Author: Student posts

By Jaime, Jasper and Héloïse

Since the beginning of the war in Ukraine in February 2022, more than 6 million Ukrainian refugees have fled their home country, with the majority seeking refuge in the European Union; a number that can increase as the war rages on. Normally, Member States (MSs) and FRONTEX work together and cooperate to handle border control in the European integrated border management framework[1]. However, the gravity of the Ukrainian situation (the United Nations High Commissioner for Refugees going as far as to qualify it as ‘the fastest growing refugee crisis in Europe since World War II) has incentivized an EU-wide response. Consequentially, the Council, after a Commission proposal, activated the old Temporary Protection Directive (TPD) Directive 2001/55/EC. This is an extraordinary instrument for situations of large-scale influxes that pose risks, especially when the standard asylum system is overwhelmed by the demand caused by the arrivals of displaced persons.

At its center, Frontex’s role enters a new work dynamic that might lead it to struggles with legality and effectiveness in its duties. Therefore, how does this unique geopolitical and legal situation affect Frontex’s duties, refugees’ rights and the border control process, on top of the already established asylum system?

Frontex, what do you work for and through which means?

Frontex stands as the European Agency in charge of ensuring European integrated border management at the external borders (Art.1, Regulation 2019/1896). We will not discuss its legal mandate in depth; rather, we will describe its goals and actions to achieve them.

Put in a general way, FRONTEX aims at managing EU borders efficiently in full compliance with fundamental rights and increasing the efficiency of the Union return policy. In other words, it supports EU Member States and Schengen Associated Countries in the management of the EU’s external borders and the fight against cross-border crime. This translates more specifically into sub-objectives:

• Work as an expertise center with the knowledge and skills to carry out the sector’s activities with high ethical standards.
• Fight cross-border crime, human trafficking and people smuggling.
• Monitor and protect borders (as part of the assistance of national authorities in border checks); also, monitoring migratory flows.
• Cooperate at the International and EU levels.
• Ensure a safer Schengen space and smoother travel (ETIAS).

As for the multitude of tasks that FRONTEX carries out, we can highlight:

• Border surveillance and coast guard functions.
• Detection of document and identity fraud.
• Research and Innovation.
• Training.
• Return and reintegration.
• Risk analysis.

These goals and actions may sound straightforward, but in the complex reality that we call life, they encounter the human aspect of the border panorama. Such a dichotomy pushes the enforcers at FRONTEX to make choices, sometimes sacrificing the effectiveness of their duties in favour of a more humane or simpler and faster process choice. However, before we delve into that aspect, let’s quickly understand the other side of the coin: the Ukrainian refugees and their rights.

Temporary Protection Directive, what do you bring to the refugees coming from Ukraine?

The Ukrainian situation did not change the normal procedure and rights that asylum seekers enjoy when approaching an EU MSs’ border. However, as mentioned, it did activate the 2001 Directive for Temporary Protection (TPD) through the Council implementing Decision 2022/382.

This piece of legislation covers Ukrainian nationals residing in Ukraine who have been displaced on or after 24 February 2022 and their family members, as well as Stateless persons and nationals of third countries other than Ukraine who benefitted from international protection or equivalent national protection in Ukraine.

Under the Common European Asylum System, asylum seekers are obviously covered by general international pacts and conventions (the Geneva Convention on Refugees, which states that every refugee has a right to protection; the Charter of Fundamental Rights of the European Union). However, the TPD eases the process by granting the aforementioned refugees the following rights:

To all intents and purposes, it is, saving the distances of such basic comparison, a temporary EU citizenship pass that is almost free -for obvious reasons- of bureaucratic formalities. Furthermore, if any issues arise with the identification of a refugee who applies for the TPD, it would not translate into an automatic rejection since they will be directed to the regular asylum procedure. Sounds like a solid cover for the refugees. Nevertheless, we will take a sneak peek at how the system is working and how FRONTEX is faring so far.

On how race gets entangled with dichotomies.

As an example of effectiveness vs. legality, FRONTEX has proven that not everything is black and white when enforcing legislation at borders, especially in crisis situations. This is not, however, a critique of how FRONTEX’s performance, but rather an example of one task and objective (border control and detection of documents to ensure a safer Schengen) taking preference over refugees’ newly obtained rights.

Following this trend, some reports in May 2022 and June 2023 coincidentally refer to the differential treatment of refugees coming from Ukraine based on their race. To begin with, in 2022, due to the scale of the crisis, certain tasks in the countries that FRONTEX is supporting (for example, Romania and Moldova), mixed in nature.

As expressed by the Greek Minister of Migration and Asylum, Notis Mitarachi (right), in a public meeting with the Frontex Executive Director, 'Frontex is a security force not a welcoming committee'. Source: ASILE project.

Cracks in the system are noticeable: on one side, the TPD doesn’t cover nationals of other third countries and stateless persons without a valid permanent residence permit in Ukraine. It also leaves the interpretation of ‘family members of the refugees’ as a broad matter, up to the MSs to decide on it. On the other hand, MSs may extend the scope of protection to other categories of persons fleeing the war in Ukraine (Article 7(1) TPD) while the Commission asks MSs to ‘use their margin of appreciation in the most humanitarian way’. However, refugees from Ukraine (According to Human Rights Watch, sometimes people were prevented from boarding trains and buses based on their looks or race) who are not beneficiaries of temporary protection are being refused entry due to lack of the necessary documentation.

One must remember at this point that the choice of acceptance or refusal of safe passage into the EU remains in the hands of the MSs, not FRONTEX. Nevertheless, since FRONTEX acts in a supportive and cooperative manner for the most part, it is not unthinkable to understand that, as it has been reported, they have also proceeded to evaluate what a Ukrainian refugee under the TPD is and what is not; whether FRONTEX enforcers (along with the national ones) would prioritize strict and therefore safer Schengen exterior borders (the effectiveness), or they would soften the criteria and accept a greater number of people that, in the end, are trying to exit a war zone (the legality).

