REGULATION (EU) No 1052/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 22 October 2013
establishing the European Border Surveillance System (Eurosur)
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 Article 77(2)(d) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure (1),
Whereas:
(1)
The establishment of a European Border Surveillance System (‘EUROSUR’) is necessary in order to strengthen the exchange of information and the operational cooperation between national authorities of Member States as well as with the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union established by Council Regulation (EC) No 2007/2004 (2) (‘the Agency’). EUROSUR will provide those authorities and the Agency with the infrastructure and tools needed to improve their situational awareness and reaction capability at the external borders of the Member States of the Union (‘external borders’) 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.
(2)
The practice of travelling in small and unseaworthy vessels has dramatically increased the number of migrants drowning at the southern maritime external borders. EUROSUR should considerably improve the operational and technical ability of the Agency and the Member States to detect such small vessels and to improve the reaction capability of the Member States, thereby contributing to reducing the loss of lives of migrants.
(3)
It is recognised in this Regulation that migratory routes are also taken by persons in need of international protection.
(4)
Member States should establish national coordination centres to improve the exchange of information and the cooperation for border surveillance between them and with the Agency. It is essential for the proper functioning of EUROSUR that all national authorities with a responsibility for external border surveillance under national law cooperate via national coordination centres.
(5)
This Regulation should not hinder Member States from making their national coordination centres also responsible for coordinating the exchange of information and for cooperation with regard to the surveillance of air borders and for checks at border crossing points.
(6)
The Agency should improve the exchange of information and the cooperation with other Union bodies, offices and agencies, such as the European Maritime Safety Agency and the European Union Satellite Centre, in order to make best use of information, capabilities and systems which are already available at European level, such as the European Earth monitoring programme.
(7)
This Regulation forms part of the European model of integrated border management of the external borders and of the Internal Security Strategy of the European Union. EUROSUR will also contribute to the development of the Common Information Sharing Environment (CISE) for the surveillance of the maritime domain of the Union providing a wider framework for maritime situational awareness through information exchange amongst public authorities across sectors in the Union.
(8)
In order to ensure that the information contained in EUROSUR is as complete and updated as possible, in particular with regard to the situation in third countries, the Agency should cooperate with the European External Action Service. For those purposes, Union delegations and offices should provide all information which may be relevant for EUROSUR.
(9)
The Agency should provide the necessary assistance for the development and operation of EUROSUR and, as appropriate, for the development of CISE, including the interoperability of systems, in particular by establishing, maintaining and coordinating the EUROSUR framework.
(10)
The Agency should be provided with the appropriate financial and human resources in order to adequately fulfil the additional tasks assigned to it under this Regulation.
(11)
This Regulation respects the fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union (TEU) and by the Charter of Fundamental Rights of the European Union, in particular respect for human dignity, the right to life, the prohibition of torture and inhuman or degrading treatment or punishment, the prohibition of trafficking in human beings, the right to liberty and security, the right to the protection of personal data, the right of access to documents, the right to asylum and to protection against removal and expulsion, non-refoulement, non-discrimination and the rights of the child. This Regulation should be applied by Member States and the Agency in accordance with those rights and principles.
(12)
In accordance with Regulation (EC) No 2007/2004, the Fundamental Rights Officer and the Consultative Forum established by that Regulation should have access to all information concerning respect for fundamental rights in relation to all the activities of the Agency within the framework of EUROSUR.
(13)
Any exchange of personal data in the European situational picture and the common pre-frontier intelligence picture should constitute an exception. It should be conducted on the basis of existing national and Union law and should respect their specific data protection requirements. Directive 95/46/EC of the European Parliament and of the Council (3), Regulation (EC) No 45/2001 of the European Parliament and of the Council (4) and Council Framework Decision 2008/977/JHA (5) are applicable in cases in which more specific instruments, such as Regulation (EC) No 2007/2004, do not provide a full data protection regime.
(14)
In order to implement a gradual geographical roll-out of EUROSUR, the obligation to designate and operate national coordination centres should apply in two successive stages: first to the Member States located at the southern and eastern external borders and, at a second stage, to the remaining Member States.
(15)
This Regulation includes provisions on cooperation with neighbouring third countries, because well-structured and permanent exchange of information and cooperation with those countries, in particular in the Mediterranean region, are key factors for achieving the objectives of EUROSUR. It is essential that any exchange of information and any cooperation between Member States and neighbouring third countries be carried out in full compliance with fundamental rights and in particular with the principle of non-refoulement.
