Tuesday 4 June 2019

The Umpteenth Reinforcement of FRONTEX’s Operational Tasks: Third Time Lucky?

Dr. David Fernandez-Rojo, University of Deusto

On 6 October 2016, the European Border and Coast Guard (EBCG), the successor of FRONTEX, was officially established. Less than two years after the adoption of Regulation (EU) No. 2016/1624, the president of the European Commission announced in his speech on the 2018 State of the Union made on 12 September, the Commission’s intention to, once more, reinforce FRONTEX. On the same day, the Commission proposed an updated version of the Regulation establishing the recently adopted EBCG, which (following agreement between the European Parliament and the Council) was one of the very last texts voted at the European Parliament under the 2014-2019 mandate. In particular, on 17 April 2019, the Parliament adopted the proposal put forward by the European Commission to further strengthen the EBCG with a standing corps of 10,000 border guards with executive powers by 2027. It is now only a question of time until the Council adopts the Regulation (henceforth referred to as Regulation 2019/XXX). (The provisionally agreed text of the new Regulation is here.) This blog post centres on comparatively analysing the most controversial, significant and novel operational tasks conferred by Regulations 2016/1624 and 2019/XXX to the EBCG. (See earlier this analysis of the new powers concerning returns and data sharing, and of the accountability of the agency in human rights terms).

Article 3(2) Regulation 2016/1624 conferred a monitoring role to the EBCG in order to guarantee a common strategy for the management of the European external borders. The EBCG may now deploy its own liaison officers in the Member States with the aim of fostering cooperation and dialogue between the agency and the competent national authorities (Article 12(3) Regulation 2016/1624). The EBCG liaison officers, who are deployed on the basis of a risk analysis carried out by the agency, should regularly inform the agency’s Executive Director about the situation at the external borders and assess the capacity of the concerned Member State to effectively manage its borders (Article 12(3)(h) Regulation 2016/1624). These responsibilities have been further detailed in Article 32(3) Regulation 2019/XXX.

The information that the liaison officers gather contributes and facilitates the preparation of the EBCG’s vulnerability assessments. At least once every three years, the agency shall monitor and assess the availability of the technical equipment, systems, capabilities, resources, infrastructure, and adequately skilled and trained staff of the Member States for border control (article 33(2) Regulation 2019/XXX).

The monitoring powers conferred to the EBCG are reflected in article 33(10) Regulation 2019/XXX, which signals that if the recommended measures are not implemented in a timely fashion and in an appropriate manner by the concerned Member State, the EBCG’s Executive Director shall refer the matter to the Management Board and inform the European Commission. The Management Board shall then make a decision, based on the original proposal of the Executive Director, describing the necessary measures to be taken by the Member State and the time limit within which such measures shall be implemented. Importantly, Article 33(10) Regulation 2019/XXX explicitly declares that the decision of the Management Board is binding on the Member State. It remains to be seen as to the position of the national authorities within the EBCG’s Management Board and whether they will adopt measures that effectively ensure that a concerned Member States tackles the vulnerabilities identified in its external borders.

While it is still early to assess to what extent Regulation 2019/XXX improves the functioning of the vulnerability assessment and the swift deployment of liaison officers initiating by Regulation 2016/1624, a novel mechanism of impact levels to external border sections has been designed. Articles 35 and 36 Regulation 2019/XXX state that the EBCG, in agreement with the Member State concerned, may declare four different impact levels and reactions with the aim of swiftly addressing at a given border section a crisis situation.

-          When the EBCG declares a low impact level, the competent national authorities shall “organise regular control (…) and ensure that sufficient personnel and resources are being kept available for that border section” (Article 36(1)(a)).

-          If a medium impact level is established, the concerned Member State shall “ensure that appropriate control measures are being taken at that border section” (Article 36(1)(b)).

-          Where a high impact level is declared the national authorities are encouraged to request operational assistance from the EBCG (Article 36(1)(c)).

-          The EBCG may temporarily determine at a given border section a critical impact level, which shall be communicated to the European Commission. Under this scenario, the EBCG’s Executive Director will recommend the Member State concerned to request the EBCG’s operational assistance through the initiation of a joint operation or a rapid border intervention (Article 42(1) Regulation 2019/XXX).

While the obligations for the national border authorities under the low, medium and high impact levels are quite vague, under the critical scenario the Member State concerned shall respond, providing justifications for its decision, to the recommendation of the Executive Director within six working days (Article 42(2)). According to Article 43 Regulation 2019/XXX, should the Member State ignore the EBCG Executive Director’s recommendation, the Council, on the basis of a proposal from the European Commission, may adopt a decision by means of an implementing act, identifying measures to mitigate those risks and requiring the Member State concerned to cooperate with the agency in the implementation of those measures.

The EBCG’s Own Equipment and the Standing Corps of Border Guards

With the objective of reducing the dependence of the EBCG on the Member States’ technical equipment, Article 38 Regulation 2016/1624 stipulated that the agency may acquire its own technical equipment to be deployed during joint operations, pilot projects, rapid border interventions and return operations. In this regard, Article 63(4) Regulation 2019/XXX points out that where the EBCG acquires or co-owns equipment such as aircrafts, helicopters, service vehicles or vessels, the agency shall agree with a Member State the registration of the equipment as being on government service.

