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PR\602308EN.doc PE 368.064v02-00

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EUROPEAN PARLIAMENT2004 «

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Committee on Civil Liberties, Justice and Home Affairs

PROVISIONAL2005/0047(COD)

14.2.2006

***IDRAFT REPORTon the proposal for a decision of the European Parliament and of the Council establishing the External Borders Fund for the period 2007-2013 as part of the General programme ‘Solidarity and Management of Migration Flows’(COM(2005)0123 – C6-0125/2005 – 2005/0047(COD))

Committee on Civil Liberties, Justice and Home Affairs

Rapporteur: Barbara Kudrycka

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Symbols for procedures

* Consultation proceduremajority of the votes cast

**I Cooperation procedure (first reading)majority of the votes cast

**II Cooperation procedure (second reading)majority of the votes cast, to approve the common positionmajority of Parliament’s component Members, to reject or amend the common position

*** Assent proceduremajority of Parliament’s component Members except in cases covered by Articles 105, 107, 161 and 300 of the EC Treaty and Article 7 of the EU Treaty

***I Codecision procedure (first reading)majority of the votes cast

***II Codecision procedure (second reading)majority of the votes cast, to approve the common positionmajority of Parliament’s component Members, to reject or amend the common position

***III Codecision procedure (third reading)majority of the votes cast, to approve the joint text

(The type of procedure depends on the legal basis proposed by the Commission.)

Amendments to a legislative text

In amendments by Parliament, amended text is highlighted in bold italics. Highlighting in normal italics is an indication for the relevant departments showing parts of the legislative text for which a correction is proposed, to assist preparation of the final text (for instance, obvious errors or omissions in a given language version). These suggested corrections are subject to the agreement of the departments concerned.

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CONTENTS

Page

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION ................................5

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DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a decision of the European Parliament and of the Council establishing the External Borders Fund for the period 2007-2013 as part of the General programme ‘Solidarity and Management of Migration Flows’(COM(2005)0123 – C6-0125/2005 – 2005/0047(COD))

(Codecision procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to the European Parliament and the Council (COM(2005)0123)1,

– having regard to Article 251(2) and Article 62(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0125/2005),

– having regard to Rule 51 of its Rules of Procedure,

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinions of the Committee on Foreign Affairs and the Committee on Budgets(A6-0000/2006),

1. Approves the Commission proposal as amended;

2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3. Instructs its President to forward its position to the Council and Commission.

Text proposed by the Commission Amendments by Parliament

Amendment 1Recital 4 a (new)

(4a) The common corpus of legislation as defined in particular by Regulation (EC) No /2005 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) calls for border checks to help combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States` internal security while at the same time it

1 OJ C ... / Not yet published in OJ.

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provides for border checks to be carried in such a way as to fully respect human dignity;

Justification

The Rapporteur seeks to put this financial instrument into legal policy context in which Community Code represents crucial development.

Amendment 2Recital 4 b (new)

(4b) The ‘common integrated border management system’ means the development and implementation by the competent authorities of a Member State of a coherent approach to the allocation of human resources, equipment and technology at their disposal for the uniform and systematic application of the rules of the European Union in view of providing a high level of external border security through control and surveillance tasks. The approach should be in accordance with the rules of the European Union and based on a systematic gathering of intelligence with respect to situations on the ground before, at and behind the external borders of a Member State, taking into account the common risk analysis, as established by the Agency;

Justification

The concept of integrated border management is not necessary to be placed in the legislative text as it has no relevance in terms of definitions, therefore the Rapporteur decided to move it to the Recital part.

Amendment 3Recital 5

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(5) The External Borders Fund (hereafter referred to as “the Fund”) should express solidarity through financial assistance to those Member States who apply the Schengen provisions on external borders.

(5) The External Borders Fund (hereafter referred to as “the Fund”) should express solidarity and create a level playing field among Member States as concerns the financial burden arising from the introduction of a common integrated border management system for the control and surveillance of external borders.