By Katelijn, Kyriaki, Nik & Tim

Introduction

The Court of Justice of the European Union’s (CJEU) ruling in the case C-281-22 (Parquet Européen) has been hailed as a legal triumph by the European Public Prosecutor’s Office (EPPO). Initially perceived as a validation of EPPO’s strategies for streamlining cross-border investigations, the decision was met with celebration. However, upon closer assessment of the facts of the case and questions posed of the EPPO’s jurisdictional reach, it becomes clear that the legal complexities surrounding the case are extensive. The Court’s final decision rested on their emphasis on mutual recognition when interpreting Article 31 and 32 of the EPPO Regulation. This revealed the Member States obligation to adhere to a balancing test between efficiency and fundamental right protection. The decision marks an important step in the future of transnational crime prosecution. Given that the case forced the CJEU to explain and clarify EPPO’s scope under European law, this blog aims to provide the much-needed analysis of its rationale and implications.

Assessing EPPO’s reach in Parquet Européen: cross-border customs fraud

Parquet Europeén case gave the CJEU the first opportunity to provide a judicial review of the jurisdictional and institutional frameworks of the EPPO. The case concerned an individual that was involved in cross-border criminal activity that was against the interests of the EU budget, which is the legal basis for action under the EPPO’s competence. G.K. and S.L., who are individuals and managing directors of B.O.D. GmbH, were prosecuted for importing biodiesel fuel into the European Union using false customs declarations with intent to avoid the levies and, therefore, causing EUR 1,295,000 in damages.

The Austrian European Delegated Prosecutor (assisting EDP) sought judicial authorization for searches and seizures at both the business premises of the companies involved and the personal residences of G.K. and S.L. in Austria. This investigation measure was provided by the German (handling) EDP who opened the investigation and required assistance from the Austrian EDP. EDPs are authorized representatives of the EPPO within every Member State that participates in the supranational framework. They are authorized to order searches, seizures, arrests and are an important institutional element within the decentralized EPPO structure. The measures ordered by the German EDP were executed in Austria and, following appeals from G.K. and S.L., ended up on the CJEU’s desk for a preliminary ruling. The Court was tasked with interpreting Articles 31 (cross-border investigations) and 32 (enforcement) of the EPPO Regulation to clarify the scope of which material aspects of the investigative measure should be examined and by which EDP.

An emphasis on Mutual Recognition and Mutual Trust

The Court of Justice expressed that, when interpreting Article 31 and Article 32 of the EPPO Regulation, consideration must be made to shared enforcement through judicial cooperation, i.e. Mutual Trust and Mutual Recognition. Mutual Recognition implies that one Member State has to ‘trust’ and accept that the other Member State has implemented the judicial decision within the scope of their national law without needing to check its legality while also acknowledging the differences in national law implementation. A State may only check when there is evidence or a strong suspicion of a serious risk of a fundamental right violation. The Court of Justice highlighted this through examples from the European Arrest Warrant and the European Investigation Order. They highlight this through the division of tasks and enforcement powers between the issuing and executing judicial authorities.

A closer inspection of Article 31 and Article 32 of the EPPO Regulation specifies where and how the tasks assigned to the competent authorities of the handling EDP and the assisting EDP should work according to their own national criminal law systems. The former is responsible for assigning the investigative measure and to provide a prior judicial review of their justification for adopting such a measure. The latter is only responsible for providing a judicial review based on judicial authorization on the enforcement of the assigned measure.

Has the Court made any sacrifice in the altar of the efficiency?

 The Court was clear: to have an efficient mechanism of cross-border investigations, in other words easier investigation and prosecution, the right way is to opt for the division of tasks regarding judicial authorization. The EPPO welcomed this approach, as it was also in accordance with the prior decision of its College.

There is no choice but to wonder whether this efficiency comes at a cost to the protection of fundamental rights. After all, a strong argument in favor of the full judicial review by the Member State of the assisting EDP, is the need to ensure the effective protection of fundamental rights. According to AG, the Regulation contains sufficient safeguards in Article 41 (1) and (2). However, the Court’s decision to limit the obligation for a prior judicial review in the Member State of the handling EDP, to the cases where the investigative measures interfere only seriously with fundamental rights, raises concerns regarding the sufficient protection of the person concerned in the case that this serious interference does not exist. This is because on the one hand the meaning of the ‘serious interference’ is not defined, which gives some discretion to the Member States, and on the other, it seems that when there is not this serious interference, and the Member State decides not to provide for a prior judicial review, the person concerned does not have another option, an ‘escape shelter’, to ask for a judicial review in the Member State of the assisting EDP. The fact that the system described in the EPPO Regulation does not provide for refusal grounds regarding the assigned measure makes this concern more intense. Finally, the fact that the EPPO is based on a decentralized system, makes the issue of fundamental rights protection more of an obligation for national law to uphold. However, given the inherent differences between the Member States, it becomes extremely challenging to ensure the right balance between the EU enforcement rules with the effective protection of fundamental rights.

By Elaine, Gersi, Joris and Leonoor

The Asylum Crisis 

Granted with a new mandate following the adoption of Regulation (EU) 2021/2303 on 19 January 2022, the European Union Agency for Asylum (EUAA) has transitioned into a full-fledged agency. Its goal is to improve the functioning of the Common European Asylum System (CEAS). As the successor of the European Asylum Support Office (EASO), the EUAA is tasked with upholding and promoting respect for fundamental rights within the European Union’s (EU) asylum system. 

Fundamental rights are particularly relevant in the CEAS. This is especially so, given that migrants and asylum seekers often find themselves in a vulnerable position. This can be due to for example their lack of resources, and poor living and material conditions. Following the mass influx of refugees on the EU’s shores leading to the asylum crisis of 2015, a reform of the CEAS was needed to create ‘a more humane, fair, and efficient European asylum policy’. In light of this, the EUAA has implemented a more robust fundamental rights strategy. This strategy contains several safeguards.  

