EN    EN EN 
EN    EN  EUROPEAN COMMISSION 
Brussels, 24.2.2010 
SEC(2010) 150 
  
COMMISSION STAFF WORKING DOCUMENT 
EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT 
 
accompanying the 
 
Proposal for a 
 
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
 
amending Council Regulation (EC) No 2007/ 2004 establishing a European Agency for 
the Management of Operational Cooperation at the External Borders of the Member 
States of the European Union (FRONTEX) 
   
{COM(2010) 61 final} 
{SEC(2010) 149} 
EN 2   EN The Frontex Agency was set up in 2004 and became operational in 2005. 
As requested by the Hague programme th e Commission adopted on 13 February 2008 a 
Communication on the evaluation and future  development of the FRONTEX Agency 
(COM(2008) 67 final) (hereaf ter "Communication").  
This IA builds on the 2008 Communication' impact assessment; the external evaluation 
contracted by the Frontex Management Board as requested by Article 33 of the Frontex 
Regulation and the ensuing recommendations of  the Management Board, and the conclusions 
of the European Council.  
1. P ROBLEM DEFINITION  
Even though Frontex proved to be very useful in providing a framework for MS to cooperate 
with each other subject to particular pressures, the operational cooperation is still 
inefficient and insufficient , especially for  operational solidarity. Also , Frontex is not using 
its potential in the best possible way, due to unc lear or insufficient existing legal provisions.  
The problems to be addressed are of a punctual  nature on specific points where Frontex has 
not been able to deliver according to the expectations of the institutions or where the legal framework has proven inadequate.  
Insufficient technical equipmen t put at the disposal by MS 
While MS are ready to list a large number of equipment in CRATE a very small share of that 
equipment is made available.  
Secondly, a majority of the vessels deployed come  from the host state and not from other MS.  
Thirdly, based on the estimates for the future a nd leaving any budgetary constraints aside, the 
current availability of equipment will not come close to meeting the needs. 
Insufficient human resources put at the disposal  for joint operations by MS; lack of uniform 
standards 
The exact competencies of the Agency to orga nise "Frontex Joint S upport Teams" (FJST) are 
unclear as the current legal basis is silent on this issue.  
A second problem is that the Agency needs to ma ke ad hoc requests to MS to contribute with 
border guards for each individual operation.  
Inefficient coordination and follo w up of joint operations 
The current Regulation contains no rules on how Frontex operations should be prepared, 
conducted and evaluated.  
Insufficient and inef ficient cooperation w ith third countries 
There is no possibility for the Agency to assist  third countries in a pro-active manner, on the 
basis of its working arrangements..  
Collection, storage and pro cessing of personal data  
As noted by the evaluation, the risk analysis ca rried out by the Agency could be substantially 
enriched if it could collect and process certain types of personal data, which could allow for a 
better operational support from the Agency to the MS.  
EN 3   EN Return 
A first objective in this area must be to adapt th e legal basis to reality: while the legal basis 
only talks about Frontex "assisting" MS a nd that the Agency has already taken on a 
"coordinating" role. 
There is a strong call from MS for Frontex to provide more support in this area.  
No use of the expertise of the Agency to eva luate MS' performance in the area of border 
management 
Firstly, the risk analysis of the Agency remain s weak when it comes to  assessing the capacity 
of MS' border management systems to manage the threats.  
Secondly, Frontex has no mandate to evaluate or  react on any shortcomi ngs in the application 
of EC law, including with regard to fundamental rights.  
Subsidiarity and proportionality 
All suboptions respect  the following principles  and limits of the current  legal basis and are in 
line with the subsidiarity a nd proportionality principles: 
• Border management is a shared compet ence between the EU and its MS; MS are 
responsible for controlling th eir part of the external border of the Schengen area; 
• Frontex cannot impose any activity  on the territory or at the border of a MS without the 
consent of that MS; 
• Any border guard operating in anot her MS is subject to instruc tions by the authorities of 
that MS; 
• Any decision on refusal of entr y of a person shall be taken only by border guards of the 
MS whose territory the person is seeking to ente r; Any decisions related to the return of an 
individual can only be taken by a national auth ority of a MS; Frontex cannot be the sole 
registered owner ("flag state" ) of equipment such as vessels  or aircraft nor provide the 
crew (out of its own staff) for such equipment. 
