Proposal for a Regulation of the European Parliament and 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) {SEC(2010) 149} {SEC(2010) 150}
Date: 2010-02-24
Institutions: European Commission
Subjects: EU migration policy, Frontex, cooperation policy, external border of the EU, legal status, management, operation of the Institutions

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EUROPEAN COMMISSION 

Brussels, 24.2.2010 
COM(2010) 61 final 

2010/0039 (COD) 

Proposal for a  

REGULATION OF THE EUROPEAN PARLIAMENT AND 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) 

{SEC(2010) 149} 
{SEC(2010) 150} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This proposal addresses amendments to 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)  that  are  necessary  in  order  to 
ensure a well defined and correct functioning of the Frontex Agency in the coming years. The 
objective of the proposal is to adapt the Regulation, in the light of the evaluations carried out 
and  practical  experiences,  to  clarify  the  mandate  of  the  Agency  and  to  address  identified 
shortcomings. 

General context 

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), 
accompanied by a impact assessment. 

The  Communication  issued  recommendations  for  the  short  to  medium  term  and  launched 
ideas for the future development of the Agency in the longer term.  

The 2008 Communication was welcomed by the Council and the European Parliament, who 
both shared the Commissions assessment that the Agency had been very successful since its 
inception and called for a further strengthening of the Agency. This ambition has been further 
reflected in numerous conclusions by the Council and the European Council, in the Pact on 
immigration and asylum, and in the Stockholm programme, adopted by the European Council 
of  10-11  December  2009  calling  for  a  reinforcement  of  the  Agency  including  through  a 
revision of its legal framework. The role of the Agency in the integrated border management 
of the Union, and its overall future direction, is therefore subject to a strong interinstitutional 
consensus. 

In  addition  to  the  abovementioned  Commission  Report  on  the  evaluation  and  future 
development of the FRONTEX Agency an independent evaluation took place during 2008, as 
requested by Article 33 of the Frontex Regulation. On the basis of this evaluation the Frontex 
Management  Board  addressed  a  series  of  recommendations  concerning  changes  to  the  legal 
basis of the Agency to the Commission.  

This proposal reflects all recommendations of the 2008 Communication and the Management 
Board  recommendations  to  the  extent  they  require  a  revision  of  the  legal  framework  of  the 
Agency, with the exceptions as described in the impact assessment.  

Existing provisions 

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. 

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Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 
establishing a mechanism for the creation of Rapid Border Intervention Teams and amending 
Council  Regulation  (EC)  No  2007/2004  as  regards that  mechanism  and  regulating  the  tasks 
and powers of guest officers. 

Council Decision 2005/358/EC of 26 April 2005 designating the seat of the European Agency 
for the Management of Operational Cooperation at the External Borders of the Member States 
of the European Union. 

2. 

CONSULTATION  OF 
ASSESSMENT 

INTERESTED 

PARTIES  AND 

IMPACT 

In the follow-up to the Communication extensive discussions were held in the Council and the 
European  Parliament.  Civil  society  and  academia  also  organised  discussions  on  the  role  of 
Frontex in the context of the Union's immigration policy. 

Regular  discussions  and  information  exchange  have  taken  place  with  Member  States  in  the 
context  of  the  Management  Board  meetings  of  the  Agency.  The  Agency  has  continuously 
reported on its activities in the Management Board, in the institutions, and through the various 
reports  foreseen  by  the  legal  basis.  Moreover,  consultations  have  taken  place  between 
Commission  officials  dealing  with  the  FRONTEX  Agency  and  their  counterparts  in  the 
Agency. 

Frontex, in association with the Austrian authorities, organised a workshop for the members 
or representatives of the Management Board, chaired by the Commission, on the review of the 
legal  framework  of  the  Agency  on  10  September  2009  in  Baden,  Austria.  The  Commission 
also consulted Member States in the Committee on Immigration and Asylum in its meeting on 
5 October 2008. 

Impact assessment 

An impact assessment has been carried out - Commission staff working document SEC(2010) 
149. Suboptions in relation to the following "building blocks", reflecting core objectives and 
activities of the Agency, have been assessed:  

–  Revising  existing  provisions  on  the  use  of  technical  equipment  in  joint  operations, 
including the mechanisms for contributions from the Member States of such equipment; 

–  Mechanisms to improve the availability of border guards in joint operations; 

–  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 Member States; 

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

management; 

–  Mandating the Agency to collect and process personal data; 

–  Revising the mandate of the Agency as concerns return operations; 

–  Mandating the Agency to contribute to evaluating the performance of Member States in the 

area of border management. 

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The policy options were assessed against the following criteria: 

–  Does the option contribute to meeting the identified shortcoming, ie to better reaching the 

relevant objective(s)?  

–  Does the option have an impact on third countries? 

–  Does the option have a budgetary impact on the Agency or on the Member States?  

–  What are the possible impacts on fundamental rights?  

The  preferred  option  of  the  impact  assessment  consists  of  a  combination  of  the  following 
suboptions: 

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

•  A  revised  mechanism  with  compulsory  contributions  of  human  resources  from  Member 
States  combined  with  a  pool  of  border  guards  on  semi-permanent  detachment  from 
Member States 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, to be enforced by 
Frontex; 

•  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 fight against criminal 
networks organising illegal immigration, under condition that such processing of personal 
data  by  Frontex  is  lawful,  necessary  and  proportionate  in  relation  to  the  tasks  of  the 
Agency; 

•  Giving Frontex a coordinating role in implementing joint return operations; 

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

States. 

Following the opinions of the impact assessment board of 8 December 2009 and 11 January 
2010,  the  impact  assessment  has  been  revised  substantially  especially  with  regard  to  the 
problem definition and baseline, the definition of the general and operational objectives, the 
sections related to subsidiarity and proportionality, and costs. 

The preferred option is fully reflected in this legislative proposal with the exception of giving 
Frontex  a  limited  mandate  to  process  personal  data  related  to  fighting  criminal  networks 
organising  illegal  immigration.  The  Commission  does  consider  that  all  possibilities  to 
reinforce the fight against the smuggling of migrants and against trafficking of human beings 
should  be  explored.  However,  it  prefers  to  return  to  the  question  of  personal  data  in  the 
context  of  the  overall  strategy  for  information  exchange  to  be  presented  later  this  year  and 
also taking into account the reflection to be carried out on how to further develop cooperation 

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between  Agencies  in  the  justice  and  home  affairs  field  as  requested  by  the  Stockholm 
programme. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary  

The most important proposed amendments to Council Regulation (EC) No 2007/2004 reflect 
the  changes  necessary  to  accommodate  the  preferred  option  of  the  impact  assessment. 
Moreover  a  number  of  minor  amendments  of  an  essentially  administrative  character  have 
been introduced taking into account the Management Board recommendations as well as the 
introduction of new "standard" provisions used in other Commission proposals for the setting 
up of new Agencies.  

Legal basis 

Articles 74 and 77 (1) (b) and (c) of the Treaty on the Functioning of the European Union.  

This  proposal  amends  Council  Regulation  (EC)  No  2007/2004  establishing  the  Frontex 
Agency, which has been amended in 2007 by Regulation (EC) No 863/2007 of the European 
Parliament  and  of  the  Council  establishing  a  mechanism  for  the  creation  of  Rapid  Border 
Intervention Teams, which were based on the equivalent provisions of the Treaty establishing 
the European Community, that is, Articles 62(2)(a) and 66. 

Subsidiarity principle 

Article 74 provides that the Council shall adopt measures to ensure administrative cooperation 
between the relevant departments of the Member States in the areas covered by this Title, as 
well as between those departments and the Commission.  

