Dr. David Fernández-Rojo, Universidad de Deusto - firstname.lastname@example.org
The so-called “refugee crisis” revealed the urge to ensure the functioning of the Schengen area and the Common European Asylum System (CEAS), the desire to operationally assist those Member States most affected by the sudden and extraordinary arrival of mixed migratory flows, and the need to implement effectively and uniformly the EU measures adopted in regard to migration, asylum and border management matters. Against this background, the decentralized EU Agencies, Frontex, EASO and Europol, have emerged as key actors, not only in providing emergency operational assistance to the frontline Member States, but also in implementing the hotspot approach. The expansion of the operational role, multilateral cooperation, presence on the ground and institutional significance within the Area of Freedom, Security and Justice (AFSJ) of Frontex, EASO and Europol, is now unquestionable.
Hence, my book entitled “EU Migration Agencies: The Operation and Cooperation of Frontex, EASO and Europol”, published by Edward Elgar Publishing, comparatively analyzes the evolution of the operational tasks and cooperation of Frontex, EASO and Europol. Special attention is paid to the expansion of the legal mandates of these AFSJ agencies, the reinforcement of the activities they undertake in practice on the ground and to what extent a gap exists between these two dimensions.
The evolution of the operational tasks of Frontex, EASO and Europol is analyzed and two trends are highlighted. Firstly, while the Regulations of these AFSJ agencies continue to stress that their operational role is limited to providing the competent national authorities with the technical assistance they may require, the tasks of Frontex, EASO, and to a more limited extent, Europol, have an operational nature on the ground. Secondly, Frontex, EASO and Europol are increasingly involved in guaranteeing the effective and uniform implementation of EU migration, asylum and border management measures, as well as ensuring that the concerned Member States do not jeopardize the functioning of the Schengen area or the CEAS. These two emerging trends are discussed in turn.
In this book I point out that Frontex, EASO and Europol closely accompany the frontline Member States in the implementation of EU migration, border management and asylum policies. These agencies focus on operationally supporting the competent border, asylum and law enforcement national authorities in effectively implementing EU law. The expansion of EU competences in AFSJ matters has gone hand-in-hand with the reinforcement of their administration, which no longer falls exclusively on the Member States, but rather, on a conundrum of diverse actors, among which Frontex, EASO and Europol play a prominent operational role.
The growing integration that the AFSJ is experiencing has led to a Europeanization of its administration. It is necessary to ensure a uniform and effective implementation of EU border management, asylum and migration laws. The long-standing notion of administrative and implementation power in AFSJ matters is therefore progressively shifting. The deepening of the operational powers and cooperation of Frontex, EASO and Europol is eroding the exclusive procedural autonomy that Member States previously enjoyed, when implementing EU law. These AFSJ agencies increasingly steer and shape the effective and uniform implementation of EU migration, asylum and border management laws and policies at the national level.
Furthermore, the extent of the operational functions of Frontex, EASO and Europol may theoretically range from merely coordinating and providing technical assistance to the Member States, to developing full-fledged enforcement and coercive powers. Since Frontex, EASO and Europol do not have independent executive competences, their tasks can no longer be described as merely technical or supportive. Despite the lack of transparency and the vague legal provisions regulating the activities that Frontex, EASO and Europol undertake in practice on the ground, their tasks do have an operational nature. The issue is that the legal frameworks of Frontex, EASO and Europol lag behind the real operational powers that these agencies exercise on the ground, which creates legal uncertainty.
The reinforcement of the legal mandates and inter-agency operational cooperation of Frontex, EASO and Europol thus reveal a trend, under which these AFSJ agencies are mandated to increasingly develop operational and implementation activities. The operational and implementation role of Frontex, EASO and Europol has followed a constant and linear progression since their respective establishment. While Europol, due to its still markedly intergovernmental nature, is starting to operationally assist the national law enforcement authorities in their national investigations about illegal migrant smuggling, Frontex and EASO already conduct significant operational tasks on the ground and ensure the implementation of the adopted European Union measures at the national level. Whereas the current tasks already represent an erosion of the operational powers and implementation prerogatives of the Member States, none of these AFSJ agencies have been bestowed centralized, fully autonomous operational and enforcement powers on the ground.
The reinforcement of the operational tasks and implementation role of Frontex, EASO and Europol is not in itself an issue. What is problematic is the broad formulation of these AFSJ agencies’ legal bases and the lack of transparency surrounding their operational activities and cooperation, rendering the task of determining the degree of discretion they enjoy difficult. The key challenge involves determining the degree of discretion that Frontex, EASO and Europol enjoy and whether the institutional balance in the EU is respected. In this light, and despite the fact that Frontex, EASO and Europol have not been vested with strictly delegated powers, this book followed the CJEU’s non-delegation doctrine as useful guidance to analyze the legality of these AFSJ agencies’ operational functions under EU constitutional law.
