ANNEX V

Rules on the use of force, including training and the supply, control and use of service weapons and non-lethal equipment, applicable to statutory staff deployed as members of the teams

1. General Principles Governing the Use of Force and Weapons

For the purposes of this Regulation, ‘use of force’ refers to recourse by statutory staff deployed as members of the teams to physical means for the purposes of performing their functions or ensuring self-defence, which includes the use of hands and body and the use of any instruments, weapons, including firearms, or equipment.

Weapons, ammunition and equipment shall only be carried and used during operations. Carrying or using weapons, ammunition and equipment during off duty periods shall be prohibited.

In accordance with Article 82(8), the use of force and weapons by statutory staff deployed as members of the teams shall be exercised in accordance with the national law of the host Member State, in the presence of border guards of the host Member State.

Without prejudice to the authorisation by the host Member State and the applicability of its national law to the use of force during operations, the use of force and weapons by statutory staff deployed as members of the teams shall comply with the principles of necessity, proportionality and precaution (the ‘core principles’) as set out below.

The operational plan agreed between the executive director and the host Member State shall define the conditions for carrying and using weapons in accordance with national law or operating procedures during operations.

The Principle of Necessity

The use of force, whether through direct physical contact or by the use of weapons or equipment, shall be exceptional and shall only take place where it is strictly necessary to ensure the performance of the Agency’s duties or in self-defence. Force shall only be used as a last resort, after every reasonable effort has been made to resolve a situation using non-violent means, including by means of persuasion, negotiation, or mediation. The use of force or coercive measures shall never be arbitrary or abusive.

The Principle of Proportionality

Whenever the lawful use of force or firearms is unavoidable, statutory staff deployed as members of the teams shall act in proportion to the seriousness of the situation and the legitimate objective to be achieved. During operational activities, the proportionality principle shall guide both the nature of the force used (e.g. the need for the use of weapons) as well as the extent of the force applied. Statutory staff deployed as members of the teams shall not use more force than is absolutely necessary to achieve the legitimate law enforcement objective. If a firearm is used, statutory staff deployed as members of the teams shall ensure that such use causes the least possible injury and minimises injury and damage to the greatest possible extent. Where the measures lead to an unacceptable result, statutory staff deployed as members of the teams may waive the measure. The principle of proportionality requires the Agency to provide equipment and self-defensive tools to statutory staff deployed as members of the teams which are necessary to enable the appropriate level of force to be applied.

The Duty of Precaution

Operational activities carried out statutory staff deployed as members of the teams shall fully respect and aim to preserve human life and human dignity. All necessary steps that can minimise the risk of injury and damage during operations shall be taken. This obligation includes a general obligation for statutory staff deployed as members of the teams to give clear warnings of their intention to use force, unless giving such a warning would unduly place the members of the teams at risk or would create a risk of death or serious harm to others, or would be clearly inappropriate or ineffective in the particular circumstances.

2. Specific rules for the most commonly used instruments of force (equipment of statutory staff deployed as members of the teams)

In accordance with the core principles, the use of force shall only be permissible to the extent that the use of force is necessary for achieving the immediate law enforcement aim, and only after:

— attempts to resolve a potentially violent confrontation by means of persuasion, negotiation, mediation have been exhausted and failed,

— a warning of the intention to use force has been given.

Where it is necessary to escalate the level of intervention (for example, using a weapon or a different kind of weapon), clear warning of such an escalation shall also be given unless giving such a warning would unduly place members of teams at risk or would create a risk of death or serious harm to others, or would be clearly inappropriate or ineffective in the particular circumstances.

Firearms

Statutory staff deployed as members of the teams shall not use firearms against persons, except in the following circumstances, and only when less extreme means are insufficient to achieve the necessary objectives:

— the use of firearms by statutory staff deployed as members of the teams is a last resort in an extreme emergency, especially if there is any risk that bystanders might be endangered,

— the use of firearms by statutory staff deployed as members of the teams is necessary to defend themselves or others against an imminent threat of death or serious injury,

— the use of firearms by statutory staff deployed as members of the teams is to prevent an imminent threat of death or serious injury,

— the use of firearms by statutory staff deployed as members of the teams is to repel an actual attack or prevent an impending dangerous attack on essential institutions, services or facilities.

