EUROPEAN COMMISSION

Brussels, 21.12.2021

COM(2021) 829 final

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

Model status agreement as referred to in Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624

1.Introduction

Active cooperation with third countries is a key element of European integrated border management. 1  Since the now-repealed 2016 Regulation on the European Border and Coast Guard 2 , the European Border and Coast Guard Agency (the ‘Agency’), commonly referred to as Frontex, has been empowered to deploy teams with executive powers to third countries neighbouring the European Union, subject to the conclusion of a status agreement – an international agreement between the European Union and the third country negotiated, signed and concluded under Article 218 of the Treaty on the Functioning of the European Union. In 2016, the Commission adopted a model status agreement 3  based on Regulation (EU) 2016/1624, which served as a basis for the negotiations with Albania, Bosnia and Herzegovina, North Macedonia, Montenegro and Serbia. Currently, the status agreements with Serbia, Albania and Montenegro have been concluded 4  and joint operations have been successfully launched in all three countries. Status agreements with North Macedonia and Bosnia and Herzegovina have been initialled but await finalisation.

In 2019, the mandate of Frontex was further expanded via Regulation (EU) 2019/1896 on the European Border and Coast Guard 5 (the ‘Regulation’). The Regulation expanded the tasks of the Agency as well as the number of potential partners for status agreements. In particular, the Agency may now deploy team members with executive powers to any third country as long as the deployment contributes to the effective implementation of the European Integrated Border Management, in other words deployment is no longer limited to third countries neighbouring the European Union. As previously, a status agreement must be concluded where the deployment of team members with executive powers to a third country is envisaged. 6

The present Communication sets out the model status agreement provided for in Article 76(1) of Regulation (EU) 2019/1896. It is an update of the model adopted in 2016, which embeds the novelties introduced by Regulation (EU) 2019/1896, in particular the reinforcement of the protection of fundamental rights and of personal data, while also drawing on experience gained in negotiating the already concluded status agreements.

2.Cooperation with third countries in the framework of the European Border and Coast Guard Regulation

In its conclusions of 28 June 2018, the European Council called for the supportive role of the Agency with regard to ensuring the effective control of the Union’s external borders, including in cooperation with third countries, to be further strengthened through increased resources and an enhanced mandate. 7

Well-structured and permanent cooperation with third countries is a key factor for achieving the objectives of European integrated border management. The Regulation lists “cooperation with third countries in the areas covered by this Regulation, focusing in particular on neighbouring third countries and on those third countries which have been identified through risk analysis as being countries of origin or transit for illegal immigration” as a component of European integrated border management. 8  Such cooperation should serve to promote European border management and return standards, to exchange information and risk analysis, and to facilitate the implementation of returns with a view to increasing their efficiency and to supporting third countries in the area of border management and migration, including through the deployment of the standing corps where such support is required to protect external borders and the effective management of the Union's migration policy. 9  

The Agency is called upon to cooperate with third countries in matters covered by the Regulation, to assist third countries in the context of technical and operational cooperation between them in certain matters, to assist third countries in the training of border management authorities, and to provide assistance to third countries in support of search and rescue operations for persons in distress at sea. 10  The Regulation allows for the deployment of members of the Agency’s standing corps in joint operations, rapid border interventions, return interventions or other relevant activities in third countries (with the authorisation of the third country concerned). 11  The Regulation specifically permits the Agency to cooperate with the border management authorities of third countries 12 “to the extent required for the fulfilment of its tasks.” 13  

The Agency is required to inform the European Parliament, the Council and the Commission of any activities it conducts in cooperation with authorities of third countries and to provide detailed information on these activities’ compliance with fundamental rights. 14 The Agency is furthermore obligated to include an assessment of its cooperation with third countries in its annual reports as well as to make its agreements, working arrangements, pilot projects and technical assistance projects with third countries public. 15

When cooperation between the Agency and a third country requires the deployment to the third country of border management teams who will exercise executive powers, the Regulation requires a status agreement to be in place between the Union and that third country. 16  Border management teams are composed of members of the European Border and Coast Guard standing corps 17  and can be deployed in Member States, at the external borders and on the territory of third countries during joint operations and rapid border interventions (referred to collectively in the model status agreement as “operational activities”). 18  Each status agreement can serve as an umbrella under which multiple operational activities can be carried out. 

Notably, whenever the Commission recommends that the Council authorise it to negotiate a status agreement with a third country, it must assess the fundamental rights situation in the third country relevant to the areas covered by the agreement and inform the European Parliament thereof. 19  

The Agency may also act within the framework of a working arrangement concluded with the relevant third country authorities on matters related to the management of operational cooperation. 20  

Any Agency operation on the territory of a third country must be included in the annual work programme adopted by the Agency’s management board and carried out on the basis of an operational plan agreed between the Agency and the relevant authorities of the third country in consultation with the participating Member States. 21 Where a Member State or Member States neighbour the third country or border the operational area of the third country, the operational plan and any amendments thereto are subject to the agreement of that Member State or those Member States. 22  

With regard to return, the Regulation allows the Agency to (i) provide assistance at all stages of the return process (without entering into the merits of return decisions, which remain the sole responsibility of the Member States); (ii) assist with the coordination and organisation of return operations; (iii) provide technical and operational support to implement the obligation to return returnees; (iv) and provide technical and operational support to return operations and interventions. 23  The Regulation does not provide for teams other than border management teams to be deployed operationally to third countries 24 and does not envisage the exercise of executive powers in a third country in the framework of returns by members of the standing corps. A status agreement would thus not be the appropriate instrument via which to organise return operations. 25

3.Model Status Agreement

The Regulation calls upon the Commission, after consulting the Member States, the Agency, the European Union Agency for Fundamental Rights and the European Data Protection Supervisor, to draw up a model status agreement for actions conducted on the territory of third countries. 26 The model status agreement must set out, in particular, the scope of the operational activity, provisions on civil and criminal liability, the tasks and powers of the team members, measures related to the establishment of an antenna office and practical measures related to the respect of fundamental rights. 27

