http://www.legislation.gov.uk/eur/2019/1896/chapter/II/section/7Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624Regulation (EU) 2019/1896 of the European Parliament and of the CouncilRegulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/16242020-12-12King's Printer of Acts of Parliamenthttps://webarchive.nationalarchives.gov.uk/eu-exit/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019R1896texttext/xmlen2019-11-13 CHAPTER II <Strong>FUNCTIONING OF THE EUROPEAN BORDER AND COAST GUARD</Strong> SECTION 7 <Emphasis> <Strong>Action by the Agency at the external borders</Strong> </Emphasis> Actions by the Agency at the external borders Article 36 1 A Member State may request the Agency's assistance in implementing its obligations with regard to external border control. The Agency shall also carry out measures in accordance with Articles 41 and 42. 2 The Agency shall organise the appropriate technical and operational assistance for the host Member State and it may, acting in accordance with the relevant Union and international law, including the principle of non-refoulement, take one or more of the following measures: a coordinate joint operations for one or more Member States and deploy the standing corps and technical equipment; b organise rapid border interventions and deploy the standing corps and technical equipment; c coordinate activities for one or more Member States and third countries at the external borders, including joint operations with third countries; d deploy the standing corps in the framework of the migration management support teams to, inter alia, hotspot areas in order to provide technical and operational assistance, including, where necessary, in return activities; e within the framework of operations referred to in points (a), (b) and (c) of this paragraph and in accordance with Regulation (EU) No 656/2014 and international law, provide technical and operational assistance to Member States and third countries in support of search and rescue operations for persons in distress at sea which may arise during border surveillance operations at sea; f give priority treatment to the EUROSUR fusion services. 3 The Agency shall finance or co-finance the activities referred to in paragraph 2 from its budget in accordance with the financial rules applicable to the Agency. 4 If the Agency has substantial additional financial needs due to a situation at the external borders, it shall inform the European Parliament, the Council and the Commission thereof without delay. Initiating joint operations and rapid border interventions at the external borders Article 37 1 A Member State may request that the Agency launch joint operations to face upcoming challenges, including illegal immigration, present or future threats at its external borders or cross-border crime, or provide increased technical and operational assistance when implementing its obligations with regard to external border control. As part of such a request, a Member State may also indicate the profiles of operational staff needed for the joint operation in question, including those staff having executive powers, as applicable. 2 At the request of a Member State faced with a situation of specific and disproportionate challenges, especially the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of that Member State without authorisation, the Agency may deploy a rapid border intervention for a limited period of time on the territory of that host Member State. 3 The executive director shall evaluate, approve and coordinate proposals made by Member States for joint operations or rapid border interventions. Joint operations and rapid border interventions shall be preceded by a thorough reliable and up-to-date risk analysis, thereby enabling the Agency to set an order of priority for the proposed joint operations and rapid border interventions, taking into account the impact levels attributed to external border sections in accordance with Article 34 and the availability of resources. 4 The objectives of a joint operation or rapid border intervention may be achieved as part of a multipurpose operation. Such operations may involve coast guard functions and the prevention of cross-border crime, focusing on the fight against migrant smuggling or trafficking in human beings, and migration management, focusing on identification, registration, debriefing and return. Operational plans for joint operations Article 38 1 In preparation of a joint operation the executive director, in cooperation with the host Member State, shall draw up a list of technical equipment, staff and profiles of staff needed, including those staff having executive powers, as applicable, to be authorised in accordance with Article 82(2). That list shall be drawn up taking into account the host Member State's available resources and the host Member State's request under Article 37. On the basis of those elements, the Agency shall define a package of technical and operational reinforcement as well as capacity-building activities to be included in the operational plan. 2 The executive director shall draw up an operational plan for joint operations at the external borders. The executive director and the host Member State, in close and timely consultation with the participating Member States, shall agree on the operational plan detailing the organisational and procedural aspects of the joint operation. 