Article 77(1)(b) and (c) empowers the Union to develop a policy with a view to carrying out 
checks  on  persons  and  efficient  monitoring  of  the  crossing  of  external  borders,  and  the 
gradual introduction of an integrated management system for external borders. 

The current proposal is within the limits set by these provisions and, in particular, respects the 
shared competencies of the Treaty in that Member States remain responsible for controlling 
their  external  borders.  Notably  this  proposal  upholds  the  principle  that  in  the  context  of 
operations  coordinated  by  the  Agency,  guest  officers  may  only  perform  tasks  and  exercise 
powers under instructions from and, as a general rule, in the presence of border guards of the 
host Member State. Decisions to refuse entry in accordance with the Schengen Borders Code 
shall be taken only by border guards of the host Member State. No decision-making power in 
this regard is transferred to the Agency. 

The  objectives  of  this  proposal,  while  respecting  the  same  fundamental  limitations  of  the 
existing  provisions,  are  to  further  develop  an  integrated  management  of  operational 
cooperation, cannot be sufficiently achieved by the Member States.  

Proportionality principle 

Article 5 of the Treaty on European Union states that action by the EU must not go beyond 
what  is  necessary  to  achieve  the  objectives  of  the  Treaty.  The  form  chosen  for  this  Union 

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action must enable the proposal to achieve its objective and be implemented as effectively as 
possible.  

The proposed initiative — amendment of the Regulation — constitutes a further development 
of  the  Schengen  acquis  combating  the  organisation  of  illegal  immigration  and  ensures 
cooperation between the relevant departments of the administrations of the Member States, as 
well  as  between  those  departments  and  the  Commission.  The  proposal  therefore  complies 
with the proportionality principle. 

Choice of instrument  

Proposed instrument: Regulation. 

Other means would not be adequate as the present proposal amends a regulation.  

4. 

BUDGETARY IMPLICATION 

The  proposal  amends  an  existing  Regulation  regarding  the  mandate  and  functioning  of  a 
European  Agency.  The  subsidy  related  to  the  Frontex  Agency  forms  already  part  of  the 
Union's budget.  

5. 

ADDITIONAL INFORMATION 

Consequences  of  the  various  protocols  annexed  to  the  Treaties  and  of  the  association 
agreements concluded with third countries  

The legal basis for this proposal is to be found in Title V of Part Three of the Treaty on the 
Functioning  of  the  European  Union,  with  the  result  that  the  system  of  ‘variable  geometry’, 
provided  for  in  the  protocols  on  the  position  of  the  United  Kingdom,  Ireland  and  Denmark 
and  the  Schengen  protocol,  applies.  The  proposal  builds  on  the  Schengen  acquis.  The 
following consequences in relation to the various protocols therefore have to be considered: 

United Kingdom and Ireland  

The  United  Kingdom  and  Ireland  are  not  taking  part  in  this  Regulation  in  accordance  with 
Article 4 of the Protocol on the Schengen acquis annexed to the TEU and TFEU and Article 
8(2) of 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. 

Denmark  

Under  the  Protocol  on  the  position  of  Denmark,  annexed  to  the  TEU  and  TFEU,  Denmark 
does  not  take  part  in  the  adoption  by  the  Council  of  measures  pursuant  to  Title  V  of  part 
Three of the TFEU. 

This  proposal  builds  on  the  Schengen  acquis,  and  under  Article  4  of  the  Protocol  Denmark 
shall  decide  within  a  period  of  six  months  after  the  Council  has  decided  on  a  proposal  or 
initiative to build upon the Schengen acquis covered by this  Part whether it will implement 
this decision in its national law. 

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Iceland and Norway  

As regards Iceland and Norway, 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  the 
association of those two States with the implementation, application and development of the 
Schengen acquis1. 

Switzerland 

As  regards  Switzerland,  this  proposal  constitutes  a  development  of  the  provisions  of  the 
Schengen acquis within the meaning of the Agreement concluded by the European Union, the 
European  Community  and  the  Swiss  Confederation  on  the  latter’s  association  with  the 
implementation, application and development of the Schengen acquis2. 

Liechtenstein 

As  regards  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  European  Community  and  the  Swiss  Confederation  on  the  Swiss  Confederation’s 
association with the implementation, application and development of the Schengen acquis3. 

Succinct overview of the proposed amendments 

Article 1, Establishment of the Agency 

–  clarification of the legal framework in which the Agency operates 

Article 1a, Definitions 

–  clarification of the definition of "host Member State" 

–  introduction of the concept of Frontex Joint Support Teams 

–  revision of the definition of technical equipment 

Article 2, Main tasks 

–  para 1 (c): widening of the work related to risk analysis 

–  para 1 (d): strengthening the work related to research 

–  para 1 (f): introducing the possibility to coordinate joint return operations 

–  para 1 (h): new task related to the development and operation of information systems 

–  para 1 (i): new task related to providing assistance to Eurosur 

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OJ L 176, 10.7.1999, p. 36. 
OJ L 53, 27.2.2008, p. 52. 
OJ L […], […], p. […]. 

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–  para  1a:  obligation  for  all  personnel  taking  part  in  e.g.  joint  operations  or  joint  return 

operations to have received appropriate training in fundamental rights 

–  para  2,  3rd  indent:  introduction  of  a  reporting  mechanism  to  the  Management  Board 

regarding the operational activities of Member States with third countries. 

Article 3, Joint operations and pilot projects at the external borders 

–  para  1:  introducing  an  obligation  to  draw  up  an  operational  plan,  to  conduct  a  prior  risk 
analysis and giving the Agency the possibility to terminate operations if the conditions are 
no longer fulfilled 

–  para 2: new - introducing the obligation for the Agency to set up a pool of border guards 

(FJST) 

–  para 4: introducing an obligation to transmit the evaluation reports of the operations to the 

Management Board within 60 days following the end of an operation 

–  para 5: possibility for increased financial support 

Article 3a, Organisational aspects of joint operations and pilot projects (New) 

Introducing a new article which sets out in paragraph 1 the overall conditions related to the 
obligation  to  draw  up  an  operational  plan  for  all  operations.  This  article  provides  for 
provisions  regarding  the  content  and  the  components  of  the  operational  plan,  the  respective 
tasks and responsibilities, the composition of the teams, command and control, the reporting 
mechanisms i.e. evaluation and incident reporting, the technical equipment, and the applicable 
jurisdiction. 

Paragraphs  2  and  3  provide  for  the  obligation  that  the  Agency  and  the  requesting  Member 
State  agree  on  the  operational  plan  and  that  the  Agency  needs  to  ensure  the  operational 
implementation of all organisational aspects.  

Article 3b, Composition and deployment of Frontex Joint Support Teams (FJST) (New) 

Introducing a new article which sets out: 

Para  1  the  overall  conditions  on  the  profiles  and  number  of  border  guards  to  be  made 
available to the FJST 

Para 2 the obligation for the Agency to contribute to the FJST 

Para 3 the obligation of Member States to make the border guards available for deployment 

Para  4  obligation  for  members  of  the  teams  to  perform  their  duties  in  full  respect  of 
fundamental rights and human dignity 

Para 5 communication regarding FJST to take place through the national points of contact 

Para 6 obligation for the Agency to nominate a coordinating officer where FJST members are 
deployed 

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Para  7  obligation  for  the  Agency  to  meet  the  costs  of  border  guards  of  Member  States 
participating in FJST 

Article 4, Risk analysis 

Introducing an obligation on Member States to provide the necessary information regarding 
threats at the external borders.  

Insertion  of  a  new  indent  creating  an  obligation  on  the  Agency  to  regularly  evaluate  the 
capacity of Member States to face upcoming challenges at the external borders.  

