Proposal for a COUNCIL DECISION on the conclusion of an Agreement between the European Union and Montenegro on operational activities carried out by the European Border and Coast Guard Agency in Montenegro
Date: 2023-09-29
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: European cooperation, Frontex, Montenegro, agreement (EU), border control, external border of the EU, migration control, operation of the Institutions, ratification of an agreement

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   EUROPEAN COMMISSION  Brussels, 29.9.2023  COM(2023) 261 final/2 2023/0102 (NLE)  CORRIGENDUM This document corrects document COM(2023)261 final of 05.04.2023 Concerns all language versions Addition of the reference to the Commission Staff Working Document SWD(2023) 755  linked to the Proposal The text shall read as follows   Proposal for a COUNCIL DECISION on the conclusion of an Agreement between the European Union and Montenegro on operational activities carried out by the European Border and Coast Guard Agency in Montenegro {SWD(2023) 755 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

One  of  the  tasks  of  the  European  Border  and  Coast  Guard  Agency  (the  ‘Agency’)  is  to 
cooperate  with  third  countries  in  relation  to  the  areas  covered  by  the  European  Border  and 
Coast  Guard Regulation  (Regulation  (EU) 2019/1896) (the ‘Regulation’)  ‘including  through 
the  possible  operational  deployment  of  border  management  teams  in  third  countries.’1 
Specifically,  the  Agency,  as  part  of  the  European  Border  and  Coast  Guard,  is  to  ensure 
European integrated border management2, one component of which is cooperation with third 
countries in the areas covered by the Regulation, focusing in particular on neighbouring third 
countries  and  countries  of  origin  or  transit  for  irregular  migration3.  The  Agency  may 
cooperate  with  the  authorities  of  third  countries  competent  in  matters  covered  by  the 
Regulation  to  the  extent  required  for  the  fulfilment  of  its  tasks4  and  may  carry  out  actions 
related to European integrated border management on the territory of a third country subject 
to the agreement of that third country. 

Pursuant  to  Article  73(3)  of  the  Regulation,  in  circumstances  requiring  the  deployment  of 
border  management  teams  from  the  European  Border  and  Coast  Guard  standing  corps  to  a 
third  country  where  the  members  of  the  teams  will  exercise  executive  powers,  a  status 
agreement  shall be concluded by the Union with  the third country concerned. Such  a status 
agreement should be based on the model that the Commission has drawn up as provided for in 
Article  76(1)  of  the  same  regulation.  The  Commission  adopted  this  model  on  21  December 
20215. 

Montenegro  lies  on  the  Western  Balkans  migration  route,  which  sees  significant  irregular 
migration  towards  the  European  Union,  both  via  land  and  across  the  Adriatic  Sea.  In  2022, 
144  118  irregular  border  crossings  were  registered  by  the  Agency  at  the  European  Union’s 
external  borders  on  the  Western  Balkan  route.  Irregular  migrants  are  targeted  by  organised 
criminal groups engaged in people smuggling and are at great risk of human rights violations. 
The high level of irregular arrivals and asylum applications is also putting significant pressure 
on some European Union Member States, leading to the need for common, coordinated action 
at Union level based on the principles of fair sharing of responsibility and solidarity enshrined 
in the Pact on Migration and Asylum6.  

Starting in 2017, the European Commission negotiated a status agreement with Montenegro 
on the basis of the previous European Border and Coast Guard Regulation (Regulation (EU) 
2016/16247). This  agreement was signed in  October 2019;  the Council adopted the  relevant 
decision on its conclusion in May 2020 and it entered into force on 1 July 20208.  

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Article  10(1)(u)  of  Regulation  (EU)  2019/1896  of  the  European  Parliament  and  of  the  Council  of  13 
November 2019 on the European Border and Coast Guard. 
Article 71(1) of Regulation (EU) 2019/1896. 
Article 3(g) of Regulation (EU) 2019/1896. 
Article 73(1) of Regulation (EU) 2019/1896. 
Communication COM(2021) 829 - Model status agreement as referred to in Regulation (EU) 2019/1896 
of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast 
Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624. 
Migration  and  Asylum  Package:  New  Pact  on  Migration  and  Asylum  documents  adopted  on  23 
September 2020 | European Commission (europa.eu)  
Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on 
the  European  Border  and  Coast  Guard  and  amending  Regulation  (EU)  2016/399  of  the  European 

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Joint operations conducted on the basis of this status agreement are limited to Montenegro’s 
borders  with  the  European  Union  –  presently  14 km  of  land  border  with  the  Republic  of 
Croatia  and  portions  of  the  Adriatic  Sea.  The  Agency  has  launched  two  joint  operations  in 
Montenegro:  Operation  Montenegro  Land  at  Montenegro’s  land  border  with  Croatia 
(launched on 15 July 2020) and Operation Montenegro Sea along its maritime boundary with 
Italy (launched 14 October 2020).  

