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.
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