(16)
This Regulation includes provisions on the possibility of close cooperation with Ireland and the United Kingdom which may assist in better achieving the objectives of EUROSUR.
(17)
The Agency and the Member States, when implementing this Regulation, should make the best possible use of existing capabilities in terms of human resources as well as technical equipment, both at Union and national level.
(18)
The Commission should regularly assess the results of the implementation of this Regulation to determine the extent to which the objectives of EUROSUR have been achieved.
(19)
In accordance with Articles 1 and 2 of Protocol No 22 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, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.
(20)
This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC (6); the United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.
(21)
This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (7); Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application.
(22)
As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis (8) which fall within the area referred to in point A of Article 1 of Council Decision 1999/437/EC (9). Norway should establish a national coordination centre in accordance with this Regulation as from 2 December 2013.
(23)
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 (10) which fall within the area referred to in point A of Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (11).
(24)
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 (12) which fall within the area referred to in point A of Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (13).
(25)
The implementation of this Regulation does not affect the division of competence between the Union and the Member States or the obligations of Member States under the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the United Nations Convention against Transnational Organized Crime and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the Convention Relating to the Status of Refugees, the Convention for the Protection of Human Rights and Fundamental Freedoms and other relevant international instruments.
(26)
The implementation of this Regulation does not affect Regulation (EC) No 562/2006 of the European Parliament and of the Council (14) or the rules for the surveillance of sea external borders in the context of operational cooperation coordinated by the Agency.
(27)
Since the objective of this Regulation, namely to establish EUROSUR, cannot be sufficiently achieved by Member States alone but can rather, by virtue of its scale and effect, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,
HAVE ADOPTED THIS REGULATION:
TITLE I
GENERAL PROVISIONS
Article 1
Subject matter
This Regulation establishes a common framework for the exchange of information and for the cooperation between Member States and the Agency in order to improve situational awareness and to increase reaction capability at the external borders of the Member States of the Union (‘external borders’) 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 (‘EUROSUR’).
Article 2
Scope
1. This Regulation shall apply to the surveillance of external land and sea borders, including the monitoring, detection, identification, tracking, prevention and interception of unauthorised border crossings 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.
2. This Regulation may also apply to the surveillance of air borders as well as to checks at border crossing points if Member States voluntarily provide such information to EUROSUR.
3. This Regulation shall not apply to any legal or administrative measure taken once the responsible authorities of a Member State have intercepted cross-border criminal activities or unauthorised crossings by persons of the external borders.
4. Member States and the Agency shall comply with fundamental rights, in particular the principles of non-refoulement and respect for human dignity and data protection requirements, when applying this Regulation. They shall give priority to the special needs of children, unaccompanied minors, victims of human trafficking, persons in need of urgent medical assistance, persons in need of international protection, persons in distress at sea and other persons in a particularly vulnerable situation.
Article 3
Definitions
For the purposes of this Regulation, the following definitions apply:
(a)
‘Agency’ means the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union established by Regulation (EC) No 2007/2004;
(b)
‘situational awareness’ means the ability to monitor, detect, identify, track and understand illegal cross-border activities in order to find reasoned grounds for reaction measures on the basis of combining new information with existing knowledge, and to be better able to reduce loss of lives of migrants at, along or in the proximity of, the external borders;
(c)
‘reaction capability’ means the ability to perform actions aimed at countering illegal cross-border activities at, along or in the proximity of, the external borders, including the means and timelines to react adequately;
(d)
‘situational picture’ means a graphical interface to present near-real-time data and information received from different authorities, sensors, platforms and other sources, which is shared across communication and information channels with other authorities in order to achieve situational awareness and support the reaction capability along the external borders and the pre-frontier area;
(e)
‘cross-border crime’ means any serious crime with a cross-border dimension committed at, along or in the proximity of, the external borders;
(f)
‘external border section’ means the whole or a part of the external land or sea border of a Member State, as defined by national law or as determined by the national coordination centre or any other responsible national authority;
(g)
‘pre-frontier area’ means the geographical area beyond the external borders;
(h)
‘crisis situation’ means any natural or man-made disaster, accident, humanitarian or political crisis or any other serious situation occurring at, along or in the proximity of, the external borders, which may have a significant impact on the control of the external borders;
(i)
‘incident’ means a situation relating to illegal immigration, cross-border crime or a risk to the lives of migrants at, along or in the proximity of, the external borders.
