Opinion of the European Economic and Social Committee - Proposal for a Decision of the European Parliament and of the Council establishing the External Borders Fund for the period 2007-2013 as part of the General programme  Solidarity and management of migration flows
Date: 2006-02-14
Institutions: European Economic and Social Committee
Subjects: EU Member State, EU office or agency, EU programme, border control, cooperation policy, external border of the EU, fight against crime, fund (EU), migratory movement, public safety

11.4.2006

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the

Proposal for a Decision of the European Parliament and of the Council establishing the European
Refugee Fund for the period 2008-2013 as part of the General programme ‘Solidarity and manage-
ment of migration flows’

Proposal for a Decision of the European Parliament and of the Council establishing the External
Borders Fund for the period 2007-2013 as part of the General programme ‘Solidarity and manage-
ment of migration flows’

Proposal for a Council Decision establishing the European Fund for the Integration of Third-
country Nationals for the period 2007-2013 as part of the General programme ‘Solidarity and
management of migration flows’

Proposal for a Decision of the European Parliament and of the Council establishing the European
Return Fund for the period 2008-2013 as part of the General programme ‘Solidarity and manage-
ment of migration flows’

(COM(2005) 123 final — 2005/0046 (COD) — 2005/0047 (COD) — 2005/0048 (CNS) — 2005/0049
(COD))

(2006/C 88/05)

On 20 July 2005 the Council, under Article 262 of the Treaty establishing the European Community,
decided to consult the European Economic and Social Committee on the abovementioned proposals.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 24 January 2006. The rapporteur was
Ms Le Nouail-Marlière.

At its 424th plenary session, held on 14 and 15 February 2006 (meeting of 14 February), the European
Economic and Social Committee adopted the following opinion by 125 votes to 2 with 11 abstentions.

1. The Commission proposals and the objectives of the

Communication

a

The

establishing

Communication

1.1
Framework
programme on ‘Solidarity and Management of Migration Flows’
is part of a package of proposals (1) providing for the setting-up
of a programme for implementing the Financial Perspective for
the period 2007-2013 (2) and the measures set out in the
Communication on the policy challenges and budgetary means
of
(see EESC opinion;
rapporteur: Mr Dassis (4)), which proposed the granting of
commitment appropriations totalling EUR 1,381 million for
the European area of freedom, security and justice in 2006
(Heading 3: Citizenship, freedom, security and justice), rising
progressively to EUR 3 620 million in 2013.

the enlarged Union 2007-2013 (3)

1.2
Overall, the aim should be to further the three objectives
of freedom, security and justice to the same degree of intensity,
as part of a balanced approach based on the principles of
democracy and respect for fundamental rights and freedoms.

(EUR 9,500 million)

the total amount
the overall amount

initially
1.3
Of
proposed,
foreseen for the framework
programme Solidarity and Management of Migration Flows was
EUR 5 866 million for
the period 2007-2013, of which
EUR 1 184 million was earmarked for asylum; EUR 759
million for the Return Fund; EUR 1 771 million for integration
of third-country nationals; and finally EUR 2 152 million for
external borders management. The amounts allocated to the
Member States and direct Community action (NGOs and
projects) will not be transferable from one Fund to another.

1.4
The framework programme on solidarity does not
include the agencies and other Community instruments falling
within the sphere of freedom, security and justice, viz.: the
European Agency for the Management of Operational Coopera-
tion at the External Borders, which will operate in the area
covered by the proposed framework programme and the new
financial perspective; the EURODAC system (for the compar-
ison of digital fingerprints); the Visa Information System; and
the Schengen Information System (SIS II). These information
systems are long-term commitments, and the legislative acts
establishing them do not contain provisions limiting their dura-
tion.

1.5
The present framework programme aims, inter alia, to
provide for the necessary coherence between relevant interven-
tions in each policy area by clearly linking political objectives
and the resources available to support them. The Commission
intends to simplify and rationalise existing financial support.
The framework programme also seeks to improve transparency
and increase flexibility in the setting of priorities.

According to the Commission document, the financial
1.6
solidarity of
the European Union should thus be able to
enhance and support the four pillars of a comprehensive and
balanced approach to migration flows by:

(1) COM(2005) 122, COM(2005) 124.
(2) COM(2004) 487 of 14.7.2004 (not adopted by the Council).
(3) COM(2004) 101 of 10.2.2004.
(4) EESC opinion of 15.9.2004 on the Communication from the Commis-
sion to the Council and the European Parliament. Building our common
future – policy challenges and budgetary means of the enlarged Union
2007-2013 (COM(2004) 101 final) (OJ C 74/2005).

