Proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders
Date: 2003-11-11
Institutions: European Commission
Subjects: EU migration policy, EU office or agency, border control, cooperation policy, external border of the EU, migration control

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 20.11.2003
COM(2003) 687 final/2

2003/0273 (CNS)

CORRIGENDUM
Ajout d’une footnote au considérant (23).
Concerne les versions FR, EN, DE.

Proposal for a

COUNCIL REGULATION

establishing a European Agency for the Management of Operational Co-operation
at the External Borders

(presented by the Commission)

EXPLANATORY MEMORANDUM

1.

INTRODUCTION

In the field of the EU external borders, Community policy aims at an integrated management,
thereby  ensuring  a  high  and  uniform  level  of  control  of  persons  and  surveillance  at  the
external borders as a prerequisite for an area of freedom, security and justice. This objective
of an integrated border management requires, as foreseen by Article 62 (2) (a) of the Treaty,
the  establishment  of  common  rules  as  to  the  standards  and  procedures  to  be  followed  by
Member States when controlling the external borders.

Given that the Member States  are responsible for implementing, at an operational level, such
common rules, Community policy  would inevitably  benefit  from  an  increased  co-ordination
of their activities with regard to control and surveillance of the external borders.

In the Communication from the Commission to the Council and the European Parliament with
the title “Towards integrated management of the external borders of the Member States of the
European  Union”  from  7  May  20021,  the  Commission  advocated  the  setting  up  of  an
“External borders practitioners’ common unit” tasked with managing operational co-operation
at the external borders of the Member States.

The Plan for the management of the external borders of the Member States of the European
Union  (the  Plan)  agreed  by  the  Council  on  13  June  20022  endorsed  the  setting  up  of  an
external  borders  practitioners’  common  unit  (the  Common  Unit)  in  the  framework  of  the
Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) as a means to establish
an integrated management of the external borders.

In the Plan, the main tasks of the Common Unit, which started its work as SCIFA+ during the
second half of 2002, is defined as acting as “head” of the common policy on management of
external borders and as a “leader” co-ordinating and controlling operational projects.

In  its  report  to  the  Council  on  the  implementation  of  programmes,  ad  hoc  centres,  pilot
projects and joint operations from 11 June 20033, the Greek Presidency concluded that with
regard to the pilot projects and joint operations, the absence of a monitoring mechanism and
of  a  method  for  independent  and  thorough  evaluation  as  well  as  for  the  processing  and
utilisation  of  results  was  particularly  evident.  The  Presidency  accordingly  called  for  an
examination of the necessity of a new institutional  structure  in  order  to enhance operational
co-operation for the management of external borders.

In the Communication from the Commission to the European Parliament and the Council in
view  of  the  European  Council  of  Thessaloniki  on  the  development  of  a  common  policy  on
illegal  immigration,  smuggling  and  trafficking  of  human  beings,  external  borders  and  the
return of illegal residents4 from 3 June 2003, the Commission pointed out, that the Common
Unit  has  shown  structural  limits  with  regard  to  the  co-ordination  of  the  operational  co-
operation  at  the  external  borders.  The  Commission  therefore  proposed  that  certain  more
strategic  co-ordination  tasks  could  remain  with  the  Common  Unit,  whereas  the  more

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operational tasks could be entrusted to a new permanent Community structure able to exercise
day-to-day  management  and  co-ordination  tasks  and  to  respond  in  time  to  emergency
situations.

In its Conclusions on effective management of the external borders of the EU Member States
of 5 June 20035, the Council called for the reinforcement of the Common Unit as a Council
Working Party by experts seconded from the Member States to the Secretariat General of the
Council.

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

In the conclusions of the European Council on 16 and 17 October 2003, the European Council
welcomes  the  Commission’s  intention  to  present  a  proposal  for  an  Agency  for  the
management of  external  borders, in time for  the Council to  reach  political  agreement  on  its
main elements by the end of the year.

This proposal for a Council Regulation establishing a European Agency for the Management
of  Operational  Co-operation  at  the  External  Borders  intends  to  meet  that  invitation  of  the
European Council. It takes into account the experiences of co-operation between the Member
States in the framework of the Common Unit from which the Agency shall take over the co-
ordination of the operational co-operation.

In comparison with the Common Unit, the Agency has been given the additional task of co-
ordinating and organising return operations of Member States and  identifying best practices
on  the  acquisition  of  travel  documents  and  removal  of  third  country  nationals  from  the
territories of the Member States. This is justified by the fact that in most Member States, the
operational aspects of removal of third-country nationals  fall  under  the  competencies  of  the
authorities responsible for controlling the external borders.

Conducting  a  credible  immigration  policy  requires  the  possibility  of  returning  third-country
nationals  residing  illegally  in  the  Member  States.  Based  on  the  Communication  from  the
Commission to the  Council  and  the  European  Parliament  on  a  Community  return  policy  on
illegal residents6, the Council has adopted an action plan on a Community return policy. The
Commission is the driving force behind the implementation of the Community return policy,
tabling  a  proposal  for  a  Financial  Instrument  for  Return  Management  and  in  early  2004  a
proposal  for  a  Council  Directive  on  minimum  standards  for  return  procedures  and  mutual
recognition of return decisions. Moreover, the Community  has already  entered into, or is  in
the process of negotiating, readmission agreements with a number of key third countries. Co-
ordination  by  the  Agency  of  the  operational  aspects  of  removal  of  third  country  nationals
illegally residing in the Member States is thus an important task in the implementation of the
Community return policy.

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2.

OBJECTIVE

The main objective of Community policy in the field of the EU external borders is to create an
integrated border management, which would ensure a high  and uniform level of control and
surveillance,  an  essential  prerequisite  for  an  area  of  freedom,  security  and  justice.  This
objective  requires,  as  foreseen  by  Article  62  (2)  (a)  of  the  Treaty,  the  establishment  of
common  rules  as  to  the  standards  and  procedures  to  be  followed  by  Member  States  when
controlling the external borders.

With  the  integration  of  the  Schengen  acquis  into  the  framework  of  the  EU,  such  common
rules on the control and surveillance of external borders already exist at Community level.

The common rules are applied at an operational level, by the competent national authorities of
the  Member  States,  who  form  part  of  the  area  without  internal  borders.  Experience  has,
however,  shown,  that  for  optimal  effectiveness,  it  is  not  sufficient  that  national  authorities
simply apply common rules, rather it is imperative that they apply those common rules in a
harmonised  way,  thus  ensuring  at  all  external  borders  an  equally  high  level  of  control  and
surveillance.  For this  reason,  it has  been  increasingly  recognised  that  Community  policy  on
control and surveillance of the external borders  would benefit from an increased co-operation
between the competent national authorities.

The  objective  of  this  Regulation  is,  thus,  to  render  more  effective  the  implementation  of
Community  policy  on  the  management  of  the  external  borders  by  better  co-ordinating  the
operational  co-operation  between  the  Member  States  via  the  creation  of  an  Agency.  The
mission  of  this  Agency  would  be  to  facilitate  the  application  of  existing  and  future
Community measures relating to the management of the external borders by ensuring the co-
ordination of Member States’ actions in the implementation of those measures.

The Agency  will therefore not be given a policy making  role, nor would it make legislative
proposals or exercise implementing powers within the meaning of Article 202 of the Treaty.
It shall simply assist Member States in implementing Community legislation in the fields of
control and surveillance of the external borders and removal of third-country nationals.

The  Agency  shall  for  this  purpose  develop  and  apply  guidelines,  inter  alia,  on  training  of
border guards, but such guidelines will have the character of “soft law” only.

Community  legislation  on  control  and  surveillance  of  the  external  borders  and  removal  of
third-country  nationals  shall,  of  course,  continue  to  be  created  in  accordance  with  the
Community method.

The Commission  will  be  represented  on  the  Agency’s  Management  Board  and  will  provide
any relevant advice and guidance, where Community legislation may be concerned.

The  Agency’s  activities  will  be  purely  supplementary  to  those  of  the  national  services  of
Member States responsible for control and surveillance of the external borders and removal of
third- country nationals.

The main tasks of the Agency are:

–  Co-ordination of the operational co-operation between Member States in the field

of control and surveillance of the external borders.

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–  Rendering assistance to Member States on training of their national border guards
by providing training at European level for national instructors of border guards,
as well as holding seminars and offering additional training to officers of national
border guards.

–  Carrying out of general and tailored risk assessments.

–  Follow-up on developments  in research  relevant  for  the  control  and  surveillance

of the external borders.

–  Rendering assistance to Member States  confronted with circumstances requiring

increased operational and technical assistance at the external borders.

–  Co-ordination of operational co-operation between Member States on removal of

third-country nationals illegally residing in Member States.

The tasks listed above are essentially similar to those of the Common Unit.

In  executing  its  duties,  the  agency  should  co-operate  with  and  take  account  of  the  work  of
other services involved in controls at the external border, in particular customs who have the
main responsibility for the control of goods at the external borders. In this respect, and in the
light  of  the  recent  Communication  on  the  role  of  customs  in  the  integrated  management  of
external  borders  there  should  be  periodic  reviews  of  possible  synergies  between  the  work
carried out by the agency and that carried out by customs and other services operating at the
frontier.

On  the  basis  of  the  experiences  derived  from  this  Agency,  the  Commission  can  proposeto
widen the scope of the Agency’s tasks to encompass other matters related to the management
of the external borders.

As can be seen from the list of tasks, the Agency will take over the activities that are today
covered  by  various  projects  on  the  development  of  a  common  integrated  risk  assessment
model  (CIRAM),  a  common  core  curriculum  for  border  guards’  training  and  research  in
technologies relevant for control and surveillance of the external borders respectively.

This is done, because these activities are horizontal matters at the very core of the concept of
integrated  management  of  the  external  borders.  They  are  not  linked  to  a  particular  type  of
border,  and  they  should  accordingly  be  managed  centrally  in  order  to  ensure  the  coherence
and the uniformity of the concepts and criteria to be applied in all the Member States.

The  creation  of  an  Agency  tasked  with  co-ordinating  the  operational  aspects  of  control  and
surveillance  of  the  external  borders  constitutes  a  concrete  and  important  step  towards
achieving  solidarity  between  Member  States  in  the  field  of  the  management  of  the  external
borders.

The  Agency  will  thus  set  up  and  keep  centralised  records  of  technical  border  control
equipment,  that  Member  States  would  be  willing  to  put  at  the  disposal  of  each  other  on  a
temporary basis following a needs and risks assessment carried out by the Agency.

The Agency will itself acquire technical equipment for its experts, but this equipment can also
be put at the disposal of Member States participating in joint operations and pilot projects. In
this way the agency will make a really significant contribution with regard to burden sharing.

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One of the main  advantages of establishing  a  centralised  structure  such  as  an  agency  in  the
field of operational border management would be the improved ability to assist in tackling a
possible critical situation at the external borders at European level.

As  can  be  seen  from  the  recent  past,  such  crises  are  bound  to  occur  from  time  to  time,
especially in the Mediterranean. Large numbers of illegal immigrants trying to cross the same
external borders area of the European Union under conditions requiring special  efforts from
the  Member  State(s)  responsible  for  guarding  that  particular  external  border,  require  co-
ordination and co-operation not just at local or regional, but at European level.