Prior to the use of firearms, statutory staff deployed as members of the teams must give a clear warning of their intention to use such firearms. Warnings may be given orally or by the firing of warning shots.

Non-lethal weapons

Baton

Approved batons may be used as a means of defence or as a weapon, as appropriate, in line with the core principles, as follows:

— when lesser use of force is considered clearly unsuitable for the purpose,

— to avert an actual or impending attack on property.

Prior to the use of batons, statutory staff deployed as members of the teams must give a clear warning of their intention to use batons. In using batons, statutory staff deployed as members of the teams shall always aim to minimise the risk of injury suffered and avoid contact with the head.

Lachrymatory agents (e.g. pepper spray)

Approved lachrymatory agents may be used as a means of defence or as a weapon, as appropriate, in line with the core principles, as follows:

— when lesser use of force is considered clearly unsuitable for the purpose,

— to avert an actual or impending attack.

Other equipment

Handcuffs

Handcuffs shall only be placed on persons who are considered to present a danger to themselves or to others, in order to ensure their safe detention or transportation and to ensure the safety of statutory staff deployed as members of the teams and other members of the teams. Handcuffs shall only be used for the shortest time possible and only where strictly necessary.

3. Practical rules on the use of force, service weapons, ammunition and equipment during operations

General practical rules on the use of force, weapons and other equipment during operations

In accordance with Article 82(8), statutory staff deployed as members of the teams are to exercise their executive power, including the use of force, under the command and control of the host Member State, and shall only use force, including using weapons, ammunition and equipment, in the presence of the border guards of the host Member State following the authorisation of the competent authorities of the host Member State. Nevertheless, the competent authorities of the host Member State may authorise statutory staff deployed as members of the teams, with the consent of the Agency, to use force in the absence of officers of the host Member State.

The host Member State may prohibit the carrying of certain service weapons, ammunition and equipment in accordance with the second subparagraph of Article 82(8).

Without prejudice to the authorisation by the host Member State and the applicability of its national law to the use of force during operations, the use of force and weapons by statutory staff deployed as members of the teams shall:

(a) comply with the core principles and specific rules referred to in Part 2;

(b) respect fundamental rights as guaranteed under international and Union law, including, in particular, under the Charter, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and the United Nations Code of Conduct for Law Enforcement Officials;

(c) comply with the Agency’s code of conduct.

4. Control Mechanism

The Agency shall provide the following safeguards in relation to the use of force, weapons, ammunition and equipment, and shall provide a stocktaking in its annual report.

Training

The training provided in accordance with Article 62(2) shall cover theoretical and practical aspects in relation to the prevention of and use of force. The theoretical training shall incorporate psychological training, including training in resilience and working in situations of high pressure, as well as techniques for avoiding the use of force, such as negotiation and mediation. The theoretical training shall be followed by obligatory and adequate theoretical and practical training on the use of force, weapons, ammunition and equipment and on applicable fundamental rights safeguards. In order to ensure a common practical understanding and approach, the practical training shall end with a simulation relevant to the activities to be carried out during the deployment and shall include a practical simulation involving the operationalisation of fundamental rights safeguards.

The Agency shall provide statutory staff deployed as members of the teams with annual ongoing training on the use of force. Such training shall take place as per the training provided for in Article 62(2). In order for statutory staff deployed as members of the teams to be permitted to carry service weapons and to use force, they shall be required to have successfully completed the annual ongoing training. The annual ongoing training shall cover theoretical and practical aspects as described in the first paragraph. The annual ongoing training shall last at least 24 hours in total, with the theoretical training taking at least 8 hours and the practical training taking at least 16 hours. The practical training shall be divided into at least 8 hours for physical training, using physical restraint techniques, and at least 8 hours for the use of firearms.

