At its meeting on 25 and 26 June 2015, the European Council called for wider efforts in resolving unprecedented migratory flows towards Union territory in a comprehensive manner, including by reinforcing border management to better manage growing mixed migratory flows. Furthermore, at their informal meeting on migration on 23 September 2015, the Heads of State or Government stressed the need to tackle the dramatic situation at the external borders and to strengthen the controls at those borders, in particular through additional resources for the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, the European Asylum Support Office (EASO), and Europol, with human resources and technical contributions from Member States.
(2)
The objective of Union policy in the field of external border management is to develop and implement European integrated border management at national and Union level, which is a necessary corollary to the free movement of persons within the Union and is a fundamental component of an area of freedom, security and justice. European integrated border management is central to improving migration management. The aim is to manage the crossing of the external borders efficiently and address migratory challenges and potential future threats at those borders, thereby contributing to addressing serious crime with a cross-border dimension and ensuring a high level of internal security within the Union. At the same time, it is necessary to act in full respect for fundamental rights and in a manner that safeguards the free movement of persons within the Union.
(3)
European integrated border management, based on the four-tier access control model, comprises measures in third countries, such as under the common visa policy, measures with neighbouring third countries, border control measures at the external borders, risk analysis and measures within the Schengen area and return.
(4)
When implementing European integrated border management, coherence with other policy objectives should be ensured, including the proper functioning of cross-border transport.
(5)
To ensure the effective implementation of European integrated border management, a European Border and Coast Guard should be established. It should be provided with the requisite financial and human resources and equipment. The European Border and Coast Guard should comprise the European Border and Coast Guard Agency (‘the Agency’) and national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks. As such it will rely upon the common use of information, capabilities and systems at national level and the response of the Agency at Union level.
(6)
European integrated border management should be implemented as a shared responsibility of the Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out maritime border surveillance operations and any other border control tasks. While Member States retain the primary responsibility for the management of their external borders in their interest and in the interest of all Member States, the Agency should support the application of Union measures relating to the management of the external borders by reinforcing, assessing and coordinating the actions of Member States which implement those measures.
(7)
European integrated border management does not alter the respective competences of the Commission and Member States in the customs area, in particular regarding controls, risk management and the exchange of information.
(8)
The development of policy and legislation on external border control and return, including the development of a European integrated border management strategy, remains a responsibility of the Union institutions. Close coordination between the Agency and those institutions should be guaranteed.
(9)
The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, commonly referred to as Frontex, was established by Council Regulation (EC) No 2007/2004 (3). Since taking up its responsibilities on 1 May 2005, it has been successful in assisting Member States with implementing the operational aspects of external border management through joint operations and rapid border interventions, risk analysis, information exchange, relations with third countries and the return of returnees.
(10)
It is necessary to monitor the crossing of the external borders efficiently, address migratory challenges and potential future threats at the external borders, ensure a high level of internal security within the Union, safeguard the functioning of the Schengen area and respect the overarching principle of solidarity. In light of this, it is necessary to reinforce the management of the external borders by building on the work of Frontex and further developing it into an agency with a shared responsibility for the management of the external borders.
(11)
The tasks of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union should therefore be expanded. To reflect those changes, it should be renamed the European Border and Coast Guard Agency, which will continue to be commonly referred to as Frontex. It should remain the same legal person, with full continuity in all its activities and procedures. The key role of the Agency should be to establish a technical and operational strategy for implementation of integrated border management at Union level; to oversee the effective functioning of border control at the external borders; to provide increased technical and operational assistance to Member States through joint operations and rapid border interventions; to ensure the practical execution of measures in a situation requiring urgent action at the external borders; to provide technical and operational assistance in the support of search and rescue operations for persons in distress at sea; and to organise, coordinate and conduct return operations and return interventions.
(12)
The Agency should carry out its tasks without prejudice to the responsibilities of the Member States with regard to maintaining law and order and safeguarding internal security.
(13)
The Agency should carry out its tasks without prejudice to the competence of the Member States with regard to defence.
