EN Official Journal of the European Union L 251/1

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

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)(b) and (d) and Article 79(2)(c) thereof,

Having regard to the proposal from the European Commission,

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

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1) At its meeting on 25 and 26 June 2015, the European Council called for wider efforts in resolving unprecedented migratory flows towards Union territory in a comprehensive manner, including by reinforcing border management to better manage growing mixed migratory flows. Furthermore, at their informal meeting on migration on 23 September 2015, the Heads of State or Government stressed the need to tackle the dramatic situation at the external borders and to strengthen the controls at those borders, in particular through additional resources for the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, the European Asylum Support Office (EASO), and Europol, with human resources and technical contributions from Member States.

(2) The objective of Union policy in the field of external border management is to develop and implement European integrated border management at national and Union level, which is a necessary corollary to the free movement of persons within the Union and is a fundamental component of an area of freedom, security and justice. European integrated border management is central to improving migration management. The aim is to manage the crossing of the external borders efficiently and address migratory challenges and potential future threats at those borders, thereby contributing to addressing serious crime with a cross-border dimension and ensuring a high level of internal security within the Union. At the same time, it is necessary to act in full respect for fundamental rights and in a manner that safeguards the free movement of persons within the Union.

(3) European integrated border management, based on the four-tier access control model, comprises measures in third countries, such as under the common visa policy, measures with neighbouring third countries, border control measures at the external borders, risk analysis and measures within the Schengen area and return.

(4) When implementing European integrated border management, coherence with other policy objectives should be ensured, including the proper functioning of cross-border transport.

(5) To ensure the effective implementation of European integrated border management, a European Border and Coast Guard should be established. It should be provided with the requisite financial and human resources and equipment. The European Border and Coast Guard should comprise the European Border and Coast Guard Agency (‘the Agency’) and national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks. As such it will rely upon the common use of information, capabilities and systems at national level and the response of the Agency at Union level.

(6) European integrated border management should be implemented as a shared responsibility of the Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out maritime border surveillance operations and any other border control tasks. While Member States retain the primary responsibility for the management of their external borders in their interest and in the interest of all Member States, the Agency should support the application of Union measures relating to the management of the external borders by reinforcing, assessing and coordinating the actions of Member States which implement those measures.

(7) European integrated border management does not alter the respective competences of the Commission and Member States in the customs area, in particular regarding controls, risk management and the exchange of information.

(8) The development of policy and legislation on external border control and return, including the development of a European integrated border management strategy, remains a responsibility of the Union institutions. Close coordination between the Agency and those institutions should be guaranteed.

(9) The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, commonly referred to as Frontex, was established by Council Regulation (EC) No 2007/2004 (3). Since taking up its responsibilities on 1 May 2005, it has been successful in assisting Member States with implementing the operational aspects of external border management through joint operations and rapid border interventions, risk analysis, information exchange, relations with third countries and the return of returnees.

(10) It is necessary to monitor the crossing of the external borders efficiently, address migratory challenges and potential future threats at the external borders, ensure a high level of internal security within the Union, safeguard the functioning of the Schengen area and respect the overarching principle of solidarity. In light of this, it is necessary to reinforce the management of the external borders by building on the work of Frontex and further developing it into an agency with a shared responsibility for the management of the external borders.

(11) The tasks of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union should therefore be expanded. To reflect those changes, it should be renamed the European Border and Coast Guard Agency, which will continue to be commonly referred to as Frontex. It should remain the same legal person, with full continuity in all its activities and procedures. The key role of the Agency should be to establish a technical and operational strategy for implementation of integrated border management at Union level; to oversee the effective functioning of border control at the external borders; to provide increased technical and operational assistance to Member States through joint operations and rapid border interventions; to ensure the practical execution of measures in a situation requiring urgent action at the external borders; to provide technical and operational assistance in the support of search and rescue operations for persons in distress at sea; and to organise, coordinate and conduct return operations and return interventions.

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

(13) The Agency should carry out its tasks without prejudice to the competence of the Member States with regard to defence.

(14) The extended tasks and competence of the Agency should be balanced with strengthened fundamental rights safeguards and increased accountability.

(15) Member States should be able to continue cooperation at an operational level with other Member States and/or third countries at the external borders, including military operations with a law enforcement purpose, to the extent that this cooperation is compatible with the actions of the Agency.

(16) The Agency relies on the cooperation of Member States to be able to perform its tasks effectively. In this respect, it is important for the Agency and the Member States to act in good faith and to exchange accurate information in a timely manner. No Member State should be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security.

(17) Member States should also, in their own interests and in the interests of other Member States, enter data into the European databases. Equally, they should ensure that the data are accurate, up-to-date and obtained and entered lawfully.

(18) The Agency should prepare general and tailored risk analyses based on a common integrated risk analysis model, to be applied by the Agency itself and by Member States. The Agency should, based also on information provided by Member States, provide adequate information covering all aspects relevant to European integrated border management, especially border control, return, irregular secondary movements of third-country nationals within the Union, prevention of cross-border crime including facilitation of unauthorised border crossings, trafficking in human beings, terrorism and threats of a hybrid nature, as well as the situation in neighbouring third countries, so as to allow for appropriate measures to be taken or to tackle identified threats and risks with a view to improving the integrated management of the external borders.

(19) Given its activities at the external borders, the Agency should contribute to preventing and detecting serious crime with a cross-border dimension, such as migrant smuggling, trafficking in human beings and terrorism, where it is appropriate for it to act and where it has obtained relevant information through its activities. It should coordinate its activities with Europol as the agency responsible for supporting and strengthening Member States' actions and their cooperation in preventing and combating serious crime affecting two or more Member States. Cross-border crimes necessarily entail a cross-border dimension. Such a cross-border dimension is characterised by crimes directly linked to unauthorised crossings of the external borders, including trafficking in human beings or smuggling of migrants. That said, Article 1(2) of Council Directive 2002/90/EC (4) allows Member States not to impose sanctions where the aim of the behaviour is to provide humanitarian assistance to migrants.

(20) In a spirit of shared responsibility, the role of the Agency should be to monitor regularly the management of the external borders. The Agency should ensure proper and effective monitoring not only through risk analysis, information exchange and European Border Surveillance System (EUROSUR), but also through the presence of experts from its own staff in Member States. The Agency should therefore be able to deploy liaison officers to Member States for a period of time during which the liaison officer reports to the executive director. The report of the liaison officers should form part of the vulnerability assessment.