Already  in  October  2021,  the  Montenegrin  Ministry  of  the  Interior  informed  the  European 
External Action Service that it wished to start negotiations on a status agreement based on the 
new  European  Border  and  Coast  Guard  Regulation  (EU)  2019/1896,  which  allows  also  for 
joint  operations  at  borders  other  than  those  with  the  European  Union,  in  order  to  allow  for 
Agency deployments to the full length of the country’s borders. Therefore, on 20 May 2022, 
the Commission services presented the model status agreement under the 2019 Regulation to 
Montenegrin  authorities,  highlighting  the  differences  in  relation  to  the  status  agreement 
currently in force.  

On 18 November 2022, the Commission received Council authorisation to open negotiations 
with Montenegro as well as Albania, Serbia and Bosnia and Herzegovina, for an agreement 
on operational activities to be carried out by the European Border and Coast Guard Agency in 
those countries  (i.e., a status agreement on the basis of  Regulation  (EU)  2019/1896). On 30 
November  2022,  a  kick-off  meeting  was  organised  by  the  Commission  with  the  four 
aforementioned  countries,  in  which  the  main  novelties  of  the  model  status  agreement  were 
presented.  The  European  Commission,  on  behalf  of  the  European  Union,  and  Montenegro 
held formal negotiations in view of an agreement on 23 and 24 February 2023 in Podgorica. 
The Commission considers that the objectives set by the Council in its negotiating directives 
were attained and that the agreement is acceptable for the Union.  

The attached proposal for a Council Decision constitutes the legal basis for the conclusion of 
the Agreement between the European Union and Montenegro on operational activities carried 
out by the European Border and Coast Guard Agency in Montenegro. 

Situation of the Schengen associated countries  

The  present  proposal  builds  upon  the  Schengen  acquis  in  the  field  of  management  of  the 
external borders. The Union has nevertheless no power to conclude a status agreement with 
Montenegro  in  a  manner  that  binds  Norway,  Iceland,  Switzerland  and  Liechtenstein.  To 
ensure  that  border  guards  and  other  relevant  staff  sent  by  those  countries  to  Montenegro 
benefit from the same status as provided for in the future status agreement, joint declarations 
attached  to  the  status  agreement  should  state  the  desirability  that  similar  agreements  be 
concluded between Montenegro and each of those associated countries. 

This  Decision constitutes  a development  of the  provisions of the Schengen  acquis  in  which 
Ireland  does  not  take  part,  in  accordance  with  Council  Decision  2002/192/EC9;  Ireland  is 
therefore not taking part in the adoption of this Decision and is not bound by it nor subject to 

Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament 
and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ L 
251, 16.9.2016, p. 1–76). 
Council Decision (EU) 2020/729 of 26 May 2020 on the conclusion of the Status Agreement  between 
the European Union and Montenegro on actions carried out by the European Border and Coast Guard 
Agency in Montenegro. 
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of 
the provisions of the Schengen acquis, OJ L 64, 7.3.2002, p. 20. 

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its  application.  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 Decision and is  not 
bound by it nor subject to its application. 

• 

Consistency with other Union policies 

Reinforcing controls on the territory of Montenegro will positively impact the management of 
the Union’s external borders as well as the borders of Montenegro itself. The conclusion of a 
status agreement would tie into the wider objectives and priorities for cooperation as set out in 
the European Union’s Stabilisation and Association Agreement with Montenegro.10  

The conclusion of a status agreement could also support the wider efforts and commitments of 
the  European  Union  to  further  develop  capabilities  in  order  to  contribute  to  crisis  response 
management  and  promote  convergence  on  foreign  and  security  matters  between  the  Union 
and Montenegro. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  for  this  proposal  is  Article  77(2)(b)  and  (d)  and  Article 79(2)(c)  TFEU  in 
conjunction with Article 218(6)(a) TFEU.  

The competence of the European Union to conclude a status agreement is explicitly provided 
for in Article 73(3) of Regulation (EU) 2019/1896, which states, ‘[i]n circumstances requiring 
the deployment of border management teams from the standing corps to a third country where 
the  members  of  the  teams  will  exercise  executive  powers,  a  status  agreement  […]  shall  be 
concluded by the Union with the third country concerned’.  

Pursuant to Article 3(2) of the Treaty on the Functioning of the European Union, the Union 
shall  have  exclusive  competence  for  the  conclusion  of  an  international  agreement  when  its 
conclusion is provided for in a legislative act of the Union. Article 73(3) of Regulation (EU) 
2019/1896  provides  for  a  status  agreement  to  be  ‘concluded  by  the  Union  with  the  third 
country  concerned’.  Consequently,  the  agreement  to  be  signed  and  concluded  with 
Montenegro  falls  within  the  exclusive  power  of  the  European  Union.  In  accordance  with 
Article  73(3)  of  the  Regulation  (EU)  2019/1896,  the  proposed  status  agreement  is  based  on 
the model agreement adopted by the Commission in December 202111, taking into account the 
existing status agreement with Montenegro12. 