TITLE II
FRAMEWORK
CHAPTER I
Components
Article 4
EUROSUR framework
1. For the exchange of information and for the cooperation in the field of border surveillance, and taking into account existing information exchange and cooperation mechanisms, Member States and the Agency shall use the EUROSUR framework, consisting of the following components:
(a)
national coordination centres;
(b)
national situational pictures;
(c)
a communication network;
(d)
a European situational picture;
(e)
a common pre-frontier intelligence picture;
(f)
a common application of surveillance tools.
2. The national coordination centres shall provide the Agency, via the communication network, with information from their national situational pictures which is required for the establishment and maintenance of the European situational picture and of the common pre-frontier intelligence picture.
3. The Agency shall give the national coordination centres, via the communication network, unlimited access to the European situational picture and to the common pre-frontier intelligence picture.
4. The components listed in paragraph 1 shall be established and maintained in line with the principles outlined in the Annex.
Article 5
National coordination centre
1. Each Member State shall designate, operate and maintain a national coordination centre which shall coordinate, and exchange information among, all authorities with a responsibility for external border surveillance at national level, as well as with the other national coordination centres and the Agency. Each Member State shall notify the establishment of its national coordination centre to the Commission, which shall forthwith inform the other Member States and the Agency thereof.
2. Without prejudice to Article 17 and within the framework of EUROSUR, the national coordination centre shall be the single point of contact for the exchange of information and for the cooperation with other national coordination centres and with the Agency.
3. The national coordination centre shall:
(a)
ensure the timely exchange of information and timely cooperation between all national authorities with a responsibility for external border surveillance, as well as with other national coordination centres and the Agency;
(b)
ensure the timely exchange of information with search and rescue, law enforcement, asylum and immigration authorities at national level;
(c)
contribute to an effective and efficient management of resources and personnel;
(d)
establish and maintain the national situational picture in accordance with Article 9;
(e)
support the planning and implementation of national border surveillance activities;
(f)
coordinate the national border surveillance system, in accordance with national law;
(g)
contribute to regularly measuring the effects of national border surveillance activities for the purposes of this Regulation;
(h)
coordinate operational measures with other Member States, without prejudice to the competences of the Agency and of Member States.
4. The national coordination centre shall operate twenty-four hours a day and seven days a week.
Article 6
The Agency
1. The Agency shall:
(a)
establish and maintain the communication network for EUROSUR in accordance with Article 7;
(b)
establish and maintain the European situational picture in accordance with Article 10;
(c)
establish and maintain the common pre-frontier intelligence picture in accordance with Article 11;
(d)
coordinate the common application of surveillance tools in accordance with Article 12.
2. For the purposes of paragraph 1, the Agency shall operate twenty four hours a day and seven days a week.
Article 7
Communication network
1. The Agency shall establish and maintain a communication network in order to provide communication and analytical tools and allow for the exchange of non-classified sensitive and classified information in a secure manner and in near-real-time with, and among, the national coordination centres. The network shall be operational twenty four hours a day and seven days a week and shall allow for:
(a)
bilateral and multilateral information exchange in near-real-time;
(b)
audio and video conferencing;
(c)
secure handling, storing, transmission and processing of non-classified sensitive information;
(d)
secure handling, storing, transmission and processing of EU classified information up to the level of RESTREINT UE/EU RESTRICTED or equivalent national classification levels, ensuring that classified information is handled, stored, transmitted and processed in a separate and duly accredited part of the communication network.
2. The Agency shall provide technical support and ensure that the communication network is interoperable with any other relevant communication and information system managed by the Agency.
3. The Agency shall exchange, process and store non-classified sensitive and classified information in the communication network in accordance with Article 11d of Regulation (EC) No 2007/2004.
4. The national coordination centres shall exchange, process and store non-classified sensitive and classified information in the communication network in compliance with rules and standards which are equivalent to those set out in the Rules of Procedure of the Commission (15).
5. Member States' authorities, agencies and other bodies using the communication network shall ensure that equivalent security rules and standards as those applied by the Agency are complied with for the handling of classified information.
CHAPTER II
Situational awareness
Article 8
Situational pictures
1. The national situational pictures, the European situational picture and the common pre-frontier intelligence picture shall be produced through the collection, evaluation, collation, analysis, interpretation, generation, visualisation and dissemination of information.
