Explanatory Memorandum to COM(2023)261 - Conclusion of an Agreement with Montenegro on operational activities carried out by the European Border and Coast Guard Agency in Montenegro - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)261 - Conclusion of an Agreement with Montenegro on operational activities carried out by the European Border and Coast Guard ... |
|---|---|
| source | COM(2023)261 |
| date | 05-04-2023 |
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 i 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.
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 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.
• 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 agreement with Montenegro. A common approach is therefore needed to better manage the borders of Montenegro.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
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.
• 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.
• 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.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will ensure proper monitoring of the implementation of the status agreement.