EN    EN EN 
EN    EN  EUROPEAN COMMISSION 
Brussels, 24.2.2010 
SEC(2010) 149 
  
COMMISSION STAFF WORKING DOCUMENT 
IMPACT ASSESSMENT 
 
accompanying the 
 
Proposal for a 
 
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
 
amending Council Regulation (EC) No 2007/ 2004 establishing a European Agency for 
the Management of Operational Cooperation at the External Borders of the Member 
States of the European Union (FRONTEX) 
   
{COM(2010) 61 final} 
{SEC(2010) 150} 
EN 2   ENTABLE OF CONTENTS 
1. PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED 
PARTIES ......................................................................................................................5 
1.1. Background and political context .................................................................................5 1.2. Procedural issues and consultati ons with interested parties .........................................7 
2. PROBLEM DEFINITION............................................................................................8 2.1. The legal framework.....................................................................................................8 2.2. The context ............................................................................................................... ....9 
2.3. What are the problems to be addressed?.....................................................................10 2.3.1. Insufficient technical equipment put at the disposal by Member States ....................11 
2.3.2. Insufficient human resources put at the disposal for joint operations by 
Member States; lack of  uniform standards .................................................................13 
2.3.3. Inefficient coordination and fo llow up of joint operations.........................................13 
2.3.4. Insufficient and inefficient c ooperation with third countries .....................................14 
2.3.5. Collection, storage and pro cessing of personal data...................................................15 
2.3.6. Return .................................................................................................................. .......16 
2.3.7. No use of the expertise of the Agency to evaluate Member States' 
performance in the area of border management .........................................................16 
2.4. How would the problem evolve , all things being equal?............................................17 
2.5. Right to act.............................................................................................................. ....18 
3. OBJECTIVES.............................................................................................................19 3.1. General objectives (cf Arti cle 1 of the Regulation)....................................................19 
3.2. Specific objectives (cf Arti cle 2 of the Regulation) ...................................................19 
3.3. Operational objectives ................................................................................................20 4. POLICY OPTIONS ....................................................................................................20 4.1. Assessment criteria .....................................................................................................21  
5. DESCRIPTION OF SUBOPTIONS AND ANALYSIS OF IMPACTS....................21 
5.1. Revising existing provisions on the us e of technical equipment in joint 
operations, including the mechanisms fo r contributions from the Member 
States of such equipment ............................................................................................21 
5.1.1. Do the suboptions address the general objectives?.....................................................23 
EN 3   EN5.1.2. Do the options have an impact on external countries/partners? .................................24 
5.1.3. Can the involved costs be (or be come) part of the FRONTEX budget and 
how high are they?......................................................................................................24 
5.1.4. What are the possible impact s on fundamental rights? ..............................................25 
5.1.5. Comparison of the suboptions ....................................................................................25 5.2. Mechanisms to improve the availability  of border guards in joint operations ...........26 
5.2.1. Do the suboptions address the general objectives?.....................................................26 5.2.2. Does the option have an impact on external countries/partners? ...............................27 
5.2.3. Can the involved costs be (or be come) part of the FRONTEX budget and 
how high are they?......................................................................................................27 
5.2.4. What are the possible impact s on fundamental rights? ..............................................27 
5.2.5. Comparison of the suboptions ....................................................................................28 5.3. Revising the role of the Agency in preparing, coordinating and implementing 
operations, including with regard to the sharing of tasks between the Agency 
and the Member States................................................................................................28 
5.3.1. Do the suboptions address the general objectives?.....................................................29 5.3.2. Can the involved costs be (or be come) part of the FRONTEX budget and 
how high are they?......................................................................................................29 
5.3.3. What are the possible impact s on fundamental rights? ..............................................29 
5.3.4. Comparison of the options..........................................................................................30 5.4. Expanding the mandate of the Agency in cooperating with third countries on 
border management ....................................................................................................31 
5.4.1. Do the suboptions address the general objectives?.....................................................31 5.4.2. Does the option/recommendation have an impact on external 
countries/partners?......................................................................................................32 
5.4.3. Can the involved costs be (or be come) part of the FRONTEX budget and 
how high are they?......................................................................................................32 
5.4.4. What are the possible impact s on fundamental rights? ..............................................33 
5.4.5. Comparison of the suboptions ....................................................................................33 5.5. Mandating the Agency to collect and process personal data......................................34 5.5.1. Do the suboptions address the general objectives?.....................................................34 5.5.2. Do the options have an impact on external countries/partners? .................................36 
5.5.3. Can the involved costs be (or be come) part of the FRONTEX budget and 
how high are they?......................................................................................................36 
EN 4   EN5.5.4. What are the possible impact s on fundamental rights? ..............................................36 
5.5.5. Comparison of the options..........................................................................................36 5.6. Revising the mandate of the Agency as concerns return operations ..........................37 
5.6.1. Do the suboptions address the general objectives?.....................................................37 5.6.2. Does the option have an impact on external countries/partners? ...............................38 
5.6.3. Can the involved costs be (or be come) part of the FRONTEX budget and 
how high are they?......................................................................................................38 
5.6.4. What are the possible impact s on fundamental rights? ..............................................38 
5.6.5. Comparison of the options..........................................................................................38 5.7. Mandating the Agency to evaluate Memb er States' performance in the area of 
border management ....................................................................................................39 
5.7.1. Do the suboptions address the general objectives?.....................................................39 5.7.2. Does the option have an impact on external countries/partners? ...............................39 
5.7.3. Can the involved costs be (or be come) part of the FRONTEX budget and 
how high are they?......................................................................................................40 
5.7.4. What are the possible impact s on fundamental rights? ..............................................40 
5.7.5. Comparison of the options..........................................................................................40 5.8. Subsidiarity and proportionality .................................................................................40 6. ASSESSMENT OF THE PREF ERRED POLICY OPTION .....................................41 
6.1. Summary of the preferred option................................................................................41 6.2. Overall assessment of impact of  the preferred policy option .....................................41 
6.2.1. Subsidiarity and proportionality .................................................................................42 6.2.2. Costs ................................................................................................................... ........43 
7. MONITORING AND EVALUATION......................................................................43 
EN 5   EN1. PROCEDURAL ISSUES AND CO NSULTATION OF INTERESTED 
PARTIES 
1.1. Background and political context 
The Frontex Agency was set up in 2004 and became operational in 2005. 
As requested by the Hague programme th e Commission adopted on 13 February 2008 
a Communication on the evaluation and fu ture development of the FRONTEX 
Agency (COM(2008) 67 final) (h ereafter "Communication").  
In conclusion the Commission recommended a number of improvements for how the 
Agency operates within its mandate and th at in the medium-term the mandate should 
be revised. The Communication and the recommendations contained in it were based 
on a detailed Impact Assessment (SEC(2008) 148).  
The Communication was welcomed by Council conclusions in June 2008 . The 
Council shared the Commissions assessmen t that the Agency had been very 
successful since its inception and called fo r a further strengthening of the Agency, 
largely in line with the recomme ndations of the Communication.  
This call has been repeated by the Pact on immigration and asylum  agreed by the 
European Council under the French Presidenc y, which stated that coordination for the 
control of external borders of the EU will be provided by Frontex whenever it proves necessary. The Pact asked for the Agency's re sources to be strengthened to deal with 
crisis situations and that Member States will undertake to provide it with  the resources 
it requires. 
The European Council conclusions of June 2009,  in the context of the fight against 
illegal immigration and the situ ation at the southern borders of the EU in particular, 
underlined a need for strengthened borde r control operations coordinated by 
FRONTEX, clear rules of engagement for jo int patrolling and the disembarkation of 
rescued persons, and increased us e of joint return flights.  
In the same context, in its conclusions of October 2009, the European Council  
called for the enhancement of the opera tional capacities of FRONTEX as well as 
progress in its development and invited th e Commission to present proposals to that 
end early in 2010. The conclusions indicate d that such an enhancement could be 
based on the following elements: 
• the preparation of clear common operationa l procedures containing clear rules of 
engagement for joint operations at sea, with due regard to ensuring protection for 
those in need who travel in mixed flow s, in accordance with international law; 
• increased operational cooperation between FRONTEX and countries of origin and 
transit; 
• examination of the possibility of regul ar chartering, financed by FRONTEX, of 
joint return flights. 
The Stockholm programme adopted by the European Council 10-11 December 
2010 , called upon the Commission to present a proposal no later than early 2010, 
"…to clarify the mandate and enhance the role of Frontex, taking account of the 
EN 6   ENresults of the evaluation of the Agency and the role and responsibilities of the 
Member States in the area of border cont rol. Elements of these proposals could 
contain preparation of clear common operatio nal procedures containing clear rules of 
engagement for joint operations at sea, w ith due regard to en suring protection for 
those in need who travel in mixed flows,  in accordance with international law; 
increased operational cooperati on between Frontex and countr ies of origin and transit 
and examination of the possibility of regul ar chartering financed by Frontex. In order 
to promote the proper enforcement of the a pplicable statutory fr amework for Frontex 
operations, the Commission should consider  including a mechanism for reporting and 
recording incidents that can be satisfactorily followed up by the relevant authorities." 
The European Parliament adopted a resolution  on the evaluation and future 
development of the Frontex Agency following the Communication on 18 December 2008. The Resolution considered the Agency as an essential instrument in the Union's 
global strategy on immigration and called on the Commission to present proposals to 
review the mandate of the Agency in order to strengthen its role and make it more 
effective. Notably, the resolution called fo r a system of "compul sory and irrevocable 
solidarity", to "… enable Frontex, in preparing and comple ting its missions, to 
remove the uncertainty as to the extent of the resources it can count on in real time." 
The resolution also called for an increase of the Agency's budget, for better cooperation with third countries, for ob ligations on international human rights 
standards and towards asylum seekers in resc ue operations to be met, and for Frontex 
to strengthen and take up its key role  in supporting joint return operations. 
An independent evaluation  took place during 2008. That ev aluation, contracted by 
the Frontex Management Board as requested  by Article 33 of the Frontex Regulation, 
was performed by the COWI Company, Denmark.
1 On the basis of the evaluation, 
and in accordance with Article  33 of the Regulation, the Frontex Management 
Board addressed 16 recommendations  concerning changes to the legal basis of the 
Agency to the Commission on 3 July 2009.2 
With the exceptions described below this impact assessment covers all 
recommendations of the Communication and th ose issued by the Management Board. 
It also covers certain additional points ra ised in the European Council conclusions, the 
Stockholm programme and in the resolution of  the European Parliament as mentioned 
above. 
As concerns the recommendations of the 2008 Communication, the following have 
already been implemented by the Agency or are still being studied by the competent bodies, within the framework of the current legal basis: 
The setting up of specialised branches, th e merger of joint operations and the 
European Patrol Network, development of ri sk analysis together with Europol, the 
management of ICONet, the management of CIREFI, purchase of light technical 
                                                
 
1
 http://www.frontex .europa.eu/download/Z2Z4L2Zyb250ZXgvZW4vZGVmYXVsdF
9vcGlzeS82Mi8xLzE/cowi_report_final.doc  
2
 http://www.frontex .europa.eu/download/Z2Z4L2Zyb250ZXgvZW4vZGVmYXVsdF
9vcGlzeS82Mi8xLzE/recommendations_of_the_mb_following_the_article_33_evaluation200
90701_final.pdf  
EN 7   ENequipment, training on fundamental rights, as ylum and law of the sea, testing of new 
technologies, giving Frontex a role in  the Schengen evaluation mechanism, 
associating Frontex in the development of  EUROSUR, and developing interagency 
cooperation. 
Among the recommendations of the Mana gement Board based on the external 
evaluation, the definition of “external bor ders” is not taken up in this impact 
assessment, as this is a purely legal issu e and as the Commission  does not agree that 
the current definition constitutes a pr oblem. Neither is the recommendation on 
introducing a legal basis for the transit of  weapons covered, as the Commission does 
not consider the Frontex Regulation to be th e appropriate instrument for this purpose. 
Also, the following recommenda tions may be reflected in the proposal but without 
being covered in the impact assessment as it  would be disproporti onate in relation to 
the very limited changes requi red in the Regulation, or as it concerns issues which 
have become standard provisions for EC Ag encies since the legal basis for Frontex 
was adopted, or as it concerns purely legal issues: clarifying the mandate as regards 
research and development; harmonising the s ubsistence allowances for guest officers; 
introducing a provision on the strategy of the Agency (multi-annual plan); revising the 
provision on the term of office for th e members of the Management Board; 
introducing a new article on security pr ovisions; introducing a new article on 
cooperation with EU Agencies. 
The selection of recommendations covered in this impact assessment also 
corresponds, largely, to the issues that were identifie d as the most significant 
challenges facing Frontex during the stake holder consultations, in particular the 
meetings with Member States repr esentatives in the autumn of 2009. 
1.2. Procedural issues and consultations with interested parties 
In the follow-up to the Communication extensiv e discussions were held in the Council 
and the European Parliament. Civil society and academia organised discussions on the 
role of Frontex in the context of the Union's immigration policy. The Commission has participated in some of those conferences and seminars and taken note of a number of 
research papers and studies.  
Regular discussions and information exchange  have taken place with Member States 
in the context of the Management Board meetings of the Agency. The Agency has 
continuously reported on its activities in the Management Board, in the institutions, 
and through the various reports  foreseen by the legal basi s. Moreover, consultations 
have taken place between Commission offici als dealing with the FRONTEX Agency 
and their counterparts in the Agency. 