3 The operational plan shall be binding on the Agency, the host Member State and the participating Member States. It shall cover all aspects considered necessary for carrying out the joint operation, including the following: a description of the situation, with modus operandi and objectives of the deployment, including the operational aim; b the estimated time that the joint operation is expected to last in order to achieve its objectives; c the geographical area where the joint operation will take place; d a description of the tasks, including those requiring executive powers, responsibilities, including with regard to the respect for fundamental rights and data protection requirements, and special instructions for the teams, including on permissible consultation of databases and permissible service weapons, ammunition and equipment in the host Member State; e the composition of the teams as well as the deployment of other relevant staff; f command and control provisions, including the names and ranks of the border guards of the host Member State responsible for cooperating with the members of the teams and the Agency, in particular the names and ranks of those border guards who are in command during the period of deployment, and the place of the members of the teams in the chain of command; g the technical equipment to be deployed during the joint operation, including specific requirements such as conditions for use, requested crew, transport and other logistics, and financial provisions; h detailed provisions on immediate incident reporting by the Agency to the management board and to relevant national authorities; i a reporting and evaluation scheme containing benchmarks for the evaluation report, including with regard to the protection of fundamental rights, and final date of submission of the final evaluation report; j regarding sea operations, specific information on the application of the relevant jurisdiction and applicable law in the geographical area where the joint operation takes place, including references to national, international and Union law regarding interception, rescue at sea and disembarkation; in that regard the operational plan shall be established in accordance with Regulation (EU) No 656/2014; k the terms of cooperation with third countries, other Union bodies, offices and agencies or international organisations; l general instructions on how to ensure the safeguarding of fundamental rights during the operational activity of the Agency; m procedures whereby persons in need of international protection, victims of trafficking in human beings, unaccompanied minors and persons in a vulnerable situation are directed to the competent national authorities for appropriate assistance; n procedures setting out a mechanism to receive and transmit to the Agency complaints against any person participating in an operational activity of the Agency, including border guards or other relevant staff of the host Member State and members of the teams, alleging breaches of fundamental rights in the context of their participation in an operational activity of the Agency; o logistical arrangements, including information on working conditions and the environment of the areas in which the joint operation is to take place. 4 Any amendments to or adaptations of the operational plan shall require the agreement of the executive director and the host Member State, after consultation of the participating Member States. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States. 5 This Article shall apply mutatis mutandis to all operations of the Agency. Procedure for launching a rapid border intervention Article 39 1 A request by a Member State to launch a rapid border intervention shall include a description of the situation, possible aims and envisaged needs, and the profiles of staff needed, including those staff having executive powers, as applicable. If required, the executive director may immediately send experts from the Agency to assess the situation at the external borders of the Member State concerned. 2 The executive director shall immediately inform the management board of a Member State's request to launch a rapid border intervention. 3 When deciding on the request of a Member State, the executive director shall take into account the findings of the Agency's risk analyses and the analysis layer of the European situational picture as well as the outcome of the vulnerability assessment referred to in Article 32 and any other relevant information provided by the Member State concerned or another Member State. 4 The executive director shall immediately assess the possibilities for redeployment of available members of the teams within the standing corps, in particular statutory staff and staff seconded to the Agency by the Member States, present in other operational areas. The executive director shall also assess the additional need to deploy operational staff in accordance with Article 57 and, once staff within the required profiles have been exhausted, to activate the reserve for rapid reaction in accordance with Article 58. 5 The executive director shall take a decision on the request to launch a rapid border intervention within two working days from the date of receipt of the request. The executive director shall simultaneously notify the Member State concerned and the management board in writing of the decision. The decision shall state the main reasons on which it is based. 6 When taking the decision referred to in paragraph 5 of this Article, the executive director shall inform the Member States about the possibility of requesting additional operational staff in accordance with Article 57 and, where applicable, Article 58 by indicating possible numbers and profiles of staff to be provided by each Member State. 7 If the executive director decides to launch a rapid border intervention, he or she shall deploy available border management teams from the standing corps and equipment from the technical equipment pool in accordance with Article 64, and where necessary, he or she shall decide on the immediate reinforcement by one or more border management teams, in accordance with Article 57. 8 The executive director together with the host Member State shall draw up and agree upon an operational plan as referred to in Article 38(2) immediately and, in any event, no later than three working days from the date of the decision. 9 As soon as the operational plan has been agreed upon and provided to the Member States, the executive director shall immediately deploy the operational staff available through redeployments from other operational areas or other duties. 10 In parallel to the deployment referred to in paragraph 9, and where necessary to secure the immediate reinforcement of the border management teams redeployed from other areas or duties, the executive director shall request from each Member State the number and profiles of additional staff to be additionally deployed from their national lists for short-term deployments as referred to in Article 57. 