WIKI-LEX : The “new” EU Border Guard proposal

FOREWORD The aim of a wiki-lex exercise launched by Statewatch and FREE Group is to make easier monitoring the legislative preparatory work at EU level notably when so called “trilogues” start and it is not clear who is proposing what in view of a possible early compromise already when the European Parliament adopt its formal position (so called “first reading agreement”) or later when the Council in turn adopt its own position and the EP do not submit new amendments (“early second reading agreements”). NOTA BENE : THIS POST IS ALSO PUBLISHED AS AN INDEPENDENT PAGE ON THIS BLOG

BACKGROUND

The idea of establishing an European System of Border Guards (ESBG) has to be seen in the context of the long-term quest/search for an appropriate governance structure to ensure the management of EU external borders. The process had started with the new competences granted to the EU by the Amsterdam Treaty of 1997 as re-indorsed by the Tampere Conclusions of 1999 pushed forward into the limelight of public attention by the events of 9/11 and debated during the negotiations of the draft Constitutional Treaty [1] and thereafter mirrored in the Lisbon Treaty.

Since then, Article 77 (1)(c) TFEU codified at Treaty level the objective of “..the gradual introduction of an integrated management system for external borders.“ Article 80 of the same Treaty made clear that: “The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States”.

It is worth noting that until now the notion of “integrated management system for external borders” (IBM) has not yet been translated in the EU legislation even if the Council has already in its 2006 Conclusions highlighted some of its possible composing elements [2].  Yet still – despite the need unanimously recognized by the European institutions to create a “mechanism or common services to control external borders” – subsequent studies undertaken by Commission and Council were not able to conclusively resolve the question of whether there should be more of an “integrated force model” or rather a “network of national border forces”[3].

The issue came back on the Institutions agenda in 2013 when the new governance framework of Schengen  as been adopted and a closer interaction between national Border Guards and Frontex has been established in the framework of the Rapid Border Intervention Team  in specific sections of the borders and overall in the framework of EUROSUR.

Already at that time the need of more coordinated interventions and procedure in case of emergency in case of extraordinary pressure on specific sections of the Schengen external borders was debated and a first set of amendments was adopted in the Schengen Border Code by charging FRONTEX  of regularly monitor the EU external borders as well as detecting the possible external threats. In parallel with this security-led evolution the EU has also adopted, notwithstanding the reservations of some Member States (FR, Malta, …)  the first set of rules for search and rescue in international waters in the framework of joint operations coordinated by Frontex (EU Regulation 656/14) by acknowledging the importance of that agency in protecting fundamental rights (such as the right to life).

THE NEW  LEGISLATIVE PROCEDURE

(A) The COMMISSION PROPOSAL 

In December 2015, the European Commission presented a proposal to establish a European Border and Coast Guard Agency (COM(2015) 671 final, 15 December 2015). If adopted by the co-legislator the new text will repeal prevous legislation on Frontex:Regulation (EC) No 2007/2004 (amended in 2011), Regulation (EC) No 863/2007 and Council Decision 2005/267/EC. See also a draft version and Annex I to the proposal: correlation between the proposal and Regulation 2007/2004.

The Commission objective “in order to ensure a European integrated border management of the EU’s external borders, with a view to managing migration effectively and ensuring a high level of security within the Union, while safeguarding the free movement of persons therein.” The Commission refers to its proposal as: “A decisive step towards an integrated management system for external borders“. The Commission’s proposal highlights a number of new features “reinforcing the role of the European Border and Coast Guard Agency, as compared to that of Frontex”:

  • a new “monitoring and risk analysis centre” to monitor “migratory flows towards and within the European Union and to carry out risk analysis which is to be applied by Member States”;
  • the deployment of Agency liaison officers to the Member States “so that the Agency can ensure proper and effective monitoring not only through risk analysis, information exchange and Eurosur, but also through its presence on the ground”;
  • affording the new Agency a “supervisory role” involving “a mandatory vulnerability assessment by the Agency to assess the capacity of Member States to face challenges at their external borders, including by means of an assessment of the equipment and resources of Member States as well as of their contingency planning”;
  • new procedures for “direct interventions” by the Agency “to deal with situations requiring urgent action where a Member State does not take the necessary corrective action in line with the vulnerability assessment or in the event of a disproportionate migratory pressure at the external borders”;
  • “enhanced tasks” including setting up and deploying “European Border and Coast Guard teams for joint operations and rapid border interventions”, setting up a technical equipment pool, coordinating work in “hotspot” areas, a stronger role in return, risk analysis, training an research;
  • acquisition of technical equipment by the Agency itself or in co-ownership with Member States and an obligation for Member States to complement the Agency’s equipment with equipment purchased at national level through the Internal Security Fund;
  • establishment of a Return Office within the Agency for the purpose of providing “operational reinforcement” to Member States “to effectively return illegally staying third-country nationals”;
  • participation in “research and innovation activities” related to technology for deployment at the EU’s borders (on this point the Commission’s proposal specifically mentions “Remotely Piloted Aircraft Systems” or drones);
  • increased cooperation with coast guard agencies and “third countries” (non-EU states);
  • greater powers for the collection, processing and exchange of personal data; and
  • establishment of a complaints mechanism to examine allegations of fundamental rights violations.

Although presented in response to the failure of the EU and its Member States to deal effectively and humanely with the continual movement of refugees towards and within Europe, plans for a more powerful EU border agency have been a long time coming. The first formal call for the establishment of such an agency came in 2001, leading to a study on the possibility of establishing a “European border police”. Another study on the same issue was published in June 2014.

In view of a possible swift adoption of the new Commission proposal Frontex have begun preparatory work for the introduction of the Regulation (pdf).

(B) Works in the European Parliament

11 January 2016: Artis Pabriks (EPP) appointed as rapporteur for LIBE “Shadow Rapporteurs”: NIEDERMÜLLER Péter (S&D), STEVENS Helga (ECR), GRIESBECK Nathalie (ALDE), ALBIOL GUZMÁN Marina (GUE/NGL), KELLER Ska (Verts/ALE), LEBRETON Gilles (ENF)

29 February 2016: LIBE debate on the proposal, press release: Migration: debate on Coast guard and external border checks(pdf) and see: MEPs question EU border guard proposal (EUobserver, link)

11 March 2016: Parliament discussions begin on new Border Package (The Parliament Magazine, link)

23 March 2016DRAFT REPORT on the proposal for a regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC

21 April 2016 : AMENDMENTS 102 – 343 , 344 – 636,  637 – 903 ,904 – 1175. Compromise amendments voted on May 30th (link to be established )

