Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union
Date: 2004-10-26
Institutions: Council of the European Union
Subjects: EU office or agency, EU police cooperation, border control, external border of the EU, operation of the Institutions

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Official Journal of the European Union

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 2007/2004

of 26 October 2004

establishing a European Agency for the Management of Operational Cooperation at the External
Borders of the Member States of the European Union

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
establishing the European
Community, and in particular Articles 62(2)(a) and 66 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Having regard to the opinion of the European Economic and
Social Committee (2),

Whereas:

(1)

(2)

(3)

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
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 external
borders is foreseen.

European Union and

a

The efficient implementation of the common rules calls
for increased coordination of the operational cooperation
between the Member States.

a

body

expert

specialised

the experiences of

Taking into account
the External
Borders Practitioners’ Common Unit, acting within the
Council,
tasked with
improving the coordination of operational cooperation
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 Opera-
the
tional Cooperation at
the External Borders of
Member States of
the European Union (hereinafter
referred to as the Agency).

(1) Opinion of 9 March 2004 (not yet published in the Official Journal).
(2) OJ C 108, 30.4.2004, p. 97.

(4)

(5)

(6)

(7)

(8)

(9)

The responsibility for the control and surveillance of
external borders
lies with the Member States. The
Agency should facilitate the application of existing and
future Community measures relating to the management
of external borders by ensuring the coordination of
Member States’ actions in the implementation of those
measures.

States

the utmost

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

external

in the

The

of

of

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 with a
integrated management of
view to improving the
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
third-country
external borders
nationals illegally present
in the Member States for
officers of the competent national services. The Agency
may organise training activities
in cooperation with
Member States on their territory.

and removal of

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

The Agency should manage lists of technical equipment
provided by the Member States, thereby contributing to
the ‘pooling’ of material resources.

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(10)

in
The Agency should also support Member States
circumstances requiring increased technical and opera-
tional assistance at external borders.

(16)

(11)

(12)

(13)

(14)

(15)

the Agency should, subject

In most Member States, the operational aspects of return
of third-country nationals illegally present in the Member
States fall within the competencies of
the authorities
responsible for controlling external borders. As there is
a clear added value in performing these tasks at European
to the Community
level,
return
necessary
assistance for organising joint
return operations of
Member States and identify best practices on the acqui-
sition of travel documents and the removal of third-
country nationals illegally present in the territories of
the Member States.

accordingly

provide

policy,

the

For the purpose of fulfilling its mission and to the extent
required for the accomplishment of its tasks, the Agency
may cooperate 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 in
accordance with the relevant provisions of the Treaty.
The Agency should facilitate the operational cooperation
in the
between Member States and third countries
framework of
the
European Union.

relations policy of

external

the

Building upon the experiences of the External Borders
Practitioners’ Common Unit and the operational and
training 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.

The Agency should be independent as regards technical
matters and have legal, administrative and financial
autonomy. To that end, it is necessary and appropriate
that
should be a Community body having legal
personality and exercising the implementing powers,
which are conferred upon it by this Regulation.

it

The Commission and the Member States should be repre-
sented within a Management Board in order to control
effectively the functions of
the Agency. The Board
should, where possible, consist of the operational heads
of
the national services responsible for border guard
management or their representatives. This Board should
be entrusted with the necessary powers to establish the
budget, verify its
the appropriate
financial rules, establish transparent working procedures
for decision making by the Agency and appoint
the
Executive Director and his/her deputy.

execution, adopt

it

the Agency,

to guarantee the full autonomy and inde-
In order
pendence of
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
the
subsidies
European Union are
auditing of
accounts should be undertaken by the Court of Auditors.

to the general budget of

concerned. The

chargeable

(OLAF) (1)

the European
Regulation (EC) No 1073/1999 of
Parliament and of
the Council of 25 May 1999
concerning investigations conducted by the European
Anti-Fraud Office
should apply without
restriction to the Agency, which should accede to the
Interinstitutional Agreement of 25 May 1999 between
the European Parliament, the Council of the European
Union and the Commission of the European Commu-
the
nities
European Anti-Fraud Office (OLAF) (2).

investigations

concerning

internal

by

the European
Regulation (EC) No 1049/2001 of
Parliament and of
the Council of 30 May 2001
regarding public access to European Parliament, Council
and Commission documents (3)
should apply to the
Agency.