11 If a situation arises where the border management teams referred to in paragraph 7 and the staff referred to in paragraph 10 of this Article are insufficient, the executive director may activate the reserve for rapid reaction by requesting from each Member State the number and profiles of additional staff to be deployed as provided for in Article 58. 12 The information referred to paragraphs 10 and 11 shall be provided in writing to the national contact points and shall indicate the date on which the deployments of staff from each category are to take place. A copy of the operational plan shall also be provided to the national contact points. 13 Member States shall ensure that the number and profiles of staff are immediately made available to the Agency to guarantee a complete deployment in accordance with Article 57 and, if applicable, Article 58. 14 The deployment of the first border management teams redeployed from other areas and other duties shall take place no later than five working days after the date on which the operational plan is agreed between the executive director and the host Member State. Additional deployment of border management teams shall take place, where necessary, no later than 12 working days after the date on which the operational plan is agreed. 15 Where the rapid border intervention is to take place, the executive director shall, in consultation with the management board, immediately consider the priorities with regard to the Agency's ongoing and planned joint operations at other external borders in order to provide for possible reallocation of resources to the areas of the external borders where a strengthened deployment is most needed. Migration management support teams Article 40 1 Where a Member State faces disproportionate migratory challenges at particular hotspot areas of its external borders characterised by large inward mixed migratory flows, that Member State may request technical and operational reinforcement by migration management support teams composed of experts from relevant Union bodies, offices and agencies that shall operate in accordance with their mandates. That Member State shall submit a request for reinforcement and an assessment of its needs to the Commission. On the basis of that assessment of needs, the Commission shall transmit the request, as appropriate, to the Agency, to EASO, to Europol and to other relevant Union bodies, offices and agencies. 2 The relevant Union bodies, offices and agencies shall examine, in accordance with their respective mandates, the Member State's request for reinforcement and the assessment of its needs for the purpose of defining a comprehensive reinforcement package consisting of various activities coordinated by the relevant Union bodies, offices and agencies, to be agreed upon by the Member State concerned. The Commission shall coordinate that process. 3 The Commission, in cooperation with the host Member State and the relevant Union bodies, offices and agencies in accordance with their respective mandates, shall establish the terms of cooperation at the hotspot area and shall be responsible for the coordination of the activities of the migration management support teams. 4 The technical and operational reinforcement provided, with full respect for fundamental rights, by the standing corps in the framework of migration management support teams may include the provision of: a assistance, with full respect for fundamental rights, in the screening of third-country nationals arriving at the external borders, including the identification, registration, and debriefing of those third-country nationals and, where requested by the Member State, the fingerprinting of third-country nationals and providing information regarding the purpose of these procedures; b initial information to persons who wish to apply for international protection and the referral of those persons to the competent national authorities of the Member State concerned or to the experts deployed by EASO; c technical and operational assistance in the field of return in accordance with Article 48, including the preparation and organisation of return operations; d necessary technical equipment. 5 Migration management support teams shall include, where necessary, staff with expertise in child protection, trafficking in human beings, protection against gender-based persecution or fundamental rights. Proposed actions at the external borders Article 41 1 On the basis of the results of the vulnerability assessment or where a critical impact level is attributed to one or more external border sections and taking into account the relevant elements in the Member State's contingency plans, the Agency's risk analysis and the analysis layer of the European situational picture, the executive director shall recommend to the Member State concerned to request that the Agency initiate, carry out or adjust joint operations, rapid border interventions or any other relevant actions by the Agency as set out in Article 36. 2 The Member State concerned shall respond to the recommendation of the executive director referred to in paragraph 1 within six working days. In the event of a negative response to the recommendation, the Member State shall also provide the justifications underlying that response. The executive director shall notify the management board and the Commission without delay about the recommended actions and the justifications for the negative response, with a view to assessing whether urgent action may be required in accordance with Article 42. Situation at the external borders requiring urgent action Article 42 1 Where external border control is rendered ineffective to such an extent that it risks jeopardising the functioning of the Schengen area because: a a Member State does not implement the necessary measures in accordance with a decision of the management board referred to in Article 32(10); or b a Member State facing specific and disproportionate challenges at the external borders has either not requested sufficient support from the Agency under Article 37, 39 or 40 or is not taking the necessary steps to implement actions under those Articles or under Article 41; the Council, on the basis of a proposal from the Commission, may adopt without delay a decision by means of an implementing act to identify measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The Commission shall consult the Agency before making its proposal. 