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EUROPEAN COMMISSION

Strasbourg, 15.12.2015

COM(2015) 671 final

2015/0310(COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the European Border and Coast Guard

and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC

EXPLANATORY MEMORANDUM

1.

CONTEXT OF THE PROPOSAL

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Reasons for and objectives of the proposal

The present proposal has the objective of setting up a European Border and Coast Guard in order to ensure a European integrated border management of the EU’s external borders, with a view to managing migration effectively and ensuring a high level of security within the Union, while safeguarding the free movement of persons therein. It is part of a package of measures presented by the Commission in order to better ensure the protection of the EU’s external borders as set out in the accompanying Commission Communication.

In 2015, the European Union witnessed extraordinary pressures at its external borders with an estimated 1,5 million persons having crossed the borders illegally between January and November this year. The sheer scale of the mixed migratory flows which have crossed the external borders of the European Union and the consequent secondary movements, demonstrated that existing structures at Union and Member State level are inadequate to address the challenges arising from such a large influx. In an area without internal borders, irregular migration through the external borders of one Member State affects all other Member States within the Schengen area. The significant secondary movements have led several Member States to reintroduce border control at their internal borders. This has put considerable strain on the functioning and coherence of the Schengen area.

Throughout the current migration crisis, it became clear that the Schengen area without internal borders is only sustainable if the external borders are effectively secured and protected. The control of the Union’s external borders is a common and shared interest which must be carried out in accordance with high and uniform Union standards.

The intensified security concerns following the terrorist attacks of this year have added to citizens’ concerns. Whilst borders can never provide complete security, they can make a significant contribution in terms of increasing security and intelligence and thwarting future attacks. This function has become even more important in the light of the increasing phenomenon of foreign fighters involved in terrorist attacks. Reinforcing security at the external borders is therefore essential to restoring public confidence.

A single travel area without internal borders is only sustainable if the external borders are effectively protected. A chain is always only as strong as its weakest link. A decisive step towards an integrated management system for external borders therefore is needed. This is only possible as a shared task among all Member States, in line with the principles of solidarity and responsibility to which all the EU’s institutions have agreed as the guiding principles addressing the migration crisis.

The European Agenda on Migration identified the need to move to a shared management of the external borders, in line with the objective of the ‘gradual introduction of an integrated management system for external borders’ set out in Article 77 TFEU. In his State of the Union speech in September, President Juncker announced that the Commission would present ambitious steps in this respect before the end of the year in the form of a fully operational European Border and Coast Guard, as was subsequently confirmed in the Commission Work Programme 2016 ¹ .

The draft Regulation lays down the general principles of European integrated border management; it establishes a European Border and Coast Guard and a European Border and Coast Guard Agency built from Frontex. The objective of this draft Regulation is to provide for a more integrated management of the EU’s external borders, inter alia by providing the European Border and Coast Guard Agency with more competences in the fields of external border management and return than Frontex currently has. This draft Regulation affords the European Border and Coast Guard Agency the additional competences needed for it to effectively implement integrated border management at Union level, to address deficiencies of border management at national level, and to respond to unprecedented migratory flows such as those which have arrived at the external borders of the European Union this year.

Granting these additional competences to the European level of the European Border and Coast Guard is essential to prevent that deficiencies of external border management or unpredicted migratory flows undermine the proper functioning of the Schengen area. The challenges which have arisen from the migratory crisis cannot be adequately dealt with by Member States acting in an uncoordinated manner. Integrated border management is a shared responsibility of the European Border and Coast Guard Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks, and together they constitute the European Border and Coast Guard.

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Consistency with existing policy provisions in the policy area

This draft Regulation responds to the calls of the European Parliament and the European Council to effectively manage the external borders of the European Union. Clear orientations were set out by the European Council in October 2015 ² to strengthen the external borders of the European Union namely by working towards the establishment of an integrated management system for the external borders and by enhancing the mandate of Frontex in the context of discussions over the development of a European Border and Coast Guard System, including as regards the deployment of Rapid Border Intervention Teams in cases where Schengen evaluations or risk analysis demonstrate the need for robust and prompt action, in cooperation with the Member State concerned. The European Council also considered that the mandate of Frontex on return should be expanded to include the right to organise joint return operations on its own initiative, and enhance its role regarding the acquisition of travel documents for returnees.

In the European Agenda on Migration, the Commission proposed to make the management of the external borders into shared responsibility of the Member States and the European Union. On this basis, the European Agenda on Migration proposed changes to the legal basis of Frontex so as to strengthen its role and capacity. Among the other suggested steps to be taken by the Commission was the foundation of a European Border and Coast Guard, an increased role for the European Border and Coast Guard Agency in the organisation and coordination of returns, inter-agency cooperation, better management of Agency and Member State assets and the initiation of the new ‘hotspot’ approach.

With this draft Regulation, the Commission contributes to rendering border management more effective and reliable by bringing it to a new level of responsibility and solidarity. Over the past few years, the European Union established a policy to enable Member States to build and maintain sound external borders. However, in the absence of strategic implementation of integrated border management at Union level, there are discrepancies in implementation that still remain at national level among Member States. Hence, there is a need, as identified by the Commission in the European Agenda on Migration, to have Union standards for border management to cover all aspects of the Union’s external border management.

This proposal builds on the existing border management policy, including the Frontex Agency but brings it to a qualitatively different level. Frontex was established by Council Regulation (EC) No 2007/2004 which was subsequently amended by Regulation (EC) 863/2007, ³ which introduced the rapid border interventions, and by Regulation (EU) No 1168/2011, ⁴ which highlighted the responsibility of Frontex as regards the protection of fundamental rights. This proposal substantially expands upon the ability of the Agency to respond effectively to present or future threats at the external borders by proactively reinforcing, assessing, and coordinating the actions of Member States in the implementation of appropriate measures at the external borders.

The proposal complements existing legislation by following a similar approach as the one on the European Border Surveillance System (Eurosur) ⁵ in further fostering a spirit of cooperation, information exchange and the coordination of efforts between the Member States and the European Border and Coast Guard Agency, as well as among national authorities and Union Agencies, with concrete and binding commitments. It also builds upon Regulation (EU) No 656/2014 ⁶ establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex. The proposal also develops and reinforces the rapid border interventions.

The proposal, and in particular the establishment of a vulnerability assessment, complements the Schengen evaluation mechanism established by Regulation (EU) No 1053/2013. ⁷ The Schengen evaluation mechanism is intended to maintain mutual trust among Member States. It consists of a technical and legal assessment intended to verify the correct application of the Schengen acquis and the necessary conditions for the lifting of internal border control. In cases where it results from a Schengen evaluation that there are serious deficiencies at the external border, the Commission may recommend initiating the deployment of European Border and Coast Guard Teams or presenting strategic plans to the Agency for its opinion. The present proposal is also without prejudice to the measures which may be adopted under Article 19a and 26 of the Schengen Borders Code.

The vulnerability assessment focuses on prevention so as to avoid reaching a crisis situation. It is an assessment of the operational capabilities of Member States at the external borders and for this purpose it looks into the technical equipment, capacities, resources and contingency plans. That assessment is carried out by the Agency, the Supervisory Board advises the Executive Director, who in turn decides on the necessary measures. Where a Member State would fail to comply with the decision of the Executive Director and as a result it would risk putting in jeopardy the functioning of the Schengen area, the Commission can adopt an implementing decision requiring the direct intervention by the Agency on the ground.

This proposal builds upon and further develops those existing policy provisions and brings them together in the European Border and Coast Guard, thus establishing an integrated management system for external borders at Union level as provided for in Article 77(2)(d) of the Treaty on the Functioning of the European Union.

•

Consistency with other Union policies

This proposal is closely linked and complements other Union policies, namely:

(a)The Common European Asylum System with the setting up of migration management support teams at hotspot areas which is closely linked to the relocation of persons in clear need of international protection;

(b)Internal security as was underlined in the European Agenda on Security, common high standards of border management are essential to prevent cross-border crime and terrorism; this proposal further contributes to achieving a high level of internal security by enabling the Agency to cover aspects of cross-border crime and terrorism in its risk analysis, by enabling it to process personal data of persons suspected to be involved in acts of terrorism and by providing that the Agency cooperates with other Union Agencies and international organisations on the prevention of terrorism. As regards access to national databases and European databases, the draft Regulation provides for an obligation for Member States to allow access to members of the European Border and Coast Guard Teams to such databases. The Commission will explore the possibility of giving the Agency access to European databases, such as SIS and EURODAC, and will consider presenting proposals to modify the legal acts on which these databases are based;

(c)The Union Customs Risk Management and Supply Chain Security Strategy, which provides for promoting inter-agency cooperation and information sharing among customs, law enforcement and security agencies to ensure complementarity of roles, the development of common risk criteria and sharing of risk information;

(d)Maritime security and safety, as well as maritime surveillance with the establishment of European cooperation on coast guard functions among the European Border and Coast Guard Agency, the European Fisheries Control Agency and the European Maritime Safety Agency;

(e)External relations policy of the Union given that the European Border and Coast Guard Agency should facilitate and encourage operational cooperation between Member States and third countries, including by coordinating such operational cooperation in the field of management of external borders and by deploying liaison officers to third countries, as well as by cooperating with the authorities of third countries on return, including as regards the acquisition of travel documents.

2.

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•

Legal basis

This legislative proposal is based on Article 77(2)(b) and (d) and Article 79(2)(c) of the Treaty on the Functioning of the European Union (TFEU).

Article 77(1)(b) and (d) provides that the Union shall develop a policy with a view to carrying out checks on persons and efficient monitoring of the crossing of external borders, and the gradual introduction of an integrated management system for external borders. For those purposes, under Article 77(2)(b) and (d), the European Parliament and the Council acting in accordance with the ordinary legislative procedure, shall adopt measures concerning the checks to which persons crossing external borders are subject, and any measure necessary for the gradual establishment of an integrated management system for external borders.

Article 79(2)(c) authorises the European Parliament and the Council to adopt measures in the area of irregular immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation.

•

Subsidiarity

The objective of this proposal is to ensure a European integrated border management of the EU’s external borders, with a view to managing migration effectively and ensuring a high level of security within the Union, while safeguarding the free movement of persons therein. In an area without internal borders, irregular migration through the external borders of one Member State affects all other Member States within the Schengen area. An area without internal borders is only sustainable if the external borders are effectively secured and protected.

Since the control of the Union’s external borders is a common and shared interest which must be carried out in accordance with high and uniform Union standards, the objectives of this proposal cannot be sufficiently achieved by the Members States, and can be better accomplished 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.

•

Proportionality

The draft Regulation is intended to respond to the new challenges and political realities faced by the Union, both as regards migration management and internal security. It puts in place a tool box of measures to deal with border management comprehensively. It ensures that rules on integrated border management are fully and correctly implemented by Member States, that appropriate action is taken to prevent crisis situations and to intervene at an early stage at the external borders, and it is only if the situation still becomes critical, that urgent action is taken at Union level for direct intervention on the ground. In view of its objectives and 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.

•

Choice of the instrument

Only a regulation can provide for the necessary degree of uniformity required for ensuring the integrated management of the external borders. Moreover, having regard to the fact that the Frontex Agency, renamed European Border and Coast Guard Agency, was established by means of a Regulation, the same legal instrument is also appropriate for this proposal.

3.

CONSULTATION OF INTERESTED PARTIES

In preparation of this proposal, the Commission has relied upon the discussions that have been regularly taking place in the European Council and in the Council of Ministers, as well as in the European Parliament on border management and the measures needed to address the migratory crisis. The future of border management and, in particular, the reinforcement of the Frontex Agency has recently been the subject of discussion in the Council of Ministers meeting of 8 October 2015. ⁸ This was followed by a meeting of the European Council on 15 October 2015, ⁹ which in its orientations on the future of border management, called for the strengthening of the external borders of the European Union by, amongst others, working towards the establishment of an integrated management system for external borders and by enhancing the mandate of Frontex.

Since Frontex took up its responsibilities on 1 May 2005, there have been continued discussions with relevant stakeholders at European and national level. In particular, there have been regular discussions in the context of reporting by the Agency in the European Parliament and in the Council. The Agency continuously reports on its activities at the Management Board meetings and through various reports it issues during the year. There have also been regular information exchanges with other Union Agencies in particular the European Asylum Support Office, the European Union Agency for Fundamental Rights, and Europol, as well as with the European Ombudsman. Also, several discussions have been organised with civil society and academia.

In 2014, the Commission launched a Study on the feasibility of the creation of a European System of Border Guards to control the external borders of the Union, the results of which were taken into account in the preparation of this proposal.

The Commission has made sure to also take into account the views of relevant stakeholders by closely considering the results of the external evaluation of the Frontex Agency. This external evaluation, based on Article 33 of Regulation (EU) No 2007/2004, was carried out between July 2014 and June 2015, and covers the period from July 2008 to July 2014. The final report was discussed in the Management Board of Frontex on 10 September 2015, and the Management Board has issued recommendations regarding possible modifications to the founding Regulation of Frontex. This proposal reflects the majority of recommendations made by decision of the Management Board on 28 October 2015.

The Commission has also taken into account the Report of the European Parliament on the Special Report of the European Ombudsman in own-initiative inquiry OI/5/2012/BEH-MHZ concerning Frontex in developing a complaint mechanism for the Agency.

•

Fundamental rights

This Regulation respects the fundamental rights and observes the principles set out in the Charter of Fundamental Rights of the European Union, in particular Articles 18 and 19.

This proposal safeguards fundamental rights by setting out the need for the European Border and Coast Guard Agency to have a Fundamental Rights Strategy, by establishing a Consultative Forum on fundamental rights, by providing for an expanded role for the Fundamental Rights Officer and by including a complaint mechanism by which any person who considers himself or herself to have been the subject of a breach of fundamental rights during activities carried out by the Agency, or any third party intervener, may make a complaint to the European Border and Coast Guard Agency.

The proposal is thus in line with Articles 2 and 6 of the Treaty on European Union and with the Charter of Fundamental Rights of the European Union.

4.

BUDGETARY IMPLICATIONS

The European Border and Coast Guard Agency, to be built from the existing Frontex, is tasked with the management of the external borders alongside the Member States. The subsidy for Frontex, which is to be renamed European Border and Coast Guard Agency, already forms part of the Union’s budget.

The Agency’s budgets for 2015 and 2016 have been reinforced in 2015 in order to enable it to address the migratory crisis, in particular by tripling the financial resources for joint operations Poseidon and Triton, extending the Agency’s support to the Member States in the area of returns and giving to necessary resources to implement hotspots. The final EU subsidy for 2016 as adopted by the Budgetary Authority is EUR 238 686 000.

Given the necessity that the Agency continues with its work in external border management at the same level of intensity, including as regards search and rescue and in the area of return, it is essential that in the future the level of the 2016 subsidy is maintained as the basis for the annual budget of the European Border and Coast Guard Agency.

However, for the Agency to adequately address its new tasks as foreseen in this proposal, in 2017 an amount of at least EUR 31,5 million will need to be added to the Agency’s Union budget in addition to that one for 2016 and an additional 602 posts until 2020 together with the corresponding financial resources are necessary, including 329 establishment plan posts and 273 external staff.

5.

OTHER ELEMENTS

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Monitoring, evaluation and reporting arrangements

The European Border and Coast Guard Agency has a number of duties to report upon its activities and to monitor its work. Most importantly the Agency must compile a consolidated annual activity report which is to include an evaluation of joint operations and rapid border interventions. The Commission must conduct an evaluation in accordance with its guidelines every three years to assess the impact, effectiveness and efficiency of the Agency in all of its activities. The evaluation’s findings must be forwarded by the Commission to the European Parliament, the Council and the Management Board of the Agency. These findings are to be made public. Furthermore, the European Parliament or the Council can also invite the Executive Director of the Agency to report to those institutions as to the carrying out of his or her tasks.

•

Detailed explanation of the specific provisions of the proposal

This proposal lays down the general principles for a European integrated border management with the objective of managing migration effectively and ensuring a high level of internal security within the European Union, whilst safeguarding the free movement of persons within the European Union.

European integrated border management consists of measures in third countries, measures implemented in conjunction with neighbouring third countries, border control measures at the external border and measures implemented inside the area of free movement including the return of third country nationals who illegally stay in a Member State.

This proposal establishes the European Border and Coast Guard which is responsible for integrated border management and, in comparison to the mandate afforded to Frontex, enhances the European Border and Coast Guard Agency’s powers in all aspects of integrated border management. The European Border and Coast Guard is composed of the European Border and Coast Guard Agency and the national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks. The task of the European Border and Coast Guard is to implement the European integrated border management in accordance with the principle of shared responsibility. Since all national border guards, including coast guards to the extent that they carry out border control tasks, implement the European integrated border management, they are European Border and Coast Guards at the same time as they are national border guards and coast guards.

To reflect the changes to the competences of Frontex, the Agency is to be renamed European Border and Coast Guard Agency. The key role of the European Border and Coast Guard Agency is to establish an operational and technical strategy for the implementation of an integrated border management at Union level, to oversee the effective functioning of border control at the external borders of Member States, to carry out vulnerability assessments and to ensure that deficiencies in the management of the external border by national authorities are addressed, to provide increased operational and technical assistance to Member States through joint operations and rapid border interventions, and to ensure the practical execution of measures in case of a situation requiring urgent action at the external borders, as well as to organise, coordinate and conduct return operations and return interventions.

The European Border and Coast Guard Agency will need to have a broad and effective overview to be able to determine whether a Member State is able to implement applicable EU legislation, and to determine whether there are weaknesses in the border management of a Member State so as to avoid that increases in migration flows lead to serious problems at the external borders. For these purposes, this proposal sets outs out the following elements reinforcing the role of the European Border and Coast Guard Agency, as compared to that of Frontex:

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Establishing a monitoring and risk analysis centre with the capacity to monitor migratory flows towards and within the European Union and to carry out risk analysis which is to be applied by Member States and which covers all aspects relevant to integrated border management, in particular, border control, return, irregular secondary movements of third-country nationals with the European Union, the prevention of cross-border crime including facilitation of irregular immigration, trafficking in human beings and terrorism, as well as the situation at neighbouring third countries with a view to developing a pre-warning mechanism which analyses the migratory flows towards the EU.

•

Liaison officers of the Agency to be deployed to Member States so that the Agency can ensure proper and effective monitoring not only through risk analysis, information exchange and Eurosur, but also through its presence on the ground. The task of the liaison officer is to foster cooperation between the Agency and the Member States and in particular, to support the collection of information required by the Agency for carrying out the vulnerability assessment and to monitor the measures taken by Member States at the external borders.

•

Supervisory role for the Agency by establishing a mandatory vulnerability assessment by the Agency to assess the capacity of Member States to face challenges at their external borders, including by means of an assessment of the equipment and resources of Member States as well as of their contingency planning. The Executive Director, on the advice of a Supervisory Board created within the European Border and Coast Guard Agency, will identify the measures that need to be taken by the Member State concerned and should set a time-limit within which those measures need to be taken. The decision of the Executive Director will be binding on the Member State concerned, and where the necessary measures are not taken within the set time-limit, the matter will be referred to the Management Board for a further decision. If the Member State would still fail to act, thereby risking putting in jeopardy the functioning of the Schengen area, the Commission may adopt an implementing decision for direct intervention by the Agency.

•

New procedures to deal with situations requiring urgent action where a Member State does not take the necessary corrective action in line with the vulnerability assessment or in the event of disproportionate migratory pressure at the external borders, rendering the control of the external borders ineffective to an extent that risks putting in jeopardy the functioning of the Schengen area. This will involve a Commission implementing decision identifying the measures to be implemented by the European Border and Coast Guard Agency as outlined in this Regulation and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The European Border and Coast Guard Agency will then determine the actions needed to be taken for the practical execution of the measures indicated in the Commission decision, and it will intervene directly in the Member State concerned.

•

Enhanced tasks for the Agency consisting of the setting up and deployment of European Border and Coast Guard Teams for joint operations and rapid border interventions, the setting up of a technical equipment pool, assisting the Commission in coordinating the activities of the migration management support teams at hotspot areas, and a strengthened role in return, risk analysis, training and research.

•

Mandatory pooling of human resources by establishing a rapid reserve pool which will be a standing corps composed of a small percentage of the total number of border guards in the Member States on a yearly basis. The deployment of European Border and Coast Guard Teams from the rapid reserve pool should be immediately complemented by additional European Border and Coast Guard Teams as appropriate.

•

Deployment of an own technical equipment pool by acquiring itself or in co-ownership with a Member State and managing a pool of technical equipment provided by the Member States, based on the needs identified by the Agency and by requiring that the technical equipment pool be completed by means of transport and operating equipment purchased by Member States under the Specific Actions of the Internal Security Fund.

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Key role in assisting the Commission with the coordination of migration management support teams at hotspot areas, characterised by mixed migratory flows and where the European Border and Coast Guard Agency together with the European Asylum Support Office, Europol and other relevant Union Agencies provides coordinated and enhanced technical and operational support to Member States.

•

Stronger role for the Agency on return by establishing a Return Office within the Agency, which should provide Member States with all necessary operational reinforcement to effectively return illegally staying third country nationals. The Agency will coordinate and organise return operations and return interventions from one or more Member States, and promote their organisation on its own initiative to reinforce the return system of the Member States which are subject to particular pressure. The Agency will need to have at its disposal pools of forced return monitors, forced return escorts and return specialists to be made available by Member States, forming European Return Intervention Teams to be deployed in the Member States.

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Participation by the Agency in the management of research and innovation activities relevant for the control of external borders, including the use of advanced surveillance technology such as remotely piloted aircraft systems and develop pilot projects regarding matters covered by this Regulation.

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European cooperation on coast guard functions by developing cross-sectoral cooperation among the European Border and Coast Guard Agency, the European Fisheries Control Agency and the European Maritime Safety Agency to improve synergies between those agencies, in order to provide more efficient and cost-effective multipurpose services to national authorities carrying out coast guard functions.

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Increased cooperation with third countries by coordinating operational cooperation between Member States and third countries in border management, including the coordination of joint operations, and by deploying liaison officers to third countries, as well as by cooperating with the authorities of third countries on return, including as regards the acquisition of travel documents.

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Strengthen the mandate of the Agency to process personal data by also allowing for the processing of personal data in the organisation and coordination of joint operations, pilot projects, rapid border interventions, return operations, return interventions and in the framework of the migration management support teams, as well as in the exchange of information with Member States, the European Asylum Support Office, Europol, Eurojust or other Union Agencies.

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Guaranteeing the protection of fundamental rights by setting up a complaint mechanism to handle complaints concerning possible violations of fundamental rights in the course of activities carried out by the European Border and Coast Guard Agency. The complaint mechanism is an administrative mechanism since the Agency cannot itself investigate allegations of violations of fundamental rights by members of the European Border and Coast Guard Teams.

2015/0310 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the European Border and Coast Guard

and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 77(2)(b) and (d) and Article 79(2)(c) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

¹⁰ Having regard to the opinion of the European Economic and Social Committee,

¹¹ Having regard to the opinion of the Committee of Regions,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1)

On 25 and 26 June 2015, ¹² the European Council called for wider efforts in resolving the migrant crisis in a comprehensive manner, including through the reinforcement of the management of borders to better manage growing mixed migratory flows. Furthermore, on 23 September 2015, ¹³ the European Council stressed the need to tackle the dramatic situation at the external borders as well as to strengthen the controls at those borders, notably 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 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 and ensuring a high level of internal security within the Union.

(3)

European integrated border management, based on the four-tier access model, comprises measures in third countries, such as under the common visa policy, measures with neighbouring third countries, border control measures at the external border itself as well as risk analysis, and measures within the area of free movement, including return.

(4)

To ensure the effective implementation of the European integrated border management, a European Border and Coast Guard should be established. The European Border and Coast Guard, which comprises the European Border and Coast Guard Agency and national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks, relies upon the common use of information, capabilities and systems at national level and the response of the European Border and Coast Guard Agency at Union level.

