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Document 52018PC0458

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

COM/2018/458 final - 2018/0241 (NLE)

Brussels, 13.6.2018

COM(2018) 458 final

2018/0241(NLE)

Proposal for a

COUNCIL DECISION

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


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.

On the basis of negotiating directives adopted by the Council on 16 October 2017, the European Commission has negotiated with the Republic of Albania a 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 2015/2016, organised crime networks adapt quickly their routes and methods for smuggling migrants to any new circumstances. With the status agreement in place, the responsible Albanian authorities 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 the conclusion of the status agreement between the European Union and the Republic of Albania.

Negotiations on the status agreement have been opened on 13 December 2017 and were successfully finalised by the initialling of the draft status agreement by Commissioner for Migration, Home Affairs and Citizenship D. Avramopoulos and the Minister of Interior of the Republic of Albania F. Xhafaj on 12 February 2018 in Tirana.

Consistency with existing policy provisions in the policy area

Two police cooperation agreements between the Greek and Albanian authorities (Law 2147/1993 and Law 2568/1998) have been concluded, covering the exchange of information in police issues, including illegal migration. The Greek police exchanges information with the Albanian authorities on general issues of serious and organised criminal cross-border activities and also on readmission procedures of illegal immigrants.

Albania concluded agreements on border control, surveillance and joint patrols with Montenegro and Kosovo 2*, and on joint patrols with the former Yugoslav Republic of Macedonia, but not yet with Greece. Albania has concluded an agreement with Italy on joint patrols (with Guardia di Finanza) for the sea border.

A protocol between the Ministries of Interior of Montenegro, Albania and Kosovo* has established a Joint Police Cooperation Centre in Plav which is aimed at advancing cross-border cooperation in the fight against crime, through more intense exchange of operational information and closer coordination of joint security efforts. The Joint Police Cooperation Centre has been officially opened on 30 May 2017. Work is ongoing to set up another centre at the border with Greece.

A working arrangement (which is being updated) establishing operational cooperation between the Republic of Albania and the European Border and Coast Guard includes in particular regular participation of Albanian experts in European Border and Coast Guard Agency coordinated operational activities, acting as observers on Member States' territory.

Consistency with other Union policies

The European Agenda on Migration 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 Albania's borders will also positively impact the EU external borders, in particular the external borders of Greece, as well as the borders of the Republic of Albania. Further strengthening security at the external borders is also in line with the European Agenda on Security.

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), in conjunction with Article 218(6) TFEU.

The conclusion by the EU 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 agreement concluded with the Republic of Albania 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

A status agreement will allow for the deployment of European Border and Coast Guard teams by the European Border and Coast Guard Agency in the Republic of Albania instead of bilateral deployment by Member States in case of a sudden influx of migrants.

A common approach is therefore needed to better manage the Republic of Albania's borders.

Choice of the instrument

This proposal is in accordance with Article 218(6) 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 negotiations 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 draft status agreement contains provisions ensuring that fundamental rights of persons affected by the actions of staff involved in an action led 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 border guards' teams 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.

The financial statement annexed to the proposal for a Regulation on a European Border and Coast Guard on the expenditure of the European Border and Coast Guard Agency evaluated at EUR 6.090 million on average each year for 2017-2020 the reinforced cooperation with third countries (including possible joint operations with neighbouring countries).

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 Albania 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 Albania 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 Albania to carry out joint operations and rapid border interventions. European Border and Coast Guard teams shall also be allowed, in the course of a specific return operation, to assist the Republic of Albania in identifying the persons to be readmitted to the Republic of Albania, in line with the Agreement between the European Community and the Republic of Albania on the readmission of persons residing without authorisation . 3

European Border and Coast Guard teams may be deployed on the Albanian territory only in regions bordering the EU external borders.

Operational plan 

Before each joint operation or rapid border intervention, an operational plan must be agreed between the Agency and the Republic of Albania. 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 operational concept, 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 laws and regulations of the Republic of Albania.

