Herbert Rosenfeldt, Research Assistant and PhD candidate, University of Passau

Introduction

Celebrating the new European Border and Coast Guard Agency, also known as Frontex, at the Bulgarian external border with Turkey might seem like an odd festivity. However, last Thursday, high-ranking EU and Member State officials gathered at Bulgaria’s Kapitan Andreevo Border Checkpoint for this inauguration. This event marked the implementation of the European Border and Coast Guard Regulation, a significant step towards strengthening external border control in the wake of recent migration challenges.

This initiative, driven by a sense of urgency and high expectations, aims to address the perceived inability or unwillingness of national border guards to effectively protect the Schengen area from irregular migration. The rationale is straightforward: tighter external borders will deter migration, leading to fewer internal issues within the Schengen area, such as asylum allocation, processing claims, and ensuring security and freedom of movement. However, this focus on external borders has drawn criticism from various quarters.

The significance of the new EBCG remains to be seen. Is it truly a turning point in European border management, as some suggest, or is it a cause for concern? What impact will it have in the long run? This analysis will delve into these questions, examining the evolving concept of EU external border management, the institutional changes, and the controversial aspects of emergency interventions and the complaints mechanism related to fundamental rights accountability.

Towards Securitisation

The new regulation reflects a clear concern about maintaining control over migration, prioritizing regaining and maintaining control over migration management and efficient border management. This approach links migration challenges and potential threats with serious cross-border crime, implying that irregular migration poses a risk to internal security. Protecting international rights and human rights, while acknowledged, are seemingly treated as secondary to securing EU borders.

This security-centric perspective is further evident in the establishment of migration management support teams for hotspot areas. While these teams aim to expedite the processing of asylum claims and returns, the underlying goal is to prevent migrants from entering the Schengen area, thereby enhancing security. Similarly, the increased support for return operations aligns with the political imperative to enforce the return of third-country nationals.

Legal instruments rearranged

EU law concerning external border control is complex and fragmented, with frequent amendments and overlaps between various legal acts. The new regulation attempts to address this by consolidating the Frontex Regulation and the Regulation on Rapid Border Intervention Teams. Despite being based on the same EU competence (Article 77 (2) (d) TFEU), regulations concerning EUROSUR and surveillance of external sea borders remain separate, missing an opportunity for comprehensive legislation.

New concept of external border controls

Previously, states with external Schengen borders had sole responsibility for border control, with Frontex playing a supporting role. The new EBCG introduces shared responsibility between the agency and national border and coast guards. However, this arrangement places the agency in a hierarchical position, with the authority to establish a technical and operational strategy that all national strategies must follow. This effectively gives the agency greater influence and control over border management, potentially limiting Member States’ autonomy.

While the regulation formally acknowledges shared responsibility, it grants the agency greater supervisory and coercive powers, shifting control away from individual Member States. Despite this, the regulation deserves recognition for establishing a legal definition of European integrated border management for the first time.

Institutional changes

Despite the rhetoric surrounding the “all-new” Frontex, the agency remains fundamentally unchanged. It retains its status as a decentralised EU body with headquarters in Warsaw. The name change is largely symbolic, reflecting a continuation of existing activities with expanded tasks and resources.

The agency’s staff will increase significantly, and a rapid reaction pool of European border guards will be established. The agency’s budget has also increased, allowing for greater investment in equipment. Among its expanded tasks, the agency will conduct vulnerability assessments of Member States’ border control capabilities, issuing binding recommendations and deploying liaison officers for monitoring and reporting.

While command and control during joint operations remain with the host Member State, they are now obligated to consider and follow the Frontex coordinating officer’s views. Furthermore, the agency’s role in supporting Member States at hotspots has been codified, including tasks such as screening, registering, and providing information to third-country nationals.

Concerns have been raised about the potential overlap with the European Asylum Support Office and the extent to which EU agencies can influence Member States’ decisions on entry, international protection, or the return of migrants. However, the regulation acknowledges the importance of hotspots and the role of agencies without offering clear delineations of responsibility. The practical implementation and collaboration among different actors remain to be seen.

Situations requiring urgent action – right to intervene?

One of the most contentious aspects of the regulation is the handling of emergency situations at external borders, particularly when Member States are unwilling to act. While the initial proposal by the Commission, suggesting an agency “right to intervene,” faced criticism, the final regulation provides a more nuanced approach.

In emergency situations where a Member State fails to comply with recommendations or faces significant challenges without requesting assistance, the Council, through an implementing act, can authorize the agency to take necessary measures. This decision is binding on the Member State, potentially limiting their autonomy in border control.

While the Member State is still required to agree on the operational plan, their consent might be considered obligatory in such situations to avoid hindering emergency procedures. Although the host Member State retains command and control during operations, the involvement of multiple entities and the potential pressure arising from the Council decision raise questions about the true nature of their consent.

Notably, failure to cooperate with the agency during emergencies can have consequences for the Member State. The amended Schengen Borders Code allows the Council to recommend the reintroduction of internal border controls if a Member State’s actions endanger the Schengen area’s functioning or pose a threat to public policy or internal security. This mechanism, triggered 30 days after the Council’s decision, implies that non-compliance with the EBCG can lead to temporary exclusion from the free movement area, making cooperation a condition for solidarity.

It is important to note that while the regulation establishes a legal obligation for Member States to cooperate during emergencies, there are no mechanisms for enforcing this duty or deploying EBCG teams against a Member State’s will. The primary recourse seems to be encouraging other Member States to implement internal border controls.

Human Rights complaints mechanism and accountability

Initially, Frontex’s founding regulation lacked provisions for fundamental rights (FR). Over time, FR obligations have been incorporated, culminating in a dedicated FR strategy, a consultative forum, and an FR officer. The new regulation strengthens these efforts, including FR in reporting and evaluation schemes and outlining FR obligations.

A significant addition is the introduction of a formal FR complaints mechanism, addressing a long-standing demand from various bodies. This mechanism allows individuals affected by EBCG operations to file complaints regarding FR violations. The FR officer manages the complaints, determines admissibility, and directs them to either the Executive Director or the relevant national authority for a decision and follow-up.

The mechanism’s effectiveness hinges on the FR officer’s resources and institutional independence. Concerns remain regarding the enforcement of follow-up actions, the potential impact on other remedies, and the lack of an independent appeals procedure. The absence of clear guidelines on attributing responsibility in multi-actor scenarios further complicates matters.

The regulation emphasizes the need for enhanced accountability alongside the agency’s expanded powers. However, the FR framework remains largely unchanged, with responsibility for disciplinary action and civil liability remaining with the respective Member States. While the agency is subject to non-contractual liability under EU law, the lack of clarity regarding responsibility in specific operational scenarios raises concerns about transparency and accountability.

Outlook

The implementation of the new EBCG regulation represents a significant shift in EU external border control. While not a complete overhaul, it introduces a more assertive role for the agency, increasing its influence over Member States’ border management practices. The emphasis on cooperation, particularly during emergencies, underscores the shared responsibility for safeguarding the Schengen area.

Despite improvements, concerns persist regarding the potential erosion of Member States’ sovereignty, the effectiveness of the complaints mechanism, and the need for greater clarity on accountability in multi-actor scenarios. The true impact of these changes will unfold over time, requiring careful monitoring and ongoing evaluation. Ultimately, the success of this new chapter in EU border control hinges on striking a delicate balance between strengthened border security and upholding fundamental rights.