
Regulation governing [É] interception, rescue at sea and disembarkation in the context of
sea border surveillance operations coordinated by the Agency and having
regard to the particular circumstances of the operation concerned.
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PRES draft compromise:
(9) Pursuant to Regulation (EC)
No 2007/2004, border surveillance operations coordinated by the Agency
are conducted in accordance with an operational plan. Accordingly, as regards
sea operations, the operational plan should include specific information on
the application of the relevant jurisdiction and legislation in the
geographical area where the joint operation, pilot project or rapid intervention takes place, including references to international and Union law,
regarding interception, rescue at sea and disembarkation. The
operational plan should be established in accordance with the provisions of this Regulation governing
interception, rescue at sea and disembarkation in the context of sea border
surveillance operations coordinated by the Agency and having regard to
the particular circumstances of the operation concerned.
The operational plan should include procedures ensuring that
persons with international protection needs, victims of human trafficking,
unaccompanied minors and other vulnerable persons are identified and provided
with appropriate assistance, including access to international protection.
|
|
(10) The
practice under Regulation (EC) No 2007/2004 is that for each sea
operation, a coordination structure is established within the host Member
State, composed of officers from the host Member State, guest officers and
representatives of the Agency, including the Coordinating Officer of the
Agency. This coordination structure, usually called International
Coordination Centre, should be used as a channel for communication between
the officers involved in the sea operation and the authorities concerned
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|
(10) The practice under Regulation (EC)
No 2007/2004 is that for each sea operation, a coordination structure is
established within the host Member State, composed of officers from the host
Member State, guest officers and representatives of the Agency, including the
Coordinating Officer of the Agency. This coordination structure, usually
called International Coordination Centre, should be used as a channel for
communication between the officers involved in the sea operation and the
authorities concerned.
|
Identical.
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AM 17
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(11) This
Regulation respects the fundamental rights and observes the principles
recognised by the Charter of Fundamental Rights of the European Union,
notably the right to life, human dignity, prohibition of torture and of
inhuman or degrading treatment or punishment, right to liberty and security, non-refoulement, non-discrimination, the right to an effective remedy, the right
to asylum and the rights of the child.
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(11) This Regulation respects the fundamental rights
and observes the principles recognised by Articles 2 and 6 of the
Treaty on European Union (TEU) and by the
Charter of Fundamental Rights of the European Union, in particular
respect for human dignity, the right to life,
the prohibition of torture and of
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 to asylum and to protection against removal and expulsion, non-refoulement, non-discrimination, the right to an effective
remedy [...] and the rights of the
child. This Regulation should be applied by Member States and the
Agency in accordance with those rights and principles. This Regulation also
respects the human rights and fundamental freedoms laid down by the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
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(11) This Regulation respects the fundamental rights
and observes the principles recognised by the Charter of Fundamental Rights
of the European Union, notably the right to life, human dignity, prohibition
of torture, of persecution and of
inhuman or degrading treatment or punishment, right to liberty and security, non-refoulement, non-discrimination, the right to an effective remedy, the right
to asylum and the rights of the child.
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PRES draft compromise to accept the EP text, except for the
last sentence:
(11) This Regulation respects the fundamental rights
and observes the principles recognised by Articles 2 and 6 of the
Treaty on European Union and by the Charter
of Fundamental Rights of the European Union, in particular respect for
human dignity, the right to life, the prohibition of torture and of 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 to asylum and to protection against removal and
expulsion, non-refoulement,
non-discrimination, the right to an effective remedy and the rights of the
child. This Regulation should be applied by Member States and the
Agency in accordance with those rights and principles.
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|
(12) Since the objectives of
the action to be taken, namely the adoption of specific rules for the
surveillance of the sea borders by border guards operating under the
coordination of the Agency, cannot be sufficiently achieved by the Member States
due to the differences in their laws and practices, and can therefore, by
reason of the multinational character of the operations, be better achieved
at the level of the Union, the Union may adopt measures, in accordance with
the principle of subsidiarity as set out in Article 5 of the Treaty. 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
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|
(12) Since the objectives
of the action to be taken, namely the adoption of specific rules for the
surveillance of the sea borders by border guards operating under the
coordination of the Agency, cannot be sufficiently achieved by the Member
States due to the differences in their laws and practices, and can therefore,
by reason of the multinational character of the operations, be better
achieved at the level of the Union, the Union may adopt measures, in
accordance with the principle of subsidiarity as set out in Article 5 of the
Treaty. 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.
|
Identical.
|
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AM 18
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(12a) This Regulation does not rule out the possibility of
determining the details of joint operations at sea in specific operational
plans, taking into account the specific requirements and characteristics of
the context in which the Member States are operating.
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PRES suggests not to accept AM 18, because it is covered by
Recital 9.
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(13) In accordance with Articles 1 and 2 of Protocol
No 22 on the position of Denmark, annexed to the Treaty on European
Union and to the Treaty on the Functioning of the European Union, 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, under Title V of Part Three of the Treaty on the
Functioning of the European Union, Denmark shall, in accordance with Article
4 of that Protocol, decide within a period of six months after the date of
adoption of this Regulation whether it will implement it in its national law
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|
(13) In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the Treaty on European
Union and to the Treaty on the Functioning of the European Union, 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, [É] Denmark shall, in
accordance with Article 4 of that Protocol, decide within a period of six
months after the [É] Council has
decided on this Regulation whether it will
implement it in its national law.
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Agreement on:
(13) In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the Treaty on European
Union and to the Treaty on the Functioning of the European Union, 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, [É] Denmark shall, in
accordance with Article 4 of that Protocol, decide within a period of six
months after the [É] Council has
decided on this Regulation whether it will
implement it in its national law.
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(14) 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 association of those two States with the
implementation, application and development of the Schengen acquis which fall within the area referred to in Article
1, point A, of Council Decision 1999/437/EC on certain arrangements for the
application of that Agreement.
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|
(14) 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 which
fall within the area referred to in Article 1, point A, of Council Decision
1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement.
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Agreement on:
(14) 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 which
fall within the area referred to in Article 1, point A, of Council Decision
1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement.
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|
(15) 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 concerning
the association of the Swiss Confederation with the implementation,
application and development of the Schengen acquis, 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 of 28 January 2008 on the
conclusion of that Agreement on behalf of the European Community.
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|
(15) 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, 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 [É]
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Agreement on:
(15) 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, 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 [É]
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|
(16) As regards
Liechtenstein, this Regulation constitutes a development of the provisions of
the Schengen acquis within the meaning of the
Protocol signed 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
ConfederationÕs association with the implementation, application and
development of the Schengen acquis, 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 of 7 March
2011 on the conclusion of that protocol on behalf of the European Union.
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|
(16) As regards Liechtenstein, this Regulation constitutes
a development of the provisions of the Schengen acquis within the meaning of the Protocol [É] 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
ConfederationÕs association with the implementation, application and
development of the Schengen acquis, 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 [É]
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Agreement on:
(16) As regards Liechtenstein, this Regulation constitutes
a development of the provisions of the Schengen acquis within the meaning of the Protocol [É] 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
ConfederationÕs association with the implementation, application and
development of the Schengen acquis, 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 [É]
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|
(17) This
Regulation constitutes a development of the provisions of the Schengen acquis in which
the United Kingdom does not take part, in accordance with Council Decision
2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of
Great Britain and Northern Ireland to take part in some of the provisions of
the Schengen acquis. The United Kingdom is therefore not
taking part in its adoption and is not bound by it or subject to its
application.
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|
(17) This Regulation constitutes a development of the
provisions of the Schengen acquis in which the
United Kingdom does not take part, in accordance with Council Decision
2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of
Great Britain and Northern Ireland to take part in some of the provisions of
the Schengen acquis. The
United Kingdom is therefore not taking part in its adoption and is not bound
by it or subject to its application.
|
Identical.
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|
(18) This
Regulation constitutes a development of the provisions of the Schengen acquis in which
Ireland does not take part, in accordance with Council Decision 2002/192/EC
of 28 February 2002 concerning the request of Ireland to take part in some of
the provisions of the Schengen acquis. Ireland is therefore not taking part in
its adoption and is not bound by it or subject to its application.
|
|
(18) This Regulation constitutes a development of the
provisions of the Schengen acquis in which
Ireland does not take part, in accordance with Council Decision 2002/192/EC
of 28 February 2002 concerning the request of Ireland to take part in some of
the provisions of the Schengen acquis.
Ireland is therefore not taking part in its adoption and is not bound by it
or subject to its application.
|
Identical.
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HAVE ADOPTED THIS
REGULATION:
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HAVE
ADOPTED THIS REGULATION:
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CHAPTER I
GENERAL PROVISIONS
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CHAPTER I
GENERAL PROVISIONS
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Article 1
Scope
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Article 1
Scope
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This Regulation
shall apply to border surveillance operations carried out by Member States at
their sea external borders in the context of operational cooperation
coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the
Member States of the European Union
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|
This Regulation shall apply to border
surveillance operations carried out by Member States at their sea external
borders in the context of operational cooperation coordinated by the European
Agency for the Management of Operational Cooperation at the External Borders
of the Member States of the European Union.
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Identical.
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Article 2
Definitions
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Article 2
Definitions
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For the purpose of this Regulation, the following definitions
shall apply:
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For the purpose of this Regulation, the following
definitions shall apply:
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1. ÔAgencyÕ
means the European Agency for the Management of Operational Cooperation at
the External Borders of the Member States of the European Union established
by Regulation (EC) No 2007/2004;
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|
1. ÔAgencyÕ
means the European Agency for the Management of Operational Cooperation at
the External Borders of the Member States of the European Union established
by Regulation (EC) No 2007/2004;
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Identical.
|
|
2. Ôsea
operationÕ means a joint operation, pilot project or rapid intervention
carried out by Member States for the surveillance of their external sea
borders under the coordination of the Agency;
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|
2. Ôsea
operationÕ means a joint operation, pilot project or rapid intervention
carried out by Member States for the surveillance of their external sea
borders under the coordination of the Agency;
|
Identical.
|
|
3. Ôhost
Member StateÕ means a Member State in which a sea operation takes place or
from which it is launched;
|
|
3. Ôhost Member
StateÕ means a Member State in which a sea operation takes place or from
which it is launched;
|
Identical.
|
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AM 19
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4. Ôparticipating
Member StateÕ means a Member State which participates in a sea operation by
providing assets or human resources, but which is not a host Member State;
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4. Ôparticipating Member StateÕ
means a Member State which participates in a sea operation by providing technical
equipment or border guards and other staff,
but which is not the host Member State;
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4. Ôparticipating Member StateÕ
means a Member State which participates in a sea operation by providing [É]
technical equipment, border guards deployed as part
of the European Border Guard Teams or other relevant staff but which is not a host Member State;
|
Agreement on:
4. Ôparticipating Member StateÕ
means a Member State which participates in a sea operation by providing [É]
technical equipment, border guards deployed as part
of the European Border Guard Teams or other relevant staff but which is not a host Member State;
|
|
5. Ôparticipating
unitÕ means a maritime or aerial unit of the host Member State or of a
participating Member State;
|
|
5. Ôparticipating unitÕ means a
maritime, land or aerial unit under
the responsibility of the host Member State
or of a participating Member State that
takes part in a sea operation;
|
Agreement on:
5. Ôparticipating unitÕ means a
maritime, land or aerial unit under
the responsibility of the host Member State
or of a participating Member State that
takes part in a sea operation;
|
|
6. ÔInternational
Coordination CentreÕ means the coordination structure established within the
host Member State for the coordination of the sea operation;
|
|
6. ÔInternational
Coordination CentreÕ means the coordination structure established within the
host Member State for the coordination of the sea operation;
|
Identical.
|
|
7. ÔNational Coordination CentreÕ means the national coordination
centre established for the purposes of the European Border Surveillance
System (EUROSUR) in accordance with Regulation (EU) No [É/É];
|
|
7. ÔNational
Coordination CentreÕ means the national coordination centre established for
the purposes of the European Border Surveillance System (EUROSUR) in
accordance with Regulation (EU) No 1052/2013;
|
Agreement on:
7. ÔNational
Coordination CentreÕ means the national coordination centre established for
the purposes of the European Border Surveillance System (EUROSUR) in
accordance with Regulation (EU) No 1052/2013;
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AM 20
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7a. Ôoperational planÕ means the
operational plan referred to in Article 3a or Article 8e of Regulation (EC)
No 2007/2004;
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|
See point 13 Council text.
