Changes from report parliamentary committee draft to plenary report

42. Commends the Agency’s efforts in 2022 to secure strategically important contracts in areas ranging from the provision of interim staffing services to the provision of services for geographical information system, geospatial intelligence and imagery intelligence; notes that significant progress was made with critical procurement procedures for significant amounts of money with regard to the Agency’s permanent premises (EUR 140 million, provision of travel related services (EUR 666 million) and infrastructure and software related services (EUR 32 million);

43. Notes the Agency reporting on having improved the planning and monitoring of the annual procurement plan; calls on the IAS to include this plan in its future audits;

Prevention and management of conflicts of interest and transparency

Change 22

Changed38.44. Notes with satisfaction that the CVs and declarations of interest of the members of the Agency’s MB and of its executive management are published on the Agency’s website; notes further that in 2022 five cases of whistleblowing were processed, of which three cases were closed or concluded in the preliminary assessment phase and two cases are currently under OLAF investigation; calls on those concerned and on the Agency to ensure full cooperation with OLAF in the course of the investigation; notes lastly that in 2022 no cases of conflicts of interest were investigated;

Change 23

Changed39.45. Notes from the Agency’s reply to Parliament’s written questions that the Agency is working on a policy for monitoring of compliance of the Agency’s current and former senior staff in the area of ‘revolving door’ situations; invitescalls on the Agency to keep the discharge authority informed of the progress in this matter; reiterates its call on the Agency to also put in place for the members of its MB principles, procedures and specific mechanisms to deal with conflicts of interest of those members and with ‘revolving door’ situations;

46. Notes the reply to the discharge authority which provides information on the contacts and meetings registered and documented in the Agency’s Transparency Register in 2022; notes the various meetings (Industry Days) of the Agency that gave companies from the industry the opportunity to present their products and services that can support border management activities and encourage dialogue between the EBCG community and the industry; notes that in the framework of the Industry Days for 2022 the Agency received 277 applications on solutions, invited 88 companies to showcase their technologies and organised online sessions where information on 175 solutions were shared; welcomes that the list of the participating companies are published on the website of the Agency;

Change 24

Changed41.47. Notes from the Agency’s CAAR that the Agency’s transparency office processed a significantly higher number of applications (469) for public access to documents,documents (PAD), representing an increase by nearly 34 % year-on-year;;year-on-year; notes further that the Agency’s public register of documents website was established with around 1 900 key documents uploaded in 2022; notes the EO’s conclusions from its own initiative enquiry (case OI/2022/PB) that the Agency systematically takes too long to process PAD-requests, specifically when it concerns a large amount of documents and when the Agency considers the request to be imprecise, and that this amounts to maladministration; deplores that the Agency has failed to accept the recommendation of the Ombudsman and calls upon the Agency to start dealing with PAD-requests more swiftly and transparently as a matter of priority;

48. Recognises the general presumption of non-disclosure of public access for documents pertaining to ongoing OLAF investigations; reiterates nevertheless its call for OLAF reports on the Agency to be made public in cases of overriding public interest in disclosure and, in all cases, for the relevant Members of Parliament to be given access to such reports within a reasonable period of time in order to allow them to effectively carry out democratic scrutiny and hold the Agency to account for its actions; believes that the current rules need to be revised to ensure that Parliament is fully informed in its role as policymaker and co-legislator, in particular regarding its budgetary powers;

Change 25

Added49. Takes note of the Ombudsman inquiry into the Agency’s refusal to grant public access to the report by its FRO concerning the Agency’s operation in Albania (case 652/2023/VB);

50. Recalls the EO’s decision in its own initiative enquiry (case OI/4/2021/MHZ) on the Agency’s compliance with its fundamental rights obligations; recalls in this context that the Agency has an obligation to ensure proactive transparency as stated in Article 114(2) of Regulation (EU) 2019/1896; calls on the Agency to finalise the implementation of all the Ombudsman’s recommendations; notes from the Agency’s follow-up report that work on merging the three codes of conduct (two with regard to operational areas and one applicable to the entire staff of the Agency) into one code of conduct covering the specific provisions for the operational areas is ongoing; asks the Agency to keep the discharge authority updated on the progress in this matter;

