[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 8.7.2009

COM(2009) 322 final

2009/0098 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Regulation (EC) No 377/2004 on the creation of an immigration liaison officers network

EXPLANATORY MEMORANDUM

1. CONTEXT OF THE PROPOSAL

- Grounds for and objectives of the proposal

This proposal addresses amendments to Regulation (EC) No 377/2004 on the creation of an immigration liaison officers (ILO) network[1] (hereinafter: ‘the Regulation’) that are necessary in order to ensure efficient use of this important cooperation tool for the management of migration and external borders. The objective of the proposal is to adapt the Regulation, in the light of practical experience, to changes in Community law that have come into force since it was adopted.

- General context

On 19 February 2004, the Council, having regard to the initiative of Greece and the opinion of the European Parliament, adopted Regulation (EC) No 377/2004, which lays down the obligation to establish forms of cooperation among immigration liaison officers of Member States, the objectives of such cooperation, the functions and appropriate qualifications of such liaison officers, as well as their responsibilities vis-à-vis the host country and the sending Member State. In the Regulation ‘ immigration liaison officer’ means any representative of one of the Member States, posted abroad by the immigration service or other competent authorities in order to establish and maintain contacts with the authorities of the host country with a view to contributing to the prevention and combating of illegal immigration, facilitating the return of illegal immigrants and managing legal migration. This includes ‘airline liaison officers’, ‘document advisors’ and ‘law enforcement liaison officers’, in so far as they also have to fulfil the aforementioned tasks.

Immigration liaison officers are usually posted to the consular offices of Member States in third countries or to the relevant authorities of other Member States, but could also be posted to the competent authorities of the third countries concerned, as well as to international organisations for a reasonable time period to be determined by the posting Member State.

On 26 October 2004, the Council adopted Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX)[2]. Pursuant to Article 2(1)(c) of this Regulation FRONTEX is to carry out risk analyses. These analyses must be based on the widest possible resources, but gathered and provided primarily by the Member States’ competent authorities. In order to fulfil its mission, FRONTEX must also facilitate operational cooperation between Member States and third countries. It may also cooperate with the competent authorities of third countries or with international organisations in the framework of working arrangements concluded with these authorities. This cooperation can, inter alia, cover exchange of experience on border control issues, training of border guards, exchange of operational information and joint operations. FRONTEX has no permanent representation in any third countries. Although immigration liaison officers posted in relevant third countries could provide a substantial contribution to the fulfilment of the above-mentioned tasks of FRONTEX, this potential is not yet adequately exploited owing to insufficient links between the liaison officers and the Agency.

Structured and secure means of communication for immigration liaison officers working in the field and for information exchange with other Member States are key elements for enhanced cooperation. Council Decision 2005/267/EC of 16 March 2005[3] establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services (known as ‘ICONet’), supplemented by the Commission Decision of 15 December 2005[4] laying down detailed rules for the implementation of that Council Decision, provides for a platform for the exchange of strategic, tactical and operational information concerning illegal migratory movements. The ‘ILO Network’ is a separate component of ICONet, comprising subsections for lists of immigration liaison officers and airline liaison officers (not in use at the moment), for the ILO central points/national units of Member States and for regional information. The latter is further divided into geographical regions, where all relevant information (e.g. country reports, risk analysis) can be made available for the immigration liaison officers.

Practical experience shows that the ‘ILO Network’ is clearly underused. The Commission proposes promoting the use of this secure and easily accessible communication tool by adding a reference to the network in the corresponding article of the Regulation.

Several Member States have informally agreed to lead regional ILO networks in Africa and to hold meetings in this context. Given that the current wording of the Regulation only encourages Member States holding the Presidency of the Council of the European Union (or Member States serving as acting Presidency) to take the initiative to hold such meetings, the Commission is proposing a clarification to the effect that also Member States agreeing to lead regional networks are in a position to hold such meetings.

