Laura Salzano, PhD student in Constitutional Law, Barcelona University

Since its establishment in 2004, Frontex’s role and duties have been heavily scrutinized by the EU and human rights advocates. This attention stems from various concerns, including allegations of power abuse, opacity, and lack of cooperation. These concerns have been raised by diverse voices, such as policy experts, legal professionals, academics, activists, and NGOs.

Critiques of Frontex originate from both within and outside the EU. The Frontex Consultative Forum, formed in 2012 to advise the Executive Director and Management Board on fundamental rights, has consistently voiced serious concerns. For instance, it criticized the Management Board for potentially compromising the Fundamental Rights Officer’s independence by appointing a former advisor of the Executive Director to the role in an interim capacity. Furthermore, it denounced the Agency’s unwillingness to adequately staff and fund the Fundamental Rights Office and attempts to restrict the Forum’s access to information. The Forum also brought attention to the Individual Complaint Mechanism’s ineffectiveness, highlighting that only three incident reports for alleged violations and ten complaints were filed in 2018, a strikingly low number given the 1500 officers deployed across the EU’s external borders.

Despite the scarcity of reported incidents, media reports have exposed numerous cases involving Frontex officers in acts of physical violence against refugees. These acts include the use of pepper spray, batons, and even dogs to intimidate migrants. These human rights shortcomings stem from Frontex’s regulatory structure, which has progressively expanded the Agency’s operational powers without a corresponding increase in accountability. While regulations in 2016 and 2019 bolstered Frontex’s authority, the lack of a robust redress mechanism for human rights violations persists.

The 2019 regulation’s establishment of the European Border and Coast Guard standing corps, the first EU uniformed service, marked a significant shift. This shift from merely assisting Member States to holding direct operational power was not accompanied by the creation of an effective means for individuals to seek redress for human rights infringements. In 2013, the EU Ombudsman recommended establishing a mechanism enabling complaints from individuals whose fundamental rights were violated by Frontex. While incorporated into the 2016 and 2019 regulations, the current complaint mechanism, which allows for complaints against actions and omissions, falls short. As highlighted by the Consultative Forum, it does not constitute an independent judicial review and fails to satisfy the right to an effective remedy as outlined in Article 47 of the EU Charter of Fundamental Rights. The EU Ombudsman has initiated a strategic inquiry to evaluate this and other concerns, including the Fundamental Rights Officer’s independence.

More recently, Frontex has returned to the center of controversy following an investigation that revealed the Agency’s alleged involvement in push-backs at the Greek-Turkish border. While undefined in EU law, “push-backs” refer to actions taken to prevent migrants and asylum seekers from reaching protected borders without proper assessment of their status and rights, often endangering their lives and raising concerns about the principle of non-refoulement, protected under Article 19 of the EU Charter.

These serious allegations prompted a response from the European Commission, which, for the first time, took action by calling for an urgent meeting to investigate. However, concrete actions have yet to be taken, and during a European Parliament report on December 1st, Frontex’s Executive Director faced calls to resign.

Allegations of push-backs were the focal point of a LIBE Committee hearing on December 1st. The Agency refuted its involvement in the six incidents reported by the media, citing several arguments.

Firstly, Frontex offered a legal interpretation of departure prevention, arguing that actions reported as “push-backs” could be classified as interceptions under Regulation 656/2014 (Sea Borders Regulation). This regulation permits states to prevent vessels suspected of migrant smuggling from entering their territorial waters. While the regulation outlines lawful border actions, including interceptions and search and rescue, distinguishing between lawful and unlawful conduct in practice can be challenging. The European Commission’s Schengen Borders Code (SBC) handbook reiterates legal safeguards, emphasizing the need to grant access to international protection for those requiring it. In response to a specific request, the Commission clarified that the criteria established in the N.D. and N.T. case, pertaining to land borders, do not apply to the current situation.

Secondly, Frontex asserted that it held no operational command in the reported incidents, stating that the host Member State, in this case, Greece, maintained full control over all deployed assets. However, while Member States are responsible for managing their external borders (Article 7, Regulation 2019/1896), Frontex possesses significant supervisory authority. The Management Board, upon proposal by the Executive Director, determines technical and operational strategies. Additionally, Frontex liaison officers, representing the Agency at borders, monitor and assist Member States in their operations. Furthermore, Frontex conducts vulnerability assessments to gauge Member States’ capacity to address border challenges, using a methodology determined by the Management Board. This complex division of responsibilities among various actors, including the host state, participating state(s), and Frontex’s standing corps, creates ambiguity and hinders accountability. As Professor Fink highlights, national courts lack jurisdiction over Frontex’s actions, the ECtHR cannot preside over EU matters, and the ECJ faces jurisdictional limitations as national courts address national conduct while EU courts handle EU conduct.

Thirdly, Frontex cited the geopolitical context, specifically the strained relations and border disputes between Greece and Turkey. The presence of Turkish military aircraft near EU borders necessitates protective measures for Member States. While Article 41 on “critical impact level” allows the Executive Director to recommend actions for critical situations, requiring immediate notification to the European Parliament (Article 43), MEPs were only informed on December 1st. This delay raises concerns about transparency and accountability, as operating in volatile geopolitical contexts requires clear communication and oversight.

EU border management faces a critical vulnerability regarding the rule of law, leaving those whose rights are violated with unclear and inadequate recourse. A necessary first step is amending the regulation to establish a clear chain of command, identifying all individuals involved in an action or omission, from the individual who physically carried it out to the Executive Director. Professor Fink argues that an effective ex-post remedy accessible to individuals is crucial to address this accountability gap, enabling damage compensation and a clearer understanding of public liability.

Barnard & Peers: chapter 26

JHA4: chapter I:3

Photo credit: Rock Cohen, via Wikimedia Commons