(14)
The extended tasks and competence of the Agency should be balanced with strengthened fundamental rights safeguards and increased accountability.
(15)
Member States should be able to continue cooperation at an operational level with other Member States and/or third countries at the external borders, including military operations with a law enforcement purpose, to the extent that this cooperation is compatible with the actions of the Agency.
(16)
The Agency relies on the cooperation of Member States to be able to perform its tasks effectively. In this respect, it is important for the Agency and the Member States to act in good faith and to exchange accurate information in a timely manner. No Member State should be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security.
(17)
Member States should also, in their own interests and in the interests of other Member States, enter data into the European databases. Equally, they should ensure that the data are accurate, up-to-date and obtained and entered lawfully.
(18)
The Agency should prepare general and tailored risk analyses based on a common integrated risk analysis model, to be applied by the Agency itself and by Member States. The Agency should, based also on information provided by Member States, provide adequate information covering all aspects relevant to European integrated border management, especially border control, return, irregular secondary movements of third-country nationals within the Union, prevention of cross-border crime including facilitation of unauthorised border crossings, trafficking in human beings, terrorism and threats of a hybrid nature, as well as the situation in neighbouring third countries, so as to allow for appropriate measures to be taken or to tackle identified threats and risks with a view to improving the integrated management of the external borders.
(19)
Given its activities at the external borders, the Agency should contribute to preventing and detecting serious crime with a cross-border dimension, such as migrant smuggling, trafficking in human beings and terrorism, where it is appropriate for it to act and where it has obtained relevant information through its activities. It should coordinate its activities with Europol as the agency responsible for supporting and strengthening Member States' actions and their cooperation in preventing and combating serious crime affecting two or more Member States. Cross-border crimes necessarily entail a cross-border dimension. Such a cross-border dimension is characterised by crimes directly linked to unauthorised crossings of the external borders, including trafficking in human beings or smuggling of migrants. That said, Article 1(2) of Council Directive 2002/90/EC (4) allows Member States not to impose sanctions where the aim of the behaviour is to provide humanitarian assistance to migrants.
(20)
In a spirit of shared responsibility, the role of the Agency should be to monitor regularly the management of the external borders. The Agency should ensure proper and effective monitoring not only through risk analysis, information exchange and European Border Surveillance System (EUROSUR), but also through the presence of experts from its own staff in Member States. The Agency should therefore be able to deploy liaison officers to Member States for a period of time during which the liaison officer reports to the executive director. The report of the liaison officers should form part of the vulnerability assessment.
(21)
The Agency should carry out a vulnerability assessment based on objective criteria, to assess the capacity and readiness of the Member States to face challenges at their external borders. This should include an assessment of the equipment, infrastructure, staff, budget and financial resources of Member States as well as their contingency plans to address possible crises at the external borders. Member States should take measures to address any deficiencies identified in that assessment. The executive director should identify the measures to be taken and recommend them to the Member State concerned. The executive director should also set a time-limit within which those measures should be taken. Where the necessary measures are not taken within the set time-limit, the matter should be referred to the management board for a further decision.
(22)
If the Agency is not provided with accurate and speedy information necessary for carrying out a vulnerability assessment, it should be able to take that fact into account when performing the vulnerability assessment, unless duly justified reasons are provided for withholding the data.
(23)
The Agency should organise the appropriate technical and operational assistance to Member States so as to reinforce their capacity to implement their obligations with regard to the control of the external borders and to face challenges at the external borders resulting from illegal immigration or cross-border crime. Such assistance should be without prejudice to the relevant national authorities' competence to initiate criminal investigations. In this respect, the Agency should, at the request of a Member State or on its own initiative, organise and coordinate joint operations for one or more Member States and deploy European Border and Coast Guard teams as well as the necessary technical equipment. It may also deploy experts from among its own staff.
