EN

Brussels, 13.2.2008

SEC(2008) 151

COMMISSION STAFF WORKING DOCUMENT

Accompanying document to the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS

Examining the creation of a European Border Surveillance System (EUROSUR)

Impact assessment

{COM(2008) 68 final}

{SEC(2008) 152}

TABLE OF CONTENTS

1. Political orientations, procedural issues and consultation of interested parties (...)4

2. Problem definition (...)6

2.1. Border surveillance (...)6

2.2. The scope and size of the problem (...)9

2.2.1. Illegal immigration (...)9

2.2.2. Loss of life at sea (...)11

2.2.3. Terrorism and organised cross-border crime (...)11

2.3. The current response (...)12

2.3.1. Current surveillance infrastructure and coordination at national level (...)12

2.3.2. Current coverage of surveillance tools (...)12

2.3.3. Displacement effects along the external borders (...)12

2.3.4. Maritime surveillance (...)13

2.3.5. Pressure on third countries (...)14

2.3.6. Legal framework (...)14

2.4. Does the EU have the right to act? (...)16

3. Objectives (...)17

3.1. General policy objectives (...)17

3.2. Specific and operational policy objectives (...)17

3.2.1. Specific policy objectives: (...)17

3.2.2. Operational policy objectives: (...)18

4. Policy options (...)19

4.1. Policy Option 1 – Status quo (...)21

4.2. Policy Option 2 - Interlinking and streamlining existing surveillance systems and mechanisms at Member States level (...)25

4.2.1. Introduction (...)25

4.2.2. Step 1: National coordination centre and national surveillance system (...)25

4.2.2.1. National Co-ordination Centre (...)25

4.2.2.2. National Border Surveillance System (...)26

4.2.3. Step 2: Communication network between the national coordination centres including FRONTEX (...)26

4.2.4. Step 3: Support of neighbouring third countries in setting up infrastructure (...)27

4.2.5. Actions to be taken (...)28

4.3. Policy Option 3 - Development and implementation of common tools and applications for border surveillance at EU level (...)29

4.3.1. Introduction (...)29

4.3.2. Step 4: Research and development to improve surveillance tools (...)29

4.3.2.1. Satellites (...)30

4.3.2.2. Unmanned aerial vehicles (UAVs) (...)32

4.3.3. Step 5: Common application of surveillance tools (...)33

4.3.4. Step 6: Common pre-frontier intelligence picture (...)33

4.3.5. Actions to be taken (...)34

4.4. Policy Option 4 - Creation of a common monitoring and information sharing environment for the EU maritime domain (...)34

4.4.1. Introduction (...)34

4.4.2. Step 7: Integrated network of reporting and surveillance systems for the Mediterranean Sea, the Canary Islands and the Black Sea (...)35

4.4.3. Step 8: Integrated network of reporting and surveillance systems for the whole EU maritime domain by extending it to the Atlantic Ocean, North Sea and Baltic Sea (...)37

4.4.4. Action to be taken (...)37

5. Assessment of the impacts of policy options (...)38

5.1. Policy Option 1 – Status quo (...)39

5.2. Policy Option 2 - Interlinking and streamlining existing surveillance systems and mechanisms at Member States level (...)41

5.3. Policy Option 3 - Development and implementation of common tools and applications for border surveillance at EU level (...)45

5.4. Policy Option 4 - Creation of a common information sharing environment (...)49

6. Comparison of the policy options and elaboration of the preferred option (...)51

6.1. The preferred policy actions to achieve the main policy objectives (...)51

6.2. European value added, proportionality and subsidiarity (...)55

6.3. Legislative implications (...)57

6.4. Measures to ensure the protection of personal data (...)57

7. Monitoring and Evaluation (...)58

8. List of annexes (...)59

Lead DG: Justice, Freedom and Security

1. Political orientations, procedural issues and consultation of interested parties

In the Communication COM(2006)733 final of 30 November 2006 on Reinforcing the Management of the EU’s Southern Maritime Borders, the Commission proposed to establish a permanent Coastal Patrol Network for the southern maritime external borders and to create a European Surveillance System for Borders (EUROSUR).

The European Council of 14/15 December 2006 stated that “priority will be given to examining the creation of a European Surveillance System for the southern maritime borders; FRONTEX is invited to establish as soon as possible, together with the Member States of the region, a permanent Coastal Patrol Network at the southern maritime borders."

In response to these European Council conclusions, this report examines the different policy options for the creation of a European Border Surveillance System.

The Commission Legislative and Work Programme (CLWP) for 2008 foresees that Member States will be supported in tackling illegal migration through a European border surveillance system. According to the CLWP 2008 the main aim of this strategic initiative is the creation of a common information sharing environment for the maritime domain, covering the Mediterranean Sea, the southern Atlantic Ocean (Canary Islands) and the Black Sea. A phased approach for the creation of a European border surveillance system should noticeably increase internal security in the Schengen area by preventing illegal immigration, trafficking of human beings, terrorism etc., but also reduce considerably the tragic death toll of illegal immigrants by rescuing more lives at sea.

This impact assessment has been elaborated on the basis of the BORTEC feasibility study [1] prepared by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX). Available results of projects carried under the 2004-2006 Preparatory Action for Security Research and under the 6th Framework Programme for Research and Development have also been taken into account. Attention has been paid to synchronize with works done for the setting up of the European Patrols Network.

Finally, the parts of this report dealing with maritime borders are embedded into the overall framework of the Integrated Maritime Policy for the European Union [2].

On 15 June 2007, in the course of the 25th meeting of the Committee on Immigration and Asylum the Commission presented a first outline (see document MIGRAPOL 186 in Annex 2) on how to set up a European Border Surveillance System (EUROSUR) in 3 phases between 2008 and 2013 to the Member States.

In this meeting, Member States welcomed the approach and agreed that EUROSUR should not only cover the southern maritime borders, but also the eastern land borders of the EU.

In two technical meetings with Member States on the development of a future European Border Surveillance System, the different phases and components outlined in the document MIGRAPOL 186 were presented and the technical and practical aspects were discussed in detail.

In the first meeting, which took place on 17 July 2007 (see Annex 3 for the programme), presentations were given on selected national land and maritime border surveillance systems; border-related security research under the Preparatory Actions for Security Research (PASR) and the 7th Framework Programme for research and technological development, satellite surveillance and border security; Global Monitoring for Environment and Security (GMES); reporting systems (e.g. LRIT) and networks (e.g. SafeSeaNet) in the maritime domain.

In the second meeting, which took place on 12 October 2007 (see Annex 4 for the programme), presentations were given on the Black Sea Border Coordination and Information Centre; the Baltic Sea Regional Border Control Cooperation; and the "SEAHORSE" project concerning the cooperation with African countries.

The major part of the meeting was dedicated to a discussion of the general concept and the different steps presented as well as the questions asked in a background paper prepared for this meeting (see Annex 5).

This assessment has been drafted with input from numerous contacts between the Directorate-General for Justice, Freedom and Security and other Commission services (GMES Bureau of DG ENTR, DG TREN, DG FISH, JRC) as well as FRONTEX, which have also been invited to the meetings of the "EUROSUR inter-service group" on 25 September 2007 and on 5 October 2007. Contacts have also been established with other relevant agencies (EDA, ESA, EUSC).

Since all relevant stakeholders have been consulted in the preparation of the Communication, the minimum standards for consultation have been met.

An inter-service meeting on the draft impact assessment was held on 20 November 2007. The Commission's Impact Assessment Board provided its opinion on 4 December 2007. To take into account the recommendations of the Impact Assessment Board, the following changes have been introduced:

(1) In Chapter 2.3.3, the reasons for the extension of the geographical scope of EUROSUR to the Black Sea and the eastern land border has been explained by describing how smuggling networks were re-routing their operations and so the migratory pressure in 2006 once border controls have been reinforced.

(2) In Chapter 4.1, a description of the base line scenario has been inserted, presenting the current legal, practical and technical limitations to border surveillance. Additional information on the legal obligations with regard to human rights and data protection can be found in Chapters 2.3.6 and 6.4.

(3) In Chapter 2.2, more information has been provided the scope and size of the problems faced, in particular on illegal immigration. In the description of the different policy options in Chapter 4 more information has been added to explain how the impact of the different options, which could also be carried out separately, could be increased considerably if applied jointly. It has also been clarified which specific objectives are linked to which general objectives.

(4) In a table at the end of chapter 6.1, the relevant Community financial programmes are presented and the studies needed to determine the financial impact have been identified.

It should be noted that the different options and steps proposed in this assessment should not be regarded as concrete actions, but rather as a roadmap providing the main parameters for the development of a European Border Surveillance System. Therefore a number of studies identified in this assessment have to be carried out before concrete actions can be taken.

2. Problem definition

2.1. Border surveillance

Since the entry into force of the Treaty of Amsterdam in 1999, a number of common measures have been adopted to improve the management of the external borders of the European Union in accordance with Article 62 (1) and (2) of the EC Treaty.

In 2002, following the Commission's Communication on an integrated management of the external borders of the EU Member States [3], the Council adopted a plan for the management of the EU external borders [4], containing the following five components of a common policy of integrated management of external borders: a common operational co-ordination and co-operation mechanism, common integrated risk analysis, personnel and inter-operational equipment, a common corpus of legislation and burden sharing between the Member States and the Union.

