Commission staff working document - 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) 150}
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) 149 

COMMISSION STAFF WORKING DOCUMENT 

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) 150} 

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TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

2. 

2.1. 

2.2. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED 
PARTIES ......................................................................................................................5 

Background and political context .................................................................................5 

Procedural issues and consultations with interested parties .........................................7 

PROBLEM DEFINITION............................................................................................8 

The legal framework.....................................................................................................8 

The context ...................................................................................................................9 

2.3.  What are the problems to be addressed?.....................................................................10 

2.3.1. 

Insufficient technical equipment put at the disposal by Member States ....................11 

2.3.2. 

Insufficient human resources put at the disposal for joint operations by 
Member States; lack of uniform standards .................................................................13 

2.3.3. 

Inefficient coordination and follow up of joint operations .........................................13 

2.3.4. 

Insufficient and inefficient cooperation with third countries .....................................14 

2.3.5.  Collection, storage and processing of personal data...................................................15 

2.3.6.  Return .........................................................................................................................16 

2.3.7.  No use of the expertise of the Agency to evaluate Member States' 

performance in the area of border management .........................................................16 

2.4. 

2.5. 

3. 

3.1. 

3.2. 

3.3. 

4. 

How would the problem evolve, all things being equal?............................................17 

Right to act..................................................................................................................18 

OBJECTIVES.............................................................................................................19 

General objectives (cf Article 1 of the Regulation)....................................................19 

Specific objectives (cf Article 2 of the Regulation) ...................................................19 

Operational objectives ................................................................................................20 

POLICY OPTIONS ....................................................................................................20 

4.1. 

Assessment criteria .....................................................................................................21 

5. 

5.1. 

DESCRIPTION OF SUBOPTIONS AND ANALYSIS OF IMPACTS....................21 

Revising existing provisions on the use of technical equipment in joint 
operations, including the mechanisms for contributions from the Member 
States of such equipment ............................................................................................21 

5.1.1.  Do the suboptions address the general objectives?.....................................................23 

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5.1.2.  Do the options have an impact on external countries/partners? .................................24 

5.1.3.  Can the involved costs be (or become) part of the FRONTEX budget and 

how high are they?......................................................................................................24 

5.1.4.  What are the possible impacts on fundamental rights? ..............................................25 

5.1.5.  Comparison of the suboptions ....................................................................................25 

5.2. 

Mechanisms to improve the availability of border guards in joint operations ...........26 

5.2.1.  Do the suboptions address the general objectives?.....................................................26 

5.2.2.  Does the option have an impact on external countries/partners? ...............................27 

5.2.3.  Can the involved costs be (or become) part of the FRONTEX budget and 

how high are they?......................................................................................................27 

5.2.4.  What are the possible impacts on fundamental rights? ..............................................27 

5.2.5.  Comparison of the suboptions ....................................................................................28 

5.3. 

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 Member States................................................................................................28 

5.3.1.  Do the suboptions address the general objectives?.....................................................29 

5.3.2.  Can the involved costs be (or become) part of the FRONTEX budget and 

how high are they?......................................................................................................29 

5.3.3.  What are the possible impacts on fundamental rights? ..............................................29 

5.3.4.  Comparison of the options..........................................................................................30 

5.4. 

Expanding the mandate of the Agency in cooperating with third countries on 
border management ....................................................................................................31 

5.4.1.  Do the suboptions address the general objectives?.....................................................31 

5.4.2.  Does the option/recommendation have an impact on external 

countries/partners? ......................................................................................................32 

5.4.3.  Can the involved costs be (or become) part of the FRONTEX budget and 

how high are they?......................................................................................................32 

5.4.4.  What are the possible impacts on fundamental rights? ..............................................33 

5.4.5.  Comparison of the suboptions ....................................................................................33 

5.5. 

Mandating the Agency to collect and process personal data ......................................34 

5.5.1.  Do the suboptions address the general objectives?.....................................................34 

5.5.2.  Do the options have an impact on external countries/partners? .................................36 

5.5.3.  Can the involved costs be (or become) part of the FRONTEX budget and 

how high are they?......................................................................................................36 

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5.5.4.  What are the possible impacts on fundamental rights? ..............................................36 

5.5.5.  Comparison of the options..........................................................................................36 

5.6. 

Revising the mandate of the Agency as concerns return operations ..........................37 

5.6.1.  Do the suboptions address the general objectives?.....................................................37 

5.6.2.  Does the option have an impact on external countries/partners? ...............................38 

5.6.3.  Can the involved costs be (or become) part of the FRONTEX budget and 

how high are they?......................................................................................................38 

5.6.4.  What are the possible impacts on fundamental rights? ..............................................38 

5.6.5.  Comparison of the options..........................................................................................38 

5.7. 

Mandating the Agency to evaluate Member States' performance in the area of 
border management ....................................................................................................39 

5.7.1.  Do the suboptions address the general objectives?.....................................................39 

5.7.2.  Does the option have an impact on external countries/partners? ...............................39 

5.7.3.  Can the involved costs be (or become) part of the FRONTEX budget and 

how high are they?......................................................................................................40 

5.7.4.  What are the possible impacts on fundamental rights? ..............................................40 

5.7.5.  Comparison of the options..........................................................................................40 

5.8. 

Subsidiarity and proportionality .................................................................................40 

6. 

6.1. 

6.2. 

ASSESSMENT OF THE PREFERRED POLICY OPTION .....................................41 

Summary of the preferred option................................................................................41 

Overall assessment of impact of the preferred policy option .....................................41 

6.2.1.  Subsidiarity and proportionality .................................................................................42 

6.2.2.  Costs ...........................................................................................................................43 

7. 

MONITORING AND EVALUATION ......................................................................43 

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1. 

PROCEDURAL  ISSUES  AND  CONSULTATION  OF  INTERESTED 
PARTIES 

1.1. 

Background and political 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) (hereafter "Communication").  

In conclusion the Commission recommended a number of improvements for how the 
Agency operates within its mandate and that in the medium-term the mandate should 
be revised. The Communication and the recommendations contained in it were based 
on a detailed Impact Assessment (SEC(2008) 148).  

The  Communication  was  welcomed  by  Council  conclusions  in  June  2008.  The 
Council  shared  the  Commissions  assessment  that  the  Agency  had  been  very 
successful  since  its  inception  and  called  for  a  further  strengthening  of  the  Agency, 
largely in line with the recommendations of the Communication.  

This call has been repeated by the Pact on immigration and asylum agreed by the 
European Council under the French Presidency, which stated that coordination for the 
control of external borders of the EU will be provided by Frontex whenever it proves 
necessary. The Pact asked for the Agency's resources to be strengthened to deal with 
crisis situations and that Member States will undertake to provide it with the resources 
it requires. 

The European Council conclusions of June 2009, in the context of the fight against 
illegal immigration and the situation at the southern borders of the EU in particular, 
underlined  a  need  for  strengthened  border  control  operations  coordinated  by 
FRONTEX, clear rules of engagement for joint patrolling and the disembarkation of 
rescued persons, and increased use of joint return flights.  

In  the  same  context,  in  its  conclusions  of  October  2009,  the  European  Council 
called  for  the  enhancement  of  the  operational  capacities  of  FRONTEX  as  well  as 
progress in its development and invited the Commission to present proposals to that 
end  early  in  2010.  The  conclusions  indicated  that  such  an  enhancement  could  be 
based on the following elements: 

•  the  preparation  of  clear  common  operational  procedures  containing  clear  rules  of 
engagement for joint operations at sea, with due regard to ensuring protection for 
those in need who travel in mixed flows, in accordance with international law; 

•  increased operational cooperation between FRONTEX and countries of origin and 

transit; 

•  examination  of  the  possibility  of  regular  chartering,  financed  by  FRONTEX,  of 

joint return flights. 

The  Stockholm  programme  adopted  by  the  European  Council  10-11  December 
2010,  called  upon  the  Commission  to  present  a  proposal  no  later  than  early  2010, 
"…to  clarify  the  mandate  and  enhance  the  role  of  Frontex,  taking  account  of  the 

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results  of  the  evaluation  of  the  Agency  and  the  role  and  responsibilities  of  the 
Member  States  in  the  area  of  border  control.  Elements  of  these  proposals  could 
contain preparation of clear common operational procedures containing clear rules of 
engagement  for  joint  operations  at  sea,  with  due  regard  to  ensuring  protection  for 
those  in  need  who  travel  in  mixed  flows,  in  accordance  with  international  law; 
increased operational cooperation between Frontex and countries of origin and transit 
and examination of the possibility of regular chartering financed by Frontex. In order 
to promote the proper enforcement of the applicable statutory framework for Frontex 
operations, the Commission should consider including a mechanism for reporting and 
recording incidents that can be satisfactorily followed up by the relevant authorities." 

The  European  Parliament  adopted  a  resolution  on  the  evaluation  and  future 
development of the  Frontex  Agency  following the Communication on 18 December 
2008. The Resolution considered the Agency as an essential instrument in the Union's 
global strategy on immigration and called on the Commission to present proposals to 
review  the  mandate  of  the  Agency  in  order  to  strengthen  its  role  and  make  it  more 
effective. Notably, the resolution called for a system of "compulsory and irrevocable 
solidarity",  to  "…  enable  Frontex,  in  preparing  and  completing  its  missions,  to 
remove the uncertainty as to the extent of the resources it can count on in real time." 
The  resolution  also  called  for  an  increase  of  the  Agency's  budget,  for  better 
cooperation  with  third  countries,  for  obligations  on  international  human  rights 
standards and towards asylum seekers in rescue operations to be met, and for Frontex 
to strengthen and take up its key role in supporting joint return operations. 

An  independent evaluation took place during 2008. That evaluation, contracted by 
the Frontex Management Board as requested by Article 33 of the Frontex Regulation, 
was  performed  by  the  COWI  Company,  Denmark.1  On  the  basis  of  the  evaluation, 
and  in  accordance  with  Article  33  of  the  Regulation,  the  Frontex  Management 
Board addressed 16 recommendations concerning changes to the legal basis of the 
Agency to the Commission on 3 July 2009.2 

the  exceptions  described  below 

With 
impact  assessment  covers  all 
recommendations of the Communication and those issued by the Management Board. 
It also covers certain additional points raised in the European Council conclusions, the 
Stockholm programme and in the resolution of the European Parliament as mentioned 
above. 

this 

As  concerns  the  recommendations  of  the  2008  Communication,  the  following  have 
already been implemented by the Agency or are still being studied by the competent 
bodies, within the framework of the current legal basis: 

The  setting  up  of  specialised  branches,  the  merger  of  joint  operations  and  the 
European  Patrol  Network,  development  of  risk  analysis  together  with  Europol,  the 
management  of  ICONet,  the  management  of  CIREFI,  purchase  of  light  technical 

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http://www.frontex.europa.eu/download/Z2Z4L2Zyb250ZXgvZW4vZGVmYXVsdF

9vcGlzeS82Mi8xLzE/cowi_report_final.doc 

http://www.frontex.europa.eu/download/Z2Z4L2Zyb250ZXgvZW4vZGVmYXVsdF
9vcGlzeS82Mi8xLzE/recommendations_of_the_mb_following_the_article_33_evaluation200
90701_final.pdf 

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equipment, training on fundamental rights, asylum and law of the sea, testing of new 
technologies,  giving  Frontex  a  role  in  the  Schengen  evaluation  mechanism, 
associating  Frontex  in  the  development  of  EUROSUR,  and  developing  interagency 
cooperation. 

Among  the  recommendations  of  the  Management  Board  based  on  the  external 
evaluation,  the  definition  of  “external  borders”  is  not  taken  up  in  this  impact 
assessment, as this is a purely legal issue and as the Commission does not agree that 
the  current  definition  constitutes  a  problem.  Neither  is  the  recommendation  on 
introducing a legal basis for the transit of weapons covered, as the Commission does 
not consider the Frontex Regulation to be the appropriate instrument for this purpose. 

Also,  the  following  recommendations  may  be  reflected  in  the  proposal  but  without 
being covered in the impact assessment as it would be disproportionate in relation to 
the  very  limited  changes  required  in  the  Regulation,  or  as  it  concerns  issues  which 
have  become  standard  provisions  for  EC  Agencies  since  the  legal  basis  for  Frontex 
was adopted, or as it concerns purely legal issues: clarifying the mandate as regards 
research and development; harmonising the subsistence allowances for guest officers; 
introducing a provision on the strategy of the Agency (multi-annual plan); revising the 
provision  on  the  term  of  office  for  the  members  of  the  Management  Board; 
introducing  a  new  article  on  security  provisions;  introducing  a  new  article  on 
cooperation with EU Agencies. 

impact  assessment  also 
The  selection  of  recommendations  covered 
corresponds,  largely,  to  the  issues  that  were  identified  as  the  most  significant 
challenges  facing  Frontex  during  the  stakeholder  consultations,  in  particular  the 
meetings with Member States representatives in the autumn of 2009. 

this 

in 

1.2. 

Procedural issues and consultations with interested parties 

In the follow-up to the Communication extensive discussions were held in the Council 
and the European Parliament. Civil society and academia organised discussions on the 
role of Frontex in the context of the Union's immigration policy. The Commission has 
participated in some of those conferences and seminars and taken note of a number of 
research papers and studies.  

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. 

The aforementioned impact assessment and the external evaluation contain substantial 
amounts of data. In addition the annual reports of the Agency have been used, as well 
as data collected through ad hoc consultations of the Agency. 

Frontex,  in  association  with  the  Austrian  authorities,  organised  a  workshop  for  the 
members  or  their  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  2009.  Both 
occasions  provided  for  a  useful  exchange  of  ideas  with  Member  States'  experts  on 

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how the different conclusions and recommendations could be translated into practical 
action and to what extent changes in the current legal basis is required. 

