Hamoudi v Frontex: Advocate General Norkus’ Opinion - Reversing the Burden of Proof and the Presumption of Frontex’s Privileged Access to Evidence

 

Antje Kunst*

*Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union.  

Photo credit: Francesco Placco, via Wikimedia Commons

 

Introduction

Following the hearing  on 4 February 2025 by the Grand Chamber on the appeal of Hamoudi v Frontex in Case C-136/24 against the General Court (GC)’s Order of 13 December 2023 the Advocate-General rendered his opinion on 10 April 2025 (‘Opinion’).  

As outlined  here, the case of Hamoudi v. Frontex involves a Syrian asylum seeker, Mr. Alaa Hamoudi, who, claims that on 28 and 29 April 2020 he was a victim of collective expulsion in the Aegean Sea. In this context, Mr. Hamoudi asserts that while a group of 22 individuals including himself were at sea, a private surveillance aircraft, equipped with a camera and operated by the European Border and Coast Guard Agency (Frontex), flew over the scene twice. A highly damaging report by the EU Anti-Fraud Office (‘OLAF report’) on Frontex was made public through an NGO in October 2022 and covered precisely the period in question — including April 2020 — and confirmed that incidents of pushbacks occurred under Frontex's watch, involving Frontex surveillance aircraft in the Aegean Sea.

In an action for damages before the EU General Court, Mr. Hamoudi requested that he be compensated by Frontex for the non-material damage suffered due to the collective expulsion. In his arguments before the General Court Mr. Hamoudi inter alia asserted that because Frontex surveillance aircraft flew over the collective expulsion it had specific knowledge of that incident but failed to report it and take appropriate action as per its mandate (see para. 11 of the Opinion)

The General Court dismissed the action as manifestly lacking any foundation in law. It found that Mr. Hamoudi had failed to prove the actual damage he claimed to have suffered. The evidence adduced by the appellant ‘was manifestly insufficient to demonstrate conclusively that he was present at and involved in the alleged incident of 28 and 29 April 2020’ (see paras. 39 and 62 of the Court Order).  

Advocate General's limited Analysis: Reversal of the Burden of Proof

As requested by the Court of Justice of the European Union (‘Court of Justice’ or ‘CJEU’) the Advocate General centred his analysis on a possible reversal of the burden of proof in relation to the existence of damage in collective expulsion cases. (para.22 of the Opinion).  In doing so, he looked in detail at the case-law of the Court of Justice in various areas including discrimination (paras. 30 to 37 of the Opinion) and the case law of the European Court of Human Rights (ECHR) in expulsion cases (paras. 40 to 50).

In his analysis of the case-law of the ECHR in expulsion cases he considered the recent successful collective expulsion case of A.R.E. v Greece in particular ‘instructive’.

Importantly, the Advocate General referred to the fact that in A.R.E., the ECtHR applied its case law on the burden of proof related to secret detention cases. Once the applicant presents prima facie evidence, the Court may draw strong adverse inferences from the respondent government’s failure to disclose essential documents to establish the facts, or failure to offer a satisfactory and convincing explanation of the alleged events. (paras. 41 to 44 of the Opinion)

In line with the jurisprudence of the CJEU and ECtHR, the Advocate General rightly emphasizes that the burden of proof cannot be placed on the claimant to establish facts or produce evidence that is likely to be exclusively in the possession or control of the respondent, here Frontex. If any concrete evidence of collective expulsions exists, it is far more likely to be held by the alleged perpetrator rather than the victim. (para. 51 of the Opinion)

The Advocate General’s three conditions

In the Advocate General’s view, based on the CJEU’s and ECtHR’s case law, the burden of proof may be reversed in cases like Mr. Hamoudi’s case when three conditions are met.

The FIRST CONDITION: (see para. 57 of the Opinion) is that the claimant must present prima facie evidence in support of his or her claim. If the claimant’s account is inconsistent, incoherent, or if the claimant lacks credibility, this initial burden is not met, and the case should be dismissed. Consequently, the reversal of the burden of proof becomes relevant only once a prima facie case has been established. In this context, the Advocate General relies in particular on the case law of the ECtHR, for example as set out in the recent case of G.R.J. v Greece (see § 179).

