Accept Refuse

EUR-Lex Access to European Union law

This document is an excerpt from the EUR-Lex website

Document 52018PC0797

Proposal for a COUNCIL DECISION on the conclusion of the status agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia

COM/2018/797 final

Brussels, 7.12.2018

COM(2018) 797 final

2018/0409(NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of the status agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia


EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

Reasons for and objectives of the proposal

Article 54(3) of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard 1 provides that the European Border and Coast Guard Agency may coordinate operational cooperation between Member States and third countries with respect to management of the external borders. In that respect, it can carry out actions at the external borders involving one or more Member States and a third country neighbouring at least one of those Member States, subject to the agreement of that neighbouring country, including on the territory of that third country.

Pursuant to Article 54(4) of Regulation (EU) 2016/1624, in cases where it is envisaged that European Border and Coast Guard teams will be deployed to a third country in actions where the team members will have executive powers, or where other actions in third countries require it, a status agreement shall be concluded by the Union with the third country concerned. The status agreement shall cover all aspects that are necessary for carrying out the actions. It shall in particular set out the scope of the operation, civil and criminal liability and the tasks and powers of the members of the teams. The status agreement shall ensure the full respect of fundamental rights during these operations.

On the basis of negotiating directives adopted by the Council, the European Commission has negotiated with the Republic of Serbia the Agreement on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia (‘the status agreement’) with a view of setting up the legal framework that will allow acting immediately through setting up Operational Plans when quick reaction will be needed. While the migration flows in the region are much lower than in the years 2015 and 2016, organised crime networks quickly adapt their routes and methods for trafficking irregular migrants to any new circumstances. With the status agreement in place, the responsible authorities of the Republic of Serbia and the EU Member States, coordinated by the European Border and Coast Guard Agency, will be in a much better position to quickly respond to such possible developments.

The attached proposal for a Council Decision constitutes the legal instrument for concluding the status agreement between the European Union and the Republic of Serbia.

On 21 February 2017, the Commission received the Council authorisation to open negotiations with the Republic of Serbia on a status agreement on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia.

Negotiations on a status agreement have been opened on 7 April 2017 and a second round took place on 11 May 2017. A deal was finally reached on 3 August 2018. The status agreement has been initialled by Commissioner for Migration, Home Affairs and Citizenship D. Avramopoulos and the Minister of Internal Affairs of the Republic of Serbia N. Stefanović on 20 September 2018 in Belgrade.

The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft status agreement is acceptable for the Union.

Member States have been informed and consulted in the relevant Council Working Group.

Consistency with existing policy provisions in the policy area

Sixteen Member States have bilateral agreements currently in place with the Republic of Serbia: those include a series of joint measures such as border checks, surveillance, patrolling, return etc. A working arrangement between the Ministry of Interior of the Republic of Serbia and the European Border and Coast Guard Agency is also already in place, that includes in particular regular participation of the representatives from the Border Police of Serbia in European Border and Coast Guard Agency coordinated joint operations, as observers on Member States' territory, upon agreement of the hosting Member State.

Consistency with other Union policies

The European Agenda on Migration 2 is built on four pillars. One of these is border management: this involves better management of the EU external border, in particular through solidarity towards those Member States that are located at the external borders, and improving the efficiency of border crossings. A reinforced control of the Republic of Serbia's borders will also positively affect the EU external borders, in particular the external borders of Bulgaria, Croatia, Hungary and Romania as well as the borders of the Republic of Serbia. Further strengthening security at the external borders is also in line with the European Agenda on Security 3 .

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

Legal basis

The legal basis for this proposal for a Council Decision is Article 77(2)(b) and (d) and Article 79(2)(c) TFEU in conjunction with Article 218(6)(a) TFEU.

The conclusion by the European Union of a status agreement is explicitly provided for in Article 54(4) of Regulation (EU) 2016/1624 which states that, in cases where it is envisaged that European Border and Coast Guard teams will be deployed to a third country in actions where the team members will have executive powers, or where other actions in third countries require it, a status agreement shall be concluded by the Union with the third country concerned.

Pursuant to Article 3(2) TFEU, the Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union. Article 54(4) of Regulation (EU) 2016/1624 provides for the conclusion of a status agreement by the European Union with the third country concerned. Consequently, the attached agreement with the Republic of Serbia falls within the exclusive competence of the European Union.

The consent of the European Parliament is required for the conclusion of this agreement pursuant to Article 218(6)(a)(v) TFEU.

Subsidiarity (for non-exclusive competence)

Not applicable.

Proportionality

In view of organised crime networks adapting quickly their routes and methods for trafficking of irregular migrants, the involvement of the EU is required to improve controls at the borders of the Republic of Serbia. The status agreement in place is necessary in order to enable the responsible authorities of the Republic of Serbia and the EU Member States, coordinated by the European Border and Coast Guard Agency, quickly to respond to such possible developments. It will allow for the deployment of European Border and Coast Guard teams by the European Border and Coast Guard Agency in the Republic of Serbia in case of a sudden influx of irregular migrants.

