As the scandals mount at Frontex, the question arises as to who will and who can hold Frontex to account. The situation also demonstrates much about contemporary EU asylum policies and the conflicting roles of the different agencies and institutions in the EU’s complex and poly-centric decision-making structure, and whether it provides adequate checks and balances.

At the centre is Frontex, the European Border and Coast Guard Agency, and its combative Executive Director, Fabrice Leggeri. Frontex faces accusations of involvement in breaches of EU and international law, with “involvement” variously meaning witnessing; witnessing and failing to report; failing to prevent; and even direct participation. Possible breaches fall under EU law, on asylum, the Charter on Fundamental Rights, and management and administration, and various areas of international law, including International Refugee Law, International Human Rights Law, and possibly also Law of the Sea.

The allegations are increasingly serious, particularly in relation to the situation at Greek/EU border. Whereas a few years back, a typical issue concerned whether Frontex presence at the Hungarian border served as a constraint on the government or rather led Frontex to be a silent witness to or tacit supporter of the violations taking place, current investigations on activities in the Aegean suggest more direct forms of involvement in the “pushbacks” taking place.

The dramatis personae

Establishing facts and liabilities needs to take place in a court of law or in a thorough investigative process, which is what has been lacking but may now be accelerating. The European Parliament has established a Scrutiny Working Group with the mandate to assess Frontex activities and organisational matters, including the application of the EU acquis, compliance with fundamental rights, and internal reporting structures. A fact-finding report will be published in three months. At the same time, the European Ombudsman is investigating the Frontex complaints mechanism and OLAF, the EU’s anti-fraud office, is looking into allegations of mismanagement. Two legal actions are underway at the CJEU and International Criminal Court, respectively.

Previously, NGOs, journalists and international organisations have done sterling work in holding Frontex to account, including a joint investigation that published the most serious allegations concerning “pushbacks” in October 2020, and further reporting last month. The same has not always been the case for the Frontex Management Board, composed primarily of the Member States as for most EU agencies, although it has been forced to act by the severity and persistence of allegations.

The Management Board’s snappily named Working Group on Fundamental Rights and Legal Operational Aspects of Operations produced a report into the latest revelations concerning the situation in the Aegean, with a focus on the Serious Incident Reports (SIR), a crucial internal reporting mechanism which obliges Frontex staff to record incidents including those where there are possible violations of fundamental rights. After reviewing the report, the Management Board noted “with concern that the reporting systems currently in place are not systematically applied, do not allow the Agency to have a clear picture of the facts relating to (potential) serious incidents and do not allow for a systematic analysis of fundamental rights concerns. The Agency needs to make urgent improvements in this respect.”

As well as issues with incidents themselves, the report seems to confirm the long-held suspicion that SIRs are not always being filed when incidents take place – a sort of wilful blindness. Violations at the EU’s borders are well-documented, including where Frontex is present and while it cannot investigate what Member States are doing, serious incidents of various types should be recorded.

The Commission sits somewhere in the middle and holding a certain amount of power to hold Frontex to account, which it is starting to use. Recently, it has intervened strongly and critically on the question of the recruitment and independence of the fundamental rights staffing, on pushbacks, and then through clarifying the legal obligations binding Frontex in a March letter at the request of the working group. It remains however a reluctant wielder of power, given its often deferential approach towards the Member States on asylum matters. And the new Frontex is – if anything – a creature of the Member States.

Power without accountability?

Accountability is a contestable and slippery concept but at its heart is the notion of exposure and consequences for actions which fall short of acceptable standards, certainly including situations where they knowingly involve breaches of legally binding obligations. Accountability mechanisms are in place to prevent such actions, ideally, but also to shed light on them and to engender the proportionate consequences for the individuals and bodies at fault.

Accountability might be provided by internal reporting mechanisms; by oversight from bodies within the system; by judicial review; and by external scrutiny, all of which exist to some extent for Frontex. While it is also essential, the individual complaints mechanism is unlikely to be used frequently, given the weak position of individuals whose rights have been affected by Frontex actions and the multiple challenges they face in pursuing a complaint through the procedure.

Therein lies the rub: Frontex has seen a rapid expansion in size, budget, manpower (and the non-gender neutral term is deliberate), and responsibilities, including executive powers and the use of force for certain staff, but oversight mechanisms are struggling to catch up, leading to a situation of power without accountability.

Frontex and the narrowing of asylum policy

In lieu of reforms to EU asylum law – which are deemed necessary but remain deadlocked – or concerted efforts to enforce it, since 2017 focus has been on expanding the role of the EU’s agencies, as part of a patchwork of operational and informal initiatives, largely reflecting the underlying objective of EU strategy – preventing arrivals of refugees in Europe. The development of Frontex is the most notable element in all of this.

