February 10, 2020
by Evangelia (Lilian) Tsourdi
EU agencies are now at the forefront of policy implementation in EU’s migration, asylum and external border control policies for two primary reasons: to overcome the policy implementation gap and enhance interstate solidarity. Focusing specifically on the de jure and de facto mandate expansion of the European Asylum Support Office (EASO) and the European Border and Coast Guard Agency (EBCG, commonly referred to as Frontex), two broad trends become apparent:
Firstly, the operational expansion of EU agencies’ mandates has led to patterns of joint implementation, with their staff and experts deployed in fields such as border control, returns and the processing of asylum claims. For example, Greek national law allows EASO-deployed experts to conduct parts of the asylum process that entail executive discretion (i.e. to emit non-binding opinions on the admissibility of claims and conduct interviews in the merits stage, while the final decision on admissibility and on granting international protection rests with the Greek Asylum Service). In addition, these agencies are increasingly operational in third countries due to bilateral or multilateral agreements. This is linked with the impetus of the EU on externalising protection obligations, as exemplified by the 2016 EU-Turkey deal.
Secondly, their mandate has expanded to encompass functions that far exceed support, including operational support and administrative cooperation. Reference is made to monitoring-like functions, as well as to functions which have the potential to steer policy implementation. Monitoring-like functions include Frontex’s vulnerability assessment, which could lead to recommendations; a binding decision of measures set out by its Management Board; or, in cases where the external borders require urgent action, a Council implementing act prescribing measures which become binding for the member states.
Given the member states’ support for increased agency involvement these two trends will only intensify. They may well become the precursor of more radical shifts in the implementation modes of these policies. Nevertheless, in the immediate future these agencies will need to find responses to several challenges, such as resourcing, independence, accountability and respect for fundamental rights. Below, I outline three key challenges for Frontex and EASO in this evolving administrative landscape.
Balancing Joint Implementation and Supervision
The first challenge is addressing the potential tension between the two roles (i.e. joint implementation and monitoring) of their expanded mandates. The recently agreed Regulation on the European Border and Coast Guard (EBCG 2019) enounces European integrated border management as “a shared responsibility of the Agency and of the national authorities responsible for border management”, while recognising in the same article that “Member States shall retain primary responsibility for the management of their sections of the external borders.” Increased EBCG resources (financial, human) and the executive powers foreseen for its statutory staff and deployed national personnel (subject to the authorisation of its host member state) can be understood as effective means by which the EU can undertake its responsibility in operationalising European integrated border management. No legal text explicitly enounces this conception of shared responsibility in the context of asylum; not even the proposal for a revamped European Union Agency for Asylum (EUAA 2016). However, the increased operational role foreseen for deployed experts and EASO staff – whether de jure or de facto – can be considered as implicitly moving in the same direction.
The monitoring-like functions of EU agencies (e.g. EBCG’s vulnerability assessment and role of liaison officers, EUAA’s monitoring mechanism) are inscribed in a different trend. These processes can be seen as supplements of the Commission’s supervision mandate. These mechanisms are circumscribed in their focus on technical and operational aspects (i.e. the existence of capabilities, infrastructure). In fact, they serve a double purpose: on the one hand, they identify particular pressures to mobilise assistance and map out weaknesses in order to remediate them; on the other, they are linked to the gradation of enforcement-type measures that could culminate into the adoption of Council implementing acts.
The two limbs of the expanded mandates – supervision and operational – are linked. Structural shortcomings and capacity issues first identified through the supervision-like processes could then be (partially) overcome through the additional deployment of human and technical resources and enhancement of joint implementation actions. There is also an inherent underlying tension, especially if these monitoring-like functions gradually expand from technical aspects to the supervision of the implementation of the policies themselves, as was the European Commission’s initial conception of the EUAA monitoring mechanism. In this case, the agencies would be called on to play a double, and at times contradictory role: implementing jointly while simultaneously supervising the implementation of these policies. The example of the current operationalisation of the ‘hotspot approach’ in Greece is telling.
Enhancing European Solidarity through Agencies
The second challenge is to meaningfully enhance interstate solidarity and fair responsibility-sharing through structural interventions of EU agencies. By deploying operational personnel (made available through member states’ administrations or personnel) and equipment (made available through member states or their equipment), Frontex and EASO enhance the human and financial resources of individual member states by drawing from the EU budget. Further agency activities – for example the creation of centralised Country of Origin Information (COI) to assess asylum applications – create economies of scale, thus boosting implementation capacities further. The operational element was initially tied down to the notion of emergency, rendering it – in theory – an exceptionality, given that the entire operationalisation of the solidarity principle under Art.80 TFEU was emergency-driven.
However, the EU seems to be moving away from such emergency-driven conceptions of agency involvement (and indirectly of intra-EU solidarity and fair sharing). This is exemplified by Frontex’s move (see Annex I) to increase its operational (i.e. statutory) staff to 3,000 by 2027, while the number of staff to be provided by member states for long-term secondments (i.e. minimum of 24 months, extendable once for an additional 12 or 24 months) should reach 1,500 by 2027, and for short-term deployments should reach 5,500 by 2027. The total would amount to 10,000.
These numbers point to structural involvement in policy implementation, and consequently to structural forms of interstate responsibility-sharing. The new enhanced role of Frontex in return policy, including in the coordination and organisation of return operations, points to this direction as well. Similar, but meeker, steps are portrayed in EUAA 2016, which decouples operational support from situations of disproportionate pressure, envisaging that operational support would be available in a broader context provided it remains limited in time. While these developments are potentially forthcoming de jure, the boost in EASO personnel (e.g. Greek-speaking personnel recruited and paid by EASO) assisting the Greek Appeals Committees through the provision of COI portrays the same de facto development, albeit on a more limited scale.
The Challenge of Fundamental Rights
The third challenge is to match the enhanced operational activities of EU agencies with adequate accountability mechanisms at EU level. The exercise of executive powers and tasks entailing executive discretion by EU agency (deployed) staff result in greater direct interaction with individual migrants and asylum seekers, consequently potentially affecting their fundamental rights. The EU public liability regime is fully applicable in such situations, and individuals may have recourse for violations before national courts or the Court of Justice of the European Union (CJEU) if the strict conditions of locus standi for the latter are fulfilled. For the specific case of EASO’s involvement in asylum processing, redress through an action for annulment before the CJEU is a contested point.
The difficulties surrounding redress for agency action through judicial mechanisms bring to sharp relief the need for recourse to existing extra-judicial accountability mechanisms such as the European Ombudsman, as well as to (further) develop internal extra-judicial accountability mechanisms as I have argued elsewhere (GLJ forthcoming, 2020). Consecutive amendments to the EBCG Regulation have led to the development of novel fundamental rights oversight mechanisms, such as an independent Fundamental Rights Officer, a civil society-dominated Consultative Forum and ombudsman-type processes complete with an individual complaints mechanism. The mandate of the Fundamental Rights Office is further strengthened in the EBCG 2019, thanks to the enhancement of its capacities and the creation of fundamental rights monitors. For these internal mechanisms to be effective it will be important that the agencies will be well resourced to run these mechanisms (in particular, with ear-marked funding for that purpose), and that complaints will lead to concrete consequences.
Evangelia (Lilian) Tsourdi is Assistant Professor of EU Law and Dutch Research Council grantee (NWO VENI) at Maastricht University. This blogpost is based on the chapter ‘EU agencies’ which appears in P. De Bruycker, M. De Somer & J.L. De Brouwer (eds.), From Tampere 20 to Tampere 2.0: Towards a new European consensus on migration(2019).
Author : TARN