Examination of Witnesses (Questions 60-79)
Mr Jonathan Faull and Mr Henrik Nielsen
16 OCTOBER 2007
Q60 Baroness Tonge: And after what
you have been saying for the last half an hour, which comes over
to me as if people have not really evaluated yet fully what Frontex
is doing and how useful it is, nor been able to take stock of
their achievements or their development needs, how are you expanding
the role in the form of the RABITs Regulation? You are being a
bit hasty, surely?
Mr Faull: No, with respect, I do not think we
are being too hasty. I think that we have to prepare for the reaction
to events which we know are taking place and are likely to continue
to take place, particularly in the Mediterranean. The RABITs,
as they are called, are now in legal existence as a possibility.
No Member State has yet asked for the deployment of the RABIT
team so the system is there ready to be used if needed and we
thought (and it is not just we in the Commission, because after
all the legislation was adopted by the Council ultimately) that
it would be a mistake to wait for the full evaluation before taking
any next steps because the events, often tragic ones, continue
to occur. Obviously, we would not do anything which prejudged
the outcome of the evaluation process but we do not believe that
that is what we have done. We believe that this was a necessary
next logical step in the protection of our borders and that it
would have been wrong therefore to deny Member States the facility
of the RABITs for a further period of time.
Q61 Baroness Tonge: Following on
from that, the RABITs Regulation also says that the border guard
teams should be able to carry weapons. Are we really sure that
this is necessary and that it is even safe to do so? Do impoverished
illegal migrants want to shoot their way into Europe? What is
the reason for those border guard teams to have weapons, first
of all, and how will it change the nature of Frontex, because
I am sure it will, and is it compatible with the different character
of the different Member States, some of whom have the military
guarding their borders while others have unarmed police? Has this
really been thought through properly?
Mr Faull: Yes, it has, and it is safe and it
is compatible with the requirements of the countries concerned.
The rules now provide that border guards participating in a RABITs
team or in joint operations can carry weapons under the same conditions
as the border guards of the host Member State. That means that
they can be fully operational in supporting that Member State
in which they are deployed. Nevertheless, with the exception of
self-defence, the use of force remains subject to the consent
of both the home and the host Member State in accordance with
their law and only in the presence of the border guards of the
host Member State, so we believe that the necessary safeguards
are in place. It would only be in a situation in which the host
country's border guards would be armed and on the same conditions
of their being armed that the guest border guards who were there
to help them would be able to be in the same situation as they
are. This was adopted unanimously by the Council. Although qualified
majority voting would have sufficed it was adopted unanimously.
Q62 Baroness Tonge: If someone is
killed as a result of them carrying weapons whose responsibility
is that? Is that the Member State's responsibility or is it the
responsibility of Frontex?
Mr Faull: They are not employees of Frontex
in any way. They are officials of their Member State which would
take responsibility.
Mr Nielsen: Yes, but during the deployment it
would be the laws of the host Member State that applied with regard
to any criminal liability.
Q63 Baroness Tonge: And that applies
to any Frontex operation?
Mr Nielsen: Yes.
Q64 Baroness Tonge: It is under the
law of the Member State?
Mr Nielsen: Yes.
Q65 Baroness Tonge: Weapons or not?
Mr Nielsen: Yes.
Q66 Lord Marlesford: The stage that
Frontex has reached from your description, Director-General, sounds
very like, if one can use a military analogy, joint planning staff.
Do you see it perhaps evolving into an operational capability
with its own personnel and, secondly, it has been suggested to
us that it could have an anti-terrorist and anti-crime role. Would
you favour that or do you think that would be a diversion from
its primary purpose?