The aforementioned impact assessment and the external evaluation contain substantial 
amounts of data. In addition the annual reports of the Agency have been used, as well 
as data collected through ad hoc  consultations of the Agency. 
Frontex, in association with the Austrian authorities, organised a workshop for the 
members or their representatives of the Management Board, chaired by the 
Commission, on the review of the legal fr amework of the Agency on 10 September 
2009 in Baden, Austria. The Commission also  consulted Member States in the 
Committee on Immigration and Asylum in  its meeting on 5 October 2009. Both 
occasions provided for a useful exchange of  ideas with Member States' experts on 
EN 8   ENhow the different conclusions and recommendati ons could be translated into practical 
action and to what extent changes in  the current legal basis is required. 
While the position of the Council and its Member States as well as the European 
parliament, have been very positive as illustrated by the conclusions and resolutions quoted in the previous section, the position of civil society and academia has been 
more critical. The main concern that has been put forward is an alleged vague and 
unclear legal framework for Frontex operations  at the sea border, which is considered 
not to provide sufficient safeguards as conc erns the protection of  fundamental rights. 
A first dedicated Commission Inter-ser vice meeting took place on 2/10/2009 with 
representatives the Legal Service (SJ), the Secretariat-General (SG), Taxation and Customs Union (TAXUD), Enterprise and I ndustry (ENTR) and External Relations 
(RELEX), with a second meeting held on 03/11/2009 and a third meeting on 
11/12/2009. 
1.3. Opinion of the Impact Assessment Board 
Following the opinions of the impact assessment board of 8 December 2009 and 11 
January 2010, the impact assessment has been  revised substantially especially with 
regard to the problem definition and base line, the definition of the general and 
operational objectives, the sections related to subsidiarity and proportionality, and 
costs. 
2. PROBLEM DEFINITION 
2.1. The legal framework 
Since the entry into force of the Treaty  of Amsterdam in 1999, a number of common 
measures have been adopted to manage be tter the external borders of the European 
Union in accordance with Article 62 (1) and (2) of the EC Treaty.  
Built around the three pillars of common le gislation, common opera tions and financial 
solidarity, key steps have been taken with the adoption of the Schengen Borders 
Code
3, the Practical Handbook for Border Guards (Schengen Handbook)4 and the 
rules for local border traffic5, the establishment of Frontex6, the creation of the Rapid 
Border Intervention Teams7 and the creation of the External Borders Fund8.  
                                                 
3 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 
2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). 
4 Commission Recommendation C(2006) 5186 of 6 November 2006 establishing a common 
"Practical Handbook for Border Guards (Schengen Handbook)" to be used by Member States' 
competent authorities when carrying out the border control of persons. 
5 Regulation (EC) No 1931/2006 of the Europ ean Parliament and of the Council of 20 
December 2006 laying down rules on local border  traffic at the exte rnal borders of the 
Member States and amending the provisions of the Schengen Convention (OJ L 29 of 
3.2.2007, p. 3). 
6 Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency 
for the Management of Operational Cooperation at  the External Borders of the Member States 
of the European Union (OJ L 349, 25.11.2004, p. 1). 
7 Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 
establishing a mechanism for the creation of Rapid Border Intervention Teams and amending 
Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks 
and powers of guest officers (OJ L 199, 31.7.2007, p. 30). 
EN 9   ENThe current legal framework for the Frontex Agency 
The European Agency for the Manageme nt of Operational Cooperation at the 
External Borders of the Member States of  the European Union (FRONTEX) has been 
established by Council Regulation (EC) 2007/20049. The primary responsibility for 
the control of external borders lies with the Member States. As a result, the Agency 
has been established to ensure the coordi nation of Member Stat es’ actions in the 
implementation of Community measures, ther eby contributing to an efficient, high 
and uniform level of control on persons and su rveillance of the external borders of the 
Member States. 
The main tasks of FRONTEX are described in  articles 2 to 14 of its founding Council 
Regulation (EC) No 2007/2004, which has b een modified in 2007 by Regulation (EC) 
863/2007 of the European Parliament and of  the Council establishing a mechanism for 
the creation of Rapid Bo rder Intervention teams10. 
As core task can be highlighted to coordinate operational cooperation  between 
Member States, in the form of organising joint operations , which serve to reinforce 
border control at certain sections of the external borders for a limited (but sometime 
for several years) time as well as allowing Member States to work together to 
exchange knowledge and best practices . A further core task is the development of 
risk analysis , which on the one had provides the basis for th e operational cooperation 
organised by the Agency itself and on the ot her supports Member States in their own 
efforts in conducting border management fo r their part of the external border. 
Member States are obliged to comply w ith the provisions of the EC acquis when 
taking part in operations coordinated by Front ex, in particular the Schengen Borders 
Code. Likewise Member States must comply with the basic principles of fundamental 
rights as laid down in the Charter when  applying Community law. For sea border 
operations participating Member States ar e also bound to comply with a number of 
provisions in the area of international law th at may be applicable, notably in the field 
of search and rescue. 
The Commission has prepared a draft decision to clarify the applicable obligations on 
Member States when participating in mar itime operations coordinated by the Agency, 
including notably the applicability of the Sc hengen Borders Code and the principle of 
non-refoulement. This draft decision is inte nded to meet, in part, the request of the 
Stockholm programme as far as "rules of e ngagement" are concerned and also to meet 
the concerns expressed by civil society a nd academia. This decision is currently being 
discussed in the Council. 
2.2. The context 
Migratory pressure remains hi gh or is rising at certain bor der sections of the Union. A 
total of 175 000 illegal border crossings were detected in 2008, which was an increase 
of 20% compared to 2007. 140 000 refusals of entry were made in 2008. In 2007, 468 
                                                                                                                                            
8 Decision No 574/2007/EC of the European Parliament and of the Council of 23 May 2007 
establishing the External Borders Fund for the period 2007 to 2013 as part of the General programme "Solidarity and Management of Migration Flows" (OJ L 144, 6.6.2007, p. 22). 
9 OJ L 349, 25.11.2004, p. 1. 
10 OJ L 199, 31.7.2007, p. 30. 
EN 10   EN000 apprehensions of illegally staying pers ons were made, while more than 10 000 
victims of human trafficking were  reported by the Member States. 
These challenges must be considered in th e context of the EU's overall immigration 
policy which involves measures to fight illegal immigration, to promote legal 
immigration, and develop cooperation with thir d countries of origin and transit, as 
well as the development of a Common Eur opean Asylum System. While noting that 
border management is one tool in fighti ng illegal immigration, and while respecting 
the principle that Member States are res ponsible for controlling their part of the 
external borders, Frontex is one of many tools in the EU's border management 
policy.  In other words while an  important part of the context in which Frontex 
operates is the need to reduce illegal immigr ation, it cannot be de fined as the problem 
that Frontex was set up to  solve single-handedly. 
To put the current role of Frontex in persp ective, the total number of detections of 
irregular migrants for the y ear 2008 at the extern al borders amounts to approximately 
84 000 for the land borders of which approximately 16% are detected during Frontex operations and for the sea borders a total of approximately 91 000 of which 62 % are detected during Frontex operati ons. The number of refusals of entry is only known for 
the land borders i.e. a tota l of approximately 47 000 of which 10 % take place during 
Frontex operations.  
In 2007 488 000 return decisions were issu ed by the Member States, while 226 000 
removals were effected. Frontex has provi ded assistance regarding the return of 
approximately 800 returnees in 2008. 
In view of Frontex' role it has to be underl ined again that Frontex  cannot realistically 
be expected to address the entire problem of illegal immigration or to take over the 
responsibility for the management of the EU's external borders from the Member 
States. 
Expectations from EU institutions and Me mber States have nevertheless been very 
high since the Agency became operational in 2005 and continue to be so, as shown by the sources quoted in chapter 1. 
As an illustration the budget of the Agency  has increased much more rapidly than 
what was foreseen in the financial perspect ives and hence the quant ity of its activities 
are clearly beyond what was expected just a few years ago: from 6 million in 2005, 19 million in 2006, 42 million in 2007, 70 million in 2008, to 88 million in 2009.  
Reference can be had to the General Report of Frontex for 2008, and its work 
programme for 2009, both available via the Fron tex website, for a de tailed description 
of its on-going activities. 
2.3. What are the problems to be addressed? 
The very construction of Schengen means that  one Member State controls its section 
of the external borders on behalf of all th e others. Due to their geographical location, 
and the patterns of travel flows and mi gratory routes, Member States face unequal 
different workloads as well as critical situa tions at certain sections of the border. 
By way of illustration of the differing work load between Member States in managing 
their part of the external borders, the number  of border crossings at the air borders of 
the Netherlands were 27,7 million in 2008 wh ile 2,5 million in Hungary; at the land 
borders 23,4 million in Poland while obviously  0 in the 15 Member States/associated 
EN 11   ENcountries (fully participating in Schengen) without an external land border; at the sea 
borders 5,8 million in Greece while 110 000 in Sweden.  
In terms of migratory pressure at the se a borders Spain registered 16 000, Malta 2 
000, Italy 35 000, and Greece 32 000 illegal bo rder crossings 2008, while figures for 
other Member States were negligible.  
Based on the principle of solidarity, the EU  needs to be able to provide support to 
Member States to compensate for these differences. The External Borders Fund and the Frontex Agency  complements each other for this purpose with former being a 
tool for financial solidarity, not cove ring running costs, and the latter a tool for 
operational solidarity on a temporary a nd punctual basis, covering such costs.  
Operational solidarity is implemented in practice through joint operations, channelling 
additional resources to sectio ns of the external borders where Member States cannot 
alone cope with the pressure they are f acing. The support provided via Frontex can be 
adapted to shifting migratory pressure, moving resources from one section/Member 
State to another as migratory routes shift. 
No other tool exists that can do what Frontex does. But even though Frontex proved 
to be very useful is in providing a framew ork for Member States to cooperate with 
each other subject to particular pressures
11, the operational cooperation is still 
inefficient and insufficient. The operational solidarity pr oved to be insufficient, 
which is well illustrated by the actual deployment of equipment. Also, Frontex is not using its potential in the be st possible way, in terms of  coordination of operational 
cooperation and support to the MS in carry ing out the border management, due to 
unclear or insufficient ex isting legal provisions.  
The problems to be addressed are therefor e of a punctual nature on a number of 
specific points where Frontex  has not been able to deliver according to the 
expectations of the instituti ons or where the legal framew ork has proven inadequate in 
the light of experiences made. The speci fic problems addressed in this impact 
assessment have been identified on the basi s of the previous impact assessment, the 
external evaluation and the recommendati ons of the Management Board, and the 
conclusions of the European Council as expl ained in section 1. While these sources do 
not provide for contradictory recommendations they neither provide for an identical 
set of problems as they all emanate from an analysis carried out from different 
perspectives. Further differen ces come from the fact that  the external evaluation is 
more recent in time and was able to rely on more extensive practical experiences of 
the Agency. 
2.3.1.  Insufficient technical eq uipment put at the disposal by Member States 
This issue was covered by the Communicatio n as well as by the Management Board 
recommendations. Calls for a reinforcement of  Frontex in this respect was included in 
the Council conclusions of 2008, the Pact on immigration and asylum, the European 
Council conclusions of June and October 2009, and the Resolution of the European 
Parliament. 
                                                
 
11 Joint operation Hera off the Canary Isla nds, which has r eceived the highest budgetary 
allocation of all Frontex operations and which has been the only operation to have been 
conducted year-round, contributed to reducing the number of arrivals from around 31 000 in 
2005 to around 2 200 arrivals for 2009 (until end October). 
EN 12   ENThe previous impact assessment noted that the insufficient equipment made available 
by the Member States demonstrated the l acking operational solidarity and was the 
missing link in moving towards semi-permanent operations at key points of the external borders, that is, jo int operations conducted thr oughout the year at specific 
sections of high migratory pressure.  
The Agency itself does not own any technical equipment. The Agency is currently 
managing a Central Record of Available Technical Equipment (CRATE) which lists 
the equipment Member States have indicate d that they are willing to make available 
for joint operations. However, these indica tions are not legally binding in any way.  
By 1 January 2008 CRATE contained 18 airc raft, 20 helicopters, and a total of 91 
vessels (including open sea patr ol vessels, coastal patrol vessels, and coastal patrol 
boats). By comparison the following equipment were actually deployed during Frontex coordinated operations in 2008 by Memb er States other than the host state of 
the operation: 8 aircraft, 5 he licopters, 12 vessels; for e ach category of assets the 
average time of deployment was around one month. 
While the equipment listed in CRATE in 2009 increased somewhat, the equipment 
deployed was the following: 7 aircraft, 6 he licopters, and 9 vessels, with a similar 
average time for the deployment. If the contri butions of the host state are included the 
number of vessels was 38. 
The number of Member States contributing equipment increased from 8 in 2008 to 13 
in 2009.  
In comparison the Agency estimates, based on risk analysis and experiences of the 
operations carried out so far, its future ope rational needs to a total of 92 vessels, 14 
aircraft and 18 helicopters. 
Based on this data several problems can be identified: While Member States are ready 
to list a large number of equipment in CRATE a very small share of that equipment is 
actually made available; for example, as concerns vessels and excluding the 
contributions of the host state, only about 10% of the vessels in total. In spite of 
repeated calls by the institutions (see eg Council conclusions of June 2008 and the EP 
Resolution of December 2008) the contributio ns of the Member States, based on the 
current voluntary system, have only marginally increased. 