Regulation (EC) No 45/2001 of the European Parliament
and of
the Council of 18 December 2000 on the
protection of individuals with regard to the processing
of personal data by the Community institutions and
such data (4)
bodies and on the free movement of
applies to the processing of personal data by the Agency.

The development of the policy and legislation on external
border control and surveillance remains a responsibility
of the EU institutions,
in particular the Council. Close
coordination between the Agency and these institutions
should be guaranteed.

Since the objectives of this Regulation, namely the need
for creating an integrated management of operational
the Member
the external borders of
cooperation at
States of
the European Union, cannot be sufficiently
achieved by the Member States and can therefore be
better achieved at Community level,
the Community
may adopt measures,
in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty. In
accordance with the principle of proportionality, as set
out in that Article, this Regulation does not go beyond
what is necessary in order to achieve those objectives.

(17)

(18)

(19)

(20)

(21)

(22)

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.

(1) OJ L 136, 31.5.1999, p. 1.
(2) OJ L 136, 31.5.1999, p. 15.
(3) OJ L 145, 31.5.2001, p. 43.
(4) OJ L 8, 12.1.2001, p. 1.

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(23) As

Iceland

regards

and Norway,

a development of

this Regulation
constitutes
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 two States with the implementation,
application and development of
the Schengen acquis,
which fall within the area referred to in Article 1,
point A of Council Decision 1999/437/EC (1) on
that
certain arrangements
Agreement. Consequently, delegations of
the Republic
of Iceland and the Kingdom of Norway should parti-
cipate as members of
the
Agency, albeit with limited voting rights.
In order to
determine the further modalities allowing for the full
participation of
Iceland and the
the Republic of
Kingdom of Norway in the activities of the Agency, a
further arrangement should be concluded between the
Community and these States.

the Management Board of

application of

the

for

(24)

(25)

(26)

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on
European Union 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
the Treaty establishing the
Title IV of Part Three of
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.

take part,

This Regulation constitutes a development of provisions
of the Schengen acquis in which the United Kingdom
does not
in accordance with Council
Decision 2000/365/EC of 29 May 2000 concerning the
the United Kingdom of Great Britain and
request of
Northern Ireland to take part in some of the provisions
the Schengen acquis (2). The United Kingdom is
of
therefore not
in its adoption and is not
taking part
bound by it or subject to its application.

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 acquis (3).
Ireland is therefore not taking part in its adoption and is
not bound by it or subject to its application.

themselves of the expertise and facilities which Ireland
and the United Kingdom may be willing to offer,
in
accordance with modalities to be decided on a case-by-
case basis by the Management Board. To that end, repre-
sentatives of Ireland and the United Kingdom should be
invited to attend all the meetings of the Management
Board in order to allow them to participate fully in the
deliberations for the preparation of such operational
actions.

(28) A controversy exists between the Kingdom of Spain and
the United Kingdom on the demarcation of the borders
of Gibraltar.

(29)

The suspension of the applicability of this Regulation to
the borders of Gibraltar does not imply any change in
the respective positions of the States concerned,

HAS ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER

Article 1

Establishment of the Agency

A European Agency for the Management of Operational
1.
is hereby
Cooperation at the External Borders (the Agency)
integrated
established with
management of the external borders of the Member States of
the European Union.

improving

view to

the

a

2. While considering that the responsibility for the control
and surveillance of external borders lies with the Member States,
the Agency shall facilitate and render more effective the appli-
cation of existing and future Community measures relating to
the management of external borders. It shall do so by ensuring
the coordination of Member States’ actions in the implemen-
tation of those measures, thereby contributing to an efficient,
high and uniform level of control on persons and surveillance
of the external borders of the Member States.

The Agency shall also provide the Commission and the
support and
the external borders and

3.
Member States with the necessary technical
expertise in the management of
promote solidarity between Member States.

(27)

The Agency should facilitate the organisation of opera-
tional actions in which the Member States may avail

(1) OJ L 176, 10.7.1999, p. 31.
(2) OJ L 131, 1.6.2000, p. 43.
(3) OJ L 64, 7.3.2002, p. 20.

For the purposes of

4.
this Regulation, references to the
external borders of the Member States shall mean the land
and sea borders of the Member States and their airports and
seaports, to which the provisions of Community law on the
crossing of external borders by persons apply.