Article 5, Training 

Insertion  of  an  obligation  on  Member  States  to  integrate  the  common  core  curricula  in  the 
training of national border guards, and of an explicit reference to that the training shall, as is 
already the case in the work programme of Frontex, include fundamental rights aspects. 

Article 6, Research 

Reinforcement of the role of the Agency i.e. monitoring and contributing to developments in 
relevant research activities 

Article 7, Technical equipment  

The provisions regarding technical equipment are modified as follows: 

Para  1  Clarification  of  the  mandate  of  the  Agency  regarding  the  acquisition  or  lease  of 
technical equipment and the rules of registration for heavy equipment 

Para  2  Obligation  on  the  Agency  to  set  up  and  keep  centralised  records  of  a  Technical 
Equipment Pool (TEP)  

Para 3 Obligation on Member States to contribute to the TEP to allow for a minimum amount 
of equipment covering the needs of the Agency 

Para 4 Rules regarding the management by the Agency of the TEP 

Para  5  Rules  for  the  reimbursement  of  the  minimum  numbers  per  type  of  equipment,  the 
conditions for deployment and the eligible costs  

Para 6 reporting obligation on the composition and deployment of equipment part of the TEP 
by the Agency and subsequent action of the Management Board 

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Article  8,  Support  to  Member  States  in  circumstances  requiring  increased  technical  and 
operational assistance at the external borders  

Deleted,  as  this  is  now  sufficiently  covered  by  the  provisions  on  joint  operations,  technical 
equipment, and Frontex Joint Support Teams. 

Article 8e, Operational plan  

Para 1: adjustments necessary following the provisions of the new Article 3a 

Article 8h, Costs 

Para 1 insertion of a provision for the reimbursement of costs of the FJST 

Article 9, Return cooperation 

Para  1  clarification  of  the  EU  return  policy,  financial  provisions  and  insertion  of  the 
possibility  for  a  Member  State  to  request  the  Agency  to  ensure  the  coordination  of  a  return 
operation.  

Para  2-3  obligation  for  the  Agency  to  adopt  a  Code  of  Conduct  to  be  applied  during  joint 
return  operations,  including  with  regard  to  forced  return  monitoring  and  respect  for 
fundamental rights. 

Para 4 obligation on Member States to inform the Agency of their planned return operations 
and the degree of assistance requested from the Agency. Obligation on the Agency to draw up 
a rolling operational plan on which the Management Board decides. 

Para 5 Clarification of the role of the Agency regarding the identification of the relevant third 
countries 

Article 11, Information exchange systems 

Modification  of  the  role  of  the  Agency  i.e.  obligation  to  facilitate  the  exchange  of 
information.  

Insertion  of  an  obligation  on  the  Agency  to  develop  and  operate  an  information  system 
capable of exchanging classified information. 

Article 11a, Data protection (New) 

Obligation on the Agency to process data in accordance with Regulation 45/2001 and on the 
Management Board to establish measures to apply the aforementioned Regulation. 

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Article  11b,  Security  rules  on  the  protection  of  classified  information  and  non-classified 
sensitive information (New) 

Obligation on the Agency to apply the security principles of Decision 2001/844 for classified 
information.  Obligation  to  process  non-classified  sensitive  information  as  adopted  and 
implemented by the Commission. 

Article  13,  Cooperation  with  European  Union  agencies  and  bodies  and  international 
organisations 

Insertion of the possibility to cooperate with other European Union agencies and bodies. 

Article  14,  Facilitation of  operational  cooperation  with  third  countries  and  cooperation  with 
competent authorities of third countries 

Insertion of the following paragraphs: 

Para 2 possibility for the Agency to deploy liaison officers in third countries 

Para 3 description of the tasks of the liaison officers 

Para  4  possibility  for  the  Agency  to  benefit  from  Union  funding,  to  launch  technical 
assistance project in third countries and to invite observers.  

Para  5  obligation  on  Member  States  to  clarify  where  appropriate  the  role  of  the  Agency  in 
their bilateral agreements with third countries 

Para  7  the  deployment  of  liaison  officers  and  the  conclusion  of  working  arrangements  with 
third countries are subject to prior approval by the Commission 

Article 15a, Headquarters Agreement (New) 

Clarification of the need and conditions for a Headquarters Agreement between the Agency 
and the hosting Member State. 

Article 17, Staff 

Para  3  clarification  of  the  role  of  the  staff  of  the  Agency  providing  for  qualified  staff  to 
participate in operational activities 

Article 20, Powers of the Management Board 

Para 2 (h) prior agreement of the Commission necessary to adopt/modify  the organisational 
structure and staffing policy of the Agency (new) 

Para 2 (i) insertion of a provision regarding the endorsement of the Multiannual Plan of the 
Agency (new) 

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Para 4 reflecting the reinforced role of the Agency regarding relevant research activities 

Article 21, Composition of the Management Board 

Para 1 deletion of the restriction on the extendibility of the term of office 

Para 3 insertion of a reference to the concluded association agreements 

Article 25, Functions and powers of the Executive Director 

Para 3 (g) insertion of the obligation to implement the operational plans. 

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2010/0039 (COD) 

Proposal for a  

REGULATION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL 

amending Council Regulation 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) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 74 and 77 (1) (b) and (c) thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the Opinion of the European Economic and Social Committee 

After transmission of the proposal to the national Parliaments, 

Acting in accordance with the ordinary legislative procedure,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

The development of a forward-looking and comprehensive European migration policy, 
based on solidarity and responsibility, remains a key policy objective for the European 
Union. 

Union  policy  in  the  field  of  the  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  European  Union  and  a 
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  the 
external borders is foreseen. 

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

This Regulation 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, the rights to the protection of personal data, 
right to asylum, non-refoulement, non discrimination, the rights of the child and right 
to  an  effective  remedy.  This  Regulation  should  be  applied  by  the  Member  States  in 
accordance with these rights and principles. 

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(5) 

(6) 

(7) 

(8) 

(9) 

In 2004 the Council adopted Regulation (EC) No 2007/2004 establishing the European 
Agency for the Management of Operational Cooperation at the External Borders of the 
Member  States  of  the  European  Union  (Frontex)4  hereinafter  referred  to  as  the 
"Agency" which became operational in May 2005. 

Regulation  (EC)  No  2007/2004  was  amended  in  2007  by  Regulation  (EC)  No 
863/2007  establishing  a  mechanism  for  the  creation  of  Rapid  Border  Intervention 
Teams5. 

Efficient  management  of  the  external  borders  through  checks  and  surveillance 
contributes  to  combat  illegal  immigration  and  trafficking  in  human  beings  and  to 
reduce the threats to the internal security, public policy, public health and international 
relations of the Member States. 

Border control at the external borders is in the interest not only of the Member State at 
whose external borders it is carried out but of all Member States which have abolished 
internal border control.  

The Multiannual programme for an area of Freedom, Security and Justice serving the 
citizen  adopted  by  the  European  Council  on  10/11  December  2009  (the  Stockholm 
Programme)  calls  upon  a  clarification  and  enhancement  of  the  role  of  Frontex 
regarding the management of the external borders of the European Union. 

(10)  The  mandate  of  the  Agency  should  therefore  be  revised  in  order  to  strengthen  in 
particular the operational capabilities of the Agency while ensuring that all measures 
taken are 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. 

(11)  Current possibilities for providing effective assistance to the Member States regarding 
the  operational  aspects  of  external  border  management  should  be  reinforced  as 
concerns  the  available  technical  resources;  the  Agency  must  be  able  to  plan  with 
sufficient accuracy the coordination of joint operations or pilot projects. 

(12)  Minimum levels of necessary technical equipment provided on a compulsory basis by 
the Member States and/or the Agency will largely contribute to a better planning and 
implementation of the envisaged operations coordinated by the Agency. 