Proposal of the technical meeting to accept EP text.
Pres draft compromise to replace ÔORÕ by ÔANDÕ:
Ôoperational planÕ means the operational plan referred to in
Article 3a and Article 8e of Regulation (EC) No 2007/2004;
|
|
8. ÔshipÕ
means a boat, vessel or any other craft used at sea;
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|
8. ÔvesselÕ means any type of
water craft, including boats, dinghies, floating platforms, non-displacement
craft and seaplanes, used or capable of being used at sea;
|
Agreement on(adaptation throughout the text):
8. ÔvesselÕ means any type of water
craft, including boats, dinghies, floating platforms, non-displacement craft
and seaplanes, used or capable of being used
at sea;
|
|
9. Ôstateless
shipÕ means a ship without nationality or assimilated to a ship without nationality
when the ship has not been granted by any State the right to fly its flag or
when it sails under the flags of two or more States, using them according to
convenience;
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|
9. Ôstateless vesselÕ means a vessel without
nationality or assimilated to a vessel
without nationality when the vessel has
not been granted by any State the right to fly its flag or when it sails
under the flags of two or more States, using them according to convenience;
|
Agreement on(adaptation throughout the text):
9. Ôstateless vesselÕ means a vessel without
nationality or assimilated to a vessel
without nationality when the vessel has
not been granted by any State the right to fly its flag or when it sails
under the flags of two or more States, using them according to convenience;
|
|
10. ÔProtocol
against the Smuggling of MigrantsÕ means the Protocol against the Smuggling
of Migrants by Land, Sea and Air, supplementing the United Nations Convention
against Transnational Organised Crime signed in Palermo, Italy in December
2000;
|
|
10. ÔProtocol against
the Smuggling of MigrantsÕ means the Protocol against the Smuggling of
Migrants by Land, Sea and Air, supplementing the United Nations Convention
against Transnational Organised Crime signed in Palermo, Italy in December
2000;
|
Identical.
|
|
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AM 21
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|
11. Ôplace
of safetyÕ means a location where rescue operations are considered to
terminate and where the survivorsÕ safety of life including as regards the
protection of their fundamental rights is not threatened, where their basic
human needs can be met and from which transportation arrangements can be made
for the survivorsÕ next destination or final destination;
|
11. 'place of safety' means a location where
rescue operations are considered to terminate and where the survivors' safety
of life as well as the protection of
their fundamental rights is not threatened, where their basic human needs can
be met and from which transportation arrangements can be made for the
survivors' next destination or final destination, in compliance with
the principle of non-refoulement;
|
11. Ôplace of safetyÕ means a location where
rescue operations are considered to terminate and where the survivorsÕ safety
of life [É] is not threatened, where
their basic human needs can be met and
from which transportation arrangements can be
made for the survivorsÕ next destination or final destination, in
compliance with the principle of non-refoulement;
|
PRES suggests to keep Council text.
|
|
12. ÔRescue
Coordination CentreÕ means a unit responsible for promoting efficient
organisation of search and rescue services and for coordinating the conduct
of search and rescue operations within a search and rescue region as defined
in the 1979 International Convention on Maritime Search and Rescue.
|
|
12. ÔRescue
Coordination CentreÕ means a unit responsible for promoting efficient
organisation of search and rescue services and for coordinating the conduct
of search and rescue operations within a search and rescue region as defined
in the 1979 International Convention on Maritime Search and Rescue.
|
Identical.
|
|
|
|
13. ÔOperational planÕ means the
operational plan referred to in Articles 3a and 8e of Regulation (EC)
No 2007/2004.
|
See point 7a EP text.
Proposal of the technical meeting not to take up Council text
(covered by point 7a).
|
|
|
|
14. Ôcontiguous zoneÕ means a zone
adjacent to the territorial sea as defined in Article 33 of the United
Nations Law of the Sea Convention.
|
Agreement on:
14. Ôcontiguous zoneÕ means a zone
adjacent to the territorial sea as defined in Article 33 of the United
Nations Law of the Sea Convention.
|
|
|
|
|
PRES draft compromise is to add the following definition:
15. Ôcoastal Member StateÕ means a Member
State in whose territorial sea or contiguous zone an interception takes
place.
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|
CHAPTER II
GENERAL RULES
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|
CHAPTER II
GENERAL RULES
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Article 3
Safety at sea
|
|
Article 3
Safety at sea
|
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AM 22
|
|
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|
Measures taken for the
purpose of a sea operation shall be conducted in a way that does not put at
risk the safety of the persons intercepted or rescued and the safety of the
participating units.
|
Measures taken for the purpose of a sea operation shall be
conducted in a way that, in all instances, ensures the safety of the persons intercepted or rescued and the safety
of the participating units.
|
Measures taken for the purpose of a sea operation shall be
conducted in a way that does not put at risk the safety of the persons
intercepted or rescued, [É] the safety of the participating units or that of third
parties.
|
Agreement on (subject to confirmation by the Council):
Measures taken for the purpose of a sea operation shall be
conducted in a way that, in all instances, ensures the safety of the persons intercepted or rescued, the safety of
the participating units or that of third parties.
|
|
Article 4
Protection of
fundamental rights and the principle of non-refoulement
|
|
Article 4
Protection of fundamental rights and the principle of non-refoulement
|
|
|
|
AM 23
|
|
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|
1. No
person shall be disembarked in, or otherwise handed over to the authorities
of a country where there is a serious risk that such person would be
subjected to the death penalty, torture or other inhuman or degrading
treatment or punishment or from which there is a serious risk of expulsion,
removal or extradition to another country in contravention of the principle
of non-refoulement.
|
1. No person shall be disembarked
in, conducted towards, otherwise handed
over to the authorities of, or forced to enter, a country where there is a serious risk that such person would be
subjected to the death penalty, torture or other inhuman or degrading
treatment or punishment or any serious violations of their human
rights, or where his or her life or
freedom would be threatened on account of his or her race, religion,
nationality, sexual orientation, membership of a particular social group or
political opinion, or from which there is a
serious risk of expulsion, removal or extradition to another country in
contravention of the principle of non-refoulement.
|
1. No person shall be disembarked
in, forced to enter or otherwise handed
over to the authorities of a country where there is a serious risk that such
person would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment or from
which there is a serious risk of expulsion, removal or extradition to another
country in contravention of the principle of non-refoulement.
|
PRES draft compromise:
1. No person shall be disembarked in, forced to enter,
conducted to or otherwise handed over to the
authorities of a country where there is a serious risk that he or she would be subjected to the death penalty, torture, persecution
or other inhuman or degrading treatment or
punishment, or where his or her life or freedom would be threatened on
account of his or her race, religion, nationality, sexual orientation, membership
of a particular social group or political opinion; or from which there is a serious risk of such an expulsion, removal or extradition to another country in
contravention of the principle of non-refoulement.
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AM 24
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2. Before
deciding on disembarkation in a third country, the participating units shall
take into account the general situation in that third country and intercepted
or rescued persons shall not be disembarked in that third country when the
host Member State or the participating Member States are aware or ought to be
aware that this third country is engaged in practices as described in
paragraph 1
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2. Before and during a sea
operation, the host Member State and the participating Member States shall
examine the general situation in the
neighbouring third countries and the existence of agreements and projects on
migration and asylum, carried out in accordance with Union law and through
Union funds. Intercepted or rescued persons
shall not be disembarked in, conducted towards, otherwise handed over
to the authorities of, or forced to enter, a third country when the host Member State, the participating Member States or the Agency are aware or ought to be aware that this third country is engaged
in practices as described in paragraph 1. Those Member States shall
provide that information to the participating units. For that purpose, they
shall use information from a range of sources, including in particular other
Member States, the European External Action Service, the European Asylum
Support Office, the Agency, the United Nations High Commissioner for Refugees
and other relevant international and non-governmental organisations.
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2. When
considering the possibility of disembarkation in a third country, in the
context of planning a sea operation, the [É] host Member State, in coordination with participating
Member States and the Agency, shall take into
account the general situation in that third country [É]. The assessment of the general situation in a third country
may be based on information derived from Union bodies, offices and agencies, and
relevant international organisations, and that assessment shall be part of
the operational plan. Intercepted or rescued
persons shall not be disembarked in that third country when the host Member
State or the participating Member States are aware or ought to be aware that
this third country is engaged in practices as described in paragraph 1.
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PRES draft compromise:
2. When
considering the possibility of disembarkation in a third country, in the
context of planning a sea operation, the host Member State, in coordination
with participating Member States and the Agency, shall take into account the general situation in that third
country.
The assessment of the general situation in a third country
may be based on information derived from other
Member States, Union bodies, offices
and agencies, and relevant international organisations and it may take into
account the existence of agreements
and projects on migration and asylum carried out in accordance with Union law
and through Union funds. That general assessment shall be part of the
operational plan and it shall be provided to the participating units. That
general assessment shall be updated as necessary.
Intercepted or rescued persons shall not be disembarked, forced
to enter, conducted to or otherwise handed over to the authorities of a third country when the host Member State or the participating
Member States are aware or ought to be aware that this third country is
engaged in practices as described in paragraph 1.
The EP proposes the following modification:
.... The assessment of the general situation in a third
country shall be based on information derived from a broad range of
sources. It may include other Member States, Union bodies, ....(text continues)
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AM 25
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3. In
case of disembarkation in a third country, the participating units shall
identify the intercepted or rescued persons and assess their personal
circumstances to the extent possible before disembarkation. They shall inform
the intercepted or rescued persons of the place of disembarkation in an
appropriate way and they shall give them an opportunity to express any
reasons for believing that disembarkation in the proposed place would be in
violation of the principle of non-refoulement.
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3. If disembarkation in a third country is considered or in the
cases provided for in point (b) of Article 6(1a) and point (b) of Article
7(1a), the participating units shall identify
the intercepted or rescued persons and assess their personal circumstances,
including their medical conditions and other circumstances that might make
them vulnerable or subject to international protection needs, before a
decision is made. They shall inform the
intercepted or rescued persons of the place of disembarkation in a
language which those persons understand or may reasonably be presumed to
understand and they shall give them an
opportunity to express any reasons for believing that disembarkation in the
proposed place would be in violation of the principle of non-refoulement. Further
details shall be provided for in the operational plan.