(21) The Agency should carry out a vulnerability assessment based on objective criteria, to assess the capacity and readiness of the Member States to face challenges at their external borders. This should include an assessment of the equipment, infrastructure, staff, budget and financial resources of Member States as well as their contingency plans to address possible crises at the external borders. Member States should take measures to address any deficiencies identified in that assessment. The executive director should identify the measures to be taken and recommend them to the Member State concerned. The executive director should also set a time-limit within which those measures should be taken. Where the necessary measures are not taken within the set time-limit, the matter should be referred to the management board for a further decision.

(22) If the Agency is not provided with accurate and speedy information necessary for carrying out a vulnerability assessment, it should be able to take that fact into account when performing the vulnerability assessment, unless duly justified reasons are provided for withholding the data.

(23) The Agency should organise the appropriate technical and operational assistance to Member States so as to reinforce their capacity to implement their obligations with regard to the control of the external borders and to face challenges at the external borders resulting from illegal immigration or cross-border crime. Such assistance should be without prejudice to the relevant national authorities' competence to initiate criminal investigations. In this respect, the Agency should, at the request of a Member State or on its own initiative, organise and coordinate joint operations for one or more Member States and deploy European Border and Coast Guard teams as well as the necessary technical equipment. It may also deploy experts from among its own staff.

(24) In cases where there is a specific and disproportionate challenge at the external borders, the Agency should, at the request of a Member State or on its own initiative, organise and coordinate rapid border interventions and deploy both European Border and Coast Guard teams from a rapid reaction pool and technical equipment. Rapid border interventions should provide reinforcement for a limited period of time in situations where an immediate response is required and where such an intervention would provide an effective response. To ensure the effective operation of such intervention, Member States should make border guards and other relevant staff available to the rapid reaction pool and provide the necessary technical equipment. The Agency and the Member State concerned should agree upon an operational plan.

(25) Where a Member State faces specific and disproportionate migratory challenges at particular areas of its external borders characterised by large, inward, mixed migratory flows the Member States should be able to rely on technical and operational reinforcements. This should be provided in hotspot areas by migration management support teams. These teams should be composed of experts to be deployed from Member States by the Agency and by EASO and from the Agency, Europol or other relevant Union agencies. The Agency should assist the Commission in the coordination among the different agencies on the ground.

(26) Member States should ensure that any authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information. They should also ensure that such authorities' personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged.

(27) In hotspot areas the different agencies and Member States should operate within their respective mandates and powers. The Commission, in cooperation with the other relevant agencies, should ensure the compliance of activities in the hotspot areas with the relevant Union acquis, including the Common European Asylum System and fundamental rights.

(28) Where control of the external border is rendered ineffective to such an extent that it risks jeopardising the functioning of the Schengen area, either because a Member State does not take the necessary measures in line with a vulnerability assessment or because a Member State facing specific and disproportionate challenges at the external borders has not requested sufficient support from the Agency or is not implementing such support, a unified, rapid and effective response should be delivered at Union level. For the purpose of mitigating these risks, and to ensure better coordination at Union level, the Commission should propose to the Council a decision identifying the measures to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The implementing power to adopt such a decision should be conferred on the Council because of the potentially politically sensitive nature of the measures to be decided, which are likely to touch on national executive and enforcement powers. The Agency should determine the actions to be taken for the practical execution of the measures indicated in the Council decision. It should then draw up an operational plan with the Member State concerned. If a Member State does not comply within 30 days with that Council decision and does not cooperate with the Agency in the implementation of the measures contained in that decision, the Commission should be able to trigger the specific procedure provided for in Article 29 of Regulation (EU) 2016/399 of the European Parliament and of the Council (5) to face exceptional circumstances putting the overall functioning of the area without internal border control at risk. Therefore, Regulation (EU) 2016/399 should be amended accordingly.

(29) The Agency should have the necessary equipment and staff at its disposal to be deployed in joint operations or rapid border interventions. To this end, when launching rapid border interventions at the request of a Member State or in the context of a situation requiring urgent action, the Agency should be able to deploy, in the Member States, European Border and Coast Guard teams from a rapid reaction pool which should be a standing corps composed of border guards and other relevant staff. There should be a minimum of 1 500 border guards and other relevant staff in the pool. The deployment of the European Border and Coast Guard teams from the rapid reaction pool should be immediately complemented by additional European Border and Coast Guard teams where necessary.

(30) Annex I sets out the contributions of Member States to the rapid reaction pool on the basis of pledges in light of the circumstances pertaining at the time of the entry into force of this Regulation. If those circumstances change substantially and structurally, including when a decision on the lifting of controls on Member States' internal borders, pursuant to the provisions of the relevant Acts of Accession, has been taken, the Commission should propose the appropriate amendments to that Annex.

(31) Having regard to the rapidity with which deployment of equipment and staff would need to take place in particular at areas of the external borders facing sudden large inward migratory flow, the Agency should also be able to deploy its own technical equipment which it should acquire itself or in co-ownership with a Member State. That technical equipment should be made available to the Agency upon its request by the Member States where the equipment is registered. The Agency should also manage a pool of technical equipment provided by Member States, based on the needs identified by the Agency and which should be completed by the means of transport and operating equipment purchased by Member States under the Specific Actions of the Internal Security Fund.

(32) On 15 October 2015, the European Council called for an enlargement of Frontex's mandate on return, to include the right to organise joint return operations on its own initiative and an enhancement of its role regarding the acquisition of travel documents for returnees.

(33) The Agency should step up its assistance to Member States for returning third-country nationals, subject to the Union return policy and in compliance with Directive 2008/115/EC of the European Parliament and of the Council (6). In particular, it should coordinate and organise return operations from one or more Member States and organise and conduct return interventions to reinforce the return systems of Member States requiring increased technical and operational assistance to comply with their obligation to return third-country nationals in accordance with that Directive.

(34) The Agency should, in full respect for fundamental rights, provide the necessary assistance to Member States in organising return operations and return interventions of returnees. It should not enter into the merits of return decisions issued by Member States. In addition, the Agency should assist Member States in the acquisition of travel documents for return, in cooperation with the authorities of the relevant third countries.

(35) The assistance to Member States in carrying out return procedures should include the provision of practical information on third countries of return relevant for the implementation of this Regulation, such as the provision of contact details or other logistical information necessary for the smooth conduct of return operations. For the purposes of taking return decisions, the Agency should not be involved in the provision of information to Member States on third countries of return.

(36) The possible existence of an arrangement between a Member State and a third country does not absolve the Agency or the Member States from their obligations under Union or international law, in particular as regards compliance with the principle of non-refoulement.