In these cases the Agency could assist the affected Member States on co-ordination matters.
The  agency  could  also  temporarily  deploy  its  experts  with  equipment  to  support  the
competent national authorities.

3.

IMPLEMENTATION

The Agency shall co-operate directly with Member States and co-ordinate all joint operations
and pilot projects at the external borders.

The  Agency  shall  establish  its  own  specialised  branches  responsible  for  dealing  with  the
specific aspects of control and surveillance of land, air, and maritime borders by transforming
the existing, more informal, centres’ structure into a Community structure.

The specialised branches are, as local offices of the Agency, an integrated part of structure of
the Agency. They shall report to and take instructions from the Agency.

Member States may submit proposals for joint operations and pilot projects to the Agency for
evaluation  and  approval.  When  deciding  on  the  proposals,  the  Agency  shall  emphasise  on
their relevance, compatibility and added  value.  In  addition, the Agency may  decide itself to
launch initiatives for joint operations and pilot projects with the Member States. The Agency
operates  through  its  specialised  branches  for  the  operational  organisation  of  such  joint
operations and pilot projects.

It should be stressed that the staff of the Agency, including the national experts detached by
Member States, as a starting point, does not have any law enforcing competencies in Member
States and consequently does not carry out actual controls at the external borders.

As for the funding of operations, the Agency  may  decide to co-finance joint  operations and
pilot  projects  proposed  and  carried  out  by  Member  States.  It  shall  evaluate  the  results  of
operations and projects and make a comparative analysis thereof with a view to enhancing the
quality of future operations.

The  horizontal  matters  (training  for  border  guards,  risk  analysis  and  follow-up  on  research)
will be carried out by the Agency alone.

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

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As  mentioned  above,  the  Agency  can  assist  Member  States  confronted  with  circumstances
requiring  increased  technical  and  operational  assistance  at  the  external  borders  on  co-
ordination matters. It can also deploy its own experts and technical equipment in the Member
State(s)  concerned.  However,  the  experts  will  have  a  purely  consultative  role  and  not
participate actively in strictly law enforcing activities.

4.

FUNDING

The  Agency  may  co-finance  joint  operations  and  pilot  projects  at  the  external  borders  with
grants from its budget in accordance with the Agency’s Financial Regulation. The Agency, in
its  proposal  for  the  annual  working  programme,  will  be  able  to  identify  some  of  these
operations and projects, and invite Member States to participate in their implementation.

5.

CHOICE OF COMMUNITY STRUCTURE

The  choice  of  establishing  an  agency  in  the  field  of  management  of  the  operational  co-
operation  at  the  external  borders  is  justified  by  the  clear  need  for  creating  an  independent,
specialised  Community  operational  structure,  as  foreseen  by  the  Thessaloniki  European
Council in order to improve the operational co-operation between Member States.

When settling for the option of establishing an agency, the Commission has emphasised the
fact,  that  the  Agency  will  be  in  a  better  position  than  even  the  Commission  itself  to
accumulate the highly technical know-how on control and surveillance of the external borders
that will be necessary, if the Agency shall give an added value to the operational co-operation
in  its  field.  Moreover,  the  establishment  of  an  Agency  is  expected  to  lead  to  increased
visibility for the management of external borders in the public and cost-savings with regard to
the operational co-operation falling under its competence.

The present proposal for a Regulation establishing a European Agency for the Management of
the  operational  co-operation  at  the  External  Borders  has  been  drafted  with  account  to  the
White  Paper  on  European  Governance7  from  25  July  2001,  the  Meta-Evaluation  on  the
Community  Agency  System8  carried  out  by  the  Commission,  the  Communication  from  the
Commission  on  the  operating  framework  for  the  European  Regulatory  Agencies9,  and  the
Commission Regulation of 23 December 2002 on the framework Financial Regulation for the
bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the
Financial Regulation applicable to the general budget of the European Communities10.

In  this  framework,  specific  attention  should  be  paid,  besides  standard  questions  on  the
efficiency  and  effectiveness  of  the  Agency,  to  issues  such  as  coherence  with  Community
policy, the actual contribution of the Agency to the delivery of such a policy, the added value
provided by the Agency as an organisational form of implementation of Community policy,
the longer-term impact of the Agency’s activities on its final beneficiaries (i. e. the national
competent  authorities  of  Member  States).  A  more  formal  analysis  to  that  end  will  be
undertaken in parallel with the legislative process.

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COM(2001) 428 final
Final Report of the Commission of 15 September 2003
COM(2002) 718 final
Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002

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The  Agency  established  by  this  Regulation  is  a  regulatory  one  tasked  with  the  mission  of
rendering assistance to Member States in implementing Community legislation in this field by
co-ordinating operational aspects of co-operation at the external borders.

6.

CHOICE OF THE LEGAL BASIS

Article  66  of  the  Treaty  establishing  the  European  Community  is  the  legal  basis  of  this
Regulation whose immediate objective is to support the progressive establishment of an area
of  freedom,  security  and  justice  via  the  reinforcement  of  the  administrative  co-operation
between the relevant departments of each Member State and the Commission concerning the
implementation  of  the  Schengen  acquis  on  control  and  surveillance  of  the  external  borders
and on return.

As the legal basis for the proposal for a Regulation is under Title IV of the Treaty establishing
the European Community, it is affected by the “variable geometry” arising from the Protocols
on  the  positions  of  the  United  Kingdom,  Ireland  and  Denmark.  The  Community  policy  on
integrated management of the  external borders is Schengen acquis, and the present proposal
for a Regulation consequently builds upon the Schengen acquis. Consideration must therefore
be given to certain consequences arising from the various Protocols.

United Kingdom and Ireland

According  to  Articles  4  and  5  of  the  Protocol  integrating  the  Schengen  acquis  into  the
framework  of  the  European  Union,  “Ireland  and  the  United  Kingdom  of  Great  Britain  and
Northern  Ireland,  which  are  not  bound  by  the  Schengen  acquis,  may  at  any  time  request  to
take part in some or all of the provisions of the acquis.”

This  proposal  constitutes  a  development  of  the  Schengen  acquis,  in  which  the  United
Kingdom and Ireland do not take part, in accordance with Council Decision 2000/365/EC of
29 May  2000  concerning the request of  the  United  Kingdom  of  Great  Britain  and  Northern
Ireland, and Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request
to  take  part  in  some  of  the  provisions  of  the  Schengen  acquis.  The  United  Kingdom  and
Ireland are therefore not taking part in its adoption and are not bound by it or subject to  its
application.

Denmark

Under the Protocol on the Position of Denmark annexed to the Treaty on European Union ,
Denmark does not take part in the adoption by the Council of measures pursuant to Title IV of
the  Treaty  establishing  the  European  Community,  with  the  exception  of  “measures
determining the third countries whose nationals must be in possession of visas when crossing
the external borders, or measures relating to a uniform format for visas” (former Article 100c
of the Treaty establishing the European Community).

As these proposals constitute a development of the Schengen acquis and following Article 5
of  the  Protocol,  “Denmark  shall  decide  within  a  period  of  6  months  after  the  Council  has
decided on a proposal or initiative to build upon the Schengen acquis under the provisions of
Title IV of the Treaty establishing the European Community, whether it will implement this
decision in its national law”.

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Norway and Iceland

In  accordance  with  Article  6  first  indent  of  the  Schengen  Protocol,  an  Agreement  has  been
signed on 18 May 1999 between the Council, Norway and Iceland in order to associate those
two  countries  with  the  implementation,  application  and  development  of  the  Schengen
acquis11.

Article  1  of  the  Agreement  provides  that  Norway  and  Iceland  are  to  be  associated  with  the
activities of the EC and the EU in the fields covered by the provisions referred to in Annexes
A (provisions of the Schengen acquis) and B (provisions of European Community acts which
have  replaced  corresponding  provisions  of  - or  were  adopted  pursuant  to  - the  Schengen
Convention) to the Agreement and their further development.

According to Article 2 of the Agreement, the provisions of all acts or measures taken by the
European  Union  amending  or  building  upon  the  Schengen  acquis  (Annex  A,  B)  shall  be
implemented and applied by Norway and Iceland.

The  present  proposal  builds  upon  the  Schengen  acquis  as  defined  in  Annex  A  of  the
Agreement.

The matter must therefore be discussed in the “Mixed Committee” provided for in Article 4 of
the  Agreement  to  allow  Norway  and  Iceland  “to  explain  the  problems  they  encounter  in
respect  of”  the  measure  and  “to  express  themselves  on  any  questions  concerning  the
development of provisions of concern to them or the implementation thereof.”

Acceding States

Since the initiative constitutes an act building upon the Schengen acquis or otherwise related
to  it  within  the  meaning  of  Article  3(1)  of  the  Act  of  Accession,  it  shall  apply  in  the  new
Member States from accession onwards.

7.

SUBSIDIARITY AND PROPORTIONALITY

Title  IV  on  visas,  asylum,  immigration  and  other  policies  related  to  the  free  movements  of
persons creates a Community responsibility in these fields. This responsibility must, however,
be  exercised  in  accordance  with  Article  5  of  the  Treaty  establishing  the  European
Community; i. e. if and in so far as action taken at Community level offers clear advantages,
by  reason  of  its  scale  or  effects,  over  action  at  Member  State  level.  The  proposal  for  a
Regulation satisfies these criteria.

Subsidiarity

Individual national  administrations are  not  able  to  establish  a  comprehensive  and  integrated
European management of the operational co-operation in the fields of control of the external
borders and removal of third-country nationals from the  territories of the  Member States. A
Community structure is therefore necessary for improving the operational co-operation among
them.  The  actual  carrying  out  of  the  joint  operations  and  pilot  projects  are  reserved  to  the
Member States.

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OJ L 176 of 10.7.1999, p. 35

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Proportionality

The Regulation establishes a Community Agency providing co-ordination of operational co-
operation,  financial  support,  as  well  as  training  and  other  horizontal  matters  in  the  field  of
control and surveillance of the external borders and removal of third-country nationals to the
Member States. As a Community structure, the Agency must be subject to clear and uniform
rules contained in a Council Regulation, which is the appropriate instrument for establishing
Community Agencies.

8.

COMMENTARY ON ARTICLES

Article 1

The  Article  deals  with  the  establishment  of  the  Agency.  It  sets  down  the  objective  of  the
Agency.

Article 2

The Article describes the main tasks of the Agency.

Article 3

The Article describes the competencies of the Agency with regard to joint operations and pilot
projects at the external borders.

By  “joint  operation”  is  meant  operational  activities  carried  out  by  two  or  more  Member
States, and possibly in co-operation with the Agency, with a view to strengthen surveillance
and control at a section of the external borders.

By  “pilot  project”  is  meant  operational  activities  related  to  surveillance  and  control  of  the
external  borders  with  a  view  to  examining  the  feasibility  of  applying  a  certain  operational
methodology and/or certain technical equipment.

The  operational  activities  covered  by  Article  3  would  correspond  to  those  in  the  field  of
external border control and surveillance presently co-financed under the ARGO programme.
The ARGO programme will be replaced by the Agency in so far as operational co-operation
at external borders is concerned.