Consequently, the model contains the following specific provisions:

-Article 1 provides the scope of the status agreement, which includes all matters necessary for deploying border management teams with executive powers from the standing corps to the territory of the relevant third country;

-Article 2 lists definitions of key terms used in the model (it must be noted that while definitions in the model refer to the relevant provisions of Union legislation, as per standard practice the status agreements with third countries will contain the wording of these provisions rather than references thereto); 

-Article 3 describes the manner in which an operational activity (i.e., a joint operation or rapid border intervention) can be launched (it must be noted that a status agreement regulates only the obligations of the parties vis-à-vis one-another; should not be interpreted as affecting their obligations under relevant legislation, in particular the European Border and Coast Guard Regulation 28 );

-Article 4 provides that an operational plan should be adopted for each operational activity, detailing the organisational and procedural aspects thereof;

-Article 5 requires the parties to have in place a mechanism for reporting any situation relating to illegal immigration, cross-border crime, or a risk to the lives of migrants at, along or in the proximity of, the external borders of the European Union or the relevant third country;

-Article 6 allows the Agency to establish antenna offices in the relevant third country, subject to the third country’s agreement;

-Article 7 describes the role of the coordinating officer;

-Article 8 ensures that fundamental rights are fully respected at all times in relation to the application of the status agreement and requires that complaints mechanisms be in place to allow allegations of breaches of fundamental rights to be reported and processed;

-Article 9 describes the role of the fundamental rights monitors;

-Article 10 lays out the tasks and powers of the team members, including that they can only perform tasks and exercise powers described in the operational plan;

-Article 11 provides for the inviolability of the property, funds, assets and operations of the Agency in the relevant third country;

-Article 12 lists the privileges and immunities of the team members, including civil and criminal liability;

-Article 13 makes provisions for injured or deceased team members;

-Article 14 describes the particulars of the accreditation documents that must be issued to each team member;

-Article 15 applies articles 12 to 14 to all Agency staff deployed to the relevant third country;

-Article 16 lists the rules on processing and protection of personal data;

-Article 17 lays out the prerequisites for the exchange of classified and sensitive non-classified information between the Agency and the relevant third country;

-Article 18 contains rules on the withdrawal of financing from or suspension or termination of an operational activity;

-Article 19 provides for the relevant third country to proactively inform the relevant Union bodies in the event that it becomes aware of allegations of fraud, corruption or other illegal activities that may affect the interests of the European Union;

-Article 20 describes the entities responsible for implementing the status agreement;

-Article 21 regulates how disputes concerning the interpretation of the agreement are to be resolved;

-Article 22 describes the procedure for the entry into force, amendment duration, suspension and termination of the agreement.

4.    Conclusions

The Agency’s expanded competence to carry out operational activities on the territory of any third country where such deployment contributes to the effective implementation of European Integrated Border Management will contribute significantly to improving the Union’s border security. The enclosed model status agreement establishes a framework for the cooperation between the Agency and its teams on the one hand and the relevant authorities of third countries on the other. While the Commission will use this model as a starting point for every status agreement negotiation with a third country on behalf of the European Union, the final texts of such agreements will necessarily have been adapted in accordance with the specific realities of each negotiating partner and the differing objectives of the Union in relation to those partners. The Commission will nonetheless strive to preserve the essence of the model status agreement during such negotiations.

(1)

     European integrated border management, based on the four-tier access control model, comprises measures in third countries, such as under the common visa policy, measures with neighbouring third countries, border control measures at the external borders, risk analysis and measures within the Schengen area and return. The new European Border and Coast Guard Regulation recognises cooperation with third countries as an important element of European integrated border management. (Recital 87)

(2)

     Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC, OJ L 251, 16.9.2016, p. 1–76.

(3)

     Communication from the Commission to the European Parliament and the Council on the model status agreement as referred to in Article 54(5) of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard, 22.11.2016, COM(2016) 747 final.

(4)

     Council Decision (EU) 2020/865, Council Decision (EU) 2018/1031 and Council Decision (EU) 2020/729, respectively.

(5)

     Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, OJ L 295, 14.11.2019, p. 1–131.

(6)

     Article 73(3).

(7)

      https://www.consilium.europa.eu/media/35936/28-euco-final-conclusions-en.pdf  

(8)

     Article 3(G)

(9)

     Recital 87

(10)

     Article10

(11)

     Article54

(12)

     “the authorities of third countries competent in matters covered by this Regulation”

(13)

     Article 73(1)

(14)

     Article 73(7).

(15)

     Article 73(7-8).

(16)

     Article 73(3)

(17)

     The standing corps is composed of four categories of operational staff: (i) statutory staff of the Agency; (ii) staff seconded from Member States to the Agency for a long term; (iii) staff from Member States who are ready to be provided to the Agency for short-term deployment; and (iv) staff from the Member States who are ready to be deployed for rapid border interventions. (Regulation Article 54(1)). [NB: for the purposes of the model status agreement, staff falling into the first category are described as “Members of the teams who are statutory staff of the Agency” and staff falling into the remaining three categories are described as “Members of the teams who are not statutory staff of the Agency”.]

(18)

     Article 2(18)

(19)

     Recital 88

(20)

     Article 73(4)

(21)

     Article 74(3)

(22)

     Article 74(3)

(23)

     Article 10(1)(n)

(24)

     Article 10(1)(u)

(25)

     Notably, the Regulation does identify “liaising with third countries with a view to identifying and obtaining travel documents for returnees” and “escorting third-country nationals subject to forced-return procedures” as permissible tasks requiring executive powers – neither of these, however, would be carried out on the territory of the third country.