The CJEU, in its Short-Selling judgment (discussed here), updated and relaxed its initial Meroni doctrine, by no longer confining delegation to clearly defined executive powers, but rather to powers precisely delineated and amenable to judicial review in the light of the objectives established by the delegating authority.
Unlike in the case of Short-Selling, the operational powers of Frontex, EASO and Europol are neither circumscribed by well-detailed conditions that limit their discretion, nor clearly detailed in a legal framework or their Regulations. These AFSJ agencies’ operational tasks are not restricted to merely providing technical support to the frontline Member States, but rather, they develop expanding cross-agency operational cooperation and activities on the ground. These agencies’ tasks entail the exercise of discretional prerogatives that are not narrowly delineated or clearly conditioned in any national or EU legal instrument. For instance, Frontex and EASO played a strong recommendatory role in the hotspots, which in principle, is compatible with the non-delegation doctrine, since the concerned Member States are not bound by Frontex and EASO’s recommendations.
Nonetheless, the national authorities, subject to extraordinary migratory pressure, may decide to rubber-stamp the recommendations put forward by the agencies. Frontex’s influence over the Greek officials in determining the nationality of the arriving migrants, Europol’s advice and operational support to the national enforcement authorities to dismantle migrant smuggling networks, and EASO’s admissibility assessment of the asylum applications or the detection of vulnerable applicants encompass in practice discretional and political choices. In these cases, the responsibilities of the agencies are blurred, since the national authorities adopt a final decision based on the assessment of the agencies.
Although fully autonomous enforcement and coercive powers are not possible under the current Treaties and would breach the non-delegation doctrine, the ambiguity and lack of transparency surrounding the operational tasks that Frontex, EASO and Europol undertake on the ground challenge the determination of their discretion and whether they actually make policy choices. In the author’s view, the main limitation and control of Frontex, EASO and Europol’s distinctive operational and implementation role comes from the Member States. While it is true that Frontex, EASO and Europol assist the Member States in matters closely linked to their national sovereignty prerogatives, the competent national authorities that vote at the management boards tightly control their recently reinforced operational, implementation and supervisory functions. Only two representatives of the European Commission have voting rights in Frontex and EASO’s management boards and this figure falls to just one representative in the case of Europol. The presence of the European Parliament in Frontex, EASO and Europol’s management boards is non-existent. Member States also exert their influence over the appointment and supervision of the executive directors, who lead the governance, management and daily administration of Frontex, EASO and Europol.
Member States’ reluctance to fully abandon their well-established bilateral practices, share information and operationally cooperate with Frontex, EASO and Europol in core national sovereign matters, like border management, asylum or migration, is especially reflected in these AFSJ agencies’ management boards. The Member States will thus maintain control of the strategic decisions and the daily management of Frontex, EASO and Europol. While centralizing on the executive, decisional and enforcement powers of Frontex, EASO and Europol will ensure a fully effective and harmonized implementation, it is important to bear in mind that these agencies represent an institutional trade-off or a common ground between intergovernmentalism and communitarization in the AFSJ. That is, Member States do not wish to relinquish further sensitive competences to the EU Institutions; but at the same time, they increasingly need supranational operational assistance regarding matters that can only be effectively managed in an integrated manner at the EU level. For this reason, whereas Europol, Frontex and EASO have been conferred upon significant operational tasks, none of these agencies are vested with full decisional, enforcement or coercive powers, which remain as an exclusive competence of the competent national authorities.
Hence, this book makes four main contributions. First, it maps Frontex, EASO and Europol as EU decentralized agencies, which are clearly distinguished by their operational powers and by the possibility to directly assist the competent national authorities on the ground. In particular, the establishment and early operational functions conferred on Frontex, EASO and Europol are studied. Second, it comparatively analyzes the reinforcement of the operational tasks vested on Frontex, EASO and Europol, as well as the extent of their assistance on the ground and influence on the implementation prerogatives of the national authorities in the aftermath of the “refugee crisis”. Third, it explores the bilateral and multilateral inter-agency cooperation between Frontex, EASO and Europol. Specifically, the expanded multilateral and operational cooperation that takes place in the hotspots is studied. Fourth, the limitations to the reinforced operational activities and cooperation of Frontex, EASO and Europol is analyzed. The constitutionality and legal bases of these AFSJ agencies, as well as the degree of discretion that they enjoy according to the Court of Justice of the European Union (CJEU) non-delegation doctrine, is examined. The internal administrative organization and governance of Frontex, EASO and Europol is also studied as to determine the influence and real control that the Member States and civil society may exert over the increasing operational powers these AFSJ agencies have been conferred.
Barnard & Peers: chapter 26
JHA4: chapter II:4
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