SECTION 1 — General rules
Protection of fundamental rights and a fundamental rights strategy
1. The European Border and Coast Guard shall guarantee the protection of fundamental rights in the performance of its tasks under this Regulation in accordance with relevant Union law, in particular the Charter, and relevant international law, including the 1951 Convention relating to the Status of Refugees, the 1967 Protocol thereto, the Convention on the Rights of the Child and obligations related to access to international protection, in particular the principle of non-refoulement .
For that purpose, the Agency, with the contribution of and subject to the endorsement by the fundamental rights officer, shall draw up, implement and further develop a fundamental rights strategy and action plan, including an effective mechanism for monitoring respect for fundamental rights in all the activities of the Agency.
2. In the performance of its tasks, the European Border and Coast Guard shall ensure that no person, in contravention of the principle of non-refoulement , be forced to disembark in, forced to enter, or conducted to a country, or be otherwise handed over or returned to the authorities of a country where there is, inter alia, a serious risk that he or she would be subjected to the death penalty, torture, persecution, or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a risk of expulsion, removal, extradition or return to another country in contravention of the principle of non-refoulement .
3. In the performance of its tasks, the European Border and Coast Guard shall take into account the special needs of children, unaccompanied minors, persons with disabilities, victims of trafficking in human beings, persons in need of medical assistance, persons in need of international protection, persons in distress at sea and other persons in a particularly vulnerable situation, and shall address those needs within its mandate. The European Border and Coast Guard shall in all its activities pay particular attention to children's rights and ensure that the best interests of the child are respected.
4. In the performance of its tasks, in its relations with Member States and in its cooperation with third countries, the Agency shall take into account the reports of the consultative forum referred to in Article 108 and the reports of the fundamental rights officer.
Code of conduct
1. The Agency shall, in cooperation with the consultative forum, draw up and further develop a code of conduct which shall apply to all border control operations coordinated by the Agency and all persons participating in the activities of the Agency. The code of conduct shall lay down procedures intended to guarantee the principles of the rule of law and respect for fundamental rights with particular focus on vulnerable persons, including children, unaccompanied minors and other persons in a vulnerable situation, as well as on persons seeking international protection.
2. The Agency shall, in cooperation with the consultative forum, draw up and further develop a code of conduct for return operations and return interventions, which shall apply during all return operations and return interventions coordinated or organised by the Agency. That code of conduct shall describe common standardised procedures to simplify the organisation of return operations and return interventions, and shall assure return in a humane manner and with full respect for fundamental rights, in particular the principles of human dignity, the prohibition of torture and of inhuman or degrading treatment or punishment, the right to liberty and security and the right to the protection of personal data and non-discrimination.
3. The code of conduct for return shall in particular pay attention to the obligation of Member States to provide for an effective forced-return monitoring system as set out in Article 8(6) of Directive 2008/115/EC and to the fundamental rights strategy.
Tasks and powers of the members of the teams
1. Members of the teams shall have the capacity to perform tasks and exercise powers for border control and return as well as those which are necessary for the realisation of the objectives of Regulations (EU) No 656/2014 and (EU) 2016/399 and Directive 2008/115/EC.
2. The performance of tasks and the exercise of powers by members of the teams, in particular those requiring executive powers, shall be subject to the authorisation of the host Member State on its territory as well as to applicable Union, national or international law, in particular Regulation (EU) No 656/2014, as described in the operational plans referred to in Article 38.
3. While performing their tasks and exercising their powers, members of the teams shall fully ensure respect for fundamental rights and shall comply with Union and international law and the national law of the host Member State.
4. Without prejudice to Article 95(1) as regards statutory staff, members of the teams shall only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards or staff involved in return-related tasks of the host Member State. The host Member State may authorise members of the teams to act on its behalf.
5. The host Member State may report incidents related to non-compliance with the operational plan by members of the teams, including in relation to fundamental rights, to the Agency via the coordinating officer for possible follow-up, which may include disciplinary measures.
