Showing posts with label Frontex. Show all posts
Showing posts with label Frontex. Show all posts

Friday, 22 September 2023

Responsibility in Joint Returns after WS and Others v Frontex: Letting the Active By-Stander Off the Hook

 



Melanie Fink and Jorrit J Rijpma

Melanie Fink is APART-GSK Fellow of the Austrian Academy of Sciences, Central European University and Assistant Professor, Europa Institute, Leiden University

Jorrit Rijpma is Professor of EU law, Europa Institute, Leiden University

Photo credit: Влада на Република Северна Македонија, via Wikimedia Commons

See also analysis of the human rights aspects of the judgment, by Francesca Romana Partipilo 


On 6 September 2023 the General Court delivered its long-awaited ruling in WS and others v Frontex. In a short and matter-of-fact judgment, it dismissed an action for damages by a Syrian refugee family against the European Border and Coast Guard Agency (Frontex). The family, escaping Aleppo at the height of the Syrian war in 2016, was returned to Turkey just days after their arrival in violation of the principle of non-refoulement. Their return was carried out as a joint return operation between Greece and Frontex. With the action brought before the General Court, they sought compensation from Frontex for its role in the violation of the principle of non-refoulement, as well as their degrading treatment in the return process.

After the many reports of fundamental rights violations at the external borders, including pushbacks, this was the first case in which Frontex came under judicial scrutiny for its role in potential violations. Earlier, a damning OLAF-report, demonstrating that the Agency had turned a blind eye to pushbacks in the course of operations it coordinated, had led to the resignation of its Executive Director.

Since its establishment, successive legislative amendments have consistently increased Frontex’s powers, short of transferring command and control over border guards and return officers. Yet, Frontex has always maintained that it cannot be held responsible for violations of fundamental rights as it merely acts as coordinator and facilitator in joint (return) operations. Wrongdoings in the context of joint operations, so Frontex, would be exclusively on the Member State in charge.

In an unsatisfactory judgment that fails to do justice to the plight of a refugee family that turned to the European Union for protection, the General Court now seems to confirm that stance. Doing so, it failed to acknowledge the role and obligations of Frontex during joint operations. Adopting an unreasonably and unnecessarily high threshold for the establishment of the causal link requirement, it also excludes almost any prospect of Frontex being accountable for any breaches of its obligations. After a brief overview of the judgment, we will discuss each of these points in turn. We refer to Regulation 2016/1624, which governed the activities of Frontex at the time of the return, even though it has been replaced with Regulation 2019/1896 in the meantime. However, the relevant provisions have not substantially changed.

 

The judgment

On admissibility, the Court rejected two arguments advanced by Frontex. First, it did not consider that it was called upon to make general statements of principle by ruling on the applicants’ damages claim. Second, it did not accept the argument that the applicants were barred from bringing an action for damages, as they could have brough an action for annulment against the letter of the Agency’s fundamental rights officers dismissing their complaint under the individual complaints’ mechanism. The Court held that these two actions do not preclude each other as they pursue different objectives, but explicitly left the question whether the actions of the Agency’s Fundamental Rights Officer within the framework of that administrative procedure constitute challengeable acts under Article 263 TFEU, which if they are would subject this procedure to judicial review by the Court.

On substance, non-contractual liability arises when three cumulative conditions are met: a sufficiently serious breach of a rule of EU law conferring rights on individuals, damage, and a causal link between the unlawful conduct and the damage. Reversing the order in which it assessed the conditions, the General Court dismissed the action based solely on the absence of a sufficiently direct causal link between the conduct of the Agency and the damage that was invoked. At the outset it had already recalled that the unlawful conduct would need to be the determining cause of the damage. It considered that the applicants wrongly departed from the presumption that without the alleged conduct by Frontex they would not have been returned. Here the General Court repeats Frontex’s mantra that it only provides technical and financial support. Most importantly, it emphasizes Frontex’s lack of competence to adopt a return decision or decide applications for international protection, leaving any liability with the responsible Member State.

The General Court skipped the question whether the return of the applicants and their treatment during the return procedure constituted a violation of EU law altogether. Although this may be interpreted as a sign of judicial economy, it is also a way to avoid having to pronounce itself on the behaviour of the Member State in question. In addition, the Court may have otherwise been required it to address the limits of its own jurisdiction under Article 276 TFEU, which precludes it from assessing the validity or proportionality of Member States’ law enforcement authorities.

 

The Role, Obligations, and Responsibility of Frontex

By virtue of Article 28 Regulation 2016/1624, Frontex is prohibited from ‘entering into the merits of return decisions’ because these ‘remain the sole responsibility of the Member States’. The Court rightly held that Frontex cannot be responsible for any potential unlawfulness of the return decision itself. As with any other national administrative decision, it would be for the Member State authorities to ensure its lawfulness.

Aside from the question whether a return decision was even taken under the Return Directive, and whether this decision was then lawful, the applicants’ allegations in the case go well beyond the decision itself. Frontex’s alleged wrongdoing concerns the implementation of the decision, despite clear indications of a risk of refoulement, and the degrading treatment of the applicants as the expulsion was carried out. This phase of the return process, i.e. the implementation of return decisions in the form of joint return operations, is a core competence of Frontex, which by virtue of Article 28(1) Regulation 2016/1624 renders ‘the necessary assistance’ to return operations and ensures their ‘coordination or […] organisation’.

This coordinating role comes with obligations. Concretely, Article 28(3) Regulation 2016/1624 explicitly states that ‘Agency shall ensure that the respect for fundamental rights, the principle of non-refoulement, and the proportionate use of means of constraints are guaranteed during the entire return operation’ (see also generally Article 34 Regulation 2016/1624). In addition, as an EU body, Frontex is bound by the EU Charter of Fundamental Rights, including the absolute prohibitions of refoulement in Article 19 and of inhuman or degrading treatment in Article 4. These rights are widely understood under European human rights law to include positive obligations that require authorities to actively ensure the protection of a right, for example by taking practical steps to protect a person against interferences by others. Frontex has a whole toolbox of means available to meet these obligations, including reporting and communication duties. As a last resort, Article 25(4) Regulation 2016/1624 requires the agency to withdraw, should violations of fundamental rights or international protection obligations occur that are serious or likely to persist.

Frontex conducts joint return operations together with the Member States. However, if it violates its own obligations under EU law, it bears responsibility that may be invoked through an action for damages. This responsibility is independent from any possible responsibility of the Member State who in turn bears responsibility for its own failures in the process (see also here). Not separating the return decision from its implementation, the Court failed to acknowledge the role of Frontex in the latter. In addition, shielding the agency from responsibility for a violation of its obligations in joint return operations emasculates these provisions, which also negatively affects the credibility of the EU as a rule of law advocate.

