Proposal for a Council Decision supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of the operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders
Date: 2009-11-27
Institutions: European Commission
Subjects: Frontex, Schengen Agreement, aid to refugees, border control, external border of the EU, human rights, international cooperation, international law, law of the sea, maritime surveillance

EN 

EN 

   EN 

 
 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 27.11.2009 
COM(2009)658 final 

Proposal for a 

COUNCIL DECISION 

supplementing the Schengen Borders Code as regards the surveillance of the sea 
external borders in the context of the operational cooperation coordinated by the 
European Agency for the Management of Operational Cooperation at the External 
Borders 

EN 

   EN 

 
 
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Background 

In  2007  the  Commission  produced  a  study  analysing  the  international  legal  framework  for 
surveillance of the external maritime border and the obstacles to its effective implementation. 
The  Commission  then  commissioned  an  informal  group  consisting  of  experts  from  the 
Member  States,  Frontex,  the  Office  of  the  UN  High  Commissioner  for  Refugees  and  the 
International  Organisation  for  Migration  to  produce  guidelines  for  Frontex's  maritime 
operations. 

The  JHA  Council  in  September  2007  expressed  its  support  for  the  group.  It  invited  "the 
Commission, Frontex and Member States to complete as a matter of priority the analysis of 
the law of the sea as relevant for Frontex joint operations, and [requested] the Commission to 
report back to the Council before the end of the year". 

The Group met on five occasions between July 2007 and April 2008 and produced the "Draft 
guidelines for Frontex operations at sea". The participants failed to agree on issues such as the 
implications  of  human  rights  and  refugees'  rights,  the  role  of  Frontex  and  the  prior 
identification of the places of disembarkation for the migrants. 

In  the  belief  that  the  differences  between  the  Member  States  would  make  it  impossible  to 
establish  guidelines,  the  Commission  prepared  a  draft  decision  based  on  the  results  of  the 
informal  drafting  group.  The  draft  was  based  on  Article  12  of  the  Schengen  Borders  Code, 
which  allows  the  Commission  to  adopt  rules  on  border  surveillance  in  accordance  with  the 
comitology  procedure  (regulatory  committee  with  the  European  Parliament  exercising  the 
right of scrutiny). 

1.2. 

Consultation of the Schengen Borders Code Committee 

The draft decision was presented to the Schengen Borders Code Committee for discussion on 
23-24  February  2009.  Several  Member  States  strongly  opposed  the  draft,  largely  on  the 
grounds  that  it  went  beyond  the  powers  conferred  on  the  Commission  by  the  Schengen 
Borders Code. Other Member States, however, expressed firm support, particularly as regards 
the protection of human rights and the rights of refugees. Some Member States had still not 
completed their internal consultations, but also had reservations about the draft. 

In the light of the conclusions of the European Council of June 2009, which underlined the 
need  for  "strengthened  border  control  operations  coordinated  by  Frontex,  clear  rules  of 
engagement for joint patrolling and the disembarkation of rescued persons", the Commission 
decided  to  pursue  the  comitology  procedure.  A  revised  version  of  the  draft  decision,  taking 
into account some of the concerns expressed by the Member States, was put to the Committee 
on 19 October. The main changes were as follows: 

•  The guidelines were reproduced in full in an annex that would form part of the operational 

plan established by the participating Member States and by the Frontex Agency.  

•  The principle of non-refoulement was reformulated and would apply to cases where there 
were  substantial  grounds  for  believing  that  the  individuals  would  be  subjected  to 
persecution or other forms of inhuman or degrading treatment. 

 
 
•  The  provision  on  interceptions  and  search  and  rescue  in  the  context  of  surveillance 

operations was simplified. 

•  The  draft  gives  priority  to  disembarkation  in  third  countries  (subject  to  compliance  with 
the  principle  of  non-refoulement);  failing  this,  disembarkation  should  take  place  in  the 
geographically closest place.  

At the meeting of 19 October the Committee was asked to give a formal opinion on the draft 
decision. Eight Member States voted in favour of the draft, making a total of 67 votes. Seven 
Member  States  voted  against,  making  a  total  of  116  votes.  Four  Member  States  abstained. 
Five  Member  States  were  not  represented.  The  threshold  required  for  issuing  a  Committee 
opinion (223 votes) was not reached. 

2. 

REASONS AND OBJECTIVES 

This  proposal  represents  the  next  stage  of  the  comitology  procedure,  which  requires  the 
Commission  to  present  a  proposal  for  a  Council  decision  to  the  Council  and  the  European 
Parliament,  without  delay,  containing  the  text  of  the  draft  that  was  put  to  the  vote  in  the 
Committee. 

