European Scrutiny Committee Contents

13 Strengthening FRONTEX



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 European Union (FRONTEX)

Commission staff working documents: Impact Assessment and Summary of Impact Assessment

Legal baseArticles 74 and 77(1)(b) and (c) TFEU; co-decision; QMV
DepartmentHome Office
Basis of considerationMinister's letter of 22 March 2011
Previous Committee ReportsHC 5-xviii (2009-10), chapter 4 (7 April 2010); HC 5-xiv (2009-10), chapter 3 (17 March 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionCleared; further information requested

Background and previous scrutiny

13.1 FRONTEX is the Warsaw-based EU Agency responsible for managing operational cooperation at the EU's external borders. It was established by a Council Regulation adopted in 2004[58] which gave the Agency six tasks:

  • coordinating operational cooperation between Member States in managing their external borders;
  • establishing common training standards for border guards;
  • carrying out risk analyses;
  • advising on R&D relevant to border control and surveillance;
  • providing technical and operational assistance, where needed; and
  • helping Member States to organise joint returns of illegal immigrants.

13.2 In 2007, the Council and European Parliament adopted a Regulation[59] providing for the establishment of Rapid Border Intervention Teams (RABITs) to provide short-term emergency help to Member States at risk of being overwhelmed by a sudden surge of illegal immigrants. FRONTEX determines how many border guards it needs to establish a "rapid pool". Once Member States have nominated national border guards to the rapid pool, they must make them available for deployment by FRONTEX "unless they are faced with an exceptional situation substantially affecting the discharge of national tasks."

13.3 Although the UK wished to participate fully in FRONTEX, it was excluded on the basis that the 2004 Regulation establishing the Agency builds on provisions of the Schengen acquis relating to border controls in which the UK does not take part. However, the UK attends meetings of the FRONTEX Management Board (but does not vote) and may, on a case-by-case basis and with the agreement of the Management Board, participate in FRONTEX activities. FRONTEX has no operational assets and so relies on resources provided by Member States. The UK makes a financial contribution to the operational costs of any FRONTEX activity in which it participates. UK officers are unable to exercise executive powers at the external borders (for example, deciding who to admit or detain) so generally contribute in an advisory capacity. The UK has seconded national experts to FRONTEX to provide expertise on risk analysis and joint operations and assists with training.

13.4 The European Council (most recently in the Stockholm Programme on EU priorities in the area of freedom, security and justice) has called for the strengthening of FRONTEX's operational capacity so that it can respond more effectively to changing migration flows.

13.5 The draft Regulation proposes a large number of amendments to the 2004 Regulation, some relatively minor, but the more substantial changes include:

  • provision for more extensive risk analyses, including studies on Member States' preparedness to cope with threats and pressures at their external borders;
  • provision for FRONTEX to coordinate and organise joint return operations, as well as a new requirement for FRONTEX to develop a Code of Conduct for all joint return operations which it coordinates;
  • the inclusion of new tasks related to the development and operation of border surveillance systems and information systems on emerging risks at the external borders;
  • provision for the establishment of Joint Support Teams for deployment in joint operations or pilot projects;
  • new provision for FRONTEX to purchase or lease technical equipment (such as boats, aircraft and mobile radar) for use in joint operations, pilot projects or rapid interventions; and
  • new provision for FRONTEX to deploy liaison officers in third countries.

13.6 The draft Regulation has been held under scrutiny since March 2010, when our predecessors questioned the choice of legal base but otherwise considered that the proposal complied with the principles of subsidiarity and proportionality. The previous Government broadly supported the proposal on the basis that an effectively managed and secure external border served the interests of all Member States. However, it wished to ensure that any UK immigration officers which were deployed in FRONTEX joint operations or pilot projects would have the same protection from civil or criminal liability as "guest officers" — that is, border guards from Schengen or Schengen associated countries operating outside their own territory.

