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Integrated management of external borders
The Union proposes common working methods in order that services responsible for external border control are able to coordinate measures with a view to developing a coherent framework for common action in the medium and long term that will permit integrated management of external borders.
Commission Communication to the Council and the European Parliament entitled "Towards integrated management of the external borders of the Member States of the European Union".
In Conclusion No 42 of the Laeken European Council (14 and 15 December 2001), Member States undertook to manage better the Union's external border controls so as to combat more effectively terrorism, illegal immigration and human trafficking. Control of external borders had then been discussed in a Commission Communication on illegal immigration. For its part, the Communication under examination here proposes the development of a common policy in this field with a view to achieving the "internal security of the common area of freedom of movement". In addition to the fight against illegal immigration, it proposes for the first time the most wide-ranging definition of "security of external borders", with the exception of military defence. It thus calls on Member States also to take into consideration at external borders the magnitude of crime, terrorism, crimes against children, arms trafficking, corruption and fraud in accordance with Article 29 of the European Union Treaty.
The security of the external borders is a key challenge to be met if the free movement of persons and goods is to be encouraged. In addition, the candidate countries will soon be responsible for security at the Union's future external borders, the management of which will play a central role in developing relations with the future neighbouring countries, namely Belarus and Ukraine.
The Communication sets out to define the Union's needs in this respect after defining the Community acquis and current operational practices. On the basis of this analysis, the Commission has proposed in the final section of the Communication a range of possible measures for devising a common policy for controlling external borders.
I. Analysis of the acquis communautaire as regards the crossing of external borders
Since 1995 checks and surveillance at the external borders has been governed by the Schengen Convention, whereas the more detailed rules are laid down in the Common Manual of External Borders [Official Journal L 239, 22.09.2002].
The Schengen Convention contains among other things the general provisions concerning entry for a stay not exceeding three months, the obligations of the Member States as regards checks and surveillance, the liability of carriers and the Schengen Information System (SIS). Responsibility for monitoring the correct and uniform application of these rules rests with the Standing Committee on the Evaluation and Implementation of Schengen, which was set up by a decision of the Schengen Executive Committee [Decision SCH/Com-ex 98, published in Official Journal L 239, 22.09.2000], which has become a Council working group.
In accordance with the Convention, Member States remain free to entrust checks and surveillance at external borders to the authorities of their choice. In some Member States a single body is competent while, in others, several bodies reporting to different government departments are responsible for checks and surveillance. There is also a wide range of responsibilities since it is very difficult for the competent authority in one Member State to find its exact counterpart in another Member State (the powers of enforcement, prevention and investigation differ between countries).
Lastly, because of geographical features, the financial management of checks and surveillance at external borders, which involves a huge cost in terms of staff and supplies, becomes extremely expensive for some Member States. In this connection, given the different geographical areas, the European Union has provided support for Member States: Phare, CARDS and the Community initiative INTERREG.
II. Towards a common policy on management of external borders
Since the corpus of legislation on checks and surveillance of borders is relatively comprehensive, the challenge at present is rather one of coordinating action taken by the competent national departments. The measures that could be taken can be short-term (one year) or medium-term (before the candidate countries can apply the Schengen acquis). Consideration should, therefore, be given to measures relating to:
- a common corpus of legislation;
- a common coordination and operational cooperation mechanism;
- common integrated risk analysis;
- staff and interoperational equipment;
- burden-sharing between Member States.
Corpus of legislation
The Commission is planning a genuine "inspection function" at external borders. This will require a legal framework and financing arrangements.
As regards the corpus of legislation, other measures will be needed in the short and medium term:
- recast the Common Manual of Checks at the External Borders by introducing certain "best practices" that may be taken from the Schengen Catalogue of Best Practices. This document, adopted by the Council on 28 February 2002 and published by the Secretariat of the Council of the European Union, brings together recommendations and best practices regarding controls and surveillance at external borders, expulsion and re-admission;
- produce a practical handbook usable by border guards and available for consultation at all times;
- if a European Corps of Border Guards is set up, determine the legal framework for their activities and the geographical boundaries within which they may operate.
Coordination and cooperation mechanism
As regards cooperation, an "External Border Practitioners Common Unit" will be responsible for carrying out risk analysis, coordinating operational projects on the ground and devising a common strategy for coordinating national policies. In addition, a power of inspection can be conferred on it in crisis situations. The Commission stresses that all these activities would have to contribute to improved implementation of existing legal rules without necessitating any additional legislative proposals. This Common Unit took the form of "Scifa +" during the Danish Presidency of the EU.
The Commission also envisages setting up a "security procedure" (PROSECUR) designed mainly to permit the permanent processing of data between the authorities competent for checks and surveillance at external borders. In order to perform its tasks efficiently, PROSECUR will be able to use the tools provided by other existing systems such as the SIS (Schengen Information System).
Common integrated risk evaluation
A coherent and full analysis of the risks affecting security at external borders requires above all the adoption of common indicators. Constant monitoring of these indicators will then allow the units concerned to act effectively on the ground. The analysis will need to identify the risks that arise at external borders themselves and those that arise in third countries. The Commission considers that the External Borders Practitioners Common Unit is, because of its multidisciplinary nature, best placed to conduct this analysis.
Personnel and interoperational equipment
In the long term, the setting up of a "European Border Guards College" is not ruled out. However, other steps can be taken in the short and medium term to ensure common training for the personnel involved in guarding external borders. In particular, advance training courses language courses or training periods with the border guards unit in another Member State could be envisaged.
The possession of modern equipment is another way of making cooperation efficient. Member States should be able to develop a common policy on fixed and movable (high-speed launches, helicopters, patrols) infrastructures, in particular by benefiting from high-technology tools such as the Galileo system. It will not be a matter of guaranteeing simply equipment interoperability but also its geographical mobility since border inspections are more difficult for some Member States than others because of their geographical location (e.g. the length of their coastline).
Financial burden-sharing and operational burden-sharing
As stated above, the geographical location of member countries determines the imbalanced nature of financial burden-sharing that controls and surveillance at external borders entail. The Commission suggests a series of burden-sharing measures for the Union. It recalls, however, that under no circumstances should burden-sharing have as an objective the integral financing of expenditure through the Community budget. Community assistance will play a purely ancillary role since national budgets will remain the principal sources of financing. Consideration is currently being given to action under the ARGO (l33170) programme for financing common training for the units involved in controlling borders.
The setting-up of a European Corps of Border Guards, placed under the operational command of the External Borders Practitioners Common Unit, could at the appropriate moment provide an effective solution when it comes to providing back-up for the work of national services. Naturally, for reasons of legal certainty, the operational tasks of this new corps will have to be provided for by legislative measures. However, the Commission takes the view that certain tasks which a genuine European corps should be able to perform can already be identified:
- handle surveillance functions at external borders without ruling out in the longer term handling of checks at border-crossing points;
- exercise the full prerogatives of public authority needed to perform the tasks of carrying out checks and surveillance at external frontiers. There is a constitutional problem here in that staff of the European Corps will be able to exercise public authority on the territory of a Member State of which they are not nationals;
- respect the national authorities' powers in matters not covered by Title IV (visas, asylum, immigration and other policies related to the free movement of persons) and Title X (customs cooperation) of the EC Treaty.
In practice, the European Corps of Border Guards should, among other things, check identity papers, question aliens on the reasons for their stay and go on board ships in a Member State's territorial waters.
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