Secondly, a majority of the vessels deploye d come from the host state and not from 
other Member States. Conseque ntly, Frontex is not functioni ng so much as a tool for 
coordination of operational solidarity – as its general objectives indicate and as 
stressed by the European Council – but rather as a tool for financial solidarity, which 
does not form part of its objectives. 
Thirdly, based on the estimates for the futu re and leaving any budgetary constraints 
aside for the sake of this analysis, the curr ent availability of equipment will not come 
close to meeting the needs, having regard to the degree to which the equipment in 
CRATE has been made available so far. 
Besides the problem of quantity the evaluation also noted problems related to 
planning and implementation. Under the current  mandate, if equipment is required at 
short notice most Member States are not in  a position to decide, prepare and send the 
necessary technical equipment to the region where the operation will be deployed.  
EN 13   EN2.3.2.  Insufficient human resources  put at the disposal for joint operations by 
Member States; lack of uniform standards 
This issue was covered by the Communicatio n as well as by the Management Board 
recommendations. 
The current Regulation is silent on th e provision of human resources to joint 
operations. The mechanism for the rapid borde r intervention teams provides a system 
for the compulsory deployment of human re sources (border guards)  but restricted to 
emergency operations (RABIT teams). 
The Agency has nevertheless, based on ad ministrative arrangements, set up the 
"Frontex Joint Support Teams" (FJST) as a working method to organise and train 
border guards for their participation in future joint operations, which currently contain some 600 border guards of the Member Stat es. These arrangements have been copied 
from the arrangements for the RABIT teams and have been welcomed by Member States. 
The exact competencies of the Agency to or ganise those teams is however unclear as 
the current legal basis is silent on this issu e. The first problem is therefore of a legal 
nature, as the current practices should be give n a clear legal foundation. 
A second problem concerns the fact that th e Agency currently needs to make ad hoc 
requests to Member States to contribut e with border guards for each individual 
operation. This creates planning problems bot h for the Agency and for the Member 
States; the former cannot predict what Member  States will be w illing to contribute, 
and the latter cannot foresee what they will be asked to contribute, as this is dependent 
on the responses of the other Member States . This concerns to a minor extent the 
quantity (the number of border guards) but in particular the quality (the specific 
competences required); the latter issue was highlighted in the evaluation, also with 
regard to language skills. 
This problem is difficult to quantify as issu es related to the qua lity of border guards 
and the planning capacity of the Agency cannot  be put in direct relation to the number 
of illegal immigrants (potentially) detected at certain points of the external borders.  
2.3.3.  Inefficient coordination and follow up  of joint operations 
This issue was part of the Management Board recommendations and, in part, is 
covered by the Stockholm programme and the Resolution of the European Parliament. 
18 joint operations have been carried out  by the Agency in 2009, at all types of 
borders (land, air and sea). The curren t Regulation contains no rules on how 
operations under Frontex should be prepared  and conducted. As a result the Agency 
takes on a different role during diffe rent operations, depending on ad hoc 
arrangements. While the Agency does draw up an operational plan for each operation 
such a plan is not foreseen in the legal basi s. Neither, as a consequence, does the legal 
basis specify what the Agency can or should  do to ensure that the plan is actually 
agreed and properly implemented. Naturall y, border guards from different Member 
States are accustomed to different m odus operandi and will have different 
expectations in terms of objectives of the operation. As  the challenges facing one 
section of the external borders may not o ccur at other sections , some border guards 
may initially be unfamiliar with the operational environment and the tasks they are assigned. As a result the Agency is in no position to ensure that operations are 
EN 14   ENlaunched and carried out in line with the ove rall objectives of th e Agency and of the 
overall border management policy of the Union. 
The lack of clarity on this poi nt also leads to frequent mi sunderstandings in the media 
as regards the actual role and responsibilit ies of Frontex staff serving during joint 
operations.  
This is first and foremost a legal problem.  Having regard to the scope and number of 
Frontex operations the division  of tasks and responsibilities between the Agency and 
the Member States must be clear to en sure legal certainty and transparency.  
Secondly, this lack of clarity prevents  Member States from cooperating more 
efficiently with each other. An absence of  provisions in the cu rrent legal basis on 
what "coordination" actually is supposed to  mean entails an absence of coordination 
on the ground. With large numbers of borde r guards and equipment from different 
Member States working together coordinati on is a must. However, with Frontex not 
being able or competent to fulfil this role it is left to the host state of the operation, which may not have the admi nistrative capacity or sufficient experience to take on 
this role, as was noted in the evaluation. Practical experience shows also that the 
concrete role taken on by the coordinating o fficer of the Agency differs widely from 
one operation to another: in some operati ons a coordinating officer is not present 
throughout the whole operation, in other the of ficer has solely the role of observer, 
and in yet others the officer is asked to virtually take over the supervision of the 
operation. Other concrete problems seen  over recent years have involved the 
postponement of the launch of operations  due to disagreements between Member 
States on the exact content of the operationa l plan, or splitting one operation into to 
two separate, parallel operations  taking place in adjacent areas.  
Further shortcomings in this regard include the persistent lack of evaluations of joint 
operations, which is a shared responsibility  between the Agency and the participating 
Member States which entails that future  operations cannot be improved based on 
"lessons learnt". 
2.3.4.  Insufficient and inef ficient cooperation w ith third countries 
This issue was covered by the Communicatio n as well as by the Management Board 
recommendations, and by the European Council conclusions of October 2009, the 
Stockholm Programme, and the Resoluti on of the European Parliament. 
The facilitation of operationa l cooperation between Member States and third countries 
and the cooperation between FRONTEX and third countries is an important strand of the tasks of the Agency. Cooperation with th ird countries is a key component of the 
integrated border management model a nd can support the successful implementation 
of joint operations, enhance the added value of risk anal ysis, and support capacity 
building in third countries.  
A series of working arrangements (protoco ls and/or memoranda of understanding) 
have been concluded between FRONTEX and the following third countries in 
accordance with the relevant provisions of the current legal basis: Russia, Ukraine, 
Moldova, Georgia, the Western Ba lkan countries, and the USA. 
However, while cooperation based on the wo rking arrangements, or on ad hoc fact 
finding missions to third countries, can iden tify concrete follow-up measures, Frontex 
cannot carry out those measures itself like fo r example in-depth feasibility studies on 
EN 15   ENhow to upgrade the border management of the external borders of a third country. 
Follow-up is therefore not in the hands of  Frontex, although the Agency may have the 
relevant expertise at its disposal, but is dependent on finding ot her organisations or 
national authorities that could implement such projects based on available funding 
instruments.  
There is therefore no possibility for the Agen cy in assisting third countries in a more 
pro-active manner, on the basis of its work ing arrangements. Notably, third countries 
who are in the process of building up their own border management systems 
frequently request financial support from the Agency, which is seen as a natural 
interlocutor by them for that purpose. The commitment of third countries in 
cooperating with the Agency for the purpos e of i.a. operational activities would 
increase if Frontex would be able to offe r direct technical assistance. Nor can the 
Agency assist in implementing projects funded under the EU's external relations 
programmes. This problem was noted in th e previous impact assessment and has, 
since it is a "yes or no" ques tion of limitations in the legal basis, not evolved since. 
2.3.5.  Collection, storage and pro cessing of personal data  
This issue was covered by the Management Board recommendations. 
The Frontex Regulation does at  the moment not contain any specific legal basis for 
the collection and processing of personal da ta. However, the Agency is subject to 
Regulation 45/2001, whenever collection and pr ocessing of personal data is carried 
out by the agency in the exercise of ac tivities which fall within the scope of 
Community law. Under condition that the pro cessing of personal data is indispensable 
and proportionate to allow the Agency to carry out its tasks as specified by the 
Regulation such collection and processing is  subject to the provi sions laid down in 
Regulation 45/2001, including the general prin ciples of data protection. Current 
examples in this regard would include th e processing of persona l data necessary for 
the Agency to organise meetings with expe rts of Member States, third countries and 
organisations with which the Agency cooperate s, the need to process personal data as 
necessary in the organisation of joint return flights, and the storag e of certain personal 
data when such data is contained in an ancillary fashion in reports transmitted by the Member States to the Agency.  
As noted by the evaluation, the risk anal ysis carried out by the Agency could be 
substantially enriched if it could collect and process certain types of personal data, 
which could allow for a better operational support from the Agency to the Member States. This could in particular include making use of information collected during 
joint operations concerning persons involved in  the facilitation of illegal immigration. 
Currently, during joint operations, guest o fficers operate unde r the command of the 
host state of the operation (the Member State on whose territory the operation is 
carried out). When guest officers collect ce rtain personal data wh ilst carrying out their 
duties during such operations, the responsibil ity for the processing of any such data 
therefore rests with the host state. Practical experience shows that this data is not 
always analysed by the host state nor forw arded to the competent authorities at 
national or European level. 
However, if such risk analysis would i nvolve the processing of personal data by 
FRONTEX, this would require a specific legal base, based on the assessment of the 
necessity and proportionality of such measur es. Subject to applic able provisions on 
EN 16   ENcriminal investigations such data should be  forwarded to the comp etent authorities of 
the host state and to Europol.  
2.3.6.  Return 
This issue was covered by the Communicatio n as well as by the Management Board 
recommendations, as well as by the Eur opean Council Conclusions of June and 
October 2009, the Stockholm programme, an d the Resolution of the European 
Parliament. 
This area was identified in the previous impact assessment as one where less progress 
has been made in supporting Member Stat es. Since then certain progress has been 
made. The number of Frontex co-ordinated jo int return operations increased from 13 
flights (covering 428 return ees) in 2007 to 15 f lights in 2008 covering around 800 
returnees. At the same time the budget for operating expenditure have been rapidly 
increasing to a level of 2 million euro for 2008 and 5,3 million euro for 2009. In parallel Frontex has built experience in all aspects of joint remova l operations and as a 
result Member States request the presen ce of Frontex officers in joint return 
operations. 
A first shortcoming of the current situation relates to mismatch between the legal 
basis and reality: while the legal basis only talks about Frontex "assisting" Member 
States the Agency has already, and succe ssfully, taken on a "coordinating" role. 
There is however a strong call from Member States for Frontex to provide them with 
more support in this area. Problems highlighted by Member States include difficulties in obtaining travel documents for undocum ented persons and obtaining the agreement 
of the third country concerned for the retu rns with countries for which readmission 
agreements are not yet in place. Frontex is  not able to offer any assistance to the 
Member States in this regard. A second pr oblem is therefore the absence of support 
from Frontex beyond its current coordinating role. 
2.3.7.  No use of the expertise of the Agency to evaluate Member States' 
performance in the area of border management 
This issue was, to some extent, cove red by the Communication, but not by the 
Management Board recommendations. 
A possible role for the Agency in the eval uation of Member States in meeting the 
standards of the Schengen acquis was favour ably evaluated in the previous impact 
assessment.  
A role for Frontex in this regard wa s not put forward in the various council 
conclusions and EP resolutions. 
The recent proposal of the Commission to revise the existing Schengen evaluation 
mechanism foresaw an advisory role for Fr ontex with input in the form of risk 
analysis from the Agency. A role in that mechanism can be considered fully covered by the current legal basis and will therefore not form part of the problem definition of this impact assessment. 
Against this background the proble m can be defined as follows. 
Firstly, the risk analysis of the Agency re mains weak when it comes to assessing the 
capacity of Member States' border manageme nt systems to manage the threats they 
EN 17   ENare facing. An underlying reason is that Frontex is not carrying out any on-site 
inspections in the Member States to eval uate the situation from a tactical and 
operational point of view. 
Secondly, Frontex has no mandate to evaluate  or react on any shortcomings in the 
application of EC law, in cluding with regard to funda mental rights, during joint 
operations. The full compliance with the acquis could be considered especially important when those activities are funde d and coordinated by the Community. Any 
possible solutions to this problem must re spect the basic division of tasks under the 
Treaty, with the Commission being sole re sponsible for monitoring the application 
and implementation of EC law, and with th e impossibility for allocating discretionary 
powers to Community Agencies. 
2.4. How would the problem evolve, all things being equal? 
In general, without any changes to the legal framework the level of activities – 
qualitatively and quantitatively – can be expect ed to level out largely in line with what 
is foreseen in the Agency's work progr amme for 2010. A number of problems are of a 
legal nature and can only be addressed by a ppropriate amendments to the Regulation.  
It is impossible to predict in what way illegal border crossings for the Schengen area 
as a whole would evolve all things being e qual. There is no direct link between the 
functioning of Frontex and the level of illegal border crossing, as the trends depend on 
many different factors (for example the econom ic situation of the residents' country, 
friends or relatives present on the territory of the EU, the overall social environment, 
the activities of trafficker s of human beings, etc.).] 
In this context it should be  underlined that there is no ma thematical form ula at hand to 
calculate the possible successes or failures of the efforts undertaken by the national border guard authorities and the Frontex Agency. For instance the deployment of 1 
patrol vessel in the Mediterranean Sea can  result one day in th e interception of 50 
irregular migrants; however there is no possibility to know beforehand how many 
migrants might be intercepted the next day. The same applies for the number of 
deployed resources (technical and human) – if  1 patrol vessel intercepts one day 50 
irregular migrants, there is no guarantee to say that 2 pa trol vessels would intercept 
2x50 migrants.  