Built around the three pillars of common legislation, common operations and financial solidarity, key steps were taken towards the implementation of these five components with the adoption of the Schengen Borders Code [5], the Practical Handbook for Border Guards (Schengen Handbook) [6] and the rules for local border traffic [7], the establishment of the FRONTEX-Agency [8], the creation of the Rapid Border Intervention Teams [9] and the creation of the External Borders Fund [10]. Furthermore, in order to cope with the current migration pressure in the Mediterranean Sea and the Canary Islands, the European Patrols Network (EPN) is currently being set up.

All these steps have to be seen within the framework of a concept for integrated border management, which consists of the following dimensions: [11]

· Border control (checks and surveillance) as defined in the Schengen Borders Code, including relevant risk analysis and crime intelligence;

· Detection and investigation of cross border crime in coordination with all competent law enforcement authorities;

· The Schengen four-tier access control model (measures in third countries, cooperation with neighbouring countries, border control, control measures within the area of free movement, including return) [12];

· Inter-agency cooperation for border management (border guards, customs, police, national security and other relevant authorities) and international cooperation;

· Coordination and coherence of the activities of Member States and institutions and other bodies of the Community and the Union.

As defined in the Schengen Borders Code and in the Schengen Handbook, border control, which is in the responsibility of the Member States, consists of checks carried out at border crossing points (border checks) and surveillance of borders between border crossing points (border surveillance).

Whereas border checks are regulated in detail in the Schengen Borders Code and in the Schengen Handbook, the provisions on border surveillance are kept rather general and can be summarized as follows:

Border surveillance is defined as the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks.

The main purpose of border surveillance is to

· prevent and discourage unauthorised border crossings;

· counter cross-border criminality; and

· take measures against persons who have crossed the border illegally.

Border surveillance shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall involve frequent and sudden changes to surveillance periods, so that unauthorised border crossings are always at risk of being detected. The resources should be selected in accordance with the type and nature of the border (land, inland waterway or sea).

Border surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to apprehend individuals crossing the border illegally.

The main tasks of patrolling are:

· To monitor the terrain they operate in;

· To ensure that there is no risk to public policy and internal security in the patrolling area;

· To check documents of persons being in the area, who are not known to the patrol team;

· To stop all suspected persons who do not have any documents and ask them to explain in detail their reasons for being in that area;

· To stop and bring to the nearest border guard's station persons who crossed or tried to cross the border illegally.

Special dogs for tracking should be used during patrolling. Helicopters, patrol boats and terrain vehicles should also be used in order to enhance the patrolling and monitoring of the border.

The main tasks of stationing are:

· To observe the places which are perceived to be sensitive to illegal border crossing or smuggling;

· To stop and bring to the border guard station people who tried or crossed the border illegally.

Surveillance may also be carried out by technical means, including electronic means (i.e. radars, sensors, and infrared vision at night).

Under the Finnish Presidency, an effort has been made to define an integrated border management strategy [13]. In this strategy document, several general aims for border management have been enumerated, of which the following are linked to border surveillance:

· Avoiding the serious consequences which irregular immigration can have on immigrants who put their physical integrity and lives at risk;

· Preventing offences in the sphere of or related to irregular immigration, as well as enabling action against them;

· Anticipating and preventing action by organised crime groups involved in irregular immigration, as well as facilitating their prosecution;

· Cooperating with countries of origin and transit on the above in the interests of prevention, as well as implementing the cooperation policies and actions required to ensure that irregular immigrants do not leave their countries of origin or transit;

· Preventing irregular immigration and the entry of persons who do not meet the entry conditions;

· Detecting persons who are running serious risks in their attempts to enter irregularly, and facilitating appropriate action by border services;

· Serving as a tool in the combat against terrorism, and organised cross-border crime.

2.2. The scope and size of the problem

2.2.1. Illegal immigration

Taking into account differences in demographic developments, living conditions and political stability in Europe compared to a number of other regions of the world, the current pressure of illegal immigration at the external borders of the European Union is likely to continue in the future. [14]

In the recent years in particular the southern EU Member States are facing a considerable number of sub-Saharan and Asian migrants using routes going through Northern Africa and the Mediterranean Sea and the southern Atlantic Ocean to reach European shores. The following methods are being used:

· Small craft aiming to reach the coast clandestinely. It is estimated that this method accounts for the major part of detected illegal immigration by sea. It mainly concerns Spain (coasts of Andalusia and the Canary Islands), Italy (Sicilian coast and the Pelagian islands, in particular Lampedusa), Malta and Greece (Aegean Islands near Turkey and Crete, but also the continental territory). The crossings are usually organised by local people smugglers, using small craft or dinghies which are not seaworthy and which are therefore jeopardising the lives of their occupants.

· Large ships, usually at end-of-life, which either deliver persons transported clandestinely to the coasts in smaller craft or are left in distress during the voyage or near the coasts. This type of immigration is carried out by ships run by criminal organisations under a flag of convenience from a country often located far from the Mediterranean. These ships are often unseaworthy from the safety point of view (overcrowded, in poor condition, no lifeboats or safety equipment). They normally rely on the complicity of the authorities in the port of departure.

· Merchant shipping and pleasure craft (more rarely, fishing boats and cruise boats), with the clandestine disembarkation of illegal immigrants in the port.

· Ferries with illegal passage via an authorised point of passage. This mainly involves ferries leaving from Morocco, Algeria and Tunisia and arriving in Spain (Almeria, Algeciras and Tarifa) and France (Sète and Marseille).

As for the other external maritime borders (Baltic Sea, North Sea, northern part of Atlantic Ocean), the risk of illegal immigration is regarded as low and concerns in general only “port-to-port” flow (e.g. stowaways, sailors who fail to return to their ships).

Member State | Number of migrants intercepted at sea or arrived on the shore in 2007 | Source |

Spain:CanariesGibraltar area [15]. | 5 680 (by end of June)2 138 (by end of June) | Spanish Police |

Malta | 1 174 (by August 15) | Ministry of Interior |

Italy:Lampedusa | 8 937 (by August 30) | Ministry of Interior |

Greece | 2 782 migrants intercepted at sea (by end of July) | Ministry of Mercantile Marine |

However, also at the external land borders different methods are continuously developed and experimented with by facilitators of illegal immigration, such as a synchronisation of the departures in order to overwhelm national authorities of EU Member States, leading to serious difficulties in coping with high numbers of irregular migrants arriving at the same time.

The actions being considered in this assessment should provide the authorities responsible for border control in the Member States with more timely and reliable information to detect, identify and intercept those attempting to enter the EU illegally, thereby reducing the number of illegal immigrants who manage to cross the external borders of the EU undetected. The tracking of means of transports used by illegal immigrants might facilitate the readmission and removals of illegal immigrants.

In this context, it should be noted that the flows of irregular migrants and of asylum seekers and refugees are mixed, as both categories usually use the same channels and facilitators to arrive to the EU. Asylum must therefore continue to be an important feature and an effective option for persons requiring international protection.

2.2.2. Loss of life at sea

Many illegal immigrants and persons in need of international protection are travelling in conditions of extreme hardship and are taking great personal risks in their attempts to enter the EU illegally by hiding in vehicles, on cargo vessels, etc. In the last years there have been a number of cases in which third country nationals have lost their lives when attempting to cross the external land and maritime borders illegally.

However, the practice of travelling on board of small boats or unseaworthy ships (boats in poor condition, overcrowded, without any safety equipment, illumination, etc.) has multiplied drastically the number of unfortunate migrants and refugees who are loosing their lives by drowning in the Atlantic Ocean between Africa and the Canary Islands and in the Mediterranean Sea.

Even if it is impossible to determine the number of migrants loosing their life at sea when trying to reach the shores of the EU Member States [16], the tragic death toll is unacceptable to a civilised society and must therefore be significantly reduced. The actions being considered in this assessment should improve the capacity to detect small boats in the open sea, leading to more search and rescue activities and thereby saving more lives at sea, while also monitoring third country coasts in order to prevent immigrants from using such boats.

However, it has to be ensured that persons rescued at sea who are in need of international protection are not deprived of their rights, but identified at the reception sites following disembarkation. It should be underlined, that third countries are, of course, under the same obligations in this respect.

2.2.3. Terrorism and organised cross-border crime

Border surveillance not only serves to prevent unauthorised border crossings, but also to counter cross-border crime such as terrorism, trafficking in human beings, drug smuggling, smuggling of weapons etc. Significant financial means, notably due to an involvement in different kinds of illegal activities, and the affordability of new technical means provide groups involved in organised crime with a wide range of possibilities and equipment.

To counter these threats is first and foremost a task for the police forces and intelligence services of Member States. However, an effective border management system both at national and European level contributes significantly to reducing the risks of known or suspect terrorists entering the European Union from the outside and is also a valuable tool for fighting cross-border crime.

2.3. The current response

2.3.1. Current surveillance infrastructure and coordination at national level

For the time being, national border surveillance systems are covering with permanent and mobile surveillance means only a few, selected parts of the EU external borders. As far as the eastern land borders are concerned, only the Slovak Republic is currently finalising the setting up of a national surveillance system covering the whole length of its external border with Ukraine (97km). Concerning the maritime borders, France is one example for a Member State planning to develop a fully integrated surveillance system covering all its coasts.

The BORTEC study has shown in the eight Member States forming the EU southern maritime border, about 50 authorities from up to 30 different institutions are involved in border surveillance, sometimes with parallel competencies and systems.