(37) The Agency should establish pools of forced-return monitors, forced-return escorts and return specialists made available by Member States, who should be deployed during return operations and who should form part of tailor-made European return intervention teams deployed in return interventions. The pools should include staff with specific expertise in child protection. The Agency should provide them with the necessary training.

(38) In accordance with international law instruments such as the United Nations Convention on the Rights of the Child, any individual below the age of 18 is to be considered as a child under this Regulation. The child's best interests are to be a primary consideration in the activities of the Agency.

(39) Special provision should be made for staff involved in activities relating to return to specify their tasks, powers and responsibilities. Special instructions should also be issued concerning the power of the pilots in charge of aircraft and the extension of the criminal jurisdiction of the country of registration of the aircraft under international aviation law, in particular the Tokyo Convention on Offences and certain other acts committed on board aircraft.

(40) The Agency should develop specific training tools, including specific training in the protection of children. It should provide training at Union level for national instructors of border guards. It should also offer additional training courses and seminars related to integrated border management tasks, including for officers of the competent national bodies. This should include training on relevant Union and international law and on fundamental rights. The Agency should be authorised to organise training activities in cooperation with Member States and third countries on their territory.

(41) The Agency should monitor and contribute to the developments in research relevant for European integrated border management. It should disseminate information on such developments to the European Parliament, the Member States, and to the Commission.

(42) Effective implementation of an integrated management of the external borders requires regular, swift and reliable exchange of information among the Member States. The Agency should develop and operate information systems facilitating such exchange in accordance with Union data protection legislation. It is important that Member States provide the Agency promptly with complete and accurate information that it needs to perform its tasks.

(43) For the purpose of fulfilling its mission and to the extent required for the accomplishment of its tasks, the Agency may cooperate with Union institutions, bodies, offices and agencies as well as with international organisations in matters covered by this Regulation in the framework of working arrangements concluded in accordance with Union law and policy. Those working arrangements should receive the Commission's prior approval.

(44) National authorities carrying out coast guard functions are responsible for a wide range of tasks, which may include maritime safety, security, search and rescue, border control, fisheries control, customs control, general law enforcement and environmental protection. The Agency, the European Fisheries Control Agency established by Council Regulation (EC) No 768/2005 (7) and the European Maritime Safety Agency established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council (8) should therefore strengthen their cooperation both with each other and with the national authorities carrying out coast guard functions to increase maritime situational awareness and to support coherent and cost-efficient action. Synergies between the various actors in the maritime environment should be in line with the European integrated border management and maritime security strategies.

(45) The implementation of this Regulation does not affect the division of competence between the Union and the Member States under the Treaties, or the obligations of Member States under international conventions such as the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the International Convention for the Prevention of Pollution from Ships, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, and other relevant international maritime instruments.

(46) The Agency should facilitate and encourage technical and operational cooperation between Member States and third countries in the framework of the external relations policy of the Union. In this context, it should coordinate operational cooperation between Member States and third countries in the field of management of the external borders, deploy liaison officers to third countries and cooperate with the authorities of third countries on return, including as regards the acquisition of travel documents. In their cooperation with third countries, the Agency and Member States should comply with Union law at all times, including fundamental rights and the principle of non-refoulement. They should likewise do so when the cooperation with third countries takes place on the territory of those countries. In order to increase transparency and accountability, the Agency should report on cooperation with third countries in its annual report.

(47) The European Border and Coast Guard, which includes the Agency and the national authorities of Member States which are responsible for border management, including coast guards to the extent that they carry out border control tasks, should fulfil its tasks in full respect for fundamental rights, in particular the Charter of Fundamental Rights of the European Union (‘the Charter’), the European Convention for the Protection of Human Rights and Fundamental Freedoms, relevant international law, including the United Nations Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Relating to the Status of Refugees and obligations related to access to international protection, in particular the principle of non-refoulement, the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, and the International Convention on Maritime Search and Rescue. In accordance with Union law and those instruments the Agency should assist Member States in conducting search and rescue operations in order to protect and save lives whenever and wherever so required.

(48) Given the increased number of its tasks, the Agency should further develop and implement a strategy to monitor and ensure the protection of fundamental rights. To that end it should provide its fundamental rights officer with adequate resources and staff corresponding to its mandate and size. The fundamental rights officer should have access to all information necessary to fulfil her or his tasks. The Agency should use its role to actively promote the application of the Union acquis relating to the management of the external borders, including with regard to respect for fundamental rights and international protection.

(49) This Regulation respects fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union (TEU) and reflected in the Charter. In particular, this Regulation seeks to ensure full respect for human dignity, the right to life, the right to liberty and security, the right to the protection of personal data, the right to asylum, the right to effective remedy, the rights of the child, the prohibition of torture and of inhuman or degrading treatment or punishment and the prohibition of trafficking in human beings. It also seeks to promote the application of the principles of non-discrimination and non-refoulement.

(50) This Regulation should establish a complaints mechanism for the Agency in cooperation with the fundamental rights officer, to safeguard the respect for fundamental rights in all the activities of the Agency. This should be an administrative mechanism whereby the fundamental rights officer should be responsible for handling complaints received by the Agency in accordance with the right to good administration. The fundamental rights officer should review the admissibility of a complaint, register admissible complaints, forward all registered complaints to the executive director, forward complaints concerning members of the teams to the home Member State, and register the follow-up by the Agency or that Member State. The mechanism should be effective, ensuring that complaints are properly followed up. The complaints mechanism should be without prejudice to access to administrative and judicial remedies and not constitute a requirement for seeking such remedies. Criminal investigations should be conducted by the Member States. In order to increase transparency and accountability, the Agency should report on the complaints mechanism in its annual report. It should cover in particular the number of complaints it has received, the types of fundamental rights violations involved, the operations concerned and, where possible, the follow-up measures taken by the Agency and Member States.

(51) The Agency should be independent as regards technical and operational matters and have legal, administrative and financial autonomy. To that end, it is necessary and appropriate that it should be a Union body having legal personality and exercising the implementing powers that are conferred upon it by this Regulation.

(52) The Commission and the Member States should be represented within a management board to exercise oversight over the Agency. The management board should, where possible, consist of the operational heads of the national services responsible for border guard management or their representatives. The parties represented in the management board should make efforts to limit turnover of their representatives so as to ensure continuity of the management board's work. The management board should be entrusted with the necessary powers to establish the Agency's budget, verify its execution, adopt appropriate financial rules, establish transparent working procedures for decision-making by the Agency and appoint the executive director and the deputy executive director. The Agency should be governed and operated taking into account the principles of the common approach on Union decentralised agencies adopted on 19 July 2012 by the European Parliament, the Council and the Commission.

