Dr. David Fernández-Rojo, Universidad de Deusto - davidfrojo@deusto.es

The recent surge in migration, often called the “refugee crisis,” highlighted the urgent need to strengthen both the Schengen area and the Common European Asylum System (CEAS). It also underscored the need to support EU member states dealing with large numbers of migrants and to consistently apply EU policies on migration, asylum, and border control. EU agencies such as Frontex, EASO, and Europol have become central to these efforts. They not only provide on-the-ground support to frontline member states but also play a key role in enacting the hotspot approach. The increasing importance of Frontex, EASO, and Europol within the Area of Freedom, Security and Justice (AFSJ) is undeniable, particularly in terms of their operational role, collaboration, physical presence, and overall influence.

My book, “EU Migration Agencies: The Operation and Cooperation of Frontex, EASO and Europol,” published by Edward Elgar Publishing, provides a comparative study of how the operational tasks and collaborative efforts of Frontex, EASO, and Europol have changed over time. The book examines the expanded mandates of these AFSJ agencies, their increasing involvement on the ground, and the growing gap between their legal roles and actual activities.

The book identifies two main trends in the evolution of Frontex, EASO, and Europol’s operational tasks. First, despite official regulations emphasizing a limited role of providing technical support, these agencies, especially Frontex and EASO, are increasingly engaged in operational activities on the ground. Second, these agencies are increasingly tasked with ensuring the consistent and effective application of EU policies related to migration, asylum, and border management. Their role is crucial in preventing member states from compromising the integrity of the Schengen area or the CEAS. These emerging trends are explored in detail throughout the book.

The book argues that Frontex, EASO, and Europol work closely with frontline member states to implement EU policies on migration, border management, and asylum. These agencies are dedicated to providing operational support to national authorities responsible for border control, asylum, and law enforcement, ensuring the effective enactment of EU law. As the EU’s role in AFSJ matters expands, so too does the responsibility of managing these matters, shifting away from individual member states toward a complex network of actors. Within this network, Frontex, EASO, and Europol have taken on prominent operational roles.

The increasing integration within the AFSJ is leading to a ‘Europeanization’ of its administration, driven by the need for uniform and effective implementation of EU laws concerning border management, asylum, and migration. This is changing the traditional understanding of administrative and implementation powers within the AFSJ. The expanded operational powers and increased cooperation among Frontex, EASO, and Europol are gradually eroding the exclusive control that member states previously had in implementing EU law. These AFSJ agencies are becoming more influential in shaping and steering the effective and consistent application of EU laws and policies related to migration, asylum, and border management at the national level.

Theoretically, the operational duties of Frontex, EASO, and Europol could range from basic coordination and technical support to the execution of full-fledged enforcement and coercive powers. However, because these agencies lack independent executive authority, their tasks extend beyond mere technical or supportive functions. Despite the lack of transparency and the ambiguous legal provisions governing their activities on the ground, the work of Frontex, EASO, and Europol undoubtedly has an operational nature. The discrepancy between their legal frameworks and their actual operational powers creates legal uncertainty.

The strengthened mandates and increased inter-agency cooperation of Frontex, EASO, and Europol reflect a broader trend toward these agencies assuming more operational and implementation responsibilities. This trend has steadily progressed since their inception. While Europol, due to its largely intergovernmental structure, is only beginning to provide operational support in national investigations related to migrant smuggling, Frontex and EASO are already deeply involved in on-the-ground operations. They also play a significant role in ensuring that EU measures are implemented at the national level. Although these evolving roles already represent a shift away from the operational and implementation powers traditionally held by member states, none of these AFSJ agencies have been granted centralized, fully autonomous operational or enforcement powers on the ground.

The increasing operational and implementation roles of Frontex, EASO, and Europol are not inherently problematic. The real concern lies in the broad wording of their legal mandates and the lack of transparency surrounding their operational activities and cooperation. This makes it challenging to determine the extent of their discretionary power. The key issue is to clearly define the level of discretion exercised by Frontex, EASO, and Europol and to ensure that the EU’s institutional balance is maintained. In light of this, and despite the fact that these agencies have not been formally delegated specific powers, the book uses the Court of Justice of the European Union (CJEU)’s non-delegation doctrine as a framework to analyze the legality of their operational functions within the context of EU constitutional law.