2.3.2. Current coverage of surveillance tools

Due to technical (current performance of radar/optical sensors, limited availability/resolution of satellites) and financial limitations, the areas covered by surveillance are currently restricted to certain flat or coastal areas and those areas of the land border or open sea in which operations are carried out.

Technical solutions have in particular to be found for the current inability to detect and track small vessels, which are used for smuggling people and drugs into the EU.

2.3.3. Displacement effects along the external borders

As soon as border controls in one area have been reinforced or one illegal immigration route has been closed down, the smuggling networks use other methods and techniques or re-route their operations and so the transfer of the migratory pressure to other Member States or third countries not prepared to face them.

These displacement effects have been clearly shown in the threat assessment carried out by FRONTEX in June 2007 within the context of the External Borders Fund, in which the situation of illegal migration at the external land and maritime borders of the Member States in 2006 has been examined in detail: [17]

Whereas the Greek-Turkish border coast has continued to face considerable numbers of illegal immigrants in 2006, the most noticeable increase took place at the external borders of Spain. Tighter border control measures in Ceuta and Melilla as well as by Morocco have led to a partial shift of the migration flows to Italy, mainly to Lampedusa, but also to Malta, which was facing increasing flows of migrants having embarked on North African shores. But above all, Sub-Saharan nationals and traffickers have found a new route leading to the Canary Islands, resulting in mass arrivals in 2006.

Out of all EU land borders, the Greek-Albanian border turned out to be the most difficult one, being under huge pressure from illegal migrants and traffickers, even more than the Greek-Turkish land border.

Furthermore Poland, Slovakia and Hungary continued to face a major illegal migration pressure at their external land borders with Ukraine in 2006. In particular at the Slovak-Ukrainian border, the prevailing modus operandi has been to cross the green border in small groups by hiding in the mountainous terrain, usually with the help of facilitators. FRONTEX is expecting that illegal migrants from the CIS countries and Asia will continue to use this route.

In comparison, the number of illegal border crossings at the external land borders of the Scandinavian and Baltic countries continued to be very low in 2006. The same applies for the maritime borders in the Baltic Sea, the North Sea and the northern part of the Atlantic Ocean, where only very few cases related to illegal migration were reported in 2006, posing no significant risk for the time being.

The threat assessment concludes that whereas in 2006 the main migration pressure has been at the southern maritime borders of the EU, illegal migration will remain to pose a significant risk also at the eastern land borders of the EU.

Consequently, a common framework for surveying the entire length of the Union's external borders, focusing in a first step on the southern maritime and eastern land external borders, is needed.

2.3.4. Maritime surveillance

Whereas land border control can focus on the border line, the maritime borders are a vast space which is filled with a huge number of legitimate activities such as fishing, commercial shipping, and pleasure boating that can nevertheless be easily exploited for unlawful purposes.

The different authorities entrusted with protecting the EU maritime domain are setting up or have set up ship reporting systems like the Automatic Identification System (AIS), the Long Range Identification and Tracking System (LRIT) and the fishing Vessel Monitoring System (VMS), which can all be used for identification and tracking of vessels. Awareness in the maritime domain therefore requires monitoring the compliance of all activities, detecting with the help of surveillance and ship reporting systems anomalies that may signal illegal acts and generating intelligence that enables law enforcement authorities to stop unlawful entry into the EU area.

2.3.5. Pressure on third countries

The migration pressure presents considerable challenges not only for the Member States on the northern, but also for the third countries located on the southern shores of the Mediterranean Sea in terms of detection, apprehension, reception and further processing and readmission of migrants. It is therefore necessary to include these areas into surveillance activities and to support and to cooperate with the countries of origin and the countries of embarkation of illegal immigrants on the basis of existing relations and on the enhancement of practical cooperation already established.

2.3.6. Legal framework [18]

The legal framework for the surveillance of the external border depends essentially on where this surveillance is carried out – on land or on sea. It consists of a set of international rules of various kinds [19], and Community (Schengen acquis) and national legislation.

At all external borders (land, maritime, air), Member States' authorities have to fulfil their obligations which arise from international and regional instruments on fundamental rights and the protection of refugees, such as the prohibition on sending a person back to a country where he or she risks being exposed to torture or to inhuman or degrading treatment [20] and the prohibition on refusing entry to and expelling (“refoulement”) refugees [21].

In the context of combating illegal immigration by sea, the following principles must be underlined:

· The sovereignty of the coastal State over its territorial sea and its right, in accordance with the principle of proportionality, to take the measures necessary to prevent the passage through its territorial waters of ships engaged in the illegal transportation of migrants to this coastal State. These rights cover contiguous waters to a large extent.

· Freedom of navigation on the high seas (including in exclusive economic areas) and the principle of the exclusive jurisdiction of the flag State are principles that prevent the adoption of national powers concerning foreign ships engaged in the illegal transportation of migrants, without the authorisation of the flag State.

· The principle whereby any State can exercise jurisdiction in international waters with respect to boats or other craft which may be regarded as not having a nationality (which is the case, normally, with illegal immigration by sea via the Mediterranean Sea and the southern Atlantic Ocean).

· The obligation of States which are parties to the Protocol against the smuggling of migrants by land, air and sea, supplementing the United Nations Convention against Transnational Organised Crime, to prevent and sanction the illegal trafficking of migrants by sea and to cooperate as far as possible to this end.

· The obligation to rescue persons in distress at sea.

With regard to the surveillance of maritime borders, the nature of the waters in which surveillance is carried out is essential, in particular whether it is done in the territorial waters of the State exercising the control powers or the territorial waters of a third country, or the high seas.

· There does not appear to be any legal obstacle to a State establishing mechanisms for the surveillance of the maritime area on its coasts [22], even where these mechanisms enable boats to be detected from the time of departure from a neighbouring State.

· In their territorial seas, States can freely introduce fixed or movable surveillance and detection mechanisms to ensure compliance with their immigration legislation, the only restriction being that such mechanisms must not hamper innocent passage or transit passage through international straits [23].

· The coastal State can also exercise state authority powers aimed at preventing immigration infringements in a contiguous zone of up to twenty-four nautical miles from the coast.

· Generally speaking, a neighbouring State can also authorise other States to carry out surveillance of its coasts using their own ships. [24]

· Even if no State can claim sovereignty or jurisdiction over the high seas, freedoms of navigation and overflight of the high seas can be exercised by warships and military aircraft or similar craft of any State for the purpose of patrol and surveillance, including combating illegal immigration [25].Freedom of the high seas includes also the possibility of building installations authorised by international law [26].

· Freedom of navigation and overflight also includes freedom to allow the navigation in the superjacent waters (underwater or on the surface) and air space of devices, including unmanned devices. However, as explained further below, certain technical and legal issues need to be further analysed and solved to allow unmanned aerial vehicles (UAVs) to fly in civil airspace.

Ongoing and planned studies, including those on the study on the international law instruments in relation to illegal immigration by sea and a study analysing the legal basis for collection of data, access to data and sharing of data and information in the context of maritime surveillance systems, as well as future studies and activities identified in the Communication, will therefore be used to identify and assess the need for legislative action.

2.4. Does the EU have the right to act?

The legal basis for EU action is to be found in Article 62(2)(a) of the EC Treaty. Border surveillance is regulated at EU level in Article 12 of the Schengen Borders Code, which delegates implementing powers to the Commission under a comitology procedure. The mandate of FRONTEX [27] covers border management in general and therefore provides that FRONTEX can take measures related to operational coordination, exchange of information, risk analysis and research and development as relevant for border surveillance.

In order to address the problems identified in the previous section it is necessary to envisage a common technical framework to support Member States' authorities to act efficiently at local level, command at national level, coordinate at European level and cooperate with third countries in order to detect, identify, track and intercept persons attempting to enter the EU illegally outside border crossing points. A European Border Surveillance System – EUROSUR - should support the Member States in reaching situational awareness [28] on the situation at their external borders and increase the reaction capability [29] of their national law enforcement authorities. Such a framework would be set up without affecting the respective areas of jurisdiction and competences of national authorities in Member States nor replacing any well-functioning existing systems.

A key operational objective should be to use information collected by different systems in a more coherent manner, while paying attention to geographical circumstances and differences between types of borders, in particular between land and maritime borders and to confidentiality issues (need-to-know basis).

3. Objectives

3.1. General policy objectives

By improving the surveillance at the external border, in particular by improving cooperation and the exchange of information between Member States, EUROSUR shall contribute to the following three general policy objectives:

(1) Reduction of the death toll of illegal immigrants by rescuing more lives at sea.

(2) Reduction of the number of illegal immigrants who manage to cross EU external borders undetected outside border crossing points.

(3) Increase internal security of the EU as a whole by contributing to the prevention of trafficking in human beings, drug smuggling, terrorism etc.

3.2. Specific and operational policy objectives

3.2.1. Specific policy objectives:

The following specific policy objectives contribute in particular to general policy objective 1:

– Help the Member States to carry out search and rescue activities more efficiently, thus preventing loss of life at sea.

– Promote the participation of relevant third countries in border surveillance activities.

– Support neighbouring third countries in fulfilling their international obligations on search and rescue and readmission.

The following specific policy objectives contribute in particular to general policy objectives 2 and 3:

– Provide a common technical framework to support Member States' authorities to act at local level, command at national level, coordinate at European level and cooperate with third countries in order to detect, identify, track and finally intercept persons trying to enter the EU illegally outside border crossing points.