(53) In order to guarantee the autonomy of the Agency, it should be granted a stand-alone budget whose revenue comes mostly from a contribution from the Union. The Union budgetary procedure should be applicable as far as the Union contribution and any other subsidies chargeable to the general budget of the Union are concerned. The auditing of accounts should be undertaken by the Court of Auditors.

(54) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (9) should apply without restriction to the Agency, which should accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-Fraud Office (OLAF) (10).

(55) Regulation (EC) No 1049/2001 of the European Parliament and of the Council (11) should apply to the Agency. The Agency should be as transparent as possible about its activities, without jeopardising the attainment of the objective of its operations. It should make public information on all of its activities. It should likewise ensure that the public and any interested party are rapidly given information with regard to its work.

(56) The Agency should also report on its activities to the European Parliament and to the Council to the fullest extent.

(57) Any processing of personal data by the Agency within the framework of this Regulation should be conducted in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council (12).

(58) Any processing of personal data by Member States within the framework of this Regulation should be conducted in accordance with Directive 95/46/EC of the European Parliament and of the Council (13). In cases where the processing of data is necessary primarily for the purpose of ensuring a high level of internal security within the Union, especially in the context of actions relating to the monitoring of migratory flows and risk analysis, the processing of personal data collected during joint operations, pilot projects and rapid border interventions and by migration management support teams, or the cooperation with Union institutions, bodies, offices, agencies, and international organisations, Council Framework Decision 2008/977/JHA (14) applies. Any processing of personal data should respect the principles of necessity and proportionality.

(59) Since the objectives of this Regulation, namely the development and implementation of a system of integrated management of the external borders to ensure the proper functioning of the Schengen area, cannot be sufficiently achieved by the Member States acting in an uncoordinated manner but can rather, by reason of the absence of controls at internal borders, the significant migratory challenges at the external borders, the need to monitor efficiently the crossing of those borders, and to contribute to a high level of internal security within the Union, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(60) The external borders referred to in this Regulation are those to which the provisions of Title II of Regulation (EU) 2016/399 apply, which includes the external borders of Schengen Member States in accordance with Protocol 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and to the Treaty on the Functioning of the European Union (TFEU).

(61) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis (15), which fall within the area referred to in point A of Article 1 of Council Decision 1999/437/EC (16). The Arrangement between the European Community and the Republic of Iceland and the Kingdom of Norway on the modalities of the participation by those States in the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (17) provides for rules on the participation by those countries in the work of the Agency, including provisions on financial contributions and staff.

(62) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (18) which fall within the area referred to in point A of Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (19).

(63) As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (20) which fall within the area referred to in point A of Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (21).

(64) The Arrangement between the European Community, of the one part, and the Swiss Confederation and the Principality of Liechtenstein, of the other part, on the modalities of the participation by those States in the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (22) provides for rules on the participation by those countries in the work of the Agency, including provisions on financial contributions and staff.

(65) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it, or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

(66) This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC (23); the United Kingdom is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(67) This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (24); Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(68) The Agency should facilitate the organisation of specific activities in which the Member States may avail themselves of the expertise and facilities which Ireland and the United Kingdom may be willing to offer, on terms to be decided on a case-by-case basis by the management board. To that end, representatives of Ireland and the United Kingdom may be invited to attend meetings of the management board which allow them to participate fully in the preparation of such specific activities.

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

(70) The suspension of the applicability of this Regulation to the borders of Gibraltar does not imply any change in the respective positions of the States concerned.

(71) The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 18 March 2016 (25).

(72) This Regulation aims to amend and expand the provisions of Regulation (EC) No 2007/2004 and Regulation (EC) No 863/2007 of the European Parliament and of the Council (26), and Council Decision 2005/267/EC (27). Since the amendments to be made are substantial in number and nature, those acts should, in the interests of clarity, be replaced and repealed,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

European Border and Coast Guard

Article 1

Subject matter

This Regulation establishes a European Border and Coast Guard to ensure European integrated border management at the external borders with a view to managing the crossing of the external borders efficiently. This includes addressing migratory challenges and potential future threats at those borders, thereby contributing to addressing serious crime with a cross-border dimension, to ensure a high level of internal security within the Union in full respect for fundamental rights, while safeguarding the free movement of persons within it.

Article 2

Definitions

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

(1) ‘external borders’ means external borders as defined in point 2 of Article 2 of Regulation (EU) 2016/399, to which Title II of that Regulation applies;

(2) ‘border control’ means border control as defined in point 10 of Article 2 of Regulation (EU) 2016/399;

(3) ‘border guard’ means border guard as defined in point 14 of Article 2 of Regulation (EU) 2016/399;

(4) ‘European Border and Coast Guard teams’ means teams 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, to be deployed during joint operations, rapid border interventions as well as in the framework of migration management support teams;

(5) ‘host Member State’ means a Member State in which a joint operation or a rapid border intervention, a return operation or a return intervention takes place, or from which it is launched, or in which a migration management support team is deployed;

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

(7) ‘participating Member State’ means a Member State which participates in a joint operation, rapid border intervention, return operation, return intervention or in a deployment of a migration management support team, by providing technical equipment, border guards and other relevant staff deployed as part of the European Border and Coast Guard teams, as well as a Member State which participates in return operations or return interventions by providing technical equipment or staff, but which is not a host Member State;

(8) ‘member of the teams’ means a member of the European Border and Coast Guard teams or teams of staff involved in return-related tasks participating in return operations or return interventions;

(9) ‘migration management support team’ means a team of experts which provide technical and operational reinforcement to Member States at hotspot areas and which is composed of experts deployed from Member States by the European Border and Coast Guard Agency and by the European Asylum Support Office, and from the European Border and Coast Guard Agency, Europol or other relevant Union agencies;

(10) ‘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;

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

(12) ‘return decision’ means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return that respects Directive 2008/115/EC;

(13) ‘returnee’ means an illegally staying third-country national who is the subject of a return decision issued by a Member State;

(14) ‘return operation’ means an operation that is coordinated by the European Border and Coast Guard Agency and involves technical and operational reinforcement being provided by one or more Member States under which returnees from one or more Member States are returned either on a forced or voluntary basis;

(15) ‘return intervention’ means an activity of the European Border and Coast Guard Agency providing Member States with enhanced technical and operational assistance consisting of the deployment of European return intervention teams to Member States and the organisation of return operations;

(16) ‘cross-border crime’ means any serious crime with a cross-border dimension committed at or along, or which is related to, the external borders.

