Opinion of the European Economic and Social Committee on ‘Proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Council Joint Action 98/700/JHA, Regulation (EU) No 1052/2013 of the European Parliament and of the Council and Regulation (EU) 2016/1624 of the European Parliament and of the Council’

A contribution from the European Commission to the Leaders’ meeting in Salzburg on 19-20 September 2018

(COM(2018) 631 final — 2018/0330 (COD))

(2019/C 110/12)

Rapporteur-general: Antonello PEZZINI

Referral Commission, 29.10.2018 European Parliament, 22.10.2018 Legal basis Article 304 TFEU Section responsible Employment, Social Affairs and Citizenship Adopted at plenary 12.12.2018 Plenary session No 539 Outcome of vote (for/against/abstentions) 127/1/5

1. Conclusions and recommendations

1.1. The Committee firmly believes that in an area of free movement, external borders become common borders, and whoever enters any part of the EU enters the European Union’s area of freedom, security and justice, with all the rights and obligations that this entails for citizens and for national and European institutions.

1.2. The EESC demands improvements in the way that migration is managed, through a joint effort between Member States to tackle the root causes that drive people to seek a better life away from their homelands.

1.3. The EESC recommends, in the absence of a clearly-defined framework supported by all Member States for a common policy on migration and development aid in emigration countries, not delegating to the Commission the power to adopt autonomous acts.

1.4. The EESC firmly supports the proposal to provide the Agency with its own permanent operational arm, made up of 10 000 staff, and thus, working together with the Member States, with the necessary capabilities to: — protect the EU’s external borders; — prevent irregular movements; — manage legal migration; — implement the return of irregular migrants effectively.

1.5. The Committee recommends that the necessary cooperation between the Agency and the national administrations, which are traditionally responsible for border control, be defined and organised at European level.

1.6. Just as importantly, the EESC believes that a clear, widely-accepted definition of the Agency’s tasks will avoid overlaps and conflicts between responsibilities, and we call for the chain of command between Agency officers and national officials to be established in a clear and transparent manner.

1.7. The EESC recommends that, in the event of specific and disproportionate challenges at external borders, the Agency should be able to intervene at the request of the Member State concerned, by organising and coordinating rapid interventions at the border, sending — in agreement and coordination with the Member State concerned, which should retain control over and responsibility for management — teams of standing corps equipped with their own modern equipment.

1.8. The EESC endorses the recommendations regarding the Agency’s staff, both as regards respect for human life and the restrictions on the use of firearms, and with regard to refusing or granting visas at the border, both of these being important prerogatives of the authorities responsible for law and order in the Member States.

1.8.1. In this regard the Committee recommends that the Member States be able to appeal to the subsidiarity principle in both cases, and that the Agency Staff Regulations provide for a high level of obligations, especially in the area of confidentiality requirements.

1.9. The EESC strongly recommends further developing the control mechanisms referred to in Annex V, Chapter 3 of the proposal applying in the event of breach of the rules by staff. The mechanisms should provide for referral to the EU courts.

1.10. Given the role which would be played by the Agency in the event of detention of individuals and their potential return to their countries of origin, the Committee recommends that statutory staff are given training modules on respect for fundamental rights.

1.11. The Committee considers it crucial that the Agency devote a significant share of its budget to updating its equipment.

1.12. In the EESC’s view, the multi-annual strategic policy cycle for European integrated border management should be established by the European Parliament and the Council, after consulting the Committee, while annual planning should be delegated to the border and coast guard, along with an annual requirement to report on the measures implemented, budgets used and tasks carried out.

1.13. As regards international cooperation, the Committee recommends a close link between the measures provided for by the proposal and the development of other relevant policies, especially through the Cotonou Agreement.

1.14. The Committee recommends strengthening the Consultative Forum assisting the Agency with participation by the relevant organisations. It also calls for organised civil society to be part of this Forum, via the EESC.

2. Background

2.1. In an area of free movement, the external borders become common borders: today they consist of more than 50 000 kilometres, meaning that a security problem in one Member State or at its external borders has the potential to affect all Member States.

2.1.1. A common area of freedom, security and justice is therefore based on mutual trust, particularly in the face of new challenges, widespread threats and unforeseeable issues, which call for: greater cooperation, action by qualified personnel and better information. Essentially, we must aim to implement practical solidarity, to combine and amplify the value offered by each individual Member State.

2.2. In the Lisbon Treaty, border management is covered by Part 3, Title V TFEU, in the Chapter on border checks, asylum and immigration, with the aim of creating an ‘integrated management system for external borders’ as laid down in Article 77(1)(c). These border management arrangements are with a view to establishing an ‘Area of freedom, security and justice’.

2.3. The Treaties imply that free movement of people within the EU must necessarily be accompanied by a common policy on the management and control of third-country nationals.

2.3.1. Further extension of existing and inadequate external border checks, or the reintroduction of new internal controls going against history, would impose higher costs on the EU as a whole, severely damaging the single market, which is one of the European project’s greatest successes.

