Opinion of the European Economic and Social Committee on the ‘proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders’ (COM(2003) 687 final - 2003/0273(CNS))
Date: 2004-01-29
Institutions: European Economic and Social Committee
Subjects: EU migration policy, EU office or agency, border control, external border of the EU, migration control

30.4.2004

EN

Official Journal of the European Union

C 108/97

Opinion of the European Economic and Social Committee on the ‘proposal for a Council Regu-
lation establishing a European Agency for the Management of Operational Co-operation at the
External Borders’

(COM(2003) 687 final - 2003/0273(CNS))

(2004/C 108/20)

On 8 December 2003 the Council decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The European Economic and Social Committee decided to appoint Mr Pariza Castaños rapporteur-general
for this opinion.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 29 January 2004), the European
Economic and Social Committee adopted the following opinion by seventy-five to one, with three absten-
tions.

1. Gist of the Proposal for a Regulation

1.1
The Plan for the management of the external borders of
the Member States of the European Union, approved by the
Council on 13 June 2002, endorsed the setting-up of an
external borders practitioners' Common Unit in the framework
of
the Strategic Committee on Immigration, Frontiers and
Asylum (SCIFA) with a view to an integrated management of
the external borders.

In its conclusions on the effective management of the
1.2
external borders of the EU Member States of 5 June 2003, the
Council called for the reinforcement of the Common Unit as a
Council Working Party made up of experts seconded from the
Member States to the Secretariat General of the Council.

1.3
At its meeting on 19 and 20 June 2003, the Thessalo-
niki European Council endorsed the above-mentioned Council
Conclusions of 5 June 2003 and called on the Commission to
examine the need to create 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.

1.4
In its conclusions of 16 and 17 October 2003, the Euro-
pean Council welcomed the Commission's intention to submit
a proposal to set up an Agency for the management of external
borders. This proposal for a Council Regulation establishing a
European Agency for the Management of Operational Co-
operation at the External Borders responds to the European
Council's request. It takes account of the experiences of co-
operation between the Member States in the framework of the
Common Unit, from which the Agency will take over the task
of co-ordinating operational co-operation.

These common rules are applied at an operational level by the
competent national authorities of the Member States belonging
to the area without internal borders. The objective of this Regu-
lation is, thus, to optimise the implementation of Community
policy on the management of the external borders by better co-
ordinating operational co-operation between the Member
States via the creation of an Agency.

The Agency will perform,

in particular, the following

1.6
tasks:

— coordinate joint operations and pilot projects between the
Member States, and between the latter and the Community,
in order to improve the control and surveillance of the EU's
external borders;

— provide training at European level for instructors of the
national border guards in the Member States, as well as
additional training for officers in the competent national
services;

— prepare both general and tailored risk assessments;

— follow up research developments that are relevant to the
control and surveillance of the EU's external borders and
share its technical knowledge with the Commission and the
Member States;

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

— assist Member States in circumstances requiring increased
technical and operational assistance in connection with the
control and surveillance of the EU's external borders;

1.5
Following the integration of the Schengen acquis into
the EU framework, common rules on the control and surveil-
lance of the external borders already exist at Community level.

— manage technical equipment belong to the Member States
(centralised records of equipment and acquisition of new
equipment at the Member States' disposal).

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1.7
The Agency will co-ordinate proposals for joint opera-
tions and pilot projects submitted by the Member States. It may
also launch its own initiatives in co-operation with the Member
States. In order to organise joint operations, the Agency may
set up specialised branches in the Member States.

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

1.9
The Agency may assist Member States in circumstances
requiring increased operational and technical assistance at their
external borders regarding co-ordination.

1.10
The Agency may co-finance joint operations and pilot
projects at the external borders with grants from its budget, in
accordance with its own Financial Regulation.

The Agency will be a Community body with legal
1.11
personality.
in relation to technical
matters. It will be represented by an Executive Director, who
will be appointed by the Management Board.

