Statewatch Analysis The Frontex Regulation – Consolidated text after 2011 amendments Steve Peers Professor of Law, University of Essex The following presents the Regulation setting up the EU Borders Agency – ‘Frontex’ – as it will be amended by a number of amendments (the ‘2011 amendments’) recently agreed in principle between the European Parliament and the Council. In order to make clear at a glance the impact of the 2011 amendments, they have been highlighted in bold and italics throughout. Where the 2011 amendments would delete the existing text of the Regulation, the existing text which will be deleted is indicated in brackets and strike-out: ie [Community]. There might be technical changes to the 2011 amendments before their final adoption. Currently, the European Parliament plenary is due to approve these changes in September 2011, and then they will likely be finally adopted by the Council in September or October. The Regulation will then enter into force 20 days after its publication in the EU Official Journal. The Frontex Regulation was already amended once before, in 2007 (by Regulation 863/2007, which mainly concerned the creation of ‘Rapid Border Intervention Teams’). The changes made then have also been integrated into the text of the Regulation, and they are indicated by footnotes.

COUNCIL REGULATION (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 349, 25.11.2004, p. 1) [as amended in 2007 and 2011; original footnotes omitted] THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 62(2)(a) and 66 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament, Having regard to the opinion of the European Economic and Social Committee, Whereas: (1) Community policy in the field of the EU external borders aims at an integrated management ensuring a uniform and high level of control and surveillance, which is a necessary corollary to the free movement of persons within the European Union and a fundamental component of an area of freedom, security and justice. To this end, the establishment of common rules on standards and procedures for the control of external borders is foreseen. (2) The efficient implementation of the common rules calls for increased coordination of the operational cooperation between the Member States. (3) Taking into account the experiences of the External Borders Practitioners’ Common Unit, acting within the Council, a specialised expert body tasked with improving the coordination of operational cooperation between Member States in the field of external border management should therefore be established in the shape of a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (hereinafter referred to as the Agency). (4) The responsibility for the control and surveillance of external borders lies with the Member States. The Agency should facilitate the application of existing and future Community measures relating to the management of external borders by ensuring the coordination of Member States’ actions in the implementation of those measures. (5) Effective control and surveillance of external borders is a matter of the utmost importance to Member States regardless of their geographical position. Accordingly, there is a need for promoting solidarity between Member States in the field of external border management. The establishment of the Agency, assisting Member States with implementing the operational aspects of external border management, including return of third-country nationals illegally present in the Member States, constitutes an important step in this direction. (6) Based on a common integrated risk analysis model, the Agency should carry out risk analyses in order to provide the Community and the Member States with adequate 2

information to allow for appropriate measures to be taken or to tackle identified threats and risks with a view to improving the integrated management of external borders. (7) The Agency should provide training at European level for national instructors of border guards and additional training and seminars related to control and surveillance at external borders and removal of third-country nationals illegally present in the Member States for officers of the competent national services. The Agency may organise training activities in cooperation with Member States on their territory. (8) The Agency should follow up on the developments in scientific research relevant for its field and disseminate this information to the Commission and to the Member States. (9) The Agency should manage lists of technical equipment provided by the Member States, thereby contributing to the ‘pooling’ of material resources. (10) The Agency should also support Member States in circumstances requiring increased technical and operational assistance at external borders. (11) In most Member States, the operational aspects of return of third-country nationals illegally present in the Member States fall within the competencies of the authorities responsible for controlling external borders. As there is a clear added value in performing these tasks at European level, the Agency should, subject to the Community return policy, accordingly provide the necessary assistance for organising joint return operations of Member States and identify best practices on the acquisition of travel documents and the removal of third-country nationals illegally present in the territories of the Member States. (12) For the purpose of fulfilling its mission and to the extent required for the accomplishment of its tasks, the Agency may cooperate with Europol, the competent authorities of third countries and the international organisations competent in matters covered by this Regulation in the framework of working arrangements concluded in accordance with the relevant provisions of the Treaty. The Agency should facilitate the operational cooperation between Member States and third countries in the framework of the external relations policy of the European Union. (13) Building upon the experiences of the External Borders Practitioners’ Common Unit and the operational and training centres specialised in the different aspects of control and surveillance of land, air and maritime borders respectively, which have been set up by Member States, the Agency may itself create specialised branches responsible for dealing with land, air and maritime borders. (14) The Agency should be independent as regards technical matters and have legal, administrative and financial autonomy. To that end, it is necessary and appropriate that it should be a Community body having legal personality and exercising the implementing powers, which are conferred upon it by this Regulation. (15) The Commission and the Member States should be represented within a Management Board in order to control effectively the functions of the Agency. The Board should, where possible, consist of the operational heads of the national services responsible for border guard management or their representatives. This Board should be entrusted with the necessary powers to establish the budget, verify its execution, adopt the appropriate financial rules, establish transparent working procedures for decision making by the Agency and appoint the Executive Director and his/her deputy. (16) In order to guarantee the full autonomy and independence of the Agency, it should be granted an autonomous budget whose revenue comes essentially from a contribution from 3

