European Border and Coast Guard
(COM(2015)0671 – C8 0408/2015 – 2015/0310(COD))
Trilogue 21 June 2016
Drafting proposals:
(11a)
Given its activity at the external borders, the Agency should contribute to preventing and detecting serious crime with a cross-border dimension,
such as the [criminal] migrant smuggling, trafficking in human beings and terrorism, where it is appropriate for it to act and where it has obtained
relevant information through its activities. It should coordinate its activities with Europol as the agency responsible for supporting and strengthening
Member States’ actions and their cooperation in preventing and combating serious crime affecting two or more Member States.
Cross-border crimes necessarily entail a cross-border dimension. Such a cross-border dimension is characterised by crimes linked to the illegaly crossing
the external border, including trafficking in human beings or smuggling of migrants, where there is a direct link with the crossing of the external border
notwithstanding the provisions of article 1(2) of Council Directive 2002/90/EC which allows Member States NOT TO IMPOSE SANTCTIONS WHERE
THE AIM OF THE behaviouR is to PROVIDE humanitarian assistance to migrants.
(33)
The Commission and the Member States should be represented within a Management Board to exercise policy and political oversight over the
European Border and Coast Guard Agency. The Board should, where possible, consist of the operational heads of the national services responsible for
border guard management or their representatives. The parties represented in the Management Board should make efforts to limit turnover of their
representatives, in order to ensure continuity of the board’s work. This Board should be
responsible for the taking of strategic decisions of the Agency,
entrusted with the necessary powers to establish the budget, verify its execution, adopt the appropriate financial rules, establish transparent working
procedures for decision making by the European Border and Coast Guard Agency and appoint the Executive Director and the Deputy Executive Director.
The Executive Director should be responsible for the preparation and implementation of the strategic decisions taken by the Management as wel as
for the taking of decisions related to the operational activities of the Agency.The Agency should be governed and operated
taking into account in line
with the principles of the common approach on Union decentralised agencies adopted on 19 July 2012 by the European Parliament, the Council and the
European Commission.
The Executive Director should be responsible for the preparation and implementation of the strategic decisions taken by the
Management as wel as for the taking of decisions related to the operational activities of the Agency
Article 61
-1. The Management Board shall be responsible for the taking of strategic decisions of the Agency.
Article 67
3. The Executive Director shall
be responsible for the preparation and implementation of the strategic deicisions taken by the Management as well as
for the taking of decisions related to the operational activities of the Agency. The Executive Director have the following functions and powers:
3a.
(a) to
propose, prepare and implement the
strategic decisions and programmes and activities adopted by the Agency’s Management Board within
the limits specified by this Regulation, its implementing rules and any applicable law;
Article 72
Article 72
Article 72
Rapporteur Compromise proposal
Complaint Mechanism
Complaint Mechanism
Complaint Mechanism
1.
The Agency, in cooperation
1.
The Agency, in cooperation 1.
The Agency, in cooperation with COM text
with the Fundamental Rights Officer,
with the Fundamental Rights Officer, the Fundamental Rights Officer, shall
shall take the necessary measures to
shall take the necessary measures to take the necessary measures to set up
set up a complaint mechanism in
set up a complaint mechanism in
an independent, accessible,
accordance with this Article to
accordance with this Article to
transparent and effective complaint
monitor and ensure the respect for
monitor and ensure the respect for mechanism in accordance with this
fundamental rights in all the
fundamental rights in all the activities Article to monitor and ensure the
activities of the Agency.
of the Agency.
respect for fundamental rights in all the
activities of the Agency.
2.
Any person who is directly
2.
Any person who is directly 2.
Any person who is directly
Council text
affected by the actions of staff
affected by the actions of staff affected by the actions of staff involved
involved in a joint operation, pilot
involved in a joint operation, pilot in a joint operation, pilot project, rapid
project, rapid border intervention,
project, rapid border intervention,
border intervention,
migration
return operation or return
migration
management
support
management support team, return
intervention, and who considers him
teams, return operation or return
operation or return intervention, and
or herself to have been the subject of
intervention, and who considers him who considers him or herself to have
a breach of his or her fundamental
or herself to have been the subject of been the subject of a breach of his or
rights due to those actions, or any
a breach of his or her fundamental
her
violation of his or her fundamental
third parties intervening on behalf of
rights due to those actions, or any rights
, as protected by Union law, due
such a person, may submit a
third parties intervening on behalf of to those actions, or any third parties
complaint, in writing, to the Agency.
such a
person, may submit a
intervening on behalf of such a person,
may submit a complaint, in writing, to
complaint, in writing, to the Agency.
the Agency.
