Frontex and Fundamental Rights Protection – Much Ado About Nothing DRAFT

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 neighbouring 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 fulfil the requirements of that Member State, not carrying the required visa or residence permit.

Regarding the critics of Frontex, according to a report from 2020, Frontex faces 3 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 blog post, 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 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 the numerous examples in which migrants coming in seek of asylum are subject to 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 pushbacks, 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 the said obligation, even when tools created with significant effort such as the ‘individual complaint mechanism’ exist. The reason is not surprising: Frontex 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 protection of fundamental rights at the expense of less effective border protection, the question arises of 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.

Towards promoting sustainable finance disclosure: are ESMA’s hands tied?

By Leo, Liza and Matteo

Source: ESG Risk Management: How to Conduct Risk Assessments, Analyze and Prioritize

Amongst its most important priorities, ESMA has identified the aim to tackle ‘greenwashing’. Enforcing the Sustainable Finance Disclosure Regulation 2019/2088 (“SFDR”) is a relevant tool for that purpose. This blog post will set forth how the tasks conferred to ESMA under the SFDR will likely prove themselves to be insufficient. Expanding the authority’s tasks may be an effective step, but ESMA cannot act with full discretion.

Financial greenwashing

The term greenwashing generally refers to companies presenting their business activities as more sustainable than they actually are. The increased demand for sustainable products has led financial operators to capitalise on the “green” inclinations of their investors. This has resulted in a growing number of companies making unsubstantiated claims about their “green” products. As a result, investors have come to buy financial assets that only appear climate-friendly Greenwashing hinders the financial sector as it harms the confidence of shareholders in green products. Facing greenwashing in the financial sector is challenging especially because of the risk of regulatory arbitrage, as ESMA pointed out. Indeed, Member States apply different rules to define “green” financial products. Hence, the regulated companies may establish their registered offices in countries with softer regulations.

The EU Sustainable Finance Framework: information disclosure

In a broader effort to increase the supply and demand of green capital, the European Commission launched the 2018 Action Plan “Financing Sustainable Growth”. The plan consists of three building blocks: (1) a taxonomy of sustainable activities, (2) disclosure requirements for financial and non-financial companies and (3) investment tools such as benchmarks, standards and labels. The second building block tackles greenwashing as it aims
to provide investors with the necessary environmental information to make informed and sustainable decisions on the market.

Source: Strategy for Financing the Transition to a Sustainable Economy

The Sustainable Finance Disclosure Regulation

A key contributor to the Commission’s second building block has been the Sustainable Finance Disclosure Regulation 2019/2088. The provisions of the SFDR entered into force in 2021 and impose extensive sustainability disclosure requirements on a number of financial institutions such as banks. For this purpose, the SFDR defines various categories of financial products, plus “sustainable investments”. These categories vary from initiatives without any climate-friendly considerations to those with specified environmental objectives. Overall, the regulation aims to increase transparency, maintain a level playing field within the EU and address the issue of greenwashing.

As ESMA is one of the three European Supervisory Authorities (“ESAs”), it operates within the ESA Joint Committee. This Joint Committee received a mandate to review and revise the Regulatory Technical Standards (“RTS”) under the SFDR. In February 2021, the ESAs accordingly presented their final report on draft RTS regarding the content, methodologies and presentation of sustainability-related disclosures. Currently, the Joint Committee is still working on finalizing its draft RTS. It is expected that the ESAs will issue a Final Report before November 2023.

The role of ESMA

Currently, the SFDR does not name ESMA as the sole EU regulatory supervisor. As the supervision and enforcement of the SFDR is a task for national competent authorities (NCAs), ESMA is bound by a shared enforcement system: whilst ESMA can establish RTS under the SFDR, only NCAs can sanction financial operators in case of non-compliance. Even in the absence of regulatory arbitrage at the level of NCAs, this could lead to an ineffective approach towards greenwashing.