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3. During the operation,
before disembarkation in a third country and
taking into account the assessment of the general situation in that third
country in accordance with paragraph 2, the
participating units shall, to the extent possible and without
prejudice to Article 3, identify the
intercepted or rescued persons, [É] assess
their personal circumstances, [É]
inform them of the place of disembarkation in an appropriate way, and [É] give them an opportunity
to express any reasons for believing that disembarkation in the proposed
place would be in violation of the principle of non-refoulement.
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PRES suggests the following draft compromise in view of AM 26 and
the last sentence of AM 29:
3. During the sea operation,
before disembarkation in a third country and
taking into account the assessment of the general situation in that third
country in accordance with paragraph 2, the
participating units shall, to the extent possible and without prejudice
to Article 3, identify the intercepted or
rescued persons, [É] assess their
personal circumstances, [É] inform them of the place of
disembarkation in an appropriate way, and
[É] give them an opportunity to express
any reasons for believing that disembarkation in the proposed place would be
in violation of the principle of non-refoulement.
For those purposes further details shall be provided for in
the operational plan including, when necessary, the availability of shore-based medical
staff, interpreters and other relevant experts of the host Member State. Each participating unit shall include at least one person
with basic first aid training.
EP cannot agree with "to the extent
possible" and cannot agree to the deletion of its text "in a language which those persons understand or may reasonably
be presumed to understand".
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AM 26
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4. The participating units shall address the special needs
of children, victims of trafficking, persons in need of urgent medical
assistance, persons in need of international protection and other persons in
a particularly vulnerable situation throughout the sea operation.
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4. Throughout the sea
operation, the participating units shall address
the special needs of children, victims of trafficking, persons in need of
urgent medical assistance, disabled persons, persons in need of international protection and other persons in a
particularly vulnerable situation throughout the sea operation. For
this purpose, participating units shall be able to draw on medical doctors,
interpreters and other relevant experts.
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4. The
participating units shall address the special needs of children, victims of
trafficking, persons in need of urgent medical assistance, persons in need of
international protection and other persons in a particularly vulnerable situation
throughout the sea operation.
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PRES draft compromise for first and second parts of EP text:
4. Throughout the sea
operation, the participating units shall address
the special needs of children, victims of trafficking, persons in need of
urgent medical assistance, disabled persons, persons in need of international protection and other persons in a
particularly vulnerable situation throughout the sea operation.
As regards the third part of EP text, see PRES draft compromise on
AM 25.
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AM 27
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4a. If there are grounds to believe that
disembarkation of persons intercepted or rescued at sea in the proposed place
would be in violation of the principle of non-refoulement, the participating
units shall not share personal information regarding the persons with the
authorities of the country of origin or with the authorities of other third
countries.
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PRES suggests not to accept AM 27.
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AM 28
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4b. The participating units shall treat
all persons on board in a humane way.
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Agreement on (subject to confirmation by the Council (in line
with Article 6 SBC):
4b. Participating units shall, in the
performance of their duties, fully respect human dignity.
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PRES draft compromise for AM 34, 38, 43 and 49:
4c. That principle shall apply to all measures taken by
Member States or the Agency in accordance with this Regulation.
EP proposal:
4c. The principle and procedures provided for in this
Article shall apply to all measures taken by Member States or the Agency in
accordance with this Regulation.
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AM 29
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5. Border
guards participating in a sea operation shall be trained with regard to
relevant provisions of fundamental rights, refugee law and the international
legal regime of search and rescue.
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5. All border guards and other personnel of
the Member States shall receive, prior to their participation in a sea operation, training in relevant
Union and international law, including fundamental rights, children's rights and access to
international protection and guidelines for the purpose of identifying
persons seeking protection and redirecting them towards the appropriate
facilities, and the
international legal regime of search and rescue. Each participating
unit shall include at least one person with medical training.
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5. Border guards
and other relevant staff participating in a sea operation shall be trained with
regard to relevant provisions of fundamental rights, refugee law and the
international legal regime of search and rescue in accordance with the
second paragraph of Article 5 of Regulation (EC) No 2007/2004.
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PRES draft compromise:
5. Border guards
and other relevant staff participating in a sea operation shall be trained with
regard to relevant provisions of fundamental rights, refugee law and the
international legal regime of search and rescue in accordance with the
second paragraph of Article 5 of Regulation (EC) No 2007/2004.
As regards the last sentence of EP amendment, see PRES draft
compromise on AM 25.
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CHAPTER III
SPECIFIC RULES
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CHAPTER III
SPECIFIC RULES
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Article 5
Detection
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Article 5
Detection
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AM 30
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1. Upon
detection, the participating units shall approach a ship suspected of
crossing or intending to cross the border in an irregular manner to observe
its identity and nationality and, pending further measures, it shall be
surveyed at a prudent distance. The participating units shall communicate
information about the ship immediately to the International Coordination
Centre.
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1. Upon detection, the participating
units shall approach a ship suspected of crossing or intending to cross the
border in an irregular manner to observe its identity and nationality and,
pending further measures, it shall be surveyed at a prudent distance taking
all due precautions. The participating units
shall communicate information about the ship immediately to the International
Coordination Centre, including information about the situation of
persons on board, in particular whether there is an imminent risk to their
lives or health. It shall transmit the
information to the National Coordination Centre of the host Member State.
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1. Upon detection, the participating
units shall approach a vessel suspected
of carrying persons circumventing or
intending to circumvent checks at border crossing points or of being
engaged in the smuggling of migrants by sea in order to observe its identity and nationality and, pending further
measures, [É] shall [É] survey that vessel at a
prudent distance. The participating units shall collect and report information about the vessel
immediately to the International Coordination Centre.
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Agreement on (subject to the confirmation by Council):
1. Upon detection, the participating
units shall approach a vessel suspected
of carrying persons circumventing or
intending to circumvent checks at border crossing points or of being
engaged in the smuggling of migrants by sea in order to observe its identity and nationality and, pending further
measures, shall survey that vessel at a
prudent distance taking all due precautions. The participating units shall collect and report information about the vessel
immediately to the International Coordination Centre, including, where possible, information about the situation
of persons on board, in particular whether there is an imminent risk to their
lives or health. The International
Coordination Centre shall transmit the information to the National
Coordination Centre of the host Member State.
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AM 31
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2. Where
the ship is about to enter or it has entered the territorial sea or the
contiguous zone of a Member State that is not participating in the sea
operation, the participating units shall communicate information about the
ship to the International Coordination Centre, which shall convey this
information to the National Coordination Centre of the Member State
concerned.
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2. Where the ship is about to enter
or it has entered the territorial sea or, where formally proclaimed, the contiguous zone, of a
Member State that is not participating in the sea operation, the
participating units shall communicate information about the ship to the
International Coordination Centre, which shall convey this information to the
National Coordination Centre of the Member State concerned.
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2. Where a vessel is about to enter or
it has entered the territorial sea or the contiguous zone of a Member State
that is not participating in the sea operation, the participating units shall
collect and report information about that vessel to the International
Coordination Centre, which shall convey this information to the National
Coordination Centre of the Member State concerned.
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Agreement on (subject to the confirmation by the Council):
2. Where a vessel is about to enter or
it has entered the territorial sea or, where formally proclaimed, the contiguous zone of a Member State that is not participating
in the sea operation, the participating units shall collect and report information about that vessel to the International Coordination Centre, which shall convey this
information to the National Coordination Centre of the Member State
concerned.
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AM 32
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3. The
participating units shall communicate information about any ship suspected of
being engaged in illegal activities at sea outside the scope of a sea
operation to the International Coordination Centre, which shall convey this
information to the National Coordination Centre of the Member State or Member
States concerned.
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3. The participating units shall
communicate information about any ship suspected of being engaged in illegal
activities at sea, which are outside
the scope of the sea operation, to the International Coordination Centre, which shall convey this
information to the National Coordination Centre of the Member State or Member
States concerned. When necessary and for the purposes laid down in this
Regulation, the authorities of the Member States concerned and the Agency
shall make use of the EUROSUR framework.
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3. The participating units shall collect
and report information about any vessel suspected of being engaged in illegal activities at sea outside
the scope of a sea operation to the International Coordination Centre, which
shall convey this information to the National Coordination Centre of the
Member State or Member States concerned.
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PRES draft compromise:
3. The participating units shall collect
and report information about any vessel suspected of being engaged in illegal activities at sea outside
the scope of a sea operation to the International Coordination Centre, which
shall convey this information to the National Coordination Centre of the
Member State or Member States concerned in accordance with Regulation
(EU) No 1052/2013.
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Article 6
Interception in the
territorial sea
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Article 6
Interception
in the territorial sea
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AM 33
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1. In
the territorial sea of the host Member State or a participating Member State,
the participating units shall take one or more of the following measures when
there are reasonable grounds to suspect that a ship is carrying persons
intending to circumvent checks at border crossing points or is engaged in the
smuggling of migrants by sea:
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1. In the territorial sea of the
host Member State or a participating Member State, the participating units
shall take one or more of the following measures, subject to the
authorisation of the Member State to which the territorial sea belongs, when there are reasonable grounds to suspect that a ship is
carrying persons intending to circumvent checks at border crossing points or
is engaged in the smuggling of migrants by sea:
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1. In the territorial sea of the
host Member State or a neighbouring participating Member State, the participating units shall, subject to the authorisation of the coastal Member State, take one or more of the following measures when there are
reasonable grounds to suspect that a vessel may be carrying persons who intend
to circumvent checks at border crossing points or is engaged in the smuggling
of migrants by sea:
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PRES draft compromise (technical modifications resulting
from the split in Article 6):
1. In the territorial sea of the
host Member State or a neighbouring participating Member State, that State shall authorise the
participating units to take one or more of
the following measures when there are reasonable grounds to suspect that a vessel
may be carrying persons who intend to circumvent checks at border crossing points or is engaged in
the smuggling of migrants by sea:
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(a) requesting
information and documentation on ownership, registration and elements
relating to the voyage, and on the identity, nationality and other relevant
data on persons on board;
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(a) requesting information and
documentation on ownership, registration and elements relating to the voyage,
and on the identity, nationality and other relevant data on persons on board,
including their health conditions, in order to assess if there are persons
with special medical needs on board;
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(a) requesting information and
documentation on ownership, registration and elements relating to the voyage of
the vessel, and on the identity, nationality
and other relevant data on persons on board;
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PRES suggests to keep the Council
text.
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(b) stopping,
boarding and searching the ship, its cargo and persons on board, and
questioning persons on board;
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(b) stopping, boarding and searching the
ship, its cargo and persons on board, and questioning persons on board;
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(b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on
board;
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Agreement on:
(b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on
board;
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(c) making
persons on board aware that they may not be
authorised to cross the border and that persons directing the craft may face
penalties for facilitating the voyage;
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(c) making persons
on board aware as to why they may not
be authorised to cross the border and that persons directing the ship may face penalties for facilitating the voyage.
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(c) making persons on board aware that they may not be
authorised to cross the border and that persons directing the vessel may face penalties for facilitating the voyage;
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PRES suggests to merge the two texts:
(c) making persons on board aware as to why they may not be authorised to cross the border and that persons
directing the vessel may face penalties
for facilitating the voyage.
EP proposes to move this point to
paragraph 1a (enforcement measures).