(5)

European integrated border management is a shared responsibility of the European Border and Coast Guard Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks. While Member States retain the primary responsibility for the management of their section of the external borders in their interest and in the interest of all Member States which have abolished internal border control, the European Border and Coast Guard Agency should ensure 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.

(6)

The development of the policy and legislation on external border control and return remains a responsibility of the Union institutions. Close coordination between the European Border and Coast Guard Agency and those institutions should be guaranteed.

(7)

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. ¹⁴ 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, as well as risk analysis, information exchange, relations with third countries and the return of third-country nationals illegally staying on the territory of Member States.

(8)

Having regard to the increasing migratory pressures at the external borders, to the necessity of ensuring a high level of internal security within the Union and to safeguard the functioning of the Schengen area as well as the overarching principle of solidarity, it is necessary to reinforce the management of the external borders by building on the work of Frontex and further develop it into an Agency with a shared responsibility for the management of the external borders.

(9)

The tasks of Frontex should therefore be expanded and to reflect those changes, it should be renamed European Border and Coast Guard Agency. The key role of the European Border and Coast Guard Agency should be to establish an operational and technical strategy for the implementation of an integrated border management at Union level, to oversee the effective functioning of border control at the external borders, to provide increased operational and technical assistance to Member States through joint operations and rapid border interventions, and to ensure the practical execution of measures in case of a situation requiring urgent action at the external borders, as well as to organise, coordinate and conduct return operations and return interventions.

(10)

The European Border and Coast Guard 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 have a timely and accurate exchange of information.

(11)

The European Border and Coast Guard Agency should prepare general and tailored risk analysis based on a common integrated risk analysis model, to be applied by the Agency itself and by Member States. The European Border and Coast Guard Agency should, based also on information provided by Member States, provide adequate information and intelligence 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 irregular immigration, trafficking in human beings and terrorism, as well as the situation at 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 external borders.

(12)

In a spirit of shared responsibility, the role of the European Border and Coast Guard Agency should be to regularly monitor the management of the external borders. The Agency should ensure proper and effective monitoring not only through risk analysis, information exchange and Eurosur, but also through presence of experts from its own staff in Member States. The Agency should therefore be able to deploy liaison officers to specific 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.

(13)

The European Border and Coast Guard Agency should carry out a vulnerability assessment to assess the capacity of the Member States to face challenges at their external borders, including by assessing the equipment and resources of Member States as well as their contingency plans to address possible crises at the external borders. Member States should take corrective action to address any deficiencies identified in that assessment. The Executive Director, on the advice of a Supervisory Board created within the European Border and Coast Guard Agency, should identify the measures to be taken by the Member State concerned and should set a time-limit within which those measures should be taken. That decision should be binding on that Member State and where the necessary measures are not taken within the set time-limit, the matter needs to be referred to the Management Board for a further decision.

(14)

The European Border and Coast Guard 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 border resulting from irregular immigration or cross-border crime. In this respect, the European Border and Coast Guard 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, and it may deploy experts from its own staff.

(15)

In cases where there is a specific and disproportionate pressure at the external borders, the European Border and Coast Guard Agency should, at the request of a Member State or on its own initiative, organise and coordinate rapid border interventions and deploy European Border and Coast Guard Teams from a rapid reserve pool as well as technical equipment. Rapid border interventions should provide reinforcement in situations where 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 reserve pool.

(16)

At particular areas of the external borders where Member States face disproportionate migratory pressures characterised by large influxes of mixed migratory flows, referred to as hotspot areas, the Member States should be able to rely on the increased operational and technical reinforcement by the migration management support teams composed of teams of experts deployed from Member States by the European Border and Coast Guard Agency and the European Asylum Support Office, and from Europol or other relevant Union Agencies, as well as experts from the staff of the European Border and Coast Guard Agency. The European Border and Coast Guard Agency should assist the Commission in the coordination among the different agencies on the ground.

(17)

In cases where a Member State does not take the necessary corrective action in line with the vulnerability assessment or in the event of disproportionate migratory pressure at the external borders, rendering the control at the external border ineffective to an extent which risks putting in jeopardy the functioning of the Schengen area, a unified, rapid and effective response should be delivered at Union level. For this purpose, and to ensure better coordination at Union level, the Commission should identify the measures to be implemented by the European Border and Coast Guard Agency and require the Member State concerned to cooperate with the Agency in the implementation of those measures. The European Border and Coast Guard Agency should then determine the actions to be taken for the practical execution of the measures indicated in the Commission decision, and an operational plan should be drawn up with the Member State concerned.

(18)

The European Border and Coast Guard 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 European Border and Coast Guard Agency should be able to deploy European Border and Coast Guard Teams from a rapid reserve pool which should be a standing corps composed of a small percentage of the total number of border guards in the Member States, which should amount to a minimum of 1 500. The deployment of the European Border and Coast Guard Teams from the rapid reserve pool should be immediately complemented by additional European Border and Coast Guard Teams as appropriate.

(19)

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 influxes of migratory flow, the European Border and Coast Guard 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. The European Border and Coast Guard Agency should also manage a pool of technical equipment provided by the Member States, based on the needs identified by the European Border and Coast Guard 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.

(20)

On 8 October 2015, the European Council called for enlarging the mandate of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union to assist Member States in ensuring the effective return of illegally staying third-country nationals, including by organising return operations on its own initiative and enhancing its role regarding the acquisition of travel documents. For this purpose, the European Council called for the establishment of a Return Office within the European Border and Coast Guard Agency which should be tasked with the coordination of the Agency’s activities in the field of return.

(21)

The European Border and Coast Guard Agency should step up its assistance to Member States for returning illegally staying 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. ¹⁵ In particular, it should coordinate and organise return operations from one or more Member States and it should organise and conduct return interventions to reinforce the return system of Member States requiring increased technical and operational assistance when complying with their obligation to return illegally staying third-country nationals in accordance with that Directive.

(22)

The European Border and Coast Guard Agency should establish pools of forced return monitors, forced return experts and return specialists made available by Member States, who should be deployed during return operations and that should form part of tailor-made European Return Intervention Teams deployed in return interventions. The European Border and Coast Guard Agency should provide them with the necessary training.

(23)

The European Border and Coast Guard Agency should develop specific training tools and it should provide training at Union level for national instructors of border guards and additional training and seminars related to control at external borders and return of third-country nationals illegally staying on the territory of Member States for officers of the competent national bodies. The Agency should be authorised to organise training activities in cooperation with Member States and third countries on their territory.

(24)

The European Border and Coast Guard Agency should monitor and contribute to the developments in research relevant for the control of the external borders, including the use of advanced surveillance technology, and it should disseminate this information to the Member States and to the Commission.

(25)

Effective implementation of an integrated management of the external borders necessitates regular, swift and reliable exchange of information among the Member States regarding the management of the external borders, irregular immigration and return. The European Border and Coast Guard Agency should develop and operate information systems facilitating such exchange in accordance with Union data protection legislation.

(26)

For the purpose of fulfilling its mission and to the extent required for the accomplishment of its tasks, the European Border and Coast Guard 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.

(27)

National authorities carrying out coast guard functions are responsible for a wide range of tasks, including but not limited to maritime safety, security, search and rescue, border control, fisheries control, customs control, general law enforcement and environmental protection. The European Border and Coast Guard Agency, the European Fisheries Control Agency established by Council Regulation (EC) No 768/2005 ¹⁶ and the European Maritime Safety Agency established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council ¹⁷ should therefore strengthen their cooperation both with each other and with the national authorities carrying out coast guard functions to increase maritime situational awareness as well as to support coherent and cost-efficient action.

(28)

The European Border and Coast Guard Agency should facilitate and encourage operational cooperation between Member States and third countries in the framework of the external relations policy of the Union, including by coordinating operational cooperation between Member States and third countries in the field of management of external borders and by deploying liaison officers to third countries, as well as by cooperating with the authorities of third countries on return, including as regards the acquisition of travel documents. In their cooperation with third countries, the European Border and Coast Guard Agency and Member States should comply with norms and standards at least equivalent to those set by Union legislation also when the cooperation with third countries takes place on the territory of those countries.

(29)

This Regulation respects the fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. 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 access to asylum, the right to effective remedy, the rights of the child, the prohibition of torture and of inhuman or degrading treatment or punishment, the prohibition of trafficking in human beings, and to promote the application of the principles of non-discrimination and non-refoulement.

(30)

This Regulation establishes a complaint mechanism for the European Border and Coast Guard Agency, in cooperation with the Fundamental Rights Officer, to monitor and ensure 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 border guards to the home Member State and register the follow-up by the Agency or that Member State. Criminal investigations should be conducted by the Member States.

(31)

In order to ensure the uniform conditions for the implementation of this Regulation, in particular as regards situations requiring urgent action at the external borders, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council. ¹⁸

(32)

The European Border and Coast Guard Agency should be independent as regards operational and technical 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, which are conferred upon it by this Regulation.

(33)

The Commission and the Member States should be represented within a Management Board to exercise policy and political oversight over the European Border and Coast Guard Agency. The Board should, where possible, consist of the operational heads of the national services responsible for border guard management or their representatives. This Board should be entrusted with the necessary powers to establish the budget, verify its execution, adopt the appropriate financial rules, establish transparent working procedures for decision making by the European Border and Coast Guard Agency and appoint the Executive Director and the Deputy Executive Director. The Agency should be governed and operated in line with the principles of the common approach on Union decentralised agencies adopted on 19 July 2012 by the European Parliament, the Council and the European Commission.

(34)

In order to guarantee the autonomy of the European Border and Coast Guard Agency, it should be granted an autonomous budget whose revenue comes essentially 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 European Union are concerned. The auditing of accounts should be undertaken by the Court of Auditors.

(35)

Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council ¹⁹ should apply without restriction to the European Border and Coast Guard Agency, which should accede to the Inter-institutional 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). ²⁰

(36)

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents ²¹ should apply to the European Border and Coast Guard Agency.

(37)

Any processing of personal data by the European Border and Coast Guard Agency within the framework of this Regulation should be conducted in accordance Regulation (EC) No 45/2001 of the European Parliament and of the Council. ²²

(38)

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, ²³ Council Framework Decision 2008/977/JHA ²⁴ and the respect of the principles of necessity and proportionality.

(39)

Since the objectives of this Regulation, namely the development and implementation of a system of integrated management of the external borders, thus also ensuring the proper functioning of the Schengen area, cannot be sufficiently achieved by the Member States acting in an uncoordinated manner but can rather, because of the absence of controls at internal borders and in view of the significant migratory pressures at the external borders and the need to safeguard 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 Treaty on European Union. 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.

(40)

As regards Iceland and Norway, this Regulation constitutes a development 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, ²⁵ which fall within the area referred to in point A of Article 1 of Council Decision 1999/437/EC. ²⁶ 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 ²⁷ provides for rules on the participation by those countries in the work of the Agency, including provisions on financial contributions and staff.

(41)

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 ²⁸ which fall within the area referred to in Article 1, points A, B and G of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC. ²⁹

(42)

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 ³⁰ which fall within the area referred to in Article 1, points A, B and G of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU. ³¹

(43)

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 ³² provides for rules on the participation by those countries in the work of the Agency, including provisions on financial contributions and staff.

(44)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, 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 under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark should, in accordance with Article 5 of the said Protocol, decide within a period of six months after the Council has adopted this Regulation whether it will implement it in its national law or not.

(45)

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; ³³ 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.

(46)

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; ³⁴ Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(47)

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, in accordance with modalities 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.

(48)

A controversy exists between the Kingdom of Spain and the United Kingdom on the demarcation of the borders of Gibraltar.

(49)

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.

(50)

The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on […] ³⁵ .

(51)

This Regulation aims to amend and expand the provisions of Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 ³⁶ of the European Parliament and of the Council and Council Decision 2005/267/EC. ³⁷ Since the amendments to be made are of substantial number and nature, those acts should, in the interests of clarity, be replaced and repealed. References to the repealed regulations should be construed as references to this Regulation.

HAVE ADOPTED THIS REGULATION:

CHAPTER I

EUROPEAN BORDER AND COAST GUARD

Article 1

Subject matter

A European Border and Coast Guard is hereby set up to ensure a European integrated border management at the external borders with a view to managing migration effectively and ensuring a high level of internal security within the Union, while safeguarding the free movement of persons therein.

Article 2

Definitions

For the purposes of this Regulation, the following definitions shall apply:

(1)

‘external borders’ means the land and sea borders of the Member States and their airports and seaports, to which the provisions of Title II of Regulation (EC) No 562/2006 of the European Parliament and of the Council ³⁸ apply;

(2)

‘border control’ means border control as defined in point 9 of Article 2 of Regulation (EC) No 562/2006;

(3)

‘European Border and Coast Guard Teams’ mean teams of border guards and other relevant staff from participating Member States, including national experts that are seconded by Member States to the Agency, to be deployed during joint operations, rapid border interventions as well as in the framework of migration management support teams;

(4)

‘host Member State’ means a Member State in which a joint operation or a rapid border intervention, a return operation or a return intervention takes place or from which it is launched;

(5)

‘home Member State’ means the Member State of which a member of the European Border and Coast Guard Teams is a border guard or other relevant staff member;

(6)

‘participating Member State’ means a Member State which participates in a joint operation, rapid border intervention, return operation, return intervention or migration management support teams by providing technical equipment, border guards and other relevant staff deployed as part of the European Border and Coast Guard Teams, as well as a Member States which participate in return operations or return interventions by providing technical equipment or staff;

(7)

‘members of the European Border and Coast Guard Teams’ mean the officers of border guard services or other relevant staff of Member States other than the host Member State, including national experts and border guards from Member States seconded to the Agency, who are participating in joint operations or rapid border interventions;

(8)

‘members of the teams’ mean members of the European Border and Coast Guard Teams or teams of staff involved in return-related tasks participating in return operations or return interventions;

(9)

‘migration management support teams’ mean teams of experts which provide operational and technical reinforcement to Member States at hotspot areas and which are composed of experts deployed from Member States by the European Border and Coast Guard Agency and the European Asylum Support Office, and from Europol or other relevant Union Agencies;

(10)

‘return’ means return as defined in point 3 of Article 3 of Directive 2008/115/EC;

(11)

‘return decision’ means a return decision as defined in point 4 of Article 3 of Directive 2008/115/EC;

(12)

‘returnee’ means an illegally staying third-country national subject to a return decision;

(13)

‘return operation’ means an operation to return illegally staying third-country nationals, that is coordinated by the Agency and involves technical and operational reinforcement being provided by one or more Member States under which returnees from one or more Member States are returned either through forced return or in voluntary compliance with an obligation to return;

(14)

‘return intervention’ means an operation to return illegally staying third-country nationals providing for enhanced technical and operational assistance consisting of the deployment of European Return Intervention Teams to Member States and the organisation of return operations.

Article 3

European Border and Coast Guard

1.

The European Border and Coast Guard 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, shall constitute the European Border and Coast Guard.

2.

The European Border and Coast Guard Agency shall establish an operational and technical strategy for the European integrated border management. It shall promote and ensure the implementation of European integrated border management in all Member States.

3.

The national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks, shall establish their national strategies for integrated border management. Those national strategies shall be coherent with the strategy referred to in paragraph 2.

Article 4

European integrated border management

European integrated border management shall consist of the following components:

(a)border control, including measures related to the prevention, detection and investigation of cross-border crime, where appropriate;

(b)analysis of the risks for internal security and analysis of the threats that may affect the functioning or security of the external borders;

(c)inter-agency cooperation among the national authorities in each Member State which are responsible for border control or for other tasks carried out at the border and among the relevant Union institutions, agencies, bodies and offices; including the regular exchange of information through existing information exchange tools, and in particular, the European Border Surveillance System (‘Eurosur’) established by Regulation (EU) No 1052/2013 of the European Parliament and of the Council; ³⁹

(d)cooperation with third countries in the areas of covered by this Regulation, focusing in particular on neighbouring countries and on those third countries which have been identified through risk analysis as being countries of origin and transit for irregular immigration;

(e)technical and operational measures within the area of free movement which are related to border control and designed to prevent irregular immigration and to counter cross-border crime;

(f) return of third-country nationals illegally staying on the territory of the Member States;

(g)use of state-of-the-art technology including large-scale information systems;

(h)a quality control mechanism to ensure the implementation of Union legislation in the area of border management.

Article 5

Shared responsibility

1.

The European Border and Coast Guard shall implement the European integrated border management as a shared responsibility of the European Border and Coast Guard Agency and of the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks.

2.

The European Border and Coast Guard Agency shall facilitate the application of Union measures relating to the management of external borders by reinforcing, assessing and coordinating the actions of Member States in the implementation of those measures, and in return. Member States shall ensure the management of their section of the external borders, in their interests and in interest of all Member States which have abolished internal border control, in full compliance with Union law and in accordance with the technical and operational strategy referred to in Article 3(2), and in close cooperation with the Agency.

3.

The European Border and Coast Guard Agency shall be responsible for the management of the external borders in the cases foreseen in this Regulation, in particular where the necessary corrective measures based on the vulnerability assessment are not taken or in the event of disproportionate migratory pressure, rendering the control of the external borders ineffective to such an extent that it risks putting in jeopardy the functioning of the Schengen area.

CHAPTER II

EUROPEAN BORDER AND COAST GUARD AGENCY

Section 1

Tasks of the European Border and Coast Guard Agency

Article 6

European Border and Coast Guard Agency

1.

To ensure a coherent European integrated border management at all external borders, the Agency shall facilitate and render more effective the application of existing and future Union measures relating to the management of external borders, in particular the Schengen Borders Code established by Regulation (EC) No 562/2006.

2.

The European Border and Coast Guard Agency (‘the Agency’) shall be the new name for the European Agency for the Management of Operational Cooperation at the External Borders of the Members States of the European Union established by Council Regulation (EC) No 2007/2004. The activities shall henceforth be based on this Regulation.

Article 7

Tasks

1.

In view of contributing to an efficient, high and uniform level of border control and return, the Agency shall perform the following tasks:

(a) establish a monitoring and risk analysis centre with the capacity to monitor migratory flows and to carry out risk analysis as regards all aspects of integrated border management;

(b) carry out a vulnerability assessment including the assessment of the capacity of Member States to face threats and pressures at the external borders;

(c) assist Member States in circumstances requiring increased technical and operational assistance at the external borders by coordinating and organising joint operations, taking into account that some situations may involve humanitarian emergencies and rescue at sea;

(d) assist Member States in circumstances requiring increased technical and operational assistance at the external borders, by launching rapid border interventions at the external borders of those Member States facing specific and disproportionate pressures, taking into account that some situations may involve humanitarian emergencies and rescue at sea;

(e) set up and deploy European Border and Coast Guard Teams, including a rapid reserve pool, that are to be deployed during joint operations and rapid border interventions and in the framework of the migration management support teams;

(f) set up a technical equipment pool to be deployed in joint operations, rapid border interventions and in the framework of migration management support teams, as well as in return operations and return interventions;

(g) deploy European Border and Coast Guard Teams and technical equipment to provide assistance in screening, identification and fingerprinting in the framework of the migration management support teams at hotspot areas;

(h) support the development of technical standards for equipment, especially for tactical level command, control and communication as well as technical surveillance to ensure interoperability at Union and national level;

(i) deploy the necessary equipment and staff for the rapid reserve pool for the practical execution of the measures needed to be taken in a situation requiring urgent action at the external borders;

(j) assist Member States in circumstances requiring increased technical assistance and operational assistance for implementing the obligation to return illegally staying third-country nationals, including through the coordination or organisation of return operations;

(k) set up pools of forced return monitors, forced return escorts and return specialists;

(l) set up and deploy European Return Intervention Teams during return interventions;

(m) assist Member States on training of national border guards and experts on return, including the establishment of common training standards;

(n) participate in the development and management of research and innovation activities relevant for the control and surveillance of external borders, including the use of advanced surveillance technology such as remotely piloted aircraft systems and develop pilot projects regarding matters covered by this Regulation;

⁴⁰ ⁴¹ (o) develop and operate, in accordance with Regulation (EC) No 45/2001 and Framework Decision 2008/977/JHA, information systems that enable swift and reliable exchanges of information regarding emerging risks at the management of the external borders, irregular immigration and return, in close cooperation with the Commission, Union agencies, bodies and offices as well as the European Migration Network established by Council Decision 2008/381/EC;

(p) provide the necessary assistance for the development and operation of a European border surveillance system and, as appropriate, to the development of a common information-sharing environment, including interoperability of systems, in particular by developing, maintaining and coordinating the Eurosur framework in accordance with Regulation (EU) No 1052/2013;

(q) cooperate with the European Fisheries Control Agency and the European Maritime Safety Agency to support the national authorities carrying out coast guard functions by providing services, information, equipment and training, as well as by coordinating multipurpose operations;

(r) assist Member States and third countries in the context of operational cooperation between them in the fields of external border management and return.

2.

Member States may continue cooperation at an operational level with other Member States and/or third countries at external borders, including military operations on a law enforcement mission and in the field of return, where such cooperation is compatible with the action of the Agency. Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives.

Member States shall report to the Agency on that operational cooperation with other Member States and/or third countries at the external borders and in the field of return. The Executive Director of the Agency (‘the Executive Director’) shall inform the Management Board of the Agency (‘the Management Board’) on those matters on a regular basis and at least once a year.

3.

The Agency may engage in communication activities on its own initiative in the fields within its mandate. Communication activities shall not be detrimental to the tasks referred to in paragraph 1 and shall be carried out in accordance with relevant communication and dissemination plans adopted by the Management Board.

Section 2

Monitoring and Crisis Prevention

Article 8

Duty to cooperate in good faith

The Agency and the national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks, shall be subject to a duty to cooperate in good faith, and an obligation to exchange information.

Article 9

General obligation to exchange information

The national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks, shall provide the Agency in a timely and accurate manner with all the information necessary for the Agency to perform the tasks conferred on it by this Regulation, in particular for the Agency to monitor the migratory flows towards and within the Union, to carry out risk analysis and to perform the vulnerability assessment.

Article 10

Monitoring of migratory flows and risk analysis

1.

The Agency shall establish a monitoring and risk analysis centre with the capacity to monitor migratory flows towards and within the Union. For this purpose, the Agency shall develop a common integrated risk analysis model, which shall be applied by the Agency and the Member States.

2.

The Agency shall prepare general and tailored risk analyses and submit it to the Council and the Commission.

3.

The risk analysis prepared by the Agency shall cover all aspects relevant to the European integrated border management, in particular border control, return, irregular secondary movements of third-country nationals within the Union, the prevention of cross-border crime including facilitation of irregular immigration, trafficking in human being and terrorism, as well as the situation in neighbouring third countries with a view to developing a pre-warning mechanism which analyses the migratory flows towards the Union.

4.

Member States shall provide the Agency with all necessary information regarding the situation, trends and possible threats at the external borders and in the field of return. Member States shall regularly or upon the request of the Agency provide it with all relevant information such as statistical and operational data collected in relation to the implementation of the Schengen acquis as well as information and intelligence derived from the analysis layer of the national situational picture established in accordance with Regulation (EU) No 1052/2013.

5.

The results of the risk analysis shall be submitted to the Supervisory Board and to the Management Board.

6.

Member States shall take results of the risk analysis into account when planning their operations and activities at the external borders as well as their activities with regard to return.

7.

The Agency shall incorporate the results of a common integrated risk analysis model in its development of the common core curricula for the training of border guards and of staff involved in return-related tasks.

Article 11

Liaison officers in Member States

1.

The Agency shall ensure regular monitoring of the management of the external borders through liaison officers of the Agency in Member States.

2.

The Executive Director shall appoint experts from the staff of the Agency to be deployed as liaison officers. The Executive Director shall, based on risk analysis and in consultation with the Management Board, determine the nature of the deployment, the Member State to which a liaison officer may be deployed and the duration of the deployment. The Executive Director shall notify the Member State concerned of the appointment and shall determine, together with the Member State, the location of deployment.

3.