2. The pictures referred to in paragraph 1 shall consist of the following layers:
(a)
an events layer;
(b)
an operational layer;
(c)
an analysis layer.
Article 9
National situational picture
1. The national coordination centre shall establish and maintain a national situational picture, in order to provide all authorities with responsibilities for the control and, in particular, surveillance of external borders at national level, with effective, accurate and timely information.
2. The national situational picture shall be composed of information collected from the following sources:
(a)
the national border surveillance system in accordance with national law;
(b)
stationary and mobile sensors operated by national authorities with a responsibility for external border surveillance;
(c)
patrols on border surveillance and other monitoring missions;
(d)
local, regional and other coordination centres;
(e)
other relevant national authorities and systems, including liaison officers, operational centres and contact points;
(f)
the Agency;
(g)
national coordination centres in other Member States;
(h)
authorities of third countries, on the basis of bilateral or multilateral agreements and regional networks as referred to in Article 20;
(i)
ship reporting systems in accordance with their respective legal bases;
(j)
other relevant European and international organisations;
(k)
other sources.
3. The events layer of the national situational picture shall consist of the following sub-layers:
(a)
a sub-layer on unauthorised border crossings, including information available to the national coordination centre on incidents relating to a risk to the lives of migrants;
(b)
a sub-layer on cross-border crime;
(c)
a sub-layer on crisis situations;
(d)
a sub-layer on other events, which contains information on unidentified and suspect vehicles, vessels and other craft and persons present at, along or in the proximity of, the external borders of the Member State concerned, as well as any other event which may have a significant impact on the control of the external borders.
4. The national coordination centre shall attribute a single indicative impact level, ranging from ‘low’ and ‘medium’ to ‘high’, to each incident in the events layer of the national situational picture. All incidents shall be shared with the Agency.
5. The operational layer of the national situational picture shall consist of the following sub-layers:
(a)
a sub-layer on own assets, including military assets assisting a law enforcement mission, and operational areas, which contains information on the position, status and type of own assets and on the authorities involved. With regard to military assets assisting a law enforcement mission, the national coordination centre may decide, at the request of the national authority responsible for such assets, to restrict access to such information on a need-to-know basis;
(b)
a sub-layer on environmental information, which contains or gives access to information on terrain and weather conditions at the external borders of the Member State concerned.
6. The information on own assets in the operational layer shall be classified as RESTREINT UE/EU RESTRICTED.
7. The analysis layer of the national situational picture shall consist of the following sub-layers:
(a)
an information sub-layer, which contains key developments and indicators which are relevant for the purposes of this Regulation;
(b)
an analytical sub-layer, which includes analytical reports, risk rating trends, regional monitors and briefing notes which are relevant for the purposes of this Regulation;
(c)
an intelligence sub-layer, which contains analysed information which is relevant for the purposes of this Regulation and, in particular, for the attribution of the impact levels to the external border sections;
(d)
an imagery and geo-data sub-layer, which includes reference imagery, background maps, validation of analysed information and change analysis (Earth observation imagery), as well as change detection, geo-referenced data and external border permeability maps.
8. The information contained in the analysis layer and on environmental information in the operational layer of the national situational picture may be based on the information provided in the European situational picture and in the common pre-frontier intelligence picture.
9. The national coordination centres of neighbouring Member States shall share with each other, directly and in near-real-time, the situational picture of neighbouring external border sections relating to:
(a)
incidents and other significant events contained in the events layer;
(b)
tactical risk analysis reports as contained in the analysis layer.
10. The national coordination centres of neighbouring Member States may share with each other, directly and in near-real-time, the situational picture of neighbouring external border sections relating to the positions, status and type of own assets operating in the neighbouring external border sections as contained in the operational layer.
Article 10
European situational picture
1. The Agency shall establish and maintain a European situational picture in order to provide the national coordination centres with effective, accurate and timely information and analysis.
2. The European situational picture shall be composed of information collected from the following sources:
(a)
national situational pictures, to the extent required by this Article;
(b)
the Agency;
(c)
the Commission, providing strategic information on border control, including shortcomings in the carrying-out of external border control;
(d)
Union delegations and offices;
(e)
other relevant Union bodies, offices and agencies and international organisations as referred to in Article 18;
(f)
other sources.