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1a. If the suspicions that a ship is
carrying persons intending to circumvent checks at border crossing points or
is engaged in the smuggling of migrants by sea prove to be founded, the host
Member State or the participating Member State to which the territorial sea
belongs may take one or more of the following measures:
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PRES draft compromise along the
lines of Article 8(7) of Palermo Protocol (+technical modifications resulting
from the split in Article 6):
1a. If evidence
confirming that suspicion is found, the host Member State or a neighbouring
participating Member State may authorise the participating units to take one
or more of the following measures:
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(d) seizing
the ship and apprehending persons on board;
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(a) seizing
the ship and apprehending persons on board;
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(d)
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Agreement on:
(a) seizing the vessel
and apprehending persons on board;
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(e) ordering
the ship to modify its course outside of or towards a destination other than
the territorial sea or the contiguous zone, including escorting the vessel or
steaming nearby until the ship is heading on such course;
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(b) ordering
the ship to modify its course outside of or towards a destination other than
the territorial sea or the contiguous zone, including escorting the ship or steaming nearby until it
is heading on such course;
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(e)
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Agreement on (subject to renumbering):
(b) ordering the vessel to alter its course outside
of or towards a destination other than the territorial sea or the contiguous
zone, including escorting the vessel or steaming nearby until it is
confirmed that the vessel is keeping to that given course;
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(f) conducting
the ship or persons on board to the host
Member State or to another Member State participating in the operation, or to
the coastal Member State.
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(c) conducting
the ship or persons on board to the host
Member State or to another Member State participating in the operation, or to
the coastal Member State in accordance with the operational plan.
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(f) conducting the vessel or
persons on board to [É] the coastal
Member State.
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PRES draft compromise:
(c) conducting
the vessel or persons on board to the coastal Member State in
accordance with the operational plan.
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Any measures taken in
accordance with this paragraph shall be proportionate and shall not exceed
what is necessary to achieve the objectives of this Article.
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PRES suggests to keep the Council text.
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AM 34
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1b. The measures described in point (b) of
paragraph 1a may only be taken if the participating unit:
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PRES suggests not to accept AM 34. See PRES draft compromise for Article
4(4c).
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(i) has ascertained that the
ship is not forced to enter a third country in violation of Article 4(1) and
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(ii) has conducted, if applicable,
the measures provided for in Article 4(3) and (4).
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Article 6 of Directive 2013/32/EU shall apply.
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2. The host Member State or the
participating Member State on whose territorial sea the interception takes
place shall authorise the measures referred to in paragraph 1 and it
shall instruct the participating unit appropriately through the International
Coordination Centre. The participating unit shall inform the host Member
State, through the International Coordination Centre, whenever the master of
the ship requests that a diplomatic agent or a consular officer of the flag
State be notified.
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2. The
host Member State or a neighbouring participating Member State on whose territorial sea the
interception takes place may authorise one
or more of the measures referred to in
paragraph 1.
The host Member State shall
instruct the participating unit appropriately through the International
Coordination Centre.
The participating unit shall inform the host Member State, through
the International Coordination Centre, whenever the master of the vessel requests that a diplomatic agent or a consular officer of the
flag State be notified.
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PRES draft compromise (technical
modifications resulting from the split in Article 6):
2. [É]
For the purposes of paragraph 1
and 1a, the host Member State shall instruct
the participating unit appropriately through the International Coordination
Centre.
The participating unit shall inform
the host Member State, through the International Coordination Centre,
whenever the master of the vessel
requests that a diplomatic agent or a consular officer of the flag State be
notified.
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AM 35
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3. Where there are reasonable
grounds to suspect that a ship without nationality or one that may be
assimilated to a ship without nationality is carrying persons intending to
circumvent the checks at border crossing points or is engaged in the
smuggling of migrants by sea, the host Member State or the participating Member
State in whose territorial sea the stateless ship is intercepted shall
authorise and instruct the participating unit to stop it and to take any of
the measures laid down in paragraph 1.
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3. Where there are reasonable
grounds to suspect that a stateless ship is carrying persons intending to circumvent the checks at border
crossing points or is engaged in the smuggling of migrants by sea, the host
Member State or the participating Member State in whose territorial sea the
stateless ship is intercepted shall authorise and instruct the participating
unit to stop it and to take any of the measures laid down in paragraph 1.
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3. Where there are reasonable
grounds to suspect that a stateless vessel [É] is carrying persons
intending to circumvent the checks at border crossing points or is engaged in
the smuggling of migrants by sea, the host Member State or the neighbouring participating Member State in whose territorial sea the stateless
vessel is intercepted may authorise that it be stopped and that one or more of the measures laid down in paragraph 1 be taken. The host
Member State shall instruct the participating unit appropriately through the
International Coordination Centre.
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PRES suggests to keep the Council
text.
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4. Any
operational activities in the territorial sea of a Member State that is not
participating in the sea operation shall be conducted in accordance with the
authorisation of that Member State. The International Coordination Centre
shall be informed of any communication with that Member State and of the
subsequent course of action authorised by that Member State.
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4. Any operational activities in the
territorial sea of a Member State that is not participating in the sea
operation shall be conducted in accordance with the authorisation of that Member
State. The host Member State shall instruct the participating unit
through the International Coordination Centre based on the course of action
authorised by that Member State.
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PRES suggests to keep the Council
text.
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AM 36
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4a. Member States and the Agency are bound
by the provisions of the asylum acquis, and in particular of Directive
2013/32/EU of the European Parliament and of the Council on common procedures
for granting and withdrawing international protection with regard to
applications for international protection made in the territory, including at
the border, in the territorial waters or in the transit zones of Member
States.
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PRES suggests not to accept AM 36 which is covered by recital 5.
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Article 7
Interception on the high seas
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Article 7
Interception on the
high seas
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AM 37
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1. On
the high seas, the participating units shall take one or more of the
following measures when there are reasonable grounds to suspect that a ship
is engaged in the smuggling of migrants by sea subject to the authorisation
of the flag State in accordance with the Protocol against the Smuggling of
Migrants:
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1. On the high seas, the
participating units shall take one or more of the following measures when
there are reasonable grounds to suspect that a ship is engaged in the
smuggling of migrants by sea subject to the authorisation of the flag State
in accordance with the Protocol against the Smuggling of Migrants:
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1. On the high seas, the
participating units may take one or
more of the following measures when there are reasonable grounds to suspect
that a vessel is engaged in the
smuggling of migrants by sea subject to the authorisation of the flag State
in accordance with the Protocol against the Smuggling of Migrants, and
where relevant, national and international law, and in accordance with the
instructions of the host Member State:
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PRES draft compromise (technical modifications resulting from
the split in Article 7):
1. On the high seas, the
participating units shall take one or
more of the following measures when there are reasonable grounds to suspect
that a vessel is engaged in the
smuggling of migrants by sea subject to the authorisation of the flag State
in accordance with the Protocol against the Smuggling of Migrants, and
where relevant, national and international law:
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(a) requesting
information and documentation on ownership, registration and elements
relating to the voyage, and on the identity, nationality and other relevant
data on persons on board;
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(a) requesting information and
documentation on ownership, registration and elements relating to the voyage,
and on the identity, nationality and other relevant data on persons on board,
including their health conditions, in order to assess if there are persons
with special medical needs on board;
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(a) requesting information and
documentation on ownership, registration and
elements relating to the voyage of the vessel, and on the identity, nationality and other relevant data on
persons on board;
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PRES suggests to keep the Council text.
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(b) stopping,
boarding and searching the ship, its cargo and persons on board, and
questioning persons on board;
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(b) stopping, boarding and searching the
ship, its cargo and persons on board, and questioning persons on board;
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(b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on
board;
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Agreement on:
(b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on
board;
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(c) making
persons on board aware that they are may not
be authorised to cross the border and that persons directing the craft may
face penalties for facilitating the voyage;
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(c) making persons
on board aware as to why they [...]
may not be authorised to cross the border and
that persons directing the ship may
face penalties for facilitating the voyage.
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(c) making persons
on board aware that they [...] may not
be authorised to cross the border and that persons directing the vessel may face penalties for facilitating the voyage;
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PRES suggests to merge the two texts:
(c) making persons on board aware as to why they [...] may not be
authorised to cross the border and that persons directing the vessel may face penalties for facilitating the voyage.
EP proposes to move this point to
paragraph 1a (enforcement measures).
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1a. If the suspicions that a ship is
engaged in the smuggling of migrants by sea prove to be founded, the
participating unit may take one or more of the following measures subject to
the authorisation of the flag State in accordance with the Protocol against the
Smuggling of Migrants:
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PRES draft compromise along the
lines of Article 8(7) of Palermo Protocol (+technical modifications resulting
from the split in Article 7):
1a. If
evidence confirming that suspicion is found, the participating units
may take one or more of the following measures, subject to the authorisation
of the flag State, in accordance with the Protocol against the Smuggling of
Migrants, and where relevant, national and international law:
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(d) seizing
the ship and apprehending persons on board;
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(a) seizing
the ship and apprehending persons on board;
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(d) seizing the vessel and apprehending persons on board;
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Agreement on:
(a) seizing the vessel and apprehending persons on board;
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(e) ordering
the ship to modify its course outside of or towards a destination other than
the territorial sea or the contiguous zone, including escorting the vessel or
steaming nearby until the ship is heading on such course;
|
Deleted
|
(e) ordering the vessel to alter its course [É]
towards a destination other than the territorial
sea or the contiguous zone, including escorting the vessel or steaming nearby
until the vessel is heading on such
course;
|
PRES draft compromise:
(b) warning the vessel not to enter
the territorial sea or the contiguous zone, and where necessary requesting the vessel to alter its course towards a destination other than
the territorial sea or the contiguous zone, including escorting the vessel or
steaming nearby until the vessel is
heading on such course.
EP proposal:
(b) warning the vessel not to enter
the territorial sea or the contiguous zone, and where necessary requesting the vessel to alter its course towards a destination other than
the territorial sea or the contiguous zone [...]
|
|
(f) conducting
the ship or persons on board to a third country or otherwise handing over the ship or persons on board to the authorities of
a third country;
|
(b) conducting
the ship or persons on board to a third country or otherwise handing over the ship or persons on board to the authorities of
a third country;
|
(f) conducting the vessel or persons on board to a third country or otherwise handing over the vessel
or persons on board to the authorities of a third country;
|
Agreement on:
(c) conducting the vessel or
persons on board to a third country or otherwise handing over the vessel
or persons on board to the authorities of a third country;
|
|
(g) conducting
the ship or persons on board to the host
Member State or to another Member State participating in the operation.
|
(c) conducting
the ship or persons on board to the host
Member State or to another Member State participating in the operation.
|
(g) conducting the vessel or persons on board to the host Member
State or to another neighbouring Member
State participating in the operation.
|
PRES suggests to keep the Council
text.
|
|
|
|
Any measures taken in accordance with this paragraph shall
be proportionate and shall not exceed what is necessary to achieve the
objectives of this Article.
|
PRES suggests to keep the Council
text.
|
|
|
|
|
PRES draft compromise (technical
modifications resulting from the split in Article 7):
1aa. For the purposes of
paragraph 1 and 1a, the host Member State shall instruct the participating
unit appropriately through the International Coordination Centre.
|
|
|
AM 38
|
|
|
|
|
1b. The measures described in point (b) of
paragraph 1a may only be taken if the participating unit:
|
|
PRES suggests not to accept AM 38. See PRES draft compromise for Article
4(4c).
|
|
|
(i) has ascertained that the
ship is not forced to enter a third country in violation of Article 4(1) and
|
|
|
|
|
(ii) has conducted, if applicable,
the activities provided for in Article 4(3) and (4).
|
|
|
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AM 39
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|
|
|
|
1c. When there are reasonable
grounds to suspect that a ship is engaged in trafficking of human beings and
illegal immigration, assistance shall be given to victims.
