Explanatory Memorandum to COM(2013)197 - Rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by FRONTEX - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2013)197 - Rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by FRONTEX. |
|---|---|
| source | COM(2013)197  |
| date | 12-04-2013 |
1.1. Procedure and adoption of Council Decision 2010/252/EU[1]
In October 2009, the Commission was invited by the European Council to present proposals which would establish “clear common operational procedures containing clear rules of engagement for joint operations at sea, with due regard to ensuring protection for those in need who travel in mixed flows, in accordance with international law”.[2] This was again confirmed in the Stockholm Programme of December 2009, where the European Council requested the Commission to put forward proposals no later than 2010 to clarify and enhance the role of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’) and to prepare “clear rules of engagement for joint operations at sea, with due regard to ensuring protection for those in need who travel in mixed flows, in accordance with international law.”[3]
In 2010, the Council adopted Decision 2010/252/EU (‘the decision’) as a response to these calls by the European Council to strengthen border surveillance operations coordinated by the Agency and to establish clear rules of engagement for joint patrolling and the disembarkation of intercepted or rescued persons in order to ensure the safety of those seeking international protection and to prevent loss of life at sea. The Commission had chosen to present its proposal under the comitology procedure based on Article 12(5) of the Schengen Border Code i considering the decision as being an additional measure governing border surveillance.
The decision was considered to be necessary and appropriate to implement the objective of border surveillance, namely to prevent unauthorised border crossings. In this regard, it was considered that surveillance not only encompasses the notion of detection but extends to steps such as intercepting vessels trying to enter the Union unlawfully. The link of search and rescue to border surveillance was based on actual practice – migrants travelling in unseaworthy vessels are sometimes in a distress situation upon detection.
The decision incorporated, within a single legal instrument, existing provisions of EU and international law. The aim was to overcome the different interpretations of international maritime law adopted by Member States and their diverging practices to ensure the efficiency of sea operations coordinated by the Agency. There was a risk that in a sea operation different rules, sometimes even conflicting ones, would apply to the same situation. Amidst this legal uncertainty, Member States’ participation in sea operations coordinated by the Agency was low in terms of contributing craft, vessels and human resources. This, in turn, hindered the effectiveness of the operations and undermined efforts of EU solidarity.
The decision intended to reinforce the protection of fundamental rights and to guarantee respect for the principle of non-refoulement in sea operations. Some Member States, Members of the European Parliament, human rights organisations and academics had questioned whether fundamental rights and the rights of refugees were being respected during sea operations coordinated by the Agency, particularly on the high seas. The decision aimed to address these concerns by establishing a number of guarantees to ensure the respect of these rights, such as the requirement to inform the intercepted or rescued persons of the place of disembarkation, special consideration for the needs of vulnerable persons and the requirement for border guards to be trained in relevant provisions of fundamental rights and refugee law.
The decision was adopted on 26 April 2010 as a Council decision in accordance with the regulatory procedure with scrutiny. The European Parliament considered that the decision should have been adopted in accordance with the ordinary legislative procedure and not the comitology procedure. Therefore, it brought an action before the Court of Justice of the European Union (‘the Court’) against the Council requesting the annulment of the decision.
1.2. C-355/10: European Parliament v. Council[5]
The European Parliament considered that the decision exceeded the implementing powers conferred under Article 12(5) of the Schengen Borders Code because: (i) it introduced new essential elements into the Schengen Borders Code; (ii) it altered essential elements of the Schengen Borders Code; and (iii) it altered the content of Regulation (EC) No 2007/2004.[6] The Council pleaded the inadmissibility of the action, and in the alternative, considered the action to be without merit. The Commission, as the only intervening party, acted in support of the Council.
The Court delivered its judgment on 5 September 2012. It annulled the decision on the first ground insofar as it considered that the provisions on interception measures, rescue and disembarkation are essential elements to the basic act, namely the Schengen Borders Code. It did not examine whether the decision alters essential elements of the Schengen Borders Code or whether it alters the content of Regulation (EC) No 2007/2004.
The Court decided to maintain the effects of the decision until it is replaced by new rules within a reasonable time.
Contents
When assessing the need to carry out an impact assessment, the following considerations were taken into account.
Firstly, the adoption of Council Decision 2010/252/EU had been preceded by a significant amount of preparatory work. In 2005, the Council had requested the Commission to examine the legal framework applicable to border surveillance operations at sea and to subsequently prepare rules at Union level. In 2007, the Commission presented a study in which it analysed the international legal framework as regards surveillance of the external sea borders and the obstacles to its effective implementation.[7] In the same year, the Commission set up an informal group of experts from Member States, the Agency, the Office of the UN High Commissioner for Refugees and the International Organisation for Migration to draw up guidelines for sea operations coordinated by the Agency. The results of this informal group were used by the Commission as a basis for its draft proposal presented under the comitology procedure.