the Community. The Community budgetary procedure should be applicable as far as the Community contribution and any other subsidies chargeable to the general budget of the European Union are concerned. The auditing of accounts should be undertaken by the Court of Auditors. (17) Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) should apply without restriction to the Agency, which should accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-Fraud Office (OLAF). (18) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents should apply to the Agency. (19) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (4) applies to the processing of personal data by the Agency. (20) The development of the policy and legislation on external border control and surveillance remains a responsibility of the EU institutions, in particular the Council. Close coordination between the Agency and these institutions should be guaranteed. (21) Since the objectives of this Regulation, namely the need for creating an integrated management of operational cooperation at the external borders of the Member States of the European Union, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (22) This Regulation respects the fundamental rights and observes the principles recognised by Article 6(2) of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. (23) As regards Iceland and Norway, this Regulation constitutes a development of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point A of Council Decision 1999/437/EC on certain arrangements for the application of that Agreement. Consequently, delegations of the Republic of Iceland and the Kingdom of Norway should participate as members of the Management Board of the Agency, albeit with limited voting rights. In order to determine the further modalities allowing for the full participation of the Republic of Iceland and the Kingdom of Norway in the activities of the Agency, a further arrangement should be concluded between the Community and these States. (24) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it, or subject to its application. Given that this Regulation builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark should, in accordance with Article 5 of the said Protocol, decide within a period of 4

six months after the Council has adopted this Regulation whether it will implement it in its national law or not. (25) This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis. The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (26) This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis. Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application. (27) The Agency should facilitate the organisation of operational actions in which the Member States may avail themselves of the expertise and facilities which Ireland and the United Kingdom may be willing to offer, in accordance with modalities to be decided on a case-by-case basis by the Management Board. To that end, representatives of Ireland and the United Kingdom should be invited to attend all the meetings of the Management Board in order to allow them to participate fully in the deliberations for the preparation of such operational actions. (28) A controversy exists between the Kingdom of Spain and the United Kingdom on the demarcation of the borders of Gibraltar. (29) The suspension of the applicability of this Regulation to the borders of Gibraltar does not imply any change in the respective positions of the States concerned, HAS ADOPTED THIS REGULATION: CHAPTER I SUBJECT MATTER Article 1 1 Establishment of the Agency 1. A European Agency for the Management of Operational Cooperation at the External Borders (the Agency) is hereby established with a view to improving the integrated management of the external borders of the Member States of the European Union. 2. While considering that the responsibility for the control and surveillance of external borders lies with the Member States, the Agency as a body of the Union as defined in Article 15 and in accordance with Article 19 of this Regulation, shall facilitate and render more effective the application of existing and future [Community] European Union measures relating to the management of external borders, in particular the Schengen Borders Code. It shall do so by ensuring the coordination of Member States’ actions in the implementation of those measures, thereby contributing to an efficient, high and uniform level of control on persons and surveillance of the external borders of the Member States. 1 The original Art. 1(4) was repealed by Reg. 863/2007. It is now Art. 1a(1). 5