While  the  position  of  the  Council  and  its  Member  States  as  well  as  the  European 
parliament, have been very positive as illustrated by the conclusions and resolutions 
quoted  in  the  previous  section,  the  position  of  civil  society  and  academia  has  been 
more  critical.  The  main  concern  that  has  been  put  forward  is  an  alleged  vague  and 
unclear legal framework for Frontex operations at the sea border, which is considered 
not to provide sufficient safeguards as concerns the protection of fundamental rights. 

A  first  dedicated  Commission  Inter-service  meeting  took  place  on  2/10/2009  with 
representatives  the  Legal  Service  (SJ),  the  Secretariat-General  (SG),  Taxation  and 
Customs  Union  (TAXUD),  Enterprise  and  Industry  (ENTR)  and  External  Relations 
(RELEX),  with  a  second  meeting  held  on  03/11/2009  and  a  third  meeting  on 
11/12/2009. 

1.3.  Opinion of the Impact Assessment Board 

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. 

2. 

PROBLEM DEFINITION 

2.1. 

The legal framework 

Since the entry into force of the Treaty of Amsterdam in 1999, a number of common 
measures  have  been  adopted  to  manage  better  the  external  borders  of  the  European 
Union in accordance with Article 62 (1) and (2) of the EC Treaty.  

Built around the three pillars of common legislation, common operations and financial 
solidarity,  key  steps  have  been  taken  with  the  adoption  of  the  Schengen  Borders 
Code3,  the  Practical  Handbook  for  Border  Guards  (Schengen  Handbook)4  and  the 
rules for local border traffic5, the establishment of Frontex6, the creation of the Rapid 
Border Intervention Teams7 and the creation of the External Borders Fund8.  

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Regulation  (EC)  No  562/2006  of  the  European  Parliament  and  of  the  Council  of  15  March 
2006 establishing a Community Code on the rules governing the movement of persons across 
borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). 
Commission  Recommendation  C(2006)  5186  of  6  November  2006  establishing  a  common 
"Practical Handbook for Border Guards (Schengen Handbook)" to be used by Member States' 
competent authorities when carrying out the border control of persons. 
Regulation  (EC)  No  1931/2006  of  the  European  Parliament  and  of  the  Council  of  20 
December  2006  laying  down  rules  on  local  border  traffic  at  the  external  borders  of  the 
Member  States  and  amending  the  provisions  of  the  Schengen  Convention  (OJ  L  29  of 
3.2.2007, p. 3). 
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 (OJ L 349, 25.11.2004, p. 1). 
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 (OJ L 199, 31.7.2007, p. 30). 

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The current legal framework for the Frontex Agency 

The  European  Agency  for  the  Management  of  Operational  Cooperation  at  the 
External Borders of the Member States of the European Union (FRONTEX) has been 
established  by  Council  Regulation  (EC)  2007/20049.  The  primary  responsibility  for 
the control of external borders lies with the Member States. As a result, the Agency 
has  been  established  to  ensure  the  coordination  of  Member  States’  actions  in  the 
implementation  of  Community  measures,  thereby  contributing  to  an  efficient,  high 
and uniform level of control on persons and surveillance of the external borders of the 
Member States. 

The main tasks of FRONTEX are described in articles 2 to 14 of its founding Council 
Regulation (EC) No 2007/2004, which has been modified in 2007 by Regulation (EC) 
863/2007 of the European Parliament and of the Council establishing a mechanism for 
the creation of Rapid Border Intervention teams10. 

As  core  task  can  be  highlighted  to  coordinate  operational  cooperation  between 
Member States, in the form of organising joint operations, which serve to reinforce 
border control at certain sections of the external borders for a limited (but sometime 
for  several  years)  time  as  well  as  allowing  Member  States  to  work  together  to 
exchange knowledge and best practices. A further core task is the development of 
risk analysis, which on the one had provides the basis for the operational cooperation 
organised by the Agency itself and on the other supports Member States in their own 
efforts in conducting border management for their part of the external border. 

Member  States  are  obliged  to  comply  with  the  provisions  of  the  EC  acquis  when 
taking part in operations coordinated by Frontex, in particular the Schengen Borders 
Code. Likewise Member States must comply with the basic principles of fundamental 
rights  as  laid  down  in  the  Charter  when  applying  Community  law.  For  sea  border 
operations  participating  Member  States  are  also  bound  to  comply  with  a  number  of 
provisions in the area of international law that may be applicable, notably in the field 
of search and rescue. 

The Commission has prepared a draft decision to clarify the applicable obligations on 
Member States when participating in maritime operations coordinated by the Agency, 
including notably the applicability of the Schengen Borders Code and the principle of 
non-refoulement.  This  draft  decision  is  intended  to  meet,  in  part,  the  request  of  the 
Stockholm programme as far as "rules of engagement" are concerned and also to meet 
the concerns expressed by civil society and academia. This decision is currently being 
discussed in the Council. 

2.2. 

The context 

Migratory pressure remains high or is rising at certain border sections of the Union. A 
total of 175 000 illegal border crossings were detected in 2008, which was an increase 
of 20% compared to 2007. 140 000 refusals of entry were made in 2008. In 2007, 468 

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Decision  No  574/2007/EC  of  the  European  Parliament  and  of  the  Council  of  23  May  2007 
establishing  the  External  Borders  Fund  for  the  period  2007  to  2013  as  part  of  the  General 
programme "Solidarity and Management of Migration Flows" (OJ L 144, 6.6.2007, p. 22). 
OJ L 349, 25.11.2004, p. 1. 
OJ L 199, 31.7.2007, p. 30. 

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000  apprehensions  of  illegally  staying  persons  were  made,  while  more  than  10  000 
victims of human trafficking were reported by the Member States. 

These challenges must be considered in the context of the EU's overall immigration 
policy  which  involves  measures  to  fight  illegal  immigration,  to  promote  legal 
immigration,  and  develop  cooperation  with  third  countries  of  origin  and  transit,  as 
well as the development of a Common European Asylum System. While noting that 
border management is one tool in fighting illegal immigration, and while respecting 
the  principle  that  Member  States  are  responsible  for  controlling  their  part  of  the 
external  borders,  Frontex  is  one  of  many  tools  in  the  EU's  border  management 
policy.  In  other  words  while  an  important  part  of  the  context  in  which  Frontex 
operates is the need to reduce illegal immigration, it cannot be defined as the problem 
that Frontex was set up to solve single-handedly. 

To  put  the  current  role  of  Frontex  in  perspective,  the  total  number  of  detections  of 
irregular migrants for the year 2008 at the external borders amounts to approximately 
84 000 for the land borders of which approximately 16% are detected during Frontex 
operations and for the sea borders a total of approximately 91 000 of which 62 % are 
detected during Frontex operations. The number of refusals of entry is only known for 
the land borders i.e. a total of approximately 47 000 of which 10 % take place during 
Frontex operations.  

In 2007 488 000 return decisions were issued by the Member States, while 226 000 
removals  were  effected.  Frontex  has  provided  assistance  regarding  the  return  of 
approximately 800 returnees in 2008. 

In view of Frontex' role it has to be underlined again that Frontex cannot realistically 
be  expected  to  address  the  entire  problem  of  illegal  immigration  or  to  take  over  the 
responsibility  for  the  management  of  the  EU's  external  borders  from  the  Member 
States. 

Expectations  from  EU  institutions  and  Member  States  have  nevertheless  been  very 
high since the Agency became operational in 2005 and continue to be so, as shown by 
the sources quoted in chapter 1. 

As  an  illustration  the  budget  of  the  Agency  has  increased  much  more  rapidly  than 
what was foreseen in the financial perspectives and hence the quantity of its activities 
are clearly beyond what was expected just a few years ago: from 6 million in 2005, 19 
million in 2006, 42 million in 2007, 70 million in 2008, to 88 million in 2009.  

Reference  can  be  had  to  the  General  Report  of  Frontex  for  2008,  and  its  work 
programme for 2009, both available via the Frontex website, for a detailed description 
of its on-going activities. 

2.3.  What are the problems to be addressed? 

The very construction of Schengen means that one Member State controls its section 
of the external borders on behalf of all the others. Due to their geographical location, 
and  the  patterns  of  travel  flows  and  migratory  routes,  Member  States  face  unequal 
different workloads as well as critical situations at certain sections of the border. 

By way of illustration of the differing workload between Member States in managing 
their part of the external borders, the number of border crossings at the air borders of 
the Netherlands were 27,7 million in 2008 while 2,5 million in Hungary; at the land 
borders 23,4 million in Poland while obviously 0 in the 15 Member States/associated 

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countries (fully participating in Schengen) without an external land border; at the sea 
borders 5,8 million in Greece while 110 000 in Sweden.  

In  terms  of  migratory  pressure  at  the  sea  borders  Spain  registered  16  000,  Malta  2 
000, Italy 35 000, and Greece 32 000 illegal border crossings 2008, while figures for 
other Member States were negligible.  

Based  on  the  principle  of  solidarity,  the  EU  needs  to  be  able  to  provide  support  to 
Member States to compensate for these differences. The External Borders Fund and 
the  Frontex  Agency  complements  each  other  for  this  purpose  with  former  being  a 
tool  for  financial  solidarity,  not  covering  running  costs,  and  the  latter  a  tool  for 
operational  solidarity  on  a  temporary  and  punctual  basis,  covering  such  costs. 
Operational solidarity is implemented in practice through joint operations, channelling 
additional resources to sections of the external borders where Member States cannot 
alone cope with the pressure they are facing. The support provided via Frontex can be 
adapted  to  shifting  migratory  pressure,  moving  resources  from  one  section/Member 
State to another as migratory routes shift. 

No other tool exists that can do what Frontex does. But even though Frontex proved 
to  be  very  useful  is  in  providing  a  framework  for  Member  States  to  cooperate  with 
each  other  subject  to  particular  pressures11,  the  operational  cooperation  is  still 
inefficient  and  insufficient.  The  operational  solidarity  proved  to  be  insufficient, 
which is well illustrated by the actual deployment of equipment. Also, Frontex is not 
using  its  potential  in  the  best  possible  way,  in  terms  of  coordination  of  operational 
cooperation  and  support  to  the  MS  in  carrying  out  the  border  management,  due  to 
unclear or insufficient existing legal provisions.  

The  problems  to  be  addressed  are  therefore  of  a  punctual  nature  on  a  number  of 
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 in 
the  light  of  experiences  made.  The  specific  problems  addressed  in  this  impact 
assessment have been identified on  the  basis of  the previous impact  assessment, the 
external  evaluation  and  the  recommendations  of  the  Management  Board,  and  the 
conclusions of the European Council as explained in section 1. While these sources do 
not  provide  for  contradictory  recommendations  they  neither  provide  for  an  identical 
set  of  problems  as  they  all  emanate  from  an  analysis  carried  out  from  different 
perspectives.  Further  differences  come  from  the  fact  that  the  external  evaluation  is 
more recent in time and was able to rely on more extensive practical experiences of 
the Agency. 

2.3.1. 

Insufficient technical equipment put at the disposal by Member States 

This issue was covered by the Communication as well as by the Management Board 
recommendations. Calls for a reinforcement of Frontex in this respect was included in 
the Council conclusions of 2008, the Pact on immigration and asylum, the European 
Council  conclusions  of  June  and  October  2009,  and  the  Resolution  of  the  European 
Parliament. 

11 

Joint  operation  Hera  off  the  Canary  Islands,  which  has  received  the  highest  budgetary 
allocation  of  all  Frontex  operations  and  which  has  been  the  only  operation  to  have  been 
conducted year-round, contributed to reducing the number of arrivals from around 31 000 in 
2005 to around 2 200 arrivals for 2009 (until end October). 

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The previous impact assessment noted that the insufficient equipment made available 
by  the  Member  States  demonstrated  the  lacking  operational  solidarity  and  was  the 
missing  link  in  moving  towards  semi-permanent  operations  at  key  points  of  the 
external  borders,  that  is,  joint  operations  conducted  throughout  the  year  at  specific 
sections of high migratory pressure.  

The  Agency  itself  does  not  own  any  technical  equipment.  The  Agency  is  currently 
managing a Central Record of Available Technical Equipment (CRATE) which lists 
the equipment Member States have indicated that they are willing to make available 
for joint operations. However, these indications are not legally binding in any way.  

By  1  January  2008  CRATE  contained  18  aircraft,  20  helicopters,  and  a  total  of  91 
vessels  (including  open  sea  patrol  vessels,  coastal  patrol  vessels,  and  coastal  patrol 
boats).  By  comparison  the  following  equipment  were  actually  deployed  during 
Frontex coordinated operations in 2008 by Member States other than the host state of 
the  operation:  8  aircraft,  5  helicopters,  12  vessels;  for  each  category  of  assets  the 
average time of deployment was around one month. 

While  the  equipment  listed  in  CRATE  in  2009  increased  somewhat,  the  equipment 
deployed  was  the  following:  7  aircraft,  6  helicopters,  and  9  vessels,  with  a  similar 
average time for the deployment. If the contributions of the host state are included the 
number of vessels was 38. 

The number of Member States contributing equipment increased from 8 in 2008 to 13 
in 2009.  

In  comparison  the  Agency  estimates,  based  on  risk  analysis  and  experiences  of  the 
operations carried out so far, its future operational needs to a total of 92 vessels, 14 
aircraft and 18 helicopters. 

Based on this data several problems can be identified: While Member States are ready 
to list a large number of equipment in CRATE a very small share of that equipment is 
actually  made  available;  for  example,  as  concerns  vessels  and  excluding  the 
contributions  of  the  host  state,  only  about  10%  of  the  vessels  in  total.  In  spite  of 
repeated calls by the institutions (see eg Council conclusions of June 2008 and the EP 
Resolution of December 2008) the contributions of the Member States, based on the 
current voluntary system, have only marginally increased. 

Secondly, a majority of the vessels deployed come from the host state and not from 
other Member States. Consequently, Frontex is not functioning so much as a tool for 
coordination  of  operational  solidarity  –  as  its  general  objectives  indicate  and  as 
stressed by the European Council – but rather as a tool for financial solidarity, which 
does not form part of its objectives. 