(24)
In cases where there is a specific and disproportionate challenge at the external borders, the Agency should, at the request of a Member State or on its own initiative, organise and coordinate rapid border interventions and deploy both European Border and Coast Guard teams from a rapid reaction pool and technical equipment. Rapid border interventions should provide reinforcement for a limited period of time in situations where an immediate response is required and where such an intervention would provide an effective response. To ensure the effective operation of such intervention, Member States should make border guards and other relevant staff available to the rapid reaction pool and provide the necessary technical equipment. The Agency and the Member State concerned should agree upon an operational plan.
(25)
Where a Member State faces specific and disproportionate migratory challenges at particular areas of its external borders characterised by large, inward, mixed migratory flows the Member States should be able to rely on technical and operational reinforcements. This should be provided in hotspot areas by migration management support teams. These teams should be composed of experts to be deployed from Member States by the Agency and by EASO and from the Agency, Europol or other relevant Union agencies. The Agency should assist the Commission in the coordination among the different agencies on the ground.
(26)
Member States should ensure that any authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information. They should also ensure that such authorities' personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged.
(27)
In hotspot areas the different agencies and Member States should operate within their respective mandates and powers. The Commission, in cooperation with the other relevant agencies, should ensure the compliance of activities in the hotspot areas with the relevant Union acquis, including the Common European Asylum System and fundamental rights.
(28)
Where control of the external border is rendered ineffective to such an extent that it risks jeopardising the functioning of the Schengen area, either because a Member State does not take the necessary measures in line with a vulnerability assessment or because a Member State facing specific and disproportionate challenges at the external borders has not requested sufficient support from the Agency or is not implementing such support, a unified, rapid and effective response should be delivered at Union level. For the purpose of mitigating these risks, and to ensure better coordination at Union level, the Commission should propose to the Council a decision identifying the measures to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The implementing power to adopt such a decision should be conferred on the Council because of the potentially politically sensitive nature of the measures to be decided, which are likely to touch on national executive and enforcement powers. The Agency should determine the actions to be taken for the practical execution of the measures indicated in the Council decision. It should then draw up an operational plan with the Member State concerned. If a Member State does not comply within 30 days with that Council decision and does not cooperate with the Agency in the implementation of the measures contained in that decision, the Commission should be able to trigger the specific procedure provided for in Article 29 of Regulation (EU) 2016/399 of the European Parliament and of the Council (5) to face exceptional circumstances putting the overall functioning of the area without internal border control at risk. Therefore, Regulation (EU) 2016/399 should be amended accordingly.
(29)
The Agency should have the necessary equipment and staff at its disposal to be deployed in joint operations or rapid border interventions. To this end, when launching rapid border interventions at the request of a Member State or in the context of a situation requiring urgent action, the Agency should be able to deploy, in the Member States, European Border and Coast Guard teams from a rapid reaction pool which should be a standing corps composed of border guards and other relevant staff. There should be a minimum of 1 500 border guards and other relevant staff in the pool. The deployment of the European Border and Coast Guard teams from the rapid reaction pool should be immediately complemented by additional European Border and Coast Guard teams where necessary.
(30)
Annex I sets out the contributions of Member States to the rapid reaction pool on the basis of pledges in light of the circumstances pertaining at the time of the entry into force of this Regulation. If those circumstances change substantially and structurally, including when a decision on the lifting of controls on Member States' internal borders, pursuant to the provisions of the relevant Acts of Accession, has been taken, the Commission should propose the appropriate amendments to that Annex.
(31)
Having regard to the rapidity with which deployment of equipment and staff would need to take place in particular at areas of the external borders facing sudden large inward migratory flow, the Agency should also be able to deploy its own technical equipment which it should acquire itself or in co-ownership with a Member State. That technical equipment should be made available to the Agency upon its request by the Member States where the equipment is registered. The Agency should also manage a pool of technical equipment provided by Member States, based on the needs identified by the Agency and which should be completed by the means of transport and operating equipment purchased by Member States under the Specific Actions of the Internal Security Fund.
(32)
On 15 October 2015, the European Council called for an enlargement of Frontex's mandate on return, to include the right to organise joint return operations on its own initiative and an enhancement of its role regarding the acquisition of travel documents for returnees.