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CHAPTER II

TASKS

Article 2

Main tasks

1.

The Agency shall perform the following tasks:

(a) coordinate operational cooperation between Member States

in the field of management of external borders;

The Agency may operate through its specialised branches
2.
provided for in Article 16, for the practical organisation of joint
operations and pilot projects.

The Agency shall evaluate the results of

3.
the joint
operations and pilot projects and make a comprehensive
view to
comparative
those
enhancing the quality, coherence and efficiency of
future
operations and projects to be included in its general report
provided for in Article 20(2)(b).

results with a

analysis of

(b) assist Member States on training of national border guards,
including the establishment of common training standards;

The Agency may decide to co-finance the operations and
4.
projects referred to in paragraph 1, with grants from its budget
in accordance with the financial rules applicable to the Agency.

(c) carry out risk analyses;

(d) follow up on the development of research relevant for the

control and surveillance of external borders;

(e) assist Member States in circumstances requiring increased
technical and operational assistance at external borders;

(f) provide Member States with the necessary support in orga-

nising joint return operations.

2. Without prejudice to the competencies of the Agency,
Member States may continue cooperation at an operational
level with other Member States and/or
third countries at
external borders, where such cooperation complements the
action of the Agency.

Member States shall refrain from any activity which could
jeopardise the functioning of the Agency or the attainment of
its objectives.

Member States shall report to the Agency on these operational
matters at the external borders outside the framework of the
Agency.

Article 3

Joint operations and pilot projects at external borders

The Agency shall

1.
and coordinate
proposals for joint operations and pilot projects made by
Member States.

evaluate, approve

Article 4

Risk analysis

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

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

The Agency shall
incorporate the results of a common inte-
grated risk analysis model in its development of the common
core curriculum for border guards’ 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.

The Agency may organise training activities in cooperation with
Member States on their territory.

The Agency may itself, and in agreement with the Member
State(s) concerned,
launch initiatives for joint operations and
pilot projects in cooperation with Member States.

Article 6

Follow-up to research

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

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Article 7

Article 10

Management of technical equipment

Exercise of executive powers

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

Article 8

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

1. Without prejudice to Article 64(2) of the Treaty, one or
more Member States confronted with circumstances requiring
increased technical and operational assistance when imple-
menting
and
surveillance of external borders may request the Agency for
assistance. The Agency can organise the appropriate technical
and operational assistance for the requesting Member State(s).

their obligations with regard

to control

Under the circumstances referred to in paragraph 1, the

2.
Agency can:

(a) assist on matters of coordination between two or more
Member States with a view to tackling the problems
encountered at external borders;

(b) deploy its experts to support the competent national autho-
rities of the Member State(s) involved for the appropriate
duration.

3.
The Agency may acquire technical equipment for control
and surveillance of external borders to be used by its experts for
the duration of
in
question.

in the Member State(s)

the deployment

Article 9

Return cooperation

1.
Subject to the Community return policy, the Agency shall
provide the necessary assistance for organising joint return
operations
use
States.
Community financial means available in the field of return.

The Agency may

of Member

2.
The Agency shall identify best practices on the acquisition
of travel documents and the removal of illegally present third-
country nationals.

Exercise of executive powers by the Agency’s staff and the
Member States’ experts acting on the territory of another
Member State shall be subject
that
Member State.

to the national

law of

Article 11

Information exchange systems

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

for

its

Article 12

Cooperation with Ireland and the United Kingdom

The Agency shall facilitate operational cooperation of the
1.
Member States with Ireland and the United Kingdom in matters
covered by its activities and to the extent required for the
fulfilment of its tasks set out in Article 2(1).

2.
Support to be provided by the Agency pursuant to Article
2(1)(f) shall cover the organisation of joint return operations of
Member States in which Ireland or the United Kingdom, or
both, also participate.

The application of

this Regulation to the borders of
3.
the date on which an
Gibraltar shall be suspended until
agreement is reached on the scope of the measures concerning
the crossing by persons of the external borders of the Member
States.

Article 13

Cooperation with Europol and international organisations

The Agency may cooperate with Europol and the international
organisations competent in matters covered by this Regulation
in the framework of working arrangements concluded with
in accordance with the relevant provisions of
those bodies,
those
the Treaty and the provisions on the competence of
bodies.