|
|
PRES draft compromise is to have a recital replacing AM 39, which
would read as follows and which is to be included after recital 5:
The application of this Regulation should be without
prejudice to Directive 2011/36 of the European Parliament and the Council on
preventing and combating trafficking in human beings and protecting its victims,
in particular as regards assistance to be given to victims of trafficking in
human beings.
|
|
2. Where
the ship is flying the flag or displays the marks of registry of the host
Member State or of a participating Member State, that Member State shall,
after confirming the nationality of the ship, authorise the measures laid
down in paragraph 1.
|
|
2. Where
the vessel is flying the flag or
displays the marks of registry of the host Member State or of a participating
Member State, that Member State may,
after confirming the nationality of the vessel, authorise one or more of
the measures laid down in paragraph 1. The host Member State shall then
instruct the participating unit appropriately through the International
Coordination Centre.
|
PRES draft compromise (technical
modifications resulting from the split in Article 7: insertion of reference
to paragraph 1a to the Council text):
2. Where
the vessel is flying the flag or
displays the marks of registry of the host Member State or of a participating
Member State, that Member State may,
after confirming the nationality of the vessel, authorise one or more of
the measures laid down in paragraph 1 and 1a. The host Member State shall then instruct the
participating unit appropriately through the International Coordination
Centre.
|
|
3. Where
the ship is flying the flag or displays the marks of registry of a Member
State that is not participating in the sea operation or of a third country,
the host Member State or a participating Member State, depending on whose
participating unit has intercepted this ship, shall notify the flag State, it
shall request confirmation of registry and, if nationality is confirmed, it
shall request authorisation from the flag State to take any of the measures
laid down in paragraph 1. The host Member State or the participating Member
State shall inform the International Coordination Centre of any communication
with the flag State and of the measures authorised by the flag State.
|
|
3. Where the vessel is flying the flag or displays the marks of registry of a Member
State that is not participating in the sea operation or of a third country,
the host Member State or a participating Member State, depending on whose
participating unit has intercepted this vessel, shall notify the flag State, it shall request confirmation of
registry and, if nationality is confirmed, it shall request that the
flag State take action to suppress the use of its vessel for smuggling of
migrants. If the flag State is unwilling or unable to do so either directly
or with the assistance of the Member State to whom the participating unit
belongs, the latter shall request
authorisation from the flag State to take any of the measures laid down in
paragraph 1. The host Member State or the participating Member State shall
inform the International Coordination Centre of any communication with the
flag State and of the intended actions or measures authorised by the flag State. The host Member
State shall then instruct the participating unit appropriately through the
International Coordination Centre.
|
PRES draft compromise (technical
modifications resulting from the split in Article 7: insertion of reference
to paragraph 1a to the Council text):
3. Where
the vessel is flying the flag or
displays the marks of registry of a Member State that is not participating in
the sea operation or of a third country, the host Member State or a
participating Member State, depending on whose participating unit has
intercepted this vessel, shall notify
the flag State, it shall request confirmation of registry and, if nationality
is confirmed, it shall request that the flag State take action to
suppress the use of its vessel for smuggling of migrants. If the flag State
is unwilling or unable to do so either directly or with the assistance of the
Member State to whom the participating unit belongs, the latter shall request authorisation from the flag State to take any of the
measures laid down in paragraph 1 and 1a. The host Member State or the participating Member State shall
inform the International Coordination Centre of any communication with the
flag State and of the intended actions or measures authorised by the flag State. The host Member
State shall then instruct the participating unit appropriately through the
International Coordination Centre.
|
|
|
AM 40
|
|
|
|
4. Where,
though flying a foreign flag or refusing to
show its flag, there are reasonable grounds to suspect that the ship is, in
reality, of the same nationality as a participating unit, that participating
unit shall verify the shipÕs right to fly its flag. To this end, it may
approach the suspected ship. If suspicion remains after the documents have
been checked, it shall proceed to a further examination on board the ship,
which must be carried out with all possible consideration. The participating
Member State of which the ship is allegedly flying the flag shall be
contacted through the appropriate channels.
|
4. Where, though flying a foreign
flag or refusing to show its flag, there are reasonable grounds to suspect
that the ship is, in reality, of the same nationality as a participating
unit, that participating unit shall verify the shipÕs right to fly its flag.
To this end, it may approach the suspected ship. If suspicion remains after
the documents have been checked, it shall proceed to a further examination on
board the ship, which shall be carried
out with all possible consideration. The participating Member State of which
the ship is allegedly flying the flag shall be contacted through the
appropriate channels.
|
4. Where, though
flying a foreign flag or refusing to show its flag, there are reasonable
grounds to suspect that the vessel is,
in reality, of the same nationality as a participating unit, that participating
unit shall verify the vesselÕs right to
fly its flag. To this end, it may approach the suspected vessel. If suspicion remains [É],
it shall proceed to a further examination on board the vessel, which must be carried out with all possible consideration. [É]
|
Agreement on (subject to confirmation by the Council):
4. Where, though
flying a foreign flag or refusing to show its flag, there are reasonable
grounds to suspect that the vessel is,
in reality, of the same nationality as a participating unit, that
participating unit shall verify the vesselÕs right to fly its flag. To this end, it may approach the suspected vessel. If suspicion remains, it shall proceed to a further examination
on board the vessel, which shall be carried out with all possible consideration.
|
|
5. Where,
though flying a foreign flag or refusing to show its flag, there are
reasonable grounds to suspect that the ship is, in reality, of the
nationality of the host Member State or another participating Member State,
the participating unit shall verify the shipÕs right to fly its flag upon
authorisation of that Member State.
|
|
5. Where, though flying a foreign flag
or refusing to show its flag, there are reasonable grounds to suspect that
the vessel is, in reality, of the
nationality of the host Member State or another participating Member State,
the participating unit shall verify the vesselÕs right to fly its flag [É].
|
Agreement on:
5. Where, though flying a foreign flag
or refusing to show its flag, there are reasonable grounds to suspect that
the vessel is, in reality, of the
nationality of the host Member State or another participating Member State,
the participating unit shall verify the vesselÕs right to fly its flag [É].
|
|
6. Where,
in the cases referred to in paragraphs 4 or 5, the suspicions regarding the
nationality of the ship prove to be founded, the
host Member State or the participating Member State shall authorise the measures
laid down in paragraph 1.
|
|
6. Where, in the cases referred to
in paragraphs 4 or 5, the suspicions regarding the nationality of the vessel prove to be founded, that host Member State or that participating Member State may authorise one or more of the measures laid down in paragraph 1. The
host Member State shall then instruct the participating unit appropriately
through the International Coordination Centre.
|
PRES draft compromise (technical
modifications resulting from the split in Article 7: insertion of reference
to paragraph 1a to the Council text):
6. Where,
in the cases referred to in paragraphs 4 or 5, the suspicions regarding the
nationality of the vessel prove to be
founded, that host Member State or that participating Member State may authorise one or more of the measures laid down in paragraph 1 and
1a. The host Member State shall
then instruct the participating unit appropriately through the International
Coordination Centre.
|
|
7. Pending
or in the absence of authorisation of the flag State, the ship shall be
surveyed at a prudent distance. No other measures shall be taken without the
express authorisation of the flag State, except those necessary to relieve
imminent danger to the lives of persons or those measures which derive from
relevant bilateral or multilateral agreements.
|
|
7. Pending or in the absence of
authorisation of the flag State, the vessel shall be surveyed at a prudent distance. No other measures shall
be taken without the express authorisation of the flag State, except those
necessary to relieve imminent danger to the lives of persons or those
measures which derive from relevant bilateral or multilateral agreements.
|
Agreement on:
7. Pending or in the absence of
authorisation of the flag State, the vessel shall be surveyed at a prudent distance. No other measures shall
be taken without the express authorisation of the flag State, except those
necessary to relieve imminent danger to the lives of persons or those
measures which derive from relevant bilateral or multilateral agreements.
|
|
|
AM 41
|
|
|
|
8. Where
there are reasonable grounds to suspect that a ship without nationality or
one that may be assimilated to a ship without nationality is engaged in the
smuggling of migrants by sea, the participating unit may board and stop the
ship with a view to verifying its statelessness. If suspicions prove to be
founded further appropriate measures as laid down in paragraph 1 may be taken
in accordance with national law and international law.
|
8. Where there are reasonable
grounds to suspect that a stateless ship is engaged in the smuggling of migrants by sea, the participating
unit may board and search the ship with
a view to verifying its statelessness. If suspicions prove to be founded
further appropriate measures as laid down in paragraph 1 may be taken in
accordance with national law, Union law
and international law.
|
8. Where there are reasonable grounds
to suspect that a stateless vessel is
engaged in the smuggling of migrants by sea, the participating unit may board
and search the vessel with a view to verifying its statelessness. If suspicions prove to
be founded the participating unit shall inform the host Member State
which may take, directly or with the assistance of the Member State to whom
the participating unit belongs, further
appropriate measures as laid down in paragraph 1 [É] in accordance with national [É] and international law.
|
PRES draft compromise along the
lines of Article 8(7) of Palermo Protocol (+technical modifications
resulting from the split in Article 7: insertion of reference to paragraph
1a to the Council text):
8. Where
there are reasonable grounds to suspect that a stateless vessel is engaged in the smuggling of migrants by sea, the participating
unit may board and search the vessel
with a view to verifying its statelessness. If
evidence confirming that suspicion is found the participating unit shall
inform the host Member State which may take, directly or with the assistance
of the Member State to whom the participating unit belongs, further appropriate measures as laid down in paragraph 1 and
1a in accordance with national and
international law.
|
|
9. A
Member State that has taken any measure in accordance with paragraph 1 shall
promptly inform the flag State of the results of that measure.
|
|
9. A Member State that has taken any
measure in accordance with paragraph 1 shall promptly inform the flag State
of the results of that measure.
|
Identical.
|
|
|
AM 42
|
|
|
|
10. The
national official representing the host Member State or a participating
Member State at the International Coordination Centre shall be designated
under national law as an authority for the authorisation to verify the right
of a ship to fly the flag of the Member State concerned or to take any of the
measures laid down in paragraph 1.
|
10. The national official representing the host
Member State or a participating Member State at the International
Coordination Centre shall be responsible to facilitate communications
with the relevant authorities of the Member State concerned in seeking authorisation to verify the right of a ship to fly its flag [...] or to take any
of the measures laid down in paragraph 1.
|
10. The national official representing the host
Member State or a participating Member State at the International
Coordination Centre shall be responsible to facilitate communications
with the relevant authorities of the flag State in seeking authorisation to verify the right of a vessel to fly the flag of the Member State concerned or to take any of
the measures laid down in paragraph 1.
|
PRES draft compromise (technical
modifications resulting from the split in Article 7: insertion of reference
to paragraph 1a to the Council text):
10. The national official representing the host
Member State or a participating Member State at the International
Coordination Centre shall be responsible to facilitate communications
with the relevant authorities of that Member State in seeking authorisation to verify the right of a vessel to fly its flag or to take
any of the measures laid down in paragraph 1 and 1a.
|
|
11. Where
the grounds for suspecting that a ship is engaged in the smuggling of
migrants on the high seas prove to be unfounded or the participating unit
does not have jurisdiction to act, but there remains a reasonable suspicion
that the ship is carrying persons intending to reach the border of a Member
State and to circumvent checks at border crossing points, that ship shall continue
to be monitored. The International Coordination Centre shall communicate
information about the ship to the National Coordination Centre of the Member
States towards which it is directed.