 

Causation and Joint Liability

An important complicating factor in this case, is the interplay between the actions of Frontex and the host Member State. Situations where more than one actor is involved in causing harm are not uncommon, but incredibly complex when it comes to allocating legal responsibility (see also here).

First, it might be unclear who is considered the ‘author’ of a violation, in other words, to whom the unlawful conduct is attributable. As a national administrative decision, the return decision is clearly attributable to the host state. Things are more complicated at the implementation level, where the actions of the host state and Frontex are more intertwined. However, since the Court did not separate the return decision from its implementation, the question of attribution played no role in the case.

The second difficulty concerns causation, that is the link between the unlawful conduct and the damage. The Court denies the existence of a sufficiently direct causal link between Frontex’s conduct and the harm complained of because Frontex lacks the competence to interfere with the return decision or grant international protection. In other words, in the Court’s view, the return decision is the cause for the applicants’ harm, not Frontex’s conduct. Underlying this argument seems to be an assumption that ‘exclusive’ causation might be required for liability to arise. This is also the view the General Court defended in the recent case Kočner v EUROPOL, a case currently under appeal with Advocate General Rantos suggesting the Court of Justice take a less restrictive approach to the causation requirement.

In the past, there have been cases in which the Court seemed accepting of the idea that the existence of an additional determining causes for a damage does not necessarily bar a finding of liability. In light of the coordinating nature of Frontex’s tasks, allegations of wrongdoing will usually, if not always, go hand in hand with (potential) wrongdoing by one or more Member States. If Frontex is not accountable simply because a Member State may have acted unlawfully too, this appears to exclude any reasonable prospect of Frontex being held accountable for breaches of its obligations. In fact, it would seem to stand in the way of joint liability between the Union and a Member State altogether, which has been recognised by the Court as early as 1967 and is a necessary means to ensure accountability in the EU’s multi-level administration (for more detail see here).

 

Conclusion

The Court, in limiting itself to an assessment of causality, failed to acknowledge a clear violation of one of the core tenants of EU refugee law, the prohibition of refoulement, as well as a range of safeguards laid down in EU secondary legislation. Frontex was present during this violation, and rather than intervened, contributed to it. All of this would not in itself have resulted in Frontex being held liable, but the argument that it is excluded because of a lack of competence regarding the decisions on return and international protection is flawed and lays bare a misconception of the practical reality of joint law enforcement operations as well as the role and obligations of Frontex under EU law in that context.

This judgment begs the question what Frontex’s fundamental rights obligations are worth in the absence of a meaningful way to enforce them. Even if a Member State could, at least in theory, be held responsible before the national judge, and ultimately before the ECtHR, that should not mean that the exercise of public power by a Union body should be allowed to escape judicial review. In a system of shared administration, which the management of the shared external borders has become, joint responsibility carries a need for joint liability.

This case shows how the ‘complete system of remedies’ fails to provide effective judicial control of public power in the EU's area of freedom, security and justice, which is characterised by integration through operational cooperation rather than law. Enforcement powers remain the Member States’ exclusive prerogative in name, but in practice are increasingly exercised jointly by the Member States and the EU. This judgment could have provided a welcome correction to this constitutional oversight. If upheld on appeal, it will reinforce the need for the long overdue accession of the EU to the ECHR.

 



The EU General Court’s judgment in the case of WS and Others v Frontex: human rights violations at EU external borders going unpunished

 



 

Francesca Romana Partipilo, PhD candidate in International Law at Sant'Anna School of Advanced Studies (Pisa) 

 

Photo credit: Rock Cohen, via Wikimedia commons

(see also critique of the judgment, by Melanie Fink and Jorrit Rijpma) 

 

On the 6th of September, the EU General Court dismissed a claim filed by a Syrian family who alleged to have suffered material and non-material damages – consisting in feelings of anguish, fear and suffering – at the hands of Frontex on the occasion of a return operation jointly carried out by the EU agency and the Hellenic Republic on the 20th of October 2016.

 

The case was filed in 2021, five years after the Syrian family was deported by plane to Turkey from the Greek island of Kos, despite having filed a request for international protection. The applicants, arrived on the island of Milos (Greece) on 9 October 2016 and subsequently deported to Turkey, maintained that, if Frontex had not infringed its obligations relating to the protection of fundamental rights in the context of joint operations – in particular the principle of non-refoulement, the right to asylum, the prohibition of collective expulsion, the rights of the child, the prohibition of inhuman and degrading treatment, the right to good administration and to an effective remedy – they would not have been unlawfully returned to Turkey and they would have obtained the international protection to which they were entitled, given their Syrian nationality and the situation in Syria at the material time. However, the Luxembourg-based court decided that, since Frontex does not have the competence to assess the merits of return decisions or applications for international protection, the EU agency cannot be held liable for any damage related to the return of refugees to Turkey. As explained by the EU General Court, Member States alone are competent to assess the merits of return decisions and to examine applications for international protection (para. 65). The judges added that, as regards return operations, under Article 27(1)(a) and (b) and Article 28(1) of Regulation 2016/1624, Frontex’s task is only to provide technical and operational support to the Member States and not to enter into the merits of return decisions.

 

At first glance, the judgment reveals an argumentative short-circuit. Whilst the examination of asylum applications undeniably falls outside Frontex’s competence, being attributed by EU law to the Member States of the EU, the imperative to respect human rights is contained in Frontex Regulation and in several other documents referring to the agency’s activities, thus representing a legal obligation which is binding on the agency. The fact that Frontex lacks the competence to examine the merits of asylum applications or return decisions does not exempt the EU agency from the respect of migrants’ human rights. As noted by the General Court itself (para. 63), “Regulation 2016/1624, in particular Article 6(3) thereof, provides that [Frontex] shall contribute to the consistent and uniform application of Union law, including the Union acquis concerning fundamental rights, at all external borders”. In addition, the Court stressed that “Article 34(1) of that regulation states that the European Border and Coast Guard shall ensure the protection of fundamental rights in the performance of its tasks under this Regulation in accordance with relevant Union law, in particular the [Charter of Fundamental Rights], relevant international law – including the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol thereto and obligations on access to international protection, in particular the principle of non-refoulement’.”