As stated here, from the questions of the judges at the hearing it appears that the Court of Justice is considering to hold that prima facie evidence had been presented by Mr. Hamoudi. In any event, the Advocate General correctly opines that the General Court may have placed the ‘evidentiary bar’ too high in the first place (para. 64 of the Opinion). In this context, though, the Advocate General omits that the General Court in its assessment of the evidence failed to consider the various contradictory public statements about the events by Frontex outside the proceedings, in particular when the OLAF report was made public and crucial general contextual evidence. Such general contextual evidence was considered in the recent G.R.J. and A.R.E. cases by the ECtHR. This evidence led the ECtHR to conclude that there is a systemic practice of pushbacks in the Aegean See and that the Greek Government failed to refute the evidence by providing a satisfactory and convincing alternative explanation (see § 190 in G.R.J. and § 229 in A.R.E. and footnote 80 of the Opinion).

The SECOND CONDITION: (para. 59 of the Opinion) for the burden of proof to shift is the existence of a clear or structural imbalance in access to evidence—specifically, where the claimant faces significant obstacles in presenting evidence, while the respondent, in this case Frontex, is in a better or more privileged position to refute the allegations. Mr. Hamoudi, a vulnerable asylum seeker with his mobile phone confiscated, lacks the evidence to prove Frontex’s involvement in the events, whereas the respondent is best placed, in a privileged position to prove or disprove the allegations (see in more detail under: ‘Presumption of privileged access must be applicable to Frontex’). There can be no doubt that the second condition is met.

The THIRD CONDITION: (para. 60 of the Opinion) is that the failure to shift the burden of proof would render ineffective the claimant's (fundamental) rights protected under EU law while a shift would not undermine the respondent’s (fundamental) rights under EU law. In Mr. Hamoudi’s case the failure to shift the burden of proof would render ineffective his fundamental rights inter alia under Article 19 of the EU Charter of Fundamental Rights and undermine his right to an effective remedy under Article 47 of the Charter. The shift would not undermine any (fundamental) right of Frontex under EU law. On the contrary, by providing evidence to prove or disprove the allegation, Frontex assists the Court in reaching an accurate outcome (regarding a public authority’s duty pursuant to Article 24 of the Court’s Statute to assist the Court in reaching the correct result see more here).

Presumption of privileged access to evidence not applicable?

Somewhat surprisingly towards the end of the Advocate General’s Opinion, he expresses the view that the presumption established in the jurisprudence of the ECtHR on expulsion cases—namely, that the claimant is at a disadvantage in presenting evidence while the respondent is in a stronger or more privileged position to rebut the allegations – may not be applicable to Frontex. The ‘automatic’ shift of the burden of proof, once prima facie evidence has been presented, allegedly could only be applied when the authorities of a Member State are involved (paras. 61 and 62 of the Opinion). This despite the fact that the AG opined earlier in his Opinion (para. 29) that the differences in the procedures before Strasbourg and the CJEU are more apparent than they are real.

According to the Advocate General, actors like Frontex possess more limited powers compared to the authorities of a Member State, and it was unclear whether—and to what extent—their actions contribute to the difficulties claimants face in adducing evidence of their involvement in the events at issue. Due to these limited powers, it was not clear that they would be in a better or more privileged position to rebut the claimant’s allegations (para. 62 of the Opinion).

The Advocate General’s suggestion that Frontex’s actions must have contributed to the difficulties experienced by the claimants in adducing evidence of their involvement in the events at issue is misplaced. This is not a requirement under the case law of the Court of Justice, nor under that of the ECtHR. According to this case law, it is sufficient to establish the evidentiary difficulties faced by the applicant and the respondent’s capacity to provide evidence in rebuttal.

It is wholly irrelevant whether a Member State may have more authority over certain types of evidence.  The issue is not whether Frontex differs from a Member State in terms of powers over evidence but rather who holds relevant evidence, and who does not. This must be assessed in casu,  e.g. here in relation to Hamoudi and Frontex. The Agency is not being asked to produce evidence concerning Member States’ actions, but rather evidence regarding its own actions or inactions, and knowledge, particularly in light of its established presence and two active joint operations in the region.

