Regulation (EU) 2019/1896 of the European Parliament and of the CouncilShow full title

CHAPTER IV U.K. GENERAL PROVISIONS

SECTION 1 U.K. General rules

Article 80 U.K. Protection of fundamental rights and a fundamental rights strategy

1. The European Border and Coast Guard shall guarantee the protection of fundamental rights in the performance of its tasks under this Regulation in accordance with relevant Union law, in particular the Charter, and relevant international law, including the 1951 Convention relating to the Status of Refugees, the 1967 Protocol thereto, the Convention on the Rights of the Child and obligations related to access to international protection, in particular the principle of non-refoulement.

For that purpose, the Agency, with the contribution of and subject to the endorsement by the fundamental rights officer, shall draw up, implement and further develop a fundamental rights strategy and action plan, including an effective mechanism for monitoring respect for fundamental rights in all the activities of the Agency.

2. In the performance of its tasks, the European Border and Coast Guard shall ensure that no person, in contravention of the principle of non-refoulement, be forced to disembark in, forced to enter, or conducted to a country, or be otherwise handed over or returned to the authorities of a country where there is, inter alia, a serious risk that he or she would be subjected to the death penalty, torture, persecution, or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a risk of expulsion, removal, extradition or return to another country in contravention of the principle of non-refoulement.

3. In the performance of its tasks, the European Border and Coast Guard shall take into account the special needs of children, unaccompanied minors, persons with disabilities, victims of trafficking in human beings, persons in need of medical assistance, persons in need of international protection, persons in distress at sea and other persons in a particularly vulnerable situation, and shall address those needs within its mandate. The European Border and Coast Guard shall in all its activities pay particular attention to children's rights and ensure that the best interests of the child are respected.

4. In the performance of its tasks, in its relations with Member States and in its cooperation with third countries, the Agency shall take into account the reports of the consultative forum referred to in Article 108 and the reports of the fundamental rights officer.

Article 81 U.K. Code of conduct

1. The Agency shall, in cooperation with the consultative forum, draw up and further develop a code of conduct which shall apply to all border control operations coordinated by the Agency and all persons participating in the activities of the Agency. The code of conduct shall lay down procedures intended to guarantee the principles of the rule of law and respect for fundamental rights with particular focus on vulnerable persons, including children, unaccompanied minors and other persons in a vulnerable situation, as well as on persons seeking international protection.

2. The Agency shall, in cooperation with the consultative forum, draw up and further develop a code of conduct for return operations and return interventions, which shall apply during all return operations and return interventions coordinated or organised by the Agency. That code of conduct shall describe common standardised procedures to simplify the organisation of return operations and return interventions, and shall assure return in a humane manner and with full respect for fundamental rights, in particular the principles of human dignity, the prohibition of torture and of inhuman or degrading treatment or punishment, the right to liberty and security and the right to the protection of personal data and non-discrimination.

3. The code of conduct for return shall in particular pay attention to the obligation of Member States to provide for an effective forced-return monitoring system as set out in Article 8(6) of Directive 2008/115/EC and to the fundamental rights strategy.

Article 82 U.K. Tasks and powers of the members of the teams

1. Members of the teams shall have the capacity to perform tasks and exercise powers for border control and return as well as those which are necessary for the realisation of the objectives of Regulations (EU) No 656/2014 and (EU) 2016/399 and Directive 2008/115/EC.

2. The performance of tasks and the exercise of powers by members of the teams, in particular those requiring executive powers, shall be subject to the authorisation of the host Member State on its territory as well as to applicable Union, national or international law, in particular Regulation (EU) No 656/2014, as described in the operational plans referred to in Article 38.

3. While performing their tasks and exercising their powers, members of the teams shall fully ensure respect for fundamental rights and shall comply with Union and international law and the national law of the host Member State.

4. Without prejudice to Article 95(1) as regards statutory staff, members of the teams shall only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards or staff involved in return-related tasks of the host Member State. The host Member State may authorise members of the teams to act on its behalf.

5. The host Member State may report incidents related to non-compliance with the operational plan by members of the teams, including in relation to fundamental rights, to the Agency via the coordinating officer for possible follow-up, which may include disciplinary measures.

6. Statutory staff who are members of the teams shall wear the uniform of the standing corps while performing their tasks and exercising their powers. Members of the teams who are seconded from Member States for a long term or who are deployed for a short term shall wear their own uniform while performing their tasks and exercising their powers.

By way of derogation from the first subparagraph of this paragraph, the decision of the management board referred to in point (a) of Article 54(4) shall indicate the profiles to which the obligation to wear a uniform does not apply due to the specific nature of the operational activity.

All members of the teams shall wear visible personal identification and a blue armband with the insignias of the Union and of the Agency on their uniforms, identifying them as participating in a joint operation, migration management support team deployment, pilot project, rapid border intervention, return operation or return intervention. For the purposes of identification vis-à-vis the national authorities of the host Member State, members of the teams shall at all times carry an accreditation document, which they shall present upon request.

The design and specifications for the uniforms of the statutory staff shall be established by a decision of the management board, on the basis of a proposal from the executive director made after receiving the opinion of the Commission.

7. For staff who are seconded to the Agency or deployed from a Member State for a short term, the ability to carry and use service weapons, ammunition and equipment shall be subject to the home Member State's national law.

The ability to carry and use service weapons, ammunition and equipment by the statutory staff who are deployed as members of the teams shall be subject to the framework and detailed rules laid down in this Article and Annex V.

For the purpose of implementing this paragraph, the executive director may authorise statutory staff to carry and use weapons in accordance with the rules adopted by the management board, in line with point (b) of Article 55(5).

8. Members of the teams, including statutory staff, shall be authorised for the relevant profiles by the host Member State to perform tasks during a deployment that require the use of force, including the carrying and use of service weapons, ammunition and equipment, and shall be subject to the consent of either the home Member State or, for statutory staff, the Agency. The use of force, including the carrying and use of service weapons, ammunition and equipment, shall be exercised in accordance with the national law of the host Member State and in the presence of border guards of the host Member State. The host Member State may, with the consent of the home Member State or the Agency, where appropriate, authorise members of the teams to use force on its territory in the absence of border guards of the host Member State.

The host Member State may prohibit the carrying of certain service weapons, ammunition and equipment, provided that its own law applies the same prohibition to its own border guards or staff when involved in return-related tasks. The host Member State, in advance of the deployment of the members of the teams, shall inform the Agency of the permissible service weapons, ammunition and equipment and of the conditions for their use. The Agency shall make this information available to Member States.

9. Service weapons, ammunition and equipment may be used in legitimate self-defence and in legitimate defence of members of the teams or of other persons in accordance with the national law of the host Member State in line with relevant principles of international human rights law and the Charter.

10. For the purpose of this Regulation, the host Member State shall authorise members of the teams to consult Union databases, the consultation of which is necessary for fulfilling operational aims specified in the operational plan on border checks, border surveillance and return, through their national interfaces or another form of access provided in the Union legal acts establishing such databases, as applicable. The host Member State may also authorise members of the teams to consult its national databases where necessary for the same purpose. Member States shall ensure that they provide such database access in an efficient and effective manner. Members of the teams shall consult only those data which are strictly necessary for performing their tasks and exercising their powers. The host Member State shall, in advance of the deployment of the members of the teams, inform the Agency of the national and Union databases which may be consulted. The Agency shall make this information available to all Member States participating in the deployment.

That consultation shall be carried out in accordance with Union data protection law and the national data protection law of the host Member State.

11. Decisions to refuse entry in accordance with Article 14 of Regulation (EU) 2016/399 and decisions refusing visas at the border in accordance with Article 35 of Regulation (EC) No 810/2009 shall be taken only by border guards of the host Member State or by members of the teams if they are authorised by the host Member State to act on its behalf.

Article 83 U.K. Accreditation document

1. The Agency shall, in cooperation with the host Member State, issue a document in the official language of the host Member State and another official language of the institutions of the Union to the members of the teams for the purpose of identifying them and as proof of the holder's rights to perform tasks and exercise powers as referred to in Article 82. That document shall include the following features of each member of the teams:

(a) name and nationality;

(b) rank or job title;

(c) a recent digitised photograph; and

(d) tasks authorised to be performed during the deployment.

2. The document shall be returned to the Agency at the end of each joint operation, migration management support team deployment, pilot project, rapid border intervention, return operation or return intervention.

Article 84 U.K. Civil liability of the members of the team

1. Without prejudice to Article 95, where members of the teams are operating in a host Member State, that Member State shall be liable in accordance with its national law for any damage caused by them during their operations.

