The European Parliament will soon start working on the proposal of the European Commission on a European Border Surveillance System (Eurosur). We have compiled a list of questions that we consider crucial for Eurosur. Please contact us, if you have any idea on how to answer them and how to improve the regulation.
If you do not know what Eurosur is, read our briefing here:
1. Search and rescue
The recent report by the Council of Europe on the death of 63 migrants at sea found that there is a clear "vacuum of responsibilities" for search and rescue in Europe. Yet, despite the rhetoric that saving lives at sea is a core objective of Eurosur, it will not improve the situation. Search and rescue is explicitly excluded from the scope of the draft regulation. As a consequence, member states are not obliged to improve cooperation of their border control authorities with authorities responsible for search and rescue.
The Commission argues that search and rescue is regulated by international law and that the EU has no competence in this area. Yet, in its decision of 26 April 2010 the Council supplemented the Schengen Border Code right by guidelines for search and rescue operation.
- Is the Commission's argument valid from a legal perspective?
- In which way could search and rescue be incorporated into the scope of the Eurosur regulation?
- How should search and rescue be implemented by the regulation?
2. Cooperation with third countries
Cooperation and information exchange with third countries is a core feature of Eurosur. Cooperation will be organised via so-called regional networks between one or several member states with one or several third countries - on the basis of multilateral agreements. The regional networks are envisaged to exchange information with the Eurosur network via the national coordination centres of the member states involved.
Multilateral agreements are beyond the control of the European Parliament. The EP has no say, influence or control on them at all. The agreements of the three existing regional networks that will be connected to Eurosur are not publically available and the EP has no right whatsoever to get access to them. The same holds true for the negotiations for the new Seahorse Mediterraneo network that is currently set up amongItaly,Malta,France,AlgeriaandTunisia. The EP neither has a right to approve or disapprove the negotiation mandate nor to approve or disapprove the final agreement. It also has no influence on the choice of countries that become part of the network and on the criteria for setting up cooperation with third countries such as compliance with rule of law, human rights and asylum rights by these countries.
Moreover, the linkage of the EU network with third country cooperation based on multilateral agreements is likely to contribute to a blurring of responsibilities among member states and the EU/Frontex. This is all the more worrying since experience with the Seahorse network between Western African countries, Spain and Portugal shows that the cooperation with third countries is not only used for the distribution of information about migration flows, but also for intercepting vessels and for pushing them back to the country of departure. As Greens we are firmly against such push-back operations. International principles such as the right to leave a country, the right to claim asylum and the principle of non-refoulement are not guaranteed any more if migrants are directly send back toNorth Africa.
In case regional networks remain part of the Eurosur regulation, our question is:
- How could the transparency of regional networks and their control by the EP be guaranteed? Would it be a viable solution to base them on agreements between the EU and third countries rather than multilateral agreements among individual member states and third countries?
- Who should decide on the criteria for cooperation with third countries?
- How to ensure that cooperation with third countries does not result in breaches of fundamental rights?
3. Enforcing human rights
Art. 2 of the draft regulation refers to the compliance with fundamental rights as a scope of Eurosur. The regulation remains silent, however, on how to enforce compliance.
- Could the Fundamental Rights Agency (FRA) play a role in monitoring and evaluating compliance with fundamental rights? Would this remain within their mandate?
- Should the UNHCR also become involved and in which way exactly? UNHCR is already cooperating with Frontex.
- Could it be an option that the FRA or another agency or organisation does unannounced visits on the boats of European border guards?
- Should the FRA, UNHCR or another organisation also play a role in evaluating the third countries that become part of the regional networks related to Eurosur?
- How could the compliance with fundamental rights be enforced otherwise?
4. Data protection
The issue of data protection is closely linked to cooperation with third countries. The use of personal data should definitely be excluded from both the Eurosur network and the regional networks. In practice, however, it might not always be easy to identify what personal data are. This holds true in particular when it comes to surveillance data such as for instance pictures taken by cameras installed on ships or drones. The draft regulation stipulates that any exchange of information with third countries that could be used by these countries to identify persons who are under serious risk of being subject to torture and that like shall be prohibited.
- How could this provision be enforced?
- How to make sure that state authorities do not use the data for committing violations of human rights?
- Concerning the misuse of data by non-state actors, would it be a solution to insert a paragraph stipulating that in general there should be no exchange of information whatsoever with countries that do not fulfil adequate data protection requirements?
5. Sponsoring of the surveillance industry
With Eurosur, Frontex will become responsible for the surveillance of the so-called pre-frontier areas. This includes in particular theMediterranean Seaas well as ports and coasts of North African countries. Frontex will get access to the European Satellite System and to ship reporting systems. The use of drones and other dual-use surveillance technology is also envisaged. Under the EU security research programme already more than 100 million Euros were spent on the development of surveillance tools for Eurosur. It's mainly the big European surveillance and armament companies that benefit from the programme.
- How to make sure that Eurosur does not serve as a legitimating for sponsoring the European surveillance industry?
- How to control the costs of Eurosur?
Timing: Proceedings on Eurosur in the European Parliament will commence end of April with a first exchange of views of the civic rights committee with the Commission on the draft regulation. The vote on Parliament's position on Eurosur is so far envisaged for September.
The leading committee is the Committee on Civil Liberties, Justice and Home Affairs
(Shadow-)rapporteurs: The members of parliament mainly dealing with Eurosur are Jan Mulder, a Dutch liberal, as rapporteur and as shadow rapporteurs Ska as well as Marco Scurria (Conservatives), Ioan Enciu (Social Democrats), Cornelia Ernst (Left) and Anthea McIntyre (Eurosceptic conservatives).
 Parliamentary Assembly of the Council of Europe: Lives lost in the Mediterranean Sea: who is responsible?, 29.3.2012, http://assembly.coe.int/CommitteeDocs/2012/20120329_mig_RPT.EN.pdf
 COUNCIL DECISION of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (2010/252/EU) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:111:0020:0026:EN:PDF