STATE OF PLAY OF THE IMPLEMENTATION OF THE EBCG 2.0 REGULATION IN VIEW OF CURRENT CHALLENGES Digitalisation in the field of returns In accordance with the provisions of Article 48 (c) stipulating the development of a reference module for national IT systems on return case management, Frontex has prepared, published and made available to MS, the reference model RECAMAS v.1.0. In 2020 Frontex continues to update RECAMAS model with best national practices, increased scope (including post return module), and through providing of necessary support to MS in improving their national systems. FX currently deals with the operation of an integrated return management platform, having assumed the management of Integrated Return Management Application (IRMA) from the Commission as of 2019. At the same time the Agency is also further working on the project for IRMA 2.0 to include new operational modules, and address the requirements and full scope of provisions referenced in the Articles 48 and 49 to ensure technical and operational assistance. FX has also made first attempts in examining the possibilities to establishment of a communication infrastructure that enables linking of the return management systems of the Member States with the central system as per Article 48 (d) through the pilot project with AT. Fundamental Rights With the new mandate, further developments are to take place in the area of fundamental rights protection, among which setting up special rules of independence of Fundamental Rights Officer, special complaints mechanism and the establishment of the teams of the Fundamental Rights Monitors are the most significant ones. Currently legal analyses and exchanges are taking place to identify all factors that should be accounted for in the MB decision on FRO special rules. Regarding the adaptation of the complaints mechanism to the new regulation, internal consultations on the first draft of the ED Decision are ongoing in view to adapt the complaints mechanism. As per selection of the Fundamental Rights Monitors, the Agency has signed a Service Level Agreement with FRA to support the establishment and training of the team of monitors. The first technical phase defining the scope and objectives for the next phase has been completed on 31 March 2020 and the nd current 2 phase is now being planned to allow the establishment of the team of monitors by the end of 2020. Data Protection As regards developments in the area of data protection, the package of data protection implementing rules includes: •   Implementing Rules on the Data Protection Officer, •   Implementing Rules on Operational Personal Data, •   Implementing Rules on Restriction of rights for returnees, •   Implementing Rules on Restrictions of rights for administrative data, •   Implementing Rules on personal data processed within EUROSUR Framework. 7607/20                                                                             GK/cr                        14 JAI.1                 LIMITE                             EN

STATE OF PLAY OF THE IMPLEMENTATION OF THE EBCG 2.0 REGULATION IN VIEW OF CURRENT CHALLENGES This package shall be implemented throughout 2020. First draft of the implementing rules on the DPO is intended to be submitted to the MB in Q2 2020. III.      Legal challenges related to the new Regulation Besides the implementation effort in the areas indicated above, the Agency is also struggling with finding specific legal interpretation and solutions to some of the issues that constitute legal challenges, as specified below and for which the Agency will be seeking support from the Commission and the MS. ❖ Service weapons As provided by the Regulation, the members of standing corps Category 1 shall perform their tasks requiring carrying and use of service weapons, ammunition and other equipment. In efforts to determine the legal basis for acquiring weapons, ammunition and other equipment, the Agency received legal analysis from two different sources, by an external expert and a regulatory law firm. Both analyses confirmed that the EBCG 2.0 Regulation and the Headquarters Agreement do not provide sufficient legal basis for the Agency to acquire, register, store and transport firearms in Poland. None of Polish legal acts either directly or indirectly mention the Agency as an entity, which is entitled to acquire (possess) firearms or ammunition for the purpose of fulfilment of its statutory tasks and duties, without a permit issued by the Polish authorities. The Agency has addressed the shortcoming with a letter to the Commission asking for legal interpretation and support to resolve the matter. ❖ Supervisory mechanism on the use of force (Article 55(5)(a) of the Regulation) including rules of a disciplinary nature Establishment of a new supervisory mechanism on the use of force as well as rules of a disciplinary nature for the Category 1 statutory staff might be challenging in practical and legal terms as they do not fully integrate with the Commission rules on Administrative Inquiries and Disciplinary measures made pursuant to Annex IX Staff Regulations. Standing corps being the first uniformed service of the EU will require different treatment in comparison to the regular officials working in the EU Institutions starting already from a different recruitment procedure (involving additional medical checks which will continue throughout the year) to the totally different nature of tasks and risks associated with their deployments. Special arrangements or derogations to the Staff Regulations are needed to account for these needs. ❖ Privileges and immunities (Article 96 of the Regulation) Regulation implies that the Protocol No 7 on the Privileges and Immunities of the European Union annexed to the Treaty on European Union (TEU) and to the TFEU shall apply to the Agency and its statutory staff. However, the Protocol No 7 does not offer a full protection, or take into account a need for the inviolability of assets owned by Frontex (service vehicles, vessels, aircraft), and does not apply at all in third countries. HQ Agreement has limited scope as well as it covers only Poland. Article 63(4)(a) of the Regulation provides some degree of support, but it only includes acquisition and co- 7607/20                                                                              GK/cr                        15 JAI.1                 LIMITE                             EN

