EU Law Analysis: The Umpteenth Reinforcement of FRONTEX’s Operational Tasks: Third Time Lucky?


EU Law Analysis: The Umpteenth Reinforcement of FRONTEX’s Operational Tasks: Third Time Lucky?

The Umpteenth Reinforcement of FRONTEX’s Operational Tasks: Third Time Lucky?

Dr. David Fernandez-Rojo, University of Deusto
On 6 October 2016, the European Border and Coast Guard (EBCG), the
successor of FRONTEX, was officially established. Less than two years after the
adoption of Regulation
(EU) No. 2016/1624
, the president of the European Commission announced in
his speech on the 2018
State of the Union
made on 12 September, the Commission’s intention to, once
more, reinforce FRONTEX. On the same day, the Commission proposed an updated
version
of the Regulation establishing the recently adopted EBCG, which
(following agreement between the European Parliament and the Council) was one
of the very last texts
voted at the European Parliament under the 2014-2019 mandate. In particular, on
17 April 2019, the Parliament adopted the proposal put forward by the European
Commission to further strengthen the EBCG with a
standing corps of 10,000 border guards with executive powers by 2027
. It is
now only a question of time until the Council adopts the Regulation (henceforth
referred to as Regulation 2019/XXX). (The provisionally agreed text of the new
Regulation is here.)
This blog post centres on comparatively analysing the most controversial,
significant and novel operational tasks conferred by Regulations 2016/1624 and
2019/XXX to the EBCG. (See earlier this analysis
of the new powers concerning returns and data sharing, and of the
accountability of the agency in human rights terms).
Article 3(2) Regulation 2016/1624 conferred a monitoring role to
the EBCG in order to guarantee a common strategy for the management of the
European external borders. The EBCG may now deploy its own liaison officers in
the Member States with the aim of fostering cooperation and dialogue between
the agency and the competent national authorities (Article 12(3) Regulation
2016/1624). The EBCG liaison officers, who are deployed on the basis of a risk
analysis carried out by the agency, should regularly inform the agency’s
Executive Director about the situation at the external borders and assess the
capacity of the concerned Member State to effectively manage its borders (Article
12(3)(h) Regulation 2016/1624). These responsibilities have been further
detailed in Article 32(3) Regulation 2019/XXX.
The information that the liaison officers gather contributes and
facilitates the preparation of the EBCG’s vulnerability assessments. At least
once every three years, the agency shall monitor and assess the availability of
the technical equipment, systems, capabilities, resources, infrastructure, and
adequately skilled and trained staff of the Member States for border control
(article 33(2) Regulation 2019/XXX).
The monitoring powers conferred to the EBCG are reflected in
article 33(10) Regulation 2019/XXX, which signals that if the recommended
measures are not implemented in a timely fashion and in an appropriate manner
by the concerned Member State, the EBCG’s Executive Director shall refer the
matter to the Management Board and inform the European Commission. The
Management Board shall then make a decision, based on the original proposal of
the Executive Director, describing the necessary measures to be taken by the
Member State and the time limit within which such measures shall be
implemented. Importantly, Article 33(10) Regulation 2019/XXX explicitly
declares that the decision of the Management Board is binding on the Member
State. It remains to be seen as to the position of the national authorities
within the EBCG’s Management Board and whether they will adopt measures that
effectively ensure that a concerned Member States tackles the vulnerabilities
identified in its external borders.
While it is still early to assess to what extent Regulation
2019/XXX improves the functioning of the vulnerability assessment and the swift
deployment of liaison officers initiating by Regulation 2016/1624, a novel
mechanism of impact levels to external border sections has been designed.
Articles 35 and 36 Regulation 2019/XXX state that the EBCG, in agreement with
the Member State concerned, may declare four different impact levels and
reactions with the aim of swiftly addressing at a given border section a crisis
situation.
         
When the EBCG declares a low
impact level, the competent national authorities shall “organise regular
control (…) and ensure that sufficient personnel and resources are being kept
available for that border section” (Article 36(1)(a)).
         
If a medium impact level is
established, the concerned Member State shall “ensure that appropriate control
measures are being taken at that border section” (Article 36(1)(b)).
         