2.4. European integrated border management, based on a four-level access control model, includes: — measures in third countries, such as those set out under the common visa policy, — measures with neighbouring third countries, — measures aimed at increased and better control of external borders, — risk analysis and measures within the Schengen area and return.

2.5. After first creating a network of national experts, under the auspices of a joint body of experts called the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) ( 1 ) from 2002-2003, a European border agency, Frontex ( 2 ) , was set up.

2.6. European Border and Coast Guard Agency to improve external border control in Member States and the Schengen area, with a view to: The coordinating agency was replaced in 2016 ( 3 ) , bringing to bear the experience of theto improve external border control in Member States and the Schengen area, with a view to: — performing a vulnerability assessment of Member States’ control capacity in the area of border controls on individuals; — organising joint operations and rapid border interventions to strengthen the capacity of the Member States to control external borders, and to tackle challenges arising from illegal immigration and organised crime; — assisting the Commission to coordinate support teams when a Member State faces disproportionate migration pressures at specific points on their external border; — ensuring a practical response in cases requiring urgent action at the external borders; — providing technical and operational assistance in support of search and rescue operations for persons in distress at sea during border surveillance operations; — helping to establish a rapid intervention reserve pool of at least 1 500 border guards; — appointing the Agency’s liaison officers in the Member States; — organising, coordinating and conducting return operations and interventions; — promoting operational cooperation between Member States and third countries on border management.

2.7. Since its establishment in October 2016, the European Border and Coast Guard Agency has become the EU’s nerve centre for returns ( 4 ) and is able to effectively support Member States in returning those who do have the right to remain in the EU.

2.8. The European Parliament gave its opinion on the various resolutions and expressed ‘great concern regarding the implementation of the European Border and Coast Guard Regulation ((EU) 2016/1624).’ It underlined the need for multi-purpose operations to be conducted by the European Border and Coast Guard Agency with the aim of responding to the need for maritime search-and-rescue assets ( 5 ) and to the need to establish a genuine integrated border management strategy.

2.9. The Committee adopted a resolution ( 6 ) in support of the Schengen area, in which it called on the Council and the Member States to ensure freedom of movement. In its opinion, the EESC also highlighted ( 7 ) the need for this to ‘go hand in hand with more transparency regarding the Agency’s governance and actions, as well as more accountability’.

2.10. The EESC also emphasised ( 8 ) the need to ‘improve cooperation between the border agency and national authorities’, ‘coordination between the various agencies and institutions with responsibilities for border control, coastal surveillance, maritime security, rescue at sea, customs and fisheries’ and highlighted that ‘improving the management of external borders must be adopted in tandem with changes in the common asylum system’.

2.11. ‘When people’s lives or safety are at risk at external borders, whether maritime or land borders, the primary obligation of the Border Guard and the other institutions involved at these locations is to rescue people and give them adequate care’ ( 9 )

2.12. Global Compact for Safe, Orderly and Regular Migration The EESC — as highlighted in the EU Agenda on Migration and theMigration ( 10 ) — strongly emphasises the need to improve migration management by addressing the root causes that drive people to seek a life elsewhere.

3. The Commission proposal

3.1. The Commission proposal aims to reform the European Border and Coast Guard by establishing the Agency’s new capabilities, in particular providing for creation of the European Border and Coast Guard standing corps and for purchase of the Agency’s own equipment, to adequately tackle other new or upgraded tasks.

3.2. On the basis of the total costs of the current and future terms — EUR 1,22 billion for the period 2019-2020 and EUR 11,27 billion for the period 2021-2027 — the Commission proposes to create a European Border and Coast Guard standing corps with executive powers, made up of 10 000 EBCG operational staff ( 11 ) , by 2020. This would provide the Agency with its own effective, flexible operational arm, allowing it to adapt its work to operational needs.

3.3. The standing corps should be created as part of a well-functioning European Border and Coast Guard, and Member States, the Union and the EU agencies ( 12 ) — especially the European Border and Coast Guard Agency — should be well coordinated and contribute towards achieving common and shared policy objectives.

3.4. The scope of the proposals excludes the Kingdom of Denmark, Ireland and the United Kingdom (except in the event of possible cooperation, to be defined), while their application is suspended for Gibraltar. However, Iceland, the Kingdom of Norway, the Swiss Confederation and the Principality of Liechtenstein are included, as the Regulation constitutes a development of the provisions of the Schengen acquis .

4. General comments

4.1. The Committee firmly believes that in an area of free movement, external borders must be considered common borders, and whoever enters any part of the EU enters the area of freedom, security and justice, with all the rights and obligations that this entails.

4.2. The EESC considers that it took too long to implement an integrated management system as provided for by Article 77(2)(d) TFEU, consistent with a definition, agreed by all Member States, which could not be postponed.

4.3. The Committee supports the objective of providing the Agency with its own substantial operational arm, which should provide the EU with the capacity needed to protect the external borders, prevent secondary movements and carry out return of irregular migrants effectively.

4.4. The Committee was the first institution to propose the creation of a European border guard ( 13 ) and fully endorses this objective in order to secure the external borders, with a standing corps and effective integrated management of the external borders. In the spirit of shared responsibility, the Agency should play the role of regularly monitoring the external borders, not only by providing situational awareness and risk analysis, but also through the presence of its staff experts in the Member States.

