Communication from the Commission to the Council and the European Parliament - towards integrated management of the external borders of the member states of the European Union
Date: 2002-05-07
Institutions: European Commission
Subjects: border control, external border of the EU, fight against crime, public safety

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 7.5.2002
COM(2002) 233 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE
EUROPEAN PARLIAMENT

TOWARDS INTEGRATED MANAGEMENT OF THE EXTERNAL BORDERS OF
THE MEMBER STATES OF THE EUROPEAN UNION

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE
EUROPEAN PARLIAMENT

TOWARDS INTEGRATED MANAGEMENT OF THE EXTERNAL BORDERS OF
THE MEMBER STATES OF THE EUROPEAN UNION

I. INTRODUCTION

The political and institutional environment

1.  In  the  conclusions  of  the  European  Council  of  Laeken  of  14  and  15  December  2001  we
read:

“  Better  management  of  the  Union’s  external  border  controls  will  help  in  the  fight  against
terrorism,  illegal  immigration  networks  and  the  traffic  in  human  beings.  The  European
Council  asks  the  Council  and  the  Commission  to  work  out  arrangements  for  cooperation
between  services  responsible  for  external  border  control  and  to  examine  the  conditions  in
which a mechanism or common services to control external borders could be created (...).” 1

This  conclusion  of  the  European  Council  reminds  us  that  coherent,  effective  common
management  of  the  external  borders  of  the  Member  States  of  the  Union  will  boost  security
and  the  citizen’s  sense  of  belonging  to  a  shared  area  and  destiny.  It  also  serves  to  secure
continuity in the action undertaken to combat terrorism, illegal immigration and trafficking in
human  beings.2  The  European  Council  also  emphasises  on  this  occasion  the  very  strong
complementarity of the different tasks which are carried out during checks and surveillance of
the crossing of the external borders, even where, from an institutional point of view, certain of
these tasks are distributed between the first and third pillars.

There can be no doubt, for example, that the crossing of the external frontiers by persons is a
matter regulated by community law in terms of Title IV of the EC Treaty. Neither is there any
doubt  that  the  arrest  of  a  person  being  sought  by  the  law,  or  the  challenging  of  a  person
threatening public order are matters falling within the third pillar.  In everyday action, it may
happen  that  the  services  controlling  the  external  borders  must  carry  out  both  tasks
simultaneously:  checking  entry  to  the  territory  begins  always  with  checking  passports  and
visas, tasks which are set down in community law, however the check on entry may lead to
carrying out a task with a policing or judicial nature, if it appears that the person is wanted or
poses a security threat.

2.  The  potential  generated  by  the  Single  European  Act,  the  Maastricht  Treaty  and  the
“Schengen laboratory” led to the Treaty  of  Amsterdam  and  the  Protocols  annexed  to  it.  On
1 May 1999, the legal instruments and operational experience built up in the Schengen acquis
were  integrated  into  the  institutional  framework  of  the  European  Union.  The  essential
mechanisms  of  this  acquis  relating  to  the  crossing  of  external  borders  by  persons  were
incorporated  into  Title  IV  of  the  EC  Treaty;  other  provisions  on  compensatory  measures  in
security matters were incorporated into Title VI of the Union Treaty. The first-pillar security
measures, such as the strengthening of common external border checks,3 and the third-pillar

1 
2

3

Conclusion No 42 of the Laeken European Council of 14 and 15 December 2001.
Commission  communication  on  illegal  immigration  (COM(2001)  672,  15.11.2001),  and  speech  by
President Prodi at the College of Europe, Bruges in November 2001.
On the basis of Title IV of the EC Treaty and especially Article 62.

2

                                                
measures, such as police and judicial co-operation in the area of freedom of movement,4 are
complementary and must progress together.  This is the very purpose of the area of freedom,
security and justice established by the Amsterdam Treaty.

Integrated  into  the  European  Union,  the  legislative  and  operational  Schengen  acquis  was
neither amended nor altered but simply given new legal bases.5 This means in practice that:

- the provisions of the acquis now have the legal and institutional status allotted to them by
the new legal basis in Title IV of the EC Treaty or Title VI of the Union Treaty;
- the division of the Schengen acquis between Title IV of the EC Treaty and Title VI of the
Union Treaty determines the institutional procedures required for amending or developing the
acquis;  but  this  division  prejudges  neither  the  nature,  nor  the  status  nor  the  organisation  of
national services that  each Member State designates to implement one  or  other provision of
the Schengen acquis as regards external border checks.

To  remove  a  few  misunderstandings  that  may  subsist,  a  distinction  must  be  made  between
these  two  concepts:  the  source  of  legal  rules  and  the  organisation  of  work  by  the  national
authorities concerned.

3.  Current  EU  acquis  on  external  borders  has  been  largely  developed  in  the  context  of
Schengen and under Title  IV to  the  TEC.  In  developing  an  overall  strategy  for  the  external
frontiers  of  the  European  Union,  it  is  noted  that  the  United  Kingdom  and  Ireland  do  not
automatically  take  part  in  Schengen  and  Title  IV  and  are  entitled  to  maintain  controls  on
persons  entering  from  other  Member  States.  Reciprocally,  the  other  Member  States  are
entitled to exercise controls on persons entering their territory “from the United Kingdom or
any  territories  whose  external  relations  are  under  its  responsibility”  as  well  as  persons
entering from Ireland.

However, both Member States do take part in all Title VI co-operation and have now chosen
to participate in the police and judicial co-operation aspects of the Schengen acquis, including
certain  measures  to  combat  illegal  immigration.  Both  have  also  sought  to  participate  in
Community action under Title IV in this area, such as action against carriers, the facilitation
of unauthorized entry, transit and residence, readmission agreements with third countries and
measures to strengthen visa security.

Notwithstanding  the  special  position  of  the  UK  and  Ireland,  it  is  recognized  that  action  to
strengthen the EU's external frontiers is of importance to all Member States. Weak frontiers,
the  need  to  develop  infrastructures  in  candidate  countries  and  third  countries  and  to  tackle
illegal immigration and the dangers of organized crime  and  terrorism  have  an impact on  all
Member States, whether or not they fully apply the Schengen acquis. In this respect, much of
the  focus  needs  to  be  on  enhanced  operational  co-operation,  on  issues  such  as  forgery,
detection, and strengthening of capacity in third countries, not necessarily requiring a formal
legal base as a first step. This can benefit from the experience and input of all Member States.

4

5

Article 61 of the EC Treaty refers to “measures in  the  field  of  police  and  judicial  cooperation  (...)  in
accordance  with  the  provisions  of  the  Treaty  on  European  Union”.  Article  29  of  the  Union  Treaty
envisages “a high level of safety within an area of freedom, security and justice”, thanks in particular to
“closer  cooperation  between  police  forces,  customs  authorities  and  other  competent  authorities  in  the
Member States ...”.
Council Decision 1999/435/EC of 20 May 1999 concerning the definition of the Schengen acquis (OJ L
176, 10.7.1999, pp. 1 to 16), surveys all the provisions considered as belonging legally to the Schengen
acquis in force. Council  Decision  1999/436/EC  of  20  May  1999 determines,  in  conformity  with  the
relevant  provisions  of  the  Treaty  establishing  the  European  Community  and  the  Treaty  on  European
Union,  the  legal  basis  for  each  of  the  provisions  or  decisions  which  constitute  the  acquis  (OJ  L  176,
10.7.1999, pp.17 to 30).

3

                                                
The challenges

4.  The  security  of  the  external  borders  of  the  European  Union  is  an  essential  subject  for
European  citizens.  Rightly  or  wrongly  the  external  borders  of  the  Union  European  are  still
sometimes seen as a weak link that can affect the internal security of the Member States, in
particular in an area without internal borders. The European Union already possesses an exact
acquis communautaire in the area of external frontiers, but the principal current difficulty is
the ability to organise between the Member States all the operational synergies which would
permit action to be better co-ordinated and therefore a more homogenous level of security at
all  the  external  frontiers.  Furthermore,  in  the  context  of  expansion,  citizens  recall  the
necessity  to  maintain,  and  even  improve,  the  level  of  internal  security  of  an  enlarged
European Union.   Given  the  diversification of threats  to the  crossing  of external  borders by
persons and goods alike, synergies, efficiency gains and a better allocation of resources would
be  possible  thanks  to  less  fragmentary  management  by  national  services,  while  respecting
institutional and geographical reality.

The new challenges to internal security force  a European Union in the process of expansion
to regard external borders as a priority question. Four major needs have to be met:

–  ensure  mutual  confidence  between  the  Member  States  which  have  abolished  checks  on
persons and goods6 at their internal borders and thereby facilitate movement of travellers;

–  increase  the  effectiveness  of  the  fight  against  illegal  immigration  while  respecting  the
principles  of  the  right  to  asylum,  trafficking  in  human  beings  and  trafficking  of  all  kinds
connected with organised crime, including drugs;

–  possess  the  means  of  combating  all  forms  of  internal  and  external  threats  that  terrorism
poses to the Member States and to the security of persons;

– guarantee a high level of security within the European Union after enlargement, in particular
after new Member States have been authorised to implement the Schengen acquis7, which will
have  as  a  consequence  a  considerable  increase  in  the  external  land  borders  in  a  regional
environment which is frequently more difficult.