Thirdly, based on the estimates for  the future and leaving any budgetary constraints 
aside for the sake of this analysis, the current availability of equipment will not come 
close  to  meeting  the  needs,  having  regard  to  the  degree  to  which  the  equipment  in 
CRATE has been made available so far. 

Besides  the  problem  of  quantity  the  evaluation  also  noted  problems  related  to 
planning and implementation. Under the current mandate, if equipment is required at 
short notice most Member States are not in a position to decide, prepare and send the 
necessary technical equipment to the region where the operation will be deployed.  

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2.3.2. 

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

This issue was covered by the Communication as well as by the Management Board 
recommendations. 

The  current  Regulation  is  silent  on  the  provision  of  human  resources  to  joint 
operations. The mechanism for the rapid border intervention teams provides a system 
for the compulsory deployment of human resources (border guards) but restricted to 
emergency operations (RABIT teams). 

The  Agency  has  nevertheless,  based  on  administrative  arrangements,  set  up  the 
"Frontex  Joint  Support  Teams"  (FJST)  as  a  working  method  to  organise  and  train 
border guards for their participation in future joint operations, which currently contain 
some 600 border guards of the Member States. These arrangements have been copied 
from  the  arrangements  for  the  RABIT  teams  and  have  been  welcomed  by  Member 
States. 

The exact competencies of the Agency to organise those teams is however unclear as 
the current legal basis is silent on this issue. The first problem is therefore of a legal 
nature, as the current practices should be given a clear legal foundation. 

A second problem concerns the fact that the Agency currently needs to make ad hoc 
requests  to  Member  States  to  contribute  with  border  guards  for  each  individual 
operation.  This  creates  planning  problems  both  for  the  Agency  and  for  the  Member 
States;  the  former  cannot  predict  what  Member  States  will  be  willing  to  contribute, 
and the latter cannot foresee what they will be asked to contribute, as this is dependent 
on  the  responses  of  the  other  Member  States.  This  concerns  to  a  minor  extent  the 
quantity  (the  number  of  border  guards)  but  in  particular  the  quality  (the  specific 
competences  required);  the  latter  issue  was  highlighted  in  the  evaluation,  also  with 
regard to language skills. 

This problem is difficult to quantify as issues related to the quality of border guards 
and the planning capacity of the Agency cannot be put in direct relation to the number 
of illegal immigrants (potentially) detected at certain points of the external borders.  

2.3.3. 

Inefficient coordination and follow up of joint operations 

This  issue  was  part  of  the  Management  Board  recommendations  and,  in  part,  is 
covered by the Stockholm programme and the Resolution of the European Parliament. 

18  joint  operations  have  been  carried  out  by  the  Agency  in  2009,  at  all  types  of 
borders  (land,  air  and  sea).  The  current  Regulation  contains  no  rules  on  how 
operations under Frontex should be prepared and conducted. As a result the Agency 
takes  on  a  different  role  during  different  operations,  depending  on  ad  hoc 
arrangements. While the Agency does draw up an operational plan for each operation 
such a plan is not foreseen in the legal basis. Neither, as a consequence, does the legal 
basis  specify  what  the  Agency  can  or  should  do  to  ensure  that  the  plan  is  actually 
agreed  and  properly  implemented.  Naturally,  border  guards  from  different  Member 
States  are  accustomed  to  different  modus  operandi  and  will  have  different 
expectations  in  terms  of  objectives  of  the  operation.  As  the  challenges  facing  one 
section  of  the  external  borders  may  not  occur  at  other  sections,  some  border  guards 
may  initially  be  unfamiliar  with  the  operational  environment  and  the  tasks  they  are 
assigned.  As  a  result  the  Agency  is  in  no  position  to  ensure  that  operations  are 

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launched and carried out in line with the overall objectives of the Agency and of the 
overall border management policy of the Union. 

The lack of clarity on this point also leads to frequent misunderstandings in the media 
as  regards  the  actual  role  and  responsibilities  of  Frontex  staff  serving  during  joint 
operations.  

This is first and foremost a legal problem. Having regard to the scope and number of 
Frontex operations the division of tasks and responsibilities between the Agency and 
the Member States must be clear to ensure legal certainty and transparency.  

Secondly,  this  lack  of  clarity  prevents  Member  States  from  cooperating  more 
efficiently  with  each  other.  An  absence  of  provisions  in  the  current  legal  basis  on 
what "coordination" actually is supposed to mean entails an absence of coordination 
on  the  ground.  With  large  numbers  of  border  guards  and  equipment  from  different 
Member States working together coordination is a must. However, with Frontex not 
being able or competent to fulfil this role it is left to the host state of the operation, 
which  may  not  have  the  administrative  capacity  or  sufficient  experience  to  take  on 
this  role,  as  was  noted  in  the  evaluation.  Practical  experience  shows  also  that  the 
concrete role taken on by the coordinating officer of the Agency differs widely from 
one  operation  to  another:  in  some  operations  a  coordinating  officer  is  not  present 
throughout  the  whole  operation,  in  other  the  officer  has  solely  the  role  of  observer, 
and  in  yet  others  the  officer  is  asked  to  virtually  take  over  the  supervision  of  the 
operation.  Other  concrete  problems  seen  over  recent  years  have  involved  the 
postponement  of  the  launch  of  operations  due  to  disagreements  between  Member 
States on the exact content of the operational plan, or splitting one operation into to 
two separate, parallel operations taking place in adjacent areas.  

Further shortcomings in this regard include the persistent lack of evaluations of joint 
operations, which is a shared responsibility between the Agency and the participating 
Member  States  which  entails  that  future  operations  cannot  be  improved  based  on 
"lessons learnt". 

2.3.4. 

Insufficient and inefficient cooperation with third countries 

This issue was covered by the Communication as well as by the Management Board 
recommendations,  and  by  the  European  Council  conclusions  of  October  2009,  the 
Stockholm Programme, and the Resolution of the European Parliament. 

The facilitation of operational cooperation between Member States and third countries 
and the cooperation between FRONTEX and third countries is an important strand of 
the tasks of the Agency. Cooperation with third countries is a key component of the 
integrated border management model and can support the successful implementation 
of  joint  operations,  enhance  the  added  value  of  risk  analysis,  and  support  capacity 
building in third countries.  

A  series  of  working  arrangements  (protocols  and/or  memoranda  of  understanding) 
have  been  concluded  between  FRONTEX  and  the  following  third  countries  in 
accordance  with  the  relevant  provisions  of  the  current  legal  basis:  Russia,  Ukraine, 
Moldova, Georgia, the Western Balkan countries, and the USA. 

However,  while  cooperation  based  on  the  working  arrangements,  or  on  ad  hoc  fact 
finding missions to third countries, can identify concrete follow-up measures, Frontex 
cannot carry out those measures itself like for example in-depth feasibility studies on 

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how  to  upgrade  the  border  management  of  the  external  borders  of  a  third  country. 
Follow-up is therefore not in the hands of Frontex, although the Agency may have the 
relevant  expertise  at  its  disposal,  but  is  dependent  on  finding  other  organisations  or 
national  authorities  that  could  implement  such  projects  based  on  available  funding 
instruments.  

There is therefore no possibility for the Agency in assisting third countries in a more 
pro-active manner, on the basis of its working arrangements. Notably, third countries 
who  are  in  the  process  of  building  up  their  own  border  management  systems 
frequently  request  financial  support  from  the  Agency,  which  is  seen  as  a  natural 
interlocutor  by  them  for  that  purpose.  The  commitment  of  third  countries  in 
cooperating  with  the  Agency  for  the  purpose  of  i.a.  operational  activities  would 
increase  if  Frontex  would  be  able  to  offer  direct  technical  assistance.  Nor  can  the 
Agency  assist  in  implementing  projects  funded  under  the  EU's  external  relations 
programmes.  This  problem  was  noted  in  the  previous  impact  assessment  and  has, 
since it is a "yes or no" question of limitations in the legal basis, not evolved since. 

2.3.5.  Collection, storage and processing of personal data  

This issue was covered by the Management Board recommendations. 

The  Frontex  Regulation  does  at  the  moment  not  contain  any  specific  legal  basis  for 
the  collection  and  processing  of  personal  data.  However,  the  Agency  is  subject  to 
Regulation  45/2001,  whenever  collection  and  processing  of  personal  data  is  carried 
out  by  the  agency  in  the  exercise  of  activities  which  fall  within  the  scope  of 
Community law. Under condition that the processing of personal data is indispensable 
and  proportionate  to  allow  the  Agency  to  carry  out  its  tasks  as  specified  by  the 
Regulation  such  collection  and  processing  is  subject  to  the  provisions  laid  down  in 
Regulation  45/2001,  including  the  general  principles  of  data  protection.  Current 
examples in this regard would include the processing  of  personal data necessary  for 
the Agency to organise meetings with experts of Member States, third countries and 
organisations with which the Agency cooperates, the need to process personal data as 
necessary in the organisation of joint return flights, and the storage of certain personal 
data when such data is contained in an ancillary fashion in reports transmitted by the 
Member States to the Agency.  

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  Member 
States.  This  could  in  particular  include  making  use  of  information  collected  during 
joint operations concerning persons involved in the facilitation of illegal immigration. 
Currently,  during  joint  operations,  guest  officers  operate  under  the  command  of  the 
host  state  of  the  operation  (the  Member  State  on  whose  territory  the  operation  is 
carried out). When guest officers collect certain personal data whilst carrying out their 
duties  during  such  operations,  the  responsibility  for  the  processing  of  any  such  data 
therefore  rests  with  the  host  state.  Practical  experience  shows  that  this  data  is  not 
always  analysed  by  the  host  state  nor  forwarded  to  the  competent  authorities  at 
national or European level. 

However,  if  such  risk  analysis  would  involve  the  processing  of  personal  data  by 
FRONTEX, this would require a specific legal base, based on the assessment of the 
necessity  and  proportionality  of  such  measures.  Subject  to  applicable  provisions  on 

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criminal investigations such data should be forwarded to the competent authorities of 
the host state and to Europol.  

2.3.6.  Return 

This issue was covered by the Communication as well as by the Management Board 
recommendations,  as  well  as  by  the  European  Council  Conclusions  of  June  and 
October  2009,  the  Stockholm  programme,  and  the  Resolution  of  the  European 
Parliament. 

This area was identified in the previous impact assessment as one where less progress 
has  been  made  in  supporting  Member  States.  Since  then  certain  progress  has  been 
made. The number of Frontex co-ordinated joint return operations increased from 13 
flights  (covering  428  returnees)  in  2007  to  15  flights  in  2008  covering  around  800 
returnees.  At  the  same  time  the  budget  for  operating  expenditure  have  been  rapidly 
increasing  to  a  level  of  2  million  euro  for  2008  and  5,3  million  euro  for  2009.  In 
parallel Frontex has built experience in all aspects of joint removal operations and as a 
result  Member  States  request  the  presence  of  Frontex  officers  in  joint  return 
operations. 

A  first  shortcoming  of  the  current  situation  relates  to  mismatch  between  the  legal 
basis  and  reality:  while  the  legal  basis  only  talks  about  Frontex  "assisting"  Member 
States the Agency has already, and successfully, taken on a "coordinating" role. 

There is however a strong call from Member States for Frontex to provide them with 
more support in this area. Problems highlighted by Member States include difficulties 
in obtaining travel documents for undocumented persons and obtaining the agreement 
of  the  third  country  concerned  for  the  returns  with  countries  for  which  readmission 
agreements  are  not  yet  in  place.  Frontex  is  not  able  to  offer  any  assistance  to  the 
Member States in this regard. A second problem is therefore the absence of support 
from Frontex beyond its current coordinating role. 

2.3.7.  No  use  of  the  expertise  of  the  Agency  to  evaluate  Member  States' 

performance in the area of border management 

This  issue  was,  to  some  extent,  covered  by  the  Communication,  but  not  by  the 
Management Board recommendations. 

A  possible  role  for  the  Agency  in  the  evaluation  of  Member  States  in  meeting  the 
standards  of  the  Schengen  acquis  was  favourably  evaluated  in  the  previous  impact 
assessment.  

A  role  for  Frontex  in  this  regard  was  not  put  forward  in  the  various  council 
conclusions and EP resolutions. 

The  recent  proposal  of  the  Commission  to  revise  the  existing  Schengen  evaluation 
mechanism  foresaw  an  advisory  role  for  Frontex  with  input  in  the  form  of  risk 
analysis from the Agency. A role in that mechanism can be considered fully covered 
by the current legal basis and will therefore not form part of the problem definition of 
this impact assessment. 

Against this background the problem can be defined as follows. 

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

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are  facing.  An  underlying  reason  is  that  Frontex  is  not  carrying  out  any  on-site 
inspections  in  the  Member  States  to  evaluate  the  situation  from  a  tactical  and 
operational point of view. 

Secondly,  Frontex  has  no  mandate  to  evaluate  or  react  on  any  shortcomings  in  the 
application  of  EC  law,  including  with  regard  to  fundamental  rights,  during  joint 
operations.  The  full  compliance  with  the  acquis  could  be  considered  especially 
important when those activities are funded and coordinated by the Community. Any 
possible solutions  to  this  problem must respect the basic  division of tasks under the 
Treaty,  with  the  Commission  being  sole  responsible  for  monitoring  the  application 
and implementation of EC law, and with the impossibility for allocating discretionary 
powers to Community Agencies. 

2.4. 

How would the problem evolve, all things being equal? 

In  general,  without  any  changes  to  the  legal  framework  the  level  of  activities  – 
qualitatively and quantitatively – can be expected to level out largely in line with what 
is foreseen in the Agency's work programme for 2010. A number of problems are of a 
legal nature and can only be addressed by appropriate amendments to the Regulation.  