(13)  The  Agency  should  manage  lists  of  technical  equipment  provided  by  the  Member 
States and by the Agency, thereby contributing to the "pooling" of material resources. 
These lists should contain the minimum numbers of categories of technical equipment 
necessary to enable the Agency to conduct its activities.  

(14)  To ensure effective operations, Member States should make an appropriate number of 
skilled  border  guards  available  to  participate  in  joint  operations  and  pilot  projects. 
Teams of border guards for deployment by the Agency should therefore be set up.  

4 
5 

OJ L 349, 25.11.2004, p. 1. 
OJ L 199, 31.7.2007, p. 30. 

EN 

14 

   EN 

                                                 
(15)  The Agency should be able to contribute to those teams with border guards seconded 
by Member States to the Agency on a semi-permanent basis, which shall be subject, in 
the  exercise  of  their  tasks  and  powers,  to  the  same  legal  framework  as  the  guest 
officers  contributed  directly  to  the  Teams  by  Member  States.  The  Agency  should 
adapt its internal rules on seconded national experts to allow for direct instructions by 
the host state to the border guards during joint operations and pilot projects. 

(16)  A  well  defined  operational  plan,  including  an  evaluation  and  an  obligation  to  report 
incidents,  agreed  prior  to  the  start  of  the  operations  amongst  participating  Member 
States and the Agency will largely contribute to the objectives of this Regulation with 
a more harmonised modus operandi regarding the coordination of operations. 

(17)  The incident reporting scheme shall be used by the Agency to transmit, to the relevant 
public  authorities  and  the  Management  Board,  any  information  concerning  credible 
allegations  of  breaches  of,  in  particular,  Regulation  (EC)  No  2007/2004  or  the 
Schengen  Borders  Code,  including  fundamental  rights,  during  joint  operations  and 
pilot projects. 

(18)  Risk analysis  has  demonstrated to  be a  key  element  for  conducting  operations  at  the 
external borders. Its quality should be improved by adding a method for evaluating the 
national structures, equipment and resources that Member States have at their disposal.  
(19)  The  Agency  should  provide  training,  including  on  fundamental  rights,  at 
European  level  for  national  instructors  of  border  guards  and  additional  training  and 
seminars  related  to  control  and  surveillance  at  the  external  borders  and  removal  of 
third-country  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. Member States should integrate the 
results of the  Agency’s work in  this perspective in the national training programs of 
their border guards. 

(20)  The Agency should monitor and contribute to the developments in scientific research 
relevant  for  its  field  and  disseminate  this  information  to  the  Commission  and  the 
Member States. 

(21) 

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  the  external  borders.  As  there  is  a  clear  added  value  in 
performing these tasks at Union level, the Agency should, in full compliance with the 
Union's  return  policy,  accordingly  provide  the  necessary  assistance  and  coordination 
for organising joint return operations of Member States and identify best practices on 
the  acquisition  of  travel  documents  and  define  a  Code  of  Conduct  to  be  followed 
during the removal of third-country nationals illegally present in the territories of the 
Member States. No Union financial means should be made available for activities and 
operations  that  are  not  carried  out  in  conformity  with  the  Charter  of  Fundamental 
Rights. 

(22)  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  European 
Asylum  Support  Office,  the  Fundamental  Rights  Agency  and  other  European  Union 
Agencies and bodies, the competent authorities of third countries and the international 
organisations competent in matters covered by Regulation (EC) No 2007/2004 in the 

EN 

15 

   EN 

framework  of  working  arrangements  concluded  in  accordance  with  the  relevant 
provisions  of  the  Treaty.  The  Agency  should  facilitate  the  operational  cooperation 
between Member States and third countries in the framework of the external relations 
policy of the European Union.  

(23)  Cooperation  with  third  countries  regarding  matters  covered  by  Regulation  (EC)  No 
2007/2004  is  increasingly  important.  To  establish  a  solid  cooperation  model  with 
relevant third countries the Agency should have the possibility to launch and finance 
projects  of  technical  assistance  and  to  deploy  liaison  officers  in  third  countries.  The 
Agency  should  have  the  possibility  to  invite  representatives  of  third  countries  to 
participate  in  its  activities,  after  having  provided  the  necessary  training.  Establishing 
cooperation  with  third  countries  is  relevant  also  with  regards  to  promoting  the 
European standards of border management, including the respect of fundamental rights 
and human dignity. 

(24) 

In order to ensure open and transparent employment conditions and equal treatment of 
staff,  the  Staff  Regulations  of  Officials  of  the  European  Communities  and  the 
Conditions  of  Employment  of  Other  Servants  of  the  European  Communities  ("the 
Staff  Regulations")  should  apply  to  the  staff  and  to  the  Executive  Director  of  the 
Agency,  including  the  rules  of  professional  secrecy  or  other  equivalent  duties  of 
confidentiality. 

(25)  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 bodies and on the free movement of 
such  data6  applies  to  the  processing  of  personal  data  by  the  Agency.  The  European 
Data  Protection  Supervisor  should  therefore  monitor  the  processing  of  personal  data 
by the Agency and have the power to obtain from the Agency access to all information 
necessary for his or her enquiries.  

(26)  As far as the Member States are processing personal data, Directive 95/46/EC of the 
European  Parliament  and  of  the  Council  of  24  October  1995  on  the  protection  of 
individuals with regard to the processing of personal data and on the free movement of 
such data7 fully applies. 

(27)  When ensuring the operational management of IT systems, the Agency should follow 
European  and  international  standards  taking  into  account  the  highest  professional 
requirements. 

(28)  Since  the  objectives  of  this  Regulation,  namely  the  need  for  creating  an  integrated 
management of operational cooperation at the external borders of the Member States 
of the European Union, cannot be sufficiently achieved by the Member States and can 
therefore  be  better  achieved  at  Union  level,  the  Union  may  adopt  measures,  in 
accordance  with  the  principle  of  subsidiarity  as  set  out  in  Article 5  of  the  Treaty  on 
European Union. 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. 

6 
7 

OJ L 8, 12.1.2001, p. 1. 
OJ L 281, 23.11.1995, p. 31. 

EN 

16 

   EN 

                                                 
(29)  As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  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  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/EC8 on certain arrangements for the 
application  of  that  Agreement.  Consequently,  delegations  of  the  Republic  of  Iceland 
and the Kingdom of Norway should participate as members of the Management Board 
of the Agency, albeit with limited voting rights. 

(30)  As regards Switzerland, this Regulation constitutes a development of the 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 acquis9, which fall within the area referred to in Article 1, points A, B 
and  G  of  Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council 
Decision  2008/146/EC  on  the  conclusion,  on  behalf  of  the  European  Community,  of 
the Agreement. 

(31)  As regards Liechtenstein, this Regulation 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 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, 
points  A,  B  and  G  of  Council  Decision  1999/437/EC  of  17  May  1999  read  in 
conjunction with Article 3 of Council Decision 2008/261/EC10. 

(32)  Under  the  Protocol  on  the  position  of  Denmark,  annexed  to  the  Treaty  on  European 
Union  and the  Treaty on the Functioning of the European Union, Denmark does not 
take  part  in  the  adoption  by  the  Council  of  the  measures  pursuant  to  Title  V  of  Part 
Three of the Treaty on the Functioning of the European Union, with the exception of 
“measures determining the third countries whose nationals must be in possession of a 
visa when crossing the external borders of the Member States, or measures relating to 
a uniform format for visas”. This proposal builds on the Schengen acquis, and under 
Article 4 of the Protocol on the position of Denmark, Denmark shall decide within a 
period of six months after the Council has decided on a proposal or initiative to build 
upon the Schengen acquis under the provisions of Title V of Part Three of the Treaty 
on the Functioning of the European Union whether it will implement this decision in 
its national law”. 