(26)

     Article 76

(27)

     Article 73(3)

(28)

     Regulation (EU) 2019/1896

EUROPEAN COMMISSION

Brussels, 21.12.2021

COM(2021) 829 final

ANNEX

to the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

Model status agreement as referred to in Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624

Model for a status agreement between the European Union and [third country] on operational activities carried out by the European Border and Coast Guard Agency in [third country]

The European Union,

and [Third country],

hereinafter referred to individually as a “Party” and collectively as the “Parties”,

WHEREAS situations may arise where the European Border and Coast Guard Agency (‘the Agency’) coordinates operational cooperation between the Member States of the European Union and [third country], including on the territory of [third country],

WHEREAS a legal framework in the form of a status agreement should be established for the situations where the team members deployed by the Agency will have executive powers on the territory of [third country],

WHEREAS the status agreement may provide for the establishment by the Agency of antenna offices on the territory of [third country] to facilitate and improve coordination of operational activities and to ensure the effective management of the human and technical resources of the Agency,

CONSIDERING the high level of protection of personal data in [third country] and the European Union; and

When applicable [CONSIDERING that [third country] has ratified [relevant international law instrument in the area of personal data protection concluded by the third state and that would indicate sufficient level of protection, e.g., Council of Europe Convention No. 108 of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data and its additional Protocol];

BEARING IN MIND that respect for human rights and democratic principles are fundamental principles governing the cooperation between the Parties;

CONSIDERING that [third country] has ratified [relevant international law instrument in the area of fundamental rights protection concluded by the third state and that would indicate sufficient level of protection, e.g., the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, which are reflected in the Charter of Fundamental Rights of the European Union];

CONSIDERING that all operational activities of the Agency on the territory of [third country] should fully respect fundamental rights and the international agreements to which the European Union, its Member States and/or [third country] are party,

CONSIDERING that all persons participating in an operational activity are obliged to maintain the highest standards of integrity, ethical conduct, professionalism and respect for fundamental rights as well as to meet obligations imposed upon them by the provisions of the operational plan and the Agency’s code of conduct,

have decided to conclude the following Agreement:

Article 1
Scope 

1.This agreement governs all matters necessary for the deployment of border management teams from the European Border and Coast Guard standing corps to [third country] where the team members may exercise executive powers.

2.The operational activities referred to in paragraph 1 may take place on the territory of [third country], including at its [land], [sea] and [air] borders with [other country/countries].

[For coastal/insular third countries] Subject to the parties’ obligations under the law of the sea, in particular the United Nations Convention on the Law of the Sea, operational activities may also take place in [third country’s] contiguous zone. Operational activities implemented under this agreement shall not affect search and rescue obligations deriving from the law of the sea, in particular the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea and the International Convention on Maritime Search and Rescue.

Article 2
Definitions

For the purposes of this Agreement, the following definitions apply:

-‘operational activity’ means a joint operation or a rapid border intervention;

-‘Agency’ means the European Border and Coast Guard Agency established by Regulation (EU) 2019/1896 1 on the European Border and Coast Guard or any amendment thereto;

-‘border control’ means border control as defined in point 10 of Article 2 of Regulation (EU) 2016/399 2 ;

-‘border management teams’ means teams formed from the European Border and Coast Guard standing corps to be deployed during joint operations and rapid border interventions at the external borders in Member States and in third countries;

-‘consultative forum’ means the advisory body established by the Agency pursuant to Article 108 of Regulation (EU) 2019/1896;

-‘European Border and Coast Guard standing corps’ means European Border and Coast Guard standing corps provided for in Article 54 of Regulation (EU) 2019/1896;

-‘EUROSUR’ means EUROSUR as defined in point 9 of Article 2 of Regulation (EU) 2019/1896;

-‘fundamental rights monitor’ means fundamental rights monitor as provided for in Article 110 of Regulation (EU) 2019/1896;

-‘home Member State’ means home Member State as defined in point 21 of Article 2 of Regulation (EU) 2019/1896;

-‘incident’ means a situation relating to illegal immigration, cross-border crime, or a risk to the lives of migrants at, along or in the proximity of, the external borders of the European Union or [third country];

-‘joint operation’ means an action coordinated or organised by the Agency to support the national authorities of [third country] responsible for border control aimed at addressing challenges such as illegal immigration, present or future threats at the borders of [third country] or cross‑border crime or aimed at providing increased technical and operational assistance for the control of these borders;

-‘team member’ means a member of the European Border and Coast Guard standing corps deployed through a border management team to participate in an operational activity;  

-‘Member State’ means a Member State of the European Union;

-‘operational area’ means the geographical area wherein an operational activity is to take place;

-‘participating Member State’ means participating Member State as defined in point 22 of Article 2 of Regulation (EU) 2019/1896;

-‘personal data’ means personal data as defined in point 1 of Article 4 of Regulation (EU) 2016/679 3 ;

-‘rapid border intervention’ means an action aimed at responding to a situation of specific and disproportionate challenge at the borders of [third country] by deploying border management teams in the territory of [third country] for a limited period of time to conduct border control together with the national authorities of [third country] responsible for border control;

-‘Statutory staff’ means statutory staff as defined in point 15 of Article 2 of Regulation (EU) 2019/1896;

Article 3
Launching Operational Activities

1.An operational activity under this agreement shall be launched by a written decision of the Agency’s executive director upon a written request of the competent authorities of [third country]. Such request shall include a description of the situation, possible aims and envisaged needs, and the profiles of staff needed, including those staff having executive powers, as applicable.

2.If the Agency’s executive director considers that the requested operational activity would likely entail or lead to serious and/or persistent violations of fundamental rights or international protection obligations, then the executive director shall not launch the operational activity.

3.If, following the receipt of a request under paragraph 1, the Agency’s executive director considers that further information is necessary in order to decide whether to launch an operational activity, he or she may request further information or authorise Agency experts to travel to [third country] to assess the situation there. [Third country] shall facilitate such travel.