Justification

This amendment aims at emphasising a link between solidarity and burden sharing to the added value in terms of level playing field among Member States.


(7) Moreover, the Fund should take into account specific situations, such as the transit by land of third country nationals who must necessarily cross the territory of one or several Member States in order to travel between two parts of their own country which are not geographically contiguous, not only in the own interest of the Member State(s) concerned but of all Member States which have abolished checks at their internal borders. In such cases, the actions to be financed should be exhaustively defined and the allocations of resources should be determined on the basis of a factual assessment of the needs in relation to these actions.

(7) Moreover, the Fund should take into account specific situations, such as the transit by land of third country nationals who must necessarily cross the territory of one or several Member States in order to travel between two parts of their own country which are not geographically contiguous, not only in the own interest of the Member State(s) concerned but of all Member States which fully apply Schengen provisions. In such cases, the actions to be financed should be exhaustively defined and the allocations of resources should be determined on the basis of a factual assessment of the needs in relation to these actions.

Justification

This recital relates to the Kaliningrad Facility implemented by Lithuania which has not yet abolished checks at internal borders, therefore the amendment aims at clarifying the current situation.

Amendment 5

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Recital 12

(12) This instrument is designed to form part of a coherent framework entitled the General programme ‘Solidarity and Management in Migration Flows’, which aims at addressing the issue of a fair share of responsibilities between Member States as concerns the financial burden arising from the introduction of an integrated management of the Union’s external borders and from the implementation of common policies on asylum and immigration, as developed in accordance with Title IV of the Treaty establishing the European Community.

(12) This instrument is designed to form an indispensable part of a coherent framework entitled the General programme ‘Solidarity and Management in Migration Flows’, which aims at addressing the issue of a fair share of responsibilities between Member States as concerns the financial burden arising from the introduction of an integrated management of the Union’s external borders and from the implementation of common policies on asylum and immigration, as developed in accordance with Title IV of the Treaty establishing the European Community. Consequently this instrument is adopted at the same time with Decision.../.../... establishing the European Refugee Fund for the period 2008-2013, with Decision .../.../...establishing the External Borders Fund for the period 2007-2013 and with Decision .../.../...establishing the European Fund for the Integration of Third-country nationals for the period 2007-2013.

Justification

All the funds are part of a coherent package and will be adopted together.


(15) On the basis of the strategic guidelines adopted by the Commission, each Member State should prepare a multiannual programming document taking into account its situation and needs and setting out its development strategy, which is negotiated and decided by the Commission, and constitutes the framework for preparing the annual programmes.

(15) On the basis of the strategic guidelines adopted by the European Parliament and the Council, each Member State should prepare a multiannual programming document taking into account its situation and needs and setting out its development strategy, which is negotiated and decided by the Commission, and constitutes the framework for preparing the annual programmes.

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Justification

The guidelines will be adopted in co-decision by the European Parliament and the Council.


(39) The measures necessary for the implementation of this Decision should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.

(39) The measures necessary for the implementation of this Decision should be adopted in an identical procedure for allthe funds financed under the General programme "Solidarity and Management of Migration Flows" and are defined in the text of each Decision.

Justification

See justification to amendment to Article52, paragraph 1 a (new).

Amendment 7Article 2, point (a)

(a) ‘external borders’ means the external borders of the Member States, whether they are temporary or not;

(a) ‘external borders’ means the Member States` land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, whether these borders are temporary or not, provided that they are not internal border;

Justification

This amendment is an attempt to align definition used with definitions introduced by the Community Code.

Amendment 8Article 2, point (d)

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(d) ‘common integrated border management system’ means the development and implementation by the competent authorities of a Member State of a coherent approach to the allocation of human resources, equipment and technology at their disposal for the uniform and systematic application of the rules of the European Union in view of providing a high level of external border security through control and surveillance tasks. The approach shall be in accordance with the rules of the European Union and based on a systematic gathering of intelligence with respect to situations on the ground before, at and behind the external borders of a Member State, taking into account the common risk analysis, as established by the Agency.