(33)  This  Regulation  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 

8 
9 
10 

OJ L 176, 10.7.1999, p. 31. 
OJ L 53, 27.2.2008, p. 52. 
OJ L 83, 26.3.2008, p. 3. 

EN 

17 

   EN 

                                                 
acquis11.  The  United Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not 
bound by it or subject to its application. 

(34)  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  acquis12.  Ireland  is  therefore  not  taking  part  in  its  adoption  and  is  not 
bound by it or subject to its application. 

(35)  The  Agency  should  facilitate  the  organisation  of  operational  actions  in  which  the 
Member States may avail 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, 
representatives 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. 

(36)  A controversy exists between the Kingdom of Spain and the United Kingdom on the 

demarcation of the borders of Gibraltar. 

(37)  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, 

HAVE ADOPTED THIS REGULATION: 

Article 1 
Amendment 

Regulation (EC) No 2007/2004 is amended as follows: 

(1) 

In Article 1 paragraph 2 is replaced by the following: 

"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 
application  of  existing  and  future  European  Union  measures  relating  to  the  management  of 
external borders, in particular the Schengen Borders Code13, and in accordance with relevant 
Union  law,  International  law,  obligations  related  to  access  to  international  protection,  and 
fundamental rights. It shall do so by ensuring the coordination of Member States' actions in 
the implementation 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." 

11 
12 
13 

OJ L 131, 1.6.2000, p. 43. 
OJ L 64, 7.3.2002, p. 20. 
OJ L 105 13.4.2006, p. 1. 

EN 

18 

   EN 

                                                 
(2)  Article 1a is amended as follows: 

(a) 

point 2 is replaced by the following: 

"2. 

"host  Member  State"  means  a  Member  State  on  the  territory  of  which,  or 
adjacent  to,  a  deployment  of  a  Rapid  Border  Intervention  Team  or  a  joint 
operation or a pilot project takes place;" 

(b)  point 4 is replaced by the following: 

"4. 

"members  of  the  teams"  means  border guards of  Member  States serving  with 
the Rapid Border Intervention Team or the Frontex Joint Support Team other 
than those of the host Member State;" 

(c) 

the following point 7 is added: 

"7. 

"technical equipment" means any kind of technical equipment deployed during 
joint  operations,  pilot  projects,  Rapid  Border  Intervention  Teams,  return 
operations or technical assistance projects." 

(3)  Article 2 is amended as follows: 

(a) 

paragraph 1 is amended as follows: 

(i) points (c) and (d) are replaced by the following: 

"(c)  carry  out  risk  analyses,  including  the  evaluation  of  the  capacity  of  Member 

States to face threats and pressure at the external borders; 

(d)  participate  in  the  development  of  research  relevant  for  the  control  and 

surveillance of external borders;" 

(ii)  point (f) is replaced by the following: 

"(f)  provide  Member  States  with  the  necessary  support,  including,  upon  request, 

coordination regarding organising joint return operations;" 

(iii) 

the following points (h) and (i) are added: 

"(h)  develop  and  operate  information  systems  that  enable  swift  and  reliable 
exchanges  of  information  regarding  emerging  risks  at  the  external  borders, 
including  the  Information  and  Coordination  Network  established  by  Council 
Decision 2005/267/EC14; 

(i) 

provide  the  necessary  assistance  to  the  development  and  operation  of  a 
European border surveillance system and, as appropriate, to the development of 
a  common  information  sharing  environment,  including  interoperability  of 
systems." 

14 

OJ L 83, 1.4.2005, p. 48. 

EN 

19 

   EN 

 
 
 
 
                                                 
(b) 

the following paragraph 1a is inserted: 

"All  border  guards  and  other  personnel  of  the  Member  States,  as  well  as  the  staff  of  the 
Agency  shall,  prior  to  their  participation  in  operational  activities  organised  by  the  Agency, 
have received training in relevant EU and international law, including fundamental rights and 
access to international protection." 

(c) 

In paragraph 2 the last subparagraph is replaced by the following: 

"Member  States  shall  report  to  the  Agency  on  these  operational  matters  at  the 
external borders outside the framework of the Agency. The Executive Director shall 
inform the Management Board on these matters on a regular basis and at least once a 
year." 

(4)  Article 3 is replaced by the following: 

"Article 3 

Joint operations and pilot projects at the external borders 

1. 

The Agency shall evaluate, approve and coordinate proposals for joint operations and 
pilot  projects  made  by  Member  States,  including  the  requests  of  Member  States 
related to circumstances requiring increased technical and operational assistance.  

The Agency may itself initiate joint operations and pilot projects in cooperation with 
Member States.  

It  may  also  decide  to  put  its  technical  equipment  at  the  disposal  of  Member  States 
participating in the joint operations or pilot projects.  

Joint operations and pilot projects should be preceded by a thorough risk analysis.  

The Agency may also terminate joint operations and pilot projects if the conditions to 
conduct these initiatives are no longer fulfilled. 

The  Agency  shall  constitute  a  pool  of  border  guards  called  Frontex  Joint  Support 
Teams  in  accordance  with  the  provisions  of  Article  3b,  for  possible  deployment 
during joint operations and pilot projects referred to in paragraph 1. It shall decide on 
the  deployment  of  human  resources  and  technical  equipment  in  accordance  with 
Articles 3a and 7. 

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

The  Agency  shall  evaluate  the  results  of  the  joint  operations  and  pilot  projects  and 
transmit  the  detailed  evaluation  reports  within  60  days  following  the  end  of  the 
activity  to  the  Management  Board.  The  Agency  shall  make  a  comprehensive 
comparative analysis of those results with a view to 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). 

2. 

3. 

4. 

EN 

20 

   EN 

5. 

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

(5) 

The following Articles 3a, 3b and 3c are inserted: 

"Article 3a 

Organisational aspects of joint operations and pilot projects 

1. 

The Executive Director shall draw up an operational plan for activities referred 
to  in  Article  3(1).  The  Executive  Director  and  the  host  Member  State  shall 
agree  on  the  operational  plan  detailing  the  organisational  aspects  in  due  time 
before the envisaged beginning of the activity.  

The operational plan shall include the following: 

(a) 

a description of the situation, with modus operandi and objectives of the 
deployment, including the operational aim; 

(b) 

the foreseeable duration of the joint operation or pilot projects; 

(c) 

the geographical area where the joint operation or pilot project will take 
place; 

(d)  description  of  the  tasks  and  special  instructions  for  the  guest  officers, 
including  on  permissible  consultation  of  databases  and  permissible 
service weapons, ammunition and equipment in the host Member State; 

(e) 

the composition of the teams of guest officers; 

(f) 

(g) 

(h) 

(i) 

command  and  control  provisions,  including  the  names  and  ranks  of  the 
host  Member  State's  border  guards  responsible  for  cooperating  with  the 
guest  officers  and  the  Agency,  in  particular  those  of  the  border  guards 
who are in command during the period of deployment, and the place of 
the guest officers in the chain of command; 

the technical equipment to be deployed during the joint operation or pilot 
project,  including  specific  requirements  such  as  conditions  for  use, 
requested crew, transport and other logistics, and financial provisions; 

a  reporting  and  evaluation  scheme  containing  detailed  provisions  on 
incident reporting, benchmarks for the evaluation report and final date of 
submission of the final evaluation report in accordance with Article 3(4).  

regarding  sea  operations,  specific  requirements  regarding  the  applicable 
jurisdiction  and  maritime  law  provisions  concerning  the  geographical 
area where the joint operation takes place. 

