16 Management of the EU's external borders
| (25046)
14766/03
COM(03) 687
| Draft Council Regulation establishing a European Agency for the management of operational cooperation at the external borders
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| Legal base | Article 66 EC; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 21 January 2004
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| Previous Committee Report | HC 42-ii (2003-04), para 4 (9 December 2003)
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information awaited
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Background
16.1 In October 2003, the European Council welcomed the Commission's
intention to present a proposal for an Agency for the management
of the external borders. In December, we considered the draft
of the proposed Regulation.[32]
16.2 Article 1 of the draft provides for the creation
of a European Agency for the management of operational cooperation
at the external borders and to provide Member States and the Commission
with technical support and expertise.
16.3 Article 2 specifies the Agency's six main tasks:
a) to coordinate operational cooperation between
Member States in the control and surveillance of the external
borders;
b) to help Member States to train border guards;
c) to do risk assessments;
d) to follow-up on the development of research
relevant to control and surveillance;
e) to help Member States when increased technical
and operational assistance is needed;
f) to coordinate operational cooperation between
Member States for the removal of illegally-resident third country
nationals.
16.4 The Agency would evaluate, approve and coordinate
proposals for joint operations, itself propose joint operations
and make its technical equipment available to Member States for
joint operations. It would also be able to co-finance and evaluate
the results of operations. It would develop risk assessment models
and prepare risk assessments for the Council and the Commission.
The Agency would also develop a common core curriculum for the
training of border guards and provide training for them. Article
10 authorises the Agency to "take all necessary measures
to facilitate the exchange of information relevant for its tasks
with the Commission and the Member States". Article 11 authorises
the Agency to cooperate in the exchange of strategic non-personal
information with Europol, international organisations and third
countries.
16.5 The Agency's Management Board would appoint
the Executive Director of the Agency on the nomination of the
Commission. Article 18 provides that the Board would have 12
members appointed by the Council, and two representatives of the
Commission.
16.6 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) told us that the Government largely
agrees with the proposal for an EU Agency to manage operational
cooperation at the external borders. However, the Government
would seek clarification of some provisions of the draft Regulation
and amendments to others. The Government would be consulting
the Information Commissioner about Articles 10 and 11, which concern
the exchange of information.
16.7 The Government had not yet decided whether to
opt into the Regulation under Article 69 of the EC Treaty.
16.8 After consideration of the document, we agreed
with the Minister that the draft Regulation requires much clarification.
We were glad that the Information Commissioner was to be asked
for his opinion on Articles 10 and 11. We were surprised that
Article 18 proposes that the Commission should have two representatives
on the Management Board. It seemed to us that one should be sufficient
and we asked the Minister to pursue the point.
16.9 For these reasons and because the proposal is
still at an early stage of negotiation, we did not clear the document.
We asked the Minister to keep us informed about the negotiations
and to tell us the opinion of the Information Commissioner on
Articles 10 and 11.
The Minister's letter
16.10 In her letter of 21 January 2004, the Minister
tells us that the Home Office has consulted the Information Commissioner
because it is not clear whether Article 10 would include the exchange
of personal data and whether there were sufficient data protection
safeguards. The Minister says:
"The Information Commissioner's response indicated
that the Agency proposal was probably covered by Directive 95/46EC
and Regulation 45/2001 which set out a data protection framework
applying to Community institutions and bodies and set up a European
Data Protection Supervisor.
"However, there is still some confusion regarding
Article 10 and whether it includes personal data. The Commission's
intention was that it would not cover personal data, but some
Member States believe that it should, and that the provision would
be too limiting if it did not include personal data. No decision
has yet been made. The Government is still considering its position
on this issue, but if it is decided that Article 10 will include
personal data, then we will follow the additional advice outlined
in the attached letter from the Information Commissioner. If
it is decided that Article 10 will cover personal data, then it
would also make sense for Article 11 to be amended to cover personal
data. We will deal with these issues in due course, as necessary.
"The Committee also asked why the Commission
should have two representatives on the Agency's Management Board.
We will ask this question when the appropriate Article, Article
18, is discussed during negotiations, and update the Committee
accordingly."
16.11 The Minister adds that so far in the negotiations
no significant amendments have been made to the text. The Justice
and Home Affairs Council may be asked to reach a political agreement
on the proposed Regulation either in March or April.
16.12 The Information Commissioner's letter to the
Home Office questions the relationship between Article 10 —
if it is to include the exchange of personal data — and
the Schengen Information System (which enables Member States to
exchange personal data relevant to the operation of the external
borders). Clarification of that relationship is required. Moreover,
if personal data are to be exchanged under the proposed Regulation,
the Information Commissioner would expect data protection provisions
to be added to the text. Such provisions might include, for example,
an Article specifying what categories of personal data are involved,
who will supply the data, who can have access to the information
and for what purposes; and there should also be provision on the
data protection responsibilities of Member States in relation
to the responsibilities of the Agency.
Conclusion
16.13 We are grateful for the Minister's letter
and the copy of the Information Commissioner's opinion. We agree
that it is essential to establish without any ambiguity whether
Article 10 is to extend to the exchange of personal data and,
if it is, how this would fit in with the Schengen Information
System. Provision should be added to the text to ensure sufficient
protection if personal data is to be exchanged under the Article.
16.14 We are also grateful for the Minister's
offer to keep us informed of the progress of the negotiations,
including the answer to our question about Article 18. We shall
keep the document under scrutiny while we await this further information.
32 See headnote. Back
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