Mr Faull: Its primary purpose today is very
clearly guarding our borders. I do not know what the evaluation
will come up with and I do not know where the political debate
will go after that evaluation has been made public. At this stage
one can only speculate and I am reluctant to do that. At the moment
Frontex has a very clear mandate. It has proved flexible enough
to meet the border control challenges facing it so far reasonably
satisfactorily. We will know more when the evaluation is carried
out. There are many other systems of co-operation in place regarding
the police and counter-terrorism agencies and duplication is the
last thing we need in a complicated field. If that has given a
little bit away of my thinking, so be it, but let us wait for
the evaluation. Frontex is today a co-ordinating body. It is not
an operational body in its own right. It brings together the operational
agencies and forces and bodies of our Member States. It is—we
sometimes use this analogy—a phone number so that the Spanish,
facing a problem in the Canaries, say, do not have to ring around
26 countries; they have one number in Warsaw, they ring the number
in Warsaw and Warsaw knows what the other 26 countries can and
cannot do, have available, do not have available, and can provide
an answer.
Q67 Lord Marlesford: So you do not
see it ever having its own forces in its own Frontex uniform?
Mr Faull: I would be very surprised. I would
never say never to anything. There will be a full evaluation.
The European Union has in its Member States 27 differently constituted
organisations responsible for border control in these other areas.
They are not going to disappear. Look at the experience we have
had in the customs field. We have had a Customs Union in Europe
now for 40-odd years, I suppose, but the national customs officials
are still there doing their national jobs alongside their EU responsibility.
We are not looking for symbols here; we are looking for pragmatic
responses to real life and death situations.
Q68 Earl of Listowel: I have a supplementary
which very much relates to what you have just been saying, Director-General,
and it is about the concerns expressed earlier about how to manage
the expectation on this organisation, which I think has been a
theme of the afternoon's discussion. If one thinks of something
like CEPOL, that is a small organisation which has been working
for a while and is well recognised as being effective in what
it does. These evaluations will be helpful to that, I suppose,
but is there anything that should be done now to keep states which
are under a great deal of pressure from immigrant flows from perhaps
raising their expectations too high about what it can achieve?
Mr Faull: I am sure we should and I recognise
that perhaps we are not doing it fully successfully. Frontex is
not and cannot be the magic wand which will solve this problem
for 27 countries. Illegal immigration is a multi-faceted phenomenon.
Our border with Africa is a very narrow stretch of sea. Illegal
immigrants are often the subject of trafficking by extremely sophisticated
organised criminal gangs and they are very able to switch routes
at short notice. When one route is policed successfully we find
another one opening up. I have no doubt that this is a complex
issue. I think it is a very welcome development that all European
Union Member States have understood that it is a common endeavour,
that our border is at the south of Italy, in Malta and in Spain
just as it is in Finland and at Heathrow Airport and all these
other places. That is true, I would even say, moving on to more
controversial grounds, beyond the distinction of who is in Schengen
and who is not because of movement within the European Union.
That is understood. Frontex is a small, modestly resourced agency
which is really no more than a clearing organisation for assets,
ideas and risk assessment made at each Member State's level and
then trying to organise a co-ordinated response to that. It is
obviously not the only answer. There are many other answers needed,
both at our level and at the level of each individual Member State,
but, knowing that Member States face different challenges because
of their size, because of their geographical location, because
of their resources, I agree with those who say that we should
not allow expectations to rise too high because that can only
be followed by disappointment. Frontex has an important role to
play. We should try to make sure that it has the resources needed
to do its job. Member States should provide it with the resources
and assets that it needs to do its job. That I think everybody
agrees with, but there are many other things that need to be done
as well.
Q69 Chairman: You referred to non-Schengen
states. Do you want to make any comment on the position of Gibraltar?
Mr Faull: No.
Q70 Baroness Tonge: Director-General,
I am so sorry but I want to get this absolutely clear and you
may think this stupid woman keeps on going on about this. You
say that Frontex does not have a uniform; you do not employ border
guards yourself, so when a Member State calls Frontex for help
on a particular problem who decides whether they will carry weapons
or not, and if the states that come in to help that state normally
carry weapons will they rule what goes on or will the Member State
who does the calling in rule what goes on? I just want to get
the weapons thing clear.
Mr Faull: The calling-in Member State, the host
Member State, if you like, has to give consent, so if the host
Member State does not want weapons to be carried they will not
be carried. Is that right, Henrik?
Mr Nielsen: They have a right to carry their
weapons, with certain exceptions of types of weapons that can
be prohibited by the host Member State. That is for the carrying
of the weapons, but for the actual use of the weapons there is
a need for the consent of both the Member State of the border
guard where he is employed and of the Member State where he will
go.