2.  Any  amendments  to  or  adaptations  of  the  operational  plan  shall  require  the 
agreement of the Executive Director and the host Member State. A copy of the 

EN 

21 

   EN 

amended or adapted operational plan shall immediately be sent by the Agency 
to the participating Member States. 

3. 

The  Agency  shall,  as  part  of  its  coordinating  tasks,  ensure  the  operational 
implementation  of  all  the  organisational  aspects,  including  the  presence  of  a 
staff member of the Agency, of joint operations and pilot projects referred to in 
this Article. 

Article 3b 

Composition and deployment of Frontex Joint Support Teams  

On a proposal by the Executive Director, the Management Board shall decide by an 
absolute majority of its members with a right to vote on the profiles and the overall 
number of border guards to be made available for the Frontex Joint Support Teams. 
The same procedure shall apply with regard to any subsequent changes in the profiles 
and the overall numbers. Member States shall contribute to the Frontex Joint Support 
Teams via a national pool on the basis of the various defined profiles by nominating 
border guards corresponding to the required profiles. 

The Agency shall also contribute to the Frontex Joint Support Teams with competent 
border guards seconded by the Member States as national experts pursuant to Article 
17(5). To that effect Member States shall contribute by seconding border guards to 
the  Agency  as  national  experts.  The  maximum  duration  of  such  secondments  shall 
not exceed six months in a twelve month period. They shall, for the purpose of this 
Regulation, be considered as guest officers and have the tasks and powers referred to 
in Article 10. The Member State having seconded the border guards in question shall 
be considered as "home Member State" as defined in Article 1a(3) for the purpose of 
applying  Articles  3c,  10,  and  10b.  Other  staff  employed  by  the  Agency  on  a 
temporary basis who are not qualified to perform border control functions shall only 
be deployed during joint operations and pilot projects for coordination tasks. 

Member States shall make the border guards available for deployment at the request 
of  the  Agency,  unless  they  are  faced  with  an  exceptional  situation  substantially 
affecting the discharge of national tasks. Such a request shall be made at least thirty 
days  before  the  intended  deployment.  The  autonomy  of  the  home  Member  State  in 
relation  to  the  selection  of  staff  and  the  duration  of  their  deployment  shall  remain 
unaffected. 

Members of the Frontex Joint Support Teams shall, in the performance of their tasks 
and  in  the  exercise  of  their  powers,  fully  respect  fundamental  rights  and  human 
dignity. Any measures taken in the performance of their tasks and in the exercise of 
their  powers  shall  be  proportionate  to  the  objectives  pursued  by  such  measures. 
While performing their tasks and exercising their powers, members of the teams shall 
not discriminate against persons on grounds of sex, racial or ethnic origin, religion or 
belief, disability, age or sexual orientation. 

In  accordance  with  Article  8g  the  Agency  will  nominate  a  coordinating  officer  for 
each joint operation or pilot project where Frontex Joint Support Team members will 
be deployed.  

1. 

2. 

3. 

4. 

5. 

EN 

22 

   EN 

6. 

1. 

2. 

3. 

4. 

The  Agency  shall  meet  the  costs  incurred  by  the  Member  States  in  making  their 
border guards available pursuant to paragraph 1 for the Frontex Joint Support Teams 
in accordance with Article 8h. 

Article 3c 

Instructions to the Frontex Joint Support Teams 

During  deployment of Frontex Joint Support Teams,  instructions to the teams shall 
be issued by the host Member State in accordance with the operational plan referred 
to in Article 3a (1). 

The  Agency,  via  its  coordinating  officer  as  referred  to  in  Article  3b  (5),  may 
communicate its views on those instructions to the host Member State. If it does so, 
the host Member State shall take those views into consideration. 

In  accordance  with  Article  8g  the  host  Member  State  shall  give  the  coordinating 
officer  all  necessary  assistance,  including  full  access  to  the  Frontex  Joint  Support 
Teams at all times throughout the deployment. 

Members of the Frontex Joint Support Teams shall, while performing their tasks and 
exercising  their  powers,  remain  subject  to  the  disciplinary  measures  of  their  home 
Member State." 

(6)  Article 4 is replaced by the following: 

"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. For these purposes Member States shall provide the Agency with all necessary 
information regarding the situation and possible threats at the external borders. 

The  Agency  shall  regularly  evaluate  the  capacity  of  the  Member  States  to  face  upcoming 
challenges,  including  present  and  future  threats  and  pressures  at  the  external  borders  of  the 
European Union. Therefore the Agency shall evaluate the national structures, the equipment 
and  the  resources  of  the  Member  States  regarding  border  control.  .  The  results  of  these 
evaluations shall be presented at least once per year to the Management Board of the Agency. 

The  Agency  shall  incorporate  the  results  of  a  common  integrated  risk  analysis  model  in  its 
development of the common core curriculum for border guards' training referred to in Article 
5." 

(7) 

In Article 5 the first paragraph is replaced by the following: 

"The  Agency  shall  establish  and  further  develop  common  core  curricula  for  border  guards' 
training and provide training at European level for instructors of the national border guards of 

EN 

23 

   EN 

Member  States,  including  with  regard  to  fundamental  rights  and  access  to  international 
protection.  

Member  States  shall  integrate  the  common  core  curricula  in  the  training  of  their  national 
border guards." 

(8)  Articles 6 and 7 are replaced by the following: 

"Article 6 

Monitor and contribute to research 

The  Agency  shall  monitor  and  contribute  to  the  developments  in  research  relevant  for  the 
control  and  surveillance  of  the  external  borders  and  disseminate  this  information  to  the 
Commission and the Member States. 

Article 7 

Technical equipment 

1. 

2. 

3. 

The Agency may acquire or lease technical equipment for external border control to 
be deployed during joint operations, pilot projects, Rapid Border Intervention Teams, 
return  operations  or  technical  assistance  projects  in  accordance  with  the  financial 
rules  applicable  to  the  Agency.  Any  acquisition  of  equipment  entailing  significant 
costs to the Agency shall be preceded by a thorough needs and cost/benefit analysis. 
In  case  the  Agency  acquires  or  leases  important  technical  equipment  such  as  open 
sea and coastal patrol vessels or vehicles, to be used in joint operations, the following 
provisions shall apply: 

–  in case of acquisition, the Agency agrees formally with one Member State that the 

latter will provide for the registration of the equipment; 

–  in case of leasing, the equipment must be registered in a Member State.  

The Member State of registration or the supplier of technical equipment shall provide 
the  necessary  experts  and  technical  crew  to  operate  the  technical  equipment  in  a 
legally sound and safe manner. 

The  Agency  shall  set  up  and  keep  centralised  records  of  equipment  in  a  technical 
equipment pool composed of equipment owned by Member States or by the Agency 
for  external  border  control  purposes.  The  technical  equipment  pool  shall  contain  a 
minimum  number  per  type  of  technical  equipment  defined  in  accordance  with 
paragraph 5 of this article. The equipment listed in the technical equipment pool shall 
be deployed during the activities referred to in Articles 3, 8a and 9.  

Member  States  shall  contribute  to  the  technical  equipment  pool  referred  to  in 
paragraph 2. To the extent that it forms part of the minimum number of equipment 
for  a  given  year,  Member  States  shall  make  their  technical  equipment  available 
within  30  days  for  deployment  at  the  request  of  the  Agency,  unless  they  are  faced 

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24 

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with an  exceptional  situation substantially affecting  the  discharge  of  national tasks. 
Their contributions to the technical equipment pool shall be reviewed annually. 

4. 

The Agency shall manage the records of the technical equipment pool as follows: 

(a) 

(b) 

(c) 

classification by type of equipment and by type of operation; 

classification by owner (Member State, Agency, others); 

overall numbers of required equipment;  

(d) 

crew requirements if applicable; 

(e) 

other  information  such  registration  details,  transportation  and  maintenance 
requirements,  national  applicable  export  regimes,  technical  instructions,  or 
other relevant information to handle the equipment correctly. 