— establishing a common integrated border management
system under the framework of the Schengen Convention
for the Member States which are parties to the Convention:
External Borders Fund for the period 2007-2013;

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— adopting

the

Programme,
European Return Action
approved in 2002 (5): European Return Fund for the period
2008-2013;

— providing a ‘credible response’

to the multidimensional
issue of ‘integration’ of third-country nationals: European
Fund for the Integration of Third-country Nationals for the
period 2007-2013;

— balancing efforts between the Member States with regard to
receiving refugees and displaced persons: European Refugee
Fund for the period 2008-2013.

The Commission proposal was

1.7
the subject of an
extended impact assessment (6), which is appended to the
proposal.

2. General comments

2.1
Although the programme builds on the coherence
provided by the Tampere Summit and the Hague Programme
and on Articles 62 and 63 of the Treaty, the programme frame-
work rests on only a small body of harmonised legislation
despite the Council's efforts to adopt some common measures
under the Tampere Programme (7). Thus, the European Council
of 4 and 5 November 2005 adopted the second multiannual
programme for the creation of a common area of freedom,
security and justice, known as the Hague Programme.

the

that,

despite

The Committee notes

2.2
‘Hague
Programme’, a really satisfactory common political approach
does not exist as of yet. In its opinion on the Communication
from the Commission to the Council and the European Parliament:
The Hague Programme: Ten priorities for the next five years — The
Partnership for European renewal in the Field of Freedom, Security
and Justice (8), the Committee set out in detail its views on the
Commission action plan relating to the Hague Programme.
Member States apply very different practices depending upon
location. As a result there are differences
their geographical
between Member States in terms of policy and responsibilities
towards Community
third-country nationals,
resulting in the juxtaposition of sometimes conflicting and
antagonistic policies within the Community, according to
whether or not they are parties (in full or in part) to the
Schengen I and II conventions, the Dublin I and II conven-
tions (9) or, for example, Community programmes for lasting
solutions to the resettlement of refugees (10). Experience shows
that in order to pursue policies to improve practices, on the
one hand, or bring about a balancing and dovetailing of
responsibilities towards a common objective, on the other, the
setting-up of new Funds and financial
instruments is not
enough.

citizens or

2.3
In the field of political and humanitarian asylum, the
drawing up of a list of ‘safe’ third countries remains a conten-
tious issue, particularly among recognised NGOs in the sphere
of human rights which are active in humanitarian aid. The
Committee does not think that it is appropriate to treat asylum
and immigration within the same framework when there are
marked differences in terms of constraints and scope for action.

Although the Committee is aware of the overarching
2.4
and holistic objective of the programme,
it has reservations
about the way in which border protection and integration of
migrants are treated under the same initiative. It nevertheless
feels that it is necessary to manage the funds in a coordinated
and coherent fashion, for the following reasons:

— first, the objectives inherent to the two programmes are not
the same. Furthermore, the parties responsible for their
implementation (public authorities, public services and
immigrant aid associations, etc.), i.e. the beneficiaries of the
funds, are different. Unless the Member States intend to
entrust the surveillance of external borders to private agen-
cies by way of delegation of public service, which would
imply appropriate public debate, they should not therefore
be treated in the same way;

involving states

the integration of migrants not only covers
— secondly,
aspects
in their capacity as a public
authority but also civil aspects, where the implementing
bodies are organised civil society players (associations) and,
ultimately, citizens themselves. These different
levels of
intervention and of beneficiaries of the funds set up by the
framework programme call for differentiated procedures,
treatment and guarantees.

still mindful of

Moreover,
the
the Committee stresses the need for the two
programme,
programmes to be sufficiently distinct from each other so as to
prevent any confusion that could arise.

the overall objective of

(5) Approved by the Council on 28 November 2002.
(6) SEC(2005) 435 of 6.4.2005.
(7) Presidency Conclusions, Tampere European Council, 15-16 October

1999.

(8) EESC opinion of 15.12.2005 on the Communication from the Commis-
sion to the Council and the European Parliament: The Hague Programme:
Ten priorities for the next
five years – The Partnership for European
renewal in the Field of Freedom, Security and Justice (CESE 1504/2005)
(rapporteur: Mr Pariza Castaños).