The aim of the proposal is to ensure that the international rules relevant to the maritime border 
surveillance  operations  carried  out  under  the  operational  cooperation  coordinated  by  the 
Frontex Agency (Convention on the Law of the Sea, conventions on safety at sea and search 
and rescue, international law on refugees and fundamental rights) are uniformly applied by all 
the Member States taking part in these operations. It also seeks to create the regulatory basis 
needed  to  enable  one  Member  State  to  carry  out  surveillance  of  another  Member  State's 
maritime border. 

The  need  for  "clear  rules  of  engagement  for  joint  operations  at  sea,  with  due  regard  to 
ensuring  protection  for  those  in  need  who  travel  in  mixed  flows,  in  accordance  with 
international law" was mentioned once again in the conclusions of the European Council of 
29-30 October 2009. 

The draft specifically aims to provide an answer to the following problems: 

•  Some  Member  States,  Members  of  the  European  Parliament,  academics  and  associations 
have questioned whether fundamental rights and the rights of refugees are being respected 
during the Frontex operations (particularly as regards  the prohibition on  refoulement and 
access  to  asylum  procedures).  They  wonder  what  law  applies  in  such  situations, 
particularly  on  the  high  seas,  and  what  guarantees  there  are  that  these  rights  are  actually 
respected.  There  is  indeed  a  duty  to  respect  fundamental  rights  when  implementing  the 
Schengen  Code,  but  it  is  not  stated  explicitly  in  relation  to  surveillance  operations.  As 
regards  the  principle  of  non-refoulement,  there  are  differences  in  the  Member  States' 
interpretations  of  this  principle  of  international  law,  with  some  Member  States,  for 
example, contesting its applicability in international waters. 

•  The  proposal  aims  to  make  the  duty  to  respect  fundamental  rights  and  the  rights  of 
refugees  explicit  in  Frontex  Agency  surveillance  operations.  Finally,  the  proposal 
introduces a prohibition on refoulement of those in danger of persecution or other forms of 
inhuman or degrading treatment. This prohibition would apply regardless of the status of 
the waters the people were in. 

 
 
•  The proposal for a decision creates a legal basis in Community law for exercising a range 
of  powers  necessary  for  the  effective  application  of  Article  12  of  the  Schengen  Borders 
Code,  such  as  searching  and  intercepting  vessels.  It  then  specifies  the  conditions  under 
which such measures can be taken in the different maritime areas, including international 
waters.  These  conditions  include  the  relevant  rules  of  international  law,  thereby 
contributing  to  their  effective  and  uniform  implementation  in  Frontex  operations 
(authorisation of the coastal State, verification of the flag the ship is flying, authorisation of 
the flag State, vessels without flags, etc.). 

•  Most  of  the  maritime  operations  coordinated  by  Frontex  turn  into  search  and  rescue 
operations. However, Frontex is not an SAR agency; its job is to help implement the rules 
on  border  controls.  In  practice,  the  fact  that  the  operations  become  search  and  rescue 
operations removes them from the scope of Frontex coordination and Community law. The 
obligation  to  render  assistance  at  sea  and  the  responsibilities  of  SAR  authorities  are 
regulated by international law, but these rules are not interpreted or applied uniformly by 
the Member States. 

•  The proposal for a decision aims to ensure respect for this international obligation to render 
assistance  and  the  application  of  the  SAR  system.  It  establishes  the  principle  of 
cooperation  with  the  SAR  authorities  even  before  an  operation  begins.  It  also  specifies 
which SAR authority is to be contacted in cases where the authority responsible does not 
respond, so that all the units taking part in the operation contact the same SAR authority. 

•  Another  difference  between  Member  States  relates  to  how  they  identify  a  situation 
requiring assistance: for some Member States the vessel must be on the point of sinking; 
for others it is sufficient for the vessel to be unseaworthy; some Member States require the 
people  on  board  to  request  assistance,  while  others  do  not.  The  proposal  is  based  on  the 
SAR system and stipulates that as soon as there is any question about the safety of a vessel 
or a person the SAR authorities must be contacted and given all the information they need 
to determine whether or not this is an SAR situation. 