Article 3

European Border and Coast Guard

1. The European Border and Coast Guard Agency (‘the Agency’) and the national authorities of Member States which are responsible for border management, including coast guards to the extent that they carry out border control tasks, shall constitute the European Border and Coast Guard.

2. The Agency shall, by decision of the management board based on a proposal of the executive director, establish a technical and operational strategy for European integrated border management. The Agency shall take into account, where justified, the specific situation of the Member States, in particular their geographical location. This strategy shall be in line with Article 4. It shall promote and support the implementation of European integrated border management in all Member States.

3. The national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks, shall establish their national strategies for integrated border management. Those national strategies shall be in line with Article 4 and the strategy referred to in paragraph 2 of this Article.

Article 4

European integrated border management

European integrated border management shall consist of the following components:

(a) border control, including measures to facilitate legitimate border crossings and, where appropriate, measures related to the prevention and detection of cross-border crime, such as migrant smuggling, trafficking in human beings and terrorism, and measures related to the referral of persons who are in need of, or wish to apply for, international protection;

(b) search and rescue operations for persons in distress at sea launched and carried out in accordance with Regulation (EU) No 656/2014 of the European Parliament and the Council (28) and with international law, taking place in situations which may arise during border surveillance operations at sea;

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

(d) cooperation between Member States supported and coordinated by the Agency;

(e) inter-agency cooperation among the national authorities in each Member State which are responsible for border control or for other tasks carried out at the border and among the relevant Union institutions, bodies, offices and agencies; including the regular exchange of information through existing information exchange tools, such as the European Border Surveillance System (‘EUROSUR’) established by Regulation (EU) No 1052/2013 of the European Parliament and of the Council (29);

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

(g) technical and operational measures within the Schengen area which are related to border control and designed to address illegal immigration and to counter cross-border crime better;

(h) return of third-country nationals who are the subject of return decisions issued by a Member State;

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

(j) a quality control mechanism, in particular the Schengen evaluation mechanism and possible national mechanisms, to ensure the implementation of Union legislation in the area of border management;

(k) solidarity mechanisms, in particular Union funding instruments.

Article 5

Shared responsibility

1. The European Border and Coast Guard shall implement European integrated border management as a shared responsibility of the Agency and of the national authorities responsible for border management, including coast guards to the extent that they carry out maritime border surveillance operations and any other border control tasks. Member States shall retain primary responsibility for the management of their sections of the external borders.

2. Member States shall ensure the management of their external borders, in their own interests and in the common interest of all Member States in full compliance with Union law and in line with the technical and operational strategy referred to in Article 3(2), in close cooperation with the Agency.

3. The Agency shall support the application of Union measures relating to the management of the external borders by reinforcing, assessing and coordinating the actions of Member States in the implementation of those measures and in return.

CHAPTER II

European Border and Coast Guard Agency

Section 1

Tasks of the European Border and Coast Guard Agency

Article 6

European Border and Coast Guard Agency

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

2. To ensure a coherent European integrated border management, the Agency shall facilitate and render more effective the application of existing and future Union measures relating to the management of the external borders, in particular the Schengen Borders Code established by Regulation (EU) 2016/399.

3. The Agency shall contribute to the continuous and uniform application of Union law, including the Union acquis on fundamental rights, at all external borders. Its contribution shall include the exchange of good practices.

Article 7

Accountability

The Agency shall be accountable to the European Parliament and to the Council in accordance with this Regulation.

Article 8

Tasks

1. The Agency shall perform the following tasks with a view to contributing to an efficient, high and uniform level of border control and return:

(a) monitor migratory flows and carry out risk analysis as regards all aspects of integrated border management;

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

(c) monitor the management of the external borders through liaison officers of the Agency in Member States;

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

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

(f) provide technical and operational assistance to Member States and third countries in accordance with Regulation (EU) No 656/2014 and international law, in support of search and rescue operations for persons in distress at sea which may arise during border surveillance operations at sea;

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

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

(i) within the framework of the migration management support teams at hotspot areas: (i) deploy European Border and Coast Guard teams and technical equipment to provide assistance in screening, debriefing, identification and fingerprinting; (ii) establish a procedure for referring and providing initial information to persons who are in need of, or wish to apply for, international protection, in cooperation with the European Asylum Support Office (EASO) and national authorities;

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

(k) deploy the necessary equipment and border guards and other relevant staff from the rapid reaction pool for the practical execution of the measures needed to be taken in a situation requiring urgent action at the external borders;

(l) assist Member States in circumstances requiring increased technical and operational assistance to implement the obligation to return returnees, including through the coordination or organisation of return operations;

(m) within the respective mandates of the agencies concerned, cooperate with Europol and Eurojust and provide support to Member States in circumstances requiring increased technical and operational assistance at the external borders in the fight against organised cross-border crime and terrorism;

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

(o) set up and deploy European return intervention teams during return interventions;

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

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

(r) develop and operate, in accordance with Regulation (EC) No 45/2001 and Framework Decision 2008/977/JHA, information systems that enable swift and reliable exchanges of information regarding emerging risks in the management of the external borders, illegal immigration and return, in close cooperation with the Commission, Union bodies, offices and agencies as well as the European Migration Network established by Council Decision 2008/381/EC (30);

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

(t) cooperate with the European Fisheries Control Agency and the European Maritime Safety Agency, each within its mandate, to support the national authorities carrying out coast guard functions as set out in Article 53, by providing services, information, equipment and training, as well as by coordinating multipurpose operations;

(u) assist Member States and third countries in the context of technical and operational cooperation between them in the matters covered by this Regulation.

2. Member States may continue cooperation at an operational level with other Member States and/or third countries, where such cooperation is compatible with the tasks of the Agency. Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives. Member States shall report to the Agency on that operational cooperation with other Member States and/or third countries at the external borders and in the field of return. The executive director shall inform the management board on those matters on a regular basis and at least once a year.

3. The Agency shall engage in communication activities on its own initiative on matters falling within its mandate. It shall provide the public with accurate and comprehensive information about its activities.

Communication activities shall not be detrimental to the tasks referred to in paragraph 1, in particular by revealing operational information which, if made public, would jeopardise attainment of the objective of operations. Communication activities shall be carried out without prejudice to Article 50 and in accordance with relevant communication and dissemination plans adopted by the management board.

Section 2

Monitoring and crisis prevention

Article 9

Duty to cooperate in good faith

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

Article 10

Obligation to exchange information

In order to perform the tasks conferred on them by this Regulation, in particular for the Agency to monitor the migratory flows towards and within the Union, to carry out risk analysis and to perform the vulnerability assessment, the Agency and the national authorities responsible for border management and return, including coast guards to the extent that they carry out border control tasks, shall, in accordance with this Regulation and other relevant Union and national law regarding the exchange of information, share in a timely and accurate manner all necessary information.