 

In addition to the legal instruments binding Frontex to the respect of fundamental rights in its operations, references to human rights have been incorporated into Frontex official documents or press releases since the first years of its operations. For instance, in the annual report for 2008, for the first time, Frontex specified that “[f]ull respect and promotion of fundamental rights […] is the most important corner stone of modern European border management”. Similarly, the 2009 annual report stated that “full and sincere respect of fundamental rights is a firm and strategic choice of Frontex”. More recently, the now disgraced former director of Frontex, Fabrice Leggeri, declared that Frontex was “determined to uphold the highest standards of border control within [its] operations [and] to further strengthen the respect of fundamental rights in all [its] activities”.

 

In the light of these observations, it needs to be noted that Frontex’s actions in the case of WS and Others v Frontex could have resulted in chain (or indirect) refoulement. Considering that Turkey adopts substantial geographical limitations to the definition of refugee contained in the Refugee Convention, the country may not be considered a “safe third country” where asylum claimants can effectively apply for international protection. In fact, at the time of the ratification of the Additional Protocol to the Refugee Convention, in 1968, Turkey opted for a geographical limitation pursuant to Article 1b of the Convention, limiting the scope of the Convention to “persons who have become refugees as a result of events occurring in Europe”. Consequently, only asylum-seekers fleeing “events occurring in Europe” can enjoy refugee status in Turkey. This is confirmed by the circumstance that Turkey does not grant the status of refugees to people fleeing the war in Syria, but only offers them a form of temporary protection, pursuant to the Turkish Law on Foreigners and International Protection.

 

It should be noted that Turkey is a signatory of the European Convention of Human Rights, and thus legally bound by Article 3, prohibiting torture and inhuman or degrading treatment or punishment. As well known, in Soering v The United Kingdom the ECtHR established that, pursuant to Article 3, expulsion to torture is never permitted, even in cases where the returnee is not an asylum-seeker or refugee. Accordingly, Article 3 ECHR could have represented a solid legal basis for the protection of the applicants in the case of WS and Others v Frontex, even in the absence of a formal refugee status. Nonetheless, it should also be recalled that, in July 2016, following a failed coup, Turkey had declared a state of emergency and submitted a formal notice of derogation from the ECHR, under Article 15 of the ECHR. Whilst Article 3 ECHR belongs to the list of non-derogable rights, Turkey exploited the state of emergency to introduce a series of amendments to the Law on Foreigners and International Protection, including substantial changes relating to deportation orders and the suspensive effect of appeals against such orders. As a result of the amendments introduced in 2016, a deportation order could be issued at any time to certain applicants/holders of temporary protection (e.g. people suspected of being supporters of a terrorist organization or people who posed a public security threat, in the eyes of the government). For these groups of people, the appeal procedure no longer had a suspensive effect, therefore increasing the risk of refoulement, as noted by Amnesty International. As a consequence, it appears evident that people forcibly expelled to Turkey in 2016 could have suffered chain (that is indirect) refoulement to their countries of origin. Interestingly, this danger was explicitly acknowledged by the EU General Court itself, in the paragraph of the judgment where the Court noted that applicants feared “being returned to Syria by the Turkish authorities” (para. 68). Finally, it has been repeatedly noted that “procedural safeguards that are in place within the EU are not applicable to Turkey, leading to instances where the guarantees to the right to life and prohibition against torture are denied in direct violation of the principle of non-refoulement in the human rights context”. On the basis of such observations, it is evident that Frontex’s return operation was, at the very least, problematic under both EU and international law.

 

Under a different perspective, the case of WS and Others v Frontex reveals that the responsibility for human rights violations at EU borders may arise as a result of joint actions of States and international organizations (or their agencies). In these instances, interesting questions arise regarding the rules of attribution of conduct, the content and implementation of international responsibility. In the case at hand, while Frontex was under the legal obligation to respect the human rights of asylum-seekers under its jurisdiction and the principle of non-refoulement, Greek authorities had the duty to examine their application for international protection. In fact, as recalled by the European Court of Human Rights in the case Sharifi v. Italy and Greece (appeal no. 16643/09), failure to access the asylum procedure or any other legal remedy within the port of disembarkation constitutes a violation of Article 4 of Protocol no.4 (enshrining the prohibition of collective rejections). In that judgement, the Court highlighted the link between the collective expulsions of the applicants and the fact that they had been prevented from applying for international protection.

 

It should be mentioned that Greece has not ratified Protocol no.4 of the ECHR and therefore cannot be held responsible of a violation of its Article 4. Nonetheless, although not formally bound by Protocol no.4, Greece could still be held responsible of a violation of the Asylum Procedures Directive as well as the Dublin Regulation III, requiring Member States to allow asylum-seekers effective access to an asylum procedure which hinges on exhaustive and comprehensive information, as stressed by the ECtHR in Sharifi and Others v. Italy and Greece (para. 169).

 

With regard to the issue of shared responsibility, it is interesting to note that, alongside the complaint against Frontex before the EU General Court, the Syrian family also filed a complaint against the Hellenic Republic before the European Court of Human Rights. In this submission, the family alleged the violation of Articles 5(1), (2), and (4) of the European Convention on Human Rights, Article 4, Article 3, and Article 13 taken together with Articles 3 and 5 of the Convention. This choice was probably motivated by the circumstance that – as stated above – Greece has not ratified Protocol No. 4 of the ECHR. Apparently, the submission resulted in a friendly settlement between the family of asylum-seekers and the Hellenic Republic, pursuant to Article 39 of the Convention.

 

In conclusion, whilst human rights activists hoped that the case of WS and Others v Frontex would set an important precedent, the judgment of the General Court is both worrying and discouraging. It appears that Frontex got away – once again – with human rights violations. Since its creation, in fact, Frontex has received a considerable amount of criticism. In particular, observers and legal scholars have raised questions about whether and how core fundamental rights, particularly the right to life, the respect of human dignity, the right to an effective remedy and the right not to be sent back to torture, persecution and inhumane treatment (the principle of non-refoulement), are safeguarded at Europe’s external borders. In June 2021, the ONG Sea Watch published a report where it maintained that “[a]erial reconnaissance enables Frontex to gather extensive knowledge about developments in the Central Mediterranean Sea and relay information about boats in distress to the “competent authorities” […] When spotting a boat in the Libyan search and rescue zone, Frontex […] often only informs the Libyan authorities […], despite NGOs or merchant vessels also being in the vicinity. By forwarding the information to the Libyan Joint Rescue Coordination Centre and sometimes even directly guiding the so-called Libyan Coast Guard to the position of a boat, Frontex coordinates and facilitates the interceptions and pullbacks of people in distress to Libya”. Regrettably, the case of WS and Others v Frontex will be remembered as just another episode in which the EU agency disregarded its obligations and violated asylum-seekers human rights at European external borders without incurring in legal consequences.