(33)
The Agency should step up its assistance to Member States for returning third-country nationals, subject to the Union return policy and in compliance with Directive 2008/115/EC of the European Parliament and of the Council (6). In particular, it should coordinate and organise return operations from one or more Member States and organise and conduct return interventions to reinforce the return systems of Member States requiring increased technical and operational assistance to comply with their obligation to return third-country nationals in accordance with that Directive.
(34)
The Agency should, in full respect for fundamental rights, provide the necessary assistance to Member States in organising return operations and return interventions of returnees. It should not enter into the merits of return decisions issued by Member States. In addition, the Agency should assist Member States in the acquisition of travel documents for return, in cooperation with the authorities of the relevant third countries.
(35)
The assistance to Member States in carrying out return procedures should include the provision of practical information on third countries of return relevant for the implementation of this Regulation, such as the provision of contact details or other logistical information necessary for the smooth conduct of return operations. For the purposes of taking return decisions, the Agency should not be involved in the provision of information to Member States on third countries of return.
(36)
The possible existence of an arrangement between a Member State and a third country does not absolve the Agency or the Member States from their obligations under Union or international law, in particular as regards compliance with the principle of non-refoulement.
(37)
The Agency should establish pools of forced-return monitors, forced-return escorts and return specialists made available by Member States, who should be deployed during return operations and who should form part of tailor-made European return intervention teams deployed in return interventions. The pools should include staff with specific expertise in child protection. The Agency should provide them with the necessary training.
(38)
In accordance with international law instruments such as the United Nations Convention on the Rights of the Child, any individual below the age of 18 is to be considered as a child under this Regulation. The child's best interests are to be a primary consideration in the activities of the Agency.
(39)
Special provision should be made for staff involved in activities relating to return to specify their tasks, powers and responsibilities. Special instructions should also be issued concerning the power of the pilots in charge of aircraft and the extension of the criminal jurisdiction of the country of registration of the aircraft under international aviation law, in particular the Tokyo Convention on Offences and certain other acts committed on board aircraft.
(40)
The Agency should develop specific training tools, including specific training in the protection of children. It should provide training at Union level for national instructors of border guards. It should also offer additional training courses and seminars related to integrated border management tasks, including for officers of the competent national bodies. This should include training on relevant Union and international law and on fundamental rights. The Agency should be authorised to organise training activities in cooperation with Member States and third countries on their territory.
(41)
The Agency should monitor and contribute to the developments in research relevant for European integrated border management. It should disseminate information on such developments to the European Parliament, the Member States, and to the Commission.
(42)
Effective implementation of an integrated management of the external borders requires regular, swift and reliable exchange of information among the Member States. The Agency should develop and operate information systems facilitating such exchange in accordance with Union data protection legislation. It is important that Member States provide the Agency promptly with complete and accurate information that it needs to perform its tasks.
(43)
For the purpose of fulfilling its mission and to the extent required for the accomplishment of its tasks, the Agency may cooperate with Union institutions, bodies, offices and agencies as well as with international organisations in matters covered by this Regulation in the framework of working arrangements concluded in accordance with Union law and policy. Those working arrangements should receive the Commission's prior approval.
(44)
National authorities carrying out coast guard functions are responsible for a wide range of tasks, which may include maritime safety, security, search and rescue, border control, fisheries control, customs control, general law enforcement and environmental protection. The Agency, the European Fisheries Control Agency established by Council Regulation (EC) No 768/2005 (7) and the European Maritime Safety Agency established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council (8) should therefore strengthen their cooperation both with each other and with the national authorities carrying out coast guard functions to increase maritime situational awareness and to support coherent and cost-efficient action. Synergies between the various actors in the maritime environment should be in line with the European integrated border management and maritime security strategies.
(45)
The implementation of this Regulation does not affect the division of competence between the Union and the Member States under the Treaties, or the obligations of Member States under international conventions such as the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the International Convention for the Prevention of Pollution from Ships, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, and other relevant international maritime instruments.
