Hundibilidad

This factsheet provides an overview of measures to enhance external border security250_, including the (proposals on) systematic checks on EU citizens entering EU territory against relevant databases, the European Border and Coast Guard and on a new Entry-Exit System and measures regarding security risk management on goods bound for the EU. Some of these measures have a clear link with the measures described in the previous factsheet on data collection and database access and interoperability, notably the new PNR Directive and other measures to enable the collection of and matching with data for border control purposes.

Legal framework

EU instruments

Persons

In 2002 the Commission presented the Communication entitled ‘Towards integrated management of the external borders of the Member States of the European Union’,251 _that called on Member States to take into consideration at external borders the magnitude of crime, terrorism, crimes against children, arms trafficking, corruption and fraud. The Communication proposed the development of a common policy on management of the external borders of the Member States of the European Union, which should include at least a common corpus of legislation, a common co-ordination and operational co-operation mechanism, common integrated risk analysis, staff trained in the European dimension and inter-operational equipment and burden-sharing between Member States in the run-up to a European Corps of Border Guards. Countering terrorism has always been one of the objectives of EU measures to enhance external border security, though never the sole objective.

The Council Directive on the obligation of carriers to communicate passenger data from 2004252 _{requires air carriers to collect and transmit passenger data (API data: number and} type of travel document used, nationality, name and date of birth of the passenger, border crossing point of entry into the EU, departure and arrival time of the transportation, total number of passengers carried) to the authorities of the Member State of destination responsible for control. Non-compliance may lead to fines being imposed and even, in the case of serious infringement, confiscation of the means of transport or withdrawal of the operating licence. This Directive was adopted following a request by the European Council of 25 and 26 March 2004, which convened following the terrorist attacks in Madrid.

The Schengen Borders Code of 2006253 _{improved the legislative part of the EU integrated} border management policy by setting out the rules on the border control of persons crossing EU external borders and on the temporary reintroduction of border control at

250 _{This analysis refers only to external borders: the Schengen Area for people and the borders of the European} Customs Union for goods. The internal borders are out of scope of this analysis, however the debate on internal border security sometimes is sparked by events like the attacks on the Berlin Christmas Market.

251 _{European Commission, Communication from the Commission to the Council and the European Parliament,} towards integrated management of the external borders of the member states of the European Union (COM(2002) 233 final).

252 _{Council of the European Union, Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to} communicate passenger data (L 261/24).

European Parliament and Council of the European Union, Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (L 105/1).

internal borders. EU Member States assist each other with the effective application of border controls. Operational cooperation was coordinated by Frontex, since 2016 the EBCG, see also Theme A. Where in the Schengen area serious deficiencies are identified in the carrying out of external border controls by an EU Member State, the Commission may issue recommendations. For the Member State concerned, this may include submitting to the EBCG strategic plans based on a risk assessment to deal with the situation or initiating the deployment of European border guard teams or, as a last resort, triggering the closure of a specific border crossing point.

In its Communication on reinforcing the management of the EU’s maritime borders of 2006,254 _{the Commission set out operational measures designed to combat illegal} immigration, protect refugees and set up controls at, and surveillance of, the EU’s external maritime borders. It proposed maximising the capacity of Frontex (EBCG), establishing a Coastal Patrol Network, developing a European surveillance system, setting up expert teams to carry out an initial assessment of each person intercepted and maximising the use of Community financial resources.

The 2007 Regulation on Rapid Border Intervention Teams (RABIT)255 _{set up a system} providing enhanced technical and operational assistance for a limited period, in the form of rapid-reaction intervention teams including guards from other Member States. The teams will intervene at the request of any Member State faced with urgent and exceptional situations resulting from a mass influx of illegal immigrants.

In the 2008 framework of the European strategy for integrated border management,256 _the Commission floated the idea of new tools: measures benefiting bona fide travellers from Non-EU Member States, an EU entry/exit registration system, automated gates for checking travellers based on biometric identifiers, and an electronic system of travel authorisation for Non-EU Member State nationals not requiring visas before travelling to a Member State.

At its meeting of 25-26 March 2010, the European Council endorsed the EU Internal Security Strategy (ISS).257 _{The strategy sets out the challenges, principles and guidelines} for dealing with security threats relating to organised crime, terrorism and natural and man-made disasters. It has five strategic objectives, with specific actions for each objective, for overcoming the most urgent challenges in order to make the EU more secure. One objective was to strengthen security through border management. In relation to the movement of persons, the EU could treat migration management and the fight against crime as twin objectives of the integrated border management strategy. The instruments improving security in relation to the movement of goods are also complementary, and are constantly being developed to tackle the increasingly sophisticated criminal organisations.

254 _{European Commission, Communication from the Commission to the Council, reinforcing the management of the} European Union's southern maritime borders (COM(2006) 733 final).

255 _{European Parliament and Council of the European Union, Regulation (EC) No 863/2007 of the European} Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers (L 199/30).

