EN Official Journal of the European Union C 303/109

Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 768/2005 establishing a Community Fisheries Control Agency’

(COM(2015) 669 final — 2015/0308 (COD))

the

‘Communication from the Commission to the European Parliament and the Council — A European Border and Coast Guard and effective management of Europe’s external borders’

(COM(2015) 673 final)

and the

‘Proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC’

(COM(2015) 671 final — 2015/0310 (COD))

(2016/C 303/15)

Rapporteur: Mr Giuseppe IULIANO Co-rapporteur: Mr Cristian PÎRVULESCU

On 21 January and 4 February 2016 respectively, the European Parliament and the Council decided to consult the European Economic and Social Committee, under Article 114 of the Treaty on the Functioning of the European Union, on the:

Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 768/2005 establishing a Community Fisheries Control Agency

(COM(2015) 669 final — 2015/0308 (COD))

the

Communication from the Commission to the European Parliament and the Council: A European Border and Coast Guard and effective management of Europe’s external borders

(COM(2015) 673 final)

and the

Proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC

(COM(2015) 671 final — 2015/0310 (COD)).

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee’s work on the subject, adopted its opinion on 12 May 2016.

At its 517th plenary session, held on 25 and 26 May 2016 (meeting of 25 May), the European Economic and Social Committee adopted the following opinion by 133 votes with 2 abstentions.

1. Conclusions and recommendations

1.1 The EESC broadly supports the Commission’s proposed modifications to the regulations, but also makes some observations.

1.2 The border closures decreed by some Member States are seriously jeopardising the exercise of free movement. The European institutions should ensure that Schengen is able to function. At the plenary session on 17 February 2016, the EESC adopted an important resolution (1) in defence of the Schengen area, which calls on the Council and the Member States to ensure freedom of movement and to consolidate and enlarge the Schengen area.

1.3 The Schengen rules should be applied in the same way in all Member States, meaning that new legally binding measures need to be adopted. However, the EESC disagrees with the Commission’s proposal to establish mandatory and systematic checks of EU citizens at the external borders of Schengen, as this constrains the exercise of one of the fundamental freedoms.

1.4 For Schengen to function smoothly, the external borders, which are common borders, should be managed jointly by the EU and Member States. The EESC was the first institution to propose the creation of a European border guard.

1.5 The proposal to strengthen Frontex’s mandate with new equipment and with a rapid reserve pool of 1 500 border guards and experts should go hand in hand with more transparency regarding the Agency’s governance and actions, as well as more accountability.

1.6 There is a need to improve cooperation between the border agency and national authorities. The Agency must enhance its risk analysis centre, potentially by posting liaison officers to Member States and by holding a mandate to assess resources and operational capacity. The EU must ensure that Member States cooperate with regard to border operations carried out by the Agency.

1.7 The Agency’s right to intervene, even when a Member State has not requested it to do so, is the most sensitive measure in the Commission’s proposal. The EESC is in favour of the Commission having the ability to decide to deploy the Agency at the external borders, but only in emergencies and following transparent procedures to keep European legislators (Parliament and Council) directly informed.

1.8 There must be better coordination between the various agencies and institutions with responsibilities for border control, coastal surveillance, maritime security, rescue at sea, customs and fisheries. However, these agencies and institutions should continue to fulfil their respective missions. The EESC therefore proposes that the regulation should refer to a European Border Guard, and that the term ‘coast’ should be omitted (2).

1.9 Border control should not be ‘militarised’. The Border Guard must be akin to a civilian police force, not a military force.

1.10 When people’s lives or safety are at risk at external borders, whether maritime or land borders, the primary obligation of the Border Guard and the other institutions involved at these locations is to rescue people and give them adequate care. The EESC points out that in recent months, many people driven out by nearby wars have died along Europe’s coasts and borders, while the authorities have failed to take the necessary measures to rescue and protect them.

1.11 The EESC believes that the Commission’s proposal for improving the management of external borders must be adopted in tandem with changes in the common asylum system. The current crisis has been prompted by the EU’s inability to put in place the common asylum system and give adequate protection to the hundreds of thousands of displaced persons and asylum seekers who are arriving at our borders. Some governments have rejected the Commission’s proposals and the Council’s decisions to implement relocation and resettlement programmes and have refused to meet their obligations deriving from the Treaty and international law.