At the hearing, Frontex claimed its hands were tied because it did not have access to evidence held by the Member State. This is irrelevant, what matters is that it has evidence in its possession and control that may reveal what the agency did, failed to do, or knew regarding the alleged collective pushback action on 28 and 29 April 2020 in the Aegean Sea.

Undesirable Consequences of having to demonstrate Privileged Access to Evidence

If, as the Advocate General proposes, the burden of proof only shifts when it is first shown that Frontex is better placed to refute the allegations than a claimant, then in practice, the burden might never shift. The Court of Justice should firmly reject this approach.

Accepting that Frontex is - unlike a Member State - not presumed to have privileged access to evidence would undermine its positive obligations to protect fundamental rights of individuals in distress at sea and enable Frontex’s impunity and outright ignores a textual reading of article 7(4) in line with article 80(2) and 80(3) of the Frontex Regulation, which outlines the exclusive positive human rights responsibilities that Frontex has within the context of joint operations. It would risk making Frontex’s legal obligations unenforceable. This would also contradict the Advocate General’s THIRD CONDITION outlined in paragraph 60 of the Opinion.

Presumption of privileged access must be applicable to Frontex

Related to Frontex’s own actions, its own responsibility to comply with its own fundamental rights obligations as per the Frontex Regulation, and the harm resulting for claimants, Frontex must be presumed of being in a better or more privileged position in collective expulsion cases such as the present one.

The appellant is a Syrian refugee, pushed back at night, with his mobile phone confiscated and lacks access to the evidence which shows Frontex’s involvement. Frontex, on the other hand, operates its own aerial surveillance systems and joint operations logs and collects video and radar data from its flights. The likelihood that it possesses or has under its control relevant video surveillance footage and/or incidents reports, relevant logbooks on surveillance operations is extremely high which places Frontex in a particularly privileged position with regard to access to evidence in these types of cases. Moreover, it was established in the OLAF report and during the hearing that Frontex was fully aware of the practice of so-called ghost landings pursued by the Hellenic coast guard and from that flows the duty within the context of its joint operations to collaborate with Member State authorities to prevent human rights abuses.

While it is true, as the Advocate General points out, that the General Court did not examine Frontex’s involvement in or knowledge of the alleged events of 28 and 29 April 2020, this omission stems from the General Court’s erroneous exclusive focus on the question of damage to the appellant and whether he was present and affected by those events. However, this cannot mean that Frontex cannot be regarded as possessing or having under control the evidence needed to rebut Mr. Hamoudi’s allegations. (c.f. para. 63 of the Opinion). The very nature of ghost landings entails that the Hellenic Coastguard is no longer present at sea.

Accordingly, Frontex is in the exclusive position and best placed to confirm or deny the prima facie evidence provided by Mr. Hamoudi regarding the events that took place at sea, including whether it had a surveillance aircraft with a camera operating over the area during the collective expulsion of 28 and 29 April 2020 but failed to report it.

If there is an shift of the burden of proof based on the available contextual and personal prima facie evidence, Frontex would not face a probatio diabolica (an impossible proof). It is also not an unreasonable proof for Frontex to provide: recall that its access  led to the damning  report by OLAF which affirmed its presence on the night of 28-29 April. Frontex is not asked to prove facts that lie completely outside its sphere of influence and knowledge (see the case law of the CJEU cited at para. 53 of the Opinion). To the contrary: its being asked to provide evidence regarding events taking place within the very area of the joint operations in the region, falling entirely and exclusively within its mandate.

Conclusion

The Court of Justice in the present case should accept that the three conditions proposed by the Advocate General must be met in expulsion cases like this one for the burden of proof to shift. It should hold that this entails a reversal of the burden of proof for Frontex when the case concerns its own actions or inactions.

