Statewatch analysis
European Commission: EU Border Control Communication

Prepared by Steve Peers, Reader in Law, University of Essex, steve@peers100.fsnet.co.uk

Summary

The Commission's recent Communication on border control (COM (2002) 233) sets out a number of proposals for developing common control of the EU's external borders. The principal elements in this plan are a 'common unit' of senior border control officials to control the implementation of a common border control policy; further exchange of information between a large number of authorities, including the Schengen Information System, the visa information database, police authorities and Europol; and the development of a Common European Border Corps with powers to check people at the border, deny them entry, board vessels and arrest individuals.

But there is marginal reference to protection of asylum-seekers, no mention at all of data protection or other human rights considerations, and no suggested rules for the legal or political accountability or control of the common unit, or the information system of the Border Corps. In fact the Commission explicitly suggests setting up the new information exchange system without any legal rules whatsoever governing its operation.

Details of the Communication

The Communication follows on from discussions in the Belgian Council Presidency and the request of the Laeken European Council in December 2001 that the EU address this issue. An Italian paper on the development of a common EU border guard is also due for release at the end of May, and recent conclusions of the Council indicate a desire to develop common EU policies on patrolling sea borders in particular.

The Commission's five suggested goals are:

(a) A common corpus of legislation;
(b) A common co-ordination and operational co-operation mechanism;
(c) Common integrated risk analysis;
(d) Staff trained in the European dimension and inter-operational equipment;
(e) Burden-sharing between Member States in the run-up to a European Corps of Border Guards.

The 'common corpus of legislation' will comprise a recast version of the EU Common Border Control Manual, clarifying its legal status; mandatory 'best practices' for border control; a non-binding manual for border guards; and rules on local border traffic. There is no further detail offered on the content of these future initiatives.

Subsequent legislative measures will comprise rules on information exchange between border guards and other immigration authorities and the powers and territorial reach of an EU corps of Border Guards. There should also be a legal framework for an inspection function and a measure for financing border measures from the EC budget. Most of these measures are discussed further below.

As for the common co-ordination and operational co-operation mechanism, it will comprise two elements: an 'External borders practitioners common unit' and exchange of information between border control bodies and other immigration authorities. The 'common unit' would have a number of functions: carrying out common integrated risk analysis; coordinating and controlling operational projects on the ground; 'leading', in particular in crisis situations; managing and strategising national policies; and performing inspections. It would also liase with national visa and residence permit authorities, along with police, judicial and customs authorities and Europol (and probably also Eurojust).

Institutionally, the common unit would be built on the existing meetings of border control heads within the Council's 'SCIFA' committee (the Strategic Committee on Immigration, Frontiers and Asylum). Its powers would gradually increase, particularly if a European Border Guards Corps were created (see below); in that case the 'common unit' would form the basis of the 'permanent headquarters staff structure' with the 'operational command', 'personnel management' and management of equipment for the Corps. The common unit would also perform the functions of the current Schengen 'border evaluation' working party, using more senior staff in the event of a (perceived) crisis. However, the unit would not have the power to proposed legislation or to adopt implementing legislation.

The common unit would be tasked with proposing the details of 'PROSECUR', an information exchange system dedicated to border control. This system would comprise:

- the SIS [Schengen Information System] used to consult information on the occasion of checks at external borders;

- the various electronic data banks being developed (e.g. network of visas issued and refused) to consult the information made available by other authorities;

- the channels for exchange of information relating to prevention of drug trafficking;

- an encrypted Intranet connecting national contact points to exchange information interactively or to consult on very precise measures to be taken within a very short time with regard to a person crossing the external border;

- the traditional means of telecommunication (telephone or radio), passing through national contact points if necessary.'

PROSECUR would also permit one border control unit 'to send another service the information and documents needed for the full treatment of an offence or threat observed at the external border'; to alert customs services; and to requisition plant health services or scientific laboratories. Also, Member States' intelligence services 'should be able to supply all border guard services and consulates of the Member States without delay with sufficiently relevant and precise information to enable them to exercise targeted surveillance of certain types of individuals, of objects, of geographical origins or modes of transport for a given period.' PROSECUR would have 'privileged links with' Europol and other bodies.