30 May 2016 :  VOTE OF LIBE MANDATE FOR THE TRILOGUE WITH THE COUNCIL .  According to statement linked with the draft report (NDR to be checked with the text voted by the Committee..)  “The rapporteur proposes a number of amendments which should enable the Agency to better achieve its objectives. It is crucial that the Agency in the future has the necessary border guards and equipment at its disposal whenever this is needed and especially that it is able to deploy them within a short timeframe when necessary. As regards the proposed procedure for situations at the border requiring urgent action (Article 18) the rapporteur considers that the proposal respects Member States’ sovereignty as it also foresees that the Member State concerned has to agree with the Agency on the operational plan and is also the one who has to issue instructions to the teams. The rapporteur, however, believes that decisions to act should be taken by the Council to strengthen the decision making process and further emphasise the sovereignty of the Member States. There also has to be a realistic procedure for action in case a Member States does not follow a decision of Council. In such cases it is no option to wait for the outcome of a court procedure. Instead, as a last resort in certain well described circumstances reintroducing control at certain internal borders might be necessary in order to protect the Schengen area as such. The rapporteur also considers that deploying liaison officers to all Member States with an external land or sea border will enable the Agency to better achieve its objectives and facilitate information exchange between the Member State and the Agency. In principle liaison officers should be deployed to all Member States as all Member States should participate in the further building-up of a common culture of high standards regarding border management. In recognition of the fact that Member States with only air borders are exposed to less risk, liaison officers do not necessarily have to be deployed to these Member States. The external borders will be constantly monitored with periodic risk analyses and mandatory vulnerability assessments to identify and address the weakness at the external borders. The rapporteur proposes to strengthen the provisions regarding the equipment for operations. A rapid reaction pool of border guards and a technical equipment pool will be at the disposal of the Agency aiming at their deployment in rapid border interventions within days. Given the increased role of the Agency in returns, the rapporteur clarifies that in this regard the objective of the agency is to assist the Member States with practical organisation of the return operations, without entering into the merits of return decisions issued by the Member States. Furthermore, given the stronger role and enhanced operational tasks of the Agency the rapporteur supports the establishment of a number of fundamental rights safeguards for the Agency. The rapporteur also considers that the Regulation should be “future proof”. With the focus currently being on contributing to the effective management of migration at the external borders of the Union, its role involves addressing potential threats at the Union’s external borders, including crime with cross- border dimension. As regards efficiency, the rapporteur proposes to delete the concept of the supervisory board and the multiannual programming exercise as both bear the inherent risk of being an obstacle to efficient action. Also the rapporteur considers that instead of operating through grants the Agency should use contracts when financing or co-financing activities. Grant schemes lack flexibility and are lengthy while contractual relation could be more efficient. The rapporteur also considers necessary to increase the accountability of the future Agency by providing for more information to be made available to Parliament and the general public. More transparency is necessary to increase legitimacy and to avoid false impressions as to the role of the Agency. Finally, the rapporteur subscribes to the view that adopting this Regulation is urgent in order to strengthen the control of the external border and thus return to a situation without border controls within the Schengen area.”

(C) Works in Council of the European Union

Some of the proposals made by the Commission have proven controversial with Member States, and they have subsequently been modified following discussions in various Council working parties.

25-26 January 2016: Informal meeting of the Justice and Home Affairs Ministers: Discussion Paper European Border and Coast Guard

9 February 2016: NOTE from: Presidency to: Working Party on Frontiers/Mixed Committee (5848/16): “Delegations will find in the Annex to this Note a series of Presidency draft compromise suggestions on the basis of the discussions that have taken place so far on the above proposal, as well as of the written contributions submitted by delegations.

12 February 2016: NOTE from: Presidency to: Delegations – Extracts concerning the establishment of the Frontex Return Office (6106/16): “The Working Party on Integration, Migration and Expulsion is invited to focus this consultation on return-related elements of the proposal with the understanding that the setting up and the functioning of the future Agency, also including its return-related activities, will be dealt with by the Working Party on Frontiers.

15-16 February 2016: Informal SCIFA (Strategic Committee on Immigration, Frontiers and Asylum) discussion paper: concerns mandatory national contributions to the agency, and the agency’s mandate in “the fight against cross-border crime and terrorism”.

17 February 2016: NOTE from: Presidency to: JHA Counsellors/Mixed Committee (6180/16): “Delegations will find in the Annex to this Note a series of Presidency draft compromise suggestions regarding most provisions in Chapter I and Chapter II Section II of the proposal

17 February 2016: NOTE from: Presidency to: Delegations – Extracts concerning the establishment of the Frontex Return Office (6106/1/16 REV 1): “The Working Party on Integration, Migration and Expulsion examined the proposal at its meeting on 29 January 2016. On the basis of the discussion and comments received from delegations, the Presidency wishes to discuss the attached revised version of the text at the JHA Counsellor’s meeting on 26 February 2016.” And see the original: 6106/16

19 February 2016: NOTE from: Presidency to: Working Party on Frontiers/Mixed Committee (6319/16): “Delegations will find attached a series of Presidency compromise suggestions on Section 3 of Chapter II of the Proposal [External Border Management], coming as a result of the discussions that took place during the last meeting of the Working Party meeting on 12 February 2016, as well as the meeting of the JHA Counsellors on 18 February 2016.” The new draft contained in this document dropped references to the rescue of people during joint operations.

22 February 2016: NOTE from: Presidency to: Permanent Representatives Committee/Council/Mixed Committee (6309/16): Sets out how the proposal has been dealt with in the Council up to 22 February, including through various “informal” meetings.