The Agency shall finance the deployment of the equipment which forms part of the 
minimum number of equipment provided by a given Member State for a given year. 
The deployment of equipment which does not form part of the minimum number of 
equipment  shall  be  co-financed  by  the  Agency  up  to  a  maximum  of  60%  of  the 
eligible expenses. 

The  rules  including  the  required  overall  minimum  numbers  per  type  of  equipment, 
the  conditions  for  deployment  and  reimbursement  of  costs  shall  be  decided  in 
accordance  with  Article  24  on  a  yearly  basis  by  the  Management  Board  on  a 
proposal by the Executive Director. For budgetary purposes this decision should be 
taken by the Management Board by 31 March.  

The minimum number of equipment shall be proposed by the Agency in accordance 
with its needs, notably be able to carry out joint operations, pilot projects and return 
operations,  in  accordance  with  the  work  programme  of  the  Agency  for  the  year  in 
question. 

The Agency shall report on the composition and the deployment of equipment, which 
is  part  of  the  technical  equipment  pool,  to  the  Management  Board  on  a  monthly 
basis.  In  case  the  minimum  number  of  equipment  referred  to  in  paragraph  5  is  not 
reached, the Executive Director shall inform the Management Board without delay. 
The Management Board shall take a decision on the prioritisation of the deployment 
of  the  technical  equipment  urgently  and  take  the  appropriate  steps  to  remedy  the 
identified  shortcomings.  It  shall 
identified 
shortcomings  and  the  steps  taken.  The  Commission  may  subsequently  inform  the 
European Parliament and the Council, together with its own assessment." 

the  Commission  of 

inform 

the 

5. 

6. 

(9) 

Article 8 is deleted. 

(10) 

In Article 8e paragraph 1 is amended as follows: 

(a) 

points (f) and (g) are replaced by the following: 

"(f)  command  and  control  provisions,  including  the  names  and  ranks  of  the  host 
Member  State's  border  guards  responsible  for  cooperating  with  the  Rapid 

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Border Interventions teams, in particular those of the border guards who are in 
command of  the  teams during the period of deployment, and the place of the 
teams in the chain of command; 

(g) 

the  technical  equipment  to  be  deployed  together  with  the  teams,  including 
specific requirements such as conditions for use, requested crew, transport and 
other logistics, and financial provisions." 

(b) 

the following points (h) and (i) shall be added: 

"(h)  a  reporting  and  evaluation  scheme  containing  detailed  provisions  on  incident 
reporting, benchmarks for the evaluation report and final date of submission of 
the final evaluation report in accordance with Article 3(4).  

(i) 

regarding  sea  operations,  specific  requirements  regarding  the  applicable 
jurisdiction  and  maritime  law  provisions  concerning  the  geographical  area 
where the joint operation takes place." 

(11) 

In Article 8h paragraph 1 is replaced by the following: 

"1.  The Agency shall fully meet the following costs incurred by Member States in 
making  available  their  border  guards  for  the  purposes  mentioned  in 
Article 3(2), Article 8a and Article 8c:" 

(12)  Article 9 is replaced by the following: 

"Article 9 

Return cooperation 

1. 

2. 

Subject to the return policy of the Union, and in particular Directive 2008/115/EC15, 
the  Agency  shall  provide  the  necessary  assistance,  and  upon  request  of  the 
participating  Member  States  ensure  the  coordination  for  organising  joint  return 
operations  of  Member  States.  The  Agency  may  decide  to  finance  or  co-finance  the 
operations and projects referred to in this paragraph, with grants from its budget in 
accordance with the financial rules applicable to the Agency. The Agency may also 
use Union financial means available in the field of return. The Agency shall ensure 
that in its grant agreements with Member States any financial support is conditional 
upon the full respect of the Charter of Fundamental Rights. 

The Agency shall develop a Code of Conduct for the return of illegally present third-
country  nationals  by  air  which  shall  apply  during  all  joint  return  operations 
coordinated  by  the  Agency,  describing  common  standardized  procedures  which 
should simplify the organisation of joint return flights and assure return in a humane 
manner  and  in  full  respect  for  fundamental  rights,  in  particular  the  principles  of 
human  dignity,  prohibition  of  torture  and  of  inhuman  or  degrading  treatment  or 
punishment, right to liberty and security, the rights to the protection of personal data 
and non discrimination. 

15 

OJ L 348, 24.12. 2008, p.  

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26 

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3. 

4. 

5. 

The  Code  of  Conduct  will  in  particular  pay  attention  to  the  obligation  set  out  in 
Article  8(6)  of  Directive  2008/115/EC  to  provide  for  an  effective  forced-return 
monitoring  system.  The  monitoring  of  joint  return  operations  should  be  carried  out 
independently  and  should  cover  the  whole  joint  return  operation  from  the  pre-
departure  phase  until  the  hand-over  of  the  returnees  in  the  country  of  return. 
Furthermore, observations of the monitor, which shall cover the compliance with the 
Code of Conduct and in particular fundamental rights, shall be made available to the 
Commission and form part of the internal Final Return Operation Report. In order to 
ensure transparency and a coherent evaluation of the forced-return operations, reports 
of the monitor shall be included in an annual reporting mechanism.  

Member States shall once a month inform the Agency of their situation with regard 
to return and indicate to what extent the assistance or coordination of the Agency is 
required.  The  Agency  shall  draw  up  a  rolling  operational  plan  to  provide  the 
requesting Member States with the necessary operational support, including technical 
equipment  referred  to  in  Article  7(1).  The  Management  Board  shall  decide  in 
accordance with Article 24 on a proposal of  the Executive Director, on the content 
and modus operandi of the rolling operational plan. 

The Agency shall cooperate with competent authorities of the relevant third countries 
referred  to  in  Article  14,  identify  best  practices  on  the  acquisition  of  travel 
documents and the return of illegally present third-country nationals." 

(13)  In Article 10, paragraph 2 is replaced by the following: 

"2.  While  performing  their  tasks  and  exercising  their  powers  guest  officers  shall 
comply  with  Union  law,  in  accordance  with  fundamental  rights,  and  the 
national law of the host Member State." 

(14)  Article 11 is replaced by the following: 

"Article 11 

Information exchange systems 

The  Agency  may  take  all  necessary  measures  to  facilitate  the  exchange  of  information 
relevant  for  its  tasks,  with  the  Commission  and  the  Member  States.  It  shall  develop  and 
operate  an  information  system  capable  of  exchanging  classified  information  with  the 
Commission  and  the  Member  States.  The  exchange  of  information  to  be  covered  by  this 
system shall not include the exchange of personal data." 

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27 

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(15)  The following Articles 11a and 11b are inserted: 

"Article 11a 

Data protection 

The  Management  Board  shall  establish  measures  for  the  application  of  Regulation  (EC)  No 
45/2001  by  the  Agency,  including  those  concerning  the  Data  Protection  Officer  of  the 
Agency.  

Article 11b 

Security rules on the protection of classified information and non-classified sensitive 

information 

1. 

2. 

The Agency shall apply the Commission’s rules on security as set out in the Annex 
to Commission Decision 2001/844/EC, ECSC, Euratom16. This shall cover, inter alia, 
provisions for the exchange, processing and storage of classified information. 

The  Agency  shall  apply  the  security  principles  relating  to  the  processing  of  non-
classified  sensitive  information  as  adopted  and  implemented  by  the  European 
Commission." 