3.
Only substantiated
3.
Only substantiated complaints 3.
Only substantiated complaints
Council text
complaints involving concrete
involving concrete fundamental rights involving concrete fundamental rights
fundamental rights violations shall be
violations
shall
be
admissible. violations shall be admissible.
admissible. Complaints which are
Complaints which are anonymous,
Complaints which are
manifestly
anonymous, malicious, frivolous,
malicious,
frivolous,
vexatious,
unfounded, anonymous, malicious,
vexatious, hypothetical or inaccurate
hypothetical or inaccurate shall be frivolous, vexatious,
or hypothetical or
shall be excluded from the complaint
excluded
from
the
complaint inaccurate shall be excluded from the
mechanism.
mechanism.
complaint mechanism.
Complaints may
be submitted by third parties acting in
good faith in the interests of a
complainant who may wish to keep his
or her identity undisclosed.
4.
The Fundamental Rights
4.
The
Fundamental
Rights
4.
The Fundamental Rights Officer
4.
The
Fundamental
Rights
Officer shall be responsible for
Officer shall be responsible for shall be responsible for handling
Officer shall be responsible for
handling complaints received by the
handling complaints received by the
complaints received by the Agency in
handling complaints received by the
Agency in accordance with the right
Agency in accordance with the right
accordance with the
Charter, including
Agency in accordance with the right
to good administration. For this
to good administration. For this
the right to good administration. For
to good administration. For this
purpose, the Fundamental Rights
purpose, the Fundamental Rights this purpose, the Fundamental Rights
purpose, the Fundamental Rights
Officer shall review the admissibility
Officer shall review the admissibility Officer shall review the admissibility of a
Officer shall review the admissibility
of a complaint, register admissible
of a complaint, register admissible complaint, register admissible
of a complaint, register admissible
complaints, forward all registered
complaints, forward all registered complaints, forward all registered
complaints, forward all registered
complaints to the Executive Director,
complaints to the Executive Director,
complaints to the Executive Director,
complaints to the Executive Director,
forward complaints concerning
forward
complaints
concerning forward
and complaints concerning
forward
complaints
concerning
border guards to the home Member
members of the teams border guards
border guards to the home Member
members of the teams border guards
State and
, including the relevant
State and register the follow-up by
to the home Member State and
to the home Member State,
including
authority or body competent for
the Agency or that Member State.
register the follow-up by the Agency
the relevant authority or body
fundamental rights in Member State,
or that Member State.
within a determined time period. The
competent for fundamental rights in
Fundamental Rights Officer shal also
Member State, and register
and
register
and ensure the fol ow-up by the
ensure the follow-up by the Agency
Agency or that Member State.
Any
or that Member State.
decision shal be in written form and
reasoned. The Fundamental Rights
4a. (=para 8 of COM proposal)
Officer shal inform the complainant of
In accordance with the right to good
the decision on admissibility, and of the administration, if a complaint is
national authorities to which his or her
admissible, complainants shall be
complaint was forwarded.
informed that a complaint has been
If a complaint is not admissible,
registered, that an assessment has
complainants shal be informed of the
been initiated and that a response may
reasons and provided with further
be expected as soon as it becomes
options for addressing their concerns.
available.
If a complaint is forwarded
to national authorities or bodies, the
complainant shall be provided with
their contact details. If a complaint is
not admissible, complainants shall be
informed of the reasons and provided
with further options for addressing
their concerns.
Any decision shall be in written form
and reasoned.
5.
In case of a registered
5.
In case of a registered
5.
In
the case of a registered
5.
In
the case of a registered
complaint concerning a staff member
complaint concerning a staff member complaint concerning a staff member of
complaint concerning a staff member
of the Agency, the Executive
of the Agency, the Executive Director the Agency, the Executive Director shall
of the Agency, the Executive Director
Director shall ensure appropriate
shall ensure appropriate follow-up,
ensure appropriate fol ow-up,
in
shall ensure appropriate follow-up,
in
follow-up, including disciplinary
including disciplinary measures as
consultation with the Fundamental
consultation with the Fundamental
measures as necessary. The
necessary. The Executive Director
Rights Officer, including disciplinary
Rights Officer, including disciplinary
Executive Director shall report back
shall report back to the Fundamental
measures as necessary. The Executive
measures as necessary. The Executive
to the Fundamental Rights Officer as
Rights Officer as to the findings and Director shall report back to the
Director shall report back
within a
to the findings and follow-up given
follow-up given by the Agency to a Fundamental Rights Officer as to the
determined
timeframe
to
the
by the Agency to a complaint.
