3 Strengthening FRONTEX
| (31368)
6898/10
COM(10) 61
+ ADDs 1-2
| Draft Regulation to amend Council Regulation (EC) No. 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX)
Commission staff working documents: impact assessment and summary of the assessment
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| Legal base | Articles 74 and 77(1)(b) and (c) TFEU: co-decision; QMV
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| Document originated | 24 February 2010
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| Deposited in Parliament | 2 March 2010
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| Department | Home Office
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| Basis of consideration | EM of 11 March 2010
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
3.1 FRONTEX is the European Agency for the Management of Operational
Cooperation at the External Borders of the Member States. It began
work in October 2005. Its budget for 2009 was €83 million.
It is based in Warsaw and has over 220 staff.
3.2 The Regulation which established FRONTEX[10]
gave the Agency six tasks: coordination of operational cooperation
between Member States in the management of the external boarders;
training border guards; doing risk analyses; R&D; organising
technical and operational help for Member States in need of it;
and helping to organise the return of illegal immigrants.[11]
3.3 Contrary to the Government's wishes, the UK is
excluded from full participation in FRONTEX because the Court
of Justice has ruled that the 2004 Regulation builds on provisions
of the Schengen acquis to which the UK is not party. But
the Regulation includes a provision which enables the UK to participate
in some of the Agency's activities (for example, as observers
of selected joint operations).
3.4 In 2007, the Council adopted a Regulation for
the creation of Rapid Border Intervention Teams (RABITs).[12]
The main purpose of the Regulation is to provide short-term emergency
help to Member States at risk of being overwhelmed by a surge
of illegal immigrants. The Member State's request for a RABIT
is made to and decided by FRONTEX. The Agency also decides how
many border guards are needed for the "pool" from which
it selects officers to serve in RABITs. Member States are not
obliged either to ask for a RABIT or to nominate immigration officers
to serve in RABITs. [13]
3.5 In February 2008, the Commission published an
evaluation of FRONTEX's performance and suggested some additions
to the Agency's functions.[14]
In December 2008, after considering the evaluation, the European
Parliament adopted a Resolution which described FRONTEX as an
essential instrument in the EU's strategy on immigration and asked
the Commission to make proposals to strengthen the Agency's role
and effectiveness.
3.6 In October 2009, the European Council called
for the enhancement of FRONTEX's operational capacity and invited
the Commission to present proposals for that purpose, including
proposals for increased operational cooperation between FRONTEX
and countries of origin and transit; common procedures for joint
operations at sea; and for FRONTEX to charter flights for the
return of illegal immigrants. The invitation to make such proposals
is repeated in the Stockholm Programme.[15]
3.7 Article 74 of the Treaty on the Functioning of
the European Union (TFEU) provides for the Council to adopt measures
to ensure administrative cooperation between Member States on
the matters covered by Title V of the Treaty (matters related
to justice and home affairs). Article 77(1) TFEU requires the
EU to develop policies on, among other things, carrying out checks
on people at Member States' external borders and the gradual introduction
of an integrated system for the management of those borders.
The document
3.8 The draft Regulation contains a large number
of amendments to the Regulation of 2004 which established FRONTEX
("the parent legislation"). Most of the amendments clarify
the provisions of the parent legislation or supplement FRONTEX's
powers and duties without changing them substantially. For example,
the draft Regulation contains a new definition of "technical
equipment" and gives FRONTEX a duty to "participate"
in the development of relevant research rather than merely to
"follow-up" its development.
3.9 But the draft Regulation also includes significant
changes to the parent legislation. They include the following
amendments:
· FRONTEX
would have a new duty to develop and operate information systems
to enable swift and reliable exchanges of information about emerging
risks at the external borders.
· The
FRONTEX Management Board (which comprises representatives of the
participating States and the Commission) would decide, from time
to time, what should be the total number of border guards the
Member States should make available for deployment in FRONTEX
Joint Support Teams to take part in joint operations and pilot
projects. Member States would be obliged to make the officers
available when requested "unless they are faced with an exceptional
situation substantially affecting the discharge of national tasks".[16]
· Member
States would also be required to second border guards to FRONTEX
for not more than six months in a 12-month period for deployment
to joint operations and pilot projects.
· FRONTEX
would have a new duty to evaluate the capacity of Member States
to cope with present and foreseeable threats and pressures at
their external borders and to report the results of the evaluations
to the Agency's Management Board at least once a year.