It might be recalled here that the implementation of the Schengen acquis will be done in two
distinct  stages  for  the  new  Member  States,  as  this  was  the  case  in  the  past  for  the  other
Member States  8: accession to the European Union for a new Member State does not signify
an  authorisation  to  apply  the  complete  Schengen  acquis,  as  a  specific  Council  decision  is

6

7

8 

The Community customs territory covers the territory of all the Member States of the European Union.
It covers in particular certain remote portions of the territory of the Member States which are excluded
from  the  Schengen  acquis  in  accordance  with  Article  138  of  the  Schengen  Convention  and  with
declarations made at the signing of the Amsterdam Treaty. The Community customs territory does not
cover  Norway  or  Iceland,  or  certain  peripheral  or  autonomous  territories  which  are  included  in  the
Nordic Passport Union and remain explicitly covered for the purposes of the Schengen acquis.
Article 8 of the Protocol incorporating the Schengen acquis in the European Union provides that  “the
Schengen acquis and further measures taken by the institutions within its scope shall be regarded as an
acquis which must be accepted in full by all States candidates for  admission”. However,  the Schengen
acquis will not apply to new Member States immediately upon accession to the European Union, unlike
the community customs acquis.
Among the last examples in date which are the most comparable to the situation of the current candidate
countries  figure  particularly  Austria,  Finland  and  Sweden  which  became  members  of  the  European
Union on 1 January 1995. Austria acceded to the Schengen Convention on 28 April 1996, however it
was  only  authorised  to  fully  apply  the  Schengen  acquis  from  31  March  1998.  Finland  and  Sweden
acceded to the Schengen Convention on 19 December 1996, but were only authorised to full apply the
Schengen acquis from 26 March 2001.

4

                                                
required  for  that,  following  a  finding  that  the  Member  State  in  particular  has  attained  the
required  degree  of  security  at  its  external  borders.  The  candidate  countries  have  been
seriously preparing for several years to meet the requirements of the Justice and Home Affairs
acquis. For this purpose they benefit from the expertise provided through from the European
Union,  together with  its significant  financing. The adaptation of  their  legal  and  institutional
systems,  as  well  as  the  modernisation  of  their  infrastructures  and  equipment  for  the
management  of  the  borders  of  the  candidate  countries  is  progressing  in  an  encouraging
fashion.

It might also be recalled that the improvement of efficiency in checking procedures at external
borders serves not only to increase internal security in the Member States, but also to speed
up the movement of persons, goods and merchandise between the European Union and third
countries.    Economic  and  cultural  exchanges,  particularly  with  third  countries  which  are
geographically the closest, should benefit from this to the mutual interest.

5. The European Union’s external borders are also a place where a common security identity
is  asserted.  The  absence  of  a  clearly  stated  vision  and  common  policy  on  external  borders
would entail major political and strategic  risks. Those could ultimately block the expression
of  a  viable  Union  policy  on  Justice  and  Home  Affairs.  Several  types  of  weaknesses  can  be
highlighted:

–  purely  national  management  of  borders  or  management  under  agreements  between
neighbouring  countries:  this  scenario  would  be  not  highly  conducive  to  the  development  of
the mutual confidence which is essential to maintaining the abolition of checks on persons at
internal borders;

– impossibility of obtaining a structured, foreseeable budgetary framework that guarantees a
degree of continuity in action: this is one of the conditions for the European Union to achieve
goals more ambitious than a mere succession of one-off operations. What is at stake here is
the capacity of the Member States and the Union to share the financial burden fairly and their
capacity to achieve new synergies generating economies of scale and resources;

– impossibility of responding in unison to the external dimension of the policy on checks and
surveillance at external borders: the Union’s capacity to state its own policy is put to the test
in  negotiations  or  discussions  with  third  countries,  or  on  the  occasion  of  technical  work  in
international organisations in fields directly or indirectly affecting border checks.

The objectives

6. One of the ambitions of this communication is to propose mechanisms for working and co-
operation  at  European  Union  level  which  will  permit  practitioners  of  the  checks  at  the
external  borders  to  come  together  around  the  same  table  to  co-ordinate  their  operational
actions in the framework of an integrated strategy which takes progressively into account the
multiplicity of aspects to the management of the external borders. The intention is to arrive at
a coherent framework for common action in the medium to long term. This communication is
focused  on  persons  and  relies  upon  the  Schengen  acquis  which  is  today  the  sole  reality  of
community law in this area. The guidelines and provisions advocated in this communication
have a dynamic character in time.  They are conceived to be established in the first instance as
a  development  of  the  Schengen  acquis,  in  the  framework  of  the  Treaties  as  they  currently
exist. The institutional reality of the three pillars which is an absolute must for the creation of
legal norms remains unaffected. Above all, it is intended to launch a dynamic of operational
actions founded on the Justice and Home Affairs dimensions of the external borders. If, on the
way, this dynamic should reveal new institutional needs for better and further common action
at  Union  level,  it  would  of  course  be  most  opportune  for  the  Convention  on  the  Future  of

5

Europe to be aware of this. Be that as it may, and to complete the consideration of the external
borders,  in  the  existing  framework,  this  communication  will  be  followed  by  a  second
communication centred  on all types of goods and merchandise. Relying upon such differing
experience,  both  communications  should  together  contribute  to  an  overall  strategy  aimed  at
increased efficiency in the integrated management of the external borders.

Moreover  enlargement  will  add  new  challenges  as  regards  external  border  protection.  To  a
large extent the future Member States will become responsible for the internal security of the
Union while still undergoing the process of economic and social transition. The management
at these future  external borders will play  a decisive  role for  the  prospects  of developing  the
relationship of the Union to its future neighbours, such as Belarus and Ukraine. Consequently
there is a need to develop a coherent approach in close co-operation with the future Member
States, in the extension of actions undertaken by the European Union for many years.

7.  This  Communication  starts  by  taking  stock  of  the  situation  (Part  II)  and  describing  the
acquis  and  existing  operational  practices,  so  as  to  lead  to  a  diagnosis  of  the  needs  of  the
European Union in the process of expansion. On the basis of this diagnosis, it proposes (Part
III)  the  development  of  a  common  policy  on  management  of  the  external  borders  of  the
Member States of the European Union, incorporating the components which are regarded as
inseparable from each other.

II.  THE  SITUATION:  THE  ACQUIS  COMMUNAUTAIRE  AS  REGARDS  THE
CROSSING  OF  EXTERNAL  BORDERS  STILL  LACKS  PROPER  OPERATIONAL
COORDINATION

We must begin by briefly describing the legal and institutional framework resulting from the
Schengen acquis and current operational practices, in order to lead to a diagnosis of needs.

II. (a)  The legal and institutional framework for the management of external borders

8. The acquis communautaire and the current sources of positive law

Since  the  Schengen  Convention  came  into  operation  on  26  March  1995,9  checks  and
surveillance at the external borders of the participating Member States have been governed by
common uniform principles. The content of these common uniform principles is established
by  Chapter  2  of  Title  II  of  the  Schengen  Convention.  The  detailed  rules  applying  them  are
laid down and spelled out by the Common Manual for External  Borders.10 These provisions
received a new legal basis in Title IV of the EC Treaty.11

Article 3 of the Schengen Convention provides that “External borders may in principle only
be  crossed  at  border  crossing  points  and  during  the  fixed  opening  hours”.  Article  5  of  the
Schengen Convention lays down the principles of Community legislation concerning foreign

9

10

11

To simplify the language used, the term “Schengen Convention” is used here, but the correct reference
is  to  the  “Convention  Implementing  the  Schengen  Agreement  of  14  June  1985  between  the
Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the
French Republic on the gradual abolition of checks at their common borders, signed in Schengen on 19
June 1990”. The full text of this Convention is in OJ L 239, 22.9.2000 (pp. 19 to 62).
The Decision of the Schengen Executive Committee of 28 April 1999 adopting the Manual is in OJ L
239,  22.9.2000  (p.  317).  It  was  given  a  European  Union  legal  basis  in  accordance  with  Council
Decision 1999/436/EC of 20 May 1999.
See Council Decision 1999/436/EC of 20 May 1999 (OJ L 176, 10 July 1999).

6

                                                
nationals’ entry for a stay not exceeding three months in the common area of free movement
and  of  the  legal  provisions  determining  the  response  of  border  guards  when  persons  are
identified  for  the  purpose  of  refusal  of  entry  on  the  basis  of  Article  96  of  the  Schengen
Convention.

Article  6  of  the  Schengen  Convention  determines  the  obligations  of  the  Member  States  as
regards checks and surveillance at external borders.12 Checks are carried out on persons who
cross external borders legally. As regards checks on persons, the obligations of the Member
States are relatively extensive. The systematic checking of identities is compulsory, including
in the case of Union citizens and beneficiaries of Community law. Surveillance is exercised in
the  spaces  located  between  the  permitted  passage  points  in  order  to  dissuade  persons  from
crossing the external border illegally. Member States must ensure that its level is equivalent
all along the external borders.