The liaison officers shall act on behalf of the Agency and their role shall be to foster cooperation and dialogue between the Agency and the national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks. The liaison officers shall, in particular:

(a) act as an interface between the Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks;

(b) support the collection of information required by the Agency for carrying out the vulnerability assessment referred to in Article 12;

(c) monitor the measures taken by the Member State at border sections to which a high impact level has been attributed in accordance with Regulation (EU) No 1052/2013;

(d) assist the Member States in preparing their contingency plans;

(e) report regularly to the Executive Director on the situation at the external border and the capacity of the Member State concerned to deal effectively with the situation at the external borders;

(f) monitor the measures taken by the Member State with regard to a situation requiring urgent action at the external borders as referred to in Article 18;

4.

For the purposes of paragraph 3, the liaison officer shall, inter alia:

(a) have unlimited access to the national coordination centre and the national situational picture established in accordance with Regulation (EU) No 1052/2013;

(b) have access to national and European information systems available in the national coordination centre, on condition that he or she complies with the national and EU security and data protection rules;

(c) keep regular contacts with national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks, whilst informing the head of the national coordination centre.

5.

The report of the liaison officer shall form part of the vulnerability assessment referred to in Article 12.

6.

In carrying out their duties, the liaison officers shall take instructions only from the Agency.

Article 12

Vulnerability assessment

1.

The Agency shall assess the technical equipment, systems, capabilities, resources and contingency plans of the Member States regarding border control. That assessment shall be based on information provided by the Member State and by the liaison officer, on information derived from Eurosur, in particular the impact levels attributed to the external land and sea border sections of each Member State in accordance with Regulation (EU) No 1052/2013, and on the reports and evaluations of joint operations, pilot projects, rapid border interventions and other activities of the Agency.

2.

Member States shall, at the request of the Agency, provide information as regards technical equipment, staff and financial resources available at national level to carry out border control and they shall submit their contingency plans.

3.

The aim of the vulnerability assessment is for the Agency to assess the capacity and readiness of Member States to face upcoming challenges, including present and future threats and pressures at the external borders, to identify, especially for those Member States facing specific and disproportionate pressures, possible immediate consequences at the external borders and subsequent consequences on the functioning of the Schengen area, and to assess their capacity to contribute to the rapid reserve pool referred to in Article 19(5). That assessment is without prejudice to the Schengen evaluation mechanism.

4.

The results of the vulnerability assessment shall be submitted to the Supervisory Board, which shall advise the Executive Director on the measures to be taken by the Member States based on the results of the vulnerability assessment, and taking into account the Agency’s risk analysis and the results of the Schengen evaluation mechanism.

5.

The Executive Director shall adopt a decision setting out the necessary corrective measures to be taken by the Member State concerned, including by using resources under the Union financial instruments. The decision of the Executive Director shall be binding on the Member State and shall lay down the time-limit within which the measures are to be taken.

6.

Where a Member State does not adopt the necessary corrective measures within the time-limit set, the Executive Director shall refer the matter to the Management Board and notify the Commission. The Management Board shall adopt a decision setting out the necessary corrective measures to be taken by the Member State concerned, including the time-limit within which such measures shall be taken. If the Member State does not take the measures within the time-limit foreseen in that decision, further action may be taken by the Commission in accordance with Article 18.

Section 3

External Border Management

Article 13

Actions by the Agency at the external borders

1.

Member States may request the Agency for assistance in implementing their obligations with regard to the control of the external borders. The Agency shall also carry out measures as referred to in Article 18.

2.

The Agency shall organise the appropriate technical and operational assistance for the host Member State and it may take one or more of the following measures:

(a) coordinate joint operations for one or more Member States and deploy European Border and Coast Guard Teams;

(b) organise rapid border interventions and deploy European Border and Coast Guard Teams from the rapid reserve pool, and additional European Border and Coast Guards Teams as appropriate;

(c) coordinate activities for one or more Member States and third countries at the external borders, including joint operations with neighbouring third countries;

(d) deploy European Border and Coast Guard Teams in the framework of the migration management support teams at hotspot areas;

(e) deploy its own experts as well as members of the teams who had been seconded by the Member States to the Agency to support the competent national authorities of the Member States involved for the appropriate duration;

(f) deploy technical equipment.

3.

The Agency shall finance or co-finance the activities set out in paragraph 2 with grants from its budget in accordance with the financial rules applicable to the Agency.

Article 14

Initiating joint operations and rapid border interventions at the external borders

1.

Member States may request the Agency to launch joint operations to face upcoming challenges, including present or future threats at the external borders resulting from irregular immigration or cross-border crime, or to provide increased technical and operational assistance when implementing their obligations with regard to the control of the external borders.

2.

At the request of a Member State faced with a situation of specific and disproportionate pressures, especially the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of that Member State illegally, the Agency may deploy a rapid border intervention for a limited period of time on the territory of that host Member State.

3.

The Executive Director shall evaluate, approve and coordinate proposals for joint operations made by Member States. Joint operations and rapid border interventions shall be preceded by a thorough, reliable and up-to-date risk analysis, thereby enabling the Agency to set an order of priority for the proposed joint operations and rapid border interventions, taking into account the impact level to external border sections in accordance with Regulation (EU) No 1052/2013 and the availability of resources.

4.

The Executive Director shall, on the advice of the Supervisory Board based on the results of the vulnerability assessment, and taking into account the Agency’s risk analysis and the analysis layer of the European situational picture established in accordance with Regulation (EU) No 1052/2013, recommend to the Member State concerned to initiate and carry out joint operations or rapid border interventions. The Agency shall put its technical equipment at the disposal of the host or participating Member States.

5.

The objectives of a joint operation or rapid border intervention may be achieved as part of a multipurpose operation which may involve the rescue of persons in distress at sea or other coast guard functions, the fight against migrant smuggling or trafficking in human beings, drug trafficking control operations, and migration management including identification, registration, debriefing and return.

Article 15

Operational plan for joint operations

1.

In preparation of a joint operation the Executive Director, in cooperation with the host Member State, shall draw up a list of technical equipment and staff needed taking into account the host Member State’s available resources. On the basis of those elements, the Agency shall define a package of operational and technical reinforcement as well as capacity building activities to be included in the operational plan.

2.

The Executive Director shall draw up an operational plan for joint operations at the external borders. The Executive Director and the host Member State, in consultation with the participating Member States, shall agree on the operational plan detailing the organisational aspects of the joint operation.

3.

The operational plan shall be binding on the Agency, the host Member State and the participating Member States. It shall cover all aspects considered necessary for carrying out the joint operation, including the following:

(a) a description of the situation, with modus operandi and objectives of the deployment, including the operational aim;

(b) the foreseeable duration of the joint operation;

(d) a description of the tasks and special instructions for the European Border and Coast Guard Teams, including on permissible consultation of databases and permissible service weapons, ammunition and equipment in the host Member State;

(e) the composition of the European Border and Coast Guard Teams as well as the deployment of other relevant staff;

(f) command and control provisions, including the names and ranks of the border guards of the host Member State responsible for cooperating with the members of the teams and the Agency, in particular the names and ranks of those border guards who are in command during the period of deployment, and the place of the members of the teams in the chain of command;

(g) the technical equipment to be deployed during the joint operation, including specific requirements such as conditions for use, requested crew, transport and other logistics, and financial provisions;

(h) detailed provisions on immediate incident reporting by the Agency to the Management Board and to relevant national public authorities;

(i) a reporting and evaluation scheme containing benchmarks for the evaluation report and final date of submission of the final evaluation report;

⁴² (j) regarding sea operations, specific information on the application of the relevant jurisdiction and legislation in the geographical area where the joint operation takes place, including references to international and Union law regarding interception, rescue at sea and disembarkation. 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;

(k) modalities of cooperation with third countries, other Union agencies, bodies and offices or international organisations;

(l) procedures setting out a referral mechanism whereby persons in need of international protection, victims of trafficking in human beings, unaccompanied minors and persons in a vulnerable situation are directed to the competent national authorities for appropriate assistance;

(m) procedures setting out a mechanism to receive and transmit to the Agency a complaint against border guards of the host Member State and members of the European Border and Coast Guard Teams alleging breaches of fundamental rights in the context of the joint operation or rapid border intervention.

4.

Any amendments to or adaptations of the operational plan shall require the agreement of the Executive Director and the host Member State, after consultation of the participating Member States. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States.

Article 16

Procedure for launching a rapid border intervention

1.

A request by a Member State to launch a rapid border intervention shall include a description of the situation, possible aims and envisaged needs. If required, the Executive Director may immediately send experts from the Agency to assess the situation at the external borders of the Member State concerned.

2.

The Executive Director shall immediately inform the Management Board of a Member State’s request to launch a rapid border intervention.

3.

When deciding on the request of a Member State, the Executive Director shall take into account the findings of the Agency’s risk analyses and the analysis layer of the European situational picture established in accordance with Regulation (EU) No 1052/2013 as well as the outcome of the vulnerability assessment referred to in Article 12 and any other relevant information provided by the Member State concerned or another Member State.

4.

The Executive Director shall take a decision on the request for launching a rapid border intervention within two working days from the date of the receipt of the request. The Executive Director shall simultaneously notify the Member State concerned and the Management Board in writing of the decision. The decision shall state the main reasons on which it is based.

5.

If the Executive Director decides to launch a rapid border intervention, he or she shall deploy European Border and Coast Guard Teams from the rapid reserve pool in accordance with Article 19(5), and where necessary, he or she shall decide on the immediate reinforcement by one or more European Border and Coast Guard Teams, in accordance with Article 19(6).

6.

The Executive Director together with the host Member State shall draw up an operational plan as referred to in Article 15(3) immediately and in any event no later than three working days from the date of the decision.

7.

As soon as the operational plan has been agreed upon, the Executive Director shall request the Member States to immediately deploy the border guards that form part of the rapid reserve pool. The Executive Director shall indicate the profiles and numbers of border guards, required from each Member State from among those identified in the existing rapid reserve pool.

8.

In parallel, and where necessary, to secure the immediate reinforcement of the European Border and Coast Guard Teams deployed from the rapid reserve pool, the Executive Director shall inform the Member States of the requested number and profiles of border guards which are to be additionally deployed. This information shall be provided, in writing to the national contact points and shall indicate the date on which the deployment is to take place. A copy of the operational plan shall also be provided to them.

9.

If the Executive Director is absent or indisposed, the decisions related to the deployment of the rapid reserve pool and any additional deployment of European Border and Coast Guard Teams shall be taken by the Deputy Executive Director.

10.

Member States shall ensure that the border guards assigned to the rapid reserve pool are immediately and without exception made available to the Agency. Member States shall also make additional border guards available for the deployment of European Border and Coast Guard Teams at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks.

11.

Deployment of the rapid reserve pool shall take place no later than three working days after the date on which the operational plan is agreed between the Executive Director and the host Member State. Additional deployment of European Border and Coast Guard Teams, shall take place where necessary, within five working days of the deployment of the rapid reserve pool.

Article 17

Migration management support teams

1.

Where a Member State faces disproportionate migratory pressures at particular hotspot areas of its external border characterised by large influxes of mixed migratory flows, that Member State may request the operational and technical reinforcement by migration management support teams. That Member State shall submit a request for reinforcement and an assessment of its needs to the Agency and other relevant Union Agencies in particular the European Asylum Support Office and Europol.

2.

The Executive Director, in coordination with other relevant Union Agencies, shall assess the request for assistance of a Member State and the assessment of its needs for the purpose of defining a comprehensive reinforcement package consisting of various activities coordinated by the relevant Union Agencies to be agreed upon by the Member State concerned.

3.

The operational and technical reinforcement provided by the European Border and Coast Guard Teams, the European Return Intervention Teams and experts from the Agency’s staff in the framework of the migration management support teams, may include:

(a) the screening of third-country nationals arriving at the external borders, including the identification, registration, and debriefing of those third-country nationals and, where requested by the Member State, the fingerprinting of third-country nationals;

(b) the provision of information to persons in clear need of international protection or to applicants or potential applicants for relocation;

(c) technical and operational assistance in the field of return, including the preparation and organisation of return operations.

4.

The Agency shall assist the Commission in the coordination of the activities of the migration management support teams, in cooperation with the other relevant Union Agencies.

Article 18

Situation at the external borders requiring urgent action

1.

Where a Member State does not take the necessary corrective measures in accordance with a decision of the Management Board referred to in Article 12(6) or in the event of disproportionate migratory pressure at the external border, rendering the control of the external borders ineffective to such an extent that it risks putting in jeopardy the functioning of the Schengen area, the Commission, after consulting the Agency, may adopt a decision by means of an implementing act, 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. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 79(2).
On duly justified imperative grounds of urgency relating to the functioning of the Schengen area, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 79(5).

2.

For the purposes of paragraph 1, the Commission shall provide for one or more of the following measures to be taken by the Agency:

(a) organise and coordinate rapid border interventions and deploy European Border and Coast Guard Teams from the rapid reserve pool, and additional European Border and Coast Guards Teams as appropriate;

(b) deploy European Border and Coast Guard Teams in the framework of the migration management support teams at hotspot areas;

(c) coordinate activities for one or more Member States and third countries at the external borders, including joint operations with neighbouring third countries;

(d) deploy technical equipment;

(e) organise return interventions.

3.

The Executive Director shall, within two working days from the date of adoption of the Commission decision, and on the advice of the Supervisory Board, determine the actions needed to be taken for the practical execution of the measures identified in the Commission decision, including the technical equipment as well as the number and profiles of the border guards and other relevant staff needed to meet the objectives of that decision.

4.

In parallel and within the same two working days, the Executive Director shall submit a draft operational plan to the Member State concerned. The Executive Director and the Member State concerned shall draw up the operational plan within two working days from the date of its submission.

5.

The Agency shall, without delay and in any case within three working days from establishment of the operational plan, deploy the necessary technical equipment and staff from the rapid reserve pool referred to in Article 19(5) for the practical execution of the measures set out in the Commission decision. Additional technical equipment and European Border and Coast Guard Teams shall be deployed as necessary at a second stage and in any case within five working days from the deployment of the rapid reserve pool.

6.

The Member State concerned shall comply with the Commission decision and for that purpose it shall immediately cooperate with the Agency and take the necessary action to facilitate the implementation of that decision and the practical execution of the measures set out in that decision and in the operational plan agreed upon with the Executive Director.

7.

The Member States shall make available the border guards and other relevant staff determined by the Executive Director in accordance with paragraph 2. The Member States may not invoke the exceptional situation referred to in Article 19(3) and (6).

Article 19

Composition and deployment of European Border and Coast Guard Teams

1.

The Agency shall deploy border guards and other relevant staff as members of the European Border and Coast Guard Teams to joint operations, rapid border interventions and in the framework of the migration management support teams. The Agency may also deploy experts from its own staff.

2.

On a proposal by the Executive Director, the Management Board shall decide by an absolute majority of its members with a right to vote on the profiles and the overall number of border guards to be made available for the European Border and Coast Guard Teams. The same procedure shall apply with regard to any subsequent changes in the profiles and the overall numbers. Member States shall contribute to the European Border and Coast Guard Teams through a national pool on the basis of the various defined profiles by nominating border guards corresponding to the required profiles.

3.

The contribution by Member States as regards their border guards to specific joint operations for the following year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. Such a request shall be made at least 21 working days before the intended deployment.

4.

As regards rapid border interventions, on a proposal by the Executive Director of the Agency, the Management Board shall decide by a three-quarter majority on the profiles and the minimum number of border guards to be made available for a rapid reserve pool of European Border and Coast Guard Teams. The same procedure shall apply with regard to any subsequent changes in the profiles and the overall number of border guards of the rapid reserve pool. Member States shall contribute to the rapid reserve pool via a national expert pool on the basis of the various defined profiles by nominating border guards corresponding to the required profiles.

5.

The rapid reserve pool shall be a standing corps placed at the immediate disposal of the Agency and which can be deployed from each Member State within three working days from when the operational plan is agreed upon by the Executive Director and the host Member State. For that purpose, each Member State shall, on a yearly basis, make available to the Agency a number of border guards commensurate to at least 3% of the staff of Member States without land or sea external borders and 2% of the staff of Member States with land or sea external borders, and which shall amount to a minimum of 1 500 border guards, corresponding to the profiles identified by the decision of the Management Board.

6.

Where necessary, the deployment of European Border and Coast Guard Teams from the rapid reserve pool shall be immediately complemented by additional European Border and Coast Guard Teams. For that purpose, Member States shall, at the request of the Agency, immediately communicate the number, names and profiles of border guards from their national pool which they are able to make available within five working days from the start of the rapid border intervention. Member States shall make the border guards available for deployment at the request of the Agency unless they are faced with an exceptional situation substantially affecting the discharge of national tasks.

7.

Member States shall ensure that the border guards and other relevant staff which they contribute match the profiles and the numbers decided upon by the Management Board. The duration of the deployment shall be determined by the home Member State but in any case it shall not be less than 30 days.

8.

The Agency shall contribute to the European Border and Coast Guard Teams with competent border guards seconded by the Member States as national experts to the Agency. The contribution by Member States as regards the secondment of their border guards to the Agency for the following year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the border guards available for secondment, unless that would seriously affect the discharge of national tasks. In such situations Member States may recall their seconded border guards.
Such secondments may be for 12 months or more but in any case it shall not be less than three months. The seconded border guards shall be considered as members of the teams and they shall have the tasks and powers of the members of the teams. The Member State having seconded the border guards shall be considered as the home Member State.

Other staff employed by the Agency on a temporary basis who are not qualified to perform border control functions shall only be deployed during joint operations for coordination tasks and shall not form part of the European Border and Coast Guard Teams.

9.

The Agency shall inform the European Parliament on an annual basis of the number of border guards that each Member State has committed to the European Border and Coast Guard Teams in accordance with this Article.

Article 20

Instructions to the European Border and Coast Guard Teams

1.

During deployment of European Border and Coast Guard Teams, the host Member State shall issue instructions to the teams in accordance with the operational plan.

2.

The Agency, through its Coordinating Officer, may communicate its views to the host Member State on the instructions given to European Border and Coast Guard Teams. In that case, the host Member State shall take those views into consideration and follow them to the extent possible.

3.

In cases where the instructions issued to the European Border and Coast Guard Teams are not in compliance with the operational plan, the Coordinating Officer shall immediately report to the Executive Director, who may, where appropriate, take action in accordance with Article 24(2).

4.

Members of the teams shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights, including access to asylum procedures, and human dignity. Any measures taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures. While performing their tasks and exercising their powers, they shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

5.

Members of the teams shall remain subject to the disciplinary measures of their home Member State. The home Member State shall provide for appropriate disciplinary or other measures in accordance with its national law in case of violations of fundamental rights or international protection obligations in the course of a joint operation or rapid border intervention.

Article 21

Coordinating officer

1.

The Agency shall ensure the operational implementation of all the organisational aspects, including the presence of staff members of the Agency during the joint operations, pilot projects or rapid border interventions.

2.

The Executive Director shall appoint one or more experts from the staff of the Agency to be deployed as coordinating officer for each joint operation or rapid border intervention. The Executive Director shall notify the host Member State of the appointment.

3.

The coordinating officer shall act on behalf of the Agency in all aspects of the deployment of the European Border and Coast Guard Teams. The role of the coordinating officers shall be to foster cooperation and coordination amongst host and participating Member States. In particular, the coordinating officer shall:

(a) act as an interface between the Agency and the members of the European Border and Coast Guard Teams, providing assistance, on behalf of the Agency, on all issues relating to the conditions for their deployment with the teams;

(b) monitor the correct implementation of the operational plan;

(c) act on behalf of the Agency in all aspects of the deployment of the European Border and Coast Guard Teams and report to the Agency on all those aspects;

(d) report to the Agency on aspects relating to the provision of sufficient guarantees by the host Member State to ensure the protection of fundamental rights throughout the joint operation or rapid border intervention;

(e) report to the Executive Director where the instructions issued to the European Border and Coast Guard Teams by the host Member States are not in compliance with the operational plan.

4.

In the context of joint operations or rapid border interventions, the Executive Director may authorise the coordinating officer to assist in resolving any disagreement on the execution of the operational plan and deployment of the teams.

Article 22

National contact point

The national coordination centre established in accordance with Regulation (EU) No 1052/2013 shall be the national contact point for communication with the Agency on all matters pertaining to the European Border and Coast Guard Teams.

Article 23

Costs

1.

The Agency shall fully meet the following costs incurred by Member States in making available their border guards for the purposes of deploying European Border and Coast Guard Teams, including the rapid reserve pool:

(a)travel costs from the home Member State to the host Member State and from the host Member State to the home Member State;

(b)costs related to vaccinations;

(c)costs related to special insurance needs;

(d)costs related to health care;

(e)daily subsistence allowances, including accommodation costs;

(f)costs related to the Agency’s technical equipment.

2.

Detailed rules concerning the payment of the daily subsistence allowance of members of the European Border and Coast Guard Teams shall be established and updated as necessary by the Management Board.

Article 24

Suspension or termination of joint operations and rapid border interventions

1.

The Executive Director shall terminate, after informing the Member State concerned, joint operations or rapid border interventions if the conditions to conduct those activities are no longer fulfilled.

2.

The Executive Director may withdraw the financing of a joint operation or a rapid border intervention or suspend or terminate it if the operational plan is not respected by the host Member State.

3.

The Executive Director shall withdraw the financing of a joint operation or a rapid border intervention, or suspend or terminate, in whole or in part, a joint operation or rapid border intervention if he or she considers that there are violations of fundamental rights or international protection obligations that are of a serious nature or are likely to persist.

Article 25

Evaluation of joint operations and rapid border interventions

The Executive Director shall evaluate the results of the joint operations and rapid border interventions and transmit the detailed evaluation reports within 60 days following the end of those operations and projects to the Management Board, together with the observations of the Fundamental Rights Officer. The Agency shall make a comprehensive comparative analysis of those results with a view to enhancing the quality, coherence and effectiveness of future joint operations and rapid border interventions, and it shall include it in its consolidated annual activity report.

Section 4

Return

Article 26

Return Office

1.

The Return Office shall be responsible for carrying out the return-related activities of the Agency, in accordance with the respect of fundamental rights and general principles of Union law as well as international law, including refugee protection and human rights obligations. The Return Office shall, in particular:

(a) coordinate at technical and operational level the return activities of the Member States, to achieve an integrated system of return management among competent authorities of the Member States, with the participation of relevant authorities of third countries and other relevant stakeholders;

(b) provide operational support to Member States subject to particular pressure on their return systems;

(c) coordinate the use of relevant IT systems and provide support on consular cooperation for the identification of third-country nationals and the acquisition of travel documents, organise and coordinate return operations and provide support to voluntary departure;

(d)coordinate the return-related activities of the Agency as set out in this Regulation;

(e)organise, promote and coordinate activities enabling the exchange of information and the identification and pooling of best practices in return matters between the Member States;

(f) finance or co-finance the operations, interventions and activities referred to in this Chapter with grants from its budget, in accordance with the financial rules applicable to the Agency.

2.

The operational support referred to in point (b) of paragraph 1 shall include action to help Member States carry out return procedures by the competent national authorities by providing, in particular:

(a)interpreting services;

(b)information on third countries of return;

(c)advice on the handling and management of return procedures in compliance with Directive 2008/115/EC;

(d)assistance on measures necessary to ensure the availability of returnees for return purposes and avoid that returnees abscond.

3.

The Return Office shall aim at building synergies and connecting Union-funded networks and programmes in the field of return in close cooperation with the European Commission and the European Migration Network. ⁴³

4.

The Agency may make use of the financial means of the Union which are available in the field of return. The Agency shall ensure that in its grant agreements with Member States any financial support is conditional upon the full respect for the Charter of Fundamental Rights.

Article 27

Return operations

1.

In accordance with Directive 2008/115/EC, and without entering into the merits of return decisions, the Agency shall provide the necessary assistance and, at the request of one or several participating Member States, ensure the coordination or the organisation of return operations, including through the chartering of aircraft for the purpose of such operations. The Agency may, on its own initiative, propose to Member States to coordinate or organise return operations.

2.