It is true that the European Commission has now a strong budgetary commitment to ensure that the EBCG acquires or leases technical resources but the agency still lacks the necessary structures and expertise to effectively manage its own equipment. Regulations 2016/1624 and 2019/XXX do not design a clear framework of the EBCG’s responsibility, and continues to be highly questionable whether the Member States will authorise the registration of equipment that is beyond their control.

Furthermore, a key operational power introduced by Regulation 2016/1624 was the establishment of a Rapid Reaction Equipment Pool, consisting of technical equipment to be deployed in rapid border interventions within 10 working days from the date that the Operational Plan is agreed upon by the Executive Director and the host Member State. The EBCG may contribute to the Rapid Reaction Equipment Pool with its own resources and the Member States could no longer shirk their responsibilities by alleging that they are faced with an exceptional situation substantially affecting the discharge of national tasks (Article 39(7) Regulation 2016/1624). In accordance with Article 20(5) Regulation 2016/1624, the competent national authorities shall make available a minimum of 1,500 border guards to the EBCG for their immediate deployment in joint operations and/or rapid border interventions.

While the establishment of a Rapid Reaction Pool of 1,500 was a positive measure for emergency situations at the external borders, Regulation 2016/1624 did not manage to overcome the insufficient pooling of Member States’ border guards for concrete locations and concrete periods in regular joint operations. For this reason, Regulation 2019/XXX centres on designing a permanent, fully trained and operational Standing Corps of 5,000 Border Guards by 2021 and 10,000 by 2027 based on the distribution key set out in Annex I to Regulation 2019/XXX.

Pursuant to Article 55(1) Regulation 2019/XXX, the Standing Corps is composed of four categories of border guards:

-          Operational staff members of the agency (Article 56)
-          Operational staff seconded from Member States to the agency for a long-term deployment (Article 57)
-          Operational staff from Member States ready to be provided to the agency for a short term deployment (Article 58)
-          Operational staff from the Member States ready to be deployed for the purpose of rapid border interventions (Article 59).

The EBCG’s operational staff members is a new category of staff designed by Regulation 2019/XXX in order to ensure the effective management of the external borders. Regarding the other three categories of border guards, the Member States are obliged to second to the agency operational staff with the aim of ensuring at all times the availability of border guards to be deployed. However, the main novelty is not so much the establishment of the Standing Corps, but rather the fact that the Standing Corps deployed as team members (category 1) are conferred executive powers (Article 55(3) Regulation 2019/XXX) such as verifying the identity and nationality of persons, authorising or refusing of entry upon border check, stamping of travel documents, issuing or refusing of visas, patrolling or, registering fingerprints (Article 56(5) Regulation 2019/XXX). Importantly, Article 83 Regulation 2019/XXX states that the performance of executive powers by the EBCG’s operational staff members shall be subject to the authorisation of the Member State that is hosting the operation.

As the Meijers Committee and the European Council on Refugees and Exiles rightly noted, conferring executive powers to the EBCG’s operational staff members may breach the primary law provisions that regard the Member States as ultimately responsible for their own internal security and external border management. While the European Commission considers that Article 77(2)(d) TFEU provides the legal basis to bestow upon the EBCG’s staff members executive tasks if they are clearly defined to match the objective of the establishment of an integrated management system for external borders, Article 77(2)(d) TFEU shall also be read in light of Articles 72 and 73 TFEU.

Article 72 TFEU states that the competences that the EU enjoys in the AFSJ “shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. In other words, the EU cannot replace the Member States’ prerogatives of coercion and “EU agencies are therefore limited to supporting actions of national authorities, except (and only) to the extent that the Treaty confers express powers to act on such agencies” (see, PEERS, EU Justice and Home Affairs Law: EU Criminal Law, Policing, and Civil Law, Volume II, London 2016, 27). Relatedly, Article 4(2) TEU provides that “the Union (…) shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State”.

Furthermore, Article 73 TFEU indicates that “it shall be open to Member States to organize between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security”. Hence, while competences are shared between the EU and the Member States in the AFSJ (Article 4(2)(j) TFEU), Articles 72 and 73 TFEU limit the powers conferred to the Union in matters directly linked to Member States’ national sovereignty (Article 2(6) TFEU).

Taking Stock of the Novel Operational Powers

Currently, Article 8(2) Regulation 2019/XXX specifies that “the multiannual strategic policy for the European Integrated Border Management shall define how the challenges in the area of border management and return are to be addressed in a coherent, integrated and systematic manner (…)”. That is, the national authorities in charge of border management shall conform to the strategy adopted by the EBCG (Article 3(3) Regulation 2016/1624 and 8(6) Regulation 2019/XXX). Member States shall abstain from conducting “any activity which could jeopardise the functioning of the Agency or the attainment of its objectives” (Articles 8(2) Regulation 2016/1624 and 7(5) Regulation 2019/XXX). To this end, the EBCG is authorised to supervise the effective functioning of the national external borders, undertake vulnerability assessments, monitor whether a Member State is qualified to effectively implement the applicable EU legislation, and detect deficiencies in the management of the national borders.