(d) border crossing point means any crossing point authorised by the competent authorities for the crossing of external borders as notified in accordance with article 34, second paragraph of Regulation (EC) No /2005 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).

Justification

See justification to Article 2, point a.

Amendment 9Article 3, paragraph 1, point (b)

(b) efficient management of the flows of persons at the external borders by the Member States, in order to ensure, on the one hand, a high level of protection at the external borders for the internal security and, on the other, a smooth crossing of the external borders by bona fide travellers in conformity with the Schengen acquis;

(b) efficient management of the flows of persons at the external borders by the Member States, in order to ensure, on the one hand, a high level of protection at the external borders for the internal security and, on the other, to reduce inconveniences for crossing of the external borders by bona fide travellers in conformity with the Schengen acquis and principles of treatment with respect and dignity;

Justification

The amendment seeks to put emphasis on a need to removing obstacles at the border crossing

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and safeguarding rights and dignity of travellers at the borders.

Amendment 10Article 3, paragraph 1, point (c)

(c) uniform application of the law of the European Union by the Member States and overall efficiency of national border guards in the carrying out of their tasks in accordance with the law of the European Union at the external borders;

(c) uniform application of the law of the European Union by the Member States and overall efficiency of national border guards in the carrying out of their tasks in accordance with the law of the European Union at the external borders, in particular with the Regulation (EC) No /2005 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code);

Justification

See justification to Recital 4 a (new)

Amendment 11Article 3, paragraph 1, point (d)

(d) improvement of the management of activities organised by the consular services of the Member States in third countries and the co-operation between Member States in this regard.

(d) improvement of the management of activities organised by the consular services of the Member States in third countries and the cooperation between Member States thereof in order to increase efficiency in the processing of visa applications and simplify the application procedures by offering applicants a good service and shorter waiting times.

Justification

The Rapporteur is of the opinion that this action deserves separate point and is necessary to balance security and freedom in the common visa policy.

Amendment 12

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Article 4, paragraph 3, point (d a) (new)

(da) Promotion of application of a Practical Handbook for Border Guards;

Justification

The handbook will be very useful tool in promoting best practises and harmonised application of Community Code by Border Guard.

Amendment 13Article 4, paragraph 3, point (e)

(e) Enhancing the detention areas in airports and sea ports and improving the conditions in these areas;

(e) Enhancing and improving of the conditions in detention areas in airports and sea ports;

Justification

Emphasis is being put on the quality of conditions.

Amendment 14Article 4, paragraph 4, point (c a) (new)

(ca) Promotion of a quality management, good services and facilitation in terms of infrastructure in the visa application process;

Justification

The Rapporteur is of the opinion that this action deserves separate point and is necessary to balance security and freedom in the common visa policy.


(d) Promotion of co-operation between Member States in enhancing the capacity

(d) Promotion of co-operation between Member States in enhancing the capacity

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of consular services to investigate visa applications;

of consular services to examine visa applications;

Justification

The wording proposed seems more adequate.


(d) Support projects and studies exploring the possibility of new forms of Community cooperation and Community law in this area;

(d) Support projects and studies exploring the possibility of new forms of Community cooperation and Community law in this area, aiming in particular at development of early warning system on illegal crossings;

Justification

There is urgent need to also have such a tool at the Community level.

Amendment 17Article 8, paragraph 2

2. The Commission and the Member States shall ensure that assistance from the Fund and the Member States is consistent with the activities, policies and priorities of the Community. This consistency shall be indicated in particular in the multiannual programme referred to in Article 20.