•  Deciding  where  the  people  rescued  should  be  taken  is  a  difficult  question  and  is  seen  as 
one  of  the  weaknesses  of  the  SAR  system.  The  2004  amendments  require  all  states  to 
cooperate in resolving SAR situations; the state responsible for the SAR region must, with 
their  cooperation,  decide  where  those  rescued  will  be  taken.  One  Member  State  did  not 
accept these amendments. A particular point of contention was where those rescued should 
be disembarked if the state responsible for the SAR region failed to fulfil its obligations in 
this respect. Some Member States are reluctant to take part in operations because they fear 
that they will end up having to take those rescued to their own country. The proposal for a 
decision aims to resolve such situations by specifying that where disembarkation in a third 
country is not possible it will take place in the Member State hosting the operation. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Legal basis 

The  legal  basis  of  the  proposal  is  Article  12(5)  of  Regulation  (EC)  No  562/2006  of  the 
European Parliament and of the Council of 15 March 2006 establishing a Community Code 

 
 
on  the  rules  governing  the  movement  of  persons  across  borders  (Schengen  Borders  Code)1, 
which  authorises  the  Commission  to  adopt  additional  rules  governing  surveillance  in 
accordance with the regulatory procedure with the European Parliament exercising the right 
of scrutiny. 

The proposal applies to surveillance of the maritime border in the context of the operations of 
Frontex,  which  has  a  mandate  that  includes  facilitating  operational  cooperation  between  the 
Member  States  in  the  implementation  of  the  Schengen  Borders  Code.  These  are  operations 
covered  by  the  Borders  Code,  coordinated  by  a  Community  agency  and  paid  for  by  the 
Community  budget.  The  adoption  of  additional  rules  governing  surveillance,  under  the 
comitology procedure, is expressly provided for in Article 12 of the Code. When surveillance 
applies  to  maritime  borders  it  is  self-evident  that  the  international  law  of  the  sea  and 
international maritime law must be respected. Similarly, such operations cannot be conducted 
in violation of human rights, including the rights of refugees, as already provided for in the 
Code. The proposal scrupulously complies with this international legal framework: it aims to 
enhance  respect  for  these  principles  in  the  conduct  of  operations,  while  at  the  same  time 
introducing  a  degree  of  uniformity  into  the  application  of  the  legal  framework  by  all  the 
operational units participating in such operations. 

3.2. 

Subsidiarity and proportionality 

The  proposal  for  a  decision  relates  to  a  matter  that  does  not  fall  within  the  exclusive 
competence of the Community and is therefore subject to the principle of subsidiarity. It must 
also comply with the principle of proportionality. 

The objectives of the proposal cannot be achieved by the Member States acting individually 
and require the adoption of Community rules. 

The  proposal  applies  to  surveillance  of  the  maritime  border  in  the  context  of  operational 
cooperation coordinated by the Frontex agency, and does not concern surveillance activities 
carried out by Member States individually or cooperating outside that framework. 

3.3. 

Choice of instruments 

Proposed instrument: Council decision. 

The decision was chosen as legal instrument because the proposal aims to create obligations 
for the Member States to which it is addressed, particularly when they carry out surveillance 
of the external border in the context of the operational cooperation coordinated by Frontex. 

3.4. 

Content 

Article  1  states  that  the  surveillance  of  the  maritime  border  in  the  context  of  Frontex 
operations must take place in accordance with the guidelines laid down in the annex, which 
should be incorporated into the operational plan for each operation. 

•  A brief description of the content of the Annex may be found in Section 2. 

1 

OJ L 105, 13.4.2006, p. 9. 

 
 
                                                 
4. 

COHERENCE WITH OTHER COMMUNITY POLICIES 

The  proposal  is  consistent  with  other  Community  policies,  and  particularly  the  European 
Union's  external  policy  and  the  common  transport  policy.  It  is  also  consistent  with  the 
European Union's integrated maritime policy. 

5. 

CONSULTATION AND IMPACT ASSESSMENT 

5.1. 

External consultations 

The proposal for a decision is based to a large extent on the results of the informal drafting 
group  organised  by  the  Commission  in  2007  and  2008  and  containing  experts  from 
Member States,  Frontex,  the  Office  of  the  UN  High  Commissioner  for  Refugees  and  the 
International Organisation for Migration. 

5.2. 

Impact assessment 

No impact assessment was carried out because the proposal mainly reproduces and clarifies 
international and Community rules that already exist. 

6. 

EVALUATION 

No evaluation of the implementation of the decision is planned. 

7. 

FINANCIAL STATEMENT AND ASSESSMENT OF FRAUD RISKS  

The  measure  does  not  impose  any  financial  and  administrative  burden  on  the  Community. 
The proposal therefore has no impact on the Community budget. 

8. 

SPECIAL POSITION OF CERTAIN MEMBER STATES AND ASSOCIATED 
COUNTRIES 

This  proposal  builds  on  the  Schengen  acquis.  The  following  consequences  in  relation  to  the 
various protocols therefore have to be taken into account: 

•  United  Kingdom  and  Ireland:  This  proposal  aims  to  build  on  the  Schengen  acquis,  in 
which  the  United  Kingdom  and  Ireland  do  not  participate,  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 
acquis  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.  These 
Member States are not taking part in the adoption of this Decision and are not bound by it 
or subject to its application. 