The Agency shall fulfil its tasks in full compliance with the relevant Union law, including the Charter of Fundamental Rights of the European Union, international law, including the Convention Relating to the Status of Refugees of 28 July 1951 ("the Geneva Convention"), obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights and taking into account the reports of the Consultative Forum referred to in Article 26a. 3. The Agency shall also provide the Commission and the Member States with the necessary technical support and expertise in the management of the external borders and promote solidarity between Member States, especially those facing specific and disproportionate pressures. Article 1a 2 Definitions For the purposes of this Regulation, the following definitions shall apply: 1. ‘external borders of the Member States’ means the land and sea borders of the Member States and their airports and seaports, to which the provisions of Community law on the crossing of external borders by persons apply; 1a. "European Border Guard Teams" means for the purpose of Article 3, Article 3b, Article 3c, Article 8 and Article 17 teams to be deployed during joint operations and pilot projects, for the purpose of Articles 8a to 8g teams to be deployed for the rapid border interventions (hereinafter referred to as "rapid interventions)" within the meaning of Regulation (EC) No 863/2007 and for the purpose of Article 2(1)(ea) and (g) and Article 5 teams to be deployed during joint operations, pilot projects and rapid interventions 2. ‘host Member State’ means a Member State [on the territory of] in which a [deployment of a Rapid Border Intervention Team or a] joint operation [or] a pilot project or a rapid intervention takes place or from which it is launched; 3. ‘home Member State’ means the Member State of which a member of the team or the guest officer is a border guard; 4. ‘members of the teams’ means border guards of Member States serving with the [Rapid Border Intervention Team] European Border Guard Teams other than those of the host Member State; 5. ‘requesting Member State’ means a Member State whose competent authorities request the Agency to deploy the Rapid Border Intervention Teams on its territory; 6. ‘guest officers’ means the officers of border guard services of Member States other than the host Member State participating in joint operations and pilot projects. CHAPTER II TASKS Article 2 3 Main tasks 2 This Art. was inserted by Reg. 863/2007. 3 Art. 2(1)(g) was inserted by Reg. 863/2007. 6

1. The Agency shall perform the following tasks: (a) coordinate operational cooperation between Member States in the field of management of external borders; (b) assist Member States on training of national border guards, including the establishment of common training standards; (c) carry out risk analyses, including the assessment of the capacity of Member States to face threats and pressure at the external borders; (d) [follow up on] participate in the development of research relevant for the control and surveillance of external borders; (da) assist Member States in circumstances requiring increased technical and operational assistance at the external borders, taking into account that some situations may involve humanitarian emergencies and rescue at sea; (e) assist Member States in circumstances requiring increased technical and operational assistance at external borders, especially those Member States facing specific and disproportionate pressures; (ea) set up European Border Guard Teams that are to be deployed during joint operations, pilot projects and rapid interventions; (f) provide Member States with the necessary support [in organising] including, upon request, coordination or organisation of joint return operations; (g) deploy [Rapid Border Intervention Teams to Member States in accordance with Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers] border guards from the European Border Guard Teams to Member States in joint operations, pilot projects or in rapid interventions in accordance with Regulation (EC) No 863/2007. (h) develop and operate in accordance with Regulation (EC) No 45/2001 information systems that enable swift and reliable exchanges of information regarding emerging risks at the external borders, including the Information and Coordination Network established by Council Decision 2005/267/EC; (i) provide the necessary assistance to the development and operation of a European border surveillance system and, as appropriate, to the development of a common information sharing environment, including interoperability of systems. 1b. In accordance with Union and international law, no person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle. The special needs of children, victims of trafficking, persons in need of medical assistance, persons in need of international protection and other vulnerable persons shall be addressed in accordance with Union and international law. 7

2. Without prejudice to the competencies of the Agency, Member States may continue cooperation at an operational level with other Member States and/or third countries at external borders, where such cooperation complements the action of the Agency. Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives. Member States shall report to the Agency on these operational matters at the external borders outside the framework of the Agency. The Executive Director shall inform the Management Board on these matters on a regular basis and at least once a year. Article 2a Code of Conduct The Agency shall draw up and further develop a Code of Conduct applicable to all operations coordinated by the Agency. The Code of Conduct shall lay down procedures intended to guarantee the principles of the rule of law and the respect of fundamental rights with particular focus on unaccompanied minors and vulnerable persons, as well as persons seeking international protection, applicable to all persons participating in Frontex activities. The Code of Conduct shall be developed in cooperation with the consultative forum referred to in Article 26a. Article 3 Joint operations and pilot projects at the external borders 1. The Agency shall evaluate, approve and coordinate proposals for joint operations and pilot projects made by Member States, including the requests of Member States related to circumstances requiring increased technical and operational assistance, especially in cases of specific and disproportionate pressures. The Agency may itself [, and in agreement] initiate and carry out joint operations and pilot projects in cooperation with the Member State(s) concerned [, launch initiatives for joint operations and pilot projects in cooperation with] and in agreement with the host Member States. It may also decide to put its technical equipment at the disposal of Member States participating in the joint operations or pilot projects. Joint operations and pilot projects should be preceded by a thorough risk analysis. 1a. The Agency may also terminate, after informing the Member State concerned, joint operations and pilot projects if the conditions to conduct these initiatives are no longer fulfilled. Participating Member States may request the Agency to terminate a joint operation or pilot project. The home Member State shall provide for appropriate disciplinary or other measures in accordance with their law in case of violations of fundamental rights or international protection obligations in the course of such activities. 8