(9) EESC opinion of 20.3.2002 on the Proposal for a Council Regulation
establishing the criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged in one of the
Member States by a third-country national (rapporteur: Mr Sharma) (OJ
C 125 of 27.5.2002).

(10) EESC opinion of 15.12.2004 on the Communication from the
Commission to the Council and the European Parliament on themanaged
entry in the EU of persons in need of international protection and the
enhancement of the protection capacity of theregions of origin – Improving
access to durable solutions (rapporteur: Ms Le Nouail-Marlière) (OJ C
157 of 28.6.2005).

3. Specific comments

The Committee would point out that the content of the
3.1
Commission document cannot be the same regardless of
whether or not the Constitutional Treaty is ratified or the
Charter of Fundamental Rights is incorporated in the Treaty.

3.2
The Committee endorses the setting-up of solidarity
funds but urges the Commission to adapt this process to the
Hague Programme, taking on board the EESC opinion on this
subject (11).

(11) See footnote 8.

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4. Coherence of the proposal

As regards the proposed objectives set out in the Communica-
tion, the Committee questions the coherence between the obli-
gations for Member States that derive from the international
rule of law, the degree of harmonisation of European legislation
and the proposed framework programme.

The Committee is also concerned about the follow-up to be
given to the hearing of NGOs and associations representing
civil society and the social partners that was held on the above-
mentioned Green Paper on 14 June 2005, where a large
number of organisations spoke out against the primacy of the
economic approach over human rights and on the need to
understand all aspects of the human, cultural, social and legal
implications for all refugees and host countries.

The Communication and the framework programme contain a
number of confusing elements that undermine the credibility of
the proposal.

4.1.2
Finally, the Committee would have liked to see the
inclusion in the Commission initiative of the proposals it put
forward in its previous opinions on these matters.

4.1 The Communication

Asylum,

immigration,

4.1.1
integration, multidimensional
aspect, credible response, lasting solution — these are some of
the stated objectives. However, to complement the economic
approach adopted by the Commission in the Green Paper on
an EU approach to managing economic migration (12),
the
Communication should pay more attention to aspects of indivi-
dual and universal rights in the field of migration by estab-
lishing links with the General programme Fundamental Rights
and Justice and draw on the International Convention on the
Protection of the Rights of All Migrant Workers and Members
of Their Families (13).

The Committee also urges the Commission to pay more heed
to the evaluation report drawn up every four years by an inde-
pendent committee of legal experts and submitted to the Inter-
governmental Committee in the context of the institutional
monitoring of compliance with the Council of Europe's Revised
European Social Charter and to take this into account in its
additional proposals.

The Committee notes that it is intended that the management
of these structural funds would for the most part be delegated
to the Member States as part of their responsibilities, in compli-
ance with subsidiarity principles. As regards the principle of
proportionality and already pointed out in its opinion assessing
the Hague Programme and the related action plan,
the
Committee feels that ‘the Hague Programme makes setting up
arrangements for the assessment of existing policies a clear
priority. Before adopting these initiatives it is necessary to carry
out a detailed and independent study of their effectiveness,
added value, proportionality and legitimacy (compliance with
human rights and civil liberties)’ (14).

(12) EESC opinion of 9.6.2005 on the Green Paper on an EU approach to
managing economic migration (COM(2004) 811 final) (rapporteur: Mr
Pariza Castaños, OJ C 286 of 17.11.2005).

(13) EESC own-initiative opinion of 30.6.2004 on the International
Convention on Migrants (rapporteur: Mr Pariza Castaños) (OJ C 302
of 7.12.2004).

(14) Point 3.2.20 of the EESC opinion of 15.12.2005 on the Communi-
cation from the Commission to the Council and the European Parliament:
The Hague Programme: Ten priorities for the next five years – The Part-
nership for European renewal in the Field of Freedom, Security and Justice
(CESE 1504/2005) (rapporteur: Mr Pariza Castaños).

4.1.3
The Committee would stress that questions related to
the migration of persons should not be treated as a problem a
priori. Today's immigration, which comes on top of older
immigration, is creating a new political, economic and social
situation that society as a whole must address, taking into
account the right of people to choose their destiny within the
international, European and national legal framework adopted
by the Member States and through which they are linked (15).