Monday, 19 April 2021

Frontex accountability: an impervious path

 



 

Laura Salzano, PhD student in Constitutional Law, Barcelona University

 

Since its creation in 2004, Frontex’ role and responsibilities have been some of the most debated issues among EU and human rights observers. Reasons for such attention are many: misuse of power, lack of transparency and non-cooperative behavior are just some of the allegations addressed to the Agency by professionals as policy experts and lawyers, academia, activists and NGOs.

 

Such criticisms are not only exogenous to the EU: the Frontex Consultative Forum (established in 2012, it assists the Executive Director and the Management Board in fundamental rights matters) expressed serious concerns in its annual reports for many consecutive years. It disclosed that the Management Board undermined the Fundamental Right Officer’s independence by appointing a former Adviser of the Executive Director as Fundamental Rights Officer ad interim; more seriously, it denounced the Agency’s reluctance to provide the needed human resources to the Fundamental Rights Office and to limit the Forum’s access of information. Also, it brought the ineffectiveness of the Individual Complaint Mechanism to the public’s attention: in 2018 only 3 incidents for alleged violations and 10 complaints were reported: an incredibly low number considering the 1500 officers deployed along the EU’s external borders.

 

Despite the almost total absence of incident reporting, the media revealed many instances in which the Agency’s officials were implicated in acts of physical violence towards refugees through the use of pepper spray, batons, and of dogs to hunt migrants. These deficiencies on human rights are due to its regulatory framework: while Frontex has been progressively granted a higher degree of power in the management operational tasks, its accountability did not grow accordingly. In fact, its competences and powers were strengthened by the 2016 Regulation and then again in 2019 (as discussed here and here).

 

This latter revision created the first EU uniformed service: the European Border and Coast Guard standing corps. The shift from mere assistance to Member States to operative powers was not accompanied by the setting up of a redress mechanism for violations of human rights. This brought the EU Ombudsman to recommend back in 2013 the establishment of an instrument enabling those whose fundamental rights were breached by Frontex to complain. While no action was immediately taken within the Agency, such recommendation was embedded in the 2016 Regulation and then enhanced in 2019. The current mechanism now provides the possibility of lodging a complaint for violations resulting from actions and omissions (Article 111, para. 2) but, as observed  by the Consultative Forum, it substitutes a proper independent judicial review and therefore does not satisfy the right to an effective remedy as enshrined in Article 47 of the EU Charter of Fundamental Rights. To assess this and other issues (i.e., the independence of the Fundamental Rights Officer) the EU Ombudsman has undertaken a strategic inquiry, still pending.

 

More recently, Frontex has come back under the spotlight of political tensions after the publication of an investigation revealing the Agency’s involvement in push-backs at the Greek-Turkish border. Whereas the notion of “push-backs” is not defined under EU law, it is commonly used to describe the set of actions aimed at pushing back migrants and asylum seekers at borders or immediately beyond them - with the purpose of preventing them to reach the protected frontier - without a proper assessment of their status and rights. Such actions often put migrants' lives at serious risk and raise issues with regard to the principle of non-refoulement, protected at EU level by the Art. 19 of the EU Charter.

 

Such serious events triggered a response from the European Commission which, for the first time, took action to investigate the allegations by calling for an urgent meeting. At the moment though, no concrete action has been undertaken yet and when reporting to European Parliament last December 1st, Frontex’ Executive Director was urged to resign.

 

As said, allegations of push-backs were the main subject of the LIBE Committee’s hearing held on  December 1st. In that occasion, for all the six incidents reported by the media, the Agency denied its involvement using several arguments.

 

The first one lies on the legal interpretation of the prevention of departure. As stated by the Agency, those events reported as illegal pushbacks by the media, could instead be interpreted as interceptions under Regulation 656/2014 (Sea Borders Regulation). According to it, if there is evidence to believe that a vessel is involved in smuggling of migrants, States may, inter alia, warn and order the vessel not to enter and alter its course towards a destination other than the territorial sea. As explained, the Regulation frames two kinds of actions that can be undertaken at borders lawfully: interceptions at sea and search and rescue activities. The issue is quite significant, since these operations take place in a grey and evolving area of the law while having the potential to highly impact migrants' human rights. Despite the fact that lawful and unlawful conducts are separated by a fine line, the European Commission's Schengen Borders Code (SBC) handbook restates which legal safeguards border coast guards should always respect, e.g. allowing anyone in need of international protection to access it. In any case, the European Commission, responding to a specific request from the Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea, clarified that the criteria of the well-known N.D. N.T. case do not apply to the present case. Predictably, it specified that being that judgment related specifically to a land border, it cannot be indiscriminately applied.

 

The second argument concerns competence. As the Director declared, full technical command lies within the host Member State: vessels, airplanes and all the deployed means were subject to the sole command of Greek authorities. On the other hand, the Agency enjoys wide supervisory powers, while Member States retain responsibility for the management of the section of their external borders (Art. 7, Reg. 2019/1896). The Management Board establishes - following a proposal from the Executive Director - technical and operational strategies. Moreover, Frontex liaison officers - who act as representatives of the Agency at borders and monitor and assist Member States in their operation - respond to it, as enshrined in Article 31. Also, Frontex exercises such power by means of the vulnerability assessment (Article 32), aimed at establishing Member States' ability to respond to challenges at external borders. Again, the assessment methodology is decided by the Management Board on a proposal of the Executive Director. Such a complicated picture is made even more difficult since the responsibility is shared between a multitude of public actors, usually involved in border control operations: the Host State (where operations take place); the Participating State(s) (other Member State(s) participating in the operation); Frontex’ standing corps. This directly leads to the unaccountability of the Agency: as illustrated by Prof. Fink, “national courts lack the competence to rule on the legality of Frontex’s conduct”, while the ECHtR has no jurisdiction on the EU and before the ECJ the “judiciary is split between a national level that adjudicates on the legality of national conduct and an EU level that adjudicates on the legality of EU conduct.”