STATE OF PLAY OF THE IMPLEMENTATION OF THE EBCG 2.0 REGULATION IN VIEW OF CURRENT CHALLENGES ownership (major technical equipment), not leasing. EU level ‘status of forces agreement’, including measures for storage and transportation of service weapons, movements of Frontex vehicles, vessels and aircraft might be needed to account for this partial absence of rules. ❖ Voluntary returns, voluntary departures The terminology of voluntary return was introduced in the Regulation without providing any definition thereof. This terminology (voluntary departure vs voluntary return) is moreover not in line with the terminology used in the Return Directive (EBCG 2.0 refers to the definition of returns provided for in the Return Directive. The Return Directive, however, does not cover voluntary returns; a voluntary return is not a return within the meaning of the Return Directive). Further elaboration is needed. IV.      COVID-19 Impact In addition to the aforementioned ongoing implementation activities and legal challenges as identified by the Agency, there have been also severe consequences of the COVID-19 restrictions introduced by MS. The biggest impact of the lock-down measures could be seen on the establishment of the standing corps as most of the previously agreed strategies had to be amended in order to fit into a new reality. New solutions and innovative ways of working are now being explored to allow the Agency to achieve its goals and deliver the very much needed support to MS. It is true that some processes might be delayed or changed in shape due to the COVID-19 implications but it does not mean that the implementation of the new mandate shall be put on hold. ❖ Recruitment of Category 1 standing corps Considering COVID-19 impact, the sequence of recruitment has been changed not to jeopardise the process and still give equal opportunities to all candidates who have applied for the standing corps. Interviews with the use of video conferencing tools will re-start at the end of April. Respective invitations are being sent now and the expected number is 80 candidates during first week. The number of interviewed candidates will steadily grow and the estimate is having between 100 and 120 per week. In total approximately 1000 interviews are to be carried out (i.e. those who passed EN test). Once the contractor, which carries out the physical tests, re-opens, those with positive interview results will be invited to the test, which is a mandatory step in the recruitment. Although the interviews will reconvene through video conferencing, the selection process is still dependent on the physical and medical tests. ❖ Category 2 and 3 The outcome of the survey which will be disseminated to Member States ahead of the Pooled Resources Network will give an indication of the impact of COVID-19 on Category 2 and 3. ❖ Pooling Process There is a risk that deadlines will not be met because of the recruitment and nomination challenges due to COVID-19. 7607/20                                                                            GK/cr                        16 JAI.1                 LIMITE                             EN

STATE OF PLAY OF THE IMPLEMENTATION OF THE EBCG 2.0 REGULATION IN VIEW OF CURRENT CHALLENGES ❖ Training The outbreak of the pandemic and consequent travel restrictions as well as social distancing measures affected the initial planning for the training of Category 1. In order not to delay the process any further a shift towards the e-learning has been agreed upon. The new approach will follow the same Full Basic Training of 6-month but some of the modules will be moved into online environment to enable distance learning. It is needless to add that the concept for a partial transition into an e-learning environment will be accompanied by all possible measures to develop the necessary operational competences and to keep the operational character of the training as much as possible. The course will comprise of a hands-on experience during the first days of deployment (training on the job) to ensure full readiness of new recruits to take up their duties. However, the successful implementation of this strategy will be depended on the availability of subject matter experts to urgently transform part of the Basic Training Programme into an e-learning as well as availability of the trainers to lead online courses. No delay is foreseen in the availability of the specialized profile related training of the standing corps. In principle, all the foreseen preparations are on track. Nevertheless, if the current situation will continue and restrictions will be imposed for a longer period of time, the specialized profile related training will be impacted by the unavailability of learners, trainers and specialized training facilities. The impact will affect not only the training of Category 1, but also Category 2 and 3. V.      Consequences for the budgetary considerations The extended legal mandate of the Agency is a result of the identified need at the EU level to provide an integrated response to protect the external borders through permanent deployment of standing corps and overcoming the persistent gaps in the voluntary contributions of staff and equipment of the Members States, to fight cross-border crime and significantly step-up the effective and sustainable return of irregular migrants as well as to further develop the situational awareness and information systems. In the context of possible emerging risks related to COVID-19 and current threats at the EU external borders this need becomes even more visible and proves that integrated response to the border management is a key to the well-functioning, secure and solidary Union not only in a short term but also in the long run. Looking at the economic implications of COVID-19 on the Member States, FX understands that adjustments will have to be made regarding the Multi-annual Financial Framework for 2021-2027. Nevertheless, the Agency in order to serve its purpose and support MS in tackling internal and external challenges must continue developing its activities as in line with the new Regulation. The gradual deployment of the standing corps will allow for reinforcement of the permanent presence of European border guards on EU external borders as well as greater flexibility of deployment (quick response teams). Regarding the acquisition of own equipment, the preparatory steps for 2021 implementation are already taking place this year, and FX intends to continue increasing the capabilities and the acquisition of own equipment, in close coordination with Member States. Moreover, the investment in IT systems is needed, in particular regarding the upgrade and implementation of the new requirements 7607/20                                                                             GK/cr                        17 JAI.1                 LIMITE                             EN

for the EUROSUR communication network. Regarding return activities, although the activities have currently been put on hold, they will resume once the restrictions on the aerial transportations are gradually lifted. Having a significant reduction to its budgetary envelope, the Agency will not be able to provide what has been initially intended undermining the concept of the EBCG as whole. 7607/20                                                                     GK/cr                     18 ANNEX                                             JAI.1              LIMITE                         EN