6. Statutory staff who are members of the teams shall wear the uniform of the standing corps while performing their tasks and exercising their powers. Members of the teams who are seconded from Member States for a long term or who are deployed for a short term shall wear their own uniform while performing their tasks and exercising their powers.
By way of derogation from the first subparagraph of this paragraph, the decision of the management board referred to in point (a) of Article 54(4) shall indicate the profiles to which the obligation to wear a uniform does not apply due to the specific nature of the operational activity.
All members of the teams shall wear visible personal identification and a blue armband with the insignias of the Union and of the Agency on their uniforms, identifying them as participating in a joint operation, migration management support team deployment, pilot project, rapid border intervention, return operation or return intervention. For the purposes of identification vis-à-vis the national authorities of the host Member State, members of the teams shall at all times carry an accreditation document, which they shall present upon request.
The design and specifications for the uniforms of the statutory staff shall be established by a decision of the management board, on the basis of a proposal from the executive director made after receiving the opinion of the Commission.
7. For staff who are seconded to the Agency or deployed from a Member State for a short term, the ability to carry and use service weapons, ammunition and equipment shall be subject to the home Member State's national law.
The ability to carry and use service weapons, ammunition and equipment by the statutory staff who are deployed as members of the teams shall be subject to the framework and detailed rules laid down in this Article and Annex V.
For the purpose of implementing this paragraph, the executive director may authorise statutory staff to carry and use weapons in accordance with the rules adopted by the management board, in line with point (b) of Article 55(5).
8. Members of the teams, including statutory staff, shall be authorised for the relevant profiles by the host Member State to perform tasks during a deployment that require the use of force, including the carrying and use of service weapons, ammunition and equipment, and shall be subject to the consent of either the home Member State or, for statutory staff, the Agency. The use of force, including the carrying and use of service weapons, ammunition and equipment, shall be exercised in accordance with the national law of the host Member State and in the presence of border guards of the host Member State. The host Member State may, with the consent of the home Member State or the Agency, where appropriate, authorise members of the teams to use force on its territory in the absence of border guards of the host Member State.
The host Member State may prohibit the carrying of certain service weapons, ammunition and equipment, provided that its own law applies the same prohibition to its own border guards or staff when involved in return-related tasks. The host Member State, in advance of the deployment of the members of the teams, shall inform the Agency of the permissible service weapons, ammunition and equipment and of the conditions for their use. The Agency shall make this information available to Member States.
9. Service weapons, ammunition and equipment may be used in legitimate self-defence and in legitimate defence of members of the teams or of other persons in accordance with the national law of the host Member State in line with relevant principles of international human rights law and the Charter.
10. For the purpose of this Regulation, the host Member State shall authorise members of the teams to consult Union databases, the consultation of which is necessary for fulfilling operational aims specified in the operational plan on border checks, border surveillance and return, through their national interfaces or another form of access provided in the Union legal acts establishing such databases, as applicable. The host Member State may also authorise members of the teams to consult its national databases where necessary for the same purpose. Member States shall ensure that they provide such database access in an efficient and effective manner. Members of the teams shall consult only those data which are strictly necessary for performing their tasks and exercising their powers. The host Member State shall, in advance of the deployment of the members of the teams, inform the Agency of the national and Union databases which may be consulted. The Agency shall make this information available to all Member States participating in the deployment.
That consultation shall be carried out in accordance with Union data protection law and the national data protection law of the host Member State.
11. Decisions to refuse entry in accordance with Article 14 of Regulation (EU) 2016/399 and decisions refusing visas at the border in accordance with Article 35 of Regulation (EC) No 810/2009 shall be taken only by border guards of the host Member State or by members of the teams if they are authorised by the host Member State to act on its behalf.
Accreditation document
1. The Agency shall, in cooperation with the host Member State, issue a document in the official language of the host Member State and another official language of the institutions of the Union to the members of the teams for the purpose of identifying them and as proof of the holder's rights to perform tasks and exercise powers as referred to in Article 82. That document shall include the following features of each member of the teams:
(a)
name and nationality;
(b)
rank or job title;
(c)
a recent digitised photograph; and
(d)
tasks authorised to be performed during the deployment.