Mr Faull: Except in cases of self-defence, presumably
force majeure.
Mr Nielsen: Yes. As an example, if a UK border
guard goes to Spain and the UK border guard authority decides,
"No, we do not want you to use your weapon in this operation",
they will say so and then he cannot. He can still carry it, he
can use it for self-defence, but he will be prohibited from using
it in terms of the use of force.
Q71 Lord Teverson: Does Frontex ever
operate on a Schengen border as opposed to the EU external border?
Mr Faull: An internal Schengen border?
Q72 Lord Teverson: No. Would there
ever be a situation where it operated on a Schengen border as
opposed to the EU external border?
Mr Faull: I think I see what you mean. We have
three categories at the moment. We have the fully fledged Schengen
countries like Belgium with no external border except ports and
airports.
Q73 Lord Teverson: I suppose I am
talking about, say, the east German border.
Mr Faull: You mean between Germany and Poland
today?
Q74 Lord Teverson: Yes. Say between
the 15 and the Visegrad. It never operates on that border?
Mr Faull: No, it does not, but it does operate
already at the external border of the new Member States about
to join Schengen, and you may see them at the Poland/Ukraine border,
for example, because Poland is already in the external bit of
Schengen. The only thing that has not happened yet, and we hope
it will happen soon, is that the internal borders between Poland
and other Schengen countries will be dismantled. As for the United
Kingdom and Ireland, you and the Irish have your own external
borders for which you are responsible and there is still a border
between you and the rest of the European Union, but Frontex does
not operate in Calais, for example, let alone Dover.
Q75 Earl of Listowel: Does the Commission
believe that the current legal framework ensures adequate transparency
and accountability of this agency?
Mr Faull: Broadly speaking, yes. The agency's
work, including its priorities, its annual work programme, its
annual report, is subject to its management board. The annual
report is sent to the European Parliament and to the Council and
is published, and the agency, usually through its Director, frequently
appears before the Justice and Home Affairs Council of Ministers
and before the relevant committee in the European Parliament.
The general Regulation 1049/2001 regarding public access to European
Parliament Council and Commission documents applies to the agency.
The executive powers of the agency, its staff and Member State
border guards, when operating under its aegis, are regulated by
European law. For example, the regulation creating the Rapid Border
Intervention Team, the RABIT, and regulating the task and powers
of guest officers, regulates the issue which we have just discussed
about whether the national law of the home or the host state applies.
It is true that in the preparatory phase of joint operations the
impact and efficiency of the operations can be influenced by the
extent to which they are made known in detail in advance. As is
the case in an individual country, major operations to intercept
illegal immigrants and those who organise movements of illegal
immigrants have to be implemented with a certain amount of discretion,
at least in their preparatory phase, before they are put into
operation. The fundamental basis of the activities of Frontex
risk analysis is based on intelligence information from Member
States which is necessarily treated as confidential so that the
interests of the Union as a whole and its Member States are not
imperilled. As a European agency, and certainly within the terms
of its current mandate, Frontex is not a decision-making body.
Its role is simply to support Member States in their efforts to
control their borders, their part of the external borders of the
Schengen area. Consequently, all decisions that may need to be
taken during a joint operation, such as denial of entry, interception
of vessels suspected of carrying illegal immigrants, search and
rescue, grant of access to international protection, are taken
by a Member State, not by Frontex itself, and those decisions
are subject, of course, to all relevant provisions of European
and international law. Frontex is a European agency financed by
the Community co-ordinating operations involving border guards
from different Member States and therefore issues of accountability
and monitoring do arise; we are aware of that, and that will form
part of the review of the existing legal framework in the evaluation
report and its follow-up under Article 33 of the Regulation.
Q76 Lord Young of Norwood Green:
Director-General, I think you have probably touched on a bit of
my question but I will expand it. What is the role of the Commission
in facilitating co-operation between Frontex and third countries,
and is there a wide variation in the response of these countries—and
I am sure I know part of the answer to that—and can you
give some examples, either on or off the record?