23 February 2016: NOTE from: Presidency to Permanent Representatives Committee/Council/Mixed Committee (6359/1/16 REV 1): “In the light of the above, the Presidency believes that the compromise text included in the Annex and in 6283/16 and 6330/16 has a sufficient degree of support by delegations. It invites the Committee to confirm this with a view to preparing the upcoming negotiations with the European Parliament on this file.”

26 February 2016: NOTE from: Presidency to JHA Counsellors/Mixed Committee (6483/16): “Delegations will find in the Annex to this Note further compromise suggestions submitted by the Presidency on Chapter II Section 3 and Chapter III, Sections 1 and 2, which will be examined at the JHA Counsellors meeting on 29 February 2016.

3 March 2016: NOTE from: Presidency to JHA Counsellors/Mixed Committee (6746/16): “Delegations will find attached Presidency compromise suggestions with regard to draft Articles 18 and 19 of the aforementioned proposal for the purpose of the meeting of JHA Counsellors on 4 March 2016. The Presidency intends to include the results of that meeting in a text to be submitted to Coreper on 9 March 2016 with a view to obtaining agreement in principle on a number of provisions.

7 March 2016: NOTE from: Presidency to: Permanent Representatives Committee/Council – State of play (6744/16): Useful summary setting out progress made on the proposal up to 7 March: “the Presidency considers that the Council is on schedule for complying with the mandate by the European Council and the Presidency confirms its intention to carry out its efforts to this effect.

7 March 2016: NOTE from: Presidency to Permanent Representatives Committee/Mixed Committee (6652/06): Compromise suggestions

8 March 2016: NOTE from: Presidency to Permanent Representatives Committee/Mixed Committee: Provisions on return(6884/16): “The Presidency believes that its compromise suggestions included in the Annex have a sufficient degree of support by delegations. It therefore invites the Committee to confirm this, with a view to attaining a general approach on the proposal as a whole and preparing the upcoming negotiations with the European Parliament.”

11 March 2016: NOTE from: Presidency to JHA Counsellors/Mixed Committee (7034/16): Compromise suggestions on Chapter I, Article 2; Chapter II, Section 1, Articles 6-7; Chapter III, Sections 3-5; Articles 50-78 and Chapter IV, Articles 79-82.

16 March 2016: NOTE from: Romanian delegation to: Working Party on Frontiers/Mixed Committee (7026/16): A number of proposals from the Romanian delegation.

18 March 2016: NOTE from: Presidency to: Permanent Representatives Committee/Mixed Committee: Guidance for further work (7196/1/16 REV 1): Proposal to submit text for approval to Permanent Representatives Committee on 6 April.

30 March 2016: NOTE from: Presidency to: JHA Counsellors/Mixed Committee (7366/1/16 REV 1): Presidency compromise proposals on preamble, including some new recitals, plus extra amendments following recommendations from the European Data Protection Supervisor (see ‘background and further reading’, below, for the EDPS opinion)

30 March 2016: NOTE from: Presidency to: JHA Counsellors/Mixed Committee (7366/16): Presidency compromise proposals on preamble, including some new recitals.

6 April 2016: COREPER ADOPTION OF THE NEGOTIATION MANDATE 

(D) THE TRILOGUE BETWEEN THE EU INSTITUTIONS (May 31…. )

Nota bene: as always after the vote of the negotiations mandates by the EP and by the Council everything become blurred. This notwithstanding the explicit Treaty provisions for transparency of legislative works in both institutions. The only echoes for the time being are in a Council Presidency document (leaked by Statewatch) according to which:  (emphasis are added)

The LIBE Committee adopted its report on 30 May 2016. The Presidency, on the basis of the mandate received on 6 April 2016, entered interinstitutional negotiations with the European Parliament with a view to reaching a political agreement by end June 2016, in accordance with the European Council mandate of 18-19 February 2016. 

This first trilogue was held on 31 May 2016, and all participants confirmed their strong commitment to conclude negotiations in an efficient and timely manner. During the meeting, the Presidency, the Rapporteur and the Commission representative outlined their respective positions in general, and exchanged views on possible avenues of compromise on a number of key issues.

