Laura Salzano, Ludwig Boltzmann Institute of Fundamental and Human
Rights, Postdoctoral Researcher
Photo credit: Asurnipal, via Wikimedia
Commons
On
27 October 2026, the European Commission presented its proposal for a recast of
the European Border and Coast Guard Regulation (EBCGA or Frontex) (COM(2026) 1030 final). The proposal, following the ordinary
legislative procedure (Article 294 of the Treaty on the
Functioning of the European Union (TFEU)), will be negotiated by the European
Parliament and the Council. As it stands, the recast would significantly expand
Frontex's competences and operational capacity, particularly in the fields of
returns and cooperation with third countries. At the same time, it introduces
amendments that raise serious concerns from the perspective of fundamental
rights protection and institutional oversight.
This proposal comes after years of mounting
scrutiny of Frontex's involvement in fundamental rights violations, which
ultimately led to the resignation of its former Executive Director, Fabrice
Leggeri. He has since become a Member of the European Parliament for France’s
far-right Resemblement National and the Patriots’ coordinator in the
Parliament’s LIBE Committee. Leggeri is also facing investigations into alleged
crimes against humanity linked to his role as head of the Agency.
Institutional criticism of Frontex has been equally serious: the European
Anti-Fraud Office (OLAF) described the Agency as “disloyal to the Union” ((Case
OC/2021/0451/A1), pp. 4, 57), while the European Court of Auditors deemed the
Agency not fit to fully implement its mandate (Special Report 08/2021). Meanwhile, two cases currently pending before
the Court of Justice of the European Union (CJEU), WS and Others v Frontex (Case
C-679/23 P) and Hamoudi v Frontex (Case C-136/24 P), could prove pivotal
in challenging the Agency’s de facto immunity from accountability and opening
the way to effective judicial scrutiny of its conduct. An analysis of those
rulings can be found here, while one of the first instance in WS
was published here.
The European Commission, in its first evaluation of the Frontex
Regulation (EU) 2019/1896,
had already identified significant shortcomings in the Agency’s legal and
operational framework, although it did not always propose concrete solutions to
address them. The recast offered an opportunity to remedy these deficiencies.
Yet many of the structural problems identified in the evaluation remain
unresolved, while the proposal introduces new provisions that risk creating
additional accountability and fundamental rights concerns. Rather than
addressing the shortcomings of the existing framework, the Commission appears
to have prioritised the expansion of the Agency's mandate and operational
capacity.
This post examines some of the most significant
changes introduced by the proposal, focusing in particular on the expansion of
Frontex's powers and the persistent, and in some respects growing, shortcomings
in its accountability framework.
What the proposal introduces: an expanded
operational mandate
The proposal introduces several significant
changes to the Agency's mandate, operational capacity and organisational structure.
While some developments may improve operational coordination, they also raise
important questions about the extent of Frontex's powers and the safeguards
accompanying their exercise.
A
substantially larger standing corps body. Under Articles 5, 66 and 70 and Annex I, the
standing corps would grow to 17,500 staff by 2034, with a long-term target of
30,000. In addition, a new European Border and Return Reserve, composed of
6,000 national officers by 2034, would be established. These figures illustrate
the scale of the ambition behind the reform. For comparison, according to its
own official data, the European Commission as a whole employs
approximately 33,000 officials across all its policy areas. The resources
envisaged for Frontex therefore reflect the extent to which border management
and returns have become central political priorities for the EU.
A
central role in EU returns. Proposed
Articles 11 and 54 significantly expand Frontex's role in the planning,
coordination and implementation of return operations, supported by a newly
established Return Coordination Centre. The Agency is thus set to become the
central operational actor in EU return policy, moving beyond its existing
coordinating and supporting functions towards a much more prominent role in the
organisation and implementation of returns.
Operational
assistance to third countries and “return hubs”. Articles 63 to 65 would introduce an express
legal basis for Frontex to provide technical and operational assistance to
third countries in the field of returns. This is particularly significant in
the context of the so-called return hubs envisaged under the new Return Regulation, where Frontex could be deployed to support the
Member States. Their establishment and operation will depend on bilateral
agreements between Member States and third countries, which may take the form
of either international agreements or less formal arrangements.