It is impossible to predict in what way illegal border crossings for the Schengen area 
as a whole would evolve all things being equal. There is no direct link between the 
functioning of Frontex and the level of illegal border crossing, as the trends depend on 
many different factors (for example the economic situation of the residents' country, 
friends or relatives present on the territory of the EU, the overall social environment, 
the activities of traffickers of human beings, etc.).] 

In this context it should be underlined that there is no mathematical formula at hand to 
calculate  the  possible  successes  or  failures  of  the  efforts  undertaken  by  the  national 
border  guard  authorities  and  the  Frontex  Agency.  For  instance  the  deployment  of  1 
patrol  vessel  in  the  Mediterranean  Sea  can  result  one  day  in  the  interception  of  50 
irregular  migrants;  however  there  is  no  possibility  to  know  beforehand  how  many 
migrants  might  be  intercepted  the  next  day.  The  same  applies  for  the  number  of 
deployed resources  (technical  and  human) – if  1  patrol  vessel  intercepts  one  day  50 
irregular  migrants,  there  is  no  guarantee  to  say  that  2  patrol  vessels  would  intercept 
2x50 migrants.  

For  those  reasons  the  activities  of  the  Frontex  Agency  are  driven  by  the  ongoing 
findings of thorough risk analysis when deploying technical and human resources. 

In  what  concerns  the  efficiency  of  the  border  management  ensured  by  Frontex,  the 
problem definition (see chapter 3) describes the problems in extenso that need to be 
addressed  to  optimise  and  further  develop  the  efforts  undertaken  by  the  Member 
States to secure the external borders. If status quo was to be continued, inefficient and 
insufficient  operational  cooperation  in  the  framework  of  Frontex  would  persist,  in 
particular with regard to:  

As concerns the technical equipment, the voluntary nature underlying the provision 
of  resources,  and  the  reliance  on  Member  States  for  this  purpose,  means  that  the 
amount of resources available for joint operations will remain at the current level, as 
described  above,  which  is  clearly  insufficient  compared  to  the  needs  identified. 
Without sufficient equipment at its disposal, FRONTEX would not be able to provide 
adequate  and  timely  assistance  at  specific  sections  of  the  EU  borders.  Also  the 

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Agency  would  not  be  able  to  plan  its  operations  as  the  availability  of  equipment 
would remain unclear at the beginning of a given year.  

The  current  system  entails  a lack  of  predictability  that  has  a  negative  impact  on  the 
capacity of the Agency to plan operations and allocate resources between operations 
in the most optimal way. The complete dependence on Member States contributions 
means  that  the  Agency  can  never  be  sure  that  it  is  able  to  implement  an  operation 
identified  as  necessary  based  on  its  risk  analysis.  Each  potential  operation  has  to 
adapt, in terms of planning and objectives, to the resources eventually made available 
by Member States. 

A  similar  result  can  be  expected  as  regards  human  resources,  where  the  current 
administrative  arrangements  would  have  to  continue  without  a  legal  basis.  The 
Agency  has  already  exhausted  all  possibilities  to  solve  the  current  problems  and 
cannot take any further measures in this regard without a change in the legal basis. If 
nothing  changes,  due  to  unpredictability  both  on  the  part  of  the  Agency:  whom 
Member States will be willing to contribute; and the MS: whom they will be asked to 
contribute,  the  Agency  will  continue  to  meet  obstacles  in  coordinating  timely  and 
efficient (the lacking specific competences required) joint operations.  

The coordination of operations would continue to be based on ad hoc solutions as is 
currently the case. As a consequence the insufficient transparency on who does what 
would  persist.  Also  the  inefficient  system  of  evaluating  would  make  impossible  to 
build  on  the  experiences  gathered  in  the  course  of  operations.  A  certain  risk  can  be 
identified in that continuing to operate under an unclear legal framework may reduce 
the interest of Member States to participate while the perceived lack of transparency 
of  the  legal  framework  could  incite  a  sustained  criticism  against  the  operations 
coordinated by it.  

Cooperation with third countries could also level out. The Agency would continue 
not being able to use its follow up expertise. However, a clear risk is that some third 
countries would lose their interest in cooperating with the Agency in the absence of 
any  concrete  possibilities  for  the  Agency  to  more  pro-actively  support  capacity 
building in those countries. 

The  usefulness  and  quality  of  the  risk  analysis  carried  out  by  the  Agency  would 
continue to develop also without access to personal data, as this is not the only source 
or determining factor in this regard. However, if the situation continues as it is today, 
the value added of information gathered by guest officers would not probably be used 
for the risk assessment purposes, also without such access there are certain limits to 
how far a further positive development can be expected to continue. 

Return  operations  can  be  expected  to  further  develop  also  without  changes  to  the 
legal framework. However, the legal basis of the Agency would not fully correspond 
to the role it is actually taking.  

Finally, the expertise of the Agency cannot be used to evaluate the performance of 
the Member States in the area of border management without a legal basis, and no 
alternative source or tool could provide for that apart from Frontex. 

2.5. 

Right to act 

Subsidiarity  and  proportionality have already  been  addressed in  the previous  impact 
assessment having regard to the legal basis of the Agency. That analysis remains valid 

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having regard to the fact that the Lisbon Treaty does not bring fundamental changes to 
the  competence  of  the  EU  to  act  in  this  field  and  as  the  general  objectives  of  the 
current legal basis are not questioned in this impact assessment. 

A detailed description of the impacts regarding subsidiarity and proportionality can be 
found in point 5.8. 

3. 

OBJECTIVES  

The objectives have already been identified in the previous impact assessment and are 
in  line  with  the  objectives  as  defined  in  the  existing  legal  basis  of  the  Agency  (cf 
Article 1 of the Regulation), having regard to the problem definition as explained in 
chapter 2. In this regard it should be noted that there is general consensus (cf chapter 
1)  that  the  Agency  has  performed  very  well  since  its  inception  and  that  the  general 
objectives of the Agency as established by the legal basis are correctly defined. There 
are no reasons to revisit them or to consider adding further general objectives.  

Not  all  specific  objectives  in  the  previous  IA  are  relevant  for  this  one,  as  certain 
recommendations of the Communication are not covered in this impact assessment, as 
explained  in  chapter  1.  However,  one  of  the  specific  objectives  (on  risk  analysis)  is 
now explained in some more detail to cover all recommendations of the Management 
Board. 

Therefore the objectives of the current initiatives do not imply developing EU policy 
in new areas since it is matter of reinforcing current actions. However a proposal in 
this  area  is  of  strategic  importance  because  of  the  calls  from  the  European  Council 
and the European Parliament to strengthen the role to Frontex in the management of 
the EU's external borders. 

3.1. 

General objectives (cf Article 1 of the Regulation) 

To contribute to an integrated management of the external borders at European level, 
including  through  reinforcing  operational  solidarity  by  the  EU  with  Member  States 
and through cooperating with third countries; 

To contribute to the effective control of the external borders by supporting the border 
management carried out by Member States; 

To facilitate the application of existing and future Community measures (notably core 
instruments  of  the  EU  acquis  such  as  the  Schengen  Borders  Code)  relating  to  the 
management  of  the  external  borders  by  ensuring  the  coordination  of  operational 
cooperation between Member States. 

3.2. 

Specific objectives (cf Article 2 of the Regulation) 

The specific objectives reflect the different tasks of the Agency and contribute to the 
achievement of the general objectives. 

Coordinating  operational  cooperation  between  Member  States  in  the  field  of 
management  of  the  external  borders:  This  involves  notably  the  coordination  of 
joint operations at specific border sections for a given (limited) period of time. This 
specific  objective  contributes  directly  to  more  effective  controls  of  the  external 
borders  (the  second  general  objective)  by  allowing  for  an  increased  deployment  of 
technical means and human resources at specific border sections. It also contributes to 

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the  third  general  objective  by  providing  for  exchange  of  best  practices  and 
experiences between Member States.  

Cooperation  between  the  Agency  and  the  authorities  of  third  countries.  Such 
cooperation may cover exchange of information and common risk analyses, training, 
and joint operational activities. This specific objective contributes directly to the first 
general objective, as an integrated border management at European level must involve 
cooperation  with  third  countries,  and  as  a  result  indirectly  to  the  second  general 
objective  with  positive  effects  on  more  effective  border  control  and  more  effective 
operational coordination. 

Carrying out risk analyses. This may include measures to facilitate the exchange of 
information  relevant  for  the  tasks  of  the  Agency  and  the  Member  States,  as  well  as 
cooperation  with  other  (EU)  agencies,  in  particular  with  Europol,  and  international 
organisations. This contributes to all three general objectives, as the results feed into 
all  four  levels  of  the  integrated  border  management,  especially  measures  in 
cooperation  with  third  countries,  measures  at  the  border,  and  measures  within  the 
Schengen  area.  Risk  analyses,  which  is  largely  based  on  information  and  data 
transmitted  by  the  member  States,  allows  for  focussing  resources  in  response  to 
threats and therefore to a more effective control of the borders, and also to identifying 
needs for operational cooperation between Member States. 

Provide  member  States  with  the  necessary  support  in  organising  joint  return 
operations. This contributes to the first general objective, as return form an important 
part of the integrated border management system as a whole. 

3.3. 

Operational objectives 

•  Ensure the availability of technical equipment for joint operations 

•  Ensure the availability of qualified border guards for joint operations 

•  Ensure  more  efficient  coordination,  implementation  and  evaluation  of  joint 

operations 

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

management 

•  Improve  the  risk  analysis  carried  out  by  Frontex  by  giving  the  Agency  access  to 

new sources of data 

•  Improve efficiency of joint return operations 

•  Improve the evaluation of the performance of Member States in the area of border 

management 

4. 

POLICY OPTIONS 

In the previous impact assessment the preferred policy option included implementing 
a  set  of  short/medium  term  recommendations  and,  in  the  longer  term,  amending  the 
legal  basis  for  the  Agency.  As  the  outcome  of  that  impact  assessment  entailed 
discarding  the  status  quo  no  "do  nothing"  option  is  considered  separately.  The 
assessment of the baseline scenario is covered by the problem definition in chapter 2.  

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Due to the level of detail in defining the specific problems described in chapter 2, it is 
not possible to identify individual policy options that would correspond to all specific 
problems. As a consequence the following "building blocks" have been defined, each 
corresponding to one operational objective; in relation to each building block two or 
more policy suboptions will be assessed as alternatives to each other: 

•  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. 

4.1. 

Assessment criteria  

The  policy  options  are  assessed  against  largely  the  same  criteria  as  in  the  previous 
impact assessment; moreover an overall subsidiarity and proportionality examination 
will be provided for all suboptions. 

Does  the  option  contribute  to  meeting  the  identified  shortcoming,  i.e.  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?  

5. 

5.1. 

DESCRIPTION OF SUBOPTIONS AND ANALYSIS OF IMPACTS  

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

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

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A ‘technical equipment pool’ (TEP) bringing together equipment and assets owned by 
Member States could be created, building on the existing central record of technical 
equipment  (CRATE)  set  up  under  Article  7  of  the  current  Regulation.  Such  a  pool 
would  be  organised  by  categories  of  operations  (air,  sea,  land)  and  by  type  of 
equipment (aircraft, vessels, helicopters, jeeps, etc). 

All  Member  States  could  contribute  to  the  technical  equipment  pool,  by  indicating 
which type of equipment they can offer to the pool for the year n+1; the TEP should 
be reviewed on a yearly basis i.e. during the discussions of the operational plans for 
the year n+1. The numbers should be based on the experience gathered so far by the 
Agency  with  the  exact  needs  to  be  quantified  by  the  Management  Board  of  the 
Agency  on  a  yearly  basis.  The  system  would  be  flexible  as  the  contributions  from 
Member States could be adapted to the needs each year based on risk analysis. 

A minimum number of the different types of equipment would need to be defined and 
be  binding  on  the  Member  States,  possibly  combined  with  a  referral  mechanism 
whereby  the  Agency  would  report  to  the  Council  on  any  shortcomings.  The 
mechanism  would  need  to  foresee  exceptions  for  Member  States  to  withdraw 
equipment  when  facing  national  imperative  needs,  but  widely  defined  exceptions 
would deprive the pool of its value. The concrete contributions that would need to be 
requested  from  Member  States  in  the  medium  term  are  difficult  to  predict.  The 
amount  of  equipment  needed  would  not  necessarily  call  for  a  contribution  from  all 
Member States, especially heavy equipment which in addition not all Member States 
have at their disposal for obvious reasons.  

Suboption 2: Acquisition or leasing of equipment by Frontex  

For the performance of the duties within its mandate the Agency may acquire or lease 
the necessary technical equipment. This suboption forms as such part of status quo as 
it legally feasible under the current mandate, although it has not yet been exploited; 
during the first years of operation the Agency's budget was clearly insufficient for that 
purpose. Moreover, the Agency has so far concentrated on making the best use of the 
baseline, i.e. relying on the voluntary contributions of Member States. However, the 
choice  of  this  suboption  could  nevertheless  be  accompanied  by  certain  legislative 
changes providing further details for the practical implementation. 

This  suboption  would  therefore  consist  in  FRONTEX  buying  some  or  all  of  the 
necessary  technical  equipment  to  be  used  in  joint  operations,  including  airplanes, 
helicopters, radars, vessels, trucks, etc. 

In legal terms equipment such as vessels and aircraft would need to be registered in a 
Member State and be provided with a crew from that Member State. 

A  possible  model  could  involve  pursuing  forms  of  co-ownership  with  individual 
Member States to share purchasing costs as well as actual use, and the Member State 
in question taking on registration and provision of the crew. The share of the Agency 
and the Member State in question, in terms of use of the equipment, would need to be 
negotiated on a case-by-case basis, possibly yearly, to allow for adapting to concrete 
needs. 

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Equally feasible within the current legal framework would be for Frontex to lease its 
own  technical  assets  whilst  taking  due  account  of  EU  procurement  rules  and  the 
financial regulations. Concerning the more important technical assets such as vessels 
and  aircraft,  practice  has  shown  that  the  leasing  of  an  aircraft  is  part  of  common 
economic activity. Leasing of adequately equipped patrol vessels is however untested.  

