Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Members States of the European Union
Date: 2013-04-12
Institutions: European Commission
Subjects: border control, external border of the EU, intergovernmental cooperation (EU), international cooperation, maritime area, maritime surveillance

EUROPEAN 
COMMISSION 

Brussels, 12.4.2013  
COM(2013) 197 final 

2013/0106 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing rules for the surveillance of the external sea borders in the context of 
operational cooperation coordinated by the European Agency for the Management of 
Operational Cooperation at the External Borders of the Members States of the 
European Union  

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EXPLANATORY MEMORANDUM 

1. 

1.1. 

CONTEXT OF THE PROPOSAL 
Procedure and adoption of Council Decision 2010/252/EU1 

In October 2009, the Commission was invited by the European Council to present proposals 
which  would  establish  “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”.2  This  was  again 
confirmed  in  the  Stockholm  Programme  of  December  2009,  where  the  European  Council 
requested the Commission to put forward proposals no later than 2010 to clarify and enhance 
the  role  of  the  European  Agency  for  the  Management  of  Operational  Cooperation  at  the 
External Borders of the Member States of the European Union (‘the Agency’) and to prepare 
“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.”3  

In  2010,  the  Council  adopted  Decision  2010/252/EU  (‘the  decision’)  as  a  response  to  these 
calls by the European Council to strengthen border surveillance operations coordinated by the 
Agency and to establish clear rules of engagement for joint patrolling and the disembarkation 
of intercepted or rescued persons in order to ensure the safety of those seeking international 
protection  and  to  prevent  loss  of  life  at  sea.  The  Commission  had  chosen  to  present  its 
proposal  under  the  comitology  procedure  based  on  Article  12(5)  of  the  Schengen  Border 
Code4 considering the decision as being an additional measure governing border surveillance.  

The  decision  was  considered  to  be  necessary  and  appropriate  to  implement  the  objective  of 
border  surveillance,  namely  to  prevent  unauthorised  border  crossings.  In  this  regard,  it  was 
considered that surveillance not only encompasses the notion of detection but extends to steps 
such  as  intercepting  vessels  trying  to  enter  the  Union  unlawfully.  The  link  of  search  and 
rescue  to  border  surveillance  was  based  on  actual  practice  –  migrants  travelling  in 
unseaworthy vessels are sometimes in a distress situation upon detection.  

The  decision  incorporated,  within  a  single  legal  instrument,  existing  provisions  of  EU  and 
international  law.  The  aim  was  to  overcome  the  different  interpretations  of  international 
maritime law adopted by Member States and their diverging practices to ensure the efficiency 
of sea operations coordinated by the Agency. There was a risk that in a sea operation different 
rules, sometimes even conflicting ones, would apply to the same situation. Amidst this legal 
uncertainty,  Member  States’  participation  in  sea  operations  coordinated  by  the  Agency  was 
low  in  terms  of  contributing  craft,  vessels  and  human  resources.  This,  in  turn,  hindered  the 
effectiveness of the operations and undermined efforts of EU solidarity.  

The  decision  intended  to  reinforce  the  protection  of  fundamental  rights  and  to  guarantee 
respect for the principle of non-refoulement in sea operations. Some Member States, Members 
of  the  European  Parliament,  human  rights  organisations  and  academics  had  questioned 

1 

2 
3 

4 

Council  Decision  of  26 April  2010  supplementing  the  Schengen  Borders  Code  as  regards  the 
surveillance  of  the  sea  external  borders  in  the  context  of  operational  cooperation  coordinated  by  the 
European  Agency  for  the  Management  of  Operational  Cooperation  at  the  External  Borders  of  the 
Member States of the European Union, OJ L 111, 4.5.2010 p. 20. 
European Council, Presidency Conclusions 29-30 October 2009. 
See  point  5.1  of  the  Stockholm  Programme,  “Integrated  management  of  the  external  borders”,  OJ  C 
115, 4.5.2010, p. 1. 
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. 

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whether  fundamental  rights  and  the  rights  of  refugees  were  being  respected  during  sea 
operations  coordinated  by  the  Agency,  particularly  on  the  high  seas.  The  decision  aimed  to 
address these concerns by establishing a number of guarantees to ensure the respect of these 
rights,  such  as  the  requirement  to  inform  the  intercepted  or  rescued  persons  of  the  place  of 
disembarkation, special consideration for the needs of vulnerable persons and the requirement 
for border guards to be trained in relevant provisions of fundamental rights and refugee law. 

The  decision  was  adopted  on  26  April  2010  as  a  Council  decision  in  accordance  with  the 
regulatory  procedure  with  scrutiny.  The  European  Parliament  considered  that  the  decision 
should have been adopted in accordance with the ordinary legislative procedure and not the 
comitology  procedure.  Therefore,  it  brought  an  action  before  the  Court  of  Justice  of  the 
European Union (‘the Court’) against the Council requesting the annulment of the decision.  

1.2. 

C-355/10: European Parliament v. Council5 

The  European  Parliament  considered  that  the  decision  exceeded  the  implementing  powers 
conferred  under  Article  12(5)  of  the  Schengen  Borders  Code  because:  (i)  it  introduced  new 
essential  elements  into  the  Schengen  Borders  Code;  (ii)  it  altered  essential  elements  of  the 
Schengen  Borders  Code;  and  (iii)  it  altered  the  content  of  Regulation  (EC)  No 2007/2004.6 
The  Council  pleaded  the  inadmissibility  of  the  action,  and  in  the  alternative,  considered  the 
action to be without merit. The Commission, as the only intervening party, acted in support of 
the Council. 

The Court delivered its judgment on 5 September 2012. It annulled the decision on the first 
ground  insofar  as  it  considered  that  the  provisions  on  interception  measures,  rescue  and 
disembarkation are essential elements to the basic act, namely the Schengen Borders Code. It 
did not examine whether the decision alters essential elements of the Schengen Borders Code 
or whether it alters the content of Regulation (EC) No 2007/2004. 

The  Court  decided  to  maintain  the  effects  of  the  decision  until  it  is  replaced  by  new  rules 
within a reasonable time. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

When assessing the need to carry out an impact assessment, the following considerations were 
taken into account.  