2. O BJECTIVES  
General objectives (s ee Article 1 of Regula tion (EC) No 2007/2004) 
Specific objectives (s ee Article 2 of Regula tion(EC) No 2007/2004) 
Operational objectives 
• Ensure the availability of technical equipment for joint operations 
• Ensure the availability of qualified border guards for joint operations 
• Ensure efficient coordination, implementa tion and evaluation of  joint operations 
• Ensure efficient cooperation between Frontex and third count ries on border management 
• Improve the Frontex risk analysis by giving access to new sources of data 
• Improve efficiency of joint return operations 
• Improve the evaluation of the performance of  MS in the area of border management 
EN 4   EN 3. D ESCRIPTION OF SUBOPTIONS AND ANALYSIS OF IMPACTS  
The following "building blocks" correspond e ach to one operational objective; for each 
building block two or more policy suboptions ar e assessed as alternatives to each other: 
3.1. Revising existing provisions on th e use of technical equipment in joint 
operations, including the mechanisms fo r contributions from the MS of such 
equipment 
Suboption 1 : A technical equipment pool with compulso ry contributions of equipment by MS  
Suboption 2:  Acquisition or leasing of  equipment by Frontex  
Suboption 3: A combination of suboptions 1 and 2 
Can the involved costs be (or become) par t of the FRONTEX budget and how high are they? 
Drawing up a scenario of the cost impact on th e Frontex budget is virtually impossible as too 
many uncertainties exist and taking  also into account that an in crease in the availability of 
equipment will need to be phased in gradua lly for administrative and operational reasons. 
However, as a hypothetical scenario an additional 3 patrol vessels and 3 aircraft put at the disposal of the MS would entail a total annua l budget impact for Frontex of +/- 6 million€.  
What are the possible impac ts on fundamental rights? 
An increase in the availabili ty of equipment does not impact on fundamental rights. 
Comparison of the suboptions 
The preferred option is suboption 3. Thus, a co mpulsory mechanism for MS’s contributions 
should be set up to guarantee th e availability of a minimum number of equipment each year. 
This should be combined with the possibility  for Frontex to purchase or lease its own 
equipment.  
3.2. Mechanisms to improve the availability of border guards in joint operations  
Suboption 1: Establish “Frontex Joint Support Teams” (FJST) to  participate in joint 
operations and pilot projects ba sed on a compulsory mechanism for MS to contribute with 
guest officers to those teams, in the form of  a pool of human resources to be used by the 
Agency.  
Suboption 2:  Lower the threshold for the deployment  of Rabit teams. The current Rabit 
teams could thereby be used to reinforce joint operations.  
Suboption 3:  Foresee the gradual creation of a pool  of border guards on semi-permanent 
detachment from MS to Frontex for a period of six months.  
Can the involved costs be (or become) par t of the FRONTEX budget and how high are they? 
The unit costs for the first two suboptions would not be different compared to the status quo.  
As for the third suboption, in 2009 the allowan ce for a Frontex national detached expert 
amount to 4 127,- € per month. Guest officers of the MS deployed during joint operations cost 
on average 180,- € per day (+/- 3 960 per month). These figures i ndicate that the difference is 
minimal. 
What are the possible impac ts on fundamental rights? 
An increase in the av ailability of border guards does no t as such impact on fundamental 
rights. However, the risks of having an EU body and its staff exposed to situations of possible 
violations of fundamental rights could increase.  
EN 5   EN Comparison of the suboptions 
The second suboption brings the negative impact of depriving the EU of a true emergency 
response mechanism. That suboption should therefore be discarded. 