4.1.4
The returns identified as a ‘solution’ by the Commis-
sion must not mean that a contrast is drawn between the rights
of ‘legally’ and ‘illegally’ staying third-country nationals. An irre-
gularity is not a permanent situation which has been deliber-
ately chosen so as to allegedly benefit from a hypothetical
status. There are many different kinds of
the
Committee has issued several opinions in which it has tried to
make the European institutions more aware of what is at stake
economically and of the reality of the victims' situation (16).
Return policy must always respect human rights and funda-
mental liberties.

irregularity;

The ‘management’ of borders and visas should not
4.1.5
take precedence over humanitarian, social, political or legal
aspects.

Deep-seated persistent causes such as drought in sub-Saharan
for resources for development, cooperation and
Africa call
combating
the
global warming,
EUR 759 million allocated to forced returns and the EUR 2.15
in
billion allocated to management of

external borders

going well

beyond

(15) The legal framework includes, in particular, Articles 13 and 14 of
the International Charter of Human Rights (the Universal Declara-
tion of Rights), the International Covenants on Political and Civil
Rights and their regional protocols of 1966 and on Economic,
Social and Cultural rights, also of 1966, which are the translation
into secondary law of the Universal Declaration of Human Rights,
Articles 6(1) and 6(2) of the Treaty on European Union Article 6(1)
(Article 6(1) of the of the consolidated Nice version of the Treaty
on European Union:
‘The Union is founded on the principles of
liberty, democracy, respect for human rights and fundamental free-
doms, and the rule of law, which are common values to the
Member States’), Article 13 of the Cotonou Agreement and the
provisions of the 1951 Geneva Convention relating to the right of
asylum.

(16) EESC opinion of 18 September 2002 on the Green Paper on the
Community return policy (rapporteur: Mr Pariza Castaños) (OJ C 61
of 14.3.2003) and the EESC opinion of 11 December 2002 on the
Communication on the Community return policy (rapporteur: Mr Pariza
Castaños) (OJ C 85 of 8.4.2003).

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the consular field. They require a political assessment and a
firm commitment to long-term action. Given that the fight
against hunger and drought is unfortunately not even included
in the millennium objectives, the Committee calls upon the
Commission and the Council to take an active interest in this
question and:

1) to adopt a policy of correcting the effects (aid for local rural
development) especially in the appropriate framework of
the Cotonou Agreement and of the development and coop-
eration policy;

2) to formulate any new proposals and support existing propo-
sals in the international cooperation framework, combining
improvement of a damaged environment with sustainable
development.

The Committee does not regard transferring the responsibility
for repatriation to the transit countries as an appropriate or
acceptable solution. There is a need to improve coordination
between the EU institutions and the authorities in the third
countries from which immigrants come. Moreover, the ques-
tion of immigration should be made an integral part of the
Union's external relations.

more than five years and who apply for residence in a second
Member State and to persons who have been residents for less
than five years who apply for a stay of short duration in a
second Member State. Therefore the Committee assumes that
by ‘irregular secondary movements’, the Commission means
movements of illegal residents and asylum seekers whose appli-
cations have been rejected in the first host country. Such
persons are not only entitled to lodge an application — which
they are not always permitted to do in all Member States —
but they are also entitled to an individual assessment and a
suspensive right of appeal.
In some Member States such
appeals are non-existent, rendered impossible or are non-
suspensive. The Committee understands that it must be possible
to use a financial instrument to promote the implementation of
the Dublin I and Dublin II conventions
(on which the
Committee has issued an opinion). But while the Commission
must ensure that funds are distributed equitably, it should pay
particular attention to the Member States which are most
affected by migratory pressure, taking into account not only
their position as border states but also their size (e.g. Cyprus,
Malta, etc.), their general reception capacities (asylum, resettle-
ment, immigration) and best practices in terms of compliance
with their obligations. The Communication does not establish
sufficiently precise guidelines for an equitable sharing of the
responsibilities. Financial assistance should not be granted to
Member States which close their reception centres or reduce
their capacity.

