Commission staff working document - EXECUTIVE - Summary of the impact assessment accompanying the Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) {COM(2010) 61 final} {SEC(2010) 149}
Date: 2010-02-24
Institutions: European Commission
Subjects: EU migration policy, Frontex, cooperation policy, external border of the EU, impact study, legal status, management, operation of the Institutions

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EUROPEAN COMMISSION 

Brussels, 24.2.2010 
SEC(2010) 150 

COMMISSION STAFF WORKING DOCUMENT 

EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT 

accompanying the 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 2007/2004 establishing a European Agency for 
the Management of Operational Cooperation at the External Borders of the Member 
States of the European Union (FRONTEX) 

{COM(2010) 61 final} 
{SEC(2010) 149} 

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The Frontex Agency was set up in 2004 and became operational in 2005. 

As  requested  by  the  Hague  programme  the  Commission  adopted  on  13  February  2008  a 
Communication  on  the  evaluation  and  future  development  of  the  FRONTEX  Agency 
(COM(2008) 67 final) (hereafter "Communication").  

This  IA  builds  on  the  2008  Communication'  impact  assessment;  the  external  evaluation 
contracted  by  the  Frontex  Management  Board  as  requested  by  Article  33  of  the  Frontex 
Regulation and the ensuing recommendations of the Management Board, and the conclusions 
of the European Council.  

1. 

PROBLEM DEFINITION 

Even though Frontex proved to be very useful in providing a framework for MS to cooperate 
with  each  other  subject  to  particular  pressures,  the  operational  cooperation  is  still 
inefficient and insufficient, especially for operational solidarity. Also, Frontex is not using 
its potential in the best possible way, due to unclear or insufficient existing legal provisions.  

The problems to be addressed are of a punctual nature on specific points where Frontex has 
not  been  able  to  deliver  according  to  the  expectations  of  the  institutions  or  where  the  legal 
framework has proven inadequate.  

Insufficient technical equipment put at the disposal by MS 

While MS are ready to list a large number of equipment in CRATE a very small share of that 
equipment is made available.  

Secondly, a majority of the vessels deployed come from the host state and not from other MS.  

Thirdly, based on the estimates for the future and leaving any budgetary constraints aside, the 
current availability of equipment will not come close to meeting the needs. 

Insufficient human resources put at the disposal for joint operations by MS; lack of uniform 
standards 

The exact competencies of the Agency to organise "Frontex Joint Support Teams" (FJST) are 
unclear as the current legal basis is silent on this issue.  

A second problem is that the Agency needs to make ad hoc requests to MS to contribute with 
border guards for each individual operation.  

Inefficient coordination and follow up of joint operations 

The  current  Regulation  contains  no  rules  on  how  Frontex  operations  should  be  prepared, 
conducted and evaluated.  

Insufficient and inefficient cooperation with third countries 

There is no possibility for the Agency to assist third countries in a pro-active manner, on the 
basis of its working arrangements..  

Collection, storage and processing of personal data  

As noted by the evaluation, the risk analysis carried out by the Agency could be substantially 
enriched if it could collect and process certain types of personal data, which could allow for a 
better operational support from the Agency to the MS.  

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Return 

A first objective in this area must be to adapt the legal basis to reality: while the legal basis 
only  talks  about  Frontex  "assisting"  MS  and  that  the  Agency  has  already  taken  on  a 
"coordinating" role. 

There is a strong call from MS for Frontex to provide more support in this area.  

No  use  of  the  expertise  of  the  Agency  to  evaluate  MS'  performance  in  the  area  of  border 
management 

Firstly, the risk analysis of the Agency remains weak when it comes to assessing the capacity 
of MS' border management systems to manage the threats.  

Secondly, Frontex has no mandate to evaluate or react on any shortcomings in the application 
of EC law, including with regard to fundamental rights.  

