COMMISSION STAFF WORKING DOCUMENT Fundamental rights assessment of Montenegro linked to the Proposal for a Council decision on the conclusion, on behalf of the Union, of the Agreement between the European Union and Montenegro on operational activities carried out by the European Border and Coast Guard Agency in Montenegro of 5 April 2023 Accompanying the document 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  SWD(2023) 755 final  COMMISSION STAFF WORKING DOCUMENT Fundamental rights assessment of Montenegro linked to the Proposal for a Council decision on the conclusion, on behalf of the Union, of the Agreement between the European Union and Montenegro on operational activities carried out by the European Border and Coast Guard Agency in Montenegro of 5 April 2023  Accompanying the document 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 {COM(2023) 261 final/2}  
 
 
Pursuant  to  Recital  (88)  of  the  European  Border  and  Coast  Guard  Regulation  (the 
‘Regulation’),1 where the Commission recommends that the Council authorise it to negotiate 
a  status  agreement  with  a  third  country,  it  should  assess  the  fundamental  rights  situation 
‘relevant to the areas covered by the status agreement in that third country’.2 

On 3 November 2022, the Commission adopted a recommendation to the Council authorising 
the  Commission  to  negotiate  a  status  agreement  with  Montenegro.  On  18  November  2022, 
the  Council  authorised  the  opening  of  negotiations.  The  negotiations  of  the  Agreement 
between  the  European  Union  and  Montenegro  on  operational  activities  carried  out  by  the 
European Border and Coast Guard Agency (‘the Agency’) in Montenegro (the ‘Agreement’) 
were successfully finalised on 24 February 2023. In accordance with Council Decision (EU) 
2023/1040  of  15 May  2023  on  the  signing,  on  behalf  of  the  Union,  and  provisional 
application  of  the  Agreement  between  the  European  Union  and  Montenegro  on  operational 
activities carried out by the European Border and Coast Guard Agency in Montenegro3, the 
Agreement  was  signed  on  16  May  2023,  subject  to  its  conclusion  at  a  later  date.  The 
agreement  became  provisionally  applicable  on  1 July  2023  (i.e.,  the  first  day  of  the  second 
month  after  its  signature)  and  will  enter  into  force  after  it  has  been  concluded  by  both 
contracting parties. 

This  assessment  aims  to  determine  the  situation  in  Montenegro  in  view  of  operational 
activities  of  the  Agency  in  this  country,  in  particular  whether  the  situation  in  Montenegro 
does not pose a risk of serious or persistent violations being committed of fundamental rights 
or  of  international  protection  obligations.  It  should  be  noted  that  Frontex  personnel  are 
already  deployed  in  Montenegro  to  support  border  management  activities  under  the  current 
Status  Agreement  between  Montenegro  and  the  European  Union4  and  the  working 
arrangement  for  cooperation  between  the  Police  Directorate  of  Montenegro  and  Frontex5, 
both  agreed  upon  prior  to  the  entry  into  force  of  the  current  European  Border  and  Coast 
Guard  Regulation  in  2019.  Montenegro  was  the  first  non-Member  State  to  host  a  fully-
fledged maritime Frontex joint operation, with the objective to strengthen surveillance at the 
country’s  blue  borders.  However,  the  2019  Regulation  provides  for  a  broader  scope  of 
potential cooperation under a Status Agreement, particularly the potential deployment of the 
EBCG Standing Corps anywhere on the territory of the third country, rather than just along its 
borders with the European Union. 

This assessment is based on information, data, and reports available to the Commission on the 
protection of human rights in Montenegro, in particular, the international legal framework for 
the  protection  of  such  rights  and  obligations  applicable  in  its  legal  order.  This  assessment 

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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 (“Regulation (EU) 2019/1896”) 
Regulation (EU) 2019/1896, Recital 88. 
Council  Decision  (EU)  2023/1040  of  15  May  2023  on  the  signing,  on  behalf  of  the  Union,  and  provisional 
application of the Agreement between the European Union and Montenegro on operational activities carried out by 
the European Border and Coast Guard Agency in Montenegro, OJ L 140, 30.5.2023, p. 1 
 Status Agreement between the European Union and Montenegro on actions carried out by the European Border and 
Coast Guard Agency in Montenegro, OJ L 173, 3.6.2020, p. 3 
Frontex, Working Arrangement establishing cooperation between the European Agency for the Management of 
Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and the 
Police Directorate of Montenegro, 18 June 2009. Available at: https://prd.frontex.europa.eu/wp-
content/uploads/wa_with_montenegro.pdf . 

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does  not  affect  the  overarching  obligation  under  the  Regulation  of  the  Agency  and  its 
Executive  Director  to  assess  whether  there  are,  or  are  likely  to  be,  serious  or  persistent 
violations of fundamental  rights  or  of  international  protection obligations related to  specific 
activities  that  are  to  take  place  on  the  basis  of  this  status  agreement  and  to  then  respond 
accordingly6. 