2. The document shall be returned to the Agency at the end of each joint operation, migration management support team deployment, pilot project, rapid border intervention, return operation or return intervention.
Civil liability of the members of the team
1. Without prejudice to Article 95, where members of the teams are operating in a host Member State, that Member State shall be liable in accordance with its national law for any damage caused by them during their operations.
2. Where such damage is caused by the gross negligence or wilful misconduct of the members of the teams seconded or deployed by the Member States, the host Member State may request the home Member State to reimburse it for any sums that the host Member State has paid to the injured parties or persons entitled to receive such sums on behalf of the injured parties.
Where such damage is caused by gross negligence or wilful misconduct by the statutory staff, the host Member State may request the Agency to reimburse it for any sums that the host Member State has paid to the injured parties or persons entitled to receive such sums on behalf of the injured parties. This shall be without prejudice to any action before the Court of Justice of the European Union (the ‘Court of Justice’) against the Agency in accordance with Article 98.
3. Without prejudice to the exercise of its rights vis-à-vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or wilful misconduct.
4. Any dispute between Member States, or between a Member State and the Agency, relating to the application of paragraphs 2 and 3 of this Article which cannot be resolved by negotiations between them shall be submitted by them to the Court of Justice.
5. Without prejudice to the exercise of its rights vis-à-vis third parties, the Agency shall bear the costs of damage to its equipment during deployment, except in cases of gross negligence or wilful misconduct.
Criminal liability of the members of the teams
Without prejudice to Article 95, during a joint operation, pilot project, migration management support team deployment, rapid border intervention, return operation or return intervention, members of the teams in the territory of the host Member State, including statutory staff, shall be treated in the same way as officials of the host Member State with regard to any criminal offences that might be committed against them or by them.
SECTION 2 — Processing of personal data by the European Border and Coast Guard
General rules on processing of personal data by the Agency
1. The Agency shall apply Regulation (EU) 2018/1725 when processing personal data.
2. The management board shall adopt internal rules on the application of Regulation (EU) 2018/1725 by the Agency, including rules concerning the data protection officer of the Agency.
The Agency may, in accordance with Article 25 of Regulation (EU) 2018/1725, adopt internal rules restricting the application of Articles 14 to 22, 35 and 36 of that Regulation. In particular, the Agency may, for the performance of its tasks in the area of return, provide for internal rules restricting the application of those provisions on a case-by-case basis as long as the application of those provisions would risk jeopardising return procedures. Such restrictions shall respect the essence of the fundamental rights and freedoms, shall be necessary and proportionate to the objectives pursued and shall contain specific provisions, where relevant, as referred to in Article 25(2) of Regulation (EU) 2018/1725.
3. The Agency may transfer the personal data referred to in Articles 49, 88 and 89 to a third country or to an international organisation in accordance with Chapter V of Regulation (EU) 2018/1725 insofar as such transfer is necessary for the performance of the Agency's tasks. The Agency shall ensure that personal data that are transferred to a third country or to an international organisation are only processed for the purpose for which they were provided. The Agency shall indicate, at the moment of transferring personal data to a third country or to an international organisation, any restrictions on access to or use of those data, in general or specific terms, including as regards transfer, erasure or destruction. Where the need for such restrictions becomes apparent after the transfer of personal data, the Agency shall inform the third country or the international organisation accordingly. The Agency shall ensure that the third country or international organisation concerned complies with such restrictions.
4. Transfers of personal data to third countries shall not prejudice the rights of applicants for international protection and of beneficiaries of international protection, in particular as regards non-refoulement and the prohibition against disclosing or obtaining information set out in Article 30 of Directive 2013/32/EU of the European Parliament and of the Council ( 43 ) .
5. Member States and the Agency, as appropriate, shall ensure that information that is transferred or disclosed to third countries pursuant to this Regulation is not transmitted onward to other third countries or third parties. Provisions to that effect shall be included in any agreement or arrangement concluded with a third country providing for the exchange of information.