(46)
The Agency should facilitate and encourage technical and operational cooperation between Member States and third countries in the framework of the external relations policy of the Union. In this context, it should coordinate operational cooperation between Member States and third countries in the field of management of the external borders, deploy liaison officers to third countries and cooperate with the authorities of third countries on return, including as regards the acquisition of travel documents. In their cooperation with third countries, the Agency and Member States should comply with Union law at all times, including fundamental rights and the principle of non-refoulement. They should likewise do so when the cooperation with third countries takes place on the territory of those countries. In order to increase transparency and accountability, the Agency should report on cooperation with third countries in its annual report.
(47)
The European Border and Coast Guard, which includes the Agency and the national authorities of Member States which are responsible for border management, including coast guards to the extent that they carry out border control tasks, should fulfil its tasks in full respect for fundamental rights, in particular the Charter of Fundamental Rights of the European Union (‘the Charter’), the European Convention for the Protection of Human Rights and Fundamental Freedoms, relevant international law, including the United Nations Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Relating to the Status of Refugees and obligations related to access to international protection, in particular the principle of non-refoulement, the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, and the International Convention on Maritime Search and Rescue. In accordance with Union law and those instruments the Agency should assist Member States in conducting search and rescue operations in order to protect and save lives whenever and wherever so required.
(48)
Given the increased number of its tasks, the Agency should further develop and implement a strategy to monitor and ensure the protection of fundamental rights. To that end it should provide its fundamental rights officer with adequate resources and staff corresponding to its mandate and size. The fundamental rights officer should have access to all information necessary to fulfil her or his tasks. The Agency should use its role to actively promote the application of the Union acquis relating to the management of the external borders, including with regard to respect for fundamental rights and international protection.
(49)
This Regulation respects fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union (TEU) and reflected in the Charter. In particular, this Regulation seeks to ensure full respect for human dignity, the right to life, the right to liberty and security, the right to the protection of personal data, the right to asylum, the right to effective remedy, the rights of the child, the prohibition of torture and of inhuman or degrading treatment or punishment and the prohibition of trafficking in human beings. It also seeks to promote the application of the principles of non-discrimination and non-refoulement.
(50)
This Regulation should establish a complaints mechanism for the Agency in cooperation with the fundamental rights officer, to safeguard the respect for fundamental rights in all the activities of the Agency. This should be an administrative mechanism whereby the fundamental rights officer should be responsible for handling complaints received by the Agency in accordance with the right to good administration. The fundamental rights officer should review the admissibility of a complaint, register admissible complaints, forward all registered complaints to the executive director, forward complaints concerning members of the teams to the home Member State, and register the follow-up by the Agency or that Member State. The mechanism should be effective, ensuring that complaints are properly followed up. The complaints mechanism should be without prejudice to access to administrative and judicial remedies and not constitute a requirement for seeking such remedies. Criminal investigations should be conducted by the Member States. In order to increase transparency and accountability, the Agency should report on the complaints mechanism in its annual report. It should cover in particular the number of complaints it has received, the types of fundamental rights violations involved, the operations concerned and, where possible, the follow-up measures taken by the Agency and Member States.
(51)
The Agency should be independent as regards technical and operational matters and have legal, administrative and financial autonomy. To that end, it is necessary and appropriate that it should be a Union body having legal personality and exercising the implementing powers that are conferred upon it by this Regulation.
(52)
The Commission and the Member States should be represented within a management board to exercise oversight over the Agency. The management board should, where possible, consist of the operational heads of the national services responsible for border guard management or their representatives. The parties represented in the management board should make efforts to limit turnover of their representatives so as to ensure continuity of the management board's work. The management board should be entrusted with the necessary powers to establish the Agency's budget, verify its execution, adopt appropriate financial rules, establish transparent working procedures for decision-making by the Agency and appoint the executive director and the deputy executive director. The Agency should be governed and operated taking into account the principles of the common approach on Union decentralised agencies adopted on 19 July 2012 by the European Parliament, the Council and the Commission.