It will be independent

1.12
The Management Board will be composed of twelve
members and two Commission representatives. The Council
will appoint the members as well as their alternates who will
represent them in their absence. The Commission will appoint
its representatives and their alternates. The term of office will
be four years and may be extended once. The Management
Board will take its decisions by an absolute majority of its
members. For the appointment of the Executive Director, a
two-thirds majority will be needed.

The Agency will take up its responsibilities from 1
1.13
January 2005. It is envisaged that it will have a staff of 27 and
a budget allocation of IJ 15 million per annum for 2005 and
2006.

1.14
The legal basis for establishing the Agency is Article
66 of the Treaty establishing the European Community and is
part of the Schengen acquis. The United Kingdom and Ireland
are not bound by the Schengen acquis and are not therefore
taking part in the adoption of this Regulation, bound by it or
subject to its application. Denmark,
in line with its special
status, will decide within a period of six months whether to
incorporate this Regulation in its national legislation.

2. General comments

2.1
Very often controls at external borders are insufficient.
Authorities in the Member States cannot ensure that all third
country nationals entering the Schengen area do so in compli-
ance with procedures laid down in Community and national
legislation.

2.2
A number of EESC opinions have called on the Council
to speed up its legislative work so as to give the EU a common
legislation and policy on immigration and asylum. However,
the Council has not taken proper account of the views of either
the Parliament or the Committee and the legislation it has
adopted is ill-equipped to ensure that immigration within the
EU takes place through legal and transparent channels. Several
EESC opinions (1) have pointed out that one of the most impor-
tant causes of illegal
immigration is the lack of a common
policy on the management of migration through legal, flexible
and transparent channels. In its opinion on the Communication
on a common policy on illegal immigration (2), the EESC states
that the delay in adopting Community legislation makes it diffi-
cult to ensure that migration takes place through legal chan-
nels.

2.3
People who find themselves in an irregular situation are
particularly vulnerable to exploitation in employment and to
social exclusion as, though they are not without rights (3), their
situation exposes them to a whole range of problems. In its
integration and employment (4), the
opinion on immigration,
EESC pointed out that undeclared work and illegal immigration
are closely related issues and that action therefore needs to be
taken to regularise the legal situation of these people and
expose undeclared work.

2.4
The EESC wishes to stress that effective border controls
must not jeopardise the right to asylum. Many people needing
international protection arrive at the external borders through
illegal channels. The authorities must ensure that these people
can apply for protection and that their application is assessed
in accordance with international conventions and Community
and national
legislation. Until the administrative and judicial
procedures governing asylum seekers are resolved, these people
cannot be removed and must be given the corresponding
protection.

(1) See EESC opinion on the Communication on a common policy on
illegal immigration – OJ C 149 of 21.6.2002 and EESC opinion on
immigration,
integration and employment adopted at its plenary
session of 11.12.2003.

(2) See first opinion referred to in footnote 2.
(3) Ibid.
(4) See second opinion referred to in footnote 2.

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2.5
The lack of effective controls at external borders is often
exploited by criminal networks that traffic in human beings
and have no qualms about putting people's lives at serious risk
in order to increase their illegal profits. In its opinion on the
short-term residence permit issued to victims of action to facili-
tate illegal
immigration or trafficking in human beings who
cooperate with the competent authorities (5), the EESC pointed
out that the authorities must protect victims, in particular the
most vulnerable, such as children, and victims of trafficking for
sexual exploitation, with the same energy with which they
combat criminal networks that traffic in and exploit human
beings.

2.6
The EESC has already stated in earlier opinions that
effective management of the external borders requires close co-
operation between the border authorities in the Member States,
and between authorities in the countries of origin and countries
of transit, through liaison officers.

In its aforementioned Opinion on illegal immigration (6),
2.7
the EESC ‘[supported] the Commission's proposal to set up a
European border guard with common standards and a harmo-
nised training curriculum’ and stated that: ‘In the medium term,
steps should be taken towards the creation of a border guard
school. Border controls should be carried out by officials who
are skilled in dealing with people and possess thorough tech-
nical know-how.’ The EESC also welcomed the creation of a
European migration observatory and the development of an
early warning system on illegal immigration.

is particularly important

and that
international conventions on human rights are
that effective border
respected.
It
controls do not jeopardise the right to asylum. Training (Article
5) for border guards – to be provided by the Agency – must
include training in humanitarian law.