 

The third argumentation revolves around the geopolitical context. There is no doubt that the situation at the Greek-Turkish border is a tense one, primarily due to the known border dispute. It was reported that EU Member States are often threatened by F16 planes of the Turkish military forces - thus raising the need to protect Member States’ security - falling in the framework of hybrid threats. In this case, provision of Article 41 on “critical impact level” applies. In fact, the Executive Director shall recommend any possible action needed to address the criticality. In case of situations requiring urgent actions, the European Parliament shall be informed without delay (Art. 43), while Art. 46 bounds the Executive Director to terminate activities if conditions to conduct them are no longer fulfilled. On the contrary, MEPs were informed only on December 1st. In any case, the issue raised deserves attention: working at EU external borders entails carrying out operations in highly sensitive geopolitical contexts. Nevertheless, according to its Regulation, the Agency is only accountable to the European Parliament and to the Council, surely not fully prepared to deal with external affairs, security and defense - being these the core competences of the EU External Action Service.

 

European Union borders management suffers from a specific vulnerability when it comes to the rule of law. Those whose rights are violated are mostly left with unclear, burdensome and inadequate mechanisms. A necessary starting point would be amending the Regulation to define a clear chain of command to identify anyone involved in the concerned action or omission, from the person who physically carried out the action - or did nothing to avoid it and should have - to the Executive Director. As argued by Prof Fink, only an effective ex post remedy accessible to individuals would close the accountability gap, allowing for damage compensation and a clearer identification of the public liability.

 

Barnard & Peers: chapter 26

JHA4: chapter I:3

Photo credit: Rock Cohen, via Wikimedia Commons

Sunday, 31 January 2021

EU Migration Agencies: the Operation and Cooperation of Frontex, EASO and Europol

 



 

Dr. David Fernández-Rojo, Universidad de Deusto - davidfrojo@deusto.es

 

The so-called “refugee crisis” revealed the urge to ensure the functioning of the Schengen area and the Common European Asylum System (CEAS), the desire to operationally assist those Member States most affected by the sudden and extraordinary arrival of mixed migratory flows, and the need to implement effectively and uniformly the EU measures adopted in regard to migration, asylum and border management matters. Against this background, the decentralized EU Agencies, Frontex, EASO and Europol, have emerged as key actors, not only in providing emergency operational assistance to the frontline Member States, but also in implementing the hotspot approach. The expansion of the operational role, multilateral cooperation, presence on the ground and institutional significance within the Area of Freedom, Security and Justice (AFSJ) of Frontex, EASO and Europol, is now unquestionable.

 

Hence, my book entitled “EU Migration Agencies: The Operation and Cooperation of Frontex, EASO and Europol”, published by Edward Elgar Publishing, comparatively analyzes the evolution of the operational tasks and cooperation of Frontex, EASO and Europol. Special attention is paid to the expansion of the legal mandates of these AFSJ agencies, the reinforcement of the activities they undertake in practice on the ground and to what extent a gap exists between these two dimensions.

 

The evolution of the operational tasks of Frontex, EASO and Europol is analyzed and two trends are highlighted. Firstly, while the Regulations of these AFSJ agencies continue to stress that their operational role is limited to providing the competent national authorities with the technical assistance they may require, the tasks of Frontex, EASO, and to a more limited extent, Europol, have an operational nature on the ground. Secondly, Frontex, EASO and Europol are increasingly involved in guaranteeing the effective and uniform implementation of EU migration, asylum and border management measures, as well as ensuring that the concerned Member States do not jeopardize the functioning of the Schengen area or the CEAS. These two emerging trends are discussed in turn.

 

In this book I point out that Frontex, EASO and Europol closely accompany the frontline Member States in the implementation of EU migration, border management and asylum policies. These agencies focus on operationally supporting the competent border, asylum and law enforcement national authorities in effectively implementing EU law. The expansion of EU competences in AFSJ matters has gone hand-in-hand with the reinforcement of their administration, which no longer falls exclusively on the Member States, but rather, on a conundrum of diverse actors, among which Frontex, EASO and Europol play a prominent operational role.

 

The growing integration that the AFSJ is experiencing has led to a Europeanization of its administration. It is necessary to ensure a uniform and effective implementation of EU border management, asylum and migration laws. The long-standing notion of administrative and implementation power in AFSJ matters is therefore progressively shifting. The deepening of the operational powers and cooperation of Frontex, EASO and Europol is eroding the exclusive procedural autonomy that Member States previously enjoyed, when implementing EU law. These AFSJ agencies increasingly steer and shape the effective and uniform implementation of EU migration, asylum and border management laws and policies at the national level.

 

Furthermore, the extent of the operational functions of Frontex, EASO and Europol may theoretically range from merely coordinating and providing technical assistance to the Member States, to developing full-fledged enforcement and coercive powers. Since Frontex, EASO and Europol do not have independent executive competences, their tasks can no longer be described as merely technical or supportive. Despite the lack of transparency and the vague legal provisions regulating the activities that Frontex, EASO and Europol undertake in practice on the ground, their tasks do have an operational nature. The issue is that the legal frameworks of Frontex, EASO and Europol lag behind the real operational powers that these agencies exercise on the ground, which creates legal uncertainty.

 

The reinforcement of the legal mandates and inter-agency operational cooperation of Frontex, EASO and Europol thus reveal a trend, under which these AFSJ agencies are mandated to increasingly develop operational and implementation activities. The operational and implementation role of Frontex, EASO and Europol has followed a constant and linear progression since their respective establishment. While Europol, due to its still markedly intergovernmental nature, is starting to operationally assist the national law enforcement authorities in their national investigations about illegal migrant smuggling, Frontex and EASO already conduct significant operational tasks on the ground and ensure the implementation of the adopted European Union measures at the national level. Whereas the current tasks already represent an erosion of the operational powers and implementation prerogatives of the Member States, none of these AFSJ agencies have been bestowed centralized, fully autonomous operational and enforcement powers on the ground.

 

The reinforcement of the operational tasks and implementation role of Frontex, EASO and Europol is not in itself an issue. What is problematic is the broad formulation of these AFSJ agencies’ legal bases and the lack of transparency surrounding their operational activities and cooperation, rendering the task of determining the degree of discretion they enjoy difficult. The key challenge involves determining the degree of discretion that Frontex, EASO and Europol enjoy and whether the institutional balance in the EU is respected. In this light, and despite the fact that Frontex, EASO and Europol have not been vested with strictly delegated powers, this book followed the CJEU’s non-delegation doctrine as useful guidance to analyze the legality of these AFSJ agencies’ operational functions under EU constitutional law.

 

The CJEU, in its Short-Selling judgment (discussed here), updated and relaxed its initial Meroni doctrine, by no longer confining delegation to clearly defined executive powers, but rather to powers precisely delineated and amenable to judicial review in the light of the objectives established by the delegating authority.