Choice of the instrument

This proposal is in accordance with Article 218(6)(a) TFEU, which envisages the adoption by the Council of decisions on international agreements, following the consent of the European Parliament. There exists no other legal instrument that could be used in order to achieve the objective expressed in the proposal.

3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

Ex-post evaluations/fitness checks of existing legislation

Not applicable

Stakeholder consultations

Not applicable

Collection and use of expertise

Not applicable

Impact assessment

No impact assessment has been required for the negotiation on the status agreement.

Regulatory fitness and simplification

As this will be a new agreement, no evaluation or fitness checks of existing instruments could be carried out.

Fundamental rights

The status agreement contains provisions ensuring that fundamental rights of persons affected by the actions of members of the team involved in an action coordinated by the European Border and Coast Guard Agency are protected.

Provisions on fundamental rights are further explained under point 5 'Other elements'.

4.BUDGETARY IMPLICATIONS

The status agreement in itself does not entail financial implications. It is indeed the actual deployment of teams of the European Border and Coast Guard Agency on the basis of an Operational Plan and relevant Grant Agreement that will entail costs borne by the budget of the European Border and Coast Guard Agency. Future operations under the status agreement will be financed through the European Border and Coast Guard Agency’s own resources.

5.OTHER ELEMENTS

Implementation plans and monitoring, evaluation and reporting arrangements

The Commission will ensure proper monitoring of the implementation of the status agreement.

The Republic of Serbia and the European Border and Coast Guard Agency shall jointly evaluate each joint operation or rapid border intervention.

In particular, the European Border and Coast Guard Agency, the Republic of Serbia and the Member States participating to a specific action shall draw up a report at the end of each action on the application of provisions of the agreement including on the processing of personal data.

Explanatory documents (for directives)

Not applicable.

Detailed explanation of the specific provisions of the proposal

Scope of the agreement

Under this Agreement, the European Border and Coast Guard Agency shall be able to deploy European Border and Coast Guard teams with executive powers in the Republic of Serbia to carry out joint operations and rapid border interventions. While this agreement does not extend the scope of the Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation ('EC-Republic of Serbia readmission agreement') 4 , teams of the European Border and Coast Guard Agency shall also be allowed, in the course of a specific return operation, to assist the Republic of Serbia in identifying the persons to be readmitted to the Republic of Serbia, in line with the EC-Republic of Serbia readmission agreement.

European Border and Coast Guard teams may be deployed on the territory of the Republic of Serbia only in regions bordering the EU external borders and members of the team shall have executive powers in those areas of the Republic of Serbia as set out in the Operational Plan.

Launching an action

The initiative to launch an action can be proposed by the Agency. The competent authorities of the Republic of Serbia may request the Agency to consider launching an action. Carrying out an action requires the consent of the competent authorities of the Republic of Serbia and the Agency.

Operational Plan 

Before each joint operation or rapid border intervention, an Operational Plan must be agreed between the Agency and the Republic of Serbia. That Operational Plan must also be agreed by the Member State or Member States bordering the operational area.

The plan shall set out in detail the organisational and procedural aspects of the joint operation or rapid border intervention, including a description and an assessment of the situation, the operational aim and objectives, the type of technical equipment to be deployed, the implementation plan, the cooperation with other third countries, other Union Agencies and bodies or international organisations, the provisions in respect of fundamental rights including personal data protection, the coordination, command, control, communication and reporting structure, the organisational arrangements and logistics, the evaluation and the financial aspects of the joint operation or rapid border intervention.

Tasks and powers of the members of the team

As a general rule, the teams shall have the authority to perform the tasks and exercise the executive powers required for border control and return operations. They shall respect the national legislation of the Republic of Serbia.

Teams shall only act in the territory of the Republic of Serbia under instructions from and in the presence of border guards or other police officers of the Republic of Serbia.

Members of the team shall wear where appropriate their own uniform, visible personal identification and a blue armband with the insignias of the European Union and of the Agency on their uniforms. They shall also carry an accreditation document in order to be clearly identified by the national authorities of the Republic of Serbia.

Members of the team may carry service weapons, ammunition and equipment as authorised according to their own State's national law and the law of the Republic of Serbia. The Agency shall be beforehand notified by the authorites of the Republic of Serbia of the permissible service weapons, ammunition and equipment and of the relevant legal framework and conditions for their use.