The Agency shall on the basis of proposals from Member States select operations and projects
for co-funding and co-ordinate these projects. It may also itself launch projects and operations
in coo-operation with Member States. The Agency may decide to put its technical equipment
at the  disposal of  Member States  participating in projects and operations.  The  Agency  shall
evaluate the  results of all operations  and  projects  and  publish  a  comparative  analysis  of  the
results in its general annual report to the European Parliament, the Council, the Commission,
the European Social Committee and the Court of Auditors, cf. Article 17 (2) (b).

Article 4

According to the Article, the Agency shall carry out general and tailored risk assessments.

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General  risk  assessments  are  used  to  determine  the  risks  with  regard  to  all  the  EU  external
borders  posed  by  illegal  immigration,  whereas  the  tailored  risk  analyses  focus  on  local
particularities  of  a  certain  part  of  the  external  borders  or  on  particular  trends  in  the  modus
operandi of illegal immigration. An example of what risk assessments can entail, could be the
assessment of the risk of illegal immigrants trying to cross a particular section of the external
border, taking into account information on the surveillance of that section of the border, the
geographical  features  of  the  area,  as  well  as  intelligence  on  the  modus  operandi  of  illegal
immigration in the area in question. On the basis of an analysis of these informations, possible
remedies  should  be  identified.  As  risk  assessment  is  a  horizontal  task  at  the  core  of  the
concept  of  integrated  management  of  the  external  borders,  the  Agency  will  take  over  the
responsibility  for  this  task  from  the  Finnish  Risk  Analysis  Centre  (RAC).  In  developing  a
common  integrated  risk  assessment  model,  the  Agency  shall  build  upon  the  already
established CIRAM.

Article 5

According  to  the  Article,  the  Agency  shall  be  responsible  for  the  training  of  national
instructors  and  offer  seminars  and  additional  training  for  officers  of  the  national  border
guards. As this is a horizontal task at the core of the concept of integrated management of the
external borders, the Agency will take over the responsibility for this task from the Austrian
Ad-hoc Centre for Border Guard Training (ACT). In developing a common core curriculum
for  border  guards’  training,  the  Agency  shall  build  upon  the  already  established  Common
Core Curriculum. The common core curriculum would contain guidelines on how to carry out
the 
lessons  on  enforcement
measures/sanctions,  control  activities,  investigation  activities,  administration,  operations
equipment and methods and personality development.

tasks  of  a  border  guard  officer  focusing  e.  g.  on 

Article 6

According to the Article, the Agency shall closely follow developments in scientific research
relevant for the control and surveillance of external borders.

As examples of types of research that the Agency should follow up on, could be mentioned
research  in  devices  for  detection  of  illegal  immigrants  hiding  in  cars,  lorries  or  trains,  and
independent scientific studies of patterns in illegal immigration.

It shall disseminate the information it obtains to the Commission and the Member States, e. g.
through seminars and reports.

Article 7

As a measure to attain a higher degree of solidarity between Member States in this field, the
Agency shall set up and keep centralised records of technical equipment of Member States for
control and surveillance of the external borders. On the basis of a needs and risks assessment,
the Agency can request the Member State, which owns the technical equipment in question, to
put it at the disposal of another Member State for a temporary period.

Article 8

Member  States  confronted  with  circumstances  requiring  increased  technical  and  operational
assistance when controlling the external borders may request the Agency for assistance.

11

The  Agency  can    organise  the  appropriate    operational  and  technical  assistance,    This  may
consist in assistance on co-ordination with other Member States and deployment of experts on
control and surveillance of the external borders together with their technical equipment. The
experts  can  only  support  the  competent  national  authorities  and  have  no  law  enforcing
competencies in the Member State(s) in which they are deployed.

It should be underlined, that the “circumstances requiring increased technical and operational
assistance”  of  Article  8  of  this  Regulation  do  not  correspond  to  the  “emergency  situation
characterised by a sudden inflow of nationals of third countries” mentioned in Article 64 (2)
of  the  Treaty.  Moreover,  whereas  the  provisional  measures  adopted  by  the  Council  with
reference to Article 64  (2) are of  a  legislative and political  nature,  the  actions  that  could  be
taken by the Agency under Article 8, are obviously limited to purely operational and technical
assistance on the ground in order to re-establish a high level of control and surveillance of the
section of the external border in question.

Article 9

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

Article 10

This  Article  authorises  the  Agency  to  set  up  information  exchange  systems  with  the
Commission and the Member States. The Agency may for this purpose decide to use already
existing facilities, such as the ICONET system.

Article 11

The  Agency  should  be  able  to  exchange  strategic  non-personal  information  both  with
EUROPOL (acting within the third pillar of the Community framework and tasked with the
fight  against  illegal  immigration  networks  and  trafficking  in  human  beings)  and  relevant
competent  authorities  of  third  countries,  as  well  as  international  organisations,  such  as
Interpol.  Such  information  exchange  is  deemed  vital  for  the  Agency’s  ability  to  gather  the
necessary intelligence for its risk assessments.  Already today, EUROPOL is heavily involved
in the work done in this field in the framework of the Common Unit.

As  mentioned  above,  the  information  exchanged  between  the  Agency  and  other  relevant
actors would not contain personal data, but focus on general information on recent trends in
and modus operandi of illegal immigration.

The Article consequently authorises the Agency to co-operate on exchange of strategic non-
personal  information  with  the  above  mentioned  actors.  The  information  exchanged  must  be
relevant for the tasks of the Agency.

Article 12

The Article deals with the legal status of the agency and its location.

12

Article 13

The specialised branches provided for in this Article will build upon the existing land, air, and
maritime border centres set up by Member States in the framework of the External  Borders
Practitioners’  Common  Unit,  which  will  then  become  integrated  parts  of  the  Agency.  The
specialised  branches  of  the  Agency  shall  be  staffed  with  national  experts  seconded  by
Member States, in so far as possible drawing on the expert staff of the existing border centres.

Article 14

The Article contains the general rules concerning the staff of the Agency.

Article 15

The Article deals with the privileges and immunities conferred on the staff of the Agency.

Article 16

The Article stipulates the liability of the Agency.

Article 17

The Article deals with the powers of the Management Board of the Agency.

Article 18

The Article describes the composition of the Management Board of the Agency.

Article 19

The Article deals with the chairmanship of the Management Board of the Agency.

Article 20

The Article contains the provisions on meetings of the Management Board of the Agency.

Article 21

The Article contains the provisions on voting in the Management Board of the Agency.

Article 22

The Article describes the functions and powers of the Executive Director of the Agency.

Article 23

The  Article  sets  out  the  procedure  for  appointing  and  dismissing  the  senior  officials  of  the
Agency as well as describes the general qualifications they shall meet. It defines the terms of
office applicable to the senior officials.

Article 24

The Article deals with translation of documents and correspondence of the Agency.

13

Article 25

The  Article  deals  with  transparency  of  the  Agency  and  the  rules  applicable  to  its
communication.

Article 26

The Article deals with the budget of the Agency.

Article 27

This Article deals with the implementation and control of the budget of the Agency.

Article 28

The Article provides for combating fraud.

Article 29

The Article contains an evaluation clause according to which the Agency shall submit itself to
an  independent  external  evaluation  within  three  years  from  the  date  it  has  taken  up  its
responsibilities and every five years thereafter.

Article 30

The Article deals with the adoption of the Agency’s financial rules.

Article 31

The  Article  contains  the  date  of  entry  into  force  of  the  Regulation.  It  prescribes  that  the
Agency will take up its responsibilities from 1 January 2005.

14

2003/0273 (CNS)

Proposal for a

COUNCIL REGULATION

Establishing a European Agency for the Management of Operational Co-operation at
the External Borders

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article
66 thereof,

Having regard to the proposal from the Commission12,

Having regard to the opinion of the European Parliament13,

Having regard to the opinion of the European Economic and Social Committee14,

Having regard to the opinion of the Committee of the Regions15,

Whereas:

(1) 

(2) 

(3) 

12

13

14

15
16 

Community  policy  in  the  field  of  the  EU  external  borders  aims  at  an  integrated
management ensuring  a uniform and high level of control and surveillance, which is a
necessary corollary to the free movement of persons within the European Union and a
fundamental component of an Area of Freedom, Security and Justice. To this end, the
establishment  of  common  rules  on  standards  and  procedures  for  the  control  of  the
external borders is foreseen;

The efficient implementation of the common rules requires an increased co-ordination
of the operational co-operation between the Member States;

Taking  into  account  the  experiences  of  the  External  Borders  Practitioners’  Common
Unit16, acting within the Council, a specialised expert body tasked with improving the
co-ordination  of  operational  co-operation  between  Member  States  in  the  field  of
external  border  management  should  therefore  be  established  in  the  shape  of  a
European  Agency  for  the  Management  of  Operational  Co-operation  at  the  External
Borders;

OJ C […], […], p. […].
OJ C […], […], p. […].
OJ C […], […], p. […].
OJ C […], […], p. […].
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  (COM(2002)  233
final)

15

                                                
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

The  Agency  should  facilitate  the  application  of  existing  and  future  Community
measures  relating  to  the  management  of  the  external  borders  by  ensuring  the  co-
ordination of Member States’ actions in the implementation of those measures;

Based on a common integrated risk analysis model, the Agency should carry out risk
analyses  in  order  to  provide  the  Community  and  the  Member  States  with  adequate
information to allow for appropriate measures to be taken or to tackle identified threats
and risks in view of improving the integrated management of external borders;

The  Agency  should  provide  training  at  European  level  for  national  instructors  of
border guards and additional training and seminars related to control and surveillance
at the external borders and removal of third country nationals illegally resident in the
Member States for officers of the competent national services;

The Agency should follow up on the developments in scientific research relevant for
its field and disseminate this information to the Commission and the Member States;

The  Agency  should  manage  lists  of  technical  equipment  provided  by  the  Member
States, thereby contributing to the “pooling” of material resources;

The Agency should also support Member States in circumstances requiring increased
technical and operational assistance at the external borders;

In  most  Member  States,  the  operational  aspects  of  return  of  third-country  nationals
illegally residing in the Member States fall under the competencies of the authorities
responsible  for  controlling  the  external  borders.  As  there  is  a  clear  added  value  in
performing  these  tasks  at  European  level,  the  Agency  should,  subject  to  the
Community return policy,  accordingly co-ordinate and organise  return  operations of
Member States and develop best practices on the acquisition of travel documents and
return of third-country nationals from the territories of the Member States;

(11)  For  the  purpose  of  fulfilling  its  mission,  the  Agency  should  co-operate  on  the
exchange  of  strategic  non-personal  information  with  Europol  and  the  competent
authorities of third countries and the international organisations competent in matters
covered by this Regulation in the framework of working arrangements concluded with
those bodies in accordance with the relevant provisions of the Treaty;

(12)  Building  upon  the  experiences  of  the  External  Borders  Practitioners’  Common  Unit
and the centres specialised in the different aspects of control and surveillance of land,
air, and maritime borders respectively, which have been set up by Member States, the
Agency  may  itself  create  specialised  branches  responsible  for  dealing  with  land,  air,
and maritime borders;