(53)
In order to guarantee the autonomy of the Agency, it should be granted a stand-alone budget whose revenue comes mostly from a contribution from the Union. The Union budgetary procedure should be applicable as far as the Union contribution and any other subsidies chargeable to the general budget of the Union are concerned. The auditing of accounts should be undertaken by the Court of Auditors.
(54)
Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (9) 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) (10).
(55)
Regulation (EC) No 1049/2001 of the European Parliament and of the Council (11) should apply to the Agency. The Agency should be as transparent as possible about its activities, without jeopardising the attainment of the objective of its operations. It should make public information on all of its activities. It should likewise ensure that the public and any interested party are rapidly given information with regard to its work.
(56)
The Agency should also report on its activities to the European Parliament and to the Council to the fullest extent.
(57)
Any processing of personal data by the Agency within the framework of this Regulation should be conducted in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council (12).
(58)
Any processing of personal data by Member States within the framework of this Regulation should be conducted in accordance with Directive 95/46/EC of the European Parliament and of the Council (13). In cases where the processing of data is necessary primarily for the purpose of ensuring a high level of internal security within the Union, especially in the context of actions relating to the monitoring of migratory flows and risk analysis, the processing of personal data collected during joint operations, pilot projects and rapid border interventions and by migration management support teams, or the cooperation with Union institutions, bodies, offices, agencies, and international organisations, Council Framework Decision 2008/977/JHA (14) applies. Any processing of personal data should respect the principles of necessity and proportionality.
(59)
Since the objectives of this Regulation, namely the development and implementation of a system of integrated management of the external borders to ensure the proper functioning of the Schengen area, cannot be sufficiently achieved by the Member States acting in an uncoordinated manner but can rather, by reason of the absence of controls at internal borders, the significant migratory challenges at the external borders, the need to monitor efficiently the crossing of those borders, and to contribute to a high level of internal security within the Union, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. 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.
(60)
The external borders referred to in this Regulation are those to which the provisions of Title II of Regulation (EU) 2016/399 apply, which includes the external borders of Schengen Member States in accordance with Protocol 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and to the Treaty on the Functioning of the European Union (TFEU).
(61)
As regards Iceland and Norway, this Regulation constitutes a development of the provisions 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 latters' association with the implementation, application and development of the Schengen acquis (15), which fall within the area referred to in point A of Article 1 of Council Decision 1999/437/EC (16). The Arrangement between the European Community and the Republic of Iceland and the Kingdom of Norway on the modalities of the participation by those States in the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (17) provides for rules on the participation by those countries in the work of the Agency, including provisions on financial contributions and staff.
(62)
As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (18) which fall within the area referred to in point A of Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (19).
(63)
As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (20) which fall within the area referred to in point A of Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (21).
(64)
The Arrangement between the European Community, of the one part, and the Swiss Confederation and the Principality of Liechtenstein, of the other part, on the modalities of the participation by those States in the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (22) provides for rules on the participation by those countries in the work of the Agency, including provisions on financial contributions and staff.
(65)
In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the TEU and to the TFEU, 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, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.
(66)
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 (23); the United Kingdom is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.
(67)
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 (24); Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.
(68)
The Agency should facilitate the organisation of specific activities in which the Member States may avail themselves of the expertise and facilities which Ireland and the United Kingdom may be willing to offer, on terms to be decided on a case-by-case basis by the management board. To that end, representatives of Ireland and the United Kingdom may be invited to attend meetings of the management board which allow them to participate fully in the preparation of such specific activities.
(69)
A controversy exists between the Kingdom of Spain and the United Kingdom on the demarcation of the borders of Gibraltar.
(70)
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.
(71)
The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 18 March 2016 (25).
(72)
This Regulation aims to amend and expand the provisions of Regulation (EC) No 2007/2004 and Regulation (EC) No 863/2007 of the European Parliament and of the Council (26), and Council Decision 2005/267/EC (27). Since the amendments to be made are substantial in number and nature, those acts should, in the interests of clarity, be replaced and repealed,
