By Vincent, Mariyan, Raymond & Max
The need for effective border control after the migration crisis
The migration crisis of 2015 led to significant issues of migratory control within the Member States of the European Union. Although the major migration flows are over, structural problems remain. Individual Member States still experience difficulties to cope with the large influx of migrants in a timely and effective manner. Consequently, EU policymakers had to make the politically sensitive choice between an enhanced European Agency versus the national sovereignty of the Member States.
The shortcomings revealed by the migration crisis forced the European Commission to act quickly. Strengthening of the European Border and Coast Guard Agency (Frontex) was seen as crucial in providing a solution. Therefore, in 2016 its competences and mandate were expanded by Regulation 2016/1624. Frontex became a facilitator working with both Member States and third countries to ensure effective border control. Overseeing immigration and providing assistance in return operations of irregular migrants became more important in this context.
In 2018 the European Commission introduced a proposal to tackle the structural problems as well. Reinforcements of the autonomy and operational capabilities of the Agency were presented in order to eliminate threats from third countries. However, the political sensitivity of this proposal is made explicit in various statements, such as those made by the European Commission that “the reinforced European Border and Coast Guard will not take over the national responsibility to protect the Union’s external borders – this is and will remain a Member State prerogative.” Frontex seems to be caught in the common struggle between the Commission and the Member States, where each side want to secure greater control over the actions of the Agency.
The primary objective of this blog post is to provide an overview of the most significant changes in Frontex’ competences within the current Regulation and Proposal. The underlying question is whether the system with a high degree of national sovereignty is maintained or whether the division of competences has shifted for the sake of effectiveness.
Securing Europe’s External Borders
In 2016 Frontex’ mandate was broadened by the adoption of Regulation 2016/1624 with the aim to “strengthen Frontex significantly and develop it into a fully operational European border and coast guard system.” Resources were increased and the proposed plan included a budgetary increase from €142 mln in 2015 to €253 mln in 2016. Furthermore, its own operational staff was expanded from 400 to ultimately 1,000. The Union increased Frontex’ powers at the cost of its national counterparts. Competences were intended to become increasingly shared with Frontex as the aspired coordinator and its national counterpart as implementer.
Regulation 2016/1624 specifically provided Frontex with enhanced powers and an increased regulatory and operational role. The Agency gained its own operational staff, has the possibility to obtain equipment and is able to initiate return operations. In addition, some other burdened competences were given to Frontex.
Firstly, the European Commission proposed the right to intervene in urgent situations, but this proposal was struck down in the legislative trilogues. Instead, Frontex will be able to adopt a decision setting out corrective measures if the Member State is found vulnerable. Ultimately, the Commission may re-install internal borders for up to six months due to the protection of the Schengen area based on Frontex’ vulnerability assessment. Secondly, Frontex gained additional powers where an immediate response is warranted. The Agency can deploy border guards and equipment from a rapid intervention pool of at least 1,500 officers. Thirdly, Frontex’ mandate was broadened concerning preventive tasks like monitoring, processing and information-sharing. For example, liaison officers can be deployed to coordinate operations. Lastly, Frontex may propose and facilitate returns of irregular migrants and conduct search and rescue operations; in 2015 Frontex returned approximately 3500 migrants, this increased significantly in 2016 when 10,700 people were returned. The increase of competences was significant, but Frontex did not receive their own border guards or hierarchically surpassed its national counterparts.
A fully equipped Agency
The State of the Union speech of European Commission President Juncker in 2018 was the starting signal of a second comprehensive reform of Frontex. The Commission’s proposal further enhanced Frontex’ powers with an emphasis on effective surveillance of the Schengen border and the aim of a significant increase in the return of irregular migrants.
The 2018 proposal consists of three far-reaching elements. First, the operational corps of Frontex will be expanded to 10,000 staff members in 2027. This operational corps will consist of both units of Member States and units directly employed by Frontex. Those employed by Frontex will acquire a number of powers that until now have been exclusively exercised by national border guard units. For example, Frontex units will be allowed to conduct identity verification, grant or refuse entry at Europe’s borders and, most importantly, they will be allowed to use force. In order to ensure the effectiveness of Frontex’ reinforcement, the Agency’s budget will be increased to EUR 1.6 billion on an annual basis.
Second, the role of Frontex in return operations will be enhanced. This is politically the most sensitive aspect of the new proposal. The sensitivity of the role of Frontex within return operations has caused recent modification of this element. Therefore, Frontex no longer has a role in preparing return decisions, has no influence on the content of these decisions and is no longer capable of initiating return interventions in third countries.
Third, Frontex will, within its Integrated Border Management mandate, increase its enhanced cooperation activities on the territory of third countries. This means mutual presence of observers, the availability of technical and operational assistance and the mutual exchange of information.
Overview significant new tasks of Frontex
As the chart reflects, competences have been significantly enhanced. However, time will tell whether the effect will be decisive in effective border control.
* The chart reflects only the most significant new tasks of Frontex based on Regulation 2016/1624 and the European Commission Proposal of 2018.