Secondly, in view of preparing this proposal, the Commission consulted Member States and the Agency through an Expert Group on External Borders to determine to what extent this proposal should reflect the content of the decision. In general, Member States considered that this proposal should build upon the decision, keeping its scope limited to sea operations coordinated by the Agency, strengthening the provisions on the protection of fundamental rights, clarifying the distinction between interception measures and rescue, addressing the issue of disembarkation and ensuring consistency with international obligations, while taking into account legal and judicial developments at EU and international level.
Thirdly, on annulling Council Decision 2010/252/EU, the Court required that the decision be replaced within a reasonable time. Although the concept of ‘reasonable time’ is not defined in the judgment, it is understood that in view of possible difficult and lengthy discussions between the two EU legislators, the Commission should act expeditiously.
Consequently, it was considered that this proposal need not be accompanied by an impact assessment.
This proposal is based on Article 77(2)(d) of the Treaty on the Functioning of the European Union. With a view to develop an external border policy, including ensuring efficient surveillance of the external borders as set out in Article 77(1), Article 77(2)(d) provides that the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt “any measure necessary for the gradual establishment of an integrated management system for external borders.”
The objective of Union policy in the field of the EU external borders is to ensure the efficient monitoring of the crossing of external borders including through border surveillance. The purpose of border surveillance is to prevent unauthorised border crossings, to counter cross-border criminality and to apprehend or take other measures against those persons who have crossed the border in an irregular manner. Border surveillance should be effective in preventing and discouraging persons from circumventing the checks at border crossing points. To this end, border surveillance is not limited to the detection of attempts at irregular border crossing but equally extends to steps such as intercepting ships suspected of trying to gain entry to the Union without submitting to border checks, as well as arrangements intended to address situations such as search and rescue that may arise during a sea operation and arrangements intended to bring such an operation to a successful conclusion.
Since the objectives of the action to be taken, namely the adoption of specific rules for the surveillance of the sea borders by border guards operating under the coordination of the Agency, cannot be sufficiently achieved by the Member States due to the differences in their laws and practices, and can therefore, by reason of the multinational character of the operations, be better achieved at the level of the Union, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.
In accordance with the principle of proportionality, as set out in Article 5 of the Treaty on European Union, this Regulation does not go beyond what is necessary in order to achieve those objectives.
It is on the basis of these principles that, as was the case for the decision, this proposal applies only in the context of operational cooperation coordinated by the Agency and it does not concern surveillance activities carried out by Member States individually or cooperating outside that framework.
This proposal does not impose any financial or administrative burden on the Union. Therefore it has no impact on the Union budget.
The scope and content of this proposal are similar to those of the decision. The changes presented in the proposal when compared to the decision are based on legal and judicial developments, such as the amendments to Regulation (EC) No 2007/2004[8] and the judgment of the European Court of Human Rights in Hirsi Jamaa and Others v. Italy,[9] on the need to ensure clarity as regards the concepts of interception and rescue, and on the practical experiences of Member States and the Agency when implementing the decision.
The choice of legal instrument and the decision-making procedures are different. This is a proposal for a Regulation addressed to all Member States in accordance with the Treaties and it is to be adopted in accordance with the ordinary legislative procedure. Its form reflects the choice of legal instrument consisting of a preamble (citations and eighteen recitals) and eleven articles divided into four chapters. It shall be binding in its entirety and directly applicable in Member States. On the other hand, the decision had been adopted as an implementing measure using the regulatory procedure with scrutiny. It consists of a preamble (citations and eighteen recitals), two articles and an Annex divided into two parts. Part I of the Annex sets out rules for sea border operations coordinated by the Agency whereas Part II of the Annex consists of non-binding guidelines for search and rescue situations and for disembarkation in the context of sea operations coordinated by the Agency.
The scope of application of this proposal is the same as that of the decision, namely border surveillance operations at sea carried out by Member States under the coordination of the Agency (Article 1). Although in the decision, the concept of ‘border surveillance’ was understood as including interception measures and arrangements for rescue arising during border surveillance operations, there was still doubt as to whether these measures did in fact fall under the concept of border surveillance as defined in the Schengen Borders Code. This proposal explicitly covers this broader concept of border surveillance by indicating that border surveillance is not limited to the detection of attempts at irregular border crossing but equally extends to steps such as interception measures, and arrangements intended to address situations such as search and rescue that may arise during a sea operation and arrangements intended to bring such an operation to a successful conclusion (recital 1 and Chapter III).