As far as reporting duties are concerned, the Regulation stipulates that ‘ The Member State holding the Presidency of the Council of the European Union or, if this Member State is not represented in the country or region, the Member State serving as acting Presidency shall draw up, by the end of each semester, a report on the activities of immigration liaison officers networks in which it has a representative, as well as on the situation in the host country, in matters relating to illegal immigration to the Council and the Commission. Such a report shall be drawn up in accordance with a model and a format established by the Commission [5]. These reports will constitute an essential form of information for the preparation, at the end of each Presidency, of an evaluation report to be submitted to the Council, and drafted by the Commission, on the existing situation in every third country, where Member States’ immigration liaison officers are posted. ’

Since the Regulation entered into force six reports on the activities of ILO networks have been presented, by the UK, Austrian, Finnish, German, Portuguese and Slovene Presidencies, focusing on selected third countries only. The Commission has not been able to fulfil its obligation to present a comprehensive evaluation report on the basis of the Presidency reports to Council either. Given that, at the moment, Member States’ immigration liaison officers are posted to more than 130 third countries these provisions on reporting obligations are not applicable in practice. The Commission therefore proposes to adapt the relevant provisions in a meaningful way.

Decision No 574/2007/EC of the European Parliament and of the Council of 23 May 2007 establishes, for the period from 1 January 2007 to 31 December 2013, the External Borders Fund as part of the General programme ‘Solidarity and Management of Migration Flows’[6], in order to contribute to strengthening the area of freedom, security and justice and applying the principle of solidarity between the Member States. The available resources of this Fund may be used to enhance activities organised by the consular and other services of Member States in third countries, including the activities of immigration liaison officers. As it is stated by Article 4(4)(a) of this Decision, the External Borders Fund shall support the reinforcement of the operational capacity of the ILO networks and the promotion of a more effective cooperation through those networks between the Member States.

In June 2008, the Commission adopted a Communication on a common immigration policy[7], setting out principles, actions and tools, building on the Tampere European Council’s milestones, the Hague Programme and the Global Approach to Migration, launched in 2005. In the light of this Communication, the European Council adopted on 15-16 October 2008 the European Pact on Immigration and Asylum[8] in which it stressed the need for greater cooperation between Member States and the Commission and the countries of origin and transit in order to control illegal immigration.

- Existing provisions in the area of the proposal

Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network;

Council Decision 2005/267/EC of 16 March 2005[9] establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services;

Commission Decision of 15 December 2005[10] laying down detailed rules for the implementation of Council Decision 2005/267/EC;

Memorandum of Understanding concerning the development of the secure web-based Information and Coordination Network for Member States’ Migration Management Services, between the European Commission and the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.[11]

2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT

- Consultation of interested parties

Member States were initially consulted up to the end of 2006 on the basis of a questionnaire initiated under the Finnish Presidency in the Council Working Group CIREFI. Their replies were discussed in SCIFA in March 2007.

Member States considered in particular the broad reporting obligation in Article 6 of the Regulation as inappropriate and underlined the added value of involving FRONTEX more extensively. They also expressed the wish to step up the use of ICONet and to improve cooperation between immigration liaison officers in Africa. The latter aspect was discussed at an expert meeting in late spring 2007 and in the Committee on Immigration and Asylum in October 2007.

In March 2008, the Commission circulated a questionnaire with different options for amending Council Regulation (EC) No 377/2004. Based on the replies received, in October 2008 the Commission presented the Committee on Immigration and Asylum with an informal working document providing concrete proposals for amending the relevant provisions of the Regulation. The Commission proposed to table, in a first phase, the necessary amendments concerning the reporting obligations, the involvement of FRONTEX and the improvement of ICONet. In a second phase, the need and possibilities for creating an ‘EU’ immigration liaison officer — who could be posted with a view to representing the interests of all Member States as well as of the relevant EU bodies — would be reviewed in connection with the revision of the FRONTEX Regulation planned for 2010. This revision would also consider transferring the responsibility for managing ICONet from the Commission to FRONTEX.

These proposals, including the two-phase approach, were supported by the Member States.

- Impact assessment

An impact assessment was not carried out because the present proposal introduces only minor and mainly technical changes into existing legislation. These changes will have no identifiable economic, social or environmental impact. Furthermore, the EU’s Better Regulation policy aims, among other things, to simplify and improve existing legislation in line with the proportionality principle. This proposal fulfils these objectives by ensuring consistency with changes in Community law that have come into force since the Regulation was adopted, while taking into account practical experience gained in implementing it.