Firstly,  the  adoption  of  Council  Decision  2010/252/EU  had  been  preceded  by  a  significant 
amount of preparatory work. In 2005, the Council had requested the Commission to examine 
the  legal  framework  applicable  to  border  surveillance  operations  at  sea  and  to  subsequently 
prepare rules at Union level. In 2007, the Commission presented a study in which it analysed 
the international legal framework as regards surveillance of the external sea borders and the 
obstacles  to  its  effective  implementation.7  In  the  same  year,  the  Commission  set  up  an 
informal  group  of  experts  from  Member  States,  the  Agency,  the  Office  of  the  UN  High 
Commissioner  for  Refugees  and  the  International  Organisation  for  Migration  to  draw  up 

5 

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v. 

Council 

European 

Parliament 

C-355/10: 
Union 
at  http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=C-355/10&td=ALL#  (not  yet 
published in the European Court Reports). 
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. 
Commission Staff Working Document: Study on the international law instruments in relation to illegal 
immigration by sea, SEC(2007) 691. 

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the 

of 

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guidelines for sea  operations coordinated by the Agency. The results of this  informal group 
were used by the Commission as a basis for its draft proposal presented under the comitology 
procedure. 

Secondly, in view of preparing this proposal, the Commission consulted Member States and 
the  Agency  through  an  Expert  Group  on  External  Borders  to  determine  to  what  extent  this 
proposal should reflect the content of the decision. In general, Member States considered that 
this  proposal  should  build  upon  the  decision,  keeping  its  scope  limited  to  sea  operations 
coordinated  by  the  Agency,  strengthening  the  provisions  on  the  protection  of  fundamental 
rights,  clarifying  the  distinction  between  interception  measures  and  rescue,  addressing  the 
issue of disembarkation and ensuring consistency with international obligations, while taking 
into account legal and judicial developments at EU and international level. 

Thirdly, on annulling Council Decision 2010/252/EU, the Court required that the decision be 
replaced within a reasonable time. Although the concept of ‘reasonable time’ is not defined in 
the  judgment,  it  is  understood  that  in  view  of  possible  difficult  and  lengthy  discussions 
between the two EU legislators, the Commission should act expeditiously. 

Consequently,  it  was  considered  that  this  proposal  need  not  be  accompanied  by  an  impact 
assessment. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

This proposal is based on Article 77(2)(d) of the Treaty on the Functioning of the European 
Union.  With  a  view  to  develop  an  external  border  policy,  including  ensuring  efficient 
surveillance of the external borders as set out in Article 77(1), Article 77(2)(d) provides that 
the European Parliament and the Council, acting in accordance with the ordinary legislative 
procedure, shall adopt “any measure necessary for the gradual establishment of an integrated 
management system for external borders.”  

The objective of Union policy in the field of the EU external borders is to ensure the efficient 
monitoring  of  the  crossing  of  external  borders  including  through  border  surveillance.  The 
purpose of border surveillance is to prevent unauthorised border crossings, to counter cross-
border criminality and to apprehend or take other measures against those persons who have 
crossed  the  border  in  an  irregular  manner.  Border  surveillance  should  be  effective  in 
preventing and discouraging persons from circumventing the checks at border crossing points. 
To this end, border surveillance is not limited to the detection of attempts at irregular border 
crossing  but  equally  extends  to  steps  such  as  intercepting  ships  suspected  of  trying  to  gain 
entry to the Union without submitting to border checks, as well as arrangements intended to 
address  situations  such  as  search  and  rescue  that  may  arise  during  a  sea  operation  and 
arrangements intended to bring such an operation to a successful conclusion. 

Since  the  objectives  of  the  action  to  be  taken,  namely  the  adoption  of  specific  rules  for  the 
surveillance  of  the  sea  borders  by  border  guards  operating  under  the  coordination  of  the 
Agency, cannot be sufficiently achieved by the Member States due to the differences in their 
laws  and  practices,  and  can  therefore,  by  reason  of  the  multinational  character  of  the 
operations,  be  better  achieved  at  the  level  of  the  Union,  the  Union  may  adopt  measures  in 
accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European 
Union. 

In  accordance  with  the  principle  of  proportionality,  as  set  out  in  Article  5  of  the  Treaty  on 
European  Union,  this  Regulation  does  not  go  beyond  what  is  necessary  in  order  to  achieve 
those objectives. 

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It is on the basis of these principles that, as was the case for the decision, this proposal applies 
only  in  the  context  of  operational  cooperation  coordinated  by  the  Agency  and  it  does  not 
concern  surveillance  activities  carried  out  by  Member  States  individually  or  cooperating 
outside that framework. 

4. 

BUDGETARY IMPLICATION 

This proposal does not impose any financial or administrative burden on the Union. Therefore 
it has no impact on the Union budget. 

5. 

OPTIONAL ELEMENTS  

5.1. 

Comparison between this proposal and Council Decision 2010/252/EU 

The  scope  and  content  of  this  proposal  are  similar  to  those  of  the  decision.  The  changes 
presented  in  the  proposal  when  compared  to  the  decision  are  based  on  legal  and  judicial 
developments, such as the amendments to Regulation (EC) No 2007/20048 and the judgment 
of the European Court of Human Rights in Hirsi Jamaa and Others v. Italy,9 on the need to 
ensure  clarity  as  regards  the  concepts  of  interception  and  rescue,  and  on  the  practical 
experiences of Member States and the Agency when implementing the decision.  

5.1.1.  Form 

The  choice  of  legal  instrument  and  the  decision-making  procedures  are  different.  This  is  a 
proposal for a Regulation addressed to all Member States in accordance with the Treaties and 
it is to be adopted in accordance with the ordinary legislative procedure. Its form reflects the 
choice of legal instrument consisting of a preamble (citations and eighteen recitals) and eleven 
articles divided into four chapters. It shall be binding in its entirety and directly applicable in 
Member  States.  On  the  other  hand,  the  decision  had  been  adopted  as  an  implementing 
measure using the regulatory procedure with scrutiny. It consists of a preamble (citations and 
eighteen recitals), two articles and an Annex divided into two parts. Part I of the Annex sets 
out rules for sea border operations coordinated by the Agency whereas Part II of the Annex 
consists of non-binding guidelines for search and rescue situations and for disembarkation in 
the context of sea operations coordinated by the Agency. 