4.The Agency’s executive director shall decide not to launch an operational activity if he or she considers there to be justified cause to suspend or terminate it under the relevant provisions of Article 18.

Article 4
Operational Plan

1.An operational plan shall be agreed upon for each operational activity between the Agency and [third country] in accordance with Articles 38 and 74 of Regulation (EU) 2019/1896. The operational plan shall be binding on the Agency, [third country] and the participating Member States.

2.[In case a Member State neighbours the third country or borders the operational area] The operational plan and any amendments thereto shall be subject to the agreement of any Member States neighbouring [third country] and/or bordering the operational area.

3. The operational plan shall set out in detail the organisational and procedural aspects of the operational activity, including:

(a)a description of the situation, with modus operandi and objectives of the deployment, including the operational aim;

(b)the estimated time that the operational activity is expected to last in order to achieve its objectives;

(c)the operational area;

(d)a description of the tasks, including those requiring executive powers, responsibilities, including with regard to the respect for fundamental rights and data protection requirements, and special instructions for the teams, including on permissible consultation of databases and permissible service weapons, ammunition and equipment in [third country];

(e)the composition of the border management team as well as the deployment of other relevant staff/ presence of other members of the Agency’s statutory staff, including fundamental rights monitors;

(f)command and control provisions, including the names and ranks of the border guards or other relevant staff of [third country] responsible for cooperating with the team members and the Agency, in particular the names and ranks of those border guards or other relevant staff who are in command during the period of deployment, and the place of the team members in the chain of command;

(g)the technical equipment to be deployed during the operational activity, including specific requirements such as conditions for use, requested crew, transport and other logistics, and financial provisions;

(h)detailed provisions on immediate incident reporting by the Agency to the management board and to relevant authorities of the participating Member States and of [third country] of any incident encountered in the course of an operational activity performed under this Agreement;

(i)a reporting and evaluation scheme containing benchmarks for the evaluation report, including with regard to the protection of fundamental rights, and final date of submission of the final evaluation report;

(j)[If applicable] regarding sea operations, specific information on the application of the relevant jurisdiction and applicable law in the operational area, including references to national, international and Union law regarding interception, rescue at sea and disembarkation;

(k)the terms of cooperation with Union bodies, offices and agencies other than the Agency, other third countries or international organisations;

(l)general instructions on how to ensure the safeguarding of fundamental rights during the operational activity including personal data protection and obligations deriving from applicable international human rights instruments;

(m)procedures whereby persons in need of international protection, victims of trafficking in human beings, unaccompanied minors and other persons in vulnerable situations are directed to the competent national authorities for appropriate assistance;

(n)procedures setting out a mechanism to receive and transmit to the Agency and [third country] complaints (including those lodged under Article 8(5) hereunder) against any person participating in an operational activity, including border guards or other relevant staff of [third country] and team members, alleging breaches of fundamental rights in the context of their participation in an operational activity of the Agency;

(o)logistical arrangements, including information on working conditions and the environment of the areas in which the operational activity is to take place.

(p)[If applicable] provisions concerning an antenna office, as established in accordance with Article 6.

4.Any amendments to or adaptations of the operational plan shall require the agreement of the Agency and [third country], after consultation of the participating Member States.

5.Exchange of information and operational cooperation for the purposes of EUROSUR shall take place in accordance with the rules for establishing and sharing the specific situational pictures to be set out in the operational plan for the operational activity concerned.

6.The evaluation of the operational activity in accordance with paragraph (3)(i) of this article shall be conducted jointly by [third country] and the Agency.

7.The terms of cooperation with Union bodies, offices and agencies in accordance with paragraph (3)(k) of this article shall be conducted in line with their respective mandates and within available resources.

Article 5
Incident Reporting

The Agency and [relevant authority of third country] shall each have an incident reporting mechanism to allow timely reporting of any incident encountered in the course of an operational activity performed under this Agreement.

The Agency and [third country] shall assist each other in carrying out all necessary inquiries and investigations into any incident reported via this mechanism such as identifying witnesses and collecting and producing evidence, including requests to obtain and, if appropriate, hand over items connected with a reported incident. The handing over of any such items may be made subject to their return within the terms specified by the competent authority delivering them.

Article 6
Antenna Offices

1.The Agency may establish antenna offices on the territory of [third country] to facilitate and improve coordination of operational activities and to ensure the effective management of the human and technical resources of the Agency. The location of the antenna office shall be established by the Agency.

2.The antenna offices shall be established in accordance with operational needs and remain operational for the period of time necessary for the Agency to carry out operational activities in [third country] and the neighbouring region. Subject to the agreement of [third country], that period of time may be prolonged by the Agency.

3.Each antenna office shall be managed by a representative of the Agency appointed by the executive director as head of the antenna office who shall oversee the overall work of the office.

4.The antenna offices shall, where applicable:

(a)provide operational and logistical support and ensure the coordination of Agency's activities in the operational areas concerned;

(b)provide operational support to [third country] in the operational areas concerned;

(c)monitor the activities of the teams and regularly report to the Agency's headquarters;

(d)cooperate with [third country] on all issues related to the practical implementation of the operational activities organised by the Agency in [third country], including any additional issues that might have occurred in the course of these activities;

(e)support the coordinating officer in his or her cooperation with [third country] on all issues related to their contribution to operational activities organised by the Agency and, where necessary, liaise with the Agency's headquarters;

(f)support the coordinating officer and fundamental rights monitor(s) assigned to monitor an operational activity in facilitating, where necessary, the coordination and communication between the Agency's teams and the relevant authorities of [third country] as well any relevant tasks;

(g)organise logistical support relating to the deployment of the team members and the deployment and use of technical equipment;

(h)provide all other logistical support regarding the operational area for which a given antenna office is responsible, with a view to facilitating the smooth running of the operational activities organised by the Agency;

(i)ensure the effective management of the Agency's own equipment in the areas covered by its activities, including the possible registration and long‑term maintenance of that equipment and any logistical support needed.