4.1.6
The free movement of persons cannot be ‘managed’,
to borrow the term used in the Communication, in the same
way that financial flows or services can.

financial

The four

instruments proposed by the
4.1.7
Commission to support action taken by the Member States in
the area of immigration should be applied in such a way as to
enable policy to be conducted in a coordinated manner in this
field, which, besides appropriate management of migratory
third-county nationals
integration of
flows,
residing legally in Member States under the same conditions as
nationals.

includes

the

The Committee would take this opportunity to denounce the
social dumping that may arise from the provision of cross-
border services, which is the primary channel of legal immigra-
tion. This problem also concerns workers from the new
Member States as a result of the temporary rules applied to
them.

The work of the social partners and organised civil society
plays a key role in this regard and must be supported and
acknowledged.

‘Irregular secondary movements’: on account of very strict
rules and — as the Committee would like to point out — the
non-adoption by the Council in 2002 of the Admission Direc-
tive (despite the support of the Committee and the European
Parliament), ‘regular’ secondary movements refer in law and in
fact to persons who have been resident in a Member State for

‘Integrated

procedures:

return management’

4.1.8
the
in its strictly consultative role as the assembly
Committee,
representing organised civil society, would point out that this is
about human beings and individuals. It would be more appro-
priate to develop lasting cooperation that respects peaceful
objectives and determine which criteria should be applied to
gauge the degree of voluntary return.

that

The Committee is surprised to read in the proposed
4.1.9
text
the specific objectives defined for the European
Return Fund include action ‘ensuring the provision of specific
assistance to vulnerable groups, such as children, … and those
who have been subjected to torture, rape or other serious
forms of psychological, physical or sexual violence’. It should,
however, be remembered that
the Geneva Convention lays
down provisions on the procedures, individual assessments and
appeals to which such persons are entitled. With the adoption
of the Qualification and Status Directive (17) and in view of the
fact that the Member Sates are parties to the European Conven-
tion on Safeguarding Human Rights and Fundamental Free-
doms, the Committee finds it hard to believe that persons in
such a situation could come under the scope of ‘voluntary
returns’.

(17) The Geneva Convention is clear in this regard (‘For the purposes of
this Convention, the term “refugee” shall mean any person who,
owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and
being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling
to return to it.’), as is Council Directive 2004/83/EC of 29 April
2004 on minimum standards for the qualification and status of
third country nationals and stateless persons as refugees or as
persons who otherwise need international protection.

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4.1.10
The Commission should reflect on the criteria to be
used to measure the success of a voluntary return programme.
The Committee understands that what is at issue here is not
cooperation or the development of personal plans for indivi-
duals but rather repatriation after a judicial or administrative
decision and a decision on return and removal. The Committee
defends the necessity of respecting and upholding the European
Convention on Human Rights and the Charter of Fundamental
Rights and complying with the applicable principles: no one
should be forced to return if this would put their life in danger.
In this regard, emphasis should be given to means of access to
justice. Appeals should always be suspensive. Finally, returns
should take place only on an exceptional basis in accordance
with the approach laid down in the European Convention for
the Protection of Human Rights and Fundamental Freedoms of
the Council of Europe. This is not the impression conveyed by
certain terms in the proposal (see, for example, section 5.1.3 of
the Financial Statement).

forward more detailed imple-
The Commission should put
menting provisions which guarantee advice, material assistance
and other appropriate forms of support in connection with
returns. It should also put forward provisions on, for example,
independent and credible monitoring and control arrangements
with regard to the safety, protection and well-being of repa-
triated persons.

Brussels, 14 February 2006.

5. Conclusion

A genuinely democratic European project in the hands of the
in accordance with the budgetary procedures of the
people,
institutions and of the European Union and based on rights:

The Committee:

— supports the proposal to set up a European Fund for the
Integration of Third-country Nationals for the period 2007-
2013, a European Refugee Fund following on from the
existing fund, and an External Borders Fund;

— asks the Council to examine and adopt together the draft
the general
Communication defining the framework of
programme ‘Solidarity and management of migration flows’
and the decisions setting up specific funds for implementing
the general programme;

— calls upon the Commission to take account of the EESC's
recommendations in its action plan linked with the Hague
Programme;

— recommends that the Council and the Commission ensure
the transparency of operation of these new structural funds
by making an explicit connection between the Hague
Programme and the Communication under consideration;

— calls for practical provisions to be included in the decisions
setting up these various funds to ensure that non-state
operators are associated at as early a stage as possible in the
annual and multi-annual framework of guidelines drawn up
by the Member States and by the Commission itself.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND