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An analysis concerning the proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard

An analysis concerning the proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Council Joint Action no. 98/700/JHA, Regulation (EU) no. 1052/2013 of the European Parliament and of the Council and Regulation (EU) no. 2016/1624 of the European Parliament and of the Council

 

 

1. Introductory remarks

By virtue of a letter dated 12 September 2018, COM (2018) 631 final, 2018/0330 (COD), the European Commission issued a proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Council Joint Action no. 98/700/JHA, Regulation (EU) no. 1052/2013 of the European Parliament and of the Council and Regulation (EU) no. 2016/1624 of the European Parliament and of the Council (hereinafter: “Proposal of 2018”)[1].

In its Proposal of 2018, the Commission proposed that European Border and Coast standing corps is set up with up to 10,000 operational staff. In addition, the Commission proposed to provide financial support for equipment and training of the national component of the European Border and Coast Guard in Member States aiming at allowing them to step up their operational capacity, the reinforcement of existing tools and the development of EU wide information systems for borders, migration management and security [2]. The European Border and Coast Guard has existed since 2016 and the European Commission now proposes operational changes and expansion of the Guard’s mandate.

The proposal is being reviewed and examined as part of the ordinary legislative procedure. As a result, it has been submitted to national parliaments, the European Parliament as well as the Council. Currently, the proposal is in the first reading; the mode of proceeding is, however, slightly different from the “model” ordinary legislative procedure. Generally, the project should be first reviewed by the European Parliament which has the right to amend it and only then should it be examined by the Council (the institution comprising of member state ministers authorised to incur liabilities on behalf of their respective states)[3]. Sometimes, however, it is possible to deviate from the basic rules of procedure. That’s what happened with the Commission’s proposal of 2018 which was simultaneously examined by the Council and by the EU Parliament committees.

A position was agreed on with respect to the Commission’s proposal of 2018, submitted by the Council’s General Secretariat to the Committee of Permanent Representatives (COREPER)[4]. This position will serve as the basis for the negotiations with the European Parliament. At the same time, the European Parliament Committee on Civil Liberties, Justice and Home Affairs (hereinafter “LIBE”) has finished its works. The Commission has adopted 511 amendments proposed by the Commission and developed a draft resolution[5], which will be submitted to the European Parliament on 15 April 2019.[6] Nevertheless, taking into account the similarity of the key changes (mostly with respect to the wording of Article 43 of the proposed regulation) in the Commission’s proposal, as well as the support of the largest political groups of the European Parliament (European People’s Party and Progressive Alliance of Socialists and Democrats), the chances of returning to the original proposals of the Commission concerning the most controversial solutions (mostly, Article 43 of the proposed Regulation) should be considered as minimal.

Still, there are some unresolved issued with respect to which the Council and the Parliament have adopted conflicting positions. This includes such important matters as the number of operational staff in the European Border and Coast Guard for short- and long-term deployments (the target number is 10000, as proposed by all three bodies). This may delay and extend the whole procedure which will not be completed at the stage of the first reading.

Considering the above, the analysis presented below takes into account the original proposals submitted by the Commission as well as the amendments proposed by the Council and the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE).

 

2. History of Frontex and the European Border and Coast Guard and the present legal situation

At the moment operational cooperation undertaken by Member States to ensure efficient management of EU’s external borders is coordinated by the European Border and Coast Guard Agency (Frontex - originally known as the European Agency for the Management of Operational Cooperation at the External Borders), established by way of 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 (hereinafter: “Regulation 2007/2004”)[7], which was then repealed by Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No. 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No. 2007/2004 and Council Decision 2005/267/EC (hereinafter: “Regulation 2016/1624”)[8]. Regulation 2004 envisaged that Frontex will be a specialised expert body tasked with improving the coordination of operational cooperation between Member States in the field of external border management. In principle, however, the responsibility for the control and surveillance of external borders rested with the Member States, as expressly confirmed in both the Preamble (items 3-4) and in Article 1(2) of the Regulation.

The cooperation between Member States and Frontex was strengthened with the establishment of the European Border Surveillance System (EUROSUR). In accordance with Regulation (EU) No. 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (EUROSUR) (hereinafter: Regulation 2013)[9], EUROSUR is used for the exchange of information and for the cooperation in the field of border surveillance (see Article 4) for the purpose of detecting, preventing and combating illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants (see Article 1).