(j)support other staff and/or activities of the Agency in [third country] as agreed between the Agency and [third country].

5.The Agency and [third country] shall make ensure the best possible conditions for the fulfilment of the tasks assigned to the antenna office.

6. [Third country] shall provide the Agency with assistance to ensure the operational capacity of the antenna office.

Article 7
Coordinating Officer

1.Without prejudice to the role of antenna offices as described in Article 6, the executive director shall appoint one or more experts from its statutory staff to be deployed as a coordinating officer(s) for each operational activity. The executive director shall notify [third country] of such appointment.

2.The role of the coordinating officer shall be to:

(a)act as an interface between the Agency, [third country] and the team members, providing assistance, on behalf of the Agency, on all issues relating to the conditions of the deployment to the teams;

(b)monitor the correct implementation of the operational plan, including, in cooperation with the fundamental rights monitor(s), as regards the protection of fundamental rights, and report to the executive director thereon;

(c)act on behalf of the Agency in all aspects of the deployment of the teams and report to the Agency on all those aspects;

(d)foster cooperation and coordination among [third country] and participating Member States.

3.In the context of operational activities, the executive director may authorise the coordinating officer to assist in resolving any disagreement on the execution of the operational plan and deployment of the teams.

4.[Third country] shall only issue instructions that are in compliance with the operational plan to the team members. If the coordinating officer considers instructions issued to team members not to be in compliance with the operational plan or applicable legal obligations, he or she shall immediately communicate this to the [third country] officers carrying out a coordinating role and to the executive director. The executive director may take appropriate measures, including the suspension or the termination of the operational activity, in line with Article 18 of this Agreement. [Third country] may authorise team members to act on its behalf.

Article 8
Fundamental Rights

1.In performing their obligations under this Agreement, the Parties undertake to act in compliance with all applicable human rights law instruments, including the [insert/delete as applicable the 1950 European Convention on Human Rights, the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol thereto, the 1965 Convention on the Elimination of All Forms of Racial Discrimination, the 1966 International Covenant on Civil and Political Rights, the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 UN Convention Against Torture, the 1989 UN Convention on the Rights of the Child, the 2006 United Nations Convention on the rights of persons with disabilities and the Charter of Fundamental Rights of the European Union]. 4

2.Team members shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights, including access to asylum procedures and human dignity, and shall pay particular attention to vulnerable persons. Any measures taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures. While performing their tasks and exercising their powers, they shall not discriminate against persons on the basis of any grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation in line with Article 21 of the Charter.

Measures interfering with fundamental rights and freedoms may only be taken by team members in the performance of their tasks and/or in the exercise of their powers when necessary and proportionate to the objectives pursued by such measures and must respect the essence of these fundamental rights and freedoms in accordance with applicable international, Union and national law.

This provision shall apply mutatis mutandis to all staff of [relevant national authorities of third country] participating in an operational activity.

3.The Agency’s fundamental rights officer shall monitor each operational activity’s compliance with applicable fundamental rights standards. The fundamental rights officer, or his or her deputy, may carry out on-the-spot visits to the third country; he or she shall also provide opinions on the operational plans and inform the Agency’s executive director about possible violations of fundamental rights relating to an operational activity. [Third country] shall support the fundamental rights officer’s monitoring efforts, as requested.

4.The Parties agree to provide the consultative forum with timely and effective access to all information concerning the respect for fundamental rights in relation to any operational activity performed under this Agreement, including through on-the-spot visits to the operational area.

5.The Parties shall each have a complaints mechanism to process allegations of breaches of fundamental rights committed by their staff in the exercise of their official functions in the course of an operational activity performed under this Agreement.

Article 9
Fundamental Rights Monitors

1.The Agency’s fundamental rights officer shall assign at least one fundamental rights monitor to each operational activity to, inter alia, assist and advise the coordinating officer.

2.The fundamental rights monitor shall monitor compliance with fundamental rights and provide advice and assistance on fundamental rights in the preparation, conduct and evaluation of the relevant operational activity. This shall include, in particular:

(a)following the preparation of operational plans and reporting to the fundamental rights officer to enable him or her to fulfil his or her tasks as provided for in Regulation (EU) 2019/1896;

(b)conducting visits, including long-term visits, where operational activities take place;

(c)cooperating and liaising with the coordinating officer and providing advice and assistance to him or her;

(d)informing the coordinating officer of and reporting to the fundamental rights officer on any concerns regarding possible violations of fundamental rights relating to the operational activity; and

(e)Contributing to the evaluation of the operational activity as referred to in Article 4(3)(i).

3.Fundamental rights monitors shall have access to all areas in which the operational activity takes place and to all documents relevant for the implementation of that activity.

4.While present in the operational area, fundamental rights monitors shall wear insignia that clearly allow for their identification as fundamental rights monitors.

Article 10
Team Members

1.Team members shall have the authority to perform the tasks described in the operational plan.

2.While performing their tasks and exercising their powers, team members shall comply with the laws and regulations of [third country] as well as applicable Union and international law.

3.Team members may only perform tasks and exercise powers in the territory of [third country] under instructions from and in the presence of border management authorities of [third country]. [Third country] may authorise team members to perform specific tasks and/or exercise specific powers on its territory in the absence of its border management authorities subject to the consent of the Agency or the home Member State, as appropriate.

4.Team members who are statutory staff of the Agency shall wear the uniform of the European Border and Coast Guard standing corps while performing their tasks and exercising their powers unless specified otherwise in the operational plan.

Team members who are not statutory staff of the Agency shall wear their national uniform while performing their tasks and exercising their powers unless specified otherwise in the operational plan.

While on duty, all team members shall also wear visible personal identification and a blue brassard with the insignias of the European Union and of the Agency on their uniforms.