3. The events layer of the European situational picture shall include information relating to:
(a)
incidents and other events contained in the events layer of the national situational picture;
(b)
incidents and other events contained in the common pre-frontier intelligence picture;
(c)
incidents in the operational area of a joint operation, pilot project or rapid intervention coordinated by the Agency.
4. In the European situational picture, the Agency shall take into account the impact level that was assigned to a specific incident in the national situational picture by the national coordination centre.
5. The operational layer of the European situational picture shall consist of the following sub-layers:
(a)
a sub-layer on own assets, which contains information on the position, time, status and type of assets participating in the Agency joint operations, pilot projects and rapid interventions or at the disposal of the Agency, and the deployment plan, including the area of operation, patrol schedules and communication codes;
(b)
a sub-layer on operations, which contains information on the joint operations, pilot projects and rapid interventions coordinated by the Agency, including the mission statement, location, status, duration, information on the Member States and other actors involved, daily and weekly situational reports, statistical data and information packages for the media;
(c)
a sub-layer on environmental information, which includes information on terrain and weather conditions at the external borders.
6. The information on own assets in the operational layer of the European situational picture shall be classified as RESTREINT UE/EU RESTRICTED.
7. The analysis layer of the European situational picture shall be structured in the same manner as that of the national situational picture set out in Article 9(7).
Article 11
Common pre-frontier intelligence picture
1. The Agency shall establish and maintain a common pre-frontier intelligence picture in order to provide the national coordination centres with effective, accurate and timely information and analysis on the pre-frontier area.
2. The common pre-frontier intelligence picture shall be composed of information collected from the following sources:
(a)
national coordination centres, including information and reports received from Member States' liaison officers via the competent national authorities;
(b)
Union delegations and offices;
(c)
the Agency, including information and reports provided by its liaison officers;
(d)
other relevant Union bodies, offices and agencies and international organisations as referred to in Article 18;
(e)
authorities of third countries, on the basis of bilateral or multilateral agreements and regional networks as referred to in Article 20, via the national coordination centres;
(f)
other sources.
3. The common pre-frontier intelligence picture may contain information which is relevant for air border surveillance and checks at external border crossing points.
4. The events, operational and analysis layers of the common pre-frontier intelligence picture shall be structured in the same manner as those of the European situational picture set out in Article 10.
5. The Agency shall assign a single indicative impact level to each incident in the events layer of the common pre-frontier intelligence picture. The Agency shall inform the national coordination centres of any incident in the pre-frontier area.
Article 12
Common application of surveillance tools
1. The Agency shall coordinate the common application of surveillance tools in order to supply the national coordination centres and itself with surveillance information on the external borders and on the pre-frontier area on a regular, reliable and cost-efficient basis.
2. The Agency shall provide a national coordination centre, at its request, with information on the external borders of the requesting Member State and on the pre-frontier area which may be derived from:
(a)
selective monitoring of designated third-country ports and coasts which have been identified through risk analysis and information as being embarkation or transit points for vessels or other craft used for illegal immigration or cross-border crime;
(b)
tracking of vessels or other craft over high seas which are suspected of, or have been identified as, being used for illegal immigration or cross-border crime;
(c)
monitoring of designated areas in the maritime domain in order to detect, identify and track vessels and other craft being used for, or suspected of being used for, illegal immigration or cross-border crime;
(d)
environmental assessment of designated areas in the maritime domain and at the external land border in order to optimise monitoring and patrolling activities;
(e)
selective monitoring of designated pre-frontier areas at the external borders which have been identified through risk analysis and information as being potential departure or transit areas for illegal immigration or cross-border crime.
3. The Agency shall provide the information referred to in paragraph 1 by combining and analysing data which may be collected from the following systems, sensors and platforms:
(a)
ship reporting systems in accordance with their respective legal bases;
(b)
satellite imagery;
(c)
sensors mounted on any vehicle, vessel or other craft.
4. The Agency may refuse a request from a national coordination centre for technical, financial or operational reasons. The Agency shall notify the national coordination centre in due time of the reasons for such a refusal.
5. The Agency may use on its own initiative the surveillance tools referred to in paragraph 2 for collecting information which is relevant for the common pre-frontier intelligence picture.
Article 13
Processing of personal data
1. Where the national situational picture is used for the processing of personal data, those data shall be processed in accordance with Directive 95/46/EC, Framework Decision 2008/977/JHA and the relevant national provisions on data protection.
2. The European situational picture and the common pre-frontier intelligence picture may be used only for the processing of personal data concerning ship identification numbers.