The EBCG is thus conferred a supervisory and intervention role, which allows the agency to adopt quasi-binding measures for the Member States and to directly intervene in the territory of the Member State if such measures are not effectively implemented (Article 18 Regulation 2016/1624 and 43 Regulation 2019/XXX). In the event that a Member State neither adopts the measures recommended in its vulnerability assessment, nor requests/takes necessary actions in the face of disproportionate and sudden migratory pressure, the EBCG shall ensure a unified, rapid, and effective EU response so as not to jeopardise the functioning of the Schengen area. In this situation and according to Article 43(1) Regulation 2019/XXX, “the Council, on the basis of a proposal from the Commission may adopt without delay a decision by means of an implementing act, identifying measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures”.

Since the Council decision is adopted, the EBCG’s Executive Director shall, within two working days, draft an operational plan and submit it to the Member State concerned (Article 43(4) Regulation 2019/XXX). Once the operational plan is submitted, the agency’s Director and the Member State concerned shall agree on concrete actions to be adopted, including the deployment the necessary operational staff from the European Border and Coast Guard standing corps, for the practical execution of the measures identified in the Council’s decision.

Article 43(8) Regulation 2019/XXX requires the Member State concerned to comply with the Council decision by cooperating with the EBCG and taking the necessary actions to facilitate the implementation of the Council’s decision and the agency’s operational plan. However, these obligations are tempered when Article 43(9) Regulation 2019/XXX indicates that the European Commission may authorise the reestablishment of border controls in the Schengen area, provided that the concerned Member State neither executes the decision adopted by the Council, nor agrees with the EBCG’s Operational Plan within 30 days. Ultimately, the Member State concerned subject to the EBCG’s “intervention” shall expressly consent and agree with the agency in regards to the operational support that will be provided in its external borders as to ensure the functioning the Schengen area (Article 43(5) Regulation 2019/XXX).

Towards a European Corps of Border Guards?

Regulations 2016/1624 and 2019/XXX introduce the new EBCG as a guarantor of an integrated management of the European borders. In the European Commission’s own words, “by setting new standards and imbuing a European culture within border guards, the European Border and Coast Guard will also become a blueprint on how EU border management should be implemented”. Both Regulations 2016/1624 and 2019/XXX clearly strengthen the EBCG’s autonomy since the agency will depend to a much lesser extent on the specific operational secondments and support of the Member States. The EBCG should finally have its own equipment and operational personnel for its immediate deployment in joint and rapid operations. However, the most controversial, significant and novel operational powers included in Regulations 2016/1624 and 2019/XXX consist in introducing the agency’s capacity to “intervene” and granting executive powers to the agency’s staff members respectively.

On the one hand, Regulation 2016/1624, in order to avoid endangering the functioning of the Schengen area, entitled the EBCG to intervene if a Member State decides not to implement the measures recommended by the Executive Director to tackle the weaknesses detected at its external borders, or if the Member State does not request operational assistance in the face of disproportionate and sudden migratory pressure at its borders. However, it is debatable to what extent the agency is able to impose the application of certain measures to a Member State that is opposed to them. Regulation 2016/1624, and now Regulation 2019/XXX, do not provide much clarity in this respect, which is a common feature of those European Union legislative instruments in charge of regulating highly sensitive competences that require the support of national authorities.

On the other hand, Regulation 2019/XXX confers executive powers to the EBCG’s standing corps deployed as team members. While these executive powers may ensure a more effective, integrated and supranational administration of the European external borders, these activities also entail a significant, and difficult to control, degree of discretion that excessively stretch the Treaty provisions establishing the Member States as ultimately responsible for their own internal security and external border management.

Although it is true that the EBCG will assist more independently the Member States in matters closely linked to their national sovereignty prerogatives, the competent national authorities that vote at the Management Board will continue to tightly control the agency’s recently reinforced operational and supervisory functions. Only two representatives of the European Commission have voting rights in the EBCG’s Management Board and, the presence of the European Parliament is non-existent. The Member States have thus ensured control of the strategic operational powers and the daily management of the agency.

Consequently, despite the fact that the name of the EBCG may lead to misunderstanding and even the European Commission constantly refers to the agency as a true European system of guarding borders and coasts, Regulations 2016/1624 and 2019/XXX do not create a European Corps of Border Guards with full and exclusive competences in border management. Nevertheless, Regulations 2016/1624 and 2019/XXX do reveal how difficult still is to strike a balance between designing an effective integrated strategy for the management of the European external borders and the Member States’ resistance to confer operational powers directly linked to their core national sovereignty. It is still early to conclude if we are only facing another revision of FRONTEX’ initial mandate as a reaction to an unprecedented migratory pressure or, on the contrary, Regulations 2016/1624 and 2019/XXX constitute the definitive step that will facilitate in the future the establishment of a European Corps of Border Guards with full executive, implementation and decision-making powers in the management of the European external borders.

Barnard & Peers: chapter 26
JHA4: chapter I:3
Photo credit: www.bmi.bund.de

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