Indeed, some argue that the regulation lacks clarity. The regulation does not clearly define either “sustainable investments” or the abovementioned categories of financial products. The EU Commission recently released a Q&A to define sustainable investments, but the Commission’s answers have been considered “broad and neutral”. The SFDR may be ineffective in the absence of a clear definition of legal notions such as “sustainable investments” as investors may be unable to assess whether an investment is indeed green. Consequently, financial institutions may greenwash by indicating an investment as green even if its sustainability is debatable. Indeed, some have already raised concerns about potential greenwashing effects arising from the SFDR unclarity.

An unclear Regulation like the SFDR may cause different interpretations of both the “sustainable investments” and the financial products’ categories across the NCAs. It has been argued that ESMA should be appointed as the sole supervisor and enforcer of the SFDR to ensure EU supervisory harmonisation and to increase regulatory harmonisation. This situation may also result in national interventions aiming to define sustainable investments and the abovementioned financial products’ categories. These interventions would harm the harmonisation process and be an obstacle to a sole EU supervisor. Alternatively, ESMA could define the abovementioned unclear notions to properly enforce the SFDR. However, agencies, including ESMA, are subject to some constraints under the New Delegation Doctrine, that developed the Meroni Doctrine.

Source: EU Institution: Court of Justice of the European Union (CJEU)

The 1958 Meroni Doctrine stated that European institutions can delegate powers to agencies, but the latter cannot have any discretion  in applying these powers. Consequently, agencies cannot be delegated any regulatory power. Instead, they can only exercise “clearly defined executive powers”. However, the Court of Justice of the European Union currently supports more extensive delegations of powers to the EU agencies. Indeed, the 2014 New Delegation Doctrine ensured that EU agencies can make legally binding decisions. Nonetheless, the content of such decisions must be specific, precise conditions and criteria must limit the authorities’ discretion, and the legally-binding measures must allow for judicial review. Compared to the Meroni Doctrine, the New Delegation Doctrine seems to incentivise the delegation of regulatory powers to the EU agencies. Still, ESMA cannot be delegated full discretionary powers to take legally-binding measures in order to address greenwashing. This principle would limit ESMA’s discretion to define sustainable investments and the various financial products considered by the SFDR. Still, there is ground for an effective extension of ESMA’s supervisory tasks under the New Delegation Doctrine

Synthesis: “From better enforcement to better lawmaking?”

On Friday 17 March RENFORCE organized a symposium with the title: From better enforcement to better lawmaking. Speakers included Prof. Gert Jan Veerman (Maastricht University), Dr. Mira Scholten (Utrecht University),  Mr. Rob van de Westelaken (European Parliament), and ms. Anne-Jel Hoelen (Netherlands Authority for Consumers and Markets). The symposium sought to bridge not only lawmaking and enforcement but equally the EU and national levels; academia and practice as well as the political/technocratic divide.

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John Vervaele’s farewell speech and legacy in the field of enforcement of EU laws

On March 10, 2023, prof. John Vervaele has given his farewell speech ‘Towards a European Reassessment of Punitive Enforcement’ at the Aula of Utrecht University. In this blog post, I am discussing the main ideas of his speech and career – Europeanisation of EU law enforcement – and, in this way, I aim at giving my personal gratitude to prof. Vervaele. It has been a great honour and pleasure of working with you, John!


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The legal and practical aspects of the independence of National Regulatory Authorities (NRAs) in the electronic communications sector

In 2022, dr. Olga Batura, dr. Malgorzata Kozak and dr. Mira Scholten conducted an investigation into the legal and practical aspects of the independence of National Regulatory Authorities (NRAs) in the electronic communications sector commissioned by the Body of European Regulators of Electronic Communications (BEREC). The research combined elements of the ‘law in books’ and ‘law in action’ approaches and consisted of a literature review, comparative legal analysis, expert interviews, a survey of BEREC members, a workshop with NRA experts (including case studies) and focused interviews with selected NRAs. This blog post gives a short overview of the mentioned investigation.