2. Where such damage is caused by the gross negligence or wilful misconduct of the members of the teams seconded or deployed by the Member States, the host Member State may request the home Member State to reimburse it for any sums that the host Member State has paid to the injured parties or persons entitled to receive such sums on behalf of the injured parties.

Where such damage is caused by gross negligence or wilful misconduct by the statutory staff, the host Member State may request the Agency to reimburse it for any sums that the host Member State has paid to the injured parties or persons entitled to receive such sums on behalf of the injured parties. This shall be without prejudice to any action before the Court of Justice of the European Union (the ‘Court of Justice’) against the Agency in accordance with Article 98.

3. Without prejudice to the exercise of its rights vis-à-vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or wilful misconduct.

4. Any dispute between Member States, or between a Member State and the Agency, relating to the application of paragraphs 2 and 3 of this Article which cannot be resolved by negotiations between them shall be submitted by them to the Court of Justice.

5. Without prejudice to the exercise of its rights vis-à-vis third parties, the Agency shall bear the costs of damage to its equipment during deployment, except in cases of gross negligence or wilful misconduct.

Article 85 U.K. Criminal liability of the members of the teams

Without prejudice to Article 95, during a joint operation, pilot project, migration management support team deployment, rapid border intervention, return operation or return intervention, members of the teams in the territory of the host Member State, including statutory staff, shall be treated in the same way as officials of the host Member State with regard to any criminal offences that might be committed against them or by them.

SECTION 2 U.K. Processing of personal data by the European Border and Coast Guard

Article 86 U.K. General rules on processing of personal data by the Agency

1. The Agency shall apply Regulation (EU) 2018/1725 when processing personal data.

2. The management board shall adopt internal rules on the application of Regulation (EU) 2018/1725 by the Agency, including rules concerning the data protection officer of the Agency.

The Agency may, in accordance with Article 25 of Regulation (EU) 2018/1725, adopt internal rules restricting the application of Articles 14 to 22, 35 and 36 of that Regulation. In particular, the Agency may, for the performance of its tasks in the area of return, provide for internal rules restricting the application of those provisions on a case-by-case basis as long as the application of those provisions would risk jeopardising return procedures. Such restrictions shall respect the essence of the fundamental rights and freedoms, shall be necessary and proportionate to the objectives pursued and shall contain specific provisions, where relevant, as referred to in Article 25(2) of Regulation (EU) 2018/1725.

3. The Agency may transfer the personal data referred to in Articles 49, 88 and 89 to a third country or to an international organisation in accordance with Chapter V of Regulation (EU) 2018/1725 insofar as such transfer is necessary for the performance of the Agency's tasks. The Agency shall ensure that personal data that are transferred to a third country or to an international organisation are only processed for the purpose for which they were provided. The Agency shall indicate, at the moment of transferring personal data to a third country or to an international organisation, any restrictions on access to or use of those data, 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, the Agency shall inform the third country or the international organisation accordingly. The Agency shall ensure that the third country or international organisation concerned complies with such restrictions.

4. Transfers of personal data to third countries shall not prejudice the rights of applicants for international protection and of beneficiaries of international protection, in particular as regards non-refoulement and the prohibition against disclosing or obtaining information set out in Article 30 of Directive 2013/32/EU of the European Parliament and of the Council(1).

5. Member States and the Agency, as appropriate, shall ensure that information that is transferred or disclosed to third countries pursuant to this Regulation is not transmitted onward to other third countries or third parties. Provisions to that effect shall be included in any agreement or arrangement concluded with a third country providing for the exchange of information.

Article 87 U.K. Purposes of processing of personal data

1. The Agency may process personal data only for the following purposes:

(a) performing its tasks of organising and coordinating joint operations, pilot projects, rapid border interventions and in the framework of the migration management support teams as referred to in Articles 37 to 40;

(b) performing its tasks of supporting Member States and third countries in pre-return and return activities, operating return management systems, as well as coordinating or organising return operations and providing technical and operational assistance to Member States and third countries in accordance with Article 48;

(c) facilitating the exchange of information with Member States, the Commission, the EEAS and the following Union bodies, offices and agencies and international organisations: EASO, the European Union Satellite Centre, EFCA, EMSA, EASA and the Network Manager of the EATMN, in accordance with Article 88;

(d) facilitating the exchange of information with the law enforcement authorities of the Member States, Europol or Eurojust in accordance with Article 90;

(e) risk analysis by the Agency in accordance with Article 29;

(f) performing its tasks in the framework of EUROSUR in accordance with Article 89;

(g) operating the FADO system in accordance with Article 79;

(h) administrative tasks.

2. Member States and their law enforcement authorities, the Commission, the EEAS, and those Union bodies, offices and agencies and international organisations referred to in points (c) and (d) of paragraph 1, that provide personal data to the Agency shall determine the purpose or the purposes for which those data are to be processed as referred to in paragraph 1. The Agency may decide to process such personal data for a different purpose which also falls under paragraph 1 only on a case-by-case basis after having determined that such processing is compatible with the initial purpose for which the data were collected and if authorised by the provider of the personal data. The Agency shall keep written records of case-by-case compatibility assessments.

3. The Agency, the Member States and their law enforcement authorities, the Commission, the EEAS, and those Union bodies, offices and agencies and international organisations referred to in points (c) and (d) of paragraph 1, may indicate, at the moment of transmitting personal data, any restrictions on access to those data or use of such data, in general or specific terms, including as regards the transfer, erasure or destruction of such data. Where the need for such restrictions becomes apparent after the transfer of personal data, they shall inform the recipients accordingly. The recipients shall comply with such restrictions.

Article 88 U.K. Processing of personal data collected during joint operations, return operations, return interventions, pilot projects, rapid border interventions, and migration management support team deployments

1. Before each joint operation, return operation, return intervention, pilot project, rapid border intervention or migration management support team deployment, the Agency and the host Member State shall determine in a transparent manner the responsibilities for compliance with the data protection obligations. When the purpose and the means of processing are jointly determined by the Agency and the host Member State, they shall be joint controllers by means of concluding an arrangement between them.

For the purposes referred to in points (a), (b), (c), (e) and (f) of Article 87(1), the Agency shall only process the following categories of personal data collected by the Member States, by members of the teams, by its staff or by EASO that have been transmitted to it in the context of joint operations, return operations, return interventions, pilot projects, rapid border interventions, and migration management support team deployments:

(a) the personal data of persons who cross the external borders without authorisation;

(b) personal data that are necessary to confirm the identity and nationality of third-country nationals within the framework of the return activities, including passenger lists;

(c) licence plate numbers, vehicle identification numbers, telephone numbers or ship and aircraft identification numbers which are linked to the persons referred to in point (a), and which are necessary for analysing routes and methods used for illegal immigration.

2. The personal data referred to in paragraph 1 may be processed by the Agency in the following cases:

(a) where the transmission of those data to the authorities of the relevant Member States which are responsible for border control, migration, asylum or return, or to relevant Union bodies, offices and agencies, is necessary for those authorities or Union bodies, offices and agencies to fulfil their tasks in accordance with Union and national law;

(b) where transmission of those data to the authorities of relevant Member States, relevant Union bodies, offices and agencies, third countries of return or international organisations is necessary for the purpose of identifying third-country nationals, acquiring travel documents or enabling or supporting return;

(c) where necessary for the preparation of risk analyses.

Article 89 U.K. Processing of personal data in the framework of EUROSUR

1. Where the national situational picture requires the processing of personal data, those data shall be processed in accordance with Regulation (EU) 2016/679 and, where applicable, Directive (EU) 2016/680. Each Member State shall designate the authority which is to be considered as controller within the meaning of point 7 of Article 4 of Regulation (EU) 2016/679 or point (8) of Article 3 of Directive (EU) 2016/680, as applicable, and which shall have central responsibility for the processing of personal data by that Member State. Each Member State shall notify the details of that authority to the Commission.

2. Ship and aircraft identification numbers shall be the only personal data that are permitted to be accessed in the European situational and specific situational pictures and the EUROSUR fusion services.

3. Where the processing of information in EUROSUR exceptionally requires the processing of personal data other than ship and aircraft identification numbers, any such processing shall be strictly limited to what is necessary for the purposes of EUROSUR in accordance with Article 18.

4. Any exchange of personal data with third countries in the framework of EUROSUR shall be strictly limited to what is absolutely necessary for the purposes of this Regulation. It shall be carried out in accordance with Chapter V of Regulation (EU) 2018/1725 by the Agency, and in accordance with Chapter V of Regulation (EU) 2016/679, with Chapter V of Directive (EU) 2016/680, as applicable, and with the relevant national provisions on data protection transposing that Directive, by the Member States.