4.5. The EESC considers that in the event of specific and disproportionate challenges at the external borders, the Agency could intervene at the request of a Member State, organising and coordinating rapid interventions at the border by sending — in agreement and coordination with the Member State concerned, which should retain primary responsibility for managing its own sections of the external border — teams of European Border and Coast Guard.

4.6. permanent delegation to the Commission of the power to adopt autonomous acts defining the political priorities and strategic guidelines on integrated border management to be premature. While it considers individual interventions by the Agency, at the decision of the Commission, to be useful ‘in emergencies and following transparent procedures to keep European legislators (Parliament and Council) directly informed’ ( 14 ) , the Committee considers — in the absence of a definite common framework supported by all Member States for an EU policy on migration and development aid in countries of emigration — theof the power to adopt autonomous acts defining the political priorities and strategic guidelines on integrated border management to be premature.

4.7. However, the Committee agrees that the Commission should be granted implementing powers with regard to the EUROSUR and FADO handbooks, the common rules on situational pictures and risk management, as well as for financial support for the standing corps.

4.8. In the EESC’s view, the multi-annual strategic policy cycle for the European integrated border management should be established by the European Parliament and the Council, after consulting the Committee, while annual planning would be delegated to the border and coast guard in accordance with the roadmap drawn up by the Agency’s Management Board subject to annual reporting on the measures implemented, budgets used and tasks carried out.

4.9. The Committee considers it important to strengthen the Consultative Forum to assist the Agency’s Executive Director and Management Board with questions linked to fundamental rights and the implementation of the multi-annual strategic policy cycle, with participation by the European Asylum Support Office (EASO), the EU Fundamental Rights Agency, the UN High Commissioner for Refugees and other relevant organisations, and calls for organised civil society to be part of this Forum, via the EESC.

5. Specific comments

5.1. The EESC strongly recommends further developing the mechanisms referred to in Annex V both as regards the restrictions on the use of firearms, and with regard to refusing or granting visas at the border, both of these being important prerogatives of the authorities responsible for law and order in the Member States.

5.1.1. Annex III and Annex V should be treated in the same way, to ensure consistency between national and EU rules in order to prevent people who work in the same place, with equal skills and qualifications but different rules of engagement, acting differently.

5.2. The level of requirements provided for in the Member States, particularly as regards confidentiality, should be explicitly guaranteed.

5.3. The EESC believes that, given the fact that staff from different bodies work together at borders — customs, plant protection, security, finance, immigration and return and cultural mediation officers, EASO staff, ETIAS officers, EUROSUR analysts, liaison officers, as well as national border and Agency staff — it is essential to provide EU lifelong learning packages common to the different bodies and agencies ( 15 )

5.4. It should also be ensured that there is no discrimination in treatment or working conditions between Agency and national bodies who perform the same duties with equal training, skills and qualifications.

5.5. As regards international cooperation, the Committee recommends a close link between the measures provided for by the proposal and other relevant policies, as well as measures in the area of economic and trade agreements and, in particular, in the context of dialogue between the EU and ACP countries under the Cotonou Agreement.

Brussels, 12 December 2018. The President of the European Economic and Social Committee Luca JAHIER

(1) Strategic Committee on Immigration, Frontiers and Asylum (SCIFA).

(2) Established with Council Regulation (EC) No 2007/2004 (OJ L 349, 25.11.2004, p. 1), which was subsequently amended by Regulations of the European Parliament and of the Council (EC) No 863/2007 (OJ L 199, 31.7.2007, p. 30), (EU) No 1168/2011 (OJ L 304, 22.11.2011, p. 1) and (EU) No 1052/2013 (OJ L 295, 6.11.2013, p. 11).

(3) Regulation (EU) 2016/1624 of the European Parliament and of the Council (OJ L 251, 16.9.2016, p. 1) entered into force on 6 October 2016.

(4) So far the EU has concluded 17 readmission agreements. The Cotonou agreement (the EU framework with 79 ACP countries) also includes provisions on the return of irregular migrants to their country of origin.

(5) Regulation (EU) No 656/2014 of the European Parliament and of the Council (OJ L 189, 27.6.2014, p. 93).

(6) OJ C 133, 14.4.2016, p. 1.

(7) OJ C 303, 19.8.2016, p. 109.

(8) See footnote 7.

(9) Ibid.

(10) Https://www.iom.int/global-compact-migration.

(11) European Border and Coast Guard.

(12) See, inter alia, the European Maritime Safety Agency (EMSA), the European Fisheries Control Agency (EFCA) and the European Union Satellite Centre, EUROPOL or the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (EU LISA).

(13) OJ C 128, 18.5.2010, p. 29, OJ C 303, 19.8.2016, p. 109, EESC opinion on ‘Asylum and Migration Fund (AMF) and Integrated Border Management Fund’ (SOC/600, OJ C 62, 15.2.2019, p. 184).

(14) See footnote 7.

(15) Article 69 provides for cooperation between the EBCG Agency and 12 other EU agencies and services.