The  Commission  monitors  closely  the  implementation  of  reforms  in  Montenegro  and  the 
country’s alignment with the European Union acquis and standards, including in the areas of 
rule of law and fundamental rights, and provides a detailed assessment of the state of play and 
the  progress  made  by  Montenegro  in  its  enlargement  package7.  The  2022  Report  on 
Montenegro8  found  that  Montenegro  “is  moderately  prepared  in  the  area  of  fundamental 
rights”, with a legislative and institutional framework that is largely in place. The report also 
found that Montenegro’s “legal framework on legal and irregular migration is largely aligned 
with  the  EU  acquis”.  This  was  also  achieved  as  a  result  of  the  2021  adoption  of  the  2021-
2025  Strategy  on  Migration  and  Reintegration  of  Returnees9,  which  aligned  the  policy 
framework with the acquis and best practices from the Member States.10 The country’s legal 
framework  on  asylum  is  also  largely  aligned  with  the  acquis,  in  part  also  thanks  to  a 
cooperation  roadmap  with  the  European  Union  Agency  for  Asylum,  which  was  signed  in 
2021  to  strengthen  Montenegro’s  “asylum  system,  including  the  status  determination 
procedure, the reception conditions, and to develop contingency planning”11.  

This  assessment  also  takes  into  consideration  Montenegro’s  ratification  of  international 
human  rights  instruments,  which  represent  a  strong  benchmark  of  commitment  to  human 
rights  while  providing  an  overview  of  applicable  human  rights  standards.  Overall, 
Montenegro  engages  in  regular  dialogue  with  key  international  human  rights  organisations 
and  monitoring  bodies,  including  those  connected  to  the  United  Nations  and  Council  of 
Europe.  For  example,  in  2021,  Montenegro  contributed  a  voluntary  report  on  its 
implementation of the recommendations stemming from the 2018 Universal Periodic Review, 
and in 2021 the country was elected to the UN Human Rights Council, where it will serve as 
a member until 2024. 

Montenegro has been a Member State of the Council of Europe since 11 May 2007 and has 
ratified the European Convention on Human Rights,  making it  subject  to the jurisdiction of 
the  European  Court  of  Human  Rights  (“ECHR”).  Montenegro  is  a  party  to  the  revised 
European Social Charter, the Council of Europe Convention on Action against Trafficking in 
Human  Beings,  the  European  Convention  for  the  Prevention  of  Torture  and  Inhuman  or 
Degrading  Treatment  or  Punishment,  and  the  Framework  Convention  for  the  Protection  of 
National Minorities. 

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Regulation (EU) 2019/1896, Article 46. 
https://neighbourhood-enlargement.ec.europa.eu/document/download/927a32f7-609f-401a-970e-
831eee3abd33_en?filename=Montenegro%20Report%202022.pdf. 
Commission Staff Working Document, “Montenegro 2022 Report”. 12 October 2022. Available at: 
https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-10/Montenegro%20Report%202022.pdf. 
Government of Montenegro, “STRATEGY ON MIGRATION AND REINTEGRATION OF RETURNEES IN 
MONTENEGRO FOR THE PERIOD 2021-2025, WITH AN ACTION PLAN FOR 2021 AND 2022.”, 1 October 
2021. Available at: https://www.gov.me/en/documents/15ef985b-eddb-4a41-a58a-63fee7e8455c . 
Commission Staff Working Document, “Montenegro 2022 Report”. 12 October 2022. Page 56. Available at: 
https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-10/Montenegro%20Report%202022.pdf. 
Commission Staff Working Document, “Montenegro 2022 Report”. 12 October 2022. Page 57. Available at: 
https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-10/Montenegro%20Report%202022.pdf. 

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Montenegro is a party to the 1951 Convention relating to the Status of Stateless Persons and 
the 1961 Convention on the Reduction of Statelessness, the International Convention on the 
Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and 
Political  Rights  and  its  Optional  Protocol  and  Second  Optional  Protocol,  the  International 
Covenant on Economic, Social and Cultural Rights and to its Optional Protocol. Montenegro 
is also a party to the Convention on the Elimination of All Forms of Discrimination Against 
Women and its Optional Protocol, the Convention Against Torture and Other Cruel, Inhuman 
or  Degrading  Treatment  or  Punishment,  and  to  its  Optional  Protocol.  The  country  has  also 
concluded  the  Convention  on  the  Rights  of  the  Child  and  its  Optional  Protocols  on  the 
Involvement  of Children in  Armed Conflict  and  on the Sale of Children, Child Prostitution 
and Child Pornography. Montenegro has also become a party to the Convention on the Rights 
of Persons with Disabilities and its Optional Protocol and to the Protocol to Prevent, Suppress 
and Punish Trafficking in Persons, especially Women and Children, the Protocol against the 
Smuggling of Migrants by Land, Sea and Air, and the 1951 Convention relating to the Status 
of  Refugees  and  its  1967  Protocol.  Montenegro  has  signed,  but  not  yet  ratified,  the 
International  Convention  on  the  Protection  of  the  Rights  of  All  Migrant  Workers  and 
Members of their Families.  