Article 14

Facilitation of operational cooperation with third countries
third
and cooperation with competent authorities of

countries

In matters covered by its activities and to the extent required for
the fulfilment of its tasks, the Agency shall facilitate the opera-
tional cooperation between Member States and third countries,
in the framework of the European Union external relations
policy.

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third
The Agency may cooperate with the authorities of
countries competent in matters covered by this Regulation in
the framework of working arrangements concluded with these
authorities,
in accordance with the relevant provisions of the
Treaty.

CHAPTER III

STRUCTURE

Article 15

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.

The Agency shall be independent
matters.

in relation to technical

It shall be represented by its Executive Director.

The seat of the Agency shall be decided by unanimity of the
Council.

Article 16

Specialised branches

The Management Board of the Agency shall evaluate the need
for, and decide upon the setting up of, specialised branches in
the Member States, subject to their consent, taking into account
that due priority should be given to the operational and training
centres already established and specialised in the different
the land, air and
aspects of control and surveillance of
maritime borders respectively.

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

The powers conferred on the appointing authority by the
2.
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 sufficient number of
3.
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 18

Privileges and immunities

The Protocol on the privileges and immunities of the European
Communities shall apply to the Agency.

Article 19

Liability

The contractual liability of the Agency shall be governed

1.
by the law applicable to the contract in question.

The Court of Justice of the European Communities shall
2.
have jurisdiction to give judgment pursuant to any arbitration
clause contained in a contract concluded by the Agency.

In the case of non-contractual liability, the Agency shall,
3.
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
the damage referred to in

4.
relating to compensation for
paragraph 3.

5.
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.

Article 20

Powers of the Management Board

The Agency shall have a Management Board.

The Management Board shall:

Each specialised branch shall submit a detailed annual report to
the Executive Director of the Agency on its activities and shall
provide any other type of information relevant for the coordi-
nation of operational cooperation.

1.

2.

Article 17

Staff

(a) appoint

the Executive Director on a proposal

from the

Commission in accordance with Article 26;

The Staff Regulations of officials of the European Commu-
1.
nities, the Conditions of employment of other servants of the
European Communities and the rules adopted jointly by the
institutions of the European Communities for the purposes of
applying those Regulations and Conditions shall apply to the
Agency’s staff.

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

to the European Parliament,
European

the Council,
and

Economic

the

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

Community

procedure

and

(d) establish procedures for taking decisions related to the
operational tasks of the Agency by the Executive Director;

Article 21

Composition of the Management Board

1. Without prejudice to paragraph 3, the Management Board
shall be composed of one representative of each Member State
and two representatives of the Commission. To this effect, each
Member State shall appoint a member of
the Management
Board as well as an alternate who will represent the member
in his/her absence. The Commission shall appoint two members
and their alternates. The duration of the terms of office shall be
four years. This term of office shall be extendable once.

(e) carry out

its functions relating to the Agency’s budget
pursuant to Articles 28, 29(5), (9) and (11), Article 30(5)
and Article 32;

The Management Board members shall be appointed on
2.
the basis of their degree of high level relevant experience and
expertise in the field of operational cooperation on border
management.

(f) exercise disciplinary authority over the Executive Director
in agreement with the

the Deputy Director,

and over
Executive Director;

(g) establish its Rules of Procedure;

(h) establish the organisational structure of
adopt the Agency’s staffing policy.

the Agency and

3.
Proposals for decisions on specific activities to be carried
out at, or in the immediate vicinity of, the external border of
any particular Member State shall require a vote in favour of
their adoption by the Member of the Management Board repre-
senting that Member State.

4.
The Management Board may advise the Executive Director
on any matter strictly related to the development of operational
management of the external borders,
including follow-up to
research as defined in Article 6.

to
Should Ireland and/or the United Kingdom request
5.
participate in the Agency’s activities, the Management Board
shall decide thereon.

The Management Board shall take its decision on a case-by-case
basis by an absolute majority of its members with a right to
vote. In its decision, the Management Board shall consider if the
participation of Ireland and/or the United Kingdom contributes
to the achievement of the activity in question. The decision shall
set out the financial contribution of Ireland and/or the United
Kingdom to the activity for which a request for participation
has been made.