Suboption 3: A combination of suboptions 1 and 2 

There is no reason to regard suboptions 1 and 2 as mutually exclusive; on the contrary 
Frontex could work with a combination of equipment contributed by Member States 
for  specific  operations  and  its  own  equipment.  Frontex  would  take  into  account  its 
own equipment, or equipment leased, when assessing the contributions needed from 
the Member States for a given year. In practice this suboption would involve putting 
all equipment in the same pool, ie Frontex own or leased equipment would be added 
to the TEP. 

This  suboption  would  also  allow  for  a  phased  approach  whereby  Member  States' 
contributions  are  adapted  over  time  to  a  gradual  increase  of  equipment  owned  or 
leased  directly  by  Frontex.  It  would  also  allow  for  greater  flexibility,  as  Frontex 
would  be  able  to  resort  to  two  different  sources  in  ensuring  the  availability  of 
equipment. 

5.1.1.  Do the suboptions address the general objectives?  

All suboptions would positively impact on the shortcomings identified and allow the 
Agency to better meet the relevant operational objective, as they would increase the 
availability of equipment for joint operations. All suboptions would contribute to the 
general  objectives,  as  the  operational  solidarity  would  increase  with  a  view  to 
temporarily  reinforcing  border  control  at  specific  sections.  As  compared  to  the 
baseline,  border  control  would  be  more  effective  as  with  a  higher  number  of  assets 
deployed, possibly a higher number of persons attempting to cross the border illegally 
could  be  detected  and  apprehended.  The  Agency  would  be  able  to  better  plan  its 
operations  as  the  availability  of  equipment  would  be  clear  at  the  beginning  of  the 
year. 

As  concerns  suboption  1  Member  States  might  however  become  more  reluctant  to 
contribute  in  the  knowledge  that  any  commitment  would  be  binding.  This  could  in 
part  be  mitigated  by  allowing  for  100%  financing  of  the  costs  incurred  by  Member 
States. 

As concerns suboption 2, a negative impact on the operational objective might be that 
Member States would no longer see the need to actively participate with equipment in 
joint  operations,  considering  that  any  shortcomings  could  be  met  by  Frontex 
purchasing/leasing  ever  greater  amounts  of  equipment.  This  may  however  not  be 
feasible in view of the capital costs involved; the capacity of the Agency to coordinate 
operations may as a result be reduced. Moreover, it would deprive joint operations of 
an  indirect  added  value  in  getting  Member  States  to  work  together.  Moreover,  the 
positive impact of this suboption would take some time to materialise, as procurement 
procedures (be it for acquisition or leasing) will be lengthy. For acquisition equipment 
will  need  to  be  ordered  and  construction  time  will  need  to  be  considered.  This 
suboption would however have the greatest positive impact in giving Frontex a higher 

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capacity and efficiency to act based on its own risk analysis, as it would not have to 
rely  on  Member  States'  contributions.  Frontex  can  purchase  or  lease  the  type  of 
equipment adapted to its precise needs, which would allow for a definite increase in 
the assets deployed at border sections under pressure. 

5.1.2.  Do the options have an impact on external countries/partners? 

No  direct  impact,  but  the  framework  for  cooperation  with  third  countries  discussed 
under section 5.4, would influence the needs. 

5.1.3.  Can the involved costs be (or become) part of the FRONTEX budget and how 

high are they? 

The Agency is already co-financing the equipment deployed during joint operations. 
A maximum of 80 % of the total eligible costs of the operations is supported by the 
Agency  budget;  however,  as  contributions  in  kind  are  allowed  from  the  MS  the 
Agency may effectively cover 100% of the actual costs incurred by MS. 

As an example for the year 2010 an amount of approximately 33 million € is foreseen 
by the Agency's budget for operational coordination, out of which 26.5 million € for 
operations at the sea borders.  

In this context it should be noted that the magnitude of the costs is very difficult to 
project  because  costs  are  directly  dependant  on  the  exact  needs,  which  in  turn  can 
only be defined by the Agency itself on a yearly basis subject to endorsement of the 
Management Board. 

However, the following estimate can be done, starting with suboption 1: 

The daily total cost for the deployment of one coastal patrol vessel is around 4000€. 
The additional cost of deployment of one vessel for 180 days would thus be 720 000€ 
per year, out of which 576 000€ would be  covered by the Agency's budget and 144 
000€ by the contributing Member State. For an  aircraft the equivalent estimates would 
be around 10 000€ and 1.8 million € respectivel
the Agency's budget and 360 000€ by the Member State. 

y; thus 1.44 million€ to be borne by 

For suboption 2, the running costs can be estimated based on the above figures. 

As  for  capital  costs  estimates  differ  widely  depending  on  the  size,  range  and 
equipment  of  the  vessel.  By  way  of  illustration  equipment  financed  via  the  external 
borders  fund,  and  based  on  the  annual  programmes  of  the  Member  States,  range 
between one and two million € for one coasta l patrol vessel, up to 22 million€ for an 
offshore patrol vessel, and between 4 and 25 million € for one aircraft. 

As concerns leasing, a comparison can be made with the costs incurred by the CFCA 
and EMSA, for service contracts involving vessels put at the disposal of the Member 
States when needed. EMSA, for example, has access to a total of nine vessels on stand 
by for emergencies covered within a total yearly budget of 16 million €. 

As  this  option  depends  on  needs  decided  each  year  by  the  Frontex  Management 
Board, and is in fact about creating availability of equipment when needed, drawing 

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up  a  scenario  of  the  cost  impact  on  the  Frontex  budget  is  therefore  virtually 
impossible based on the uncertainties outlined above 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. In particular speculating about the budgetary 
impact of possible future purchases of equipment by Frontex serves no meaning, as it 
would depend on the modalities to be defined for the co-ownership and the delivery 
time. However, as a hypothetical scenario for the short-term (2-3 years) an additional 
three coastal patrol vessels and three aircraft put at the disposal of the Member States 
would entail a total annual budget impact for Frontex of around 6 million€.  

Commitments  of  operational  expenditure  in  the  Frontex  budget  in  2008  was  94%, 
which  would  leave  a  scope  of  3  million€  to  be  used  for  additional  equipment. 
However, the use of the payment appropriations were much lower at 44% which may 
indicate  that  underlying  real  costs  incurred  by  the  Agency  are  lower  than  the 
commitments;  hence  an  increase  in  the  technical  equipment  would,  within  certain 
limits such as the short-term scenario above, not necessarily require an increase in the 
annual budget of the Agency. 

5.1.4.  What are the possible impacts on fundamental rights? 

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

5.1.5.  Comparison of the suboptions 

All  suboptions  in  this  regard  would  contribute  to  solving  the  existing  shortcomings 
and allowing for meeting the general objectives of an effective control of the external 
borders  and  of  coordinating  joint  operations,  through  a  higher  availability  of 
equipment. Which suboption that would provide for the biggest quantitative impact on 
the  operational  objective  is  impossible  to  predict.  The  impacts  are  also  heavily 
dependent  on  the  exact  terms  for  their  implementation,  in  particular  suboption  1. 
Moreover,  in  view  of  the  operational  character  of  Frontex  operations  in  response  to 
changing challenges a precise quantified benchmark of the ideal number of equipment 
cannot be set, against which respective impacts can be measured. 

The  preferred  option  would  therefore  be  suboption  3.  This  would  avoid  making  a 
definite  choice  that  would  restrict  the  Agency  in  the  future.  Thus,  a  compulsory 
mechanism  for  Member  State'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 in the future. 
While the latter is already feasible under the current Regulation it would benefit from 
a clarification, making this possibility on the one hand more explicit, and on the other 
hand  requesting  the  Agency  to  carefully  assess  the  needs  and  costs  before  going  in 
this direction. 

As  for  costs,  in  general  the  running  costs  for  suboption  1  and  2  would  be  similar, 
while  suboption  2  (in  the  case  of  acquisition)  would  also  involve  capital  costs.  In 
relative terms it is thus obvious that suboption 2 has a greater budgetary impact on the 
Agency. However in the longer term, the acquisition of equipment by Frontex would 

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result  in  savings,  as  the  Agency  would  not  have  to  incur  the  costs  of  co-financing 
equipment of the Member States.  

As concerns the Member States the impact in relative terms of the two suboptions is 
neutral, in the assumption that actual running costs are in practice covered to 100% by 
the Agency for equipment contributed by the Member States. 

The impact on fundamental rights is neutral in comparison between the options. 

5.2.  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 Member States to 
contribute with guest officers to those teams, in the form of a pool of human resources 
to be used by the Agency during its operations and pilot projects.  

The  Frontex  Joint  Support  Teams  (FJST)  would  be  established  by  analogy  to  the 
RABIT  teams;  their  overall  number  and  their  tasks  and  powers  and  responsibilities 
should  be  set  by  the  Regulation;  their  profiles  and  conditions  for  deployment 
(including their allowances) could be set by the Management Board on a proposal by 
the Executive Director. 

Suboption  2:  Lower  the  threshold  for  the  deployment  of  Rabit  teams.  The  current 
Rabit  teams  could  thereby  be  used  to  reinforce  joint  operations.  These  teams  are 
currently  restricted  to  emergency  situations,  and  foresee  already  a  compulsory 
component. The exceptions allowing Member States not to deploy their guest officers 
upon  the  request  of  the  Agency  are  narrowly  defined.  The  Rabit  teams  have  so  far 
never been deployed in view of the rather high threshold set for their deployment in 
terms of what constitutes an emergency.  

Suboption  3:  Foresee  the  gradual  creation  of  a  pool  of  border  guards  on  semi-
permanent detachment from Member States to Frontex for a period of say six months, 
to be used exclusively for joint operations. It would thus be for the Agency to decide 
for  which  operations  and  for  which  concrete  tasks  those  guest  officers  should  be 
deployed during their six-month detachment.  

5.2.1.  Do the suboptions address the general objectives? 

All  of  these  suboptions  would  positively  address  the  shortcoming  in  question  and 
have  a  positive  impact  on  the  operational  objective.  Border  guards  taking  part  in 
operations  would  be  trained  according  to  uniform  standards  and  the  availability  of 
persons  with  specific  competences  would  be  predictable  thereby  meeting  the 
operational objective. Frontex would therefore be better able to launch timely tailor-
made  operations  for  different  parts  of  the  border  based  on  its  risk  analysis,  and  the 
impact of those operations in terms of ensuring more efficient border  control would 
be  higher.  Already  for  reasons  of  legal  clarity  either  suboption  1  or  2  should  be 
retained, as reflecting already current practice. 

The  second  suboption  would  have  the  indirect  and  negative  impact  of  depriving  the 
EU of its only true emergency response capacity. Frontex would not be able to rely on 

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the  availability  of  the  Rabit  teams  if  the  border  guards  in  question  are  already 
deployed in different member States for the purpose of joint operations.  

The third suboption can in terms of impact on the operational objective be compared 
with the Agency purchasing its own equipment: very positive impact in terms of the 
capacity of the Agency to plan, initiate and implement operations. However, it would 
require  careful  legal  provisions  on  the  status  of  those  persons.  Completely 
independent  border  guards  employed  as  temporary  agents  by  the  Agency  would  not 
be feasible, as the Agency does not and cannot dispose of a complete set of provisions 
with  regard  to  issues  such  as  disciplinary  rules,  civil  and  criminal  liability,  use  of 
force,  competent  jurisdiction,  etc.  They  could  only  be  employed  with  the  status  of 
national experts, as their rights and obligations during the operations would need to fit 
with the current rules on guest officers in the Frontex Regulation. They would thus be 
subject,  in  a  very  explicit  manner,  to  a  triple  legal  framework,  made  up  of  relevant 
parts  of  their  national  law  (cf  home  state  concept  in  the  current  Regulation),  the 
Frontex  Regulation  as  such,  and  the  internal  rules  of  Frontex  (as  decided  by  the 
Management  Board)  as  concerns  seconded  national  experts.  This  suboption 
presupposes  that  the  latter  rules  would  be  amended  to  allow  for  direct  instructions 
from  the  host  state  during  the  operations  to  which  they  would  be  deployed.  As  a 
consequence  it  would  also  need  to  be  clarified  that  temporary  agents  employed  by 
Frontex cannot carry out border control tasks during operations but only coordinating 
functions.  

The  first  and  the  third  suboption  are  both  therefore  very  dependent  on  a  careful 
definition of the modalities for their implementation, although in different ways; the 
first  in  the  sense  of  how  the  compulsory  aspect  is  defined,  the  third  in  the  sense  of 
how issues of command and control as well as legal accountability are defined. 

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

No direct impact. 

5.2.3.  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 4127,- € per month. Guest  officers of the Member States deployed 
during joint operations cost on average 180,- € per day (+/- 3960 per month). These 
figures indicate that the difference is minimal between the total cost of a guest officer 
of a Member State deployed during a joint operation or if the same person would be 
detached to the Agency. 

5.2.4.  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 would increase, due to the fact 
that they would be more involved in concrete operations than they are currently.  

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The  fundamental  rights  involved  are,  mainly,  human  dignity,  prohibition  of  torture 
and  inhuman  or  degrading  treatment  or  punishment,  right  to  liberty  and  security, 
principle of non-refoulement, non-discrimination, and the rights of the child. 

5.2.5.  Comparison of the suboptions 

While the positive impacts on the operational objective of the first (compulsory pool) 
and the second (revising the Rabit teams) suboptions are close to identical the second 
suboption  brings  the  negative  impact  of  depriving  the  EU  of  a  true  emergency 
response mechanism. That suboption should therefore be discarded. 