5.1.2.  Content 

The scope of application of this proposal is the same as that of the decision, namely border 
surveillance  operations  at  sea  carried  out  by  Member  States  under  the  coordination  of  the 
Agency  (Article  1).  Although  in  the  decision,  the  concept  of  ‘border  surveillance’  was 
understood  as  including  interception  measures  and  arrangements  for  rescue  arising  during 
border surveillance operations, there was still doubt as to whether these measures did in fact 
fall under the concept of border surveillance as defined in the Schengen Borders Code. This 
proposal  explicitly  covers  this  broader  concept  of  border  surveillance  by  indicating  that 
border surveillance is not limited to the detection of attempts at irregular border crossing but 
equally extends to steps such as interception measures, and arrangements intended to address 

8 

9 

Regulation  (EU)  No 1168/2011  of  the  European  Parliament  and  of  the  Council  of  25  October  2011 
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, OJ L 
304, 22.11.2011, p. 1. 
Judgment of the European Court of Human Rights (Grand Chamber) of 23 February 2012 (Application 
No 27765/09);  at  http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-109231#{"itemid":["001-
109231"]} 

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situations such as search and rescue that may arise during a sea operation and arrangements 
intended to bring such an operation to a successful conclusion (recital 1 and Chapter III). 

When revisiting the decision, the amendments to Regulation (EC) No 2007/2004 needed to be 
taken  into  account.  The  Agency  is  now  also  entrusted  with  assisting  Member  States  in 
circumstances  requiring  increased  technical  assistance  at  the  external  borders,  taking  into 
account  that  some  situations  may  involve  humanitarian  emergencies  and  rescue  at  sea.  This 
means that although the Agency neither becomes a search and rescue body nor does it take up 
the functions of a rescue coordination centre, during a sea operation it assists Member States 
to  fulfil  their  obligation  under  international  maritime  law  to  render  assistance  to  persons  in 
distress and this proposal sets out rules on how to deal with these situations in a sea operation 
coordinated by the Agency (recital 2 and Article 9).  

With  the  amendments  to  Regulation  (EC)  No 2007/2004,  the  operational  plan  became  a 
legally  binding  instrument  with  regard  to  all  operations  coordinated  by  the  Agency  and  not 
only as regards rapid interventions. The content of the operational plan is listed in Articles 3a 
and 8e of Regulation (EC) No 2007/2004 which also refer specifically to sea operations. The 
rules laid down in this proposal are intended to form part of the operational plan drawn up in 
accordance with Regulation (EC) No 2007/2004, taking into account the requirements for sea 
operations. 

The legal and judicial developments concerning the protection of fundamental rights are also 
taken into account in this proposal. Article 4, which deals with the protection of fundamental 
rights and the principle of non-refoulement in sea operations, addresses concerns raised by the 
European Court of Human Rights in its ruling in Hirsi Jamaa and Others v. Italy as regards 
disembarkation of intercepted or rescued persons in third countries, both in terms of relations 
between  Member  States  and  third  countries,  and  the  obligations  of  Member  States  vis-à-vis 
the  individual.  This  article  concerns  the  practical  implementation  of  the  principle  of  non-
refoulement  as  enshrined  in  Article  19(2)  of  the  Charter  of  Fundamental  Rights  of  the 
European  Union.  In  case  of  disembarkation  in  a  third  country,  the  persons  intercepted  or 
rescued  must  be  identified  and  their  personal  circumstances  must  be  assessed  to  the  extent 
possible before disembarkation. They must also be informed of the place of disembarkation in 
an  appropriate  way  and  they  must  be  given  an  opportunity  to  express  any  reasons  for 
believing that disembarkation in the proposed place would be in violation of the principle of 
non-refoulement. This guarantees that the migrants are informed about their situation and the 
proposed place of disembarkation thereby allowing them to express any objections. 

Under  Chapter  III,  this  proposal  clearly  distinguishes  between  detection,  interception  and 
rescue. As regards interception, this proposal while retaining the same set of measures as in 
the  decision,  distinguishes  between  the  measures  that  may  be  taken  in  the  territorial  sea 
(Article  6),  on  the  high  seas  (Article  7)  and  in  the  contiguous  zone10  (Article  8),  thus 
clarifying the conditions under which these measures may be taken and the jurisdictional basis 
on  which  action  may  be  taken  particularly  as  regards  stateless  ships.  Based  on  the  Protocol 
against  the  Smuggling  of  Migrants  by  Land,  Sea  and  Air,  interception  of  ships  on  the  high 
seas is now clearly linked to the requirement of having a reasonable suspicion that the ship is 

10 

The contiguous zone is regulated in Article 33 of the United Nations Law of the Sea Convention. It is a 
zone adjacent to the territorial sea and it may not extend beyond 24 nautical miles from the baselines 
from which the breadth of the territorial sea is measured. It constitutes a part of the exclusive economic 
zone or  the high seas, depending  on whether  the  coastal  State  has  proclaimed  an  exclusive  economic 
zone, and it is a zone where the freedom of navigation applies. Although it is not part of the territorial 
sea, the coastal State may exercise the necessary control to prevent and punish the infringement of its 
customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea. 

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engaged in the smuggling of migrants. As in the decision, the exercise of jurisdiction on the 
high seas must always be based on the authorisation of the flag State. 

As  regards  search  and  rescue  situations,  the  text  in  this  proposal  remains  similar  to  the 
decision (Article 9). The wording is aligned to that used in the 1979 International Convention 
on Maritime Search and Rescue and the International Aeronautical and Maritime Search and 
Rescue Manual (IAMSAR). Also, on the basis of these international instruments, the proposal 
includes  criteria  as  to  when  a  ship  is  considered  to  be  in  a  situation  of  uncertainty  (Article 
9(3)),  alert  (Article  9(4))  and  distress  (Article  9(5))  as  well  as  a  definition  of  a  rescue 
coordination centre (Article 2(12)). 

This proposal, differently from the decision, addresses the issue of disembarkation in terms of 
interception  and  rescue  (Article  10).  As  regards  interception  in  the  territorial  sea  or  in  the 
contiguous  zone,  disembarkation  takes  place  in  the  coastal  Member  State.  As  regards 
interception on the high seas, subject to guaranteeing the protection of fundamental rights and 
the  principle  of  non-refoulement,  disembarkation  may  take  place  in  the  third  country  from 
which  the  ship  departed.  If  this  is  not  possible,  then  disembarkation  takes  place  in  the  host 
Member State.  