1.12 The EESC points out that in many cases, border authorities have not respected the principle of ‘non-refoulement’ explicitly set out in international law on asylum and in the Treaty. The Committee suggests that the new integrated external borders system should provide more guarantees that human rights will be respected.

1.13 In order to work with the Agency to protect fundamental rights, the EESC suggests that a representative of the Committee should become a member of the Consultative Forum. The Committee also suggests that the Fundamental Rights Officer’s role should be strengthened, enabling him to act on his own initiative and implement the complaint mechanism suggested by the Ombudsman.

1.14 The Committee draws attention to the abandonment and lack of protection currently affecting the thousands of unaccompanied minors in the EU who have arrived in Europe after having been displaced by war, and suggests that the Commission should implement urgent protective measures.

2. Background

2.1 Regulation (EC) No 2007/2004 established a European Agency for the Management of Operational Cooperation at the External Borders of the Member States (Frontex).

2.2 The EESC drew up an opinion (3) supporting the establishment of Frontex, recalling the need to respect the right of asylum (principle of ‘non-refoulement’) and to uphold fundamental rights at the border.

2.3 Regulation (EC) No 863/2007 then established a mechanism for the creation of Rapid Border Intervention Teams (RABIT) and amended Council Regulation (EC) No 2007/2004 as regards that mechanism, regulating the tasks and powers of guest officers. This amendment to the regulation means that, through the Agency, Member States can ask for rapid border intervention teams of appropriately trained experts from other Member States to be deployed in their own territory.

2.4 The EESC drew up an opinion (4) in support of updating the regulation. However, the opinion drew attention to the need to improve the protection of human rights and the right to asylum. It also warned of the risk of ‘militarising’ the surveillance and control of external borders.

2.5 Directive 2008/115/EC — the Return Directive — sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, ‘in accordance with fundamental rights … including refugee protection and human rights obligations’.

2.6 Frontex was last modified in October 2011: responsibility for border control was deemed to be shared between the EU and Member States, and integrated management was instituted. European teams of border guards began to be constituted, but it remains up to the Member States to request assistance from the Agency. Frontex was also assigned a larger role in return operations, and it was given greater responsibility to protect fundamental rights.

3. Commission proposal: A European Border and Coast Guard and more effective management of the external borders

3.1 The Commission’s proposal to establish a European Border and Coast Guard is one of the measures to strengthen the management and security of the EU’s external borders put forward in the European Agenda on Migration and addresses the need to strengthen security checks at the EU’s external borders, in accordance with the measures called for by the home affairs ministers on 20 November 2015 (5).

3.2 The European Border and Coast Guard will consist of a European Border and Coast Guard Agency built from Frontex and from the Member States’ border management authorities, which will continue to provide day-to-day management of external borders.

3.3 The new European Border and Coast Guard will have a rapid reserve pool of 1 500 border guards and experts who can be deployed in less than three days, technical equipment, a monitoring and supervisory role, and the right to intervene; will carry out coast guard surveillance; will hold a mandate to work in third countries; will guarantee internal security; and will play a stronger role in returns. A standard European travel document for return will ensure wider acceptance of returnees by third countries.

3.4 The European Commission has also put forward other measures to manage the EU’s external borders and protect the Schengen area without internal borders. To further increase security for European citizens, the Commission is proposing to introduce systematic checks against relevant databases of all people entering or leaving the Schengen area. The proposals will help to manage migration more effectively, improve the internal security of the EU, and safeguard the principle of the free movement of persons.

3.5 The Commission is proposing a specific change to the Schengen Borders Code to introduce mandatory systematic checks of EU citizens at external land, sea and air borders against databases such as the Schengen Information System, the Interpol Stolen and Lost Travel Documents Database, and relevant national systems. This proposal also reinforces the need to verify the biometric data on EU citizens’ passports when the authenticity of the passport or the legitimacy of the holder is in doubt. Checks will now also be mandatory when leaving the European Union.

