This Regulation shall apply to border surveillance operations carried out by Member States at their external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.
Article 2 -
Definitions
For the purposes of this Regulation the following definitions shall apply:
(1)
‘Agency’ means the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union established by Regulation (EC) No 2007/2004;
(2)
‘sea operation’ means a joint operation, pilot project or rapid intervention carried out by Member States for the surveillance of their external sea borders under the coordination of the Agency;
(3)
‘host Member State’ means a Member State in which a sea operation takes place or from which it is launched;
(4)
‘participating Member State’ means a Member State which participates in a sea operation by providing technical equipment, border guards deployed as part of the European Border Guard Teams or other relevant staff but which is not a host Member State;
(5)
‘participating unit’ means a maritime, land or aerial unit under the responsibility of the host Member State or of a participating Member State that takes part in a sea operation;
(6)
‘International Coordination Centre’ means the coordination structure established within the host Member State for the coordination of a sea operation;
(7)
‘National Coordination Centre’ means the national coordination centre established for the purposes of the European Border Surveillance System (Eurosur) in accordance with Regulation (EU) No 1052/2013;
(8)
‘operational plan’ means the operational plan referred to in Article 3a and Article 8e of Regulation (EC) No 2007/2004;
(9)
‘vessel’ means any type of water craft, including boats, dinghies, floating platforms, non-displacement craft and seaplanes, used or capable of being used at sea;
(10)
‘stateless vessel’ means a vessel without nationality or assimilated to a vessel without nationality when the vessel has not been granted by any State the right to fly its flag or when it sails under the flags of two or more States, using them according to convenience;
(11)
‘Protocol against the Smuggling of Migrants’ means the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime signed in Palermo, Italy in December 2000;
(12)
‘place of safety’ means a location where rescue operations are considered to terminate and where the survivors’ safety of life is not threatened, where their basic human needs can be met and from which transportation arrangements can be made for the survivors’ next destination or final destination, taking into account the protection of their fundamental rights in compliance with the principle of non-refoulement;
(13)
‘Rescue Coordination Centre’ means a unit responsible for promoting efficient organisation of search and rescue services and for coordinating the conduct of search and rescue operations within a search and rescue region as defined in the International Convention on Maritime Search and Rescue;
(14)
‘contiguous zone’ means a zone contiguous to the territorial sea as defined in Article 33 of the United Nations Convention on the Law of the Sea, where formally proclaimed;
(15)
‘coastal Member State’ means a Member State in whose territorial sea or contiguous zone an interception takes place.
CHAPTER II - GENERAL RULES
Article 3 -
Safety at sea
Measures taken for the purpose of a sea operation shall be conducted in a way that, in all instances, ensures the safety of the persons intercepted or rescued, the safety of the participating units or that of third parties.
Article 4 -
Protection of fundamental rights and the principle of non-refoulement
1. No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement.
2. When considering the possibility of disembarkation in a third country, in the context of planning a sea operation, the host Member State, in coordination with participating Member States and the Agency, shall take into account the general situation in that third country.
The assessment of the general situation in a third country shall be based on information derived from a broad range of sources, which may include other Member States, Union bodies, offices and agencies, and relevant international organisations and it may take into account the existence of agreements and projects on migration and asylum carried out in accordance with Union law and through Union funds. That assessment shall be part of the operational plan, shall be provided to the participating units and shall be updated as necessary.
Intercepted or rescued persons shall not be disembarked, forced to enter, conducted to or otherwise handed over to the authorities of a third country when the host Member State or the participating Member States are aware or ought to be aware that that third country engages in practices as described in paragraph 1.
3. During a sea operation, before the intercepted or rescued persons are disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a third country and taking into account the assessment of the general situation in that third country in accordance with paragraph 2, the participating units shall, without prejudice to Article 3, use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand or may reasonably be presumed to understand and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement.
For those purposes, further details shall be provided for in the operational plan including, when necessary, the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts of the host and participating Member States. Each participating unit shall include at least one person with basic first aid training.
The report referred to in Article 13 shall, based on information that shall be provided by the host and participating Member States, include further details on cases of disembarkation in third countries and how each element of the procedures laid down in the first subparagraph of this paragraph was applied by the participating units to ensure compliance with the principle of non-refoulement.
4. Throughout a sea operation, the participating units shall address the special needs of children, including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent medical assistance, disabled persons, persons in need of international protection and other persons in a particularly vulnerable situation.