•  Denmark:  This  proposal  will  replace  Regulation  (EC)  No  562/2006.  Given  that  the 
Regulation aims to build on the Schengen acquis under the provisions of Title IV of Part 
Three of the Treaty establishing the European Community, Denmark, in accordance with 
Article 5 of the Protocol on the position of Denmark, annexed to the Treaty on European 
Union and to the Treaty establishing the European Community, notified the transposition 
of this Regulation into its national law, by letter of 8 June 2006. It is therefore bound under 
international law to implement this Decision. 

 
 
•  Norway  and  Iceland:  This  proposal  constitutes  a  development  of  the  provisions  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 their 
association with the implementation, application and development of the Schengen acquis2. 

•  Switzerland:  This  proposal  constitutes  a  development  of  the  provisions  of  the  Schengen 
acquis within the meaning of the Agreement signed by the European Union, the European 
Community  and 
the 
the  Swiss  Confederation  on 
implementation, application and development of the Schengen acquis3. 

latter's  association  with 

the 

•  Liechtenstein: This proposal constitutes a development of the provisions of the Schengen 
acquis  within  the  meaning  of  the  Protocol  between  the  European  Union,  the  European 
Community,  the  Swiss  Confederation  and  the  Principality  of  Liechtenstein  on  the 
accession  of  the  Principality  of  Liechtenstein  to  the  Agreement  between  the  European 
Union, 
the  Swiss 
Confederation’s association with the implementation, application and development of the 
Schengen acquis. 

the  European  Community  and 

the  Swiss  Confederation  on 

2 
3 

OJ L 176, 10.7.1999, p. 36. 
OJ L 53, 27.2.2008, p. 52. 

 
 
                                                 
Proposal for a 

COUNCIL DECISION 

supplementing the Schengen Borders Code as regards the surveillance of the sea 
external borders in the context of operational cooperation coordinated by the European 
Agency for the Management of Operational Cooperation at the External Borders 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, 

Having  regard  to  Regulation  (EC)  No  562/2006  of  the  European  Parliament  and  of  the 
Council  of  15  March  2006  establishing  a  Community  Code  on  the  rules  governing  the 
movement  of  persons  across  borders  (Schengen  Borders  Code)4,  and  in  particular  Article 
12(5) thereof, 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

(2) 

(3) 

The  purpose  of  border  surveillance  is  to  prevent  unauthorised  border  crossings,  to 
counter  cross-border  criminality  and  to  apprehend  or  take  other  measures  against 
persons who have crossed the border illegally. Border surveillance should be effective 
in  preventing  and  discouraging  persons  from  circumventing  the  checks  at  border 
crossing points, and in detecting the unauthorised crossing of the external borders. 

The European Agency for the Management of Operational Cooperation at the External 
Borders of the Member States of the European Union ("the Agency") is responsible for 
the  coordination  of  operational  cooperation  between  Member  States  to  facilitate  the 
application  of  Community  law,  including  with  regard  to  border  surveillance. 
Additional rules are necessary with regard to border surveillance activities carried out 
by maritime and aerial units of one Member State at the sea border of other Member 
States in the context of the operational cooperation coordinated by the Agency, and to 
further strengthen such cooperation.  

In  accordance  with  Regulation  (EC)  No  562/2006  and  with  general  principles  of 
Community law, measures taken in the course of the surveillance operation should be 
proportionate  to  the  objectives  pursued  and  fully  respect  fundamental  rights  and  the 
rights  of  refugees  and  asylum  seekers,  including  in  particular  the  prohibition  of 
refoulement. Member States are bound by the provisions of the asylum acquis, and in 
particular  of  Council  Directive  2005/85/EC  of  1  December  2005  on  minimum 
standards  on  procedures  in  Member  States  for  granting  and  withdrawing  refugee 

4 

OJ L 105, 13.4.2006, p. 1. 

 
 
                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

status5, with  regard to applications for asylum  made  in  the  territory,  including  at  the 
border or in the transit zones of Member States. 

At  its  meetings  of  18  and  19  June  and  of  29  and  30  October  2009,  the  European 
Council underlined the need for strengthened border control operations coordinated by 
the  Agency  and  for  clear  rules  of  engagement  for  joint  patrolling  and  the 
disembarkation of rescued persons. 

Account should be taken of the fact that border surveillance operations coordinated by 
the  Agency  are  conducted  in  accordance  with  an  operational  plan  agreed  by 
participating Member States and by the Agency and with the schedule and instructions 
issued by a coordination centre in which participating Member States and the Agency 
are represented, and that one or more host Member States are identified before the start 
of the operation, the border of which will be surveyed. The guidelines provided for in 
this Decision should be incorporated into that operational plan. 