Unlike in the case of Short-Selling, the operational powers of Frontex, EASO and Europol are neither circumscribed by well-detailed conditions that limit their discretion, nor clearly detailed in a legal framework or their Regulations. These AFSJ agencies’ operational tasks are not restricted to merely providing technical support to the frontline Member States, but rather, they develop expanding cross-agency operational cooperation and activities on the ground. These agencies’ tasks entail the exercise of discretional prerogatives that are not narrowly delineated or clearly conditioned in any national or EU legal instrument. For instance, Frontex and EASO played a strong recommendatory role in the hotspots, which in principle, is compatible with the non-delegation doctrine, since the concerned Member States are not bound by Frontex and EASO’s recommendations.

 

Nonetheless, the national authorities, subject to extraordinary migratory pressure, may decide to rubber-stamp the recommendations put forward by the agencies. Frontex’s influence over the Greek officials in determining the nationality of the arriving migrants, Europol’s advice and operational support to the national enforcement authorities to dismantle migrant smuggling networks, and EASO’s admissibility assessment of the asylum applications or the detection of vulnerable applicants encompass in practice discretional and political choices. In these cases, the responsibilities of the agencies are blurred, since the national authorities adopt a final decision based on the assessment of the agencies.

 

Although fully autonomous enforcement and coercive powers are not possible under the current Treaties and would breach the non-delegation doctrine, the ambiguity and lack of transparency surrounding the operational tasks that Frontex, EASO and Europol undertake on the ground challenge the determination of their discretion and whether they actually make policy choices. In the author’s view, the main limitation and control of Frontex, EASO and Europol’s distinctive operational and implementation role comes from the Member States. While it is true that Frontex, EASO and Europol assist the Member States in matters closely linked to their national sovereignty prerogatives, the competent national authorities that vote at the management boards tightly control their recently reinforced operational, implementation and supervisory functions. Only two representatives of the European Commission have voting rights in Frontex and EASO’s management boards and this figure falls to just one representative in the case of Europol. The presence of the European Parliament in Frontex, EASO and Europol’s management boards is non-existent. Member States also exert their influence over the appointment and supervision of the executive directors, who lead the governance, management and daily administration of Frontex, EASO and Europol.

 

Member States’ reluctance to fully abandon their well-established bilateral practices, share information and operationally cooperate with Frontex, EASO and Europol in core national sovereign matters, like border management, asylum or migration, is especially reflected in these AFSJ agencies’ management boards. The Member States will thus maintain control of the strategic decisions and the daily management of Frontex, EASO and Europol. While centralizing on the executive, decisional and enforcement powers of Frontex, EASO and Europol will ensure a fully effective and harmonized implementation, it is important to bear in mind that these agencies represent an institutional trade-off or a common ground between intergovernmentalism and communitarization in the AFSJ. That is, Member States do not wish to relinquish further sensitive competences to the EU Institutions; but at the same time, they increasingly need supranational operational assistance regarding matters that can only be effectively managed in an integrated manner at the EU level. For this reason, whereas Europol, Frontex and EASO have been conferred upon significant operational tasks, none of these agencies are vested with full decisional, enforcement or coercive powers, which remain as an exclusive competence of the competent national authorities.

 

Hence, this book makes four main contributions. First, it maps Frontex, EASO and Europol as EU decentralized agencies, which are clearly distinguished by their operational powers and by the possibility to directly assist the competent national authorities on the ground. In particular, the establishment and early operational functions conferred on Frontex, EASO and Europol are studied. Second, it comparatively analyzes the reinforcement of the operational tasks vested on Frontex, EASO and Europol, as well as the extent of their assistance on the ground and influence on the implementation prerogatives of the national authorities in the aftermath of the “refugee crisis”. Third, it explores the bilateral and multilateral inter-agency cooperation between Frontex, EASO and Europol. Specifically, the expanded multilateral and operational cooperation that takes place in the hotspots is studied. Fourth, the limitations to the reinforced operational activities and cooperation of Frontex, EASO and Europol is analyzed. The constitutionality and legal bases of these AFSJ agencies, as well as the degree of discretion that they enjoy according to the Court of Justice of the European Union (CJEU) non-delegation doctrine, is examined. The internal administrative organization and governance of Frontex, EASO and Europol is also studied as to determine the influence and real control that the Member States and civil society may exert over the increasing operational powers these AFSJ agencies have been conferred.

 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: Rock Cohen, via wikimedia commons

Tuesday, 4 June 2019

The Umpteenth Reinforcement of FRONTEX’s Operational Tasks: Third Time Lucky?




Dr. David Fernandez-Rojo, University of Deusto

On 6 October 2016, the European Border and Coast Guard (EBCG), the successor of FRONTEX, was officially established. Less than two years after the adoption of Regulation (EU) No. 2016/1624, the president of the European Commission announced in his speech on the 2018 State of the Union made on 12 September, the Commission’s intention to, once more, reinforce FRONTEX. On the same day, the Commission proposed an updated version of the Regulation establishing the recently adopted EBCG, which (following agreement between the European Parliament and the Council) was one of the very last texts voted at the European Parliament under the 2014-2019 mandate. In particular, on 17 April 2019, the Parliament adopted the proposal put forward by the European Commission to further strengthen the EBCG with a standing corps of 10,000 border guards with executive powers by 2027. It is now only a question of time until the Council adopts the Regulation (henceforth referred to as Regulation 2019/XXX). (The provisionally agreed text of the new Regulation is here.) This blog post centres on comparatively analysing the most controversial, significant and novel operational tasks conferred by Regulations 2016/1624 and 2019/XXX to the EBCG. (See earlier this analysis of the new powers concerning returns and data sharing, and of the accountability of the agency in human rights terms).


Article 3(2) Regulation 2016/1624 conferred a monitoring role to the EBCG in order to guarantee a common strategy for the management of the European external borders. The EBCG may now deploy its own liaison officers in the Member States with the aim of fostering cooperation and dialogue between the agency and the competent national authorities (Article 12(3) Regulation 2016/1624). The EBCG liaison officers, who are deployed on the basis of a risk analysis carried out by the agency, should regularly inform the agency’s Executive Director about the situation at the external borders and assess the capacity of the concerned Member State to effectively manage its borders (Article 12(3)(h) Regulation 2016/1624). These responsibilities have been further detailed in Article 32(3) Regulation 2019/XXX.

The information that the liaison officers gather contributes and facilitates the preparation of the EBCG’s vulnerability assessments. At least once every three years, the agency shall monitor and assess the availability of the technical equipment, systems, capabilities, resources, infrastructure, and adequately skilled and trained staff of the Member States for border control (article 33(2) Regulation 2019/XXX).