These issues are:

  • the liaison officers (Article 11),
  • the vulnerability assessment (Article 12),
  • the situations requiring urgent action (Article 18),
  • the composition and deployment of teams (Article 19),
  • the technical equipment pool (Article 38),
  • the appointment of the Director (Article 68),
  • the fundamental rights related provisions (mainly Articles 33 and 70 to 72) and
  • the Search and Rescue-related provisions.

During this first trilogue, the working methods and the provisional timetable for the rest of the negotiations were agreed upon. One trilogue per week has been scheduled, with one or more technical meetings in between to prepare the ground for political discussions. A provisional agenda for each trilogue has also been set, with a view to covering the whole draft Regulation.

During a first technical meeting on 3 June 2016, Articles 1-12 of the draft Regulation were examined on the basis of a four-column table set up by the Council and Parliament, in preparation of the second trilogue on 7 June 2016.

The Presidency held on 3 June 2016 a JHA Counsellors meeting in the course of which the Presidency explained outcome of the first trilogue and the technical meeting, including the roadmap for the future steps of these interinstitutional negotiations. Certain delegations expressed their initial views on the Parliaments mandate.

In the context of the second trilogue held on 7 June 2016 the Presidency, the Rapporteur and the Commission discussed the outcomes of the technical meeting and reflected upon possible compromises on the following issues and had a first exchange of views on return:

  • Subject matter (Article 1),
  • Definitions (Article 2),
  • European Border Guard (Article 3),
  • European Integrated Border Management (Article 4),
  • Accountability (Article 6a proposed by EP),
  • Tasks (Article 7),
  • Duty to cooperation in good faith (Article 8),
  • Exchange of information (Article 9),
  • Monitoring of migratory flows and risk analysis (Article 10),
  • Liaison officer (Article 11),
  • Vulnerability assessment (Article 12),

Although progress has been made, still a lot of work needs to be done, both at technical and political level. After the end of the second trilogue, a technical meeting took place in Strasbourg, with a view to preparing the third trilogue, which is scheduled for 14 June 2016.

The Presidency is going to report as appropriate on the outcome of its negotiations to the competent Council bodies and seek, if need be, a revised mandate, with a view to reaching a compromise with the co-legislator. “

E) THE MULTICOLUMN DOCUMENT MIRRORING THE POSITION OF THE CO-LEGISLATORS

F) THE “COMPROMISE” (Consolidated TEXT-261 Pages ).

Nota Bene: When voted as LIBE report to the plenary it will also be endorsed by the Council with a letter addressed to  the EP President announcing that if the EP PLENARY will vote it as such the Council will accept it as the final text (with the Commission also endorsing the Compromise) .

In short this is already the text which will be published in the coming months on the EU official Journal 

NOTES

[1] Report of working group X on FSJ of European Convention (December 2002): “Consideration should also be given to indicating, in this legal basis, the possible longer-term perspective of a common European border guard unit operating in conjunction with national border control services” (p.17)

[2] According to these conclusions: Integrated border management is a concept consisting of the following dimensions: •Border control (checks and surveillance) as defined in the Schengen Borders Code including relevant risk analysis and crime intelligence

  • Detection and investigation of cross border crime in coordination with all competent law enforcement authorities
  • The four-tier access control model (measures in third countries, cooperation with neighbouring countries, border control, control measures within the area of free movement, including return)
  • Inter-agency cooperation for border management (border guards, customs, police, national security and other relevant authorities) and international cooperation
  • Coordination and coherence of the activities of Member States and Institutions and other bodies of the Community and the Union.

[3] Cf. Monar, J. ‘The Project of a European Border Guard: Origins, Models and Prospects in the Context of the EU’s Integrated Border Management’,Ch. 10 in: ‘Borders and Security Governance’ eds: Caparini, M. and Marenin, O., Geneva Centre for the Democratic Control of Armed Forces (DCAF) publications, 2006, pp. 4, 6 .

Background and further reading (in reverse order)

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