Member States shall at least on a monthly basis inform the Agency of their planned national return operations, as well as of their needs for assistance or coordination by the Agency. The Agency shall draw up a rolling operational plan to provide the requesting Member States with the necessary operational reinforcement, including technical equipment. The Agency may, on its own initiative, include in the rolling operational plan the dates and destinations of return operations it considers necessary, based on a needs assessment. The Management Board shall decide, on a proposal of the Executive Director, on the modus operandi of the rolling operational plan.

3.

The Agency may provide the necessary assistance and ensure, at the request of the participating Member States, or propose on its own initiative, the coordination or the organisation of return operations, for which the means of transport and forced return escorts are made available by a third country of return (‘collecting return operations’). The participating Member States and the Agency shall ensure that the respect of fundamental rights and the proportionate use of means of constraints are guaranteed during the entire removal operation. At least a Member State representative and a forced return monitor from the pool established under Article 28 shall be present throughout the entire return operation until arrival at the third country of return.

4.

The Agency may provide the necessary assistance and ensure, at the request of the participating Member States or a third country, or propose on its own initiative, the coordination or the organisation of return operations, during which a number of returnees subject to a third-country return decision are passed from this third country to another third country of return (‘mixed return operations’), provided that the third country that issued the return decision is bound by the European Convention on Human Rights. The participating Member States and the Agency must ensure that the respect of fundamental rights and the proportionate use of means of constraints are guaranteed during the whole removal operation, notably with the presence of forced return monitors and of third-country forced return escorts.

5.

Every return operation shall be monitored in accordance with Article 8(6) of Directive 2008/115/EC. The monitoring of return operations shall be carried out on the basis of objective and transparent criteria and shall cover the whole return operation from the pre-departure phase until the hand-over of the returnees in the third country of return.

6.

The Agency shall finance or co-finance return operations with grants from its budget, in accordance with the financial rules applicable to the Agency, giving priority to those conducted by more than one Member State, or from hotspot areas.

Article 28

Pool of Forced Return Monitors

1.

The Agency shall constitute a pool of forced return monitors from national competent bodies who carry out forced return monitoring activities in accordance with Article 8(6) of Directive 2008/115/EC and who have been trained in accordance with Article 35.

2.

The Executive Director shall determine the profile and the number of the forced return monitors to be made available to that pool. The same procedure shall apply with regard to any subsequent changes in the profile and the number. Member States shall contribute to the pool by nominating the forced return monitors corresponding to the defined profile.

3.

The Agency shall make available the forced return monitors, upon request, to participating Member States to monitor, on their behalf, the correct implementation of the return operation and to take part in return interventions.

Article 29

Pool of Forced Return Escorts

1.

The Agency shall constitute a pool of forced return escorts from national competent bodies who carry out return operations in accordance with the requirements referred to in Article 8(4) and (5) of Directive 2008/115/EC and who have been trained in accordance with Article 35.

2.

The Executive Director shall determine the profile and the number of the forced return escorts to be made available to that pool. The same procedure shall apply with regard to any subsequent changes in the profile and the number. Member States shall contribute to the pool by nominating the forced return escorts corresponding to the defined profile.

3.

The Agency shall make available these escorts, upon request, to participating Member States to escort returnees on their behalf and to take part in return interventions.

Article 30

Pool of Return Specialists

1.

The Agency shall constitute a pool of return specialists from national competent bodies and from the staff of the Agency, who have the skills and expertise required for carrying out return-related activities and who have been trained in accordance with Article 35. Those specialists shall be made available to carry out specific tasks, such as identification of particular groups of third-country nationals, the acquisition of travel documents from third countries and facilitation of consular cooperation.

2.

The Executive Director shall determine the profile and the number of the forced return escorts to be made available to that pool. The same procedure shall apply with regard to any subsequent changes in the profile and the number. Member States shall contribute to the pool by nominating the specialists corresponding to the defined profile.

3.

The Agency shall make available the specialists, upon request, to Member States participating in return operations and to take part in return interventions.

Article 31

European Return Intervention Teams

1.

The Agency shall constitute, from the pools set out in Articles 28, 29 and 30, tailor-made European Return Intervention Teams for deployment during return interventions.

2.

Articles 20, 21 and 23 shall apply mutatis mutandis to the European Return Intervention Teams.

Article 32

Return Interventions

1.

In circumstances where Member States are facing a heavy burden when implementing the obligation to return illegally staying third-country nationals in accordance with Directive 2008/115/EC, the Agency shall, upon request of one or more Member States, provide the appropriate technical and operational assistance in the form of a return intervention. Such intervention may consist in the deployment of European Return Intervention Teams to the host Member States and the organisation of return operations from the host Member States. Member States shall regularly inform the Agency of their needs for technical and operational assistance, and the Agency shall draw up a rolling plan for return interventions on this basis.

2.

In circumstances where Member States are facing specific and disproportionate pressure when implementing their obligation to return illegally staying third-country nationals in accordance with Directive 2008/115/EC, the Agency shall, upon the request of one or more Member States, provide the appropriate technical and operational assistance in the form of a rapid return intervention. The Agency may propose on its own initiative to provide to the Member States such technical and operational assistance. A rapid return intervention may consist in the rapid deployment of European Return Intervention Teams to the host Member States and the organisation of return operations from the host Member States.

3.

The Executive Director shall draw up an operational plan without delay, in agreement with the host Member States and the Member States willing to participate in a return intervention.

4.

The operational plan shall be binding on the Agency, the host Member States and the participating Member States, and it shall cover all aspects that are necessary for carrying out the return intervention, in particular the description of the situation, objectives, the start and foreseeable duration of the intervention, geographical coverage and possible deployment to third countries, composition of the European Return Intervention Team, logistics, financial provisions, modalities of cooperation with third countries, other Union agencies and bodies, relevant international and non-governmental organisations. Any amendment to or adaptation of the operational plan shall require the agreement of the Executive Director, the host Member State and the participating Member States. A copy of the amended or adapted operational plan shall be immediately sent by the Agency to the Member States concerned and the Management Board.

5.

The Executive Director shall take a decision on the operational plan as soon as possible and, in the case referred to in paragraph 2, within five working days. The decision shall be immediately notified in writing to the Member States concerned and to the Management Board.

6.

The Agency shall finance or co-finance return interventions with grants from its budget in accordance with the financial rules applicable to the Agency.

CHAPTER III

GENERAL PROVISIONS

Section 1

General rules

Article 33

Protection of Fundamental Rights and a Fundamental Rights Strategy

1.

The European Border and Coast Guard shall guarantee the protection of fundamental rights in the performance of its tasks under this Regulation in accordance with relevant Union law, in particular the Charter of Fundamental Rights of the European Union, relevant international law, including the Convention Relating to the Status of Refugees and obligations related to access to international protection, in particular the principle of non-refoulement. For that purpose, the Agency shall draw up and further develop and implement a Fundamental Rights Strategy.

2.

In the performance of its tasks the European Border and Coast Guard shall ensure that no person is disembarked in, forced to enter, conducted to or otherwise handed over or returned to the authorities of a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle.

3.

The European Border and Coast Guard shall, in the performance of its tasks, take into account the special needs of children, victims of trafficking in human beings, persons in need of medical assistance, persons in need of international protection, persons in distress at sea and other persons in a particularly vulnerable situation.

4.

In the performance of its tasks, in its relations with Member States and in its cooperation with third countries, the Agency shall take into account the reports of the Consultative Forum and the Fundamental Rights Officer.

Article 34

Codes of Conduct

1.

The Agency shall draw up and further develop a Code of Conduct applicable to all border control operations coordinated by the Agency. The Code of Conduct shall lay down procedures intended to guarantee the principles of the rule of law and respect for fundamental rights with particular focus on unaccompanied minors and persons in a vulnerable situation, as well as on persons seeking international protection, applicable to all persons participating in the activities of the Agency.

2.

The Agency shall develop and regularly update a Code of Conduct for the return of illegally staying third-country nationals which shall apply during all return operations and return interventions coordinated or organised by the Agency. That Code of Conduct shall describe common standardised procedures to simplify the organisation of return operations and return interventions, and assure return in a humane manner and with full respect for fundamental rights, in particular the principles of human dignity, prohibition of torture and of inhuman or degrading treatment or punishment, the right to liberty and security and the right to the protection of personal data and non-discrimination.

3.

The Code of Conduct for return shall in particular pay attention to the obligation of Member States to provide for an effective forced-return monitoring system as set out in Article 8(6) of Directive 2008/115/EC ⁴⁴ and to the Fundamental Rights Strategy.

4.

The Agency shall develop and regularly update its Codes of Conduct in cooperation with the Consultative Forum.

Article 35

Training

1.

The Agency shall, in cooperation with the appropriate training entities of the Member States, develop specific training tools and provide border guards and other relevant staff who are members of the European Border and Coast Guard Teams with advanced training relevant to their tasks and powers. Experts from the staff of the Agency shall conduct regular exercises with those border guards in accordance with the advanced training and exercise schedule referred to in the annual work programme of the Agency.

2.

The Agency shall take the necessary initiatives to ensure that all border guards and other relevant staff of the Member States who participate in the European Border and Coast Guard Teams, as well as the staff of the Agency, have received, prior to their participation in operational activities organised by the Agency, training in relevant Union and international law, including on fundamental rights, access to international protection and search and rescue.

3.

The Agency shall take the necessary initiatives to ensure training for staff involved in return-related tasks to be part of the pools referred to in Articles 28, 29 and 30. The Agency shall ensure that all staff who participate in return operations and in return interventions, as well as the staff of the Agency, have received, prior to their participation in operational activities organised by the Agency, training in relevant Union and international law, including fundamental rights and access to international protection.

4.

The Agency shall establish and further develop common core curricula for the training of border guards and provide training at European level for instructors of the national border guards of Member States, including with regard to fundamental rights, access to international protection and relevant maritime law. The Agency shall draw up the common core curricula after consulting the Consultative Forum. Member States shall integrate the common core curricula in the training of their national border guards and staff involved in return-related tasks.

5.

The Agency shall also offer additional training courses and seminars on subjects related to the control of the external borders and return of third-country nationals for officers of the competent national services of Member States.

6.

The Agency may organise training activities in cooperation with Member States and third countries on their territory.

7.

The Agency shall establish an exchange programme enabling border guards participating in the European Border and Coast Guard Teams and staff participating in the European Return Intervention Teams to acquire knowledge or specific know-how from experiences and good practices abroad by working with border guards and staff involved in return-related tasks in a Member State other than their own.

Article 36

Research and innovation

1.

The Agency shall proactively monitor and contribute to research and innovation activities relevant for the control of the external borders, including the use of advanced surveillance technology such as remotely piloted aircraft systems, and for return. The Agency shall disseminate the results of that research to the Commission and the Member States. It may use those results as appropriate in joint operations, rapid border interventions, return operations and return interventions.

2.

The Agency shall assist the Member States and the Commission in identifying key research themes. The Agency shall assist the Commission in the definition and accomplishment of the relevant Union framework programmes for research and innovation activities.

3.

The Agency shall, within the Framework Programme for Research and Innovation, in particular the Specific Programme Implementing Horizon 2020 implement the parts of the Framework Programme for Research and Innovation which relate to border security. For that purpose, the Agency shall have the following tasks:

(a) managing some stages of programme implementation and some phases in the lifetime of specific projects on the basis of the relevant work programmes adopted by the Commission, where the Commission has empowered the Agency to do so in the instrument of delegation;

(b) adopting the instruments of budget execution for revenue and expenditure and carrying out all the operations necessary for the management of the programme, where the Commission has empowered the Agency to do so in the instrument of delegation;

(c) providing support in programme implementation where the Commission has empowered the Agency to do so in the instrument of delegation.

4.

The Agency may plan and implement pilot projects regarding matters covered by this Regulation.

Article 37

Acquisition of technical equipment

1.

The Agency may acquire, itself or in co-ownership with a Member State, or lease technical equipment to be deployed during joint operations, pilot projects, rapid border interventions, return operations, return interventions or technical assistance projects in accordance with the financial rules applicable to the Agency.

2.

The Agency may acquire technical equipment, such as fingerprinting equipment, by decision of the Executive Director in consultation with the Management Board. Any acquisition or leasing of equipment entailing significant costs to the Agency shall be preceded by a thorough needs and cost/benefit analysis. Any such expenditure shall be provided for in the Agency’s budget as adopted by the Management Board.

3.

Where the Agency acquires or leases major technical equipment, such as open sea and coastal patrol vessels, helicopters or other aircraft or vehicles the following conditions shall apply:

(a) in case of acquisition by the Agency or co-ownership, the Agency shall agree with one Member State that that Member State shall provide for the registration of the equipment in accordance with the applicable legislation of that Member State;

(b) in case of leasing, the equipment shall be registered in a Member State.

4.

On the basis of a model agreement drawn up by the Agency, the Member State of registration and the Agency shall agree on modalities ensuring the periods of full availability of the co-owned assets for the Agency, as well as on the terms of use of the equipment. Technical equipment owned solely by the Agency shall be made available to the Agency upon its request and the Member State of registration may not invoke the exceptional situation referred to in Article 38(4).

5.

The Member State of registration or the supplier of technical equipment shall provide the necessary experts and technical crew to operate the technical equipment in a legally sound and safe manner.

Article 38

Technical equipment pool

1.

The Agency shall set up and keep centralised records of equipment in a technical equipment pool composed of equipment owned either by the Member States or by the Agency and equipment co-owned by the Member States and the Agency for external border control or return purposes.

2.

The Executive Director shall identify the minimum number of technical equipment in accordance with the needs of the Agency, notably in order to be able to carry out joint operations and rapid border interventions, in accordance with the its work programme for the year in question.
If the minimum number of technical equipment proves to be insufficient to carry out the operational plan agreed for joint operations or rapid border interventions, the Agency shall revise it on the basis of justified needs and of an agreement with the Member States.

3.

The technical equipment pool shall contain the minimum number of equipment identified as needed by the Agency per type of technical equipment. The equipment listed in the technical equipment pool shall be deployed during joint operations, pilot projects, rapid border interventions, return operations or return interventions.

4.

Member States shall contribute to the technical equipment pool. The contribution by Member States to the pool and deployment of the technical equipment for specific operations shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements and to the extent that it forms part of the minimum number of technical equipment for a given year, Member States shall make their technical equipment available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. Such request shall be made at least 30 days before the intended deployment. The contributions to the technical equipment pool shall be reviewed annually.

5.

On a proposal of the Executive Director, the Management Board shall decide, on a yearly basis, on the rules relating to technical equipment, including the required overall minimum numbers per type of technical equipment, the conditions for deployment and reimbursement of costs. For budgetary purposes that decision should be taken by the Management Board within 30 days from the date of adoption of the annual work programme.

6.

The Executive Director shall report on the composition and the deployment of equipment which is part of the technical equipment pool to the Management Board at each of its meetings. Where the minimum number of technical equipment is not reached, the Executive Director shall inform the Management Board without delay. The Management Board shall take a decision on the prioritisation of the deployment of the technical equipment urgently and take the appropriate steps to remedy the identified shortcomings. The Management Board shall inform the Commission of the identified shortcomings and the steps taken. The Commission shall subsequently inform the European Parliament and the Council thereof, and of its own assessment.

7.

The Agency shall inform the European Parliament on an annual basis of the number of technical equipment that each Member State has committed to the technical equipment pool in accordance with this Article.

8.

Member States shall register in the technical equipment pool all the means of transport and operating equipment purchased under the Specific Actions of the Internal Security Fund in accordance with Article 7(1) of Regulation (EU) No 515/2014 ⁴⁵ of the European Parliament and of the Council or any other dedicated Union funding made available to the Member States in view of increasing the operational capacity of the Agency. That technical equipment shall form part of the minimum number of technical equipment for a given year.
The Member States shall make that technical equipment available for deployment to the Agency upon its request and it may not invoke the exceptional situation referred to in paragraph 4.

9.

The Agency shall manage the records of the technical equipment pool as follows:

(a) classification by type of equipment and by type of operation;

(b) classification by owner (Member State, Agency, other);

(d) crew requirements if applicable;

(e) other information, such as registration details, transportation and maintenance requirements, national applicable export regimes, technical instructions, or other relevant information to handle the equipment correctly.

10.

The Agency shall finance at 100% the deployment of the technical equipment which forms part of the minimum number of technical equipment provided by a given Member State for a given year. The deployment of technical equipment which does not form part of the minimum number of technical equipment shall be co-financed by the Agency up to a maximum of 75% of the eligible expenses, taking into account the particular circumstances of the Member States deploying such technical equipment.

Article 39

Tasks and powers of the members of the teams

1.

Members of the teams shall have the capacity to perform all tasks and exercise all powers for border control and return as well as those which are necessary for the realisation of the objectives of Regulation (EC) No 562/2006 and Directive 2008/115/EC, respectively.

2.

While performing their tasks and exercising their powers, members of the teams shall comply with Union and international law, and shall observe fundamental rights and the national law of the host Member State.

3.

Members of the teams may only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards or staff involved in return-related tasks of the host Member State unless authorised by the host Member State to act on its behalf.

4.

Members of the teams shall wear their own uniform while performing their tasks and exercising their powers. They shall wear a blue armband with the insignia of the Union and the Agency on their uniforms, identifying them as participating in a joint operation, pilot project, rapid border intervention, return operation or return intervention. For the purposes of identification vis-à-vis the national authorities of the host Member State, members of the teams shall, at all times, carry an accreditation document, which they shall present upon request.

5.

While performing their tasks and exercising their powers, members of the teams may carry service weapons, ammunition and equipment as authorised according to the home Member State’s national law. However, the host Member State may prohibit the carrying of certain service weapons, ammunition and equipment, provided that its own legislation applies the same prohibition to its own border guards or staff involved in return-related tasks. The host Member State shall, in advance of the deployment of the members of the teams, inform the Agency of the permissible service weapons, ammunition and equipment and of the conditions for their use. The Agency shall make this information available to Member States.

6.

While performing their tasks and exercising their powers, members of the teams shall be authorised to use force, including service weapons, ammunition and equipment, with the consent of the home Member State and the host Member State, in the presence of border guards of the host Member State and in accordance with the national law of the host Member State. The host Member State may, with the consent of the home Member State, authorise members of the teams to use force in the absence of border guards of the host Member State.

7.

Service weapons, ammunition and equipment may be used in legitimate self-defence and in legitimate defence of members of the teams or of other persons, in accordance with the national law of the host Member State.

8.

For the purpose of this Regulation, the host Member State shall authorise members of the teams to consult its national and European databases the consultation of which is necessary for border checks, border surveillance and return. The members of the teams shall consult only those data which are required for performing their tasks and exercising their powers. The host Member State shall, in advance of the deployment of the members of the teams, inform the Agency of the national and European databases which may be consulted. The Agency shall make this information available to all Member States participating in the deployment.
That consultation shall be carried out in accordance with Union law and the national law of the host Member State in the area of data protection.

9.

Decisions to refuse entry in accordance with Article 13 of Regulation (EC) No 562/2006 shall be taken only by border guards of the host Member State or by the members of the teams if authorised by the host Member State to act on its behalf.

Article 40

Accreditation document

1.

The Agency shall, in cooperation with the host Member State, issue a document in the official language of the host Member State and another official language of the institutions of the Union to the members of the teams for the purpose of identifying them and as proof of the holder’s rights to perform the tasks and exercise the powers as referred to in Article 39. The document shall include the following features of each member of the teams:

(a) name and nationality;

(b) rank or job title;

(d) tasks authorised to be performed.

2.

The document shall be returned to the Agency at the end of the joint operation, pilot project, rapid border intervention, return operation or return intervention.

Article 41

Civil liability

1.

Where members of the teams are operating in a host Member State, that Member State shall be liable in accordance with its national law for any damage caused by them during their operations.

2.

Where such damage is caused by gross negligence or willful misconduct, the host Member State may approach the home Member State in order to have any sums it has paid to the victims or persons entitled on their behalf reimbursed by the home Member State.

3.

Without prejudice to the exercise of its rights vis-à-vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or willful misconduct.

4.

Any dispute between Member States relating to the application of paragraphs 2 and 3 which cannot be resolved by negotiations between them shall be submitted by them to the Court of Justice of the European Union in accordance with Article 273 TFEU.

5.

Without prejudice to the exercise of its rights vis-à-vis third parties, the Agency shall meet costs related to damage caused to the Agency’s equipment during deployment, except in cases of gross negligence or willful misconduct.

Article 42

Criminal liability

During the deployment of a joint operation, pilot project, rapid border intervention, return operation or return intervention, members of the teams shall be treated in the same way as officials of the host Member State with regard to any criminal offences that might be committed against them or by them.

Section 2

Information exchange and data protection

Article 43

Information exchange systems

1.

The Agency may take all necessary measures to facilitate the exchange of information relevant to its tasks with the Commission and the Member States and, where appropriate, the relevant Union Agencies. It shall develop and operate an information system capable of exchanging classified information with those actors, as well as personal data referred to in Articles 44, 46, 47 and 48 in accordance with Council Decision 2001/264/EC ⁴⁶ and Commission Decision (EU, Euratom) 2015/444. ⁴⁷

2.

The Agency may take all necessary measures to facilitate the exchange of information relevant for its tasks with the United Kingdom and Ireland if it relates to the activities in which they participate in accordance with Article 50 and Article 61(4).

Article 44

Data protection

1.

The Agency shall apply Regulation (EC) No 45/2001 when processing personal data.

2.

The Management Board shall establish measures for the application of Regulation (EC) No 45/2001 by the Agency, including those concerning the Data Protection Officer of the Agency. Those measures shall be established after consultation of the European Data Protection Supervisor.

3.

Without prejudice to Articles 46, 47 and 48, the Agency may process personal data for administrative purposes.

4.

Without prejudice to Article 47, the transfer of personal data processed by the Agency and the onward transfer by Member States to authorities of third countries or third parties of personal data processed in the framework of this Regulation shall be prohibited.

Article 45

Purposes of processing personal data

1.

The Agency may process personal data only for the following purposes:

(a) performing its tasks of organising and coordinating joint operations, pilot projects, rapid border interventions and in the framework of the migration management support teams in accordance with Article 46;

(b) performing its tasks of organising and coordinating return operations and return interventions in accordance with Article 47;

(c) facilitating the exchange of information with Member States, the European Asylum Support Office, Europol or Eurojust in accordance with Article 46;

(d) risk analysis by the Agency in accordance with Article 10;

(e) identifying and tracking vessels in the framework of Eurosur in accordance with Article 48.

2.

Any such processing of personal data shall respect the principle of proportionality and be strictly limited to personal data necessary for the purposes referred to in paragraph 1.

3.

A Member State or other Union Agency providing personal data to the Agency shall determine the purpose or the purposes for which it shall be processed as referred to in paragraph 1. If it has not done so, the Agency in consultation with the provider of personal data concerned shall process it in order to determine its necessity in relation to the purpose or the purposes as referred to in paragraph 1 for which it shall be further processed. The Agency may process information for a different purpose than the one in paragraph 1 only if authorised by the data provider of the information.

4.

Member States and other Union Agencies may indicate, at the moment of transferring personal data, any restriction on access or use, in general or specific terms, including as regards transfer, erasure or destruction. Where the need for such restrictions becomes apparent after the transfer provision of information, they shall inform the Agency accordingly. The Agency shall comply with such restrictions.

Article 46

Processing of personal data collected during joint operations, pilot projects and rapid border interventions and by migration management support teams

1.

The use by the Agency of personal data collected and transmitted to it by the Member States or by its own staff in the context of joint operations, pilot projects and rapid border interventions, and by migration management support teamsshall be limited to:

(a) personal data regarding persons who are suspected, on reasonable grounds, by the competent authorities of the Member States of involvement in cross-border criminal activities, including in facilitating irregular immigration activities, in trafficking in human beings or terrorism;

(b) personal data regarding persons who cross the external borders illegally and whose data is collected by the European Border and Coast Guard Teams, including when acting in the framework of the migration management support teams;

(c) license plate numbers, telephone numbers or ship identification numbers, which are necessary for investigating and analysing routes and methods used for irregular immigration and cross-border criminal activities.

2.