Contrary to the Advocate General’s assertion in his Conclusion, the state of the proceedings before the General Court permits the Court of Justice to assess that the appellant adduced prima facie evidence (FIRST CONDITION) which does allow for the burden of proof to shift, as Frontex is in a better and more privileged position than the applicant to prove or disprove its involvement in, and knowledge of, the alleged events (see Footnote 96 of the Opinion). This is not a question for the General Court to determine in proceedings following a referral back to it (contrary to what the Advocate General proposed in his Conclusion of his Opinion).

It is well established that Frontex possesses evidence directly linked to its core (and exclusive) responsibilities, including the gathering of surveillance data, the production of incident and operational reports, and the monitoring of compliance with fundamental rights as per Article 7(4) and 80(3) and 80(4) of the Frontex Regulation. This places the agency in a similarly ‘privileged’ evidentiary position as Member States are in relation to their own responsibilities in this case.

The Court of Justice should therefore set aside the order under appeal, hold that the three conditions for shifting the burden of proof as outlined by the Advocate General are met in Hamoudi’s case as it would have been the case if the respondent had been a Member State (see footnote 96 of the Advocate General’s Opinion). It should refer the case back to the General Court to reassess the matter, taking into account that the burden of proof has shifted to Frontex.

Frontex accountability: an impervious path

 

 

Laura Salzano, PhD student in Constitutional Law, Barcelona University

 

Since its creation in 2004, Frontex’ role and responsibilities have been some of the most debated issues among EU and human rights observers. Reasons for such attention are many: misuse of power, lack of transparency and non-cooperative behavior are just some of the allegations addressed to the Agency by professionals as policy experts and lawyers, academia, activists and NGOs.

 

Such criticisms are not only exogenous to the EU: the Frontex Consultative Forum (established in 2012, it assists the Executive Director and the Management Board in fundamental rights matters) expressed serious concerns in its annual reports for many consecutive years. It disclosed that the Management Board undermined the Fundamental Right Officer’s independence by appointing a former Adviser of the Executive Director as Fundamental Rights Officer ad interim; more seriously, it denounced the Agency’s reluctance to provide the needed human resources to the Fundamental Rights Office and to limit the Forum’s access of information. Also, it brought the ineffectiveness of the Individual Complaint Mechanism to the public’s attention: in 2018 only 3 incidents for alleged violations and 10 complaints were reported: an incredibly low number considering the 1500 officers deployed along the EU’s external borders.

 

Despite the almost total absence of incident reporting, the media revealed many instances in which the Agency’s officials were implicated in acts of physical violence towards refugees through the use of pepper spray, batons, and of dogs to hunt migrants. These deficiencies on human rights are due to its regulatory framework: while Frontex has been progressively granted a higher degree of power in the management operational tasks, its accountability did not grow accordingly. In fact, its competences and powers were strengthened by the 2016 Regulation and then again in 2019 (as discussed here and here).

 

This latter revision created the first EU uniformed service: the European Border and Coast Guard standing corps. The shift from mere assistance to Member States to operative powers was not accompanied by the setting up of a redress mechanism for violations of human rights. This brought the EU Ombudsman to recommend back in 2013 the establishment of an instrument enabling those whose fundamental rights were breached by Frontex to complain. While no action was immediately taken within the Agency, such recommendation was embedded in the 2016 Regulation and then enhanced in 2019. The current mechanism now provides the possibility of lodging a complaint for violations resulting from actions and omissions (Article 111, para. 2) but, as observed  by the Consultative Forum, it substitutes a proper independent judicial review and therefore does not satisfy the right to an effective remedy as enshrined in Article 47 of the EU Charter of Fundamental Rights. To assess this and other issues (i.e., the independence of the Fundamental Rights Officer) the EU Ombudsman has undertaken a strategic inquiry, still pending.

 

More recently, Frontex has come back under the spotlight of political tensions after the publication of an investigation revealing the Agency’s involvement in push-backs at the Greek-Turkish border. Whereas the notion of “push-backs” is not defined under EU law, it is commonly used to describe the set of actions aimed at pushing back migrants and asylum seekers at borders or immediately beyond them - with the purpose of preventing them to reach the protected frontier - without a proper assessment of their status and rights. Such actions often put migrants' lives at serious risk and raise issues with regard to the principle of non-refoulement, protected at EU level by the Art. 19 of the EU Charter.