The  third  suboption  has  the  clear  advantage  of  allowing  the  greatest  degree  of 
capacity to act of the Agency. It also has a stronger impact than the first suboption in 
the sense of allowing an even greater degree of harmonised, high qualifications of the 
border  guards  in  question.  However,  the  third  suboption  is  not  feasible  as  the  only 
solution  having  regard  to  the  needs.  It  is  simply  irrealistic  to  assume  that  Frontex 
would  be  able  to  employ  such  a  number;  in  other  words  this  suboption  cannot,  in 
isolation, meet the operational objective. 

Thus, in conclusion, the qualitative impact, in the sense of ensuring highly qualified 
border guards, of the third suboption with regard to meeting the operational objective 
is the highest, while the quantitative impact, in the sense of ensuring the availability 
of a sufficient number of border guards, on the same objective of the first option is the 
highest. 

Suboption 1 and 3 will in practice have to be combined: the setting up of a pool of 
human  resources  made  up  of  guest  officers  from  the  Member  States  seconded  to 
individual  operations  as  well  as  guest  officers  employed  as  national  experts  by  the 
Agency on a short-term (6 months) basis. The cost impact of these suboptions is quasi 
the  same  (see  point  5.2.3)  and  can  therefore  be  easily  combined.  The  two  possible 
sources of guest officers can therefore compensate for any shortcoming in numbers in 
each  other.  The  long-term  aim  whether  one  source  should  gradually  become 
predominant can be determined by the Management Board. 

5.3. 

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 Member States 

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. Both Frontex and 
Member States may take the initiative for the launch of operations, within the limits 
of the discretionary powers that can be delegated to a Community Agency. 

The lead / co-lead aspects would also differ between the two suboptions as concerns 
the  overall  command  over  the  implementation  of  the  operation  in  the  sense  of 
deciding where individual units are deployed and which tasks they should carry out. 

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Both  suboptions  would  involve  creating  a  legal  basis  for  the  establishment  of  the 
operational  plan,  which  is  already  common  practice.  Both  suboptions  would  also 
involve  providing  updated  information  on  ongoing  joint  operations  including  the 
incident  reporting  obligations,  the  issuance  of  full  evaluation  reports  on  joint 
operations  (compared  against  the  operational  plan)  and  their  distribution  to  the 
members of the Management Board and EU Institutions.  

Explicit  provisions  on  obligatory  incident  reporting  and  evaluations  of  the  joint 
operations would ensure that any alleged breaches of  EC law would be followed up 
on by the competent authorities and, within its competences, by the Commission. The 
right for Frontex to abort an operation could also be foreseen and used as a last resort 
should  the  Agency  consider,  under  its  own  responsibility,  that  EC  law  is  not  fully 
complied with. 

5.3.1.  Do the suboptions address the general objectives? 

Virtually  any  step  in  this  direction  would  increase  the  degree  of  harmonisation  in 
terms  of  how  complex  operations  are  implemented  in  practice.  A  more  clear  and 
explicit  legal  framework  is  a  positive  thing  in  itself,  by  making  the  work  of  the 
Agency more transparent in terms of who does what. It would thereby also clarify the 
objective of coordinating operations in itself and allow for setting better benchmarks 
in  terms  of  what  the  Agency  should  achieve  through  its  coordinating  function  in 
particular and in making border control more efficient in general. 

Operations  will  be  conducted  in  a  more  harmonised  manner  and  therefore  be  more 
efficient  in  strengthening  border  control.  Stronger  rules  on  evaluation  and  reporting 
would  bring  value  added  in  terms  of  increased  transparency  and  gradual  better 
focussing of future operations, as well as a better identification of needs based on the 
better  evaluated  experiences.  Both  suboptions  therefore  clearly  meet  the  operational 
objective. 

A  clear  legal  status  for  the  operational  plan  would  also  allow  for  addressing  the 
request  of  the  Stockholm  programme  to  establish  clear  rules  of  engagement,  to  the 
extent  that  this  request  is  not  covered  by  the  draft  decision  on  the  law  of  the  sea 
proposed by the Commission as referred to under section 2.1. 

5.3.2.  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  Member  States.  No  further  extra  costs  are  to  be 
foreseen  through  optimisation  of  the  working  practices.  On  the  contrary  some 
efficiency savings in terms of MS expenditure could occur, as the clear coordination 
role of Frontex could prevent splitting of joint operations or parallel operations, which 
happens currently as described under 2.3.3.  

5.3.3.  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 

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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. 
Awarding the Agency the lead for the implementation of joint operations could mean 
that  the  Agency  would  exercise  a  sufficient  degree  of  control  over  the  conduct  of 
operations  to  render  it  liable  for  possible  violations  of  fundamental  rights  that  may 
occur  during  the  operation.  It  would  therefore  require  adopting,  on  the  level  of  the 
EU,  a  number  of  comprehensive  legal acts  that  would  address  topics  currently 
regulated  on  the  national  level  (e.g.  detailed  rules  on  the  use  of  force,  disciplinary 
rules for border guards,...).There is also a risk that some uncertainties could arise as 
regards  the  responsibility  and  the  duty  of  involved  guest  officers  as  regards  the 
obligation to comply with fundamental rights. Consequently, additional binding rules 
and  procedures  on  the  relationship  between  host  Member  State's  border  guards  and 
guest officers would be needed in order to establish a legal framework for potential 
issues  connected  to  fundamental  rights  that  might  arise  in  the  performance  of  their 
duties  (conflicts  of  interest,  reporting  potential  breaches  of  EU  law  including 
fundamental rights, complaints procedure, liability, jurisdiction, compensation). These 
rules  should  ensure  that  guest  officers,  whatever  their  precise  legal  status,  always 
implement Community legislation in accordance with fundamental rights.  

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 as described in 
section 5.2. 

The  fundamental  rights  involved  are,  mainly,  human  dignity,  prohibition  of  torture 
and  inhuman  or  degrading  treatment  or  punishment,  right  to  liberty  and  security, 
principle of non-refoulement, non-discrimination, and the rights of the child. 

5.3.4.  Comparison of the options 

Suboption 1 would have a higher impact on the general objective of effective border 
control in the sense that the operations would exclusively be designed to meet needs 
identified at European level, ie based on Frontex own risk analysis and more efficient. 
It  would  also  achieve  a  full  harmonisation  –  with  Frontex  always  in  the  lead  all 
operations can be conducted based on the same, pre-established modus operandi. 

On the other hand the impact of suboption 2 may well be higher in some respects as a 
co-leading role of the host state allows for adapting to local conditions and challenges. 
The Agency will never be in a position to replace the combined expertise of all border 
guard authorities and units of the entire European Union. Some Member States may 
also consider that allowing Frontex “free hands” in implementing operations on their 
territory is not compatible with national sovereignty, and they may therefore refuse to 
accept  any  operations  at  their  external  borders,  which  would  effectively  prevent 
reaching the operational objective. 

In  balance,  and  while  it  seem  counterintuitive,  suboption  2  is  likely  to  have  the 
highest positive impact as compared to the baseline. 

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

5.4. 

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.  Frontex,  as  a  Community  Agency,  would  thus  become  eligible  to 
become a beneficiary/implementing partner of the EU’s large financial and technical 
supporting  programmes  set  up  by  ECHO/AIDCO/RELEX  towards  third  countries. 
The level of cooperation should continue to be in line with the overall EU’s external 
policy. 

Suboption  2:  Allowing  Frontex  to  deploy  liaison  officers  in  third  countries.  To 
enhance the knowledge of immigration flows, to obtain better data on expected flows 
and to assist Frontex during joint operations in a geographical area close to the third 
country in question the posting of Frontex Liaison Officers (FLOs) could provide the 
solution.  

Suboption 3: Mandating Frontex to carry out border control missions at the borders 
between  third  countries.  The  European  Union  has  been  financing  a  number  of 
initiatives  aimed  at  assisting  third  countries  to  establish  and  further  develop  their 
border management systems in accordance with the relevant European standards, such 
as  the  Border  Management  Programme  in  Central  Asia  (BOMCA)  or  the  Border 
Assistance  Mission  to  Moldova  and  Ukraine  (EUBAM).  Taking  into  account  that 
Frontex  shall  provide  the  Commission  and  the  Member  States  with  the  necessary 
technical  support  and  expertise  in  the  management  of  the  external  borders,  this 
expertise could be exploited in the context of those initiatives aimed at assisting third 
countries in the field of border management. 

Thus  participation  of  (or  coordination  with)  Frontex  in  missions  like  the  above 
mentioned ones could also be addressed. In the latter regard a further step would be to 
mandate Frontex to take over the implementation of such missions. 

5.4.1.  Do the suboptions address the general objectives? 

These  options  would  all  contribute  to  the  general  objective  of  supporting  the 
integrated border management system of which cooperation with third countries is a 
crucial element. On one hand it would ensure more efficiency in terms of enabling the 
Agency to enhance the quality of risk analysis, improving day-to-day cooperation at 
specific border crossing points, and on the other hand enhancing the capacity of third 
countries  to  manage  their  own  borders,  which  can  relieve  the  pressure  on  the  EU 
external borders. 

The first suboption would allow Frontex to implement a closer cooperation with third 
countries,  on  the  basis  of  its  working  arrangements,  more  effectively  by  directly 
supporting  ia  capacity-building  projects  to  follow-up  on  weaknesses  in  the  border 

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management  of  the  third  countries  in  question,  and  thereby  clearly  meeting  the 
operational objective. 

The second suboption would also have a positive impact on the operational objective 
but in a different manner, by improving the information flow to the Agency as well as 
the Member States on the situation in third countries ie with regard to facilitation of 
illegal  immigration.  On  that  basis  risk  analyses  would  be  enriched  and  as  a  result 
allow for a better targeting of Frontex operations. A further positive impact would be 
on  cooperation  with  third  countries  as  a  whole  on  migration  issues,  especially  as 
Frontex  could  complement  the  existing  network  of  Member  States’  immigration 
liaison  officers  network  and  deploy  its  own  liaison  officers  in  countries  where  few 
Member States are represented. 

As regards suboption 3 more particularly, these missions are only indirectly linked to 
the objectives of Frontex, as the latter is focussed on the external borders of the EU 
and  its  Member  States  while  these  missions  concern  the  borders  between  third 
countries. Well managed borders between third countries do have an indirect effect on 
the internal security of the EU, but to a varying degree. It should also be noted that 
such  missions  are,  today,  not  necessarily  constrained  to  control  of  persons  but  also 
involves  control  of  goods,  which  is  not  covered  by  the  Frontex  mandate.  Hence  the 
impact on the operational objective would be lower, and of a more indirect nature. 

5.4.2.  Does 

the  option/recommendation  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.  In  depth  consultations  with  third 
countries  and  relevant  Commission  services  will  need  to  be  organised  to  implement 
these provisions by the Agency within the context of the EU external policy.  

5.4.3.  Can the involved costs be (or become) part of the FRONTEX budget and how 

high are they? 

The first and second suboptions will have an impact on the budget. The carrying out 
of technical assistance projects as well as the posting of liaison officers will as such 
be a possibility in the Regulation, while the actual implementation will be up to the 
Management Board to decide in the context of the annual work programme. The cost 
impact can therefore not be estimated. The latter should also be seen in the context of 
the  expenses  of  the  EU  external  relations  programmes  which  do  already  have  a 
component  related  to  border  control/  integrated  border  management.  By  way  of 
illustration projects funded under these programmes on integrated border management 
in third countries have ranged from 1 to up to 15 million euro. Given that the number 
of  such  projects  should  be  limited  to  priority  countries,  and  not  duplicate  assistance 
already  being  carried  out  under  the  EU's  external  relations  programmes,  an 
assumption  could  be  that  Frontex  would  implement  1-2  projects  per  year  with  a 
budget of up to two million euro each. A further reason to keep the number of projects 
limited would be to limit the impact of staffing of Frontex to run the projects as such. 
As  for  the  posting  of  liaison  officers  the  preferred  model  would  be  to  station  those 

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officers  in  the  EU  delegations,  which  would  lead  to  a  marginal  increase  in  the 
administrative costs for those delegations. A gradual posting of up to 5 liaison officers 
could be envisaged, which would involve a limited cost impact; based on calculations 
in  the  Frontex  budget  2010  the  total  yearly  average  cost  for  one  temporary  agent  is 
estimated at 100 000 euro, which would thus give a total cost impact of 500 000 euro 
for this suboption.  

The costs for the third suboption would be substantial: as a comparison the costs for 
the EUBAM mission from November 2005 to November 2009 was around 44 million 
euro in total, and it currently employs more than 200 staff. However, as this mission is 
financed under the ENPI instrument for the Community budget the cost impact could 
be considered neutral. 

5.4.4.  What are the possible impacts on fundamental rights? 

Technical  assistance  to  operations,  which  could  lead  to  violations  of  fundamental 
rights  (e.g.  allowing  for  excessive  use  of  force,  breaching  the  right  to  privacy, 
refoulement), should not be offered to third countries, within the framework of these 
projects. Consequently any provision of such assistance would have to be in line with 
the  EU's  overall  external  relations  policy  including  with  regard  to  the  respect  of 
human rights by the country in question. 

In the implementation of 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 where the missions would take place, and it would have to be ensured that 
the operations take place under a framework fully respecting fundamental rights. 

5.4.5.  Comparison of the suboptions 

All the suboptions are complementary rather than mutually exclusive and could thus, 
in  theory,  be  combined.  However,  while  the  positive  impacts  on  the  operational 
objective for suboptions 1 and 2 are clear, the impact of suboption 3 is only indirect 
and  it  would,  in  addition,  entail  important  question  marks  on  the  modalities  for  its 
implementation and also significant costs. 

The preferred option is clearly to open for the Agency to carry out technical assistance 
projects and to deploy its own liaison officers in third countries. The scope of those 
activities will be covered within the existing budget depend on the priorities defined 
in  the  context  of  the  annual  work  programme.  The  total  cost  impact  would  be  3-4 
million euro per year. 

