Explanatory Memorandum to COM(2011)750 - Establishment, as part of the Internal Security Fund, of the instrument for financial support for external borders and visa - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)750 - Establishment, as part of the Internal Security Fund, of the instrument for financial support for external borders and visa. |
|---|---|
| source | COM(2011)750  |
| date | 15-11-2011 |
The policies related to the Area of Freedom, Security and Justice have been steadily growing in importance over the last years. These policies are at the heart of the European project to create an area without internal borders where Union citizens and third-country nationals may enter, circulate, live and work, bringing new ideas, capital, knowledge and innovation or filling gaps in the national labour markets, confident that their rights are fully respected and their security assured. The growing importance of home affairs policies has been confirmed by the 2009 Stockholm Programme,[1] and it is also one of the areas which have seen important changes under the Lisbon Treaty.
In the field of Internal Security, key documents such as the Commission's Communication on the Internal Security Strategy i have provided clear guidance on the direction of activities in the years to come. For border management and visa policy, the Communication on Migration i outlined in more detail the challenges ahead in relation to border security and the development of an area without internal borders. The Communication on the Schengen governance i presented proposals to strengthen the Schengen acquis by means of a governance system capable of responding effectively, and in a timely and coordinated Union-wide way, to exceptional circumstances and challenges which might put the overall functioning of Schengen at stake. The Communication on smart borders – options and the way ahead[5] outlines how new IT systems such as an Entry/exit system and a Registered Traveller Programme can contribute to a better management of migration flows in the Union.
A key component in the common integrated border management system has been the development of Union solidarity mechanisms, supporting a uniform and high-quality application of the Union standards on border management and the common visa policy. Enhancing the coordination of operational co-operation by the Member States on border control through the Frontex Agency constitutes an important step towards the development of the system. Moreover, with the External Borders Fund, the Union expresses solidarity through financial assistance to those Member States that apply the Schengen provisions on external borders and visa.
The Stockholm Programme explicitly called for the creation of a Fund to support the implementation of the Internal Security Strategy and a coherent and comprehensive approach to law enforcement cooperation, including the management of the Union's external borders.
Against this background, in its proposal of 29 June 2011 on the next multi-annual financial framework for the period 2014-2020[6], the Commission suggested to set up an Internal Security Fund, as part of a simplified two-Fund structure for future expenditure in the home affairs area which also includes the creation of an Asylum and Migration Fund. The Internal Security Fund will have a global budget of € 4,648 million (in current prices) to support the implementation of the five strategic objectives set by the Internal Security Strategy: disrupting international crime networks; preventing terrorism and addressing radicalisation and recruitment; raising levels of security for citizens and businesses in cyberspace; strengthening security through border management; and increasing Europe's resilience to crises and disasters.
Due to the different Treaty bases for the broad range of strategic objectives to be covered, it is not legally possible to establish the Internal Security Fund as a single financial instrument. It is therefore proposed to establish the Fund as a comprehensive financing framework comprising two sector-specific proposals – of which this is one - complemented by a horizontal instrument laying down common provisions.
The legal architecture is explained in more detail under section 3.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENT
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- EUR million
- 5. MAIN ELEMENTS OF THE PROPOSAL
- 5.1. Focusing on strategic priorities
- 5.2. Resources for IT systems and the smart borders package
- 5.3. Resources for national programmes
- 5.4. Actions in and in relation to third countries
- 5.5. Union agencies
In accordance with the greater emphasis placed on evaluation as a tool to inform policy making, this proposal is informed by evaluation results, stakeholder consultation and impact assessment.
Work on the preparation of the future financial instruments for home affairs started in 2010 and continued into 2011. As part of this preparatory work, an evaluation/impact assessment study was launched in December 2010 with the aid of an external contractor. This study was completed in July 2011 and brought together available evaluation results for the existing financial instruments and informed the problems, objectives and policy options, including their likely impact, examined in the impact assessment. Building upon this study, the Commission prepared an impact assessment report on which the Impact Assessment Board delivered its opinion on 9 September 2011.
In accordance with the greater emphasis placed on evaluation as a tool to inform policy making, this legislative proposal took also full account of the mid-term evaluation of the External Borders Fund. In its report of [… November 2011], the Commission assessed the quantitative and qualitative aspects of the implementation of the Fund for the period 2007-2009. The report presents an overview of the concrete activities undertaken in Member States under the Fund to improve the management of the Union's external borders and the handling of visas at national level. It highlights in particular measures by Member States in document security, the considerable investments made to reinforce border surveillance capabilities for the Mediterranean and the Atlantic approaches and pilot projects on automated border control and registered travellers' programmes.