In response to the migration crisis of 2015[10], it was decided that changes were necessary in the way Frontex conducted its operations, as well as in the field of cooperation in external border management. Pursuant to Article 3 of the Regulation 2016/1624, Frontex 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. In the light of Regulation 2016/1624, the responsibility for the control and surveillance of external boundaries no longer lies with Member States only (as was envisaged in Regulation 2007/2004), since although these states still carry “primary responsibility”, Frontex implements integrated border management as a “shared responsibility” of national authorities and the Agency (see Article 5(1) of the Regulation 2016/1624). At the same time, the Preamble to Regulation 2016/1624 stipulates that: “The Agency should carry out its tasks without prejudice to the responsibilities of the Member States with regard to maintaining law and order and safeguarding internal security” (item 12);

“The Agency should carry out its tasks without prejudice to the competence of the Member States with regard to defence” (item 13); “The Agency should organise the appropriate technical and operational assistance to Member States (...). Such assistance should be without prejudice to the relevant national authorities' competence to initiate criminal investigations. (…)” (item 23) and that “The implementation of this Regulation does not affect the division of competence between the Union and the Member States under the Treaties (...)” (item 45 in principio). In accordance with Article 7 of Regulation 2016/1624, Frontex is accountable to the European Parliament and the Council. Current management is conducted by the Executive Director and the Management Board composed of representatives of the Member States (one from each Schengen area state). Additionally, the Management Board includes representatives of the European Commission (see Article 63(1) of Regulation 2016/1624).

An important novelty introduced by the Regulation 2016/1624 was the creation of European Border and Coast Guard teams. Pursuant to Article 2(4) of Regulation 2016/1624, the teams are made of border guards and other relevant staff from participating Member States, including border guards and other relevant staff who are seconded as national experts by Member States to the European Border and Coast Guard Agency. At the request of Member States, such teams may launch joint operations and the so-called rapid interventions at external borders (see Article 15 and Article 17 of Regulation 2016/1624). As indicated in the Proposal of 2018, “In accordance with the Management Board's decision, the overall number of border guards for the Agency's operational activities is 5,000. However, the actual number of European Border and Coast Guard Team members registered in the Agency's OPERA system is more than 7,000. These capabilities are complemented by 1,500 border guards nominated by the Rapid Reaction Pool. In addition, in the area of return, the Agency has currently at its disposal three pools which, in accordance with the decision of Management Board should be composed respectively of 600 return escorts, 50 return specialists and 40 forced return monitors.”[11].

Even this general analysis of the historical development of Frontex allows us to conclude that the evolution of the Agency has been extraordinary since within the last 12 years it has been transformed from a small expert body tasked with coordination activities into an independent agency with border and coast guards delegated by Member States. At the moment Frontex is facing the possibility of having its own, autonomous standing corps of 10,000 border and coast guard operational staff.

 

3. Proposed amendments

In accordance with the Proposal of 2018, the main objective of the new Regulation was to introduce a number of changes into the current legal situation, in particular to establish Frontex’s own operational division: a European Border and Coast Guard standing corps of 10,000 operational staff with executive powers for all its activities to effectively support Member States on the ground[12]. The European Border and Coast Guard was supposed to reach the target capacity of operational staff by 2020 [13]. Currently LIBE and the Council hold different positions as to when these target numbers will be reached (The Commission’s view is also different). The number 10,000 was deleted from amendments 5-7, 45, 103, 289, however LIBE has proposed that a recital 5a is added in accordance with which: “The standing corps of 10 000 operational staff should mainly consist of operational staff seconded from Member States. The Member States are responsible for making sure that the standing corps is set up and operational without any delay”. The Commission decided not to specify a year in which the target capacity will be reached and instead pointed out that this is expected within five years after the Regulation comes into force (see the amendment to Annex 1). According to the Council’s proposal, the number of operational staff in the European Border and Coast Guard should reach 10,000 not earlier than in 2027 (see the amendment to Annex 1).