2. The Commission and the Member States shall ensure that assistance from the Fundand the Member States is consistent with the activities, policies and priorities of theCommunity, and takes into account common strategies in relation to neighbouring third countries and assistance provided for them by the Community. This consistency shall be indicated in particular in the multiannual programme referred to in Article 20.

Justification

The amendments aims at ensuring complementarity with external dimension of the common

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actions in the field of border control.

Amendment 18Article 15, paragraph 1, point (a)

(a) 40% in proportion to objective factors defining the starting position of Member States as regards border management and the management of visa policy at consular offices over the last year; and

(a) 40% in proportion to objective factors defining the starting position of Member States as regards border management and the management of visa policy at consular offices over the last two years; and

Justification

Considering two years is more appropriate and closer to real situation.

Amendment 19Article 15, paragraph 1, point (b)

(b) 60% in proportion to the total number of persons affected and decisions taken by Member States applying the law of the European Union as regards border management and the management of visa policy at consular offices over the last year.

(b) 60% in proportion to the total number of persons affected and decisions taken by Member States applying the law of the European Union as regards border management and the management of visa policy at consular offices over the last two years.

Justification

Considering two years is more appropriate and closer to real situation.

Amendment 20Article 16, paragraph 4, subparagraph 2

This may be increased to 60% for projects addressing specific priorities identified in the Commission multiannual guidelines as defined in Article 18.

This may be increased to 75% for projects addressing specific priorities identified in the Commission multiannual guidelines as defined in Article 18.

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Justification

These projects are the most important and should be given priority also in term of financing.


2. The annual amount set aside for technical assistance may not exceed 4 % of the total annual amount of co-financing allocated to the Member State, plus EUR 30 000.

2. The annual amount set aside for technical assistance may not exceed 7 % of the total annual amount of co-financing allocated to the Member State, plus EUR 30 000.

Justification

Level of 7% is more likely to meet requirements of heavy burden imposed on beneficiaries while implementing the fund.


4. The Commission shall adopt the strategic guidelines relating to the first multiannual programme (2007-2010) at the latest on 31 March 2006, and those relating to the second multiannual programming period (2011-2013) at the latest on 31 March 2010.

4. The Commission submit the strategic guidelines relating to the first multiannual programme (2007-2010) at the latest on 31 December 2006, and those relating to the second multiannual programming period (2011-2013) at the latest on 31 December2009 to the European Parliament and the Council.

Justification

Parliament and Council need more time to adopt in co-decision the strategic guidelines. See amendment to Article 19, paragraph 4.


5. The strategic guidelines shall be adopted in accordance with the procedure referred

5. The strategic guidelines shall be adopted in accordance with the procedure referred

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to in Article 52(2). to in Article 251 of the Treaty.

Justification

This decision is just the skeleton of the programme. The strategic guidelines are fundamental for the correct implementing of the fund and therefore should be adopted under the co-decision procedure.


1. At the initiative of the Member State in question or the Commission, the multiannual programme shall be re-examined and, if necessary, revised for the rest of the programming period in order to take greater or different account of the Community priorities, particularly in the light of Council conclusions. Multiannual programmes may be re-examined in the light of evaluations and / or following implementation difficulties.

1. At the initiative of the Member State in question or the Commission, the multiannual programme shall be re-examined and, if necessary, revised for the rest of the programming period in order to take greater or different account of the Community priorities, particularly in the light of Council conclusions and the resolutions of the European Parliament. Multiannual programmes may be re-examined in the light of evaluations and / or following implementation difficulties.

Justification

We are in co-decision. Parliament and Council are on the same position.

Amendment 25Article 26, paragraph 3 a (new)

3a. The Commission shall assist the Member States in the training of staff, in particular as regards the correct application of Chapters V - IX of this Decision.

Justification

The implementation of this programme will be heavy and the staff in Member States need training.

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1. Member States shall be responsible for ensuring sound financial management of multiannual and annual programmes and the legality and regularity of underlying transactions.