(13)  The  Agency  should  be  independent  in  relation  to  technical  matters  and  have  legal,
administrative and financial autonomy. To that end, it is necessary and appropriate that
it  should  be  a  Community  body  having  legal  personality  and  exercising  the
implementing powers, which are conferred to it by this Regulation;

(14) 

In order to guarantee the full autonomy and independence of the Agency, it should be
granted an  autonomous budget  whose  revenue  comes essentially  from  a  contribution
from  the  Community.  The  Community  budgetary  procedure  should  be  applicable  as
far as the Community contribution and any  other subsidies  chargeable to the  general

16

budget  of  the  European  Union  are  concerned.  The  auditing  of  accounts  should  be
undertaken by the Court of Auditors;

(15)  Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25
May  1999  concerning  investigations  conducted  by  the  European  Anti-Fraud  Office
(OLAF)17 should apply without restriction to the Agency, which should accede to the
Inter-institutional Agreement of  25 May  1999  between  the  European  Parliament,  the
Council  of  the  European  Union  and  the  Commission  of  the  European  Communities
concerning internal investigations by the European Anti-Fraud Office (OLAF)18;

(16)  Regulation  (EC)  No  1049/200119  regarding  public  access  to  European  Parliament,

Council and Commission documents should apply without restriction to the Agency;

(17)  The Commission and the Member States should be represented within a Management
Board in order to control effectively the functions of the Agency. This Board should
be  entrusted  with  the  necessary  powers  to  establish  the  budget,  verify  its  execution,
adopt  the  appropriate  financial  rules,  establish  transparent  working  procedures  for
decision making by the Agency and appoint the Executive Director;

(18)

In  accordance  with  the  principles  of  subsidiarity  and  proportionality,  as  set  out  in
Article  5  of  the  Treaty,  the  objectives  of  the  proposed  action  cannot  be  sufficiently
achieved by the Member States and can therefore, by  reason of the need for creating
an  integrated  management  of  the  external  borders  of  the  Member  States  of  the
European  Union,  be  better  achieved  by  the  Community.  This  Regulation  confines
itself  to  the  minimum  required  in  order  to  achieve  those  objectives  and  does  not  go
beyond what is necessary for that purpose;

(19) Bearing  in  mind  the  constantly  changing  nature  of  the  challenges  to  efficient
management  of  the  external  borders,  a  possible  gradual  widening  of  the  scope  of
action  of  the  Agency  should  be  provided  for.  Such  a  wider  scope  could  e.  g.
encompass  tasking  the  Agency  with  the  carrying  out  of  inspections  at  the  external
borders  and  the  facilitation  of  operational  co-operation  with  relevant  third  countries
and international organisations, taking into account the institutional framework of the
European  Community. This Regulation should  apply  to  any  other  area  related  to  the
management of the external borders on a basis of a future proposal in accordance with
the Treaty establishing the European Community;

(20)

Recalling that efficient control and surveillance of the external borders is a matter of
the  utmost  importance  to  Member  States  regardless  of  their  geographical  position.
Accordingly  there  is  a  need  for  promoting  solidarity  between  Member  States  in  the
field  of  external  border  management.  The  establishment  of  the  Agency,  assisting
Member  States  with  implementing  the  operational  aspects  of  external  border
management,  including  return  of  third-country  nationals  illegally  residing  in  the
Member States, constitutes an important step in this direction;

17

18
19 

OJ L 136 of 31.5.1999, p. 1
OJ L 136 of 31.5.1999, p. 15
OJ L 145 of 31.5.2001, p. 43

17

                                                
(21) As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of  the
Schengen  acquis  within  the  meaning  of  the  Agreement  concluded  by  the  Council  of
the  European  Union  and  the  Republic  of  Iceland  and  the  Kingdom  of  Norway
concerning  the  association  of  those  States  with  the  implementation,  application  and
development of the Schengen acquis, which fall within the area referred to in Article
1, points A and E of Council Decision 1999/437/EC20 on certain arrangements for the
application of that Agreement;

(22)

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

(23)  This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in
which  the  United  Kingdom  does  not  take  part,  in  accordance  with  Council  Decision
2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great
Britain  and  Northern  Ireland  to  take  part  in  some  of  the  provisions  of  the  Schengen
acquis21;  the  United  Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not
bound by it or subject to its application;

(24)  This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in
which Ireland does not take part, in accordance with Council Decision 2002/192/EC of
28 February 2002 concerning Ireland's request to take part in some of the provisions of
the  Schengen  acquis22;  Ireland  is  therefore  not  taking  part  in  its  adoption  and  is  not
bound by it or subject to its application;

(25)

(26)

This  Regulation  constitutes  an  act  building  on  the  Schengen  acquis  or  otherwise
related to it within the meaning of Article 3(1) of the Act of Accession;

This Regulation respects the fundamental rights and observes the principles recognised
by  Article  6(2)  of  the  Treaty  on  European  Union  and  reflected  in  the  Charter  of
Fundamental Rights of the European Union;

20 
21
22 

OJ L 176 of 10.7.1999, p. 31
OJ L 131 of 1.6.2000, p. 43
OJ L 64 of 7.3.2002, p. 20

18

                                                
HAS ADOPTED THIS REGULATION:

CHAPTER I
Subject matter

Article 1
Establishment of the Agency

1. 

2. 

3. 

A European Agency for the Management of Operational Co-operation at the External
Borders  (the  Agency)  is  established  in  view  of  an  integrated  management  of  the
external borders of the European Union.

The  Agency  shall  facilitate  the  application  of  existing  and  future  Community
measures  relating  to  the  management  of  the  external  borders  by  ensuring  the  co-
ordination  of  Member  States'  actions  in  the  implementation  of  those  measures,
thereby contributing to an efficient, high and uniform level of control on persons and
surveillance of the external borders of the European Union.

The  Agency  shall  also  provide  the  Commission  and  the  Member  States  with  the
necessary technical support and expertise in the management of the external borders
and promote solidarity between Member States.

CHAPTER II
Tasks

Article 2
Main tasks

The Agency shall perform the following tasks:

a)

b)

c)

d)

e)

f)

co-ordinate the operational co-operation between Member States in the field of
control and surveillance of the external borders.

assist Member States on training of national border guards.

carry out risk assessments.

follow  up  on  the  development  of  research  relevant  for  the  control  and
surveillance of the external borders.

assist  Member  States  in  circumstances  requiring  increased  technical  and
operational assistance at the external borders.

co-ordinate  operational  co-operation  between  Member  States  in  the  field  of
removal of third-country nationals illegally residing in the Member States.

19

1.

2.

3.

4.

Article 3
Joint operations and pilot projects at the external borders

The  Agency  shall  evaluate,  approve  and  co-ordinate  proposals  for  joint  operations
and pilot projects made by Member States.

The Agency may itself launch initiatives for joint operations and pilot projects in co-
operation with Member States.

It  may  also  decide  to  put  its  technical  equipment  at  the  disposal  of  Member  States
participating in the joint operations or pilot projects.

The Agency may operate through its specialised branches provided for in Article 13,
for the practical organisation of joint operations and pilot projects.

The Agency  shall  evaluate  the  results of  the  joint  operations  and  pilot  projects  and
make  a  comprehensive  comparative  analysis  of  those  results  in  view  of  enhancing
the quality, coherence and efficiency of future operations and projects to be included
in its annual report provided for in Article 17 (2) (b).

The  Agency  may  decide  to  co-finance  the  operations  and  projects  referred  to  in
paragraph  1,  with  grants  from  its  budget  in  accordance  with  the  financial  rules
applicable to the Agency.

Article 4
Risk assessment

The Agency shall develop and apply a common integrated risk analysis model.

It shall prepare both general and tailored risk assessments to be submitted to the Council and
the Commission.

The  Agency  shall  incorporate  the  results  of  a  common  integrated  risk  analysis  model  in  its
development  of  the  common  core  curriculum  for  border  guard’s  training  referred  to  in
Article 5.

Article 5
Training

The Agency shall establish and further develop a common core curriculum for border guards’
training and provide training at European level for instructors of the national border guards of
Member States.

The Agency shall also offer additional training courses and seminars on subjects related to the
control  and  surveillance  of  the  external  borders  and  return  of  third  country  nationals  for
officers of the competent national services of Member States.

20

Article 6
Follow-up to research

The  Agency  shall  follow  up  on  the  developments  in  research  relevant  for  the  control  and
surveillance of the external borders and disseminate this information to the Commission and
the Member States.

Article 7
Management of technical equipment

The Agency shall set up and keep centralised records of technical equipment for control and
surveillance of the external borders belonging to Member States, which they, on a voluntary
basis, are willing to put at the disposal of each other for a temporary period following a needs
and risks assessment carried out by the Agency.

Article 8

Support to Member States in circumstances requiring increased technical and  operational
assistance at the external borders

1.

Without  prejudice  to  Article  64  (2)  of  the  Treaty  establishing  the  European
Community,  one  or  more  Member  States  confronted  with  circumstances  requiring
increased  technical  and  operational  assistance  when  implementing  their  obligations
with  regard  to  control  and  surveillance  of  the  external  borders  may  request  the
Agency  for  assistance.  The  Agency  can  organise  the  appropriate  technical  and
operational assistance for the requesting Member State(s).

2.

Under the circumstances referred to in paragraph 1, the Agency can:

a) 

b) 

assist on matters of co-ordination between two or more Member States with a
view to tackling the problems encountered at the external borders;

deploy its experts to support the competent national authorities of the Member
State(s) involved.

The  Agency  may  acquire  technical  equipment  for  control  and  surveillance  of  the
external borders to be used by its experts for the  duration of the  deployment  in the
Member State(s) in question.

Article 9
Return co-operation

The  Agency  shall  subject  to  the  Community  return  policy  co-ordinate  or  organise
joint return operations of Member States. The Agency may use Community financial
means available in the field of return.

The Agency shall  identify best practices on the acquisition of travel documents and
the  removal  of  illegally  residing  third-country  nationals  from  the  territories  of  the
Member States.

3.

1.

2.

21

Article 10
Information exchange systems

The  Agency  may  take  all  necessary  measures  to  facilitate  the  exchange  of  information
relevant for its tasks with the Commission and the Member States.

Article 11
Exchange of strategic non-personal information with Europol, international organisations
and competent authorities of  third countries

The  Agency  may  co-operate  on  the  exchange  of  strategic  non-personal  information  with
Europol,  the  competent  authorities  of  third  countries  and  the  international  organisations
competent in matters covered by this Regulation in the framework of working arrangements
concluded with those bodies, in accordance with the relevant provisions of the Treaty.

CHAPTER III
Structure

Article 12
Legal status and location

The Agency shall be a body of the Community. It shall have legal personality.

In  each  of  the  Member  States,  the  Agency  shall  enjoy  the  most  extensive  legal  capacity
accorded  to  legal  persons  under  their  laws.  It  may,  in  particular,  acquire  or  dispose  of
movable and immovable property and may be party to legal proceedings.

It shall be independent in relation to technical matters.

The Agency shall be represented by its Executive Director.

The seat of the Agency shall be at […].

Article 13
Specialised branches

The Agency shall evaluate the need for and decide the setting  up  of specialised  branches in
the Member States, subject to their consent.

The  specialised  branches  of  the  Agency  shall  develop  best  practices  with  regard  to  the
particular types of external borders for which they are responsible. The Agency shall ensure
the coherence and uniformity of such best practices.