The Commission wants the proposed amendments to improve the capability of border guard in the Member States to exchange information and to support the Member States in the area of returns (policy concerning the return of third-country nationals, staying illegally in the European Union, to their country of origin)[14]. Furthermore, the Commission proposes that the planned Regulation also covers the European Border Surveillance System (EUROSUR) to make it more efficient and to extend its scope so as to include most of the elements of the integrated border management[15]. As part of the proposed solution, the current scope of EUROSUR is to be extended to cover not only the surveillance of land and sea borders but also to include checks at border crossing points (by adding border checks and air border surveillance which is now optional for Member States) to ensure exhaustive situational awareness at external borders and expand the range of reaction capacities[16]. Also the False and Authentic Documents Online (FADO) system is to be integrated into the European Border an Coast Guard framework[17].

After the new Regulation is adopted, the officers of the European Border and Coast Guard will represent a new type of EU staff entrusted with executive powers, including the right to use force while performing their tasks as members of a standing corps team[18]. This was expressly stipulated in the first sentence of Article 83(6) of the proposed Regulation. LIBE has proposed that this provision is changed as part of amendment 395. The Council has also raised some objections concerning this provision:

 

Commission’s proposal

LIBE’s proposal

Council’s proposal

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 or, for the Agency's staff with the consent of the Agency, 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 or the Agency where appropriate authorise members of the teams to use force in the absence of border guards of the host Member State.

6. While performing their tasks and exercising their powers, members of the teams shall may be authorised to use force, including service weapons, ammunition and equipment, with the consent of the home Member State and the host Member State or, for the Agency's staff with the consent of the Agency 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 or the Agency where appropriate authorise members of the teams to use force in the absence of border guards of the host Member State.

The performance of tasks by members of the teams, including members of the statutory staff, during the deployment requiring to the use of force, including carrying and use of service weapons, ammunition and equipment, shall be authorized by the host Member State and be subject to the consent of either the home Member State or, for statutory staff, of the Agency. The use of force, including carrying and use of service weapons, ammunition and equipment shall be exercised in accordance with the national law of the host Member State and in the presence of border guards of the host Member State. The host Member State may, with the consent of the home Member State or the Agency where appropriate authorise members of the teams to use force on its territory in the absence of border guards of the host Member State

 

As indicated by the Commission, the second key element of the European Border and Coast Guard standing corps is the mandatory nature of Member States' short and long term contributions which, in the Commission’s opinion, is the only solution guaranteeing the “availability of necessary contributions for the Agency's activities in the spirit of solidarity and responsibility for the well-functioning of the Schengen area”[19]. Moreover, the proposal consolidates the role of the Executive Director to propose to the Member State concerned concrete operational activities of the Agency when justified by the results of the vulnerability assessment, risk analysis or when a critical impact is attributed to one or more border sections[20]. In case of the lack of cooperation for such proposed actions, the Commission should be notified in view of assessing and deciding whether further action may be needed in accordance with Article 43 addressing the situation at EU external border requiring urgent action[21].

To provide assistance to the Member States, the Commission proposed that the scope of Frontex’s task is extended to include technical and operational assistance in the return process[22], including preparation of return decisions and helping with other pre-return activities, as well as assistance in the setting up and operation of return management systems and information exchange systems [23].

Particularly controversial are the Commission’s proposals which refer to the need of the European Border Guard taking an “urgent action” (Article 43 of the proposed Regulation). Pursuant to Article 43(1), where control of the external borders is rendered ineffective to such an extent that it risks jeopardising the functioning of the Schengen area, because

[a] a Member State does not take necessary measures in accordance with a decision of the management board referred to in Article 33(10),[24],

or [b] a Member State facing specific and disproportionate challenges at the external borders has either not requested sufficient support from the Agency under Article 38 and Article 40 (a joint operation of a Member State and Frontex or a rapid border intervention undertaken at the request of a Member State), Article 41 (deployment, at the request of a Member State or with the agreement of a Member State, of migration management teams), Article 42 (recommendations of Frontex’s executive director concerning launching of a joint operation, rapid intervention or other relevant actions at the border) or is not taking the necessary steps to implement actions under those Articles, the Commission, after consulting the Agency, may adopt without delay a decision by means of an implementing act (...) identifying measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures.


The above solution has raised some concerns among members of the European Parliament. The Council’s proposals also aims to change its wording. LIBE’s and the Council’s proposals concerning the modification of the proposed Article 43(1) are fully compatible, which - from the political perspective - makes the return to the original proposal of the Commission impossible. Both LIBE and the Council have proposed that the Council is entrusted with powers that were originally meant for the Commission.