As regards disembarkation following a rescue operation, this proposal refers to the concept of 
‘place  of  safety’  as  defined  in  the  Guidelines  on  the  Treatment  of  Persons  Rescued  at  Sea 
issued  by  the  International  Maritime  Organisation,11  taking  into  account  aspects  of 
fundamental rights12 (Articles 2(11) and 10(4)), and requires Member States to cooperate with 
the responsible rescue coordination centre to provide a suitable port or place of safety and to 
ensure  rapid  and  effective  disembarkation.  This  proposal  takes  into  account  the  fact  that  at 
this stage the maritime and aerial units would be acting under the coordination of the rescue 
coordination  centre,  which  determines  the  appropriate  port  or  place  of  disembarkation. 
However,  it  also  recognises  the  possibility  for  the  maritime  units  to  disembark  in  the  host 
Member  State  if  they  are  not  released  of  their  obligation  to  render  assistance  to  persons  in 
distress  as  soon  as  reasonably  practicable,  taking  into  account  the  safety  of  the  rescued 
persons and that of the maritime unit itself. 

11 
12 

Resolution MSC.167(78), adopted on 20 May 2004. 
Resolution 1821(2011) of the Parliamentary Assembly of the Council of Europe. 

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2013/0106 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing rules for the surveillance of the external sea borders in the context of 
operational cooperation coordinated by the European Agency for the Management of 
Operational Cooperation at the External Borders of the Members States of the 
European Union  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 77(2)(d) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

The objective of Union policy in the field of the Union external borders is to ensure 
the  efficient  monitoring  of  the  crossing  of  external  borders  including  through  border 
surveillance.  The  purpose  of  border  surveillance  is  to  prevent  unauthorised  border 
crossings, to counter cross-border criminality and to apprehend or take other measures 
against  those  persons  who  have  crossed  the  border  in  an  irregular  manner.  Border 
surveillance  should  be  effective  in  preventing  and  discouraging  persons  from 
circumventing the checks at border crossing points. To this end, border surveillance is 
not limited to the detection of attempts at irregular border crossing but equally extends 
to  steps  such  as  intercepting  ships  suspected  of  trying  to  gain  entry  to  the  Union 
without  submitting  to  border  checks,  as  well  as  arrangements  intended  to  address 
situations  such  as  search  and  rescue  that  may  arise  during  a  border  surveillance 
operation at sea and arrangements intended to bring such an operation to a successful 
conclusion. 

The European Agency for the Management of Operational Cooperation at the External 
Borders  of  the  Member  States  of  the  European  Union  (‘the  Agency’)  established  by 
Council  Regulation  (EC)  No  2007/2004  of  26  October  200413  is  responsible  for  the 
coordination  of  operational  cooperation  between  Member  States  in  the  field  of 
management  of  the  external  borders,  including  as  regards  border  surveillance.  The 
Agency  is  also  responsible  to  assist  Member  States  in  circumstances  requiring 
increased  technical  assistance  at  the  external  borders,  taking  into  account  that  some 
situations may involve humanitarian emergencies and rescue at sea. Specific rules with 
regard to border surveillance activities carried out by maritime and aerial units of one 
Member  State  at  the  sea  border  of  other  Member  States  or  on  the  high  seas  in  the 
context of operational cooperation coordinated by the Agency are necessary to further 
strengthen such cooperation. 

13 

OJ L 349, 25.11.2004, p. 1. 

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(3) 

(4) 

(5) 

(6) 

(7) 

The  establishment  of  the  European  Border  Surveillance  System  (EUROSUR) 
established  by  Regulation  (EU)  No  […/…]  of  the  European  Parliament  and  of  the 
Council  of  […]  should  strengthen  the  information  exchange  and  operational 
cooperation  between  Member  States  and  with  the  Agency.  This  ensures  that  the 
situational awareness and reaction capability of Member States improves considerably, 
also  with  the  support  of  the  Agency,  for  the  purposes  of  detecting  and  preventing 
irregular  migration,  for  combating  cross-border  crime  and  for  contributing  to  protect 
and  save  the  lives  of  migrants  at  their  external  borders.  When  coordinating  border 
surveillance  operations,  the  Agency  should  provide  Member  States  with  information 
and analysis concerning these operations. 

During border surveillance operations, Member States and the Agency should respect 
their  obligations  under  the  United  Nations  Convention  on  the  Law  of  the  Sea,  the 
International Convention for the Safety of Life at Sea, the International Convention on 
Maritime  Search  and  Rescue,  the  United  Nations  Convention  against  Transnational 
Organized Crime and its Protocol against the Smuggling of Migrants by Land, Sea and 
Air, the Convention relating to the Status of Refugees, the European Convention for 
the  Protection  of  Human  Rights  and  Fundamental  Freedoms,  the  International 
Covenant on Civil and Political Rights, the United Nations Convention against Torture 
and Other Cruel, Inhuman or Degrading Treatment or Punishment and other relevant 
international instruments.  

In accordance with 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)14  and  general 
principles of Union law, any measure taken in the course of a surveillance operation 
should  be  proportionate  to  the  objectives  pursued,  non-discriminatory  and  it  should 
fully respect human dignity, fundamental rights and the rights of refugees and asylum 
seekers,  including  the  principle  of  non-refoulement.  Member  States  and  the  Agency 
are  bound  by  the  provisions  of  the  asylum  acquis,  and  in  particular  of  Council 
Directive  2005/85/EC  of  1  December  2005  on  minimum  standards  on  procedures  in 
Member  States  for  granting  and  withdrawing  refugee  status15  with  regard  to 
applications for asylum made in the territory, including at the border or in the transit 
zones of Member States. 

The possible existence of an arrangement between a Member State and a third country 
cannot  absolve  Member  States  from  those  obligations  whenever  they  are  aware  or 
ought  to  be  aware  that  systemic  deficiencies  in  the  asylum  procedure  and  in  the 
reception  conditions  of  asylum  seekers  in  that  third  country  amount  to  substantial 
grounds for believing that the asylum seeker would face a real risk of being subjected 
to inhuman or degrading treatment or where they are aware or ought to be aware that 
this  third  country  is  engaged  in  practices  in  contravention  of  the  principle  of  non-
refoulement. 

During a border surveillance operation at sea, a situation may occur where it will be 
necessary  to  render  assistance  to  persons  found  in  distress.  In  accordance  with 
international law, every State must require the master of a ship flying its flag, in so far 
as  he  can  do  so  without  serious  danger  to  the  ship,  the  crew  or  the  passengers,  to 
render  assistance  to  any  person  found  at  sea  in  danger  of  being  lost  and  to  proceed 
with all possible speed to the rescue of persons in distress. Such assistance should be 

14 
15 

OJ L 105, 13.4.2006, p. 1. 
OJ L 326, 13.12.2005, p. 13. 