The  implementation  of  this  Decision  should  not  affect  obligations  of  Member  States 
under  the  United  Nations  Convention  on  the  Law  of  the  Sea,  the  International 
Convention  for  the  Safety  of  Life  at  Sea,  the  International  Convention  on  Maritime 
Search  and  Recue,  the  United  Nations  Convention  against  Transnational  Organized 
Crime and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the 
Convention  relating  to  the  Status  of  Refugees,  the  European  Convention  on  Human 
Rights and other relevant international instruments.  

In  accordance  with  international  law,  every  State  shall  require  the  master  of  a  ship 
flying its flag, in so far as he can do so without serious danger to the ship, the crew or 
the passengers, to render assistance to any person found at sea in danger of being lost 
and  to  proceed  with  all  possible  speed  to  the  rescue  of  persons  in  distress.  Such 
assistance should be provided regardless of the nationality or status of the persons to 
be  assisted  or  of  the  circumstances  in  which  they  are  found.  This  Decision  does  not 
affect the responsibilities of search and rescue authorities, including for ensuring that 
coordination and cooperation occur so that the persons rescued can be delivered to a 
place of safety. 

This Decision respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union,  notably 
human  dignity,  prohibition  of  torture  and  of  inhuman  or  degrading  treatment  or 
punishment, right to liberty and security, non-refoulement, non discrimination and the 
rights  of  the  child.  This  Decision  should  be  applied  by  the  Member  States  in 
accordance with these rights and principles. 

Since the objectives of the action to be taken, namely the adoption of additional rules 
for  the  surveillance  of  the  sea  borders  by  border  guards  operating  under  the 
coordination  of  the  Agency,  cannot  be  sufficiently  achieved  by  the  Member  States, 
due to the differences in their legislations and practices, and can therefore, by reason 
of  the  multinational  character  of  the  operations,  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 

5 

OJ L 326, 13.12.2005, p. 13. 

 
 
                                                 
proportionality,  as  set  out  in  that  Article,  this  Decision  does  not  go  beyond  what  is 
necessary in order to achieve those objectives. 

(10) 

In accordance with Article 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  did  not  take  part  in  the  adoption  of  Regulation  (EC)  No 
562/2006  and  is  therefore  not  bound  by  it  nor  subject  to  its  application.  However, 
given  that Regulation (EC)  No 562/2006  builds upon  the  Schengen acquis under the 
provisions  of  Title  IV  of  Part  Three  of  the  Treaty  establishing  the  European 
Community, Denmark in accordance with Article 5 of the Protocol, notified by letter 
of 8 June 2006 the transposition of this Regulation in its national law. It is therefore 
bound under international law to implement this Decision. 

(11)  As regards Iceland and Norway, this Decision constitutes a development of provisions 
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  latter's  association  with  the  implementation,  application  and 
development of the Schengen acquis6 which fall within the area referred to in Article 
1,  point  A,  of  Council  Decision  1999/437/EC7  on  certain  arrangements  for  the 
application of that Agreement. 

(12)  As regards Switzerland, this Decision constitutes a development of  provisions of the 
Schengen acquis within the meaning of the Agreement between the European Union, 
the European Community and the Swiss Confederation on the Swiss Confederation's 
association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis8,  which  fall  within  the  area  referred  to  in  Article  1,  point  A,  of  Decision 
1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC on 
the conclusion of that Agreement9. 

(13)  As regards Liechtenstein, this Decision constitutes a development of provisions of the 
Schengen  acquis  within  the  meaning  of  the  Protocol  signed  between  the  European 
Union,  the  European  Community,  the  Swiss  Confederation  and  the  Principality  of 
Liechtenstein  on  the  accession  of  the  Principality  of  Liechtenstein  to  the  Agreement 
between the European Union, the European Community and the Swiss Confederation 
on  the  Swiss  Confederation’s  association  with  the  implementation,  application  and 
development of the Schengen acquis, which fall within the area referred to in Article 
1,  point  A,  of  Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council 
Decision  2008/261/EC  on  the  signature  and  provisional  application  of  certain 
provisions of that Protocol 10. 

(14)  This  Decision  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 
acquis11.  The  United  Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not 

6 
7 
8 
9 
10 
11 

OJ L 176, 10.7.1999, p. 36. 
OJ L 176, 10.7.1999, p. 31. 
OJ L 53, 27.2.2008, p. 52. 
OJ L 53, 27.2.2008, p. 1. 
OJ L 83, 26.3.2008, p. 3. 
OJ L 131, 1.6.2000, p. 43. 