5. Any exchange with third countries of personal data obtained during a sea operation for the purposes of this Regulation shall be strictly limited to what is absolutely necessary and shall be carried out in accordance with Directive 95/46/EC of the European Parliament and of the Council (16), Council Framework Decision 2008/977/JHA (17) and relevant national provisions on data protection.
The exchange with third countries of personal data regarding intercepted or rescued persons obtained during a sea operation shall be prohibited where there is a serious risk of contravention of the principle of non-refoulement.
6. Participating units shall, in the performance of their duties, fully respect human dignity.
7. This Article shall apply to all measures taken by Member States or the Agency in accordance with this Regulation.
8. Border guards and other staff participating in a sea operation shall be trained with regard to relevant provisions of fundamental rights, refugee law and the international legal regime of search and rescue in accordance with the second paragraph of Article 5 of Regulation (EC) No 2007/2004.
CHAPTER III - SPECIFIC RULES
Article 5 -
Detection
1. Upon detection, the participating units shall approach a vessel suspected of carrying persons circumventing or intending to circumvent checks at border crossing points or of being engaged in the smuggling of migrants by sea in order to observe its identity and nationality and, pending further measures, shall survey that vessel at a prudent distance taking all due precautions. The participating units shall collect and immediately report information about that vessel to the International Coordination Centre, including, where possible, information about the situation of persons on board, in particular whether there is an imminent risk to their lives or whether there are persons in urgent need of medical assistance. The International Coordination Centre shall transmit that information to the National Coordination Centre of the host Member State.
2. Where a vessel is about to enter or it has entered the territorial sea or the contiguous zone of a Member State that is not participating in the sea operation, the participating units shall collect and report information about that vessel to the International Coordination Centre, which shall transmit that information to the National Coordination Centre of the Member State concerned.
3. The participating units shall collect and report information about any vessel suspected of being engaged in illegal activities at sea, which are outside the scope of the sea operation, to the International Coordination Centre, which shall transmit that information to the National Coordination Centre of the Member State concerned.
Article 6 -
Interception in the territorial sea
1. In the territorial sea of the host Member State or a neighbouring participating Member State, that State shall authorise the participating units to take one or more of the following measures where there are reasonable grounds to suspect that a vessel may be carrying persons intending to circumvent checks at border crossing points or is engaged in the smuggling of migrants by sea:
(a)
requesting information and documentation on ownership, registration and elements relating to the voyage of the vessel, and on the identity, nationality and other relevant data on persons on board, including whether there are persons in urgent need of medical assistance, and making persons on board aware that they may not be authorised to cross the border;
(b)
stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on board and informing them that persons directing the vessel may face penalties for facilitating the voyage.
2. If evidence confirming that suspicion is found, that host Member State or neighbouring participating Member State may authorise the participating units to take one or more of the following measures:
(a)
seizing the vessel and apprehending persons on board;
(b)
ordering the vessel to alter its course outside of or towards a destination other than the territorial sea or the contiguous zone, including escorting the vessel or steaming nearby until it is confirmed that the vessel is keeping to that given course;
(c)
conducting the vessel or persons on board to the coastal Member State in accordance with the operational plan.
3. Any measure taken in accordance with paragraph 1 or 2 shall be proportionate and shall not exceed what is necessary to achieve the objectives of this Article.
4. For the purposes of paragraphs 1 and 2, the host Member State shall instruct the participating unit appropriately through the International Coordination Centre.
The participating unit shall inform the host Member State, through the International Coordination Centre, whenever the master of the vessel requests that a diplomatic agent or a consular officer of the flag State be notified.
5. Where there are reasonable grounds to suspect that a stateless vessel is carrying persons intending to circumvent the checks at border crossing points or is engaged in the smuggling of migrants by sea, the host Member State or the neighbouring participating Member State in whose territorial sea that stateless vessel is intercepted shall authorise one or more of the measures laid down in paragraph 1 and may authorise one or more of the measures laid down in paragraph 2. The host Member State shall instruct the participating unit appropriately through the International Coordination Centre.
6. Any operational activities in the territorial sea of a Member State that is not participating in the sea operation shall be conducted in accordance with the authorisation of that Member State. The host Member State shall instruct the participating unit through the International Coordination Centre based on the course of action authorised by that Member State.
Article 7 -
Interception on the high seas
1. On the high seas, where there are reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea, the participating units shall take one or more of the following measures, subject to the authorisation of the flag State, in accordance with the Protocol against the Smuggling of Migrants, and where relevant, national and international law:
(a)
requesting information and documentation on ownership, registration and elements relating to the voyage of the vessel, and on the identity, nationality and other relevant data on persons on board, including whether there are persons in urgent need of medical assistance;
(b)
stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on board and informing them that persons directing the vessel may face penalties for facilitating the voyage.
2. If evidence confirming that suspicion is found, the participating units may take one or more of the following measures, subject to the authorisation of the flag State, in accordance with the Protocol against the Smuggling of Migrants, and where relevant, national and international law:
(a)
seizing the vessel and apprehending persons on board;
(b)
warning and ordering the vessel not to enter the territorial sea or the contiguous zone, and, where necessary, requesting the vessel to alter its course towards a destination other than the territorial sea or the contiguous zone;
(c)
conducting the vessel or persons on board to a third country or otherwise handing over the vessel or persons on board to the authorities of a third country;
(d)
conducting the vessel or persons on board to the host Member State or to a neighbouring participating Member State.
3. Any measure taken in accordance with paragraph 1 or 2 shall be proportionate and shall not exceed what is necessary to achieve the objectives of this Article.
4. For the purposes of paragraphs 1 and 2, the host Member State shall instruct the participating unit appropriately through the International Coordination Centre.
5. Where the vessel is flying the flag or displays the marks of registry of the host Member State or of a participating Member State, that Member State may, after confirming the nationality of the vessel, authorise one or more of the measures laid down in paragraphs 1 and 2. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre.
6. Where the vessel is flying the flag or displays the marks of registry of a Member State that is not participating in the sea operation or of a third country, the host Member State or a participating Member State, depending on whose participating unit has intercepted that vessel, shall notify the flag State, shall request confirmation of registry and, if nationality is confirmed, shall request that the flag State take action to suppress the use of its vessel for smuggling of migrants. If the flag State is unwilling or unable to do so either directly or with the assistance of the Member State to whom the participating unit belongs, that Member State shall request authorisation from the flag State to take any of the measures laid down in paragraphs 1 and 2. The host Member State or the participating Member State shall inform the International Coordination Centre of any communication with the flag State and of the intended actions or measures authorised by the flag State. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre.
7. Where, though flying a foreign flag or refusing to show its flag, there are reasonable grounds to suspect that the vessel is, in reality, of the same nationality as a participating unit, that participating unit shall verify the vessel’s right to fly its flag. To that end, it may approach the suspect vessel. If suspicion remains, it shall proceed to a further examination on board the vessel, which shall be carried out with all possible consideration.
8. Where, though flying a foreign flag or refusing to show its flag, there are reasonable grounds to suspect that the vessel is, in reality, of the nationality of the host Member State or a participating Member State, the participating unit shall verify the vessel’s right to fly its flag.
9. Where, in the cases referred to in paragraph 7 or 8, the suspicions regarding the nationality of the vessel prove to be founded, that host Member State or that participating Member State may authorise one or more of the measures laid down in paragraphs 1 and 2. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre.
10. Pending or in the absence of authorisation of the flag State, the vessel shall be surveyed at a prudent distance. No other measures shall be taken without the express authorisation of the flag State, except those necessary to relieve imminent danger to the lives of persons or those measures which derive from relevant bilateral or multilateral agreements.
11. Where there are reasonable grounds to suspect that a stateless vessel is engaged in the smuggling of migrants by sea, the participating unit may board and search the vessel with a view to verifying its statelessness. If evidence confirming that suspicion is found, the participating unit shall inform the host Member State which may take, directly or with the assistance of the Member State to whom the participating unit belongs, further appropriate measures as laid down in paragraphs 1 and 2 in accordance with national and international law.
12. A Member State whose participating unit has taken any measure in accordance with paragraph 1 shall promptly inform the flag State of the outcome of that measure.
13. The national official representing the host Member State or a participating Member State at the International Coordination Centre shall be responsible for facilitating communications with the relevant authorities of that Member State in seeking authorisation to verify the right of a vessel to fly its flag or to take any of the measures laid down in paragraphs 1 and 2.
14. Where the grounds to suspect that a vessel is engaged in the smuggling of migrants on the high seas prove to be unfounded or where the participating unit does not have jurisdiction to act, but there remains a reasonable suspicion that the vessel is carrying persons intending to reach the border of a Member State and to circumvent checks at border crossing points, that vessel shall continue to be monitored. The International Coordination Centre shall communicate information about that vessel to the National Coordination Centre of the Member States towards which it is directed.