EN 

8 

   EN 

                                                 
(8) 

(9) 

provided regardless of the nationality or status of the persons to be assisted or of the 
circumstances in which they are found.  

That  obligation  should  be  carried  out  by  Member  States  in  accordance  with  the 
applicable  provisions  of  international  instruments  governing  search  and  rescue 
situations  and  in  accordance  with  the  requirements  concerning  the  protection  of 
fundamental rights. This Regulation should not affect the responsibilities of search and 
rescue authorities, including for ensuring that coordination and cooperation is carried 
out  in  such  a  way  that  the  persons  rescued  can  be  delivered  to  a  port  or  a  place  of 
safety. 

to  Regulation 

Pursuant 
(EC)  No 2007/2004,  border  surveillance  operations 
coordinated  by  the  Agency  are  conducted  in  accordance  with  an  operational  plan. 
Accordingly,  as  regards  sea  operations,  the  operational  plan  should  include  specific 
information  on  the  application  of  the  relevant  jurisdiction  and  legislation  in  the 
geographical  area  where  the  joint  operation  or  pilot  project  takes  place,  including 
references  to  international  and  Union  law,  regarding  interception,  rescue  at  sea  and 
disembarkation.  In  turn,  this  Regulation  governs  the  issues  of  interception,  rescue  at 
sea  and  disembarkation  in  the  context  of  sea  border  surveillance  operations 
coordinated by the Agency. 

(10)  The  practice  under  Regulation  (EC)  No 2007/2004  is  that  for  each  sea  operation,  a 
coordination  structure  is  established  within  the  host  Member  State,  composed  of 
officers from the host Member State, guest officers and representatives of the Agency, 
including the Coordinating Officer of the Agency. This coordination structure, usually 
called  International  Coordination  Centre,  should  be  used  as  a  channel  for 
communication between the officers involved in the sea operation and the authorities 
concerned. 

(11)  This Regulation respects the fundamental rights and observes the principles recognised 
by the Charter of Fundamental Rights of the European Union, notably the right to life, 
human  dignity,  prohibition  of  torture  and  of  inhuman  or  degrading  treatment  or 
punishment,  right  to  liberty  and  security,  non-refoulement,  non-discrimination,  the 
right to an effective remedy, the right to asylum and the rights of the child.  

(12)  Since the objectives of the action to be taken, namely the adoption of specific rules for 
the surveillance of the sea borders by border guards operating under the coordination 
of  the  Agency,  cannot  be  sufficiently  achieved  by  the  Member  States  due  to  the 
differences  in  their  laws  and  practices,  and  can  therefore,  by  reason  of  the 
multinational character of the operations, be better achieved at the level of the Union, 
the Union may adopt measures, in accordance with the principle of subsidiarity as set 
out in Article 5 of the Treaty. In accordance with the principle of proportionality, as 
set out in that Article, this Regulation does not go beyond what is necessary in order to 
achieve those objectives. 

(13) 

In  accordance  with  Articles  1  and  2  of  Protocol  No 22  on  the  position  of  Denmark, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European Union, Denmark is not taking part in the adoption of this Regulation and is 
not bound by it or subject to its application. Given that this Regulation builds upon the 
Schengen acquis, under Title V of Part Three of the Treaty on the Functioning of the 
European Union, Denmark shall, in accordance with Article 4 of that Protocol, decide 
within a period of six months after the date of adoption of this Regulation whether it 
will implement it in its national law. 

EN 

9 

   EN 

(14)  As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of  the 
provisions of the Schengen acquis within the meaning of the Agreement concluded by 
the Council of the European Union and the Republic of Iceland and the Kingdom of 
Norway  concerning  the  association  of  those  two  States  with  the  implementation, 
application  and  development  of  the  Schengen  acquis16  which  fall  within  the  area 
referred  to  in  Article  1,  point  A,  of  Council  Decision  1999/437/EC17  on  certain 
arrangements for the application of that Agreement. 

(15)  As regards Switzerland, this Regulation constitutes a development of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  between  the  European 
Union,  the  European  Community  and  the  Swiss  Confederation  concerning  the 
association  of  the  Swiss  Confederation  with  the  implementation,  application  and 
development of the Schengen acquis,18 which fall within the area referred to in Article 
1,  point  A,  of  Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council 
Decision  2008/146/EC  of  28  January  2008  on  the  conclusion  of  that  Agreement  on 
behalf of the European Community.19 

(16)  As regards Liechtenstein, this Regulation constitutes a development of the provisions 
of  the  Schengen  acquis  within  the  meaning  of  the  Protocol  signed  between  the 
European  Union,  the  European  Community,  the  Swiss  Confederation  and  the 
Principality  of  Liechtenstein  on  the  accession  of  the  Principality  of  Liechtenstein  to 
the Agreement between the European Union, the European Community and the Swiss 
Confederation  on  the  Swiss  Confederation’s  association  with  the  implementation, 
application  and  development  of  the  Schengen  acquis,  which  fall  within  the  area 
referred to in Article 1, point A, of Decision 1999/437/EC20 read in conjunction with 
Article 3 of Council Decision 2011/350/EU of 7 March 2011 on the conclusion of that 
protocol on behalf of the European Union.21 

(17)  This Regulation constitutes a development of the provisions of the Schengen acquis in 
which  the  United  Kingdom  does  not  take  part,  in  accordance  with  Council  Decision 
2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great 
Britain  and  Northern  Ireland  to  take  part  in  some  of  the  provisions  of  the  Schengen 
acquis.22  The  United  Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not 
bound by it or subject to its application.  

(18)  This Regulation constitutes a development of the provisions of the Schengen acquis in 
which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 
28  February  2002  concerning  the  request  of  Ireland  to  take  part  in  some  of  the 
provisions of the Schengen acquis.23 Ireland is therefore not taking part in its adoption 
and is not bound by it or subject to its application. 

16 
17 
18 
19 
20 
21 
22 
23 

OJ L 176, 10.7.1999, p. 36. 
OJ L 176, 10.7.1999, p. 31. 
OJ L 53, 27.2.2008, p. 52. 
OJ L 53, 27.2.2008, p. 1. 
OJ L 176, 10.7.1999, p. 31. 
OJ L 160, 18.6.2011, p. 19. 
OJ L 131, 1.6.2000, p. 43. 
OJ L 64, 7.3.2002, p. 20. 