The Management Board shall

forward annually to the
6.
budgetary authority any information relevant to the outcome
of the evaluation procedures.

The Management Board may establish an Executive Bureau
7.
to assist
it and the Executive Director with regard to the
preparation of the decisions, programmes and activities to be
adopted by the Management Board and when necessary,
because of urgency, to take certain provisional decisions on
behalf of the Management Board.

3.
Countries associated with the implementation, application
and development of the Schengen acquis shall participate in the
Agency. They shall have one representative and an alternate
each in the Management Board. Under the relevant provisions
of their association 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 contri-
butions and staff.

Article 22

Chairmanship of the Management Board

1.
The Management Board shall elect a Chairperson and a
Deputy Chairperson from among its members. The Deputy
Chairperson shall ex-officio replace the Chairperson in the
event of his/her being prevented from attending to his/her
duties.

The term of office of the Chairperson and Deputy Chair-
2.
person shall expire when their respective membership of the
Management Board ceases. Subject
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.

to this provision,

Article 23

Meetings

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

The Executive Director of the Agency shall take part in the

2.
deliberations.

3.
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
its
members.

least one third of

the request of at

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Ireland and the United Kingdom shall be invited to attend

4.
the meetings of the Management Board.

(b) to take all necessary steps,

including the adoption of
internal administrative instructions and the publication of
notices,
the Agency in
to ensure the functioning of
accordance with the provisions of this Regulation;

The Management Board may invite any other person
5.
whose opinion may be of interest to attend its meetings as
an observer.

(c)

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

6.
The members of the Management Board may, subject to
the provisions of its Rules of Procedure, be assisted by advisers
or experts.

(d) to exercise in respect of the staff the powers laid down in

Article 17(2);

7.
for
The secretariat
provided by the Agency.

the Management Board shall be

(e)

to draw up estimates of the revenues and expenditure of the
Agency pursuant to Article 29, and implement the budget
pursuant to Article 30;

Article 24

Voting

1. Without prejudice to Article 20(2)(c) as well as 26(2) and
(4),
take its decisions by an
absolute majority of its members with a right to vote.

the Management Board shall

Each member shall have one vote. The Executive Director
2.
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.

(f)

to delegate his/her powers
the
Agency’s staff subject to rules to be adopted in accordance
with the procedure referred to in Article 20(2)(g).

to other members of

4.
The Executive Director
activities to the Management Board.

shall be accountable for his

Article 26

Appointment of senior officials

3.
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.

1.
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 of the European Union and other
press or internet sites as appropriate.

Article 25

Functions and powers of the Executive Director

1.
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, the Management Board and the Executive
Bureau,
take
instructions from any government or from any other body.

the Executive Director shall neither seek nor

2.
The European Parliament or the Council may invite the
Executive Director of the Agency to report on the carrying out
of his/her tasks.

2.
The Executive Director of the Agency shall be appointed
by the Management Board on the grounds of merit and docu-
mented 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
Management Board, according to the same procedure.

lie with the

The Executive Director shall be assisted by a Deputy
is absent or
take his/her

the Deputy Executive Director shall

the Executive Director

If

3.
Executive Director.
indisposed,
place.

The Executive Director shall have the following functions

3.
and powers:

(a)

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 imple-
menting rules and any applicable law;

4.
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.

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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
5.
Deputy Executive Director shall be five years. They may be
extended by the Management Board once for another period
of up to five years.

Article 27

Translation

The provisions laid down in Regulation No 1 of 15 April
1.
1958 determining the languages to be used in the European
Economic Community (1) shall apply to the Agency.

CHAPTER IV

FINANCIAL REQUIREMENTS

Article 29

Budget

The revenue of the Agency shall consist, without prejudice

1.
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 countries associated with the imple-
mentation, application and development of the Schengen
acquis,

2. Without prejudice to decisions taken on the basis of
Article 290 of the Treaty, the general report and programme
of work referred to in Article 20(2)(b) and (c), shall be produced
in all official languages of the Community.

— fees for services provided,

— any voluntary contribution from the Member States.

3.
The translation services required for the functioning of the
Agency shall be provided by the Translation Centre for the
bodies of the European Union.