9. Other elements of  the  Schengen  acquis  are  indissociable  from  checks  and  surveillance  at
external borders:

–
Articles 26 (carriers’ liability) and 27 (liability for assistance to unlawful immigration
for lucrative purposes) of the Schengen Convention, and the provisions subsequently enacted
to prevent illegal immigration;13
the provisions of Article 71. 3 relating to the strengthening of checks on the movement
-
of persons, goods and means of transport, “to combat the illegal import of narcotic drugs and
psychotropic substances”;

horizontal provisions such as the Schengen Information System (SIS),14 which are also

–
implemented at external borders.

Article 101(1)(a) of the Schengen Convention provides that the  “authorities responsible  for
(...) border checks” have access to all “data entered [in the SIS] and the right to search such
data directly”. The purpose of this provision is make the external border operate as a barrage
or filter from the point of view of internal security in the broad sense when checks are carried
out on persons entering or leaving the territory. Moreover consular authorities have access to
alerts issued on the basis of Article 96 of the Schengen Convention for the purposes of refusal
of entry of certain aliens to the territory. They are required to consult the SIS before issuing a
visa abroad.15

10.  How  is  the  proper  implementation  of  the  common  rules  for  the  crossing  of  external
borders verified?

Schengen intergovernmental cooperation  established  a  mutual  monitoring  mechanism  called
the  Standing  Committee  on  the  Evaluation  and  Implementation  of  Schengen,  with  a  remit
covering precise matters.16 Under this remit, what can basically be evaluated for all Member
States are the links and interactions between the manner in which checks and surveillance are
carried  out  at  external  borders,  practices  for  the  issuing  of  visas,  police  and  judicial  co-

12

13

14

15

16

See Annex 1 for the terminology used.
Council  Directive  2001/51/EC  of  28  June  2001  supplementing  the  provisions  of  Article  26  of  the
Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 187, 10.7.2001, pp. 45-46).
See Articles 92 to 101 of the Schengen Convention.
Citizens  of  the  European  Union,  nationals  of  the  countries  of  the  European  Economic  Area  and
members of the family of these beneficiaries of Community law, irrespective of their nationality, cannot
be registered, in theory, under Article 96.
See Schengen Executive Committee Decision SCH/Com-ex (98) 26 def. of 16 September 1998 (OJ L
239, 22.9.2000, p. 138).

7

                                                
operation  at  internal  borders  and  use  of  the  SIS.  This  evaluation  mechanism  serves  two
distinct purposes:
–
will authorise them to apply the Schengen acquis;17
–

to check thereafter that Member States implement the Schengen acquis properly.18

to evaluate new Member States with a view to preparing the Council Decision which

This evaluation mechanism received a twofold legal basis in Article 66 of the EC Treaty and
Articles 30 and 31 of the Union Treaty.19

11. For the moment, the evaluation mechanism does not allow unannounced visits, and visits
cannot  strictly  be  called  inspections.  There  is  no  provision  for  observing  phenomena  or
functional  defects  that  affect  several  Member  States  at  once:  for  example  certain  types  of
external  borders  (maritime,  land  or  air)  or  the  consulates  of  several  Member  States  in  the
same region of the world.

In the case of Member States applying the Schengen acquis, the evaluation mission gives rise
to a report. However, the logical conclusions cannot all be drawn from this report, for instance
in  the  form  of  penalties  or  of  operational  and  financial  aid  to  one  or  more  Member  States.
Nonetheless,  this  mechanism  resulting  from  the  Standing  Committee  on  the  Evaluation  and
Implementation of Schengen does give a valuable starting point for strengthening the external
borders  evaluation  function  in  terms  of  internal  security.  It  deserves  to  be  deepened,  in
compliance  with  the  statement  that  the  Commission  made  when  the  Schengen  acquis  was
integrated  into  the  European  Union20  and  with  the  ordinary  institutional  machinery  in  the
event of failure by a Member State to implement Community law correctly.

II. (b) Current operational practices

12. Who guards the borders of the Member States of the European Union?

Article  6  of  the  Schengen  Convention  provides  that  checks  in  accordance  with  uniform
principles are carried out “within the scope of national powers and national law and taking
account of the interests of all Contracting Parties”. The result is that each Member State is
free  to  entrust  checks  and  surveillance  at  external  borders  to  the  authorities  of  its  choice,
according  to  its  own  national  structures.  These  missions  are  entrusted  in  certain  states  to  a
single  body  and  in  other  states  to  several  bodies  reporting  to  different  government
departments.  Coordination  between  these  various  services  is  done  either  at  central  national
level  or  at 
the  “EU  Schengen  Catalogue
recommended  by 
regional 
(Recommendations and Best Practice)”.21

level,  as 

17 

18 
19

20

21

The  last  evaluation  of  this  type  covered  the  group  consisting  of  Denmark,  Finland,  Sweden,  Norway
and Iceland from the first quarter of 2000 to the first quarter of 2001.
The last evaluation of this type covered France in the first quarter of 2002,
See Council Decision 1999/436/EC of 20 May 1999 (OJ L 176, 10.7.1999).
In accordance with Article 1 of the Protocol integrating the Schengen acquis into the European Union,
Schengen  cooperation  is  “conducted  within  the  institutional  and  legal  framework  of  the  European
Union  and  with  respect  for  the  relevant  provisions  of  the  Treaty  on  European  Union  and  the  Treaty
establishing the European  Community”.  In  addition,  the  Commission  considers  that  the  incorporation
into the Union of the Executive Committee Decision creating a Standing Committee on the Evaluation
and Implementation of Schengen (SCH/Com-ex (98) 26 def of 16.9.1998) in no way affects the powers
conferred on it by the Treaties, and in particular its responsibility as guardian of the Treaties (See OJ L
176, 10.7.1999, p. 30).
EU  Schengen  Catalogue:  External  borders  control,  removal  and  readmission:  Recommendations  and
best  practice  (adopted  by  the  JHA  Council  on  28  February  2002  and  published  by  the  General
Secretariat of the Council of the European Union).

8

                                                
13.  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  enforcement,  prevention  or
investigation.  This  diversity  of  the  national  administrative  organisations  is  of  course
legitimate  but  it  should  nevertheless  be  capable  of  fitting  in  practice  to  the  framework  of  a
common strategy for management of the external borders at the level of the European Union.
For this reason therefore the managers and staff of these various services  need to  develop an
awareness  that  they  are  in  fact  now  guarding  the  borders  of  the  Member  States  of  the
European  Union.  They  should,  therefore,  see  their  activity  as  a  contribution  to  a  European
check  and  surveillance  network.  Combining  the  activities  and  functions  of  these  services
should  ensure  the  homogeneous  implementation  of  the  Schengen  acquis,  the  Community
Customs Code and all other EC/EU provisions likely to be implemented at external borders.
Increasing co-ordination between the administrations concerned should bring added value, for
example, in exchanging their methods of risk analysis.

14. Financially speaking, the cost of staff and supplies is borne by the national budget of each
Member  State,  which  geographical  features  can  make  extremely  expensive  for  certain  of
them,  in  particular  for  the  surveillance  of  maritime  borders.  Working  methods,  staff  and
resource  deployment  and  management  rules  all  follow  primarily  national  considerations,
despite  the  provisions  of  Article  6  of  the  Schengen  Convention.22  Things  are,  however,
different as regards the customs field. Member States keep 25% of Community own resources
derived  from  customs  duties  to  cover  infrastructures  at  the  external  customs  border.23
Community  support  is  available  for  joint  actions  along  the  external  borders  of  the  Union,
including maritime borders, in the field of police, customs and judicial co-operation. On the
Union side, such actions are eligible for support under the INTERREG Community Initiative
which  supports  cross-border,  transnational  and  inter-regional  co-operation.  This  can  be
matched by actions on the other side of the border using different instruments according to the
geographical  context  (TACIS,  PHARE,  CARDS,  MEDA).  INTERREG  will  be  extended  to
cover the new Member States after enlargement.

15.  What  are  the  difficulties  of  implementing  the  acquis  as  regards  the  crossing  of  external
borders by persons?

Article  5  of  the  Schengen  Convention  provides  that  to  be  admitted  to  the  common  area  of
freedom  of  movement,  foreign  nationals  must  not  “be  considered  to  be  a  threat  to  public
policy,  national  security  or  the  international  relations  of  any  of  the  [Member  States]”.
Implementing  this  principle  uniformly  at  the  external  borders  is  far  from  easy,  since  the
situation  of  persons  is  assessed  on  national  criteria,  which  are  not  equivalent  from  one
Member  State  to  another.  The  same  difficulty  can  arise  for  the  provisions  implementing
Article 6 of the Schengen Convention concerning the detection and prevention of threats.24

22

23 

24

“[Member  States]  undertake  to  deploy  enough  suitably  qualified  officers  to  carry  out  checks  and
surveillance along external borders ... An equal degree of control shall be exercised at external borders”.

In  conformity  with  Council  Decision  2000/597/EC,  Euratom,  on  the  system  of  the  European
Communities’ own resources, which entered into force on the 1st March 2002, the Member States are
authorised to retain 25% by way of collection costs related to traditional own resources.