 

Commission’s proposal

LIBE’s proposal

Council’s proposal

[…]the Commission, after consulting the Agency, may adopt without delay a decision by means of an implementing act in accordance with the procedure as referred to in Article 117(3), identifying measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures.

[…] the Council, on the basis of a proposal from the Commission, may adopt without delay a decision by means of an implementing act, identifying measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The Commission shall consult the Agency before making its proposal.

[…] the Council, on the basis of a proposal from the Commission, may adopt without delay a decision by means of an implementing act, identifying measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The Commission shall consult the Agency before making its proposal.

 

According to the first draft submitted by the Commission, the decision was to be taken by way of an implementing act mentioned in Article 5 of Regulation (EU) No. 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general mechanisms for control by Member States of the Commission’s exercise of implementing powers (hereinafter: Regulation 182/2011)[25]. In line with this procedure, a consent from State Members must be obtained (in the form of a binding opinion) delivered by a qualified majority of at least 55% of the members of the committee, however not less that fifteen of them, and representing Member States comprising at least 65% of the population of the Union, provided such a consent can be blocked (a negative opinion can be delivered) by at least four Member States. In the absence of an opinion, the Commission is entitled to adopt an implementing act. By accepting this procedure, the Member States would retain control over activities undertaken and conducted by the Commission and Frontex under Article 43 of the proposed Regulation. As a result of re-wording Article 43(1), LIBE’s and the Council’s proposals do not rely on the use of the above procedure which is, obviously, connected only with the exercise of implementing powers by the Commission.

As per Article 43(1) of the Proposed Regulation, on duly justified imperative grounds of urgency relating to the functioning of the Schengen area, the Commission was to adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 8 in conjunction with Article 5 of Regulation 182/2011. The objective of the provision was to give the Commission a mandate to adopt implementing acts of immediate applicability without submitting them to the Committee. In principle, such acts would remain valid by a period of up to six months. The Committee – composed of the Member States - would have the chance to oppose such an implementing act ex post by delivering a negative opinion. As a result, the Commission would immediately repeal the implementing act. Both LIBE and the Council have proposed that this paragraph is removed.

The amendment of Article 43(1) of the proposed Regulation, as suggested by the Council and LIBE, would entail a modification of Article 43(2)-(6) of the provision.

In accordance with the original wording of Article 43(3) of the proposed Regulation, a decision taken by the Commission in the form of an implementing act may provide for the following measures:

a) organisation and coordination of rapid border interventions and deployment of the European Border and Coast Guard standing corps;

b) deployment of the European Border and Coast Guard standing corps in the framework of the migration management support teams in particular at hotspot areas[26];

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

d) deployment of technical equipment;

e) organisation of return interventions[27].

The Council and LIBE propose unanimously that the Commission’s powers are to be transferred into the Council. Moreover, LIBE proposes that Article 43(3)(a) and (b) is modified:

 

 

 

Commission’s proposal

LIBE’s proposal

Council’s proposal

To mitigate the risk of putting in jeopardy the Schengen area, the Commission decision referred to in paragraph 1 shall provide for one or more of the following measures to be taken by the Agency:

To mitigate the risk of putting in jeopardy the Schengen area, the Council decision referred to in paragraph 1 shall provide for one or more of the following measures to be taken by the Agency:

[The Council approves of the wording proposed by LIBE]

(a) organise and coordinate rapid border interventions and deploy the European Border and Coast Guard standing corps;

(a) organise and coordinate rapid border interventions and deploy the European Border and Coast Guard standing corps including teams from the rapid reaction pool for rapid border interventions;

[The Council approves of the wording proposed by the Commission]

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

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

[The Council approves of the wording proposed by the Commission]

 

Specific actions that need to be taken for the practical execution of these measures are determined by the executive director of Frontex who also submits the draft operational plan to the Member States concerned (Article 43(4)(b) of the proposed Regulation). LIBE suggested an amendment to this provision with a view to respecting the rights of Member States:

 

Commission’s proposal

LIBE’s proposal

4. The executive director shall, within two working days from the date of adoption of the Commission decision referred to in paragraph 1, […]

(b) submit the draft operational plan to the Member States concerned.

4. The executive director shall, within two working days from the date of adoption of the Council decision referred to in paragraph 1, […]

(b) draw up a draft operational plan and submit it to the Member States concerned.