The  taking  over  of  border  control  missions  concerning  the  borders  between  third 
countries  contributes  only  indirectly  to  the  objectives  and  would  have  a  substantial 
cost  impact  and  would  raise  concerns  with  regard  to  fundamental  rights.  The  legal 
safeguards to mitigate any potential negative impact in that regard would be complex 
to set in place. This third suboption should therefore be discarded, while recalling that 
Frontex  can  nevertheless  put  its  expertise  at  the  disposal  of  such  missions  on  an  ad 
hoc basis. 

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5.5.  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  by  different  actors  during  Frontex  joint 
operations  and  to  use  that  data  for  the  purpose  of  risk  analysis  and  operational 
coordination.  It  should  be  noted  that  this  suboption  corresponds  to  the  suggestions 
made  by  a  number  of  Member  States  during  the  discussions  during  the  autumn  of 
2009 and by the Agency itself. 

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. 

5.5.1.  Do the suboptions address the general objectives? 

As  a  starting  point  for  any  assessment  whether  FRONTEX  should  be  mandated  to 
process personal data it should be recalled, that any interference by a public authority 
in  the  right  for  private  life  is  only  legal  when  in  accordance  with  the  law  and  is 
necessary  in  a  democratic  society  for  overriding  public  interests  as  referred  to  in 
Article 8(2) ECHR and in Article 8 of the Charter on Fundamental rights. Therefore a 
basic  requirement  would  not  only  be  a  specific  legal  base  for  such  data  processing, 
but a justification of the necessity for such legal base.  

The processing of personal data by a Community Agency falls under the provisions of 
the  data  protection  Regulation  45/2001  which  imposes  a  series  of  requirements  in 
order to process data in compliance with the rules on the protection of personal data. 
Even  if  the  processing  of  personal  data  for  the  purposes  of  FRONTEX  would  be 
necessary and proportionate and covered by a legal base, the transfer or the sharing of 
such  data  to/with  third  countries  or  entities  will  need  to  fulfil  an  additional  set  of 
requirements  in  order  to  protect  the  fundamental  rights  and  freedoms  of  natural 
persons vis à vis to recipients which are not subject to Directive 95/46/EC (cf Article 
9 of Regulation 45/2001). 

Some direct positive impacts on the operational objective are clear such as the added 
value  personal  data  can  provide  to  complete  the  pre-frontier  intelligence  picture 
necessary  for  a  state  of  the  art  risk  analysis  model  or  to  enhance  the  exchange  of 
information between  competent authorities to enhance the fight against cross border 
crime at the EU external borders (both part of the current Frontex mandate). Personal 
data on facilitators operating outside the EU can provide a better picture of migration 
routes and hubs used by migrants and help to identify where those networks operate. 
Other positive impacts are more difficult to identify such as the effect the processing 
of  personal  data  could  have  on  the  search  for  facilitators  of  illegal  immigration  or, 
more  general,  on  traffickers  in  human  beings.  Ensuring  follow-up  to  information 
related to facilitators of illegal immigration is a matter of investigating crime and as 
such  outside  the  scope  of  the  tasks  of  the  Agency,  and  therefore  the  operational 
objective. As concerns more specifically suboption 1, the processing of personal data 
by the Agency cannot be considered necessary to ensure an effective completion of its 
tasks  related  to  operational  coordination.  The  follow-up  to  be  given,  as  based  on 
personal data, is not directly linked to the tasks of Frontex: for example, the issuing of 
individual decisions on refusal of entry, on return, or on the introduction of alerts in 
the SIS all fall under the responsibility of national authorities. A positive impact on 

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the  operational  objective  is  difficult  to  identify  compared  to  the  baseline,  which 
covers the possibility of receiving data on illegal immigrants in an anonymous form. 
A  positive  impact  on  the  general  objective  of  supporting  a  more  efficient  border 
control  by  Member  States  by  accessing  personal  data  is  not  established.  On  the 
contrary this suboption risks duplicating the collection of personal data performed by 
border  guards  of  Member  States  on  a  daily  basis  whilst  performing  their  normal 
duties.  

As  concerns  suboption  2,  one  of  the  key  objectives  of  the  Agency  is  to  further 
develop a Common Integrated Risk Analysis Model (CIRAM). Although it is true that 
the  Agency  has  established  a  well  functioning  mechanism  to  receive  data  from  the 
competent national authorities as part of the Frontex Risk Analysis Network (FRAN) 
most  of  this  information  is  of  a  statistical  nature  and  does  not  allow  the  Agency  to 
develop a pro-active stance regarding risk analysis. 

The early identification of new trends and patterns in routes and modus operandi of 
illegal migration will be beneficial for the majority of the operations conducted and/or 
coordinated by the Agency as well as be useful for Member States in conducting their 
own  border  management  activities.  The  collection  of  personal  data  gathered  during 
joint  operations,  pilot  projects  or  being  part  of  the  exchange  of  relevant  purpose 
oriented  information  with  other  competent  authorities  active  at  the  EU  external 
borders will enhance the capacity of the Agency to deliver timely and up to date risk 
analysis  models.  Information  on  the  location  and  modus  operandi  of  facilitators' 
networks  need  to  be  constantly  updated  to  follow  resulting  changes  in  migratory 
routes towards Europe. Frontex needs to be able to adapt its operations to those routes 
at short notice. Being able to access personal data on facilitators would increase the 
analytical  capacity  of  Frontex  in  this  regard  and  thus  positively  impact  on  the 
operational objective. Frontex would also be in a better position to support Member 
States by informing on changes in migratory routes also when no joint operations are 
being implemented. This would thus concern persons for which there are reasonable 
grounds to believe that they are involved in the organisation and facilitation of illegal 
immigration, principally in third countries. Frontex would solely use the data for the 
purpose  of  their  risk  analysis,  ie  to  gain  a  better  understanding  of  migratory  routes, 
and not for any kind of tracking or investigations of the individuals concerned. 

The same applies to the support the Agency can provide to assist other competent EU 
authorities  in  the  fight  against  cross  border  crime.  Part  of  the  integrated  border 
management model is a close cooperation between all agencies involved at the border, 
typically police, border, and customs authorities. The same applies at European level, 
where a close cooperation between Frontex and Europol can provide mutual benefits 
for  risk  analysis  and  organised  crime  threat  assessments.  The  results  of  the  risk 
analysis could be sent to Europol as assisting tools. Moreover Europol could receive 
upon  request  and  in  accordance  with  agreed  modalities  between  both  agencies  from 
Frontex  data  for  the  enrichment  of  its  analytical  working  files;  data  which  is  in  the 
current situation missing. 

It  should  be  stressed  that  for  legitimacy,  necessity  and  proportionality  reasons  any 
legal  mandate  in  this  regard  should  target  specific  purposes  (i.e.  risk  analysis,  fight 
against cross border crime at the EU external borders) and give specific justification 
whether  the  processing  of  what  personal  data  for  these  purposes  is  necessary  and 

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proportionate,  but  no  purposes  like  the  fight  against  crime,  which  are  in  the 
competence of Member States, Europol or other EU Agencies. 

Equally,  if  the  processing  of  personal  data  by  FRONTEX  is  lawful,  necessary  and 
proportionate, the storage of the data should be rather limited in time but enough to 
ensure that the data can be processed in a reliable manner, according to the purposes 
for  which  they  have  been  collected  for.  The  same  applies  for  the  exchange  of 
information containing personal data with other competent EU or national authorities 
i.e. these should be limited to the strict necessary to achieve the specific purposes for 
which  they  have  been  collected  and  not  serve  any  other  purposes.  In  this  sense 
Frontex would be receiving raw data directly from interviews of migrants carried out 
by guest officers during joint operations. A certain amount of time will be needed to 
analyse and extract the relevant information (be it in the form of personal data or not) 
and assess its validity and links to other sources. Once the analysis is completed the 
data should be destroyed. As a safeguard a clear time limit would need to be set such 
as three months.  

The onward transmission of personal data to third countries should not be authorised 
as this data transfer would not contribute to the specific aims of the data processing 
conducted by the  Agency and would therefore not be lawful. Any retransmission of 
personal  data  to  Member  States  would  not  be  justified  either.  Such  a  prohibition 
would avoid any use of personal data for the purpose of issuing alerts on individuals. 

5.5.2.  Do the options have an impact on external countries/partners? 

The lawfulness of any data processing by FRONTEX would depend in particular on 
the assessment and justification of the necessity and proportionality of the envisaged 
data processing, including whether transfers of personal data to third countries would 
be lawful, subject to a specific legal basis for such processing of personal data. 

5.5.3.  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.  

5.5.4.  What are the possible impacts on fundamental rights? 

Potentially  substantial  impact  which  would  need  to  be  mitigated through  a  stringent 
data  protection  regime,  under  condition  that  the  processing  of  personal  data  by 
FRONTEX and the extent of this data processing is lawful.  

5.5.5.  Comparison of the options 

Suboption 2, under condition that the processing of personal data for these purposes is 
lawful  and  necessary,  is  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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5.6. 

Revising the mandate of the Agency as concerns return operations  

Suboption  1:  This  suboption  would  involve  FRONTEX  taking  over  a  coordinating 
role  together  with  the  leading  Member  State.  This  coordinating  role  would  become 
manifest  in  the  preparation  of  the  return  operation  by  collecting  and  providing  the 
necessary  information  via  the  ICONet  and  the  tasks  during  the  concrete  return 
operation.  

Suboption 2: It could be envisaged to choose an even stronger approach, not limiting 
the Agency to a co-coordinating role, by taking over from the leading Member State 
the  responsibility  and  the  bulk  of  organisational  tasks  for  the  whole  joint  return 
operation.  This  could  mean  that  FRONTEX  would  be  responsible  for  taking  the 
initiative  for  a  joint  operation,  would  be  the  main  contact  body  for  the  country  of 
return in order to prepare the operation and in particular obtaining the necessary travel 
documents and permissions and would be in direct contact with the authorities of the 
main return hub. This suboption could also envisage tasking exclusively FRONTEX 
to  exercise  the  relations  with  the  country  of  return,  which  has  been  suggested  by  a 
number of Member States during the stakeholder consultations. However, also in this 
option  Member  States  would  remain  responsible  for,  notably,  the  individual  return 
decisions  as  well  as  the  treatment  of  persons  before,  during  and  after  the  return,  in 
accordance with EU law and fundamental rights. 

5.6.1.  Do the suboptions address the general objectives? 

Suboption  1  corresponds  effectively  to  the  role  Frontex  is,  gradually,  assuming 
currently. There is thus an added value in making this role explicit in the legal basis. 

Both  suboptions  will  clearly  have  a  positive  impact  on  the  operational  objective  in 
allowing  Frontex  to  provide  stronger  support  to  Member  States  where  they  are 
struggling to effectively implement the return decisions issued. Frontex can be more 
proactive  when  providing  support  which  should  lead  to  a  higher  number  of  return 
operations in practice. Coordination between several Member States can only function 
effectively if one body is taking on, as a minimum, all logistical tasks and builds up 
not  only  experience  but  also  a  harmonised  approach  to  the  implementation  of  such 
operations.  Moreover,  the  principle  of  the  leading  Member  State  taking  over  the 
responsibility  provide  for  legal  certainty  concerning  the  applicable  national  law  on 
board.  

As concerns the second suboption, in practical terms a leading role of the Agency is 
expected to be counterproductive with regard to the operational objective. First, joint 
return operations are demand driven. This demand is created by Member States and 
not by the Agency. The need for a joint return operation relates to the concrete needs 
of  the  individual  Member  States  to  return  in  a  certain  moment  a  certain  number  of 
third-county  nationals  to  one  or  more  specific  third-countries.  In  this  respect  the 
Agency  can  facilitate  the  communication  among  Member  States  by  providing  the 
necessary information via the ICONet, but is not in the position to anticipate Member 
States' concrete needs and priorities which, as the practice has proven, can change in 
short intervals. 

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Secondly, it is proven that the cooperation with the country of return is an inevitable 
precondition for the return. FRONTEX should not replace the leading Member State 
in  the  return  process.  Available  statistics  on  return  decisions  and  effected  removals 
indicate huge differences in the effectiveness of Member States' return policy. These 
differences  are  in  particular  caused  by  the  different  developed  relations  with  the 
country  of  return.  Some  Member  States  dispose  of  excellent  working  relations  to 
certain  countries  of  return  due  to  historical,  political,  economical  or  other  reasons. 
These  relations  can  not  be  compensated  by  any  kind  of  FRONTEX  working 
arrangement  with  the  country  of  return.  Keeping  for  the  Agency  a  co-coordinating 
role will not exclude FRONTEX from direct contacts with the country of return and 
for example taking the lead in an advance party to the country of return. Finally, there 
are  also  legal  obstacles  in  giving  Frontex  such  a  prominent  role,  as  the  relevant 
decisions related to the return process must be taken by a Member State authority. 

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

No direct impact as long as the role of the Agency is limited to a co-coordinating role 
with at least one Member State in the lead.  

5.6.3.  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  impossibly  to 
predict  as  the  preconditions  will  remain  the  same,  i.e.  return  decisions  taken  by  the 
Member States and obtaining the agreement of the third countries in question. By way 
of  illustration  return  operations  in  2008  amounted  to  on  average  380  000  euro; 
assuming  that  an  increased  role  for  Frontex  could  result  in  an  additional  5  return 
operations  the  cost  impact  of  the  suboptions  would  be  around  1,9  million 
euro.Enhancing the role of Frontex could result in fewer return operations organised 
by  Member  States  on  their  own;  instead  of  two  Member  States  organising  two 
separate return operations, Frontex could organise one joint operation. Consequently 
certain efficiency savings in terms of Member States' expenditure could occur, as the 
clear  coordination  role  of  Frontex  could  result  in  replacing  current  return  organised 
individually by Member States.  

5.6.4.  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.  

5.6.5.  Comparison of the options 

While the positive impact of both suboptions is in part common, 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. 