 
 
                                                 
bound  by  it  or  subject  to  its  application.  This  Decision  should  therefore  not  be 
addressed to the United Kingdom. 

(15)  This  Decision  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 acquis12. Ireland is therefore not taking part in its adoption and is not 
bound  by  it  or  subject  to  its  application.  This  Decision  should  therefore  not  be 
addressed to Ireland. 

(16)  The  Schengen  Borders  Code  Committee,  consulted  on  19  October  2009,  did  not 
deliver an opinion, which required that the Commission, in accordance with Article 5a 
(4) point a) of Decision 1999/468/EC, submitted a proposal relating to the measures to 
be taken to the Council and forwarded it to the European Parliament at the same time, 

HAS ADOPTED THIS DECISION:  

Article 1 

The  surveillance  of  the  sea  external  borders  in  the  context  of  the  operational  cooperation 
between  Member  States  coordinated  by  the  European  Agency  for  the  Management  of 
Operational Cooperation at the External Borders of the Member States of the European Union 
("the  Agency")  shall  take  place  in  accordance  with  the  guidelines  laid  down  in  the  annex. 
These guidelines shall form part of the operational plan as drawn up by the Agency and the 
participating Member States for each operation coordinated by the Agency. 

Article 2 

This Decision is addressed to the Kingdom of Belgium, the Republic of Bulgaria, the Czech 
Republic,  the  Kingdom  of  Denmark,  the  Federal  Republic  of  Germany,  the  Republic  of 
Estonia,  the  Hellenic  Republic,  the  Kingdom  of  Spain,  the  French  Republic,  the  Italian 
Republic,  the  Republic  of  Cyprus,  the  Republic  of  Latvia,  the  Republic  of  Lithuania,  the 
Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom 
of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, 
Romania,  the  Republic  of  Slovenia,  the  Slovak  Republic,  the  Republic  of  Finland  and  the 
Kingdom of Sweden.  

Done at Brussels,  

For the Council 

The President 

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OJ L 64, 7.3.2002, p. 20. 

 
 
 
 
 
 
                                                 
ANNEX 

Guidelines for Frontex operations at sea 

1. 

1.1 

1.2. 

1.3. 

2. 

2.1 

2.2 

2.3. 

2.4. 

GENERAL PRINCIPLES 

Measures taken for the purpose of the surveillance operation should be conducted in 
a way that does not put at risk the safety of the persons intercepted or rescued as well 
as of the participating units. 

The  special  needs  of  children,  victims  of  trafficking,  persons  in  need  of  urgent 
medical assistance, persons in need of international protection and other persons in a 
particularly vulnerable situation should be considered throughout all the operation. 

These  guidelines  should  be  applied  by  Member  States  in  accordance  with 
fundamental rights. Member States should ensure that border guards participating in 
the  surveillance  operation  are  trained  with  regard  to  relevant  provisions  of  human 
rights and refugee law, and are familiar with the international regime on search and 
rescue. 

INTERCEPTION 

Upon detection, the ship or other sea craft ("ship") should be approached in order to 
observe  its  identity  and  nationality  and,  pending  further  measures,  should  be 
surveyed at a prudent distance. Information about the ship should be communicated 
immediately  to  the  coordination  centre  established  in  the  context  and  for  the 
purposes of the Frontex coordinated sea operation. 

If  the  ship  is  about  to  enter  or  it  has  entered  the  contiguous  zone  or  the  territorial 
waters  of  a  Member  State  that  does  not  participate  in  the  operation,  information 
about the ship should be communicated to the coordination centre, which will convey 
the information to the Member State concerned. 

Information  about  any  ship  suspected  of  being  engaged  in  illegal  activities  at  sea 
outside  the  scope  of  the  operation  should  be  communicated  to  the  coordination 
centre,  which  will  convey  the  information  to  the  Member  State  or  Member  States 
concerned. 

Measures taken in the course of the surveillance operation against ships or other sea 
craft with regard to which there are reasonable grounds for suspecting that they carry 
persons intending to circumvent the checks at border crossing points may include: 

(a) 

requesting  information  and  documentation  on  ownership,  registration  and 
elements  relating  to  the  voyage,  and  on  the  identity,  nationality  and  other 
relevant data on persons on board; 

(b) 

stopping, boarding and searching the ship, its cargo and persons on board, and 
questioning persons on board; 

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(c)  making persons on board aware that they are not authorised to cross the border 
and  that  persons  directing  the  craft  may  face  penalties  for  facilitating  the 
voyage; 

(d) 

seizing the ship and apprehending persons on board; 

(e) 

(f) 

(g) 

ordering the ship to modify its course outside of or towards a destination other 
than the territorial waters or contiguous zone, escorting the vessel or steaming 
nearby until the ship is heading on such course; 

conducting the ship or persons on board to a third country or otherwise handing 
over the ship or persons on board to the authorities of a third country; 

conducting the ship or persons on board to the host Member State or to another 
Member State participating in the operation. 