The monitoring powers conferred to the EBCG are reflected in article 33(10) Regulation 2019/XXX, which signals that if the recommended measures are not implemented in a timely fashion and in an appropriate manner by the concerned Member State, the EBCG’s Executive Director shall refer the matter to the Management Board and inform the European Commission. The Management Board shall then make a decision, based on the original proposal of the Executive Director, describing the necessary measures to be taken by the Member State and the time limit within which such measures shall be implemented. Importantly, Article 33(10) Regulation 2019/XXX explicitly declares that the decision of the Management Board is binding on the Member State. It remains to be seen as to the position of the national authorities within the EBCG’s Management Board and whether they will adopt measures that effectively ensure that a concerned Member States tackles the vulnerabilities identified in its external borders.

While it is still early to assess to what extent Regulation 2019/XXX improves the functioning of the vulnerability assessment and the swift deployment of liaison officers initiating by Regulation 2016/1624, a novel mechanism of impact levels to external border sections has been designed. Articles 35 and 36 Regulation 2019/XXX state that the EBCG, in agreement with the Member State concerned, may declare four different impact levels and reactions with the aim of swiftly addressing at a given border section a crisis situation.

-          When the EBCG declares a low impact level, the competent national authorities shall “organise regular control (…) and ensure that sufficient personnel and resources are being kept available for that border section” (Article 36(1)(a)).

-          If a medium impact level is established, the concerned Member State shall “ensure that appropriate control measures are being taken at that border section” (Article 36(1)(b)).

-          Where a high impact level is declared the national authorities are encouraged to request operational assistance from the EBCG (Article 36(1)(c)).

-          The EBCG may temporarily determine at a given border section a critical impact level, which shall be communicated to the European Commission. Under this scenario, the EBCG’s Executive Director will recommend the Member State concerned to request the EBCG’s operational assistance through the initiation of a joint operation or a rapid border intervention (Article 42(1) Regulation 2019/XXX).

While the obligations for the national border authorities under the low, medium and high impact levels are quite vague, under the critical scenario the Member State concerned shall respond, providing justifications for its decision, to the recommendation of the Executive Director within six working days (Article 42(2)). According to Article 43 Regulation 2019/XXX, should the Member State ignore the EBCG Executive Director’s recommendation, the Council, on the basis of a proposal from the European Commission, may adopt a decision by means of an implementing act, identifying measures to mitigate those risks and requiring the Member State concerned to cooperate with the agency in the implementation of those measures.

The EBCG’s Own Equipment and the Standing Corps of Border Guards

With the objective of reducing the dependence of the EBCG on the Member States’ technical equipment, Article 38 Regulation 2016/1624 stipulated that the agency may acquire its own technical equipment to be deployed during joint operations, pilot projects, rapid border interventions and return operations. In this regard, Article 63(4) Regulation 2019/XXX points out that where the EBCG acquires or co-owns equipment such as aircrafts, helicopters, service vehicles or vessels, the agency shall agree with a Member State the registration of the equipment as being on government service.

It is true that the European Commission has now a strong budgetary commitment to ensure that the EBCG acquires or leases technical resources but the agency still lacks the necessary structures and expertise to effectively manage its own equipment. Regulations 2016/1624 and 2019/XXX do not design a clear framework of the EBCG’s responsibility, and continues to be highly questionable whether the Member States will authorise the registration of equipment that is beyond their control.

Furthermore, a key operational power introduced by Regulation 2016/1624 was the establishment of a Rapid Reaction Equipment Pool, consisting of technical equipment to be deployed in rapid border interventions within 10 working days from the date that the Operational Plan is agreed upon by the Executive Director and the host Member State. The EBCG may contribute to the Rapid Reaction Equipment Pool with its own resources and the Member States could no longer shirk their responsibilities by alleging that they are faced with an exceptional situation substantially affecting the discharge of national tasks (Article 39(7) Regulation 2016/1624). In accordance with Article 20(5) Regulation 2016/1624, the competent national authorities shall make available a minimum of 1,500 border guards to the EBCG for their immediate deployment in joint operations and/or rapid border interventions.

While the establishment of a Rapid Reaction Pool of 1,500 was a positive measure for emergency situations at the external borders, Regulation 2016/1624 did not manage to overcome the insufficient pooling of Member States’ border guards for concrete locations and concrete periods in regular joint operations. For this reason, Regulation 2019/XXX centres on designing a permanent, fully trained and operational Standing Corps of 5,000 Border Guards by 2021 and 10,000 by 2027 based on the distribution key set out in Annex I to Regulation 2019/XXX.

Pursuant to Article 55(1) Regulation 2019/XXX, the Standing Corps is composed of four categories of border guards:

-          Operational staff members of the agency (Article 56)
-          Operational staff seconded from Member States to the agency for a long-term deployment (Article 57)
-          Operational staff from Member States ready to be provided to the agency for a short term deployment (Article 58)
-          Operational staff from the Member States ready to be deployed for the purpose of rapid border interventions (Article 59).

The EBCG’s operational staff members is a new category of staff designed by Regulation 2019/XXX in order to ensure the effective management of the external borders. Regarding the other three categories of border guards, the Member States are obliged to second to the agency operational staff with the aim of ensuring at all times the availability of border guards to be deployed. However, the main novelty is not so much the establishment of the Standing Corps, but rather the fact that the Standing Corps deployed as team members (category 1) are conferred executive powers (Article 55(3) Regulation 2019/XXX) such as verifying the identity and nationality of persons, authorising or refusing of entry upon border check, stamping of travel documents, issuing or refusing of visas, patrolling or, registering fingerprints (Article 56(5) Regulation 2019/XXX). Importantly, Article 83 Regulation 2019/XXX states that the performance of executive powers by the EBCG’s operational staff members shall be subject to the authorisation of the Member State that is hosting the operation.

As the Meijers Committee and the European Council on Refugees and Exiles rightly noted, conferring executive powers to the EBCG’s operational staff members may breach the primary law provisions that regard the Member States as ultimately responsible for their own internal security and external border management. While the European Commission considers that Article 77(2)(d) TFEU provides the legal basis to bestow upon the EBCG’s staff members executive tasks if they are clearly defined to match the objective of the establishment of an integrated management system for external borders, Article 77(2)(d) TFEU shall also be read in light of Articles 72 and 73 TFEU.