– Provide Member States’ authorities with surveillance information on their external borders on a more frequent, reliable and cost-efficient basis.

– Assist the Member States in reaching maximum situational awareness on the situation at their external borders.

– Increase the reaction capability of national authorities involved in border control and internal security.

– Ensure that costly tools and systems are used to their full capability.

– Based on risk analysis, increase length of external borders covered by surveillance.

3.2.2. Operational policy objectives:

The following operational policy objectives contribute in particular to general policy objective 1:

– Enhance the capacity of neighbouring third countries to manage their own borders.

– Increase the areas of the high seas covered by surveillance.

– Increase the capacity to detect small boats in the open sea.

– Monitor third country coasts to facilitate actions to prevent immigrants from using such boats.

– Improve technical performance of surveillance tools (UAVs, buoys, etc.).

– Increase effectiveness of surveillance tools (e.g. by combining satellites).

– Collect unique as well as common information sets that are beneficial to the whole maritime community and combine in a meaningful manner to determine what significant knowledge is present in all available data.

The following operational policy objectives contribute in particular to general policy objectives 2 and 3:

– Streamline at national level command and coordination mechanisms of authorities involved in border control.

– Provide for a tactical command function for real time coordination of observation and risk analysis as well as for the initiation and command of reaction activities.

– Establish secured and reliable communication links that can be used for communication with border patrols.

– Organise centralised intelligence, analysis, planning and managerial functions that cover all fields of border control.

– Combine strategic information gathered from various sources in order to recognise patterns and analyse trends, thereby supporting the detection of migration routes and the prediction of risks.

– Improve confidence in identification of potentially suspicious targets so as to optimize the subsequent interventions.

– Provide the framework for near real-time information exchange between Member States.

– Provide a technical platform for the coordination of joint tactical and operational management functions between Member States.

– Support the implementation of actions coordinated by FRONTEX in high-risk areas.

– Provide information on the pre-frontier area on a more frequent and reliable basis.

– Enhance the capacity of neighbouring third countries to fight organised crime, trafficking in human beings and drug smuggling.

– Guarantee flexible and adjustable allocation of operational resources for border management.

– Share information available in existing surveillance and reporting systems across computer networks and make it available for display in all command centres and mobile assets of the participating authorities.

– Fuse available data to fill information gaps and to reduce the uncertainty in information received from various sources.

– Develop capabilities to recognise patterns, analyse trends and detect anomalies and thereby predict risks.

– Avoid needless duplicative collection of information, e.g. by military and civil authorities, by using the same tools (satellite, sensors).

– Enable tracking of target utilised for a criminal activity and identified abroad until interception on EU territory.

– Improve monitoring of all ships operating in complex coastal regions with a large number of islands.

4. Policy options

This Section elaborates the policy options that could address the problems in the current situation and contribute to the achievement of the policy objectives. The policy options include altogether nine separate actions. The actions have been grouped into four policy options:

Policy Option 1: A status quo policy option involving no new actions;

Policy Option 2: Interlinking and streamlining existing surveillance systems and mechanisms at Member States level: This option includes mainly actions that could be implemented within the existing legislative framework and based to a large extent on actions already under preparation and that should therefore be relatively straightforward to implement in the short term;

Policy Option 3: Development and implementation of common tools and applications for border surveillance at EU level: This option includes all of the actions of policy option 2 plus additional, mainly non-legislative actions that would require either further time for implementation respectively further specification and that would entail some expenditure; and

Policy Option 4: Creation of a common monitoring and information sharing environment for the EU maritime domain: This option includes all actions of policy options 2 and 3 plus the development of an integrated network of maritime reporting and surveillance systems which is legally and technically complex and needs more examination and is likely to be long term in nature.

In practice defining the policy options in this way has been iterative. The policy options are outlined in the table below. The actions have been numbered and classified according to whether they would contribute to the reduction of the number of illegal immigrants who manage to enter the EU undetected; the reduction of the tragic death toll of illegal immigrants by rescuing more lives at sea; the increase internal security of the EU as a whole by contributing also to the prevention of trafficking in human beings, drug smuggling, terrorism etc.

Table – Overview of Policy Options

Description of policy option |

Policy Option 1 | No changes are made to the current situation other than those that are already planned and confirmed. |

Policy Option 2Interlinking and streamlining existing surveillance systems and mechanisms at Member State level | 1. Providing the essential infrastructure at national level through streamlining of command and coordination mechanisms by setting up a national coordination centre and a national surveillance system in each of the Member States located at the EU southern and eastern borders to cover all or selected parts of the external borders.2. Interlinking the national infrastructures in a communication network for regular information exchange and coordination of activities between Member States’ authorities as well as with FRONTEX.3. Logistical and financial support to neighbouring third countries in setting up an infrastructure comparable to the one described above (surveillance system; coordination centre; assets for interception). |

Policy Option 3Development and implementation of common tools and applications for border surveillance at EU level | All measures mentioned under Policy option 2 plus:4. Research and development to improve the performance of surveillance tools (e.g. UAVs, buoys, etc.) to increase the area covered and the number of suspicious activities detected within as well as to improve confidence in identification of potentially suspicious targets so as to optimize the subsequent interventions.5. Common application of surveillance tools (e.g. satellites, UAVs, planes) to provide Member States’ authorities with surveillance information on their external borders and the pre-frontier area on a more frequent and reliable basis. FRONTEX could act as a facilitator e.g. to liaise with service providers in order to receive satellite imagery or to co-ordinate the use of UAVs.6. Common pre-frontier intelligence picture to enable a targeted intelligence reaction: For example on the basis of intelligence received from third countries authorities, a target (e.g. vehicle, vessel) utilised for a criminal activity has been identified abroad and is being tracked by using satellites or ship reporting systems until interception on EU territory. |

Policy Option 4Creation of a common monitoring and information sharing environment for the EU maritime domain | All measures mentioned under Policy options 2 and 3 plus:7. Development of an integrated network of surveillance systems for the Mediterranean Sea, the southern Atlantic Ocean (Canary Islands) and the Black Sea, in which information from ship reporting systems, surveillance systems and tools and other sources is being collected, fused, analyzed and disseminated for internal security purposes, linking not only the border control authorities, but all authorities involved in maritime affairs together through a "common operational picture".8. Extension of the above mentioned network to the Atlantic Ocean, North and Baltic Sea with special emphasis on creating a common information sharing environment for the EU maritime domain, covering all aspects of maritime safety and security with the general framework of the EU Maritime Policy. |

4.1. Policy Option 1 – Status quo

In line with 1999 Tampere and 2004 The Hague Programmes, the 2005 Action Plan (COM(2005)184final) identified actions for 10 priorities for 2005-2010. [30] Under priority 4 (Internal borders, external borders and visas), in particular the following actions have been identified:

· Full integration of new Member States which joined in 2004 into Schengen

· SIS II operational

· FRONTEX Agency is coordinating and assisting Member States’ action in surveying and controlling their external borders (as of October 2005). First evaluation in 2007 (Communication to be adopted in February 2008)

· Biometric identifiers integrated in travel and identification documents from 2005 onwards

· VIS available and steps toward creation of common visa application centres

In line with this priority and built around the three pillars of common legislation, common operations and financial solidarity, key steps were already or are currently being taken, which contribute and are critical to the assessment of the general policy objectives, such as:

· Adoption of the Schengen Borders Code, the Practical Handbook for Border Guards (Schengen Handbook) and the rules for local border traffic,

· Establishment of the FRONTEX-Agency,

· Creation of the Rapid Border Intervention Teams,

· Creation of the External Borders Fund,

· Ongoing setting up of the European Patrols Network.

On the basis of this common legislation and by using joint operations coordinated by FRONTEX, the EU Member States and the Schengen-associated countries are applying high standards in protecting and surveying their external borders. However, despite all these efforts, the Member States still face a number of challenges which have already been described in detail in Chapter 2.3.

The following summary of challenges and of the existing situation elaborated by FRONTEX in the BORTEC study shall serve as a baseline scenario for the steps and actions proposed under the policy options 2, 3 and 4:

· In general, surveillance of the maritime areas is currently carried out by aerial, land and naval means of the Member States performing patrolling activities. Member States have land based surveillance and monitoring systems which are providing partial or full coverage of the coastal zones. Whereas Member States are currently developing their maritime surveillance systems to cover more areas, surveillance of the Open Sea is not frequent, but still based on the patrolling activities of each Member State. Taking into account that the Mediterranean Sea and the Atlantic Ocean around the Canary Islands represent a wide area, significant effort is needed to adequately cover this area.

· Targets have to be detected visually and/or by technical equipment. Current surveillance technology does not enable the detection of all targets present in the maritime areas. The smaller the boats, the more difficult it is to detect them.

· A considerable diversity of threats towards EU can be observed, as illegal activities are well organised and carried out in a very flexible manner, characterised by continuous evolution of new modi operandi and efforts to evade law enforcement measures that are put in place.

· The legal frameworks of Member States, the EU and the international community set limitations on surveillance activities and interventions.

· At present, a multitude of national authorities are involved in maritime surveillance, having different responsibilities and different means (see table on next page). These national authorities are collecting information for their own purposes, but are usually not able to share information needed or useful for other authorities. For adequate performance, all these bodies need to cooperate – both within Member States, and across Member States within the EU. However, the current national systems do not allow for full data fusion and integration into a common maritime picture.