“Checks on persons shall include (...) checks to detect and prevent threats to the national security and
public policy of the [Member States]. Such checks shall also be carried out on vehicles and objects in
the possession of persons crossing the border.”

9

                                                
Possible differences in national legislation and administrative practices can generate security
differentials between sections of external borders controlled by different Member States. The
interpretation of the rules concerning SIS alerts can vary from one Member State to another.
Differences  also  exist  regarding  SIS  access  for  the  various  services  concerned  with  checks
and surveillance at the external borders. These factors necessarily affect the homogeneity of
the management of external borders from an internal security point of view for the common
area of freedom of movement.

In addition, Article 6 of the Schengen Convention envisages checks on the entry and exit of
all persons who  cross the  external  borders,  but  its  wording25  might  suggest  that  exit  checks
play  a  secondary  role.  This  situation  deserves  detailed  examination  in  terms  of  the  sound
implementation of prohibitions on leaving the territory or of discreet surveillance of persons
likely to threaten security. There is scope for improvement in  the  complementarity  between
services  responsible  for  checks  on  persons  leaving  the  territory  and  those  responsible  for
customs and tax checks.

16.  Forms  of  cooperation  between  the  Member  States  in  situ  at  the  external  borders  of  the
European Union.

Regarding  checks  and  surveillance  at  the  external  borders,  Member  States  today  apply  two
types of cooperation framework under the Schengen acquis:

exchanges of liaison officers provided for by Article 7 of the Schengen Convention:26
–
their  purpose  is  assistance  and  permanent  cooperation  between  the  Member  States  “with  a
view  to  the  effective  implementation  of  checks  and  surveillance”  and  to  “promote  standard
basic and further training of officers manning checkpoints”;

–
bilateral police  co-operation agreements between the Member States on the basis of
Article  47  of  the  Schengen  Convention:27  the  main  objective  of  using  these  at  the  external
borders  is  to  combat  illegal  immigration  and  prevent  organised  crime  in  accordance  with
guidelines set by the Schengen Executive Committee.28

17. Some of these bilateral police cooperation agreements are used as means of testing joint
bi-national teams on secondment at external borders. Their size, missions and capacity to act
are still limited. They are finding it difficult to transcend the bilateral framework and achieve
a  truly  European  dimension.  For  the  moment,  officials  seconded  to  another  Member  State
cannot  exercise  the  prerogatives  of  public  authority  without  which  they  cannot  perform
checks  and  surveillance  tasks  at  the  external  borders.  Moreover,  these  bilateral  forms  of
cooperation between Member States on the basis of the Schengen acquis are not coordinated

25

26

27

28

“On exit, the checks shall be carried out as required in the interest of all [Member States] under the law
on aliens in order to detect and prevent threats to the national security and public policy of the [Member
States].  Such  checks  shall  always  be  carried  out  on  aliens.  If  in  certain  circumstances  such  checks
cannot be carried out, priorities must be set. In that case, entry checks shall as a rule take priority over
exit checks”.
Article 7 of the  Schengen  Convention  was  given  a  legal  basis  in  Article  66  of  the  EC  Treaty  “to  the
extent  that  these  provisions  do  not  concern  forms  of  police  cooperation  covered  by  the  provisions  of
Title III of the Schengen Convention”, by Council Decision 1999/436/EC of 20 May 1999 (OJ L 176,
10.7.1999).
This  provision  was  given  a  legal  basis  in  Articles  34  and  30(1)  of  the  Treaty  on  European  Union,  in
accordance  with  Council  Decision  1999/436/EC  of  20  May  1999.  Article  47  of  the  Schengen
Convention appears under “Police Cooperation”, while Article 7 is under “Crossing external borders”.
See  Decision  of  the  Executive  Committee  SCH/Com-ex  (99)  7,  Rev.  2  of  28  April  1999  (OJ  L  239,
22.9.2000).

10

                                                
with  other  forms  of  cooperation,  such  as  the  management  of  the  external  borders  in  the
customs context.

II. (c) The main needs identified

18. The initiatives put forward by successive Presidencies and the Member States reflect the
need for a more operational co-operation and co-ordination unit for practitioners29 of checks
and  surveillance  at  the  external  borders.  They  also  aim  at  closer  integration  between  tasks
performed  at  the  external  borders  and  those  performed  by  other  authorities  within  the
common area of freedom of movement.30

19.  The  Commission  recalls  several  needs  to  be  met  by  the  European  Union,  as  they  have
been identified any old how in discussion these last months in the Council:

How  can  the  practices  of  national  units  responsible  for  checks  and  surveillance  at

–
external borders be further harmonised and improved?

How can better  operational consistency  be  secured  between  activities  at  the  external

–
borders and activities within the common area of freedom of movement?

Where and how can regular follow-up between those responsible for management and

–
operational forecasting regarding staff and equipment deployment be arranged?

–
How can those responsible for operational services be enabled to share a common risk
analysis so as to treat their operational objectives on a hierarchical basis and co-ordinate them
in European Union terms?

Do certain existing legal provisions concerning checks and surveillance at the external

–
borders need amending?

–

–

29

30

How can financial and operational burden-sharing be organised?

How can a common basis for border guard training be organised?

Belgian  Presidency  note  to  the  Council  on  27  November  2001  concerning  the  concept  of  border
management (Council document 14570/01 FRONT 69).
See  Police  and  Border  Security  Workshop  organised  at  Neusiedl/See,  Austria,  on  10  and  11  January
2002, and financed by the OISIN programme.

11

                                                
III.  A  COMMON  POLICY  ON  MANAGEMENT  OF  EXTERNAL  BORDERS:
TOWARDS A EUROPEAN CORPS OF BORDER GUARDS

20.  To  offer  a  coherent  response  to  all  the  needs  which  have  been  expressed  in  a  scattered
fashion  by  the  Member  States  and  are  described  above,  the  Commission  recommends
structuring  projects  and  ensuring  continuity  within  a  common  policy  of  integrated
management  of  external  borders.  This  common  policy  should  include  at  least  five  mutually
interdependent components:

(a) A common corpus of legislation;

(b) A common co-ordination and operational co-operation mechanism;

(c) Common integrated risk analysis;

(d) Staff trained in the European dimension and inter-operational equipment;

(e)  Burden-sharing  between  Member  States  in  the  run-up  to  a  European  Corps  of  Border
Guards.

Democratic and jurisdictional control of all these activities must be assured.

21. The guidelines to be followed and measures to be taken need to be specified for each of
these components.

For the sake of clarity, Annex I defines the terminology used in Part III, without giving legal
status to these concepts: checks at external borders, surveillance at external borders, internal
security  in  the  common  area  of  free  movement,  security  at  external  borders,  border  guard,
management of external borders.

III (a) A common corpus of legislation

22.  Title  IV  of  the  EC  Treaty,  and  in  particular  Articles  62  and  66,  provide  a  rich  legal
potential  for  structuring  the  strategy,  and  creating  and  operating  all  the  components  of  the
common policy on integrated management of external borders.

23. The Commission recommends four measures concerning the crossing of external borders
which can be taken in the short term:

Recast  the  Common  Manual  on  Checks  at  the  External  Borders  to  clarify  the  legal
–
status of its provisions and make  them  a  source  of  law  alongside  other  legal  instruments  in
place,  such  as  those  regulating  the  free  movement  of  Union  citizens  or  developing  the
Schengen acquis and Conventions under public international law which are relevant to border
checks.  The Commission intends taking a legislative initiative on this subject.

Introduce into the Common Manual certain “ best practices” proceeding on the basis

–
of the Schengen Catalogue of Best Practices and thus making them mandatory.

–
Produce  a  practical  handbook  usable  by  border  guards  and  available  in  electronic
form:  the  objective  is  to  give  every  member  of  the  border  guard  services  an  easy  to  use
handbook which could be available for consultation continually. This handbook would not be
a source of law but a systematic, coherent compilation of all the rules governing checks and
surveillance under the relevant legal instruments.

12

Identify  principles  and  adopt  common  measures  on  “local  border  traffic”,31
–
particularly with a view to enlargement. The Commission intends taking an initiative aiming
to better define the fundamental principles and procedures of such a system and, if necessary,
to prepare for agreements between the Community and neighbouring third countries.

24. The Commission recommends in the medium term that “measures on the crossing of the
external borders of the Member States” be amplified by new “standards and procedures to be
followed by Member States in carrying out checks on persons at such [external] borders”:32

–
In compliance with Article 64(1) of the EC Treaty, include among the “standards and
procedures to be followed by Member States in carrying out checks on persons at [external]
borders”  a  formalised  process  of  exchanging  and  processing  data  and  information  between
authorities operating at  the  external  borders  and  those  operating  within the  common area of
freedom of movement.

–

Determine the powers that might be conferred on a European Corps of Border Guards.

Determine  the  geographical  boundaries  within  which  such  a  European  Corps  of

–
Border Guards would be entitled to operate.

25. To guarantee an objective level of internal security in an area without borders, it is also
necessary to envisage a legal framework for the performance of a genuine inspection function
at external borders. Such an operational inspection function should be operable either at the
request of a Member State or of its own initiative, in particular when it is obvious that all the
Member States should deploy reinforcements at an external border where there are temporary
objective difficulties of checking and surveillance.