EN 

10 

   EN 

                                                 
HAVE ADOPTED THIS REGULATION: 

CHAPTER I 

GENERAL PROVISIONS 

Article 1 

Scope 

This Regulation shall apply to border surveillance operations carried out by Member States at 
their  sea  external  borders  in  the  context  of  operational  cooperation  coordinated  by  the 
European Agency for the Management of Operational Cooperation at the External Borders of 
the Member States of the European Union. 

Article 2 

Definitions 

For the purpose of this Regulation, the following definitions shall apply: 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

‘Agency’  means  the  European  Agency  for  the  Management  of  Operational 
Cooperation  at  the  External  Borders  of  the  Member  States  of  the  European  Union 
established by Regulation (EC) No 2007/2004; 

‘sea operation’ means a joint operation, pilot project or rapid intervention carried out 
by  Member  States  for  the  surveillance  of  their  external  sea  borders  under  the 
coordination of the Agency; 

‘host Member State’ means a Member State in which a sea operation takes place or 
from which it is launched; 

‘participating  Member  State’  means  a  Member  State  which  participates  in  a  sea 
operation by providing assets or human resources, but  which is  not a host Member 
State; 

‘participating unit’ means a maritime or aerial unit of the host Member State or of a 
participating Member State; 

‘International  Coordination  Centre’  means  the  coordination  structure  established 
within the host Member State for the coordination of the sea operation; 

‘National  Coordination  Centre’  means  the  national  coordination  centre  established 
for  the  purposes  of  the  European  Border  Surveillance  System  (EUROSUR)  in 
accordance with Regulation (EU) No […/…]; 

‘ship’ means a boat, vessel or any other craft used at sea; 

‘stateless  ship’  means  a  ship  without  nationality  or  assimilated  to  a  ship  without 
nationality when the ship has not been granted by any State the right to fly its flag or 
when  it  sails  under  the  flags  of  two  or  more  States,  using  them  according  to 
convenience; 

10. 

‘Protocol  against  the  Smuggling  of  Migrants’  means  the  Protocol  against  the 
Smuggling  of  Migrants  by  Land,  Sea  and  Air,  supplementing  the  United  Nations 
Convention  against  Transnational  Organised  Crime  signed  in  Palermo,  Italy  in 
December 2000; 

EN 

11 

   EN 

11. 

12. 

‘place  of  safety’  means  a  location  where  rescue  operations  are  considered  to 
terminate and where the survivors’ safety of life including as regards the protection 
of their fundamental rights is not threatened, where their basic human needs can be 
met and from which transportation arrangements can be made for the survivors’ next 
destination or final destination; 

‘Rescue  Coordination  Centre’  means  a  unit  responsible  for  promoting  efficient 
organisation of search and rescue services and for coordinating the conduct of search 
and  rescue  operations  within  a  search  and  rescue  region  as  defined  in  the  1979 
International Convention on Maritime Search and Rescue. 

CHAPTER II 

GENERAL RULES 

Article 3  

Safety at sea 

Measures taken for the purpose of a sea operation shall be conducted in a way that does not 
put at risk the safety of the persons intercepted or rescued and the safety of the participating 
units. 

1. 

2. 

3. 

4. 

5. 

Article 4 

Protection of fundamental rights and the principle of non-refoulement 

No person shall be disembarked in, or otherwise handed over to the authorities of a 
country where there is a serious risk that such person would be subjected to the death 
penalty,  torture  or  other  inhuman  or  degrading  treatment  or  punishment  or  from 
which there is a serious risk of expulsion, removal or extradition to another country 
in contravention of the principle of non-refoulement. 

Before  deciding  on  disembarkation  in  a  third  country,  the  participating  units  shall 
take into account the general situation in that third country and intercepted or rescued 
persons shall not be disembarked in that third country when the host Member State 
or  the  participating  Member  States  are  aware  or  ought  to  be  aware  that  this  third 
country is engaged in practices as described in paragraph 1. 

In case of disembarkation in a third country, the participating units shall identify the 
intercepted or rescued persons and assess their personal circumstances to the extent 
possible before disembarkation. They shall inform the intercepted or rescued persons 
of  the  place  of  disembarkation  in  an  appropriate  way  and  they  shall  give  them  an 
opportunity to express any reasons for believing that disembarkation in the proposed 
place would be in violation of the principle of non-refoulement. 

The  participating  units  shall  address  the  special  needs  of  children,  victims  of 
trafficking,  persons  in  need  of  urgent  medical  assistance,  persons  in  need  of 
international  protection  and  other  persons  in  a  particularly  vulnerable  situation 
throughout the sea operation. 

Border guards participating in a sea operation shall be trained with regard to relevant 
provisions  of  fundamental  rights,  refugee  law  and  the  international  legal  regime  of 
search and rescue. 

EN 

12 

   EN 

CHAPTER III 

SPECIFIC RULES 

Article 5 

Detection 

Upon detection, the participating units shall approach a ship suspected of crossing or 
intending  to  cross  the  border  in  an  irregular  manner  to  observe  its  identity  and 
nationality and, pending further measures, it shall be surveyed at a prudent distance. 
The participating units shall communicate information about the ship immediately to 
the International Coordination Centre. 

Where the ship is about to enter or it has entered the territorial sea or the contiguous 
zone of a Member State that is not participating in the sea operation, the participating 
units shall communicate information about the ship to the International Coordination 
Centre, which shall convey this information to the National Coordination Centre of 
the Member State concerned. 

The  participating  units  shall  communicate  information  about  any  ship  suspected  of 
being engaged in illegal activities at sea outside the scope of a sea operation to the 
International  Coordination  Centre,  which  shall  convey  this  information  to  the 
National Coordination Centre of the Member State or Member States concerned. 

Article 6 

Interception in the territorial sea  

In the territorial sea of the host Member State or a participating Member State, the 
participating units shall take one or more of the following measures when there are 
reasonable grounds to suspect that a ship is carrying persons intending to circumvent 
checks at border crossing points or is engaged in the smuggling of migrants by sea: 

(a) 

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

(b) 

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

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

(d) 

seizing the ship and apprehending persons on board; 

(e) 

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

(f) 

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

The host Member State or the participating Member State on whose territorial sea the 
interception takes place shall authorise the measures referred to in paragraph 1 and it 
the  International 
shall 

the  participating  unit  appropriately 

through 

instruct 

1. 