 

Such serious events triggered a response from the European Commission which, for the first time, took action to investigate the allegations by calling for an urgent meeting. At the moment though, no concrete action has been undertaken yet and when reporting to European Parliament last December 1st, Frontex’ Executive Director was urged to resign.

 

As said, allegations of push-backs were the main subject of the LIBE Committee’s hearing held on  December 1st. In that occasion, for all the six incidents reported by the media, the Agency denied its involvement using several arguments.

 

The first one lies on the legal interpretation of the prevention of departure. As stated by the Agency, those events reported as illegal pushbacks by the media, could instead be interpreted as interceptions under Regulation 656/2014 (Sea Borders Regulation). According to it, if there is evidence to believe that a vessel is involved in smuggling of migrants, States may, inter alia, warn and order the vessel not to enter and alter its course towards a destination other than the territorial sea. As explained, the Regulation frames two kinds of actions that can be undertaken at borders lawfully: interceptions at sea and search and rescue activities. The issue is quite significant, since these operations take place in a grey and evolving area of the law while having the potential to highly impact migrants' human rights. Despite the fact that lawful and unlawful conducts are separated by a fine line, the European Commission's Schengen Borders Code (SBC) handbook restates which legal safeguards border coast guards should always respect, e.g. allowing anyone in need of international protection to access it. In any case, the European Commission, responding to a specific request from the Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea, clarified that the criteria of the well-known N.D. N.T. case do not apply to the present case. Predictably, it specified that being that judgment related specifically to a land border, it cannot be indiscriminately applied.

 

The second argument concerns competence. As the Director declared, full technical command lies within the host Member State: vessels, airplanes and all the deployed means were subject to the sole command of Greek authorities. On the other hand, the Agency enjoys wide supervisory powers, while Member States retain responsibility for the management of the section of their external borders (Art. 7, Reg. 2019/1896). The Management Board establishes - following a proposal from the Executive Director - technical and operational strategies. Moreover, Frontex liaison officers - who act as representatives of the Agency at borders and monitor and assist Member States in their operation - respond to it, as enshrined in Article 31. Also, Frontex exercises such power by means of the vulnerability assessment (Article 32), aimed at establishing Member States' ability to respond to challenges at external borders. Again, the assessment methodology is decided by the Management Board on a proposal of the Executive Director. Such a complicated picture is made even more difficult since the responsibility is shared between a multitude of public actors, usually involved in border control operations: the Host State (where operations take place); the Participating State(s) (other Member State(s) participating in the operation); Frontex’ standing corps. This directly leads to the unaccountability of the Agency: as illustrated by Prof. Fink, “national courts lack the competence to rule on the legality of Frontex’s conduct”, while the ECHtR has no jurisdiction on the EU and before the ECJ the “judiciary is split between a national level that adjudicates on the legality of national conduct and an EU level that adjudicates on the legality of EU conduct.”

 

The third argumentation revolves around the geopolitical context. There is no doubt that the situation at the Greek-Turkish border is a tense one, primarily due to the known border dispute. It was reported that EU Member States are often threatened by F16 planes of the Turkish military forces - thus raising the need to protect Member States’ security - falling in the framework of hybrid threats. In this case, provision of Article 41 on “critical impact level” applies. In fact, the Executive Director shall recommend any possible action needed to address the criticality. In case of situations requiring urgent actions, the European Parliament shall be informed without delay (Art. 43), while Art. 46 bounds the Executive Director to terminate activities if conditions to conduct them are no longer fulfilled. On the contrary, MEPs were informed only on December 1st. In any case, the issue raised deserves attention: working at EU external borders entails carrying out operations in highly sensitive geopolitical contexts. Nevertheless, according to its Regulation, the Agency is only accountable to the European Parliament and to the Council, surely not fully prepared to deal with external affairs, security and defense - being these the core competences of the EU External Action Service.

