13 Strengthening FRONTEX
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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 European Union (FRONTEX)
Commission staff working documents: Impact Assessment and Summary of Impact Assessment
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| Legal base | Articles 74 and 77(1)(b) and (c) TFEU; co-decision; QMV
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| Department | Home Office
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| Basis of consideration | Minister's letter of 22 March 2011
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| Previous Committee Reports | HC 5-xviii (2009-10), chapter 4 (7 April 2010); HC 5-xiv (2009-10), chapter 3 (17 March 2010)
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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 | Cleared; further information requested
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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.
Conclusion
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
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