Subsidiarity and proportionality 

All suboptions respect the following principles and limits of the current legal basis and are in 
line with the subsidiarity and proportionality principles: 

•  Border  management  is  a  shared  competence  between  the  EU  and  its  MS;  MS  are 

responsible for controlling their part of the external border of the Schengen area; 

•  Frontex  cannot  impose  any  activity on the  territory or  at the border  of  a  MS  without  the 

consent of that MS; 

•  Any border guard operating in another MS is subject to instructions by the authorities of 

that MS; 

•  Any  decision  on  refusal  of entry of a person shall be taken  only  by border guards of the 
MS whose territory the person is seeking to enter; Any decisions related to the return of an 
individual can only be taken by a national authority of a MS; Frontex cannot be the sole 
registered  owner  ("flag  state")  of  equipment  such  as  vessels  or  aircraft  nor  provide  the 
crew (out of its own staff) for such equipment. 

2. 

OBJECTIVES  

General objectives (see Article 1 of Regulation (EC) No 2007/2004) 

Specific objectives (see Article 2 of Regulation(EC) No 2007/2004) 

Operational objectives 

•  Ensure the availability of technical equipment for joint operations 

•  Ensure the availability of qualified border guards for joint operations 

•  Ensure efficient coordination, implementation and evaluation of joint operations 

•  Ensure efficient cooperation between Frontex and third countries on border management 

•  Improve the Frontex risk analysis by giving access to new sources of data 

•  Improve efficiency of joint return operations 

•  Improve the evaluation of the performance of MS in the area of border management 

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3. 

DESCRIPTION OF SUBOPTIONS AND ANALYSIS OF IMPACTS  

The  following  "building  blocks"  correspond  each  to  one  operational  objective;  for  each 
building block two or more policy suboptions are assessed as alternatives to each other: 

3.1. 

Revising  existing  provisions  on  the  use  of  technical  equipment  in  joint 
operations,  including  the  mechanisms  for  contributions  from  the  MS  of  such 
equipment 

Suboption 1: A technical equipment pool with compulsory contributions of equipment by MS  

Suboption 2: Acquisition or leasing of equipment by Frontex  

Suboption 3: A combination of suboptions 1 and 2 

Can the involved costs be (or become) part of the FRONTEX budget and how high are they? 

Drawing up a scenario of the cost impact on the Frontex budget is virtually impossible as too 
many  uncertainties  exist  and  taking  also  into  account  that  an  increase  in  the  availability  of 
equipment  will  need  to  be  phased  in  gradually  for  administrative  and  operational  reasons. 
However,  as  a  hypothetical  scenario  an  additional  3  patrol  vessels  and  3  aircraft  put  at  the 
disposal of the MS would entail a total annual budget impact for Frontex of +/- 6 million€.  

What are the possible impacts on fundamental rights? 

An increase in the availability of equipment does not impact on fundamental rights. 

Comparison of the suboptions 

The preferred option is suboption 3. Thus, a compulsory mechanism for MS’s contributions 
should be set up to guarantee the availability of a minimum number of equipment each year. 
This  should  be  combined  with  the  possibility  for  Frontex  to  purchase  or  lease  its  own 
equipment.  

3.2.  Mechanisms to improve the availability of border guards in joint operations  

Suboption  1:  Establish  “Frontex  Joint  Support  Teams”  (FJST)  to  participate  in  joint 
operations  and  pilot  projects  based  on  a  compulsory  mechanism  for  MS  to  contribute  with 
guest  officers  to  those  teams,  in  the  form  of  a  pool  of  human  resources  to  be  used  by  the 
Agency.  

Suboption  2:  Lower  the  threshold  for  the  deployment  of  Rabit  teams.  The  current  Rabit 
teams could thereby be used to reinforce joint operations.  

Suboption  3:  Foresee  the  gradual  creation  of  a  pool  of  border  guards  on  semi-permanent 
detachment from MS to Frontex for a period of six months.  

Can the involved costs be (or become) part of the FRONTEX budget and how high are they? 

The unit costs for the first two suboptions would not be different compared to the status quo.  

As  for  the  third  suboption,  in  2009  the  allowance  for  a  Frontex  national  detached  expert 
amount to 4 127,- € per month. Guest officers of  the MS deployed during joint operations cost 
on average 180,- € per day (+/- 3  960 per month). These figures indicate that the difference is 
minimal. 

What are the possible impacts on fundamental rights? 

An  increase  in  the  availability  of  border  guards  does  not  as  such  impact  on  fundamental 
rights. However, the risks of having an EU body and its staff exposed to situations of possible 
violations of fundamental rights could increase.  