Those data shall be processed in accordance with Article 11ca of Regulation (EC) No 2007/2004. They shall be processed only for the purposes of detecting, identifying and tracking vessels, as well as for the purposes referred to in Article 11c(3) of that Regulation. They shall automatically be deleted within seven days of receipt by the Agency or, where additional time is needed in order to track a vessel, within two months of receipt by the Agency.
CHAPTER III
Reaction capability
Article 14
Determination of external border sections
For the purposes of this Regulation, each Member State shall divide its external land and sea borders into border sections, and shall notify them to the Agency.
Article 15
Attribution of impact levels to external border sections
1. Based on the Agency's risk analysis and in agreement with the Member State concerned, the Agency shall attribute the following impact levels to each of the external land and sea border sections of Member States or change such levels:
(a)
low impact level where the incidents related to illegal immigration or cross-border crime occurring at the relevant border section have an insignificant impact on border security;
(b)
medium impact level where the incidents related to illegal immigration or cross-border crime occurring at the relevant border section have a moderate impact on border security;
(c)
high impact level where the incidents related to illegal immigration or cross-border crime occurring at the relevant border section have a significant impact on border security.
2. The national coordination centre shall regularly assess whether there is a need to change the impact level of any of the border sections by taking into account the information contained in the national situational picture.
3. The Agency shall visualise the impact levels attributed to the external borders in the European situational picture.
Article 16
Reaction corresponding to impact levels
1. The Member States shall ensure that the surveillance activities carried out at the external border sections correspond to the attributed impact levels in the following manner:
(a)
where a low impact level is attributed to an external border section, the national authorities with a responsibility for external border surveillance shall organise regular surveillance on the basis of risk analysis and ensure that sufficient personnel and resources are being kept in the border area in readiness for tracking, identification and interception;
(b)
where a medium impact level is attributed to an external border section, the national authorities with a responsibility for external border surveillance shall, in addition to the measures taken under point (a), ensure that appropriate surveillance measures are being taken at that border section. When such surveillance measures are taken, the national coordination centre shall be notified accordingly. The national coordination centre shall coordinate any support given in accordance with Article 5(3);
(c)
where a high impact level is attributed to an external border section, the Member State concerned shall, in addition to the measures taken under point (b), ensure, through the national coordination centre, that the national authorities operating at that border section are given the necessary support and that reinforced surveillance measures are taken. That Member State may request support from the Agency subject to the conditions for initiating joint operations or rapid interventions, as laid down in Regulation (EC) No 2007/2004.
2. The national coordination centre shall regularly inform the Agency of the measures taken at national level pursuant to point (c) of paragraph 1.
3. Where a medium or high impact level is attributed to an external border section which is adjacent to the border section of another Member State or of a country with which agreements or regional networks, as referred to in Articles 19 and 20, are in place, the national coordination centre shall contact the national coordination centre of the neighbouring Member State or the competent authority of the neighbouring country and shall endeavour to coordinate the necessary cross-border measures.
4. Where a Member State submits a request in accordance with point (c) of paragraph 1, the Agency, when responding to that request, may support that Member State in particular by:
(a)
giving priority treatment to the common application of surveillance tools;
(b)
coordinating the deployment of European Border Guard Teams in accordance with Regulation (EC) No 2007/2004;
(c)
ensuring the deployment of technical equipment at the disposal of the Agency in accordance with Regulation (EC) No 2007/2004;
(d)
coordinating any additional support offered by other Member States.
5. The Agency shall, together with the Member State concerned, evaluate the attribution of impact levels and the corresponding measures taken at national and Union level in its risk analysis reports.
TITLE III
SPECIFIC AND FINAL PROVISIONS
Article 17
Allocation of tasks to other authorities in the Member States
1. Member States may charge regional, local, functional or other authorities which are in a position to take operational decisions, with ensuring situational awareness and reaction capability in their respective areas of competence, including the tasks and competences referred to in points (c), (e) and (f) of Article 5(3).
2. The decision of Member States to allocate tasks in accordance with paragraph 1 shall not affect the national coordination centre in its ability to cooperate and exchange information with other national coordination centres and the Agency.
3. In pre-defined cases, as determined at national level, the national coordination centre may authorise an authority referred to in paragraph 1 to communicate and exchange information with the regional authorities or the national coordination centre of another Member State or the competent authorities of a third country on condition that such authority regularly informs its own national coordination centre of such communication and information exchange.