Purposes of processing of personal data
1. The Agency may process personal data only for the following purposes:
(a)
performing its tasks of organising and coordinating joint operations, pilot projects, rapid border interventions and in the framework of the migration management support teams as referred to in Articles 37 to 40;
(b)
performing its tasks of supporting Member States and third countries in pre-return and return activities, operating return management systems, as well as coordinating or organising return operations and providing technical and operational assistance to Member States and third countries in accordance with Article 48;
(c)
facilitating the exchange of information with Member States, the Commission, the EEAS and the following Union bodies, offices and agencies and international organisations: EASO, the European Union Satellite Centre, EFCA, EMSA, EASA and the Network Manager of the EATMN, in accordance with Article 88;
(d)
facilitating the exchange of information with the law enforcement authorities of the Member States, Europol or Eurojust in accordance with Article 90;
(e)
risk analysis by the Agency in accordance with Article 29;
(f)
performing its tasks in the framework of EUROSUR in accordance with Article 89;
(g)
operating the FADO system in accordance with Article 79;
(h)
administrative tasks.
2. Member States and their law enforcement authorities, the Commission, the EEAS, and those Union bodies, offices and agencies and international organisations referred to in points (c) and (d) of paragraph 1, that provide personal data to the Agency shall determine the purpose or the purposes for which those data are to be processed as referred to in paragraph 1. The Agency may decide to process such personal data for a different purpose which also falls under paragraph 1 only on a case-by-case basis after having determined that such processing is compatible with the initial purpose for which the data were collected and if authorised by the provider of the personal data. The Agency shall keep written records of case-by-case compatibility assessments.
3. The Agency, the Member States and their law enforcement authorities, the Commission, the EEAS, and those Union bodies, offices and agencies and international organisations referred to in points (c) and (d) of paragraph 1, may indicate, at the moment of transmitting personal data, any restrictions on access to those data or use of such data, in general or specific terms, including as regards the transfer, erasure or destruction of such data. Where the need for such restrictions becomes apparent after the transfer of personal data, they shall inform the recipients accordingly. The recipients shall comply with such restrictions.
Processing of personal data collected during joint operations, return operations, return interventions, pilot projects, rapid border interventions, and migration management support team deployments
1. Before each joint operation, return operation, return intervention, pilot project, rapid border intervention or migration management support team deployment, the Agency and the host Member State shall determine in a transparent manner the responsibilities for compliance with the data protection obligations. When the purpose and the means of processing are jointly determined by the Agency and the host Member State, they shall be joint controllers by means of concluding an arrangement between them.
For the purposes referred to in points (a), (b), (c), (e) and (f) of Article 87(1), the Agency shall only process the following categories of personal data collected by the Member States, by members of the teams, by its staff or by EASO that have been transmitted to it in the context of joint operations, return operations, return interventions, pilot projects, rapid border interventions, and migration management support team deployments:
(a)
the personal data of persons who cross the external borders without authorisation;
(b)
personal data that are necessary to confirm the identity and nationality of third-country nationals within the framework of the return activities, including passenger lists;
(c)
licence plate numbers, vehicle identification numbers, telephone numbers or ship and aircraft identification numbers which are linked to the persons referred to in point (a), and which are necessary for analysing routes and methods used for illegal immigration.
2. The personal data referred to in paragraph 1 may be processed by the Agency in the following cases:
(a)
where the transmission of those data to the authorities of the relevant Member States which are responsible for border control, migration, asylum or return, or to relevant Union bodies, offices and agencies, is necessary for those authorities or Union bodies, offices and agencies to fulfil their tasks in accordance with Union and national law;
(b)
where transmission of those data to the authorities of relevant Member States, relevant Union bodies, offices and agencies, third countries of return or international organisations is necessary for the purpose of identifying third-country nationals, acquiring travel documents or enabling or supporting return;
(c)
where necessary for the preparation of risk analyses.