Members of the team may use force, including service weapons, ammunition and equipment, with the consent of their own State and of the authorities of the Republic of Serbia, in the presence of border guards or other police officers of the Republic of Serbia, and in accordance with the national law of the Republic of Serbia. The authorities of the Republic of Serbia may authorise members of the team to use force also in the absence of their border guards. Members of the team may use weapons only when it is absolutely necessary in self-defence to repel an immediate life-threatening attack against themselves or another person, in accordance with the Serbian legislation.

The competent authorities of the Republic of Serbia may, upon request, communicate relevant information contained in national databases to members of the team if necessary for performing their tasks. The Agency may also communicate to the Serbian competent authorities information necessary for fulfulling operational aims.

Suspension and termination of the action

Both the Agency and the authorities of the Republic of Serbia may suspend or terminate the action, if they deem that the provisions of the Agreement or of the Operational Plan are not respected by the other party.

Privileges and immunities of the members of the team

Members of the team shall enjoy immunity from the criminal jurisdiction of the Republic of Serbia in respect of all acts performed in the exercise of the official functions ('on duty') while they will not enjoy such immunity for acts committed 'off duty'.

The Operational Plan shall precisely set out the actions immune from the criminal jurisdiction of the Republic of Serbia.

In the event of an allegation of a criminal offence being committed by a member of the team, the Executive Director of the Agency, prior to the initiation of the proceeding before the court, shall certify to the competent judicial authorities of the Republic of Serbia whether the act in question was performed in the exercise of their official functions or not. The Executive Director of the Agency shall take his or her decision after careful consideration of any representation made by the competent authority of the Member State which has deployed the concerned border guard or other relevant staff and the competent authorities of the Republic of Serbia.

Privileges granted to members of the team and immunity from the criminal jurisdiction of the Republic of Serbia do not exempt them from the jurisdiction of the home Member State.

A similar regime applies for the civil and administrative liability of the members of the team.

The immunity of members of the teams from the criminal, civil and administrative jurisdiction of the Republic of Serbia may be waived by the Member State that has deployed the concerned border guard or other relevant staff. Such a waiver must always be an express waiver.

The agreement provides for a mechanism aiming at compensating damages. The compensation mechanism is based on Article 42 of the Regulation (EU) 2016/1624 on the European Border and Coast Guard. If the damage is caused by a member of a team 'on duty', the Republic of Serbia shall be liable. If the damage is caused 'on duty' by a member of a team from a participating Member State by gross negligence or wilful misconduct or if the act was committed 'off duty', the Republic of Serbia may request via the Executive Director of the Agency that compensation be paid by the participating Member State concerned. If a staff of the Agency causes the damage, the Republic of Serbia may request that compensation be paid by the Agency.

No measures of execution may be taken in respect of members of the team, except in the case where a criminal or civil proceeding not related to their official functions is instituted against them.

Property of members of the team necessary for the fulfilment of their official functions shall be free from seizure. In civil proceedings, members of the team shall not be subject to any restrictions on their personal liberty or to any other measures of constraint.

Members of the team shall be exempt from social security provisions that may be in force in the Republic of Serbia with respect to services rendered for the Agency. They shall also be exempt from any form of taxation in the Republic of Serbia on the salary and emoluments paid to them by the Agency or their Member States, as well as on any income received from outside the Republic of Serbia.

The authorities of the Republic of Serbia shall permit the entry and exit of articles for the personal use of members of the team, 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.

The personal baggage of members of the team may be inspected if there are grounds for considering that it contains articles that are not for the personal use of members of the team, or articles whose import or export is prohibited by the law or subject to quarantine regulations of the Republic of Serbia. Inspection of such personal baggage shall be conducted only in the presence of the member(s) of the team concerned or an authorised representative of the Agency.

Papers, correspondence and property of members of the team shall be inviolable, except in case of measures of execution. Members of the team shall not be obliged to give evidence as witnesses.

Accreditation document

The Agency shall, in cooperation with the Republic of Serbia, issue an accreditation document to members of the team for the purposes of identification vis-à-vis the authorities of the Republic of Serbia as proof of the holder’s rights to perform the tasks and exercise the powers conferred under this Agreement and in the Operational Plan. The accreditation document, in combination with a valid travel document, grants the member of the team access to the Republic of Serbia without the need for a visa or prior authorisation; it will be returned to the Agency at the end of the action. The Agency will provide the competent Serbian authorities with a specimen of the accreditation document before the start of the application of the Agreement and whenever the template is modified.

Fundamental rights

In the performance of their tasks and in the exercise of their powers, members of the team shall fully respect fundamental rights and freedoms, including as regards access to asylum procedures, human dignity and the prohibition of torture, inhuman or degrading treatment, the right to liberty, the principle of non-refoulement and the prohibition of collective expulsions, the rights of the child and the right to respect for private and family life. They shall not arbitrarily discriminate against persons on any grounds including sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Any measures interfering with those fundamental rights and freedoms shall be proportionate to the objectives pursued by such measures and respect the essence of these fundamental rights and freedoms.