One of these safeguards is the new Fundamental Rights Officer (FRO). The FRO portraits the enforcement of, and adherence to fundamental rights within the EUAA. In this blog post it will be argued that, as follows from the 2022 Ombudsman initiative, the FRO adds value to the workings of the EUAA. This is because the FRO aids the Agency in several ways within the field of fundamental rights. 

François Deleu: the man for the job 

Following the new fundamental rights strategy, Article 49 Regulation 2021/2303 requires the Management Board of the Agency to install a FRO. The FRO is appointed to design a new Fundamental Right Strategy, manage a new complaints mechanism, and contribute to the Agency’s Monitoring Mechanism. Appointed in May 2023, François Deleu is the first to take on this task.  

“I will develop and uphold a robust Fundament Rights Strategy that will build on what is already in place, ensuring that the respect for fundamental rights is central to all the Agency’s growing activities” ~ François Deleu 

While the FRO works independently, Deleu collaborates with the Agency’s Consultative Forum of Civil Society Organisation to create the new Fundamental Right Strategy. The Consultative Forum has an advisory function: it is established to exchange information with relevant civil society organisations and bodies operating in the field of asylum. This includes the European Union Agency for Fundamental Rights and the European Border and Coast Guard Agency (Article 50 Regulation 2021/2303). Together, the FRO and Consultative Forum aim to ensure that the Fundamental Right Strategy is properly reflected in the Agency’s workings. They also work towards preventing breaches of the Charter of Fundamental Rights of the European Union (Charter). 

The FRO is designed as a response to the 2019 Ombudsman decision on maladministration in the practice of the EASO. The FRO therefore manages a complaints mechanism created for individuals who may have suffered a violation of their fundamental rights by an expert employed by the EUAA. The FRO moreover contributes to the Agency’s Monitoring Mechanism of Member States’ asylum systems. The FRO does so by ensuring that this mechanism takes fundamental rights concerns into account.  

Organisational structure of the EUAA 

A Slow Start… 

Following the 2021 revamping of the EUAA framework, the European Ombudsman opened a new strategic initiative. In this initiative, the Ombudsman posed 16 questions to the Agency. This included questions on how the EUAA complies with its fundamental rights obligations and how it ensures accountability for potential violations. These questions related to the renewed protection offered by the 2021 Regulation. It therefore raised attention to the FRO. What followed was a back-and-forth correspondence between the Agency and the Ombudsman.  

It should be mentioned here that the Ombudsman does not issue legally binding decisions. However, its reports are valuable in assessing the Agency’s compliance with its fundamental rights obligations. This follows from its mandate of investigating ‘instances of maladministration in the activities of the Union institutions, bodies, offices or agencies’ (Article 228(1) TFEU).  

At the time of the investigation, Deleu had not yet been appointed. One of the questions therefore rested on when the Agency anticipated this position to become operational. In the Agency’s initial reply of 11 July 2022, it walked through the appointment procedure for the FRO. The reply highlighted that certain steps like kick-starting the selection process were taking longer than expected. This could be owed to the “extensive consultations” held with all involved stakeholders. These consultations were needed to ensure that the necessary attention to detail was afforded in the selection of candidates. 

The Ombudsman later expressed disappointment in February of 2023 that the position remained vacant more than a year after the 2021 Regulation came into force. It urged the Agency to fill this position as “a matter of urgency”, because of the need to operationalise the Agency’s other fundamental rights mechanisms. In this way, the FRO can be seen as the catalyst for all EUAA fundamental rights mechanisms.  

 …But a Promising Future 

As mentioned, the FRO position was eventually filled in 2023. At the time of writing, Deleu now holds office for nearly a year. So, what can be said for this new development?

At the end of June 2023, the Agency replied to the Ombudsman observations. In the reply, the Ombudsman was informed of this long anticipated appointment. Also, it was stated that the fundamental rights strategy was expected to be adopted in March/April 2024. At the time of writing, it can therefore be expected any day. 

Additionally, the response addressed recommendations for the FRO to review all operational plans signed between the Agency and EU Member States. It highlighted that Deleu had already reviewed plans with Spain, Bulgaria and Lithuania since entering office. Here, the value of the FRO can be seen through its direct involvement in scrutinising Member State plans. 

In July of 2023, the EUAA also published its Annual Report about asylum in the EU. In the Annual Report, it discusses its newly developed escalation process. This process is outlined under Article 18(6)(c) of the 2021 Regulation. It stipulates that the Agency’s Executive Director can suspend or terminate asylum support teams in a Member State that is violating fundamental rights or international protection obligations. This is done after consultation with the FRO. 

An overview of the EUAA's timeline (made by the authors of this post)  

A Well-Rounded Appointment 

As a final note, the recruitment process’ emphasis on maintaining the FRO’s independence towards the Executive Director should be highlighted. This is important due to the weight placed on independence in the FRO’s mandate. The selection committee for the post therefore included external stakeholders, like the European Commission Directorate-General for Migration and Home affairs. So, while the position is appointed internally, individuals from outside the Agency have a say in deciding the next FRO. Based on the selection procedure, a list of candidates is sent to the Management Board, which ultimately takes the final decision. Ultimately, it is therefore an internal decision with external input.  

The importance attributed to the FRO in the Ombudsman initiative has now been shown. The office’s essential role in upholding the new framework’s mechanisms is also evident. Hence, the FRO can be seen to hold great added-value for the Agency, with further-untapped potential. 