Suboption 1 and 3 will have to be combined: the setting up of a poo l of human resources 
made up of guest officers from the MS seconded to individual operations as well as guest officers employed as national experts by the Agency on a short-term basis.  
3.3. Revising the role of the Agency in preparing, coordinating and implementing 
operations, including with regard to th e sharing of tasks between the Agency 
and the MS 
Suboption 1:  Frontex is awarded the sole lead for the implementation of joint operations, the 
establishment of the operational plan, and th e sole right of initiat ive for the launch of 
operations. 
Suboption 2:  Frontex is awarded a co-leading role together with the host state for the 
implementation of joint operations. Frontex is re sponsible for drawing up  the operational plan 
but subject to the final agreement of the host state.  
Can the involved costs be (or become) par t of the FRONTEX budget and how high are they? 
These changes will clarify and reduce the current diverging practices of the Agency and the 
competent authorities of MS. No  further extra costs are fores een through optimisation of the 
working practices. 
What are the possible impac ts on fundamental rights? 
The risks of having an EU body a nd its staff exposed to situati ons of possible violations of 
fundamental rights would increase,  due to the fact that the Agen cy would be more involved in 
concrete operations than they are currently and because of the possible co-lead role in 
operations.  
As concerns suboption 1, the legal obligation to  comply with fundament al rights would weigh 
more on the Agency compared to the current situation, where this legal obligation weighs 
mainly on national authorities when  implementing Community law.  
The impact described above would be mitigated in suboption 2 under the assumption of a 
clear legal framework for border guards semi-detached to Frontex. 
Comparison of the options 
The preferred suboption is to award the Agen cy a co-leading role with clearly defined 
modalities on who does what and who is res ponsible for what. This suboption provides for 
detailed provisions on the operational plan a nd on the evaluation of operations, including with 
regard to incident reporting. 
3.4. Expanding the mandate of the Agency in  cooperating with third countries on 
border management 
Suboption 1:  Allowing Frontex to carry out technical assistance projects in third countries, 
using either its own budget or  that of the EU’s external financial programmes.  
Suboption 2:  Allowing Frontex to deploy liaiso n officers in third countries.  
Suboption 3:  Mandating Frontex to  carry out border control mi ssions at the borders between 
third countries.  
EN 6   EN Does the option have an impact on ex ternal countries/partners?  
All suboptions will have an impact on relations with third countries. Overall the most positive 
impact will come from the increa sed capacity of the EU to meet requests for assistance from 
these third countries, as part of  an overall reinforced cooper ation between the EU and third 
countries on migration.  
Can the involved costs be (or become) par t of the FRONTEX budget and how high are they? 
Given that the number of projects should be lim ited to priority countries, an assumption could 
be that Frontex would implement 1-2 projects per year with a budget of  up to two million euro 
each. A gradual posting of up to 5 liaison officer s could be envisaged, which would involve a 
limited cost impact. The costs for the third subo ption would be substant ial: as a comparison 
the costs for the EUBAM mission from 2005 to 2009 was around 44 million euro.  
What are the possible impac ts on fundamental rights? 
Technical assistance to operations, which could lead to violations of  fundamental rights 
should not be offered to third countries.,  
For the second suboption, due regard should be taken regarding the pr evention of potential 
ethnic profiling in the collection of data on th e migration flows.  
For the third suboption the legal framework is in part set by the third countries in question; 
these operations should take place under a fr amework fully respecting fundamental rights. 
Comparison of the suboptions 
The preferred option is clearly to carry out tech nical assistance projects and to deploy its own 
liaison officers in third countries.  
The taking over of border control missions con cerning the borders between third countries 
contributes would have a substantial cost imp act and would raise conc erns with regard to 
fundamental rights. This subopti on should therefore be discarded. 
