COUNCIL DECISION
of 26 April 2010
supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union
(2010/252/EU)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (1), and in particular Article 12(5) thereof,
Having regard to the proposal from the European Commission,
Whereas:
(1)
The purpose of border surveillance is to prevent unauthorised border crossings, to counter cross-border criminality and to apprehend or take other measures against persons who have crossed the border illegally. Border surveillance should be effective in preventing and discouraging persons from circumventing the checks at border crossing points, and in detecting the unauthorised crossing of the external borders.
(2)
The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (hereinafter referred to as ‘the Agency’) is responsible for the coordination of operational cooperation between Member States to facilitate the application of Union law, including with regard to border surveillance. Additional rules are necessary with regard to border surveillance activities carried out by maritime and aerial units of one Member State at the sea border of other Member States in the context of the operational cooperation coordinated by the Agency and the further strengthening of such cooperation.
(3)
In accordance with Regulation (EC) No 562/2006 and general principles of Union law, measures taken in the course of the surveillance operation should be proportionate to the objectives pursued and fully respect fundamental rights and the rights of refugees and asylum seekers, including, in particular, the prohibition of refoulement. Member States are bound by the provisions of the asylum acquis, and in particular of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (2), with regard to applications for asylum made in the territory, including at the border, or in the transit zones of Member States.
(4)
At its meetings of 18 and 19 June 2009 and of 29 and 30 October 2009, the European Council underlined the need for strengthened border control operations coordinated by the Agency and for clear rules of engagement for joint patrolling. The European Council in June also stressed the need for rules on disembarkation of rescued persons.
(5)
Account should be taken of the fact that border surveillance operations coordinated by the Agency are conducted in accordance with an operational plan and with the schedule and instructions issued by a coordination centre in which participating Member States and the Agency are represented, and that one or more host Member States whose border will be surveyed are identified before the start of the operation.
(6)
Implementation of this Decision does not prejudice the division of competence between the Union and the Member States, and does not affect obligations of Member States under the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the United Nations Convention against Transnational Organised Crime and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the Convention relating to the Status of Refugees, the Convention for the Protection of Human Rights and Fundamental Freedoms and other relevant international instruments.
(7)
When conducting a border surveillance operation at sea, a situation may occur where it will be necessary to render assistance to persons found in distress.
(8)
In accordance with international law, every State has to require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers, to render assistance to any person found at sea in danger of being lost and to proceed with all possible speed to the rescue of persons in distress. Such assistance should be provided regardless of the nationality or status of the persons to be assisted or of the circumstances in which they are found.
(9)
In order to provide for better coordination among the Member States participating in the operations with regard to such situations and to facilitate the conduct of such operations, non-binding guidelines should be included in this Decision. This Decision should not affect the responsibilities of search and rescue authorities, including for ensuring that coordination and cooperation is carried out in such a way that the persons rescued can be delivered to a place of safety.
(10)
This Decision respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, notably human dignity, prohibition of torture and inhuman or degrading treatment or punishment, right to liberty and security, non-refoulement, non-discrimination and the rights of the child. This Decision should be applied by the Member States in accordance with those rights and principles.
(11)
Since the objectives of this Decision, namely the adoption of additional rules for the surveillance of the sea borders by border guards operating under the coordination of the Agency, cannot be sufficiently achieved by the Member States due to the differences in their laws and practices, and can therefore, by reason of the multinational character of the operations, be better achieved at the level of the Union, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Decision does not go beyond what is necessary in order to achieve those objectives.
(12)
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 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 6 months after the date of adoption of this Decision whether it will implement it in its national law.
(13)
As regards Iceland and Norway, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis (3) which fall within the area referred to in Article 1, point A, of Council Decision 1999/437/EC (4) of 17 May 1999 on certain arrangements for the application of that Agreement.
(14)
As regards Switzerland, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (5), which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (6) of 28 January 2008 on the conclusion of that Agreement on behalf of the European Community.
(15)
As regards Liechtenstein, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/261/EC (7) of 28 February 2008 on the signature of that protocol on behalf of the European Community.
(16)
This Decision constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (8). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.
(17)
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/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis (9). Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application.
(18)
The Schengen Borders Code Committee, consulted on 19 October 2009, did not deliver an opinion, with the consequence that the Commission, in accordance with point (a) of Article 5a(4) of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (10), submitted a proposal relating to the measures to be taken to the Council and forwarded it to the European Parliament at the same time,
HAS ADOPTED THIS DECISION:
Article 1
The surveillance of the sea external borders in the context of the operational cooperation between Member States coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (the Agency) shall be governed by the rules laid down in Part I to the Annex. Those rules and the non-binding guidelines laid down in Part II to the Annex shall form part of the operational plan drawn up for each operation coordinated by the Agency.
Article 2
This Decision is addressed to the Member States in accordance with the Treaties.
Done at Luxembourg, 26 April 2010.