Change 26

Changed44.51. Acknowledges the Agency’s briefing note of 27 June 2022 on actions taken by the Agency’s management during the transition period, in particular its efforts to strengthen the procedures needed for good governance and accountability in the organisation, through enhancing transparency, proactive communication and engagement with internal and external stakeholders; welcomes the Agency’s initiative for an operational brief informing the public about its operational activities in a comprehensive way; calls upon the new leadership to undertake reforms that are needed in respect of transparency and efficiency in internal procedures, and to increase accountability towards the Parliament and Council in accordance with the applicable legal framework;

Internal control

Change 27

Changed45.52. Welcomes the Agency’s decision to issue, in an improved format, a quarterly report addressed to FSWG covering the state of play on the implementation of the recommendations stemming from various scrutiny bodies; acknowledges receipt of that report for the third quarter of 2023 (hereinafter the ‘Q3 2023 report’); commends in this context the significant progress made by the Agency in implementing 36 out of 42 FSWG recommendations; notes from the Q3 2023 report the implementation rates of the recommendations and/or required actions from the FWSG (91 %), the FraLO (87 %), the Ombudsman (79 %) and OLAF (54 %); acknowledges the role of the Agency’s ICO in the support provided to addressing those recommendations through liaison functions and coordination tasks; notes further from the Q3 2023 report that 10 IAS recommendations (covering a total of 32 actions) are still open, whereas 21 actions are marked as very important, while none of them is deemed critical; further commends the progress made by the Agency in addressing the remaining open recommendations stemming from the Court’s special reports 22/2020 (recommendation 2) and 8/2021 (recommendation 1, 2 and 4); callsreiterates its call on the Agency to fully address all pending recommendations and related actions, including with regard to the Court’s relevant observations stemming from the Court’s annual audit reports from previous years (2015, 2016, 2018, 2019, 2020 and 2021); invites the Agency to continue to inform regularly the discharge authority of the progress made in these matters;

53. Notes with concern from the Court’s report a series of observations indicating weaknesses in the Agency’s management and internal control systems in the areas of procurement and contract management, recruitment procedures and delegation of powers to authorising officers by delegation; is deeply concerned that for a second year in a row the Court issued observations in the area of procurement of travel related services, whereas the amounts at stake are very important; stresses that it is of utmost importance that the Agency abides to the principle of sound financial management in the implementation of Union funds, as stipulated in the Financial Regulation, whereas the Agency is leading among Union’s decentralised agencies regarding the Agency’s annual budget which has more than doubled since 2019;

54. Notes with concern from annex 12 to the Agency’s CAAR the comments of the former Executive director ad interim (currently deputy executive for standing corps management) whereby, with regard to a contract for accommodation and travel services for standing corps officers, overpricing, payments made without supporting documents and failure to provide contractual services allegedly took place during 2021;

55. Notes from the Court’s report the observation with regard to a significant risk of overcharging when it comes to payments made for travel services (framework contract of EUR 30 million), in particular accommodation, whereas invoices issued by the travel agency were not supported by the actual invoices of the hotels, but by a travel agency’s subsidiary; calls on the Agency to improve its internal controls such that the relevant invoices are produced by the actual provider of the service;

Change 28

Changed49.56. Notes further the risk that payments related to the travel agency’s costs may not be correct because the information in the Agency’s system for managing its travel-related costs does not reconcile actual costs paid with the travel agency’s costs, which are reported and processed separately from those paid by the staff on mission; understands from the Agency’s reply the reason why there are discrepancies between the missions system (MiPS)MiPS and the accounting system (ABAC) and that in the Agency’s opinion there is no risk of making payments with a wrong amount;

