On 6 October 2016 the European Border and Coast Guard (EBCG) was officially launched at the border point of Kapitan Andreevo between Bulgaria and Turkey. As a result of the migratory crisis, the transformation of Frontex into a EBCG became a political priority for both the EU and the Member States. Frontex was established in 2004 to assist the countries of Europe to better cooperate in controlling their external borders. The new Regulation 2016/1624 is the third legislative revision of the mandate and competences of Frontex. This Regulation aims to both strengthen the position of the EBCG from the Member States, which have not always fully cooperated with Frontex, and also effectively and uniformly implement the EU rules and policies on border management.
The first legislative revision of Frontex (Regulation 863/2007) introduced the rapid intervention teams and a Central Record of Available Technical Equipment (CRATE). As a result, a Member State, upon request, could temporarily use the resources that the other Member States voluntarily put at its disposal. This equipment (aircraft, vessels helicopters, mobile radar units and other special technical equipment) was intended to be used on a bilateral basis between Member States. Nevertheless, it was also modestly used in Frontex’s joint operations.
Subsequently, Regulation 1168/2011 reinforced the operational capacity of Frontex and its autonomy, and established that Member States provide a minimum annual contribution of technical equipment. Moreover, Frontex was allowed to acquire or lease technical equipment such as vessels, helicopters, thermo vision vehicles, dogs or mobile laboratories for border surveillance (article 7). Yet in reality, the resources of Frontex consisted mainly of equipment owned by Member States, since for the agency to purchase or lease equipment, it needed to be firstly registered in a Member State. In this regard, Frontex only signed one contract to provide a comprehensive package of aerial border surveillance services (consisting of 120 flying hours, a mobile ground station and the deployment of equipment and personnel) at the border between Bulgaria and Turkey within the Joint Operation Poseidon in 2014.
Regulation 1168/2011 created also the European Border Guard Teams. Frontex acquired competent border guards seconded by the Member State as national experts (Article 3.b(3)). For a period of up to six months, Frontex was competent to decide where and for how long the seconded guest officers were going to be deployed (see, Commitments of Member States to the European Border Guard Teams and the Technical Equipment Pool).
Despite these developments towards a more independent and effective support to the Member States when implementing EU border management rules and policies, the Commission proposed the set up of the EBCG. Regulation 2016/1624 aims to provide the new agency with “the additional competences needed for it to effectively implement integrated border management at Union level (…)” and to overcome the discrepancies that still remain at the national level. That is, Regulation 2016/1624 expands the supervisory and operational functions originally delegated to Frontex, which may enhance a uniform and efficient implementation of EU laws and policies.
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First, article 3(2) of Regulation 2016/1624 grants the EBCG a supervisory role to ensure a common integrated management of the EU’s external borders. If certain weaknesses were identified at the national external borders, the executive director of the EBCG shall recommend the adoption of specific measures by the concerned Member State. Supposing these measures were not implemented in an effective or timely manner, the management board of the agency would adopt a binding decision setting out the necessary measures that the Member State must execute (article 13(8)). If the Member State still refuses to implement them, the EBCG, as will be explained below, may intervene.
Secondly, Regulation 2016/1624 delegates the EBCG greater technical and operational competences. The EBCG may acquire its own technical equipment (article 38) and have a Rapid Reaction Pool of at least 1,500 border guards to be deployed immediately in joint operations or rapid border interventions (article 20(5)). However, the report published last 25 January 2017 on the operationalization of the EBCG shows that the agency will continue to rely on the vessels, boats, aircrafts, helicopters, vehicles and dog teams made available by the Member States. This is due to the legal and fundamental rights challenges of the EBCG to deploy and use its own equipment and resources. Additionally, this report points out that while the Rapid Reaction Pool has been created, there are considerable gaps in the equipment provided so far.
Lastly, the most contentious competence is what has been referred to as the EBCG’s intervention capacity. The new agency is empowered to monitor the effective functioning of the external borders of the Member States, carry out vulnerability assessments, verify whether a Member State is able to effectively enforce EU law and detect deficiencies in the management of its borders. If a Member State either fails to take the measures recommended in its vulnerability assessment or does not take the necessary action in the face of disproportionate migratory pressure, the EBCG shall adopt a unified and effective EU approach, since the functioning of the Schengen area might otherwise be jeopardized. Specifically, the director of the EBCG must, after reaching an agreement with the Member State concerned, determine the actions to be taken for the practical execution of the measures decided previously by the Council (article 19(4)). If the Member State does not implement these measures, the European Commission may authorize the other Member States to reestablish border controls at the Schengen area (article 19(10)). Consequently, it is debatable to what extent the new agency will be capable of imposing the execution of certain measures to a Member State that completely resists them.
To conclude, while the European Commissioner, Dimitris Avramopoulos, referred to the new agency as “a fully-fledged European Border and Coast Guard system”, Regulation 2016/1624 has not created a federal agency with centralized powers in the management and surveillance of the European borders. The EBCG constitutes another necessary and timid step towards the long-term objective of establishing an integrated management system for the European external borders. The deliberately ambiguous text of Regulation 2016/1624 responds to the difficulty in achieving the balance between the need for an effective and uniform implementation of the European border management rules and policies and the resistance of the Member States to further delegate competences closely linked to their national sovereignty. The EBCG, despite its new fancy name, will continue to operate in a decentralized border management system. We shall see how this will play out in reality and if the EU rules and policies on border management will ultimately be more effectively and uniformly implemented.