The results of a dedicated on-line public consultation on the future of home affairs funding[7], which ran from 5 January to 20 March 2011 and was open to stakeholders from within the Union and from third countries, have all been taken into consideration in the preparation of this proposal. A total of 115 responses were received from individuals and on behalf of organisations, including 8 position papers. Respondents from all Member States contributed to the consultation as well as respondents in some third countries.
In April 2011 the conference 'The future of EU funding for Home Affairs: A fresh look' brought together key stakeholders (Member States, international organisations, civil society organisations etc) and gave them the opportunity to share their views on the future of EU funding for home affairs. The conference was also an occasion to validate the outcome of the stock taking and the public consultation.
The future of EU funding for home affairs was raised and discussed with institutional stakeholders on numerous occasions, including at an informal lunch discussion during the JHA Council on 21 January 2011, an informal breakfast with the political coordinators of the European Parliament on 26 January 2011, at the hearing of Commissioner Malmström before the Parliament's SURE Committee on 10 March 2011 and during an exchange of views between the Director-General of DG Home Affairs and the Parliament's LIBE Committee on 17 March 2011.
Specific expert advice on the future financial instruments in the area of Internal Security was provided through discussions that took place during the EOS Conference on Industry and Security on 9 February 2011 and at the Immigration and Asylum Committee of 22 February 2011. Moreover, technical aspects linked to the implementation of the future financial instrument in the area of Internal Security were also discussed on the basis of a written consultation in April 2011 with Member States' experts within the framework of the common Committee for the General Programme on Solidarity and Management of Migration Flows ("SOLID Committee").
These consultations, conferences and expert discussions confirmed that there is an overall consensus among key stakeholders on the need to broaden the scope of action for Union funding in the field of internal security, including as regards its external dimension, and a need to work towards more simplification in the delivery mechanisms and greater flexibility, notably to respond to emergencies. In order to add value, Union spending should reflect better Union level priorities and strategic commitments and should support the implementation of the Union home affairs acquis. In the area of internal security, stakeholders considered that the broad thematic priorities have already been fixed by the 2009 Stockholm Programme and the 2010 Internal Security Strategy. A future funding mechanism should therefore be defined comprehensively, comprising law enforcement, border guards and customs communities. The need to make greater use of relevant Union agencies, such as Europol and Frontex was also considered important. There was broad support to reduce the number of financial instruments to a two-Fund structure on the condition that this leads to simplification. Stakeholders also agreed on the need for a flexible emergency response mechanism. Shared management with a move to multi-annual programming was generally seen as the appropriate management mode for home affairs spending. Non-governmental organisations, however, were of the view that direct management should also be continued.
The right to act derives from Article 3 i of the Treaty on European Union which states that 'the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime'.
Union action is justified on the grounds of the objectives laid out in Article 67 of the Treaty on the Functioning of the Union (TFEU, hereafter the Treaty), setting out the means to constitute an area of freedom, security and justice. Attention is also drawn to Article 80 of the Treaty which underlines that these policies of the Union and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.
The creation of the Internal Security Fund requires the adoption of two legislative instruments which jointly constitute the Fund. This overall structure was chosen in light of the Treaty obligations. Due to different voting rules in the Council pursuant to Protocols 19 (on the Schengen acquis) and 21 (the position of the United Kingdom and Ireland in respect of the area of Freedom, Security and Justice) and 22 (the position of Denmark, including in relation to Title V, part three of the Treaty) it is not legally possible to draw up one single comprehensive legislative proposal for an Internal Security Fund, despite the coherence of the policy objectives to be addressed.
The Internal Security Fund is therefore created as a comprehensive financial framework which is composed of two separate acts, setting up the different components of the Fund and laying down the objectives, the eligible actions and the envelopes of each component:
– A Regulation setting up, as part of the Fund, the component for police co-operation, preventing and combating crime, and crisis management;
– A Regulation setting up, as part of the Fund, the border management and common visa policy component;
Within the comprehensive financing framework of the Internal Security Fund, this Regulation defines accordingly the financial support for border management and the common visa policy.
The legal base for this Regulation is Article 77 of the Treaty.
