EN Official Journal of the European Union C 108/97

Opinion of the European Economic and Social Committee on the ‘proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders’

(COM(2003) 687 final - 2003/0273(CNS))

(2004/C 108/20)

On 8 December 2003 the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The European Economic and Social Committee decided to appoint Mr Pariza Castaños rapporteur-general for this opinion.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 29 January 2004), the European Economic and Social Committee adopted the following opinion by seventy-five to one, with three abstentions.

1. Gist of the Proposal for a Regulation

1.1 The Plan for the management of the external borders of the Member States of the European Union, approved by the Council on 13 June 2002, endorsed the setting-up of an external borders practitioners' Common Unit in the framework of the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) with a view to an integrated management of the external borders.

1.2 In its conclusions on the effective management of the external borders of the EU Member States of 5 June 2003, the Council called for the reinforcement of the Common Unit as a Council Working Party made up of experts seconded from the Member States to the Secretariat General of the Council.

1.3 At its meeting on 19 and 20 June 2003, the Thessaloniki European Council endorsed the above-mentioned Council Conclusions of 5 June 2003 and called on the Commission to examine the need to create new institutional mechanisms, including the possible creation of a Community operational structure, in order to enhance operational co-operation for the management of external borders.

1.4 In its conclusions of 16 and 17 October 2003, the European Council welcomed the Commission's intention to submit a proposal to set up an Agency for the management of external borders. This proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders responds to the European Council's request. It takes account of the experiences of co-operation between the Member States in the framework of the Common Unit, from which the Agency will take over the task of co-ordinating operational co-operation.

1.5 Following the integration of the Schengen acquis into the EU framework, common rules on the control and surveillance of the external borders already exist at Community level. These common rules are applied at an operational level by the competent national authorities of the Member States belonging to the area without internal borders. The objective of this Regulation is, thus, to optimise the implementation of Community policy on the management of the external borders by better co-ordinating operational co-operation between the Member States via the creation of an Agency.

1.6 The Agency will perform, in particular, the following tasks: — coordinate joint operations and pilot projects between the Member States, and between the latter and the Community, in order to improve the control and surveillance of the EU's external borders; — provide training at European level for instructors of the national border guards in the Member States, as well as additional training for officers in the competent national services; — prepare both general and tailored risk assessments; — follow up research developments that are relevant to the control and surveillance of the EU's external borders and share its technical knowledge with the Commission and the Member States; — co-ordinate co-operation between the Member States in the field of removal of third country nationals residing illegally in the Member States; — assist Member States in circumstances requiring increased technical and operational assistance in connection with the control and surveillance of the EU's external borders; — manage technical equipment belong to the Member States (centralised records of equipment and acquisition of new equipment at the Member States' disposal).

1.7 The Agency will co-ordinate proposals for joint operations and pilot projects submitted by the Member States. It may also launch its own initiatives in co-operation with the Member States. In order to organise joint operations, the Agency may set up specialised branches in the Member States.

1.8 With regard to the organisation and co-ordination of joint return operations, the Agency will provide the Member States with the necessary technical support, e.g. by developing a network of contact points to that end, keeping an up-to-date inventory of existing and available resources and facilities, and preparing specific guidelines and recommendations on joint return operations.

1.9 The Agency may assist Member States in circumstances requiring increased operational and technical assistance at their external borders regarding co-ordination.

1.10 The Agency may co-finance joint operations and pilot projects at the external borders with grants from its budget, in accordance with its own Financial Regulation.

1.11 The Agency will be a Community body with legal personality. It will be independent in relation to technical matters. It will be represented by an Executive Director, who will be appointed by the Management Board.

1.12 The Management Board will be composed of twelve members and two Commission representatives. The Council will appoint the members as well as their alternates who will represent them in their absence. The Commission will appoint its representatives and their alternates. The term of office will be four years and may be extended once. The Management Board will take its decisions by an absolute majority of its members. For the appointment of the Executive Director, a two-thirds majority will be needed.

1.13 The Agency will take up its responsibilities from 1 January 2005. It is envisaged that it will have a staff of 27 and a budget allocation of Ĳ 15 million per annum for 2005 and 2006.

1.14 The legal basis for establishing the Agency is Article 66 of the Treaty establishing the European Community and is part of the Schengen acquis. The United Kingdom and Ireland are not bound by the Schengen acquis and are not therefore taking part in the adoption of this Regulation, bound by it or subject to its application. Denmark, in line with its special status, will decide within a period of six months whether to incorporate this Regulation in its national legislation.

2. General comments

2.1 Very often controls at external borders are insufficient. Authorities in the Member States cannot ensure that all third country nationals entering the Schengen area do so in compliance with procedures laid down in Community and national legislation.

2.2 A number of EESC opinions have called on the Council to speed up its legislative work so as to give the EU a common legislation and policy on immigration and asylum. However, the Council has not taken proper account of the views of either the Parliament or the Committee and the legislation it has adopted is ill-equipped to ensure that immigration within the EU takes place through legal and transparent channels. Several EESC opinions (1) have pointed out that one of the most important causes of illegal immigration is the lack of a common policy on the management of migration through legal, flexible and transparent channels. In its opinion on the Communication on a common policy on illegal immigration (2), the EESC states that the delay in adopting Community legislation makes it difficult to ensure that migration takes place through legal channels.

2.3 People who find themselves in an irregular situation are particularly vulnerable to exploitation in employment and to social exclusion as, though they are not without rights (3), their situation exposes them to a whole range of problems. In its opinion on immigration, integration and employment (4), the EESC pointed out that undeclared work and illegal immigration are closely related issues and that action therefore needs to be taken to regularise the legal situation of these people and expose undeclared work.