|
|
11. Where
the grounds for suspecting that a vessel is engaged in the smuggling of migrants on the high seas prove to
be unfounded or the participating unit does not have jurisdiction to act, but
there remains a reasonable suspicion that the vessel is carrying persons intending to reach the border of a Member
State and to circumvent checks at border crossing points, that vessel shall continue to be monitored. The International Coordination
Centre shall communicate information about the vessel to the National Coordination Centre of the Member States towards
which it is directed.
|
Agreement on:
11. Where the
grounds for suspecting that a vessel is
engaged in the smuggling of migrants on the high seas prove to be unfounded
or the participating unit does not have jurisdiction to act, but there
remains a reasonable suspicion that the vessel is carrying persons intending to reach the border of a Member
State and to circumvent checks at border crossing points, that vessel shall continue to be monitored. The International Coordination
Centre shall communicate information about the vessel to the National Coordination Centre of the Member States towards
which it is directed.
|
|
Article 8
Interception in the contiguous zone
|
|
Article 8
Interception in the
contiguous zone
|
|
|
|
AM 43
|
|
|
|
1. In
the zone contiguous to the territorial sea of a Member State, which is a host
Member State or a participating Member State, the measures laid down in
Article 6(1) shall be taken in accordance with Article 6(2).
|
1. In the formally proclaimed zone contiguous to the territorial sea of a Member State, which
is a host Member State or a participating Member State, the measures laid
down in Article 6(1) shall be taken in accordance with Article 6(1b)
and (2) and Article 4.
|
1. In the zone contiguous to the
territorial sea of a Member State, which is a host Member State or a neighbouring
participating Member State, the measures laid
down in Article 6(1) shall be taken in accordance with Article 6(2). Such
authorisation may only be given for measures that are necessary to prevent
the infringement of laws and regulations within that Member StateÕs territory
or territorial sea.
|
PRES draft compromise (technical modifications resulting
from the split in Article 6: inserting to the Council text the reference to
Article 6(1a)):
1. In the zone contiguous to the
territorial sea of a Member State, which is a host Member State or a neighbouring
participating Member State, the measures laid
down in Article 6(1) and 6(1a) shall
be taken in accordance with those paragraphs and with Article 6(2). Such authorisation may only be given for
measures that are necessary to prevent the infringement of laws and
regulations within that Member StateÕs territory or territorial sea.
|
|
2. The
measures laid down in Article 6(1) shall not be taken in the contiguous zone
of a Member State that is not participating in the sea operation without the
authorisation of that Member State. The International Coordination Centre
shall be informed of any communication with that Member State and of the
subsequent course of action authorised by that Member State.
|
|
2. The measures
laid down in Article 6(1) shall not be taken in the contiguous zone of a
Member State that is not participating in the sea operation without the
authorisation of that Member State. The International Coordination Centre
shall be informed of any communication with that Member State and of the
subsequent course of action authorised by that Member State. If that
Member State does not give its authorisation and where there is a reasonable
suspicion that the vessel is carrying persons intending to reach the border
of a Member State, Article 7(11) shall apply.
|
PRES draft compromise (technical modifications resulting
from the split in Article 6: inserting to the Council text the reference to
Article 6(1a)):
2. The
measures laid down in Article 6(1) and 6(1a) shall not be taken in the contiguous zone of a
Member State that is not participating in the sea operation without the
authorisation of that Member State. The International Coordination Centre
shall be informed of any communication with that Member State and of the
subsequent course of action authorised by that Member State. If that
Member State does not give its authorisation and where there is a reasonable
suspicion that the vessel is carrying persons intending to reach the border
of a Member State, Article 7(11) shall apply.
|
|
3. Where a stateless ship is transiting the contiguous zone, Article
7(8) shall apply.
|
|
3. Where a stateless vessel is
transiting the contiguous zone, Article 7(8) shall apply.
|
Agreement on:
3. Where a stateless vessel is
transiting the contiguous zone, Article 7(8) shall apply.
|
|
Article 9
Search and rescue situations
|
|
Article 9
Search and rescue
situations
|
EP considers the Presidency
proposals on this Article in a favourable way.
|
|
|
AM 44
|
|
|
|
|
-1. Before a sea operation, Member
States shall ensure that their participating units will comply with the
obligation to render assistance to any ship or person in distress at sea, in
accordance with applicable provisions of international Conventions governing
search and rescue and fundamental rights. They shall do so regardless of the
nationality or status of such a person or the circumstances in which that
person is found.
|
|
PRES draft compromise combining AM 44 with paragraph 1:
Member States shall observe their obligation to render
assistance to any vessel or person in distress at sea and during a sea
operation, they shall ensure that
their participating units comply with that obligation, in accordance with
international law and in respect of fundamental rights. They shall do so regardless of the nationality or status of such a
person or the circumstances in which that person is found.
|
|
1. During
a sea operation, participating units shall render assistance to any ship or
person in distress at sea. They shall do so regardless of the nationality or
status of such a person or the circumstances in which that person is found.
|
1. During a sea operation, participating
units shall render assistance to any ship or person in distress at sea. They
shall do so regardless of the nationality or status of such a person or the
circumstances in which that person is found.
|
1. During a sea operation, Member
States shall observe their obligation to
render assistance to any vessel or
person in distress at sea and shall ensure that their participating
units comply with that obligation, in
accordance with international law and in respect of fundamental rights. They shall do so regardless of the
nationality or status of such a person or the circumstances in which that
person is found.
|
See PRES draft compromise for AM 44.
|
|
|
|
2. For
the purpose of dealing with search and rescue situations that may occur
during a sea operation, the operational plan may contain details adapted to
the circumstances of the sea operation concerned and it shall contain, in
accordance with relevant international law including that on search
and rescue, at least the following elements:
|
PRES draft compromise (to be
read together with the closing phrase added at the end of paragraph 2):
2. For the purpose of dealing
with search and rescue situations that may occur during a sea operation, the
operational plan shall contain, in accordance with relevant international
law including that on search and rescue, at least the following provisions:
|
|
2. When
facing, in the course of a sea operation, a situation of uncertainty, alert
or distress as regards a ship or any person on board, the participating unit shall
forward as soon as possible all available information to the Rescue
Coordination Centre responsible for the search and rescue region in which the
situation occurs.
|
2. When
facing, in the course of a sea operation, a situation of uncertainty, alert
or distress as regards a ship or any person on board, the participating unit
shall forward as soon as possible all available information to the Rescue
Coordination Centre responsible for the search and rescue region in which the
situation occurs.
|
(a) When
facing, in the course of a sea operation, a situation of uncertainty, alert
or distress as regards a vessel or any
person on board, the participating units shall consider and promptly
forward all available information to the Rescue Coordination Centre
responsible for the search and rescue region in which the situation occurs and
they shall place themselves at the disposal of that Rescue Coordination
Centre.
|
PRES draft compromise is to
use the language of point 4.2.3. SAR:
(a) When, in the course of a sea
operation, the participating units have reason to believe that they are
facing a phase of uncertainty, alert or distress as regards a vessel or any person on board, they shall promptly forward all
available information to the Rescue Coordination Centre responsible for the
search and rescue region in which the situation occurs and they shall
place themselves at the disposal of that Rescue Coordination Centre.
|
|
|
|
(b) The participating units shall
inform the International Coordination Centre as soon as possible of any
contact with the Rescue Coordination Centre and of the course of action taken
by them.
|
PRES suggests to maintain the Council
text
|
|
|
3. To assist in determining
the appropriate operating procedures, the following emergency situations
shall be distinguished by the participating units:
|
|
PRES suggests as a compromise
to combine the structure of paragraphs 3 to 5, as proposed by the Commission,
with the definitions proposed in the EP text:
|
|
3. A
ship or the persons on board shall be considered to be in a situation of
uncertainty in particular when:
|
(a) [...] situation of uncertainty [...]:
|
Deleted
|
(c) A
vessel or the persons on board shall be considered to be in a phase of
uncertainty in particular:
|
|
(a) doubt
exists as to the safety of a ship or the persons on board; or
|
(i) when a person has been
reported as missing or a ship is overdue; or
|
Deleted
|
(i) when a person has been
reported as missing or a vessel is overdue; or
|
|
(b) there
is lack of information concerning progress or position of a ship.
|
(ii) when a person or a ship has
failed to make an expected position or safety report.
|
Deleted
|
(ii) when a person or a vessel has
failed to make an expected position or safety report.
|
|
4. A
ship or the persons on board shall be considered to be in a situation of
alert in particular when:
|
(b) [...] situation of alert:
|
Deleted
|
(d) A
vessel or the persons on board shall be considered to be in a phase of
alert in particular:
|
|
(a) apprehension
exists as to the safety of a ship or the persons on board because of
information that serious difficulties exist, but not to the extent that a
distress situation is likely; or
|
(i) when,
following a situation of uncertainty, attempts to establish contact with a
person or a ship have failed and inquiries addressed to other appropriate
sources have been unsuccessful; or
|
Deleted
|
(i) when,
following a situation of uncertainty, attempts to establish contact with a
person or a vessel have failed and inquiries addressed to other appropriate
sources have been unsuccessful; or
|
|
(b) there
is continued lack of information concerning progress or position of a ship.
|
(ii) when information has been
received indicating that the operating efficiency of a ship is impaired, but
not to the extent that a distress situation is likely.
|
Deleted
|
(ii) when information has been
received indicating that the operating efficiency of a vessel is impaired,
but not to the extent that a distress situation is likely.
|
|
5. A
ship or the persons on board shall be considered to be in a situation of
distress in particular when:
|
(c) [...] situation of distress [...]:
|
Deleted
|
(e) A
vessel or the persons on board shall be considered to be in a phase of
distress in particular:
|
|
(a) positive
information is received that a ship or a person on board is in danger and
needs immediate assistance; or
|
(i) when positive information is received that a person or a ship is in danger and in need
of immediate assistance; or
|
Deleted
|
(i) when positive information
is received that a person or a vessel is in danger and in need of immediate
assistance; or
|
|
(b) attemps
to establish contact with the ship fail and unsuccessful inquiries point to
the probability that the ship is in distress; or
|
(ii) when, following a situation of
alert, further unsuccessful attempts to
establish contact with a person or a
ship and more widespread unsuccessful
inquiries point to the probability that a distress situation exists;
or
|
Deleted
|
(ii) when, following a situation of
alert, further unsuccessful attempts to establish contact with a person or a
vessel and more widespread unsuccessful inquiries point to the probability
that a distress situation exists; or
|
|
(c) information
is received which indicates that the operating efficiency of the ship has
been impaired to the extent that a distress situation is likely.
|
(iii) when
information is received which indicates that the operating efficiency of a ship has been impaired to the extent that a distress situation is
likely.
|
Deleted
|
(iii) when information is received which
indicates that the operating efficiency of a vessel has been impaired to the
extent that a distress situation is likely.