5. Any exchange of information under Articles 72(2), 73(3) and 74(3) which provides a third country with data that could be used to identify persons or groups of persons whose request for access to international protection is under examination or who are under a serious risk of being subjected to torture, inhuman and degrading treatment or punishment, or any other violation of fundamental rights, shall be prohibited.

6. Member States and the Agency shall keep records of processing activities in accordance with, Article 30 of Regulation (EU) 2016/679, Article 24 of Directive (EU) 2016/680, and Article 31 of Regulation (EU) 2018/1725, as applicable.

Article 90 U.K. Processing of operational personal data

1. Where the Agency, in the performance of its tasks under point (q) of Article 10(1) of this Regulation, processes personal data which it has collected while monitoring migratory flows, carrying out risk analyses or in the course of operations for the purpose of identifying suspects of cross-border crime, it shall process such personal data in accordance with Chapter IX of Regulation (EU) 2018/1725. Personal data processed for that purpose, including licence plate numbers, vehicle identification numbers, telephone numbers and ship or aircraft identification numbers which are linked to such persons, shall relate to natural persons whom the competent authorities of the Member States, Europol, Eurojust, or the Agency have reasonable grounds to suspect are involved in cross-border crime. Such personal data may include personal data of victims or witnesses where those personal data supplement the personal data of suspects processed by the Agency in accordance with this Article.

2. The Agency shall only exchange personal data as referred to in paragraph 1 of this Article with:

(a) Europol or Eurojust where they are strictly necessary for the performance of their respective mandates and in accordance with Article 68;

(b) the competent law enforcement authorities of the Member States where they are strictly necessary for those authorities for the purposes of preventing, detecting, investigating or prosecuting serious cross-border crime.

Article 91 U.K. Data retention

1. The Agency shall delete personal data as soon as they have been transmitted to the competent authorities of Member States, other Union bodies, offices and agencies, in particular EASO, or transferred to third countries or international organisations or used for the preparation of risk analyses. The retention period shall, in any event, not exceed 90 days after the date of the collection of those data. Data shall be anonymised in the results of risk analyses.

2. Personal data processed for the purpose of performing return-related tasks shall be deleted as soon as the purpose for which they have been collected has been achieved, and shall be deleted no later than 30 days after the end of those tasks.

3. Operational personal data processed for the purposes of Article 90 shall be deleted as soon as the purpose for which they have been collected has been achieved by the Agency. The Agency shall continuously review the necessity of storing such data, in particular the personal data of victims and witnesses. In any case, the Agency shall review the necessity of storing such data no later than three months after the start of initial processing of such data, and every six months thereafter. The Agency shall decide on the continued storage of personal data, in particular the personal data of victims and witnesses, until the following review, only if such storage is still necessary for the performance of the Agency's tasks under Article 90.

4. This Article does not apply to personal data collected in the context of the FADO system.

Article 92 U.K. Security rules on the protection of classified information and sensitive non-classified information

1. The Agency shall adopt its own security rules that shall be based on the principles and rules laid down in the Commission's security rules for protecting European Union classified information (EUCI) and sensitive non-classified information including, inter alia, provisions for the exchange of such information with third countries, and processing and storage of such information as set out in Commission Decisions (EU, Euratom) 2015/443(2) and (EU, Euratom) 2015/444(3). Any administrative arrangement on the exchange of classified information with the relevant authorities of a third country or, in the absence of such arrangement, any exceptional ad hoc release of EUCI to those authorities, shall be subject to the Commission's prior approval.

2. The management board shall adopt the Agency's security rules following approval by the Commission. When assessing the proposed security rules, the Commission shall ensure that they are compatible with Decisions (EU, Euratom) 2015/443 and (EU, Euratom) 2015/444.

3. Classification shall not preclude information being made available to the European Parliament. The transmission and handling of information and documents transmitted to the European Parliament in accordance with this Regulation shall comply with the rules concerning the forwarding and handling of classified information which are applicable between the European Parliament and the Commission.

SECTION 3 U.K. General framework and organisation of the Agency

Article 93 U.K. Legal status and location

1. The Agency shall be a body of the Union. It shall have legal personality.

2. In each of the Member States, the Agency shall enjoy the most extensive legal capacity accorded to legal persons under their laws. It may, in particular, acquire or dispose of movable and immovable property and may be party to legal proceedings.

3. The Agency shall be independent in implementing its technical and operational mandate.

4. The Agency shall be represented by its executive director.

5. The seat of the Agency shall be Warsaw, Poland.

Article 94 U.K. Headquarters agreement

1. The necessary arrangements concerning the accommodation to be provided for the Agency in the Member State in which the Agency has its seat and the facilities to be made available by that Member State, as well as the specific rules applicable to the executive director, the deputy executive directors, the members of the management board, Agency staff and members of their families in that Member State shall be laid down in a headquarters agreement between the Agency and the Member State in which the Agency has its seat.

2. The headquarters agreement shall be concluded after obtaining the approval of the management board.

3. The Member State in which the Agency has its seat shall provide the best possible conditions to ensure the proper functioning of the Agency, including multilingual, European-oriented schooling and appropriate transport connections.

Article 95 U.K. Staff

1. The Staff Regulations, the Conditions of Employment and the rules adopted in agreement between the institutions of the Union for giving effect to those Staff Regulations and those Conditions of Employment shall apply to statutory staff.

2. The place of employment shall in principle be the Member State where the Agency's seat is located.

3. Statutory staff who are subject to the Conditions of Employment shall in principle be engaged initially for a fixed period of five years. Their contracts may in principle be renewed only once, for a fixed period of a maximum of five years. Any further renewal shall be for an indefinite period.

4. For the purpose of implementing Articles 31 and 44, only statutory staff who are subject to the Staff Regulations or to Title II of the Conditions of Employment may be appointed as liaison officers or coordinating officers. For the purpose of implementing Article 55, only statutory staff who are subject to the Staff Regulations or of the Conditions of Employment may be deployed as members of the teams.

5. The management board shall adopt implementing rules for giving effect to the Staff Regulations and Conditions of Employment in agreement with the Commission pursuant to Article 110(2) of the Staff Regulations.

6. Subject to prior approval by the Commission, the management board shall adopt rules related to staff from Member States to be seconded to the Agency in accordance with Article 56 and update them as necessary. Those rules shall include, in particular, the financial arrangements related to those secondments, including insurance, and training. Those rules shall take into account the fact that the staff are seconded to be deployed as members of the teams and are to have the tasks and powers provided for in Article 82. Such rules shall include provisions on the conditions of deployment. Where relevant, the management board shall aim to ensure consistency with the rules applicable to reimbursement of the mission expenses of the statutory staff.

Article 96 U.K. Privileges and immunities

Protocol No 7 on the Privileges and Immunities of the European Union annexed to the Treaty on European Union (TEU) and to the TFEU shall apply to the Agency and its statutory staff.

Article 97 U.K. Liability

1. Without prejudice to Articles 84 and 85, the Agency shall be liable for any activities it has undertaken in accordance with this Regulation.

2. The contractual liability of the Agency shall be governed by the law applicable to the contract in question.

3. The Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Agency.

4. In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its staff in the performance of their duties, including those related to the use of executive powers.

5. The Court of Justice shall have jurisdiction in disputes relating to compensation for the damage referred to in paragraph 4.

6. The personal liability of statutory staff towards the Agency shall be governed by the provisions laid down in the Staff Regulations and Conditions of Employment applicable to them.

Article 98 U.K. Actions before the Court of Justice

1. Proceedings may be brought before the Court of Justice for the annulment of acts of the Agency that are intended to produce legal effects vis-à-vis third parties, in accordance with Article 263 TFEU, and for failure to act, in accordance with Article 265 TFEU, for non-contractual liability for damages caused by the Agency and, pursuant to an arbitration clause, contractual liability for damages caused by acts of the Agency, in accordance with Article 340 TFEU.

2. The Agency shall take the necessary measures to comply with judgments of the Court of Justice.

Article 99 U.K. Administrative and management structure of the Agency

The administrative and management structure of the Agency shall include:

(a)

a management board;

(b)

an executive director;

(c)

deputy executive directors; and

(d)

a fundamental rights officer;

A consultative forum shall assist the Agency as an advisory body.

Article 100 U.K. Functions of the management board

1. The management board shall be responsible for taking the strategic decisions of the Agency in accordance with this Regulation.