Article 11

Monitoring of migratory flows and risk analysis

1. The Agency shall monitor migratory flows towards and within the Union, trends and other possible challenges at the external borders of the Union. For this purpose, the Agency shall, by a decision of the management board based on a proposal of the executive director, establish a common integrated risk analysis model, which shall be applied by the Agency and the Member States. It shall also carry out the vulnerability assessment in accordance with Article 13.

2. The Agency shall prepare general risk analyses, which shall be submitted to the European Parliament, to the Council and to the Commission in accordance with Article 50, and tailored risk analyses for operational activities.

3. The risk analysis prepared by the Agency shall cover all aspects relevant to European integrated border management with a view to developing a pre-warning mechanism.

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

5. The results of the risk analysis shall be submitted in a timely and accurate manner to the management board.

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

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

Article 12

Liaison officers in Member States

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

The Agency may decide that a liaison officer covers up to four Member States which are geographically close to each other.

2. The executive director shall appoint experts from the staff of the Agency to be deployed as liaison officers. The executive director shall, based on risk analysis and in consultation with the Member States concerned, make a proposal on the nature and terms of the deployment, the Member State or region to which a liaison officer may be deployed and possible tasks not covered by paragraph 3. The proposal from the executive director shall be subject to approval by the management board. The executive director shall notify the Member State concerned of the appointment and shall determine, together with the Member State, the location of deployment.

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

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

(b) support the collection of information required by the Agency for the monitoring of illegal immigration and risk analyses referred to in Article 11;

(c) support the collection of information referred to in Article 13 and required by the Agency, to carry out the vulnerability assessment;

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

(e) contribute to promoting the application of the Union acquis relating to the management of the external borders, including with regard to respect for fundamental rights;

(f) where possible assist the Member States in preparing their contingency plans concerning border management;

(g) facilitate the communication between the Member State and the Agency, share relevant information from the Agency with the Member State, including information about ongoing operations;

(h) report regularly to the executive director on the situation at the external borders and the capacity of the Member State concerned to deal effectively with the situation at the external borders; report also on the execution of return operations towards relevant third countries;

(i) monitor the measures taken by the Member State with regard to a situation requiring urgent action at the external borders as referred to in Article 19.

If the liaison officer's reports referred to in point (h) raise concerns about one or more aspects relevant for the Member State concerned, the latter will be informed without delay by the executive director.

4. For the purposes of paragraph 3, the liaison officer shall, in compliance with the national and Union security and data protection rules:

(a) receive information from the national coordination centre and the national situational picture established in accordance with Regulation (EU) No 1052/2013;

(b) keep regular contacts with national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks, whilst informing a point of contact designated by the Member State concerned.

5. The report of the liaison officer shall form part of the vulnerability assessment as referred to in Article 13. The report shall be transmitted to the Member State concerned.

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

Article 13

Vulnerability assessment

1. The Agency shall, by decision of the management board based on a proposal of the executive director, establish a common vulnerability assessment methodology. This shall include objective criteria against which the Agency shall carry out the vulnerability assessment, the frequency of such assessments and how consecutive vulnerability assessments are to be carried out.

2. The Agency shall monitor and assess the availability of the technical equipment, systems, capabilities, resources, infrastructure, adequately skilled and trained staff of Member States necessary for border control. It shall do so as a preventive measure on the basis of a risk analysis prepared in accordance with Article 11(3). The Agency shall carry out such monitoring and assessment at least once a year, unless the executive director, based on risk assessments or a previous vulnerability assessment, decides otherwise.

3. Member States shall, at the request of the Agency, provide information as regards technical equipment, staff and to the extent possible, the financial resources available at national level to carry out border control. Member States shall also provide information on their contingency plans on border management at the Agency's request.

4. The aim of the vulnerability assessment is for the Agency to assess the capacity and readiness of Member States to face upcoming challenges, including present and future threats and challenges at the external borders; to identify, especially for those Member States facing specific and disproportionate challenges, possible immediate consequences at the external borders and subsequent consequences on the functioning of the Schengen area; and to assess their capacity to contribute to the rapid reaction pool referred to in Article 20(5). That assessment is without prejudice to the Schengen evaluation mechanism.

In this assessment, the Agency shall take into account Member States' capacity to carry out all border management tasks, including their capacity to deal with the potential arrival of large numbers of persons on their territory.

5. The results of the vulnerability assessment shall be submitted to the Member States concerned. The Member States concerned may comment on that assessment.

6. When necessary the executive director shall, in consultation with the Member State concerned, make a recommendation 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 executive director shall invite the Member States concerned to take the necessary measures.

7. The executive director shall base the measures to be recommended to the Member States concerned on the results of the vulnerability assessment, taking into account the Agency's risk analysis, the comments of the Member State concerned and the results of the Schengen evaluation mechanism.

These measures should be aimed at eliminating the vulnerabilities identified in the assessment in order for Member States to increase their readiness to face upcoming challenges by enhancing or improving their capabilities, technical equipment, systems, resources and contingency plans.

8. Where a Member State does not implement the necessary measures of the recommendation within the time limit referred to in paragraph 6 of this Article, 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 19.

9. The results of the vulnerability assessment shall be transmitted, in accordance with Article 50, on a regular basis and at least once a year to the European Parliament, to the Council and to the Commission.

Section 3

External border management

Article 14

Actions by the Agency at the external borders

1. A Member State may request the Agency's assistance in implementing its obligations with regard to the control of the external borders. The Agency shall also carry out measures in accordance with Article 19.

2. The Agency shall organise the appropriate technical and operational assistance for the host Member State and it may, acting in accordance with the relevant Union and international law, including the principle of non-refoulement, take one or more of the following measures:

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

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

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

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

(e) within the framework of operations mentioned in points (a), (b) and (c) of this paragraph and in accordance with Regulation (EU) No 656/2014 and international law, provide technical and operational assistance to Member States and third countries, in support of search and rescue operations for persons in distress at sea which may arise during border surveillance operations at sea;

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

(g) deploy technical equipment.

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

4. If the Agency has substantial additional financial needs due to a situation at the external borders, it shall inform the European Parliament, the Council and the Commission thereof without delay.

Article 15

Initiating joint operations and rapid border interventions at the external borders

1. A Member State may request that the Agency launch joint operations to face upcoming challenges, including illegal immigration, present or future threats at its external borders or cross-border crime, or to provide increased technical and operational assistance when implementing its obligations with regard to the control of the external borders.