Each Party must have a complaint mechanism in place to deal with allegations of a breach of fundamental rights committed by its staff. The Agency has established the complaints mechanism referred to in Article 72 of the Regulation (EU) 2016/1624 on the European Border and Coast Guard and therefore satisfies this obligation. The Ombudsman of the Republic of Serbia (‘Protector of Citizens’) could deal with such allegations, except if the authorities of the Republic of Serbia decide to set up a mechanism specifically tasked to deal with complaints lodged under this Agreement.

Processing of personal data

Members of the team shall process personal data when necessary and proportionate in accordance with the rules applicable to the Agency and the EU Member States. Processing of personal data by the authorities of the Republic of Serbia shall be subject to its national laws.

The Agency, the participating Member States and the authorities of the Republic of Serbia shall draw up a common report on the processing of personal data by members of the team at the end of each action. This report shall be sent to the Agency's Fundamental Rights Officer and Data Protection Officer, as well as to the competent authority for the protection of personal data in the Republic of Serbia. The Agency's Fundamental Rights Officer and Data Protection Officer shall report to the Executive Director of the Agency.

Disputes and interpretation

All issues arising in connection with the application of this Agreement shall be examined jointly by the competent authorities of the Republic of Serbia and by representatives of the Agency, which shall consult the Member State or Member States neighbouring the Republic of Serbia.

Failing any prior settlement, disputes concerning the interpretation or application of this Agreement shall be settled exclusively by negotiation between the Republic of Serbia and the European Commission, which shall consult any Member State neighbouring the Republic of Serbia.

Competent authorities for the implementation of the Agreement

For the Republic of Serbia, the competent authority for the implementation of this Agreement is the Ministry in charge of Internal Affairs. For the European Union, it is the European Border and Coast Guard Agency.

Joint Declarations

Both parties take note that the European Border and Coast Guard Agency will support the Republic of Serbia to control efficiently its border with any country that is not a member of the European Union by other means than deployments of European Border and Coast Guard teams with executive powers.

Both Parties agree that the status and delimitation under international law of the territory of Serbia and the Member States of the European Union is in no way affected either by this Agreement or by any act accomplished in its implementation by the parties or on their behalf, including the establishment of operational plans or the participation in cross-border operations.

The close association of Norway, Iceland, Switzerland and Liechtenstein to the implementation, application and development of the Schengen Acquis is likewise reflected in a joint declaration to the Agreement.

2018/0409 (NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of the status agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 77(2)(b) and (d) and Article 79(2)(c), in conjunction with Article 218(6)(a), thereof,

Having regard to the proposal from the European Commission,

Having regard to the consent of the European Parliament 5 ,

Whereas:

(1)In accordance with Council Decision 2018/XXX of […], the Agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia (‘the status agreement’), was signed by […] on […..], subject to its conclusion.

(2)Pursuant to Article 54(4) of Regulation (EU) 2016/1624 6 , in cases where it is envisaged that European Border and Coast Guard teams are deployed to a third country to carry out actions for which the team members have executive powers, or where it is required by other actions in third countries, a status agreement shall be concluded by the Union with the third country concerned. The status agreement should cover all aspects that are necessary for carrying out the actions.

(3)Pursuant to the status agreement the European Border and Coast Guard teams, in accordance with the Operational Plan, can be swiftly deployed on the territory of the Republic of Serbia, respond to the current shift in migratory flows towards the coastal route and assist in external border management and combating human trafficking of irregular migrants.

(4)This Decision constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC 7 ; the United Kingdom is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(5)This Decision constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC 8 ; Ireland is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(6)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(7)The status agreement should therefore be approved on behalf of the European Union,

HAS ADOPTED THIS DECISION:

Article 1

The Agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia (‘the Agreement’), is hereby approved on behalf of the Union.

The text of the Agreement is attached to this Decision.

Article 2

The President of the Council shall designate the person empowered to proceed, on behalf of the European Union, to the notification provided for in Article 13(2) of the Agreement in order to express the consent of the European Union to be bound by the Agreement.

Article 3

This Decision shall enter into force on the day of its adoption.