· FRONTEX
would be given a new power to acquire or lease technical equipment
(such as boats, aircraft and mobile radar) for use in, for example,
joint operations, pilot projects and operations to return illegal
immigrants to their countries of origin.
· The
Management Board would be given responsibility to decide what
technical equipment FRONTEX should have for operational purposes.
The Agency would have a duty to maintain records of the equipment,
comprising equipment made available by Member States and equipment
acquired or leased by the Agency. Member States would have a new
duty to contribute equipment to the pool within 30 days of being
asked for it.
· Member
States would be required to tell FRONTEX once a month about their
plans for returns and to what extent help from and coordination
by the Agency would be needed.
· Returns
should be monitored by an independent person from pre-departure
to hand-over in the country of return.
· FRONTEX
would have power to post liaison officers to third countries to
maintain contacts with the authorities responsible for the control
of migration and law enforcement and to encourage them to take
part in FRONTEX activities such as pilot projects, joint operations
and training for border guards.
The Government's view
3.10 In her Explanatory Memorandum of 11 March 2010,
the Parliamentary Under-Secretary of State at the Home Office
(Meg Hillier) tells us that (for the reason explained in paragraph
3.3 above) the UK is excluded from the draft Regulation and will
not be bound by it. But the UK does take part in some joint operations
and other activities. It is invited to attend the meetings of
FRONTEX Management Board and takes an active part in them as a
non-voting observer. In 2010, the Government will contribute €570,000
to the cost of joint operations and other activities in which
the UK participates.
3.11 The Minister says that the Government welcomes
the draft Regulation:
"An effectively managed and secure external
border is in the interests of all Member States, including the
UK, not just in terms of combating illegal migration, and cross-border
crime but also as part of the EU-wide counter-terrorism effort."[17]
3.12 At present, border guards from Schengen States
have additional protection against criminal and civil liability
when taking part in FRONTEX operations. The Minister tells us
that:
"While we have no intention of seeking executive
powers for UK border officers taking part in Frontex operations
we do wish to protect them against unreasonable or malicious prosecution.
To this end, we are seeking to add language to the text that would
extend to UK officials the cover currently given to the border
guards of the Schengen and Schengen-associated states alongside
which they work."[18]
Conclusion
3.13 FRONTEX has quickly established for itself
a valuable role in helping Member States to control their external
borders. There appears to be a consensus that the Agency's powers
should be strengthened. The proposed new duties for Member States
to commit themselves to make available officers and equipment
are intended to improve FRONTEX's ability to plan and coordinate
joint operations and pilot projects. The UK is excluded from the
proposed Regulation and so would not be caught by the new duties
it would give Member States.
3.14 In our view, the draft Regulation complies
with the principles of subsidiarity and proportionality, but the
legal base fails to cite Article 77(2)(b) and (d) TFEU instead
of, or in addition to, Article 77(1)(b) and (c) TFEU. We think
it should, and that this may be an oversight of the Commission,
as paragraph (2) sets out the legislative procedure for the adoption
of legislation in this field, whereas paragraph (1) concerns the
general development of policy. Citation of the correct legal base
would also indicate that this proposal is a "draft legislative
act" for the purposes of the first two Protocols to the Treaty
on the Functioning of the European Union. The Minister's Explanatory
Memorandum is silent on this point, so we would be grateful for
her opinion at the earliest opportunity.
3.15 We would also be grateful for progress reports
on the document as negotiations develop. Meanwhile, we shall keep
the document under scrutiny.
10 Council Regulation (EC) No. 2007/2004: OJ No. L
349, 25.11.04, p.1. Back
11
See (25365) 6226/04: HC 42-xiii (2003-04), chapter 21 (17 March
2004). Back
12
Council Regulation (EC) No. 863/2007: OJ No. L 199, 31.7.07, p.30. Back
13
(28523) 7647/07: see HC 41-xvii (2006-07), chapter 17 (18 April
2007). Back
14
(29477) 6664/08: see HC 16-xvi (2007-08), chapter 8 (19 March
2008) and HC 16-xxviii (2007-08), chapter 11 (22 July 2008). Back
15
The Stockholm Programme outlines proposals for action on JHA matters
over the next five years. It was adopted by the European Council
on 10-11 December 2009. Back
16
Article 3 b(3) of the draft Regulation. Back
17
Minister's Explanatory Memorandum of 11 March 2010, paragraph
21, final sentence. Back
18
Ibid, paragraph 22, last two sentences. Back
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