5.[Third country] shall authorise relevant team members to perform tasks during an operational activity that require the use of force, including the carrying and use of service weapons, ammunition and other equipment, in accordance with the relevant provisions of the operational plan.

-Team members who are statutory staff of the Agency may carry equipment, service weapons, ammunition and other coercive means subject to the consent of the Agency.

-Team members who are not statutory staff of the Agency may carry equipment, service weapons, ammunition and other coercive means subject to the consent of the relevant home Member State.

6.The use of force, including the carrying and use of service weapons, ammunition and other equipment, shall be exercised in accordance with the national law of [third country] and in the presence of border management authorities of [third country]. [Third country] may authorise team members to use force in the absence of border management authorities of [third country].

-For team members who are statutory staff of the Agency, such authorisation to use of force in the absence of border management authorities of [third country] shall be subject to the consent of the Agency.

-For team members who are not statutory staff of the Agency, such authorisation to use of force in the absence of border management authorities of [third country] shall be subject to the consent of the relevant home Member State.

Any use of force by team members must be necessary and proportionate and comply fully with applicable Union, international and national law, including, in particular, the requirements laid down in Annex V to Regulation (EU) 2019/1896.

7.The Agency shall, in advance of the deployment of the team members, inform [third country] of the service weapons, ammunition and other equipment team members may carry under Paragraph 5 of this article. [Third country] may prohibit the carrying of certain service weapons, ammunition and other equipment, provided that its own law applies the same prohibition to its own border management authorities. [Third country] shall, in advance of the deployment of the team members, 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.

[Third country] shall make the necessary arrangements for the issuance of any necessary weapon permits and facilitate the import, export, transport and storage of weapons, ammunition and other equipment at the disposal of the team members as requested by the Agency.

8.Service weapons, ammunition and equipment may be used in legitimate self-defence and in legitimate defence of team members or of other persons in accordance with the national law of [third country] in line with relevant principles of international and Union law.

9.[Third country] may authorise team members to consult its national databases if necessary for fulfilling operational aims specified in the operational plan. [Third country] shall ensure that it provides such database access in an efficient and effective manner.

[Third country] shall, in advance of the deployment of the team members, inform the Agency of the national databases which may be consulted.

Team members shall only consult data which is necessary for performing their tasks and exercising their powers. That consultation shall be carried out in accordance with the national data protection law of [third country] and this Agreement.

10.For the implementation of operational activities, [third country] shall deploy officers of [national authorities of third country responsible for border control] who are able and willing to communicate in the working language of the Agency to carry out a coordinating role on behalf of [third country].

Article 11
Privileges and Immunities of the Property, Funds,
Assets and Operations of the Agency

1.Any premises and buildings of the Agency in [third country] shall be inviolable. They shall be exempt from search, requisition, confiscation or expropriation.

2.The Agency’s property and assets, including means of transport, communications, archives, any correspondence, documents, identity papers and financial assets shall be inviolable.

3.The Agency’s assets include assets owned, co-owned, chartered or leased by a Member State and offered to the Agency. Upon the embarkation of representative(s) of competent national authorities, these shall be treated as assets being on government service and authorised to that effect.

4.No measures of execution may be taken in respect of the Agency. The Agency’s property and assets shall not be the subject of any administrative or legal measure of constraint. Property of the Agency shall be free from seizure for the satisfaction of a judgment, decision or order.

5.[Third country] shall permit the entry and removal of articles and equipment deployed by the Agency to [third country] for operational purposes

6.The Agency shall be exempt from all customs duties, prohibitions and restrictions on imports and exports in respect of articles intended for its official use.

Article 12
Privileges and Immunities of the Team Members

1.Team members shall not be subject to any form of arrest or detention in [third country] or by authorities of [third country]. 

2.Team members shall not be subject to any form of inquiry or legal proceedings in [third country] or by authorities of [third country], except under the circumstances as referred to in paragraphs 3 and 4 of this Article. 

3.Team members shall enjoy immunity from the criminal jurisdiction of [third country] under all circumstances.

The immunity from the criminal jurisdiction of [third country] of team members who are members of the Agency’s statutory staff may be waived by the Agency’s executive director.

The immunity from the criminal jurisdiction of [third country] of team members who are not members of the Agency’s statutory staff may be waived by the competent authorities of the member’s home Member State.

Such a waiver of immunity must be express and in writing.

4.Team members shall enjoy immunity from the civil and administrative jurisdiction of [third country] in respect of all acts performed by them in the exercise of their official functions.

If civil or administrative proceedings are instituted against a team member before any court of [third country], the competent authorities of [third country] shall immediately notify the Agency’s executive director thereof.

Prior to the initiation of such proceeding before a court, the Agency’s executive director shall certify to the court whether the act in question was performed by team members in the exercise of their official functions. If the act was performed in the exercise of official functions, the proceeding shall not be initiated. If the act was not performed in the exercise of official functions, the proceeding may continue. The certification by the Agency’s executive director shall be binding upon the jurisdiction of [third country] which may not contest it.

The initiation of proceedings by team members shall preclude them from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.

5.The premises, dwellings, means of transport and communications, and possessions, including any correspondence, documents, identity papers and assets of team members shall be inviolable, except in case of measures of execution as permitted pursuant to paragraph 9 of this article.

6.[Third country] shall be liable for any damage caused by team members to third parties in the exercise of their official functions.

7.In case of damage caused by gross negligence or wilful misconduct or not in the exercise of official functions by a team member who is a member of the statutory staff of the Agency, [third country] may request, via the Agency’s executive director, that compensation be paid by the Agency.

In case of damage caused by gross negligence or wilful misconduct or not in the exercise of official functions by a team member who is not a member of the statutory staff of the Agency, [third country] may request, via the Agency’s executive director, that compensation be paid by the home Member State concerned.

8.Team members shall not be obliged to give evidence as witnesses in legal proceedings in [third country].