13.7 Last July, the Minister for Immigration (Damian Green) informed us that the Commission and Council Legal Service agreed on the need to amend the legal base. He also explained that it would not be legally possible to amend the draft Regulation to ensure that UK immigration officers involved in FRONTEX operations would be in the same position as "guest officers" as regards civil and criminal liability. He added that the Government was therefore "considering the advantages of entering into individual bilateral agreements between the UK and other Member States in order to secure equivalent protections to those enjoyed by FRONTEX 'guest officers' for UK officers assisting in FRONTEX operations and to take steps to secure a Council Declaration to support this approach."

13.8 We welcomed the Commission's acceptance that the legal base proposed required correction to cite Articles 77(2)(b) and (d) TFEU — which provide for EU measures on checks on persons at the EU's external border and for the gradual establishment of an integrated management system for the EU's external borders — instead of Articles 77(1)(b) and (c), as originally proposed. We asked for progress reports on the negotiations and retained the draft Regulation under scrutiny.

The Minister's letter of 22 March 2011

13.9 The Minister reiterates the UK's support for the proposed amendment of the 2004 Regulation to provide "more effective deployment of Member States' border guards and technical equipment to FRONTEX operations" and to increase engagement with third countries on practical action to stem illegal migration flows. He explains that the Hungarian Presidency is eager to reach a First Reading deal by June.

13.10 The Minister encloses the latest text of the draft Regulation which reflects the outcome of negotiations in the Council Working Group on Frontiers. He highlights the following changes to the Commission's original proposal:

  • Member States' contribution to the pool of border guards available to FRONTEX Joint Support Teams should be planned on the basis of annual bilateral negotiations between each Member State and FRONTEX; any request for deployment should be made 45 days before the intended deployment (previously it was 30 days); and Member States are required to make the agreed number of border guards available unless they are faced with an "unforeseen situation substantially affecting the discharge of national tasks" (previously it was an "exceptional" situation);
  • similar arrangements apply as regards Member States' obligation to make border control equipment available to a technical equipment pool — national contributions to the pool would be based on annual bilateral agreements; FRONTEX should request the equipment at least 45 days before deployment; and Member States should provide it unless faced with an "unforeseen situation substantially affecting the discharge of national tasks";
  • any expenditure incurred by FRONTEX to purchase or lease technical equipment must be provided for in its budget;
  • there is new provision for FRONTEX to exchange information with EU agencies and to process the personal data of individuals suspected of involvement in cross-border criminal activity, illegal immigration or human trafficking; the Minister indicates, however, that not all Member States have yet endorsed the provisions on information exchange; and
  • there is a specific provision ensuring that any onward transmission of personal data processed by FRONTEX to other EU agencies or bodies is subject to the conclusion of working-level agreements and the prior approval of the European Data Protection Supervisor.

13.11 The Minister says that the UK supports the provision in the Council text to enable FRONTEX to process personal data in limited circumstances as "this would enable better information flows from operations to the law enforcement agencies that can use the data to counter organised immigration crime."

13.12 He also describes amendments likely to be proposed by the European Parliament which would seek to strengthen references in the draft Regulation to the protection of fundamental rights and would also claim a greater role for the EP in monitoring FRONTEX's working arrangements with third countries.


13.13 We note that the concern raised by our predecessors regarding the correct legal base for the Regulation has been resolved satisfactorily. We also note the Government's support for the changes proposed in the draft Regulation, notwithstanding the UK's inability to participate in its adoption. The Minister anticipates that a First Reading deal between the European Parliament and Council is imminent, but says that not all Member States have yet to agree to the inclusion of new provisions allowing FRONTEX to process personal data and share information it obtains with other EU Agencies, such as Europol and Eurojust. As the UK will not take part in any vote on the adoption of the draft Regulation, we see little purpose in retaining it under scrutiny and are therefore content to clear it. In so doing, we ask the Minister to inform us of the outcome of negotiations, once they have been concluded and, in particular, to tell us what provision the final text of the Regulation makes for the processing and exchange of personal data.

58   Council Regulation (EC) No. 2007/2004, OJ L No. 349, 25.11.2004, p. 1-11. Back

59   Regulation (EC) No. 863/2007, OJ L No. 199, 31.07.2007, p. 30-39. Back

previous page contents next page

© Parliamentary copyright 2011
Prepared 7 April 2011