▸5 unchanged paragraphs

57. Notes the from the Court’s report, for a second year in a row, an observation on the Agency’s internal control weakness in the area of recruitment procedures; notes in this context that in 2022 in a procedure for recruitment of temporary agents, individual scorings by members of the selection committee (SC) were used, instead of applying a consensual method as stipulated by the Agency’s internal rules; regrets the reoccurrence of such weakness, in spite of the Agency having adopted in January 2022 new implementing rules with clearer instructions to the selection committee members aiming to ensure more consistent assessment and harmonised procedures; welcomes the Agency’s commitment to extend to the recruitment of temporary agents the rules whereby only one final evaluation report agreed between the SC members is considered, without taking into account their individual scorings; invites the Agency to strengthen the application of the new rules and its internal controls in the area of recruitment procedures;

58. Takes note of the assessment of the internal control system (ICS) of the Agency carried out in 2022; notes the assessment conclusion that the ICS is present and functioning effectively, with some areas needing improvements with regard to components ‘Control environment’ (in particular principle 1 titled “Demonstrates a commitment to integrity and ethical values”) , ‘Control activities’ (in particular point 10.5 titled ”Sensitive positions identified”) and ‘Information and communication’ (in particular point 15.1 titles ‘External communication’); observes an overall improvement in 2022 compared to 2021 on the scores given to principles in all five ICS components;

59. Notes with satisfaction the reinforcement of the Agency’s internal oversight in 2022 through the establishment of the Internal Audit Capability (IAC) and the adoption of the Internal Audit Chapter; welcomes that the head of IAC took up his duties in 2023 and the first IAC Annual Audit plan has already been adopted by the MB;

60. Recalls the recommendation from the Court’s report for 2018 that the Agency should adopt and implement a sensitive post policy; notes the Agency reporting on the preparations carried out for a decision on such policy which meanwhile was adopted (at the end of 2023);

Other comments

Change 29

Changed54.61. Notes that the opinions of the European Data Protection Supervisor (EDPS) on the MB decisions 68/2021 and 69/2021 were negative; notes that the Agency created an implementation plan to address all EDPS recommendations in that regard; notes further that those MB decisions have been redrafted and re-adjusted after regular meetings and informal exchanges of the Agency’s Data Protection Officer with the EDPS staff, as well as by taking into account the EDPS audit report published on 24 May 2023 (hereinafter the ‘audit report’); notes that the audit report verified the compliance of the Agency’s processing of personal data in the context of Joint Operations with Regulation (EU) 2018/1725 and the relevant provisions of the EBCGRegulation Regulation;(EU) 2019/1896; notes further in this context that the audit report identified 36 formal findings and issued 32 recommendations with regard to the screening of persons and debriefing interviews, joint controllers’ arrangements, low reliability of information used for the production of risk analyses and the implementation of Data Protection by Design and By Default, among other; notes with concern from the audit report that the EDPS findings also indicate that the Agency has breached multiple articles of legal basis applicable to the Agency (Regulation (EU) 2018/1725, EBCG Regulation (EU) 2019/1896 and MB Decision 58/2015) by not assessing the strict necessity of sharing data packages with Europol for the performance of its mandate and, consequently, the EDPS has opened an investigation, which may result in the exercise of enforcement actions; regrets that EDPS identified after its audit new six cases of transmission from the Agency to Europol of personal data relating to NGOs' staff whose lawfulness needs to be further investigated; calls on the Agency to address all recommendations within the deadlines for implementation issued by the EDPS in its audit report and keep the discharge authority informed of the development in this matter;

Change 30

Added62. Welcomes that over the course of the last two years the Agency went through significant managerial changes, including a new deputy FRO, a new chair of its Management Board, two new deputy executive directors and the appointment of a new executive director; notes the establishment of action plans with national authorities to right the wrongs of the past and present;

°

° °

63. Refers, for other observations of a cross-cutting nature accompanying its decision on discharge, to its resolution of ... on the performance, financial management and control of the agencies.