Personal data referred to in paragraph 1 may be processed by the Agency in the following cases:

(a) where transmissionto the European Asylum Support Office, Europol or Eurojust is necessary for use in accordance with their respective mandates and in accordance with Article 51;

(b) where transmission to the authorities of the relevant Member States which are responsible for border control, migration, asylum or law enforcement is necessary for use in accordance with national legislation and national and EU data protection rules;

3.

The personal data shall be deleted as soon as they have been transmitted to the European Asylum Support Office, Europol or Eurojust or to the competent authorities of Member States or used for the preparation of risk analyses. The term of storage shall in any event not exceed three months after the date of the collection of those data. In the result of the risk analyses, data shall be anonymised.

Article 47

Processing of personal data in the context of return operations and return interventions

1.

In performing its tasks of organising and coordinating the return operations and conducting return interventions, the Agency may process personal data of returnees.

2.

The processing of such personal data shall be strictly limited to those personal data which are required for the purposes of the return operation or the return intervention.

3.

The personal data shall be deleted as soon as the purpose for which they have been collected has been achieved and no later than 30 days after the end of the return operation or the return intervention.

4.

Where the personal data of returnees are not transmitted to the carrier by a Member State, the Agency may transfer such data.

Article 48

Processing of personal data in the framework of Eurosur

The Agency may process personal data as set out in Article 13(2) of Regulation (EU) No 1052/2013.

Article 49

Security rules on the protection of classified information and non-classified sensitive information

1.

The Agency shall apply the Commission’s rules on security as set out in Commission Decision (EU, Euratom) 2015/444. ⁴⁸ Those rules shall apply, inter alia, to the exchange, processing and storage of classified information.

2.

The Agency shall apply the security principles relating to the processing of non-classified sensitive information as set out in the Decision referred to in paragraph 1 of this Article and as implemented by the Commission. The Management Board shall establish measures for the application of those security principles.

SECTION 3

Cooperation by the Agency

Article 50

Cooperation with Ireland and the United Kingdom

1.

The Agency shall facilitate operational cooperation of the Member States with Ireland and the United Kingdom in specific activities.

2.

Support to be provided by the Agency pursuant to Article 7(1)(j), (k) and (l) shall cover the organisation of return operations of Member States in which Ireland or the United Kingdom, or both, also participate.

3.

The application of this Regulation to the borders of Gibraltar shall be suspended until the date on which an agreement is reached on the scope of the measures concerning the crossing by persons of the external borders.

Article 51

Cooperation with Union institutions, agencies, bodies, offices and international organisations

1.

The Agency shall cooperate with the Commission, other Union institutions, the European External Action Service, Europol, the European Asylum Support Office, the European Union Agency for Fundamental Rights, Eurojust, the European Union Satellite Centre, the European Maritime Safety Agency and the European Fisheries Control Agency as well as other Union, agencies, bodies, offices in matters covered by this Regulation, and in particular with the objectives of preventing and combating irregular immigration and cross-border crime including the facilitation of irregular immigration, trafficking in human being and terrorism.
To that end, the Agency may cooperate with international organisations competent in matters covered by this Regulation.

2.

Such cooperation shall take place within the framework of working arrangements concluded with those bodies. Such arrangements shall have received the Commission’s prior approval. In every case the Agency shall inform the European Parliament of any such arrangements.

3.

The Agency shall cooperate with the Commission in relation to activities carried out under the Customs Union where these activities, including customs risk management, although outside the scope of this Regulation, may support its implementation.

4.
The Union institutions, agencies, bodies, offices and international organisations referred to in paragraph 1, shall use information received by the Agency only within the limits of their competences and in compliance with fundamental rights, including data protection requirements. Onward transmission or other communication of personal data processed by the Agency to other Union agencies or bodies shall be subject to specific working arrangements regarding the exchange of personal data and subject to the prior approval of the European Data Protection Supervisor. As regards the handling of classified information, those arrangements shall provide that the Union institution, body, office, agency or international organisation concerned shall comply with security rules and standards equivalent to those applied by the Agency.
- 5.
  
  The Agency may also, with the agreement of the Member States concerned, invite observers of Union institutions, agencies, bodies, offices or international organisations to participate in its activities in particular, joint operations and pilot projects, risk analysis and training, to the extent that their presence is in accordance with the objectives of those activities, may contribute to the improvement of cooperation and the exchange of best practices, and does not affect the overall safety and security of those activities. The participation of those observers in risk analysis and training may take place only with the agreement of the Member States concerned. As regards joint operations and pilot projects the participation of observers is subject to agreement of the host Member State. Detailed rules on the participation of observers shall be included in the operational plan. Those observers shall receive the appropriate training from the Agency prior to their participation.

Article 52

European cooperation on coast guard functions

1.

The Agency shall, in cooperation with the European Fisheries Control Agency and the European Maritime Safety Agency, support national authorities carrying out coast guard functions at national and Union level, and where appropriate, at international level by:

(a) sharing information generated by fusing and analysing data available in ship reporting systems and other information systems hosted by or accessible to the Agencies, in accordance with their respective legal bases and without prejudice to the ownership of data by Member States;

(b) providing surveillance and communication services based on state-of-the-art technology, including space-based and ground infrastructure and sensors mounted on any kind of platform, such as remotely piloted aircraft systems;

(c) capacity building by elaborating guidelines, recommendations and best practices as well as by supporting the training and exchange of staff, with a view to enhancing the exchange of information and cooperation on coast guard functions;

(d) capacity sharing, including the planning and implementation of multipurpose operations and the sharing of assets and other capabilities across sectors and borders.

2.

The modalities of the cooperation on coast guard functions of the European Border and Coast Guard Agency with the European Fisheries Control Agency and the European Maritime Safety Agency shall be determined in a working arrangement, in accordance with the financial rules applicable to the Agencies.

3.

The Commission may adopt, in the form of a recommendation, a practical handbook on European cooperation on coast guard functions, containing guidelines, recommendations and best practices for the exchange of information and cooperation at national, Union and international level.

Article 53

Cooperation with third countries

1.

In matters covered by its activities and to the extent required for the fulfilment of its tasks, the Agency shall facilitate and encourage operational cooperation between Member States and third countries, within the framework of the external relations policy of the Union, including with regard to the protection of fundamental rights. The Agency and the Member States shall comply with norms and standards at least equivalent to those set by Union legislation also when cooperation with third countries takes place on the territory of those countries. The establishment of cooperation with third countries shall serve to promote European border management and return standards.

2.

The Agency may cooperate with the authorities of third countries competent in matters covered by this Regulation with the support of and in coordination with Union delegations, as well as within the framework of working arrangements concluded with those authorities in accordance with Union law and policy. Those working arrangements shall be related to the management of operational cooperation. Such arrangements shall have received the Commission’s prior approval.

3.

In circumstances requiring increased technical and operational assistance, the Agency may coordinate operational cooperation between Member States and third countries in the field of management of external borders, and it shall have the possibility of carrying out joint operations at the external borders involving one or more Member States and a third country neighbouring at least one of those Member States, subject to the agreement of that neighbouring third country, including on the territory of that third country. The Commission shall be informed of such activities.

4.

The Agency shall cooperate with the competent authorities of third countries on return, including on the acquisition of travel documents.

5.

The Agency may also, with the agreement of the Member States concerned invite observers from third countries to participate in its activities at the external borders referred to in Article 13, return operations referred to in Article 27, return interventions referred to in Article 32 and training referred to in Article 35, to the extent that their presence is in accordance with the objectives of those activities, may contribute to improving cooperation and the exchange of best practices, and does not affect the overall safety of those activities. The participation of those observers may take place only with the agreement of the Member States concerned regarding the activities referred to in Articles 13, 27 and 35 and only with the agreement of the host Member State regarding those referred to in Article 13 and 32. Detailed rules on the participation of observers shall be included in the operational plan. Those observers shall receive the appropriate training from the Agency prior to their participation.

6.

The Agency shall participate in the implementation of international agreements concluded by the Union with third countries, within the framework of the external relations policy of the Union, and regarding matters covered by this Regulation.

7.

The Agency may benefit from Union funding in accordance with the provisions of the relevant instruments supporting the external relations policy of the Union. It may launch and finance technical assistance projects in third countries regarding matters covered by this Regulation.

8.

When concluding bilateral agreements with third countries Member States may, in agreement with the Agency, include provisions concerning the role and competence of the Agency in accordance with this Regulation, in particular regarding the exercise of executive powers by members of the European Border and Coast Guard Teams deployed by the Agency during the joint operations, pilot projects, rapid border interventions, return operations or return interventions. The Member States shall notify the Commission of any such provisions.

9.

The Agency shall inform the European Parliament of the activities referred to in paragraphs 2 and 3.

Article 54

Liaison officers in third countries

1.

The Agency may deploy experts of its own staff as liaison officers, who should enjoy the highest possible protection to carry out their duties, in third countries. They shall form part of the local or regional cooperation networks of immigration liaison officers and security experts of the Union and of the Member States, including the network set up pursuant to Council Regulation (EC) No 377/2004. ⁴⁹

2.

Within the framework of the external relations policy of the Union, priority for deployment of liaison officers shall be given to those third countries which, on the basis of risk analysis, constitute a country of origin or transit regarding irregular immigration. On a reciprocal basis the Agency may receive liaison officers posted by those third countries. The Management Board shall adopt, on a proposal of the Executive Director the list of priorities on a yearly basis. The deployment of liaison officers shall be approved by the Management Board.

3.

The tasks of the Agency’s liaison officers shall include, in compliance with Union law and in accordance with fundamental rights, establishing and maintaining contacts with the competent authorities of the third country to which they are assigned with a view to contributing to the prevention of and fight against irregular immigration and the return of illegally staying third-country nationals. Those liaison officers shall coordinate closely with Union delegations.

4.

The decision to deploy liaison officers to third countries shall be subject to receiving a prior opinion of the Commission, and the European Parliament shall be fully informed of those activities as soon as possible.

Section 4

General Framework and Organisation of the Agency

Article 55

Legal status and location

1.

The Agency shall be a body of the Union. It shall have legal personality.

2.

In each of the Member States, the Agency shall enjoy the most extensive legal capacity accorded to legal persons under their laws. It may, in particular, acquire or dispose of movable and immovable property and may be party to legal proceedings.

3.

The Agency shall be independent in relation to operational and technical matters.

4.

It shall be represented by its Executive Director.

5.

The seat of the Agency shall be Warsaw, Poland, subject to the implementation of Article 56.

Article 56

Headquarters Agreement

1.

The necessary arrangements concerning the accommodation to be provided for the Agency in the Member State in which the Agency has its seat and the facilities to be made available by that Member State, as well as the specific rules applicable to the Executive Director, the Deputy Executive Director, the members of the Management Board, the staff of the Agency and members of their families, in that Member State shall be laid down in a Headquarters Agreement between the Agency and the Member State in which the Agency has its seat.

2.

The Headquarters Agreement shall be concluded after obtaining the approval of the Management Board and no later than three months after entry into force of this Regulation.

3.

The Member State in which the Agency has its seat shall provide the best possible conditions to ensure proper functioning of the Agency, including multilingual, European-oriented schooling and appropriate transport connections.

Article 57

Staff

1.

The Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the Union and the rules adopted in agreement between the institutions of the Union for giving effect to those Staff Regulations and the Conditions of Employment of Other Servants of the Union shall apply to the Agency’s staff.

2.

For the purpose of implementing Article 21 and 32(6) only a staff member of the Agency subject to the Staff Regulations of Officials of the European Union or to Title II of the Conditions of Employment of Other Servants of the European Union may be designated as a coordinating officer or a liaison officer. For the purpose of implementing Article 19(8), only national experts or border guards seconded by a Member State to the Agency may be designated for attachment to the European Border and Coast Guard Teams. The Agency shall designate those national experts who shall be attached to the European Border and Coast Guard Teams in accordance with that Article.

3.

The Management Board shall adopt the necessary implementing measures in agreement with the Commission pursuant to Article 110 of the Staff Regulations of Officials of the European Union.

4.

The Management Board may adopt provisions to allow national experts and border guards from Member States to be seconded to the Agency. Those provisions shall take into account the requirements of Article 19(8), in particular the fact that the seconded national experts or border guards are considered as members of the teams and have the tasks and powers provided for in Article 39. They shall include provisions on the conditions of deployment.

Article 58

Privileges and immunities

The Protocol on the Privileges and Immunities of the European Union shall apply to the Agency and its staff.

Article 59

Liability

1.

The contractual liability of the Agency shall be governed by the law applicable to the contract in question.

2.

The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Agency.

3.

In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its staff in the performance of their duties.

4.

The Court of Justice shall have jurisdiction in disputes relating to compensation for the damage referred to in paragraph 3.

5.

The personal liability of its servants towards the Agency shall be governed by the provisions laid down in the Staff Regulations of Officials of the European Union and Conditions of Employment of Other Servants of the Union applicable to them.

Article 60

Administrative and management structure of the Agency

The administrative and management structure of the Agency shall comprise:

(a) a Management Board ;

(b) an Executive Director ;

(d) a Consultative Forum; and

(e) a Fundamental Rights Officer.

Article 61

Functions of the Management Board

1.

The Management Board shall:

(a) appoint the Executive Director on a proposal from the Commission in accordance with Article 68;

(b) appoint the members of the Supervisory Board in accordance with Article 69(2);

(d) adopt a consolidated annual activity report of the Agency for the previous year and forward it by 1 July at the latest to the European Parliament, the Council, the Commission and the Court of Auditors; the consolidated annual activity report shall be made public;

(e) before 30 November each year, and after taking into account the opinion of the Commission, adopt, by a majority of two-thirds of the members entitled to vote, a single programming document containing the Agency’s multiannual programming and its work programme for the following year and forward it to the European Parliament, the Council and the Commission;

(f) establish procedures for taking decisions related to the operational tasks of the Agency by the Executive Director;

(g) adopt, by a majority of two-thirds of the members entitled to vote, the annual budget of the Agency and exercise other functions in respect of the Agency’s budget pursuant to Section 5 of this Chapter;

(h) exercise disciplinary authority over the Executive Director and over the Deputy Director, in agreement with the Executive Director;

(i) establish its Rules of Procedure;

⁵⁰ (j) establish the organisational structure of the Agency and adopt the Agency’s staff policy, in particular the multiannual staff policy plan. In accordance with the relevant provisions of the Commission Regulation (EC, Euratom) No 2343/2002 the multiannual staff policy plan shall be submitted to the Commission and the budgetary authority after receiving a favourable opinion of the Commission;

(k) adopt an anti-fraud strategy, proportionate to the risk of fraud, taking into account the costs and benefits of the measures to be implemented;

(l) adopt internal rules for the prevention and management of conflicts of interest in respect of its members;

(m) exercise, in accordance with paragraph 7, with respect to the staff of the Agency, the powers conferred by the Staff Regulations of Officials of the European Union on the Appointing Authority and by the Conditions of Employment of Other Servants of the Union on the Authority Empowered to Conclude a Contract of Employment (‘the Appointing Authority powers’);

(n) adopt appropriate implementing rules for giving effect to the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the Union in accordance with Article 110 of the Staff Regulations;

(o) ensure adequate follow-up to findings and recommendations stemming from the internal or external audit reports and evaluations, as well as from investigations of the European Anti-fraud Office (OLAF);

(p)adopt and regularly update the communication and dissemination plans referred to in Article 7(3) based on an analysis of needs;

(q)appoint an Accounting Officer, subject to the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the Union, who shall be totally independent in the performance of his or her duties.

2.

Proposals for decisions on specific activities of the Agency to be carried out at, or in the immediate vicinity of, the external border of any particular Member State shall require a vote in favour of their adoption by the Member of the Management Board representing that Member State.

3.

The Management Board may advise the Executive Director on any matter strictly related to the development of operational management of the external borders and return, including activities related to research.

4.

Should Ireland and/or the United Kingdom request to participate in specific activities, the Management Board shall decide thereon.
The Management Board shall take its decision on a case-by-case basis by an absolute majority of its members with a right to vote. In its decision, the Management Board shall consider if the participation of Ireland and/or the United Kingdom contributes to the achievement of the activity in question. The decision shall set out the financial contribution of Ireland and/or the United Kingdom to the activity for which a request for participation has been made.

5.

The Management Board shall forward annually to the budgetary authority any information relevant to the outcome of the evaluation procedures conducted by the Agency.

6.

The Management Board may establish a small-sized Executive Board composed of the Chairperson of the Management Board, one representative of the Commission and three members of the Management Board, to assist it and the Executive Director with regard to the preparation of the decisions, programmes and activities to be adopted by the Management Board and when necessary, because of urgency, to take certain provisional decisions on behalf of the Management Board.

7.

The Management Board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article 2(1) of the Staff Regulations of Officials of the European Union and on Article 6 of the Conditions of Employment of Other Servants of the Union, delegating relevant Appointing Authority powers to the Executive Director and defining the conditions under which this delegation of powers can be suspended. The Executive Director shall be authorised to sub-delegate those powers.
Where exceptional circumstances so require, the Management Board may by way of a decision temporarily suspend the delegation of the Appointing Authority powers to the Executive Director and those sub-delegated by the latter and exercise them itself or delegate them to one of its members or to a staff member other than the Executive Director.

Article 62

Composition of the Management Board

1.

Without prejudice to paragraph 3, the Management Board shall be composed of one representative of each Member State and two representatives of the Commission, all with voting rights. To this effect, each Member State shall appoint a member of the Management Board as well as an alternate who will represent the member in his or her absence. The Commission shall appoint two members and their alternates. The duration of the terms of office shall be four years. The terms of office shall be extendable.

2.

The Management Board members shall be appointed on the basis of their degree of high level relevant experience and expertise in the field of operational cooperation on border management and return, taking into account relevant managerial, administrative and budgetary skills. The parties represented in the Management Board shall make efforts to limit turnover of their representatives, in order to ensure continuity of the board’s work. They shall aim to achieve a balanced representation between men and women on the Management Board.

3.

Countries associated with the implementation, application and development of the Schengen acquis shall participate in the Agency. They shall have one representative and one alternate each in the Management Board. Under the relevant provisions of their association agreements, arrangements have been developed that specify the nature and extent of, and the detailed rules for, the participation by those countries in the work of the Agency, including provisions on financial contributions and staff.

Article 63

Multiannual programming and annual work programmes

1.

The Management Board shall, by 30 November each year, adopt a programming document containing the Agency’s multiannual programming and annual programming for the following year, based on a draft put forward by the Executive Director, taking into account the opinion of the Commission and, as regards the multiannual programming, after having consulted the European Parliament. The Management Board shall forward that document to the European Parliament, the Council and the Commission.

2.

The document referred to in paragraph 1 shall become definitive after the final adoption of the general budget and, where necessary, shall be adjusted accordingly.

3.

The multiannual programming shall set out overall strategic programming in the medium and long term, including the objectives, expected results and performance indicators, as well as resource planning, including the multiannual budget and staff. The multiannual programming shall set the strategic areas of interventions and explain what needs to be done to achieve the objectives. It shall include a strategy for relations with third countries and international organisations, as well as the actions linked to that strategy.

4.

The multiannual programming shall be implemented by means of annual work programmes and shall, where appropriate, be updated following the outcome of the evaluation referred to in Article 80. The conclusion of those evaluations shall also be reflected, where appropriate, in the annual work programme for the following year.

5.

The annual work programme shall contain a description of the activities to be financed comprising detailed objectives and expected results including performance indicators. It shall also contain an indication of the financial and human resources allocated to each activity, in accordance with the principles of activity-based budgeting and management. The annual work programme shall be consistent with the multiannual programming. It shall clearly indicate tasks that have been added, changed or deleted compared to the previous financial year.

6.

The annual work programme shall be adopted according to the Union legislative programme in relevant areas of the management of external borders and returns;

7.

Where, after adoption of an annual work programme, a new task is assigned to the Agency, the Management Board shall amend the annual work programme.

8.

Any substantial amendment to the annual work programme shall be adopted by the same procedure as that applicable to adoption of the initial annual work programme. The Management Board may delegate the power to make non-substantial amendments to the annual work programme to the Executive Director.

Article 64

Chairmanship of the Management Board

1.

The Management Board shall elect a Chairperson and a Deputy Chairperson from among its members with voting rights. The Chairperson and the Deputy Chairperson shall be elected by a majority of two-thirds of the members of the Management Boards with voting rights. The Deputy Chairperson shall ex officio replace the Chairperson in the event of his or her being prevented from attending to his or her duties.

2.

The term of office of the Chairperson and Deputy Chairperson shall expire when their respective membership of the Management Board ceases. Subject to this provision, the duration of the terms of office of the Chairperson or Deputy Chairperson shall be four years. These terms of office shall be extendable once.

Article 65

Meetings

1.

Meetings of the Management Board shall be convened by its Chairperson.

2.

The Executive Director of the Agency shall take part in the deliberations, without the right to vote.

3.

The Management Board shall hold at least two ordinary meetings a year. In addition, it shall meet at the initiative of the Chairperson, at the request of the Commission, or at the request of at least one third of its members.

4.

Ireland and the United Kingdom shall be invited to attend the meetings of the Management Board.

5.

The Management Board may invite a representative of the European External Action Service.

6.

The Management Board may invite any other person whose opinion may be of interest to attend its meetings as an observer.

7.

The members of the Management Board may, subject to the provisions of its Rules of Procedure, be assisted by advisers or experts.

8.

The secretariat for the Management Board shall be provided by the Agency.

Article 66

Voting

1.

Without prejudice to Article 61(1)(e) and (g), Article 64(1) and Article 68(2) and (4), the Management Board shall take its decisions by an absolute majority of its members with a right to vote.

2.

Each member shall have one vote. The Executive Director shall not vote. In the absence of a member, his or her alternate shall be entitled to exercise his or her right to vote.

3.

The rules of procedure shall establish the more detailed voting arrangements, in particular, the conditions for a member to act on behalf of another member as well as any quorum requirements, where appropriate.

4.

Countries associated with the implementation, application and development of the Schengen acquis have limited voting rights in accordance with the respective arrangements. In order to allow the associated countries to exercise their right to vote, the Agency shall detail the agenda identifying the points for which a limited voting right has been granted.

Article 67

Functions and powers of the Executive Director

1.

The Agency shall be managed by its Executive Director, who shall be completely independent in the performance of his or her duties. Without prejudice to the respective competencies of the Commission and the Management Board, the Executive Director shall neither seek nor take instructions from any government or from any other body.

2.

The European Parliament or the Council may invite the Executive Director to report on the carrying out of his or her tasks, in particular on the implementation and monitoring of the Fundamental Rights Strategy, the consolidated annual activity report of the Agency for the previous year, the work programme for the following year and the Agency’s multiannual programming.

3.

The Executive Director shall have the following functions and powers:

(a) to prepare and implement the decisions and programmes and activities adopted by the Agency’s Management Board within the limits specified by this Regulation, its implementing rules and any applicable law;

(b) to take all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the day-to-day administration and functioning of the Agency in accordance with the provisions of this Regulation;

(c) to prepare each year the programming document and to submit it to the Management Board after consulting the Commission;

(d) to prepare each year the consolidated annual activity report on the Agency’s activities and submit it to the Management Board;

(e) to draw up a draft statement of estimates of the revenues and expenditure of the Agency pursuant to Article 75, and implement the budget pursuant to Article 76;

(f) to delegate his or her powers to other members of the Agency’s staff subject to rules to be adopted in accordance with the procedure referred to in Article 61(1)(i);

(g) to adopt a decision on corrective measures in accordance with Article 12(5), including to propose to Member States to initiate and carry out joint operations, rapid border interventions or other action referred to in Article 13(2);

(h) to evaluate, approve and coordinate proposals made by Member States for joint operations or rapid border interventions in accordance with Article 14(3);

(i) to ensure the implementation of the operational plans referred to in Articles 15, 16 and 32(4);

(j) to assess the request for assistance of a Member State for migration management support teams and the assessment of its needs, in coordination with relevant Union Agencies in accordance with Article 17(2);

(k) to ensure the implementation of the Commission decision referred to in Article 18;

(l) to withdraw financing of a joint operation or rapid border intervention or to suspend or terminate such operations in accordance with Article 24;

(m) to evaluate the results of joint operations and rapid border interventions in accordance with Article 25;

(n) to identify the minimum number of technical equipment in accordance with its needs, notably in order to be able to carry out joint operations and rapid border interventions, in accordance with Article 38(2);

(o) to prepare an action plan following-up on the conclusions of internal or external audit reports and evaluations, as well as investigations by the European Anti-fraud Office (OLAF) and reporting on progress twice a year to the Commission and regularly to the Management Board;

(p) to protect the financial interests of the Union by applying preventive measures against fraud, corruption and any other illegal activities, by effective checks and, if irregularities are detected, by recovering amounts wrongly paid and, where appropriate, by imposing effective, proportionate and dissuasive administrative and financial penalties;

(q) to prepare an anti-fraud strategy for the Agency and present it to the Management Board for approval.