Where a high impact level is
declared the national authorities are encouraged to request operational
assistance from the EBCG (Article 36(1)(c)).
         
The EBCG may temporarily
determine at a given border section a critical impact level, which shall be
communicated to the European Commission. Under this scenario, the EBCG’s
Executive Director will recommend the Member State concerned to request the
EBCG’s operational assistance through the initiation of a joint operation or a
rapid border intervention (Article 42(1) Regulation 2019/XXX).
While the obligations for the national border authorities under
the low, medium and high impact levels are quite vague, under the critical
scenario the Member State concerned shall respond, providing justifications for
its decision, to the recommendation of the Executive Director within six
working days (Article 42(2)). According to Article 43 Regulation 2019/XXX,
should the Member State ignore the EBCG Executive Director’s recommendation,
the Council, on the basis of a proposal from the European Commission, may adopt
a decision by means of an implementing act, identifying measures to mitigate
those risks and requiring the Member State concerned to cooperate with the
agency in the implementation of those measures.
The EBCG’s Own Equipment and the Standing Corps of Border Guards
With the objective of reducing the dependence of the EBCG on the
Member States’ technical equipment, Article 38 Regulation 2016/1624 stipulated
that the agency may acquire its own technical equipment to be deployed during
joint operations, pilot projects, rapid border interventions and return
operations. In this regard, Article 63(4) Regulation 2019/XXX points out that
where the EBCG acquires or co-owns equipment such as aircrafts, helicopters,
service vehicles or vessels, the agency shall agree with a Member State the
registration of the equipment as being on government service.
It is true that the European Commission has now a strong budgetary
commitment to ensure that the EBCG acquires or leases technical resources but
the agency still lacks the necessary structures and expertise to effectively
manage its own equipment. Regulations 2016/1624 and 2019/XXX do not design a
clear framework of the EBCG’s responsibility, and continues to be highly
questionable whether the Member States will authorise the registration of
equipment that is beyond their control.
Furthermore, a key operational power introduced by Regulation
2016/1624 was the establishment of a Rapid Reaction Equipment Pool, consisting
of technical equipment to be deployed in rapid border interventions within 10
working days from the date that the Operational Plan is agreed upon by the
Executive Director and the host Member State. The EBCG may contribute to the
Rapid Reaction Equipment Pool with its own resources and the Member States
could no longer shirk their responsibilities by alleging that they are faced with
an exceptional situation substantially affecting the discharge of national
tasks (Article 39(7) Regulation 2016/1624). In accordance with Article 20(5)
Regulation 2016/1624, the competent national authorities shall make available a
minimum of 1,500 border guards to the EBCG for their immediate deployment in
joint operations and/or rapid border interventions.
While the establishment of a Rapid Reaction Pool of 1,500 was a
positive measure for emergency situations at the external borders, Regulation
2016/1624 did not manage to overcome the insufficient pooling of Member States’
border guards for concrete locations and concrete periods in regular joint
operations. For this reason, Regulation 2019/XXX centres on designing a
permanent, fully trained and operational Standing Corps of 5,000 Border Guards
by 2021 and 10,000 by 2027 based on the distribution key set out in Annex I to
Regulation 2019/XXX.
Pursuant to Article 55(1) Regulation 2019/XXX, the Standing Corps
is composed of four categories of border guards:
         
Operational staff members of
the agency (Article 56)
         
Operational staff seconded
from Member States to the agency for a long-term deployment (Article 57)
         
Operational staff from Member
States ready to be provided to the agency for a short term deployment (Article
58)
         