Overall, this is an area where there is a clear added value in Union interventions compared to Member States acting alone. The Union is in a better position than Member States to provide a framework for expressing Union solidarity in border control, visa policy and the management of migration flows, and to provide a platform for the development of common IT systems underpinning these policies. The financial support provided under this Regulation therefore contributes in particular to strengthening national and European capabilities in those areas. For that purpose, the Regulation inter alia aims to support more systematically the services provided by individual Member States in securing the border free area ("operating support mechanism"), to enhance the interagency cooperation between border and other law enforcement authorities and to increase the available specialised equipment in Member States to be put at the disposal of the Frontex Agency for joint operations in the interest of safeguarding the border free area. However, it is fully acknowledged that interventions should take place at an appropriate level and the role of the Union should not go beyond what is necessary. As the Budget Review has highlighted, the 'EU budget should be used to finance EU public goods, actions that Member States and regions cannot finance themselves, or where it can secure better results'.[8]
The Commission's proposal for the next multi-annual framework includes a proposal of EUR 4,648 million (in current prices) for the Internal Security Fund for the period 2014-2020. Within this global envelope, the resources available for the implementation of this specific Regulation amount to EUR 3,520 million. Indicatively, about 61% of this amount (EUR 2,150 million) should be used for national programmes of Member States and the support to the Special Transit Scheme implemented by Lithuania, 31% (EUR 1,100 million) should be dedicated to the development of the smart border package and the remainder should then be available to fund Union actions, emergency actions and technical assistance, whilst taking into account also the contributions expected from the Schengen associated countries, which would be added to the total envelope.
Internal Security Fund including new IT systems| 4,648
- Police cooperation instrument| 1,128
- Border instrument| 3,520
Moreover, in accordance with the June 2011 Communication, outside the scope of the Internal Security Fund, a separate envelope of EUR 822 million (current prices) is set aside for the management of existing large scale-IT systems (Schengen Information System II, Visa Information System and Eurodac). The management of these systems will gradually be transferred from the Commission to the future Agency for the Operational Management of Large-Scale IT-Systems in the Area of Freedom Security and Justice (IT Agency) after it begins operations in late 2012.
By establishing an instrument for the financial support of the management of external borders and the common visa policy for the period 2014-2020, the Union will be able to
· support and reinforce the national capabilities in the area of border control and visa policy and thus expressing financial solidarity with the tasks entrusted to individual Member States at external borders and in consulates in the interest of the border-free area as a public service provided to the Union (national programmes, including 'operating support');
· finance the development of the smart border package, i.e. the setting up of an EU Entry Exit System (EES) and an EU Registered Traveller Programme (RTP);
· finance the introduction and operation of the European Border Surveillance System, EUROSUR, notably through the purchase of equipment, infrastructure and systems in Member States;
· reinforce the Schengen governance and the evaluation and monitoring mechanism to verify the application of the Schengen acquis by (a) funding the operation of that mechanism under direct management; (b) introducing conditionalities based on compliance with the Schengen acquis for the disbursement of operating support to Member States and (c) requiring Member States to (re)allocate resources received for programmes under this instrument with priority to remedy weaknesses if these have been identified under the mechanism;
· boost the operational potential of the Frontex Agency by inviting Member States to earmark additional resources under their programmes for specialised equipment which can be put at the disposal of the Agency for its joint operations;
· support the development and implementation of the relevant Union policies in the EU, in and with third countries under 'Union actions', thus improving the overall management of migration flows to the Union (projects managed either directly, such as studies or pilot projects to reinforce co-operation with third countries, or indirectly, in accordance with the Financial Regulation[9];
· have readily available adequate resources to provide emergency assistance in case of situations of urgent or exceptional migratory pressure;
· continue support for the functioning of the Specific Transit Scheme for Lithuania, in accordance with the obligations of the EU[10], providing support to compensate for foregone fees from transit visas and additional costs incurred by Lithuania in implementing the Facilitated Transit Document (FTD) and Facilitated Rail Transit Document (FRTD) scheme, such as replacing and upgrading equipment, IT systems, training and operational costs.
The instrument will allow for a comprehensive support of the four-tiers access controlmodel underlining the concept of integrated border management (measures in third countries, co-operation with neighbouring countries, border control and measures within the area of freedom of movement).
Under the national programmes, Members States could use their allocations to support the management and where appropriate, upgrading of national components of the existing large scale IT systems.
Moreover, the development and maintenance of future IT systems ("smart borders package") in this area will be covered by this instrument. As indicated in the Communication on smart borders, the Commission intends to present proposals for a Union Entry Exit System (EES) and a Union Registered Traveller Programme (RTP) in the first half of 2012. Consequently, under this instrument it is envisaged to establish a specific spending programme only for the development of an EEAS and an RTP.
The cost would include not just the central (Union-level) components but also the national components (Member States) of these IT systems, within the resources available.