For those reasons the activ ities of the Frontex Agency are driven by the ongoing 
findings of thorough risk analysis when deploying technical and human resources. 
In what concerns the efficiency of the border management ensured by Frontex, the 
problem definition (see chapte r 3) describes the problems in extenso  that need to be 
addressed to optimise and further devel op the efforts undertaken by the Member 
States to secure the external borders. If st atus quo was to be continued, inefficient and 
insufficient operational cooperation in the fr amework of Frontex would persist, in 
particular with regard to:  
As concerns the technical equipment , the voluntary nature underlying the provision 
of resources, and the relianc e on Member States for this purpose, means that the 
amount of resources available for joint operati ons will remain at the current level, as 
described above, which is clearly insuffici ent compared to the needs identified. 
Without sufficient equipment at its disposal , FRONTEX would not be able to provide 
adequate and timely assistance at specific sections of the EU borders. Also the 
EN 18   ENAgency would not be able to  plan its operations  as the availability of equipment 
would remain unclear at the beginning of a given year.  
The current system entails a lack of predictability that  has a negative impact on the 
capacity of the Agency to plan operations  and allocate resources between operations 
in the most optimal way. The complete dependence on Member States contributions 
means that the Agency can never be sure th at it is able to implement an operation 
identified as necessary based on its risk analysis. Each potential operation has to 
adapt, in terms of planning and objectives, to  the resources eventu ally made available 
by Member States. 
A similar result can be expected as regards human resources , where the current 
administrative arrangements would have to  continue without a legal basis. The 
Agency has already exhausted all possibi lities to solve the current problems and 
cannot take any further measures in this rega rd without a change in the legal basis. If 
nothing changes, due to unpredictability both on the part of the Agency: whom 
Member States will be willing to contribute ; and the MS: whom they will be asked to 
contribute, the Agency will continue to meet obstacles in coordinating timely and 
efficient (the lacking specific competences required) joint operations.  
The coordination of operations  would continue to be based on ad hoc solutions as is 
currently the case. As a consequence the in sufficient transparency on who does what 
would persist. Also the inefficient system  of evaluating would make impossible to 
build on the experiences gathered in the c ourse of operations. A certain risk can be 
identified in that continuing to operate under an unclear legal framework may reduce 
the interest of Member States to participat e while the perceived lack of transparency 
of the legal framework could incite a su stained criticism against the operations 
coordinated by it.  
Cooperation with third countries  could also level out. The Agency would continue 
not being able to use its follo w up expertise. However, a clear risk is that some third 
countries would lose their in terest in cooperating with th e Agency in the absence of 
any concrete possibilities for the Agency  to more pro-actively support capacity 
building in those countries. 
The usefulness and quality of the risk analysis  carried out by the Agency would 
continue to develop al so without access to pe rsonal data, as this is not the only source 
or determining factor in this regard. However,  if the situation continues as it is today, 
the value added of information gathered by guest officers would not probably be used 
for the risk assessment purposes, also without  such access there are certain limits to 
how far a further positive developmen t can be expected to continue. 
Return operations can be expected to further develop also without changes to the 
legal framework. However, the legal basis of the Agency would not fully correspond 
to the role it is actually taking.  
Finally, the expertise of the Agency cannot be used to evaluate the performance of 
the Member States in the area of border management without a legal basis, and no 
alternative source or tool could pr ovide for that apart from Frontex. 
2.5. Right to act 
Subsidiarity and proportionality have alrea dy been addressed in the previous impact 
assessment having regard to the legal basis of the Agency. That analysis remains valid 
EN 19   ENhaving regard to the fact th at the Lisbon Treaty does not bring fundamental changes to 
the competence of the EU to act in this field and as the general objectives of the 
current legal basis are not questi oned in this impact assessment. 
A detailed description of the impacts regard ing subsidiarity and proportionality can be 
found in point 5.8. 
3. OBJECTIVES  
The objectives have already been identified in the previous impact assessment and are 
in line with the objectives as defined in the existing legal basis of the Agency (cf Article 1 of the Regulation), having regard to the problem definition as explained in 
chapter 2. In this regard it s hould be noted that there is general consensus (cf chapter 
1) that the Agency has performed very we ll since its inception and that the general 
objectives of the Agency as established by the legal basis are correctly defined. There 
are no reasons to revisit them or to c onsider adding further general objectives.  
Not all specific objectives in the previous IA are relevant for this one, as certain 
recommendations of the Communication are not covered in this impact assessment, as 
explained in chapter 1. However, one of th e specific objectives (on risk analysis) is 
now explained in some more detail to c over all recommendations of the Management 
Board. 
Therefore the objectives of th e current initiatives do not imply developing EU policy 
in new areas since it is matter of reinforc ing current actions. Ho wever a proposal in 
this area is of strategic importance becau se of the calls from the European Council 
and the European Parliament to strengthen th e role to Frontex in the management of 
the EU's external borders. 
3.1. General objectives (cf Arti cle 1 of the Regulation) 
To contribute to an integrated management of the external border s at European level, 
including through reinforcing operational so lidarity by the EU with Member States 
and through cooperating w ith third countries; 
To contribute to the effective control of the external borders by supporting the border 
management carried out by Member States; 
To facilitate the application of existing a nd future Community measures (notably core 
instruments of the EU acquis such as th e Schengen Borders Code) relating to the 
management of the external borders by ensuring the coordination of operational 
cooperation between Member States. 
3.2. Specific objectives (cf Arti cle 2 of the Regulation) 
The specific objectives reflect the different ta sks of the Agency and contribute to the 
achievement of the general objectives. 
Coordinating operational cooperation be tween Member States in the field of 
management of the external borders:  This involves notably the coordination of 
joint operations at specific border sections for a given (limited) period of time. This 
specific objective contributes directly to mo re effective controls of the external 
borders (the second general objective) by allowing for an increased deployment of 
technical means and human resour ces at specific border secti ons. It also contributes to 
EN 20   ENthe third general objective by providing for exchange of best practices and 
experiences between Member States.  
Cooperation between the Agency and the authorities of third countries.  Such 
cooperation may cover exchange of informa tion and common risk analyses, training, 
and joint operational activities. This specifi c objective contributes directly to the first 
general objective, as an integrated border management at European level must involve 
cooperation with third countries, and as a result indirectly to  the second general 
objective with positive effects on more eff ective border control and more effective 
operational coordination. 
Carrying out risk analyses.  This may include measures to facilitate the exchange of 
information relevant for the tasks of the Agency and the Member States, as well as 
cooperation with other (EU) agencies, in pa rticular with Europol , and international 
organisations. This contributes to all three general objectives, as the results feed into all four levels of the integrated borde r management, especially measures in 
cooperation with third countries, measures at the border, and measures within the 
Schengen area. Risk analyses, which is largely based on information and data transmitted by the member States, allows for focussing resources in response to 
threats and therefore to a more effective cont rol of the borders, and also to identifying 
needs for operational cooperation between Member States. 
Provide member States with the necessary  support in organising joint return 
operations.  This contributes to the first general ob jective, as return form an important 
part of the integrated border management system as a whole. 
3.3. Operational objectives 
• Ensure the availability of technical equipment for joint operations 
• Ensure the availability of qualified border guards for joint operations 
• Ensure more efficient coordination, im plementation and evaluation of joint 
operations 
• Ensure more efficient cooperation between  Frontex and third countries on border 
management 
• Improve the risk analysis carried out by Frontex by giving the Agency access to 
new sources of data 
• Improve efficiency of joint return operations 
• Improve the evaluation of the performance of Member States in the area of border 
management 
4. POLICY
 OPTIONS 
In the previous impact assessment the pr eferred policy option included implementing 
a set of short/medium term recommendati ons and, in the longer term, amending the 
legal basis for the Agency. As the outcome  of that impact assessment entailed 
discarding the status quo no "do nothing" option is considered separately. The 
assessment of the baseline scenario is covere d by the problem defi nition in chapter 2.  
EN 21   ENDue to the level of detail in defining the specific problems described in chapter 2, it is 
not possible to identify indivi dual policy options that would correspond to all specific 
problems. As a consequence the following "building blocks" have been defined, each 
corresponding to one operational objective; in relation to each building block two or 
more policy suboptions will be assessed  as alternatives to each other: 
• Revising existing provisions on the use of technical equipment in joint operations, 
including the mechanisms for contributi ons from the Member States of such 
equipment; 
• Mechanisms to improve the availability  of border guards in  joint operations; 
• Revising the role of the Agency in pr eparing, coordinating and implementing 
operations, including with regard to the sh aring of tasks between the Agency and 
the Member States; 
• Expanding the mandate of the Agency in  cooperating with third countries on 
border management; 
• Mandating the Agency to collect and process personal data; 
• Revising the mandate of the Agency as concerns return operations; 
• Mandating the Agency to contribute to evaluating the performance of Member 
States in the area of border management. 
4.1. Assessment criteria  
The policy options are assessed against largel y the same criteria as in the previous 
impact assessment; moreover an overall subsidiarity and proportionality examination will be provided for all suboptions. 
Does the option contribute to meeting th e identified shortcom ing, i.e. to better 
reaching the relevant objective(s)?   
Does the option have an impact on third countries?  
Does the option have a budgetary impact on the Agency or on the Member States?   
What are the possible imp acts on fundamental rights?   
5. DESCRIPTION  OF SUBOPTIONS  AND  ANALYSIS  OF IMPACTS   
5.1. Revising existing provisions on the use of technical equipment in joint 
operations, including the mechanisms for contributions from the Member States of such equipment 
Suboption 1 : A technical equipment pool with  compulsory co ntributions of 
equipment by MS  
EN 22   ENA ‘technical equipment pool’ ( TEP) bringing together equi pment and assets owned by 
Member States could be created, building on the existing central record of technical 
equipment (CRATE) set up under Article 7 of  the current Regulation. Such a pool 
would be organised by categories of opera tions (air, sea, land) and by type of 
equipment (aircraft, vessels,  helicopters, jeeps, etc). 
All Member States could contribute to the technical equipment pool, by indicating 
which type of equipment they can offer to the pool for the year n+1; the TEP should 
be reviewed on a yearly basis i.e. during the discussions of the operational plans for 
the year n+1. The numbers should be based on the experience gathered so far by the 
Agency with the exact needs to be quantified by the Management Board of the Agency on a yearly basis. The system woul d be flexible as the contributions from 
Member States could be adapted to the needs each year based on risk analysis. 
A minimum number of the different types of  equipment would need to be defined and 
be binding on the Member St ates, possibly combined with a referral mechanism 
whereby the Agency would report to the Council on any shortcomings. The 
mechanism would need to foresee excep tions for Member States to withdraw 
equipment when facing national imperative needs, but widely defined exceptions 
would deprive the pool of its value. The conc rete contributions that would need to be 
requested from Member States in the medi um term are difficult to predict. The 
amount of equipment needed would not necessarily call for a contribution from all Member States, especially heavy equipment which in addition not all Member States 
have at their disposal  for obvious reasons.  
Suboption 2:  Acquisition or leasing of  equipment by Frontex  
For the performance of the duties within its mandate the Agency may acquire or lease 
the necessary technical equipment. This subop tion forms as such part of status quo as 
it legally feasible under the current mandate , although it has not yet been exploited; 
during the first years of operation the Agency 's budget was clearly insufficient for that 
purpose. Moreover, the Agency has so far c oncentrated on making the best use of the 
baseline, i.e. relying on the voluntary contri butions of Member States. However, the 
choice of this suboption could neverthele ss be accompanied by certain legislative 
changes providing further details for the practical implementation. 
This suboption would therefore consist in  FRONTEX buying some or all of the 
necessary technical eq uipment to be used in joint operations, including airplanes, 
helicopters, radars, vessels, trucks, etc. 
In legal terms equipment such as vessels and aircraft would need to be registered in a 
Member State and be provided with a crew from that Member State. 
A possible model could involve pursuing fo rms of co-ownership with individual 
Member States to share purchasing costs as well as actual use, and the Member State 
in question taking on registration and provisi on of the crew. The share of the Agency 
and the Member State in question, in terms of  use of the equipment, would need to be 
negotiated on a case-by-case basis, possibly yearly, to allow for adapting to concrete 
needs. 
EN 23   ENEqually feasible within the current legal fr amework would be for Frontex to lease its 
own technical assets whilst taking due ac count of EU procurement rules and the 
financial regulations. Concerning the more im portant technical assets such as vessels 
and aircraft, practice has shown that the l easing of an aircraft is part of common 
economic activity. Leasing of adequately equipp ed patrol vessels is however untested.  
Suboption 3: A combination of suboptions 1 and 2 
There is no reason to regard suboptions 1 and 2 as mutually exclusive; on the contrary 
Frontex could work with a combination of equipment contributed by Member States 
for specific operations and its own equipmen t. Frontex would take into account its 
own equipment, or equipment leased, when  assessing the contributions needed from 
the Member States for a given year. In practice this suboption would involve putting 
all equipment in the same pool, ie Frontex own or leased equipment would be added 
to the TEP. 
This suboption would also allow for a pha sed approach where by Member States' 
contributions are adapted over time to a gradual increase of equipment owned or 
leased directly by Frontex. It would also allow for greater flexibility, as Frontex 
would be able to resort to two different  sources in ensuring the availability of 
equipment. 