 

Based on the draft operational plan, the executive director and the Member State concerned draw up the actual operational plan (Article 43(5) of the proposed Regulation). Originally, it was assumed that the activities mentioned in para. 4 and 5 should not take longer than four working days. The current version of the whole Article 43(5) will most likely be changed although it still isn’t clear which proposal will be adopted because LIBE and the Council differ slightly in their positions:

 

Commission’s proposal

LIBE’s proposal

Council’s proposal

5. 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 executive director and the Member State concerned shall agree on the operational plan within two working days from the date of its submission.

5. The executive director and the Member State concerned shall draw up and agree upon the operational plan within three working days from the date of its submission.

 

 

 The Member State concerned is obliged comply with the Commission decision, referred to in Article 43(1) of the proposed Regulation, by cooperating with Frontex (see Article 43(8) of the proposed Regulation). The Member State is obliged to make available the operational staff determined by the executive director of Frontex.

The Commission, LIBE and the Council have also submitted differing proposals as concerns the wording of Article 43(9)(2) of the proposed Regulation:

 

Commission’s proposal

LIBE’s proposal

Council’s proposal

If the Member State concerned does not comply with the Commission decision referred to in paragraph 1 within 30 days and does not cooperate with the Agency pursuant to paragraph 8 of this Article, the Commission may trigger the procedure provided for in Article 29 of Regulation (EU) 2016/399.

The Commission shall monitor the implementation of the measures identified in the Council decision referred to in paragraph 1, and the actions taken for that purpose, by the Agency. If the Member State concerned does not comply with the Council decision referred to in paragraph 1 within 30 days and does not cooperate with the Agency pursuant to paragraph 8 of this Article, the Commission may trigger the procedure provided for in Article 29 of Regulation (EU) 2016/399.

If the Member State concerned does not comply with the Council decision referred to in paragraph 1 within 30 days and does not cooperate with the Agency pursuant to paragraph 8 of this Article, the Commission may trigger the procedure provided for in Article 29 of Regulation (EU) 2016/399.

 

In the event the Commission’s (or the Council’s) decision is not complied with within 30 days, the Commission may launch the procedure mentioned in Article 29 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code)[28]. The Commission, the Council and LIBE seem to agree on this topic and thus it should be expected that the provision won’t be further modified. For this reason, it is worth explaining the procedure mentioned in Article 29 of the Regulation (EU) 2016/399 of the European Parliament and the Council.

According to the provisions, if a Member State fails to implement a decision issued by the Commission, it should without delay inform the Commission in writing of its reasons. In such a case, the Commission presents a report to the European Parliament and to the Council assessing the reasons provided by the Member State concerned and the consequences for protecting the common interests of the area without internal border control. Article 29(4) of the Schengen Borders Code stipulates, however, that: „On duly justified grounds of urgency relating to situations where the circumstances giving rise to the need to prolong border control at internal borders in accordance with paragraph 2 become known less than 10 days before the end of the preceding reintroduction period, the Commission may adopt any necessary recommendations by means of immediately applicable implementing acts in accordance with the procedure referred to in Article 38(3). Within 14 days of the adoption of such recommendations, the Commission shall submit to the Council a proposal for a recommendation in accordance with paragraph 2 of this Article”. The procedure mentioned in the paragraph quoted above is the same as the procedure under Article 8 of Regulation 182/2011 envisaging only an ex post control of Member States over the Commission’s acts.

In accordance with Article 43(2) of the proposed Regulation, where a situation requiring urgent action arises, the European Parliament and the Council are informed of that situation without delay as well as of all subsequent measures and decisions taken in response. If the amendments transferring powers from the Commission to the Council, as proposed by the Council and LIBE, are accepted, the European Parliament will remain the only body to be informed under Article 43(2).

 

4. Treaty-based grounds for the functioning of the European Boarder and Coast Guard Agency (reference norms)

Pursuant to Article 67(1) sentence 1 of the Treaty on the Functioning of the European Union (hereinafter: “TFEU”): “The Union shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.” TFEU also stipulates that the Union develops a policy with a view to “ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders” and “carrying out checks on persons and efficient monitoring of the crossing of external borders”, as well as “the gradual introduction of an integrated management system for external borders” (Article 77(1) TFEU).

