Surveillance of the sea external borders with the involvement of Frontex: the LIBE Committee opposes the adoption of the European Commission Draft Council decision
The Committee on Civil liberties, Justice and Home Affairs (LIBE) opposed (12 in favour and 25 against) the Proposal for a Council Decision supplementing the Schengen Border Code and then approved the consequent Motion on the draft Council decision supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of the operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders.
The European Union does not have a legal framework regulating the management of external sea borders, which is therefore regulated by international law. The only European instruments providing guidelines to the surveillance of maritime Schengen area external borders is the Schengen Borders Code (which entered into force on 13 October 2006, CE Regulation N. 562/2006 of the EP and the Council).
The Schengen Border Code does not include a comprehensive regulation on sea borders control creating several problems when Member states are involved in surveillance and, more importantly, in rescue operations. Therefore, last November the Commission suggested to integrate the Schengen Code with the main international norms applicable in the field of marine search and rescue and the disembarking of individuals in safe harbours in order to guarantee fair and equal treatment at the European level and clear signing rules especially when surveillance operations take place under the coordination of the Frontex Agency.
The legal basis
The European Commission presented a modified text in the form of a proposal for a Council decision supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of the operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders in accordance with Article 5 a (4) (a) Council Decision 1999/468/EC (comitology decision).
This interpretation allows for a swifter legislative procedure compared to the one it would have been submitted if these changes were considered substantial changes in the content of the Schengen Border Code.
The European Council followed this solution by approving by qualified majority on 25 January 2010 (Italy and Malta abstained), the draft decision by dividing it in two parts:
1) rules for sea border operations coordinated by the Agency and
2) Guidelines for search and rescue situations and for disembarkations in the context of sea border operations coordinated by the Agency.
This draft decision was then sent to the LIBE committee for approval, which is the body responsible for the examination of the file within the Parliament.
The LIBE reaction
The wrong legal basis
According to the majority of the members of the LIBE committee the changes brought by the Commission's proposal are modifying substantially the content of the code and therefore the legal basis of the drat decision is not correct.
The European Parliament's Legal Service in its opinion of 4 March 2010 concluded that
a) the proposed measures exceeded the scope of Article 12(5) of the Schengen Borders Code since, as a whole, they did not constitute 'additional measures governing surveillance' in general, but specific rules on reinforcing border checks and/or on refusal of entry at the external sea borders, the adoption of which was restricted to the legislature under Article 18 of the Schengen Borders Code, and that the same conclusions applied mutatis mutandis to the draft measures on search and rescue and disembarkation;
b)theobjectivespresentedintheCommissionproposalcouldlegallybeachievedonly through the adoption of a legislative instrument, either by amending the Schengen Borders Code or the annexes thereto or by adopting another legislative instrument.
Therefore, according to the majority of the LIBE members accepting such a draft Council decision would have established a dangerous precedent, on the basis of which the European Commission could present measures exceeding the implementing powers established by the relevant legal instruments.
The non-binding nature of the guidelines
This position does not reject the content and the aim of the proposal, as such. Quite the contrary. Those members of the Parliament against the European Commission's proposal consider the establishment of measures regulating assistance and rescue activities at sea as highly desirable as well. What they contested is the non-binding value of the guidelines, considering as necessary the introduction of a binding legislative proposal, either under the form of an amendment to the proposal for a regulation of the European Parliament and the Council amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) (COM(2010)61), for which the legislative procedure has already started, or by means of a new proposal amending the Schengen Borders Code or by means of another new legislative proposal.
The European Commission reply
The right legal basis is correct
Against this background the Commissioner Cecilia Malmström sent a letter to the Committee arguing that the draft decision fully falls under the implementing powers granted by article 12(5) of the Schengen Border Code and that the European Parliament's legal opinion is based on a misunderstanding between the definition of border checks and border surveillance.
It continues by explaining that the initiative's scope is limited to the establishment of rules regarding the conduct of border surveillance patrols in the context of Frontex operations and therefore the draft decision is in line with Article 12(5) which indeed foresees the possibility to introduce these measures following the comitology approach.
Furthermore, during the debate, a representative of the Commission pointed out that the only body competent to decide whether the legal basis is correct is the European Court of Justice whereas the role of the European Parliament is to make a decision based on a political evaluation.
The guidelines have a binding nature
The European Commission also pointed out that the principle of non-refoulement is fully enforceable and that the guidelines have indeed a binding value.
A minority of representatives of the LIBE committee, including the rapporteur Mr Cashman (which resigned from this appointment after the rejection of the draft decision), put forward a different argument in support of the approval of the Commission's proposal. They argued that this approval will not set a precedent and that by rejecting such a proposal members give greater relevance to legal rather than humanitarian and moral aspects. This is because, paraphrasing the words of the rapporteur, this decision would have at least provided a swift set of obligations which Member states should have complied with when dealing with assistance and rescue operations at sea.
After the rejection of the LIBE committee, now the Motion for a resolution will be voted in the plenary where a simple majority (50% +1) is requested. If the European Parliament votes against this measure as well, the decision will laps and the three institutions will have to carry on additional consultations in view of a compromise.
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