Article 8 -
Interception in the contiguous zone
1. In the contiguous zone of the host Member State or of a neighbouring participating Member State, the measures laid down in paragraphs 1 and 2 of Article 6 shall be taken in accordance with those paragraphs and with paragraphs 3 and 4 thereof. Any authorisation referred to in Article 6(1) and (2) may only be given for measures that are necessary to prevent the infringement of relevant laws and regulations within that Member State’s territory or territorial sea.
2. The measures laid down in Article 6(1) and (2) shall not be taken in the contiguous zone of a Member State that is not participating in the sea operation without the authorisation of that Member State. The International Coordination Centre shall be informed of any communication with that Member State and of the subsequent course of action authorised by that Member State. If that Member State does not give its authorisation and where there are reasonable grounds to suspect that the vessel is carrying persons intending to reach the border of a Member State, Article 7(14) shall apply.
3. Where a stateless vessel is transiting the contiguous zone, Article 7(11) shall apply.
Article 9 -
Search and rescue situations
1. Member States shall observe their obligation to render assistance to any vessel or person in distress at sea and, during a sea operation, they shall ensure that their participating units comply with that obligation, in accordance with international law and respect for fundamental rights. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.
2. For the purpose of dealing with search and rescue situations that may occur during a sea operation, the operational plan shall contain, in accordance with relevant international law, including that on search and rescue, at least the following provisions:
(a)
When, in the course of a sea operation, the participating units have reason to believe that they are facing a phase of uncertainty, alert or distress as regards a vessel or any person on board, they shall promptly transmit all available information to the Rescue Coordination Centre responsible for the search and rescue region in which the situation occurs and they shall place themselves at the disposal of that Rescue Coordination Centre.
(b)
The participating units shall inform the International Coordination Centre as soon as possible of any contact with the Rescue Coordination Centre and of the course of action taken by them.
(c)
A vessel or the persons on board shall be considered to be in a phase of uncertainty in particular:
(i)
when a person has been reported as missing or a vessel is overdue; or
(ii)
when a person or a vessel has failed to make an expected position or safety report.
(d)
A vessel or the persons on board shall be considered to be in a phase of alert in particular:
(i)
when, following a phase of uncertainty, attempts to establish contact with a person or a vessel have failed and inquiries addressed to other appropriate sources have been unsuccessful; or
(ii)
when information has been received indicating that the operating efficiency of a vessel is impaired, but not to the extent that a distress situation is likely.
(e)
A vessel or the persons on board shall be considered to be in a phase of distress in particular:
(i)
when positive information is received that a person or a vessel is in danger and in need of immediate assistance; or
(ii)
when, following a phase of alert, further unsuccessful attempts to establish contact with a person or a vessel and more widespread unsuccessful inquiries point to the probability that a distress situation exists; or
(iii)
when information is received which indicates that the operating efficiency of a vessel has been impaired to the extent that a distress situation is likely.
(f)
Participating units shall, for the purpose of considering whether the vessel is in a phase of uncertainty, alert or distress, take into account and transmit all relevant information and observations to the responsible Rescue Coordination Centre including on:
(i)
the existence of a request for assistance, although such a request shall not be the sole factor for determining the existence of a distress situation;
(ii)
the seaworthiness of the vessel and the likelihood that the vessel will not reach its final destination;
(iii)
the number of persons on board in relation to the type and condition of the vessel;
(iv)
the availability of necessary supplies such as fuel, water and food to reach a shore;
(v)
the presence of qualified crew and command of the vessel;
(vi)
the availability and capability of safety, navigation and communication equipment;
(vii)
the presence of persons on board in urgent need of medical assistance;
(viii)
the presence of deceased persons on board;
(ix)
the presence of pregnant women or of children on board;
(x)
the weather and sea conditions, including weather and marine forecasts.
(g)
While awaiting instructions from the Rescue Coordination Centre, participating units shall take all appropriate measures to ensure the safety of the persons concerned.
(h)
Where a vessel is considered to be in a situation of uncertainty, alert or distress but the persons on board refuse to accept assistance, the participating unit shall inform the responsible Rescue Coordination Centre and follow its instructions. The participating unit shall continue to fulfil a duty of care by surveying the vessel and by taking any measure necessary for the safety of the persons concerned, while avoiding to take any action that might aggravate the situation or increase the chances of injury or loss of life.