· Surveillance of the maritime areas is not surveillance of movement across a line (as in the case of land borders), but across an area which has its inner boundary at the coast.

· A European Integrated Border Management System needs to work uniformly across the entire extent of the EU external border, without differences in effectiveness or quality between the Member States. For that reason the same working practices need to be followed and equivalent systems need to be used.

Surveillance of areas of departure can be a very effective EU approach. To optimally perform surveillance and also to deal with illegal immigrants found at sea, it is necessary to cooperate with third countries; namely countries of origin and countries of embarkation of illegal immigrants.

TABLE: Compilation of information provided on Member States in the BORTEC study

| PORTUGAL | SPAIN | FRANCE | MALTA | ITALY | SLOVENIA | GREECE | CYPRUS |

Concept | Planning SIVICC | SIVE – integrated surveillance system run by Guardia Civil | SPATIONAV – centralised integrated system for Customs, Gendarmerie, Navy | VTS also used for surveillance purposes | Different services supported by different systems | Police radar station | Competencies and tools centralised with Coast Guard | Radar stations |

Authorities | Guardia NacionalMaritime Police Ports and Maritime Transport Institute Air Force, Navy,Aliens and Borders Service (SEF) | Guardia CivilNational PoliceCustomsNavy , Air Force SASEMAR (Directorate of Mercantile Marine) | General Secretary to the Sea / Maritime Prefects, Border PoliceMaritime GendarmerieGendarmerie NationaleMaritime AffairsCustoms, Navy | Armed Forces Maritime AuthorityPolice | Guardia di Financa Navy Coast GuardPolizia di StatoCarabinieriCustoms | PoliceCustomsMaritime Directorate (Ministry of Transport)Armed Forces | Coast GuardPolice CustomsNavyArmyAir Force | PoliceCustomsPorts AuthorityFisheries Dept.ArmySAR Authority |

Systems | LAOS run by Guardia Nacional SIVICC – integrated surveillance system to replace LAOS in 2007 | Guardia Civil:SIVE - Command and Control Centres collect information and give orders for interception.SASEMAR:VTS, AIS | SPATIONAVCommon naval surveillance systemSPATIONAV V1 to be completed in 2007/2008, including AIS, SafeSeaNet, VTS, etc. | VTS AISVMS | Guardia di Financa: C4I Navy: MCCISCoast guard: VTMISMinistry of Interior designed common communication system | AISVHF ship report systemVTS | Coast Guard: VTMIS incl. VTS, connected to VMS, AIS. | VTS ACRS – Advanced Coastal Radar for SurveillanceVMS |

Means | Maritime Police: vessels, boats Guardia NR: speed boats Air Force: aircraft; helicoptersNavy: patrol boats | Guardia Civilboats, helicopters.SASEMAR:aircraft,helicopters, vessels, boatsNavy: ShipsAir Force:SAR unit with aircraft and helicopters | Maritime Gendarmerie:vessels, boatsCustoms:boats, aircraft, helicoptersMaritime Affairs: vessels, boatsGendarmerie Nat.:boats, helicoptersCivil Security:helicoptersNavy: aircraft, helicopters, vessels | Armed Forces:aircraft, vessels, boats | Guardia di Finanza: aircraft, helicopters, vessels, boatsCoast Guard: vessels, boats, aircraft, helicopters Navy: vessels, helicopters, aircraft. | Police: boats, helicoptersMaritime Administrationboats | Coast Guard: vessels, boats,airplanes,helicopters,vehicles incl. mobile radars | Police:boats,airplane,helicopters |

The aim of a European Border Surveillance System as defined in the BORTEC study is therefore to detect targets early enough to enable the identification of emergencies in order to give adequate help and to intercept targets before they are able to hide or disappear at sea or land, while paying special attention to the following four types of challenges:

· To have coverage ensuring the detection of all targets

· To be able to handle the bulk of information

· To have a coordinative approach

· To have sufficient flexibility

Based on these findings and the proposals made in the BORTEC study, under the following three policy options concrete steps will be presented to contribute to the achievement of the three policy objectives by:

(1) Interlinking and streamlining existing surveillance systems and mechanisms at Member States level

(2) Development and implementation of common tools and applications for border surveillance at EU level

(3) Creation of a common information sharing environment by setting up an integrated network of maritime surveillance systems

However, besides promoting the cooperation and information exchange between different authorities involved in border surveillance and improving the performance of surveillance tools, two more options could be taken into consideration:

(1) A 4th option would be that Member States use EU and national funding to invest at large scale in additional assets like ships, helicopters, planes, satellites, etc.

However, the financial means for border control available at EU and national level are much more limited than e.g. for the defence sector, meaning that they are not sufficient to cover all present and future risk areas. Furthermore, such additional investments would not provide any guarantees that the surveillance at the external borders is enhanced in a uniform manner, leading to the risk that certain critical areas might not be covered sufficiently by surveillance.

(1) A 5th option would be to considerably increase the number of operational personnel carrying out border control.

However, since the External Borders Fund does not cover the costs of staff, the additional costs would have to be borne by the national budget of the Member States concerned, neglecting the aspect of solidarity and burden-sharing among Member States. Furthermore, simply increasing the staff of national border control authorities would not contribute to a more efficient cooperation at EU level:

4.2. Policy Option 2 - Interlinking and streamlining existing surveillance systems and mechanisms at Member States level

4.2.1. Introduction

As outlined above and also in the strategy deliberations on integrated border management [31], the pressure arising from illegal migration and cross-border crime is constant. The routes, directions and modus operandi may vary depending on the time and circumstances. At national level, in order to guarantee flexible and adjustable allocation of resources for border management, it is necessary to organise centralised intelligence, analysis, planning and managerial functions that cover all fields of border control. For the purpose of land and sea border surveillance, a tactical command function is necessary for real time coordination of observation and risk analysis as well as for the initiation and command of reaction activities. Joint tactical and operational management functions between Member States could, where appropriate, be created and coordinated by FRONTEX. This should, where possible, embrace partner countries, who could be involved in planning, coordination and operations.

4.2.2. Step 1: National coordination centre and national surveillance system

4.2.2.1. National Co-ordination Centre

In the MEDSEA [32] and BORTEC studies FRONTEX proposed that in the eight Member States forming the EU southern maritime border [33] National Coordination Centres shall be set up to coordinate and supervise the operational centres at local level which are handling the daily operational surveillance activities at the coast as well as the surveillance activities in the open sea. Under the EPN (European Patrols Network, some of these developments are already being implemented in two phases: [34]

· EPN I: As of May 2007, a permanent joint operation by FRONTEX and Member States on patrolling activities covering defined areas of the Mediterranean Sea and the Atlantic Ocean is being carried out.

· EPN II: Until the end of 2008, FRONTEX and Member States shall establish the organisational structure, in particular by setting up the National Coordination Centres which shall strengthen the cooperation and coordination among the Member States involved in the EPN.

For EUROSUR, this process started under the EPN should be extended by setting up national coordination centres also in, as a priority, the Member States bordering the Russian Federation, Belarus, Ukraine and Turkey, forming the EU eastern land borders and the EU maritime borders in the Black Sea [35].

By using surveillance, reporting and intelligence data, the national coordination centre, which would form the central part of the national surveillance system, would ensure close to real-time local, regional (e.g. Canary Islands) and national decision-making among all national authorities carrying out border control tasks.

In a best-case-scenario, the NCC could have Command, Control, Communications, Computers, Intelligence, Surveillance, and Reconnaissance (C4ISR) capabilities to provide situational awareness [36] of conditions and activities along the external borders of the Member State as well as all necessary tools to react accordingly.

It is of course up to the Member States to determine the authority responsible for the national coordination centre. Several civilian and possibly also military institutions could be represented in the national coordination centre, provided there is a civilian chain of command. The national coordination centre could also have a direct communication link to other relevant national authorities (e.g. maritime authorities; military authorities).

One issue to be further examined is the use of military information and intelligence for border surveillance in general and the use of use of military tools for maritime border surveillance in particular. Whereas authorities involved in maritime border surveillance have usually sufficient assets for coastal areas, the involvement of the navies is of particular importance to sustain maritime operations on the high seas.

4.2.2.2. National Border Surveillance System

As mentioned, at the moment only very few Member States have set up a surveillance system covering the whole length of their external border, while a number of Member States are currently expanding their systems. The aim should be that the national surveillance systems cover all or – based on a risk analysis – selected parts of the EU external borders.

For reasons of cost-efficiency, one single national border surveillance system should be used by all national authorities to collect surveillance data, whereas the analysis of the data - e.g. for military purposes on the one hand and for border control purposes on the other hand - could be carried out separately and than used in the daily cooperation.

4.2.3. Step 2: Communication network between the national coordination centres including FRONTEX

Another issue is the fact that the surveillance systems of the Member States are not interoperable and therefore cannot exchange information between each other. Therefore information collected by the different national surveillance systems should be exchanged between national coordination centres via a secured computerised communication network. The communication network should enable electronic data exchange in order to send, receive and process information 24 hours a day in real-time.

Rules defining the daily cooperation and the workflow between the national coordination centres could be agreed in the form of a memorandum of understanding. Whenever necessary, Member States would, in accordance with EU and national legislation, take the necessary measures to ensure the confidentiality of information sent to them. [37] In the case of exchange of personal data, national rules for data protection would apply.