256 _{European Commission, Communication from the Commission to the European Parliament, the Council, the} European Economic and Social Committee and the Committee of the Regions, Preparing the next steps in border management in the European Union (COM(2008) 69 final)

257 _{Council of the European Union, Draft Internal Security Strategy for the European Union: “Towards a European} Security Model, 5842/2/10 Rev 2 (23 February 2010).

In line with this, the actions proposed consist of:

 exploiting the full potential of Eurosur (see below);

 enhancing the contribution of Frontex at external borders;

 developing common risk management for movement of goods across external borders (see below);

 improving interagency cooperation at national level.

Management of external borders must both enhance security and facilitate travel. With these objectives in mind, in 2011 the Commission presented proposals for an improved Schengen evaluation and monitoring system, and an analysis of the potential establishment of Entry/Exit and Registered Traveller systems as called for by the European Council.258 Furthermore, the Commission proposed EU legislation on the collection of PNR (cf. Theme B) on flights entering or leaving the territory of the EU.259

The Arab spring revolutions in 2011 resulted in a large influx of immigrants from the Southern Mediterranean who entered the EU illegally. These events have demonstrated the limited resources of the EU in immigration matters. Therefore, the Commission presented initiatives260 _{aimed at establishing a comprehensive European migration policy which is} better able to meet the challenges presented by migration. This policy must respect the European tradition of asylum and protection, while preventing illegal border crossings. The Commission in particular announced creating a European system of border guards and the strengthening of the operational capacities of Frontex.

To improve integrated border management and to prevent cross-border crime and illegal immigration, the EU in 2013 created the European border surveillance system (Eurosur).261 Eurosur is a multi-purpose system to prevent illegal immigration and cross-border crime at the external borders. It will also contribute to ensuring the protection and saving the lives of migrants trying to reach European shores. It provides a mechanism allowing border surveillance agencies to rapidly exchange information and work together. By means of national coordination centres, all EU Member States’ national authorities responsible for border surveillance (e.g. border guards, police, coastguard, navy, and etcetera) must coordinate their activities with those of other Member States and Frontex (EBCG). As of December 2013, Eurosur was operational in the 19 EU Member States that have signed the Schengen Agreement and that have southern and eastern external borders. The remaining 11 Schengen countries joined Eurosur on 1 December 2014.

In the interest of the entire Schengen Area EU Member States must invest in the protection of the EU’s external borders. For some countries, notably those situated at the external frontiers of the Union, these investments can be very large. The External Borders Fund (EBF)262 _{provided financial support to assist EU Member States in responding to such}

258 _{European Commission, Communication from the Commission to the European Parliament and the Council, First} Annual Report on the implementation of the EU Internal Security Strategy (COM(2011) 790 final).

259 _Ibid.

260 _{European Commission, Communication from the Commission to the European Parliament, the Council, the} Economic and Social Committee and the Committee of the Regions, Communication on migration (COM(2011) 248 final) – Not published in the Official Journal.

261 European Parliament and Council of the European Union, Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur) (L 295/11).

262 _{European Parliament and Council of the European Union, Regulation (EU) No 515/2014 of the European} Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa and repealing Decision No 574/2007/EC (L 150/143).

situations. Overall, EUR 1 820 million was allocated for these objectives over the period 2007–13, to promote the implementation of the ISS and to ensure that it becomes an operational reality. The Fund has led to significant improvements, such as to the shortening of the duration of passenger checks, modernisation of surveillance systems and development of IT systems for external border controls.

Following the introduction of risk management in the EU legal framework in 2005 and its roll-out between 2009 and 2011, the European Commission evaluated the situation and on 21 August 2014 adopted a Communication on the EU Strategy and Action Plan for customs risk management: Tackling risks, strengthening supply chain security and facilitating trade (COM/2014/527). The Strategy and Action Plan annexed to the Communication proposes a set of step-by-step actions to reach more coherent, effective and cost-efficient EU customs risk management at the external borders.

Following the terrorist attacks in Paris in January 2015, JHA ministers issued a joint statement. This served as an input for the 12 February statement by EU leaders, which called for several internal measures, including:

 adopting an EU PNR framework;

 making full use of the existing Schengen framework, including for systematic checks of EU citizens at external borders.

At their meeting in March 2015, ministers discussed the implementation of the measures agreed in the recent statements. They focused in particular on:

 the reinforced application of the Schengen framework: ministers agreed to implement systematic checks based on risk assessment no later than June 2015;  EU PNR Directive: ministers agreed to actively engage with the European Parliament

in order to make decisive progress in the coming months.