3. LEGAL ELEMENTS OF THE PROPOSAL

- Summary of the proposed actions

The proposed amendments establish a link and provide a legal basis for cooperation between FRONTEX and the ILO networks, promote the use of ICONet for regular exchange of information and practical experience, highlight the possibility of using available Community funds for the creation and smooth operation of ILO networks, and rationalise the reporting system related to the activities of established ILO networks, ensuring also that the European Parliament as co-legislator[12] in this policy area is properly informed.

- Legal basis

Article 63(3)(b) and Article 66 of the Treaty establishing the European Community form the legal basis for this proposal for a Regulation, as it amends Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network, which is based on these Articles, and as it will further specify the functioning of such networks.

- Subsidiarity principle

Under Article 63(3)(b) of the EC Treaty, the Community has the power to adopt measures relating to illegal immigration and illegal residence, including repatriation of illegal residents. Under Article 66 the Council, acting in accordance with the procedure referred to in Article 67, must take measures to ensure cooperation between the relevant departments of the administrations of the Member States, as well as between those departments and the Commission. The current Community provisions on the creation and functioning of ILO networks need to be adapted to take into account changes in Community law, as well as practical experience gained in this context.

Therefore, the objective of the proposal cannot be sufficiently achieved by the Member States.

- Proportionality principle

Article 5 of the EC Treaty states that action by the Community must not go beyond what is necessary to achieve the objectives of the Treaty. The form chosen for this Community action must enable the proposal to achieve its objective and be implemented as effectively as possible. The proposed initiative — amendment of the Regulation — constitutes a further development of the Schengen acquis combating the organisation of illegal immigration and ensures cooperation between the relevant departments of the administrations of the Member States, as well as between those departments and the Commission. The proposal therefore complies with the proportionality principle.

- Choice of instrument

Proposed instrument: regulation.

Other means would not be adequate as the present proposal amends a regulation.

4. BUDGETARY IMPLICATION

The proposal has no implication for the Community budget.

5. ADDITIONAL INFORMATION

- Consequences of the various protocols annexed to the Treaties and of the association agreements concluded with third countries

The legal basis for this proposal is to be found in Title IV of the EC Treaty, with the result that the system of ‘variable geometry’, provided for in the protocols on the position of the United Kingdom, Ireland and Denmark and the Schengen protocol, applies. The proposal builds on the Schengen acquis . The following consequences in relation to the various protocols therefore have to be considered:

United Kingdom and Ireland

The United Kingdom is taking part in this Regulation in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the EU Treaty and to the EC Treaty and Article 8(2) of Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis .

Ireland is taking part in this Regulation in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the EU Treaty and to the EC Treaty and Article 6(2) of Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis .

Denmark

Under the Protocol on the position of Denmark, annexed to the EU Treaty and to the EC Treaty, Denmark does not take part in the adoption by the Council of measures pursuant to Title IV of the EC Treaty, with the exception of ‘measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas’.

This proposal builds on the Schengen acquis , and under Article 5 of the Protocol ‘Denmark shall decide within a period of six months after the Council has decided on a proposal or initiative to build upon the Schengen acquis under the provisions of Title IV of the Treaty establishing the European Community whether it will implement this decision in its national law.’

Iceland and Norway

As regards Iceland and Norway, this proposal constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis [13].

Switzerland

As regards Switzerland, this proposal constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the European Union, the European Community and the Swiss Confederation on the latter’s association with the implementation, application and development of the Schengen acquis [14].

Liechtenstein

As regards Liechtenstein, this proposal constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis[15].

- Detailed explanation of the proposal

Article 1

The first paragraph and point (a) of the second paragraph promote the use of the secure web-based Information and Coordination Network for Member States’ Migration Management Services (ICONet) for the exchange of information on the posting of immigration liaison officers and for the exchange of information and practical experience among immigration liaison officers.

Point (b) of the second paragraph ensures closer cooperation between FRONTEX and the ILO networks.

Point (c) of the second paragraph allows any Member State — other than the one holding or acting as the Presidency — to take the initiative to hold meetings of immigration liaison officers.