2.4 The EESC wishes to stress that effective border controls must not jeopardise the right to asylum. Many people needing international protection arrive at the external borders through illegal channels. The authorities must ensure that these people can apply for protection and that their application is assessed in accordance with international conventions and Community and national legislation. Until the administrative and judicial procedures governing asylum seekers are resolved, these people cannot be removed and must be given the corresponding protection.

2.5 The lack of effective controls at external borders is often exploited by criminal networks that traffic in human beings and have no qualms about putting people's lives at serious risk in order to increase their illegal profits. In its opinion on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities (5), the EESC pointed out that the authorities must protect victims, in particular the most vulnerable, such as children, and victims of trafficking for sexual exploitation, with the same energy with which they combat criminal networks that traffic in and exploit human beings.

2.6 The EESC has already stated in earlier opinions that effective management of the external borders requires close co-operation between the border authorities in the Member States, and between authorities in the countries of origin and countries of transit, through liaison officers.

2.7 In its aforementioned Opinion on illegal immigration (6), the EESC ‘[supported] the Commission's proposal to set up a European border guard with common standards and a harmonised training curriculum’ and stated that: ‘In the medium term, steps should be taken towards the creation of a border guard school. Border controls should be carried out by officials who are skilled in dealing with people and possess thorough technical know-how.’ The EESC also welcomed the creation of a European migration observatory and the development of an early warning system on illegal immigration.

2.8 In this opinion, the EESC welcomes the establishment of a European Agency for the Management of Operational Co-operation at the External Borders, which will be set up under the present Regulation. Although the Agency and its officials will have no executive power, no policy making role and no authority to make legislative proposals, it will improve co-ordination between the authorities in the Member States and the effectiveness of controls at the external borders. Article 41 of the draft European Constitution acknowledges the importance of operational co-operation between authorities in the Member States.

3. Specific comments

3.1 The Agency's main tasks (Article 2) must include ensuring that people are treated more humanely and that international conventions on human rights are respected. It is particularly important that effective border controls do not jeopardise the right to asylum. Training (Article 5) for border guards – to be provided by the Agency – must include training in humanitarian law.

3.2 The Agency's tasks must also include co-ordinating rescue services – particularly sea rescue – to warn and help people who are in danger owing to the high-risk practices employed in illegal immigration. Police action at sea has sometimes resulted in small boats sinking and human life being lost, which could have been avoided. The first responsibility of border guards must be to help people in danger.

3.3 It is envisaged that the Agency will co-ordinate or organise return operations (Article 9), for which it may use Community financial resources. In its opinion on the Green Paper on a Community return policy on illegal residents (7), the EESC stated the following: ‘If the policy of compulsory return is not combined with regularisation measures, the numbers of people in irregular situations will remain unchanged, feeding the hidden economy and leading to increased exploitation in employment and social exclusion.’

3.4 The EESC agrees with the Commission when it states that voluntary return is preferable to forced return. The Committee considers forced expulsions to be an extreme measure that must only be used occasionally. The Committee bases its argument on Article II-19 of the draft European Constitution (Protection in the event of removal, expulsion or extradition, taken from the Charter of Fundamental Rights of the Union) which prohibits collective expulsions and states the following: ‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

3.5 With regard to return operations, the Agency must ensure that the principles of humanitarian law are respected, in particular the right to asylum. It must guarantee that the principle of ‘non-refoulement’ is applied to people who could suffer persecution or ill treatment or whose life could be at serious risk in the country of origin or transit.

3.6 In its opinion on the mutual recognition of expulsion decisions (8), the EESC also stated that expulsion decisions should not apply to people finding themselves in one of the following situations: — return implies family separation, either from children or parents; — return implies serious harm for minors in their charge; — the person suffers from a serious physical or psychological injury; — the safety, life and freedom of the person may be at considerable risk in the country of origin or transit.

3.7 International organisations (e.g. IOM, UNHCR, Red Cross, etc.) may be involved in return operations.

3.8 The proposed Regulation (Article 17) lays down that each year the Management Board will draw up a general report which it will forward to the Parliament, the Commission and the European Economic and Social Committee. The EESC agrees that the Agency should keep it informed of its activities. The Committee reserves the right to issue opinions and invite the Executive Director to any relevant meetings.

3.9 Members of the Management Board (Article 18) should have the appropriate knowledge and skills and act independently of Governments.

3.10 The EESC welcomes the provision that within three years of the Agency taking up its responsibilities (Article 29) it will be subject to an external and independent evaluation. On the basis of this evaluation, the Management Board will issue recommendations to the Commission regarding changes it considers necessary if the Agency is to work more effectively. The EESC would wish to issue an opinion on any changes that may be made in due course to the Regulation and calls on the European Parliament to do the same.

Brussels, 29 January 2004 The President of the European Economic and Social Committee Roger BRIESCH

(1) See EESC opinion on the Communication on a common policy on illegal immigration – OJ C 149 of 21.6.2002 and EESC opinion on immigration, integration and employment adopted at its plenary session of 11.12.2003.

(2) See first opinion referred to in footnote 2.

(3) Ibid.

(4) See second opinion referred to in footnote 2.

(5) See OJ C 221 of 17.9.2002 .

(6) See first opinion referred to in footnote 2, point 3.6.4.

(7) See point 2.4 of the opinion in OJ C 61 of 14.3.2003

(8) See OJ C 220 of 16.9.2003