Teams shall only act in the territory of the Republic of Albania under instructions from and, as a general rule, in the presence of border guards or other relevant staff of the Republic of Albania, which may exceptionally authorise teams to act on its behalf.

Members of the team shall wear 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 Albanian authorities.

Members of the team may carry service weapons, ammunition and equipment as authorised according to their own State's national law. The Agency shall be beforehand informed by the Albanian authorites 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 Albania authorities, in the presence of Albanian border guards or other relevant staff, and in accordance with the Albanian law. Albanian authorities may authorise members of the team to use force also in the absence of their border guards.

Subject to the principle of necessity, members of the team may be authorised by the Albanian authorities to consult databases in accordance with the Albanian data protection law.

Suspension and termination of the action

Both the Agency and the Albanian authorities 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 Albania for acts committed in respect of the activities 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 Albania.

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 court 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 Albanian competent authorities. The certification by the Executive Director of the Agency shall be binding upon the jurisdiction of the Republic of Albania.

Privileges granted to members of the team and immunity from the criminal jurisdiction of the Republic of Albania 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 Albania may be waived by the Member State which 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 Albania 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' Albania may request the Agency that compensation be paid by the participating Member State concerned. If the damage is caused by a staff of the Agency, the Republic of Albania may request that compensation be paid by the Agency. Both the Member State and the Agency may claim the reimbursement of the damages paid to the injured party back from the wrongdoer in accordance with their internal rules.

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

No measures of execution may be taken in respect of members of the team, except in the case where a 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 which may be in force in the Republic of Albania with respect to services rendered for the Agency. They shall also be exempt from any form of taxation in the Republic of Albania 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 Albania.

Albanian authorities 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 only in cases of justified suspicions 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 Albania. 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 assets 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 Albania, issue an accreditation document to members of the team for the purposes of identification vis-à-vis the Albanian authorities 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 Albania without the need for a visa or prior authorisation.

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, sexual orientation or gender identity. 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 complaint 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 Albanian Ombudsman could deal with such allegations, except if the Albanian authorities decide to set up a mechanism specifically tasked to deal with complaints lodged under this Agreement.

Processing of personal data

Personal data shall be processed by members of the team when necessary in accordance with the rules applicable to the Agency and the EU Member States. Processing of personal data by the Albanian authorities shall be subject to Albanian laws.

The Agency, the participating Member States and the Albanian authorities 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. They shall report to the Executive Director of the Agency.

Competent authorities for the implementation of the Agreement

For the Republic of Albania, the competent authority for the implementation of this Agreement is the Ministry of Interior. For the European Union, it is the European Border and Coast Guard Agency.

Disputes and interpretation

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

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

2018/0241 (NLE)

Proposal for a

COUNCIL DECISION

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

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), thereof,

Having regard to the proposal from the European Commission,

Having regard to the consent of the European Parliament 4 ,

Whereas:

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

(2)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.

(3)Thanks to this status agreement, border guard teams can be swiftly deployed on Albanian territory and respond to the current shift in migratory flows towards the coastal route and assist in external border management and fight against migrant smuggling.

(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 5 ; 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 6 ; 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 status agreement between the European Union and the Republic of Albania on actions carried out by the European Border and Coast Guard Agency in the Republic of Albania, 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 give, on behalf of the European Union, the notification provided for in Article 12(4) of 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. 16.9.2016, L 251/1.
(2) *     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.
(3)    O.J., 17.5.2005, L 124/22.
(4)    OJ C , , p.
(5)    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. 1.6.2000, L 131/43).
(6)    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. 7.3.2002, L 64/20).
Top

Brussels,13.6.2018

COM(2018) 458 final

ANNEX

to the

Proposal for a Council Decision

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


ANNEX

Status agreement

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

THE EUROPEAN UNION,

and THE REPUBLIC OF ALBANIA,

Hereinafter referred to as 'the Parties',

WHEREAS situations may arise where the European Border and Coast Guard Agency as structure of the European Union, hereinafter referred to as the Agency, coordinates the operational cooperation between EU Member States and the Republic of Albania, including operational actions on the territory of the Republic of Albania,

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 Albania,

CONSIDERING that all actions of the European Border and Coast Guard Agency on the territory of the Republic of Albania should fully respect fundamental rights and international acts to which the Republic of Albania is party,

HAVE DECIDED TO CONCLUDE THE FOLLOWING AGREEMENT:

Article 1

Scope of the Agreement

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

2.This Agreement shall only apply in the territory of the Republic of Albania.