Each specialised branch shall submit a detailed annual report to the Agency on its activities as
well as provide any other type of information relevant for the co-ordination of operational co-
operation.

22

Article 14
Staff

1.

2.

3.

The Staff Regulations of  officials of the  European  Communities,  the  Conditions  of
employment  of  other  servants  of  the  European  Communities  and  the  rules  adopted
jointly  by  the  institutions  of  the  European  Communities  for  purposes  of  the
application of those Staff Regulations and Conditions of employment shall apply to
the staff of the Agency.

The powers  conferred on the appointing  authority by  the  Staff  Regulations,  and  by
the Conditions of employment of other servants, shall be exercised by the Agency in
respect of its own staff.

The  Agency's  staff  shall  consist  of  a  limited  number  of  officials  and  of  national
experts  in the  field of  control and surveillance  of  the  external  borders  seconded  by
the Member States to carry out management duties. The remaining staff shall consist
of other employees recruited by the Agency as necessary to carry out its tasks.

Article 15
Privileges and immunities

The Protocol on the Privileges and  Immunities of  the European  Communities shall apply to
the Agency.

Article 16
Liability

1.

2.

3.

4.

5.

The contractual liability of the Agency shall be governed by the law applicable to the
contract in question.

The  Court  of  Justice  of  the  European  Communities  shall  have  jurisdiction  to  give
judgement pursuant to any arbitration clause contained in a contract concluded by the
Agency.

In  the  case  of  non-contractual  liability,  the  Agency  shall,  in  accordance  with  the
general  principles  common  to  the  laws  of  the  Member  States,  make  good  any
damage  caused  by  its  departments  or  by  its  servants  in  the  performance  of  their
duties.

The Court of Justice shall have jurisdiction in disputes relating to compensation for
the damage referred to in paragraph 3.

The  personal  liability  of  its  servants  towards  the  Agency  shall  be  governed  by  the
provisions  laid  down  in  the  Staff  Regulations  or  Conditions  of  employment
applicable to them.

23

1.

2.

3.

1.

Article 17
Powers of the Management Board

The Agency shall have a Management Board.

The Management Board shall:

a)

b)

c)

d)

e)

f)

g)

h)

appoint  the  Executive  Director  on  a  proposal  from  the  Commission  in
accordance with Article 23;

before  31  March  each  year,  adopt  the  general  report  of  the  Agency  for  the
previous year and forward it by 15 June at the latest to the European Parliament
the Council, the Commission, the European Economic and Social Committee,
the Court of Auditors. The general report shall be made public;

before  30  September  each  year,  and  after  receiving  the  opinion  of  the
Commission, adopt, by a three-quarters majority of its members, the Agency's
programme  of  work  for  the  coming  year  and  forward  it  to  the  European
Parliament,  the  Council,  the  Commission;  this  programme  of  work  shall  be
adopted  according  to  the  annual  Community  budgetary  procedure  and  the
Community  legislative  programme  in  relevant  areas  of  the  management  of
external borders;

establish procedures for making decisions related to the operational tasks of the
Agency by the Executive Director;

carry out its functions relating to the Agency's budget pursuant to Articles 25,
26 (3), and 29;

exercise disciplinary authority over the Executive Director and over the Deputy
Director, in agreement with the Executive Director;

establish its Rules of Procedure;

establish  the  organisational  structure  of  the  Agency  and  adopt  the  Agency's
staffing policy.

The  Management  Board  may  advise  the  Executive  Director  on  any  matter  strictly
related to strategic development of operational management of the external borders,
including follow-up to research as defined in Article 6 of this Regulation.4.
shall  forward  annually  to  the  budgetary  authority  any  information  relevant  to  the
outcome of the evaluation procedures.

It

Article 18
Composition of the Management Board

The  Management  Board  shall  be  composed  of 
two
representatives of the Commission. The Council shall appoint  the members  as well
as  their alternates who will represent them in  their absence. The Commission shall
appoint  its  representatives  and  their  alternates.  The  duration  of  the  terms  of  office
shall be four years. This term of office shall be extendable once.

twelve  members  and 

24

2.

1.

2.

1.

2.

3.

4.

5.

6.

1.

2.

The  Agency  shall  be  open  to  the  participation  of  European  third  countries,  which
have  entered  into  agreements  with  the  European  Community  whereby  they  have
adopted and are applying Community law in the field covered by this Regulation and
its  implementing  rules.  Under  the  relevant  provisions  of  these  agreements,
arrangements will be developed which shall, inter alia, specify the nature and extent
of, and the detailed rules for, the participation by these countries in the work of the
Agency, including provisions on financial contributions and staff.

Article 19
Chairmanship of the Management Board

The  Management  Board  shall  elect  a  Chairperson  and  a  Deputy  Chairperson  from
among 
the
Chairperson in the event of his/her being prevented from attending to his/her duties.

its  members.  The  Deputy  Chairperson  shall  ex-officio  replace 

The  term  of  office  of  the  Chairperson  and  Deputy  Chairperson  shall  expire  when
their  respective  membership  of  the  Management  Board  ceases.  Subject  to  this
provision,  the  duration  of  the  terms  of  office  of  the  Chairperson  or  Deputy
Chairperson shall be two years. These terms of office shall be extendable once.

Article 20
Meetings

Meetings of the Management Board shall be convened by its Chairperson.

The Executive Director of the Agency shall take part in the deliberations.

The Management Board shall hold at least two ordinary meetings a year. In addition
it shall meet at the instance of the Chairperson or at the request of at least one third
of its members.

The Management Board may invite any person whose opinion can be of interest to
attend its meetings as an observer.

The members of the Management Board may, subject to the provisions of its Rules
of Procedure, be assisted by advisers or experts.

The secretariat for the Management Board shall be provided by the Agency.

Article 21
Voting

Without prejudice to Article 17 (2) (c) and 23 (2), the Management Board shall take
its decisions by  an absolute majority of its members.

Each member  shall have one vote.  The Executive Director of the  Agency  shall  not
vote.  In  the  absence  of  a  member,  his/her  alternate  shall  be  entitled  to  exercise
his/her right to vote.

25

3.

1.

2.

3.

4.

.

1.

The  rules  of  procedure  shall  establish  the  more  detailed  voting  arrangements,  in
particular, the conditions for a member to act on behalf of another member as well as
any quorum requirements, where appropriate.

Article 22
Functions and powers of the Executive Director

The  Agency  shall  be  managed  by  its  Executive  Director,  who  shall  be  completely
independent in the performance of his/her duties. Without prejudice to the respective
competencies of the Commission and the Management Board, the Executive Director
shall neither seek nor take instructions from any government or from any other body.

The  European  Parliament  or  the  Council  may  invite  the  Executive  Director  of  the
Agency to report on the carrying out of his/her tasks.

The Executive Director shall have the following functions and powers:

a)

b)

c)

d)

e)

f)

to prepare and implement the decisions and programmes and activities adopted
by  the  Agency's  Management  Board  within  the  limits  specified  by  this
Regulation, its implementing rules and any applicable law.

to  take  all  necessary  steps,  including  the  adoption  of  internal  administrative
instructions  and  the  publication  of  notices,  to  ensure  the  functioning  of  the
Agency in accordance with the provisions of this Regulation.

to  prepare  each  year  a  draft  working  programme  and  a  report  activity  and
submit them to the Management Board.

to exercise in respect of the staff the powers laid down in Article 14 (2).

to draw up estimates of the revenues and expenditure of the Agency pursuant
to Article 26, and implement the budget pursuant to Article 27.

to  delegate  his/her  powers  to  other  members  of  the  Agency's  staff  subject  to
rules to be adopted in accordance with the procedure referred to in Article 17
(2) (g).

The  Executive  Director  shall  be  accountable  for  his  activities  to  the  management
board.

Article 23
Appointment of senior officials

The  Commission  shall  propose  candidates  for  the  post  of  the  Executive  Director
based  on  a  list  following  publication  of  the  post  in  the  Official  Journal  and  other
press or internet sites as appropriate.

26

2.

3.

4.

5.

1.

2.

1.

2.

3.

The Executive Director of the Agency shall be appointed by the Management Board
on  the  grounds  of  merit  and  documented  administrative  and  management  skills,  as
well  as  his/her  relevant  experience  in  the  field  of  management  of  the  external
borders. The Management Board shall  take its decision by  a  two-thirds majority of
all members with a right to vote.

Power  to  dismiss  the  Executive  Director  shall  be  with  the  Management  Board,
according to the same procedure.

The  Executive  Director  shall  be  assisted  by  a  Deputy  Executive  Director.  If  the
Executive Director is absent or indisposed, the Deputy Executive Director shall take
his/her place.

The Deputy Executive Director shall be appointed by the Management Board on the
grounds of merit and documented administrative and management skills, as well as
his/her relevant experience in the field of management of the external borders on the
proposal of the Executive Director. The Management Board shall take its decision by
a two-thirds majority of all members with a right to vote.

Power  to  dismiss  the  Deputy  Executive  Director  shall  be  with  the  Management
Board, according to the same procedure.

The terms of the offices of the Executive Director and the Deputy Executive Director
shall  be  five  years.  They  may  be  prolonged  by  the  Management  Board  once  for
another period of up to five years.

Article 24
Translation

Without  prejudice  to  decisions  taken  on  the  basis  of  Article  290  of  the  Treaty
establishing the European Community, the annual activity report and programme of
work  referred  to  in  Article  17(2)(b)  and  (c),  shall  be  produced  in  all  official
languages of the Community.

The translation services required for the functioning of the Agency shall be provided
by the Translation Centre for bodies of the European Union.

Article 25
Transparency and communication

Six months after the entry into force of the Regulation, the Agency shall be subject to
Regulation (EC) No 1049/2001 when handling applications for access to documents
held by it.

The Agency may communicate on its own initiative in the fields within its mission. It
shall  ensure  in  particular  that,  in  addition  to  the  publication  specified  in  Article
17(2)(b), the public and any interested party are rapidly given objective, reliable and
easily understandable information with regard to its work.

The Management Board shall lay down the practical arrangements for the application
of paragraphs 1 and 2.

27

4.

5.

Any natural or legal person shall be entitled to address himself/herself in writing to
the Agency in any of the languages referred to in Article 314 of the Treaty. He/she
has the right to receive an answer in the same language.

Decisions  taken  by  the  Agency  pursuant  to  Article  8  of  Regulation  (EC)  No
1049/2001 may give rise  to  the  lodging of  a  complaint  to  the  Ombudsman  or form
the  subject  of  an  action  before  the  Court  of  Justice  of  the  European  Communities,
under the conditions laid down in Articles 195 and 230 of the Treaty respectively.

CHAPTER IV
Financial requirements

Article 26
Budget

1.

The revenues of the Agency shall consist, without prejudice to other types of income,
of:

– 

– 

– 

– 

a subsidy from the Community entered in the general budget of the European
Union (Commission section);

a contribution from the third countries, which have become associated with the
implementation, application and development of the Schengen acquis;

fees for services provided;

any voluntary contribution from the Member States.

2.

3.

4.

5.

6.

The expenditure of the Agency shall include the staff,  administrative, infrastructure
and operational expenses.