2 Where a situation requiring urgent action arises, the European Parliament shall be informed of that situation without delay as well as of any subsequent measures and decisions taken in response. 3 To mitigate the risk of putting the Schengen area in jeopardy, the Council decision referred to in paragraph 1 shall provide for one or more of the following measures to be taken by the Agency: a organise and coordinate rapid border interventions and deploy the standing corps, including teams from the reserve for rapid reaction; b deploy the standing corps in the framework of the migration management support teams, in particular at hotspot areas; c coordinate activities for one or more Member States and third countries at the external borders, including joint operations with third countries; d deploy technical equipment; e organise return interventions. 4 The executive director shall, within two working days from the date of adoption of the Council decision referred to in paragraph 1: a determine the actions to be taken for the practical execution of the measures identified in that decision, including the technical equipment and the number and profiles of the operational staff needed to meet the objectives of that decision; b draw up a draft operational plan and submit it to the Member States concerned. 5 The executive director and the Member State concerned shall agree on the operational plan referred to in point (b) of paragraph 4 within three working days from the date of its submission. 6 The Agency shall, without delay, and in any case within five working days from the establishment of the operational plan, deploy the necessary operational staff from the standing corps for the practical execution of the measures identified in the Council decision referred to in paragraph 1. Additional teams shall be deployed as necessary at a second stage, and in any case within 12 working days from the establishment of the operational plan. 7 The Agency and the Member States shall, without delay, and in any case within 10 working days from the establishment of the operational plan, send the necessary technical equipment and competent staff to the destination of deployment for the practical execution of the measures identified in the Council decision referred to in paragraph 1. Additional technical equipment shall be deployed as necessary at a second stage in accordance with Article 64. 8 The Member State concerned shall comply with the Council decision referred to in paragraph 1. For that purpose, it shall immediately cooperate with the Agency and take the necessary action to facilitate the implementation of that decision and the practical execution of the measures set out in that decision and in the operational plan agreed upon with the executive director, in particular by implementing the obligations provided for in Articles 43, 82 and 83. 9 In accordance with Article 57 and, where relevant, Article 39, the Member States shall make available the operational staff determined by the executive director in accordance with paragraph 4 of this Article. 10 The Commission shall monitor the implementation of the measures identified in the Council decision referred to in paragraph 1 and the actions that the Agency takes for that purpose. If the Member State concerned does not comply with the Council decision referred to in paragraph 1 of this Article within 30 days and does not cooperate with the Agency in accordance with to paragraph 8 of this Article, the Commission may trigger the procedure provided for in Article 29 of Regulation (EU) 2016/399. Instructions to the teams Article 43 1 During the deployment of border management teams, return teams and migration management support teams, the host Member State or, in the case of cooperation with a third country in accordance with a status agreement, the third country concerned, shall issue instructions to the teams in accordance with the operational plan. 2 The Agency, through its coordinating officer, may communicate its views to the host Member State on the instructions given to the teams. In that case, the host Member State shall take those views into consideration and follow them to the extent possible. 3 In cases where the instructions issued to the teams are not in compliance with the operational plan, the coordinating officer shall immediately report to the executive director, who may, if appropriate, take action in accordance with Article 46(3). 4 Members of the teams shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights, including access to asylum procedures and human dignity, and shall pay particular attention to vulnerable persons. Any measures taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures. While performing their tasks and exercising their powers, they shall not discriminate against persons on the basis of any grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation in line with Article 21 of the Charter. 5 Members of the teams who are not statutory staff shall remain subject to the disciplinary measures of their home Member State. The home Member State shall provide for appropriate disciplinary or other measures in accordance with its national law regarding violations of fundamental rights or international protection obligations in the course of any operational activity by the Agency. 6 Statutory staff deployed as members of the teams shall be subject to disciplinary measures as provided for in the Staff Regulations and the Conditions of Employment and measures of a disciplinary nature provided for in the supervisory mechanism referred to in point (a) of Article 55(5). Coordinating officer Article 44 1 The Agency shall ensure the operational implementation of all the organisational aspects of joint operations, pilot projects or rapid border interventions, including the presence of statutory staff. 2 Without prejudice to Article 60, the executive director shall appoint one or more experts from the statutory staff to be deployed as a coordinating officer for each joint operation or rapid border intervention. The executive director shall notify the host Member State of the appointment. 