[statewatch.org] 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.
Background
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.
Ii 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.
Next
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 will vote 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.
Statewatch report
Source: http://www.statewatch.org/news/2010/mar/10ep-frontex-powers.htm