FRONTEX should receive information from the national coordination centres to the extent relevant for the coordination of joint operations and for risk analysis. FRONTEX could also be involved by serving as a European Situation Centre gathering and disseminating close-to-real-time information with regard to incidents occurred along the EU external borders.

4.2.4. Step 3: Support of neighbouring third countries in setting up infrastructure

Cooperation with neighbouring third countries is a fundamental part of the four tier border control model and a prerequisite for efficient border surveillance.

As the existing cooperation mechanisms in the Baltic Sea and in the Black Sea have shown, it is the particular interest of the EU and its neighbouring countries to achieve situational awareness of conditions and activities for the maritime domain.

Within the general framework of the Global Approach to Migration, the long-term goal should be to establish a functional and regular cooperation between EU Member States and neighbouring third countries to coordinate as equal partners the detection and interception of migrants planning to cross the EU external borders illegally. The formula to be developed could therefore cover all relevant aspects, i.e. prevention of departures, joint patrolling, rescuing, reception, identification, registering and return.

While Community financial assistance is already provided to most neighbouring third countries, a number of third countries, especially in the Mediterranean Sea and around the Canary Islands, would need increased financial and logistical support from the EU to enhance their capacity to manage their own borders, to fight cross-border crime and to fulfil their responsibilities as regards search and rescue.

Support should not be limited to infrastructure and equipment, but include also training activities to be implemented with flexibility and due respect to local conditions.

However, improving the border surveillance in neighbouring, in particular North-African countries might lead to the situation that new embarkation points for the boats used by illegal immigrants will be located even further away. Therefore support could also be given to other third countries, as deemed necessary.

Such activities would be in line with the recent Council conclusions on further reinforcing the EU's southern maritime borders, [38] in which the Council calls on the Commission and the Member States to follow-up on the contacts recently initiated with third countries with a view to launching and/or reinforcing concrete cooperation on border control, search and rescue and return.

4.2.5. Actions to be taken

Action 1: Member States located at the southern maritime and eastern land borders of the EU should set up

· one single national co-ordination centre, which co-ordinates 24/7 the activities of all national authorities carrying out external border control tasks (detection, identification, tracking and intervention [39]) and which is able to exchange information with the national co-ordination centres in other Member States;

· one single national border surveillance system, which covers all or – based on risk analysis - selected parts of the external border and enables the dissemination of information 24/7 between all authorities involved in external border control. [40]

· Member States should be encouraged to make full use of the financial support available under the European Borders Fund for the above two actions. [41]

Action 2: FRONTEX should, before the end of 2008, present

· a risk assessment determining those parts of the EU external border which should be covered by a surveillance system and comparing this assessment with the plans presented by the Member States, and

· a report on the existing and needed surveillance infrastructure in selected neighbouring third countries located in the Mediterranean Sea and in the vicinity of the Canary Islands.

Action 3: The Commission will set up a group of experts from Member States and FRONTEX, in order to elaborate guidelines for the tasks of and for the cooperation between the national coordination centres as well as on the role of FRONTEX.

Action 4: The Commission will launch a technical study under the External Borders Fund and coordinated with other ongoing preparatory works to design the system architecture and to estimate the approximate financial costs, for land and maritime borders and including technical specifications for a secured communication network between the national coordination centres and FRONTEX, making use of existing networks where feasible. The system architecture should be flexible and adaptable to accommodate the application and use of all existing as well as future border surveillance tools. The study will also include an analysis of how to link up EUROCONTROL with EUROSUR for the purpose of covering all relevant threats related to border surveillance in the long-term.

On this basis, the Commission will, in spring 2009,

· report to the Council on the progress made on the guidelines for the national coordination centres, and will assess the need for a legislative initiative in this regard;

· present an estimate on the approximate financial costs for the continued development of national coordination centres and national border surveillance systems;

· present a proposal for the system architecture for the communication network and an estimate of the approximate financial costs for setting it up;

· make an assessment of the border surveillance infrastructure in selected neighbouring third countries based on the evaluation carried by FRONTEX, while using as appropriate this assessment in the programming of relevant financial programmes in the external relations domain.

4.3. Policy Option 3 - Development and implementation of common tools and applications for border surveillance at EU level

4.3.1. Introduction

Due to technical (current performance of radar/optical sensors, limited availability/resolution of satellites) and financial limitations, Member States with external borders face the problem that the areas covered by surveillance are currently restricted to certain flat or coastal areas and/or those areas of the land border or open sea in which operations are carried out.

For the maritime domain, such “blind spots” do occur not only in the open sea, but also in and around EU coastal waters due to the volume of activity. In both areas, the main challenge is to identify and track non-cooperative sea craft that is not responding to calls from national authorities and/or are not complying with reporting requirements. Technical and practical solutions have in particular to be found for the current inability to detect and track small vessels, which are currently used for smuggling people and drugs into the EU.

Therefore the following steps should be taken:

4.3.2. Step 4: Research and development to improve surveillance tools

In particular two emerging tools are of interest for border surveillance purposes – satellites and UAVs (unmanned aerial vehicles). Whereas earth observation (EO) satellites offer the possibility of coverage for much of the earth, including the open sea and third country coasts and territories, UAVs have the advantage over satellites that they can produce more detailed information, can carry out persistent surveillance and can be placed over the target area on demand, more often, and more cheaply than piloted aircraft.

4.3.2.1. Satellites

EO satellites are using digital imaging systems which can either be passive using typically hyper-spectral/optical imaging sensors or active by using radar based technology called Synthetic Aperture Radar (SAR). [42]

For border surveillance, EO satellites can be used for monitoring and intelligence gathering in pre-defined areas, but not for tracking for the following reasons:

· The satellite makes an image as it passes over the area; the next image can only be made when this or another satellite passes over the area again. So satellites give snapshot information over a wide area but do not monitor continuously. [43]

· A trade-off has to be made between resolution and coverage (swath). In wide area searches small targets cannot be found (e.g. a 150km wide swath does not guarantee detection of 10 metre vessels in SAR imagery) and high resolution imagery has a narrow swath so it is only a practical tool when the position of the target is approximately known, e.g. on the basis of intelligence given.

· Since EO satellites are polar platforms orbiting at an altitude between 400km and 900km, their operations are restricted by

· the orbit which limits the frequency with which they can potentially acquire an image of a given point (revisit time);

· the control system which governs the time to remotely programme an acquisition (tasking) and

· the ground segment which limits the time after acquisition when the image is delivered to the end-user.

The revisit time depends on the swath width and the latitude of the area to be observed, but is presently usually between one to two days. The programming time for current SAR satellites is generally a minimum of 30 hours and the delivery time after acquisition can be less than 15 minutes. Therefore near-real time tasking of imaging is not possible. However, near-real time acquisition of information is possible for certain situations, in which 15-30 minutes delay is still acceptable (open sea, desert), but might be to slow for scenarios where targets disappear quickly (coastal areas, land borders).

· Satellites instruments, operating with limited power resources and with a number of operational constraints, are shared by many users with different requirements (area to cover, resolution). Customers are served on a first arrived first served basis and can only pre-empt another user on the basis of an international agreement (e.g. International Charter on "Space and Major Disaster" [44]). Image acquisition of a given area, even if theoretically possible, is therefore never guaranteed.

The time between two passes over the exact same point on earth for imaging can be significantly reduced by using different acquisition modes of the on-board instruments of one satellite and by making use of several satellites (multi-missions approach). However, the number of available EO satellites is limited:

· EO satellites with SAR functions owned/operated from the EU are ENVISAT (built by the European Space Agency and launched in 2002), TerraSAR-X (developed by the German Aerospace Centre, and operational since June 2007), Cosmo-Skymed (developed by the Italian Space Agency and in orbit since June 2007). These missions can also be complemented with non-EU satellites such as RADARSAT-1 and RADARSAT-2 (the latter scheduled for launch in December 2007 by the Canadian Space Agency). [45] Future missions include the Sentinels 1 and 3 constellations (ESA) and the RADARSAT-C upcoming constellation (Canadian Space Agency).

· More imagery would be available by using military missions (e.g. in Europe SAR-Lupe, HELIOS), but access to those data is generally restricted to military purposes. [46]

· In Europe, satellites are typically funded by government whereas operations for customers are offered by service providers on a commercial basis. [47]

· Given the characteristics of satellite imaging, within the available set of surveillance tools it is most suited for surveying far-away areas, collect regular situational updates, and for directing airborne or vessel patrols, making their use more cost-effective.

Satellites provide also other valuable applications for border surveillance such as telecommunication and global positioning.

· Space telecommunication provides ubiquitous, secured and reliable communication links that can be used for instance on the ground for communication with border patrols operating at the external land borders or for reporting a vessel position in conjunction with a global positioning system. One example is the Vessel Monitoring System (VMS) used by fishing vessels, other examples are the future Long Range Identification and Tracking System (LRIT) or possibly the collection of AIS signals from space. UAVs can also make use of space telecommunication for communicating with the ground station.

· Current and future improvements of existing systems for global positioning (e.g. GPS, GLONASS [48], or SBAS [49] systems, like EGNOS [50]) and the future European system Galileo will provide better accuracy, availability and reliability of data.