26. Provision should also be made, above and beyond the national contribution, for financing
this  common  policy  by  recourse  to  Article  66  of  the  EC  Treaty  (administrative  cooperation
between relevant departments of the Member States and between them and the Commission).

III.  (b)  How  can  a  common  operational  co-ordination  and  co-operation  mechanism  be
set up?

27.  A  common  co-ordination  and  operational  co-operation  mechanism  could  rest  on  two
instruments:
– an External borders practitioners common unit that should be set up;
–  a  permanent  process  of  exchange  and  processing  of  data  and  information  that  should  be
established  gradually  in  the  medium  term  between  the  authorities  of  the  various  Member
States  operating  at  the  external  borders  and  those  operating  within  the  common  area  of
freedom of movement.

28. The External borders practitioners common unit

The  Commission  recommends  creating  an  External  borders  practitioners  common  unit33
responsible for:

31

32

Article  3  of  the  Schengen  Convention  provides  that  “More  detailed  provisions,  exceptions  and
arrangements  for  local  border  traffic  ...  shall  be  adopted  by  the  Executive  Committee.”  Neither  the
Schengen Executive Committee nor the Council which took over from it after the entry into force of the
Treaty of Amsterdam made use of this provision.
Quoted direct from Article 62(2)(a) of the EC Treaty.

13

                                                
acting as a “head” of the common policy on management of external borders to carry

–
out common integrated risk analysis;
–
particular in crisis situations;
–
policies in the field of personnel and equipment;
–
analysis demands it.

acting as “leader” coordinating and controlling operational projects on the ground, in

acting  as  manager  and  strategist  to  ensure  greater  convergence  between  the  national

exercising a form of power of inspection, in particular in the event of crisis or if risk

29. The External borders practitioners common unit set up mainly to associate managers and
practitioners  of  external  border  checks  and  surveillance  would  not  be  confined  to  the  fields
covered  by  Article  62(2)(a)  of  the  EC  Treaty.34  The  common  unit  should  play  a  full
multidisciplinary and horizontal role to associate managers and practitioners whose functions
are related to security at external borders:

the authorities responsible for issuing short-stay and long-stay visas, whose functions

–
are covered by Article 62(2)(b) (ii) 35 and Article 63(3)(a) 36 of the EC Treaty;
–
the authorities responsible for implementing all the compensatory measures provided
for by Articles 61(e)37 and 62(1)38 of the EC Treaty, intended to set up the area of freedom,
security  and justice: in practice this  might mean the police,  judicial and  customs  authorities
and EUROPOL within the meaning of the Treaty on European Union.39

30. The general political guidelines for External borders practitioners common unit would be
fixed by the  Council, to the extent that this common unit  should most probably develop from
the  SCIFA  (Strategic  Committee  for  Immigration,  Frontiers,  and  Asylum)  working  group
meeting in its formation of those responsible for the Member States services ensuring controls
at the external borders.  In this first phase of activity, Article 66 of the EC Treaty would be
the  working  framework  for  this  Unit,  as  this  would  bring  together  those  hierarchically
responsible  enabled  to  commit  their  national  administrations  to  the  concrete  actions  of
administrative  co-operation  for  the  control  and  surveillance  of  external  borders  in  the  areas
covered by the Schengen acquis and Title IV of the EC Treaty. It appears clear however that
the  framework  of  the  SCIFA  alone,  even  Article  66  of  the  EC  Treaty,  would  rapidly  prove
insufficient to ensure that this unit could be truly multidisciplinary in ensuring the necessary
synergies  with  customs  co-operation  and  above  all  with  police  co-operation  under  the  third
pillar.

33

34

35

36

37

38

39

At the special European Council of 21.9.2001 and the JHA Council of 16.11.2001 Finland has already
referred to the idea of a Forum for external borders.
“Standards  and  procedures  to  be  followed  by  Member  States  in  carrying  out  checks  on  persons  at
[external] borders”.
“The procedures and conditions for issuing visas by Member States”.
“Conditions of entry and residence, and standards on procedures for the issue by Member States of long
term visas and residence permits, including those for the purpose of family reunion”.
“Measures in the field of police and judicial cooperation  in  criminal  matters  aimed  at  a  high  level  of
security by preventing and combating crime within the Union in accordance with the provisions of the
Treaty on European Union”.
“Measures with a view to ensuring, in compliance  with  Article 14 [of the EC Treaty], the absence of
any  controls  on  persons,  be  they  citizens  of  the  Union  or  nationals  of  third  countries,  when  crossing
internal borders”.
Article 61(e) of the EC Treaty refers to provisions of the Treaty on European Union, including Article
29, which reads: “Without prejudice to the powers of the European Community, the Union' s objective
shall be to provide citizens with a high level of safety within an area of freedom, security and justice ...
through  ...  closer  cooperation  between  police  forces,  customs  authorities  and  other  competent
authorities in the Member States, both directly and through the European Police Office (Europol) ...”.

14

                                                                                                                                                        
It is  necessary  therefore  that,  for  the  exercise  of  at  least  some  of  its  functions,  the  External
borders  practitioners  common  unit  should  progressively  extend  its  activities  beyond  Article
66  of  the  EC  Treaty,  and  where  necessary  beyond  the  structures  of  the  Council  working
groups, in particular if the creation of a European Corps of Border Guards gave rise to a need
for  a  permanent  headquarters  staff  structure  charged  with  its  operational  command,  the
management of its personnel and equipment.

For the exercise of its inspection function, the unit would use as a starting point the mandate
of the Standing Committee on the evaluation and implementation of Schengen, which is part
of  the  acquis  but  which  could  be  improved  and  strengthened  without  dissociating  the  link
which this mandate establishes between the activities falling under the first pillar and the third
pillar.  This manner of proceeding appears the most pragmatic because currently this mandate
is executed by the Council group Schengen-Evaluation (SCH/EVAL) which is in fact placed
under the authority of the SCIFA which should be the frame for the inception of the External
borders practitioners common unit. There would therefore be no multiplication of structures:
the inspection function in time of crisis would  in practice  be  carried  out  by  the hierarchical
superiors of the practitioners who  currently undertake the “routine”  evaluation visits carried
out by the SCH/EVAL working group.

In  any  event,  whether  in  the  short  term  or  the  longer  term,  the  functions  exercised  by  the
common unit would include activities to improve the effective implementation of Union law
but  they  would  involve  no  legislative  proposals  and  no  implementing  measures  within  the
meaning of Article 202 of the EC Treaty.

The Commission will participate in the establishment of this common unit, and will exercise
its institutional roles of initiative and supervision as devolved by the EC Treaty.

31. The framework for the activities exercised by this External borders practitioners common
unit, to be conceived as a development of the Schengen acquis, would also be the ideal forum
to  gradually  receive  the  new  states  applying  for  the  accession  to  the  Union.  The  full
participation of the new Member States in the various activities of the common unit and in the
common  policy  on  integrated  management  of  external  borders  will  have  to  proceed  at  the
same rhythm as the implementation by each Member State of the Schengen acquis. It would,
however,  be  desirable  to  be  able  to  anticipate  this  timetable  as  regards  convergence  of  the
staff  and  equipment  policies,  as  well  as  for  possible  exercises  on  themes  in  which  the  new
Member States or the applicant countries could be involved on an ad hoc basis.

32. Within the framework of its risk analysis function, the common unit could be requested to
conduct  an  analysis  to  develop  the  second  instrument  of  the  common  coordination  and
operational  cooperation  mechanism,  namely  the  permanent  process  of  data  and  information
exchange and processing, which is considered below.

33. A permanent process of data and information exchange and processing

The  permanent  process  of  data  and  information  exchange  and  processing  envisaged  here  is
not a database or a computer network, or even an administrative structure. It is a procedure or
a  code  of  conduct  which,  depending  on  the  nature  of  the  information  and  of  the  risks
identified,  would  aim  to  establish  direct  links  and  exchanges  between  the  authorities
concerned  with  security  at  external  borders.  This  security  procedure  (PROSECUR:40
“PROcédure  de  SECURité”  or  “PROcedure  of  SECURity”)  would  be  based  on  plurality  of

40

Abbreviation used in the rest of this document for the sake of simplicity.