Processing of personal data in the framework of EUROSUR
1. Where the national situational picture requires the processing of personal data, those data shall be processed in accordance with Regulation (EU) 2016/679 and, where applicable, Directive (EU) 2016/680. Each Member State shall designate the authority which is to be considered as controller within the meaning of point 7 of Article 4 of Regulation (EU) 2016/679 or point (8) of Article 3 of Directive (EU) 2016/680, as applicable, and which shall have central responsibility for the processing of personal data by that Member State. Each Member State shall notify the details of that authority to the Commission.
2. Ship and aircraft identification numbers shall be the only personal data that are permitted to be accessed in the European situational and specific situational pictures and the EUROSUR fusion services.
3. Where the processing of information in EUROSUR exceptionally requires the processing of personal data other than ship and aircraft identification numbers, any such processing shall be strictly limited to what is necessary for the purposes of EUROSUR in accordance with Article 18.
4. Any exchange of personal data with third countries in the framework of EUROSUR shall be strictly limited to what is absolutely necessary for the purposes of this Regulation. It shall be carried out in accordance with Chapter V of Regulation (EU) 2018/1725 by the Agency, and in accordance with Chapter V of Regulation (EU) 2016/679, with Chapter V of Directive (EU) 2016/680, as applicable, and with the relevant national provisions on data protection transposing that Directive, by the Member States.
5. Any exchange of information under Articles 72(2), 73(3) and 74(3) which provides a third country with data that could be used to identify persons or groups of persons whose request for access to international protection is under examination or who are under a serious risk of being subjected to torture, inhuman and degrading treatment or punishment, or any other violation of fundamental rights, shall be prohibited.
6. Member States and the Agency shall keep records of processing activities in accordance with, Article 30 of Regulation (EU) 2016/679, Article 24 of Directive (EU) 2016/680, and Article 31 of Regulation (EU) 2018/1725, as applicable.
Processing of operational personal data
1. Where the Agency, in the performance of its tasks under point (q) of Article 10(1) of this Regulation, processes personal data which it has collected while monitoring migratory flows, carrying out risk analyses or in the course of operations for the purpose of identifying suspects of cross-border crime, it shall process such personal data in accordance with Chapter IX of Regulation (EU) 2018/1725. Personal data processed for that purpose, including licence plate numbers, vehicle identification numbers, telephone numbers and ship or aircraft identification numbers which are linked to such persons, shall relate to natural persons whom the competent authorities of the Member States, Europol, Eurojust, or the Agency have reasonable grounds to suspect are involved in cross-border crime. Such personal data may include personal data of victims or witnesses where those personal data supplement the personal data of suspects processed by the Agency in accordance with this Article.
2. The Agency shall only exchange personal data as referred to in paragraph 1 of this Article with:
(a)
Europol or Eurojust where they are strictly necessary for the performance of their respective mandates and in accordance with Article 68;
(b)
the competent law enforcement authorities of the Member States where they are strictly necessary for those authorities for the purposes of preventing, detecting, investigating or prosecuting serious cross-border crime.
Data retention
1. The Agency shall delete personal data as soon as they have been transmitted to the competent authorities of Member States, other Union bodies, offices and agencies, in particular EASO, or transferred to third countries or international organisations or used for the preparation of risk analyses. The retention period shall, in any event, not exceed 90 days after the date of the collection of those data. Data shall be anonymised in the results of risk analyses.
2. Personal data processed for the purpose of performing return-related tasks shall be deleted as soon as the purpose for which they have been collected has been achieved, and shall be deleted no later than 30 days after the end of those tasks.
3. Operational personal data processed for the purposes of Article 90 shall be deleted as soon as the purpose for which they have been collected has been achieved by the Agency. The Agency shall continuously review the necessity of storing such data, in particular the personal data of victims and witnesses. In any case, the Agency shall review the necessity of storing such data no later than three months after the start of initial processing of such data, and every six months thereafter. The Agency shall decide on the continued storage of personal data, in particular the personal data of victims and witnesses, until the following review, only if such storage is still necessary for the performance of the Agency's tasks under Article 90.