2.5. 

Measures laid down in paragraph 2.4 should be taken under the following conditions: 

2.5.1.  Territorial waters and contiguous zone 

Measures  referred  to  in  paragraph  2.4  should  be  taken  upon  authorisation  and  in 
accordance  with  the  instructions  from  the  host  Member  State  transmitted  to  the 
participating  unit  via  the  coordination  centre.  To  that  end,  the  participating  unit 
should communicate to the host Member State, via the coordination centre, whether 
the master of the intercepted vessel has requested that a diplomatic agent or consular 
officer of the flag State be notified. 

2.5.2.  Exclusive Economic Zone and the High Seas 

2.5.2.1.  If  the  ship  flies  the  flag  or  displays  the  marks  of  registry  of  the  nationality  of  a 
Member  State  participating  in  the  operation,  measures  referred  to  in  paragraph  2.4 
should  be  taken  upon  authorisation  of  the  flag  State.  The  national  official 
representing that Member State at the coordination centre should be entitled to grant 
or to transmit such authorisation. 

2.5.2.2.  If the ship flies the flag or displays the marks of registry of a Member State that does 
not participate in the operation or of a third country, confirmation of registry should 
be requested from the flag State through the appropriate channels and, if nationality 
is  confirmed,  authorisation  should  be  requested  from  the  flag  State  to  take  the 
measures referred to in paragraph 2.4. 
The  coordination  centre  should  be  informed  of  any  communication  with  the  flag 
State. 

2.5.2.3.  If,  though  flying  a  foreign  flag  or  refusing  to  show  its  flag,  there  are  reasonable 
grounds  for  suspecting  that  the  ship  is,  in  reality,  of  the  same  nationality  as  the 
participating unit, the participating unit should proceed to verify the ship's right to fly 
its  flag.  To  this  end,  it  may  send  a  boat  under  the  command  of  an  officer  to  the 
suspected  ship.  If  suspicion  remains  after  the  documents  have  been  checked,  it 
should proceed to a further examination on board the ship, which must be carried out 
with all possible consideration. The country of which the ship is allegedly flying the 
flag should be contacted through the appropriate channels. 

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2.5.2.4.  If, though flying a foreign flag or refusing to show its flag, there is reasonable ground 
for suspecting that the ship is, in reality, of the nationality of another Member State 
participating in the operation, verification of the ship's right to fly its flag should be 
conducted  upon  authorisation  of 
that  Member  State.  The  national  official 
representing that Member State at the coordination centre should be entitled to grant 
or to transmit such authorisation. 
If the suspicions regarding the nationality of the ship prove to be founded, measures 
referred  to  in  paragraph  2.4  should  be  taken  under  the  conditions  laid  down  in 
paragraph 2.5.2.1. 

2.5.2.5.  If there are reasonable grounds for suspecting that the ship is without nationality or 
may  be  assimilated  to  a  ship  without  nationality,  the  patrol  unit  should  proceed  to 
verify  the  ship's  right  to  fly  its  flag.  To  this  end,  it  may  send  a  boat  under  the 
command  of  an  officer  to  the  suspected  ship.  If  suspicion  remains  after  the 
documents have been checked, it should proceed to a further examination on board 
the ship, which should be carried out with all possible consideration. 

Measures referred to in paragraph 2.4 should be taken if the suspicions that the ship 
is without nationality prove to  be founded and that there  are reasonable  grounds to 
suspect that the ship is engaged in the smuggling of migrants by sea in accordance 
with  the  Protocol  against  the  Smuggling  of  Migrants  by  Land,  Sea  and  Air, 
supplementing  the  United  Nations  Convention  against  Transnational  Organized 
Crime. 

It should be considered that a ship is without nationality or may be assimilated to a 
ship without nationality when the ship has not been granted by any State the right to 
fly  its  flag  or  when  it  sails  under  the  flags  of  two  or  more  States,  using  them 
according to convenience. 

2.5.2.6.  Pending  or  in  the  absence  of  authorisation  of  the  flag  State,  the  ship  should  be 
surveyed  at  a  prudent  distance.  No  other  measures  should  be  taken  without  the 
express  authorisation  of  the  flag  State,  except  those  necessary  to  relieve  imminent 
danger  to  the  lives  of  persons  as  set  out  in  part  3  or  those  measures  which  derive 
from relevant bilateral or multilateral agreements, or unless the ship has entered the 
contiguous zone. 