2. The management board shall:

(a) appoint the executive director on the basis of a proposal from the Commission in accordance with Article 107;

(b) appoint the deputy executive directors on the basis of a proposal from the Commission in accordance with Article 107;

(c) adopt decisions on establishing antenna offices or prolonging the duration of their operation in accordance with Article 60(5) by a majority of two thirds of the members with a right to vote;

(d) adopt decisions on conducting the vulnerability assessment in accordance with Article 32(1) and (10), with the decisions setting out measures adopted under Article 32(10) being passed by a majority of two thirds of the members with a right to vote;

(e) adopt decisions on the lists of mandatory information and data to be exchanged with the Agency by the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks, as well as the national authorities responsible for return, to enable the Agency to perform its tasks, without prejudice to obligations established by this Regulation, in particular by Articles 49 and 86 to 89;

(f) adopt decisions on the establishment of a common integrated risk analysis model in accordance with Article 29(1);

(g) adopt decisions on the nature and terms of the deployment of liaison officers in Member States in accordance with Article 31(2);

(h) adopt a technical and operational strategy for European integrated border management in accordance with Article 8(5);

(i) adopt decisions on the profiles and the numbers of operational staff for the management of borders and migration within the standing corps, in accordance with Article 54(4);

(j) adopt the Agency's annual activity report for the previous year and transmit it, by 1 July of each year at the latest, to the European Parliament, to the Council, to the Commission and to the Court of Auditors;

(k) before 30 November of each year, and after duly taking into account the opinion of the Commission, adopt, by a majority of two thirds of the members with a right to vote, a single programming document containing, inter alia, the Agency's multiannual programming and its work programme for the following year and forward it to the European Parliament, to the Council and to the Commission;

(l) establish procedures for the executive director to take decisions relating to the technical and operational tasks of the Agency;

(m) adopt, by a majority of two thirds of the members with a right to vote, the annual budget of the Agency and exercise other functions in respect of the Agency's budget pursuant to Section 4 of this Chapter;

(n) exercise disciplinary authority over the executive director and, in consultation with the executive director, over the deputy executive directors;

(o) establish its rules of procedure;

(p) establish the organisational structure of the Agency and adopt the Agency's staff policy;

(q) adopt an anti-fraud strategy that is proportionate to the risk of fraud, taking into account the costs and benefits of the measures to be implemented;

(r) adopt internal rules for the prevention and management of conflicts of interest in respect of its members;

(s) exercise, in accordance with paragraph 8, with respect to statutory staff, the powers conferred by the Staff Regulations on the Appointing Authority and by the Conditions of Employment on the Authority Empowered to Conclude a Contract of Employment (the ‘appointing-authority powers’);

(t) adopt implementing rules for giving effect to the Staff Regulations and the Conditions of Employment in accordance with Article 110(2) of the Staff Regulations;

(u) ensure adequate follow-up to findings and recommendations stemming from the internal or external audit reports and evaluations, as well as from investigations of the European Anti-Fraud Office (OLAF);

(v) adopt and regularly update the communication and dissemination plans referred to in the second subparagraph of Article 10(2);

(w) appoint an accounting officer, subject to the Staff Regulations and the Conditions of Employment, who shall be completely independent in the performance of his or her duties;

(x) decide on a common vulnerability assessment methodology, including the objective criteria against which the Agency shall carry out the vulnerability assessment, the frequency of such assessments and how consecutive vulnerability assessments are to be carried out;

(y) decide on enhanced assessment and monitoring of a Member State as referred to in Article 32(2);

(z) appoint the fundamental rights officer and a deputy fundamental rights officer in accordance with Article 109;

(aa) establish special rules in order to guarantee the independence of the fundamental rights officer in the performance of his or her duties;

(ab) approve the working arrangements with third countries;

(ac) subject to the prior approval of the Commission, adopt the security rules of the Agency on protecting EUCI and sensitive non-classified information as referred to in Article 92;

(ad) appoint a security officer, subject to the Staff Regulations and the Conditions of Employment, who shall be responsible for the security within the Agency, including for the protection of classified information and sensitive non-classified information;

(ae) decide on any other matter where provided for in this Regulation.

The annual activity report referred to in point (j) shall be made public.

3. Proposals for decisions of the management board, as referred to in paragraph 2, on specific activities of the Agency to be carried out at, or in the immediate vicinity of, the external borders of any particular Member State or on working arrangements with third countries as referred to in Article 73(4) shall require a vote in favour of their adoption by the member of the management board representing that particular Member State or the Member State neighbouring that third country, respectively.

4. The management board may advise the executive director on any matter related to the development of operational management of the external borders and training, including activities related to research.

5. Should Ireland or the United Kingdom request to participate in specific activities, the management board shall decide thereon.

The management board shall take its decisions on a case-by-case basis. In its decisions, the management board shall consider whether the participation of Ireland or the United Kingdom contributes to the achievement of the activity in question. The decisions shall set out the financial contribution of Ireland or the United Kingdom to the activity for which the request for participation has been made.

6. The management board shall forward annually to the European Parliament and to the Council (‘the budgetary authority’) any information relevant to the outcome of the evaluation procedures conducted by the Agency.

7. The management board may establish an executive board composed of up to four representatives of the management board, including its chairperson, and a representative of the Commission, to assist it and the executive director with regard to the preparation of the decisions, programmes and activities to be adopted by the management board and to take certain provisional, urgent decisions on behalf of the management board when necessary. The executive board shall not take decisions that must be passed by a majority of two thirds of the management board. The management board may delegate certain clearly defined tasks to the executive board, in particular where this improves the efficiency of the Agency. It may not delegate to the executive board tasks related to decisions that must be passed by a majority of two thirds of the management board.

8. The management board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 of the Conditions of Employment, delegating relevant appointing-authority powers to the executive director and setting out the conditions under which this delegation of powers can be suspended. The executive director shall be authorised to sub-delegate those powers.

Where exceptional circumstances so require, the management board may by way of a decision temporarily suspend the delegation of the appointing-authority powers to the executive director and those sub-delegated by the latter. It may then exercise them itself or delegate them to one of its members or to a statutory staff member other than the executive director.

Article 101 U.K. Composition of the management board

1. Without prejudice to paragraph 3, the management board shall be composed of one representative of each Member State and two representatives of the Commission, each with a right to vote. To this effect, each Member State shall appoint a member of the management board as well as an alternate who will represent the member in his or her absence. The Commission shall appoint two members and two alternates. The duration of the terms of office shall be four years. The terms of office shall be extendable.

2. The management board members shall be appointed on the basis of the degree of their relevant high-level experience, their expertise in the field of operational cooperation on border management and return, and their relevant managerial, administrative and budgetary skills. Member States and the Commission shall aim to achieve a gender-balanced representation on the management board.

3. Countries associated with the implementation, application and development of the Schengen acquis shall participate in the Agency. They shall each have one representative and one alternate on the management board. The arrangements developed under the relevant provisions of their association agreements that specify the nature and extent of, and the detailed rules for, the participation by those countries in the work of the Agency, including provisions on financial contributions and staff, shall apply.

Article 102 U.K. Multiannual programming and annual work programmes

1. The management board shall, by 30 November of each year, adopt a single programming document containing, inter alia, the Agency's multiannual programming and annual programming for the following year, on the basis of a draft put forward by the executive director and endorsed by the management board. The single programming document shall be adopted taking into account a positive opinion of the Commission and, as regards the multiannual programming, after having consulted the European Parliament and the Council. If the management board decides not to take into account elements of the opinion of the Commission, it shall provide a thorough justification. The obligation to provide a thorough justification shall also apply to the elements raised by the European Parliament and the Council during the consultation. The management board shall forward the document to the European Parliament, to the Council and to the Commission without delay.

2. The document referred to in paragraph 1 shall become definitive after the final adoption of the general budget. It shall be adjusted accordingly where necessary.

3. In line with the multiannual strategic policy cycle for European integrated border management, the multiannual programming shall set out overall strategic programming for the medium and long term, which shall include objectives, expected results, performance indicators and resource planning, including the multiannual budget, staff and the development of the Agency's own capabilities, including indicative multiannual planning of the profiles of staff for the standing corps. The multiannual programming shall set out the strategic areas of intervention and what needs to be done to achieve the objectives. It shall include strategic actions for the implementation of the fundamental rights strategy referred to in Article 80(1) and a strategy for relations with third countries and international organisations as well as the actions linked to that strategy.

4. The multiannual programming shall be implemented by means of annual work programmes and shall, where appropriate, be updated following the outcome of an evaluation conducted pursuant to Article 121. The conclusion of those evaluations shall also be reflected, where appropriate, in the annual work programme for the following year.

5. The annual work programme shall contain a description of the activities to be financed, comprising detailed objectives and expected results, including performance indicators. It shall also contain an indication of the financial and human resources allocated to each activity, in accordance with the principles of activity-based budgeting and management. The annual work programme shall be consistent with the multiannual programming. It shall clearly indicate tasks that have been added, changed or deleted compared with the previous financial year.