4. This Article does not apply to personal data collected in the context of the FADO system.
Security rules on the protection of classified information and sensitive non-classified information
1. The Agency shall adopt its own security rules that shall be based on the principles and rules laid down in the Commission's security rules for protecting European Union classified information (EUCI) and sensitive non-classified information including, inter alia, provisions for the exchange of such information with third countries, and processing and storage of such information as set out in Commission Decisions (EU, Euratom) 2015/443 ( 44 ) and (EU, Euratom) 2015/444 ( 45 ) . Any administrative arrangement on the exchange of classified information with the relevant authorities of a third country or, in the absence of such arrangement, any exceptional ad hoc release of EUCI to those authorities, shall be subject to the Commission's prior approval.
2. The management board shall adopt the Agency's security rules following approval by the Commission. When assessing the proposed security rules, the Commission shall ensure that they are compatible with Decisions (EU, Euratom) 2015/443 and (EU, Euratom) 2015/444.
3. Classification shall not preclude information being made available to the European Parliament. The transmission and handling of information and documents transmitted to the European Parliament in accordance with this Regulation shall comply with the rules concerning the forwarding and handling of classified information which are applicable between the European Parliament and the Commission.
SECTION 3 — General framework and organisation of the Agency
Legal status and location
1. The Agency shall be a body of the Union. It shall have legal personality.
2. In each of the Member States, the Agency shall enjoy the most extensive legal capacity accorded to legal persons under their laws. It may, in particular, acquire or dispose of movable and immovable property and may be party to legal proceedings.
3. The Agency shall be independent in implementing its technical and operational mandate.
4. The Agency shall be represented by its executive director.
5. The seat of the Agency shall be Warsaw, Poland.
Headquarters agreement
1. The necessary arrangements concerning the accommodation to be provided for the Agency in the Member State in which the Agency has its seat and the facilities to be made available by that Member State, as well as the specific rules applicable to the executive director, the deputy executive directors, the members of the management board, Agency staff and members of their families in that Member State shall be laid down in a headquarters agreement between the Agency and the Member State in which the Agency has its seat.
2. The headquarters agreement shall be concluded after obtaining the approval of the management board.
3. The Member State in which the Agency has its seat shall provide the best possible conditions to ensure the proper functioning of the Agency, including multilingual, European-oriented schooling and appropriate transport connections.
Staff
1. The Staff Regulations, the Conditions of Employment and the rules adopted in agreement between the institutions of the Union for giving effect to those Staff Regulations and those Conditions of Employment shall apply to statutory staff.
2. The place of employment shall in principle be the Member State where the Agency's seat is located.
3. Statutory staff who are subject to the Conditions of Employment shall in principle be engaged initially for a fixed period of five years. Their contracts may in principle be renewed only once, for a fixed period of a maximum of five years. Any further renewal shall be for an indefinite period.
4. For the purpose of implementing Articles 31 and 44, only statutory staff who are subject to the Staff Regulations or to Title II of the Conditions of Employment may be appointed as liaison officers or coordinating officers. For the purpose of implementing Article 55, only statutory staff who are subject to the Staff Regulations or of the Conditions of Employment may be deployed as members of the teams.
5. The management board shall adopt implementing rules for giving effect to the Staff Regulations and Conditions of Employment in agreement with the Commission pursuant to Article 110(2) of the Staff Regulations.
6. Subject to prior approval by the Commission, the management board shall adopt rules related to staff from Member States to be seconded to the Agency in accordance with Article 56 and update them as necessary. Those rules shall include, in particular, the financial arrangements related to those secondments, including insurance, and training. Those rules shall take into account the fact that the staff are seconded to be deployed as members of the teams and are to have the tasks and powers provided for in Article 82. Such rules shall include provisions on the conditions of deployment. Where relevant, the management board shall aim to ensure consistency with the rules applicable to reimbursement of the mission expenses of the statutory staff.