This
aspect holds serious implications. Where cooperation is established through
instruments such as Memoranda of Understanding or other non-binding
arrangements, serious questions arise as to the availability of ex ante
democratic scrutiny and ex post judicial review. The experience of the
EU-Turkey Deal, and the litigation in NF and Others v European Council (Case T‑192/16, paras. 72-73), show that challenges may arise
when politically significant cooperation frameworks are established outside the
conventional framework of EU international agreements, even where they have
far-reach implications for the fundamental rights of the individuals concerned.
In that case, the General Court found that the Statement had been concluded by
the Heads of State or Government of the Member States, acting in their capacity
as representatives of their respective governments, rather than by the European
Council itself. The Court therefore considered that it lacked jurisdiction to
review the Deal. The possibility of establishing similar cooperation frameworks
through less formal instruments, combined with Frontex's operational
involvement in their implementation, makes these concerns particularly
pressing.
A
Quick Reaction Force. The newly
introduced Articles 48 and 72 would establish a Quick Reaction Force for urgent
interventions at the EU's external borders and, under certain conditions, in
third countries. While the possibility of rapid deployment may strengthen the
Agency's operational capacity, the proposed framework raises concerns about
fundamental rights safeguards. In particular, the absence of a requirement for
an ex ante fundamental rights assessment before such interventions risks
weakening preventive oversight in precisely those situations where operational
pressure and the risk of violations may be greatest. On the weakening of
fundamental rights monitoring, more will be said below.
Online
monitoring. Articles 11 and
33 establish an Online Monitoring and Response Centre, tasked with analysing
online content, including social media information, relating to border crossings
and the facilitation of irregular migration. Although presented as a new
institutional development, the Agency has already engaged in forms of online
monitoring. The proposal therefore appears to formalise and expand an existing
practice, raising questions about the legal basis and limits of the Agency's
monitoring powers, as well as the safeguards applicable to the collection and
processing of information obtained online. These concerns become even more
significant when considered alongside the Agency's data exchanges with Europol,
which has itself been found to have committed serious violations of its
governing Regulation, as discussed here.
Access
to Eurosur for third countries.
Under proposed Article 30, Member States would be able to agree bilaterally
with third countries on access to Eurosur. This raises questions about the
conditions governing access to sensitive border surveillance information, as
well as the safeguards applicable to its use, sharing and potential onward
transmission. Almost a decade ago, the EU Agency for Fundamental Rights had
already identified significant fundamental rights risks associated
with third-country access to Eurosur. The proposed expansion therefore makes
these concerns all the more relevant.
A
new operational chain of command.
New Article 71 introduces a commander for operational activities. This could
help clarify operational responsibilities and improve the organisation of joint
operations. However, the relationship between the newly introduced commander
and the coordinating officer, who represents the Agency on the ground, remains
unclear. Without a precise delineation of their respective functions and
powers, the reform risks creating further uncertainty over who is ultimately
responsible for operational decisions and, consequently, for violations arising
in the course of operations.
Accountability and fundamental rights: safeguards
left behind
While
the proposal substantially expands the Agency's operational capacity, it does
little to address the accountability gaps identified in the implementation of
the current Regulation. Several of the existing shortcomings remain unchanged,
while other amendments risk weakening the independence and effectiveness of the
mechanisms designed to prevent and address fundamental rights violations.
Shared
responsibility and effective remedies. Article 7, establishing a “shared
responsibility” framework between Frontex and the Member States, remains substantively
unchanged, despite the Commission itself having identified the lack of clarity
surrounding shared responsibility as a shortcoming in its evaluation of
Regulation 2019/1896 (Working Doc., p.18). The difficulties of attributing
responsibility for violations committed during joint operations, and the
resulting obstacles to effective judicial protection, therefore remain
unresolved (briefly addressed here). The complaints mechanism is likewise left
unchanged (see here, pp. 112-113), while proposed Article 98 does
nothing to clarify how individuals affected by the Agency's activities can
effectively access remedies under EU law. This is particularly problematic in
light of the considerable expansion of Frontex's operational footprint
envisaged by the proposal.