4.

The Executive Director shall be accountable for his activities to the Management Board.

5.

The Executive Director shall be the legal representative of the Agency.

Article 68

Appointment of the Executive Director and the Deputy Executive Director

1.

The Commission shall propose candidates for the post of the Executive Director and the Deputy Executive Director based on a list following publication of the post in the Official Journal of the European Union and other press or internet sites as appropriate.

2.

The Executive Director shall be appointed by the Management Board on the grounds of merit and documented high-level administrative and management skills, as well as senior professional experience in the field of management of the external borders and return. The Management Board shall take its decision by a two-thirds majority of all members with a right to vote.
Power to dismiss the Executive Director shall lie with the Management Board, acting on a proposal from the Commission, according to the same procedure.

3.

The Executive Director shall be assisted by a Deputy Executive Director. If the Executive Director is absent or indisposed, the Deputy Executive Director shall take his or her place.

4.

The Deputy Executive Director shall be appointed by the Management Board on the grounds of merit and documented appropriate administrative and management skills, as well as relevant professional experience in the field of management of the external borders and return on the proposal of the Commission, after having consulted the Executive Director. The Management Board shall take its decision by a two-thirds majority of all members with a right to vote.
Power to dismiss the Deputy Executive Director shall be with the Management Board, according to the same procedure.

5.

The term of office of the Executive Director shall be five years. By the end of that period, the Commission shall undertake an assessment that takes into account an evaluation of the Executive Director’s performance and the Agency’s future tasks and challenges.

6.

The Management Board, acting on a proposal from the Commission that takes into account the assessment referred to in paragraph 5, may extend the term of office of the Executive Director once, for no more than five years.

7.

The term of the office of the Deputy Executive Director shall be five years. It may be extended by the Management Board once for another period of up to five years.

Article 69

Supervisory Board

1.

The Supervisory Board shall advise the Executive Director:

(a) on the recommendations to be made by the Executive Director to a Member State concerned to initiate and carry out joint operations or rapid border interventions in accordance with Article 14(4);

(b) on the decisions to be taken by the Executive Director to Member States based on the outcome of the vulnerability assessment carried out by the Agency in accordance with Article 12;

(c) on the measures needed to be taken for the practical execution of the Commission decision related to a situation requiring urgent action at the external borders, including the technical equipment and staff needed to meet the objectives of that decision in accordance with Article 18(3).

2.

The Supervisory Board shall be composed of the Deputy Executive Director, four other senior officials of the Agency to be appointed by the Management Board and one of the representatives of the Commission to the Management Board. The Supervisory Board shall be chaired by the Deputy Executive Director.

3.

The Supervisory Board shall report to the Management Board.

Article 70

Consultative Forum

1.

A Consultative Forum shall be established by the Agency to assist the Executive Director and the Management Board in fundamental rights matters.

2.

The Agency shall invite the European Asylum Support Office, the European Union Agency for Fundamental Rights, the United Nations High Commissioner for Refugees and other relevant organisations to participate in the Consultative Forum. On a proposal by the Executive Director, the Management Board shall decide on the composition and the working methods of the Consultative Forum and the modalities of the transmission of information to the Consultative Forum.

3.

The Consultative Forum shall be consulted on the further development and implementation of the Fundamental Rights Strategy, Codes of Conduct and common core curricula.

4.

The Consultative Forum shall prepare an annual report of its activities. That report shall be made publicly available.

5.

The Consultative Forum shall have access to all information concerning the respect for fundamental rights, including by carrying out on spot visits to joint operations or rapid border interventions subject to the agreement of the host Member State.

Article 71

Fundamental Rights Officer

1.

A Fundamental Rights Officer shall be designated by the Management Board and shall have the necessary qualifications and experience in the field of fundamental rights.

2.

The Fundamental Rights Officer shall be independent in the performance of his or her duties as a Fundamental Rights Officer, he or she shall report directly to the Management Board and cooperate with the Consultative Forum. The Fundamental Rights Officer shall report on a regular basis and as such contribute to the mechanism for monitoring fundamental rights.

3.

The Fundamental Rights Officer shall be consulted on the operational plans drawn up in accordance with Articles 15, 16 and 32(4) and shall have access to all information concerning respect for fundamental rights, in relation to all the activities of the Agency.

Article 72

Complaint Mechanism

1.

The Agency, in cooperation with the Fundamental Rights Officer, shall take the necessary measures to set up a complaint mechanism in accordance with this Article to monitor and ensure the respect for fundamental rights in all the activities of the Agency.

2.

Any person who is directly affected by the actions of staff involved in a joint operation, pilot project, rapid border intervention, return operation or return intervention, and who considers him or herself to have been the subject of a breach of his or her fundamental rights due to those actions, or any third parties intervening on behalf of such a person, may submit a complaint, in writing, to the Agency.

3.

Only substantiated complaints involving concrete fundamental rights violations shall be admissible. Complaints which are anonymous, malicious, frivolous, vexatious, hypothetical or inaccurate shall be excluded from the complaint mechanism.

4.

The Fundamental Rights Officer shall be responsible for handling complaints received by the Agency in accordance with the right to good administration. For this purpose, the Fundamental Rights Officer shall review the admissibility of a complaint, register admissible complaints, forward all registered complaints to the Executive Director, forward complaints concerning border guards to the home Member State and register the follow-up by the Agency or that Member State.

5.

In case of a registered complaint concerning a staff member of the Agency, the Executive Director shall ensure appropriate follow-up, including disciplinary measures as necessary. The Executive Director shall report back to the Fundamental Rights Officer as to the findings and follow-up given by the Agency to a complaint.

6.

In case of a registered complaint concerning a border guard of a host Member State or a member of the teams, including seconded members of the teams or seconded national experts, the home Member State shall ensure appropriate follow-up, including disciplinary measures as necessary or other measures in accordance with national law. The relevant Member State shall report back to the Fundamental Rights Officer as to the findings and follow-up to a complaint.

7.

The Fundamental Rights Officer shall report to the Executive Director and to the Management Board as to the findings and follow-up given to complaints by the Agency and the Member States.

8.

In accordance with the right to good administration, if a complaint is admissible, complainants shall be informed that a complaint has been registered, that an assessment has been initiated and that a response may be expected as soon as it becomes available. If a complaint is not admissible, complainants shall be informed of the reasons and provided with further options for addressing their concerns.

9.

The Fundamental Rights Officer shall, after consulting the Consultative Forum, draw up a standardized complaint form requiring detailed and specific information concerning the alleged breach of fundamental rights. The Fundamental Rights Officer shall submit that form to the Executive Director and to the Management Board.
The Agency shall ensure that the standardized complaint form is available in most common languages and that it shall be made available on the Agency’s website and in hardcopy during all activities of the Agency. Complaints shall be considered by the Fundamental Rights Officer even when they are not submitted in the standardized complaint form.

10.

Any personal data contained in a complaint shall be handled and processed by the Agency and the Fundamental Rights Officer in accordance with Regulation (EC) No 45/2001 and by Member States in accordance with Directive 95/46/EC and Council Framework Decision 2008/977/JHA.
The submission of the complaint is understood as the complainant consenting to the processing of his or her personal data in the meaning of point (d) of Article 5 of Regulation (EC) No 45/2001 by the Agency and the Fundamental Rights Officer.

In order to safeguard the interest of the complainants, complaints shall be dealt with confidentially unless the complainant waives his or her right to confidentiality. For complainants who waive their right to confidentiality, it is understood that he or she consents to the Fundamental Rights Officer or the Agency disclosing his or her identity in relation to the matter under complaint.

Article 73

Language arrangements

1.

The provisions laid down in Regulation No 1 ⁵¹ shall apply to the Agency.

2.

Without prejudice to decisions taken on the basis of Article 342 TFEU, the consolidated annual activity report and the work programme referred to in Article 61(1)(d) and (e), shall be produced in all official languages of the Union.

3.

The translation services required for the functioning of the Agency shall be provided by the Translation Centre for the bodies of the European Union.

Article 74

Transparency and communication

1.

The Agency shall be subject to Regulation (EC) No 1049/2001 when handling applications for access to documents held by it.

2.

The Agency may communicate on its own initiative in the fields within its mission. It shall make public the consolidated annual activity report referred to in Article 61(1)(d) and ensure in particular that the public and any interested party are rapidly given objective, reliable and easily understandable information with regard to its work.

3.

The Management Board shall lay down the practical arrangements for the application of paragraphs 1 and 2.

4.

Any natural or legal person shall be entitled to address himself or herself in writing to the Agency in any of the official languages of the Union. He or she shall have the right to receive an answer in the same language.

5.

Decisions taken by the Agency pursuant to Article 8 of Regulation (EC) No 1049/2001 may give rise to the lodging of a complaint to the Ombudsman or form the subject of an action before the Court of Justice of the European Union, under the conditions laid down in Articles 228 and 263 TFEU respectively.

Section 5

Financial requirements

Article 75

Budget

1.

The revenue of the Agency shall consist, without prejudice to other types of income, of:

(a) a subsidy from the Union entered in the general budget of the European Union (Commission section);

(b) a contribution from the countries associated with the implementation, application and development of the Schengen acquis as established in the respective arrangements that specify the financial contribution;

(c) Union funding in the form of delegation agreements or ad-hoc grants in accordance with its financial rules referred to in Article 78 and with the provisions of the relevant instruments supporting the policies of the Union;

(d) fees for services provided;

(e) any voluntary contribution from the Member States.

2.

The expenditure of the Agency shall include the staff, administrative, infrastructure and operational expenses.

3.

The Executive Director shall draw up a draft statement of estimates of the Agency’s revenue and expenditure for the following financial year, including an establishment plan, and shall forward it to the Management Board.

4.

Revenue and expenditure shall be in balance.

5.

The Management Board shall, on the basis of the draft statement of estimates drawn up by the Executive Director, adopt a provisional draft estimate of the Agency’s revenue and expenditure, including the provisional establishment plan and forward them by 31 January to the Commission.

6.

The Management Board shall send the final draft estimates of the Agency’s revenue and expenditure including the draft establishment plan accompanied by the preliminary work programme by 31 March to the Commission.

7.

The estimate shall be forwarded by the Commission to the European Parliament and the Council (hereinafter referred to as the budgetary authority) together with the preliminary draft budget of the European Union.

8.

On the basis of the estimate, the Commission shall enter in the draft general budget of the European Union the estimates it deems necessary for the establishment plan and the amount of the subsidy to be charged to the general budget, which it shall place before the budgetary authority in accordance with Articles 313 and 314 TFEU.

9.

The budgetary authority shall authorise the appropriations for the subsidy to the Agency.
The budgetary authority shall adopt the establishment plan for the Agency.

10.

The Management Board adopts the Agency’s budget. It shall become final following the final adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly.

11.

Any modification to the budget, including the establishment plan, shall follow the same procedure.

12.

For any building project likely to have significant implications for the budget the Agency the provisions of Commission Delegated Regulation (EU) No 1271/2013 ⁵² shall apply

13.

In the view of financing the deployment of rapid border interventions and return interventions, the budget of the Agency adopted by the Management Board shall include a financial operational reserve amounting at least to 4% of the allocation foreseen for the operational activities. The reserve should be maintained throughout the year.

Article 76

Implementation and control of the budget

1.

The Executive Director shall implement the Agency’s budget.

2.

By 1 March at the following financial year (year N + 1), the Agency’s accounting officer shall communicate the provisional accounts for the financial year (year N) to the Commission’s accounting officer and to the Court of Auditors. The Commission’s accounting officer shall consolidate the provisional accounts of the institutions and decentralised bodies in accordance with Article 147 of Regulation (EC, Euratom) No 966/2012 of the European Parliament and of the Council. ⁵³

3.

The Agency shall send a report on the budgetary and financial management for year N to the European Parliament, the Council and the Court of Auditors by 31 March of year N + 1.

4.

The Commission’s accounting officer shall send the Agency’s provisional accounts for year N, consolidated with the Commission’s accounts, to the Court of Auditors by 31 March of year N + 1.

5.

On receipt of the Court of Auditors’ observations on the Agency’s provisional accounts for year N, pursuant to Article 148 of Regulation (EC, Euratom) No 966/2012, the Executive Director shall draw up the Agency’s final accounts under his or her own responsibility and forward them to the Management Board for an opinion.

6.

The Management Board shall deliver an opinion on the Agency’s final accounts for year N.

7.

By 1 July of year N + 1 at the latest, the Executive Director shall send the final accounts, together with the opinion of the Management Board, to the Commission, the Court of Auditors, the European Parliament and the Council.

8.

The final accounts for year N shall be published in the Official Journal of the European Union by 15 November of year N + 1.

9.

The Executive Director shall send the Court of Auditors a reply to its observations by 30 September of year N + 1 at the latest. He shall also send this reply to the Management Board.

10.

The Executive Director shall submit to the European Parliament, at the latter’s request, any information required for the smooth application of the discharge procedure for year N, in accordance with Article 165(3) of Regulation (EC, Euratom) No 966/2012.

11.

On a recommendation from the Council acting by qualified majority, the European Parliament shall, before 15 May of the year N + 2, give a discharge to the Executive Director of the Agency in respect of the implementation of the budget for the year N.

Article 77

Combating fraud

1.

In order to combat fraud, corruption and other unlawful activities the provisions of Regulation (EU, Euratom) No 883/2013 shall apply without restriction. The Agency shall accede to the Inter-institutional Agreement of 25 May 1999 concerning internal investigations by the European Anti-fraud Office (OLAF) and shall adopt, without delay, the appropriate provisions applicable to all the employees of the Agency using the template set out in the Annex to that Agreement.

2.

The Court of Auditors shall have the power of audit, on the basis of documents and on the spot, over all grant beneficiaries, contractors and subcontractors who have received Union funds from the Agency.

3.

OLAF may carry out investigations, including on-the-spot checks and inspections with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant or a contract funded by the Agency, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013 ⁵⁴ and Regulation (EC, Euratom) No 2185/96. ⁵⁵

4.

Without prejudice to paragraphs 1, 2 and 3, cooperation agreements with third countries and international organisations, contracts, grant agreements and grant decisions of the Agency shall contain provisions expressly empowering the Court of Auditors and OLAF to conduct such audits and investigations, according to their respective competences.

Article 78

Financial provision

The financial rules applicable to the Agency shall be adopted by the Management Board after consulting the Commission. They shall not depart from Delegated Regulation (EU) No 1271/2013 unless such a departure is specifically required for the Agency’s operation and the Commission has given its prior consent.

CHAPTER IV

FINAL PROVISIONS

Article 79

Committee Procedure

1.

The Commission shall be assisted by the committee established by Article 33a of Regulation (EC) No 562/2006. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.

Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3.

Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time-limit for delivery of the opinion, the chair of the committee so decides or two-thirds of the committee members so request.

4.

Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.

5.

Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

Article 80

Evaluation

1.

By three years from the date of entry into force of this Regulation, and every three years thereafter, the Commission shall carry out an evaluation to assess particularly the impact, effectiveness and efficiency of the Agency’s performance and its working practices in relation to its objectives, mandate and tasks. The evaluation shall, in particular, address the possible need to modify the mandate of the Agency, and the financial implications of any such modification.
The evaluation shall include a specific analysis on the way the Charter of Fundamental Rights was complied with in the application of this Regulation.

2.

The Commission shall send the evaluation report together with its conclusions on the report, to the European Parliament, the Council and the Management Board. The evaluation report and the conclusions on the report shall be made public.

3.

On the occasion of every second evaluation, the Commission shall assess the results achieved by the Agency having regard to its objectives, mandate and tasks.

Article 81

Repeal

1.

Council Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC ⁵⁶ are repealed.

2.

References to the repealed regulations shall be construed as references to this Regulation in accordance with the Annex.

Article 82

Entry into force and applicability

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 19(5) and Articles 28, 29, 30 and 31 shall apply from three months after the entry into force of this Regulation.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

Done at Strasbourg,

For the European Parliament For the Council

The President The President

LEGISLATIVE FINANCIAL STATEMENT ‘AGENCIES’

1.

FRAMEWORK OF THE PROPOSAL/INITIATIVE

1.1.Title of the proposal/initiative

1.2.Policy areas concerned in the ABM/ABB structure

1.3.Nature of the proposal/initiative

1.4.Objectives

1.5.Grounds for the proposal/initiative

1.6.Duration and financial impact

1.7.Management modes planned

2.

MANAGEMENT MEASURES

2.1.Monitoring and reporting rules

2.2.Management and control system

2.3.Measures to prevent fraud and irregularities

3.

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE

3.1.Heading(s) of the multiannual financial framework and expenditure budget line(s) affected

3.2.Estimated impact on expenditure

3.2.1.Summary of estimated impact on expenditure

3.2.2.Estimated impact on the European Border and Coast Guard Agency’s appropriations

3.2.3.Estimated impact on the European Border and Coast Guard Agency’s human resources

3.2.4.Compatibility with the current multiannual financial framework

3.2.5.Third-party contributions

3.3.Estimated impact on revenue

LEGISLATIVE FINANCIAL STATEMENT

1.

FRAMEWORK OF THE PROPOSAL/INITIATIVE

1.1.Title of the proposal/initiative

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Decision 2005/267/EC

1.2.Policy area concerned in the ABM/ABB structure ⁵⁷

Policy area: Migration and Home Affairs

Activity: Security and Safeguarding Liberties

1.3.Nature of the proposal/initiative

◻ The proposal/initiative relates to a new action

◻ The proposal/initiative relates to a new action following a pilot project/preparatory action ⁵⁸

X The proposal/initiative relates to the extension of an existing action

◻ The proposal/initiative relates to an action redirected towards a new action

1.4.Objectives

1.4.1.The Commission's multiannual strategic objectives targeted by the proposal/initiative

.The present proposal has the objective of setting up a European Border and Coast Guard in order to ensure a European integrated border management of the EU’s external borders, with a view to managing migration effectively and ensuring a high level of security within the Union, while safeguarding the free movement of persons therein. It is part of a package of measures presented by the Commission in order to better ensure the protection of the EU’s external borders as set out in the accompanying Commission Communication entitled ‘A European Border and Coast Guard and effective management of Europe’s external borders’.

In 2015, the European Union witnessed extraordinary pressures at its external borders with an estimated 1,5 million persons having crossed the borders illegally between January and November this year. The sheer scale of the mixed migratory flows which have crossed the external borders of the European Union and the consequent secondary movements, demonstrated that existing structures at Union and Member State level are inadequate to address the challenges arising from such a large influx. In an area without internal borders, irregular immigration through the external borders of one Member State affects all other Member States within the Schengen area. The significant secondary movements have led several Member States to reintroduce border control at their internal borders. This has put considerable strain on the functioning and coherence of the Schengen area.

The proposed Regulation lays down the general principles of European integrated border management; it establishes a European Border and Coast Guard and a European Border and Coast Guard Agency built from Frontex. The objective of this draft Regulation is to provide for a more integrated management of the EU’s external borders, inter alia by providing the European Border and Coast Guard Agency with more competences in the fields of external border management and return than Frontex currently has. This draft Regulation affords the European Border and Coast Guard Agency the additional competences needed for it to effectively implement integrated border management at Union level, to address deficiencies of border management at national level, and to respond to unprecedented migratory flows such as those which have arrived at the external borders of the European Union this year.

1.4.2.Specific objectives and ABM/ABB activity concerned

The following specific objectives are defined on the basis of the Agency's tasks set out in Article 7 of the proposal. However, the breakdown of specific objectives takes into account the ABM/ABB framework established by the Frontex Agency for the purpose of its 2016 Programme of Work taking into account the new tasks established by the Regulation and some necessary adaptations ⁵⁹ .

Specific objective No 1: Support in the external borders management

-

coordinating operational cooperation between Member States in the field of management of the external borders,

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assisting Member States in circumstances requiring increased technical and operational assistance at the external borders by coordinating and organising joint operations, taking into account that some situations may involve humanitarian emergencies and rescue at sea;

-

assisting Member States in circumstances requiring increased technical and operational assistance at the external borders, by launching rapid border interventions at the external borders of those Member States facing specific and disproportionate pressures, taking into account that some situations may involve humanitarian emergencies and rescue at sea;

-

setting up and deploying European Border and Coast Guard Teams, including a rapid reserve pool, that are to be deployed during joint operations and rapid border interventions and in the framework of the migration management support teams;

-

deploying European Border and Coast Guard Teams and technical equipment to provide assistance in screening, identification and fingerprinting in the framework of the migration management support teams;

-

deploying the necessary equipment and staff for the rapid reserve pool for the practical execution of the measures needed to be taken in an emergency situation at the external borders;

Specific objective No 2: Support to Member States authorities carrying out coast guard functions

-

cooperating with the European Fisheries Control Agency and the European Maritime Safety Agency to support the national authorities carrying out coast guard functions by (a) providing services, information, equipment and training and (b) coordinating multipurpose operations;

Specific objective No 3: Support to carry out effective returns

-

supporting and reinforcing technical and operational cooperation between Member States, as well as with relevant third countries' authorities and stakeholders;

-

coordinating and organising return operations;

-

assisting Member States in circumstances requiring increased technical and operational assistance for implementing the obligation to return illegally staying third-country nationals, including through the coordination or organisation of return operations;

-

setting up and deploy European Return Intervention Teams during return interventions;

Specific objective No 4: Risk analyses and vulnerability assessments

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establish a monitoring and risk analysis centre with the capacity to monitor migratory flows and to carry out risk analysis as regards all aspects of integrated border management;

-

carry out a vulnerability assessment including the assessment of the capacity of Member States to face threats and pressures at the external borders;

Specific objective No 5: Training

-

assisting Member States on training of national border guards and experts on return, including the establishment of common training standards;

Specific objective No 6: Management of Pooled resources and Research and Development

-

setting up a technical equipment pool to be deployed in joint operations, rapid border interventions and in the framework of migration management support teams, as well as in return operations and return interventions;

-

setting up pools of forced return monitors, forced return escorts and return specialists;

-

supporting the development of technical standards for equipment, especially for tactical level command, control and communication as well as technical surveillance to ensure interoperability at Union and national level;

-

participating in the development and management of research and innovation activities relevant for the control and surveillance of external borders, including the use of advanced surveillance technology such as remotely piloted aircraft systems and develop pilot projects regarding matters covered by the Regulation;

Specific objective No 7: Eurosur and situational monitoring

-

providing the necessary assistance for the development and operation of a European border surveillance system and, as appropriate, to the development of a common information-sharing environment, including interoperability of systems, in particular by developing, maintaining and coordinating the Eurosur framework in accordance with Regulation (EU) No 1052/2013 of the European Parliament and of the Council;

-

developing and operating, in accordance with Regulation (EC) No 45/2001 and Council Framework Decision 2008/977/JHA, information systems that enable swift and reliable exchanges of information regarding emerging risks at the management of the external borders, irregular immigration and return, in close cooperation with the Commission, Union agencies, bodies and offices as well as the European Migration Network established by Council Decision 2008/381/EC;

Specific objective No 8: External relations and fundamental rights

-

assisting Member States and third countries in the context of operational cooperation between them in the fields of external border management and return, including the deployment of liaison officers;

-

guaranteeing the protection of fundamental rights in the performance of the Agency's and Member Statets' tasks under the Regulation in accordance with relevant Union law, including in particular the Charter of Fundamental Rights of the European Union, including setting up of a complaint mechanism to handle complaints concerning possible violations of fundamental rights in the course of activities carried out by the European Border and Coast Guard Agency.

