BAKGRUNN (fra kommisjonsforslaget, engelsk utgave)

In 2007 the Commission produced a study analysing the international legal framework for surveillance of the external maritime border and the obstacles to its effective implementation. The Commission then commissioned an informal group consisting of experts from the Member States, Frontex, the Office of the UN High Commissioner for Refugees and the International Organisation for Migration to produce guidelines for Frontex's maritime operations. 

The JHA Council in September 2007 expressed its support for the group. It invited "the Commission, Frontex and Member States to complete as a matter of priority the analysis of the law of the sea as relevant for Frontex joint operations, and [requested] the Commission to report back to the Council before the end of the year". 

The Group met on five occasions between July 2007 and April 2008 and produced the "Draft guidelines for Frontex operations at sea". The participants failed to agree on issues such as the implications of human rights and refugees' rights, the role of Frontex and the prior identification of the places of disembarkation for the migrants. 

In the belief that the differences between the Member States would make it impossible to establish guidelines, the Commission prepared a draft decision based on the results of the informal drafting group. The draft was based on Article 12 of the Schengen Borders Code, which allows the Commission to adopt rules on border surveillance in accordance with the comitology procedure (regulatory committee with the European Parliament exercising the right of scrutiny). 

Consultation of the Schengen Borders Code Committee
The draft decision was presented to the Schengen Borders Code Committee for discussion on 23-24 February 2009. Several Member States strongly opposed the draft, largely on the grounds that it went beyond the powers conferred on the Commission by the Schengen Borders Code. Other Member States, however, expressed firm support, particularly as regards the protection of human rights and the rights of refugees. Some Member States had still not completed their internal consultations, but also had reservations about the draft. 

In the light of the conclusions of the European Council of June 2009, which underlined the need for "strengthened border control operations coordinated by Frontex, clear rules of engagement for joint patrolling and the disembarkation of rescued persons", the Commission decided to pursue the comitology procedure. A revised version of the draft decision, taking into account some of the concerns expressed by the Member States, was put to the Committee on 19 October. The main changes were as follows: 

• The guidelines were reproduced in full in an annex that would form part of the operational plan established by the participating Member States and by the Frontex Agency. 

• The principle of non-refoulement was reformulated and would apply to cases where there were substantial grounds for believing that the individuals would be subjected to persecution or other forms of inhuman or degrading treatment. 

• The provision on interceptions and search and rescue in the context of surveillance operations was simplified. 

• The draft gives priority to disembarkation in third countries (subject to compliance with the principle of non-refoulement); failing this, disembarkation should take place in the geographically closest place. 

At the meeting of 19 October the Committee was asked to give a formal opinion on the draft decision. Eight Member States voted in favour of the draft, making a total of 67 votes. Seven Member States voted against, making a total of 116 votes. Four Member States abstained. Five Member States were not represented. The threshold required for issuing a Committee opinion (223 votes) was not reached.