In June 2015, the Commission finalised a first set of common risk indicators, concerning foreign terrorist fighters, to detect terrorist travel. These risk indicators were developed in close cooperation with national experts, the EEAS, EU Agencies and Interpol. Common risk indicators and guidance from the EBCG now support the work of national border authorities when conducting checks on individuals.263

Also in 2015, some terrorists tried to exploit the large irregular flows of persons occurring at the EU external borders. The so-called ‘hotspot approach’ was introduced to identify any individuals posing a threat to EU security and separate them from those who need protection. The hotspot workflow and the relocation process included integrated and systematic security checks, with support provided by the EBCG and Europol in the registration and fingerprinting of arrivals.264

On 15 December 2015, the European Commission adopted an important set of measures to manage the EU’s external borders and protect the Schengen area without internal borders. The objective of these measures is inter alia to improve the internal security in the EU. In September 2016, the Commission proposed a European Border and Coast Guard to ensure

263 _{European Commission, Communication from the Commission to the European Parliament, the European Council} and the Council, Delivering on the European Agenda on Security to fight against terrorism and pave the way towards an effective and genuine Security Union (COM(2016) 230 final).

strong and shared management of the external borders.265 _{The EBCG replaces Frontex that} was in operation since May 2005 (see Theme A). The Commission also proposed to amend the Schengen Border Code in order to introduce, at the external borders of the EU, systematic checks against relevant databases for all people entering or exiting the Schengen area.266 _{This proposal was amended by the European Parliament (see hereafter)} A uniform European travel document for return will facilitate effective return of illegally residing third-country nationals.267

Following the terrorist attacks in Brussels on 22 March 2016, EU ministers responsible for justice and home affairs and representatives of EU institutions met on 24 March 2016. They adopted a joint statement, calling for:

 urgent adoption of the PNR Directive by the European Parliament in April 2016;268  increasing the feeding and use of European and international databases in the fields

of security, travel and migration.

On 6 April 2016, the Commission adopted a revised legislative proposal for Smart Borders.269 _{The revised legislative proposal for Smart Borders includes a Regulation for the} establishment of an Entry/Exit System and a proposed amendment to the Schengen Borders Code to integrate the technical changes needed for the Entry/Exit System. It also announced the assessment of a new EU tool, the EU Travel Information and Authorisation System (ETIAS), where visa-exempt travellers would register relevant information regarding their intended journey. The automatic processing of this information could help border guards in their assessment of third-country visitors arriving for a short stay.

The proposed EU Entry/Exit System will improve the management of the external borders and reduce irregular migration into the EU (by tackling visa overstaying), while also contributing to the fight against terrorism and serious crime and ensuring a high level of internal security. The system will collect data including identity, travel documents and biometrics as well as registering entry and exit records at the point of crossing. It will apply to all non-EU citizens who are admitted for a short stay in the Schengen area (maximum 90 days in any 180-day period). Negotiations with the co-legislators on the two proposals are currently ongoing, and the Commission called for final adoption of the proposals by the end of 2016 with a view to the System becoming operational in early 2020 after three years of development.270

265 _{European Parliament and Council of the European Union, Regulation (EU) 2016/1624 of the European} Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (L 251/1).

266 _{European Commission, Proposal for a Regulation of the European Parliament and of the Council amending} Regulation No 562/2006 (EC) as regards the reinforcement of checks against relevant databases at external borders (COM/2015/0670 final).

267 _{European Commission, Proposal for a Regulation of the European Parliament and of the Council on a European} travel document for the return of illegally staying third-country nationals, (COM/2015/668 final).

268 _{See also Factsheet B.}

269 _{European Commission, Communication from the Commission to the European Parliament and the Council,} Stronger and Smarter Information Systems for Borders and Security (COM(2016) 205 final).

270 _{European Commission, “State of the Union 2016: Commission Targets Stronger External Borders”, Commission} Press Release (14 September 2016).

In the Communication “Enhancing security in a world of mobility” 271_{, the Commission sets} out the key workstreams to further implement the European Agendas on Migration and Security and the Security Union. The Commission points in this Communication to the fact that gaps in border control bring gaps in security:

“The emergence of foreign terrorist fighters as a major security risk has underlined the cross-border threat and the particular importance of comprehensive and effective border checks, including on EU citizens. This adds to broader concerns that counter-terrorism has been hampered by the ability of terrorists to operate across borders, putting the spotlight on gaps in the sharing of key intelligence.

The EU can use the opportunities for a common approach to build a powerful system harnessing its scale to bring citizens more security. If the EU uses its law enforcement and border control tools to the full, exploits the potential of inter-operability between information sources to identify any security concerns from a common pool of information, and uses the stage of entry into the EU as a key point for security checks to take place, the result will negate the ability of terrorist networks to exploit gaps.”272

The Commission’s Communication puts the focus on entry procedures and external border management, by strenghtening the EBCG, stronger controls through the Entry-Exit System, enhancing identity management and strengthening the fight against document fraud273 _and checking of visa-free travellers in advance in and European Travel Information and Authorisation System.

The idea of establishing a European System for Travel Authorisation for visa-exempted third-country nationals, with similar objectives to the well-known US ‘ESTA’ system, was discarded by the Commission in 2011 as the potential contribution to enhancing the security of the Member States would neither justify the collection of personal data at such a scale nor the financial cost and the impact on international relations. In 2016, the Commission launched a feasibility study on a European Travel Information and Authorisation System (ETIAS) that must provide an additional layer of control over visa- exempt travellers. ETIAS would – like the US ESTA and the previous idea of an EU ESTA - determine the eligibility of all visa-exempt third-country nationals to travel to the Schengen