3 The coordinating officer shall act on behalf of the Agency in all aspects of the deployment of the teams. The role of the coordinating officer shall be to foster cooperation and coordination among host and participating Member States. At least one fundamental rights monitor shall assist and advise the coordinating officer. In particular, the coordinating officer shall: a act as an interface between the Agency, the host Member State and the members of the teams, providing assistance, on behalf of the Agency, on all issues relating to the conditions of the deployment to the teams; b monitor the correct implementation of the operational plan, including, in cooperation with the fundamental rights monitors, as regards the protection of fundamental rights and report to the executive director on this; c act on behalf of the Agency in all aspects of the deployment of the teams and report to the Agency on all those aspects; d report to the executive director where the instructions issued to the teams by the host Member States are not in compliance with the operational plan, in particular as regards fundamental rights and, where appropriate, suggest that the executive director consider taking a decision in accordance with Article 46. 4 In the context of joint operations or rapid border interventions, the executive director may authorise the coordinating officer to assist in resolving any disagreement on the execution of the operational plan and deployment of the teams. Costs Article 45 1 The Agency shall fully cover the following costs incurred by Member States in making available their staff for the purposes of deploying them from the standing corps as members of the teams to the Member States and to third countries for a short term in accordance with Article 57 or to the Member States through the reserve for rapid reaction in accordance with Article 58: a travel costs from the home Member State to the host Member State, from the host Member State to the home Member State, within the host Member State for the purposes of deployment or redeployment within that host Member State or to another host Member State, and for the purposes of deployments to, and redeployments within or to, another third country; b costs related to vaccinations; c costs related to special insurance needs; d costs related to health care, including psychological assistance; e daily subsistence allowances, including accommodation costs. 2 On the basis of a proposal of the executive director, the management board shall adopt detailed rules as regards the reimbursement of the costs incurred by staff deployed for a short term in accordance with Articles 57 and 58, and shall update them as necessary. To ensure compliance with the applicable legal framework, the executive director shall make such proposal after receiving the positive opinion of the Commission. The detailed rules shall be based to the extent possible on simplified cost options in accordance with points (c), (d) and (e) of Article 125(1) of Regulation (EU, Euratom) 2018/1046. Where relevant, the management board shall ensure consistency with the rules applicable to mission expenses of statutory staff. Decisions to suspend, terminate or not launch activities Article 46 1 The executive director shall terminate any activity of the Agency if the conditions to conduct those activities are no longer fulfilled. The executive director shall inform the Member State concerned prior to such termination. 2 The Member States participating in an operational activity by the Agency may request that the executive director terminate that operational activity. The executive director shall inform the management board of such request. 3 The executive director may, after informing the Member State concerned, withdraw the financing of an activity or suspend or terminate it if the operational plan is not respected by the host Member State. 4 The executive director shall, after consulting the fundamental rights officer and informing the Member State concerned, withdraw the financing for any activity by the Agency, or suspend or terminate any activity by the Agency, in whole or in part, if he or she considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist. 5 The executive director shall, after consulting the fundamental rights officer, decide not to launch any activity by the Agency where he or she considers that there would already be serious reasons at the beginning of the activity to suspend or terminate it because it could lead to violations of fundamental rights or international protection obligations of a serious nature. The executive director shall inform the Member State concerned of that decision. 6 The decisions referred to in paragraphs 4 and 5 shall be based on duly justified grounds. When taking such decisions, the executive director shall take into account relevant information such as the number and substance of registered complaints that have not been resolved by a national competent authority, reports of serious incidents, reports from coordinating officers, relevant international organisations and Union institutions, bodies, offices and agencies in the areas covered by this Regulation. The executive director shall inform the management board of such decisions and provide it with justifications therefor. 7 If the executive director decides to suspend or terminate deployment by the Agency of a migration management support team, he or she shall inform the other relevant bodies, offices and agencies active in the hotspot area of that decision. Evaluation of activities Article 47 The executive director shall evaluate the results of all the Agency's operational activities. He or she shall transmit detailed evaluation reports to the management board within 60 days following the end of those activities, together with the observations of the fundamental rights officer. The executive director shall make a comprehensive analysis of those results with a view to enhancing the quality, coherence and effectiveness of future activities, and shall include that analysis in the Agency's annual activity report. The executive director shall ensure that the Agency takes the analysis of those results into account in future operational activities.