 

European Union borders management suffers from a specific vulnerability when it comes to the rule of law. Those whose rights are violated are mostly left with unclear, burdensome and inadequate mechanisms. A necessary starting point would be amending the Regulation to define a clear chain of command to identify anyone involved in the concerned action or omission, from the person who physically carried out the action - or did nothing to avoid it and should have - to the Executive Director. As argued by Prof Fink, only an effective ex post remedy accessible to individuals would close the accountability gap, allowing for damage compensation and a clearer identification of the public liability.

 

Barnard & Peers: chapter 26

JHA4: chapter I:3

Photo credit: Rock Cohen, via Wikimedia Commons

EU Migration Agencies: the Operation and Cooperation of Frontex, EASO and Europol

 

 

Dr. David Fernández-Rojo, Universidad de Deusto - davidfrojo@deusto.es

 

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

Photo credit: Rock Cohen, via wikimedia commons

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

Dr. David Fernandez-Rojo, University of Deusto

davidfrojo@deusto.es

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).

The EBCG’s Supervisory Role

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

The new European Border and Coast Guard: Do increased powers come with enhanced accountability?

Mariana Gkliati, PhD researcher at Leiden University, working on the accountability of Frontex for human rights violations during its operations

With the political agreement on the new Regulation reached at the beginning of April, approved by the European Parliament today, the European Border and Coast Guard Agency, Frontex, is now closer than ever to its original conception as a fully-fledged European Border Police Corps. The new law, with its enhanced rules on removal to non-EU countries, will be approved in parallel to changes to the EU's visa code aimed at readmitting more irregular migrants to non-EU countries, discussed here.

The Commission’s proposal was presented in September 2018 and was agreed hastily within only six months, as the goal was for an agreement to be reached within the current Parliament before the European Parliament elections in May 2019. The new agency is expected to become operational this summer.

Moving towards full operational capacity the agency will have its own equipment and personnel, combined with an impressive budget, and is vested with an even broader mandate in border surveillance, returns, and cooperation with third countries.

The ambitions of the Commission have been accepted almost in their entirety. Notably, however, the proposal regarding controlled centres, where relevant EU agencies and participating states would cooperate in enforcing rapid procedures for either asylum or return, and the power of the agency to coordinate return operations from one third country to another did not survive the trilateral negotiations.

The new Regulation wants to address two main challenges. Firstly, it aims towards greater autonomy and operational effectiveness. The heavy reliance of the agency in the voluntary contributions of member states in staff and equipment resulted in persistent gaps that impacted the effectiveness of the agency and its flexibility to deploy border guard teams in a short time-frame.

Secondly, the 2019 EBCG Regulation comes in response to the call of the European Parliament for full implementation of the  IBM Strategy, regarding European Integrated Border Management, which is considered vital for the functioning of the Schengen area. Improving the effectiveness and capabilities of the agency to achieve higher impact levels, while reducing the hold of member states over its operations, and increased cooperation with third states to promote European border management and return standards, while attaining to fundamental rights norms are key components of the IBM Strategy.

This blog focuses on three of the most significant changes brought by the new Regulation from a fundamental rights angle and looks into whether the expanded mandate and powers are accompanied by an equally strong accountability regime. For a more detailed look into the overall changes, you may refer to an earlier blog on this next phase of the EBCG.

The agency’s own operational arm

Currently, Frontex joint operations rely solely on the contributions of member states. Now, the agency acquires its own operational arm: a EBCG standing corps with broad executive powers. Starting with 5.000 operational staff in 2021, the standing corps will be fully operational by 2027 counting 10.000 staff members under the exclusive and direct control of Frontex.

Moreover, the agency can still make use of temporary deployments and long-term secondments from member states, while a rapid reaction pool of 3.000 members will be at its immediate disposal for rapid border interventions. The standing corps will have executive powers similar to the border guards and return specialists of the member states, including competence to perform identity checks and authorise or refuse entry.

Here belongs also the increased capacity for the agency to acquire and operate its own air, maritime and land assets, including aircrafts and vessels. The Commission intends that the agency’s own equipment “should ultimately become the backbone of [its] operational deployments with additional contributions of Member States to be called upon in exceptional circumstances.”