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Comparison of the suboptions 

The  second  suboption  brings  the  negative  impact  of  depriving  the  EU  of  a  true  emergency 
response mechanism. That suboption should therefore be discarded. 

Suboption  1  and  3  will  have  to  be  combined:  the  setting  up  of  a  pool  of  human  resources 
made  up  of  guest  officers  from  the  MS  seconded  to  individual  operations  as  well  as  guest 
officers employed as national experts by the Agency on a short-term basis.  

3.3. 

Revising  the  role  of  the  Agency  in  preparing,  coordinating  and  implementing 
operations,  including  with  regard  to  the  sharing  of  tasks  between  the  Agency 
and the MS 

Suboption 1: Frontex is awarded the sole lead for the implementation of joint operations, the 
establishment  of  the  operational  plan,  and  the  sole  right  of  initiative  for  the  launch  of 
operations. 

Suboption  2:  Frontex  is  awarded  a  co-leading  role  together  with  the  host  state  for  the 
implementation of joint operations. Frontex is responsible for drawing up the operational plan 
but subject to the final agreement of the host state.  

Can the involved costs be (or become) part of the FRONTEX budget and how high are they? 

These changes will clarify and reduce the current diverging practices of the Agency and the 
competent authorities of MS. No further extra costs are foreseen through optimisation of the 
working practices. 

What are the possible impacts on fundamental rights? 

The risks of having an EU body and its staff exposed to situations of possible violations of 
fundamental rights would increase, due to the fact that the Agency would be more involved in 
concrete  operations  than  they  are  currently  and  because  of  the  possible  co-lead  role  in 
operations.  

As concerns suboption 1, the legal obligation to comply with fundamental rights would weigh 
more  on  the  Agency  compared  to  the  current  situation,  where  this  legal  obligation  weighs 
mainly on national authorities when implementing Community law.  

The  impact  described  above  would  be  mitigated  in  suboption  2  under  the  assumption  of  a 
clear legal framework for border guards semi-detached to Frontex. 

Comparison of the options 

The  preferred  suboption  is  to  award  the  Agency  a  co-leading  role  with  clearly  defined 
modalities  on  who  does  what  and  who  is  responsible  for  what.  This  suboption  provides  for 
detailed provisions on the operational plan and on the evaluation of operations, including with 
regard to incident reporting. 

3.4. 

Expanding  the  mandate  of  the  Agency  in  cooperating  with  third  countries  on 
border management 

Suboption  1: Allowing Frontex to carry out  technical assistance projects in third countries, 
using either its own budget or that of the EU’s external financial programmes.  

Suboption 2: Allowing Frontex to deploy liaison officers in third countries.  

Suboption 3: Mandating Frontex to carry out border control missions at the borders between 
third countries.  

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Does the option have an impact on external countries/partners?  

All suboptions will have an impact on relations with third countries. Overall the most positive 
impact will come from the increased capacity of the EU to meet requests for assistance from 
these  third  countries,  as  part  of  an  overall  reinforced  cooperation  between  the  EU  and  third 
countries on migration.  

Can the involved costs be (or become) part of the FRONTEX budget and how high are they? 

Given that the number of projects should be limited to priority countries, an assumption could 
be that Frontex would implement 1-2 projects per year with a budget of up to two million euro 
each. A gradual posting of up to 5 liaison officers could be envisaged, which would involve a 
limited cost impact. The costs for the third suboption would be substantial: as a comparison 
the costs for the EUBAM mission from 2005 to 2009 was around 44 million euro.  

What are the possible impacts on fundamental rights? 

Technical  assistance  to  operations,  which  could  lead  to  violations  of  fundamental  rights 
should not be offered to third countries.,  

For  the  second  suboption,  due  regard  should  be  taken  regarding  the  prevention  of  potential 
ethnic profiling in the collection of data on the migration flows.  

For the third suboption the legal framework is in part set by the third countries in question; 
these operations should take place under a framework fully respecting fundamental rights. 

Comparison of the suboptions 

The preferred option is clearly to carry out technical assistance projects and to deploy its own 
liaison officers in third countries.  

The  taking  over  of  border  control  missions  concerning  the  borders  between  third  countries 
contributes  would  have  a  substantial  cost  impact  and  would  raise  concerns  with  regard  to 
fundamental rights. This suboption should therefore be discarded. 