2. 

3. 

1. 

2. 

EN 

13 

   EN 

3. 

4. 

1. 

2. 

3. 

Coordination  Centre.  The  participating  unit  shall  inform  the  host  Member  State, 
through  the  International  Coordination  Centre,  whenever  the  master  of  the  ship 
requests that a diplomatic agent or a consular officer of the flag State be notified. 

Where there are reasonable grounds to suspect that a ship without nationality or one 
that may be assimilated to a ship without nationality is carrying persons intending to 
circumvent  the  checks  at  border  crossing  points  or  is  engaged  in  the  smuggling  of 
migrants by sea, the host Member State or the participating Member State in whose 
territorial  sea  the  stateless  ship  is  intercepted  shall  authorise  and  instruct  the 
participating unit to stop it and to take any of the measures laid down in paragraph 1. 

Any  operational  activities  in  the  territorial  sea  of  a  Member  State  that  is  not 
participating  in  the  sea  operation  shall  be  conducted  in  accordance  with  the 
authorisation  of  that  Member  State.  The  International  Coordination  Centre  shall  be 
informed  of  any  communication  with  that  Member  State  and  of  the  subsequent 
course of action authorised by that Member State. 

Article 7 

Interception on the high seas 

On  the  high  seas,  the  participating  units  shall  take  one  or  more  of  the  following 
measures when there are reasonable grounds to suspect that a ship is engaged in the 
smuggling  of  migrants  by  sea  subject  to  the  authorisation  of  the  flag  State  in 
accordance with the Protocol against the Smuggling of Migrants: 

(a) 

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

(b) 

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

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

(d) 

seizing the ship and apprehending persons on board; 

(e) 

(f) 

(g) 

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

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

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

Where the ship is flying the flag or displays the marks of registry of the host Member 
State or of a participating Member State, that Member State shall, after confirming 
the nationality of the ship, authorise the measures laid down in paragraph 1. 

Where the ship is flying the flag or displays the marks of registry of a Member State 
that is not participating in the sea operation or of a third country, the host Member 
State  or  a  participating  Member  State,  depending  on  whose  participating  unit  has 
intercepted  this  ship,  shall  notify  the  flag  State,  it  shall  request  confirmation  of 
registry  and,  if  nationality  is  confirmed,  it  shall  request  authorisation  from  the  flag 

EN 

14 

   EN 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

State to take any of the measures laid down in paragraph 1. The host Member State 
or the participating Member State shall inform the International Coordination Centre 
of any communication with the flag State and of the measures authorised by the flag 
State. 

Where, though flying a foreign flag or refusing to show its flag, there are reasonable 
grounds  to  suspect  that  the  ship  is,  in  reality,  of  the  same  nationality  as  a 
participating unit, that participating unit shall verify the ship’s right to fly its flag. To 
this  end,  it  may  approach  the  suspected  ship.  If  suspicion  remains  after  the 
documents have been checked, it shall proceed to a further examination on board the 
ship,  which  must  be  carried  out  with  all  possible  consideration.  The  participating 
Member  State  of  which  the  ship  is  allegedly  flying  the  flag  shall  be  contacted 
through the appropriate channels. 

Where, though flying a foreign flag or refusing to show its flag, there are reasonable 
grounds to suspect that the ship is, in reality, of the nationality of the host Member 
State  or  another  participating  Member  State,  the  participating  unit  shall  verify  the 
ship’s right to fly its flag upon authorisation of that Member State. 

Where,  in  the  cases  referred  to  in  paragraphs  4  or  5,  the  suspicions  regarding  the 
nationality  of  the  ship  prove  to  be  founded,  the  host  Member  State  or  the 
participating Member State shall authorise the measures laid down in paragraph 1. 

Pending  or  in  the  absence  of  authorisation  of  the  flag  State,  the  ship  shall  be 
surveyed at a prudent distance. No other measures shall be taken without the express 
authorisation of the flag State, except those necessary to relieve imminent danger to 
the  lives  of  persons  or  those  measures  which  derive  from  relevant  bilateral  or 
multilateral agreements. 

Where there are reasonable grounds to suspect that a ship without nationality or one 
that may be assimilated to a ship without nationality is engaged in the smuggling of 
migrants  by  sea,  the  participating  unit  may  board  and  stop  the  ship  with  a  view  to 
verifying  its  statelessness.  If  suspicions  prove  to  be  founded  further  appropriate 
measures as laid down in paragraph 1 may be taken in accordance with national law 
and international law. 

A  Member  State  that  has  taken  any  measure  in  accordance  with  paragraph  1  shall 
promptly inform the flag State of the results of that measure. 

The national official representing the host Member State or a participating Member 
State at the International Coordination Centre shall be designated under national law 
as an authority for the authorisation to verify the right of a ship to fly the flag of the 
Member State concerned or to take any of the measures laid down in paragraph 1. 

Where the grounds for suspecting that a ship is engaged in the smuggling of migrants 
on  the  high  seas  prove  to  be  unfounded  or  the  participating  unit  does  not  have 
jurisdiction to act, but there remains a reasonable suspicion that the ship is carrying 
persons intending to reach the border of a Member State and to circumvent checks at 
border  crossing  points,  that  ship  shall  continue  to  be  monitored.  The  International 
Coordination  Centre  shall  communicate  information  about  the  ship  to  the  National 
Coordination Centre of the Member States towards which it is directed. 

Article 8 

Interception in the contiguous zone 

EN 

15 

   EN 

1. 

2. 

In  the  zone  contiguous  to  the  territorial  sea  of  a  Member  State,  which  is  a  host 
Member  State  or  a  participating  Member  State,  the  measures  laid  down  in  Article 
6(1) shall be taken in accordance with Article 6(2). 

The measures laid down in Article 6(1) shall not be taken in the contiguous zone of a 
Member State that is not participating in the sea operation without the authorisation 
of  that  Member  State.  The  International  Coordination  Centre  shall  be  informed  of 
any communication with that Member State and of the subsequent course of action 
authorised by that Member State. 

3. 

Where a stateless ship is transiting the contiguous zone, Article 7(8) shall apply. 

Article 9 

Search and rescue situations  

1. 

2. 

3. 

4. 