3.5. Mandating the Agency to collect and process personal data 
Suboption 1:  Allow the Agency to process, store, collect and transfer (including to third 
countries) all personal data gathered during Fronte x joint operations and to use that data for 
the purpose of risk analysis  and operational coordination.  
Suboption 2:  Enable the Agency to collect, process and store personal data for the purpose of 
risk analysis and to contribute to the security at the EU external borders. 
Can the involved costs be (or become) par t of the Frontex budget and how high are they? 
The costs for both options are not  estimated to be significant.  
What are the possible impac ts on fundamental rights? 
Potentially substantial impact which would need  to be mitigated through a stringent data 
protection regime  
Comparison of the options 
Suboption 2is proportionate and has a clear posi tive impact on the operational objective. The 
impact of suboption 1 is only marginally bigger than for suboption 2 while it raises important 
question marks concerning proportionality and necessity. Therefore only suboption 2 should 
be retained. 
EN 7   EN 3.6. Revising the mandate of the Agen cy as concerns return operations  
Suboption 1:  involve Frontex taking over a coordina ting role together with the leading 
Member State.  
Suboption 2:  Frontex to take over from the leading Member State the re sponsibility and the 
bulk of organisational tasks for the whole joint return operation.  
Can the involved costs be (or become) par t of the Frontex budget and how high are they? 
The involved costs are already covered by the Fr ontex budget. The increase in the number of 
operations resulting from a st ronger role for Fr ontex is impossible to predict as the 
preconditions will remain the same.  
What are the possible impac ts on fundamental rights? 
No impact as long as the limits on the powers awarded to the Agency as described above are 
respected.  
Comparison of the options 
The second suboption entails certain additional positive impacts which however are mainly 
theoretical, having regard to the significant nega tive impacts. The preferred option is clearly 
to foresee a coordinating role for the Agency, but  not to shift the responsibility and the main 
burden from the leading Member State to the Agency. 
3.7. Mandating the Agency to evaluate MS ' performance in th e area of border 
management 
Suboption 1:  Mandating Frontex to carry out inspecti ons in MS, to evaluate MS' capacity to 
face threats and pressure at the external borders , more particularly thei r capacity in terms of 
national structures, equipment and resources. 
Suboption 2:  Giving Frontex an explicit role with regard to MS' compliance with EC law 
during joint operations, thus giving Frontex a role  in observing and reporting in this respect. 
Can the involved costs be (or become) par t of the FRONTEX budget and how high are they? 
The first suboption would involve certain staff costs the second suboption would not have any 
significant cost impact. 
What are the possible impac ts on fundamental rights? 
No direct impact, recalling as concerns the s econd suboption that MS ob ligations to comply 
with EC law are absolute.  
Comparison of the options 
For the second suboption the negative impacts clearly cancel out the positive impacts, while 
for the first suboption, assuming that a careful defi nition of the concrete purpose is done, there 
are clear positive impacts on the core objectives  of Frontex, ie coordinating operations and 
carrying out risk analysis.  
4. S UMMARY OF THE PREFERRED OPTION  
The preferred option would therefore consist in providing new provisions in the Frontex 
Regulation on: 
(1) A revised mechanism with compulsory contri butions of equipment from MS combined 
with the gradual acquisition/l easing by Frontex of its own e quipment, based on further 
analyses of needs and costs 
EN 8   EN (2) A revised mechanism with compulsory cont ributions of human resources from MS 
combined with a pool of border guards on semi-permanent detachment from MS to Frontex, with the status of national experts 
(3) Awarding the Agency a co-leading role fo r the implementation of joint operations, 
with detailed rules for the operational pl an, evaluation, and incident reporting 
(4) Allowing Frontex to finance and implement  technical assistance projects in third 
countries and to deploy liaison officers in third countries 
(5) Giving Frontex a limited mandate to process personal data related to facilitation of 
illegal immigration 
(6) Giving Frontex a coordinating role in implementing joint return operations 
(7) Giving Frontex a mandate to analyse operati onal risks and requirements in the MS 
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