6. The annual work programme shall be adopted in accordance with the Union legislative programme in relevant areas of the management of the external borders and return.

7. Where, after adoption of an annual work programme, a new task is assigned to the Agency, the management board shall amend the annual work programme.

8. Any substantial amendment to the annual work programme, especially a modification resulting in a reallocation of the budgetary resources above 2 % of the annual budget, shall be adopted by the same procedure as that applicable to adoption of the initial annual work programme. The management board may delegate to the executive director the power to make non-substantial amendments to the annual work programme.

Article 103 U.K. Chair of the management board

1. The management board shall elect a chairperson and a deputy chairperson from among its members with a right to vote. The chairperson and the deputy chairperson shall be elected by a majority of two thirds of the members of the management board with a right to vote. The deputy chairperson shall ex officio replace the chairperson in the event of his or her being prevented from attending to his or her duties.

2. The terms of office of the chairperson and deputy chairperson shall expire when their respective membership of the management board ceases. Subject to this provision, the terms of office of the chairperson or deputy chairperson shall be four years. Those terms of office shall be extendable once.

Article 104 U.K. Meetings of the management board

1. Meetings of the management board shall be convened by its chairperson.

2. The executive director shall take part in the deliberations without the right to vote.

3. The management board shall hold at least two ordinary meetings a year. In addition, it shall meet at the initiative of the chairperson, at the request of the Commission, or at the request of at least one third of the members of the management board. Where necessary, the management board may hold joint meetings with the management boards of EASO and Europol.

4. Ireland shall be invited to attend the meetings of the management board.

5. The United Kingdom shall be invited to attend meetings of the management board that take place before the day on which the Treaties cease to apply to the United Kingdom pursuant to Article 50(3) TEU.

6. Representatives of EASO and Europol shall be invited to attend the meetings of the management board. A representative of FRA shall be invited to attend meetings of the management board where points relevant to the protection of fundamental rights are on the agenda.

7. The chairperson of the management board may also invite an expert of the European Parliament to attend the meetings of the management board. The management board may also invite representatives of other relevant Union institutions, bodies, offices and agencies. The management board may invite, in accordance with its rules of procedure, any other person whose opinion may be of interest to attend its meetings as an observer.

8. The members of the management board may, subject to the provisions of its rules of procedure, be assisted by advisers or experts.

9. The secretariat for the management board shall be provided by the Agency.

Article 105 U.K. Voting

1. Without prejudice to points (c), (d), (k) and (m) of Article 100(2), Article 103(1), and Article 107(2) and (4), the management board shall take its decisions by an absolute majority of its members with a right to vote.

2. Each member shall have one vote. In the absence of a member, his or her alternate shall be entitled to exercise his or her right to vote. The executive director shall not vote.

3. The rules of procedure shall set out the voting arrangements in greater detail. Those rules shall include the conditions for a member to act on behalf of another member as well as any quorum requirements.

4. Representatives of countries associated with the implementation, application and development of the Schengen acquis shall have limited voting rights corresponding to their respective arrangements. In order to allow the associated countries to exercise their right to vote, the Agency shall detail the agenda identifying the points for which a limited voting right has been granted.

Article 106 U.K. Functions and powers of the executive director

1. The Agency shall be managed by its executive director, who shall be completely independent in the performance of his or her duties. Without prejudice to the respective competencies of the Union institutions and the management board, the executive director shall neither seek nor take instructions from any government or from any other body.

2. The European Parliament or the Council may invite the executive director to report on the carrying out of his or her tasks. This includes reporting on the activities of the Agency, the implementation and monitoring of the fundamental rights strategy, the annual activity report of the Agency for the previous year, the work programme for the following year and the Agency's multiannual programming and any other matter related to the activities of the Agency. The executive director shall also make a statement before the European Parliament, if requested, and shall answer in writing any question put forward by a Member of the European Parliament within 15 calendar days from receipt of such question. The executive director shall report regularly to the appropriate bodies and committees of the European Parliament.

3. Except where specific deadlines are provided for in this Regulation, the executive director shall ensure that reports are transmitted to the European Parliament, to the Council and to the Commission as soon as possible, and in any event within six months of the end of the reporting period, unless the executive director duly justifies a delay in writing.

4. The executive director shall be responsible for the preparation and implementation of the strategic decisions taken by the management board and for the taking of decisions related to the operational activities of the Agency in accordance with this Regulation. The executive director shall have the following functions and powers:

(a) to propose, prepare and implement the strategic decisions and programmes and activities adopted by the management board within the limits set out in this Regulation, its implementing rules and any applicable law;

(b) to take all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the day-to-day administration and functioning of the Agency in accordance with this Regulation;

(c) to prepare each year the draft single programming document and to submit it to the management board for endorsement before that draft is sent to the European Parliament, to the Council and to the Commission by 31 January;

(d) to prepare each year the annual activity report on the Agency's activities and submit it to the management board;

(e) to draw up a draft statement of estimates of the revenues and expenditure of the Agency as part of the single programming document pursuant to Article 115(3), and implement the budget pursuant to Article 116(1);

(f) to delegate his or her powers to other statutory staff members subject to rules to be adopted in accordance with point (o) of Article 100(2);

(g) to adopt a recommendation on measures in accordance with Article 32(7), including decisions proposing that Member States initiate and carry out joint operations, rapid border interventions or other actions referred to in Article 36(2);

(h) to evaluate, approve and coordinate proposals made by Member States for joint operations or rapid border interventions in accordance with Article 37(3);

(i) to evaluate, approve and coordinate requests made by Member States for return operations and return interventions in accordance with Articles 50 and 53;

(j) to ensure the implementation of the operational plans referred to in Article 38, Article 42 and Article 53(3);

(k) to ensure the implementation of the Council decision referred to in Article 42(1);

(l) to withdraw financing of activities in accordance with Article 46;

(m) to assess, prior to any operational activity of the Agency, whether there are violations of fundamental rights or international protection obligations that are of a serious nature or are likely to persist in accordance with Article 46(4) and (5);

(n) to evaluate the results of activities in accordance with Article 47;

(o) to identify the minimum number of items of technical equipment required to meet the Agency's needs, in particular as regards carrying out joint operations, migration management support team deployments, rapid border interventions, return operations and return interventions, in accordance with Article 64(6);

(p) to propose the establishment of antenna offices or the prolongation of the duration of their operation in accordance with Article 60(5);

(q) to appoint the heads of the antenna offices in accordance with Article 60(4);

(r) to prepare an action plan following up on the conclusions of internal or external audit reports and evaluations, as well as on investigations by OLAF, and to report on progress to the Commission twice a year and to the management board on a regular basis;

(s) to protect the financial interests of the Union by applying preventive measures against fraud, corruption and any other illegal activities by means of effective checks and, if irregularities are detected, by recovering amounts that were wrongly paid and, where appropriate, imposing effective, proportionate and dissuasive administrative and financial penalties;

(t) to prepare an anti-fraud strategy for the Agency and present it to the management board for approval.

5. The executive director shall be accountable for his or her activities to the management board.

6. The executive director shall be the legal representative of the Agency.

Article 107 U.K. Appointment of the executive director and the deputy executive directors

1. The Commission shall propose at least three candidates for the post of executive director and for the posts of each of the deputy executive directors on the basis of a list, following the publication of the post in the Official Journal of the European Union and, as appropriate, other press or internet sites.

2. On the basis of a proposal from the Commission, as provided for in paragraph 1, the management board shall appoint the executive director on the grounds of merit and documented high-level administrative and management skills, including relevant senior professional experience in the field of management of the external borders and return. Before appointment, the candidates proposed by the Commission shall be invited to make a statement before the competent committee or committees of the European Parliament and answer questions put by its or their members.

Following such statements, the European Parliament shall adopt an opinion setting out its views and may indicate a preferred candidate.

The management board shall appoint the executive director taking those views into account. The management board shall take its decision by a majority of two thirds of the members with a right to vote.

If the management board takes a decision to appoint a candidate other than the candidate whom the European Parliament indicated as its preferred candidate, the management board shall inform the European Parliament and the Council in writing of the manner in which the opinion of the European Parliament was taken into account.

The power to dismiss the executive director shall lie with the management board, acting on a proposal from the Commission.

3. The executive director shall be assisted by three deputy executive directors. Each deputy executive director shall be assigned a specific area of responsibility. If the executive director is absent or indisposed, one of the deputy executive directors shall take his or her place.