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Subsidiarity and proportionality  

The need for a common approach 

A  status  agreement  will  allow  for  the  deployment  in  Montenegro  of  European  Border  and 
Coast  Guard  teams  by  the  European  Border  and  Coast  Guard  Agency,  using  all  the 
possibilities  offered  by  Regulation  (EU)  2019/1896.  Without  such  a  tool,  only  bilateral 
deployments  by Member States can be used to  develop  and implement  European integrated 
border  management  and  support  Montenegro  in  managing  a  significant  number  of  migrants 
seeking to transit its territory outside of the very limited geographic scope of the current status 

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OJ L 108, 29.4.2010, p. 3 
Communication COM(2021) 829. 
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:22020A0603(01)&rid=2  

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agreement  with  Montenegro.  A  common  approach  is  therefore  needed  to  better  manage  the 
borders of Montenegro. 

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

As this will be a new agreement, no evaluation or fitness checks of existing instruments could 
be carried out. No impact assessment is required for the negotiation of a status agreement.  

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Fundamental rights 

In  line  with  recital  88  of  Regulation  (EU)  2019/1896,  the  Commission  will  assess  the 
fundamental  rights  situation  relevant  to  the  areas  covered  by  the  status  agreement  in 
Montenegro and inform the European Parliament thereof. 

The envisaged agreement will contain practical measures related to the respect of fundamental 
rights and shall ensure that fundamental rights are fully respected during activities organised 
on the basis of the agreement. The agreement will provide for an independent  and effective 
complaints  mechanism  in  accordance  with  the  relevant  provisions  of  Regulation  (EU) 
2019/1896 to monitor and ensure respect for fundamental rights in all the activities organised 
on the basis of the agreement. 

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Data protection 

The  European  Data  Protection  Supervisor  will  be  consulted  on  the  provisions  of  the  status 
agreement related to the transfer of data if those provisions differ substantially from the model 
status agreement. 

4. 

BUDGETARY IMPLICATIONS 

A  status  agreement  in  and  of  itself  does  not  entail  any  financial  implications.  The  actual 
deployment of border guard teams on the basis of an operational plan would entail costs borne 
by  the  budget  of  the  Agency.  Future  operations  under  a  status  agreement  will  be  financed 
through the Agency’s own resources as provided for in the Union's annual budget cycle. 

The Union contribution for the European Border and Coast Guard Agency already forms part 
of  the  Union’s  budget  as  laid  out  in  the  Council  Conclusions  to  the  Multiannual  Financial 
Framework Agreement. 

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OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  Commission  will  ensure  proper  monitoring  of  the  implementation  of  the  status 
agreement. 

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2023/0102 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of an Agreement between the European Union and Montenegro on 
operational activities carried out by the European Border and Coast Guard Agency in 
Montenegro 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 77(2)(b) and (d) and Article 79(2)(c) in conjunction with Article 218(6)(a)thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

In  accordance with  Council Decision  2023/XXX  of [...], the Agreement  between the 
European Union and Montenegro on operational activities carried out by the European 
Border and Coast Guard Agency in Montenegro (the ‘Agreement’) was signed by [...] 
on [...], subject to its conclusion at a later date. 

Pursuant  to  Article  73(3)  of  Regulation  (EU)  2019/1896 of  the  European  Parliament 
and of the Council13,in circumstances requiring the deployment of border management 
teams  from  the  standing  corps  of  the  European  Border  and  Coast  Guard  to  a  third 
country  where  the  members  of  the  teams  will  exercise  executive  powers,  a  status 
agreement  is  to  be  concluded  by  the  Union  with  the  third  country  concerned  on  the 
basis of Article 218 of the Treaty.  

This Decision constitutes a development of the provisions of the Schengen acquis in 
which Ireland does not take part, in accordance with Council Decision 2002/192/EC14; 
Ireland is therefore not taking part in the adoption of this Decision and is not bound by 
it nor subject to its application. 
In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark15, 
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 Decision and is not 
bound  by  it  or  subject  to  its  application.  Given  that  this  Decision  builds  upon  the 
Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide 
within a period of six months after the Council has decided on this Decision whether it 
will implement it in its national law. 

(5) 

The Agreement should be approved on behalf of the Union, 

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Regulation  (EU)  2019/1896  of  the  European  Parliament  and  of  the  Council  of  13  November  2019  on  the 
European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 
295, 14.11.2019, p. 1. 
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the 
provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20). 
Protocol (No 22) on the position of Denmark, OJ C 326, 26.10.2012, p. 299–303. 

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HAS ADOPTED THIS DECISION:  

Article 1 

The  Agreement  between  the  European  Union  and  Montenegro  on  operational  activities 
carried  out  by  the  European  Border  and  Coast  Guard  Agency  in  Montenegro  (the 
‘Agreement’), is hereby approved on behalf of the Union16. 

The Commission shall, on behalf of the Union, notify Montenegro, as provided for in Article 
22(1)  of  the  Agreement  in  order  to  express  the  consent  of  the  Union  to  be  bound  by  the 
Agreement. 

Article 2 

This Decision shall enter into force on the day of its adoption17.  

Article 3 

Done at Brussels, 

For the Council 
The President 

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The text of the Agreement is published in OJ L,, p. . 
The date of entry into force of the Agreement will be published in the Official Journal of the European    
Union by the General Secretariat of the Council. 

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