4. General comments

4.1 At the meeting of the European Migration Forum (6) on 26 and 27 January 2015, civil society, invited by the Commission and the EESC, discussed the humanitarian emergency in the Mediterranean and the arrival of mixed flows of migrants and asylum seekers with the European institutions. Building on the Forum’s conclusions, the Commission adopted a number of initiatives to improve border and asylum policies. However, the Committee regrets that the Forum’s conclusions have not been taken into consideration by the Council. Many of the current problems could have been avoided if its recommendations had been put into practice.

4.2 The current crisis is highlighting the limitations in how the external borders are managed, as well as the insufficient mandate currently held by Frontex. A number of EESC opinions (7) have argued that the EU should consider the Schengen area’s external borders as common borders; responsibility should therefore be shared between the EU and the Member States.

4.3 The Committee was the first institution to propose the creation of a European border guard. It has also made proposals (8) to protect fundamental rights in connection with border control and return policy.

4.4 The EESC believes that the Commission’s proposals for improving the management of external borders must be adopted in tandem with changes in the common asylum system. The mass influx of displaced persons at the external borders of a few countries is overwhelming their ability to react, highlighting the fact that the Dublin system is not able to manage large-scale arrivals of displaced persons and asylum seekers. Responsibilities must be shared, and based on solidarity. The Committee suggests:

4.4.1 that the EU follow through on the emergency relocation plan and the launch of the permanent relocation mechanism agreed at the European Council of 22 September 2015;

4.4.2 that resettlement programmes be expanded to transfer refugees from outside the EU and to resettle them within its borders, in cooperation with third countries and the UNHCR, and

4.4.3 that new relocation programmes within the EU be set up, providing financial incentives for Member States that accept them. The relocation mechanism must be permanent and effective and must be based on a distribution key.

4.4.4 The EESC has argued elsewhere (9) that the Dublin system should be modified and replaced with a more inclusive system in the EU that takes account of asylum seekers’ wishes and ensures that responsibility is shared among the Member States.

4.5 The Commission proposal strengthens the border agency’s role in return operations. The Committee recalls that:

4.5.1 the administrative procedure for expulsion must examine each case individually, and each person is entitled to submit their administrative and legal claims to the authorities, and

4.5.2 the Charter expressly prohibits collective expulsions and ensures that 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 (the principle of non-refoulement).

4.5.3 The EESC has warned (10) that the EU should not consider Turkey to be a ‘safe country’ in terms of asylum; the UNHCR and various NGOs have also stated that the recent agreement between the EU and Turkey does not fully comply with international law on asylum because ‘refugees need protection, not rejection’ (11). Moreover, Macedonia’s decision to close its borders to refugees amounts to a violation of the right to asylum.

4.6 The EESC welcomes the fact that the reform of the Frontex regulation of October 2011 would institute a Consultative Forum and a Fundamental Rights Officer, and also welcomes the fact that the new proposal for a regulation has incorporated some of the Committee’s proposals (12) to protect fundamental rights at the external borders.

5. Specific comments

5.1 The Committee would like to see an approach taken that is both integrated and preventative, which focuses on the careful analysis of data regarding mobility at the EU’s borders and anticipation of where and when national authorities may need assistance. It is also necessary to establish a set of directions and indicators to help gauge the extent to which this integrated system is accomplishing its complex mission. The experience and evaluation procedures of the Schengen system are relevant to the construction of a similar mechanism for managing information and operational measures.

5.2 As regards the binding decisions and the agency’s right to intervene, although the Committee deems this necessary, it also believes that the EU should use all necessary means to ensure that Member States cooperate with any action taken by the agency at the borders. The EESC is in favour of the Commission having the ability to decide to deploy the Agency at the external borders, but only in emergencies and following transparent procedures to keep European legislators (Parliament and Council) directly informed. This will be key to the success of the integrated and coordinated approach to border management, which should be accompanied by greater transparency, and greater capacity to provide explanations regarding its governance and actions.

5.3 The Committee considers it necessary to increase coordination between the many agencies that have responsibility for coastguard operations, border control, customs, maritime safety, maritime search and rescue, environmental protection and fisheries. Duplication can be avoided and savings can be achieved, at least in the EU budget. However, these agencies and institutions should each maintain their full remits and should not be subordinated to a supra-structure aimed at ensuring security.