|
|
6. When assessing the
situation for the purposes of paragraphs 3 to 5, participating units shall
take all relevant elements into account, including:
|
4. When
assessing the situation for the purposes of paragraph 3, participating units shall take all relevant elements into
account and communicate their assessment to the responsible Rescue
Coordination Centre, including in
particular:
|
(c) For
the purpose of considering whether the vessel is in the situation of uncertainty, alert or distress participating units shall forward
all relevant information and
observations to the responsible Rescue Coordination Centre including:
|
PRES draft compromise:
(f) Participating units shall, for the
purpose of considering whether the vessel is in a phase of uncertainty, alert or distress, take into account and forward all relevant information
and observations to the responsible Rescue Coordination Centre including:
|
|
(a) the
existence of a request for assistance;
|
(a) the existence of a request for
assistance;
|
(i) the
existence of a request for assistance, although such a request shall
not be the sole factor for determining the existence of a distress situation;
|
Agreement on:
(i) the existence of a request for
assistance, although such a request shall not be the sole factor for
determining the existence of a distress situation;
|
|
(b) the
seaworthiness of the ship and the likelihood that the ship will not reach its
final destination;
|
(b) the seaworthiness of the ship and the
likelihood that the ship will not reach its final destination;
|
(ii) the
seaworthiness of the vessel and the
likelihood that the vessel will not
reach its final destination;
|
Agreement on:
(ii) the seaworthiness of the vessel and the likelihood that the vessel will not reach its final destination;
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|
(c) the
number of passengers in relation to the type and condition of the ship;
|
(c) the number of passengers in relation
to the type and condition of the ship (overloading);
|
(iii) the
number of persons on board in relation
to the type and condition of the vessel;
|
Agreement on:
(iii) the number of persons on board in relation to the type and condition of the vessel;
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|
(d) the
availability of necessary supplies such as fuel, water, food to reach a
shore;
|
(d) the availability of necessary supplies
(fuel, water, food, etc) to reach a shore;
|
(iv) the
availability of necessary supplies such as fuel, water, food to reach a
shore;
|
Agreement on:
(iv) the availability of necessary supplies such as
fuel, water, food to reach a shore;
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|
(e) the
presence of qualified crew and command of the ship;
|
(e) the presence of qualified crew and
command of the ship;
|
(v) the
presence of qualified crew and command of the vessel;
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Agreement on:
(v) the presence of qualified crew and
command of the vessel;
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|
(f) the
availability and capability of safety, navigation and communication
equipment;
|
(f) the availability [...] of safety, navigation and communication equipment;
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(vi) the
availability and capability of safety, navigation and communication
equipment;
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Agreement on:
(vi) the availability and capability of safety,
navigation and communication equipment;
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|
(g) the
presence of passengers in urgent need of medical assistance;
|
(g) the presence of passengers in urgent
need of medical assistance;
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(vii) the presence of persons
on board in urgent need of medical
assistance;
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Agreement on:
(vii) the presence of persons on board in urgent need of medical assistance;
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(h) the
presence of deceased passengers;
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(h) the presence of deceased passengers;
|
(viii) the presence of
deceased persons on board;
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Agreement on:
(viii) the presence of deceased persons on board;
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(i) the
presence of pregnant women or children;
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(i) the presence of pregnant women
or children;
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(ix) the
presence of pregnant women or children;
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Identical.
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|
(j) the
weather and sea conditions, including weather and
marine forecasts.
|
(j) the weather and sea conditions [...].
|
(x) the
weather and sea conditions, including weather and marine forecasts.
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Agreement on:
(x) the weather and sea conditions, including
weather and marine forecasts.
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7. Participating
units shall promptly communicate their assessment of the situation to the
responsible Rescue Coordination Centre. While awaiting instructions from the
Rescue Coordination Centre, participating units shall take all the
appropriate measures to ensure the safety of the persons concerned.
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5. [...]
While awaiting instructions from the Rescue
Coordination Centre, participating units shall take all the appropriate
measures to ensure the safety of the persons concerned.
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(d) [É]
While awaiting instructions from the Rescue
Coordination Centre, participating units shall take all the appropriate
measures to ensure the safety of the persons concerned.
|
EP and Council texts identical,
subject to renumbering (becoming now point (g)).
|
|
8. The existence of a distress situation shall not be
exclusively dependent on or determined by an actual request for assistance. Where,
despite a ship being perceived to be in a distress situation, the persons on
board refuse to accept assistance, the participating unit shall inform the
Rescue Coordination Centre and continue to fulfil a duty of care by surveying
the ship at a prudent distance and by taking any measure necessary for the
safety of the persons concerned, while avoiding to take any action that might
aggravate the situation or increase the chances of injury or loss of life.
|
6. The
existence of a distress situation shall not be exclusively dependent on or
determined by an actual request for assistance. In cases where, despite a ship being perceived to be in a distress situation,
the persons on board refuse to accept assistance, the participating unit
shall inform the Rescue Coordination Centre and continue to fulfil a duty of
care [...], taking any measure
necessary for the safety of the persons concerned, while avoiding to take any
action that might aggravate the situation or increase the chances of injury
or loss of life.
|
(e) [É]
Where [É] a vessel is considered to
be in a situation of uncertainty, alert or distress but the persons on board
refuse to accept assistance, the participating unit shall inform the responsible Rescue Coordination Centre and follow its instructions. The
participating unit shall continue to fulfil a
duty of care by surveying the vessel [É] and by taking any measure necessary for the safety of the persons
concerned, while avoiding to take any action that might aggravate the
situation or increase the chances of injury or loss of life.
|
Agreement on:
(h) [É] Where
[É] a vessel is considered to be in a situation of uncertainty, alert or distress but the persons on board
refuse to accept assistance, the participating unit shall inform the responsible Rescue Coordination Centre and follow its instructions. The
participating unit shall continue to fulfil a
duty of care by surveying the vessel [É] and by taking any measure necessary for the safety of the persons
concerned, while avoiding to take any action that might aggravate the
situation or increase the chances of injury or loss of life.
|
|
9. Where the Rescue Coordination Centre of the third country
responsible for the search and rescue region does not respond to the
notification transmitted by the participating unit, the latter shall contact
the Rescue Coordination Centre of the host Member State unless another Rescue
Coordination Centre is better placed to assume coordination of the search and
rescue situation.
|
7. In
cases where the Rescue Coordination Centre of
the third country responsible for the search and rescue region does not
respond to the notification transmitted by the participating unit, the latter
shall contact the Rescue Coordination Centre of the host Member State [...].
|
(f) Where
the Rescue Coordination Centre of the third country responsible for the
search and rescue region does not respond to the notification transmitted by
the participating unit, the latter shall contact the Rescue Coordination
Centre of the host Member State unless that participating unit
considers that another internationally
recognised Rescue Coordination Centre is better [É] able to assume coordination of the search and rescue situation.
|
PRES suggests to keep the
Council text subject to renumbering (becoming now point (i)).
|
|
|
|
|
PRES draft compromise is to
add closing provision of paragraph 2 (to replace the text deleted from
Article 9(2):
The operational plan may
contain details adapted to the circumstances of the sea operation concerned.
|
|
10. The participating units shall inform the International
Coordination Centre as soon as possible of any contact with the Rescue
Coordination Centre and of the course of action taken by them.
|
8. [...]
The International Coordination Centre shall
be informed as soon as possible of any contact
with the Rescue Coordination Centre and of the course of action taken by the
participating unit.
|
Deleted
|
Agreement toshift the paragraph to
Article (9(2)(b).
|
|
11. Where
the ship cannot or can no longer be considered as being in a distress
situation or the search and rescue operation has been concluded, the
participating unit shall, in consultation with the International Coordination
Centre, resume the sea operation.
|
9. Where
the ship cannot or can no longer be considered as being in a distress
situation or the search and rescue operation has been concluded, the
participating unit shall, in consultation with the International Coordination
Centre, resume the sea operation.
|
3. Where
[É] the search and rescue situation has been concluded, the participating unit shall, in consultation
with the International Coordination Centre, resume the sea operation.
|
Agreement on:
3. Where [É] the search and rescue situation has been concluded, the participating unit shall, in consultation
with the International Coordination Centre, resume the sea operation.
|
|
Article 10
Disembarkation
|
|
Article 10
Disembarkation
|
EP considers the Presidency
proposals on this Article in a favourable way but insists on its AM 48
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AM 45
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1. The
modalities for the disembarkation of the persons intercepted or rescued in a
sea operation shall be set out in the operational plan. Those modalities for
disembarkation shall not have the effect of imposing obligations on Member
States not participating in the sea operation unless they expressly provide authorisation
for measures to be taken in their territorial sea or contiguous zone in
accordance with Article 6(4) or Article 8(2).
|
1. The modalities for the
disembarkation of the persons intercepted or rescued in a sea operation shall
be set out in the operational plan in accordance with Article 4. Those modalities for disembarkation shall not have the effect of
imposing obligations on Member States not participating in the sea operation
unless they expressly provide authorisation for measures to be taken in their
territorial sea or contiguous zone in accordance with Article 6(4) or Article
8(2). Modalities for disembarkation may specify that disembarkation
does not necessarily imply sole responsibility for the State on whose
territory persons rescued at sea are disembarked.
|
1. The operational plan may
contain details adapted to the circumstances of the sea operation concerned
and it shall contain, in accordance with international law and in respect of
fundamental rights, at least the following
modalities for the disembarkation of the persons intercepted or rescued in a
sea operation [É].
|
PRES draft compromise (to be
read together with the closing phrase added at the end of paragraph 1):
1. The operational
plan shall contain, in accordance with international law and in respect of
fundamental rights, at least the following
modalities for the disembarkation of the persons intercepted or rescued in a
sea operation.
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|
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AM 46
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2. In
the case of interception in the territorial sea or the contiguous zone as
laid down in Article 6(2)
or Article 8(1), disembarkation shall take
place in the host Member State or in the participating Member State in whose
territorial waters or contiguous zone the interception takes place.
|
2. In the case of interception in
the territorial sea or the contiguous zone as laid down in Article 6(2) or
Article 8(1), disembarkation shall take place in the host Member State or in
the participating Member State in whose territorial sea or contiguous zone the interception takes place.
|
(a) In
the case of interception in the territorial sea or the contiguous zone as
laid down in Article 6(2) or (4) or in
Article 8(1) or (2), disembarkation
shall take place in the coastal Member State, without prejudice to
Article 6(1)(e).
|
Agreement on:
(a) In the case of interception in the
territorial sea or the contiguous zone as laid down in Article 6(2) or
(4) or in Article 8(1) or (2), disembarkation shall take place in the coastal Member
State, without prejudice to Article 6(1)(e).
Agreement to add a definition of
"coastal Member State" in Article 2(15)
PRES proposal for the definition:
15. Ôcoastal Member StateÕ
means a Member State in whose territorial sea or contiguous zone an
interception takes place.
|
|
|
AM 47
|
|
|
|
In the case of interception
in the territorial sea or the contiguous zone as laid down in Article 6(4) or
Article 8(2), disembarkation shall take place in the Member State in whose territorial waters or contiguous zone the
interception takes place.
|
In the case of interception in the territorial sea or the
contiguous zone as laid down in Article 6(4) or Article 8(2), disembarkation
shall take place in the Member State in whose territorial sea or contiguous zone the interception takes place.
|
Deleted
|
Agreement to delete (incorporated
into Article 10(1)(a)).
|
|
|
AM 48
|
|
|
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|
2a. Before disembarkation, the persons
intercepted or rescued in the sea operation shall receive clear information,
in a language which they understand or may reasonably be presumed to
understand, on where disembarkation will take place. Particular attention
shall be given to unaccompanied minors.
|
|
PRES suggests not to accept EP
text.
|
|
3. Subject
to the application of Article 4, in the case of interception on the high seas
as laid down in Article 7, disembarkation may take place in the third country
from which the ship departed. If that is not possible, disembarkation shall
take place in the host Member State.