Operational staff from the
Member States ready to be deployed for the purpose of rapid border
interventions (Article 59).
The EBCG’s operational staff members is a new category of staff
designed by Regulation 2019/XXX in order to ensure the effective management of
the external borders. Regarding the other three categories of border guards,
the Member States are obliged to second to the agency operational staff with
the aim of ensuring at all times the availability of border guards to be
deployed. However, the main novelty is not so much the establishment of the
Standing Corps, but rather the fact that the Standing Corps deployed as team
members (category 1) are conferred executive powers (Article 55(3) Regulation 2019/XXX)
such as verifying the identity and nationality of persons, authorising or
refusing of entry upon border check, stamping of travel documents, issuing or
refusing of visas, patrolling or, registering fingerprints (Article 56(5)
Regulation 2019/XXX). Importantly, Article 83 Regulation 2019/XXX states that
the performance of executive powers by the EBCG’s operational staff members
shall be subject to the authorisation of the Member State that is hosting the
operation.
As the Meijers
Committee
and the European
Council on Refugees and Exiles
rightly noted, conferring executive powers
to the EBCG’s operational staff members may breach the primary law provisions
that regard the Member States as ultimately responsible for their own internal
security and external border management. While the European Commission
considers that Article 77(2)(d) TFEU provides the legal basis to bestow upon
the EBCG’s staff members executive tasks if they are clearly defined to match
the objective of the establishment of an integrated management system for
external borders, Article 77(2)(d) TFEU shall also be read in light of Articles
72 and 73 TFEU.
Article 72 TFEU states that the competences that the EU enjoys in
the AFSJ “shall not affect the exercise of the responsibilities incumbent upon
Member States with regard to the maintenance of law and order and the
safeguarding of internal security”. In other words, the EU cannot replace the
Member States’ prerogatives of coercion and “EU agencies are therefore limited
to supporting actions of national authorities, except (and only) to the extent
that the Treaty confers express powers to act on such agencies” (see, PEERS, EU
Justice and Home Affairs Law: EU Criminal Law, Policing, and Civil Law, Volume
II, London 2016, 27). Relatedly, Article 4(2) TEU provides that “the Union (…)
shall respect their essential State functions, including ensuring the
territorial integrity of the State, maintaining law and order and safeguarding
national security. In particular, national security remains the sole
responsibility of each Member State”.
Furthermore, Article 73 TFEU indicates that “it shall be open to
Member States to organize between themselves and under their responsibility
such forms of cooperation and coordination as they deem appropriate between the
competent departments of their administrations responsible for safeguarding
national security”. Hence, while competences are shared between the EU and the
Member States in the AFSJ (Article 4(2)(j) TFEU), Articles 72 and 73 TFEU limit
the powers conferred to the Union in matters directly linked to Member States’
national sovereignty (Article 2(6) TFEU).
Taking Stock of the Novel
Operational Powers
Currently, Article 8(2) Regulation 2019/XXX specifies that “the
multiannual strategic policy for the European Integrated Border Management
shall define how the challenges in the area of border management and return are
to be addressed in a coherent, integrated and systematic manner (…)”. That is,
the national authorities in charge of border management shall conform to the
strategy adopted by the EBCG (Article 3(3) Regulation 2016/1624 and 8(6)
Regulation 2019/XXX). Member States shall abstain from conducting “any activity
which could jeopardise the functioning of the Agency or the attainment of its
objectives” (Articles 8(2) Regulation 2016/1624 and 7(5) Regulation 2019/XXX).
To this end, the EBCG is authorised to supervise the effective functioning of
the national external borders, undertake vulnerability assessments, monitor
whether a Member State is qualified to effectively implement the applicable EU
legislation, and detect deficiencies in the management of the national borders.
The EBCG is thus conferred a supervisory and intervention role,
which allows the agency to adopt quasi-binding measures for the Member States
and to directly intervene in the territory of the Member State if such measures
are not effectively implemented (Article 18 Regulation 2016/1624 and 43
Regulation 2019/XXX). In the event that a Member State neither adopts the
measures recommended in its vulnerability assessment, nor requests/takes
necessary actions in the face of disproportionate and sudden migratory
pressure, the EBCG shall ensure a unified, rapid, and effective EU response so
as not to jeopardise the functioning of the Schengen area. In this situation
and according to Article 43(1) Regulation 2019/XXX, “the Council, on the basis
of a proposal from the Commission may adopt without delay a decision by means
of an implementing act, identifying measures to mitigate those risks to be
implemented by the Agency and requiring the Member State concerned to cooperate
with the Agency in the implementation of those measures”.
Since the Council decision is adopted, the EBCG’s Executive