5.1.1.  Do the suboptions address the general objectives?  
All suboptions would positively impact on th e shortcomings identified and allow the 
Agency to better meet the relevant operati onal objective, as they would increase the 
availability of equipment fo r joint operations. All suboptio ns would contribute to the 
general objectives, as the operational soli darity would increase with a view to 
temporarily reinforcing border control at specific sections. As compared to the baseline, border control would be more e ffective as with a higher number of assets 
deployed, possibly a higher number of persons attempting to cross the border illegally 
could be detected and apprehended. The Ag ency would be able to better plan its 
operations as the availability of equipmen t would be clear at the beginning of the 
year. 
As concerns suboption 1 Member States mi ght however become more reluctant to 
contribute in the knowledge that any comm itment would be binding. This could in 
part be mitigated by allowing for 100% fi nancing of the costs incurred by Member 
States. 
As concerns suboption 2, a negative impact on the operational objective might be that 
Member States would no longer see the need to actively participat e with equipment in 
joint operations, considering that any shortcomings could be met by Frontex 
purchasing/leasing ever greater amounts of  equipment. This may however not be 
feasible in view of the cap ital costs involved; the capacity of the Agency to coordinate 
operations may as a result be reduced. More over, it would deprive joint operations of 
an indirect added value in getting Member  States to work together. Moreover, the 
positive impact of this suboption would take some time to materialise, as procurement procedures (be it for acquisi tion or leasing) will be le ngthy. For acquisition equipment 
will need to be ordered and construction time will need to be considered. This suboption would however have the greatest pos itive impact in giving Frontex a higher 
EN 24   ENcapacity and efficiency to act based on its own risk analysis, as it would not have to 
rely on Member States' cont ributions. Frontex can purcha se or lease the type of 
equipment adapted to its precise needs, wh ich would allow for a definite increase in 
the assets deployed at bord er sections under pressure. 
5.1.2.  Do the options have an impact on external countries/partners? 
No direct impact, but the framework for c ooperation with third countries discussed 
under section 5.4, would influence the needs. 
5.1.3.  Can the involved costs be (or beco me) part of the FRONTEX budget and how 
high are they? 
The Agency is already co-financing the equipment deployed during joint operations. 
A maximum of 80 % of the total eligible co sts of the operations is supported by the 
Agency budget; however, as contributions in kind are allowed from the MS the 
Agency may effectively cover 100% of  the actual costs incurred by MS. 
As an example for the year 2010 an amount of approximately 33 million € is foreseen 
by the Agency's budget for operational coordination, out of which 26.5 million € for operations at the sea borders.  
In this context it shoul d be noted that the magnitude of the costs is very difficult to 
project because costs are directly dependant  on the exact needs, which in turn can 
only be defined by the Agency itself on a ye arly basis subject to endorsement of the 
Management Board. 
However, the following estimate can be done, starting with suboption 1:  
The daily total cost for th e deployment of one coastal patrol vessel is around 4000€. 
The additional cost of deployment of one vessel for 180 days would thus be 720 000€ per year, out of which 576 000€ would be covered by the Agency's budget and 144 
000€ by the contributing Member State. For an aircraft the equivalent estimates would 
be around 10 000€ and 1.8 million € respectivel y; thus 1.44 million€ to be borne by 
the Agency's budget and 360 000€ by the Member State. 
For suboption 2, the running costs can be  estimated based on the above figures. 
As for capital costs estimates differ wi dely depending on the size, range and 
equipment of the vessel. By way of illustration equipment financed via the external borders fund, and based on the annual prog rammes of the Member States, range 
between one and two million € for one coasta l patrol vessel, up to 22 million€ for an 
offshore patrol vessel, and between 4 and 25 million € for one aircraft. 
As concerns leasing, a comparison can be ma de with the costs incurred by the CFCA 
and EMSA, for service contracts involving ve ssels put at the disposal of the Member 
States when needed. EMSA, for example, has access to a total of nine vessels on stand 
by for emergencies covered within a total yearly budget of 16 million €. 
As this option depends on needs decide d each year by the Frontex Management 
Board, and is in fact about creating availa bility of equipment when needed, drawing 
EN 25   ENup a scenario of the cost impact on th e Frontex budget is therefore virtually 
impossible based on the uncertainties outline d above and taking also  into account that 
an increase in the availability of equipmen t will need to be phased in gradually for 
administrative and operationa l reasons. In particular sp eculating about the budgetary 
impact of possible future pur chases of equipment by Front ex serves no meaning, as it 
would depend on the modalities to be define d for the co-ownership and the delivery 
time. However, as a hypothetical scenario fo r the short-term (2-3 years) an additional 
three coastal patrol vessels and three aircraft  put at the disposal of the Member States 
would entail a total annual budget impact  for Frontex of around 6 million€.  
Commitments of operational expenditure in the Frontex budget in 2008 was 94%, 
which would leave a scope of 3 million€ to be used for additional equipment. However, the use of the payment appropria tions were much lower at 44% which may 
indicate that underlying real costs incu rred by the Agency are lower than the 
commitments; hence an increase in the t echnical equipment would, within certain 
limits such as the short-term scenario above , not necessarily require an increase in the 
annual budget of the Agency.  
5.1.4.  What are the possible impac ts on fundamental rights? 
An increase in the availabil ity of equipment does not as such impact on fundamental 
rights. 
5.1.5.  Comparison of the suboptions 
All suboptions in this  regard would contribute to so lving the existing shortcomings 
and allowing for meeting the general objective s of an effective control of the external 
borders and of coordinating joint opera tions, through a higher availability of 
equipment. Which suboption that would provi de for the biggest quantitative impact on 
the operational objective is impossible to  predict. The impacts are also heavily 
dependent on the exact terms for their im plementation, in part icular suboption 1. 
Moreover, in view of the operational charact er of Frontex operations in response to 
changing challenges a precise  quantified benchmark of the ideal number of equipment 
cannot be set, against which resp ective impacts can be measured. 
The preferred option would therefore be  suboption 3. This would avoid making a 
definite choice that would restrict the Ag ency in the future. Thus, a compulsory 
mechanism for Member State's contributi ons should be set up to guarantee the 
availability of a minimum number of equi pment each year. This should be combined 
with the possibility for Frontex to purchase  or lease its own equipment in the future. 
While the latter is already feasible under the current Regulation it would benefit from a clarification, making this possibility on th e one hand more explicit, and on the other 
hand requesting the Agency to carefully as sess the needs and costs before going in 
this direction. 
As for costs, in general the running cost s for suboption 1 and 2 would be similar, 
while suboption 2 (in the case of acquisition)  would also involve capital costs. In 
relative terms it is thus o bvious that suboption 2 has a greater budgetary impact on the 
Agency. However in the longer term, the acquisition of equipment by Frontex would 
EN 26   ENresult in savings, as the Ag ency would not have to incu r the costs of co-financing 
equipment of the Member States.  
As concerns the Member States the impact in relative terms of the two suboptions is 
neutral, in the assumption that actual runni ng costs are in practice covered to 100% by 
the Agency for equipment contributed by the Member States. 
The impact on fundamental rights is neut ral in comparison between the options. 
5.2. Mechanisms to improve the availabi lity of border guards in joint 
operations  
Suboption 1: Establish “Frontex Joint Support Teams” (FJST) to  participate in joint 
operations and pilot projects based on a com pulsory mechanism for Member States to 
contribute with guest officers to those teams,  in the form of a pool of human resources 
to be used by the Agency during its operations and pilot projects.  
The Frontex Joint Support Teams (FJST) would be established by analogy to the 
RABIT teams; their overall number and thei r tasks and powers and responsibilities 
should be set by the Regulation; their profiles and conditions for deployment (including their allowances) could be se t by the Management Board on a proposal by 
the Executive Director. 
Suboption 2:  Lower the threshold for the deploy ment of Rabit teams. The current 
Rabit teams could thereby be used to reinforce joint operations. These teams are currently restricted to emergency situa tions, and foresee al ready a compulsory 
component. The exceptions allowing Member States not to deploy their guest officers 
upon the request of the Agency are narrowly defined. The Rabit teams have so far never been deployed in view of the rather  high threshold set for their deployment in 
terms of what constitutes an emergency.  
Suboption 3:  Foresee the gradual creation of a pool of border guards on semi-
permanent detachment from Member States to  Frontex for a period  of say six months, 
to be used exclusively for joint operations. It  would thus be for the Agency to decide 
for which operations and for which concre te tasks those guest officers should be 
deployed during their six-month detachment.  
5.2.1.  Do the suboptions address the general objectives? 
All of these suboptions would positively address the shortcoming in question and 
have a positive impact on the operational objective. Border guards taking part in 
operations would be trained according to uni form standards and the availability of 
persons with specific competences woul d be predictable thereby meeting the 
operational objective. Frontex would therefor e be better able to launch timely tailor-
made operations for different parts of the border based on its risk analysis, and the 
impact of those operations in terms of en suring more efficient border control would 
be higher. Already for reasons of legal cl arity either suboption 1 or 2 should be 
retained, as reflecting al ready current practice. 
The second suboption would have the indire ct and negative impact  of depriving the 
EU of its only true emergency response capac ity. Frontex would not be able to rely on 
EN 27   ENthe availability of the Rabit teams if the border guards in question are already 
deployed in different member States for the purpose of joint operations.  
The third suboption can in te rms of impact on the operatio nal objective be compared 
with the Agency purchasing its own equipmen t: very positive impact in terms of the 
capacity of the Agency to plan, initiate and implement operations. However, it would 
require careful legal provisions on the st atus of those persons. Completely 
independent border guards employed as tem porary agents by the Agency would not 
be feasible, as the Agency does not and cannot dispose of a complete set of provisions 
with regard to issues such as disciplinary rules, civil and criminal liability, use of 
force, competent jurisdiction, etc. They c ould only be employed with the status of 
national experts, as their right s and obligations during the op erations would need to fit 
with the current rules on guest officers in  the Frontex Regulation. They would thus be 
subject, in a very explicit manner, to a tr iple legal framework, made up of relevant 
parts of their national law (cf home stat e concept in the current Regulation), the 
Frontex Regulation as such, and the intern al rules of Frontex  (as decided by the 
Management Board) as concerns sec onded national expert s. This suboption 
presupposes that the latter ru les would be amended to allo w for direct instructions 
from the host state during the operations to which they would be deployed. As a 
consequence it would also need to be cl arified that temporary agents employed by 
Frontex cannot carry out border control ta sks during operations but  only coordinating 
functions.  
The first and the third suboption are both therefore very dependent on a careful 
definition of the modalities for their impl ementation, although in different ways; the 
first in the sense of how the compulsory asp ect is defined, the third in the sense of 
how issues of command and control as well as legal accountability are defined. 
5.2.2.  Does the option have an impact on external countries/partners? 
No direct impact. 
5.2.3.  Can the involved costs be (or beco me) part of the FRONTEX budget and how 
high are they? 
The unit costs for the first two suboptions would not be different compared to the 
status quo.  
As for the third suboption, in 2009 the allowance for a Frontex national detached 
expert amount to 4127,- € per month. Guest officers of the Member States deployed 
during joint operations cost on average 180,-  € per day (+/- 3960 per month). These 
figures indicate that the difference is minima l between the total cost of a guest officer 
of a Member State deployed during a joint operation or if the same person would be 
detached to the Agency. 
5.2.4.  What are the possible impac ts on fundamental rights? 
An increase in the availability of bor der guards does not as such impact on 
fundamental rights. However, the risks of having an EU body and its staff exposed to 
situations of possible violations of fundamental rights would increase, due to the fact 
that they would be more involved in conc rete operations than they are currently.  
EN 28   ENThe fundamental rights involved are, main ly, human dignity, prohibition of torture 
and inhuman or degrading treatment or puni shment, right to liberty and security, 
principle of non-refoulement , non-discrimination, and the rights of the child. 
5.2.5.  Comparison of the suboptions 
While the positive impacts on the operationa l objective of the first (compulsory pool) 
and the second (revising the Rabit teams) s uboptions are close to identical the second 
suboption brings the negative impact of depriving the EU of a true emergency 
response mechanism. That suboption should therefore be discarded. 
The third suboption has the clear advantage of allowing the gr eatest degree of 
capacity to act of the Agency. It also has a stronger impact than the first suboption in 
the sense of allowing an even greater degr ee of harmonised, high qualifications of the 
border guards in question. However, the thir d suboption is not f easible as the only 
solution having regard to the needs. It is simply irrealistic to assume that Frontex 
would be able to employ such a number; in other words this suboption cannot, in isolation, meet the operational objective. 
Thus, in conclusion, the qualitative impact, in the sense of ensuring highly qualified 
border guards, of the third suboption with regard to m eeting the operational objective 
is the highest, while the quantitative impact, in the sense of ensuring the availability 
of a sufficient number of border guards, on th e same objective of the first option is the 
highest. 
Suboption 1 and 3 will in practic e have to be combined: the setting up of a pool of 
human resources made up of guest officer s from the Member St ates seconded to 
individual operations as well as guest o fficers employed as national experts by the 
Agency on a short-term (6 months) basis. Th e cost impact of these suboptions is quasi 
the same (see point 5.2.3) and can theref ore be easily combined. The two possible 
sources of guest officers can therefore comp ensate for any shortcoming in numbers in 
each other. The long-term aim whethe r one source should gradually become 
predominant can be determined by the Management Board. 