Done at Brussels,

   For the Council

   The President

(1)    O.J. L 251, 16.9.2016, p. 1.
(2)    COM(2015) 240 final.
(3)    COM(2015) 185 final.
(4)    O.J. L 334, 19.12.2007, p. 46.
(5)    OJ C , , p.
(6)    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 (O.J. L 251, 16.9.2016, p. 1).
(7)    Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (O.J. L 131, 1.6.2000, p. 43).
(8)    Council Decision 2002/192/EC of 28 February 2002 concerning the Ireland's request to take part in some of the provisions of the Schengen acquis (O.J. L 64, 7.3.2002, p. 20).
Top

Brussels, 7.12.2018

COM(2018) 797 final

ANNEX

to the

Proposal for a Council Decision

on the conclusion of the status agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia


ANNEX

AGREEMENT

between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia

THE EUROPEAN UNION,

and THE REPUBLIC OF SERBIA,

Hereinafter referred to as 'the Parties',

WHEREAS situations may arise where the European Border and Coast Guard Agency may coordinate operational cooperation between EU Member States and Republic of Serbia, including on the territory of the Republic of Serbia,

WHEREAS a legal framework in the form of a status agreement should be established for the situations where the team members of the European Border and Coast Guard Agency may have executive powers on the territory of the Republic of Serbia,

WHEREAS the Parties shall take duly account of the declarations attached when implementing this status Agreement,

CONSIDERING that in implementing all actions on the territory of the Republic of Serbia the European Border and Coast Guard Agency should fully respect fundamental rights,

HAVE DECIDED TO CONCLUDE THE FOLLOWING AGREEMENT:

Article 1

Scope of the Agreement

1. This Agreement shall cover all aspects of cooperation between the Republic of Serbia and the European Border and Coast Guard Agency necessary for carrying out actions by the European Border and Coast Guard Agency that may take place in the territory of the Republic of Serbia whereby team members of the European Border and Coast Guard Agency may have executive powers.

2.This Agreement does not extend the scope of the Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation ('EU-Serbia readmission agreement'). With regard to return operations as defined in Article 2(d), this Agreement only concerns the provision of operational support for return operations which are carried out in accordance with the EU-Serbia readmission agreement.

3.This Agreement shall cover the Republic of Serbia. This Agreement shall not cover Kosovo 1 *.

Article 2

Definitions

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

(a)    Action means a joint operation, a rapid border intervention or a return operation;

(b)    ‘Joint operation’ means an action aimed at tackling illegal immigration or cross-border crime or aimed at providing increased technical and operational assistance at the external borders of a Member State neighbouring the Republic of Serbia and deployed in the territory of the Republic of Serbia;

(c)    ‘Rapid border intervention’ means an action aimed at rapidly responding to a situation of specific and disproportionate challenges at the borders of the Republic of Serbia neighbouring a Member State and deployed in the territory of the Republic of Serbia for a limited period of time;

(d)    Return operation means an operation that is organised or coordinated by the Agency and involves technical and operational reinforcement being provided by one or more Member States under which persons for whom the final decision on the return has been made are returned from one or more Member States either on a forced or voluntary basis to the Republic of Serbia in line with the Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation;

(e)    ‘Border control’ means the control of persons, travel documents, means of transport and items carried out when crossing a state border, consisting of border checks at border crossing points and border surveillance between border crossing points;

(f)    Member of a team’ means a member either of the Agency staff or a member of a team of border guards and other relevant staff from participating Member States, including border guards and other relevant staff that are seconded by Member States to the Agency to be deployed during an action;

(g)    ‘Member State means a Member State of the European Union;

(h)    Home Member State means the Member State of which a member of a team is a border guard or other relevant staff member;

(i)    Personal data’ means any data relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number i.e. unique citizen’s identification number, location data, an online identifier or to one or more characteristics specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

(j)     ‘Participating Member State means a Member State which participates in the action in the Republic of Serbia by providing technical equipment, border guards and other relevant staff deployed as part of the team;

(k)    Agency means the European Border and Coast Guard Agency established by Regulation (EU) 2016/1624 on the European Border and Coast Guard.

Article 3

Launching the Action and Operational Plan

1. The initiative to launch an action can be proposed to the competent authorities of the Republic of Serbia by the Agency. The competent authorities of the Republic of Serbia may request the Agency to consider launching an action.

2. Carrying out an action requires the consent of both competent authorities of the Republic of Serbia and the Agency.

3. A joint Operational Plan shall be agreed between the Agency and the Republic of Serbia for each joint operation or rapid border intervention. The European Commission shall ensure that the provisions of Article 54(3) of the Regulation on the European Border and Coast Guard are respected.

The plan shall set out in detail the organisation and procedural aspects of the joint operation or rapid border intervention, including a description and an assessment of the situation, the operational aim and objectives, type of technical equipment to be deployed, the implementation plan, the cooperation with other third countries, other Union Agencies and bodies or international organisations, the provisions in respect of fundamental rights including personal data protection, the coordination, command, control, communication and reporting structure, the organisational arrangements and logistics, the evaluation and the financial aspects of the joint operation or rapid border intervention. The evaluation of the joint operation or of the rapid border intervention shall be conducted jointly by the competent authority of the Republic of Serbia and by the Agency.

Article 4

Tasks and powers of the members of the team

1.Members of the team shall have the authority to perform the tasks and exercise the executive powers required for border control and return operations.

2.Members of the team shall respect the national legislation of the Republic of Serbia.