3.5.  Mandating the Agency to collect and process personal data 

Suboption  1:  Allow  the  Agency  to  process,  store,  collect  and  transfer  (including  to  third 
countries) all personal data gathered during Frontex joint operations and to use that data for 
the purpose of risk analysis and operational coordination.  

Suboption 2:  Enable the Agency to collect, process and store personal data for the purpose of 
risk analysis and to contribute to the security at the EU external borders. 

Can the involved costs be (or become) part of the Frontex budget and how high are they? 

The costs for both options are not estimated to be significant.  

What are the possible impacts on fundamental rights? 

Potentially  substantial  impact  which  would  need  to  be  mitigated  through  a  stringent  data 
protection regime  

Comparison of the options 

Suboption 2is proportionate and has a clear positive impact on the operational objective. The 
impact of suboption 1 is only marginally bigger than for suboption 2 while it raises important 
question marks concerning proportionality and necessity. Therefore only suboption 2 should 
be retained. 

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3.6. 

Revising the mandate of the Agency as concerns return operations  

Suboption  1:  involve  Frontex  taking  over  a  coordinating  role  together  with  the  leading 
Member State.  

Suboption 2: Frontex to take over from the leading Member State the responsibility and the 
bulk of organisational tasks for the whole joint return operation.  

Can the involved costs be (or become) part of the Frontex budget and how high are they? 

The involved costs are already covered by the Frontex budget. The increase in the number of 
operations  resulting  from  a  stronger  role  for  Frontex  is  impossible  to  predict  as  the 
preconditions will remain the same. 

What are the possible impacts on fundamental rights? 

No impact as long as the limits on the powers awarded to the Agency as described above are 
respected.  

Comparison of the options 

The  second  suboption  entails  certain  additional  positive  impacts  which  however  are  mainly 
theoretical, having regard to the significant negative impacts. The preferred option is clearly 
to foresee a coordinating role for the Agency, but not to shift the responsibility and the main 
burden from the leading Member State to the Agency. 

3.7.  Mandating  the  Agency  to  evaluate  MS'  performance  in  the  area  of  border 

management 

Suboption 1: Mandating Frontex to carry out inspections in MS, to evaluate MS' capacity to 
face threats and pressure at the external borders, more particularly their capacity in terms of 
national structures, equipment and resources. 

Suboption  2:  Giving  Frontex  an  explicit  role  with  regard  to  MS'  compliance  with  EC  law 
during joint operations, thus giving Frontex a role in observing and reporting in this respect. 

Can the involved costs be (or become) part of the FRONTEX budget and how high are they? 

The first suboption would involve certain staff costs the second suboption would not have any 
significant cost impact. 

What are the possible impacts on fundamental rights? 

No direct impact, recalling as concerns the second suboption that MS obligations to comply 
with EC law are absolute.  

Comparison of the options 

For the second suboption the negative impacts clearly cancel out the positive impacts, while 
for the first suboption, assuming that a careful definition of the concrete purpose is done, there 
are  clear  positive  impacts  on  the  core  objectives  of  Frontex,  ie  coordinating  operations  and 
carrying out risk analysis.  

4. 

SUMMARY OF THE PREFERRED OPTION 

The  preferred  option  would  therefore  consist  in  providing  new  provisions  in  the  Frontex 
Regulation on: 

(1) 

A revised mechanism with compulsory contributions of equipment from MS combined 
with the gradual acquisition/leasing by Frontex of its own equipment, based on further 
analyses of needs and costs 

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(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

A  revised  mechanism  with  compulsory  contributions  of  human  resources  from  MS 
combined  with  a  pool  of  border  guards  on  semi-permanent  detachment  from  MS  to 
Frontex, with the status of national experts 

Awarding  the  Agency  a  co-leading  role  for  the  implementation  of  joint  operations, 
with detailed rules for the operational plan, evaluation, and incident reporting 

Allowing  Frontex  to  finance  and  implement  technical  assistance  projects  in  third 
countries and to deploy liaison officers in third countries 

Giving  Frontex  a  limited  mandate  to  process  personal  data  related  to  facilitation  of 
illegal immigration 

Giving Frontex a coordinating role in implementing joint return operations 

Giving Frontex a mandate to analyse operational risks and requirements in the MS 

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