By Anouk, Katharina, Sabina, and Soraya

It has become nearly impossible to watch the news, open social media, or even attend a social gathering without a person mentioning “crypto” (cryptocurrency). With the emergence of Bitcoin and other cryptocurrencies, the financial world has fundamentally changed. This blogpost will focus on the impact of cryptocurrencies on money laundering practices, including the problems that this development has caused for law enforcement. Even for the new EU Agency AMLA, it remains to be seen whether they have the resources to effectively investigate these new cases of money laundering. Cryptocurrency uses blockchain technology, which provides for a high level of anonymity, making investigations into money laundering cases more difficult when cryptocurrency is involved. This will be explained after a brief overview of money laundering is provided

Money laundering

Money laundering has been around for over 3000 years. It started when physical money was still the only relevant form of payment, but then evolved into a large and intricate digital system. Given its impact on the financial system and its close link to organised crime, this development in money laundering is in need of proper regulation. Investigation of money laundering cases can prove to be difficult, especially when the traditional methods of investigation are no longer sufficient. These methods include undercover police informants, reports on suspicious activity by companies, and the collapse of a company leading to a lot of information to be exposed. Right now, these methods do not suffice due to the anonymous and decentralised character of blockchain, which will be explained in the next section.

How does cryptocurrency work?

Let’s circle back to cryptocurrencies. Cryptocurrencies are officially named “virtual decentralised currencies” by Europol. In this name there are three elements: virtual, decentralised, and currency. It is a payment method that only exists in the digital realm, it does not have one centre where it is managed and data is kept, and it serves as money. The decentralisation of currency is the largest change in our understanding of the financial world. Usually, transactions are tracked by a bank and there are data controllers that check whether there is suspicious conduct. When this is the case, it means that finances are centralised. Cryptocurrencies, however, use the decentralised blockchain technology. This means that the transaction data is not found in one central database controlled by, for example, a bank.

Bitcoin was one of the pioneers in blockchain technology. This technology ensures an incredibly high level of anonymity when making transactions using cryptocurrency. For this reason, it is difficult to trace transactions. There are bitcoin users that use the technology for regular purposes or as an investment, but it has also made it easier for criminals to make transactions in illicit practices. It is difficult for law enforcement agencies to trace down transactions when blockchain technology is employed. But what is blockchain and why is it so anonymous?

 
Visualization by Soraya (2024)

In the image above, you can see the way in which blockchain operates. You start with block 1, the first transaction. This block contains a small collection of data: a time stamp, the transaction information, its own hash (a sort of personal “code”) and the hash of the previous block. Of course, this is block 1 so there is no previous block. In block 2, you see the same forms of data, including the hash of block 1 under D. As can be deferred from this, you can find a previous block via its hash, but you can’t go forward. The transactions are out in public, but the information of the person behind the transaction can only be found by the person that has the “private key” to the transaction. You can see this private key as a secret password that is needed to unlock the personal information behind the transaction, such as a passcode.

What does this mean for the authorities?

Now that the technology has been illustrated, its implications for law enforcement must be explained. Blockchain counts for a high level of anonymity. In a society where data is collected everywhere and all the time, there is a large demand for platforms where people feel a little less “watched”. However, it is also noteworthy that this anonymity can harm criminal investigations into money laundering to a large extent. Moreover, tackling this challenge is like trying to solve a gigantic puzzle, especially when you consider that one chain can involve thousands of transactions.

A proposal for the establishment of an authority that concerns itself with money laundering (AMLA) has been brought to life by the EU (European Union). One of its goals is to improve the enforcement system regarding money laundering, since it was not one comprehensive system before. If the providers of cryptocurrency services are established as entities that fall under the scope of AMLA’s direct enforcement powers, AMLA would be competent to investigate these entities. However, it is still unknown how AMLA will attempt to do this.

This video gives a short explanation of why AMLA is introduced. 

Source: EU Finance: AMLA – the new EU Anti-money laundering Authority 

What can AMLA do about this issue?

Sufficient investigation into money laundering where cryptocurrency is involved requires blockchain technology to be used by the investigation team in combination with AI tools. However, the AMLA proposal does not explicitly address whether AMLA possesses the resources for employing such innovative tools. It is also not known whether AMLA is allowed to employ AI to investigate the books of the cryptocurrency provider. In recital 6 of the proposal, it is stated that AMLA must combine ‘independence and a high level of technical expertise’. However, there is no mentioning of this technical expertise when the investigative powers of AMLA are discussed further on in the proposal.

It is not known how AMLA is planning to tackle these issues, since it is merely in its draft phase. However, it is important that AMLA considers the inclusion of investigative powers regarding cryptocurrencies explicitly, since it is unclear whether sufficient measures are taken to combat the issue of money laundering using cryptocurrency. Resources regarding computing power and expertise must be created for AMLA to effectively investigate this issue. The effectiveness of AMLA remains to be seen, but its creation is a step towards a more sufficiently regulated and secure cryptocurrency landscape.

By Ariana, Beatrice and Elsa

Due to increasing global mobility and security challenges, Europe has reinforced its border management strategies. The European Border and Coast Guard Agency, commonly known as Frontex, is essential to this policy. Frontex assumes a lead position in managing the European Union’s external borders. On this subject, a new system will be implemented: the European Travel Information System (ETIAS). This new system contributes to fortifying the external European borders, and Frontex has a significant role in its implementation.

Photo: European Travel to Become Payable: EU Introduces ETIAS. Source: Collage The Gaze

The European Travel Information and Authorization System (ETIAS): a brief explanation 

What is ETIAS?  

ETIAS was introduced by Regulation 2018/1240. This new European travel authorization system will be implemented in 2025. It will be completed via an online application that will cost €7 for people aged 18 to 70.  

This travel authorization will impose on travelers the obligation to provide personal data, including the level of education, occupation, the address of the first intended stay, and prior convictions for criminal or terrorist offenses. This data will assess the risk of the threats above and create an ETIAS watchlist concerning people at risk of committing or having committed a terrorist offense.

This new electronic authorization system is intended to apply to visa-exempt visitors from third countries traveling to a Member State of the European Union or the Schengen area (except Ireland) for less than 90 days.  

European Travel Information and Authorisation System (ETIAS): In a nutshell

What is the goal of implementing ETIAS?  

The European Commission aims to strengthen controls at the external borders to preserve freedom of movement within the internal market and, more generally, the Schengen area.  