Overall,  the  legislative  and  institutional  framework  to  ensure  compliance  with  applicable 
fundamental rights norms appears to be largely in place and Montenegro continues to meet its 
international  obligations  on  human  rights12.  At  the  same  time,  additional  efforts  should  be 
made to implement this framework fully; some potential areas of concern should be noted: for 
instance,  the  UN  Committee  against  Torture  in  202213  noted  that  Montenegrin  authorities 
should  inform  about  the  right  to  legal  aid  more  widely  and  provide  increased  and  easier 
access  to  it,  particularly  to  vulnerable  persons14,  while  also  reiterating  that  every  person 
should  be  afforded  access  to  an  effective  asylum  process,  featuring  procedural  safeguards 
against the risk of refoulement15. The UN High Commissioner for Refugees has also alleged 
the  occurrence  of  some  “pushbacks”  and  “inverse  flow  of  migrants”  from  Montenegro  to 
Albania16.  Additionally,  the  Council  of  Europe  has  flagged  a  number  of  shortcomings 
concerning Montenegro’s Law on Foreigners of 2018, while providing an overall favourable 
assessment. The Council of Europe noted that further clarity on  ‘procedural  safeguards  and 
protections for vulnerable persons is needed, in particular in respect of victims of trafficking 

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Commission Staff Working Document, “Montenegro 2022 Report”. 12 October 2022. Available at: 
https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-10/Montenegro%20Report%202022.pdf  
UN Office of the High Commissioner for Human Rights, UN Committee against Torture publishes findings on 
Cuba, Iceland, Iraq, Kenya, Montenegro and Uruguay, 13 May 2022. Available at: https://www.ohchr.org/en/press-
releases/2022/05/un-committee-against-torture-publishes-findings-cuba-iceland-iraq-kenya . 
UN Office of the High Commissioner for Human Rights, UN Committee against Torture, Concluding observations 
on the third periodic report of Montenegro, 2 June 2022, Art. 10. Available at: 
https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhslVpw9qedE6H7W4
xUzcOd4f66D2C4YsBnln952j%2B7cOX99OY1u2JaYUXZ6WLI0H0BFS3DLE1SfLJ4jrP98qIMX%2B2qzUIKiY
Y8KSFtAn9YisI. 
UN Office of the High Commissioner for Human Rights, UN Committee against Torture, Concluding observations 
on the third periodic report of Montenegro, 2 June 2022, Art. 20. Available at: 
https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhslVpw9qedE6H7W4
xUzcOd4f66D2C4YsBnln952j%2B7cOX99OY1u2JaYUXZ6WLI0H0BFS3DLE1SfLJ4jrP98qIMX%2B2qzUIKiY
Y8KSFtAn9YisI . 
UNHCR, Western Balkans – Refugees, asylum-seekers and other people in mixed movements (as of September 
2022). Available at: https://data.unhcr.org/en/documents/details/96520 . 

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and accompanied and unaccompanied children’17. The 2022 European Commission Report on 
Montenegro also found that the country should revise its national legislation on the protection 
of personal  data.  Montenegro has  not  yet signed the Protocol  amending  the Convention for 
the  Protection  of  Individuals  with  regard  to  Automatic  Processing  of  Personal  Data  (CETS 
No. 223) of the Council of Europe. The Agency should proactively address these issues when 
planning operations in Montenegro.  

In the view of the Commission, the fundamental rights situation in Montenegro at the time of 
the  negotiation  and  conclusion  of  the  status  agreement  with  that  country  does  not  preclude 
operational  activities on  account  of a  risk of serious or persistent  violations of fundamental 
rights  or  obligations  concerning  international  protection.  Nevertheless,  any  operational 
activity  in  the  country  must  ensure  that  all  relevant  safeguards,  as  required  by  European 
Union and international  law, and especially  the Regulation,  are in  place. The Agency holds 
the responsibility to ensure that any operational activity in Montenegro is closely monitored 
to protect and promote their compliance with fundamental rights as enshrined in the Charter 
of Fundamental Rights of the European Union18. Additionally, the Agency must ensure that 
anyone  participating  in  a  Frontex  Joint  Operation  or  any  other  activity  conducted  by  it  in 
Montenegro  is  fully  cognisant  of  the  fundamental  rights  standards  with  which  they  are 
obliged to comply. 

It must be further underlined that this assessment is not a substitute for the obligations placed 
on the Executive Director of the Agency and its Fundamental Rights Officer by Article 46 of 
the  Regulation.  Should  the  Executive  Director  consider  that  launching  an  activity  in 
Montenegro  could  lead  to  serious  or  persistent  violations  of  fundamental  rights  or 
international protections obligations, it is his or her responsibility not to launch that activity. 
Similarly, where the Executive Director determines that such serious or persistent violations 
are occurring, it is solely his or her responsibility to withdraw the financing for the activity in 
question or suspend or terminate it in whole or in part as deemed appropriate to address the 
situation. 

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Council of Europe, Opinion on the Montenegro draft law on foreigners, 16 November 2017, Art. 102. Available at: 
https://rm.coe.int/srsg-migref-2017-1-final/16807b41a9 . 
Regulation (EU) 2019/1896, Articles 10 and 110. 

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