ABM/ABB activity concerned

Activity 18 02: Solidarity – External borders, visa policy and free movement of people

1.4.3.Expected results and impact

Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted.

Integrated border management consists of measures in third countries, measures implemented in conjunction with neighbouring third countries, border control measures at the external border and measures implemented inside the area of free movement including the return of third country nationals who illegally stay in a Member State.

Establishing a monitoring and risk analysis centre with the capacity to monitor migratory flows towards and within the European Union and to carry out risk analysis which is to be applied by Member States and which covers all aspects relevant to integrated border management, in particular, border control, return, irregular secondary movements of third-country nationals with the European Union, the prevention of cross-border crime including facilitation of irregular immigration, trafficking in human beings and terrorism, as well as the situation at neighbouring third countries with a view to developing a pre-warning mechanism which analyses the migratory flows towards the EU.

Liaison officers of the Agency to be deployed to Member States so that the Agency can ensure proper and effective monitoring not only through risk analysis, information exchange and Eurosur, but also through its presence on the ground. The task of the liaison officer is to foster cooperation between the Agency and the Member States and in particular, to support the collection of information required by the Agency for carrying out the vulnerability assessment and to monitor the measures taken by Member States at the external borders.

Supervisory role for the Agency by establishing a mandatory vulnerability assessment by the Agency to assess the capacity of Member States to face challenges at their external borders, including by means of an assessment of the equipment and resources of Member States as well as of their contingency planning. The Executive Director, on the advice of a Supervisory Board created within the European Border and Coast Guard Agency, will identify the measures that need to be taken by the Member State concerned and should set a time-limit within which those measures need to be taken. The decision of the Executive Director will be binding on the Member State concerned, and where the necessary measures are not taken within the set time-limit, the matter will be referred to the Management Board for a further decision. If the Member State would still fail to act, thereby risking putting in jeopardy the functioning of the Schengen area, the Commission may adopt an implementing decision for direct intervention by the Agency.

New procedures to deal with situations requiring urgent action where a Member State does not take the necessary corrective action in line with the vulnerability assessment or in the event of disproportionate migratory pressure at the external borders, rendering the control of the external borders ineffective to an extent that risks putting in jeopardy the functioning of the Schengen area. This will involve a Commission implementing decision identifying the measures to be implemented by the European Border and Coast Guard Agency as outlined in this Regulation and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The European Border and Coast Guard Agency will then determine the actions needed to be taken for the practical execution of the measures indicated in the Commission decision, and it will intervene directly in the Member State concerned.

Enhanced tasks for the Agency consisting of the setting up and deployment of European Border and Coast Guard Teams for joint operations and rapid border interventions, the setting up of a technical equipment pool, assisting the Commission in coordinating the activities of the migration management support teams at hotspot areas, and a strengthened role in return, risk analysis, training and research.

Mandatory pooling of human resources by establishing a rapid reserve pool which will be a standing corps composed of a small percentage of the total number of border guards in the Member States on a yearly basis. The deployment of European Border and Coast Guard Teams from the rapid reserve pool should be immediately complemented by additional European Border and Coast Guard Teams as appropriate.

Deployment of an own technical equipment pool by acquiring itself or in co-ownership with a Member State and managing a pool of technical equipment provided by the Member States, based on the needs identified by the Agency and by requiring that the technical equipment pool be completed by means of transport and operating equipment purchased by Member States under the Specific Actions of the Internal Security Fund.

Key role in assisting the Commission with the coordination of migration management support teams at hotspot areas, characterised by mixed migratory flows and where the European Border and Coast Guard Agency together with the European Asylum Support Office, Europol and other relevant Union Agencies provides coordinated and enhanced technical and operational support to Member States.

Stronger role for the Agency on return by establishing a Return Office within the Agency, which should provide Member States with all necessary operational reinforcement to effectively return illegally staying third country nationals. The Agency will coordinate and organise return operations and return interventions from one or more Member States, and promote their organisation on its own initiative to reinforce the return system of the Member States which are subject to particular pressure. The Agency will need to have at its disposal pools of forced return monitors, forced return escorts and return specialists to be made available by Member States, forming European Return Intervention Teams to be deployed in the Member States.

Participation by the Agency in the management of research and innovation activities relevant for the control of external borders, including the use of advanced surveillance technology such as remotely piloted aircraft systems and develop pilot projects regarding matters covered by this Regulation.

European cooperation on coast guard functions by developing cross-sectoral cooperation among the European Border and Coast Guard Agency, the European Fisheries Control Agency and the European Maritime Safety Agency to improve synergies between those agencies, in order to provide more efficient and cost-effective multipurpose services to national authorities carrying out coast guard functions.

Increased cooperation with third countries by coordinating operational cooperation between Member States and third countries in border management, including the coordination of joint operations, and by deploying liaison officers to third countries, as well as by cooperating with the authorities of third countries on return, including as regards the acquisition of travel documents.

Strengthen the mandate of the Agency to process personal data by also allowing for the processing of personal data in the organisation and coordination of joint operations, pilot projects, rapid border interventions, return operations, return interventions and in the framework of the migration management support teams, as well as in the exchange of information with Member States, the European Asylum Support Office, Europol, Eurojust or other Union Agencies.

Guaranteeing the protection of fundamental rights by setting up a complaint mechanism to handle complaints concerning possible violations of fundamental rights in the course of activities carried out by the European Border and Coast Guard Agency. The complaint mechanism is an administrative mechanism since the Agency cannot itself investigate allegations of violations of fundamental rights by members of the European Border and Coast Guard Teams.

1.4.4.Indicators of results and impact

Specify the indicators for monitoring implementation of the proposal/initiative.

-

number, duration and effectiveness of joint operations, rapid interventions and pilot projects coordinated by the Agency in relation to external borders;

-

number of irregular migrants apprehended per type of border (air, sea, land);

-

number of rapid interventions financed from the Agency's operational reserve

-

effective implementation of the code of conduct for border guards;

-

number of incidents, products and permanent services provided by EFCA and EMSA to the Agency, leading to an enhanced maritime situational awareness for border guards and national authorities carrying out coast guard functions;

-

Number of multipurpose operations to support coast guard functions (in cooperation with EMSA and EFCA)

-

number of return operations coordinated by the Agency;

-

numbers of persons returned under the operations and the interventions organised and conducted by the Agency;

-

effective implementation of the code of conduct on return operations;

-

number and frequency of risk analysis reports delivered by the Agency;

-

quality and efficiency of tailored risk analysis reports;

-

number and vulnerability assessments delivered by the Agency each year

-

number or training modules and numbers of trainees;

-

number of training courses delivered;

-

number of Erasmus type exchanges of border guards;

-

number of assets experts registered in the Agency's pools

-

number of own assets purchased/leased by the Agency

-

effective management of resources and personnel and effect measurement via the Frontex Situation Centre;

-

quantity and quality of data, information and intelligence exchanged in close-to-real time via Eurosur communication network, the Common Pre-frontier Intelligence Picture and the European Situational Picture;

-

use of data fusion combined with technological capabilities for detecting and tracking cross-border movements as well as cross-sectoral information exchange with other actors by providing the common application of surveillance tools at EU level and environmental information (Eurosur fusion services).

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user satisfaction of the activities of the Agency.

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number of liaison officers posted in third countries

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number of liaison officers posted in Member States

The following horizontal indicators have an impact on the overall management of the Agency:

-

implementation and the correct functioning of the European Border and Coast Guard Teams;

-

management and completeness of the technical equipment pool;

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identification, prioritisation and impact of the working arrangements with third countries in full respect of the EU external policy;

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flexibility to implement recommendations from the Management Board, other stakeholders and independent evaluations. […]

1.5.Grounds for the proposal/initiative

1.5.1.Requirements to be met in the short or long term

In the short run, the European Border and Coast Guard Agency is expected to continue conducting the Frontex's core activities in relation to the management of the external borders and returns. The Frontex Agency’s budgets for 2015 and 2016 have been reinforced in 2015 in order to enable it to address the migratory crisis, in particular by tripling the financial resources for joint operations Poseidon and Triton, extending the Agency’s support to the Member States in the area of returns and giving to necessary resources to implement hotspots. The final EU subsidy for 2016 as proposed by the Commission is EUR 238 686 000.

It is necessary that the Agency continues with its work in external border management at the same level of intensity, including its regular and important contribution to search and rescue missions and in the area of return. The new tasks proposed in the Regulation will enhance the Agency's capabilities to suppport the Member States in those areas of intervention. In that context, it is essential that in the future the level of the 2016 subsidy is maintained as the basis for the annual budget of the European Border and Coast Guard Agency as of 2017 in order to:

-

to continue with the scaled up operational activities within Joint Operations at sea, in particular Triton and Poseidon, with the reinforced number of assets and extended the territorial scope of those operations, thus allowing to increase the search and rescue possibilities within the mandate of the Agency;

-

to continue the Agency's participation in the Migration Management Support Teams working in 'hotspot' areas, where the EBA and other relevant Agencies will work on the ground with frontline Member States, by providing support to those Member States for screening, registration and fingerprinting as well as playing a particularly active role with regard to return operations and dismantling of smuggling networks;

-

to further enhance the Agency's role in the area of returns in assisting Member States in return operations and other relevant activities within the new mandate, in particular through the creation of a dedicated Return Office enabling the Agency to scale up its support to Member States in order, inter alia, to facilitate, organise and fund return operations;

–

to further reinforce the cooperation with the other Home Affairs agencies, in particular EASO, Europol and EU-Lisa

–

to further enhance the Agency's important role on migrant smuggling in general as well as the contribution to the implementation of the EU Action Plan against smuggling

However, this proposal substantially expands upon the ability of the Agency to respond effectively to present or future threats at the external borders by proactively supporting the actions of Member States in the implementation of appropriate measures, in particular in cases of specific and disproportionate pressures at the external borders.

In the medium term, the Agency's structure, capabilities, tasks will be strengthened through this Regulation. For the Agency to adequately address its new tasks, in 2017 an additional amount will need to be added to the Agency’s EU subsidy on the top of the amount foreseen for 2016. In particular, the additional finacial resources shall enable the Agency:

-

to establish the operational reserve allowing to finance the deployment of rapid border interventions and return support interventions. The financial operational reserve should amount to at least to 4% of the allocation foreseen for the operational activities and shall be maintained throughout the year. At least an amount of EUR 10 000 000 should be added to the Agency's subsidy to ensure a possibility of launching such interventions in line with the timeframe foreseen in the Regulation.

-

to acquire, maintain and lease its own equipment. In this regard, additional amount of EUR 10 000 000 should be added to the EU subsidy to enable the Agency to finance in the first place the purchase of small and medium size operational equipment (ie. Eurodac devices). The Agency's own equipment should complement a pool of technical equipment provided by the Member States, in particular the means of transport and operating equipment purchased by Member States under the Specific Actions of the Internal Security Fund.

-

to carry out the new takes related to Agency's cooperation with the European Fisheries Control Agency and the European Maritime Safety Agency to support "Coast Guard Functions". Details of this cooperation will be clarified in a dedicated pilot project in 2016. However, an amount of EUR 5 000 000 is needed in order to enable the Agency to efficiently coordinate with EMSA and EFCA with regard to common provision of services, information, equipment and training in the context of coast guard functions as well as to extend joint operations at sea borders to become multipurpose operations covering other coast guard functions.

-

to reinforce the Agency's cooperation with third countries including and the involvement of the Agency's in operational activities with neighbouring countries, technical assistance projects, cooperation on return matters , including on the acquisition of travel documents. In this regard, an amount of EUR 5 000 000 should be added to the Agency's budget annually. This amount will enable the Agency to proactively cooperate with third countries without prejudices to the Agency benefiting from any Union funding in accordance with the provisions of the relevant instruments supporting the external relations policy of the Union.

-

to increase the number of Agency's liaison officers in third countries. In order to support the deployment of 10 additional liaison officers, in addition to the staff costs, the Agency's budget should be top up with EUR 1 000 000 annually to cover costs related to office, communication, logistical and technical support. Moreover, additional EUR 1 000 000 in 2017 should be foreseen in relation to the installation costs.

-

to support the establishment of the complaint mechanism and streamlining other fundamental rights related activities an amount of EUR 500 000 should be added annually to the agency's budget.

In addition to the financial resources, additional 602 staff members are considered necessary in order to enable the Agency to fulfil the new tasks including 329 establishment plan posts and 273 external staff. The precise needs for human resources are defined in section 3.2.3.

In the short and medium term, the activities of the Agency will contribute to the achievements of the goals of the European Agenda on Migration and the European Agenda on Security.

1.5.2.Added value of EU involvement

The objective of this proposal is to ensure a European integrated border management of the EU’s external borders, with a view to managing migration effectively and ensuring a high level of security within the Union, while safeguarding the free movement of persons therein. In an area without internal borders, irregular immigration through the external borders of one Member State affects all other Member States within the Schengen area. An area without internal borders is only sustainable if the external borders are effectively secured and protected.

1.5.3.Lessons learned from similar experiences in the past

The Frontex Agency was set up in 2004 and became operational in 2005. As requested by the Hague programme, the Commission adopted on 13 February 2008 a Communication on the evaluation and future development of the Frontex Agency (COM(2008) 67 final).

The Communication issued recommendations for the short to medium term and launched ideas for the future development of the Agency in the longer term. For the longer term perspective the crucial role of Frontex in the development of the European Union’s integrated border management system was underlined.

In conclusion the Commission recommended a number of improvements for how the Agency operates within its mandate and that in the medium-term the mandate should be revised.

In addition to the abovementioned Commission Report on the evaluation and future development of the Frontex Agency an independent evaluation took place during 2008. That evaluation contracted by the Frontex Management Board as requested by Article 33 of the Frontex Regulation, provided additional points of view and factual elements on the working practices of the Agency. It also issued a series of recommendations to the Frontex Management Board.

Against this background, the Agency’s mandate was amended in 2011 to enable it to respond to the new challenges.

Despite the improvements introduced by the 2011 amendment, following the clear political guidance provided by the European Council in the course of 2015 on the role of the Frontex Agency in addressing the increasing migratory pressures and the external evaluation of the Frontex Agency in 2014/2015, the further revamping of the Agency's mandate is needed. The present proposal serves is presented accordingly.

In preparation of this proposal, the Commission has relied upon the discussions that have been regularly taking place in the European Council and in the Council of Ministers, as well as in the European Parliament on border management and the measures needed to address the migratory crisis. The future of border management and, in particular, the reinforcement of the Frontex Agency has recently been the subject of discussion in the Council of Ministers meeting of 8 October 2015. This was followed by a meeting of the European Council on 15 October 2015, which in its orientations on the future of border management, called for the strengthening of the external borders of the European Union by, amongst others, working towards the establishment of an integrated management system for external borders and by enhancing the mandate of Frontex.

In 2014, the Commission had launched a Study on the feasibility of the creation of a European System of Border Guards to control the external borders of the Union, the results of which were taken into account in the preparation of this proposal.

The Commission has made sure to also take into account the views of relevant stakeholders by closely considering the results of the external evaluation of the Frontex Agency. This external evaluation, which is based on Article 33 of Regulation (EU) 2007/2004, was carried out between July 2014 and June 2015, and covers the period from July 2008 to July 2014. The final report was discussed in the Management Board of Frontex on 10 September 2015, and the Management Board has issued recommendations regarding possible modifications to the founding Regulation of Frontex. This proposal reflects the majority of recommendations made by decision of the Management Board on 28 October 2015.

A cooperation of the Frontex Agency with EMSA and EFCA which, however, is limited to border surveillance, has been established in the framework of the European Border Surveillance System (Eurosur). This cooperation can now be extended from border surveillance to all coast guard functions, also taking into account the testing of multipurpose missions in selected Frontex-coordinated joint operations (e.g. Indalo).

1.5.4.Compatibility and possible synergy with other appropriate instruments

This draft Regulation responds to the calls of the European Parliament and the European Council to effectively manage the external borders of the European Union. Clear orientations were set out by the European Council in October 2015 to strengthen the external borders of the European Union namely by working towards the establishment of an integrated management system for the external borders and by enhancing the mandate of Frontex in the context of discussions over the development of a European Border and Coast Guard System, including as regards the deployment of Rapid Border Intervention Teams in cases where Schengen evaluations or risk analysis demonstrate the need for robust and prompt action, in cooperation with the Member State concerned. The European Council also considered that the mandate of Frontex on return should be expanded to include the right to organise joint return operations on its own initiative, and enhance its role regarding the acquisition of travel documents for returnees.

This proposal builds on the existing border management policy, including the Frontex Agency but brings it to a qualitatively different level. Frontex was established by Council Regulation (EC) No 2007/2004 which was subsequently amended by Regulation (EC) 863/2007, which introduced the rapid border interventions, and by Regulation (EU) No 1168/2011, which highlighted the responsibility of Frontex as regards the protection of fundamental rights. This proposal substantially expands upon the ability of the Agency to respond effectively to present or future threats at the external borders by proactively reinforcing, assessing, and coordinating the actions of Member States in the implementation of appropriate measures at the external borders.

The proposal complements existing legislation by following a similar approach as the one on the European Border Surveillance System (Eurosur) in further fostering a spirit of cooperation, information exchange and the coordination of efforts between the Member States and the European Border and Coast Guard Agency, as well as among national authorities and Union Agencies, with concrete and binding commitments. It also builds upon Regulation (EU) No 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex. The proposal also develops and reinforces the rapid border interventions.

The proposal, and in particular the establishment of a vulnerability assessment, complements the Schengen evaluation mechanism established by Regulation (EU) No 1053/2013. The Schengen evaluation mechanism is intended to maintain mutual trust among Member States. It consists of a technical and legal assessment intended to verify the correct application of the Schengen acquis and the necessary conditions for the lifting of internal border control. In cases where it results from a Schengen evaluation that there are serious deficiencies at the external border, the Commission may recommend initiating the deployment of European Border and Coast Guard Teams or presenting strategic plans to the Agency for its opinion. The present proposal is also without prejudice to the measures which may be adopted under Article 19a and 26 of the Schengen Borders Code.

This proposal is closely linked and complements other Union policies, namely:

(a) The Common European Asylum System with the setting up of migration management support teams at hotspot areas which is closely linked to the relocation of persons in clear need of international protection;

(b) Internal security provided that in the European Agenda on Security, the Commission considers that common high standards of border management are considered to be essential to prevent cross-border crime and terrorism; this proposal further contributes to achieving a high level of internal security by enabling the Agency to cover aspects of cross-border crime and terrorism in its risk analysis, by enabling it to process personal data of persons suspected to be involved in acts of terrorism and by providing that the Agency cooperates with other Union Agencies and international organisations on the prevention of terrorism. As regards access to national databases and European databases, the draft Regulation provides for an obligation for Member States to allow access to members of the European Border and Coast Guard Teams to national and European databases.

(c) Maritime security and safety, as well as maritime surveillance with the establishment of European cooperation on coast guard functions among the European Border and Coast Guard Agency, the European Fisheries Control Agency and the European Maritime Safety Agency;

(d) External relations policy of the Union given that the European Border and Coast Guard Agency should facilitate and encourage operational cooperation between Member States and third countries, including by coordinating such operational cooperation in the field of management of external borders and by deploying liaison officers to third countries, as well as by cooperating with the authorities of third countries on return, including as regards the acquisition of travel documents..

1.6.Duration and financial impact

◻ Proposal/initiative of limited duration

–

◻ Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY

–

◻ Financial impact from YYYY to YYYY
☑ Proposal/initiative of unlimited duration

–

Implementation with a start-up period from 2017,

–

followed by full-scale operation.

1.7.Management modes planned

◻ Direct management by the Commission through

–

◻ executive agencies
◻ Shared management with the Member States

☑ Indirect management by entrusting budget implementation tasks to:

◻ international organisations and their agencies (to be specified);

◻the EIB and the European Investment Fund;

☑ bodies referred to in Articles 208 and 209;

◻ public law bodies;

◻ bodies governed by private law with a public service mission to the extent that they provide adequate financial guarantees;

◻ bodies governed by the private law of a Member State that are entrusted with the implementation of a public-private partnership and that provide adequate financial guarantees;

◻ persons entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU, and identified in the relevant basic act.

Comments

[…]

2.

MANAGEMENT MEASURES

2.1.Monitoring and reporting rules

Specify frequency and conditions.

The Agency is subject to regular monitoring and reporting requirments. The Management Board of the Agency shall adopt each year a consolidated annual activity of the Agency for the previous year and forward it by 1 July at the latest to the European Parliament, the Council, the Commission, the European Economic and Social Committee and the Court of Auditors. This report shall be made public. Every three years, the Commission shall conduct an evaluation in accordance with the evaluation criteria of the Commission guidelines to assess particularly the impact, effectiveness and efficiency of the Agency’s performance and its working practices in relation to its objectives, mandate and tasks. The evaluation shall, in particular, address the possible need to modify the mandate of the Agency, and the financial implications of any such modification

On the occasion of every second evaluation, there shall also be an assessment of the results achieved by the Agency having regard to its objectives, mandate and tasks. If, on the basis of its evaluation, the Commission considers that the continuation of the European Border and Coast Guard Agency is no longer justified with regard to its assigned objectives, mandate and tasks, it may propose that this Regulation be amended accordingly or repealed.

2.2.Management and control system

2.2.1.Risks identified

The high migratory pressure on the external borders of the European Union requires a creation of the European Borders Guard composed of the Member States's authorities and the European Border and Coast Guard Agency. An extension of the competences of the European Border and Coast Guard Agency is also necessary as compared with the mandate of the existing Frontex Agency.

Reinforcement of the Agency's staffing and financial resources is necessary in order to comply with the extended mandate and requirements laid down by the proposed Regulation.

2.2.2.Control methods envisaged

The Agency’s accounts will be submitted for the approval of the Court of Auditors, and subject to the discharge procedure. The Commission’s Internal Audit Service will carry out audits in cooperation with the Agency's internal auditor.

2.3.Measures to prevent fraud and irregularities

Specify existing or envisaged prevention and protection measures.

For the Agency

The Executive Directive will implement the Agency’s budget. He/she will each year submit to the Commission, the Management Board and the Court of Auditors the detailed accounts of all revenue and expenditure from the previous financial year. In addition, the Commission’s Internal Audit Service will assist in the management of the Agency’s financial operations by controlling risks, monitoring compliance by providing an independent opinion on the quality of management and control systems and making recommendations in order to improve the efficiency and the effectiveness of operations and to ensure economy in the use of the Agency’s resources.

The Agency will adopt its Financial Regulation following Regulation No 1271/2013, after having received the agreement of the Commission and the Court of Auditors. The Agency will put in place an internal audit system similar to that introduced by the Commission in the framework of its own restructuring.

Cooperation with OLAF

The staff subject to the Commission’s Staff Regulations will cooperate with OLAF to combat fraud.

For the Court of Auditors

The Court of Auditors will examine the accounts in accordance with Article 248 of the Treaty and publish an annual report on the Agency’s activities.

3.

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE

3.1.Headings of the multiannual financial framework and expenditure budget line(s) affected

•

Existing budget lines
In order of multiannual financial framework headings and budget lines.

Heading of multiannual financial framework

Budget line

Type of

expenditure

Contribution

Number

[Heading 3]

Diff./Non-diff. ⁶⁰

from EFTA countries ⁶¹

from candidate countries ⁶²

from third countries

within the meaning of Article 21(2)(b) of the Financial Regulation

18 03 02 - European Agency for the Management of Operational Cooperation at the External Borders of the Members States of the European Union - FRONTEX

Diff./Non-diff.

YES*

•

*Frontex receives contributions from the countries associated with the Schengen Agreement (NO, IS, CH, LI)

•

New budget lines requested

•

There is no need to request a new budget line but budget line 18 03 02 should be renamed accordingly
In order of multiannual financial framework headings and budget lines.

