Explanatory Memorandum to COM(2018)799 - Signing of the status agreement with Serbia on actions carried out by the European Border and Coast Guard Agency in Serbia - Main contents
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| dossier | COM(2018)799 - Signing of the status agreement with Serbia on actions carried out by the European Border and Coast Guard Agency in Serbia. |
|---|---|
| source | COM(2018)799  |
| date | 07-12-2018 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Article 54(3) of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard 1 provides that the European Border and Coast Guard Agency may coordinate operational cooperation between Member States and third countries with respect to management of the external borders. In that respect, it can carry out actions at the external borders involving one or more Member States and a third country neighbouring at least one of those Member States, subject to the agreement of that neighbouring country, including on the territory of that third country.
Pursuant to Article 54 i of Regulation (EU) 2016/1624, in cases where it is envisaged that European Border and Coast Guard teams will be deployed to a third country in actions where the team members will have executive powers, or where other actions in third countries require it, a status agreement shall be concluded by the Union with the third country concerned. The status agreement shall cover all aspects that are necessary for carrying out the actions. It shall in particular set out the scope of the operation, civil and criminal liability and the tasks and powers of the members of the teams. The status agreement shall ensure the full respect of fundamental rights during these operations.
On the basis of negotiating directives adopted by the Council, the European Commission has negotiated with the Republic of Serbia the Agreement on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia (‘the status agreement’) with a view of setting up the legal framework that will allow acting immediately through setting up Operational Plans when quick reaction will be needed. While the migration flows in the region are much lower than in the years 2015 and 2016, organised crime networks quickly adapt their routes and methods for trafficking irregular migrants to any new circumstances. With the status agreement in place, the responsible authorities of the Republic of Serbia and the EU Member States, coordinated by the European Border and Coast Guard Agency, will be in a much better position to quickly respond to such possible developments.
The attached proposal for a Council Decision constitutes the legal instrument for the signing of the status agreement between the European Union and the Republic of Serbia.
On 21 February 2017 the Commission received the Council authorisation to open negotiations with the Republic of Serbia on a status agreement for actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia.
Negotiations on a status agreement have been opened on 7 April 2017 and a second round took place on 11 May 2017. A deal was finally reached on 3 August 2018. The status agreement has been initialled by Commissioner for Migration, Home Affairs and Citizenship D. Avramopoulos and the Minister of Internal Affairs of the Republic of Serbia N. Stefanović on 20 September 2018 in Belgrade.
The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft status agreement is acceptable for the Union.
Member States have been informed and consulted in the relevant Council Working Group.
• Consistency with existing policy provisions in the policy area
Sixteen Member States have bilateral agreements currently in place with the Republic of Serbia: those include a series of joint measures such as border checks, surveillance, patrolling, return etc. A working arrangement between the Ministry of Interior of the Republic of Serbia and the European Border and Coast Guard Agency is also already in place, that includes in particular regular participation of the representatives from the Border Police of Serbia in European Border and Coast Guard Agency coordinated joint operations, as observers on Member States' territory, upon agreement of the hosting Member State.
• Consistency with other Union policies
The European Agenda on Migration 2 is built on four pillars. One of these is border management: this involves better management of the EU external border, in particular through solidarity towards those Member States that are located at the external borders, and improving the efficiency of border crossings. A reinforced control of the Republic of Serbia's borders will also positively affect the EU external borders, in particular the external borders of Bulgaria, Croatia, Hungary and Romania as well as the borders of the Republic of Serbia. Further strengthening security at the external borders is also in line with the European Agenda on Security 3 .
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for this proposal for a Council Decision is Article 77(2)(b) and (d) and Article 79(2)(c) TFEU in conjunction with Article 218(5) TFEU.
The conclusion of a status agreement by the EU is explicitly provided for in Article 54 i of Regulation (EU) 2016/1624 which states that, in cases where it is envisaged that European Border and Coast Guard teams will be deployed to a third country in actions where the team members will have executive powers, or where other actions in third countries require it, a status agreement shall be concluded by the Union with the third country concerned.