When revisiting the decision, the amendments to Regulation (EC) No 2007/2004 needed to be taken into account. The Agency is now also entrusted with assisting Member States in circumstances requiring increased technical assistance at the external borders, taking into account that some situations may involve humanitarian emergencies and rescue at sea. This means that although the Agency neither becomes a search and rescue body nor does it take up the functions of a rescue coordination centre, during a sea operation it assists Member States to fulfil their obligation under international maritime law to render assistance to persons in distress and this proposal sets out rules on how to deal with these situations in a sea operation coordinated by the Agency (recital 2 and Article 9).
With the amendments to Regulation (EC) No 2007/2004, the operational plan became a legally binding instrument with regard to all operations coordinated by the Agency and not only as regards rapid interventions. The content of the operational plan is listed in Articles 3a and 8e of Regulation (EC) No 2007/2004 which also refer specifically to sea operations. The rules laid down in this proposal are intended to form part of the operational plan drawn up in accordance with Regulation (EC) No 2007/2004, taking into account the requirements for sea operations.
The legal and judicial developments concerning the protection of fundamental rights are also taken into account in this proposal. Article 4, which deals with the protection of fundamental rights and the principle of non-refoulement in sea operations, addresses concerns raised by the European Court of Human Rights in its ruling in Hirsi Jamaa and Others v. Italy as regards disembarkation of intercepted or rescued persons in third countries, both in terms of relations between Member States and third countries, and the obligations of Member States vis-à-vis the individual. This article concerns the practical implementation of the principle of non-refoulement as enshrined in Article 19(2) of the Charter of Fundamental Rights of the European Union. In case of disembarkation in a third country, the persons intercepted or rescued must be identified and their personal circumstances must be assessed to the extent possible before disembarkation. They must also be informed of the place of disembarkation in an appropriate way and they must be given an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement. This guarantees that the migrants are informed about their situation and the proposed place of disembarkation thereby allowing them to express any objections.
Under Chapter III, this proposal clearly distinguishes between detection, interception and rescue. As regards interception, this proposal while retaining the same set of measures as in the decision, distinguishes between the measures that may be taken in the territorial sea (Article 6), on the high seas (Article 7) and in the contiguous zone[10] (Article 8), thus clarifying the conditions under which these measures may be taken and the jurisdictional basis on which action may be taken particularly as regards stateless ships. Based on the Protocol against the Smuggling of Migrants by Land, Sea and Air, interception of ships on the high seas is now clearly linked to the requirement of having a reasonable suspicion that the ship is engaged in the smuggling of migrants. As in the decision, the exercise of jurisdiction on the high seas must always be based on the authorisation of the flag State.
As regards search and rescue situations, the text in this proposal remains similar to the decision (Article 9). The wording is aligned to that used in the 1979 International Convention on Maritime Search and Rescue and the International Aeronautical and Maritime Search and Rescue Manual (IAMSAR). Also, on the basis of these international instruments, the proposal includes criteria as to when a ship is considered to be in a situation of uncertainty (Article 9(3)), alert (Article 9(4)) and distress (Article 9(5)) as well as a definition of a rescue coordination centre (Article 2(12)).
This proposal, differently from the decision, addresses the issue of disembarkation in terms of interception and rescue (Article 10). As regards interception in the territorial sea or in the contiguous zone, disembarkation takes place in the coastal Member State. As regards interception on the high seas, subject to guaranteeing the protection of fundamental rights and the principle of non-refoulement, disembarkation may take place in the third country from which the ship departed. If this is not possible, then disembarkation takes place in the host Member State.
As regards disembarkation following a rescue operation, this proposal refers to the concept of ‘place of safety’ as defined in the Guidelines on the Treatment of Persons Rescued at Sea issued by the International Maritime Organisation,[11] taking into account aspects of fundamental rights[12] (Articles 2(11) and 10(4)), and requires Member States to cooperate with the responsible rescue coordination centre to provide a suitable port or place of safety and to ensure rapid and effective disembarkation. This proposal takes into account the fact that at this stage the maritime and aerial units would be acting under the coordination of the rescue coordination centre, which determines the appropriate port or place of disembarkation. However, it also recognises the possibility for the maritime units to disembark in the host Member State if they are not released of their obligation to render assistance to persons in distress as soon as reasonably practicable, taking into account the safety of the rescued persons and that of the maritime unit itself.