The expenditure of the Agency shall

2.
administrative, infrastructure and operational expenses.

include the staff,

Article 28

Transparency and communication

The Executive Director shall draw up an estimate of the
3.
revenue and expenditure of
the following
financial year and shall forward it to the Management Board
together with an establishment plan.

the Agency for

1.
Six months after the entry into force of this Regulation,
the Agency shall be subject to Regulation (EC) No 1049/2001
when handling applications for access to documents held by it.

4.

Revenue and expenditure shall be in balance.

The Agency may communicate on its own initiative in the
2.
fields within its mission. It shall ensure in particular that,
in
addition to the publication specified in Article 20(2)(b), the
public and any interested party are rapidly given objective,
reliable and easily understandable information with regard to
its work.

5.
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 to the Commission and to the countries associated
with the implementation, application and development of the
Schengen acquis.

The Management Board shall

3.
arrangements for the application of paragraphs 1 and 2.

lay down the practical

Any natural or legal person shall be entitled to address
4.
himself/herself in writing to the Agency in any of the languages
referred to in Article 314 of the Treaty. He/she shall have the
right to receive an answer in the same language.

5.
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.

The estimate shall be forwarded by the Commission to the
6.
European Parliament and the Council (hereinafter referred to as
the budgetary authority) together with the preliminary draft
budget of the European Union.

7.
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
the budgetary authority in
shall place before
accordance with Article 272 of the Treaty.

The budgetary authority shall authorise the appropriations

8.
for the subsidy to the Agency.

(1) OJ 17, 6.10.1958, p. 385. Regulation as last amended by the 2003

Act of Accession.

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

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The Management Board adopts the Agency’s budget. It
9.
shall become final following the final adoption of the general
budget of the European Union. Where appropriate, it shall be
adjusted accordingly.

10.
Any modification to the budget,
lishment plan, shall follow the same procedure.

including the estab-

The Management Board shall, as soon as possible, notify
11.
its intention to implement any
the budgetary authority of
implications for
project, which may have significant financial
in particular any projects relating
the funding of its budget,
to property such as the rental or purchase of buildings.
It
shall inform the Commission thereof as well as the countries
associated with the implementation, application and devel-
opment of the Schengen acquis.

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 30

Implementation and control of the budget

The Executive Director

1.
budget.

shall

implement

the Agency’s

2.
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 conso-
lidate the provisional accounts of the institutions and decen-
tralised bodies in accordance with Article 128 of Council Regu-
lation (EC, Euratom) No 1605/2002 of 25 June 2002 on the
Financial Regulation applicable to the general budget of the
European Communities (1) (hereafter referred to as the general
Financial Regulation).

3.
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
4.
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/her own responsibility and
forward them to the Management Board for an opinion.

The Management Board shall deliver an opinion on the

5.
Agency’s final accounts.

By 1 July of the following year at the latest, the Executive
6.
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 as well as
the countries associated with the implementation, application
and development of the Schengen acquis.

7.

The final accounts shall be published.

8.
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.

Upon a recommendation from the Council, the European
9.
Parliament shall, before 30 April of the discharge year + 2, give
a discharge to the Executive Director of the Agency in respect
of the implementation of the budget for the discharge year.

Article 31

Combating fraud

1.
In order to combat fraud, corruption and other unlawful
activities the provisions of Regulation (EC) No 1073/1999 shall
apply without restriction.

shall

The Agency

Interinstitutional
2.
Agreement of 25 May 1999 and shall
issue, without delay,
the appropriate provisions applicable to all the employees of
the Agency.

to the

accede

3.
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 32

Financial provision

The financial rules applicable to the Agency shall be adopted by
the Management Board after consultation of the Commission.
They may not depart
from Commission Regulation (EC,
Euratom) No 2343/2002 (2) on the framework Financial Regu-
lation for the bodies referred to in Article 185 of the general
Financial Regulation, unless
the
Agency’s operation and with the Commission’s prior consent.

required for

specifically

(1) OJ L 248, 16.9.2002, p. 1.

(2) OJ L 357, 31.12.2002, p. 72.

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CHAPTER V

FINAL PROVISIONS

Article 33

Evaluation

1. 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 Agency and its working practices

The Management Board shall receive the findings of the
3.
evaluation and issue recommendations regarding changes to this
Regulation,
to the
Commission, which shall 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.

Article 34

Entry into force

2.
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.

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 May 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 Luxembourg, 26 October 2004.

For the Council
The President

R. VERDONK