(Dec. 18, 2015) On December 15, 2015, the European Commission adopted a proposal for a Regulation to Establish a European Border and Coast Guard (EBCG), designed to ensure shared European management of the external borders of the European Union. The proposal will establish a European Border and Coast Guard Agency (EBCGA), which will replace the body commonly referred to as FRONTEX (the European Agency for the Management of Operational Cooperation at the External Borders) and will have increased powers. The EBCGA will share responsibility with national authorities responsible for border management; the EBCGA and the national border authorities together will constitute the EBCG. (Proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard and Repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC (Proposal), COM(2015) 671 final (Dec. 15, 2015), EUROPA.)
The Commission was prompted to take swift action due to the massive influx of migrants into the EU during 2015, which brought to the forefront the need to improve the security of the EU’s external borders. The migrant crisis also demonstrated that FRONTEX, which had a limited mandate in supporting the Member States to secure their external borders, had inadequate staff and equipment and lacked the authority to conduct border management operations and search-and-rescue efforts. (Id.)
The legal grounds for the proposal are article 77, paragraph 2(b) and (d), and article 79, paragraph 2 (c), of the Treaty on the Functioning of the European Union. Article 77 grants competence to the EU to adopt legislation on a “gradual introduction of an integrated management system for external borders,” and article 79 authorizes the EU to enact legislation concerning the repatriation of third-country nationals residing illegally within the EU. (Consolidated Version of the Treaty on the Functioning of the European Union, 2012 O.J. (C 326) 47, EUR-LEX.)
Powers of the EBCG
In general, the EBCG, in comparison with FRONTEX, will have increased competences at the European level and will be better equipped to manage the external borders of the EU. The EU and the Member States will share responsibility in securing the external borders of the EU. The EBCG will unite the EBCGA and the Member States’ authorities responsible for border management, including coast guards. National authorities will continue to exercise the day-to-day management of their respective external borders. (Proposal, supra.)
The EBCGA’s enhanced features will include:
- The right to intervene. Member States will be able to request joint operations, rapid border interventions, and deployment of the EBCG Teams to support national authorities when a Member State experiences an influx of migrants that endangers the Schengen area. In such a case, especially when a Member State’s action is not sufficient to handle the crisis, the Commission will have the authority to adopt an implementing decision that will determine whether a situation at a particular section of the external borders requires urgent action at the EU level. Based on this decision, the EBCGA will be able to intervene and deploy EBCG Teams to ensure that action is taken on the ground, even when a Member State is unable or unwilling to take the necessary measures.
- A monitoring and risk analysis center. The center will be authorized to carry out mandatory vulnerability assessments concerning the capacities of the Member States to face current or upcoming challenges at their external borders.
- A European Return Office. This will enable the deployment of European Return Intervention Teams composed of escorts, monitors, and return specialists to return illegally staying third-country nationals. These nationals will be given a uniform European travel document for return; and establishment and deployment of EBCG Teams for joint operations and rapid border interventions, as needed. (Id.)
To enable the EBCGA to complete its tasks, its budget will be gradually increased from the €143 million originally planned for 2015 up to €238 million in 2016, €281 million in 2017, and will reach €322 million (about US$ 350 million) in 2020. The Agency will gradually increase its staff members from 402 in 2016 to 1,000 by 2020. (Press Release, European Commission, European Agenda on Migration: Securing Europe’s External Borders (Dec. 15, 2015), EUROPA.)
The right to intervene is a point of contention between a number of EU Members and the Commission, especially those Members whose borders form the external borders of the EU, such as Cyprus, Greece, Hungary, Italy, and Poland. They want to ensure that intervention is possible only with the consent of the Member States, whose external borders necessitate the presence of the ECBGA. (Sarantis Michalopoulos, Greek Minister: New EU Border Force Should Assume Full Control of Refugees, EURACTIV (Dec. 18, 2015).) Greece’s Alternate Minister for European Affairs, Nikos Xydakis, stated in an interview that while Greece is supportive of a common European action and of changing Frontex’s mandate, it wants the ECBGA to take complete charge of migration and refugee flows. (Id.)