The establishment of ETIAS answers several objectives. This system has been designed to reinforce security at the borders, especially against terrorism and illegal immigration. By conducting security risk assessments of visitors before their arrival at the border, the goal is to prevent potential threats, even potential epidemic threats, from entering the Schengen area.

Moreover, this system aims to support the objectives of the Schengen Information System (SIS), the platform Schengen area members utilize to exchange real-time data on individuals and objects of interest. ETIAS will contribute to preventing, detecting, and investigating terrorist offenses and serious criminal activities.

Finally, the other purpose of ETIAS is to streamline border management to facilitate legitimate travel.   

How will ETIAS work?  

ETIAS is an automated IT system that performs tasks or processes automatically without continuous human intervention. ETIAS will use artificial intelligence (AI) to analyze applications from third-country nationals wishing to stay in the Schengen area for less than 90 days. Nationals from the 60 countries covered by ETIAS will have their applications automatically analyzed by various European databases, such as Frontex or Europol, to ensure they do not constitute a threat. Applicants will mostly receive an answer in less than an hour, but it could take up to a month. Frontex has stated that, on average, 97% of applications would receive rapid authorization.

ETIAS, THE ELECTRONIC TRAVEL AUTHORISATION FOR EUROPE

 The Role of Frontex…

Frontex, created in 2004, is one of the most critical European agencies. Its relevance has grown over the years and, with a budget of over 845 million euros in 2023, plays a crucial role in enforcing EU borders policy. This European agency is responsible for managing the external borders of the Schengen area and providing support to member states in their efforts to control and secure these borders. Therefore, it is logical that Frontex plays a pivotal role in enforcing ETIAS.  

…in enforcing ETIAS

According to Article 7 of the ETIAS Regulation, Frontex is responsible for setting up and operating the ETIAS Central Unit. This Unit is within Frontex’s organization and manages ETIAS.

Frontex

First, concerning online application provided by the travelers. During the processing of the data sent by the applicant, if there is a hit, the ETIAS Central Unit will have the responsibility to cross-check the information of the person in question against the information contained in the Central System. Information encloses in the Central System include other EU information systems, Europol, and Interpol data. This will allow the Central Unit to determine whether the applicant is welcome in the Schengen area.

Frontex is further tasked with performing audits of the processing of applications to safeguard fundamental rights in this process. In doing this, Frontex agents will have to examine how the continental Unit manages online applications’ fundamental rights, such as the right to privacy and non-discrimination. The ETIAS central unit must respect these rights throughout the data analysis process but also subsequently regarding their storage.

Frontex officials are responsible for ensuring the data entered in application files is up to date. The Central Unit is tasked with publishing an annual activity report containing statistical data on ETIAS’s functioning and general information on its activities, activities, and concerns. The report is made to the European Parliament, the Council, and the Commission.

One of the most critical tasks of Frontex is that it is charged with defining, revising, and deleting, as well as assessing risk indicators to ensure the security of Europe’s borders, according to Article 33 of the ETIAS Regulation. These risk indicators are listed in Recital 27 of the ETIAS regulation and relate to threats regarding security, illegal immigration, or high epidemic risks. The risk indicators are based on the factors provided by the ETIAS online application, which include nationality, residence, education, and employment status. Those criteria have been chosen to avoid discrimination. Applications will be automatically checked against this list of risk indicators. If a hit is triggered, the Central Unit cross-checks this(/these) hit(s) against other databases and, depending on the result, either issues a travel authorization or refers the case to a competent Member State authority, who will manually process the information and either grant or refuse the travel authorization. This meticulous process ensures that ETIAS balances security concerns with respect for individual rights and non-discrimination principles.

By Brenda, Giulia and Ot

Since unfreezing 10,2 Billion on EU funds for Hungary, the Commission has been the center of attention. Initially frozen because of rule of law concerns, the funds were unblocked just before the commencement of an EU summit about the possible accession of Kyiv and new aid for Ukraine. The Hungarian leader, Prime Minister Orbán, openly stated his eagerness to block these moves. The European Parliament, unhappy with the Commission’s actions, is preparing to start proceedings against the Commission stating: “the rule of law can not be traded for deals with Orbán”. The sudden withdrawal from the Commission raises questions whether the Commission is the institution fit to guard the rule of law. Former CJEU AG Miguel Maduro puts forward the Fundamental Rights Agency (FRA) to take over the enforcement and monitoring functions.

This blogpost looks into the possibility of FRA getting more responsibility in enforcing the rule of law. Besides showing the Commission’s enforcement gap in EU law, FRA’s fitness, bolstered by its independence and expertise, to partially take over the job is also argued. Finally, we argue that FRA could fill the enforcement gap if given an alarming and more extensive advisory role and maybe even, in an ideal world, the power to request the Commission to initiate an infringement procedure.

Orbán threatening to blow up EU’s Ukraine policy

The Enforcement Gap

Since the Commission has two major roles, one as a political actor and one as Guardian of the Treaties (Article 17 TEU), problems arise with performing both roles equally and effectively, i.e., there is an ‘enforcement gap’. Let us take the backsliding of democracy in Poland as an example to illustrate this.

Since the end of 2015, soon after their parliamentary elections, Poland started to repeatedly infringe upon EU law. It went from bad to worse, and the Polish government systemically failed to comply with the rule of law, as laid down in Article 2 TEU. The major criticism of the Commission’s actions is its failure to initiate infringement procedures, as the first procedure was only initiated in 2018. It took the Commission until that time to acknowledge the ineffectiveness of its ongoing dialogue procedures. Even after this acknowledgement, the Commission still only started less than one infringement procedure each year. Finally, after a clear ruling of the CJEU on the rule of law breaches of the Polish government, the Commission did not ask the CJEU for a daily penalty payment, but adopted an ineffective additional letter of formal notice. Therefore, in addressing the rule of law concerns in Poland, the Commission has done too little, too late.

This hesitancy in enforcing EU law, can be explained by the need of the Commission from the early 2000s onwards to gain more support from Member States’ governments for policy-making in the EU. Tension arose between the Commission’s dual roles, partially giving up its duty as Guardian of the Treaties.