5.3. Revising the role of the Agency in preparing, coordinating and 
implementing operations, including wi th regard to the sharing of tasks 
between the Agency and the Member States 
Suboption 1:  Frontex is awarded the sole lead  for the implementation of joint 
operations, the establishment of the operational plan, and the sole right of initiative for the launch of operations. 
Suboption 2:  Frontex is awarded a co-leading role together with the host state for the 
implementation of joint operations. Front ex is responsible for drawing up the 
operational plan but subject to  the final agreement of the host state. Both Frontex and 
Member States may take the initiative for the launch of operations, within the limits of the discretionary powers that can be delegated to a Community Agency. 
The lead / co-lead aspects would also diffe r between the two suboptions as concerns 
the overall command over the implementatio n of the operation in the sense of 
deciding where individual uni ts are deployed and which ta sks they should carry out. 
EN 29   ENBoth suboptions would involve creating a le gal basis for the establishment of the 
operational plan, which is already common practice. Bo th suboptions would also 
involve providing updated information on ongoing joint operations including the 
incident reporting obligations, the issu ance of full evaluation reports on joint 
operations (compared agains t the operational plan) and their distribution to the 
members of the Management Bo ard and EU Institutions.  
Explicit provisions on obligatory incident  reporting and evaluations of the joint 
operations would ensure that  any alleged breaches of EC law would be followed up 
on by the competent authorities and, with in its competences, by the Commission. The 
right for Frontex to abort an operation could al so be foreseen and used as a last resort 
should the Agency consider, under its own re sponsibility, that EC law is not fully 
complied with. 
5.3.1.  Do the suboptions address the general objectives? 
Virtually any step in this direction would increase the degree of harmonisation in 
terms of how complex operations are impl emented in practice.  A more clear and 
explicit legal framework is a positive thing in itself, by making the work of the Agency more transparent in terms of who doe s what. It would thereby also clarify the 
objective of coordinating operations in itself  and allow for setti ng better benchmarks 
in terms of what the Agency should ach ieve through its coor dinating function in 
particular and in making border cont rol more efficient in general. 
Operations will be conducted in a more ha rmonised manner and therefore be more 
efficient in strengthening bor der control. Stronger rule s on evaluation and reporting 
would bring value added in terms of in creased transparency and gradual better 
focussing of future operations, as well as a better identification of  needs based on the 
better evaluated experiences. Both suboptions th erefore clearly m eet the operational 
objective. 
A clear legal status for the operational pl an would also allow for addressing the 
request of the Stockholm programme to establish clear rules of engagement, to the extent that this request is not covered by the draft decision on the law of the sea 
proposed by the Commission as referred to under section 2.1. 
5.3.2.  Can the involved costs be (or beco me) part of the FRONTEX budget and how 
high are they? 
These changes will clarify and reduce the cu rrent diverging practices of the Agency 
and the competent authorities of Member States. No further extra costs are to be foreseen through optimisation of the work ing practices. On the contrary some 
efficiency savings in terms of MS expenditu re could occur, as the clear coordination 
role of Frontex could prevent splitting of joint operations or parallel operations, which happens currently as described under 2.3.3.  
5.3.3.  What are the possible impac ts on fundamental rights? 
The risks of having an EU body and its st aff exposed to situations of possible 
violations of fundamental righ ts would increase, due to the fact that the Agency would 
EN 30   ENbe more involved in concrete operations th an they are currently and because of the 
possible co-lead role in operations.  
As concerns suboption 1, the legal obligat ion to comply with fundamental rights 
would weigh more on the Agency compared to  the current situation, where this legal 
obligation weighs mainly on national author ities when implementing Community law. 
Awarding the Agency the lead for the impl ementation of joint operations could mean 
that the Agency would exercise a suffici ent degree of control over the conduct of 
operations to render it liable for possible vi olations of fundamental rights that may 
occur during the operation. It would theref ore require adopting, on the level of the 
EU, a number of comprehensive legal act s that would addre ss topics currently 
regulated on the national level (e.g. detail ed rules on the use of force, disciplinary 
rules for border guards,...).There is also a risk that some uncertainties could arise as 
regards the responsibility and the duty of  involved guest officers as regards the 
obligation to comply with fundamental rights. Conseque ntly, additional binding rules 
and procedures on the relationship between  host Member State's border guards and 
guest officers would be needed in order to establish a legal framework for potential issues connected to fundamental rights that  might arise in the performance of their 
duties (conflicts of interest, reporting potential breaches of EU law including 
fundamental rights, complaints procedure, liability, jurisdiction, compensation). These 
rules should ensure that guest officers, whatever their precise legal status , always 
implement Community legislation in accordance with fundamental rights.  
The impact described above would be m itigated in suboption 2 under the assumption 
of a clear legal framework for border guards semi-detached to Frontex as described in 
section 5.2. 
The fundamental rights involved are, main ly, human dignity, prohibition of torture 
and inhuman or degrading treatment or puni shment, right to liberty and security, 
principle of non-refoulement , non-discrimination, and the rights of the child. 
5.3.4.  Comparison of the options 
Suboption 1 would have a higher impact on the general objective of effective border 
control in the sense that the operations w ould exclusively be de signed to meet needs 
identified at European level, ie based on Fr ontex own risk analysis and more efficient. 
It would also achieve a full harmonisation – with Frontex always in the lead all 
operations can be conducted based on th e same, pre-established modus operandi. 
On the other hand the impact of suboption 2 may well be higher in some respects as a 
co-leading role of the host state allows for adapting to local condi tions and challenges. 
The Agency will never be in a position to replace the combined expertise of all border guard authorities and units of the entire European Union. Some Member States may 
also consider that allowing Frontex “fr ee hands” in implementing operations on their 
territory is not compatible with national sovereignty, and they may therefore refuse to accept any operations at their external bo rders, which would effectively prevent 
reaching the operational objective. 
In balance, and while it seem counterint uitive, suboption 2 is likely to have the 
highest positive impact as compared to the baseline. 
EN 31   ENThe preferred suboption is th erefore to award the Agency  a co-leading role with 
clearly defined modalities on who does what and who is responsible for what. The 
preferred suboption includes providing for detailed provisions on the operational plan 
and on the evaluation of operations, includi ng with regard to incident reporting. 
5.4. Expanding the mandate of the Agency in cooperating with third 
countries on border management 
Suboption 1:  Allowing Frontex to ca rry out technical assist ance projects in third 
countries, using either its own budget or that of the EU’s external financial 
programmes. Frontex, as a Community Agen cy, would thus become eligible to 
become a beneficiary/implementing partner of  the EU’s large financial and technical 
supporting programmes set up by ECHO/AIDC O/RELEX towards th ird countries. 
The level of cooperation should continue to be in line with the overall EU’s external 
policy. 
Suboption 2:  Allowing Frontex to deploy liais on officers in third countries. To 
enhance the knowledge of immigration flows,  to obtain better data on expected flows 
and to assist Frontex during joint operations  in a geographical area close to the third 
country in question the posting of Frontex Liaison Officers (FLOs) could provide the 
solution.  
Suboption 3:  Mandating Frontex to ca rry out border control missions at the borders 
between third countries. The European Union has been financing a number of 
initiatives aimed at assisti ng third countries to establis h and further develop their 
border management systems in accordance with the relevant European standards, such 
as the Border Management Programme in  Central Asia (BOMCA) or the Border 
Assistance Mission to Moldova and Ukra ine (EUBAM). Taking into account that 
Frontex shall provide the Commission and the Member States with the necessary 
technical support and expertis e in the management of th e external borders, this 
expertise could be exploited in  the context of those initiatives aimed at assisting third 
countries in the field of border management. 
Thus participation of (or coordination with) Frontex in missions like the above 
mentioned ones could also be addressed. In th e latter regard a further step would be to 
mandate Frontex to take over the implementation of such missions. 
5.4.1.  Do the suboptions address the general objectives? 
These options would all contribute to the general objective of supporting the 
integrated border management system of which cooperation with third countries is a 
crucial element. On one hand it would ensure more efficiency in terms of enabling the 
Agency to enhance the quality of risk an alysis, improving day-to-day cooperation at 
specific border crossing points, and on the other hand enhancing the capacity of third 
countries to manage their own borders, wh ich can relieve the pressure on the EU 
external borders. 
The first suboption would allow Frontex to im plement a closer cooperation with third 
countries, on the basis of its working ar rangements, more effectively by directly 
supporting ia capacity-building projects to  follow-up on weaknesses in the border 
EN 32   ENmanagement of the third countries in question, and thereby clearly meeting the 
operational objective. 
The second suboption would also have a positive impact on the operational objective 
but in a different manner, by improving the information flow to the Agency as well as the Member States on the situation in third co untries ie with regard to facilitation of 
illegal immigration. On that basis risk anal yses would be enriched and as a result 
allow for a better targeting of Frontex ope rations. A further positive impact would be 
on cooperation with third countries as a w hole on migration issues, especially as 
Frontex could complement the existing ne twork of Member States’ immigration 
liaison officers network and deploy its own liaison officers in countries where few 
Member States are represented. 
As regards suboption 3 more particularly, th ese missions are only in directly linked to 
the objectives of Frontex, as the latter is focussed on the external borders of the EU 
and its Member States while these missi ons concern the borders between third 
countries. Well managed borders between third countries do have an indirect effect on 
the internal security of the EU, but to a va rying degree. It should also be noted that 
such missions are, today, not necessarily c onstrained to control of persons but also 
involves control of goods, which is not c overed by the Frontex mandate. Hence the 
impact on the operational objec tive would be lower, and of  a more indirect nature. 
5.4.2.  Does the option/recommendation have an impact on external 
countries/partners?  
All suboptions will have an impact on relati ons with third countries. Overall the most 
positive impact will come from the increased capacity of the EU to meet requests for assistance from these third countries, as part of an overall re inforced cooperation 
between the EU and third countries on migr ation. In depth consultations with third 
countries and relevant Commission services will need to be or ganised to implement 
these provisions by the Agency within th e context of the EU external policy.  
5.4.3.  Can the involved costs be (or beco me) part of the FRONTEX budget and how 
high are they? 
The first and second suboptions will have an impact on the budget. The carrying out 
of technical assistance projects as well as the posting of liaison officers will as such 
be a possibility in the Regulation, while the actual implementation will be up to the 
Management Board to decide in the contex t of the annual work programme. The cost 
impact can therefore not be estimated. The latt er should also be seen in the context of 
the expenses of the EU external rela tions programmes which do already have a 
component related to border control/ in tegrated border management. By way of 
illustration projects funded under these progr ammes on integrated border management 
in third countries have ranged from 1 to up to 15 million euro. Given that the number 
of such projects should be limited to prio rity countries, and not  duplicate assistance 
already being carried out under the EU's  external relations  programmes, an 
assumption could be that Frontex would im plement 1-2 projects per year with a 
budget of up to two million euro each. A furthe r reason to keep the number of projects 
limited would be to limit the impact of sta ffing of Frontex to run the projects as such. 
As for the posting of liaison officers the pr eferred model would be  to station those 
EN 33   ENofficers in the EU delegations, which woul d lead to a marginal increase in the 
administrative costs for those delegations. A gradual posting of up to 5 liaison officers 
could be envisaged, which would involve a limited cost impact; based on calculations 
in the Frontex budget 2010 the total yearly average cost for one temporary agent is 
estimated at 100 000 euro, which would thus give a total cost im pact of 500 000 euro 
for this suboption.  
The costs for the third suboption would be substantial: as a comparison the costs for 
the EUBAM mission from November 2005 to November 2009 was around 44 million euro in total, and it currently employs more than 200 staff. However, as this mission is financed under the ENPI instrument for the Community budget the cost impact could be considered neutral. 
5.4.4.  What are the possible impac ts on fundamental rights? 
Technical assistance to  operations, which could lead to  violations of fundamental 
rights (e.g. allowing for excessive use of force, breaching the right to privacy, refoulement ), should not be offered to third coun tries, within the framework of these 
projects. Consequently any provi sion of such assistance woul d have to be in line with 
the EU's overall external relations policy including with regard to the respect of 
human rights by the country in question. 
In the implementation of the second subop tion, due regard should be taken regarding 
the prevention of potential ethnic profiling in  the collection of da ta on the migration 
flows.  
For the third suboption the legal framework is  in part set by the third countries in 
question where the missions would take place, and it would have to be ensured that 
the operations take place under a framewor k fully respecting fundamental rights. 
5.4.5.  Comparison of the suboptions 
All the suboptions are complementary rather  than mutually exclusive and could thus, 
in theory, be combined. However, while the positive impacts on the operational 
objective for suboptions 1 and 2 are clear, the impact of suboption 3 is only indirect 
and it would, in addition, entail important question marks on the modalities for its 
implementation and also significant costs. 
The preferred option is clearly to open for th e Agency to carry out technical assistance 
projects and to deploy its own liaison offi cers in third countries . The scope of those 
activities will be covered within the existi ng budget depend on the priorities defined 
in the context of the annual work program me. The total cost impact would be 3-4 
million euro per year. 
The taking over of border control missions  concerning the borders between third 
countries contributes only i ndirectly to the ob jectives and would have a substantial 
cost impact and would raise concerns with regard to fundamental rights. The legal safeguards to mitigate any potential negative im pact in that regard  would be complex 
to set in place. This third suboption should therefore be discarde d, while recalling that 
Frontex can nevertheless put its expertise at  the disposal of such missions on an ad 
hoc basis. 