Pursuant to Article 3(2) TFEU, 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 54 i of Regulation (EU) 2016/1624 provides for the conclusion of a status agreement by the European Union with the third country concerned. Consequently, the attached agreement with the Republic of Serbia falls within the exclusive competence of the European Union.
• Subsidiarity (for non-exclusive competence)
Not applicable.
• Proportionality
In view of organised crime networks adapting quickly their routes and methods for trafficking of irregular migrants, the involvement of the EU is required to improve controls at the borders of the Republic of Serbia. The status agreement in place is necessary in order to enable the responsible authorities of the Republic of Serbia and the EU Member States, coordinated by the European Border and Coast Guard Agency, quickly to respond to such possible developments. It will allow for the deployment of European Border and Coast Guard teams by the European Border and Coast Guard Agency in the Republic of Serbia in case of a sudden influx of irregular migrants.
• Choice of the instrument
This proposal is in accordance with Article 218(5) TFEU, which envisages the adoption by the Council of decisions on international agreements. There exists no other legal instrument that could be used in order to achieve the objective expressed in the proposal.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
Contents
- Not applicable
- Not applicable
- Not applicable
- Scope of the agreement
- Launching an action
- Operational Plan
- Tasks and powers of the members of the team
- Suspension and termination of the action
- Privileges and immunities of the members of the team
- Accreditation document
- Fundamental rights
- Processing of personal data
- Disputes and interpretation
- Competent authorities for the implementation of the Agreement
- Joint Declarations
• Stakeholder consultations
• Collection and use of expertise
• Impact assessment
No impact assessment has been required for the negotiation on the status agreement.
• Regulatory fitness and simplification
As this will be a new agreement, no evaluation or fitness checks of existing instruments could be carried out.
• Fundamental rights
The status agreement contains provisions ensuring that fundamental rights of persons affected by the actions of members of the team involved in an action coordinated by the European Border and Coast Guard Agency are protected.
Provisions on fundamental rights are further explained under point 5 Other elements.
4. BUDGETARY IMPLICATIONS
The status agreement in itself does not entail financial implications. It is indeed the actual deployment of European Border and Coast Guard teams on the basis of an Operational Plan and relevant Grant Agreement that will entail costs borne by the budget of the European Border and Coast Guard Agency. Future operations under the status agreement will be financed through the European Border and Coast Guard Agency’s own resources.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will ensure proper monitoring of the implementation of the status agreement.
The Republic of Serbia and the European Border and Coast Guard Agency shall jointly evaluate each joint operation or rapid border intervention.
In particular, the European Border and Coast Guard Agency, the Republic of Serbia and the Member States participating to a specific action shall draw up a report at the end of each action on the application of provisions of the agreement including on the processing of personal data.
• Explanatory documents (for directives)
Not applicable.
• Detailed explanation of the specific provisions of the proposal
Under this Agreement, the European Border and Coast Guard Agency shall be able to deploy European Border and Coast Guard teams with executive powers in the Republic of Serbia to carry out joint operations and rapid border interventions. While this agreement does not extend the scope of the Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation ('EC-Republic of Serbia readmission agreement') 4 , teams of the European Border and Coast Guard Agency shall also be allowed, in the course of a specific return operation, to assist the Republic of Serbia in identifying the persons to be readmitted to the Republic of Serbia, in line with the EC-Republic of Serbia readmission agreement.
European Border and Coast Guard teams may be deployed on the territory of the Republic of Serbia only in regions bordering the EU external borders and members of the team shall have executive powers in those areas of the Republic of Serbia as set out in the Operational Plan.
The initiative to launch an action can be proposed by the Agency. The competent authorities of the Republic of Serbia may request the Agency to consider launching an action. Carrying out an action requires the consent of the competent authorities of the Republic of Serbia and the Agency.
Before each joint operation or rapid border intervention, an Operational Plan must be agreed between the Agency and the Republic of Serbia. That Operational Plan must also be agreed by the Member State or Member States bordering the operational area.
The plan shall set out in detail the organisational and procedural aspects of the joint operation or rapid border intervention, including a description and an assessment of the situation, the operational aim and objectives, the type of technical equipment to be deployed, the implementation plan, the cooperation with other third countries, other Union Agencies and bodies or international organisations, the provisions in respect of fundamental rights including personal data protection, the coordination, command, control, communication and reporting structure, the organisational arrangements and logistics, the evaluation and the financial aspects of the joint operation or rapid border intervention.