The Executive Director shall draw up an estimate of the revenues and expenditure of
the Agency for the following financial year and shall forward it to the Management
Board together with an establishment plan.

Revenue and expenditure shall be in balance.

The  Management  Board  shall  adopt  the  draft  estimate,  including  the  provisional
establishment  plan  accompanied  by  the  preliminary  work  programme,  and  forward
them by 31 March, at the latest, to the Commission and to the third countries, which
have become associated with the implementation, application and development of the
Schengen acquis.

The estimate shall be forwarded by the Commission to the European Parliament and
the  Council  (hereinafter  referred  to  as  the  "budgetary  authority")  together  with  the
preliminary draft budget of the European Union.

28

7.

8.

9.

10.

11.

1.

2.

3.

4.

On  the  basis  of  the  estimate,  the  Commission  shall  enter  in  the  preliminary  draft
general  budget  of  the  European  Union  the  estimates  it  deems  necessary  for  the
establishment  plan  and  the  amount  of  the  subsidy  to  be  charged  to  the  general
budget, which it shall place before the budgetary authority in accordance with Article
272 of the Treaty.

The  budgetary  authority  shall  authorise  the  appropriations  for  the  subsidy  to  the
Agency.

The budgetary authority shall adopt the establishment plan for the Agency.

The  Management  Board  adopts  the  budget  of  the  Agency.  It  shall  become  final
following  the  final  adoption  of  the  general  budget  of  the  European  Union.  Where
appropriate, it shall be adjusted accordingly

Any  modification  to  the  budget,  including  the  establishment  plan,  shall  follow  the
same procedure.

The Management Board shall, as soon as possible, notify the budgetary authority of
its  intention  to  implement  any  project,  which  may  have  significant  financial
implications  for  the  funding  of  its  budget,  in  particular  any  projects  relating  to
property such as the rental or purchase of buildings. It shall inform the Commission
thereof.

Where  a  branch  of  the  budgetary  authority  has  notified  its  intention  to  deliver  an
opinion, it shall forward its opinion to the Management Board within a period of six
weeks from the date of notification of the project.

Article 27
Implementation and control of the budget

The Executive Director shall implement the budget of the Agency.

By  1  March  at  the  latest  following  each  financial  year,  the  Agency's  accounting
officer shall communicate the provisional accounts to the Commission's accounting
officer  together  with  a  report  on  the  budgetary  and  financial  management  for  that
financial year. The Commission's accounting officer shall consolidate the provisional
accounts  of  the  institutions  and  decentralised  bodies  according  with  Article  128  of
the general Financial Regulation.

By 31 March at the latest following each financial year, the Commission's accounting
officer  shall  forward  the  Agency's  provisional  accounts  to  the  Court  of  Auditors,
together with a report on the budgetary and financial management for that financial
year. The  report on the budgetary  and financial management for that financial  year
shall also be forwarded to the European Parliament and the Council.

On  receipt  of  the  Court  of  Auditors'  observations  on  the  Agency's  provisional
accounts,  pursuant  to  Article  129  of  the  general  Financial  Regulation,  the  Director
shall draw up the Agency's final accounts under his own responsibility and forward
them to the Management Board for an opinion.

5.

The Management Board shall deliver an opinion on the Agency's final accounts.

29

6.

7.

8.

9.

1.

2.

3.

1.

2.

3.

By  1  July  of  the  following  year  at  the  latest,  the  Executive  Director  shall  send  the
final  accounts,  together  with  the  opinion  of  the  Management  Board,  to  the
Commission, the Court of Auditors, the European Parliament and the Council.

The final accounts shall be published.

The  Director  shall  send  the  Court  of  Auditors  a  reply  to  its  observations  by  30
September at the latest. He shall also send this reply to the Management Board.

The European Parliament, upon a recommendation from the Council, shall, before 30
April N+2, give a discharge to the Executive Director of the Agency in respect of the
implementation of the budget for the year N.

Article 28
Combating fraud

In order to combat fraud,  corruption  and other unlawful activities the provisions of
Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25
May  1999  concerning  investigations  conducted  by  the  European  Anti-fraud  Office
(OLAF) shall apply without restriction.

The  Agency  shall  accede  to  the  Inter-institutional  Agreement  of  25  May  1999
concerning  internal  investigations  by  the  European  Anti-fraud  Office  (OLAF)  and
shall issue, without delay, the appropriate provisions applicable to all the employees
of the Agency.

The decisions concerning funding and the implementing agreements and instruments
resulting  from  them  shall  explicitly  stipulate  that  the  Court  of  Auditors  and  OLAF
may carry out, if necessary, on-the-spot checks among the recipients of the Agency's
funding and the agents responsible for allocating it.

Article 29
Evaluation

Within three years from the date of the Agency having taken up its responsibilities,
and  every  five  years  thereafter,  the  Management  Board  shall  commission  an
independent external evaluation on the implementation of this Regulation.

The evaluation shall examine how effectively the Agency fulfils its mission. It shall
also assess the impact of the Agency and its working practices. The evaluation shall
take into account the views of stakeholders, at both European and national level.

The  Management  Board  shall  receive  the  findings  of  the  evaluation  and  issue
recommendations regarding changes to this Regulation, the Agency and its working
practices to the Commission, which may forward them, together with its own opinion
as well as appropriate proposals, to the Council. An action plan with a timetable shall
be  included,  if  appropriate.  Both  the  findings  and  the  recommendations  of  the
evaluation shall be made public.

30

Article 30
Financial provision

The financial rules applicable to the Agency shall be adopted by the Management Board after
the Commission has been consulted. They may not depart from the Commission Regulation
(EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation
for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002
on the Financial Regulation applicable to  the  general budget of  the European  Communities,
unless  specifically  required  for  the  Agency's  operation  and  with  the  Commission's  prior
consent.

Article 31
Entry into force

This Regulation shall enter into force on the […] day following that of its publication in the
Official Journal of the European Union.

The Agency shall take up its responsibilities from 1 January 2005.

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

Done at Brussels,

For the Council
The President

31

ANNEX

32

LEGISLATIVE FINANCIAL STATEMENT

Policy area(s): 18 Justice and Home Affairs (JAI)

Activit(y/ies): 18 02 EXTERNAL BORDERS, VISA  POLICY  AND  FREE MOVEMENT OF
PEOPLE

TITLE OF ACTION: PROPOSAL OF A COUNCIL REGULATION ESTABLISHING A EUROPEAN

AGENCY FOR THE MANAGEMENT OF OPERATIONAL CO-OPERATION AT THE
EXTERNAL BORDERS

1.

BUDGET LINE(S) + HEADING(S)

From 2005 onwards a new budget heading with two budget lines will be created:

–  18 02 XX 01: administrative expenditure (Title 1 & 2 )

–  18 02 XX 02: operational expenditure (Title 3)

2.

OVERALL FIGURES

2.1.

Total allocation for action: XX € million for commitment

A maximum of € 15 millions per annum for 2005 and 2006 is available following the
agreement  reached  at  the  College  when  adopting  the  Communication  on  the
development of a common policy on illegal immigration, smuggling and trafficking
of  human  beings,  external  borders  and  the  return  of  illegal  residents23  from  3  June
2003.

From 2007 onwards the allocation of appropriations will depend on the new financial
perspectives.

2.2.

Period of application: 2004 - 2009

An indicative timetable for the establishment of the Agency could be the following:

–  Expected adoption and entry into force of the Regulation: 1st semester 2004:

–  Transitional  phase:  starting  from  the  entry  into  force  of  the  Regulation  until  the
Agency becomes operational (take up its responsibilities). During this period the
Commission  will  carry  out  the  necessary  tasks  for  the  establishment  of  the
Agency.

–  Operational  phase:  The  Agency  is  established  and  ready  to  take-up  its

responsibilities in accordance with the Regulation.

23

COM(2003) 323 final

33

                                                
2.3.

Overall multiannual estimate of expenditure:

(a)

Operational  expenditure  (Title  3):  Schedule  of  commitment  appropriations  (see
point 6.2.1 and 6.2.2 operational expenditure).

Commitment Appropriations in € million

2004

2005

2006

2007

2008

2009

[n+5 and
subs.
Years]

Total

Annual or recurrent
costs

Specific technical
equipment

5,000

6,440

6,440

6,440

6,440

6,440

1,000

7.000

7.000

Total

5.000

7,440

13,440

13,440

6,440

6,440

(b)

Administrative expenditure (Title 1 & 2) Schedule of commitment appropriations
(see points 6.1.1 and 6.1.2)

Commitment Appropriations in € million

1,157

2,314

2,314

2,314

2,314

2,314

(c)

Overall Total : Schedule of commitment/payment appropriations

TOTAL a+b

2004

2005

2006

2007

2008

2009

Total

[n+5  and
subs.
Years]

Commitments

Payments

6,157

6,157

9,754

9,754

15,754

15,754

8,754

15,754

15,754

8,754

8,754

8,754

(d)

Incidence  financière  globale  des  ressources  humaines  et  autres  dépenses  de
fonctionnement pour la Commission (see Points 7.2 et 7.3)

Commitments/

0,343

 0

 0

 0

0

0

0

Payments

TOTAL c+d

2004

2005

2006

2007

2008

2009

Total

[n+5  and
subs.
Years]

Commitments

Payments

0,343

0,343

6,157

6,157

9,754

9,754

15,754

15,754

8,754

15,754

15,754

8,754

8,754

8,754

34

2.4.

Compatibility with financial programming and financial perspective

[X] Proposal is compatible with existing financial programming (until 2006).

Proposal  will  entail  reprogramming  of  the  relevant  heading  in  the  financial
perspective.

Proposal  may  require  application  of  the  provisions  of  the  Interinstitutional
Agreement.

2.5.

Financial impact on revenue:24

Proposal  has  no  financial  implications  (involves  technical  aspects  regarding
implementation of a measure)

OR

[X] Proposal has financial impact – the effect on revenue is as follows:

The  present  proposal  builds  upon  the  Schengen  acquis  as  defined  in  Annex  A  of  the
Agreement signed on 18 May 1999 between the Council, and the Republic of Iceland and the
Kingdom of Norway concerning the association of those both States with the implementation,
application and development of the Schengen acquis25. The article 12 (1) last paragraph lays
down:

“In  cases  where  operational  costs  are  attributed  to  the  general  budget  of  the  European
Community, Iceland and Norway shall share in these costs by contributing to the said budget
an  annual  sum  in  accordance  with  the  percentage  of  the  gross  national  product  of  their
countries in relation with the gross national product of all participating States”

The contribution from Iceland/Norway: 2,128% (2002 figures)

Budget line

Revenue

(€ million to one decimal place)

Situation following action

2005 2006 2007 2008 2009 [n+5]

Prior to
action
[Year
n-1]

New budget
line under
chapter 1802

a) Revenue in absolute terms

0,1

0,3

0,3

0,2

0,2

0,2

b) Change in revenue

 (cid:1)

Other third countries that may be associated to the development of the Schengen acquis and
participate therefore in this Agency will also have to contribute to the Community budget.

24
25 

For further information, see separate explanatory note.
OJ L 176 of 10.7.1999, p. 35.

35

                                                
3.