5.4 The EESC welcomes the establishment of a European Border Guard drawing on a standing corps of 1 500 experts (border guards). The size of the corps may be amended over time, as needs dictate. Important elements here are the rapidity with which these border guards will be deployed to border areas and the way in which they will work with their colleagues.

5.5 Another key aspect of operational preparation is training. The Committee considers that training is necessary, both for the European corps of border guards and for border guards in the Member States. The agency should play an active role in such training and in disseminating best practice among border guards in all Member States. Training programmes should emphasise fundamental rights, as border guards are the first point of contact for refugees and immigrants, most of whom are highly vulnerable.

5.6 The Committee welcomes agency involvement in return operations. Since this policy will be brought to the fore in future, the resources earmarked for it by the agency might be insufficient. Clarification is needed, however, in the communication and at operational level, as to how the agency will go about playing its role in return activities, especially when acting on its own initiative. The agency must also ensure that the return operations it participates in uphold the fundamental rights of the individuals concerned (13).

5.7 The agency should cooperate with all the authorities involved in order to ensure adequate reception conditions for returnees, including with regard to their safety. The EESC believes that respect for human rights is an essential condition for conclusion of readmission agreements with third countries, and is opposed to individual Member States or the EU entering into return arrangements agreements with countries that have not ratified the main international instruments for the protection of human rights or that systematically violate such rights (14).

5.8 Protecting fundamental rights must be a priority for the agency. Fundamental rights are for everyone, not just for EU citizens. Asylum seekers and immigrants are protected by the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union (15). Specifically, the Committee is concerned about fundamental rights being upheld in operations that take place in third countries, compliance with the principle of non-discrimination in screening operations on entry into the EU, collective expulsions and expulsions of migrants and asylum seekers to countries where human rights are violated, and the protection of highly vulnerable individuals such as unaccompanied minors and women.

5.9 In order to ensure that the protection of fundamental rights receives the necessary attention and support, the Committee is willing to help the agency by sitting on its consultative forum on fundamental rights. The Committee also recommends that the agency be open to independent assessments of its operations and procedures. As regards the internal organisation of the agency, the Committee considers that the appointment of the fundamental rights officer may be sufficient, as long as this officer is backed up by a solid working structure, a substantial remit and significant resources.

5.10 The Committee welcomes and recognises the need for the establishment of a new European travel document for the return of third-country nationals.

5.11 The Committee believes that the Schengen Code could be amended, but that efforts should be made to ensure that controls for EU citizens, travelling both within the Schengen area and outside it, do not curtail their mobility, an essential freedom for Europeans. If these controls become the norm — carried out using more or less advanced technologies — it will cast doubt on the sustainability of the Schengen system.

5.12 The Committee would reiterate the need for openness — at all levels and in all operations — towards civil society. The EESC points out that the role of civil society and of citizens has been instrumental in averting an even more serious humanitarian situation both in Member States’ waters and on their territories. The Committee considers that providing assistance to civil society is a priority issue; despite very limited resources, it has sought to provide help in extreme situations.

Brussels, 25 May 2016. The President of the European Economic and Social Committee Georges DASSIS

(1) OJ C 133, 14.4.2016, p. 1.

(2) OJ C 177, 18.5.2016, p. 57.

(3) OJ C 108, 30.4.2004, p. 97.

(4) OJ C 44, 11.2.2011, p. 162.

(5) http://www.consilium.europa.eu/en/press/press-releases/2015/11/20-jha-conclusions-counter-terrorism

(6) http://www.eesc.europa.eu/?i=portal.en.events-and-activities-european-migration-forum-1

(7) OJ C 451, 16.12.2014, p. 1, OJ C 458, 19.12.2014, p. 7, OJ C 44, 11.2.2011, p. 162.

(8) OJ C 128, 18.5.2010, p. 29.

(9) OJ C 451, 16.12.2014, p. 1.

(10) OJ C 71, 24.2.2016, p. 82.

(11) http://www.unhcr.org/56ec533e9.html

(12) OJ C 128, 18.5.2010, p. 29.

(13) Article 19 of the EU Charter of Fundamental Rights expressly prohibits collective expulsions and ensures that 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.

(14) OJ C 128, 18.5.2010, p. 29.

(15) OJ C 128, 18.5.2010, p. 29.