THIS IS AN EXECUTIVE SUMMARY. (ACCESS TO THE FULL STUDY (40 pages) HERE)
by Dr. Jorrit Rijpma
The Commission proposal for a European Border and Coast Guard Authority brings together a reinforced (and renamed) Frontex – the European Border and Coast Guard Agency (EBCGA) – and the Member States’ border guard authorities under the umbrella of a European Border and Coast Guard (EBCG), making them jointly responsible for the management of the external borders. The proposal defines for the first time the notion of European integrated border management. It significantly broadens the scope of the new Agency to include internal security and measures within the area of free movement. The proposal reinforces both Frontex’s regulatory and operational role. In addition, it gives the Agency a supervisory role, placing it in charge of Vulnerability Assessments.
As such, the EBCG proposal is an important next step in the progressive Europeanisation of external border management. That said, the proposal is not a revolutionary leap forwards, as it preserves the fundamental premise that the Agency neither has its own border guards nor powers of command and control over national border guards.
Still, a proposal of this complexity, with substantial financial implications and an obvious impact on fundamental rights, deserves careful consideration.
The proposal does not address some key questions as regards accountability for operational activities at the external borders and is rather likely to add to the current unclear division of responsibilities. There is, moreover, a danger of placing unrealistic expectations on the Agency.
It seems contradictory that Member States would be willing to accept more binding obligations under this proposal, while nothing prevents them from furnishing the Agency with the necessary tools now. Likewise, it would be naïve to think that greater powers and a new name for Frontex might suddenly remedy structural flaws in some Member States’ external border management systems.
Although the current crisis may have exposed shortcomings in Frontex’s current legal framework, the proposal does not constitute a genuine emergency measure designed to tackle a short-term problem. Therefore, if this proposal is to stand the test of time as the regulatory framework for external border management, it is important to carefully consider the structural implications of the rules currently being considered for adoption.
With this in mind, this analysis highlights some of the central challenges in the new EBCG framework and provides some recommendations on how these might be addressed.
Supervisory role
The Agency’s supervisory role also entails drawing up Vulnerability Assessments to identify operational weaknesses in external border management. In this regard, it is important to:
– Clarify the relationship between the Schengen Evaluation Mechanism and the Vulnerability Assessment model.
– Ensure that the Agency’s supervisory role does not prejudice working relations in the field of operational cooperation.
– Introduce a fundamental rights component into the Assessments.
Regulatory role
Under the proposal, Member States would be obliged to provide the Agency with relevant information for its risk analysis.
– A more specific explanation of what constitutes relevant information could help to clarify the extent of this obligation.
– If the Agency were to be given access to European databases, this would have to be under strict conditions, taking into account relevant data protection legislation.
Operational role
Availability of human and technical resources
The proposal aims to remedy the current lack of human and technical resources. As such, in emergency situations, Member States would be required to provide border guards, with no possibility, as is currently the case, to invoke an emergency situation requiring their deployment at home. Similar, yet weaker provisions have been included as regards the obligation to make available technical equipment.
The Agency will be allowed to acquire its own equipment.
In addition, the Commission proposal provides for a right to intervene where a Member State does not follow up on the recommendations from the Vulnerability Assessment or in a situation where insufficient external border controls would put the overall functioning of the Schengen area at risk. This latter provision has, however, been amended in the Council text, which provides for a similar mechanism for reinstatement of the internal borders as under article 26 of the Schengen Borders Code.
– The unqualified obligation to make border guards available for rapid border interventions and the ‘right to intervene’ under the Commission’s proposal arguably contravene the Member States’ ultimate responsibility for internal security under the Treaties (Article 4(2) TEU and Article 72 TFEU).
Expansion of tasks and powers of guest officers
Guest officers’ powers may be considerably broadened by the host Member State, allowing these officers to act on its behalf. Guest officers would also have automatic access to European databases. The proposal should:
– Clearly state that guest officers act at all times within the scope of EU law and hence within the scope of the Charter of Fundamental Rights.
– Clearly state that, to the extent that national powers are delegated to guest officers, these officers should be considered to act as agents of the host Member State for the purpose of determining international responsibility.
Hotspot approach
The proposal gives the Agency a key role in the hotspot approach.
This is problematic as it seems to contradict the multi-agency purpose and nature of the hotspot approach, risking a one-sided focus on border control.