A legal framework for PROSECUR would be set up 'in the long term'

Risk Analysis would be performed by the 'common unit', on the basis of information supplied through the 'Prosecur' system.

The next issue is supply of personnel and equipment. The training of personnel would be ensured by the rapid adoption of a common curriculum for border guards, which would be developed by the 'common unit'. A common training college for border guards could then be developed. The Commission observes that 'it is equally important to ensure training for the border guards about respect for the rights of, and the protection of asylum seekers'. As for equipment, the Communication suggests interoperability of equipment and use of high technology measures such as satellite information on the external borders.

Finally, the Commission addresses funding and a European Corps of Border Guards. Eventually, the EC should establish a system of funding border controls. Even more controversially, the Commission suggests that there should be a 'European Corps' of guards with coercive powers, answerable to the 'common unit'. They would have the power to do the following, within a defined territorial area close to the external borders:

- check the identity papers, travel documents and visas of persons crossing the external border legally or illegally;

- question aliens on the reasons for their stay in the common area of freedom of movement, or on the reasons why they have crossed the external border outside the official crossing points;

- go on board a civilian ship or boat in the territorial waters of a Member State to question the captain as to his route and to verify the passengers' identity;

- notify a person that he is admitted or refused entry to the common area of freedom of movement;

- apprehend a person and hand him over to the competent national authorities to take the appropriate preventive or enforcement measures (administrative, police, customs or judicial) where necessary.'

Analysis

While the Commission claims that 'democratic and legal control of all these activities must be assured', the Communication is not reassuring on any of these points. The most important and far-reaching changes that would result from the Commission's plans are the creation of the 'common unit', the PROSECUR information and intelligence system and the European Corps of Border Guards.

It should be recalled that the legislative framework for these matters is principally Articles 62(2)(a) and 66 EC, which presently require a unanimous vote of the Member States in the Council and consultation of the European Parliament (EP). If the Treaty of Nice is ratified, Article 66 will move to a qualified majority vote with consultation of the EP from 1 May 2004, but Article 62(2)(a) will move to a a qualified majority vote of Member States with co-decision of the EP on the same date (or as soon as possible afterward), depending on whether the UK and Spain can settle the dispute as to the status of Gibraltar in this context. So before long, there will likely be a big difference between the two Articles as far as the control of the EP is concerned.

For the 'common unit', the Commission proposes to use Article 66 EC, which will still confer only consultation power on the EP after 1 May 2004. While the Commission emphasises that the 'common unit' will have no legislative powers, it will still have very considerable powers to implement policy. As such it is essential that the 'common unit' is accountable, transparent and subject to judicial control. However, in the past, agencies or similar bodies created by the EU have not always met these standards, and the Commission does not suggest any detailed rules which would ensure that the border control unit would do so.

As for PROSECUR, the Commission explicitly envisions that it will only be placed on a legal footing in the 'long term'. Unless the operation of PROSECUR in the meantime is confined merely to non-personal data, and/or making use of the existing rules of access governing existing databases which include personal data (which seems unlikely from the tenor of the Communication), then the legality of this approach is extremely doubtful. It is clear from the case law of the European Court of Human Rights that any measures interfering with the right to private and family life must be 'prescribed by law'; a purely informal decision to exchange personal data would therefore breach the European Convention on Human Rights. In fact the words 'data protection' do not even appear anywhere in the Communication.

Finally, as regards the European Border Guard Corps, the Commission acknowledges at the end that creation of the Corps may require amendment of the EC Treaty, at least for many of its functions. Implicitly, this is because the coercive powers imagined go well beyond the powers that Europol can exercise or that EU and Schengen rules permit national police or customs forces of one Member State to exercise in another. As such the extent of judicial and political control and accountability is essential. There is no discussion of the rules that would have to govern such a Corps as regards data protection, protection of human rights and asylum rules or judicial and political accountability. The main route of accountability envisioned seems to be control by the 'common unit', but this would further beg the question in turn as to the adequacy of judicial and legal controls on the common unit.



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