Article 18
Cooperation of the Agency with third parties
1. The Agency shall make use of existing information, capabilities and systems available in other Union institutions, bodies, offices and agencies, and international organisations, within their respective legal frameworks.
2. In accordance with paragraph 1, the Agency shall cooperate in particular with the following Union institutions, bodies, offices and agencies, and international organisations:
(a)
European Police Office (Europol) in order to exchange information on cross-border crime to be included in the European situational picture;
(b)
the European Union Satellite Centre, the European Maritime Safety Agency and the European Fisheries Control Agency when providing the common application of surveillance tools;
(c)
the Commission, the European External Action Service and Union bodies, offices and agencies including the European Asylum Support Office, which may provide the Agency with information that is relevant for maintaining the European situational picture and the common pre-frontier intelligence picture;
(d)
international organisations which may provide the Agency with information relevant for maintaining the European situational picture and the common pre-frontier intelligence picture.
3. In accordance with paragraph 1, the Agency may cooperate with the Maritime Analysis and Operations Centre - Narcotics (MAOC-N) and the Centre de Coordination pour la lutte antidrogue en Méditerranée (CeCLAD-M) in order to exchange information on cross-border crime to be included in the European situational picture.
4. Information between the Agency and the Union bodies, offices and agencies, and international organisations, referred to in paragraphs 2 and 3, shall be exchanged via the communication network referred to in Article 7 or other communication networks which fulfil the criteria of availability, confidentiality and integrity.
5. The cooperation between the Agency and the Union bodies, offices and agencies, and international organisations, referred to in paragraphs 2 and 3, shall be regulated as part of working arrangements in accordance with Regulation (EC) No 2007/2004 and the respective legal basis of the Union body, office or agency, or international organisation, concerned. As regards the handling of classified information, those arrangements shall provide that the Union body, office or agency or international organisation concerned comply with security rules and standards equivalent to those applied by the Agency.
6. The Union bodies, offices and agencies, and international organisations, referred to in paragraphs 2 and 3, shall use information received in the context of EUROSUR only within the limits of their legal framework and in compliance with fundamental rights, including data protection requirements.
Article 19
Cooperation with Ireland and the United Kingdom
1. For the purposes of this Regulation, the exchange of information and the cooperation with Ireland and the United Kingdom may take place on the basis of bilateral or multilateral agreements between Ireland or the United Kingdom respectively and one or several neighbouring Member States or through regional networks based on those agreements. The national coordination centres of the Member States shall be the contact points for the exchange of information with the corresponding authorities of Ireland and the United Kingdom within EUROSUR. Once those agreements are concluded, they shall be notified to the Commission.
2. The agreements referred to in paragraph 1 shall be limited to the following exchange of information between the national coordination centre of a Member State and the corresponding authority of Ireland or the United Kingdom:
(a)
information contained in the national situational picture of a Member State to the extent transmitted to the Agency for the purposes of the European situational picture and the common pre-frontier intelligence picture;
(b)
information collected by Ireland and the United Kingdom which is relevant for the purposes of the European situational picture and the common pre-frontier intelligence picture;
(c)
information as referred to in Article 9(9).
3. Information provided in the context of EUROSUR by the Agency or by a Member State which is not party to an agreement as referred to in paragraph 1 shall not be shared with Ireland or the United Kingdom without the prior approval of the Agency or of that Member State. The Member States and the Agency shall be bound by the refusal to share that information with Ireland or the United Kingdom.
4. Onward transmission or other communication of information exchanged under this Article to third countries or to third parties shall be prohibited.
5. The agreements referred to in paragraph 1 shall include provisions on the financial costs arising from the participation of Ireland and the United Kingdom in the implementation of those agreements.
Article 20
Cooperation with neighbouring third countries
1. For the purposes of this Regulation, Member States may exchange information and cooperate with one or several neighbouring third countries. Such exchange of information and such cooperation shall take place on the basis of bilateral or multilateral agreements or through regional networks established on the basis of those agreements. The national coordination centres of the Member States shall be the contact points for the exchange of information with neighbouring third countries.
2. Before any agreement referred to in paragraph 1 is concluded, the Member States concerned shall notify the agreement to the Commission, which shall verify that its provisions which are relevant for EUROSUR comply with this Regulation. Once the agreement is concluded, the Member State concerned shall notify it to the Commission which shall inform the European Parliament, the Council and the Agency thereof.