Privileges and immunities
Protocol No 7 on the Privileges and Immunities of the European Union annexed to the Treaty on European Union (TEU) and to the TFEU shall apply to the Agency and its statutory staff.
Liability
1. Without prejudice to Articles 84 and 85, the Agency shall be liable for any activities it has undertaken in accordance with this Regulation.
2. The contractual liability of the Agency shall be governed by the law applicable to the contract in question.
3. The Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Agency.
4. In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its staff in the performance of their duties, including those related to the use of executive powers.
5. The Court of Justice shall have jurisdiction in disputes relating to compensation for the damage referred to in paragraph 4.
6. The personal liability of statutory staff towards the Agency shall be governed by the provisions laid down in the Staff Regulations and Conditions of Employment applicable to them.
Actions before the Court of Justice
1. Proceedings may be brought before the Court of Justice for the annulment of acts of the Agency that are intended to produce legal effects vis-à-vis third parties, in accordance with Article 263 TFEU, and for failure to act, in accordance with Article 265 TFEU, for non-contractual liability for damages caused by the Agency and, pursuant to an arbitration clause, contractual liability for damages caused by acts of the Agency, in accordance with Article 340 TFEU.
2. The Agency shall take the necessary measures to comply with judgments of the Court of Justice.
Administrative and management structure of the Agency
The administrative and management structure of the Agency shall include:
(a)
a management board;
(b)
an executive director;
(c)
deputy executive directors; and
(d)
a fundamental rights officer;
A consultative forum shall assist the Agency as an advisory body.
Functions of the management board
1. The management board shall be responsible for taking the strategic decisions of the Agency in accordance with this Regulation.
2. The management board shall:
(a)
appoint the executive director on the basis of a proposal from the Commission in accordance with Article 107;
(b)
appoint the deputy executive directors on the basis of a proposal from the Commission in accordance with Article 107;
(c)
adopt decisions on establishing antenna offices or prolonging the duration of their operation in accordance with Article 60(5) by a majority of two thirds of the members with a right to vote;
(d)
adopt decisions on conducting the vulnerability assessment in accordance with Article 32(1) and (10), with the decisions setting out measures adopted under Article 32(10) being passed by a majority of two thirds of the members with a right to vote;
(e)
adopt decisions on the lists of mandatory information and data to be exchanged with the Agency by the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks, as well as the national authorities responsible for return, to enable the Agency to perform its tasks, without prejudice to obligations established by this Regulation, in particular by Articles 49 and 86 to 89;
(f)
adopt decisions on the establishment of a common integrated risk analysis model in accordance with Article 29(1);
(g)
adopt decisions on the nature and terms of the deployment of liaison officers in Member States in accordance with Article 31(2);
(h)
adopt a technical and operational strategy for European integrated border management in accordance with Article 8(5);
(i)
adopt decisions on the profiles and the numbers of operational staff for the management of borders and migration within the standing corps, in accordance with Article 54(4);
(j)
adopt the Agency's annual activity report for the previous year and transmit it, by 1 July of each year at the latest, to the European Parliament, to the Council, to the Commission and to the Court of Auditors;
(k)
before 30 November of each year, and after duly taking into account the opinion of the Commission, adopt, by a majority of two thirds of the members with a right to vote, a single programming document containing, inter alia, the Agency's multiannual programming and its work programme for the following year and forward it to the European Parliament, to the Council and to the Commission;
(l)
establish procedures for the executive director to take decisions relating to the technical and operational tasks of the Agency;
(m)
adopt, by a majority of two thirds of the members with a right to vote, the annual budget of the Agency and exercise other functions in respect of the Agency's budget pursuant to Section 4 of this Chapter;
(n)
exercise disciplinary authority over the executive director and, in consultation with the executive director, over the deputy executive directors;
(o)
establish its rules of procedure;
(p)
establish the organisational structure of the Agency and adopt the Agency's staff policy;
(q)
adopt an anti-fraud strategy that is proportionate to the risk of fraud, taking into account the costs and benefits of the measures to be implemented;
(r)
adopt internal rules for the prevention and management of conflicts of interest in respect of its members;
(s)