For the above-mentioned purposes, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, adopt measures to support, inter alia, checks on persons crossing external borders as well as measures necessary for the gradual introduction of an integrated management system for external borders (Article 77(2)(b) and (d) TFEU).

It should also be noted that the Union develops a common policy on asylum (Article 78 TFEU) and immigration (Article 79 TFEU). The development of immigration policy may not, however, affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed (Article 79(5) TFEU). It should also be stressed that pursuant to Article 78(3) TFEU, in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

It seems right that Article 78(3) should be interpreted in conjunction with Article 79(5), as they are functionally connected, providing for the protection of sovereignty of Member States on the one hand, and obliging EU to implement specified provisional measures in an emergency situation of a sudden inflow of third-country nationals on the other.[29]. A given Member State is fully independent in assessing whether an inflow of third-country nationals is acceptable to them and whether it is connected with immigrants seeking work (employment or self-employment). As a result, the Member State should determine on its own whether the situation at its borders, being external borders of the EU, has the characteristics of a humanitarian crisis that would justify the application of Article 78(3) TFEU.

Only after the Member State concerned has determined and confirmed that a situation of sudden inflow of nationals of third countries has taken place, can it ask the Commission to launch the procedure for the application of provisional measures. In accordance with the wording of Article 78(3) TFEU, these measures can be adopted “for the benefit” of the Member State concerned, so the claim that they could be adopted against the State’s will would make no sense.

It is also worth noting that the matters connected with an integrated management system for external borders are a shared competence between the Union and the Member States (Article 4(2)(j) TFEU), as they belong to the area of freedom, security and justice.

Pursuant to Article 2(2) TFEU: “When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence”. The above provision should be interpreted by taking into account the provisions of the Treaty on European Union (hereinafter: TEU), which stipulates that “1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. 2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality” (Article 5 TEU).

As a consequence, it should be noted that the adoption of measures related to the protection of external borders of EU, as well as aiming to create an integrated system for such protection is grounded in the Treaties as a shared competence between EU and Member States, and as such is subject to review in terms of:

1) the fitness of the proposed solution for the purposes of carrying out checks on persons and efficient monitoring of the crossing of external borders (Article 77(1) TFEU) and the gradual introduction of an integrated management system for external borders (Article 5(2) sentence 1 TEU);

2) the possibility of achieving the Treaty objective mentioned under item 1 above by the Member States, which excludes EU’s actions to the extent that the objectives can be sufficiently achieved by the Member States, either at central level or at regional and local level - which corresponds to the principle of subsidiarity (Article 5(3), sentence 1 TEU);

3) the content and form of the proposed solutions not exceeding what is necessary to achieve the objective mentioned under item 1 above - which corresponds to the principle of proportionality (Article 5(4) sentence 1 TEU).

 

 

5. Assessment of the proposed amendments for their compliance with the reference norms

Despite the fact that the grounds for the Union’s adopting measures to integrate the protection of external borders of EU can be derived from the Treaties, it must be said that a detailed analysis of the solutions proposed by the Commission points to an inconsistency with both the literal contents of the Treaties, and the principles of subsidiarity and proportionality defined in them. The solutions proposed under Article 43 of the draft Regulations restrict the sovereignty of Member States and are in contravention to Article 79(5) TFEU which stipulates that EU’s immigration policy can’t affect the rights of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.

The solution proposed under Article 43 of the draft Resolution would in fact introduce an obligatory deployment of European Board and Coast Guard units on the territory of the Member States. This is not consistent with the principle of subsidiarity, under which, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level (see Article 5(3) TEU). If a Member State doesn’t seek assistance with respect to its border guard services that protect the external borders of EU, it clearly believes it can ensure such protection on its own. Officers of the border guard of a Member State are certainly much more familiar with the local characteristics and situation (the terrain, the population of a third country with which the State shares its borders) than operational staff of the European Border and Coast Guard ever will be.

It also needs to be pointed out that in the light of the amendments proposed by LIBE and the changes postulated by the Council, this controversial solution has not been fully dismissed but rather it has been “softened”. Whereas the solution falls under the general scope of the powers granted to the Council under Article 78(3) TFEU, the provision of Article 43 of the proposed Regulation still remains inconsistent with the above provision of the Treaty, as it doesn’t require consultations with the European Parliament, introducing only the obligation to inform. The respective decision of the Council will be taken by the qualified majority (see Article 16(3) TEU).