4. On the basis of a proposal from the Commission, as provided for in paragraph 1, the management board shall appoint the deputy executive directors on the grounds of merit and appropriate administrative and management skills, including relevant professional experience in the field of management of the external borders and return. The executive director shall be involved in the selection process. The management board shall take its decision by a majority of two thirds of the members with a right to vote.

The management board shall have the power to dismiss the deputy executive directors in accordance with the procedure set out in the first subparagraph.

5. The term of office of the executive director shall be five years. By the end of that period, the Commission shall undertake an assessment that takes into account an evaluation of the executive director's performance and the Agency's future tasks and challenges.

6. The management board, acting on a proposal from the Commission that takes into account the assessment referred to in paragraph 5, may extend the term of office of the executive director once for another period of up to five years.

7. The term of office of the deputy executive directors shall be five years. The management board, acting on a proposal from the Commission, may extend that term once for another period of up to five years.

8. The executive director and the deputy executive directors shall be engaged as temporary agents of the Agency under point (a) of Article 2 of the Conditions of Employment.

Article 108 U.K. Consultative forum

1. A consultative forum shall be established by the Agency to assist it by providing independent advice in fundamental rights matters. The executive director and the management board, in coordination with the fundamental rights officer, may consult the consultative forum on any matter related to fundamental rights.

2. The Agency shall invite EASO, FRA, the United Nations High Commissioner for Refugees and other relevant organisations to participate in the consultative forum. On the basis of a proposal from the fundamental rights officer that was made after consulting the executive director, the management board shall decide on the composition of the consultative forum and the terms of the transmission of information to the consultative forum. The consultative forum shall, after consulting the management board and the executive director, define its working methods and set up its work programme.

3. The consultative forum shall be consulted on the further development and implementation of the fundamental rights strategy, on the functioning of the complaints mechanism, on codes of conduct and on the common core curricula. The Agency shall inform the consultative forum of the follow-up to its recommendations.

4. The consultative forum shall prepare an annual report of its activities. That report shall be made publicly available.

5. Without prejudice to the tasks of the fundamental rights officer, the consultative forum shall be provided with effective access in a timely and effective manner to all information concerning the respect for fundamental rights, including by carrying out on-the-spot visits to joint operations or rapid border interventions subject to the agreement of the host Member State or the third country, as applicable, to hotspot areas and to return operations and return interventions, including in third countries. Where the host Member State does not agree to an on-the-spot visit by the consultative forum to a joint operation or to a rapid border intervention carried out on its territory, it shall provide the Agency with duly justified reasons in writing.

Article 109 U.K. Fundamental rights officer

1. A fundamental rights officer shall be appointed by the management board on the basis of a list of three candidates, after consultation with the consultative forum. The fundamental rights officer shall have the necessary qualifications, expert knowledge and professional experience in the field of fundamental rights.

2. The fundamental rights officer shall perform the following tasks:

(a) contributing to the Agency's fundamental rights strategy and the corresponding action plan, including by issuing recommendations for improving them;

(b) monitoring the Agency's compliance with fundamental rights, including by conducting investigations into any of its activities;

(c) promoting the Agency's respect of fundamental rights;

(d) advising the Agency where he or she deems it necessary or where requested on any activity of the Agency without delaying those activities;

(e) providing opinions on the operational plans drawn up for the operational activities of the Agency, on pilot projects and on technical assistance projects in third countries;

(f) providing opinions on working arrangements;

(g) carrying out on-the-spot visits to any joint operation, rapid border intervention, pilot project, migration management support team deployment, return operation or return intervention, including in third countries;

(h) providing the secretariat of the consultative forum;

(i) informing the executive director about possible violations of fundamental rights during activities of the Agency;

(j) selecting and managing the fundamental rights monitors;

(k) performing any other tasks, where provided for by this Regulation.

The secretariat referred to in point (h) of the first subparagraph shall receive instructions directly from the consultative forum.

3. For the purposes of point (j) of the first subparagraph of paragraph 2, the fundamental rights officer shall, in particular:

(a) appoint the fundamental rights monitors;

(b) assign fundamental rights monitors to operations and activities as provided for in Article 110(3);

(c) nominate fundamental rights monitors as forced-return monitors for the pool referred to in Article 51;

(d) ensure that fundamental rights monitors are adequately trained;

(e) report to the executive director on possible violations of fundamental rights reported to him or her by the fundamental rights monitors as the fundamental rights officer deems necessary;

The executive director shall reply to the fundamental rights officer as to how concerns regarding possible violations of fundamental rights as referred to in point (e) of the first subparagraph have been addressed.

The fundamental rights officer may entrust any of the tasks provided for in points (a) to (i) and (k) of the first subparagraph of paragraph 2 to one of the fundamental rights monitors.

4. The management board shall lay down special rules applicable to the fundamental rights officer in order to guarantee that the fundamental rights officer and his or her staff are independent in the performance of their duties. The fundamental rights officer shall report directly to the management board and shall cooperate with the consultative forum. The management board shall ensure that action is taken with regard to recommendations of the fundamental rights officer. In addition, the fundamental rights officer shall publish annual reports on his or her activities and on the extent to which the activities of the Agency respect fundamental rights. Those reports shall include information on the complaints mechanism and the implementation of the fundamental rights strategy.

5. The Agency shall ensure that the fundamental rights officer is able to act autonomously and is able to be independent in the conduct of his or her duties. The fundamental rights officer shall have sufficient and adequate human and financial resources at his or her disposal necessary for the fulfilment of his or her tasks.

The fundamental rights officer shall select his or her staff, and that staff shall only report to him or her.

6. The fundamental rights officer shall be assisted by a deputy fundamental rights officer. The deputy fundamental rights officer shall be appointed by the management board from a list of at least three candidates presented by the fundamental rights officer. The deputy fundamental rights officer shall have the necessary qualifications and experience in the field of fundamental rights and shall be independent in the conduct of his or her duties. If the fundamental rights officer is absent or indisposed, the deputy fundamental rights officer shall assume the fundamental rights officer's duties and responsibilities.

7. The fundamental rights officer shall have access to all information concerning respect for fundamental rights in all the activities of the Agency.

Article 110 U.K. Fundamental rights monitors

1. Fundamental rights monitors, employed as statutory staff, shall constantly assess the fundamental rights compliance of operational activities, provide advice and assistance in that regard and contribute to the promotion of fundamental rights as part of European integrated border management.

2. Fundamental rights monitors shall have the following tasks:

(a) monitoring compliance with fundamental rights and providing advice and assistance on fundamental rights in the preparation, conduct and evaluation of the operational activities of the Agency which the fundamental rights officer has assigned to them to monitor;

(b) acting as forced-return monitors;

(c) contributing to the training activities of the Agency on fundamental rights as provided for in Article 62, including by providing training on fundamental rights.

For the purposes of point (a) of the first subparagraph, fundamental rights monitors shall, in particular:

(a) follow the preparation of operational plans and report to the fundamental rights officer to enable him or her to fulfil his or her tasks as provided for in point(e) of Article 109(2);

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

(c) cooperate and liaise with the coordinating officer as provided for in Article 44 and provide advice and assistance to him or her;

(d) inform the coordinating officer and report to the fundamental rights officer on any concerns related to possible violation of fundamental rights within the Agency's operational activities; and

(e) contribute to the evaluation of activities as referred to in Article 47.

3. Without prejudice to paragraph 4, the fundamental rights officer shall assign at least one fundamental rights monitor to each operation. The fundamental rights officer may also decide to assign fundamental rights monitors to monitor any other operational activity he or she considers relevant.

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

4. Fundamental rights monitors may be nominated by the fundamental rights officer as forced-return monitors for the pool referred to in Article 51. Where fundamental rights monitors act as forced-return monitors, Article 50(5) and Article 51 shall apply, mutatis mutandis.

5. The fundamental rights officer shall appoint the fundamental rights monitors and they shall be under his or her hierarchical supervision. Fundamental rights monitors shall be independent in the performance of their duties. When present in an operational area, fundamental rights monitors shall wear insignia that clearly allow for their identification as fundamental rights monitors.

6. The Agency shall ensure that by 5 December 2020 at least 40 fundamental rights monitors are recruited by the Agency. The executive director shall assess on an annual basis whether the number of fundamental rights monitors needs to be increased in consultation with the fundamental rights officer. Following that assessment, the executive director shall, where necessary, propose an increase in the number of fundamental rights monitors to the management board for the following year depending on operational needs.

7. Following their recruitment, fundamental rights monitors shall undergo enhanced fundamental rights training, taking into account previously acquired qualifications and professional experience in the relevant areas. Throughout their employment, the Agency shall ensure that fundamental rights monitors discharge their duties in accordance with the highest standards. Adequate training maps shall be designed for each fundamental rights monitor to ensure their continuous professional development to enable them to fulfil their role as fundamental rights monitors.