European Parliament brings Commission before CJEU

FRA to the rescue

Empowering FRA with enforcement powers could significantly enhance its powers in the fight for justice and democracy within the EU. Picture this: a fundamental rights protector, free from political strings, that swoops in to ensure that Charter rights are upheld in practice.

Article 16 of Regulation 168/2007 sets the stage: FRA shall operate free from any political influence and act in pursuit of the public interest. In essence, the agency can provide impartial assessments of rule of law situations across the EU and is able to check that the spending of EU funds is Charter-compliant. In other words, its independence brings an added value to safeguarding Community fundamental rights policies when compared to “in-house” implementations by Commission departments.

But FRA’s capability does not stop here. Indeed, the agency’s mandate is intertwined with Charter rights. This gives FRA expertise in positive obligations under international and EU human rights law, legitimizing it to effectively investigate and act upon violations of the rule of law to ensure that the integrity of the spending of EU funds is respected. FRA is thus suited to provide tailored support during the programming period – a timeframe during which the Union allocates funding for various programs and initiatives, followed by the Member States developing operational programs outlining how they intend to use such funds – to identify and address potential violations of fundamental rights before funds are allocated and projects are implemented.

FRA bridging the enforcement gap

FRA could contribute to bridging the enforcement gap by taking on an alarming and advising role. Within its current role of providing expertise, data and analysis on fundamental rights issues, a system can be set up in which FRA could use its knowledge to spot possible infringements and then actively alarm and move the Commission to address these infringements. Where there’s smoke, there’s fire.

Extending FRA’s advising role to the infringement procedure of Art. 258 TFEU could make it an independent mediator in the administrative phase of the procedure, mitigating the political influence. As an expert of fundamental rights, FRA could take over the dialogue with the Member States, report on the circumstances and advise the Commission on reasoned opinions to send to the Member States with an ultimatum to fix the situation. Member States would find it imperative to heed FRA’s reports, since they will directly influence the Commission’s decision to initiate proceedings. Also, the Commission can refer to independent reports of FRA when confronted with an angry Member State. Since the Commission is the one to engage in dialogue, the chance of being politically influenced is nullified: a win-win.

Lastly, in an ideal world, FRA would have the power to initiate infringement procedures before the Commission. As is shown, the Commission has initiated infringement procedures way too late when confronted with the rule of law concerns in Poland and Hungary. An independent agency like FRA could nudge the Commission with its voice of reason, to prioritize upholding democratic values across the Member States without delay.

By Yanfui, Ana, Clara and Sebastian

As the European Union agency for “European integrated border management”, Frontex is the centre for border control activities at the EU’s external borders, sharing intelligence and expertise with all Member States and with neighboring non-EU countries affected by migratory trends and cross-border crime. It plays an active role in return operations. Under Article 3 of Directive 2008/115, return decisions are taken when the stay of the third-country national is declared illegal, which occurs when the person does not fulfill the requirements of that Member State, not carrying the required visa or residence permit.

Regarding the critics to Frontex, according to a report from 2020, Frontex faces two main challenges concerning pushbacks: accountability and transparency. These issues have become increasingly visible in recent years. Nevertheless, the protection of Fundamental Rights has still not been sufficiently improved. This is particularly paradoxical, as this topic has been the subject of countless publications in the legal literature and the EU legislator is also aware of the problematic situation, given that the protection of Fundamental Rights is mentioned more than 230 times in the corresponding Regulation. In the context of this blogpost, we will show where the greatest deficits exist regarding transparency and accountability, and thus where the greatest need for legislative action exists. To wake up the legislator and ultimately to push the legislator to real sustainable action, we will suggest that the Ombudsman could take on a decisive role. 

When Borders Become Barriers: The Unintended Consequences of Europe’s Approach to Border Control

In February, the sinking of a vessel carrying 59 refugees from Turkey to Italy was blamed on Greece. With regards to Frontex, it has cooperated in protecting the coast, which made refugees decide on circumventing the Greek islands and taking the more life-risking approach by attempting to reach Italy. Consequently, both Greece and Frontex have been accused of taking part in those deaths, and we still lack information on their participation in this incident during their border protection activity.

Unfortunately, this is only one of numerous examples in which migrants coming in seek of asylum are subject of violence, detained, stripped, confiscated of their belongings, and pushed back to their territory.

No transparency in reality

Despite being an extremely regulated agency, the observable deficits in Frontex’s way of functioning raise doubts about its role as a border control agency. The lack of transparency and accountability in Frontex’s activities has been subject to debate since the Agency was created, with several calls demanding a solution to this issue at a national and European level, with no significant changes to this date.

When Frontex does not meet its transparency obligations, holding it effectively accountable for its actions is further complicated by the non-accessibility of all information. Even though a transparency mechanism can be found in Regulation 1049/2001 -to which Frontex is subject to- access to Frontex’s documents remains highly restricted on account of the nature of the information they contain. This cult of secrecy is further increased by the requisites prescribed in the Regulation: To access Frontex’s documents the person must be a citizen of the European Union. This reduces many potential information requests, as those primarily affected by Frontex’s actions do not meet this requirement.

Moreover, from an accountability point of view much has been reviewed and promised yet no noticeable changes can be seen. Being an EU Agency, Frontex is bound by the Charter, which consequently shields migrants from refoulement and collective expulsions. It also prohibits the conduction of push backs, as well as any sort of participation in them and the omission of acting against them. At first sight, the law is clear, and the system should work. Yet it is still extremely complicated to hold Frontex accountable when it does not comply with said obligation, even when tools created with significant effort such as the ‘individual complaint mechanism’ exist. The reason is not surprising: Frontex’s is formed by multiple actors from quite diverse backgrounds which makes it particularly challenging to allocate responsibility in case of wrongdoing, specifically in the context of pushbacks.