During  a  sea  operation,  participating  units  shall  render  assistance  to  any  ship  or 
person  in  distress  at  sea.  They  shall  do  so  regardless  of  the  nationality  or  status  of 
such a person or the circumstances in which that person is found. 

When  facing,  in  the  course  of  a  sea  operation,  a  situation  of  uncertainty,  alert  or 
distress as regards a ship or any person on board, the participating unit shall forward 
as  soon  as  possible  all  available  information  to  the  Rescue  Coordination  Centre 
responsible for the search and rescue region in which the situation occurs. 

A ship or the persons on board shall be considered to be in a situation of uncertainty 
in particular when: 

(a) 

doubt exists as to the safety of a ship or the persons on board; or  

(b) 

there is lack of information concerning progress or position of a ship. 

A  ship  or  the  persons  on  board  shall  be  considered  to  be  in  a  situation  of  alert  in 
particular when: 

(a) 

apprehension exists as to the safety of a ship or the persons on board because 
of information that serious difficulties exist, but not to the extent that a distress 
situation is likely; or  

(b) 

there  is  continued  lack  of  information  concerning  progress  or  position  of  a 
ship. 

5. 

A ship or the persons on board shall be considered to be in a situation of distress in 
particular when: 

(a) 

(b) 

(c) 

positive  information  is  received  that  a  ship  or  a  person  on  board  is  in  danger 
and needs immediate assistance; or  

attemps to establish contact with the ship fail and unsuccessful inquiries point 
to the probability that the ship is in distress; or 

information is received which indicates that the operating efficiency of the ship 
has been impaired to the extent that a distress situation is likely. 

6. 

When assessing the situation for the purposes of paragraphs 3 to 5, participating units 
shall take all relevant elements into account, including: 

(a) 

the existence of a request for assistance; 

EN 

16 

   EN 

(b) 

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

(c) 

the number of passengers in relation to the type and condition of the ship; 

(d) 

the availability of necessary supplies such as fuel, water, food to reach a shore; 

(e) 

(f) 

(g) 

(h) 

(i) 

(j) 

the presence of qualified crew and command of the ship; 

the  availability  and  capability  of  safety,  navigation  and  communication 
equipment; 

the presence of passengers in urgent need of medical assistance; 

the presence of deceased passengers; 

the presence of pregnant women or children; 

the weather and sea conditions, including weather and marine forecasts. 

Participating  units  shall  promptly  communicate  their  assessment  of  the  situation  to 
the  responsible  Rescue  Coordination  Centre.  While  awaiting  instructions  from  the 
Rescue  Coordination  Centre,  participating  units  shall  take  all  the  appropriate 
measures to ensure the safety of the persons concerned. 

The  existence  of  a  distress  situation  shall  not  be  exclusively  dependent  on  or 
determined by an actual request for assistance. Where, despite a ship being perceived 
to  be  in  a  distress  situation,  the  persons  on  board  refuse  to  accept  assistance,  the 
participating unit shall inform the Rescue Coordination Centre and continue to fulfil 
a duty of care by surveying the ship at a prudent distance and by taking any measure 
necessary for the safety of the persons concerned, while avoiding to take any action 
that might aggravate the situation or increase the chances of injury or loss of life. 

Where the Rescue Coordination Centre of the third country responsible for the search 
and rescue region does not respond to the notification transmitted by the participating 
unit,  the  latter  shall  contact  the  Rescue  Coordination  Centre  of  the  host  Member 
State  unless  another  Rescue  Coordination  Centre  is  better  placed  to  assume 
coordination of the search and rescue situation. 

The participating units shall inform the International Coordination Centre as soon as 
possible  of  any  contact  with  the  Rescue  Coordination  Centre  and  of  the  course  of 
action taken by them. 

Where the ship cannot or can no longer be considered as being in a distress situation 
or the search and rescue operation has been concluded, the participating unit shall, in 
consultation with the International Coordination Centre, resume the sea operation. 

Article 10 

Disembarkation 

The modalities for the disembarkation of the persons intercepted or rescued in a sea 
operation  shall  be  set  out 
the  operational  plan.  Those  modalities  for 
disembarkation shall not have the effect of imposing obligations on Member States 
not participating in the sea operation unless they expressly provide authorisation for 
measures  to  be  taken  in  their  territorial  sea  or  contiguous  zone  in  accordance  with 
Article 6(4) or Article 8(2).  

in 

7. 

8. 

9. 

10. 

11. 

1. 

EN 

17 

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2. 

3. 

4. 

5. 

In the case of interception in the territorial sea or the contiguous zone as laid down in 
Article 6(2) or Article 8(1), disembarkation shall take place in the host Member State 
or in the participating Member State in whose territorial waters or contiguous zone 
the interception takes place. 

In the case of interception in the territorial sea or the contiguous zone as laid down in 
Article 6(4) or Article 8(2), disembarkation shall take place in the Member State in 
whose territorial waters or contiguous zone the interception takes place. 

Subject to the application of Article 4, in the case of interception on the high seas as 
laid  down  in  Article  7,  disembarkation  may  take  place  in  the  third  country  from 
which the ship departed. If that is not possible, disembarkation shall take place in the 
host Member State. 

In the case of search and rescue situations as laid down in Article 9, the participating 
units  shall  cooperate  with  the  responsible  Rescue  Coordination  Centre  to  provide  a 
suitable port or place of safety for the rescued persons and to ensure their rapid and 
effective disembarkation.  

Without prejudice to the responsibility of the Rescue Coordination Centre, the host 
Member State and the participating Member States shall as soon as possible ensure 
that a port or place of safety is identified taking into account relevant factors, such as 
distances to the closest ports or places of safety, risks and the circumstances of the 
case.  

Where the participating unit is not released of its obligation referred to in Article 9(1) 
as  soon  as  reasonably  practicable,  taking  into  account  the  safety  of  the  rescued 
persons and that of the participating unit itself, it shall be authorised to disembark the 
rescued persons in the host Member State. 

The  participating  units  shall  inform  the  International  Coordination  Centre  of  the 
presence  of  any  persons  within  the  meaning  of  Article  4(1),  and  the  International 
Coordination  Centre  shall  convey  that  information  to  the  competent  national 
authorities.  On  the  basis  of  that  information,  the  operational  plan  should  determine 
which follow-up measures may be taken. 

CHAPTER IV 

FINAL PROVISIONS 

Article 11 

Entry into force 

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

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

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

EN 

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