EN 34   EN5.5. Mandating the Agency to collect and process personal data 
Suboption 1:  Allow the Agency to process, store,  collect and transfer (including to 
third countries) all personal data gather ed by different actors during Frontex joint 
operations and to use that data for the purpose of risk anal ysis and operational 
coordination. It should be noted that this  suboption corresponds to the suggestions 
made by a number of Member States dur ing the discussions during the autumn of 
2009 and by the Agency itself.  
Suboption 2:  Enable the Agency to collect, process and store personal data for the 
purpose of risk analysis and to contribute to  the security at the EU external borders. 
5.5.1.  Do the suboptions address the general objectives? 
As a starting point for any assessment whether FRONTEX shoul d be mandated to 
process personal data it should be recalled, th at any interference by a public authority 
in the right for private life is only legal when in accordance with the law and is necessary in a democratic society for ove rriding public interests as referred to in 
Article 8(2) ECHR and in Article 8 of th e Charter on Fundamental  rights. Therefore a 
basic requirement would not only be a specifi c legal base for such data processing, 
but a justification of the nece ssity for such legal base.  
The processing of personal data by a Comm unity Agency falls under the provisions of 
the data protection Regulation 45/2001 which imposes a series of requirements in 
order to process data in compliance with the rules on the protect ion of personal data. 
Even if the processing of personal data  for the purposes of FRONTEX would be 
necessary and proportionate and covered by a le gal base, the transfer or the sharing of 
such data to/with third countries or entitie s will need to fulfil an additional set of 
requirements in order to protect the f undamental rights and freedoms of natural 
persons vis à vis to recipients which are no t subject to Directive 95/46/EC (cf Article 
9 of Regulation 45/2001). 
Some direct positive impacts on the operati onal objective are clear such as the added 
value personal data can provide to complete the pre-frontier intelligence picture necessary for a state of the art risk analysis model or to enhance the exchange of information between competent authorities to enhance the fight against cross border 
crime at the EU external borders (both part  of the current Frontex mandate). Personal 
data on facilitators operating outside the EU  can provide a better picture of migration 
routes and hubs used by migrants and help  to identify where those networks operate. 
Other positive impacts are more difficult to identify such as the e ffect the processing 
of personal data could have on the search for facilitators of illegal immigration or, 
more general, on traffickers in human beings. Ensuring follow-up to information 
related to facilitators of ill egal immigration is a matter of  investigating crime and as 
such outside the scope of the tasks of the Agency, and ther efore the operational 
objective. As concerns more specifically suboption 1 , the processing of personal data 
by the Agency cannot be considered necessary to ensure an effective completion of its 
tasks related to operational coordination. Th e follow-up to be gi ven, as based on 
personal data, is not directly linked to the ta sks of Frontex: for example, the issuing of 
individual decisions on refusa l of entry, on return, or on th e introduction of alerts in 
the SIS all fall under the responsibility of national authorities. A positive impact on 
EN 35   ENthe operational objective is difficult to identify compared to the baseline, which 
covers the possibility of receiving data on  illegal immigrants in  an anonymous form. 
A positive impact on the general objective of supporting a more efficient border control by Member States by  accessing personal data is  not established. On the 
contrary this suboption risks duplicating th e collection of persona l data performed by 
border guards of Member States on a da ily basis whilst performing their normal 
duties.  
As concerns  suboption 2, one of the key objectives of the Agency is to further 
develop a Common Integrated Risk Analysis Model (CIRAM). Althoug h it is true that 
the Agency has established a well functioning mechanism to receive data from the competent national authorities as part of the Frontex Risk Analysis Network (FRAN) 
most of this information is of a statistical nature and does not allow the Agency to develop a pro-active stance regarding risk analysis. 
The early identification of new trends and patterns in routes and modus operandi of 
illegal migration will be beneficial for the majority of the operations conducted and/or 
coordinated by the Agency as well as be us eful for Member States in conducting their 
own border management activities. The colle ction of personal data gathered during 
joint operations, pilot projects or being pa rt of the exchange of relevant purpose 
oriented information with other competent authorities active at the EU external borders will enhance the capacity of the Agen cy to deliver timely and up to date risk 
analysis models. Information on the location and modus operandi of facilitators' networks need to be constantly updated to follow resulting changes in migratory 
routes towards Europe. Frontex needs to be ab le to adapt its operations to those routes 
at short notice. Being able to access persona l data on facilitators would increase the 
analytical capacity of Frontex in this  regard and thus positively impact on the 
operational objective. Frontex would also be  in a better position to support Member 
States by informing on changes in migratory routes also when no joint operations are 
being implemented. This would thus concern persons for which there are reasonable grounds to believe that they are involved in  the organisation and facilitation of illegal 
immigration, principally in third countries. Frontex would solely use the data for the 
purpose of their risk analysis , ie to gain a better understa nding of migratory routes, 
and not for any kind of tracking or inves tigations of the i ndividuals concerned.  
The same applies to the support the Agency can provide to assist  other competent EU 
authorities in the fight against cross borde r crime. Part of the integrated border 
management model is a close cooperation be tween all agencies involved at the border, 
typically police, border, and cu stoms authorities. The same applies at European level, 
where a close cooperation between Frontex an d Europol can provide mutual benefits 
for risk analysis and organised crime thr eat assessments. The results of the risk 
analysis could be sent to Europol as assi sting tools. Moreover Europol could receive 
upon request and in accordance with agreed  modalities between both agencies from 
Frontex data for the enrichment of its analyt ical working files; data which is in the 
current situation missing. 
It should be stressed that for legitimacy, necessity and proportionality reasons any 
legal mandate in this regard should target  specific purposes (i.e. risk analysis, fight 
against cross border crime at the EU external  borders) and give specific justification 
whether the processing of what personal da ta for these purposes is necessary and 
EN 36   ENproportionate, but no purposes like the fight  against crime, which are in the 
competence of Member States, Eu ropol or other EU Agencies. 
Equally, if the processing of personal da ta by FRONTEX is la wful, necessary and 
proportionate, the storage of the data should be rather limited in  time but enough to 
ensure that the data can be processed in a reliable manner,  according to the purposes 
for which they have been collected for. The same applies for the exchange of information containing personal data with ot her competent EU or national authorities 
i.e. these should be limited to the strict necessary to achieve the specific purposes for which they have been collected and not serve any other purpos es. In this sense 
Frontex would be receiving raw data directly from interviews of migrants carried out 
by guest officers during joint operations. A certain amount of time will be needed to analyse and extract the relevant information (b e it in the form of personal data or not) 
and assess its validity and links to other s ources. Once the analysis is completed the 
data should be destroyed. As a safeguard a clear time limit would n eed to be set such 
as three months.  
The onward transmission of personal data to  third countries should not be authorised 
as this data transfer would not contribute to the specific aims of the data processing 
conducted by the Agency and would therefor e not be lawful. Any retransmission of 
personal data to Member States would not  be justified either . Such a prohibition 
would avoid any use of personal data for th e purpose of issuing alerts on individuals. 
5.5.2.  Do the options have an impact on external countries/partners? 
The lawfulness of any data processing by FRONTEX would depend in particular on 
the assessment and justification of the neces sity and proportionality of the envisaged 
data processing, including whether transfers of personal data to third countries would 
be lawful, subject to a specific legal basi s for such processing of personal data. 
5.5.3.  Can the involved costs be (or beco me) part of the FRONTEX budget and how 
high are they? 
The costs for both options are not  estimated to be significant.  
5.5.4.  What are the possible impac ts on fundamental rights? 
Potentially substantial impact which would ne ed to be mitigated through a stringent 
data protection regime, under condition that the processing of personal data by FRONTEX and the extent  of this data processing is lawful.  
5.5.5.  Comparison of the options 
Suboption 2, under condition that the processi ng of personal data for these purposes is 
lawful and necessary, is proportionate  and has a clear positive impact on the 
operational objective. The impact of subopti on 1 is only margina lly bigger than for 
suboption 2 while it raises important quest ion marks concerning proportionality and 
necessity. Therefore only subop tion 2 should be retained. 
EN 37   EN5.6. Revising the mandate of the Agency  as concerns return operations  
Suboption 1:  This suboption would involve FRONTEX taking over a coordinating 
role together with the leading Member St ate. This coordinating role would become 
manifest in the preparation of the retu rn operation by collec ting and providing the 
necessary information via the ICONet and the tasks during the concrete return 
operation.  
Suboption 2:  It could be envisaged to choose an even stronger approach, not limiting 
the Agency to a co-coordinating role, by ta king over from the leading Member State 
the responsibility and the bulk of organisa tional tasks for the whole joint return 
operation. This could mean that FRONTEX  would be responsible for taking the 
initiative for a joint operation, would be  the main contact body for the country of 
return in order to prepare the operation and in  particular obtaining the necessary travel 
documents and permissions and would be in di rect contact with th e authorities of the 
main return hub. This suboption could also  envisage tasking exclusively FRONTEX 
to exercise the relations with the country  of return, which has been suggested by a 
number of Member States during the stakehol der consultations. However, also in this 
option Member States would remain respons ible for, notably, the individual return 
decisions as well as the treatment of pers ons before, during and after the return, in 
accordance with EU law and fundamental rights. 
5.6.1.  Do the suboptions address the general objectives? 
Suboption 1 corresponds effectively to th e role Frontex is, gradually, assuming 
currently. There is thus an added value in ma king this role explicit in the legal basis. 
Both suboptions will clearly have a posit ive impact on the ope rational objective in 
allowing Frontex to provide stronger s upport to Member States where they are 
struggling to effectively implement the retu rn decisions issued. Frontex can be more 
proactive when providing support which should lead to a higher number of return 
operations in practice. Coor dination between several Memb er States can only function 
effectively if one body is taking on, as a mi nimum, all logistical tasks and builds up 
not only experience but also a harmonised a pproach to the implementation of such 
operations. Moreover, the principle of th e leading Member State taking over the 
responsibility provide for legal certainty concerning the applicable national law on 
board.  
As concerns the second suboption, in practical  terms a leading role of the Agency is 
expected to be counterproductive with regard  to the operational obj ective. First, joint 
return operations are demand  driven. This demand is created by Member States and 
not by the Agency. The need for a joint return  operation relates to the concrete needs 
of the individual Member States to return  in a certain moment a certain number of 
third-county nationals to one or more specif ic third-countries. In this respect the 
Agency can facilitate the communication among Member States by providing the 
necessary information via the ICONet, but is not in the position to anticipate Member 
States' concrete needs and priorities which, as the practice has proven, can change in 
short intervals. 
EN 38   ENSecondly, it is proven that the cooperation w ith the country of return is an inevitable 
precondition for the return. FRONTEX should not replace the leading Member State 
in the return process. Available statistics on return decisions and effected removals 
indicate huge differences in the effectiven ess of Member States' return policy. These 
differences are in particular caused by th e different developed relations with the 
country of return. Some Member States di spose of excellent working relations to 
certain countries of return due to historical, political, economical or other reasons. 
These relations can not be compensa ted by any kind of  FRONTEX working 
arrangement with the country  of return. Keep ing for the Agency a co-coordinating 
role will not exclude FRONTEX from direct contacts with the country of return and 
for example taking the lead in an advance pa rty to the country of return. Finally, there 
are also legal obstacles in giving Frontex such a prominent role, as the relevant 
decisions related to the return process mu st be taken by a Member State authority. 
5.6.2.  Does the option have an impact on external countries/partners? 
No direct impact as long as the role of the Agency is lim ited to a co-coordinating role 
with at least one Member State in the lead.  
5.6.3.  Can the involved costs be (or beco me) part of the FRONTEX budget and how 
high are they? 
The involved costs are already covered by the FRONTEX budget. The increase in the 
number of operations resulting from a st ronger role for Frontex is impossibly to 
predict as the preconditions will remain the same, i.e. return decisions taken by the Member States and obtaining the agreement of the third countries in question. By way 
of illustration return oper ations in 2008 amounted to on average 380 000 euro; 
assuming that an increased role for Frontex could result in an additional 5 return operations the cost impact of the s uboptions would be around 1,9 million 
euro.Enhancing the role of Frontex could re sult in fewer return operations organised 
by Member States on their own; instead of two Member States organising two 
separate return operations, Frontex could organise one joint ope ration. Consequently 
certain efficiency savings in terms of Memb er States' expenditure could occur, as the 
clear coordination role of Fr ontex could result in replaci ng current return organised 
individually by Member States.  
5.6.4.  What are the possible impac ts on fundamental rights? 
No impact as long as the limits on the pow ers awarded to the Agency as described 
above are respected.  
5.6.5.  Comparison of the options 
While the positive impact of both suboptions  is in part common, the second suboption 
entails certain additional positive impacts which however are mainly theoretical, having regard to the significant negative im pacts. The preferred option is clearly to 
foresee a coordinating role for the Agency, but  not to shift the responsibility and the 
main burden from the leading Member State to the Agency. 
EN 39   EN5.7. Mandating the Agency to evaluate Member States' performance in the 
area of border management 
Suboption 1:  Mandating Frontex to carry out inspections in Member States, in 
particular evaluating Member States' capac ity to face threats and pressure at the 
external borders, more partic ularly their capacity in terms of national structures, 
equipment and resources. Frontex would make  use of that information to refine its 
risk analysis and better target its operations.  