As a general rule, the teams shall have the authority to perform the tasks and exercise the executive powers required for border control and return operations. They shall respect the national legislation of the Republic of Serbia.
Teams shall only act in the territory of the Republic of Serbia under instructions from and in the presence of border guards or other police officers of the Republic of Serbia.
Members of the team shall wear where appropriate their own uniform, visible personal identification and a blue armband with the insignias of the European Union and of the Agency on their uniforms. They shall also carry an accreditation document in order to be clearly identified by the national authorities of the Republic of Serbia.
Members of the team may carry service weapons, ammunition and equipment as authorised according to their own State's national law and the law of the Republic of Serbia. The Agency shall be beforehand notified by the authorites of the Republic of Serbia of the permissible service weapons, ammunition and equipment and of the relevant legal framework and conditions for their use.
Members of the team may use force, including service weapons, ammunition and equipment, with the consent of their own State and of the authorities of the Republic of Serbia, in the presence of border guards or other police officers of the Republic of Serbia, and in accordance with the national law of the Republic of Serbia. The authorities of the Republic of Serbia may authorise members of the team to use force also in the absence of their border guards. Members of the team may use weapons only when it is absolutely necessary in self-defence to repel an immediate life-threatening attack against themselves or another person, in accordance with the Serbian legislation.
The competent authorities of the Republic of Serbia may, upon request, communicate relevant information contained in national databases to members of the team if necessary for performing their tasks. The Agency may also communicate to the Serbian competent authorities information necessary for fulfulling operational aims.
Both the Agency and the authorities of the Republic of Serbia may suspend or terminate the action, if they deem that the provisions of the Agreement or of the Operational Plan are not respected by the other party.
Members of the team shall enjoy immunity from the criminal jurisdiction of the Republic of Serbia in respect of all acts performed in the exercise of the official functions ('on duty') while they will not enjoy such immunity for acts committed off duty.
The Operational Plan shall precisely set out the actions immune from the criminal jurisdiction of the Republic of Serbia.
In the event of an allegation of a criminal offence being committed by a member of the team, the Executive Director of the Agency, prior to the initiation of the proceeding before the court, shall certify to the competent judicial authorities of the Republic of Serbia whether the act in question was performed in the exercise of their official functions or not. The Executive Director of the Agency shall take his or her decision after careful consideration of any representation made by the competent authority of the Member State which has deployed the border guard or other relevant staff and by the competent authorities of the Republic of Serbia.
Privileges granted to members of the team and immunity from the criminal jurisdiction of the Republic of Serbia do not exempt them from the jurisdiction of the home Member State.
A similar regime applies for the civil and administrative liability of the members of the team.
The immunity of members of the teams from the criminal, civil and administrative jurisdiction of the Republic of Serbia may be waived by the Member State that has deployed the concerned border guard or other relevant staff. Such a waiver must always be an express waiver.
The agreement provides for a mechanism to compensate damages. The compensation mechanism is based on Article 42 of Regulation (EU) 2016/1624 on the European Border and Coast Guard. If the damage is caused by a member of a team on duty, the Republic of Serbia shall be liable. If the damage is caused on duty by a member of a team from a participating Member State by gross negligence or wilful misconduct or if the act was committed off duty, the Republic of Serbia may request via the Executive Director of the Agency that compensation be paid by the participating Member State concerned. If a staff of the Agency causes the damage, the Republic of Serbia may request that compensation be paid by the Agency.
No measures of execution may be taken in respect of members of the team, except in the case where a criminal or civil proceeding not related to their official functions is instituted against them.
Property of members of the team necessary for the fulfilment of their official functions shall be free from seizure. In civil proceedings, members of the team shall not be subject to any restrictions on their personal liberty or to any other measures of constraint.
Members of the team shall be exempt from social security provisions that may be in force in the Republic of Serbia with respect to services rendered for the Agency. They shall also be exempt from any form of taxation in the Republic of Serbia on the salary and emoluments paid to them by the Agency or their Member States, as well as on any income received from outside the Republic of Serbia.