A
weakened framework for independent fundamental rights oversight. The proposal also raises concerns about the
institutional independence of the Agency's fundamental rights office. The proposal
removes the current obligation under Article 110(3) to assign at least one
Fundamental Rights Monitor to each operation. Under proposed Article 130(4),
the deployment of monitors would instead depend on a risk assessment prepared
by the FRO in coordination with the Executive Director. Moreover, monitors
would require the Executive Director's agreement to carry out their monitoring
activities. Making both their deployment and their activities contingent on the
approval of the head of the Agency raises serious concerns about their
independence.
Moreover,
under the new Article 119, the Management Board could exercise disciplinary
authority over the Fundamental Rights Officer (FRO), despite being composed of
representatives of the Member States and the Commission whose activities and
decisions may themselves be subject to the FRO's scrutiny. This creates an
evident institutional tension and seems to be inverting the accountability
relationship between the Agency's management and its independent fundamental
rights oversight body.
As
briefly mentioned above, the situation is even more troubling in crisis
situations. In those circumstances, fundamental rights monitoring could be
carried out through an ex post review of activities, unless the Member State
concerned requests otherwise. This risks hollowing out the preventive function
of monitoring precisely in the circumstances where the risk of violations is
highest: rapid deployments, high operational pressure and limited planning.
Suspension
of operations. The
proposal amends the rules on suspending or terminating operations, but does not
address the underlying problem: the final decision to suspend or terminate an
operation in the event of serious or persistent fundamental rights violations
remains with the Executive Director. In addition, under proposed Article 52(8),
before suspending or fully terminating a joint operation in a Member State on
these grounds, the Executive Director would have to consult the Management
Board. This adds a further institutional step, and a further layer of Member
State influence, to a decision that should be guided first and foremost by the
protection of rights. The current Article 46 has reportedly been applied only once, according to the Commission's response to a
parliamentary question in 2021. Rather than making this safeguard more
effective, the proposed changes risk making its application even less likely.
Conflicts
of interest and independent oversight. Finally, the proposal does not amend the
provisions on conflicts of interest, now set out in Article 138. This is a
notable omission given the revolving-door concerns illustrated by the former
Executive Director's subsequent move into a political role in the European
Parliament. An Agency with a growing budget, workforce and operational reach
requires robust rules on post-mandate activities and independent oversight of
its leadership. For a broader analysis of the Agency's non-judicial
accountability mechanisms, see here.
Conclusion
The proposed recast expands Frontex's powers and
operational capacity without adequately addressing the accountability gaps that
have accompanied the Agency's development. If anything, several amendments
point in the opposite direction: the potential narrowing of the FRO's mandate, the
weakening of systematic fundamental rights monitoring and the additional
institutional hurdles to suspending operations in cases of serious fundamental
rights violations. The expansion of the Agency's operational reach,
particularly into third countries and the field of returns, makes these
shortcomings even more consequential.
Strengthening
Frontex's operational capacities cannot come at the expense of independent
oversight, clear lines of responsibility and effective remedies. As the
proposal moves through the legislative process, the European Parliament and the
Council have both an opportunity and a responsibility to ensure that the
Agency's growth is matched by a corresponding strengthening of its
accountability framework.
The
pending Hamoudi and WS cases may soon clarify important aspects
of the Agency's liability and access to judicial remedies. Yet the Commission
has missed an important opportunity to address the underlying accountability
gaps and ensure that the expanded mandate is accompanied by an accountability
framework fully compatible with EU values and fundamental rights standards. As
currently drafted, the proposal risks making the Agency more powerful without
making it more accountable.
Together
with Prof. Moreno Lax, I have proposed a number of amendments aimed at addressing these shortcomings and
closing some of the existing accountability gaps. The legislative process is a
rare opportunity to address some of them. The question is not simply how much
more Frontex should be able to do, but how its growing powers can be
effectively controlled and exercised in full respect of fundamental rights.
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