BUDGET CHARACTERISTICS

Type of expenditure

New

EFTA
contribution

Contributions
form applicant
countries

Heading in
financial
perspective

Non-
compulsory

Diff/

YES/

NO

NO

No [3]

4.

LEGAL BASIS

Article 66 TEC.

5.

DESCRIPTION AND GROUNDS

5.1.

Need for Community intervention

5.1.1. Objectives pursued

The  main  objective  of  this  Agency  is  to  improve  the  operational  co-operation  between  the
Member States at the external borders and to promote solidarity in this field and an equivalent
level  of  protection  of  all  the  external  borders  of  the  EU.  These  objectives  are  not  new,  the
Commission's communication of May 200226 already referred to the essential components for
an  integrated  management  of  the  external  borders.  The  Seville  European  Council  and  the
Council when adopting its action plan 27 followed this line. The draft Constitution under the
specific provisions for implementing an area of freedom, security and justice (cf. article I-41)
recognises the importance of the operational co-operation between the  competent authorities
of the Member States for creating the FSJ area.

The Agency shall in particular carry out the following tasks:

(cid:1)  Co-ordination  of  joint  operations  and  pilot  projects  between  Member  States  and
between Member States and the Community with a view to improving the control
and surveillance at the EU external borders;

(cid:1)  Providing  training  at  European  level  for  instructors  of  national  border  guards  of
Member  States  as  well  as  supplementary  training  to  officers  of  national  border
guards;

(cid:1)  Carrying out general and tailored risk analyses;

(cid:1)  Follow-up  on  research  relevant  for  control  and  surveillance  of  EU  external
borders and provide the Commission and Member States with technical expertise;

(cid:1)  Co-ordination  between  Member  States  in  the  field  of  return  of  third-country

nationals illegally resident in Member States;

26 

27 

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 of May 7, 2002 (COM(2002) 233
final)
Plan  for  the  management  of  the  external  borders  of  the  Member  States  of  the  European  Union  agreed  by  the
Council (JHA) on June 13, 2002 (Doc. 10019/02 FRONT 58 COMIX 398)

36

                                                
(cid:1)  Support  to  Member  States  confronted  with  circumstances  requiring  increased
technical  and  operational  assistance  in  connection  with  their  control  and
surveillance of the EU external borders;

(cid:1)  Managing technical equipment of Member States (common lists of equipment and

procurement of new equipment to put at the disposal of the Member States);

Among these tasks, the first four bullet points refer to activities currently  carried out by  the
Member  States  with  the  support  -  in  many  cases  –  of  Community  funds  from  the  ARGO
programme and are co-ordinated by the Common Unit of external borders practitioners within
the Council. The remaining three bullet  points  indicate the activities or tasks of the  Agency
that are new and which the Common Unit is not covering.

The added value of the Agency will be achieved when taking over the activities that are today
covered  by  various  projects  on  the  development  of  a  common  integrated  risk  assessment
model  (CIRAM),  a  common  core  curriculum  for  border  guards’  training  and  research  in
technologies relevant for control and surveillance of the external borders respectively.. These
activities are horizontal matters at the very core of the concept of integrated management of
the  external  borders.  They  are  not  linked  to  a  particular  type  of  border,  and  they  should
accordingly be managed centrally in order to ensure the coherence and the uniformity of the
concepts and criteria to be applied in all the Member States.

The  creation  of  an  Agency  tasked  with  co-ordinating  the  operational  aspects  of  control  and
surveillance  of  the  external  borders  and  taking  decisions  to  co-finance  certain  activities
constitutes a concrete and important step towards achieving solidarity between Member States
in the field of the management of the external borders. The Agency will also set up and keep
centralised  records  of  technical  border  control  equipment,  that  Member  States  would  be
willing  to  put  at  the  disposal  of  each  other  on  a  temporary  basis  following  needs  and  risks
assessment  carried  out  by  the  Agency.  This  will  increase  in  this  way  the  capacity  of
mobilising resources or capabilities of the Member States.

The Agency will itself acquire technical equipment for its experts, but this equipment can also
be put at the disposal of Member States participating in joint operations and pilot projects. In
this way the Agency will make a significant contribution with regard to burden sharing.

One of the main advantages of establishing a centralised structure such as an Agency in the
field of operational border management would be the improved ability to assist in tackling a
possible critical and unforeseen situation at the external borders at European level. This new
body would therefore also improve the risk prevention and risk management capacities of the
Member States.

This Agency as independent body could also carry out in the future inspections at the external
borders of the Member States and act as interface between Member States and third countries
or relevant international organisations that which will strengthen the credibility and visibility
of the Community action in the field.

5.1.2. Measures taken in connection with ex ante evaluation

The Commission has carried out an ex ante evaluation of the proposal to create a  European
Agency for the Management of Operational Co-operation at the External Borders.

37

An  analysis  of  the  experiences  of  the  Common  Unit  clearly  points  to  the  need  for  an
independent and highly professional co-ordination structure, if the problems encountered by
the Common Unit are to be overcome.

The  ex  ante  evaluation  has  shown  that  the  creation  of  an  agency  is  a  better  and  more  cost-
effective  choice  for  achieving  the  objective  of  enhancing  operational  co-operation  at  the
external  borders  than  any  of  the  alternative  delivery  mechanisms  examined  (the  reinforced
Common Unit and the Commission itself).

For further information, reference is made to the ex ante evaluation of the Commission.

5.1.3. Measures taken following ex post evaluation

The  last  European  Council  in  Brussels  (16/17  October  2003)  welcomed  the  Commission's
intention  to  submit  a  proposal  for  the  creation  of  a  Border  Management  Agency  indicating
that  this  proposal  shall  draw  on  the  experience  of  the  Common  Unit  of  External  Border
Practitioners.

The Commission has therefore taken into account for this proposal the evaluations that the the
Council  28 and the Commission  29 performed in view of the Thessaloniki European Council.
This  evaluation  of  the  joint  operations,  pilot  projects  and  various  specialised  centres
constituted at the same time an assessment of the work carried out by the Common Unit. One
of the main shortcomings is the lack of effective operational co-ordination. This fact is borne
out in the JHA Council Conclusions on a more effective management of the external borders
of  the  EU  Member  States30.  Furthermore  the  aforementioned  Council’s  report  on  the
implementation  of  programmes,  ad  hoc  centres,  pilot  projects  and  joint  operations  drew  up
conclusions dealing also on the shortcomings of the current institutional arrangements for co-
ordinating the execution of the Action Plan. In particular, these conclusions pointed out:

(cid:1)  The  evident  absence  of  a  monitoring,  evaluation  and  impact  assessment

mechanism;

(cid:1)  The  lack  of  implementing  guidelines  and  an  adequate  legal  framework  for  the

elaboration of the joint operations;

(cid:1)  The  lack  of  definition  of  specific  and  objective  targets  and  of  an  adequate
framework  for  an  integrated  planning  of  the  operational  actions  at  Community
level.

This is why the Greek Presidency’s report solicited  “the  upgrading of the  co-ordination and
operational  role  of  SCIFA+”  as  an  indispensable  condition  for  a  successful  development  of
the centres and the other projects and joint operations.

28 

29 

30 

Report of  the Presidency  to  COREPER/the  Council on  the  implementation  of  programmes,  ad  hoc  centres,  pilot
projects and joint operations of June 3, 2003 (Doc. 10058/03 FRONT 70 COMIX 354)
Communication from the Commission to the European parliament and the Council in view of the European Council
of  Thessaloniki  on  the  development  of  a  common  policy  on  illegal  immigration,  smuggling  and  trafficking  of
human beings, external borders and the return of illegal residents of May 23, 2003 (COM(2003) 323 final).
Doc. 10274/03 FRONT 76 of June 6, 2003

38

                                                
Furthermore, that report pleaded for the institutionalisation of the centres and the examination
of  a  “new  institutional  structure  in  order  to  enhance  operational  co-operation  for  the
management of external borders”.

The  ARGO  programme  provided  funding  (grants)  for  several  of  the  aforementioned  joint
operations  and  pilot  projects.  The  Commission  will  submit  a  first  implementation  report  on
ARGO by the end of 2003. However it can be advanced already that the overall quality of the
proposals submitted or of the results of the actions carried out in the field of external borders
is  not  satisfactory.  An  Agency  that  gathers  expertise  in  the  field  and  that  assumes  also  the
roles of approving, co-ordinating, evaluating the actions and takes eventually the decision to
award  grants  to  certain  proposals  will  contribute  to  improve  the  quality  and  results  of  the
actions.

5.2.

Actions envisaged and budget intervention arrangements

Transitional  phase  (2004):  Once  the  Regulation  is  adopted  and  entered  into  force  the
Commission  will  start  the  necessary  arrangements  for  establishing  the  Agency,  e.g.  the
setting-up and providing administrative support to the management board, preparation of legal
texts, publication of notices and recruitment procedure of the Executive and Deputy Director.
These  tasks  will  only  have  an  impact  on  staff  and  administrative  expenditure  for  the
Commission (cf. point 7)

Operational phase (from 2005 onwards): The estimates for resource needed during the 1st
operational phase (2005-2006) take into account the financial constraints (ceilings established
in  the  financial  perspective).  The  calculations  are  based  on  a  ‘stand-alone’  entity  (i.e.  not
reliant on the Commission’s infrastructure and staff). The costs can be grouped in two main
categories:

Personnel and administrative costs:

The Agency's staff shall consist of a limited number of officials and of national experts in the
field  of  control  and  surveillance  of  the  external  borders  seconded  by  the  Member  States  to
carry out management duties. The remaining staff shall consist of other employees recruited
by the Agency as necessary to carry out its tasks. Staff costs are shown on a 12-month basis
and  personnel  and  administrative  expenditure  is  €  0,108  million  a  year  per  person
(Community  officials)  including  buildings  and  related  administrative  expenditure  (IT,
telecommunications, etc)

The necessary number of staff in a first operational phase (2005-2006) is estimated at 27. The
work force will be composed by 15 A posts (among them 10 ENDs), 5 B posts, 5 C posts and
2 D posts. The number of staff may increase following the assignments to the Agency of new
tasks by the Council and in accordance with the financial resources allocated to the Agency
by the budgetary authority for the post 2007 period. The security personnel for the building
and infrastructures is not part of the Agency’s staff and is not reflected in the following table.
The provision of security services will be outsourced.

39

TABLE: Estimate of human resources - Breakdown by areas of activity and category

ACTIVITIES

Administration

Management  (this  item  includes  the  Executive  and  Deputy
Director).

Human and financial resources

Information/IT

Legal tasks

Operational tasks:

Co-ordination of joint operations and pilot projects at the external
borders

Carrying out general and tailored risk analyses

Provide  training  for  national  instructors  and  specific  training  for
border guards.