Frontex driving returns

One of the most highlighted changes concerns the enhancement of the agency’s mandate on returns of irregularly staying third country nationals to their countries of origin, which the new Regulation makes a top priority. Frontex is vested with a broad mandate in pre-return and return-related activities, including providing its own return escorts and return monitors and preparing the return decisions.

Such expansive powers increase the possibility for Frontex to be held responsible for fundamental rights violations during its returns, especially since such return flights will be conducted in the agency’s own aircrafts, by the agency’s own escorts.

The inherent sensitivity of forced returns to physical abuse and violations of the right to non-refoulement calls for increased accountability, in the meaning of more possibilities for the agency to answer for the impact of its activities upon fundamental rights.

Forced returns monitoring is a crucial safeguard during return operations. As a step towards that direction, the new Regulation allows the Council of Europe’s Committee on the Prevention of Torture (CPT) to conduct visits to monitor the situation on board.

However, the EBCG Regulation does not abide by the safeguards set down in the Return Directive (Art. 8(6)), which calls for an effective monitoring system. This refers in particular to the independence of the monitoring mechanism, requiring that the authority that carries out the returns is not the same as the one in charge of monitoring the compliance with fundamental rights. The EU Fundamental Rights Agency (FRA) has suggested that the same standards should apply to the agency and has suggested in its report to the European Parliament the involvement of an international body with human rights monitoring expertise. Nevertheless, no such provision for an independent monitoring body with relevant expertise and sufficient resources is made in the Regulation.

Finally, the role of the agency in drafting the return decision which would be subsequently issued by the member states raises its own fundamental rights concerns. Even though the ultimate authority for the return decision rests with the member state, such powers may lead to the informal beyond mandate influence of the agency. This would not be unprecedented. Such concerns have been expressed by NGOs as well as the EU Ombudsman with respect to the extent of the involvement of the European Asylum Support Office (EASO) in assessing asylum applications in Greek hotspots, as in practice the national authorities rely disproportionately on the agency’s decision.

Besides the obvious questions of breach of mandate, state sovereignty, and jurisdictional independence that this raises, mistakes in the issuing of such preliminary decisions may lead to a violation of the rights to family life and non-refoulement or the rights of the child.

The FRA has brought this new power into question, wondering how Frontex deployed staff, which typically originate from different member states and will not be familiar with the national legal framework or the host country language, would be able to ensure compliance with the fundamental rights safeguards emanating from the Return Directive as these have been transposed into national law.

Art. 49(1) of the EBCG Regulation provides that the agency’s return activities will be carried out in respect of fundamental rights. However, the concrete safeguards issued in the Regulation are not adequate to guarantee such protection.

In the centre of extensive data sharing

The information sharing aspect of the agency’s work is also significantly strengthened along with the creation of new specialised structures and mechanisms, while EUROSUR is encompassed in the EBCG Regulation aiming at improving its functioning, and enlarging its scope to cover most IBM components.

In the context of its new powers, Frontex can exchange information with EU agencies, including Europol as well as third countries. This, combined with the interoperability-related competencies of Frontex, creates a quite broad mandate for the processing and especially the sharing of data both within the EU and outside, involving EU institutions, agencies, and law enforcement authorities.

Moreover, as part of the agency’s expansive mandate on returns, Frontex is tasked with developing and operating a centralised return management platform for processing all information. This centralised platform allows for an automated transfer of data.

The information processed in the centralised platform and also shared with third states may include personal data, biographic data or passenger lists, as well as information obtained during the personal asylum interview. This can prove detrimental for the safety of people seeking protection, while it would undermine the trust that is necessary for the asylum interview to allow applicants to present the grounds for their applications.

Nevertheless, this is not accompanied by appropriate safeguards for data protection, as these are suggested by the FRA, with the risk that the Regulation ‘may be perceived as giving the green light for a blanket sharing with the third country of all information that may be considered relevant for returns.’