Suboption 2:  Giving Frontex an explicit role with regard to Member States' 
compliance with EC law during joint oper ations, thus giving Frontex a role in 
observing and reporting in this respect. Th is suboption is a logical consequence of, 
but would go beyond, the evalua tion aspects foreseen under section 5.3, as  the latter 
concerns the evaluation of whether a sp ecific operation meet  its operational 
objectives. 
5.7.1.  Do the suboptions address the general objectives? 
Frontex could provide a source of well trai ned experts and ensure a high degree of 
independence for the evaluations envisaged under suboption 1. A better understanding 
of the situation on the ground would allow Fr ontex to identify w ith more precision 
where operational support could have an a dded value, thus having a positive impact 
on the objectives of ensu ring more efficient borde r control and coordinating 
operations. More extensive knowledge in this  regard would cont ribute also to the 
objective of providing high-quality risk analyses  to the benefit of all Member States.  
A role for Frontex in this regard woul d have a positive impact on the operational 
objective, in the sense of being better able to target support to Member States based 
on a better understandin g of the situation on the ground, and thereby better contribute 
to more effective border control.  
The main positive impact of the second subopt ion would be with regard to Frontex 
role in facilitating the application of EC law.  
However, a negative impact of the second suboption would entail from the fact of 
giving Frontex "double hats", effectively vi siting Member States with the purpose of 
supporting them to better cont rol their borders (eg joint operations) and at the same 
time effectively inspecting whether Memb er States are complying with their 
obligations. Moreover the role Frontex can  take on with regard to the second 
suboption will in effect have to be very li mited as the Agency cannot in any way take 
on the role as guardian of the Treaty as allocated to the Commission. Moreover, the 
potential positive impact of this suboption on the operational objective is less than it 
appears at first sight as Frontex is a centr e of excellence of operational expertise, not 
legal expertise. In this rega rd, the Agency should not be put in a position where it is 
forced to make delicate judgments on whet her a given incident was in accordance 
with EC law or not. 
5.7.2.  Does the option have an impact on external countries/partners? 
No direct impact. 
EN 40   EN5.7.3.  Can the involved costs be (or beco me) part of the FRONTEX budget and how 
high are they? 
The first suboption would involve certain staff costs (see figures provided under 
5.2.3), the second suboption would not have  any significant cost impact. 
5.7.4.  What are the possible impac ts on fundamental rights? 
No direct impact, recalling as concerns the second suboption th at Member States 
obligations to comply with EC law are abso lute, independent of the role of Frontex 
and independent of whether Member States are carrying out border control within the 
context of a joint operation or not. 
5.7.5.  Comparison of the options 
For the second suboption the negative impact s clearly cancel out the positive impacts, 
while for the first suboption, assuming that  a careful definition of the concrete 
purpose is done, there are clear positive impacts on the core objectives of Frontex, ie coordinating operations and ca rrying out risk analysis. 
5.8. Subsidiarity and proportionality  
All suboptions considered in this impact as sessment respect the following principles 
and limits of the current legal basis and are therefore in line with the subsidiarity and 
proportionality principles: 
– Border management is a shared comp etence between the EU and its Member 
States; Member States are responsible  for controlling their part of the external 
border of the Schengen area ; the revision of the Front ex regulation aims amongst 
others to clarify the resp ective roles and responsibilities of the various actors 
participating in Frontex joint operations a nd pilot projects; it does not transfer any 
executive powers of the national border gua rd authorities of the Member States to 
the Agency. 
– Frontex cannot impose  any activity on the territory or  at the border of a Member 
State without the consent  of that Member State; even  in the scenario whereby the 
Agency launches on its own initiative an operation, it needs the prior consent of the Member State on whose territory the ope ration is scheduled to take place; 
– Any border guard operating in another Member State shall be subject to 
instructions by the authorities of that Member  State; furthermore border guards 
participating in joint operations and pilot pr ojects remain subject to the disciplinary 
measures of their home Member State whil e performing their tasks and exercising 
their powers during a joint operation or p ilot project coordinated by the Agency; 
– Any decisions on refusal of entry of a person in accordance with the Schengen 
Borders Code  shall be taken only by border guards of the Member State whose 
territory the person is seeking to enter ; any appeals or alle gations of misconduct 
shall be addressed to the relevant public au thorities of that same Member State; the 
revision of the legal framework in whic h the Agency operates does not contain 
provisions that depart from the Sc hengen Borders Code; moreover explicit 
EN 41   ENreferences to the Schengen Borders Code  provide that borde r control activities 
shall be conducted in accordance wi th the Schengen Borders Code;  
– Any decisions related to the return of an individual can only be taken by a 
national authority of a Member State ; any appeals or alle gations of misconduct 
shall be addressed to the relevant public au thorities of that same Member State; the 
Frontex Agency can not take decisions rela ted to the return of a given person to a 
third country destination; 
– Frontex cannot be the sole registered owner  ("flag state") of equipment such as 
vessels or aircraft nor provide the crew ( out of its own staff) for such equipment; 
the rules including the required overall mini mum numbers per type of equipment, 
the conditions for deployment and reimbur sement of costs shall be decided on a 
yearly basis by the Management Board on a proposal by the Executive Director;  
6. ASSESSMENT  OF THE  PREFERRED  POLICY  OPTION   
6.1. Summary of the preferred option 
The preferred option would therefore cons ist of combining new provisions in the 
Frontex Regulation on: 
(1) A revised mechanism with compulsory  contributions of equipment from 
Member States combined with the gra dual acquisition/leasing by Frontex of its 
own equipment, based on further analyses of needs and costs 
(2) A revised mechanism with compulsory c ontributions of human resources from 
Member States combined with a pool  of border guards on semi-permanent 
detachment from Member States to Front ex, with the status as national experts 
(3) Awarding the Agency a co-leading role for the implementation of joint 
operations, with detailed rules for the operational plan, evaluation, and 
incident reporting, to be enforced by Frontex 
(4) Allowing Frontex to finance and implement  technical assistance projects in 
third countries and to deploy liai son officers in third countries 
(5) Giving Frontex a limited mandate to process personal data related to 
facilitation of illegal immigration, unde r condition that such processing of 
personal data by Frontex is lawful, nece ssary and proportionate in relation to 
the tasks of the Agency 
(6) Giving Frontex a coordinating role in implementing joint return operations 
(7) Giving Frontex a mandate to analyse ope rational risks and requirements in the 
Member States 
6.2. Overall assessment of impact of the preferred policy option 
Taken as a whole, the preferred option will have a clear and substantial impact on all 
of the general, specific a nd operational objectives. Nota bly the combination of the 
first three points above will have a very positive impact on European solidarity by 
EN 42   ENexpanding the tools at the dis posal of the Agency and incr easing its capacity to act. 
They will address all components related to  the objective of coordination of joint 
operations and therefore the reinforcement of border controls at specific sections: with 
more reliable and higher quality of own human resources, own t echnical equipment, 
and a stronger say in how ope rations are designed it is a comprehensive response to 
the problems identified. In that sense the synergies of combining all the building blocks are clear. However, this must be accompanied by stronger requirements on the Agency and on the Member States in defi ning, and periodically reviewing, the actual 
needs.  
There are also synergies in combining the fifth and the sixth poi nts with the points 
related to joint operations. The fifth and sixth points will allow Frontex to provide better risk analyses to the bene fit of the Member States but al so to the direct benefit of 
the Agency itself when preparing and launching joint operations. In combination these reinforcements will allow for better targeting and better implementing the coordination of operations with, in total, a significant improvement in efficient border 
control at key sections of the external border. 
6.2.1.  Subsidiarity and proportionality 
The preferred option fully respects the limits  and principles described in section 5.8 
above. In addition it should be noted that the possibility for the Agency itself to 
contribute to the pool of border gua rds, and the clarification of the role of the Agency 
in coordinating operations, do not co ncern the responsibility for carrying out 
border control but the responsibility for coordinating cooperation between 
Member States and how resources are provided for such cooperation.  Moreover, 
while Member States are given a collective re sponsibility to ensure that the necessary 
equipment is available for that cooperat ion, no individual Memb er State would be 
legally obliged to contribute with, for ex ample, a specific vessel or aircraft. The 
provisions with regard to cooperation w ith third countries do not influence the 
bilateral cooperation Member St ates have with third countries nor their possibilities to 
continue to deploy their own liaison officers. With regard to personal data the Agency 
is not taking over any task s or competences of the Member States, but rather 
assuming a complementary role in providing be tter risk analysis at European level. 
The preferred option as concerns  return reflects largely current practices. Finally, with 
regard to evaluations, the same analysis  as for personal data can be applied.  
All the components of the preferred option can be implemented gradually and will not 
require any disruption of current activities . The pace of the gradual transition to new 
solutions is largely in the hands of the Ag ency itself and its Ma nagement Board when 
deciding upon the yearly work programme. It  also stays squarely within the current 
objectives of the Agency as defined by the existing legal basis. The main issue of 
proportionality concerns the amount of equipmen t that should be put at the disposal of 
the Agency for the purpose of carrying out joint operations; this is ultimately in the hands of the Management Board to decide  when defining the minimum amount of 
equipment that Member States should be ob liged to contribute and also when defining 
the amount of equipment the Agency shoul d purchase. In case of disagreement 
between the Member States representatives a referral mechanism to the Council is foreseen, as the question can be considered to  have a political dimension, ie the extent 
to which the EU should support Member Stat es facing particular pressure at their 
EN 43   ENsection of the external border. In this se nse an additional check on subsidiarity and 
proportionality is therefore built into the impl ementation of the preferred option. 
Overall the preferred option is therefor e proportionate to the objectives pursued. 
6.2.2.  Costs 
As concerns costs, it shoul d first of all be noted that  no ideal quantity of Frontex 
activities can be specified in this impact a ssessment. In other word s it is impossible to 
state that in year 20XX Frontex should carry  out X operations in order to meet its 
objectives in full. The underlying difficulties related to the setting of an ideal quantity 
are part of the problem definition and addr essed under point 2.4. This  applies also to 
the potential efficiency and cost savings of the Member States and of the Agency.  
The events and circumstances related to irregular migration are numerous and are 
changing constantly. What was a problem at  a specific border crossing point some 
years ago for a specific Member State do es no longer require extensive operations 
today. An EU border crossing point with no particular pressure today can become a 
'hot spot' tomorrow because of riots in a neighbouring third country or by a natural 
catastrophy. Therefore the exac t quantity of the activities of the Agency needs to 
adapted year by year to face the real ch allenges and needs related to irregular 
migration facing the Union when it come s to controlling the external border 
effectively, as it is ultimately the responsib ility of the Manageme nt Board to define, 
on a yearly basis in the work  programme of the Agency. This also concerns priority-
setting within the resources available, for exam ple, it is up to the Board to decide for a 
given year whether to reallo cate resources between joint op erations and joint return 
operations.  
Consequently an assessment cannot be made  of the total impact  on the budget of the 
Agency as a whole, as this depends on a detailed estimate of the precise work programme of the Agency. This in turn is  subject to the procedure laid down by the 
Regulation with the responsibil ities of the Management Boar d and of the two arms of 
the budgetary authority of the Community. It would therefore be misleading to simply 
cumulate the cost estimates of the vari ous suboptions that ma ke up the preferred 
option At the same time, due to clearer division of tasks and responsibilities and 
enhanced coordination capacitie s of the Agency, some efficiency savings can be 
expected, however, for the reasons men tioned above, they cannot be quantified. 
The budget impact of the preferred option can clearly as such be accommodated 
within the current budget of the Agency w ithin the coming years; in other words it 
does not automatically lead to a need for an increased budget. Should the needs of the 
Agency in terms of equipment be confir med for the coming years, and should that 
need be endorsed by the Management Board, the Agency will need to request an increased budget in the course of the a nnual budgetary procedure taking into account 
the limits of the current and future financial perspectives.  
7. MONITORING AND EVALUATION  
Monitoring and evaluation of the implementa tion of the future ac tions and measures 
set out in the preferred policy options will be an important element to ensure their 
effectiveness. All activities of FRONTEX  included in its work programme are 
EN 44   ENaccompanied by indicators for each action, wh ich allows for monitoring based on the 
annual report of the Agency.  
A continuous monitoring of the activities of  the Agency also takes place through the 
Management Board which meets, normally, five times per year, and through direct 
reporting by the Agency at mee tings of the Council and the EP. 
The Agency is obliged to report on its activ ities as well as the implementation of its 
budget through the general repo rt foreseen by the Frontex  Regulation and the Annual 
Activity report foreseen by the Financial Regulation. 
The above provisions, which so far have b een considered genera lly satisfactory and 
are in line with the EU's horizontal policy on Agencies, would apply to the preferred 
policy option put forward here also. In addi tion the preferred option also contains a 
number of measures to strengthen the mon itoring and evaluation of the activities of 
the Agency. The evaluation of the performa nce of the Agency as concerns joint 
operations will be improved through the obligation to draw up evaluation reports and to set performance indicators. Incident reporting will ensure that any problems 
encountered during joint operations and pilo t projects are brought to the attention of 
the responsible public authorities and the Management Board. The tendency towards a 
harmonisation of the Frontex procedures towa rds Member States participating in joint 
operations and pilot projects will certainly c ontribute to a more effective evaluation of 
the activities of the Agency. Certain provision s are also foreseen that would involve a 
more frequent and detailed reporting by the Agency on to what extent its resource 
needs are met with regard to technical equi pment. Finally, the acqui sition of technical 
equipment by the Agency would be subject to an ex ante cost-benefit analysis.