The third paragraph simplifies the reporting obligation under the Regulation. It also provides for the relevant European institutions to receive regular information on activities of immigration liaison officers’ networks in specific regions and/or countries of particular interest to the European Union, as well as on the situation in those regions and/or countries, in matters relating to illegal immigration.

2009/0098 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of […]

amending Council Regulation (EC) No 377/2004 on the creation of an immigration liaison officers network

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(b) and Article 66 thereof,

Having regard to the proposal from the Commission[16],

Acting in accordance with the procedure laid down in Article 251 of the Treaty,

Whereas:

1. Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network[17] lays down the obligation to establish forms of cooperation among immigration liaison officers of Member States, the objectives of such cooperation, the functions and appropriate qualifications of such liaison officers, as well as their responsibilities vis-à-vis the host country and the sending Member State.

2. Council Decision 2005/267/EC[18] established a secure web-based Information and Coordination Network for Member States’ Migration Management Services (ICONet) for the exchange of information on irregular migration, illegal entry and immigration and the return of illegal residents. The elements for information exchange are to include the networks of immigration liaison officers.

3. Regulation (EC) No 2007/2004 established a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX)[19]. The FRONTEX Agency is tasked with preparing general and tailored risk analyses to be submitted to the Council and the Commission.

4. Immigration liaison officers have to collect information concerning illegal immigration for use either at operational level or at strategic level, or both. Such information could substantially contribute to the FRONTEX Agency’s activities related to risk analysis, and closer cooperation between the immigration liaison officers’ networks and the FRONTEX Agency should be established to that effect.

5. All Member States should be able to initiate meetings, when considered appropriate, between the immigration liaison officers posted in a particular third country or region, in order to enhance cooperation between them.

6. Decision No 574/2007/EC of the European Parliament and of the Council of 23 May 2007 establishes for the period from 1 January 2007 to 31 December 2013 the External Borders Fund as part of the General programme ‘Solidarity and Management of Migration Flows’[20], in order to contribute to strengthening the area of freedom, security and justice and applying the principle of solidarity between the Member States. The available resources of this Fund may be used to enhance the activities organised by the consular and other services of Member States in third countries and to support the reinforcement of the operational capacity of the immigration liaison officers' networks, thereby promoting a more effective cooperation via these networks, between the Member States.

7. The Council, the European Parliament and the Commission should be informed regularly about the activities of immigration liaison officers networks in specific regions and/or countries of particular interest to the European Union, as well as on the situation in those regions and/or countries, in matters relating to illegal immigration. The selection of the specific regions and/or countries of particular interest to the European Union should be based on objective migratory indicators, such as statistics on illegal migration and risk analyses prepared by the FRONTEX Agency, and should be in line with overall EU external relations policy.

8. Regulation (EC) No 377/2004 should, therefore, be amended accordingly.

9. Since the objectives of the proposed action, namely adapting the current Community provisions on the creation and functioning of immigration liaison officers networks in order to take into account changes in Community law, as well as practical experience gained in this context, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

10. This Regulation respects the fundamental rights and observes the principles recognised by Article 6(2) of the Treaty on European Union and reflected in the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as in the Charter of Fundamental Rights of the European Union.

11. The United Kingdom is taking part in this Regulation, in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community, and Article 8(2) of Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some provisions of the Schengen acquis [21].

12. Ireland is taking part in this Regulation, in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community, and Article (6)2 of Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the acquis [22].

13. In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it, or subject to its application. Given that this Regulation builds on the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark should, in accordance with Article 5 of the said Protocol, decide within a period of six months after the adoption of this Regulation whether it will implement it in its national law.

14. As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis , within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latter’s association with the implementation, application and development of the Schengen acquis [23], which fall within the area referred to in Article 1, point A and E of Council Decision 1999/437/EC[24] on certain arrangements for the application of that Agreement.

15. As regards Switzerland, this Regulation constitutes a development of provisions of the Schengen acquis , within the meaning of the Agreement signed between the European Union, the European Community and the Swiss Confederation[25] concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis , which fall within the area referred to in Article 1, point A and E, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC[26].