Follow-up on research relevant for control and surveillance of EU
external borders and provide the Commission and Member States
with technical expertise

Support to Member States confronted with circumstances requiring
increased  technical  and  operational  assistance  in  connection  with
their control and surveillance of the EU external borders

Co-ordination  between  Member  States  in  the  field  of  return  of
third-country nationals illegally resident in Member States;

Management  of  records  of  technical  equipment  of  the  Member
States and procurement of new equipment

TOTAL

A

5

2

1

1

1

10

2

2

2

1

2

1

15

B

3

0

2

1

2

2

5

C

3

2

1

2

1

1

5

D

2

2

40

Operational costs

These costs can be divided according to the different tasks of the Agency:

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

Co-ordination of joint operations and pilot projects at the external borders proposed by
the  Member  States  (co-ordination  and  evaluation  by  the  Agency).  The  Agency  may
award  grants  to  certain  operations  and  projects.  There  are  also  costs  resulting  from
missions  of  agency’s  staff  to  the  external  borders  or  national  premises  for
coordination,  follow-up  or  evaluation  of  the  projects  or  operations.  The  amount  per
mission within Europe is estimated at € 800 per day and € 1.200 per day for the rest of
the world. Meetings at the Agency’s premises may also be necessary for coordination
and evaluation purposes.

Risk  assessment  exercises  require  some  meetings  with  Member  States’  experts.  The
calculations are based on the following assumptions: Travel and subsistence: meetings
€  800  per  person/day  and  €  1.150  per  person/two  days.  There  is  also  need  for  the
development of secure electronic channels of communication with the Member States
for collecting and exchanging relevant information.

Training  requires monthly  meetings, seminars or workshops with national trainers of
border guards.

Follow-up  research  and  providing  technical  expertise  will  result  in  studies  to  be
externalised by the Agency and some meetings or staff missions as well as preparation
of reports and evaluations.

Support  to  Member  States    in  circumstances  requiring  increased  technical  and
operational  assistance  at  the  external  borders.  The  Agency  must  purchase  or  lease
mobile  equipment  to  be  used  in  the  control  of  the  external  borders  and  which  will
represent  the  most  substantial  expenditure.  Staff  missions  and  transport  of  the
specialised equipment must also be foreseen.

Return  co-operation,  the  operational  costs  of  joint  return  operations  of  third  country
nationals (transport, escorts, etc) could be borne by Community funds available in the
future in the field of  Return.  In addition  there  might  be  some  staff  missions  and  co-
ordination meetings.

(7)  Management of technical equipment (keep records of Member State’s equipment) and
information  exchange  systems.  The  Agency  must  develop  the  appropriate  database
and  information  system  for  the  exchange  of  information  with  Member  States  and
Commission.

5.3. Methods of implementation

The core tasks of the Agency such as training, risk assessment, providing technical support or
expertise will be executed by its permanent staff and would only generate additional costs for
staff missions and meetings (seminars and workshops).

41

The  Agency  will  also  co-finance  certain  Member  States’  proposals  for  joint  operations  and
pilot  projects  that  are  considered  of  special  interest  or  added  value  in  connection  with  the
Agency’s  work  programme.  The  Community  funds  will  be  awarded  by  means  of  grant
agreements following the rules laid down in Agency’s financial Regulation.

The Agency will launch the public procurements procedures in accordance with its financial
regulation  for  acquiring  the  operational  equipment  or  for  the  provision  of  services  (e.g.
studies, consultancy, etc) needed for fulfilling its tasks.

6.

FINANCIAL IMPACT ON THE AGENCY’S BUDGET LINES:

6.1. 

Administrative expenditure (Title 1 & 2):

6.1.1 

Financial Impact on human resources

The  amounts  are  total  expenditure  for  twelve  months  that  include  personnel  costs  and
administrative  expenditure  (buildings,  IT,  etc).  Exceptionally  for  2005  the  costs  will  be
calculated only for a 6-month period, since the Agency will gradually recruit its staff during
that year (cf. point 2.3).

Types of post

No of staff

Amount

Method of calculation

Officials or temporary staff

External staff (ENDs)

Total

17

10

27

1.836.000

17* 108.000

450.000

10 * 45.000

2.286.000

6.1.2  Other administrative expenditure

Only  meetings  of  the  management  board  are  indicated  here,  other  costs  resulting  from
missions,  conferences  or  seminars  are  detailed  for  each  task  under  the  Agency’s  annual
operational expenditure.

Meetings

Amount €

Method of calculation

Meetings of the management board

Total

 28.800

 28.800

6.2. 

Operational expenditure: (Title 3)

12 (members) * 800 (person/day)*3 meetings/year

The  following  tables  contain  a  break  down  of  the  operational  expenditure  of  the  Agency
following their tasks and nature of the intervention.

6.2.1. Annual or recurrent costs

The costs indicated in the table bellow correspond to a fully operational agency. From 2005
the  Agency  will  gradually  assume  its  responsibilities  and  become  operational,  its  main
responsibility  this  year  will  be  to  provide  support  to  joint  operations  and  pilot  projects
allocating for them a budget comparable to the one of ARGO in the precedent years (cf. point
2.3).

42

Tasks of the Agency

Type of expenditure (cost per unit) Number

Joint  operations  and  pilot
external
projects 
borders

the 

at 

Risk assessment

Training

Grants to projects. (€ 200.000)

Missions of agency staff (€ 800)

Coordination/evaluation  meetings
(€ 20.000)

* 25

* 30

* 4

Meetings  for  general  and  tailored
risk assessment (€ 20.000)

* 4

Total

5.000.000.

24.000.

80.000.

80.000.

Monthly 
28.750)

two-day 

sessions 

(€

*12

345.000.

Follow-up research

Studies (€ 200.000)

Support  to  Member  States
requiring
(circumstances 
increased 
and
technical 
operational assistance)

Meetings (€ 20.000)

Missions (€ 800)

Transport of equipment (€ 1.000)

Management  of 
technical;
equipment  and  setting  up  a
database

Costs  are  included  in  point  6.2.2.
(procurement 
/  maintenance  of
equipment)

Co-ordination 
between
Member States in the field of
return

Missions (€ 800)

Co-ordination meetings (20.000)

* 4

* 2

*5

*5

*3

*3

Total (annual)

800.000.

40.000.

4.000.

5.000.

0.

2.400.

60.000.

6.440.400

6.2.2

Specific technical equipment

This agency  must in  a first stage  (2005)  identify its operational  requirements and capability
goals and examine the capacity of the agency of mobilising and pooling existing resources, in
particular  equipment,  available  in  Member  States  that  could  be  put  at  the  disposal  of  other
Member States.

Following such previous evaluation and in  compliance  with the  principle  of subsidiarity the
Agency  will  launch  the  procedures  for  procuring  its  own  technical  equipment  to  support
Member States in exceptional circumstances or for carrying out other activities such as joint
operations.  The  procurement  of  this  equipment  will  be  done  gradually  starting  in  2006,  cf.
point 2.3.

43

Type of equipment

Type of intervention

Total

Special transport means

Public  Procurement    (purchase/leasing)  and
maintenance

6.000.000

Equipment for surveillance and control

Public  Procurement    (purchase/leasing)  and
maintenance

4.000.000

Specific communication equipment

Public  Procurement    (purchase/leasing)  and
maintenance

4.000.000

IT system

Public  Procurement    (purchase/leasing)  and
maintenance

1.000.000

Total

15.000.000

7.

IMPACT  ON  STAFF  AND  ADMINISTRATIVE  EXPENDITURE  FOR  THE
COMMISSION

7.1.

Impact on human resources

These  are  the    existing  resources  for  the  Commission  in  order  to  co-ordinate  and
monitor  the  activities  of  the  Agency.  These  posts  should  be  in  place  before  the
Agency becomes operational (i.e. 2004) in order to carry out the tasks assigned to the
Commission during the transitional period (cf. point 2.2)

Types of post

Staff to be assigned to management of the
action using existing and/or additional
resources

Number of
permanent posts

Number of
temporary posts

Total

Officials 
temporary staff

or

 1 A

1 B

1 C

A

B

C

Total

3

3

Description of tasks deriving from the
action

A  post:  policy  and  legislative  officer,
co-ordination with the Agency

B post: financial support

 C post: administrative support

The  needs  of  human  resources  shall  be  covered  within  the  allocation  granted  to  the
managing DG in the framework of the annual procedure.

7.2. 

Overall financial impact of human resources

Type of human resources

Amount (€)

Method of calculation *

Officials

Temporary staff

Other human resources

324.000

3*108.000

(specify budget line)

Total

324.000

44

7.3.

Other administrative expenditure deriving from the action

For meetings of the management board during 2004.

Budget line

(number and heading)

1801021102 – Meetings

Meetings of the management board

Amount €

Method of calculation

 19.200

12(members)  *  800  (person/day)*2
meetings/year

Total

 19.200

I.

II.

Annual total (7.2 + 7.3) – for 2004

Total cost of action

343.200

343.200

8.

FOLLOW-UP AND EVALUATION

8.1.

Follow-up arrangements

The  monitoring  of  the  Agency  will  be  carried  out  on  the  basis  of  the  annual  activity  report
adopted  by  the  Management  Board  for  the  previous  year  and  the  work  programme  for  the
coming  year,  which  will  both  forwarded  to  the  Commission,  the  Council  and  the  European
Parliament.

8.2.

Arrangements and schedule for the planned evaluation

Within three years from the date of the Agency having taken up its responsibilities, and every
five  years  thereafter,  the  Management  Board  shall  commission  an  independent  external
evaluation on the implementation of this Regulation.

The  evaluation  shall  examine  how  effectively  the  Agency  fulfils  its  mission.  It  shall  also
assess  the  impact  of  the  Agency  and  its  working  practices.  The  evaluation  shall  take  into
account the views of stakeholders, at both European and national level.

issue
The  Management  Board  shall  receive 
recommendations regarding changes to this Regulation, the Agency and its working practices
to  the  Commission,  which  may  forward  them,  together  with  its  own  opinion  as  well  as
appropriate  proposals,  to  the  Council.  An  action  plan  with  a  timetable  shall  be  included,  if
appropriate.  Both  the  findings  and  the  recommendations  of  the  evaluation  shall  be  made
public.

the  evaluation  and 

the  findings  of 

45

9.

ANTI-FRAUD MEASURES

Specific control measures envisaged:

9.1.

For the Agency

The Executive Directive will implement the Agency’s budget. He/she will each year submit to
the Commission, the Management  Board and the Court of Auditors the detailed accounts of
all revenue and expenditure from the previous financial  year. In  addition, the Commission’s
Internal Audit Service will assist in the management of the Agency’s financial operations by
controlling risks, monitoring compliance by providing an independent opinion on the quality
of  management  and  control  systems  and  making  recommendations  in  order  to  improve  the
efficiency  and  the  effectiveness  of  operations  and  to  ensure  economy  in  the  use  of  the
Agency’s resources.

The  Agency  will  adopt  its  Financial  Regulation  following  Commission  Regulation  No
2343/200231,  after  having  received  the  agreement  of  the  Commission  and  the  Court  of
Auditors. The Agency will put in place an internal audit system similar to that introduced by
the Commission in the framework of its own restructuring.

9.2.

Cooperation with OLAF

The staff subject to the Commission’s Staff Regulations will cooperate with OLAF to combat
fraud.

9.3.

For the Court of Auditors

The Court of Auditors will examine the accounts in accordance with Article 248 of the Treaty
and publish an annual report on the Agency’s activities.

31 

Framework  financial  regulation  for  the  bodies  referred  to  in  art  185  of  the  Financial  Regulation
applicable to the general budget of the European Communities

46