(i)
Where the Rescue Coordination Centre of a third country responsible for the search and rescue region does not respond to the information transmitted by the participating unit, the latter shall contact the Rescue Coordination Centre of the host Member State unless that participating unit considers that another internationally recognised Rescue Coordination Centre is better able to assume coordination of the search and rescue situation.
The operational plan may contain details adapted to the circumstances of the sea operation concerned.
3. Where the search and rescue situation has been concluded, the participating unit shall, in consultation with the International Coordination Centre, resume the sea operation.
Article 10 -
Disembarkation
1. The operational plan shall contain, in accordance with international law and respect for fundamental rights, at least the following modalities for the disembarkation of the persons intercepted or rescued in a sea operation:
(a)
in the case of interception in the territorial sea or the contiguous zone as laid down in Article 6(1), (2) or (6) or in Article 8(1) or (2), disembarkation shall take place in the coastal Member State, without prejudice to point (b) of Article 6(2);
(b)
in the case of interception on the high seas as laid down in Article 7, disembarkation may take place in the third country from which the vessel is assumed to have departed. If that is not possible, disembarkation shall take place in the host Member State;
(c)
in the case of search and rescue situations as laid down in Article 9 and without prejudice to the responsibility of the Rescue Coordination Centre, the host Member State and the participating Member States shall cooperate with the responsible Rescue Coordination Centre to identify a place of safety and, when the responsible Rescue Coordination Centre designates such a place of safety, they shall ensure that disembarkation of the rescued persons is carried out rapidly and effectively.
If it is not possible to arrange for the participating unit to be released of its obligation referred to in Article 9(1) as soon as reasonably practicable, taking into account the safety of the rescued persons and that of the participating unit itself, it shall be authorised to disembark the rescued persons in the host Member State.
Those modalities for disembarkation shall not have the effect of imposing obligations on Member States not participating in the sea operation unless they expressly provide authorisation for measures to be taken in their territorial sea or contiguous zone in accordance with Article 6(6) or Article 8(2).
The operational plan may contain details adapted to the circumstances of the sea operation concerned.
2. The participating units shall inform the International Coordination Centre of the presence of any persons within the meaning of Article 4, and the International Coordination Centre shall transmit that information to the competent national authorities of the country where disembarkation takes place.
The operational plan shall contain the contact details of those competent national authorities, which shall take appropriate follow-up measures.
Article 11 -
Amendment to Regulation (EC) No 2007/2004
In Articles 3a(1) and 8e(1) of Regulation (EC) No 2007/2004, at the end of point (j) respectively, the following sentence is added:
‘In that regard the operational plan shall be established in accordance with Regulation (EU) No 656/2014 of the European Parliament and of the Council (18).
Article 12 -
Solidarity mechanisms
1. A Member State faced with a situation of urgent and exceptional pressure at its external border shall be able to request:
(a)
the deployment of European Border Guard Teams in accordance with Article 8a of Regulation (EC) No 2007/2004 to provide rapid operational assistance to that Member State;
(b)
the Agency for technical and operational assistance in accordance with Article 8 of Regulation (EC) No 2007/2004 in order to obtain assistance on matters of coordination between Members States and/or the deployment of experts to support the competent national authorities;
(c)
emergency assistance under Article 14 of Regulation (EU) No 515/2014 of the European Parliament and of the Council (19) to address urgent and specific needs in the event of an emergency situation.
2. A Member State subject to strong migratory pressure which places urgent demands on its reception facilities and asylum systems shall be able to request:
(a)
the European Asylum Support Office for the deployment of an asylum support team in accordance with Article 13 of Regulation (EU) No 439/2010 of the European Parliament and of the Council (20) to provide expertise, such as in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases;
(b)
emergency assistance under Article 21 of Regulation (EU) No 516/2014 of the European Parliament and of the Council (21) to address urgent and specific needs in the event of an emergency situation.
Article 13 -
Report
1. The Agency shall submit a report to the European Parliament, the Council and the Commission on the practical application of this Regulation by 18 July 2015 and every year thereafter.
2. The report shall include a description of the procedures put in place by the Agency to apply this Regulation during sea operations and information on the application of this Regulation in practice, including detailed information on compliance with fundamental rights and the impact on those rights, and any incidents which may have taken place.
CHAPTER IV - FINAL PROVISIONS
Article 14 -
Effects of Decision 2010/252/EU
Decision 2010/252/EU ceases to produce effects from the date of entry into force of this Regulation.
Article 15 -
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.