3.The status and delimitation under international law of the respective territories of the States concerned is in no way affected neither by this Agreement nor 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.

Article 2

Definitions

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

(1)'action' means a joint operation, a rapid border intervention or a return operation;

(2)‘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 border of the Republic of Albania neighbouring a Member State and deployed in the territory of the Republic of Albania;

(3)‘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 Albania neighbouring a Member State and deployed in the territory of the Republic of Albania for a limited period of time;

(4)'return operation' means an operation that is coordinated by the Agency and involves technical and operational reinforcement being provided by one or more Member States under which returnees from one or more Member States are returned either on a forced or voluntary basis to the Republic of Albania;

(5)‘border control’ means the control of persons carried out at a border in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks at border crossing points and border surveillance between border crossing points;

(6)‘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;

(7)'Member State' means a Member State of the European Union;

(8)'home Member State' means the Member State of which a member of a team is a border guard or other relevant staff member;

(9)'personal data’ means any information 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, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

(10)'participating Member State' means a Member State which participates in the action in the Republic of Albania  by providing technical equipment, border guards and other relevant staff deployed as part of the team;

(11)'Agency' means the European Border and Coast Guard Agency established by Regulation (EU) 2016/1624 on the European Border and Coast Guard;

(12)‘executive powers of the members of a team’ means powers necessary to perform the tasks required for border control and return operations which are conducted on the territory of the Republic of Albania during the joint action as included in the Operational Plan;

(13)'force majeure' includes, without limitation, any act of war (whether declared or not), invasion, armed conflict or foreign enemy action, blockade, riot, terrorism or exercise of military power, any earthquake, flood, fire, storm or natural disaster and whenever it happens, any event or circumstance analogous to the above.

Article 3
Operational Plan

1.An Operational Plan, that has the agreement of the Member State or Member States bordering the operational area, shall be agreed between the Agency and the Republic of Albania for each joint operation or rapid border intervention.

2.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 operational concept, 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.

3.The evaluation of the joint operation or of the rapid border intervention shall be conducted jointly by the Republic of Albania 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 laws and regulations of the Republic of Albania.

3.Members of the team may only perform tasks and exercise powers in the territory of the Republic of Albania under instructions from and, as a general rule, in the presence of border guards or other relevant staff of the Republic of Albania. The Republic of Albania shall issue, where appropriate, instructions to the team in accordance with the Operational Plan. The Republic of Albania may exceptionally authorise members of the team to act on its behalf.

The Agency, through its Coordinating Officer, may communicate its views to the Republic of Albania on the instructions given to the team. In that case, the Republic of Albania 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 also wear visible personal identification and a blue armband with the insignias of the European Union and of the Agency on their uniforms. For the purposes of identification vis-à-vis the national authorities of the Republic of Albania, 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 Albania 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.

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 Albania, in the presence of border guards or other relevant staff of the Republic of Albania and in accordance with the national law of the Republic of Albania. The Republic of Albania may authorise members of the team to use force in the absence of border guards or other relevant staff of the Republic of Albania. The authority to grant the consent of the home Member State will be defined in the Operational Plan.

7.The Republic of Albania may authorise members of the team to consult its national databases if necessary for fulfilling operational aims specified in the Operational Plan and for return operations. The members of the team shall only consult data which is necessary for performing their tasks and exercising their powers as specified in the Operational Plan or as necessary for return operations. The Republic of Albania shall, in advance of the deployment of the members of the team, inform the Agency of the national databases which may be consulted. That consultation shall be carried out in accordance with the national data protection law of the Republic of Albania.

