February 7, 2017
By David Fernández Rojo
As a result of the migratory crisis, the transformation of Frontex into a European Border and Coast Guard (EBCG) became a political priority for both the EU and the Member States. Regulation 2016/1624 aims to strengthen the position and independence of the EBCG from the Member States, which have not always fully cooperated with Frontex. Precisely, the Commission argued that Regulation 2016/1624 would provide the EBCG “the additional competences needed for it to effectively implement integrated border management at Union level (…)” and overcome the discrepancies that still remain at the national level.
Firstly, Regulation 2016/1624 grants the EBCG a supervisory role to ensure a common integrated management of the EU’s external borders. If certain weaknesses were identified at the national external borders, the executive director of the EBCG shall recommend the adoption of specific measures by the concerned Member States. Supposing these measures were not implemented in an effective or timely matter, the management board of the agency would adopt a binding decision setting out the necessary measures that the Member States must implement (article 13(8)).
Secondly, Regulation 2016/1624 delegates the EBCG greater technical and operational competences (article 18(2)). In order to effectively assist the Member States, the EBCG may acquire its own technical equipment (article 38) and it will have at least 1,500 border guards at its disposal to be immediately deployed in joint operations or rapid border interventions (article 20(5)). Yet, the EBCG is not fully independent, given that Regulation 2016/1624 has not transformed its management board composition (a representative per Member State and two representatives of the Commission). The Member States will thus maintain control of the strategic decisions and the daily management of the EBCG, entrusted respectively to the management board and the executive director of the agency.
Lastly, the most contentious competence is what has been referred to as the EBCG’s intervention capacity. The new agency is empowered to monitor the effective functioning of the external borders of the Member States, carry out vulnerability assessments, verify whether a Member State is able to effectively enforce EU law and detect deficiencies in the management of its borders. If a Member State either fails to take the measures recommended in its vulnerability assessment or does not take the necessary action in the face of disproportionate migratory pressure, the EBCG shall adopt a unified and effective EU approach, since the functioning of the Schengen area might otherwise be jeopardized. Specifically, the director of the EBCG must, after reaching an agreement with the Member State concerned, determine the actions to be taken for the practical execution of the measures decided previously by the Council (article 19(4)). If the Member State does not implement these measures, the European Commission may authorize the other Member States to reestablish border controls at the Schengen area (article 19(10)). Hence, it is debatable to what extent the new agency will be capable of imposing the execution of certain measures to a Member State that completely opposes to them.
The shared implementation powers delegated to the EBCG are still very limited, since border management is an area closely related to state-centered matters such as sovereignty, fundamental rights or trade. Yet, aware of the impact the expanded competences of the EBCG may have in the fundamental rights of the individuals, Regulation 2016/1624 set up an individual complaint mechanism within the mandate of the Fundamental Rights Officer (FRO) of the agency. Taking into account the new tasks and the diffused allocation of responsibilities among the actors involved at the European external borders, this mechanism is a significant but insufficient step forward. Regulation 2016/1624 does not clarify the allocation of responsibilities between the EBCG and the Member States. Article 5 merely states that the agency shares its responsibility with the national authorities in implementing a European integrated border management but Member States retain primary responsibility for the management of their sections of the external borders.
The main issue of the individual complaint mechanism is based on its lack of independence and impartiality. The mechanism presents an administrative nature, implying that it is not fully autonomous to independently operate from the EBCG and cannot investigate alleged fundamental rights violations conducted by national border guards. Furthermore, the Executive Director, who is in charge of reporting back to the FRO about the measures to be taken regarding an admitted complaint, is not independent of the agency. Moreover, the effectiveness of the complaint mechanism would be strengthened if the FRO were competent to carry out the investigation of the complaints presented and to enforce the measures adopted. Thus, the mandate of the FRO should be enhanced since she does not have the power to suggest operational improvements to existing processes, to implement a plan to execute the measures adopted by the agency or Member States, or to impose any sanctions against the agency.
No remedies are available within the EBCG if the complainant is not satisfied with the reply or the inadmissibility of his or her complaint, or if the measures adopted by the agency or the respective Member State are not executed. In this respect, offering the individual the option to file a complaint of maladministration against the agency at the European Ombudsman would effectively ensure the complainant’s rights. For instance, the European Investment Bank, which has a complaint mechanism in place, signed a memorandum of understanding with the European Ombudsman, who committed to use its own initiative power systematically to handle complaints filed against the Bank by non-eligible complainants (individuals who are not citizens of the EU or not residing in a Member State).
To conclude, while the European Commissioner, Dimitris Avramopoulos, referred to the new agency as “a fully-fledged European Border and Coast Guard system”, Regulation 2016/1624 has not created a federal agency with centralized powers in the management and surveillance of the European borders. The EBCG constitutes another necessary and timid step towards the long-term objective of establishing an integrated management system for the European external borders. The deliberately ambiguous text of Regulation 2016/1624 responds to the difficulty in achieving the balance between the need for an effective and uniform implementation of the European border management rules and policies and the resistance of the Member States to further delegate competences closely linked to their national sovereignty. The EBCG, despite its new fancy name, will continue to operate in a decentralized border management system. However, the emerging shared enforcement powers and competence to intervene of the EBCG open up new EU fundamental rights challenges that the individual complaint mechanism insufficiently addresses.
David Fernández Rojo is a PhD candidate and Researcher at the University of Deusto. He conducts research on the topic of Accountability of Justice and Home Affairs EU Agencies. He is interested in EU Migration, Asylum, Border Management, Detention and accountability. He also works as an academic advisor at TheGoodLobby.Author : TARN