However, it should be added that the European Parliament has also noticed the inconsistency between the original proposal of the Commission and the principle of subsidiarity. The Parliament proposed amendment 15 changing the wording of recital 18 of the draft Resolution [30], very important for the interpretation of its Article 43:

 

Commission’s proposal

LIBE’s proposal

(18) The Agency should carry out its tasks without prejudice to the responsibilities of the Member States with regard to maintaining law and order and safeguarding internal security.

(18) The Agency should carry out its tasks with full respect for the responsibilities, competence and the subsidiarity principle of the Member States with regard to maintaining law and order and safeguarding internal security.

 

In a situation where a Member State does not seek assistance of the Union, the objective nature of the efficiency of the protection of external borders also find its reflection in the paramount interest of that State in efficient protection of its own borders, which are, at the same time, the external borders of the Union. Mass-scale and uncontrolled immigration poses a significant threat to public security and order, especially in relatively small countries. It can lead to humanitarian crises, riots, civil unrest and an increase in crime rates. Thus, if a Member State does not signal any problems with maintaining security and surveillance on its own borders (being, at the same time, external borders of the EU), there exist not grounds to assume that the actual situation at those borders exceeds the right of that Member State to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.

The solution presented in the Commission’s Proposal of 2018 was also inconsistent with the principle of proportionality. Without doubt, the originally proposed measures exceeded what is necessary to attain the objectives of the Treaties (integrated border protection system and efficient management of external borders). The admissibility of Union bodies - which do not have democratic legitimacy - forcing the presence of uniformed and armed officers on Member States (even if they are only officers of border guard services) is not necessary to provide effective management of external borders. Their protection lies, first and foremost, in the interest of the Member States whose borders partially overlap with the external borders of the European Union; and as a result it is unreasonable to assume that such assistance must be forced on them. This called into question the fitness of the proposed solution for the purpose of the objective defined in the Treaties.

In the light of the current proposals of the Council and the amendments postulated by LIBE, it must be concluded that the concept itself needs to be assessed more leniently, as it must be assumed that Article 43 of the proposed Regulation will be applied in a situation when a Member State creates a situation in which the surveillance of external borders becomes so inefficient that it poses threat to the functioning of the Schengen area. In such a situation representatives of other Member States would take a decision to deploy operational staff at the external borders of EU. It should be remembered that these states (in particular neighbouring states) also face the risk of internal turmoil in a situation of people moving freely between them and the state subject to such a decision.

Nevertheless, the idea of establishing separate services composed of officers seconded from Member States for a long term duration remains doubtful. For the attainment of the objectives mentioned in Article 77(1) TFEU, i.e. carrying out checks on persons, efficient monitoring of the crossing of external borders and the gradual introduction of an integrated managements system for external borders, it would be sufficient to develop rules of cooperation between Member States which should demonstrate solidarity and support each other in protecting the common borders of the Schengen area. The support provided by the Union should be limited to the development of rules for the coordination of joint actions, consolidation of staff training (including foreign language courses) and co-financing of national border services, especially their purchases of advanced equipment.

 

 

Author: Bartosz Zalewski

 

[1] The proposal in the different UE languages is available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1537358704958&uri=CELEX%3A52018PC0631 (accessed on: 8 October 2018). This analysis is based on the Polish language version of the proposal.

[2] Proposal of 2018, pp. 1-2. See also: the communication from the Commission “A New, Modern Multiannual Financial Framework for a European Union that delivers efficiently on its priorities post-2020” (COM(2018)98).

[3] See: A. Łazowski, [in:] Prawo instytucjonalne Unii Europejskiej, [ed.] M.M. Kenig-Witkowska, Warszawa 2017, p. 255.

[4] Document dated 21 February 2019, 6673/19, 2018/0330/A(COD), available online at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_6673_2019_INIT&from=PL (accessed on: 13 March 2019).

[5] Draft resolution adopted by the Commission available online at: http://www.europarl.europa.eu/doceo/document/A-8-2019-0076_PL.html (accessed on: 14 March 2019).

[6] See the details of the legislative procedure available at: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2018/0330(COD)

https://eur-lex.europa.eu/legal-content/PL/HIS/?uri=COM:2018:0631:FIN#2019-01-18_DIS_byCONSIL (accessed on: 13 March 2019).

[7] O. J. EU No. 349 of 25 November 2004, p. 1 et seq.