Article 5

Suspension and termination of the action

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

2.The Republic of Albania 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 respected by the Agency or by any participating Member State. The Republic of Albania shall notify the Agency the reasons thereof.

3.In particular, the Executive Director of the Agency or the Republic of Albania 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 assets of members of the team shall be inviolable, except in case of measures of execution which are permitted pursuant to paragraph 7.

2.Members of the team shall enjoy immunity from the criminal jurisdiction of the Republic of Albania in respect of the activities acts performed in 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 Executive Director of the Agency and the competent authority of the home Member State shall be notified immediately. Prior to the initiation of the proceeding before the court, the Executive Director of the Agency, after careful consideration of any representation made by the competent authority of the home Member State and the competent authorities of the Republic of Albania, shall certify to the court whether the act in question was performed in the exercise of their official functions in the course of the actions carried out in accordance with the operational plan. Pending the certification by the Executive Director of the Agency, the Agency and the home Member State shall refrain from taking any measure likely to jeopardise possible subsequent criminal prosecution of the member of the team by the competent authorities of the Republic of Albania.

If the act was committed in the exercise of official functions, proceedings shall not be initiated. If the act was not committed in the exercise of official functions, proceedings may continue. The certification by the Executive Director of the Agency shall be binding upon the jurisdiction of the Republic of Albania. Privileges granted to members of the team and immunity from the criminal jurisdiction of the Republic of Albania do not exempt them from the jurisdiction of the home Member State.

3.Members of the team shall enjoy immunity from the civil and administrative jurisdiction of the Republic of Albania in respect of all acts performed by them in the exercise of their 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 Executive Director of the Agency and the competent authority of the home Member State shall be notified immediately. Prior to the initiation of the proceeding before the court, the Executive Director of the Agency, after careful consideration of any representation made by the competent authority of the home Member State and the competent authorities of the Republic of Albania, shall certify to the court whether the act in question was performed by Members of the team in the exercise of their official functions in the course of the actions carried out in accordance with the operational plan.

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 Executive Director of the Agency shall be binding upon the jurisdiction of the Republic of Albania. The initiation of proceedings by members of the team shall preclude them from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.

4.The immunity of members from the criminal, civil and administrative jurisdiction of the Republic of Albania 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 a team in the exercise of official functions in the course of the actions carried out in accordance with the operational plan, the Republic of Albania 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 Albania 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 Albania may request that compensation be paid by the Agency.

In case of damage caused in the Republic of Albania, due to force majeure, neither the Republic of Albania, 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 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 Albania 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 Albania.

10.Members of the team shall be exempt from any form of taxation in the Republic of Albania 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 Albania.

11.The Republic of Albania 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 Albania shall also allow the export of such articles.

12.The personal baggage of members of the team may be inspected only in cases of justified suspicions 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 Albania. 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 Albania, issue a document in the official language(s) of the Republic of Albania 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 Albania 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.

2.The accreditation document, in combination with a valid travel document, grants the member of the team access to the Republic of Albania 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. The competent Albanian authorities shall be informed thereof.

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 arbitrarily discriminate against persons on any grounds including sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation or gender identity. 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 have a complaint 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 by members of the team shall only take place when necessary for the performance of their tasks and the exercise of their powers for the implementation of this Agreement by the Republic of Albania, the Agency or participating Member States.

2.Processing of personal data by the Republic of Albania 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 Albania, 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 Republic of Albania, 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 Republic of Albania accordingly.

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

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

Article 10

Competent authorities for the implementation of the Agreement

1.The competent authorities for the implementation of this Agreement in the Republic of Albania shall be the Ministry of Interior.

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

Article 11
Disputes and interpretation

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

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

Article 12
Entry into force, duration 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.This Agreement shall be valid indefinitely. The Agreement may be terminated 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. 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 Albania, to the Ministry responsible for Foreign Affairs of the Republic of Albania.

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 Albanian languages, each of these texts being equally authentic.

Signatures:






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 Albania, 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 Albania in terms similar to those of this Agreement.

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