3.Members of the team may only perform tasks and exercise powers in the territory of the Republic of Serbia under instructions from and in the presence of border guards or other police officers of the Republic of Serbia. The competent authority of the Republic of Serbia shall issue, where appropriate, instructions to the team in accordance with the Operational Plan. The competent authority of the Republic of Serbia may authorise members of the teams to act on its behalf as long as the overall responsibility and command and control functions remain with the border guards or other police officers of the Republic of Serbia present at all times.

The Agency, through its Coordinating Officer, may communicate its views to the competent authority of the Republic of Serbia on the instructions given to the team. In that case, the competent authority of the Republic of Serbia shall take those views into consideration and follow them to the extent possible.

In cases where the instructions issued to the team are not in compliance with the Operational Plan, the Coordinating Officer shall immediately report to the Executive Director of the Agency. The Executive Director may take appropriate measures, including the suspension or the termination of the action.

4.Members of the team shall wear their own uniform while performing their tasks and exercising their powers. Members of the team shall at least wear visible personal identification and a blue armband with the insignias of the European Union and of the Agency. For the purposes of identification vis-à-vis the competent authorities of the Republic of Serbia, members of the team shall at all times carry an accreditation document referred to in Article 7.

5.While performing their tasks and exercising their powers, members of the team may carry service weapons, ammunition and equipment as authorised according to the home Member State's national law. The Republic of Serbia shall, in advance of the deployment of the members of the team, inform the Agency of the permissible service weapons, ammunition and equipment and of the relevant legal framework and conditions for their use. The Agency shall submit in advance to the competent authority of the Republic of Serbia the list of service weapons of the members of the team, namely information concerning the type and serial number of the weapons and the type and quantity of ammunitions.

6.While performing their tasks and exercising their powers, members of the team shall be authorised to use force, including service weapons, ammunition and equipment, with the consent of the home Member State and the Republic of Serbia, in the presence of border guards or other police officers of the Republic of Serbia and in accordance with the national law of the Republic of Serbia. The Republic of Serbia may authorise members of the team to use force in the absence of border or other police officers of the Republic of Serbia. Members of the team may use weapons only when it is absolutely necessary in self-defence to repel an immediate life-threatening attack against themselves or another person, in accordance with the national legislation of the Republic of Serbia.

7.The competent authority of the Republic of Serbia may, upon request, communicate relevant information contained in its national databases to members of the team if necessary for fulfilling operational aims specified in the Operational Plan and for implementing actions. The members of the team may be communicated only information concerning relevant facts which is necessary for performing their tasks and excercising their powers. The Agency may communicate to the competent authorities of the Republic of Serbia relevant information which is necessary for fulfilling operational aims specified in the operational plan and for implementing joint actions.

8. For the purposes of fulfilling operational aims specified in the Operational Plan and implementing actions, the competent authority of the Republic of Serbia and members of the team may exchange other information and findings.

9. The members of the team referred to in paragraphs 1 and 3 to 6 do not include the Agency staff.

Article 5

Suspension and Termination of the Action

1. The Executive Director of the Agency may suspend or terminate the action, after informing the competent authority of the Republic of Serbia in writing, if the provisions of this Agreement or of the Operational Plan are not properly implemented by the Republic of Serbia. The Executive Director shall notify the competent authority of the Republic of Serbia the reasons thereof.

2. The Republic of Serbia may suspend or terminate the action, after informing the Agency in writing, if the provisions of this Agreement or of the Operational Plan are not properly implemented by the Agency or by any participating Member State. The competent authority of the Republic of Serbia shall notify the Agency the reasons thereof.

3. In particular, the Executive Director of the Agency or the Republic of Serbia may suspend or terminate the action in cases of breach of fundamental rights, violation of non-refoulement principle or of data protection rules.

4. Termination of the action shall not affect any rights or obligations arising out of the application of this Agreement or the Operational Plan before such termination.

Article 6

Privileges and immunities of the members of the team

1. Papers, correspondence and property of members of the team shall be inviolable, except in case of measures of execution which are permitted pursuant to paragraph 6.

2. Members of the team shall enjoy immunity from the criminal jurisdiction of the Republic of Serbia in respect of the acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan.

In the event of an allegation of a criminal offence being committed by a member of the team, the competent authority referred to in Article 12, paragraph 1 of this Agreement, shall immediately notify the Executive Director of the Agency and the competent authority of the home Member State.

After careful consideration of any representation of the home Member State and of the Republic of Serbia, and based upon information provided by both Parties, the Executive Director of the Agency shall certify whether the act in question was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan.

In case the Executive Director of the Agency certifies that the act was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan, the member of the team shall benefit from immunity of the criminal jurisdiction of the Republic of Serbia for the acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan.

3. Members of the team shall enjoy immunity from the civil and administrative jurisdiction of the Republic of Serbia in respect of all acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan.