Mr Faull: First of all I will tell you what
is on the record. The agency is given the task of facilitating
operational co-operation with countries, including developing
its own co-operation with the relevant authorities of foreign
countries (we tend to say third countries; it is our jargon) under
existing working arrangements and in compliance with the European
Union's general external relations policy. The agency receives
a mandate from its management board, and we have two representatives
on that management board alongside the Member States and the United
Kingdom and Ireland have observers, and therefore any arrangements
to be concluded with a foreign country are approved by the board
both initially before negotiations start and when they are ready
for conclusion. We are happy to provide assistance and guidance
to the agency both here domestically in Europe and through the
use of our delegations in foreign countries where appropriate.
I would now like to go off the record for a minute.
(There followed a short discussion off the
record)
Q77 Lord Teverson: What does the
Russian agreement allow you to do? What does it accomplish?
Mr Nielsen: One thing is just, as I say, an
exchange of expertise and best practice and supports training
of border guards in a third country. A next step could be the
exchange of intelligence information for the purpose of the risk
analysis, so classified information from the Russian border guards,
for instance. A third level would be the actual involvement of
a third country in a joint operation in relation to a specific
border crossing point. That is at least the ambition.
Q78 Lord Teverson: To what extent
is the Schengen Borders Code applicable to Frontex operations
outside the EU external border?
Mr Faull: First of all, the Schengen Borders
Code applies to Member States and to Norway and Iceland as participants
in the Schengen area, and soon Switzerland, I suppose,—
Mr Nielsen: Yes, within a year.
Mr Faull: --- and Lichtenstein shortly thereafter
as regards the control of the external border, including border
surveillance, to prevent the unauthorised crossing of the border.
Border surveillance can also be carried out on the high seas,
of course, in order to detect people seeking to circumvent entry
via authorised border crossing points into the European Union.
However, provisions relating to measures taken after detection,
such as interception and disembarkation, are not covered by the
surveillance rules of the Schengen Borders Code. They are governed
by the law of the sea which binds all Member States and in turn
is based on the jurisdiction and national legislation of the flag
state of each vessel. Activities on the territory of a third country
can be carried out only on the basis of an agreement with that
third country and that agreement would have to decide what the
applicable law to any specific activity would be.
Q79 Lord Jopling: We understand that
the Council of Ministers has adopted conclusions on the EU's southern
maritime borders which we understand are meant to encourage an
integrated approach to border control and surveillance operations.
This is, as we understand it, a joint effort between Member States,
the Commission and Frontex, but also involving the International
Organisation for Migration and the UN Refugee Commissioner. Could
you tell us how you think this is going and do you think much
will happen in practice, and what in particular might be the role
of the IOM and the UNHCR?
Mr Faull: This is an important step forward.
The Council conclusions referring to an integrated approach want
us to look beyond interception to the protection needs, repatriation
possibilities and rights of migrants to dignified treatment and
to seek international protection. As a result of this wider scope
we are promoting co-operation between Frontex on the one hand
and the IOM and the UNHCR on the other so that arrangements can
be found to co-ordinate support from UNHCR and IOM to migrants
intercepted in the course of joint operations and disembarked
in a Member State, or indeed in a foreign country. UNHCR has appointed
a representative to Frontex in Warsaw and the Frontex management
board has given Frontex a mandate to negotiate formal working
arrangements with the IOM and the UNHCR. Both of these organisations
participate in the meetings of the expert group created to follow
up the study on the law of the sea and to draft the practical
guidelines for Frontex joint operations I referred to earlier.
IOM and UNHCR could make a significant contribution to our understanding
of migratory flows, the course they take and the reasons for them.
They have a vast network of offices and relations with non-governmental
organisations in most of the foreign countries in which we are
particularly interested. Frontex for its part can provide both
organisations with general updates of operational activities and
the main results of its risk analyses, thereby establishing a
two-way information flow. Training is organised by Frontex for
EU border guards. That training should cover principles of international
protection and refugee law and could also cover such practical
questions as how to deal with interception of immigrants and how
to deal with would-be asylum seekers and UNHCR and IOM could have
a role to play in helping with the training of border guard staff
in these areas.
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