3.2
The Agency's tasks must also include co-ordinating
rescue services – particularly sea rescue – to warn and help
people who are in danger owing to the high-risk practices
employed in illegal immigration. Police action at sea has some-
times resulted in small boats sinking and human life being lost,
which could have been avoided. The first responsibility of
border guards must be to help people in danger.

3.3
It is envisaged that the Agency will co-ordinate or orga-
nise return operations (Article 9), for which it may use Com-
munity financial resources. In its opinion on the Green Paper
on a Community return policy on illegal residents (7), the EESC
stated the following: ‘If the policy of compulsory return is not
combined with regularisation measures, the numbers of people
in irregular situations will remain unchanged,
feeding the
hidden economy and leading to increased exploitation in
employment and social exclusion.’

2.8
In this opinion, the EESC welcomes the establishment of
a European Agency for the Management of Operational Co-
operation at the External Borders, which will be set up under
the present Regulation. Although the Agency and its officials
will have no executive power, no policy making role and no
authority to make legislative proposals, it will improve co-ordi-
nation between the authorities in the Member States and the
effectiveness of controls at the external borders. Article 41 of
the draft European Constitution acknowledges the importance
of operational co-operation between authorities in the Member
States.

3.4
The EESC agrees with the Commission when it states
that voluntary return is preferable to forced return. The
Committee considers forced expulsions to be an extreme
measure that must only be used occasionally. The Committee
bases its argument on Article II-19 of
the draft European
Constitution (Protection in the event of removal, expulsion or
extradition, taken from the Charter of Fundamental Rights of
the Union) which prohibits collective expulsions and states the
following: ‘No one may be removed, expelled or extradited to a
State where there is a serious risk that he or she would be
subjected to the death penalty, torture or other inhuman or
degrading treatment or punishment.’

3. Specific comments

3.1
ensuring

The Agency's main tasks

(Article 2) must

that

people

are

treated more

include
humanely

3.5 With regard to return operations,
the Agency must
ensure that the principles of humanitarian law are respected, in
particular the right to asylum. It must guarantee that the prin-
ciple of ‘non-refoulement’ is applied to people who could suffer
persecution or ill treatment or whose life could be at serious
risk in the country of origin or transit.

(5) See OJ C 221 of 17.9.2002 .
(6) See first opinion referred to in footnote 2, point 3.6.4.

(7) See point 2.4 of the opinion in OJ C 61 of 14.3.2003

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3.6
In its opinion on the mutual recognition of expulsion
decisions (8),
the EESC also stated that expulsion decisions
should not apply to people finding themselves in one of the
following situations:

the European Economic and Social Committee. The EESC
agrees that the Agency should keep it informed of its activities.
The Committee reserves the right to issue opinions and invite
the Executive Director to any relevant meetings.

3.9 Members of the Management Board (Article 18) should
have the appropriate knowledge and skills and act indepen-
dently of Governments.

The EESC welcomes the provision that within three
3.10
years of the Agency taking up its responsibilities (Article 29) it
will be subject to an external and independent evaluation. On
the basis of this evaluation, the Management Board will issue
recommendations to the Commission regarding changes it
considers necessary if the Agency is to work more effectively.
The EESC would wish to issue an opinion on any changes that
may be made in due course to the Regulation and calls on the
European Parliament to do the same.

The President

of the European Economic and Social
Committee

Roger BRIESCH

— return implies family separation, either from children or

parents;

— return implies serious harm for minors in their charge;

— the person suffers from a serious physical or psychological

injury;

— the safety, life and freedom of the person may be at consid-

erable risk in the country of origin or transit.

International organisations

3.7
Cross, etc.) may be involved in return operations.

(e.g.

IOM, UNHCR, Red

The proposed Regulation (Article 17)

3.8
lays down that
each year the Management Board will draw up a general report
which it will forward to the Parliament, the Commission and

Brussels, 29 January 2004

(8) See OJ C 220 of 16.9.2003