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

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”. 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.”

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 Code 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 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.

EUR-Lex: COM(2013)197: Follow the progress of this proposal through the decision-making procedure http://eur-lex.europa.eu/legal-content/EN/HIS/?uri=COM:2013:197:FIN

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