Article 111 U.K. Complaints mechanism

1. The Agency shall, in cooperation with the fundamental rights officer, take the necessary measures to set up and further develop an independent and effective complaints mechanism in accordance with this Article to monitor and ensure respect for fundamental rights in all the activities of the Agency.

2. Any person who is directly affected by the actions or failure to act on the part of staff involved in a joint operation, pilot project, rapid border intervention, migration management support team deployment, return operation, return intervention or an operational activity of the Agency in a third country, and who considers himself or herself to have been the subject of a breach of his or her fundamental rights due to those actions or that failure to act, or any party representing such a person, may submit a complaint in writing to the Agency.

3. Only complaints that are substantiated and involve concrete fundamental rights violations shall be admissible.

4. The fundamental rights officer shall be responsible for handling complaints received by the Agency in accordance with the right to good administration. For that purpose, the fundamental rights officer shall review the admissibility of a complaint, register admissible complaints, forward all registered complaints to the executive director and forward complaints concerning members of the teams to the home Member State, including the relevant authority or body competent for fundamental rights in a Member State for further action in accordance with their mandate. The fundamental rights officer shall also register and ensure the follow-up by the Agency or that Member State.

5. In accordance with the right to good administration, if a complaint is admissible, complainants shall be informed that the complaint has been registered, that an assessment has been initiated and that a response may be expected as soon as it becomes available. If a complaint is forwarded to national authorities or bodies, the complainant shall be provided with their contact details. If a complaint is declared inadmissible, the complainant shall be informed of the reasons and, if possible, provided with further options for addressing their concerns.

The Agency shall provide for an appropriate procedure in cases where a complaint is declared inadmissible or unfounded.

Any decision shall be in written form and reasoned. The fundamental rights officer shall reassess the complaint if the complainant submits new evidence in situations where the complaint has been declared inadmissible or unfounded.

6. In the case of a registered complaint concerning a staff member of the Agency, the fundamental rights officer shall recommend appropriate follow-up, including disciplinary measures, to the executive director and, where appropriate, referral for the initiation of civil or criminal justice proceedings in accordance with this Regulation and national law. The executive director shall ensure the appropriate follow-up and shall report back to the fundamental rights officer within a determined timeframe and, if necessary, at regular intervals thereafter, as to the findings, the implementation of disciplinary measures, and follow-up by the Agency in response to a complaint.

If a complaint is related to data protection issues, the executive director shall consult the data protection officer of the Agency before taking a decision on the complaint. The fundamental rights officer and the data protection officer shall establish, in writing, a memorandum of understanding specifying their division of tasks and cooperation as regards complaints received.

7. In the case of a registered complaint concerning a member of the teams from a host Member State or from another participating Member State, including a seconded member of the teams or seconded national expert, the home Member State shall ensure appropriate follow-up, including disciplinary measures, referral for the initiation of civil or criminal justice proceedings as necessary, and other measures in accordance with national law. The relevant Member State shall report back to the fundamental rights officer within a determined time period as to the findings and follow-up to the complaint, and, if necessary, at regular intervals thereafter. The Agency shall follow up on the matter if no report is received from the relevant Member State.

Where the relevant Member State, within the determined time period, does not report back or provides only an inconclusive response, the fundamental rights officer shall inform the executive director and the management board.

8. Where a member of the teams is found to have violated fundamental rights or international protection obligations, the Agency shall request that the Member State remove that member immediately from the activity of the Agency or the standing corps.

9. The fundamental rights officer shall include information on the complaints mechanism in his or her annual report, as referred to in Article 109(4), including specific references to the Agency's and Member States' findings and the follow-up to complaints.

10. The fundamental rights officer shall, in accordance with paragraphs 1 to 9 and after consulting the consultative forum, draw up a standardised complaint form requiring detailed and specific information concerning the alleged breach of fundamental rights. The fundamental rights officer shall also draw up any further detailed rules as necessary. The fundamental rights officer shall submit that form and such further detailed rules to the executive director and to the management board.

The Agency shall ensure that information about the possibility and procedure for making a complaint is readily available, including for vulnerable persons. The standardised complaint form shall be made available on the Agency's website and in hardcopy during all activities of the Agency in languages that third-country nationals understand or are reasonably believed to understand. The standardised complaint form shall be easily accessible, including on mobile devices. The Agency shall ensure that further guidance and assistance on the complaints procedure is provided to complainants. Complaints shall be considered by the fundamental rights officer even when they have not been submitted in the standardised complaint form.

11. Any personal data contained in a complaint shall be handled and processed by the Agency, including the fundamental rights officer, in accordance with Regulation (EU) 2018/1725 and by Member States in accordance with Regulation (EU) 2016/679 and Directive (EU) 2016/680.

Where a complainant submits a complaint, that complainant shall be understood to consent to the processing of his or her personal data by the Agency and the fundamental rights officer within the meaning of point (d) of Article 5(1) of Regulation (EU) 2018/1725.

In order to safeguard the interests of the complainants, complaints shall be dealt with confidentially by the fundamental rights officer in accordance with national and Union law unless the complainant explicitly waives his or her right to confidentiality. When complainants waive their right to confidentiality, it shall be understood that they consent to the fundamental rights officer or the Agency disclosing their identity to the competent authorities or bodies in relation to the matter under complaint, where necessary.

Article 112 U.K. Interparliamentary cooperation

1. In order to address the specific nature of the European Border and Coast Guard, in that it is composed of national authorities and the Agency, and to ensure that the scrutiny functions of the European Parliament over the Agency and of the national parliaments over their respective national authorities are effectively exercised, as provided for in the Treaties and by national law respectively, the European Parliament and the national parliaments may cooperate in the framework of Article 9 of Protocol No 1 on the Role of National Parliaments in the European Union annexed to the TEU and to the TFEU.

2. When invited by the European Parliament and the national parliaments meeting within the context of paragraph 1, the executive director and the chairperson of the management board shall attend such meetings.

3. The Agency shall transmit its annual activity report to the national parliaments.

Article 113 U.K. Language arrangements

1. Regulation No 1(4) shall apply to the Agency.

2. Without prejudice to decisions taken on the basis of Article 342 TFEU, the annual activity report and the work programme shall be produced in all official languages of the Union.

3. The translation services required for the functioning of the Agency shall be provided by the Translation Centre for the Bodies of the European Union.

Article 114 U.K. Transparency and communication

1. The Agency shall be subject to Regulation (EC) No 1049/2001 when handling applications for access to documents held by it.

2. The Agency shall communicate on matters falling within the scope of its tasks on its own initiative. It shall make public relevant information, including the annual activity report, the annual work programme, the code of conduct, strategic risk analyses, and comprehensive information on past and current joint operations, rapid border interventions, pilot projects, technical assistance projects with third countries, migration management support team deployments, return operations or return interventions, including in third countries, and working arrangements, and shall ensure, without prejudice to Article 92, in particular that the public and any interested party are rapidly given objective, detailed, comprehensive, reliable and easily understandable information with regard to its work. It shall do so without revealing operational information which, if made public, would jeopardise attainment of the objectives of operations.

3. The management board shall lay down the practical arrangements for the application of paragraphs 1 and 2.

4. Any natural or legal person shall be entitled to address written correspondence to the Agency in any of the official languages of the Union. He or she shall have the right to receive an answer in the same language.

5. Decisions taken by the Agency pursuant to Article 8 of Regulation (EC) No 1049/2001 may give rise to a complaint being lodged with the European Ombudsman or to an action before the Court of Justice, under the conditions laid down in Articles 228 and 263 TFEU respectively.

SECTION 4 U.K. Financial requirements

Article 115 U.K. Budget

1. The revenue of the Agency shall consist, without prejudice to other types of income, of:

(a) a contribution from the Union entered in the general budget of the European Union (Commission section);

(b) a contribution from the countries associated with the implementation, application and development of the Schengen acquis, as established in the respective arrangements that specify their financial contribution;

(c) Union funding in the form of contribution agreements or ad-hoc grants in accordance with the Agency's financial rules referred to in Article 120 and with the provisions of the relevant instruments supporting the policies of the Union;

(d) fees for services provided;

(e) any voluntary contribution from the Member States.

2. The expenditure of the Agency shall include its administrative, infrastructure, operational and staff-related expenses.

3. The executive director shall draw up a draft statement of estimates of the Agency's revenue and expenditure for the following financial year, including an establishment plan, and shall forward it to the management board.