Enhancing political attention as the way forward in addressing the non-accessibility hurdle

The main changes needed to improve accessibility are more or less obvious. The right of access to information must be made more effective by also granting it to non-EU citizens. In addition, the requirements for refusing the right to information on public security grounds must be made more stringent, so that this straightforward way of denying access is no longer available. Since the EU legislator, despite frequent and repeated criticism, has so far not genuinely chosen to strengthen the fundamental rights protection at the expense of less effective border protection, the question arises how the legislator can be pushed to such legislative changes.

For this purpose, the European Ombudsman should be involved to a greater extent by receiving complaints about Frontex activities. The broad mandate from Art. 228 (1) TFEU would allow the Ombudsman to deal with such complaints, to make them public and to enter into an accountability dialogue with Frontex. It is true that here, too, only natural persons residing within the EU can file a complaint, which will probably never be the case in practice regarding persons who have been pushed back. However, legal persons located within the EU can also file corresponding complaints and thus draw the attention of the Ombudsman to deficiencies in the work of Frontex at the border. Such legal persons are non-governmental organizations (NGOs), most of which have a registered office within the EU. These could serve here as a spokesperson for the third-country nationals who have been pushed back. The Ombudsman can then forward the submitted complaints to the European Parliament through so-called special reports, which would ensure that the issue is debated and thus gains political attention.

Even if an EU institution would not be obliged to comply with the Ombudsman’s recommendations, it can be pressured towards compliance through public ‘naming-and-shaming’. Even if immediate changes would fail to materialize due to the lack of far-reaching powers of the Ombudsman, the Ombudsman’s activities and demands could prepare the ground for later secondary legislation changes by increasing political pressure by highlighting the deficiencies to the public. The Ombudsman’s ability to persuade the legislator to amend the legislation has been proven, for instance, by the introduction of the complaint mechanism in Art. 111 of the Frontex Regulation, which was ultimately also based on the suggestion of the Ombudsman.

By Juliette, Ahmed, Katrin and Tom

(Source: European Commission, Migration and Home Affairs, available at: https://home-affairs.ec.europa.eu/agencies_en)

The shared administration, intended as the division of tasks between national authorities and Frontex regarding the protection of the European external borders, has changed over time with the enlargement of Frontex’s powers. This has raised issues of responsibility when a Fundamental Right (hereinafter FR) violation occurs. One possible solution for Frontex to escape this issue is the use of Article 46 of Regulation 2019/1896 (hereinafter the Regulation). We argue that this Regulation lacks a real distinction of responsibility between Frontex and the national authorities. This lack is then profitable to violations of FR because it is hard to sanction and prevent violations if it is not possible to correctly identify a “guilty party”.

Evolution of Frontex’s enforcement powers and shared administration

The recent evolution of Frontex, the European and Coast Guard Agency (EBCG) by the most recent Regulation illustrates a remarkable development in the EU’s institutional landscape with the transformation of Frontex into a new type of organisation equipped with direct decision-making powers. In fact, while the original operational mandate was limited to the planning, coordinating and evaluating the operations, this all changed with the new Regulation which created the permanent staff of the Agency whose executive powers are exercised under the command and control of the Member State hosting the operation. The permanent new staff of Frontex is a new resource to support national border management authorities in exceptional circumstances and in day-to-day operations. This novelty changed the very basic principle and former division of tasks between the Agency and the Member States, according to which the implementation of EU policies, such as the application of the Schengen Borders Code rules, was strictly the responsibility of national border guards or border police.

This increase in Frontex’s mandate and the modified shared administration do not include a specific accountability system between the national authorities and Frontex when the operations are wrongly conducted. The only important addition of the new Regulation is the Article 46 which provides Frontex with the possibility to suspend, terminate or not launch activities especially when there is a risk of a FR violation. This possibility exists when the dignity of its own actions, in the sense of upholding FR, cannot be guaranteed adequately. Frontex has already invoked Article 46 once in the case of Hungary in 2021. While this was an important step, the invocation only occurred after five years of pressure from the Fundamental Rights Officer and a CJEU ruling. This phenomenon clearly shows that Frontex is not prone to withdraw its actions by invoking Article 46.

Fundamental Rights violations

Frontex is required by law to ensure that human rights are upheld during operations under both EU and international law. Nevertheless, OLAF discovered that Frontex repeatedly took active actions to ensure that the human rights crimes that were occurring would not be seen, documented, investigated, or accounted for. More specifically, it demonstrates how Frontex misled the European Commission and Parliament as well as how the Fundamental Rights Officer was side-lined and internal reports on human rights abuses were distorted. Frontex was aware of FR violations by the national authorities and sometimes even participated in it. The EU Agency failed to address and effectively follow up on these violations as to prevent similar foreseeable violations in the future.

Some authors have proposed that Frontex should be held responsible both directly and indirectly, especially concerning the misuse of Article 46 when FR are violated. However, the CJEU has not ruled on this matter yet.

Lack of effective responsibility mechanism under the Regulation of 2019

Hence, while direct enforcement powers of Frontex have grown, methods for holding Frontex accountable and responsible for its actions and violations of FR have not. In the existing system, any wrongdoing by Frontex can effectively be concealed due to its reliance on national authorities who oversee the actions of Frontex’s staff during ground operations.

However, even if Frontex is dependent on the command of national authorities, this does not alleviate the European and Coast Guard Agency from the obligation to respect FR as prescribed in Article 3, paragraph 2 of the Regulation.

Also, as stated above, Article 46 gives the possibility for Frontex to suspend, terminate or not launch activities especially when there is a risk of FR violation. Nevertheless, notwithstanding the numerous reports filed by the Fundamental Rights officer, Frontex did not make use of Article 46 in the 2021 crises affecting the eastern borders of the EU. Frontex was aware of the ground-breaking legislative amendments of the alien’s laws in Lithuania at the time of their deployment. As a matter of fact, these amendments were in complete breach of the European Convention of Human Rights (ECHR) considering that they introduced limitations on accessing asylum procedures; extended the use of detention (up to six months); and restricted individuals’ access to information, interpretation, medical care and legal aid. It is only in July 2022, following a CJEU’s decision which concluded that the above-mentioned amended Lithuanian migration and asylum laws were in breach of EU law, that Frontex decided to terminate its operations when it could have triggered Article 46 much earlier.