3. The agreements referred to in paragraph 1 shall comply with the relevant Union and international law on fundamental rights and on international protection, including the Charter of Fundamental Rights of the European Union and the Convention Relating to the Status of Refugees, in particular the principle of non-refoulement.
4. Any exchange of personal data with third countries in the framework of EUROSUR shall be strictly limited to what is absolutely necessary for the purposes of this Regulation. It shall be carried out in accordance with Directive 95/46/EC, Framework Decision 2008/977/JHA and the relevant national provisions on data protection.
5. Any exchange of information under paragraph 1, which provides a third country with information that could be used to identify persons or groups of persons whose request for access to international protection is under examination or who are under a serious risk of being subjected to torture, inhuman and degrading treatment or punishment or any other violation of fundamental rights, shall be prohibited.
6. Any exchange of information under paragraph 1 shall comply with the conditions of the bilateral and multilateral agreements concluded with neighbouring third countries.
7. Information provided in the context of EUROSUR by the Agency or by a Member State which is not party to an agreement as referred to in paragraph 1 shall not be shared with a third country under that agreement without the prior approval of the Agency or of that Member State. The Member States and the Agency shall be bound by the refusal to share that information with the third country concerned.
8. Onward transmission or other communication of information exchanged under this Article to other third countries or to third parties shall be prohibited.
9. Any exchange of information with third countries acquired via the common application of surveillance tools shall be subject to the laws and rules governing those tools as well as to the relevant provisions of Directive 95/46/EC, Regulation (EC) No 45/2001 and Framework Decision 2008/977/JHA.
Article 21
Handbook
1. The Commission shall, in close cooperation with the Member States, the Agency and any other relevant Union body, office or agency, make available a practical handbook for the implementation and management of EUROSUR (‘Handbook’). The Handbook shall provide technical and operational guidelines, recommendations and best practices, including on cooperation with third countries. The Commission shall adopt the Handbook in the form of a recommendation.
2. The Commission may decide, after consultation with Member States and the Agency, to classify parts of the Handbook as RESTREINT UE/EU RESTRICTED in compliance with the rules laid down in the Rules of Procedure of the Commission.
Article 22
Monitoring and evaluation
1. For the purposes of this Regulation, the Agency and the Member States shall ensure that procedures are in place to monitor the technical and operational functioning of EUROSUR against the objectives of achieving an adequate situational awareness and reaction capability at the external borders and respect for fundamental rights, including the principle of non-refoulement.
2. The Agency shall submit a report to the European Parliament and to the Council on the functioning of EUROSUR by 1 December 2015 and every two years thereafter.
3. The Commission shall provide an overall evaluation of EUROSUR to the European Parliament and the Council by 1 December 2016 and every four years thereafter. That evaluation shall include an assessment of the results achieved against the objectives set, of the continuing validity of the underlying rationale, of the application of this Regulation in the Member States and by the Agency and of the compliance with and impact on fundamental rights. It shall also include a cost benefit evaluation. That evaluation shall be accompanied, where necessary, by appropriate proposals to amend this Regulation.
4. Member States shall provide the Agency with the information necessary to draft the report referred to in paragraph 2.
The Agency shall provide the Commission with the information necessary to produce the evaluation referred to in paragraph 3.
Article 23
Amendments to Regulation (EC) No 2007/2004
Regulation (EC) No 2007/2004 is hereby amended as follows:
(1)
in Article 2(1), point (i) is replaced by the following:
‘(i)
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 establishing, maintaining and coordinating the EUROSUR framework in accordance with Regulation (EU) No 1052/2013 of the European Parliament and of the Council (16).
(2)
the following Article is inserted:
‘Article 11ca
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, which shall be applied in accordance with the measures referred to in Article 11a of this Regulation. In particular, the processing of such data shall respect the principles of necessity and proportionality and the onward transmission or other communication of such personal data processed by the Agency to third countries shall be prohibited.’.
Article 24
Entry into force and applicability
1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
2. This Regulation shall apply from 2 December 2013.
3. Bulgaria, Estonia, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Portugal, Romania, Slovenia, Slovakia and Finland shall establish a national coordination centre in accordance with Article 5 as from 2 December 2013.
The remaining Member States shall establish a national coordination centre in accordance with Article 5 as from 1 December 2014.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.
Done at Strasbourg, 22 October 2013.