1. Member States shall be responsible for ensuring sound financial management of multiannual and annual programmes and the legality and regularity of underlying transactions. Each Member State shall give together with the final annual report referred to in Article 51 for each annual work programme a formal ex-post declaration of assurance. The Commission shall suspend payments in the event of non-compliance with this obligation.

Justification

In those cases in which the Member States are responsible for implementing the Union budget they should also assume the political responsibility that the appropriations are spend correctly.


5a. Member States should guarantee that all expenditure are legal, regular and respect the principle of sound financial management.

Justification

This is a basic rule for a correct financial management.


(1 a) The "Committee". It shall be composed of the representatives of the Member States and chaired by the representative of the Commission.

JustificationThe right of the Council, as legislator, to partly delegate its implementing powers to the Commission, has been recognized by the European Court of Justice since 1970 (decision Koster 25/70). The Court of Justice decision also required that such a delegation should

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specify the principles as well as the conditions for its exercise (as setting-up Committees of Member States' representatives to assist the Commission) and eventually the power 'to callback' the delegation.These principles have been inserted in Article 202 TEC. The Council however 'forgot' inimplementing the Article 202 (in the Comitology Decision 1999/468) to recognize the sameright of 'call-back' in acts decided by codecision for the European Parliament.In order to have the benefit of this right, the European Parliament would have to insert it inthe initial decision foreseeing the delegation of implementing powers. This is the purpose ofthe amendments to Article 39. Instead of making reference to the Articles of the Decision1999/468, the amendments reproduce their content when it comes to the role of the Council,and propose similar prerogatives for the European Parliament (including the power to 'callback').


2. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of the Article 8 thereof.

deleted

Justification

See justification to amendment to Article 52, paragraph 1 a (new).


2a. Where this Decision imposes procedural requirements for the adoption of implementing measures, the representative of the Commission shall submit a draft of those measures to the Committee and to the European Parliament. The Committee shall deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency of the matter which shall not be less than one month. The opinion shall be delivered by the majority laid down in Article 205(2) of the Treaty. The votes of the representatives of the Member States within the Committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

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Justification


Amendment 31Article 52, paragraph 2 b (new)

2b. The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the Committee and if no objection has been raised in the meantime by the competent committee of the European Parliament.

Justification


Amendment 32Article 52, paragraph 2 c (new)

2c. Where the measures envisaged are not in accordance with the opinion of the Committee, or if no opinion is delivered, or an objection has been raised by the competent committee of the European Parliament, the Commission shall, without delay, submit to the Council and to the European Parliament a proposal relating to the measures to be taken.

Justification


Amendment 33Article 52, paragraph 2 d (new)

2d. If, within a period which may not exceed three months from the referral, the proposal has not been rejected either by the European Parliament, by an absolute majority of its members, or by the Council, acting by qualified majority, it

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shall be adopted by the Commission. Otherwise the Commission shall submit an amended proposal or present a legislative proposal on the basis of the Treaty.

Justification


Amendment 34Article 52, paragraph 2 e (new)

2e. Without prejudice to any implementing measures already adopted, application of the provisions of this Regulation which provide for the adoption of technical rules and decisions shall cease four years after the entry into force of this Decision.

Justification


Amendment 35Article 52 a (new)

Article 52aPublication of projects

Member States shall publish every year the list of projects financed under this programme with a short description of each project.

Justification

This is important for transparency reasons.

Amendment 36Article 52 b (new)

Article 52b

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Acknowledgement of FundingAny institution, association or activity receiving a grant from this programme has the obligation to acknowledge the support received by the European Union. To this end the Commission shall lay down detailed visibility guidelines.

Justification

Financial support from the EU should always be acknowledged. This is a matter of transparency as well as an important tool to communicate the Union's efforts. The Commission has already elaborated detailed visibility guidelines for external aid (http://europa.eu.int/comm/europeaid/visibility/index_en.htm) that could be used as a general model.

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