Amendments to the Frontex Regulation:
the right to carry arms
131. The RABITs Regulation contains a second
chapter which amends the Frontex Regulation. Provisions in Chapter
II clarify the powers which officers participating in all Frontex
operations (not just RABITs) can exercise, and the tasks they
can be asked to undertake. These include active border guard activities
as set out in the Schengen Borders Code, such as investigating
nationality, stamping passports and preventing illegal border
crossing. As Mr Vuorensola, the Frontex Legal Adviser, explained
to us: "Until the RABITs Regulation came into force
all the powers that our guest officers in joint operations had
were based on the national law of the host Member State, and the
possibility of that national law to delegate executive powers
to foreigners doing the job, which is usually reserved only to
their own national border guards: checking persons, asking for
identification and doing other border controlling tasks".
In his view these powers could now be exercised as a matter of
Community law, and they included the right to carry a service
weapon and to use it in self-defence, and in certain other limited
cases (Q 275).
132. The right of guest officers to carry and
use weapons in a Frontex joint operation was one of the contentious
issues when the RABITs Regulation was negotiated. We heard from
Major Mallia that "weapons do have a role in border control,
unfortunately." He identified two roles in particular: weapons
act as a deterrent, and are used for self-protection or protection
of third parties. However, not all Member States' border guards
are part of the police or army and carry guns or other weapons
regularly.[64] For this
reason, Article 6(5) of the Regulation places a number of restrictions
on the carrying and use of weapons: Member States hosting RABITs
operations are allowed to restrict weapons from being carried
and used if this is prohibited by the host state's domestic legislation,
and to determine which weapons are permissible, and the conditions
under which they can be used. An amendment to the Frontex Regulation
places similar restrictions on the carrying of weapons in the
generality of Frontex operations. Both Regulations include provisions
on the criminal liability of guest officers.
133. While the Regulation contains clear restrictions
on the use of weapons, Major Mallia thought that more clarity
was needed on the status of the individuals deployed, and the
legal chain and jurisdiction to which these deployed forces are
subject, "because, if something happens, as it inevitably
one day will, we will have to see the liability of that deployed
border guard. Is he liable to the host state? Is he liable in
his Member State? He definitely cannot be liable in both"
(Q 401).
134. Frontex have told us in their supplementary
written evidence that the amendments to the Frontex Regulation
have important consequences for United Kingdom participation in
Frontex activities. Both RABITs team members and guest officers
in Frontex activities have now been endowed with certain tasks
and executive powers which would not be available to participating
United Kingdom border guards. The possible liability of United
Kingdom border guards participating in Frontex operations (both
joint operations and RABIT teams) is unclear.[65]
135. The liabilities of guest border guards,
particularly those which arise from the use of weapons, need to
be clarified in amending legislation. The particular position
of participating United Kingdom border guards should also be addressed.
RABITs training exercises
136. The first trial RABITs exercise took place
between 5 and 9 November 2007 at Sa Carneiro airport,
Porto, Portugal comprising a total of 16 border guards from 16
Member States, divided into three teams. Eight of them concentrated
on front line interviews with arriving passengers, five on examination
of suspect documents, and the remainder on secondary interviews
of those whose eligibility for admission to the EU was in doubt.
The main objectives were:
- to test the new mechanism in real
circumstances;
- to test the administrative procedures necessary
for deployment within the time limits set out in the RABITs Regulation;
- to deal with operational challenges (national
expert pools, list of permissible weapons, databases, etc.) and
open questions in advance of real missions; and
- to develop further the management of RABITs within
Frontex.[66]
137. The exercise was made as realistic as possible,
and the guest officers were therefore asked to bring their service
weapons with them. This raised the issue as to whether guest officers
were required, as a matter of Portuguese law, to obtain a Portuguese
firearms permit before the weapons could be carried in public
(Portuguese border guards are required to hold such a permit).
Frontex argued that the RABITs Regulation took precedence over
national legislation and that guest officers could not be required
to obtain these permits. After some debate this was accepted by
the Portuguese authorities, but only after they had issued the
national permits.
138. This is an important issue. Under Article
10(5) of the Frontex Regulation[67]
guest officers are only allowed to carry service weapons in accordance
with the law of the host Member State. However, the host Member
State may prohibit the carrying of service weapons provided that
its own legislation applies the same prohibition to its own border
guards. If Portuguese law does not allow Portuguese guards
to carry arms without a permit, it is legitimate to apply the
same law to guest border guards, and to require them to have a
permit; but it may also be very inconvenient to have to wait for
a permit to be issued in what is by definition an urgent situation.
This issue must be addressed.
139. Following from this exercise, Frontex was
able to prepare a series of recommendations for the next exercise
due in Slovenia in April 2008. The evaluation of each exercise
with a view to improving the process the next time is a constant
process. The training programme for officers who will be deployed
in RABITs began in January 2008, and 22 courses are planned under
the RABITs programme before the end of 2008. United Kingdom officers
will be involved in the delivery of RABITs training, but will
not have a leading role.
61 The G5 are the five largest Member States: Germany,
France, the United Kingdom, Italy and Spain. When they met in
Heiligendamm, in Germany, in March 2006 they were joined by Poland
to become the G6. We reported on that meeting, and also on their
meeting in Stratford-upon-Avon in October 2006: Behind Closed
Doors: the meeting of the G6 Interior Ministers at Heiligendamm
(40th Report, Session 2005-06, HL Paper 221), and After
Heiligendamm: doors ajar at Stratford-upon-Avon (5th Report,
Session 2006-07. HL Paper 32). The G6 Ministers met again in Venice
in May 2007 and in Sopot, Poland, in October 2007. Back
62
See paragraphs 50 and 51 above. Back
63
RABITs Regulation Article 4(3). Back
64
"The United Kingdom does not arm its border guards, and is
not planning to do so." Byrne, Q 476. Back
65
Frontex supplementary evidence, p 68. Back
66
Ibid. Back
67
As substituted by Article 12(6) of the RABITs Regulation 863/2007. Back