If any civil proceeding is instituted against members of the team before any court, the competent authority referred to in Article 12, paragraph 1 of this Agreement, shall immediately notify the Executive Director of the Agency and the competent authority of the home Member State.

After careful consideration of any representation of the home Member State and of the Republic of Serbia, and based upon information provided by both Parties, the Executive Director of the Agency shall certify whether the act in question was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan.

In case the Executive Director of the Agency certifies that the act was performed in the exercise of the official functions of the member of the team in the course of the actions carried out in accordance with the operational plan, the member of the team shall benefit from immunity of the civil and administrative jurisdiction of the Republic of Serbia for the acts performed during and for the purpose of the exercise of the official functions in the course of the actions carried out in accordance with the operational plan.

4. The immunity of members of the teams from the criminal, civil and administrative jurisdiction of the Republic of Serbia in accordance with paragraphs 2 and 3 may be waived by the home Member State as the case may be. Such a waiver must always be an express waiver.

5. Members of the team shall not be obliged to give evidence as witnesses.

6.In case of damage caused by a member of the team in the exercise of official functions in the course of the actions carried out in accordance with the operational plan, the Republic of Serbia shall be liable for any damage.

In case of damage caused by gross negligence or wilful misconduct or if the act was not committed in the exercise of official functions by a member of the team from a participating Member State, the Republic of Serbia may request, via the executive director, that compensation be paid by the participating Member State concerned.

In case of damage caused by gross negligence or wilful misconduct or if the act was not committed in the exercise of official functions by a member of the team who is a staff member of the Agency, the Republic of Serbia may request that compensation be paid by the Agency.

In case of damage caused in the Republic of Serbia, due to force majeure, neither the Republic of Serbia, nor the participating Member State, nor the Agency, shall hold any responsibility.

7. No measures of execution may be taken in respect of members of the team, except in the case where a criminal or civil proceeding not related to their official functions is instituted against them. Property of members of the team, which is certified by the Executive Director of the Agency 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, members of the team shall not be subject to any restrictions on their personal liberty or to any other measures of constraint.

8. The immunity of members of the team from the jurisdiction of the Republic of Serbia shall not exempt them from the jurisdictions of the respective home Member States.

9. Members of the team shall, with respect to services rendered for the Agency, be exempt from social security provisions which may be in force in the Republic of Serbia.

10. Members of the team shall be exempt from any form of taxation in the Republic of Serbia on the salary and emoluments paid to them by the Agency or the home Member States, as well as on any income received from outside the Republic of Serbia.

11. The Republic of Serbia shall, in accordance with such laws and regulations as it may adopt, permit the entry of articles for the personal use of members of the team, 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. the Republic of Serbia shall also allow the export of such articles.

12. The personal bagage of members of the team may be inspected if there are grounds for considering that it contains articles that are not for the personal use of members of the team, or articles whose import or export is prohibited by the law or subject to quarantine regulations of the Republic of Serbia. Inspection of such personal baggage shall be conducted only in the presence of the member(s) of the team concerned or an authorised representative of the Agency.

Article 7

Accreditation document

1. The Agency shall, in cooperation with the Republic of Serbia, issue a document in the official language(s) of the the Republic of Serbia and in an official language of the institutions of the European Union to each member of the team for the purposes of identification vis-à-vis the national authorities of the Republic of Serbia and as proof of the holder’s rights to perform the tasks and exercise the powers referred to in Article 4 of this Agreement and in the Operational Plan. The document shall include the following information on the member: name and nationality; rank or job title; a recent digitised photograph and tasks authorised to be performed during the deployment. It shall also mention that the holder of this document has a right to reside in the territory of the Republic of Serbia for the duration of action without additional procedures.

2. The accreditation document, in combination with a valid travel document, grants the member of the team access to the Republic of Serbia without the need for a visa or prior authorisation.

3. The accreditation document shall be returned to the Agency at the end of the action.

4. The Agency will before the start of the application of this Agreement and whenever its template is modified provide the competent authority of the Republic of Serbia with a specimen of the accreditation document referred to in paragraph 1.

Article 8

Fundamental Rights

1. Members of the team shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights and freedoms, including as regards access to asylum procedures, human dignity and the prohibition of torture, inhuman or degrading treatment, the right to liberty, the principle of non-refoulement and the prohibition of collective expulsions, the rights of the child and the right to respect for private and family life. While performing their tasks and exercising their powers, they shall not discriminate against persons on any grounds including sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation. Any measures interfering with fundamental rights and freedoms taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures and respect the essence of these fundamental rights and freedoms.

2. Each Party shall use an existing mechanism to deal with allegations of a breach of fundamental rights committed by its staff in the exercise of their official functions in the course of a joint operation, rapid border intervention or return operation performed under this Agreement.