It can thus be argued that the lack of real distinction of responsibilities between Frontex and the national authorities, combined with the practice of Frontex to not rely on Article 46, further worsens the underlying tension between the protection of FR and the protection of the external borders of the EU.

Blog post by Nicole, Thirza, Enes

As reiterated by President von der Leyen in her 2021 State of the Union speech: “The EU needs to ensure that every euro and every cent is spent for its proper purpose and in line with rule of law principles. EU funds are not allowed to seep away into dark channels”. If you have wondered which EU bodies are at the forefront of the protection of the Union’s financial interests (PIF) and how their cooperation works, you have come to the right place. In the almost two years the EPPO has been operational, the two Offices have had the first chance to interact and cooperate, as prescribed by their respective Regulations. In this blogpost, we outline the current updated EPPO and OLAF operational cooperation and its future possibilities to find out if teamwork can make the dream work.

PIF: A new player in the game

For more than 20 years, the European Anti-Fraud Office (OLAF), an administrative investigatory body with the mission to “detect, investigate and work towards stopping fraud involving European Union funds”, has been a preeminent actor in the PIF fight. However, in 2017 a new player entered the scene, the European Public Prosecutor’s Office (EPPO). For the first time in EU history, an independent European body has the power to investigate and prosecute PIF crimes (see Figure A). As a result, we have two EU bodies with different sets of powers but with one common goal in mind: “to better protect EU taxpayers’ money and to bring all crimes against the EU budget to justice as quickly as possible.”

Figure A: Missions and Tasks of EPPO. Source: https://www.eppo.europa.eu/en/mission-and-tasks

OLAF and the EPPO in a nutshell

OLAF’s mandate encompasses investigation of fraud and corruption involving EU funds and serious misconduct within the European institutions as well as development of anti-fraud policy for the Commission. OLAF carries out both ‘internal’ or ‘external’ investigations, depending on whether or not they are conducted within institutions, bodies, offices and agencies of the EU (IBOAs). While conducting its investigations OLAF cannot exercise any coercive powers, so it has to rely on cooperation with national competent authorities. At the end of these investigations, OLAF cannot sanction the suspect or bring them to court. Instead, it can draw a report, binding on the IBOAs but not on national prosecutorial or judicial authorities of the Member States (MSs), and issue recommendations. In practice, the indictment rates following OLAF’s recommendations are low and vary significantly among MSs. That is because in some jurisdictions national prosecutors tend to prioritise the national aspects of cases, neglecting their European dimension, for instance, due to their lack of expertise.

In contrast, the EPPO has criminal powers through which it can investigate and also decide to bring a case to judgement before competent national courts until it has been finally adjudicated. Moreover, since the EPPO’s legal basis, Art. 86 TFEU, allows for the mechanism of enhanced cooperation, MSs could choose whether or not to join. Therefore, currently the EPPO counts only 22 “participating” MSs.

The implementation of these powers creates a complex legislative and organisational structure (here you can find a full explanation). Despite being a single office, the EPPO is composed of a central and a decentralised level, where different authorities play a role (see Figure B). As for the legal framework in which the EPPO operates, the EPPO Regulation provides only minimum rules, referring often to national laws especially in regards to its investigatory powers.

The EPPO and OLAF cooperation: ensuring no case goes undetected

The EPPO’s creation has definitely marked the transition into a new era for European enforcement in the area of PIF. However, in order for its potential to be fully exploited, the “new player” will have to play alongside its well-experienced team-mate OLAF. That’s why, expanding on the few ad hoc provisions contained in their respective Regulations, in 2021 OLAF and the EPPO further specified their obligations to cooperate by signing a Working Arrangement (WA). Considering this combined legal operational framework, let’s describe the most important aspects. First, in line with the principle of non duplication, OLAF needs to terminate its investigation if the EPPO is conducting one into the same facts. However, OLAF may support the EPPO in its investigations by means of operational, forensic, and analytical expertise and tools. Importantly, when providing this support, OLAF needs to respect the stricter criminal procedural safeguards contained in the EPPO Regulation. Additionally, under its own initiative or upon the EPPO request, OLAF can conduct parallel complementary investigations to address essential aspects of the protection of the EU’s financial interests, such as speedy recovery or the adoption of administrative precautionary measures.

Moreover, the EPPO and OLAF can mutually exchange information, which enriches the capacities of both offices, enabling them to avoid duplicate investigations, and streamlining their operations. Additionally, the WA sets up a system for the reporting and transmission of potential cases. Since the mandates of OLAF and the EPPO do not fully overlap, this exchange is crucial to ensure that illicit activities detected by the EPPO in non-participating MSs do not escape OLAF’s investigation. Moreover, it guarantees that the EPPO is informed about any criminal offence falling under its mandate even when it was first detected by OLAF. In short, the exchange of both information and cases ensures that the EU’s resources are spent effectively and that every case is tackled by the appropriate authority.

Towards a joint enforcement mechanism?

A closer look at the envisioned OLAF and the EPPO cooperation supports the conclusion that the EU legislator aimed to create more than just two separate EU agencies. On the contrary, it seems that this could be the first step towards a comprehensive joint EU law enforcement system (see Figure C). Indeed, an integrated end-to-end cycle starting with OLAF investigations and ending with the EPPO indictments could be the future of the PIF enforcement in the EU.

Years of cooperation will be necessary to find out if teamwork will make this dream work or if it will remain but a distant dream. So far, it seems that both offices got off on the right foot and the EPPO 2022 annual report enthusiastically highlights the achieved results. Nonetheless, if a lasting relationship is to be built on these foundations, one must not forget that this increase in the powers of EU authorities should be accompanied by both guidance to and cooperation with national authorities and by appropriate guarantees for private individuals.