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5.7.  Mandating  the  Agency  to  evaluate  Member  States'  performance  in  the 

area of border management 

Suboption  1:  Mandating  Frontex  to  carry  out  inspections  in  Member  States,  in 
particular  evaluating  Member  States'  capacity  to  face  threats  and  pressure  at  the 
external  borders,  more  particularly  their  capacity  in  terms  of  national  structures, 
equipment  and  resources.  Frontex  would  make  use  of  that  information  to  refine  its 
risk analysis and better target its operations.  

Suboption  2:  Giving  Frontex  an  explicit  role  with  regard  to  Member  States' 
compliance  with  EC  law  during  joint  operations,  thus  giving  Frontex  a  role  in 
observing  and  reporting  in  this  respect.  This  suboption  is  a  logical  consequence  of, 
but would go beyond, the evaluation aspects foreseen under section 5.3, as the latter 
concerns  the  evaluation  of  whether  a  specific  operation  meet  its  operational 
objectives. 

5.7.1.  Do the suboptions address the general objectives? 

Frontex  could  provide  a  source  of  well  trained  experts  and  ensure  a  high  degree  of 
independence for the evaluations envisaged under suboption 1. A better understanding 
of  the  situation  on  the  ground  would  allow  Frontex  to  identify  with  more  precision 
where operational support could have an added value, thus having a positive impact 
on  the  objectives  of  ensuring  more  efficient  border  control  and  coordinating 
operations.  More  extensive  knowledge  in  this  regard  would  contribute  also  to  the 
objective of providing high-quality risk analyses to the benefit of all Member States.  

A  role  for  Frontex  in  this  regard  would  have  a  positive  impact  on  the  operational 
objective, in the sense of being better able to target support to Member States based 
on a better understanding of the situation on the ground, and thereby better contribute 
to more effective border control.  

The  main  positive  impact  of  the  second  suboption  would  be  with  regard  to  Frontex 
role in facilitating the application of EC law.  

However,  a  negative  impact  of  the  second  suboption  would  entail  from  the  fact  of 
giving Frontex "double hats", effectively visiting Member States with the purpose of 
supporting them to better control  their borders (eg  joint operations) and at  the same 
time  effectively  inspecting  whether  Member  States  are  complying  with  their 
obligations.  Moreover  the  role  Frontex  can  take  on  with  regard  to  the  second 
suboption will in effect have to be very limited as the Agency cannot in any way take 
on the role as guardian of the Treaty as allocated to the Commission. Moreover, the 
potential positive impact of this suboption on the operational objective is less than it 
appears at first sight as Frontex is a centre of excellence of operational expertise, not 
legal expertise. In this regard, the Agency should not be put in a position where it is 
forced  to  make  delicate  judgments  on  whether  a  given  incident  was  in  accordance 
with EC law or not. 

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

No direct impact. 

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5.7.3.  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  (see  figures  provided  under 
5.2.3), the second suboption would not have any significant cost impact. 

5.7.4.  What are the possible impacts on fundamental rights? 

No  direct  impact,  recalling  as  concerns  the  second  suboption  that  Member  States 
obligations  to  comply  with  EC  law  are  absolute,  independent  of  the  role  of  Frontex 
and independent of whether Member States are carrying out border control within the 
context of a joint operation or not. 

5.7.5.  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. 

5.8. 

Subsidiarity and proportionality  

All suboptions considered in this impact assessment respect the following principles 
and limits of the current legal basis and are therefore in line with the subsidiarity and 
proportionality principles: 

–  Border  management  is  a  shared  competence  between  the  EU  and  its  Member 
States;  Member  States  are  responsible  for  controlling  their  part  of  the  external 
border of the Schengen area; the revision of the Frontex regulation aims amongst 
others  to  clarify  the  respective  roles  and  responsibilities  of  the  various  actors 
participating in Frontex joint operations and pilot projects; it does not transfer any 
executive powers of the national border guard authorities of the Member States to 
the Agency. 

–  Frontex cannot impose any activity on the territory or at the border of a Member 
State without the consent of that Member State; even in the scenario whereby the 
Agency launches on its own initiative an operation, it needs the prior consent of the 
Member State on whose territory the operation is scheduled to take place; 

–  Any  border  guard  operating  in  another  Member  State  shall  be  subject  to 
instructions  by  the  authorities  of  that  Member  State;  furthermore  border  guards 
participating in joint operations and pilot projects remain subject to the disciplinary 
measures of their home Member State while performing their tasks and exercising 
their powers during a joint operation or pilot project coordinated by the Agency; 

–  Any  decisions  on  refusal  of  entry  of  a  person  in  accordance  with  the  Schengen 
Borders Code shall be taken only by border guards of the Member State whose 
territory the person is seeking to enter; any appeals or allegations of misconduct 
shall be addressed to the relevant public authorities of that same Member State; the 
revision  of  the  legal  framework  in  which  the  Agency  operates  does  not  contain 
provisions  that  depart  from  the  Schengen  Borders  Code;  moreover  explicit 

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references  to  the  Schengen  Borders  Code  provide  that  border  control  activities 
shall be conducted in accordance with the Schengen Borders Code;  

–  Any  decisions  related  to  the  return  of  an  individual  can  only  be  taken  by  a 
national authority of a Member State; any appeals or allegations of misconduct 
shall be addressed to the relevant public authorities of that same Member State; the 
Frontex Agency can not take decisions related to the return of a given person to a 
third country destination; 

–  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; 
the rules including the required overall minimum numbers per type of equipment, 
the  conditions  for  deployment  and  reimbursement  of  costs  shall  be  decided  on  a 
yearly basis by the Management Board on a proposal by the Executive Director;  

6. 

6.1. 

ASSESSMENT OF THE PREFERRED POLICY OPTION  

Summary of the preferred option 

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

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

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 as 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 
facilitation  of  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 

6.2. 

Overall assessment of impact of the preferred policy option 

Taken as a whole, the preferred option will have a clear and substantial impact on all 
of  the  general,  specific  and  operational  objectives.  Notably  the  combination  of  the 
first  three  points  above  will  have  a  very  positive  impact  on  European  solidarity  by 

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expanding the tools at the disposal of the Agency and increasing its capacity to act. 
They  will  address  all  components  related  to  the  objective  of  coordination  of  joint 
operations and therefore the reinforcement of border controls at specific sections: with 
more reliable and higher quality of own human resources, own technical equipment, 
and a stronger say in how operations are designed it is a comprehensive response to 
the  problems  identified.  In  that  sense  the  synergies  of  combining  all  the  building 
blocks are clear. However, this must be accompanied by stronger requirements on the 
Agency and on the Member States in defining, and periodically reviewing, the actual 
needs.  

There  are  also  synergies  in  combining  the  fifth  and  the  sixth  points  with  the  points 
related  to  joint  operations.  The  fifth  and  sixth  points  will  allow  Frontex  to  provide 
better risk analyses to the benefit of the Member States but also to the direct benefit of 
the Agency itself when preparing and launching joint operations. In combination these 
reinforcements  will  allow  for  better 
the 
coordination of operations with, in total, a significant improvement in efficient border 
control at key sections of the external border. 

targeting  and  better 

implementing 

6.2.1. 

Subsidiarity and proportionality 

The preferred option fully respects the limits and principles described in section 5.8 
above.  In  addition  it  should  be  noted  that  the  possibility  for  the  Agency  itself  to 
contribute to the pool of border guards, and the clarification of the role of the Agency 
in  coordinating  operations,  do  not  concern  the  responsibility  for  carrying  out 
border  control  but  the  responsibility  for  coordinating  cooperation  between 
Member States and how resources are provided for such cooperation. Moreover, 
while Member States are given a collective responsibility to ensure that the necessary 
equipment  is  available  for  that  cooperation,  no  individual  Member  State  would  be 
legally  obliged  to  contribute  with,  for  example,  a  specific  vessel  or  aircraft.  The 
provisions  with  regard  to  cooperation  with  third  countries  do  not  influence  the 
bilateral cooperation Member States have with third countries nor their possibilities to 
continue to deploy their own liaison officers. With regard to personal data the Agency 
is  not  taking  over  any  tasks  or  competences  of  the  Member  States,  but  rather 
assuming  a  complementary  role  in  providing  better  risk  analysis  at  European  level. 
The preferred option as concerns return reflects largely current practices. Finally, with 
regard to evaluations, the same analysis as for personal data can be applied.  

All the components of the preferred option can be implemented gradually and will not 
require any disruption of current activities. The pace of the gradual transition to new 
solutions is largely in the hands of the Agency itself and its Management Board when 
deciding  upon  the  yearly  work  programme.  It  also  stays  squarely  within  the  current 
objectives  of  the  Agency  as  defined  by  the  existing  legal  basis.  The  main  issue  of 
proportionality concerns the amount of equipment that should be put at the disposal of 
the Agency for the purpose of carrying out joint operations; this is ultimately in the 
hands  of  the  Management  Board  to  decide  when  defining  the  minimum  amount  of 
equipment that Member States should be obliged to contribute and also when defining 
the  amount  of  equipment  the  Agency  should  purchase.  In  case  of  disagreement 
between  the  Member  States  representatives  a  referral  mechanism  to  the  Council  is 
foreseen, as the question can be considered to have a political dimension, ie the extent 
to  which  the  EU  should  support  Member  States  facing  particular  pressure  at  their 

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section  of  the  external  border.  In  this  sense  an  additional  check  on  subsidiarity  and 
proportionality  is  therefore  built  into  the  implementation  of  the  preferred  option. 
Overall the preferred option is therefore proportionate to the objectives pursued. 

6.2.2.  Costs 

As  concerns  costs,  it  should  first  of  all  be  noted  that  no  ideal  quantity  of  Frontex 
activities can be specified in this impact assessment. In other words it is impossible to 
state  that  in  year  20XX  Frontex  should  carry  out  X  operations  in  order  to  meet  its 
objectives in full. The underlying difficulties related to the setting of an ideal quantity 
are part of the problem definition and addressed under point 2.4. This applies also to 
the potential efficiency and cost savings of the Member States and of the Agency.  

The  events  and  circumstances  related  to  irregular  migration  are  numerous  and  are 
changing  constantly.  What  was  a  problem  at  a  specific  border  crossing  point  some 
years  ago  for  a  specific  Member  State  does  no  longer  require  extensive  operations 
today. An EU border crossing point with no particular pressure today can become a 
'hot  spot'  tomorrow  because  of  riots  in  a  neighbouring  third  country  or  by  a  natural 
catastrophy.  Therefore  the  exact  quantity  of  the  activities  of  the  Agency  needs  to 
adapted  year  by  year  to  face  the  real  challenges  and  needs  related  to  irregular 
migration  facing  the  Union  when  it  comes  to  controlling  the  external  border 
effectively, as it is ultimately the responsibility of the Management Board to define, 
on a yearly basis in the work programme of the Agency. This also concerns priority-
setting within the resources available, for example, it is up to the Board to decide for a 
given  year  whether  to  reallocate  resources  between  joint  operations  and  joint  return 
operations.  

Consequently an assessment cannot be made of the total impact on the budget of the 
Agency  as  a  whole,  as  this  depends  on  a  detailed  estimate  of  the  precise  work 
programme of the Agency. This in turn is subject to the procedure laid down by the 
Regulation with the responsibilities of the Management Board and of the two arms of 
the budgetary authority of the Community. It would therefore be misleading to simply 
cumulate  the  cost  estimates  of  the  various  suboptions  that  make  up  the  preferred 
option  At  the  same  time,  due  to  clearer  division  of  tasks  and  responsibilities  and 
enhanced  coordination  capacities  of  the  Agency,  some  efficiency  savings  can  be 
expected, however, for the reasons mentioned above, they cannot be quantified. 

The  budget  impact  of  the  preferred  option  can  clearly  as  such  be  accommodated 
within  the  current  budget  of  the  Agency  within  the  coming  years;  in  other  words  it 
does not automatically lead to a need for an increased budget. Should the needs of the 
Agency  in  terms  of  equipment  be  confirmed  for  the  coming  years,  and  should  that 
need  be  endorsed  by  the  Management  Board,  the  Agency  will  need  to  request  an 
increased budget in the course of the annual budgetary procedure taking into account 
the limits of the current and future financial perspectives.  

7. 

MONITORING AND EVALUATION  

Monitoring and evaluation of the implementation of the future actions and measures 
set  out  in  the  preferred  policy  options  will  be  an  important  element  to  ensure  their 
effectiveness.  All  activities  of  FRONTEX  included  in  its  work  programme  are 

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accompanied by indicators for each action, which allows for monitoring based on the 
annual report of the Agency.  

A continuous monitoring of the activities of the Agency also takes place through the 
Management  Board  which  meets,  normally,  five  times  per  year,  and  through  direct 
reporting by the Agency at meetings of the Council and the EP. 

The Agency is obliged to report on its activities as well as the implementation of its 
budget through the general report foreseen by the Frontex Regulation and the Annual 
Activity report foreseen by the Financial Regulation. 

The  above  provisions,  which  so  far  have  been  considered  generally  satisfactory  and 
are in line with the EU's horizontal policy on Agencies, would apply to the preferred 
policy  option  put  forward  here  also.  In  addition  the  preferred  option  also  contains  a 
number  of  measures  to  strengthen  the  monitoring  and  evaluation  of  the  activities  of 
the  Agency.  The  evaluation  of  the  performance  of  the  Agency  as  concerns  joint 
operations will be improved through the obligation to draw up evaluation reports and 
to  set  performance  indicators.  Incident  reporting  will  ensure  that  any  problems 
encountered during joint operations and pilot projects are brought to the attention of 
the responsible public authorities and the Management Board. The tendency towards a 
harmonisation of the Frontex procedures towards Member States participating in joint 
operations and pilot projects will certainly contribute to a more effective evaluation of 
the activities of the Agency. Certain provisions are also foreseen that would involve a 
more  frequent  and  detailed  reporting  by  the  Agency  on  to  what  extent  its  resource 
needs are met with regard to technical equipment. Finally, the acquisition of technical 
equipment by the Agency would be subject to an ex ante cost-benefit analysis. 

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