exercise, in accordance with paragraph 8, with respect to statutory staff, the powers conferred by the Staff Regulations on the Appointing Authority and by the Conditions of Employment on the Authority Empowered to Conclude a Contract of Employment (the ‘appointing-authority powers’);
(t)
adopt implementing rules for giving effect to the Staff Regulations and the Conditions of Employment in accordance with Article 110(2) of the Staff Regulations;
(u)
ensure adequate follow-up to findings and recommendations stemming from the internal or external audit reports and evaluations, as well as from investigations of the European Anti-Fraud Office (OLAF);
(v)
adopt and regularly update the communication and dissemination plans referred to in the second subparagraph of Article 10(2);
(w)
appoint an accounting officer, subject to the Staff Regulations and the Conditions of Employment, who shall be completely independent in the performance of his or her duties;
(x)
decide on a common vulnerability assessment methodology, including the objective criteria against which the Agency shall carry out the vulnerability assessment, the frequency of such assessments and how consecutive vulnerability assessments are to be carried out;
(y)
decide on enhanced assessment and monitoring of a Member State as referred to in Article 32(2);
(z)
appoint the fundamental rights officer and a deputy fundamental rights officer in accordance with Article 109;
(aa)
establish special rules in order to guarantee the independence of the fundamental rights officer in the performance of his or her duties;
(ab)
approve the working arrangements with third countries;
(ac)
subject to the prior approval of the Commission, adopt the security rules of the Agency on protecting EUCI and sensitive non-classified information as referred to in Article 92;
(ad)
appoint a security officer, subject to the Staff Regulations and the Conditions of Employment, who shall be responsible for the security within the Agency, including for the protection of classified information and sensitive non-classified information;
(ae)
decide on any other matter where provided for in this Regulation.
The annual activity report referred to in point (j) shall be made public.
3. Proposals for decisions of the management board, as referred to in paragraph 2, on specific activities of the Agency to be carried out at, or in the immediate vicinity of, the external borders of any particular Member State or on working arrangements with third countries as referred to in Article 73(4) shall require a vote in favour of their adoption by the member of the management board representing that particular Member State or the Member State neighbouring that third country, respectively.
4. The management board may advise the executive director on any matter related to the development of operational management of the external borders and training, including activities related to research.
5. Should Ireland or the United Kingdom request to participate in specific activities, the management board shall decide thereon.
The management board shall take its decisions on a case-by-case basis. In its decisions, the management board shall consider whether the participation of Ireland or the United Kingdom contributes to the achievement of the activity in question. The decisions shall set out the financial contribution of Ireland or the United Kingdom to the activity for which the request for participation has been made.
6. The management board shall forward annually to the European Parliament and to the Council (‘the budgetary authority’) any information relevant to the outcome of the evaluation procedures conducted by the Agency.
7. The management board may establish an executive board composed of up to four representatives of the management board, including its chairperson, and a representative of the Commission, to assist it and the executive director with regard to the preparation of the decisions, programmes and activities to be adopted by the management board and to take certain provisional, urgent decisions on behalf of the management board when necessary. The executive board shall not take decisions that must be passed by a majority of two thirds of the management board. The management board may delegate certain clearly defined tasks to the executive board, in particular where this improves the efficiency of the Agency. It may not delegate to the executive board tasks related to decisions that must be passed by a majority of two thirds of the management board.
8. The management board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 of the Conditions of Employment, delegating relevant appointing-authority powers to the executive director and setting out the conditions under which this delegation of powers can be suspended. The executive director shall be authorised to sub-delegate those powers.
Where exceptional circumstances so require, the management board may by way of a decision temporarily suspend the delegation of the appointing-authority powers to the executive director and those sub-delegated by the latter. It may then exercise them itself or delegate them to one of its members or to a statutory staff member other than the executive director.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