4.3.2.2. Unmanned aerial vehicles (UAVs)

Unlike satellites, UAVs can perform persistent surveillance and typically track a vessel in European and international waters. However, they have the disadvantage that they have a limited operational range and that they can be regarded as hostile objects when flying e.g. over third country coasts and territories. There are also a number of legal and technological problems hindering the regular use of UAVs:

· The main problem is that UAVs are currently not allowed to fly in civil airspace. In order to ensure the integration of UAVs into the European controlled airspace, further research and development is needed with regard to autonomy technology, e.g. by implementing traffic collision avoidance systems on board of UAVs.

· Taking into account the power consumption and the limited weight which can be carried by UAVs, another key technical need is the development of light-weight efficient sensors suitable for detecting small craft vessels and vehicles.

While taking into account the results of previous and ongoing projects carried out under the 6th Framework Programme for research development [51] and under the 2004-2006 Preparatory Actions for Security Research (PASR) [52], the 7th Framework Programme for research and development (2007-2013; Theme 9 – Space: M€ 1.430; Theme 10 – Security: M€ 1.400) should be used to improve the performance of recording or real-time sensing devices placed on different kind of platforms such as satellites, UAVs, planes, buoys etc (remote sensing) to

· increase the coverage (e.g. mountainous area inaccessible in winter time, open sea, third country coasts) and the number of suspicious activities detected,

· improve confidence in identification of potentially suspicious targets so as to optimize the subsequent interventions and to reduce the number of false alarms.

4.3.3. Step 5: Common application of surveillance tools

The common application of new surveillance tools (e.g. satellites, UAVs, planes) could provide Member States’ authorities with surveillance information on their external borders and the pre-frontier area on a more frequent, reliable and cost-efficient basis. Satellites and UAVs can collect data also from geographic areas going beyond Member States' boundaries. For this kind of data, a common way of collection shared between Member States is obviously the most efficient one.

FRONTEX could act as a facilitator e.g. to liaise with service providers in order to receive satellite imagery or to co-ordinate the use of UAVs along the maritime borders or eastern land borders of the EU. [53] Whereas this would be a cost-effective solution for all actors involved, special emphasis would have to be given to interoperability so that collected target data could be seamlessly fused into the "operational pictures" in the different national co-ordination centres.

4.3.4. Step 6: Common pre-frontier intelligence picture

The deployment of new tools opens the possibility for strategic information to be gathered by FRONTEX from various sources as well as from Member States' authorities and from third countries in order to recognise patterns and analyse trends, supporting the detection of migration routes and the prediction of risks. In practice that could serve to establish a common pre-frontier intelligence picture as a complement to the risk analyses currently developed by FRONTEX.

Such a common tool could also take on a more operational character and enable a targeted intelligence reaction, coordinated via the situation centre to be set up by FRONTEX. For example on the basis of intelligence received from third countries authorities, a target (e.g. lorry, vessel) utilised for a criminal activity could be identified abroad and tracked by using satellites or ship reporting systems until interception by Member States' authorities on EU territory.

4.3.5. Actions to be taken

Action 5: The 7th Framework Programme for research and development (security and space themes) should be used to improve the performance of surveillance tools to increase the area covered and the number of suspicious activities detected as well as to improve identification of potentially suspicious targets. Research on architectures for secured operational data sharing with different confidentiality levels for different users and data could be funded by the FP7 information theme. Research and development in automatic processing of sensor data and fusion of data from sensors (coasts, ships, aircraft, and satellite), secure communication and dissemination of data, data mining (e.g. open source information, for intelligence gathering) would therefore also be topics for FP7 projects.

Action 6: The 7th Framework Programme should also be used to optimise the use of available satellites for border surveillance purposes and to improve the access to high resolution observation satellite data. Therefore, in spring 2009, the Commission should present to the Council a concept allowing Member States to receive information derived from satellites and other common surveillance tools with regard to their external borders and the pre-frontier area on a more frequent and reliable basis in the context of GMES (Global Monitoring for Environment and Security). This concept should also include an estimate of the approximate financial costs.

Action 7: In spring 2009, FRONTEX should present, in close cooperation with the GMES Bureau of the Commission, a gap analysis of the current and potential future use of civil and military satellites for border surveillance purposes by Member States in order to further define the objectives to be pursued for the common application of such tools at European level.

Action 8: The Commission will launch a study under the External Borders Fund analysing the concept and approximate financial costs of a "common pre-frontier intelligence picture" and report back to the Council in spring 2009.

4.4. Policy Option 4 - Creation of a common monitoring and information sharing environment for the EU maritime domain

4.4.1. Introduction

Whereas policy option 2 provides the necessary infrastructure and policy option 3 the necessary tools, policy option 4 proposes to use all these elements to create a common information sharing environment by setting up an integrated network of maritime monitoring and surveillance systems. Data provided by reporting and information systems set up in other areas, in particular in the maritime domain, should also be taken into account. However, this implies that the development and setting up of such a "system of systems" would not only be highly complex, but could also be cost-intensive. [54] Therefore only the first of the following proposed three possible steps should lead to further action at this stage.

4.4.2. Step 7: Integrated network of reporting and surveillance systems for the Mediterranean Sea, the Canary Islands and the Black Sea

Whereas the six previous steps were dealing with the surveillance of all types of external borders, step 7 could focus on the maritime domain only.

As already mentioned, a multitude of authorities are involved in maritime surveillance, of which several are involved in setting up reporting systems like the Automatic Identification System (AIS), the Long Range Identification and Tracking System (LRIT) and the fishing Vessel Monitoring System (VMS), which can all be used for identification and tracking of vessels. [55] The European Maritime Safety Agency (EMSA) is in the process of setting up a European platform for maritime data exchange between Member States' maritime authorities (SafeSeaNet) [56], which shall interlink some of these systems until 2010 and which could also be used for border surveillance purposes.

In its Communication on an Integrated Maritime Policy for the European Union, the Commission stated that it will "take steps towards a more interoperable surveillance system to bring together existing monitoring and tracking systems used for maritime safety and security, protection of the marine environment, fisheries control, control of external borders and other law enforcement activities." [57]

As stated in the action plan accompanying the Communication [58], the Commission will announce in the 2nd half of 2008 in the form of a Communication a detailed work plan for further steps towards the integration of all European maritime surveillance systems, thus covering all maritime areas and also non-border related aspects, such as maritime safety, protection of the marine environment, and fisheries.

Due to the complexity of developing such a "system of systems", and taking into account current migratory pressure, in a first step the integrated network should initially be limited to the Mediterranean Sea, the Canary Islands and the Black Sea and focus in substance on internal security purposes, linking border control authorities, and other European and national authorities with interests and responsibilities in the maritime domain, linking them together through a "common operational picture":

· “Common” because the same information could be shared across computer networks and be available for display in all command centres and mobile assets of the participating authorities, which could use this information to facilitate command and control and decision making in near-real-time.

· “Operational” because the information displayed would be relevant to operations.

· “Picture” because the information would be presented through a graphical interface.

In order to reach full awareness of the conditions and activity across the maritime domain, the information could be collected about

· vessels (size, type, purpose, registry, location, destination, dynamic track data as well as static data on history, ownership, characteristics etc.),

· people (operators, passengers, crew, dock workers, agents, etc.),

· activities (type, location, time of year, cargo, etc.).

Therefore the aim of this step could thus be to create progressively until 2013 an integrated network of surveillance systems covering the Mediterranean Sea, the Canary Islands and the Black Sea, in which information from national surveillance systems (e.g. SIVE, SPATIONAV, VTS, VTMS etc.), common surveillance tools (e.g. radar satellites, UAVs), European and international reporting systems (VMS, AIS, LRIT, SafeSeaNet, etc.) and intelligence sources (national intelligence services, etc.) could be collected, fused, analysed and disseminated in a structured manner.

The four functions collection, fusion, analysis and dissemination of information could be carried out as follows:

· Collection: Information is gathered from various sources. Numerous maritime stakeholders collect unique as well as common information sets that are beneficial to the whole maritime community. Duplicative collection of information, e.g. by military and civil authorities, can be avoided by using the same tools (satellite, sensors).

· Fusion: Data and information shall be combined in a meaningful manner to determine what significant knowledge is present in all available data, including all available information about vessels, persons and activities (with due respect to regulations on sensitive data protection). Fusion of data can fill information gaps and reduce the uncertainty in information received from various sources.

· Analysis: The integration, evaluation, interpretation and refinement of information is achieved by using e.g. automated capabilities to recognise patterns, analyse trends and detect anomalies and thereby predict risks. Security sensitive analysis could be carried out separately, e.g. in the national coordination centres and by FRONTEX with regard to a corresponding common intelligence picture.

· Dissemination: The right information is moved to the right decision maker at the right time. The aim could be to deliver information to users with a freshness of 15 minutes. Ship data could be supplied with suitable information, sensor and quality parameters to facilitate effective storage, use and exchange. Access to information requires appropriate permissions.

The development of such a network should build upon the experiences made in developing regional initiatives with a similar purpose, i.e. in the Baltic Sea and the Black Sea. This common environment could sustain not only surveillance of maritime activity, but also activities such as the screening of vessels, people and cargo as a result of gathering and distributing intelligence, it should provide also cooperation tools and communication capabilities, possibly to be completed by a corresponding common intelligence picture. Special attention has to be given to the security of these systems and tools, ensuring appropriate confidentiality, integrity and availability.