Director shall, within two working days, draft an operational plan and submit
it to the Member State concerned (Article 43(4) Regulation 2019/XXX). Once the
operational plan is submitted, the agency’s Director and the Member State
concerned shall agree on concrete actions to be adopted, including the
deployment the necessary operational staff from the European Border and Coast
Guard standing corps, for the practical execution of the measures identified in
the Council’s decision.
Article 43(8) Regulation 2019/XXX requires the Member State
concerned to comply with the Council decision by cooperating with the EBCG and
taking the necessary actions to facilitate the implementation of the Council’s
decision and the agency’s operational plan. However, these obligations are
tempered when Article 43(9) Regulation 2019/XXX indicates that the European
Commission may authorise the reestablishment of border controls in the Schengen
area, provided that the concerned Member State neither executes the decision
adopted by the Council, nor agrees with the EBCG’s Operational Plan within 30
days. Ultimately, the Member State concerned subject to the EBCG’s
“intervention” shall expressly consent and agree with the agency in regards to
the operational support that will be provided in its external borders as to
ensure the functioning the Schengen area (Article 43(5) Regulation 2019/XXX).
Towards a European Corps
of Border Guards?
Regulations 2016/1624 and 2019/XXX introduce the new EBCG as a
guarantor of an integrated management of the European borders. In the European
Commission’s own words, “by setting new standards and imbuing a European
culture within border guards, the European Border and Coast Guard will also
become a blueprint on how EU border management should be implemented”. Both
Regulations 2016/1624 and 2019/XXX clearly strengthen the EBCG’s autonomy since
the agency will depend to a much lesser extent on the specific operational
secondments and support of the Member States. The EBCG should finally have its
own equipment and operational personnel for its immediate deployment in joint
and rapid operations. However, the most controversial, significant and novel
operational powers included in Regulations 2016/1624 and 2019/XXX consist in
introducing the agency’s capacity to “intervene” and granting executive powers
to the agency’s staff members respectively.
On the one hand, Regulation 2016/1624, in order to avoid
endangering the functioning of the Schengen area, entitled the EBCG to
intervene if a Member State decides not to implement the measures recommended
by the Executive Director to tackle the weaknesses detected at its external
borders, or if the Member State does not request operational assistance in the
face of disproportionate and sudden migratory pressure at its borders. However,
it is debatable to what extent the agency is able to impose the application of
certain measures to a Member State that is opposed to them. Regulation
2016/1624, and now Regulation 2019/XXX, do not provide much clarity in this
respect, which is a common feature of those European Union legislative
instruments in charge of regulating highly sensitive competences that require
the support of national authorities.
On the other hand, Regulation 2019/XXX confers executive powers to
the EBCG’s standing corps deployed as team members. While these executive
powers may ensure a more effective, integrated and supranational administration
of the European external borders, these activities also entail a significant,
and difficult to control, degree of discretion that excessively stretch the
Treaty provisions establishing the Member States as ultimately responsible for
their own internal security and external border management.
Although it is true that the EBCG will assist more independently
the Member States in matters closely linked to their national sovereignty
prerogatives, the competent national authorities that vote at the Management
Board will continue to tightly control the agency’s recently reinforced
operational and supervisory functions. Only two representatives of the European
Commission have voting rights in the EBCG’s Management Board and, the presence
of the European Parliament is non-existent. The Member States have thus ensured
control of the strategic operational powers and the daily management of the
agency.
Consequently, despite the fact that the name of the EBCG may lead
to misunderstanding and even the European Commission constantly refers to the
agency as a true European system of guarding borders and coasts, Regulations
2016/1624 and 2019/XXX do not create a European Corps of Border Guards with
full and exclusive competences in border management. Nevertheless, Regulations
2016/1624 and 2019/XXX do reveal how difficult still is to strike a balance
between designing an effective integrated strategy for the management of the
European external borders and the Member States’ resistance to confer
operational powers directly linked to their core national sovereignty. It is
still early to conclude if we are only facing another revision of FRONTEX’
initial mandate as a reaction to an unprecedented migratory pressure or, on the
contrary, Regulations 2016/1624 and 2019/XXX constitute the definitive step
that will facilitate in the future the establishment of a European Corps of
Border Guards with full executive, implementation and decision-making powers in
the management of the European external borders.
Barnard & Peers: chapter 26
Photo credit: www.bmi.bund.de



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