4. Revenue and expenditure shall be balanced.

5. The management board shall, on the basis of the draft statement of estimates drawn up by the executive director, adopt a provisional draft estimate of the Agency's revenue and expenditure, including the provisional establishment plan. The management board shall forward them to the European Parliament, to the Council and to the Commission by 31 January every year, as part of the draft single programming document.

6. The management board shall send the final draft estimates of the Agency's revenue and expenditure including the draft establishment plan accompanied by the preliminary work programme to the Commission by 31 March every year.

7. The estimate shall be forwarded by the Commission to the budgetary authority together with the draft general budget of the European Union.

8. On the basis of the estimate, the Commission shall enter in the draft general budget of the European Union the estimates it deems necessary for the establishment plan and the amount of the contribution to be charged to the general budget, which it shall place before the budgetary authority in accordance with Articles 313 and 314 TFEU.

9. The budgetary authority shall authorise appropriations for the contribution to the Agency.

10. The budgetary authority shall adopt the establishment plan for the Agency.

11. The management board shall adopt the Agency's budget. It shall become final following final adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly.

12. Any modification to the budget, including the establishment plan, shall follow the same procedure.

13. For any building project likely to have significant implications for the budget of the Agency, the provisions of Commission Delegated Regulation (EU) 2019/715(5) shall apply.

14. To finance the deployment of rapid border interventions and return interventions, the budget of the Agency adopted by the management board shall include a financial operational reserve amounting to at least 2 % of the allocation provided jointly for joint operations at the external borders and operational activities in the area of return. After the end of each month, the executive director may decide to reallocate a sum equivalent to one twelfth of the appropriations of the reserve to other operational activities of the Agency. In such a case, the executive director shall inform the management board.

15. Budgetary commitments for actions extending over more than one financial year may be broken down over several years into annual instalments.

Article 116 U.K. Implementation and control of the budget

1. The executive director shall implement the Agency's budget.

2. By 1 March of a financial year N + 1, the Agency's accounting officer shall communicate the provisional accounts for the financial year N to the Commission's accounting officer and to the Court of Auditors. The Commission's accounting officer shall consolidate the provisional accounts of the institutions and decentralised bodies in accordance with Article 245 of Regulation (EU, Euratom) 2018/1046.

3. The Agency shall send a report on the budgetary and financial management for year N to the European Parliament, to the Council and to the Court of Auditors by 31 March of year N + 1.

4. The Commission's accounting officer shall send the Agency's provisional accounts for year N, consolidated with the Commission's accounts, to the Court of Auditors by 31 March of year N + 1.

5. On receipt of the Court of Auditors' observations on the Agency's provisional accounts for year N, pursuant to Article 246 of Regulation (EU, Euratom) 2018/1046, the executive director shall draw up the Agency's final accounts under his or her own responsibility and forward them to the management board for an opinion.

6. The management board shall deliver an opinion on the Agency's final accounts for year N.

7. By 1 July of year N + 1, the executive director shall send the final accounts, together with the opinion of the management board, to the European Parliament, to the Council, to the Commission and to the Court of Auditors.

8. The final accounts for year N shall be published in the Official Journal of the European Union by 15 November of year N + 1.

9. The executive director shall send the Court of Auditors a reply to its observations by 30 September of year N + 1. He or she shall also send this reply to the management board.

10. The executive director shall submit to the European Parliament, at the latter's request, any information required for the smooth application of the discharge procedure for year N, in accordance with Article 261(3) of Regulation (EU, Euratom) 2018/1046.

11. On a recommendation from the Council acting by qualified majority, the European Parliament shall, before 15 May of the year N + 2, give a discharge to the executive director in respect of the implementation of the budget for the year N.

Article 117 U.K. Combating fraud

1. In order to combat fraud, corruption and other illegal activities, the provisions of Regulation (EU, Euratom) No 883/2013 shall apply without restriction. The Agency shall accede to the Interinstitutional Agreement of 25 May 1999 concerning internal investigations by the European Anti-Fraud Office (OLAF) and shall adopt, without delay, the appropriate provisions applicable to all staff of the Agency using the template set out in the Annex to that Agreement.

2. The Court of Auditors shall have the power of audit, on the basis of documents and of on-the-spot inspections, over all grant beneficiaries, contractors and subcontractors who have received Union funds from the Agency.

3. OLAF may carry out administrative investigations, including on-the-spot checks and inspections, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013 and Council Regulation (Euratom, EC) No 2185/96(6) with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant agreement or grant decision or a contract funded by the Agency.

4. In accordance with Regulation (EU) 2017/1939, the European Public Prosecutor's Office (EPPO) may investigate and prosecute fraud and other illegal activities affecting the financial interests of the Union as provided for in Directive (EU) 2017/1371.

5. Without prejudice to paragraphs 1 to 4, working arrangements with third countries and with international organisations, grant agreements, grant decisions and contracts of the Agency shall contain provisions expressly empowering the Court of Auditors, OLAF and EPPO to conduct such audits and investigations, in accordance with their respective competences.

Article 118 U.K. Prevention of conflicts of interest

The Agency shall adopt internal rules requiring the members of its bodies and its staff to avoid any situation liable to give rise to a conflict of interest during their employment or term of office and to report such situations.

The Agency shall ensure that there is transparency as regards lobbying by means of a transparency register and by disclosing all its meetings with third-party stakeholders. The transparency register shall include all meetings and contacts between third-party stakeholders and the executive director, deputy executive directors and heads of division in matters concerning procurements and tenders for services, equipment or outsourced projects and studies. The Agency shall keep a record of all meetings of its staff with third-party stakeholders in matters concerning procurements and tenders for services, equipment or outsourced projects and studies.

Article 119 U.K. Administrative inquiries

The activities of the Agency shall be subject to the inquiries of the European Ombudsman in accordance with Article 228 TFEU.

Article 120 U.K. Financial provision

The financial rules applicable to the Agency shall be adopted by the management board after consulting the Commission. They shall not depart from Delegated Regulation (EU) No 1271/2013 unless such a departure is specifically required for the Agency's operation and the Commission has given its prior consent. In this framework, the management board shall adopt specific financial rules applicable to the Agency's activities in the area of cooperation with third countries in the field of return.

Article 121 U.K. Evaluation

1. Without prejudice to Article 59, by 5 December 2023, and every four years thereafter, the Commission shall carry out an evaluation of this Regulation. The evaluation shall assess in particular:

(a) the results achieved by the Agency, having regard to its objectives, mandate, resources and tasks;

(b) the impact, effectiveness and efficiency of the Agency's performance and its working practices in relation to its objectives, mandate and tasks;

(c) inter-agency cooperation at the European level, including the implementation of European cooperation on coast guard functions;

(d) the possible need to modify the mandate of the Agency;

(e) the financial implications of any such modification;

(f) the functioning of the standing corps and, as from the second evaluation, its overall number and composition;

(g) the level of training, specialised expertise and professionalism of the standing corps.

The evaluation shall include a specific analysis on the way the Charter and other relevant Union law has been complied with in the application of this Regulation.

2. The evaluation shall also assess the attractiveness of the Agency as an employer for the recruitment of statutory staff, with a view of ensuring quality of the candidates and geographical balance.

3. When carrying out the evaluation, the Commission shall seek input from relevant stakeholders, including the consultative forum and FRA.

4. The Commission shall send the evaluation reports together with its conclusions on the reports to the European Parliament, to the Council and to the management board. The management board may issue recommendations regarding changes to this Regulation to the Commission. The evaluation reports and the conclusions on the reports shall be made public. The Member States and the Agency shall provide the Commission with the information necessary to draft the evaluation reports. Where necessary, the evaluation reports shall be accompanied by legislative proposals.

5. The Agency shall submit a report to the European Parliament and to the Council on the functioning of EUROSUR by 1 December 2021 and every two years thereafter.

Member States shall provide the Agency with the information necessary to draft those reports.

6. As part of the evaluation referred to in paragraph 1, the Commission shall provide an overall evaluation of EUROSUR accompanied, where necessary, by appropriate proposals to improve its functioning.

The Member States and the Agency shall provide the Commission with the information necessary to produce the overall evaluation referred to in the first subparagraph.

When carrying out the overall evaluation referred to in the first subparagraph, the Commission shall seek input from relevant stakeholders, including the consultative forum and FRA.

(1)

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ L 180, 29.6.2013, p. 60).

(2)

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

(3)

Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information (OJ L 72, 17.3.2015, p. 53).

(4)

Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385).

(5)

Commission Delegated Regulation (EU) 2019/715 of 18 December 2018 on the framework financial regulation for the bodies set up under the TFEU and Euratom Treaty and referred to in Article 70 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (OJ L 122, 10.5.2019, p. 1).

(6)

Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).