To the contrary, safeguards seem to even be reduced in the EBCG Regulation, as it fails to correctly transfer the guarantee that is enshrined in the EUROSUR Regulation (Art. 20(5)), that any exchange of data that can be used to identify persons with a pending request for international protection or who are at serious risk of being subjected to torture or other fundamental rights violations are prohibited. In the EBCG Regulation this safeguard is only limited to personal data (Art. 90(4)). Other types of data, that is not covered by this safeguard may still reveal to the state of persecution information regarding a person’s political, religious or philosophical beliefs, or their attempt to flee to the EU and request asylum. This may expose the person or their family to retaliation measures, or allow the country of origin to stop them from reaching safety.

All in all, the new powers of Frontex regarding data processing and sharing can have a major impact on the rights of persons, beyond the right to the protection of personal data.

Steps towards increased accountability

The most significant changes that reflect the increased accountability of the agency in the light of its new powers concern the European Parliament, the Fundamental Rights Officer and the individual complaints mechanism.

The new EBCG Regulation takes steps towards increased political accountability, involving the European Parliament and national parliaments. To ensure effective scrutiny by the democratic institutions, the Regulation introduces greater inter-parliamentary cooperation.

The agency’s management board is required to attend joint meetings of the European and national parliaments, while it could – not should – invite an expert of the European Parliament to attend its meetings.

Finally, the European Parliament has now a new role with respect to cooperation agreements conducted with third countries. It will be informed before a working arrangement with a third country is concluded about the parties and the content of the agreement, but the agreement itself will not be shared. Similarly, when negotiating a status agreement with a third country, the Commission will make a fundamental rights assessment relevant not to the whole country, but only to the areas covered by the agreement, of which assessment the European Parliament will be informed.

Moreover, the role of the agency’s Fundamental Rights Officer (FRO) is enhanced as she acquires a preventive function, being tasked with providing opinions upon all operational plans, as well as pilot projects and technical assistance projects in third countries. Furthermore, Frontex liaison officers are tasked to cooperate with her. What is more important is that FRO is tasked with publishing an annual report regarding the protection of fundamental rights in the agency’s activities, which shall also include information about the complaints mechanism and the implementation of the Fundamental Rights Strategy.

In the light of her already increased mandate, the workload of the FRO has significantly increased without a proportionate increase in the necessary staff and resources, so that it has become increasingly difficult for her to fulfil her tasks. The agency recruited in November 2018 additional staff to support the FRO, but this only includes junior staff. Art. 107 (2a) of the Regulation promises that the FRO will be provided with necessary resources and personnel, however, without making concrete commitments, like in the case of the number of border guards.

Finally, the crown jewel of administrative accountability, the individual complaints mechanism introduced in 2016, becomes all the more relevant with the expansion of the agency’s activities in third countries where victims of violations do not have access to EU judicial remedies due to lack of jurisdiction. Notably, the reach of the complaints mechanism is now expanded to cover operational activities in third countries.

Moreover, the FRO will draft a standardised complaints form in an effort to enhance the accessibility of the procedure. She will also recommend to the Executive Director the appropriate follow-up when the complaint concerns a staff member of the agency, which has been specified in the Regulation to include ‘referral to civil or criminal justice procedures’.

This, however, still remains in the discretion of the Executive Director, as the Regulation does not introduce requirements as to the appropriate follow-up. More importantly no remedy is made available against the admissibility decision of the FRO or the decision of the Executive Director. Moreover, the mechanism remains highly inaccessible to ‘new arrivals’, including unaccompanied minors, while the FRO was not allowed to initiate a complaint ex officio.

Although these changes are certainly a step to the right direction in terms of increased accountability, they nevertheless do not correspond to the expansion of powers and competencies of the agency in any of the areas of its activity discussed here.

In particular, the role of the European and national parliaments remains fairly limited to be able to ensure effective political accountability, while, unless the FRO is provided with sufficient staff and resources, she will not be able to fulfil her preventive role. Finally, there is still ample room to be covered for the complaints mechanism to meet the international standards of accessibility, institutional independence, and adequate capacity for evidence-based investigation.

Barnard & Peers: chapter 26

JHA4: chapter I:3

Photo credit: bmi.bund.de