complaint. In case a complaint is findings and fol ow-up given by the
Fundamental Rights Officer as to the
related to data protection issues, the Agency to a complaint
regarding the
findings and follow-up given by the
implementation of disciplinary
Executive Director shall involve the
Agency to a complaint,
including
measures within a determined time
Data Protection Officer of the
disciplinary measures as necessary.
period, and if necessary, at regular
Agency.
In case a complaint is related to data
intervals thereafter.
protection issues, the Executive
Director shall involve the Data
Protection Officer of the Agency.
The
Fundamental Rights Officer and the
Data
Protection
Officer
shall
establish, in writing, a memorandum
of understanding specifying their
division of tasks and cooperation as
regards complaints received.
6.
In case of a registered
6.
In case of a
registered
6.
In case of a registered
6.
In case of a registered
complaint concerning a border guard
complaint concerning a border guard complaint concerning a border guard of
complaint concerning a border guard
of a host Member State or a member
of a host Member State or a member
a host Member State or a member of
of a host Member State or a member
of the teams, including seconded
of the teams, including seconded
the teams, including seconded members of the teams, including seconded
members of the teams or seconded
members of the teams or seconded
of the teams or seconded national
members of the teams or seconded
national experts, the home Member
national experts, the home Member experts, the home Member State shall
national experts, the home Member
State shall ensure appropriate follow-
State shall ensure appropriate follow-
ensure appropriate fol ow-up, including
State shall ensure appropriate follow-
up, including disciplinary measures
up, including disciplinary measures as
disciplinary measures as necessary or
up, including disciplinary measures as
as necessary or other measures in
necessary or other measures in other measures in accordance with
necessary or other measures in
accordance with national law. The
accordance with national law. The national law. The relevant Member
accordance with national law. The
relevant Member State shall report
relevant Member State shall report
State shall report back to the
relevant Member State shall report
back to the Fundamental Rights
back to the Fundamental Rights
Fundamental Rights Officer as to the
back to the Fundamental Rights
Officer as to the findings and follow-
Officer as to the findings and follow- findings and fol ow-up to a complaint
Officer as to the findings and follow-
up to a complaint.
up to a complaint.
within a determined time period, and if up to a complaint
within a determined
necessary, at regular intervals
time period, and if necessary, at
thereafter. Where the relevant
regular intervals thereafter. The
Member State does not report back,
Agency shall follow-up the matter in
the Agency shal send a warning letter
case no report is received from the
indicating the actions which the Agency
can take if no fol ow-up is received to
relevant Member State.
the letter.
6a.
Where a border guard or a
6a.
Where a border guard or a
seconded national expert is found to
seconded national expert is found to
have violated fundamental rights or
have violated fundamental rights or
international protection obligations,
international protection obligations,
the Agency shal request the Member
the Agency may shall request the
State to remove that border guard or
Member State to remove that border
seconded national expert immediately
guard or seconded national expert
from the activity of the Agency or the
immediately from the activity of the
rapid reaction pool.
Agency or the rapid reaction pool.
7.
The Fundamental Rights
7.
The
Fundamental
Rights
7.
The Fundamental Rights Officer
7.
The
Fundamental
Rights
Officer shall report to the Executive
Officer shall report to the Executive shall report to the Executive Director
Officer shall report to the Executive
Director and to the Management
Director and to the Management
and to the Management Board as to the Director and to the Management
Board as to the findings and follow-
Board as to the findings and follow-
findings and fol ow-up given to
Board as to the findings and follow-
up given to complaints by the
up given to complaints by the Agency complaints by the Agency and the
up given to complaints by the Agency
Agency and the Member States.
and the Member States.
Member States.
The Agency shal
and the Member States.
The Agency
include in its annual report information shall include in its annual report
on the complaints mechanism,
information on the complaints
indicating the number of complaints
mechanism.
received, the types of fundamental
rights violation, the operation
[The details for reporting could be
concerned and the fol ow-up measures
specified in a recital:
taken by the Agency and Member
the number of complaints received,
States.
the types of fundamental rights
violation, the operation concerned
and the follow-up measures taken by
the Agency and Member States.]