2. At the request of a Member State faced with a situation of specific and disproportionate challenges, especially the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of that Member State without authorisation, the Agency may deploy a rapid border intervention for a limited period of time on the territory of that host Member State.

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

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

5. The objectives of a joint operation or rapid border intervention may be achieved as part of a multipurpose operation. Such operations may involve coast guard functions and the prevention of cross-border crime, including the fight against migrant smuggling or trafficking in human beings, and migration management, including identification, registration, debriefing and return.

Article 16

Operational plan for joint operations

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

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

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

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

(b) the foreseeable duration of the joint operation;

(c) the geographical area where the joint operation will take place;

(d) a description of the tasks, responsibilities, including with regard to the respect for fundamental rights, and special instructions for the European Border and Coast Guard teams, including on permissible consultation of databases and permissible service weapons, ammunition and equipment in the host Member State;

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

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

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

(h) detailed provisions on immediate incident reporting by the Agency to the management board and to relevant national authorities;

(i) a reporting and evaluation scheme containing benchmarks for the evaluation report, including with regard to the protection of fundamental rights, and final date of submission of the final evaluation report;

(j) regarding sea operations, specific information on the application of the relevant jurisdiction and legislation in the geographical area where the joint operation takes place, including references to national, international and Union law regarding interception, rescue at sea and disembarkation. In that regard the operational plan shall be established in accordance with Regulation (EU) No 656/2014;

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

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

(m) procedures setting out a mechanism to receive and transmit to the Agency a complaint against all persons participating in a joint operation or rapid border intervention, including border guards or other relevant staff of the host Member State and members of the European Border and Coast Guard teams alleging breaches of fundamental rights in the context of their participation in a joint operation or rapid border intervention;

(n) logistical arrangements including information on working conditions and the environment of the areas in which the joint operation is foreseen to take place.

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

Article 17

Procedure for launching a rapid border intervention

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

2. The executive director shall immediately inform the management board of a Member State's request to launch a rapid border intervention.

3. When deciding on the request of a Member State, the executive director shall take into account the findings of the Agency's risk analyses and the analysis layer of the European situational picture established in accordance with Regulation (EU) No 1052/2013 as well as the outcome of the vulnerability assessment referred to in Article 13 and any other relevant information provided by the Member State concerned or another Member State.

4. The executive director shall take a decision on the request to launch a rapid border intervention within two working days from the date of receipt of the request. The executive director shall simultaneously notify the Member State concerned and the management board in writing of the decision. The decision shall state the main reasons on which it is based.

5. If the executive director decides to launch a rapid border intervention, he or she shall deploy European Border and Coast Guard teams from the rapid reaction pool in accordance with Article 20(5) and the rapid reaction equipment pool in accordance with Article 39(7), and where necessary, he or she shall decide on the immediate reinforcement by one or more European Border and Coast Guard teams, in accordance with Article 20(8).

6. The executive director together with the host Member State shall draw up an operational plan as referred to in Article 16(3) immediately and, in any event, no later than three working days from the date of the decision.

7. As soon as the operational plan has been agreed upon and provided to the Member States, the executive director shall request in writing the Member States to immediately deploy the border guards or other relevant staff that form part of the rapid reaction pool. The executive director shall indicate the profiles and numbers of border guards or other relevant staff, required from each Member State from among those identified in the rapid reaction pool.

8. In parallel to the deployment referred to in paragraph 7, and where necessary, to secure the immediate reinforcement of the European Border and Coast Guard teams deployed from the rapid reaction pool, the executive director shall inform the Member States of the requested number and profiles of border guards or other relevant staff which are to be additionally deployed. This information shall be provided in writing to the national contact points and shall indicate the date on which the deployment is to take place. A copy of the operational plan shall also be provided to them.

9. Member States shall ensure that the number and profiles of the border guards or other relevant staff assigned to the rapid reaction pool are immediately made available to the Agency to guarantee a complete deployment in accordance with Article 20(5) and (7). Member States shall also make additional border guards and other relevant staff available from the national pool in accordance with Article 20(8).

10. Deployment of the rapid reaction pool shall take place no later than five working days after the date on which the operational plan is agreed between the executive director and the host Member State. Additional deployment of European Border and Coast Guard teams, shall take place where necessary, within seven working days of the deployment of the rapid reaction pool.

11. If the rapid reaction pool is deployed, the executive director shall, in consultation with the management board, immediately consider the priorities with regard to the Agency's ongoing and foreseen joint operations at other external borders in order to provide for possible reallocation of resources to the areas of the external borders where a strengthened deployment is most needed.

Article 18

Migration management support teams

1. Where a Member State faces disproportionate migratory challenges at particular hotspot areas of its external borders characterised by large inward mixed migratory flows, that Member State may request technical and operational reinforcement by migration management support teams. That Member State shall submit a request for reinforcement and an assessment of its needs to the Agency and other relevant Union agencies, in particular EASO and Europol.

2. The executive director, in coordination with other relevant Union agencies, shall assess a Member State's request for reinforcement and the assessment of its needs for the purpose of defining a comprehensive reinforcement package consisting of various activities coordinated by the relevant Union agencies to be agreed upon by the Member State concerned.

3. The Commission shall, in cooperation with the host Member State and the relevant agencies, establish the terms of cooperation at the hotspot area and be responsible for the coordination of the activities of the migration management support teams.

4. The technical and operational reinforcement provided by the European Border and Coast Guard teams, the European return intervention teams and experts from the Agency's staff in the framework of the migration management support teams, may include:

(a) in full respect for fundamental rights, providing assistance in screening of third-country nationals arriving at the external borders, including the identification, registration, and debriefing of those third-country nationals and, where requested by the Member State, the fingerprinting of third-country nationals and providing information regarding the purpose of these procedures;

(b) the provision of initial information to persons who wish to apply for international protection and their referral to the competent national authorities of the Member State concerned or EASO;

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

5. Migration management support teams shall, where necessary, include staff with expertise in child protection, trafficking in human beings, protection against gender-based persecution and/or fundamental rights.

Article 19

Situation at the external borders requiring urgent action

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 the necessary measures in accordance with a decision of the management board referred to in Article 13(8); 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 15, 17 or 18, or is not taking the necessary steps to implement actions under those Articles,

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.

2. If a situation requiring urgent action arises, the European Parliament shall be informed of that situation without delay and shall be informed of all subsequent measures and decisions taken in response.

3. 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:

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

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

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

(d) deploy technical equipment;

(e) organise return interventions.