9.No measures of execution may be taken in respect of team members, except in the case where a civil proceeding not related to their official functions is instituted against them. Property of team members, which is certified by the Agency’s executive director to be necessary for the fulfilment of their official functions, shall be free from seizure for the satisfaction of a judgment, decision or order. In civil proceedings, team members shall not be subject to any restrictions on their personal liberty or to any other measures of constraint.

10.Team members shall, with respect to services rendered for the Agency, be exempt from social security provisions which may be in force in [third country].

11.The salary and emoluments paid to team members by the Agency and/or the home Member States, as well as any income team members receive from outside [third country], shall not be taxed in any form in [third country]. 

12.[Third country] shall permit the entry of articles for the personal use of team members and shall grant exemption from all customs duties, taxes, and related charges other than charges for storage, transport and similar services, in respect of such articles. [Third country] shall also allow the export of such articles.

13.Team members’ personal baggage shall be exempt from inspection, unless there are serious grounds for considering that it contains articles that are not for the personal use of team members, or articles whose import or export is prohibited by the law or subject to quarantine regulations of [third country]. Inspection of such personal baggage shall be conducted only in the presence of team members concerned or an authorised representative of the Agency.

14.The Agency and [third country] shall appoint contact points that are available at all times who shall be responsible for the exchange of information and immediate actions to be taken in case an act performed by a team member may be in violation of criminal law as well as for the exchange of information and the operational activities in relation to any civil and administrative proceedings against a team member.

Until action is taken by the competent authorities of the home Member State, the Agency and [third country] shall assist each other in carrying out all necessary inquiries and investigations into any alleged criminal offence in respect of which either or both the Agency or [third country] have an interest, in the identification of witnesses and in the collection and production of evidence, including the request to obtain of and, if appropriate, the handing over of items connected with a purported criminal offence. The handing over of any such items may be made subject to their return within the terms specified by the competent authority delivering them.

Article 13
Injured or Deceased Team Members

1.Without prejudice to Article 12, the executive director shall have the right to take charge of, and make suitable arrangements for, the repatriation of any injured or deceased team members, as well as of their personal property.

2.An autopsy shall be performed on a deceased team member only with the express consent of the home Member State concerned and in the presence of a representative of the Agency and/or the home Member State concerned.

3.[Third country] and the Agency shall cooperate to the fullest extent possible with a view to the early repatriation of injured or deceased team members.

Article 14
Accreditation Document

1.The Agency shall issue a document in [the official language(s) of the third country] and in the working language of the Agency to each team member for the purposes of identification vis‑à‑vis the national authorities of [third country] and as proof of the holder’s rights to perform the tasks and exercise the powers referred to in Article 10 of this Agreement and in the operational plan (the ‘accreditation document’).

2.The accreditation document shall include the following information on the staff member: name and nationality; rank or job title; a recent digitised photograph and tasks authorised to be performed during the deployment.

3.For the purposes of identification vis-à-vis the national authorities of [third country], team members shall be obliged to carry the accreditation document on their person at all times.

4. [Third country] shall recognise the accreditation document, in combination with a valid travel document, as granting the relevant team member entry and stay in [third country] without the need for a visa, prior authorisation or any other document up to the day of its expiration.

5.The accreditation document shall be returned to the Agency at the end of the deployment. The competent authorities of [third country] shall be informed thereof.

Article 15
Application to Agency Staff Not Deployed as Team Members

Articles 12, 13 and 14 shall apply mutatis mutandis to all Agency staff deployed to [third country] who are not team members, including fundamental rights monitors and the Agency’s statutory staff deployed to antenna offices.

Article 16
Protection of Personal Data

1.The communication of personal data shall only take place if such communication is necessary for the implementation of this agreement by the competent authorities of [third country] or the Agency. The processing of personal data by an authority in a particular case, including the transfer of such personal data to the other Party, shall be subject to the data protection rules applicable to that authority. The Party shall ensure the following minimum safeguards as a precondition for any data transfer:

(a)personal data must be processed lawfully, fairly, and in a transparent manner in relation to the data subject;

(b)personal data must be collected for the specified, explicit and legitimate purpose of implementing this Agreement and not further processed by the communicating authority nor receiving authority in a way incompatible with that purpose;

(c)personal data must be adequate, relevant and limited to what is necessary in relation to the purpose for which they are collected and/or further processed; in particular, personal data communicated in accordance with the applicable law of the communicating authority may concern only the following:

– [List of categories of data that may be exchanged and the purposes for which they may be processed and transferred]

(d)personal data must be accurate and, where necessary, kept up to date;

(e)personal data must be kept in a form which permits identification of data subjects for no longer than is necessary for the purpose for which the data were collected or for which they are further processed;

(f)personal data must be processed in a manner that ensures appropriate security of the personal data, taking into account the specific risks of processing, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘data breach’); the receiving Party shall take appropriate measures to address any data breach, and shall notify the communicating Party of such breach without undue delay and within 72 hours;

(g)both the communicating authority and the receiving authority shall take every reasonable step to ensure without delay the rectification or erasure, as appropriate, of personal data where the processing does not comply with the provisions of this article, in particular because those data are not adequate, relevant, accurate, or they are excessive in relation to the purpose of processing. This includes the notification of any rectification or erasure to the other Party;

(h)upon request, the receiving authority shall inform the communicating authority of the use of the communicated data;

(i)personal data may only be communicated to the following competent authorities:

–[List of authorities and scope of their competencies]

Further communication to other bodies requires the prior authorisation of the communicating authority;

(j)the communicating and the receiving authorities are under an obligation to make a written record of the communication and receipt of personal data;

(k)independent oversight shall be in place to oversee data protection compliance, including to inspect such records; data subjects shall have the right to bring complaints to the oversight body, and to receive a response without undue delay;

(l)data subjects shall have the right to receive information on the processing of their personal data, access such data and rectification or erasure of inaccurate or unlawfully processed data, subject to necessary and proportionate limitations on important grounds of public interest;

(m) data subjects shall have the right to effective administrative and judicial redress for violation of the aforementioned safeguards.