8.
In accordance with the right
8.
In accordance with the right to 8.
In accordance with the right
Moved above under 4.
to good administration, if a
good administration, if a complaint is to good administration, if a
complaint is admissible,
admissible, complainants shall be
complaint is admissible,
complainants shall be informed that a
informed that a complaint has been
complainants shall be informed that a
complaint has been registered, that
registered, that an assessment has
complaint has been registered, that
an assessment has been initiated and
been initiated and that a response may an assessment has been initiated and
that a response may be expected as
be expected as soon as it becomes that a response may be expected as
soon as it becomes available. If a
available. If a complaint is not soon as it becomes available. If a
complaint is not admissible,
admissible, complainants shall be
complaint is not admissible,
complainants shall be informed of
informed of the reasons and provided complainants shall be informed of
the reasons and provided with further
with further options for addressing the reasons and provided with further
options for addressing their concerns.
their concerns.
options for addressing their concerns.
9.
The Fundamental Rights
9.
The
Fundamental
Rights
9.
The Fundamental Rights Officer
9.
The Fundamental Rights Officer
Officer shall, after consulting the
Officer shall, after consulting the shall
establish the procedure for the
shall
in accordance with the provisions
Consultative Forum, draw up a
Consultative Forum, draw up a
complaints mechanism on the basis of
set out above and after consulting the
standardized complaint form
standardized
complaint
form
Article 41 of the Charter and in
Consultative Forum, draw up a
requiring detailed and specific
requiring
detailed
and
specific
accordance with the provisions set out
standardized complaint form requiring
information concerning the alleged
information concerning the alleged
above, after consulting the Consultative
detailed and specific information
breach of fundamental rights. The
breach of fundamental rights. The
Forum,
and draw up a standardized
concerning the alleged breach of
Fundamental Rights Officer shall
Fundamental Rights Officer shall
complaint form requiring detailed and
fundamental rights
and any further
submit that form to the Executive
submit that form to the Executive specific information concerning the
detailed rules as necessary. The
Director and to the Management
Director and to the Management
alleged breach of fundamental rights
Fundamental Rights Officer shall submit
Board.
Board.
violation. The Fundamental Rights
that form
and any further detailed rules
The Agency shall ensure that the
The Agency shall ensure that the Officer shall submit that form
and al
as necessary to the Executive Director
standardized complaint form is
standardized complaint form is
the other detailed procedures to the
and to the Management Board.
available in most common languages
available in most common languages
Executive Director and to the
The Agency shall ensure that the
and that it shall be made available on
and that it shall be made available on
Management Board.
information about the possibility and
the Agency’s website and in
the Agency’s website and in hardcopy The Agency shall ensure that the
procedure for making a complaint is
hardcopy during all activities of the
during all activities of the Agency.
information about the possibility and
readily available, including for
Agency. Complaints shall be
Complaints shall be considered by the
procedure for making a complaint is
vulnerable persons. The standardized
considered by the Fundamental
Fundamental Rights Officer even
readily available. The standardized
complaint form is
shall be made
Rights Officer even when they are
when they are not submitted in the complaint form is
shal be made
available in most common languages
available in most common languages
not submitted in the standardized
standardized complaint form.
and that it shall be made available
that
and that it shall be made available
that
complaint form.
third-country nationals understand
third-country nationals understand or
or are
reasonably believed to
are reasonably believed to understand
understand on the Agency’s website
on the Agency’s website and in
and in hardcopy during all activities
hardcopy during all activities of the
of the Agency. Complaints shall be
Agency.
Further guidance and
considered by the Fundamental
assistance on the complaints procedure
shal be provided to al eged victims and Rights Officer even when they are not
on request. Information tailored to
submitted
in
the
standardized
children and other vulnerable groups
complaint form.
shal be provided to facilitate their
access to the complaints mechanism.
Complaints shall be considered by the
Fundamental Rights Officer even when
they are not submitted in the
standardized complaint form.
10.
Any personal data contained
10.
Any personal data contained
10.
Any personal data contained in
10.