(16)  Articles 13 and 14 are replaced by the following: 

"Article 13 

Cooperation with European Union agencies and bodies and international organisations 

The  Agency  may  cooperate  with  Europol,  the  European  Asylum  Support  Office,  the 
Fundamental Rights Agency, other European Union agencies and bodies, and the international 
organisations competent in matters covered by this Regulation in the framework of working 
arrangements concluded with those bodies, in accordance with the relevant provisions of the 
Treaty and the provisions on the competence of those bodies.  

Article 14 

Facilitation of operational cooperation with third countries and cooperation with competent 

authorities of third countries 

1. 

In matters covered by its activities and to the extent required for the fulfilment of its 
tasks, the Agency shall facilitate the operational cooperation between Member States 
and  third  countries,  in  the  framework  of  the  European  Union  external  relations 
policy, including with regard to human rights.  

16 

OJ L 317, 3.12.2001, p. 1.  

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28 

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2. 

3. 

4. 

5. 

6. 

7. 

The  Agency  may  deploy  liaison  officers,  which  should  enjoy  the  highest  possible 
protection  to  carry  out  their  duties,  in  third  countries.  They  shall  form  part  of  the 
local  or  regional  cooperation  networks  of  Member  States'  liaison  officers  set  up 
pursuant  to  Council  Regulation  No  377/200417.  Liaison  officers  shall  only  be 
deployed to third countries in which border management practices respect minimum 
human  rights  standards.  Priority  for  deployment  should  be  given  to  those  third 
countries, which on the basis of risk analysis constitute a country of origin or transit 
regarding  illegal  migration.  On  a  reciprocal  basis  the  Agency  may  receive  liaison 
officers  posted  by  those  third  countries  also,  for  a  limited  period  of  time.  The 
Management Board shall adopt, on a proposal of the Executive Director, the list of 
priorities on a yearly basis in accordance with the provisions of Article 24.  

The  tasks  of  the  liaison  officers  shall  include,  in  compliance  with  European  Union 
law and in accordance with fundamental rights, the establishment and maintaining of 
contacts  with  the  competent  authorities  of  the  third  country  to  which  they  are 
assigned  to  with  a  view  to  contribute  to  the  prevention  of  and  fight  against  illegal 
immigration and the return of illegal migrants.  

The  Agency  may  benefit  from  Union  funding  in  accordance  with  the  provisions  of 
the  relevant  instruments  supporting  the  Union's  external  relations  policy.  It  may 
launch and finance technical assistance projects in third countries regarding matters 
covered  by  this  Regulation.  The  Agency  may  also  invite  representatives  of  third 
countries,  other  European  Union  agencies  and  bodies  or  international  organisations 
to participate in its activities referred to in Articles 3, 4 and 5. These representatives 
shall receive the appropriate training from the Agency prior to their participation. 

When concluding bilateral agreements with third countries as referred to in Article 2 
(2)  Member  States  shall,  where  appropriate,  include  provisions  concerning  the  role 
and  competencies  of  the  Agency,  in  particular  regarding  the  exercise  of  executive 
powers  by  members  of  the  teams  deployed  by  the  Agency  during  the  activities 
referred to in Article 3. 

The  Agency  may  cooperate  with  the  authorities  of  third  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.  

The activities referred to in paragraphs 2 and 6 shall be subject to receiving a prior 
favourable opinion of the Commission." 

(17)  The following Article 15a is inserted: 

"Article 15a 

Headquarters Agreement 

The necessary arrangements concerning the accommodation to be provided for the Agency in 
the Member State in which the Agency has its seat and the facilities to be made available by 

17 

OJ L 64, 2.3.2004, p. 1. 

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that  State,  as  well  as  the  specific  rules  applicable  to  the  Executive  Director,  the  Deputy 
Executive  Director,  the  members  of  the  Management  Board,  the  staff  of  the  Agency  and 
members  of  their  families,  in  that  State  shall  be  laid  down  in  a  Headquarters  Agreement 
between  the  Agency  and  the  Member  State  in  which  the  Agency  has  its  seat.  The 
Headquarters Agreement shall be concluded after obtaining the approval of the Management 
Board. The Member State in which the Agency has its seat should provide the best possible 
conditions  to  ensure  proper  functioning  of  the  Agency,  including  multilingual,  European-
oriented schooling and appropriate transport connections." 

(18) 

In Article 17, paragraph 3 is replaced by the following: 

"3. For the purpose of implementing Article 3b(5) only an Agency's staff member subject to 
the  Staff  Regulations  of  Officials  and  to  Title  II  of  the  Conditions  of  employment  of  other 
servants  of  the  European  Communities  employed  by  the  Agency  can  be  designated  as 
coordinating officer in accordance with Article 8g. For the purpose of implementing Article 
3b(2) only national experts seconded by a Member State to the Agency can be designated to 
be  attached  to  the  Frontex  Joint  Support  Teams.  The  Agency  shall  designate  those  national 
experts  that  shall  be  attached  to  the  Frontex  Joint  Support  Teams  in  accordance  with  that 
Article." 

(19)  In Article 17 the following paragraphs 4 and 5 are added: 

"4.  The Management Board shall adopt the necessary implementing measures in agreement 
with  the  Commission  pursuant  to  the  arrangements  provided  for  in  Article  110  of  the  Staff 
Regulations of Officials of the Union. 

5. 
The Management Board may adopt provisions to allow national experts from Member 
States  to  be  seconded  to  the  Agency.  Those  provisions  shall  take  into  account  the 
requirements of Article 3b(2), in particular the fact that they are considered as guest officers 
and have the tasks and powers referred to in Article 10." 

(20)  Article 20 is amended as follows: 

(a)  Paragraph 2 is amended as follows: 

(i) 

point (h) is replaced by the following: 

"(h)  establish  the  organisational  structure  of  the  Agency  and  adopt  the  Agency's 
staff  policy,  in  particular  the  multi-annual  staff  policy  plan  and  submit  the 
latter,  in  accordance  with  the  relevant  provisions  of  the  framework  Financial 
Regulation  for  the  bodies  referred  to  in  Article  185  of  the  general  Financial 
Regulation18,to  the  Commission  and  the  budgetary  authority  after  receiving  a 
favourable opinion of the Commission;" 

(ii)  The following point (i) is inserted: 

"(i)  adopt the Agency’s Multi Annual Plan aiming at outlining the future long term 

strategy regarding the activities of the Agency. " 

18 

Commission  Regulation  (EC,  Euratom)  No  2343/2002  (OJ  L  357,  31.12.2002,  p.  72),  amended  by 
Commission Regulation (EC, Euratom) No 652/2008 (OJ L 181, 10.1.2008, p. 23). 

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(b)  Paragraph 4 is replaced by the following: 

"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 activities related to research as defined in Article 6." 

(21)  Article 21 is amended as follows: 

(a) 

In Paragraph 1 the last sentence is replaced by the following: 

"This term of office shall be extendable." 

(b)  Paragraph 3 is replaced by the following: 

"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  have  been 
developed that 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 contributions and staff." 

(22)  In Article 25 (3) the following point (g) shall be added: 

"(g)  to implement the operational plan referred to in Articles 3a and 8g. " 

(23)  In Article 33, the following paragraphs 2a and 2b are inserted: 

"2a.  The evaluation shall analyse the needs for the Agency to employ independent 
border guards acting under the instructions of the Agency, including a detailed 
description of the legal framework that would need to be set in place for that 
purpose. 

2b.  The  evaluation  shall  include  a  specific  analysis  on  the  way  the  Charter  of 
Fundamental  Rights  was  respected  pursuant  to  the  application  of  the 
Regulation." 

Article 2 
Entry into force 

This regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

This Regulation shall be binding in its entirety and directly applicable in the Member States in 
accordance with the Treaties. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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