Heading of multiannual financial framework

Budget line

Type of

expenditure

Contribution

Number

[Heading………………………………………]

Diff./non-diff.

from EFTA countries

from candidate countries

from third countries

within the meaning of Article 21(2)(b) of the Financial Regulation

[…]

[XX.YY.YY.YY]

[…]

YES/NO

3.2.Estimated impact on expenditure

3.2.1.Summary of estimated impact on expenditure

EUR million (to three decimal places)

Heading of multiannual financial

framework

Security and citizenship

[Body]: European Border and Coast Guard Agency			Year 2017 ⁶³	Year 2018	Year 2019	Year 2020	TOTAL
Title 1:	Commitments	(1)
	Payments	(2)
Title 2:	Commitments	(1a)
	Payments	(2a)
Title 3:	Commitments	(3a)
	Payments	(3b)
TOTAL appropriations for the European Border and Coast Guard Agency	Commitments	=1+1a +3a	281,267	298,286	310,289	322,227	1,212,069
	Payments	=2+2a +3b	281,267	298,286	310,289	322,227	1,212,069

Heading of multiannual financial

framework

‘Administrative expenditure’

EUR million (to three decimal places)

		Year 2017	Year 2018	Year 2019	Year 2020	TOTAL
DG: Migration and Home Affairs
• Human Resources		0,528	0,528	0,528	0,528	2,112
• Other administrative expenditure		0,030	0,030	0,030	0,030	0,120
TOTAL DG Migration and Home Affairs	Appropriations	0,558	0,558	0,558	0,558	2,232

TOTAL appropriations

under HEADING 5

of the multiannual financial framework

(Total commitments = Total payments)

0,558

2,232

EUR million (to three decimal places)

Year

2017

Year

2018

Year

2019

Year

2020

TOTAL

TOTAL appropriations

under HEADINGS 1 to 5

of the multiannual financial framework

Commitments

281,267,5

298,286,5

310,289,5

322,227,5

1,212,071

Payments

281,267,5

298,286,5

310,289,5

322,227,5

1,212,071

3.2.2.Estimated impact on the European Border and Coast Guard Agency's appropriations

–

◻ The proposal/initiative does not require the use of operational appropriations

–

☑ The proposal/initiative requires the use of operational appropriations ⁶⁴ , as explained below:

Commitment appropriations in EUR million (to three decimal places)

Indicate objectives and outputs		Year		Year		Year		Year		TOTAL
		2017		2018		2019		2020
	Average cost	Number	Cost	Number	Cost	Number	Cost	Number	Cost	Total number	Total cost

SPECIFIC OBJECTIVE NO 1 "SUPPORT IN EXTERNAL BORDER MANAGEMENT"
Number of joint operations at sea borders	23,304	5	115,262	5	116,340	5	117,075	5	117,405	20	466,083
Number of joint operations at land borders	3,656	5	17,053	5	17,890	5	18,777	5	19,407	20	73,126
Number of joint operations at air borders	1,032	5	4,472	5	4,970	5	5,432	5	5,762	20	20,635
Operational reserve for rapid interventions	10,000	1	10,000	1	10,000	1	10,000	1	10,000	4	40,000
Subtotal for specific objective N°1			146,787		149,200		151,284		152,574		599,844
SPECIFIC OBJECTIVE NO 2 "Support to coastguard functions"
Coordination with EMSA and EFCA with regard to common provision of services, information, equipment and training in the context of coastguard functions	3,126	1	1,556	1	2,547	1	3,608	1	4,794	4	12,505
Number of joint operation at sea borders extended to be mulitipurpose to cover other coastguard functions	1,055	5	4,249	5	4,933	5	5,698	5	6,226	20	21,106
Subtotal for specific objective N°2			5,805		7,480		9,306		11,020		33,611
SPECIFIC OBJECTIVE NO 3 "RETURN"
Number of joint operations organised/coordinated	0,414	195	75,248	195	78,851	195	82,152	195	86,898	780	323,151
Subtotal for specific objective N°3			75,248		78,851		82,152		86,898		323,151
SPECIFIC OBJECTIVE NO 4 "RISK ANALYSES & VULNERABILITY ASSESSMENTS"
Number of risk analyses/ vulnerability assessments delivered	0,191	60	9,133	60	11,081	60	12,215	60	13,349	240	45,777
Subtotal for specific objective N°4			9,133		11,081		12,215		13,349		45,777
SPECIFIC OBJECTIVE NO 5 "TRAININGS"
Number of trainings delivered	0,039	200	7,555	200	7,555	200	7,851	200	8,373	800	31,334
Subtotal for specific objective N°5			7,555		7,555		7,851		8,373		31,334
SPECIFIC OBJECTIVE NO 6 "Management of Pooled resources and R&D"
Management of Pooled resources	6,151	1	4,072	1	5,910	1	7,014	1	7,606	4	24,604
Number of the own equipment purchased leased ( small and medium size assets)	0,112	100	10,688	100	11,376	100	11,376	100	11,376	400	44,816
R&D, including the increased capacities to manage research projects	3,541	1	3,062	1	3,524	1	3,788	1	3,788	4	14,162
Subtotal for specific objective N°6			17,823		20,811		22,179		22,771		83,582
SPECIFIC OBJECTIVE NO 7 "EUROSUR and situational picture"
Operation of Eurosur	16,164	1	15,137	1	15,815	1	16,555	1	17,147	4	64,655
Operation of Agency's Situation Center in 24h/7d mode	3,036	1	0,858	1	2,376	1	3,696	1	5,214	4	12,144
Provision of situational picture	4,655	1	4,655	1	4,655	1	4,655	1	4,655	4	18,619
Subtotal for specific objective N°7			20,650		22,846		24,906		27,016		95,418
SPECIFIC OBJECTIVE NO 8 "External relations and Fundamental Rights"
External and public relations	4,666	1	4,437	1	4,690	1	4,768	1	4,768	4	18,662
Reinforced cooperation with TCs including possible joint operations with neighbouring countries, technical assistance projects, and cooperation in return matters	6,090	1	5,370	1	5,857	1	6,270	1	6,862	4	24,359
Number of liaison officers in Third countries (staff costs +operational costs)	0,281	10	2,835	10	2,748	10	2,826	10	2,826	40	11,235
Number of Liaison officers in MS and SAC	0,503	30	2,155	30	4,310	30	4,310	30	4,310	30	15,085
Fundamental rights, including a complain mechanism	1,844	1	1,423	1	1,897	1	2,029	1	2,029	4	7,377
Subtotal for specific objective N°8			16,220		19,502		20,203		20,795		76,719
TOTAL COST			299,220		317,325		330,095		342,795		1.289,435

3.2.3.Estimated impact on the European Border and Coast Guard Agency's human resources

3.2.3.1.Summary

–

◻ The proposal/initiative does not require the use of appropriations of an administrative nature

–

☑ The proposal/initiative requires the use of appropriations of an administrative nature, as explained below:

Human resources	2016	2017	2018	2019	2020
COM(2013)519 baseline	149	146	145	145	145
amendments via budgetary procedure 2016 (Amending Letter 2/2016)	60	60	60	60	60
additional posts for migration crisis (Triton, Poseidon) in Draft Budget 2016	16	16	16	16	16
modified baseline	225	222	221	221	221
requested additional posts		130	197	263	329
Establishment plan posts (in headcounts)	225	352	418	484	550
- Of which AD	157	262	311	377	443
- Of which AST	68	90	107	107	107
External personnel (FTE)	177	288	342	396	450
- Of which contract agents	91	147	174	202	230
- Of which Seconded National Experts (SNE)	86	141	168	194	220
Total staff	402	640	760	880	1000

EUR million (to three decimal places)

The proposal follows the 5% staff reduction reform (2013-2017) by reducing the Agency's staff gradually at a rate of 1% for the establishment plan for 2017 (a similar reduction rate was followed in the years 2013-2016).

In the course of 2015, the Agency's establishment plan for 2016 was reinforced with additional 76 posts to enable it to address the migratory crisis in the most effective manner. However, in order to implement its new tasks provided for in the Regulation, the Agency will need 329 additional posts by 2020, as well as 273 external staff. In particular, the following reinforcements of posts are needed:

•

117 TA (107 AD, 10 AST) posts to cover the operation of the Return Office and to manage the increased number of return activities implemented by the Agency, including sufficient number of coordinating officers for return operations and necessary staff in charge of aircraft chartering.

•

29 TA (27 AD, 2 AST) posts to ensure the necessary number of coordinating officers for joint operations, rapid interventions and hotspots at the borders

•

29 TA (27 AD, 2 AST) posts to establish a monitoring and risk analysis centre as well as to reinforce the Agency's capacity to perform "vulnerability assessments" and ensure the necessary follow up

•

6 TA (3 AD, 3 AST) posts to support the activities of the Fundamental Rights Officer, given his/her increased workload in relation to return monitoring and the introduction of a new complain mechanism

•

7 TA (4 AD and 3 AST) posts to enable the Agency to participate actively in the management of research and innovation activities relevant for the control of external borders, including the use of advanced surveillance technology such as remotely piloted aircraft systems

•

46 TA (41 AD, 5 AST) posts to ensure the 24h/7d operation of the Agency Situation Center providing the real time monitoring and reporting on the migratory flows including weekends and public holidays

•

10 TA (9 AD, 1 AST) posts enabling the Agency to deploy liaison officers to relevant third countries and further reinforcing the cooperation with the most relevant third countries

•

30 TA (30 AD) posts enabling the Agency to deploy liaison officers to Member States

•

33 TA (31 AD, 2 AST) posts to enable the Agency to perform the new takes related to its role for "Coast Guard Functions" to coordinate multipurpose missions and provide information services and training

•

10 TA (5 AD, 5 AST) posts to allow the Agency to effectively manage the existing pools (EBGTs, technical pool) as well as setting up new pools (3 return related pools)

•

6 TA (3 AD, 3 AST) posts to support the acquisition and leasing of Agency's own equipment as well as ensuring the maintenance of the Agency's own equipment.

•

6 TA (3 AD, 3 AST) to reinforce the Agency's administrative capacity to manage the increased budget and the implementation of new tasks in line with sound financial management

It is proposed that the additional posts will gradually become available so as to bring the total number of posts to 550 in 2020.

Human resources	2016	2017	2018	2019	2020
COM(2013)519 baseline	149	146	145	145	145
amendments via budgetary procedure 2016 (Amending Letter 2/2016)	60	60	60	60	60
additional posts for migration crisis (Triton, Poseidon) in Draft Budget 2016	16	16	16	16	16
modified baseline	225	222	221	221	221
requested additional posts		130	197	263	329
Establishment plan posts (in headcounts)	225	352	418	484	550
- Of which AD	157	262	311	377	443
- Of which AST	68	90	107	107	107
External personnel (FTE)	177	288	342	396	450
- Of which contract agents	91	147	174	202	230
- Of which Seconded National Experts (SNE)	86	141	168	194	220
Total staff	402	640	760	880	1000
EUR million (to three decimal places)

The proposal follows the 5% staff reduction reform (2013-2017) by reducing the Agency's posts gradually at a rate of 1% for the establishment plan for 2017 (a similar reduction rate was followed in the years 2013-2016).

In the course of 2015, the Agency's establishment plan for 2016 was reinforced with additional 76 posts to enable it to address the migratory crisis in the most effective manner. However, in order to implement its new tasks provided for in the Regulation, the Agency will need 329 additional posts by 2020 to be added to the establishment plan (TA posts). In particular, the following reinforcements of posts are needed:

•

117 TA (107 AD, 10 AST) posts to cover the operation of the Return Office and to manage the increased number of return activities implemented by the Agency, including sufficient number of coordinating officers for return operations and necessary staff in charge of aircraft chartering.

•

29 TA (27 AD, 2 AST) posts to ensure the necessary number of coordinating officers for joint operations, rapid interventions and hotspots at the borders

•

29 TA (27 AD, 2 AST) posts to establish a monitoring and risk analysis centre as well as to reinforce the Agency's capacity to perform vulnerability assessments and ensure the necessary follow up

•

6 TA (3 AD, 3 AST) posts to support the activities of the Fundamental Rights Officer, given his/her increased workload in relation to return monitoring and the introduction of a new complain mechanism

•

7 TA (4 AD and 3 AST) posts to enable the Agency to participate actively in the management of research and innovation activities relevant for the control of external borders, including the use of advanced surveillance technology such as remotely piloted aircraft systems

•

46 TA (41 AD, 5 AST) posts to ensure the 24h/7d operation of the Agency Situation Center providing the real time monitoring and reporting on the migratory flows including weekends and public holidays

•

10 TA (9 AD, 1 AST) posts enabling the Agency to deploy liaison officers to relevant third countries and further reinforcing the cooperation with the most relevant third countries

•

30 TA (30 AD) posts enabling the Agency to deploy liaison officers to Member States

•

33 TA (31 AD, 2 AST) posts to enable the Agency to perform the new takes related to its role for "Coast Guard Functions" to coordinate multipurpose missions and provide information services and training

•

10 TA (5 AD, 5 AST) posts to allow the Agency to effectively manage the existing pools (EBGTs, technical pool) as well as setting up new pools (3 return related pools)

•

6 TA (3 AD, 3 AST) posts to support the acquisition and leasing of Agency's own equipment as well as ensuring the maintenance of the Agency's own equipment.

•

6 TA (1 AD, 5 AST) to reinforce the Agency's administrative capacity to manage the increased budget and the implementation of new tasks in line with sound financial management

It is proposed that the additional posts will gradually become available so as to bring the total number of TA posts to 550 in 2020

In addition, in order to implement its new tasks provided for in the Regulation, the Agency will need 273 additional external staff (contractual agents and seconded national experts) which will gradually become available by 2020, so as to bring the total number of external staff to 450 by 2020.

The Agency should thus reach 1000 staff members of all categories (TA, CA and SNE) by 2020.

3.2.3.2.Estimated requirements of human resources for the parent DG

–

◻ The proposal/initiative does not require the use of human resources.

–

☑ The proposal/initiative requires the use of human resources, as explained below:

Estimate to be expressed in full amounts (or at most to one decimal place)

		2017	2018	2019	2020	Enter as many years as necessary to show the duration of the impact (see point 1.6)
•Establishment plan posts (officials and temporary staff)
XX 01 01 01 (Headquarters and Commission’s Representation Offices)		4	4	4	4
XX 01 01 02 (Delegations)
XX 01 05 01 (Indirect research)
10 01 05 01 (Direct research)

• External staff (in Full Time Equivalent unit: FTE) ⁶⁵
XX 01 02 01 (AC, END, INT from the ‘global envelope’)
XX 01 02 02 (AC, AL, END, INT and JED in the Delegations)
XX 01 04 yy ⁶⁶	- at Headquarters ⁶⁷
	- in Delegations
XX 01 05 02 (AC, END, INT – Indirect research)
10 01 05 02 (AC, END, INT – Direct research)
Other budget lines (specify)
TOTAL

XX is the policy area or budget title concerned.

The human resources required will be met by staff from the DG who are already assigned to management of the action and/or have been redeployed within the DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of budgetary constraints.

Description of tasks to be carried out:

Officials and temporary staff	Represent the Commission in the Management Board of the Agency. Draw up Commission opinion on the annual work programme and monitor its implementation. Supervise the preparation of the Agency's budget and monitor implementation of the budget. Assist the Agency in developing its activities in line with EU policies including by participating in experts meetings.
External staff

Description of the calculation of cost for FTE units should be included in the Annex V, section 3.

3.2.4.Compatibility with the current multiannual financial framework

–

☑ The proposal/initiative is compatible the current multiannual financial framework but may entail the use of special instruments as defined in the MFF-regulation.

–

◻ the proposal/initiative will entail reprogramming of the relevant heading in the multiannual financial framework.
Explain what reprogramming is required, specifying the budget lines concerned and the corresponding amounts.

The Agency’s budgets for 2015 and 2016 have been considerably reinforced in 2015 in order to enable it to address the migratory crisis, in particular by tripling the financial resources for joint operations Poseidon and Triton, extending the Agency’s support to the Member States in the area of returns and giving to necessary resources to implement hotspots. The final EU subsidy for 2016 as proposed by the Commission is EUR 238 686 000.

Given the necessity that the Agency continues with its work in external border management at the same level of intensity, including as regards search and rescue and in the area of return, it is essential that in the future the level of the 2016 subsidy is maintained as the basis for the annual budget of the European Border and Coast Guard Agency.

Furthermore, the implementation of new tasks of the Agency will require additional financial and human resources:

*The 2016 subsidy was increased by virtue of the 2016 EU budget as compared to Commission Communication ((2013)519 on the programming of human and financial resources for decentralised agencies 2014-2020 under which EUR 88,774 million. Was programmed.

** The total number of 225 includes all the additional posts authorised by the budgetary authority in 2015. According to Communication (2013)519, only 147 posts were initially authorised.

–

◻ The proposal/initiative requires application of the flexibility instrument or revision of the multiannual financial framework ⁶⁸ .
Explain what is required, specifying the headings and budget lines concerned and the corresponding amounts.

3.2.5.Third-party contributions

–

The proposal/initiative provides for the co-financing estimated below:

EUR million (to three decimal places)

Year

2017

Year

2018

Year

2019

Year

2020

Total

Contributions from Schengen Associated Countries ⁶⁹

17,953

19,040

19,806

20,568

77,366

TOTAL appropriations co-financed

17,953

19,040

19,806

20,568

77,366

3.3.Estimated impact on revenue

–

☑ The proposal/initiative has no financial impact on revenue.

–

◻ The proposal/initiative has the following financial impact:

–

◻ on own resources

–

◻ on miscellaneous revenue

EUR million (to three decimal places)

Budget revenue line:

Appropriations available for the current financial year

Impact of the proposal/initiative ⁷⁰

Year

N+1

Year

N+2

Year

N+3

Enter as many years as necessary to show the duration of the impact (see point 1.6)

Article ………….

For miscellaneous ‘assigned’ revenue, specify the budget expenditure lines affected.

[…]

Specify the method for calculating the impact on revenue.

[…]

(1)

COM(2015) 610 final.
(2)

Meeting of the European Council, Conclusions of 15 October 2015.
(3)

Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers (OJ L 199, 31.7.2007, p. 30).
(4)

Regulation (EU) No 1168/2011 of the European Parliament and of the Council of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 304, 22.11.2011, p. 1).
(5)

Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur) (OJ L 295, 6.11.2013, p. 11).
(6)

Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the 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 (OJ L 189, 27.6.2014, p. 93).
(7)

Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen (OJ L 295, 6.11.2013, p. 27).
(8)

Meeting of the Justice and Home Affairs Council, Conclusions of 8 and 9 October 2015.
(9)

Meeting of the European Council, Conclusions of 15 October 2015.
(10)

OJ C , , p. .
(11)

OJ C , , p. .
(12)

Meeting of the European Council, Conclusions of 25 and 26 June 2015.
(13)

Informal meeting of EU Heads of State or Government on migration, Statement of 23 September 2015.
(14)

Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 349, 25.11.2004, p. 1).
(15)

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in member states for returning illegally staying third-country nationals (OJ L 348, 21.12.2008, p. 98).
(16)

Council Regulation (EC) No 768/2005 of 26 April 2005 establishing a Community Fisheries Control Agency and amending Regulation (EEC) No 2847/93 establishing a control system applicable to the common fisheries policy (OJ L 128, 21.5.2005, p.1).
(17)

Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ L 208, 5.8.2002, p.1).
(18)

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
(19)

Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).
(20)

OJ L 136, 31.5.1999, p. 15.
(21)

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).
(22)

Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).
(23)

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).
(24)

Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350, 30.12.2008, p. 60).
(25)

OJ L 176, 10.7.1999, p. 36.
(26)

Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).
(27)

OJ L 188 of 20.7.2007, p. 19.
(28)

OJ L 53, 27.2.2008, p. 52.
(29)

Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European Community, 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 (OJ L 53, 27.2.2008, p. 1).
(30)

OJ L 160, 18.6.2011, p. 21.
(31)

Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, 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, relating to the abolition of checks at internal borders and movement of persons (OJ L 160, 18.6.2011, p. 19).
(32)

OJ L 243 of 16.9.2010, p. 4.
(33)

OJ L 131, 1.6.2000, p. 43.
(34)

OJ L 64, 7.3.2002, p. 20.
(35)

OJ C […]
(36)

Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers (OJ L 199, 31.7.2007, p. 30).
(37)

Council Decision 2005/267/EC of 16 March 2005 establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services (OJ L 83, 1.4.2005, p. 48).
(38)

Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1).
(39)

Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur) (OJ L 295, 6.11.2013, p. 11).
(40)

Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).
(41)

Council Decision 2008/381/EC of 14 May 2008 establishing a European Migration Network (OJ L 131, 21.5.2008, p. 7).
(42)

Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the 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 Members States of the European Union (OJ L 189, 27.6.2014, p. 93).
(43)

OJ L 131, 21.5.2008, p. 7.
(44)

OJ L 348, 21.12.2008, p. 98.
(45)

Regulation (EU) No 515/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa and repealing Decision No 574/2007/EC (OJ L 150, 20.5.2014, p. 143).
(46)

Council Decision 2001/264/EC of 19 March 2001 adopting the Council's security regulations (OJ L 101, 11.4.2001, p. 1).
(47)

Commission Decision 2015/444 (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information (OJ L 72, 17.3.2015, p. 53).
(48)

Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information (OJ L 72, 17.3.2015, p. 53).
(49)

Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network (OJ L 64, 2.3.2004, p. 1).
(50)

Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 357, 31.12.2002, p.72).
(51)

Regulation No 1 determining the languages to be used by the European Economic Community of 15 April 1958 (OJ 17, 6.10.58, p. 385, English special edition: Series I Chapter 1952-1958 p. 59).
(52)

Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).
(53)

Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298 of 26.10.2012).
(54)

OJ L 136, 31.5.1999, p. 1.
(55)

Council Regulation (EC, Euratom) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).
(56)

Council Decision 2005/267/EC of 16 March 2005 establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services (OJ L 83, 1.4.2005, p. 48).
(57)

ABM: activity-based management; ABB: activity-based budgeting.
(58)

As referred to in Article 54(2)(a) or (b) of the Financial Regulation.
(59)

For the sake of enhancing the role of the new mandate of the Agency and to present better the financial impact of the new tasks, "Support in returns" was presented as a separate specific objective n° 3. Tasks related to the "Management of Pooled resources" and "Research & Development" were merged under specific objective n° 6, "Eurosur" and "Situational Picture" were merged under specific objective n°7 whereas "External and Public Relations" and "Fundamental Rights" were presented jointly under specific objective n°8.
(60)

Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations.
(61)

EFTA: European Free Trade Association.
(62)

Candidate countries and, where applicable, potential candidate countries from the Western Balkans.
(63)

Year N is the year in which implementation of the proposal/initiative starts.
(64)

While the template relates operational appropriations, in case of agencies in order to present in comprehensive way the impact of the operational activities, it seems more appropriate to take into account to operational appropriations (Title 3) but also corresponding administrative credits (Title 1 and 2) proportionally allocated between different specific objectives in accordance with the ABM/ABB planning. The figures include both the EU subsidy and contributions from the Schengen Associated Countries.
(65)

AC = Contract Staff; AL = Local Staff; END = Seconded National Expert; INT = agency staff; JED = Junior Experts in Delegations.
(66)

Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines).
(67)

Mainly for the Structural Funds, the European Agricultural Fund for Rural Development (EAFRD) and the European Fisheries Fund (EFF).
(68)

See Articles 11 and 17 of Council Regulation (EU, Euratom) No 1311/2013 laying down the multiannual financial framework for the years 2014-2020.
(69)

The contribution of Schengen Associated countries is annually calculated by Frontex taking into account the size of the EU subsidy and GDP ratio for countries concerned. It equals approximately 6% of the total Agency's budget. The contribution is cashed in by the Agency.
(70)

As regards traditional own resources (customs duties, sugar levies), the amounts indicated must be net amounts, i.e. gross amounts after deduction of 25 % for collection costs.

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