Any personal data contained
in a complaint shall be handled and in a complaint shall be handled and
a complaint shall be handled and
in a complaint shall be handled and
processed by the Agency and the processed by the Agency and
processed by the Agency and the
processed by the Agency and
Fundamental
Rights
Officer
in including the Fundamental Rights
Fundamental Rights Officer in
including the Fundamental Rights
accordance with Regulation (EC) No Officer, in accordance with
accordance with Regulation (EC) No
Officer, in accordance with
45/2001 and by Member States in Regulation (EC) No 45/2001 and by
45/2001 and by Member States in
Regulation (EC) No 45/2001 and by
accordance with Directive 95/46/EC Member States in accordance with
accordance with Directive 95/46/EC and Member States in accordance with
and Council Framework Decision Directive 95/46/EC and Council
Council Framework Decision
Directive 95/46/EC and Council
2008/977/JHA.
Framework Decision 2008/977/JHA.
2008/977/JHA.
Framework Decision 2008/977/JHA.
The submission of the complaint is
The submission of the complaint is
The submission of the complaint is
understood as the complainant
understood as the complainant
understood as the complainant
consenting to the processing of his or
consenting to the processing of his or
consenting to the processing of his or
The submission of the complaint is
her personal data in the meaning of
her personal data in the meaning of
her personal data in the meaning of
understood as the complainant
point (d) of Article 5 of Regulation
point (d) of Article 5 of Regulation
point (d) of Article 5 of Regulation (EC)
consenting to the processing of his or
(EC) No 45/2001 by the Agency and
(EC) No 45/2001 by the Agency and
No 45/2001 by the Agency and the
her personal data in the meaning of
the Fundamental Rights Officer.
the Fundamental Rights Officer.
Fundamental Rights Officer.
In order to safeguard the interest of the point (d) of Article 5 of Regulation
In order to safeguard the interest of
In order to safeguard the interest of complainants, complaints shall be dealt (EC) No 45/2001 by the Agency and
the complainants, complaints shall be
the complainants, complaints shall be with confidentially unless the
the Fundamental Rights Officer.
dealt with confidentially unless the
dealt with appropriate confidentially complainant waives his or her right to
complainant waives his or her right
in accordance with national and EU confidentiality. For complainants who
In order to safeguard the interest of
to confidentiality. For complainants
law unless the complainant waives his waive their right to confidentiality, it is
the complainants, complaints shall be
who waive their right to
or her right to confidentiality. For understood that he or she consents to
dealt with confidentially
by the
confidentiality, it is understood that
complainants who waive their right to
the Fundamental Rights Officer or the
Fundamental Rights Officer
in
he or she consents to the
confidentiality, it is understood that
Agency disclosing his or her identity
to
accordance with national and EU law
Fundamental Rights Officer or the
he or she consents to the Fundamental
the competent authority and where
unless
the
complainant
waives
Agency disclosing his or her identity
Rights Officer or the Agency
relevant or necessary, the relevant
explicitly
his or her right to
in relation to the matter under
disclosing his or her identity in
authority or body competent for
confidentiality. For complainants who
complaint.
relation to the matter under complaint.
fundamental rights of the relevant
waive their right to confidentiality, it
Member State in relation to the matter
is understood that he or she consents
under complaint.
to the Fundamental Rights Officer or
the Agency disclosing his or her
identity
to comptetent authorities or
bodies in relation to the matter under
complaint
, where neceesary.
10a.
Data protection rights and
Withdraw amendment
related complaints submitted by data
subjects shal be dealt with separately
by the Data Protection Officer
established in accordance with Article
44(1) of this Regulation. The
Fundamental Rights Officer and the
Data Protection Officer shal establish,
in writing, a memorandum of
understanding specifying their division
of tasks as regards complaints
received.
Commission services proposal regarding Presidency proposals on equipment
Article 38
(3a)
The technical equipment pool shall contain a Rapid reaction equipment Pool with a limited number of equipment needed for possible Rapid
border interventions.
The contributions of Member States to this pool shall be planned in accordance with annual bilateral negotiations and
agreements refered in paragraph 4. For the equipment on this list, Member States may not invoke the exceptional situation referred to in paragraph 4.
The equipment on this list shall be sent to the destination for deployment as soon as possible but not later than 10 days after the date on which the
operational plan is agreed.
The Agency shall contribute to this pool with equipment at the Agency’s disposal as referred to in article 37(1).
Article 38
5.
On a proposal of the Executive Director, the Management Board shall decide, on a yearly basis, on the rules relating to technical equipment,
including the required overall minimum numbers per type of technical equipment, the conditions for deployment and reimbursement of costs as well on
the limited number of technical equipment for a Rapid reaction equipment Pool. For budgetary purposes that decision should be taken by the Management
Board by 30 June each year. within 30 days from the date of adoption of the annual work programme