[8] O. J. EU No. 251 of 16 September 2016, p. 1 et seq.

[9] O. J. EU No. 295 of 06 November 2013, p. 11 et seq.

[10] The so-called Arab Spring destabilised the situation in the Middle East (especially Syria). Only in 2015, more than 1,322,000 asylum applications were submitted in the European Union (two times more than in the previous year) - see M. Dahl, EU Member States Against the Immigration Crisis of 2015, “Unia Europejska.pl” 3/244 (2017), p. 17 et seq.

[11] Proposal of 2018, p. 8.

[12] Ibidem, p. 2.

[13] Ibidem, p. 7.

[14] Ibidem, p. 3.

[15] Ibidem, p. 4.

[16] Ibidem, p. 20.

[17] Ibidem, p. 24.

[18] Ibidem, p. 9.

[19] Ibidem. Generally speaking, the Commission, the Council and LIBE hold similar positions on this topic. These organisations, however, present dissenting views as far as the amount and periods of financial contributions by the individual Member States are concerned (see the different Annexes III and IV presented by the Commission, the Council and LIBE).

[20] Proposal of 2018, p. 22. It is, however, worth noting that LIBE’s proposals would diminish the role of the Commission and reduce the autonomy of the Agency itself. The Executive Director would not be appointed by its Management Board (comprising representatives of the Member States and two representatives of the Commission) but by the European Parliament and the Council (see amendments 442-450). It’s not however certain whether LIBE’s proposals will be approved by the Council which hasn’t expressed its will to introduce any amendments to the key Article 105 of the proposed Regulation.

[21] Proposal of 2018, p. 22. This issue will be regulated in Article 42(2) of the proposed Regulation whose wording should not be changed significantly.

[22] The return procedures were defined in 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 (O J. EU L No. 348/98 of 24 December 2008. Generally speaking, the procedures concern voluntary or forced returns to the country of origin of third-country nationals who are staying in the European Union. According to literature on the subject: Illegal immigration can be defined as staying (travelling or settling) temporarily or permanently without documents allowing legal residency in a country. – K. Strąg, commentary to Article. 79, [in:] Traktat o funkcjonowaniu Unii Europejskiej. Komentarz, vol. 1 [ed.] D. Miąsik, N. Półtorak, A. Wróbel, WKP 2012, commentary 79.5.4.

[23] Proposal of 2018, p. 10.

[24] The provision stipulates that: Where a Member State does not implement the necessary measures of the recommendation within the time limit referred to in paragraph 7 of this Article [i.e. within the period indicated by the executive director of Frontex - O.I.’s note], the executive director shall refer the matter to the management board and notify the Commission. The management board shall adopt a decision on a proposal of the executive director setting out the necessary measures to be taken by the Member State concerned and the time limit within which such measures shall be implemented. The decision of the management board shall be binding on the Member State. If the Member State does not implement the measures within the time limit foreseen in that decision, the management board shall notify the Council and the Commission and further action may be taken in accordance with Article 43”.

[25] O. J. EU L No. 55 of 28 February 2011, p. 13 et seq.

[26] In accordance with Article 2(23) of the proposed Regulation, a “hotspot area” means an area in which the host Member State, the Commission, relevant Union agencies and participating Member States cooperate, with the aim of managing an existing or potential disproportionate migratory challenge characterised by a significant increase in the number of migrants arriving at the external borders;

[27] In accordance with Article 2(29) of the proposed Regulation, a “return intervention” means an activity of the European Border and Coast Guard Agency providing Member States or third countries with enhanced technical and operational assistance consisting of the deployment of return teams and the organisation of return operations; This involves organisational and technical assistance in the execution of the return procedures which were defined in 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, O. J. EU L No. 348/98 of 24 December 2008.

[28] O. J. EU No. 77 of 23 March 2016, p. 1 et seq.

[29] The literature on the subject indicates that the implementation of provisional measures takes place only when “the sudden inflow of nationals of third countries” has already happened, thus those measures can’t be used for prevention - K. Strąg, commentary to Article 78 [in:] Traktat o funkcjonowaniu Unii Europejskiej. Komentarz, vol. 1 [ed.] D. Miąsik, N. Półtorak, A. Wróbel, WKP 2012, commentary 78.7.

[30] The Council, on the other hand, has not proposed any changes to this recital.