With regard to a possible information and data exchange between different authorities (including military authorities), it has to be further examined how the integrity of classified information, confidential business data, information related to criminal investigations and the protection of personal data can be guaranteed.

4.4.3. Step 8: Integrated network of reporting and surveillance systems for the whole EU maritime domain by extending it to the Atlantic Ocean, North Sea and Baltic Sea

In the long-term and building upon the experiences gathered in step 7, the feasibility of extending the integrated network of surveillance systems to the Atlantic Ocean, the North Sea and the Baltic Sea and covering all aspects of maritime security and safety, including the protection of marine environment and fisheries should be analysed.

4.4.4. Action to be taken

Action 9: By 2009, the Commission should present to the Council an outline for the system architecture for an integrated network of reporting and surveillance systems for the Mediterranean Sea, the southern Atlantic Ocean (Canary Islands) and the Black Sea, which would allow border control authorities to take advantage of the integrated use of various maritime reporting and surveillance systems. This outline should take into account the results of a study to be launched under the External Borders Fund, studies carried out under the 7th Framework Programme for Research and Development, as well as other relevant preparatory work done.

In the framework of the EU Maritime Policy, the Commission will also present a Communication setting out a detailed work plan for further steps towards the integration of all European maritime reporting and surveillance systems covering all maritime activities in the Mediterranean Sea, the southern Atlantic Ocean (Canary Islands) and the Black Sea regions with a view to be extended later to the whole EU maritime domain.

5. Assessment of the impacts of policy options

Each action in the policy options is screened according to the following criteria:

1. General policy objective 1: Reduction of the death toll of illegal immigrants by rescuing more lives at sea.

2. General policy objective 2: Reduction of the number of illegal immigrants who manage to cross EU external borders undetected outside border crossing points.

3. General policy objective 3: Increase internal security of the EU as a whole by contributing to the prevention of trafficking in human beings, drug smuggling, terrorism etc.

4. Effectiveness: The extent to which the proposal can be expected to achieve the three general policy objectives (reduction of persons who manage to cross external border undetected, reduction of the death toll of illegal immigrants by rescuing more lives at sea; increase of internal security of EU as a whole).

5. Consistency: The extent to which options are consistent with other EU policies and activities including their impact on the economic, social and environmental domain.

6. Costs: The extent to which the general policy objectives can be achieved for a given level of resources/at least cost (cost-effectiveness) as well as the extent to which costs could be covered by Community financial programmes and by Member States.

7. Impact on fundamental rights, in particular on the protection of personal data.

8. Possible economic, social and environmental impacts as well as impacts on third countries.

The views expressed by Member States and other Commission services and agencies have also been taken into account.

For each action, the anticipated impact has been assessed on an ‘intuitive’ scale of positive impact from one to five (five being the best score) with respect to the three policy objectives.

The policy options are a combination of actions. Most of the actions are complementary rather than alternative means to achieve the same ends. In these circumstances it is necessary to consider each action individually.

5.1. Policy Option 1 – Status quo

Since Member States are responsible for external border control, each Member State is free to entrust the surveillance at external borders to the authorities of its choice, according to its own national structures. These missions are entrusted in certain Member States to a single body and in other Member States to several bodies reporting to different government departments, leading to the situation that in the Mediterranean Sea alone about 50 Member States' authorities from up to 30 different institutions and Ministries are involved in border surveillance, sometimes with parallel competencies and overlapping systems, with the risk of delays and lack of coordination between these various national services in a crisis situation.

Furthermore, the nature of the missions entrusted by the Member States to the various national authorities present at external borders entails a wide range of activities. Each national service of a Member State does not always have an exact counterpart in another Member State engaging in the same tasks and exercising the same powers of detection, identification and interception. Although a number of measures, in particular under the European Patrols Network, have already been undertaken to improve the cooperation between Member States, this situation might lead to delays and lack of coordination between Member States due to the absence of a common communication and information sharing network.

There would be an absence of synergies and economies of scale due to the lack of links between national border surveillance systems as well as with reporting systems currently being set up in other areas, while also taking into account the latest technological developments, e.g. in satellite technology. However, the central issue is enable information sharing between different authorities and systems within the limits of the current legal framework. Thus the status quo provides for ad hoc and incoherent information sharing between Member States. Overlaps in the collection of information are likely to occur between Member States as well as between different systems for collecting surveillance information and for ship reporting.

Finding vessels involved in illegal activities at sea, including illegal immigration, and finding small boats in distress can in practice only be done by combining the information concerning on-going ship traffic received from the ship reporting systems (VTS, AIS, VMS, LRIT) with detections of non-cooperative ships from patrol assets, UAVs or satellites. Most ship traffic is legal and the reporting systems indicate that part, therefore enabling the patrol assets to aim actual close-in inspection on the remaining small number of unknown or suspicious targets. Surveillance becomes ever more efficient and cost-effective as more information sources on ship traffic are combined. Policy option 1 would not lead to those benefits.

Research projects would be conducted without a clear vision linking research activities with the policy goals of enhancing border control at European level, serving mainly to reinforce individual Member States and without exploiting the potential benefits for all Member States concerned. No follow-up at European level to ensure the use of the results for the end-users would be ensured.

Table - Policy option 1

Action | 1. Reduction of loss of life | 2. Reduction of undetected border crossings | 3. Increase of internal security | 4. Effectiveness | 5. Consistency | 6. Costs [59] | 7. Fundamental rights (data protection) | 8. Economic, social, environ-metal impacts and impacts on 3rd countries |

Non-legislative actions |

STATUS QUO |

STATUS QUO | (no positive impact)In response to Member States' actions, embarkation points are located even further away, possibly resulting into a further increase of loss of life at sea. | Areas covered by surveillance are only punctual, whereas possibilities for undetected crossings remain. | (no positive impact)Non-coherent approach allows organised crime to focus on the least prepared Member States / third countries and on weak points, e.g. seaports. | (no positive impact)Status quo does not contribute to achievement of policy objectives. Non-sharing of information hinders prevention of organised crime. | (no positive impact)No advantage is taken of harmonisation processes in other fields (e.g. EU maritime policy) and of EU and international systems currently being set up (e.g. LRIT). | (no positive impact)No use of synergies and economies of scale due to the lack of links between existing and future systems. | No impact. | No impact. |

5.2. Policy Option 2 - Interlinking and streamlining existing surveillance systems and mechanisms at Member States level

Policy option 2 focuses on upgrading streamlining existing surveillance systems and mechanisms at Member States level (Action 1). Community action is necessary to ensure a coherent implementation in the Member States concerned (Action 2, part 1) and to enable an efficient cooperation between Member States (Action 3). The technical framework for the cooperation between Member States including FRONTEX will be defined in Action 4. Finally, the extent to which neighbouring third countries would need logistic and financial support from the EU would have to be determined (Action 2, part 2).

Table - Policy option 2

Action | 1. Reduction of loss of life | 2. Reduction of undetected border crossings | 3. Increase of internal security | 4. Effectiveness | 5. Consistency | 6. Costs [60] | 7. Fundamental rights (data protection) | 8. Economic, social, environ-metal impacts and impacts on 3rd countries |

Non-legislative actions |

INTERLINKING AND STREAMLINING EXISTING SURVEILLANCE SYSTEMS AND MECHANISMS AT MEMBER STATES LEVEL |

STEP 1: Providing essential border surveillance infrastructure at national level |

ACTION 1Recommen-dation to set up(1) national coordination centres and(2) national coordination systems(investments) | **Search and rescue measures are improved mainly in territorial waters, and to some extent on the high sea. | ****Coherent use of detection tools, human resources and information sharing at national level reduces possibilities for undetected border crossings. | ***Coherent use of detection tools, human resources and information sharing at national level reduces possibilities for organised crime. | ****Action contributes to achievement of all three policy objectives by upgrading / expanding infrastructures and streamlining mechanisms for border surveillance. | ***Action extends geographical scope of the EPN and follows strategic guidelines of External Borders Fund (EBF).Action is in line with EU Maritime Policy. | ***Member States can use EBF to co-finance up to 75% of the costs. Available Community funding might not be sufficient to finance costs for all Member States concerned. | No impact, since national data protection rules within the limits of EU legislation apply. | Environmental impact limited, since modern technology (radar, satellites etc.) shall be used. Limited impact on third countries, since installations should be done on territories of EU Member States. |

Stakeholder's attitude: When consulted on strategic guidelines for EBF, Member States agreed to make this action a specific priority. In the 2nd consultation meeting, Member States informed that they will set up such centres. |

ACTION 2Part 1FRONTEX risk assessment on EU borders to be covered by surveillance system(study) | See 4. | See 4. | See 4. | Study itself has no direct impact. However, an indirect impact could be achieved if Member States would take into account results of the study in their planning. | ***Such a risk assessment is part of the mandate of FRONTEX and contributes to an efficient use of the financial resources provided under the EBF. | ***Risk assessment forms part of daily work of FRONTEX and is covered by FRONTEX budget. | Study itself has no direct impact. | Study itself has no direct impact. |

Stakeholder's attitude: Whereas a majority of Member States might regard this action as a neutral assessment, some could see it as an indirect interference into their border management. |

ACTION 3Elaboration of guidelines for cooperation between national coordination centres and on the role of FRONTEX(expert group) | *** Close coordination and extension of patrolling activities at national level increases number and area for search and rescue activities, in particular in territorial waters. | **** Improved cooperation at national level allo