Use of narcotics, drugs and alcohol consumption

Statutory staff deployed as members of the teams shall not consume or be under the influence of alcohol while on duty.

Statutory staff deployed as members of the teams shall not possess or use narcotics or drugs, unless prescribed on medical grounds. Statutory staff deployed as members of the teams requiring drugs for medical purposes shall immediately inform their immediate superior of such a requirement. Their participation in operational activities may be reviewed having regard to potential effects and side-effects associated with the use of the substance.

The Agency shall establish a control mechanism to ensure that its statutory staff deployed as members of the teams do not carry out their functions under the influence of narcotics, drugs or alcohol. That mechanism shall be based on regular medical testing of statutory staff deployed as members of the teams in order to identify any possible consumption of narcotics, drugs or alcohol. Any positive test results shall be immediately reported to the executive director.

Reporting

Any incidents involving the use of force shall be immediately reported through the chain of command to the coordination structure relevant for each operation and to the fundamental rights officer and the executive director. The report shall provide full details of the circumstances in which such use arose.

Duty to cooperate and inform

Statutory staff deployed as members of the teams and any other participants in operations shall cooperate in the gathering of facts related to any incident which was reported during an operational activity.

Supervisory mechanism

The Agency shall establish a supervisory mechanism as referred to in point (a) of Article 55(5).

Complaints mechanism

Any person may report suspected breaches by statutory staff deployed as members of the teams of the rules on the use of force applicable under this Annex through the complaints mechanism provided for in Article 111.

Sanctions

Without prejudice to Article 85, where the Agency establishes that a member of its statutory staff deployed as a member of the teams has performed activities in breach of the rules applicable under this Regulation, including fundamental rights protected under the Charter, the European Convention for the Protection of Human Rights and Fundamental Freedoms and international law, the executive director shall take adequate measures, which may include the immediate recall of that statutory staff member from the operational activity, and any disciplinary measures in accordance with the Staff Regulations, including the removal of the statutory staff member from the Agency.

Role of the fundamental rights officer

The fundamental rights officer shall verify and provide feedback on the content of induction and refresher training paying special regard to aspects relating to fundamental rights and how fundamental rights can be protected in situations where the use of force is necessary, and ensure relevant preventive techniques are included.

The fundamental rights officer shall report on the respect for fundamental rights within the law enforcement practices of the host Member State or host third country. That report shall be submitted to the executive director and shall be taken into account in the design of the operational plan.

The fundamental rights officer shall ensure that incidents related to the use of force and use of weapons, ammunition and equipment are thoroughly investigated and reported without delay to the executive director. The results of such investigations shall be transmitted to the consultative forum.

All activities related to the use of force, weapons, ammunition and equipment shall be regularly monitored by the fundamental rights officer, and all incidents shall be reported in the fundamental rights officer’s reports as well in the annual report of the Agency.

5. Provision of service weapons

Authorisation of weapons

For the purposes of determining the exact service weapons, ammunition and other equipment to be used by statutory staff deployed as members of the teams, the Agency shall establish an exhaustive list of items to be included in personal equipment sets.

Personal equipment sets shall be used by all statutory staff deployed as members of the teams. The Agency may also complement personal equipment sets with additional weapons, ammunition or other equipment specific for the purpose of carrying out specific tasks within one or two types of teams.

The Agency shall ensure that all weapons, including firearms, ammunition and equipment provided to statutory staff deployed as members of the teams comply with all the necessary technical standards.

Weapons, ammunition and equipment that are authorised for use shall be listed in the operational plan in line with the requirements on admissible and prohibited weapons of the host Member State.

Instructions for duty period

Weapons, ammunition and equipment may be carried during operations and shall be used only as measures of last resort. Carrying or using weapons, ammunition and equipment during off-duty periods shall not be allowed. The Agency shall establish specific rules and measures to facilitate the storage of weapons, ammunition and other equipment of statutory staff deployed as members of the teams during off-duty periods in secured facilities as referred to in point (c) of Article 55(5).