Article 9

Processing of personal data

1. Processing of personal data shall take place only in cases when it is necessary for the implementation of this Agreement by the Republic of Serbia, the Agency or participating Member States. 

2. Processing of personal data by the competent authority of the Republic of Serbia shall be subject to its national laws.

3. Processing of personal data for administrative purposes by the Agency and the participating Member State(s), including in case of transfer of personal data to the Republic of Serbia, shall be subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters and measures adopted by the Agency for the application of Regulation (EC) No 45/2001 as referred to in Article 45 (2) of Regulation (EU) 2016/1624.

4. In case the processing involves the transfer of personal data, Member States and the Agency shall indicate, at the moment of transferring personal data to the competent authority of the Republic of Serbia, any restrictions on access to it or use of it, 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, they shall inform the competent authority of the Republic of Serbia accordingly.

5. Personal data collected and further processed for administrative purposes during the action may be processed by the Agency, the participating Member States and the competent authority of the Republic of Serbia in line with the applicable data protection legislation.

For the purpose of implementing this Agreement the competent authority of the Republic of Serbia shall keep a record of personal data collected and further processed under this Article. The data covered by this record shall be: name and surname, date of birth, place of birth, country of origin, number and type of personal or other documents, place and time of data processing and the reason for data collecting and processing.

The data contained in this record shall be kept for three years from the date of collection.

6. The Agency, the participating Member States and the Republic of Serbia shall draw up a common report on the application of paragraphs 1 to 5 at the end of each action. This report shall be sent to the competent authorities of the Republic of Serbia, to the Agency's Fundamental Rights Officer and to the Data Protection Officer. The latter two shall report to the Executive Director of the Agency.

Article 10

Disputes and interpretation

1. All issues arising in connection with the application of this Agreement shall be examined jointly by the competent authorities of the Republic of Serbia and by representatives of the Agency.

2. Failing any prior settlement, disputes concerning the interpretation or application of this Agreement shall be settled exclusively by negotiation between the competent authorities of the Republic of Serbia and the European Commission.

3. For the purposes of paragraphs (1) and (2), the European Border and Coast Guard Agency and the European Commission shall be in constant contact with the Member State or Member States bordering the operational area.

Article 11

Relation to other international obligations

This Agreement shall be without prejudice to the obligations assumed by the Republic of Serbia or the European Union on the basis of international treaties and agreements in accordance with generally accepted principles of international law and shall be without prejudice to their application.

Article 12

Competent authorities for the implementation of the Agreement

1. The competent authority for the implementation of this Agreement in the Republic of Serbia shall be the Ministry in charge of Internal Affairs.

2. The competent authority of the European Union for the implementation of this Agreement shall be the Agency.

Article 13

Entry into force, duration, suspension and termination of the Agreement

1. This Agreement shall be approved by the Parties in accordance with their own internal legal procedures.

2. This Agreement shall enter into force 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 referred to in paragraph 1.

3. The Agreement may be terminated or suspended by written agreement between the Parties or unilaterally by either Party. In this last case, the Party wishing to terminate or suspend it shall notify in writing the other Party thereof through diplomatic channels.

The suspension shall take effect ten (10) working days after receiving notification.

The termination shall take effect the first day of the second month following the month notification was given.

4. 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 Republic of Serbia, to the Ministry of Foreign Affairs of the Republic of Serbia.

Done at …. on ……

in duplicate 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 Serbian languages, each of these texts being equally authentic.



JOINT DECLARATION CONCERNING ARTICLE 2(b)

The Contracting Parties take note that the European Border and Coast Guard Agency will support the Republic of Serbia to control efficiently its border with any country that is not a member of the European Union by other means than deployments of European Border and Coast Guard teams with executive powers.

Joint declaration on status and delimitation of the territories

The status and delimitation under international law of the territory of Serbia and the territories in which the Treaty on European Union and the Treaty on the Functioning of the European Union apply is in no way affected either by this Agreement or by any act accomplished in its implementation by the parties or on their behalf, including the establishment of operational plans or the participation in cross-border operations.

JOINT DECLARATION WITH REGARD TO ICELAND, NORWAY, SWITZERLAND AND LIECHTENSTEIN

The Contracting Parties take note of the close relationship between the European Union and Norway, Iceland, Switzerland and Liechtenstein, particularly by virtue of the Agreements of 18 May 1999 and 26 October 2004 concerning the association of those countries with the implementation, application and development of the Schengen acquis.

In such circumstances it is desirable that the authorities of Norway, Iceland, Switzerland and Liechtenstein, on the one hand, and the Republic of Serbia, on the other hand, conclude, without delay, bilateral agreements on actions carried out by the European Border and Coast Guard Agency in the Republic of Serbia in terms similar to those of this Agreement.

(1) * This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence.
Top