TARN

by Trym Nohr Fjørtoft

 

In 2015, many European states experienced a massive influx of migrants and refugees seeking protection within their borders. The European Refugee crisis was a crisis in many respects—first and foremost for the people forced to flee their homes, but also for the institution tasked with managing the EU’s external borders. That institution is Frontex, the European Border and Coast Guard Agency.

The refugee crisis was met in many countries with calls to take back control over national borders. Many member states reinstated national border controls, and Euroskeptic parties came on the rise. It has been argued that the refugee crisis and the EU’s other crises led to a backlash to expert delegation and elite rule.

It might therefore seem paradoxical that one response to the refugee crisis was to delegate more power to Frontex and its unelected experts. In 2016, the agency received a new mandate, and one of the most important new tasks in the new mandate is vulnerability assessment. Frontex is now supposed to evaluate member states’ “capacity and readiness to face upcoming challenges” and make recommendations on how to deal with them. In other words, Frontex now has a supervisory role that it did not have before, making the agency more powerful than ever.

How can we understand this development? In my research, I have found that member states accepted increased power to Frontex in part because they had trust in the technical and objective nature of vulnerability assessments. The procedure came to be adopted as a rather quantitative exercise. Focusing more on what can be counted and less on analysts’ discretionary judgments made the procedure easier to accept for member states.

The role of expertise

At the core of the matter is the notion of expertise. It is commonplace to view expertise as a main legitimacy foundation for independent agencies. Expertise has more than once been described as EU regulatory agencies’ raison d’être. EU agencies are to deliver purely technical evaluations of a high quality, without looking to political considerations. This emphasis on science, technical conduct, and truth ensures the agencies’ legitimacy in lieu of direct responsiveness to elections or elected officials.

If we view Frontex as simply yet another EU agency, it is clear, therefore, to see why expertise should be a strong legitimizing device for the agency. But Frontex is, in some senses, not just another EU agency, for two reasons.

First, it operates in a highly sensitive policy field. Border control has traditionally been seen as a core task of the sovereign nation state. EU member states have therefore been reluctant to delegate power and authority to the agency, restricting its mandate to facilitating cooperation, information, and conducting risk analyses.

Second, the agency’s knowledge foundation is also less tangible than the classic “hard-science” regulatory agencies. This is not to say that Frontex did not lean on expertise before 2016. Risk analysis has from the very beginning been seen as a core task of Frontex’s mandate. But migration risks are notoriously hard to assess and inevitably bound up with much uncertainty. Risk analysis in Frontex has therefore to a large extent been a qualitative exercise with room for analyst discretion.

A politically sensitive procedure

The vulnerability assessment procedure introduced in 2016 carries far more potential for political consequences than the existing risk analyses. One thing is the supervisory capacity itself. The Commission had long wanted a capacity for Frontex to assess member states, but its efforts had until 2016 been unsuccessful. Analyzing external risks was acceptable to member states, but giving Frontex an internal supervisory role was—before 2015—seen as a bridge too far. Another thing is the aftermath of the assessments: If a member state does not comply with a recommendation, Frontex has a right to intervene. This right is not as strong as the Commission initially proposed, but nonetheless constitutes a clear transfer of power to the agency.

As mentioned above, vulnerability assessment became a much more quantitative procedure than the already existing risk analysis. I argue that this is a consequence of its political sensitivity: Appeals to objectivity, depoliticization and efficiency were instrumental to getting the procedure adopted. Now, some authors have argued that the legitimizing appeal to expertise is used strategically by Frontex and EU level actors to justify increased coordination on the EU level. This seems not to have been the case here. Rather, it was the member states that pushed for objective, quantifiable indicators and a common methodology. Seemingly, they trusted that even in this contested domain, it is possible to separate the technical from the political. And they trusted that this would protect the procedure from being used for political purposes.

The development of Frontex after the refugee crisis is an illustrative case of the legitimizing use of expertise in an agency. It is almost surprising just how much faith the different policy actors had in the objectivity of the vulnerability assessment procedure. Surprising, because it seems obvious that Frontex’s performance of this supervisory role—connected to an intervention mechanism controlled by the Council—could be difficult to separate completely from political decisions. As Deleixhe and Duez put it, “the Agency is bound to endorse a political role, whether it likes it or not.” Perhaps this case is a testament to just how strong the norm of neutral technical expertise is in the EU agency landscape—even under the least hospitable of conditions.

 

Trym Nohr Fjørtoft is a Doctoral Research Fellow at the University of Oslo, ARENA Centre for European Studies

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