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

(a) determine the actions to be taken for the practical execution of the measures identified in that decision, including the technical equipment and the number and profiles of the border guards and other relevant staff needed to meet the objectives of that decision;

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

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

6. The Agency shall, without delay and in any case within five working days from establishment of the operational plan, deploy the necessary staff from the rapid reaction pool referred to in Article 20(5) for the practical execution of the measures identified in the Council decision referred to in paragraph 1 of this Article. Additional European Border and Coast Guard teams shall be deployed as necessary at a second stage and in any case within seven working days from the deployment of the rapid reaction pool.

7. The Agency shall, without delay and in any case within 10 working days from establishment of the operational plan, deploy the necessary technical equipment for practical execution of the measures identified in the Council decision referred to in paragraph 1.

Additional technical equipment shall be deployed as necessary at a second stage in accordance with Article 39.

8. The Member State concerned shall comply with the Council decision referred to in paragraph 1. For that purpose it shall immediately cooperate with the Agency and take the necessary action to facilitate the implementation of that decision and the practical execution of the measures set out in that decision and in the operational plan agreed upon with the executive director.

9. The Member States shall make available the border guards and other relevant staff or staff involved in return-related tasks, determined by the executive director in accordance with paragraph 4 of this Article. The Member States may not invoke the situation referred to in Article 20(3) and (8).

10. 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 as provided for under paragraph 8 of this Article, the Commission may trigger the procedure provided for in Article 29 of Regulation (EU) 2016/399.

Article 20

Composition and deployment of European Border and Coast Guard teams

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

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

3. The contribution by Member States as regards their border guards to specific joint operations for the following year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. Such a request shall be made at least 21 working days before the intended deployment. If a Member State invokes such an exceptional situation, it shall provide comprehensive reasons and information on the situation to the Agency in writing, the content of which shall be included in the report referred to in paragraph 12.

4. As regards rapid border interventions, on a proposal by the executive director, the management board shall decide by a three-quarters majority on the profiles and the minimum number of border guards or other relevant staff that correspond to those profiles to be made available for a rapid reaction pool of European Border and Coast Guard teams. The same procedure shall apply with regard to any subsequent changes in the profiles and the overall number of border guards or other relevant staff of the rapid reaction pool. Member States shall contribute to the rapid reaction pool via a national expert pool on the basis of the various defined profiles by nominating border guards or other relevant staff corresponding to the required profiles.

5. The rapid reaction pool shall be a standing corps placed at the immediate disposal of the Agency and which can be deployed from each Member State within five working days from when the operational plan is agreed upon by the executive director and the host Member State. For that purpose, each Member State shall, on a yearly basis, make available to the Agency a number of border guards or other relevant staff. Their profiles shall be as defined in the decision of the management board. The total number of staff made available by the Member States shall amount to a minimum of 1 500 border guards or other relevant staff. The Agency may verify whether the border guards proposed by Member States correspond to the defined profiles. The Agency may request that a Member State remove a border guard from the pool in the case of misconduct or infringement of the applicable rules.

6. Each Member State shall be responsible for its contribution to the number of border guards or other relevant staff, as referred to in paragraph 5, in accordance with Annex I.

7. Member States shall make the border guards and/or other relevant staff from the rapid reaction pool available for deployment at the request of the Agency. If a risk analysis and any available vulnerability assessment show that a Member State is faced with a situation that would substantially affect the discharge of national tasks, its contribution to the deployment of a rapid border intervention shall be half of its contribution fixed in Annex I. A host Member State where a rapid border intervention is taking place shall not deploy staff forming part of its fixed contribution to the rapid reaction pool. If there is a shortage of staff for deployment in the rapid border intervention, the management board shall decide how that shortage is to be filled based on a proposal of the executive director.

8. Where necessary, the deployment of European Border and Coast Guard teams from the rapid reaction pool shall be immediately supplemented by additional European Border and Coast Guard teams. For that purpose, Member States shall, at the request of the Agency, immediately communicate the number, names and profiles of border guards and other relevant staff from their national pool whom they are able to make available within seven working days from the start of the rapid border intervention. Member States shall make the border guards and other relevant staff available for deployment at the request of the Agency unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. If a Member State invokes such an exceptional situation, it shall provide comprehensive reasons and information on the situation to the Agency in writing, the content of which shall be included in the report referred to in paragraph 12.

9. If a situation arises in which more border guards are required than provided for under paragraphs 5 and 8, the executive director shall immediately inform the European Parliament, the Council and the Commission. He or she shall also call upon the Council to seek commitments from Member States to meet the shortage.

10. Member States shall ensure that the border guards and other relevant staff which they contribute match the profiles and the numbers decided upon by the management board. The duration of the deployment shall be determined by the home Member State but in any event shall not be less than 30 days, except if the operation of which the deployment is a part has a shorter duration than 30 days.

11. The Agency shall contribute to the European Border and Coast Guard teams with competent border guards or other relevant staff seconded by the Member States as national experts to the Agency. The contribution by Member States as regards the secondment of their border guards or other relevant staff to the Agency for the following year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the border guards or other relevant staff available for secondment, unless that would seriously affect the discharge of national tasks. In such situations Member States may recall their seconded border guards or other relevant staff.

Such secondments may be for 12 months or more but in any event shall not be for less than three months. The seconded border guards and other relevant staff shall be considered to be members of the teams and they shall have the tasks and powers of the members of their teams. The Member State that has seconded those border guards or other relevant staff shall be considered to be their home Member State.

Other staff employed by the Agency on a temporary basis who are not qualified to perform border control functions shall only be deployed during joint operations for coordination and other tasks which do not require full border-guard training. They shall not form part of the European Border and Coast Guard teams.

12. The Agency shall inform the European Parliament on an annual basis of the number of border guards that each Member State has committed and the number of border guards actually deployed to the European Border and Coast Guard teams in accordance with this Article. This report shall list the Member States that have invoked the exceptional situation referred to in paragraphs 3 and 8 in the previous year. It shall also include the reasons and information provided by the Member State concerned.

Article 21

Instructions to the European Border and Coast Guard teams

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

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

3. In cases where the instructions issued to the European Border and Coast Guard teams are not in compliance with the operational plan, the coordinating officer shall immediately report to the executive director, who may, if appropriate, take action in accordance with Article 25(3).

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

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

Article 22

Coordinating officer

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

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

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

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

(b) monitor the correct implementation of the operational plan, including as regards the protection of fundamental rights and report to the Agency on this;

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

(d) report to the executive director where the instructions issued to the European Border and Coast Guard teams by the host Member States are not in compliance with the operational plan.

4. In the context of joint operations or rap