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.