The cost of developing a central and national systems for EES and RTP has been estimated between about 1 and 1.3 billion EUR, depending on the options Significant cost savings can be achieved if the EES preferred option is built together (i.e. on the same technical platform) with the RTP preferred option[11]. On the basis of these assumptions and given that development would only start as from 2015, it is proposed to set aside 1.1 billion EUR for these two systems under this proposal, without prejudice to the future proposals from the Commission on the smart borders package and the subsequent decision of the European Parliament and the Council.
The Commission envisages to give the implementation tasks of this programme to the Agency for the Operational Management of Large-Scale IT-Systems in the area of Freedom, Security and Justice established by Regulation (EU) N° 1077/2011 of the European Parliament and the Council.[12] This Regulation would in this case be amended at the appropriate time to include the tasks specifically in the mission of the Agency and the relevant amounts of the Agency's subsidy would be met from the operational appropriations of the programme.
The current practice under the Funds of the General Programme Solidarity and Management of Migration Flows of fixing at the start of the period the criteria for the allocations which Member States will receive for the whole 7-year period ensures continuity and a certain degree of predictability. However, it is essentially a static approach which does not incentivise the Member States to implement actions which respond to Union priorities and does not allow the EU to respond to changing situations and priorities through significant and concentrated reallocations of resources. The mechanism chosen for the distribution and implementation of resources under the future Funds should therefore reconcile the need on the one hand for continuity and stability, as a pre-condition for sound multiannual programming, and on the other hand the need for more flexibility and adaptation to change.
In view of the above, the allocation of funding under shared management is based on a combination of:
– A basic amount allocated to the Member States at the start of the next Multi-annual Financial Framework (MFF);
– A flexible amount to be added to the basic amount, allocated in two phases.
The basic amount is allocated to the Member States at the start of the next MFF and calculated on the basis of objective criteria and needs. It is 60% of the overall envelope for national programmes and the allocations are laid down per Member State in Annex I of this Regulation. They are based on the 2010-2012 calculations under the External Borders Fund, whilst incorporating a minimum amount for each Member State. This will ensure some continuity with the current MFF and give the Member States financial stability to plan their national multiannual programmes.
· The flexible amount will be added to the basic amount depending on the willingness of each Member State to finance under its national programme actions that respond to specific Union priorities. These specific actions are defined in Annex II and can be amended. In principle, it would be allocated in two phases: at the start of the MFF, as part of the policy dialogue and negotiations on the national programmes of the relevant Member States, and during a mid-term review in 2017.
This mid-term review would be the occasion to re-examine the situation in Member States and to allocate new resources for the remaining years of the MFF (2018-2020). For this Regulation, the mid term review will be based on a combination of a forward looking risk assessment and Union priorities, as redefined by the Union. Because the basic amounts for the Member States were determined on the basis of historic data at the start of the programming period, an update will be appropriate. These risk/needs assessments could be produced with the help of the Frontex Agency. Member States who, on the basis of these assessments, have more needs or face increased risks will receive an additional amount, thereby giving tangible expression to the principle of solidarity and responsibility-sharing.
In relation to the external dimension in this area, there would be targeted support to enhance cooperation with third countries and to reinforce certain key aspects of their border surveillance and management capabilities in areas of interest to the Union's migration policy and Union's internal security objectives. For example, in the framework of EUROSUR, funding could be made available to link third countries' systems and infrastructures to the Union's in order to allow for the regular exchange of information. Such actions shall not be directly development oriented and shall complement, as appropriate, the financial assistance provided through the Union's external aid instruments, which remain the main source of funding to help third-countries build their relevant capacities. In implementing such support, full coherence will be sought with the principles and general objectives of the Union external action and foreign policy related to the country or region in question. Complementarity will be ensured through enhanced coordination with the EEAS and the relevant Commission services.
Such actions will be managed directly by the Commission or indirectly, by entities or persons other than Member States in accordance with the Financial Regulation.
To use more effectively the competences and expertise of relevant Union agencies in the home affairs field, the Commission also envisages to make use of the possibility offered by the Financial Regulation to entrust, with the resources available under this Regulation, the implementation of specific tasks to such agencies, in the framework of their missions and in complementarity to their work programmes. For the tasks covered under this Instrument this concerns in particular:
– the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex Agency), for activities in and outside the Union requiring operational expertise on border control;
– the European Asylum Support Office (EASO), for activities such as training on asylum addressed to border guards;
– the European Police Office (Europol) and the European Police College (CEPOL) in the light of interagency co-operation of law enforcement authorites with border guards;
– the Agency for the Operational Management of Large-Scale IT-Systems in the Area of Freedom Security and Justice (IT Agency) insofar as the development of new IT systems is concerned.