15

                                                
instruments  and  technical  exchange  procedures,  some  of  which  already  exist  while  others
should be created gradually. To give a concrete illustration, PROSECUR could, for example,
have the following tools, operating alongside each other so as to cover if possible every aspect
of security at external borders:

the SIS used to consult information on the occasion of checks at external borders;
the  various  electronic  data  banks  being  developed  (e.g.  network  of  visas  issued  and

–
–
refused) to consult the information made available by other authorities;
the channels for exchange of information relating to prevention of drug trafficking;
-
–
an  encrypted  Intranet  connecting  national  contact  points  to  exchange  information
interactively or to consult on very precise measures to be taken within a very short time with
regard to a person crossing the external border;
–
national contact points if necessary.41

the  traditional  means  of  telecommunication  (telephone  or  radio),  passing  through

34. In the framework of PROSECUR  a request could also be generated for a service to send
another service the information and documents needed for the full treatment of an offence or
threat observed at the external border. This might be the case where legal or material reasons
prevent a service from handling the case and its follow-up from beginning to end. The result
expected  from  PROSECUR  in  such  a  situation  would  be  to  overcome  the  effect  of
compartmentalisation of services without affecting the powers conferred on them by national
law. Procedures for  alerting  customs  services  and  for  requisitioning  plant  health  services  or
scientific laboratories should also be envisaged by PROSECUR. Reciprocally, the intelligence
services of a Member State should be able to supply all border guard services and consulates
of  the  Member  States  without  delay  with  sufficiently  relevant  and  precise  information  to
enable  them  to  exercise  targeted  surveillance  of  certain  types  of  individuals,  of  objects,  of
geographical origins or modes of transport for a given period.

of the various border guard services responsible for checks and supervision of persons

35. To be able to function correctly, PROSECUR should in the long term be formalised by a
legal instrument42 specifying at Union level the obligations and the reciprocal rights:
–
or goods crossing the external borders; and
–
as  between  these  border  guard  services  and  other  administrative,  police  or  judicial
authorities within the territory which are involved in security in the common area of freedom
of movement.

As far as possible, the exchange of information and intelligence covered by the PROSECUR
code of conduct should apply in the same way between authorities of the same Member State
and  between  authorities  of  different  Member  States.  Depending  on  the  nature  of  the
information  and  risks,  the  technical  exchange  procedures  and  the  degree  of  urgency  of  the
information,  PROSECUR  should  establish  privileged  links  with  EUROPOL  and  other
existing police, customs or judicial cooperation mechanisms.

III. (c) How should common integrated risk evaluation be structured?

36. Common integrated risk analysis is also a vital component in the joint discussion of three
strategic lines of protection at external borders: in third countries, at the external border, and
within the common area of freedom of movement.

41

42

For linguistic convenience or when information which interests national security forces is involved.
This  could  be  adopted  on  the  basis  of  Articles  62(1)  and  62(2)(a)  of  the  EC  Treaty  as  it  would
supplement the procedures for checking persons at external borders to take account of the security of
the common area of freedom of movement, in the spirit of Article 6 of the Schengen Convention.

16

                                                
the initial determination of the indicators considered relevant for the analysis and the

Two successive stages should be distinguished:
–
development of the risks;
–
monitoring of their development to draw operational conclusions for action on the ground.

following  the  adoption  of  the  common  indicators,  the  constant  and  continuous

To  arrive  at  this  objective,  the  External  borders  practitioners  common  unit  should  be
instructed  to  structure  the  activity  and  evaluate  the  immediate  operational  needs.  The
multidisciplinary  nature  of  the  unit  should  in  addition  enable  it  to  establish  all  necessary
synergies with EUROPOL and the police cooperation authorities to select the risks which are
of specific interest at the external borders.

37. Act in and with third countries to identify risks upstream from the external border.

Two  main  principles  can  structure  risk  analysis  regarding  third  countries  to  ensure  a  high
level  of  security  at  the  external  borders  of  the  European  Union:  action  in  relation  to  the
consulates  of  the  Member  States43  and  to  the  police  liaison  officers  and  attachés.  Local
consular  cooperation  established  by  the  Common  Consular  Instruction44  and  the  policy  on
visas is to help protect the external borders of the Member States of the Union. The sending of
liaison  officers  to  third  countries  could  be  less  specific  in  time  and  area.  The  role  of  the
liaison  officers  and  police  attachés  in  the  embassies  of  certain  Member  States  could  be
increased and act in the interest of all the Member States so that consular cooperation covers
broader fields and contributes better to preventing the risk of terrorism.

38. How can risks at the actual border be identified?

Several principles could focus risk analysis at border crossing points:

(a)  The  optimisation  of  best  practices  for  checks  and  surveillance:  the  EU  Schengen
Catalogue  should  facilitate  risk  analysis,  in  particular  in  relation  to  maritime  borders.  The
various  forms  of  organisation  of  work  could  be  analysed  in  terms  of  their  reliability  in
achieving security at external borders and their adaptability to changing needs.

(b)  Technological  surveillance:  risk  analysis  should  anticipate  the  effects  of  technological
progress on the work of the border guard, for example for the use of electronic databases, of
digitised biometric data or of remote sensing techniques for external border surveillance.  At
the moment where the  Union has  just chosen  to  develop  an  instrument  such  as  Galileo,  the
possibilities  for  its’  use  in  surveillance  of  flows  across  external  borders  should  be  given
prominence.

(c)  The  practical  questions  of  daily  co-operation  with  neighbouring  third  countries  on  our
external  land  borders:  risk  analysis  could  help  to  organise  checks  in  such  a  way  as  to  save
time  and  infrastructures45  and  promote  cross-border  co-operation.    The  idea  would  be  to
identify movements entailing risk at the moment of their passage or their origin, most often in
neighbouring third countries or territories, with the assistance of their authorities, and without
de facto delegating part of the external border check and surveillance function to them.

43

44

45

If necessary in relation to the joint  visa issuing offices.
The  Schengen  Executive  Committee  Decision  adopting  the  Common  Consular  Instruction  is  in  OJ  L
239,  22.9.2000  (p.  317).  It  was  given  a  European  Union  legal  basis  in  accordance  with  Council
Decision 1999/436/EC of 20 May 1999.
National  Joint  Border  Control  Facilities  are  appreciated  by  the  Member  States  which  practised  them
among  themselves  for  several  decades  before  the  implementation  of  the  Schengen  Convention  and
which continue developing them at land borders with third countries.

17

                                                
(d) The “security distortions”  connected with the topography  of  the  border  and  the  regional
environment.

(e)  Improvement  and  development  of  an  intelligence  function:  risk  analysis  should  here
determine  how  to  optimise  the  use  of  the  external  border  as  an  “information  gathering
resource” on movements of persons, goods, objects and vehicles, including, where necessary,
the risk of traffic in narcotic drugs.

39. How can risks requiring continuity of action between border guards and other authorities
within the territory be identified and treated?

At  the  time  of  the  initial  phase  consisting  of  determining  the  relevant  indicators  for  risk
analysis,  the  new  External  borders  practitioners  common  unit  should  consider  the  type  of
information that it is worth collecting at the external borders. This analysis should also cover
the use which should be made of it in the interests of the internal security of the common area
of freedom of movement. This would involve:

(a) selecting the types of missions which would gain by being compared and are exercised by
border guard services and by services within the territory;
(b) determining categories of information which should be exchanged between border guard
services  and  by  services  within  the  territory  for  the  purposes  of  enforcement,  prevention  or
investigation connected with a sufficiently precise and probable risk at the external borders.

Following  this  analysis,  the  External  borders  practitioners  common  unit  should  be  in  a
position to specify what the content of PROSECUR could be.

III.  (d)  How  can  the  common  policy  for  the  integrated  management  of  the  external
borders be properly equipped with personnel and inter-operational equipment?

40. The personnel  and  operational equipment  used for  checks  and surveillance  are the most
tangible  component  of  the  common  policy  on  integrated  management  of  external  borders.
Their  effectiveness  should  be  increased  by  means  of  greater  convergence  between  national
policies.

41. How can complementarity be developed  between  the  national  policies  on  staff  and  staff
training?

The  convergence  of  national  staff  policies  should  aim  to  gradually  reduce  quantitative  and
qualitative  disparities  that  are  likely  to  generate  “security  distortions”  between  the  Member
States at external borders.

The development of a common syllabus for the training of border guards and of their middle
management and the regular organisation of advanced training courses could be envisaged in
the  very  short  term.  The  training  of  border  guards  in  the  European  dimension  of  their
functions  should  be  given  very  close  attention,  in  particular  by  language-training,  the
acquisition  of  the  main  concepts  as  to  the  powers  and  status  of  border  guards  in  the  other
Member States and the development of immersion training periods in a border guard service
of another Member State.46 Staff training could also strengthen the integrated character of the
management of the  external borders by  familiarising  staff  with  the functions of  the  services
which contribute to the internal security in the common area of freedom of movement and of
consular  services  and  liaison  officers  posted  in  third  countries.  It  is  equally  important  to

46

The new ARGO programme will probably serve as a support, initially.

18

                                                
ensure  training  for  the  border  guards  about  respect  for  the  rights  of,  and  the  protection  of
asylum seekers.

42. The External borders practitioners common unit should be given the task of designing a
specific  curriculum  for  training  border  guards,  based  on  the  national  training  institute
network, to culminate in a European border guards college.

43.  How  can  complementarity  between  national  policies  on  operational  equipment  be
achieved?

The  convergence  of  national  policies  should  also  be  sought  as  regards  border  guards’
equipment, fixed infrastructure, mobile equipment and telecommunication services.

The  development  of  permitted  crossing  points  on  land  external  borders  (road  crossings  or
railway  stations),  in  ports  and  in  airports  depends  primarily  on  the  development  of  the
movement of persons and trade in goods and services. Good cooperation between the public
authorities  and  private-sector  economic  operators  for  the  opening  of  new  crossing  points
would be desirable, as would consistency with the major European Union transport policies.
In this respect, as the time comes when new Member States will be permitted to implement
the Schengen acquis in full, the investment strategies of the Member States and the applicant
countries  at  future  internal  land  borders  will  have  to  be  changed  in  line  with  the  common
policy on management of the external borders.