Article 72 TFEU states that the competences that the EU enjoys in the AFSJ “shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. In other words, the EU cannot replace the Member States’ prerogatives of coercion and “EU agencies are therefore limited to supporting actions of national authorities, except (and only) to the extent that the Treaty confers express powers to act on such agencies” (see, PEERS, EU Justice and Home Affairs Law: EU Criminal Law, Policing, and Civil Law, Volume II, London 2016, 27). Relatedly, Article 4(2) TEU provides that “the Union (…) shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State”.

Furthermore, Article 73 TFEU indicates that “it shall be open to Member States to organize between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security”. Hence, while competences are shared between the EU and the Member States in the AFSJ (Article 4(2)(j) TFEU), Articles 72 and 73 TFEU limit the powers conferred to the Union in matters directly linked to Member States’ national sovereignty (Article 2(6) TFEU).

Taking Stock of the Novel Operational Powers

Currently, Article 8(2) Regulation 2019/XXX specifies that “the multiannual strategic policy for the European Integrated Border Management shall define how the challenges in the area of border management and return are to be addressed in a coherent, integrated and systematic manner (…)”. That is, the national authorities in charge of border management shall conform to the strategy adopted by the EBCG (Article 3(3) Regulation 2016/1624 and 8(6) Regulation 2019/XXX). Member States shall abstain from conducting “any activity which could jeopardise the functioning of the Agency or the attainment of its objectives” (Articles 8(2) Regulation 2016/1624 and 7(5) Regulation 2019/XXX). To this end, the EBCG is authorised to supervise the effective functioning of the national external borders, undertake vulnerability assessments, monitor whether a Member State is qualified to effectively implement the applicable EU legislation, and detect deficiencies in the management of the national borders.

The EBCG is thus conferred a supervisory and intervention role, which allows the agency to adopt quasi-binding measures for the Member States and to directly intervene in the territory of the Member State if such measures are not effectively implemented (Article 18 Regulation 2016/1624 and 43 Regulation 2019/XXX). In the event that a Member State neither adopts the measures recommended in its vulnerability assessment, nor requests/takes necessary actions in the face of disproportionate and sudden migratory pressure, the EBCG shall ensure a unified, rapid, and effective EU response so as not to jeopardise the functioning of the Schengen area. In this situation and according to Article 43(1) Regulation 2019/XXX, “the Council, on the basis of a proposal from the Commission may adopt without delay a decision by means of an implementing act, identifying measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures”.

Since the Council decision is adopted, the EBCG’s Executive Director shall, within two working days, draft an operational plan and submit it to the Member State concerned (Article 43(4) Regulation 2019/XXX). Once the operational plan is submitted, the agency’s Director and the Member State concerned shall agree on concrete actions to be adopted, including the deployment the necessary operational staff from the European Border and Coast Guard standing corps, for the practical execution of the measures identified in the Council’s decision.

Article 43(8) Regulation 2019/XXX requires the Member State concerned to comply with the Council decision by cooperating with the EBCG and taking the necessary actions to facilitate the implementation of the Council’s decision and the agency’s operational plan. However, these obligations are tempered when Article 43(9) Regulation 2019/XXX indicates that the European Commission may authorise the reestablishment of border controls in the Schengen area, provided that the concerned Member State neither executes the decision adopted by the Council, nor agrees with the EBCG’s Operational Plan within 30 days. Ultimately, the Member State concerned subject to the EBCG’s “intervention” shall expressly consent and agree with the agency in regards to the operational support that will be provided in its external borders as to ensure the functioning the Schengen area (Article 43(5) Regulation 2019/XXX).

Towards a European Corps of Border Guards?

Regulations 2016/1624 and 2019/XXX introduce the new EBCG as a guarantor of an integrated management of the European borders. In the European Commission’s own words, “by setting new standards and imbuing a European culture within border guards, the European Border and Coast Guard will also become a blueprint on how EU border management should be implemented”. Both Regulations 2016/1624 and 2019/XXX clearly strengthen the EBCG’s autonomy since the agency will depend to a much lesser extent on the specific operational secondments and support of the Member States. The EBCG should finally have its own equipment and operational personnel for its immediate deployment in joint and rapid operations. However, the most controversial, significant and novel operational powers included in Regulations 2016/1624 and 2019/XXX consist in introducing the agency’s capacity to “intervene” and granting executive powers to the agency’s staff members respectively.

On the one hand, Regulation 2016/1624, in order to avoid endangering the functioning of the Schengen area, entitled the EBCG to intervene if a Member State decides not to implement the measures recommended by the Executive Director to tackle the weaknesses detected at its external borders, or if the Member State does not request operational assistance in the face of disproportionate and sudden migratory pressure at its borders. However, it is debatable to what extent the agency is able to impose the application of certain measures to a Member State that is opposed to them. Regulation 2016/1624, and now Regulation 2019/XXX, do not provide much clarity in this respect, which is a common feature of those European Union legislative instruments in charge of regulating highly sensitive competences that require the support of national authorities.

On the other hand, Regulation 2019/XXX confers executive powers to the EBCG’s standing corps deployed as team members. While these executive powers may ensure a more effective, integrated and supranational administration of the European external borders, these activities also entail a significant, and difficult to control, degree of discretion that excessively stretch the Treaty provisions establishing the Member States as ultimately responsible for their own internal security and external border management.

Although it is true that the EBCG will assist more independently the Member States in matters closely linked to their national sovereignty prerogatives, the competent national authorities that vote at the Management Board will continue to tightly control the agency’s recently reinforced operational and supervisory functions. Only two representatives of the European Commission have voting rights in the EBCG’s Management Board and, the presence of the European Parliament is non-existent. The Member States have thus ensured control of the strategic operational powers and the daily management of the agency.

Consequently, despite the fact that the name of the EBCG may lead to misunderstanding and even the European Commission constantly refers to the agency as a true European system of guarding borders and coasts, Regulations 2016/1624 and 2019/XXX do not create a European Corps of Border Guards with full and exclusive competences in border management. Nevertheless, Regulations 2016/1624 and 2019/XXX do reveal how difficult still is to strike a balance between designing an effective integrated strategy for the management of the European external borders and the Member States’ resistance to confer operational powers directly linked to their core national sovereignty. It is still early to conclude if we are only facing another revision of FRONTEX’ initial mandate as a reaction to an unprecedented migratory pressure or, on the contrary, Regulations 2016/1624 and 2019/XXX constitute the definitive step that will facilitate in the future the establishment of a European Corps of Border Guards with full executive, implementation and decision-making powers in the management of the European external borders.

Barnard & Peers: chapter 26
JHA4: chapter I:3
Photo credit: www.bmi.bund.de