The study argues that full independence should be understood as the unity of practices conducive to de jure and de facto independence, meaning that the NRA is properly established, empowered, resourced, effectively functioning and accountable. The NRA’s independence decreases with each bad practice, meaning that the presence of even one bad practice in any dimension of independence implies that the NRA lacks independence to some degree. A culture of independence needs to be nurtured within NRAs and the government as a whole to support the practice and proper application of EU independence standards.

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Trading in Energy Derivatives: who’s watching?

On 20 January 2023, Liebrich Hiemstra defended her PhD dissertation which shows the financial side of the energy sector: the trade in energy derivatives and how such trading is supervised by EU and national regulatory authorities. One of the main findings is that the supervision in this sector is too opaque and that the effectiveness of the legal remedies available to market players is questionable.  

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Enforcement Challenges in Multi-Level Regulatory Systems, Revealing Weaknesses and Offering Solutions

On December 15 and 16, the University of Luxembourg commemorated the work of the Doctoral Training Unit on Enforcement in Multi-Level Regulatory Systems (DTU REMS), which culminated with a closing conference and the unveiling of their published joint work, Enforcement Challenges in Multi-Level Regulatory Systems, Revealing Weaknesses and Offering Solutions (Nomos). The conference began with a presentation of the contributing PhD graduates and their supervisors. Afterwards, Dean Katalin Ligeti, coordinator of the program, was joined by the Program Manager of the Luxembourg National Research Fund (FNR), Marie-Claude Marx, and the Vice-Rector for Research of the University of Luxembourg, Professor Jens Kreisel, to share remarks on the project.

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Differences in substantive application of Article 102 TFEU and the DMA concretized: ‘Privacy policy tying’ under Article 102 TFEU or the opt-in rule for data combination and cross use in article 5 (2) of the DMA

Disclaimer: All opinions in this blog reflect the views of the author, not of the Dutch DPA.

In our digital markets, there are more and more concerns that big tech firms use their dominant position to conduct practices that could potentially be harmful to consumers and competitors. One of these practices is to present the consumer with a take-it-or-leave-it option before he or she is allowed to use a service: if you do not consent to the fact that the firm can combine and cross-use your personal data from the service with data from other services, you will not be allowed to use the service. Where firms use their dominant position to make such practices possible and when this makes the position of these firms even stronger so the market ‘tips’, the regulator could be inclined to prohibit the practice on the basis of competition law or other forms of market regulation. In the following, I introduce this practice (I). Then, I explain that the mainstream way of approaching the aforementioned practice under Article 102 TFEU has raised critique (II). Then I show how this critique could be taken away by another way of applying Article 102 TFEU, namely under the theory of harm of ‘privacy-policy tying’(III). Next, I explain that article 5 (2) of the DMA, which directly deals with the practice at hand, shows many similarities with the criticized approach of Article 102 TFEU (IV). Finally, I argue that the application of this article does not take away the critique that has been raised, which could potentially have negative consequences (V).  

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Round-up of publications focused on Enforcement at the EU Commission this month

This month, the editors of the blog issue a ‘news type’ of blog post. We would like to bring the readers’ attention to publications related to the central theme of enforcement that the EU Commission has made in the last month.

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EU law enforcement of the right to family reunification for unaccompanied minors fleeing conflict

The recent events in Ukraine brought to light once again the difficulties faced by refugees at the beginning and during flight and resettlement. One of the main topics that are creating tension and increased solidarity is the fate and safety of the children separated from their families and parents. In this context, the first-time activation of the (TPD) for Ukrainian refugees sets an unprecedented step forward for the right of unaccompanied minors fleeing war and serious harm to family reunification. This bold political choice also draws attention to the urgent need for revision of the current legislation regulating family reunification for international refugees or beneficiaries of subsidiary protection.

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