44.  A  common  policy  on  fixed  infrastructures  could  include  the  development  of  new
technologies to facilitate checks at border crossing points and surveillance between crossing
points. Monitoring the coast by radar or satellite deserves better policy coordination between
the Member States to ensure a more uniform level of security. The geographical situation of
certain Member States warrants burden-sharing for the  sound operation of fixed and mobile
infrastructures for checks and surveillance from which all the Member States would benefit.
The Galileo system is an example of a European high-technology tool capable of bringing a
new dimension to the common policy of checks and surveillance of the external borders.47

The convergence of national policies should also aim to achieve the greatest interoperability
between  the  mobile  equipment  of  the  Member  States.48  It  would  also  aim  for  the  greatest
geographical mobility so as to be able to move them easily from one Member State to another
in  response  to  changing  needs.  Particularly  expensive  equipment  such  as  a  satellite-based
maritime border inspection network should be shared

III. (e) From financial burden-sharing between the Member States to a European Corps
of Border Guards

45.  The  Commission  is  of  the  view  that  that  in  due  course  there  could  be  established  a
financial burden-sharing mechanism between the Member States making  use  of the existing
national  financing  together  with  Union  budgetary  support.  This  financial  burden-sharing
should  in  the  long  term  be  supplemented  by  operational  burden-sharing  through  the
establishment of European Corps of Border Guards, once the constitutional difficulties of the
Member States have been overcome. The Commission will proceed with an initial evaluation

47 

48

The  European  Union  is  currently  equipping  itself  with  the  GALILEO  system  of  satellite  radio-
navigation, which should be operational from 2008. This system, which will be supported by terrestrial
stations, will, in particular, have an encrypted and protected government signal.
Vehicles  for  patrolling  land  borders,  high-speed  launches  for  coastal  surveillance,  helicopters  or
surveillance aircraft to provide information for land vehicles or high-speed launches.

19

                                                
of the financial implications, as soon as precise activities have been identified, in function of
the options which could be retained.

46. Budgetary support for financial burden-sharing

The  common  policy  of  integrated management  of the  external  borders  should  also  establish
for itself as an the objective a genuine sharing of the financial burden as well as sharing the
requirements  in  equipment  and  human  resources.  Currently  this  burden  is  not  shared  in  a
balanced  way  between  the  Member  States.  Some  of  them,  owing  to  their  geographical
situation, have to perform checks and surveillance in the common interest on highly exposed
and very long external maritime or land  borders,  while  some  other Member  State no longer
have any external borders except the airports. It is in their interest also to take part in the joint
protection  effort  at  all  the  external  borders,  since  the  security  of  the  area  without  internal
borders  depends  on  this.  The  sharing  of  this  burden  should  not  have  as  an  objective  the
integral  financing  of  all  checks  and  surveillance  at  the  external  borders  through  the
community budget. National budgets should remain the principle resources affected to these
expenses. Nevertheless, Community budget support could be used to establish a mechanism
for financial redistribution between Member States as well as to finance in the longer term the
acquisition  of  common  equipment,  in  particular  in  the  hypothesis  of  the  creation  of  a
European Corps of Border Guards.  In the short term, Article 66 and the ARGO programme
should be able to finance the most pressing requirements for example in common training. It
should  also  be  recalled  that  candidate  countries  already  benefit  from  very  substantial
financing in the framework of the PHARE programmes to establish for themselves the means
of control and surveillance at their external borders, which are efficient and compatibles with
their accession to the European Union.

In any event, whatever the options for the use of the Community budget, these should without
doubt  have  as  a  first  objective  to  avoid  financial  contributions  set  by  bilateral  agreements
between Member States, which quickly become  complex and inequitable.  It could  also be a
source  of  stability  and  foreseeability  for  the  Member  States  and  of  greater  transparency  for
Parliament,  and  an  assurance  of  rational  management  thanks  to  scrutiny  by  the  Court  of
Auditors.  In  the  long  term,  this  burden-sharing  between  Member  States  could  also  make  it
possible  to  envisage  financial  burden-sharing  between  services,  by  bringing  within  a  single
budgetary framework the financing of:
checks and surveillance when persons and goods cross external borders;49 and
–
–
the  instruments  used  to  exchange  and  process  data  and  information  which  might  be
established  between  the  authorities  operating  at  the  external  borders  and  those  operating
within the common area of freedom of movement.

At  the  appropriate  juncture,  the  Commission  will  examine  in  depth  all  the  budgetary,
institutional and legal aspects which could arise from the  different foreseeable options.

47. Towards a European Corps of Border Guards

The  Commission  recommends  that  the  national  services  of  the  Member  States  receive  the
support  of  a  European  Corps  of  Border  Guards.  At  the  first  stage  it  could  exercise  real
surveillance  functions  at  the  external  borders  by  joint  multinational  teams,  perhaps  starting
with  maritime  borders.  In  effect,  common  experience  seems  for  the  moment  to  be  least

49

Synergies with the financing of the operation of external customs borders could be considered – even
where  no  explicit  financing  may  be  provided  for  in  the  Community  budget,  given  that  the  Member
States retain 25% of the own resources collected by their customs administrations.

20

                                                
developed  in  this  area,  by  comparison  with  certain  bilateral  co-operation  already  existing
between Member States for the land or air borders. The operational tasks will naturally have
to be provided for by legislative measures, because this will be necessary for clarity and legal
certainty of  the missions of the  European  Corps,  not  forgetting the  required  democratic  and
jurisdictional control which should accompany these.  In  any event,  in the  immediate  future,
this Corps will not be able to replace the national authorities to maintain law and order  and
safeguard  internal  security  in  the  host  country,  in  compliance  with  Article  64(1)  of  the  EC
Treaty.

48.  As  matters  stand,  it  is  estimated  that  a  European  Corps  of  Border  Guards  should  be
designed and should function in accordance with the following elementary principles:50

initially, handle surveillance functions at the external borders of the Member States of

consist of staff having the full prerogatives of public authority needed to perform these

be  placed  under  the  operational  command  of  the  External  borders  practitioners

–
the European Union;51 subsequently, handle checks at border crossing points;
–
functions, irrespective of their nationality and their place of deployment;
–
common unit;
–
Title IV52 or Title X53 of the EC Treaty or other directly applicable Community legislation;
–
European Union54 who satisfies the requirements as to qualifications and ethical standing.

be  open  at  all  the  hierarchical  levels  to  any  national  of  a  Member  State  of  the

respect  the  local  national  authorities’  powers  in  matters  which  are  not  covered  by

49. The main difficulty to be overcome in establishing a European Corps of Border Guards is
connected with conferring the prerogatives of public authority on staff of the European Corps
who  do  not  have  the  nationality  of  the  Member  State  where  they  are  deployed.  This  is  a
fundamental question on constitutional grounds. Another problem might lie in the method of
recruiting staff and their staff regulations and status for disciplinary purposes. The bulk of the
manpower of this European Corps will probably have to be made up of staff seconded by the
Member States for a given duration. In the event of crisis, this stable core of manpower could
be supplemented if necessary by a pool of national staff who have been preselected and are
regarded  as  reservists  who  can  be  mobilized  at  short  notice  by  the  External  borders
practitioners common  unit.

The equipment of the European  Corps  should  be  covered by the  Community  budget  so  that
the  Practitioners  common  unit  does  not  have  to  perform  a  delicate  balancing  act  between
national priorities and Union priorities for the use of certain mobile equipment.

50. The tasks  inseparable  from  the  effective  achievement of common  surveillance functions
mean that staff must be empowered to:

50

51

52

53

54

The feasibility study entrusted to Italy on a European Border Police Force will contribute to the debate
on what might be called a “European Corps of Border Guards”. This terminology makes it possible to
transcend  differences  in  names,  status  and  powers  of  officers  currently  performing  checks  and
surveillance.
This  would  initially  involve  checks  and  surveillance  at  the  external  borders  of  the  Member  States
implementing the Schengen acquis in full. At a later stage, closer cooperation formulas might make it
possible to commit the European Corps of Border Guards to surveillance at the external borders of the
Community customs area, even in Member States which do not implement the Schengen acquis in full.
“Visas, asylum, immigration and other policies related to free movement of persons”.
“Customs cooperation”.
Norway  and  Iceland  should  also  be  associated  with  the  missions  of  the  European  Corps  of  Border
Guards in the implementation of the Schengen acquis.

