The Council decision on the surveillance of sea external borders has been published in the EU Official Journal: “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.”
Malta has strenuously objected to certain provisions within the new rule and has said that its decision not to host Frontex’s Central Mediterranean enforcement operation, Operation Chronos, was due to the disembarkation provisions contained in the new Frontex rule. It should be noted that Malta has more recently said that its decision not to participate in Operation Chronos was due to the lack of need for the operation given the “success” of Italy’s push-back practice.
Malta’s objection to the guidelines is largely focused on the following provision in the rule for sea border operations:
2.1. The operational plan should spell out the modalities for the disembarkation of the persons intercepted or rescued, in accordance with international law and any applicable bilateral agreements. The operational plan shall not have the effect of imposing obligations on Member States not participating in the operation. Without prejudice to the responsibility of the Rescue Coordination Centre, and unless otherwise specified in the operational plan, priority should be given to disembarkation in the third country from where the ship carrying the persons departed or through the territorial waters or search and rescue region of which that ship transited and if this is not possible, priority should be given to disembarkation in the host Member State unless it is necessary to act otherwise to ensure the safety of these persons.”
Commissioner Cecilia Malmström pointed out during her recent official visit to Malta that the rule could be interpreted by the member states participating in an operation so as to provide for disembarkation of migrants at a location other than the host state.
(HT to Steve Peers (Univ. of Essex) via Bernard Ryan on Migration and Law Network list serve.)
Click here for the Council Decision.
Times of Malta reported on Monday that Maltese MEP and LIBE Committee member, Simon Busuttil, who is the EPP coordinator on LIBE, has received a positive legal response to his question regarding whether sufficient grounds exist to bring a legal challenge against the Council and the Commission in regard to the recently approved Frontex sea operation Guidelines. This report follows by a few days Commissioner Malmström’s first visit to Malta and the reaffirmation by Malta that it will not host Frontex’s Operation Chronos.
The Times of Malta states that “The EP’s legal unit advised there were enough grounds to take the EU Council and European Commission to court on the basis that the rules exceed the two institutions’ powers under the EU Treaties.” MEP Busuttil was quoted as saying “I have already gone on record saying that I will not let this one go and this legal advice opens the way to court proceedings to invalidate these rules. I am reasonably confident that the European Parliament has a good case and the European Commission would do well to take this possibility into account and start thinking about Plan B.”
Click here for article.
Commissioner Cecilia Malmström was in Malta on 30 April for meetings with Maltese officials. Malta recently reaffirmed its decision not to host Frontex’s Operation Chronos. Malmström trip was planned before Malta’s announcement. There is no indication that Malta changed its position during Malmström’s visit.
Malmström was interviewed during her visit by the Times of Malta and said that the new guidelines governing Frontex enforcement operations at sea could be negotiated by member states on a mission by mission basis. The new guidelines require that intercepted migrants be taken to the country hosting the Frontex mission, but Malmström said there is the possibility before a mission starts that the participating member states agree on different rules of engagement, which might include the sharing of responsibility where not all intercepted migrants would be brought to country hosting the mission.
Presumably participating member states would not be permitted to negotiate substantive mission by mission changes to the guidelines so as to undercut the very reasons for which the guidelines were recently adopted.
Click here for Times of Malta article.
Click here for video of Times of Malta Interview.
Click here, here, and here for other articles regarding the visit.
Malta previously said that it would not host Operation Chronos, Frontex’s annual central Mediterranean enforcement operation, formerly known as Nautilus, due to the recently approved guidelines governing Frontex enforcement operations at sea which require that intercepted migrants be taken to the country hosting the mission under certain circumstances.
But the Times of Malta is reporting that a Maltese government spokesperson said that the decision not to host Frontex is not because of the new guidelines, but is due to Malta’s view that there is no longer a need for Operation Chronos because of the success of the Italy-Libya migration agreement. “The reason why we decided not to take part in this year’s mission is that we feel there is no need for this year’s EU patrol. We have noticed that, following the introduction of joint patrols by Libya and Italy last year, the number of illegal immigrants reaching Malta has dropped significantly. We feel that, as long as this operation remains in place, there is no real need for another anti-migration mission on behalf of the EU.”
The Times article reports that 84 boats carrying 2,775 migrants arrived in 2008 and that this number was reduced in 2009 to 17 boats carrying 1,475, with the majority of arrivals occurring in the first half of 2009 before the Italian push-back policy was implemented.
Commissioner Cecilia Malmström travels to Rome and Malta this week for meetings with officials on asylum and migration issues.
Click here for article.
Click here, here, and here for earlier related posts.