In its Short-Selling judgment (discussed here), the CJEU updated and loosened its initial Meroni doctrine. Delegation is no longer limited to strictly defined executive powers but can include powers that are precisely defined and subject to judicial review based on the objectives set by the delegating authority.

Unlike the Short-Selling case, the operational powers of Frontex, EASO, and Europol are not bound by detailed conditions that restrict their discretion, nor are they clearly defined in their legal frameworks or regulations. The operational tasks of these AFSJ agencies go beyond merely providing technical support to frontline member states; they engage in expanding inter-agency operational cooperation and activities on the ground. These tasks involve exercising discretionary powers that are not clearly outlined or limited by any national or EU legal instrument. For example, Frontex and EASO had a strong advisory role in the hotspots, which, in principle, aligns with the non-delegation doctrine, as the recommendations made by these agencies are not binding on the member states involved.

However, national authorities facing significant migratory pressure may choose to automatically approve the recommendations made by these agencies. For instance, Frontex’s influence on Greek officials in determining the nationality of arriving migrants, Europol’s advice and operational support to national law enforcement agencies in dismantling migrant smuggling networks, and EASO’s assessments of asylum applications or identification of vulnerable applicants all involve discretionary and political judgments. In such cases, the lines of responsibility become blurred as the national authorities base their final decisions on the assessments made by the agencies.

While fully independent enforcement and coercive powers are not permitted under the current treaties and would violate the non-delegation doctrine, the lack of clarity and transparency surrounding the operational activities of Frontex, EASO, and Europol makes it challenging to assess their level of discretion and whether they are, in fact, making policy decisions. As the author sees it, the primary control and limitation of the distinct operational and implementation roles of Frontex, EASO, and Europol comes from the member states themselves. While it’s true that these agencies assist member states in areas closely tied to their national sovereignty, it is the relevant national authorities, who hold voting rights on the management boards, that have ultimate control over their recently expanded operational, implementation, and supervisory functions. The European Commission only has two representatives with voting rights on the management boards of Frontex and EASO, and just one representative in the case of Europol. The European Parliament has no representation on these management boards. Member states also exert influence over the appointment and supervision of the executive directors, who oversee the governance, management, and daily operations of Frontex, EASO, and Europol.

The reluctance of member states to fully abandon their established bilateral practices, share information, and cooperate operationally with Frontex, EASO, and Europol on matters of core national sovereignty, such as border management, asylum, and migration, is evident in the composition of these AFSJ agencies’ management boards. This structure ensures that member states maintain control over strategic decisions and the day-to-day management of these agencies. While centralizing the executive, decision-making, and enforcement powers of Frontex, EASO, and Europol would ensure effective and harmonized implementation, it’s essential to remember that these agencies represent a compromise between intergovernmentalism and supranationalism within the AFSJ. In essence, member states are unwilling to cede further control over sensitive areas to EU institutions, but they increasingly need support at the supranational level to effectively address issues that can only be managed collaboratively within the EU framework. This explains why, while Europol, Frontex, and EASO have been entrusted with substantial operational tasks, none of them possess full decision-making, enforcement, or coercive powers. These powers remain under the exclusive control of the relevant national authorities.

This book makes four key contributions. First, it provides a comprehensive overview of Frontex, EASO, and Europol as EU decentralized agencies, highlighting their distinct operational powers and their ability to provide direct support to national authorities on the ground. The book examines the establishment of these agencies and the initial operational functions they were tasked with performing. Second, it offers a comparative analysis of the expanded operational mandates given to Frontex, EASO, and Europol, the extent of their on-the-ground assistance, and their influence on the implementation powers of national authorities in the wake of the “refugee crisis.” Third, the book explores the bilateral and multilateral inter-agency cooperation among Frontex, EASO, and Europol, with a particular focus on the expanded multilateral and operational cooperation taking place in the hotspots. Fourth, it analyzes the limitations placed on the enhanced operational activities and cooperation of Frontex, EASO, and Europol. The book examines the constitutionality and legal foundations of these AFSJ agencies, as well as the scope of their discretion in accordance with the CJEU’s non-delegation doctrine. It also examines the internal administrative structure and governance of these agencies to determine the extent of influence and control that member states and civil society can exert over their expanding operational powers.

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: Rock Cohen, via wikimedia commons