21

                                                
check the identity papers, travel documents and visas of persons crossing the external

go  on  board  a  civilian  ship  or  boat  in  the  territorial  waters  of  a  Member  State  to

–
border legally or illegally;
–
question  aliens  on  the  reasons  for  their  stay  in  the  common  area  of  freedom  of
movement, or on the reasons why they have crossed  the external border outside the official
crossing points;
–
question the captain as to his route and to verify the passengers’ identity;
–
movement;
–
apprehend a person and hand him over to the competent national authorities to take the
appropriate preventive or enforcement measures (administrative, police, customs or judicial)
where necessary.

notify a person that he is admitted or refused entry to the common area of freedom of

51.  These  powers  conferred  on  staff  of  the  European  Corps  of  Border  Guards  could  be
confined territorially to the strict needs of the surveillance and checks provided for by Article
62 of the EC Treaty, without prejudice to police cooperation efforts under agreements based
on  Articles  7  and  47  of  the  Schengen  Convention.  One  might  envisage  confining  them,  for
surveillance purposes, to a strip a few hundred metres wide at external land borders and to a
portion  of  the  territorial  waters.  Some  land,  maritime  and  air-crossing  points  could  be
included  for  the  purposes  of  checks.  These  portions  of  territory,  enjoying  special  status,
should be listed exhaustively and be delimited precisely by maps and plans, which could be
annexed to the Common Manual for External Borders.

IV. SUMMARY OF PRIORITY PROJECTS

52. The European Union possesses a relatively complete and detailed community legislation
in  the  area  of  control  of  the  crossing  of  the  external  borders  by  persons.  This  acquis
communautaire essentially is constituted by the Schengen acquis which has received now new
legal bases in Title IV of the EC Treaty.  The current difficulty resides in the need for much
greater  operational  co-ordination  and  much  greater  complementarity  of  action  between  the
national services which are responsible  for the external borders. It should also be noted that
there  exists  a  real  need  to  better  take  account  of  the  many  dimensions  of  the  security  of
external borders likely to have an effect on the internal security of the common area of free
movement where checks on persons have been abolished between the Member States.

The actions envisaged have a dynamic evolution in time, consisting in the development of a
common policy for management of the external borders. Some of these actions can begin in
the  current  institutional  framework  without  modification  of  the  Treaties.  Other  actions  are
likely to require an evolution of the Treaties on certain points in order to  be  capable  of  full
development. With a view to giving an idea of the horizon envisaged by the Commission for
the measures set out hereunder, it could be considered that the short term would be about one
year. The medium term means that it would be desirable if the measure could be operational
before the new Member States are authorised to apply the Schengen acquis.

The Commission considers that the following action should be taken in the short and medium
term:

(a) A common corpus of legislation
(cid:1)  In  the  short  term  and  without  amending  the  Treaties,  recast  the  Common  Manual  on
Checks at the External Borders on the basis of a proposal which the Commission intends to
introduce within a reasonable time frame.

22

(cid:1)  Give mandatory status to certain recommendations of the EU Schengen Catalogue of best

practices.

(cid:1)  Produce a practical handbook for the use of border guards, constituting a full compilation
of  the  rules  governing  checks  and  surveillance  on  the  basis  of  the  relevant  legal
instruments.

(cid:1)  Specify the legal framework and practical procedures regarding  “local  border  traffic”,  on
the  basis  of  an  initiative  which  the  Commission  intends  to  submit  within  a  short  time
frame.

(cid:1)  In  the  medium  term  and  if  necessary  following  amendment  of  the  Treaties,  specify  the
institutional and legal framework of the staff of a future European Corps of Border Guards.

(b) A common and operational co-ordination and co-operation mechanism

(cid:1)  In the short term, establish an External borders practitioners common unit involving those
responsible  for  border  guard  services  in  the  Member  States  and,  in  a  multidisciplinary
spirit, the representatives of various services whose functions also contribute to security at
external  borders.  To  this  end,  the  common  unit  should  have  a  steering  role  to  carry  out
integrated risk analysis, co-ordinate projects on the ground, encourage major convergence
in  the  field  of  the  staff  and  equipment,  exercise  an  inspection  function  and  put  forward
emergency operational measures.  At the appropriate time, the  Commission  will  evaluate
the  institutional  and  legal  aspects  of  this  common  unit  in  particular  to  determine  the
measures which would require amendment of the Treaties.

(cid:1)  In  the  medium  term  and  without  amending  the  Treaties,  the  Practitioners  common  unit
should  explore  the  feasibility  and  relevance  of  a  security  procedure  at  external  borders,
consisting  of  establishing  exchanges  and  processing  of  information  and  intelligence
between the authorities concerned with security at borders, possibly setting up permanent
contact points.

(c) Common integrated risk analysis

(cid:1)  In  the  short  term  and  without  amending  the  Treaties,  the  External  borders  practitioners

common unit should establish the common risk analysis matrix.

(cid:1)  In the medium term and without amending the Treaties, the common unit should ensure the
permanent monitoring of the development of risks with a view to drawing conclusions for
the deployment of personnel and equipment at external borders.

(d) Inter-operational personnel and equipment

(cid:1)  In  the  short  term  and  without  amending  the  Treaties,  the  External  borders  practitioners
common unit should develop a common basis for training border guards in the European
Union.

(cid:1)  It could encourage the common use of mobile surveillance equipment.

(cid:1)  In the medium term and without amending the Treaties, a common radar or satellite-based
(in particular, thanks to the Galileo system) external border surveillance network could be

23

established,  with  better  European  Union  co-ordination  of  fixed  external  border  check
infrastructures.

(cid:1)  In  the  same  way  the  setting  up  a  European  border  guards  college  on  the  basis  of  the

national training institute networks could be considered

(e) Burden-sharing between the Member States and the Union

(cid:1)  In  the  short  term  and  without  amending  the  Treaties,  organise  the  bases  for  Community
financing of the policy on management of the external borders covered by Title IV of the
EC Treaty.  The Commission will undertake a first evaluation of the financial implications
of the measures proposed.

(cid:1)  In the medium term and most likely after amendment of the Treaties, establish a European
Corps of Border Guards, the first function of which would be the “common surveillance”
of the most sensitive places, in  particular  at maritime  borders,  before  assuming  checking
functions  at  border  crossing  points.  At  the  appropriate  juncture,  the  Commission  will
evaluate the institutional and legal nature of this structure.

(cid:1)  Establish 

in 

the  medium 

the  customs
administrations, and  set  up synergies to  create  economies  of  scale  as  regards  community
financing of the management of the external borders  to  the extent  that this is allowed  by
the Treaties.

term  a  complementarity  of  action  with 

24

ANNEX 1

TERMINOLOGY USED IN THIS COMMUNICATION

Checks at external borders

All  operations  carried  out  by  official  authorities  in  the  Member  States  at  border  crossing
points to ensure pursuant to Article 6 of the Schengen Convention that persons, their vehicle
and  the  objects  in  their  possession  can  be  permitted  to  enter  or  leave  the  common  area  of
freedom of movement.

Surveillance at external borders

All  activities  and  operations  carried  out  by  official  authorities  in  the  Member  States  at
external  land,  maritime  and  air  borders  to  prevent,  pursuant  to  Article  6  of  the  Schengen
Convention, persons from circumventing the official border crossing points in order to evade
checks and illegally enter the common area of freedom of movement.

Internal security in the common area of freedom of movement

 Level  of  protection  enjoyed  in  the  area  of  freedom  of  movement  by  natural  persons  and
bodies corporate, goods and properties of all kinds, capital, the provision of services and  all
lawful  commercial  transactions,  as  well  as  intellectual  and  artistic  property  rights,  against
attacks on their interests or threats to their integrity caused by:
failure to comply with Community or national regulations;
–
–
crime,  terrorism,  trafficking  in  human  beings,  crimes  against  children,  arms
trafficking, corruption and fraud, as understood in Article 29 of the Union Treaty, as well as
traffic in narcotic drugs.

Security at external borders

Capacity  of  the  external  borders  to  constitute  a  barrage,  or  at  least  a  reliable  filter,  for  the
Member States against potential threats to:
the effectiveness of checks and surveillance;
–
compliance with Community or national regulations;
–
the level of internal security of the common area of freedom of movement;
–
law  and  order  or  the  national  security  of  the  Member  States,  except  as  regards  the
–
military defence of the external borders of the European Union against aggression where one
or more third countries commits it openly or claims responsibility for it.

25

Border guard

Public  official  deployed  either  at  a  land,  maritime  or  air  border  crossing  point  or  along  the
land  or  maritime  external  border  or  in  the  immediate  vicinity  of  the  latter,  who  enjoys  the
prerogatives of public authority needed to exercise one or more of the following functions:
carry out checks or surveillance at external borders;
–
–
take at the external border  the  preventive  or enforcement measures needed to secure
compliance with Community regulations, the internal security of the common area of freedom
of movement, law and order or national security;
–
external borders.

conduct  investigations  into  facts  observed  in  the  course  of  checks  or  surveillance  at

Management of external borders

carry out checks and surveillance at external borders provided for by Articles 5 and 6

The activities carried out by public authorities of the Member States to:
–
of the Schengen Convention;
–
gather, analyse and exchange any specific intelligence or general information enabling
the border guard to analyse the risk that a person, object or asset constitutes for the internal
security of the common area of freedom of movement, law and order or the national security
of the Member States, and for general compliance with Community legislation;
–
borders and to set the priorities for action of by border guards accordingly;
–
borders.

anticipate  the  needs  as  regards  staff  and  equipment  to  ensure  security  at  external

analyse  the  development  of  the  threats  likely  to  affect  the  security  of  the  external

26