The Commission is thus much better placed to coordinate the activities of the Migration Management Support Teams.
-The hotspot approach and its legal and operational framework require prior definition, preferably in a separate legal framework, before making the Agency responsible for its functioning.
– If the Agency were to take primary responsibility for the hotspots, a reference to international protection should be included in the concept of integrated border management.
Return cooperation
The Agency would gain significant operational powers in the area of return with three new on-call lists of Member State officials: forced return monitors, forced return experts and return specialists.
The proposal provides for three types of return operations: return from a combination of Member States organised and carried out by the Member States and coordinated by Frontex; collecting return operations where the means of transport and return escorts are made available by a third country; and mixed return operations, where a number of returnees are transported from one third country to another.
There are a number of important concerns as regards the provisions on return that need to be addressed. It is important to:
– Detail the tasks, powers and responsibilities of these officials. Attention should be paid to the specific legal regime applicable on board aircrafts.
– Extend reporting obligations to return operations and include a role for the Agency’s Fundamental Rights Officer.
– Allow for collecting return operations only if the third country concerned is a party to the European Convention on Human Rights (ECHR).
– Allow for mixed return operations only if there are sufficient guarantees that the third country’s return decision and procedures comply with EU fundamental rights standards.
Information exchange and data protection
The proposal would transform the Agency into the central hub of information exchange of the EBCG, expanding its powers to collect and transmit data not only on people suspected of cross-border crime, but on irregular third country nationals.
This requires sufficient data protection rules. As pointed out by the European Data Protection Supervisor (EDPS), the proposal has important flaws in this regard and requires clarification.
The proposal should:
– Clearly distinguish between the different purposes for which data is processed, because migration management and criminal law enforcement are covered by separate legal regimes.
– Exhaustively list the purposes for which data may be processed.
– Indicate not only the categories of people whose data may be processed, but also specify which data may be processed.
– Clearly distinguish between the transfer of data to third parties within and outside the European Union.
Operational cooperation with third countries
The proposal would allow for joint operation activity on the territory of third countries. Cooperation with third countries should not allow the Agency and EU Member States to lower EU standards.
As such:
– Cooperation should be limited to third countries that are party to the ECHR and
the Geneva Convention and its Additional Protocol.
– The safeguard whereby liaison officers may only be posted to countries with human rights-compliant border practices should be reintroduced.
Coastguard
The provisions on the role of the Agency and the Member States in a European Coast Guard are the least developed part of the proposal and are largely limited to an obligation to exchange information. It is therefore important to clarify the extent to which this may involve the processing of personal data. Furthermore, it is important:
– To clarify the relationship between the military and the Agency in maritime border surveillance operations and any other Member State military involvement in integrated border management.
– To include Search and Rescue provisions to allow the Agency to play a more active SAR role without affecting the international SAR framework.
Constitutional considerations
It is submitted that, under the current rules on delegation of powers to Union bodies, it is not possible to delegate genuine executive powers to the EBCGA.
The Commission proposal respects these limits. Nonetheless, the removal of the ‘emergency situation’ exception for the deployment of human and technical resources, as well as the ‘right to intervene’, are at odds with the Treaty principle of ultimate responsibility of the Member States for their own internal security. Moreover:
– Careful consideration should be given to which decisions are politically sensitive and should be reserved for the Management Board and which are more technical and operational and should be left to the Executive Director.
Fundamental rights considerations
The significant reinforcement of the tasks of the Agency without the transfer of genuine executive powers to the Agency (for the reasons set out above), as well as the explicit affirmation of a shared responsibility for European integrated border management, will only exacerbate the existing conundrum as regards shared accountability.
While the introduction of an individual complaints mechanism is an important positive development, the Commission’s assertion that the mere existence of such a mechanism makes the Agency’s actions fundamental rights-compliant is clearly exaggerated.
Indeed, the proposed fundamental rights mechanisms require further refinement:
– The complaints procedure provisions must lay down rules on format, content and deadlines or should empower the Agency to set such rules.
– The Executive Director’s obligation to suspend or terminate operations in the event of fundamental rights violations should be further detailed and should provide for a role for the FRO and take into account the results of relevant monitoring mechanisms.
– The obligation for the Agency to set up a fundamental rights monitoring mechanism – with a broad review of fundamental rights at the external border – should be reintroduced.
– The FRO’s obligation to report to the Consultative Forum should be reintroduced.
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