16. As regards Liechtenstein, this Regulation constitutes a development of provisions of the Schengen acquis , within the meaning of the Protocol signed between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point A and E, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/261/EC[27].

HAVE ADOPTED THIS REGULATION:

Article 1 Amendment

Regulation (EC) No 377/2004 is amended as follows:

17. In Article 3 the second sentence in paragraph 1 is deleted and the following paragraph (3) is inserted:

‘3. The information referred to in paragraphs (1) and (2) shall be made available on the secure web-based Information and Coordination Network for Member States’ Migration Management Services established by Council Decision 2005/267/EC[28] (hereinafter referred to as “ICONet”) under the section dedicated to immigration liaison officers networks. The Commission shall also provide this information to the Council.’

18. Article 4 is amended as follows:

(a) In paragraph 1 the second indent is replaced with the following:

‘- exchange information and practical experience, in particular at meetings and via ICONet.’

(b) paragraph 2 is replaced with the following:

‘2. Representatives of the Commission and the FRONTEX Agency established by Regulation (EC) No 2007/2004 shall be entitled to participate in the meetings organised within the framework of the immigration liaison officers network, although, if required by operational considerations, meetings may be held in the absence of these representatives. Other bodies and authorities may also be invited, as appropriate.’

(c) In paragraph 3, the following sentence is added:

‘Such meetings may also be held at the initiative of other Member States.’

19. Article 6 is replaced with the following:

‘1. The Member State holding the Presidency of the Council of the European Union or, if this Member State is not represented in the country or region, the Member State serving as acting Presidency shall draw up, by the end of each semester, a report to the Council, the European Parliament and the Commission on the activities of immigration liaison officers networks in specific regions and/or countries of particular interest to the European Union, as well as on the situation in those regions and/or countries, in matters relating to illegal immigration. The selection, following a consultation with the Member States and the Commission, of the specific regions and/or countries of particular interest to the European Union shall be based on objective migratory indicators, such as statistics on illegal migration and risk analyses prepared by the FRONTEX Agency, and shall be in line with overall EU external relations policy.

2. Such reports shall be drawn up in accordance with the model established by Commission Decision 2005/687/EC[29] and indicate the relevant selection criteria.

3. The Commission shall, on the basis of the abovementioned reports, provide a factual summary to the Council and to the European Parliament, on an annual basis, on the development of the immigration liaison officers networks.’

Article 2 Entry into force

This Regulation shall enter into force on the twentieth day following its publication in the Official Journal of the European Union .

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

Done at Brussels, […]

For the European Parliament For the Council

The President The President

[…] […]

[1] OJ L 64, 2.3.2004, p. 1.

[2] OJ L 349, 25.11.2004, p. 1.

[3] OJ L 83, 1.4.2005, p. 48.

[4] C (2005) 5159 final.

[5] Commission Decision of 29 September 2005, OJ L 264, 8.10.2005, p. 8.

[6] OJ L 144, 6.6.2007, p. 22.

[7] COM(2008) 359 final.

[8] Council doc. 13440/08.

[9] OJ L 83, 1.4.2005, p. 48.

[10] C (2005) 5159 final.

[11] C(2007) 374.

[12] Council Decision of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty, OJ L 396, 31.12.2004, p. 45.

[13] OJ L 176, 10.7.1999, p. 36.

[14] OJ L 53, 27.2.2008, p. 52.

[15] OJ L […], […], p. […].

[16] OJ C […], […], p. […].

[17] OJ L 64, 2.3.2004, p. 1.

[18] OJ L 83, 1.4.2005, p. 48.

[19] OJ L 349, 25.11.2004, p. 1.

[20] OJ L 144, 6.6.2007, p. 22.

[21] OJ L 131, 1.6.2000, p. 43.

[22] OJ L 64, 7.3.2002, p. 20.

[23] OJ L 176, 10.7.1999, p. 36.

[24] OJ L 176, 10.7.1999, p. 31.

[25] OJ L 53, 27.2.2008, p. 1.

[26] OJ L 53, 27.2.2008, p. 1.

[27] OJ L 83, 26.3.2008, p. 3.

[28] OJ L 83, 1.4.2005, p. 48.

[29] OJ L 264, 8.10.2005, p. 8.