The Executive Director of the Agency shall suspend or terminate, in whole or in part, joint operations and pilot projects if it considers that violations concerned are of a serious nature or are likely to persist. 2. The Agency shall constitute a pool of border guards called European Border Guard Teams in accordance with the provisions of Article 3b, for possible deployment during joint operations and pilot projects referred to in paragraph 1. It shall decide on the deployment of human resources and technical equipment in accordance with Articles 3a and 7. [2.] 3. The Agency may operate through its specialised branches provided for in Article 16, for the practical organisation of joint operations and pilot projects. [3.] 4. The Agency shall evaluate the results of the joint operations and pilot projects and transmit the detailed evaluation reports within 60 days following the end of the activity to the Management Board, together with the observations of the Fundamental Rights Officer referred to in Article 26a. The Agency shall make a comprehensive comparative analysis of those results with a view to enhancing the quality, coherence and efficiency of future operations and projects to be included in its general report provided for in Article 20(2)(b). [4.] 5. The Agency [may decide to] shall finance or co-finance the operations and projects referred to in paragraph 1, with grants from its budget in accordance with the financial rules applicable to the Agency. 5a. Paragraphs 1a and 5 shall apply to rapid interventions. Article 3a Organisational aspects of joint operations and pilot projects 1. The Executive Director shall draw up an operational plan for activities referred to in Article 3(1). The Executive Director and the host Member State, in consultation with participating Member States, shall agree on the operational plan detailing the organisational aspects in due time before the envisaged beginning of the activity. The operational plan shall cover all aspects considered necessary for carrying out the joint operation or the pilot project, including the following: (a) a description of the situation, with modus operandi and objectives of the deployment, including the operational aim; (b) the foreseeable duration of the joint operation or pilot projects; (c) the geographical area where the joint operation or pilot project will take place; (d) description of the tasks and special instructions for the guest officers, including on permissible consultation of databases and permissible service weapons, ammunition and equipment in the host Member State; (e) the composition of the teams of guest officers, as well as the deployment of other relevant staff; (f) command and control provisions, including the names and ranks of the host Member State's border guards responsible for cooperating with the guest officers and 9

the Agency, in particular those of the border guards who are in command during the period of deployment, and the place of the guest officers in the chain of command; (g) the technical equipment to be deployed during the joint operation or pilot project, including specific requirements such as conditions for use, requested crew, transport and other logistics, and financial provisions; (h1) detailed provisions on immediate incident reporting by the Agency to the Management Board and to relevant national public authorities; (h2) a reporting and evaluation scheme containing benchmarks for the evaluation report and final date of submission of the final evaluation report in accordance with Article 3(4). (i) regarding sea operations, specific information on the application of the relevant jurisdiction and legislation in the geographical area where the joint operation takes place, including reference to international and Union law regarding interception, rescue at sea and disembarkation; (j) modalities of cooperation with third countries, other European Union agencies and bodies or international organisations. 2. Any amendments to or adaptations of the operational plan shall require the agreement of the Executive Director and the host Member State. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States. 3. The Agency shall, as part of its coordinating tasks, ensure the operational implementation of all the organisational aspects, including the presence of a staff member of the Agency during joint operations and pilot projects referred to in this Article. Article 3b Composition and deployment of European Border Guard Teams 1. On a proposal by the Executive Director, the Management Board shall decide by an absolute majority of its members with a right to vote on the profiles and the overall number of border guards to be made available for the European Border Guard Teams. The same procedure shall apply with regard to any subsequent changes in the profiles and the overall numbers. Member States shall contribute to the European Border Guard Teams via a national pool on the basis of the various defined profiles by nominating border guards corresponding to the required profiles. 2. The contribution by Member States as regards their border guards to specific operations for the coming year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with these agreements, Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. Such a request shall be made at least 45 days before the intended deployment. The autonomy of the home Member State in relation to the selection of staff and the duration of their deployment shall remain unaffected. 3. The Agency shall also contribute to the European Border Guard Teams with competent border guards seconded by the Member States as national experts 10