2.Each Party will conduct periodic reviews of its own policies and procedures that implement this provision. Upon request by the other Party, the Party that received the request will review its personal data processing policies and procedures to ascertain and confirm that the safeguards in this provision are implemented effectively. The results of the review will be communicated to the Party that requested the review within a reasonable time.

3.The data protection safeguards under this Agreement will be subject to oversight by the European Data Protection Supervisor and [independent public authority or other competent oversight body in third country].

4.The Parties will cooperate with the European Data Protection Supervisor, as supervisory authority of the Agency.

5.The Parties shall draw up a common report on the application of this article at the end of each operational activity. This report shall be sent to the Agency's fundamental rights officer and data protection officer as well as to [relevant third country authority].

Article 17
Exchange of Classified and Sensitive Non-Classified Information

1.Any exchange, sharing or dissemination of classified information in the framework of this agreement shall be covered by a separate administrative arrangement concluded between the Agency and [third country] that shall be subject to prior approval of the European Commission.

2.Any exchange of sensitive non-classified information in the framework of this agreement:

(a)shall be handled by the Agency in accordance with Article 9(5) of Commission Decision (EU, Euratom) 2015/443  5 ;

(b)shall receive a level of protection by the receiving Party that is equivalent to the level of protection offered by the measures applied to that information by the communicating Party in terms of confidentiality, integrity and availability,

(c)shall be conducted via information exchange system that fulfils the criteria of availability, confidentiality and integrity for sensitive non‑classified information, such as the communication network referred to in Article 14 of the Regulation.

3.The Parties will comply with intellectual property rights related to any data processed in the framework of this agreement.

Article 18
Decision to Suspend, Terminate and/or
Withdraw Financing for an Operational Activity

1.If the conditions to conduct an operational activity are no longer fulfilled, the Agency’s executive director shall terminate that operational activity after informing [third country] in writing.

2.If the provisions of this Agreement or of the operational plan have not been respected by [third country], the Agency’s executive director may withdraw financing of the relevant operational activity, and/or suspend or terminate it, after informing [third country] in writing.

3.If the security of any participant of an operational activity deployed in [third country] cannot be guaranteed, the Agency’s executive director may suspend or terminate the relevant operational activity or aspects thereof.

4.If the Agency’s executive director considers that violations of fundamental rights or international protection obligations that are of a serious nature or are likely to persist have taken place or are likely to take place in relation to an operational activity performed under this Agreement, he or she shall withdraw the financing of the relevant operational activity, and/or suspend or terminate it, after informing [third country].

5.[Third country] may request the Agency’s executive director to suspend or terminate an operational activity if the provisions of this Agreement or of the operational plan are not respected by a team member. Such request shall be made in writing and shall include the reasons therefor.

6.A suspension, termination or withdrawal of financing under this article shall take effect from the date of notification to [third country]. It shall not affect any rights or obligations arising out of the application of this Agreement or the operational plan before such suspension, termination or withdrawal of financing.

Article 19
Combating Fraud

1.[Third country] shall notify the Agency, the European Public Prosecutor’s Office and/or the European Anti-Fraud Office forthwith if it becomes aware of the existence of credible allegations of fraud, corruption or any other illegal activities that may affect the interests of the European Union.

2.Where such allegations relate to European Union funds disbursed in relation to this Agreement, [third country] shall provide all necessary assistance to the European Anti-Fraud Office and/or the European Public Prosecutor’s Office in relation to investigative activities on its territory, including facilitating interviews, on-the-spot checks and inspections (including access to information systems and databases in [third country]); and facilitating access to any relevant information concerning the technical and financial management of matters financed partly or wholly by the European Union.

Article 20
Implementation of this Agreement

1.For [third country], this Agreement shall be implemented by […]

2.For the European Union, this Agreement shall be implemented by the Agency.

Article 21
Dispute Settlement

1.Any disputes arising in connection with the application of this Agreement shall be examined jointly by representatives of the Agency and [third country]'s competent authorities.

2.Failing any prior settlement, disputes concerning the interpretation or application of this Agreement shall be settled exclusively by negotiation between the Parties.

Article 22
Entry into Force, Amendment, Duration,
Suspension and Termination of the Agreement

1.This Agreement shall be subject to ratification, acceptance or approval by the Parties in accordance with their own internal legal procedures. The Parties shall notify one another of the completion of the procedures necessary for that purpose.

2.This Agreement shall enter into force on the first day of the second month following the date on which the Parties have notified each other of the completion of the internal legal procedures in accordance with Paragraph 1 of this article.

3.This Agreement may be amended only in writing by mutual consent of the Parties.

4.This Agreement is concluded for an indefinite period. The Agreement may be terminated or suspended by written agreement between the Parties or unilaterally by either Party.

In case of a unilateral termination or suspension, the Party wishing to terminate or suspend shall notify the other Party thereof in writing. A unilateral termination or suspension of this Agreement shall take effect the first day of the second month following the month during which the notification was given.

5.Notifications made in accordance with this article shall be sent, in the case of the European Union, to the General Secretariat of the Council of the European Union and, in the case of the [third country], to [to be determined].

Done in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, Swedish and [official language(s) of third country], each of these texts being equally authentic. 

Signatures.

(1)

     Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1).

(2)

     Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 77, 23.3.2016, p. 1)

(3)

     Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (OJ L 119, 4.5.2016, p. 1).

(4)

     The list of instruments includes the most relevant UN Conventions and the ECHR to which all Member States of the European Union are party and should be adjusted depending on their applicability in the third country.

(5)

Commission Decision (EU, Euratom) 2015/443 of 13 March 2015 on Security in the Commission, (OJ L 72, 17.3.2015, p. 41).