2.6. 

3. 

3.1. 

Any  operational  activities  in  the  territorial  waters  of  a  Member  State  that  does  not 
participate in the operation or of a third country should be conducted in accordance 
with the authorisation and instructions of the coastal State. The coordination centre 
should  be  informed  of  any  communication  with  the  coastal  State  and  of  the 
subsequent course of action. 

SEARCH AND RESCUE SITUATIONS ARISING IN THE COURSE OF THE OPERATION 

Participating  units  shall  provide  assistance  to  any  vessel  or  person  in  distress  at 
sea. They  shall  do  so  regardless  of  the  nationality  or  status  of  such  a  person  or  the 
circumstances in which that person is found.  

3.2.  When  facing  in  the  course  of  the  operation  a  situation  in  which  uncertainty  or 
apprehension  exists  as  to  the  safety  of  a  ship  or  of  any  person  on  board,  the 

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participating unit should forward as soon as possible all available information to the 
Rescue Coordination Centre responsible for the search and rescue region where the 
situation is taking place. 

In cases where the Rescue Coordination Centre of the third country responsible for 
the search and rescue region does not respond to the notification transmitted by the 
participating  unit,  the  latter  should  contact  the  Rescue  Coordination  Centre  of  the 
host Member State that is geographically the closest to the emergency. 

While awaiting instructions from the Rescue Coordination Centre, participating units 
should  take  all  the  appropriate  measures  to  ensure  the  safety  of  the  persons 
concerned. 

3.3. 

Participating  units  should  take  all  relevant  elements  into  account  and  communicate 
their  assessment  to  the  responsible  Rescue  Coordination  Centre,  including  in 
particular: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

(i) 

(j) 

the existence of a request for assistance, 

the seaworthiness of the ship and the likelihood that the ship will not reach its 
final destination, 

the number of passengers in relation to the type of ship (overloading), 

the availability of necessary supplies (fuel, water, food, etc.) to reach a shore, 

the presence of qualified crew and command of the ship, 

the availability of safety, navigation and communication equipment, 

the presence of passengers in urgent need of medical assistance, 

the presence of deceased passengers, 

the presence of pregnant women or children, 

the weather and sea conditions. 

3.4. 

The  existence  of  an  emergency  should  not  be  exclusively  dependent  on  or 
determined by an actual request for assistance. 

In  cases  where,  despite  a  ship  being  perceived  to  be  in  a  state  of  emergency,  the 
persons on board refuse to accept assistance, the participating unit should inform the 
Rescue Coordination Centre and continue to fulfil a duty of care, taking any measure 
necessary  to  the  safety  of  the  persons  concerned,  while  avoiding  taking  any  action 
that might aggravate the situation or increase the chances of injury or loss of life. 

3.5. 

The coordination centre of the operation should be informed as soon as possible of 
any contact with the Rescue Coordination Centre and of the course of action taken by 
the participating unit. 

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3.6. 

If the ship cannot or can no longer be considered as being in a state of emergency or 
the search and rescue operation has been concluded, the participating unit should, in 
consultation  with  the  coordination  centre  of  the  operation,  resume  the  operation  in 
accordance with part 2. 

4. 

DISEMBARKATION 

4.1. 

The  operational  plan  should  spell  out  the  modalities  for  the  disembarkation  of  the 
persons  intercepted  or  rescued,  in  accordance  with  international  law  and  any 
applicable bilateral agreements. 

Subject to section 4.2, priority should be given to disembarkation in the third country 
from  where  the  persons  departed  or  through  the  territorial  waters  or  search  and 
rescue  region  of  which  the  persons  transited  or,  if  this  is  not  possible,  to 
disembarkation  in  the  geographically  closest  place  where  the  safety  of  the  persons 
can be ensured. 

4.2. 

No person should be disembarked in or otherwise handed over to the authorities of a 
country  with  regard  to  which  there  are  substantial  grounds  for  believing  that  he  or 
she would be subjected to persecution or to torture or to other forms of inhuman or 
degrading  treatment  or  punishment,  or  from  which  there  is  a  risk  of  expulsion  or 
return towards such a country. The persons intercepted or rescued must be informed 
in  an  appropriate  way  so  that  they  can  express  any  reasons  for  believing  that  they 
would be subject to such treatment in the proposed place of disembarkation. 

4.3. 

The  coordination  centre  should  be  informed  of  the  presence  of  persons  within  the 
meaning  of  paragraph  4.2,  and  should  convey  that  information  to  the  competent 
authorities of the host Member State. 

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