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|
(b) Subject
to the application of Article 4, in the case of interception on the high seas
as laid down in Article 7, disembarkation may take place in the third country
from which the vessel is assumed
to have departed. If that is not
possible, disembarkation shall take place in the host Member State.
|
PRES suggests to keep the Council
text.
|
|
|
AM 49
|
|
|
|
4. In the case of search and rescue situations
as laid down in Article 9, the participating
units shall cooperate with the responsible Rescue Coordination Centre to
provide a suitable port or place of safety for the rescued persons and to
ensure their rapid and effective disembarkation.
|
4. Subject to the application
of Article 4, in the case of search and
rescue situations as laid down in Article 9, the participating units shall
cooperate with the responsible Rescue Coordination Centre to provide a
suitable port or place of safety for the rescued persons and to ensure their
rapid and effective disembarkation.
|
(c) In
the case of search and rescue situations as laid down in Article 9 and
without prejudice to the responsibility of the Rescue Coordination Centre to
identify the most appropriate place for disembarking the rescued persons, the host Member State and the participating Member States shall cooperate with the responsible Rescue Coordination Centre
to identify a place of safety and, when the responsible Rescue
Coordination Centre designates such a place of safety, they shall ensure that the rescued persons are rapidly and effectively disembarked.
|
PRES draft compromise (to be
read together with PRES draft compromise for Article 4(4c)):
(c) In
the case of search and rescue situations as laid down in Article 9 and
without prejudice to the responsibility of the Rescue Coordination Centre the host Member State and the participating Member States shall cooperate with the responsible Rescue Coordination Centre
to identify a place of safety and, when the responsible Rescue
Coordination Centre designates such a place of safety, they shall ensure that disembarkation of the rescued persons is carried
out rapidly and effectively.
|
|
Without prejudice to the
responsibility of the Rescue Coordination Centre, the
host Member State and the participating Member States shall as soon as
possible ensure that a port or place of safety is identified taking into
account relevant factors, such as distances to the closest ports or places of
safety, risks and the circumstances of the case.
|
|
[É]
|
PRES suggests to keep the Council
text.
|
|
Where
the participating unit is not released of its obligation referred to in
Article 9(1) as soon as reasonably practicable, taking into account the
safety of the rescued persons and that of the participating unit itself, it
shall be authorised to disembark the rescued persons in the host Member
State.
|
|
If it is not possible to arrange for the participating unit to be released of its obligation,
referred to in Article 9(1), as soon as
reasonably practicable, taking into account the safety of the rescued persons
and that of the participating unit itself, it shall be authorised to
disembark the rescued persons in the host Member State.
|
PRES suggests to keep the Council
text.
|
|
|
|
These modalities for disembarkation shall not have the
effect of imposing obligations on Member States not participating in the sea
operation unless they expressly provide authorisation for measures to be
taken in their territorial sea or contiguous zone in accordance with Article
6(4) or Article 8(2).
|
Agreement on (moved from paragraph
1):
These modalities for
disembarkation shall not have the effect of imposing obligations on Member
States not participating in the sea operation unless they expressly provide
authorisation for measures to be taken in their territorial sea or contiguous
zone in accordance with Article 6(4) or Article 8(2).
|
|
|
|
|
PRES draft compromise is to
add closing provision of paragraph 1 (to replace the text deleted from
Article 10(1):
The operational plan may
contain details adapted to the circumstances of the sea operation concerned.
|
|
|
AM 50
|
|
|
|
5. The
participating units shall inform the International Coordination
Centre of the presence of any persons within the meaning of Article 4(1), and
the International Coordination Centre shall convey that information to the
competent national authorities. On the
basis of that information, the operational plan should determine which
follow-up measures may be taken.
|
5. The participating units shall
inform the International Coordination Centre of the presence of any persons
within the meaning of Article 4, and
the International Coordination Centre shall convey that information to the
competent national authorities. On the basis of that information, the
operational plan shall determine which
follow-up measures may be taken.
|
2. The
participating units shall inform the International Coordination Centre of the
presence of any persons within the meaning of Article 4(1), and the
International Coordination Centre shall convey that information to the
competent national authorities of the country where
disembarkation takes place.
[É] The operational plan shall contain the contact details of those competent national
authorities, which shall take appropriate follow-up measures.
|
PRES suggests to keep the Council
text.
|
|
|
AM 51
|
|
|
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|
Article 10a
|
|
|
|
|
1. Each Member State requires
the master of a ship flying its flag to proceed with all possible speed to
the rescue of persons in distress at sea and to render all possible
assistance to them regardless of their nationality or state or of the
circumstances in which these persons are found, provided that he can do so
without serious danger to the ship, the crew or the passengers. Members
States will not take any measures, including criminal procedures and
sanctions, against ship masters who have rescued persons in distress and
brought them to a harbour on their territory.
|
|
PRES suggests not to accept AM 51,
because:
-
1st sentence is covered by Council
text for Recital 7, and
-
2nd sentence is covered by PRES
draft compromise for Recital 7 (AM 13).
|
|
|
2. The
AgencyÕs Fundamental Rights Strategy and the activities of the Fundamental
Rights Officer and the Consultative Forum, as provided for in Article 26a of
Regulation 2007/2004, shall apply to sea operations as governed by this
Regulation.
|
|
PRES suggests not to accept EP
text – covered by the Frontex Regulation.
|
|
|
|
Article 10a
Amendments to
Regulation (EC) No 2007/2004
|
Agreement on:
Article 10a
Amendments
to Regulation (EC) No 2007/2004
|
|
|
|
Regulation (EC) No 2007/2004 is hereby
amended as follows:
|
Regulation (EC) No 2007/2004 is
hereby amended as follows:
|
|
|
|
(1) in Articles 3a(1) and 8e(1), at
the end of point (j) respectively, the following phrase is added:
"in that regard the operational plan shall be
established in accordance with the provisions of the Regulation (EU) No
É/2014 of the European Parliament and
of the Council of É establishing rules for the surveillance of the external
sea borders in the context of operational cooperation coordinated by the
European Agency for the Management of Operational Cooperation at the External
Borders of the Members States of the European Union (OJ L É)";
|
(1) in Articles 3a(1) and 8e(1), at the
end of point (j) respectively, the following phrase is added:
"in that regard the
operational plan shall be established in accordance with the provisions of
the Regulation (EU) No É/2014 of the
European Parliament and of the Council of É establishing rules for the
surveillance of the external sea borders in the context of operational
cooperation coordinated by the European Agency for the Management of
Operational Cooperation at the External Borders of the Members States of the
European Union (OJ L É)";
|
|
|
AM 52
|
|
|
|
|
Article 10b
Specialised
branches
|
|
|
|
|
Pursuant to Article 16 of Regulation (EU) No 2004/2007, the
Agency shall evaluate the need to set up specialised branches, for all
aspects relating to the surveillance of maritime borders, as operational
offices in areas subject to significant migration flows, including irregular
migration and in particular in the Mediterranean, to improve coordination
between Member States and ensure solidarity and responsibility-sharing
between them, thereby strengthening the operational capacity of the Agency.
|
|
PRES suggests not to accept EP
text – covered by the Frontex Regulation.
|
|
|
AM 53
|
|
|
|
|
Article 10c
Solidarity mechanisms
|
|
|
|
|
1. A Member State faced with a
situation of urgent and exceptional pressure at its external border shall be
able to request:
|
|
PRES draft compromise is to put this
Article as a Recital, except for third bullet point of paragraph 2 and
paragraph 3, for which PRES suggests deletion.
PRES considers that AM 2, 3, 12, 15
and 53 need to be examined together as part of an overall compromise.
|
|
|
– the deployment
of European Border Guard Teams in accordance with Article 8a of Regulation
(EC) No 2007/2004 to provide rapid operational assistance to the Member
State;
|
|
|
|
|
– the Agency for
technical and operational assistance in accordance with Article 8 of
Regulation (EC) No 2007/2004 in order to obtain assistance on matters of
coordination between Members States and/or the deployment of experts to
support the competent national authorities;
|
|
|
|
|
– emergency
assistance under Article 14 of Regulation XXXX [ISF borders] to address urgent
and specific needs in the event of an emergency situation.
|
|
|
|
|
2. A Member State subject to
strong migratory pressure which places urgent demands on its reception
facilities and asylum systems shall be able to request:
|
|
|
|
|
– the European
Asylum Support Office for the deployment of an asylum support team in
accordance with Article 13 of Regulation (EU) No 439/2010 of the European
Parliament and of the Council to provide expertise, in particular in relation
to interpreting services, information on countries of origin and knowledge of
the handling and management of asylum cases;
|
|
|
|
|
– emergency
assistance under Article 22 of Regulation XXX ([Asylum and Migration Fund] to
address urgent and specific needs in the event of an emergency situation;
|
|
|
|
|
– the Commission
to check the willingness of the Member States to accommodate asylum seekers.
|
|
PRES suggests not to accept EP
text.
|
|
|
3. With a view to the proper
implementation of this Article, the Commission shall continuously monitor the
facilities used for the reception of asylum seekers in the Member States and,
in the cases described in this article, once it has verified how many places
are actually available in such facilities, shall propose a fair
redistribution of asylum seekers between Member States, in accordance with
Article 80 of the TFEU.
|
|
PRES suggests not to accept EP
text.
|
|
|
AM 54
|
|
|
|
|
Article 10d
Report
|
|
|
|
|
1. The Agency shall submit a
report to the European Parliament, the Council and the Commission on the
implementation of this Regulation by ...* and every two years
thereafter.
|
|
PRES considers that this issue
requires further reflection.
Commission suggestion:
1. The
Agency shall submit a report to the European Parliament, the Council and the
Commission on the implementation practical application of this
Regulation by ... * and every two years thereafter.
|
|
|
2. The report shall include a
description of the procedures put in place by the Agency to implement this
Regulation during sea operations and an assessment of the practical
application of this Regulation, including any incidents which may have taken
place. It shall provide detailed information on compliance with fundamental
rights, and on the impact on those rights, and shall contain an overview of
any reasons expressed by intercepted persons, under Article 4(3), and of
measures taken subsequently.
|
|
Commission suggestion:
2. The
report shall include a description of the procedures put in place by the
Agency to implement apply this Regulation during sea operations
and an assessment of information on the practical
application of this Regulation in practice, including any incidents
which may have taken place. It shall provide detailed information on
compliance with fundamental rights, and on the impact on those
rights, and shall contain an overview of any reasons expressed by
intercepted persons, under Article 4(3), and of measures taken subsequently
any incidents which may have taken place.
|
|
CHAPTER IV
FINAL PROVISIONS
|
|
CHAPTER IV
FINAL PROVISIONS
|
|
|
|
|
Article 10b
Effects of Decision 2010/252/EU
|
|
|
|
|
Decision 2010/252/EU shall cease to
produce effects from the date of entry into force of this Regulation.
|
PRES suggests to keep the
Council text.
|
|
Article 11
Entry into force
|
|
Article 11
Entry into force
|
|
|
This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the European
Union.
This Regulation shall be binding in its entirety and directly
applicable in the Member States in accordance with the Treaties.
|
|
This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the European
Union.
This Regulation shall be binding in its entirety and directly
applicable in the Member States in accordance with the Treaties.
|
Identical.
|
|
Done at Brussels,
For the
European Parliament For
the Council
The President The
President
|
|
Done at Brussels,
For the
European Parliament For
the Council
The President
|
|