The authorities of the Republic of Serbia shall permit the entry and exit of articles for the personal use of members of the team, and shall grant exemption from all customs duties, taxes, and related charges (other than charges for storage, transport and similar services) in respect of such articles.
The personal baggage of members of the team may be inspected if there are grounds for considering that it contains articles that are not for the personal use of members of the team, or articles whose import or export is prohibited by the law or subject to quarantine regulations of the Republic of Serbia. Inspection of such personal baggage shall be conducted only in the presence of the member(s) of the team concerned or an authorised representative of the Agency.
Papers, correspondence and property of members of the team shall be inviolable, except in case of measures of execution. Members of the team shall not be obliged to give evidence as witnesses.
The Agency shall, in cooperation with the Republic of Serbia, issue an accreditation document to members of the team for the purposes of identification vis-à-vis the authorities of the Republic of Serbia as proof of the holder’s rights to perform the tasks and exercise the powers conferred under this Agreement and in the Operational Plan. The accreditation document, in combination with a valid travel document, grants the member of the team access to the Republic of Serbia without the need for a visa or prior authorisation; it will be returned to the Agency at the end of the action. The Agency will provide the competent Serbian authorities with a specimen of the accreditation document before the start of the application of the Agreement and whenever the template is modified.
In the performance of their tasks and in the exercise of their powers, members of the team shall fully respect fundamental rights and freedoms, including as regards access to asylum procedures, human dignity and the prohibition of torture, inhuman or degrading treatment, the right to liberty, the principle of non-refoulement and the prohibition of collective expulsions, the rights of the child and the right to respect for private and family life. They shall not arbitrarily discriminate against persons on any grounds including sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Any measures interfering with those fundamental rights and freedoms shall be proportionate to the objectives pursued by such measures and respect the essence of these fundamental rights and freedoms.
Each Party must have a complaint mechanism in place to deal with allegations of a breach of fundamental rights committed by its staff. The Agency has established the complaints mechanism referred to in Article 72 of Regulation (EU) 2016/1624 on the European Border and Coast Guard and therefore satisfies this obligation. The Ombudsman of the Republic of Serbia (‘Protector of Citizens’) could deal with such allegations, except if the authorities of the Republic of Serbia decide to set up a mechanism specifically tasked to deal with complaints lodged under this Agreement.
Members of the team shall process personal data when necessary and proportionate in accordance with the rules applicable to the Agency and the EU Member States. Processing of personal data by the authorities of the Republic of Serbia shall be subject to its national laws.
The Agency, the participating Member States and the authorities of the Republic of Serbia shall draw up a common report on the processing of personal data by members of the team at the end of each action. This report shall be sent to the Agency's Fundamental Rights Officer and Data Protection Officer, as well as to the competent authority for the protection of personal data in the Republic of Serbia. The Agency's Fundamental Rights Officer and Data Protection Officer shall report to the Executive Director of the Agency.
All issues arising in connection with the application of this Agreement shall be examined jointly by the competent authorities of the Republic of Serbia and by representatives of the Agency, which shall consult the Member State or Member States neighbouring the Republic of Serbia.
Failing any prior settlement, disputes concerning the interpretation or application of this Agreement shall be settled exclusively by negotiation between the Republic of Serbia and the European Commission, which shall consult any Member State neighbouring the Republic of Serbia.
For the Republic of Serbia, the competent authority for the implementation of this Agreement is the Ministry in charge of Internal Affairs. For the European Union, it is the European Border and Coast Guard Agency.
Both parties take note that the European Border and Coast Guard Agency will support the Republic of Serbia to control efficiently its border with any country that is not a member of the European Union by other means than deployments of European Border and Coast Guard teams with executive powers.
Both Parties agree that the status and delimitation under international law of the territory of Serbia and the Member States of the European Union is in no way affected either by this Agreement or by any act accomplished in its implementation by the parties or on their behalf, including the establishment of operational plans or the participation in cross-border operations.
The close association of Norway, Iceland, Switzerland and Liechtenstein to the implementation, application and development of the Schengen acquis is reflected in a joint declaration to the Agreement.