While insurmountable disagreements persisted on the 2016 CEAS package, within the Council and between the Council and the Parliament, in 2019 an accord was reached on the new regulation for Frontex, proposed in 2018. If Member States agree on one thing it is stopping people crossing the border; for political and practical reasons, the European Parliament was willing to sign off on a measure that gives greater power to the EU. Nonetheless, the regulation went through only with the addition of significant safeguards to ensure the democratic accountability and proper functioning of the bolstered agency. The lack of implementation of some of these measures is at the heart of one of the current rows with Parliament.

Accountability mechanisms to counter increased power

ECRE made multiple recommendations for improvement of the Frontex accountability mechanisms when the legislative proposal was presented and provided its assessment of the final agreement here; a forthcoming paper will look in more detail at the roll-out of accountability mechanisms. In addition, ECRE recommended limits to (the scope of) Frontex activities outside the EU where accountability is harder, risks are greater, and the purpose of operations remains opaque and dubious.

One of the notable achievements of the Parliament was the creation of additional Fundamental Rights Officer and monitor positions. This is an internal accountability mechanism and represents a significant – although perhaps still not proportionate – expansion of capacity for the internal fundamental rights function. In other contexts, such positions prove useful, at least when adequately supported and resourced, and guaranteed appropriate independence and status. For example, all EU CSDP missions have fundamental rights advisors, supported by staff in the crisis management structures in Brussels and benefiting from training and networking among themselves.

The process of recruiting the new staff for Frontex seems to have faced stalling and interference, as leaked documents demonstrate, giving rise to serious concerns about the independence and ability of the fundamental rights staff to do their job unhindered even when eventually appointed.

Parliament is rightly using its budgetary powers to withhold approval of Frontex’s budget (the only one of the EU’s 40 agencies in this position) due to a “series of issues”, including the failure to recruit the fundamental rights staff. It also mentions gender imbalance, lack of transparency, and the pushback questions that the Scrutiny Working Group is examining. It should hold firm until the requested clarity is provided – and progress made.

The Member States’ man?

If the rapid growth of Frontex combined with the weakness or non-implementation of oversight mechanisms contributes to the sense of power without accountability, it is compounded by the attitude of ED Leggeri, who takes a rather cavalier view of efforts to ensure transparency, ranging from threatening – including in the European Parliament natch – to discourage the use of Serious Incident Reports, especially if access to information requests continue to be submitted, to going to great lengths to avoid providing information, as the recent “annual dinner” saga shows. The sense given is of being untouchable. Perceived disrespect for procedures, including the Regulation’s requirements on reporting to Parliament (Art. 106 ex.), contributed to calls for his resignation. As worrying are other leaked documents showing Frontex management railing against the constraints of international law rather than seeking to uphold it, including bemoaning the fact that people rescued at sea cannot be disembarked in Libya.

The confidence of Leggeri may be neither hubristic nor misplaced: the composition of the Management Board is rather advantageous, with representatives of the Member States and of the Commission but not from FRA or independent organisations, and with no role for the European Parliament. He may have received reassurances from the Member States, including France from whence he came. If the regulation opens up again, the composition of the Management Board is something to review. Member States are unwilling to comment on or criticise each other’s actions at the border, which can assist Frontex. In the Working Group report, the actions and accounts of the Greek government are accepted unquestioningly, an approach reflected by Frontex which also serves to let it off the hook. Finally, the difficulty of dislodging a recalcitrant director was illustrated not long ago by attempts to remove the then EASO Executive Director, in the face of complaints, which reached a rather farcical point before concluding.

Member States also play a direct role in accountability because they are responsible for taking actions should there be complaints against the personnel they deploy to Frontex (the bulk of the famous 10,000 border guards which should be deployed by Frontex). Experience with CSDP missions suggests that Member States will be lethargic in bringing to justice anyone they deploy. They are also indirectly responsible via the appointment and management of the ED when it comes to potential liability of staff employed directly by Frontex, and also most of the internal accountability mechanisms are not fully independent of the ED. This is true of the “independent” complaints mechanism and the Serious Incident Reporting system, where despite improvements in the 2019 Regulation, the Director is still involved. The conflict over the Deputy Fundamental Rights Officer and the monitors is also about independence of the ED, all of which indicates that these mechanisms rely on either the good will and cooperation of the ED or a strong hand and instruction from the Management Board.

Untapped potential for accountability

In this context, the work of the EP Scrutiny Working Group, OLAF and the Ombudsman must be thorough, and both the Commission and the Member States should use it.

A source of accountability which could be further explored is national parliaments, as provisions in the new regulation allow for interparliamentary cooperation (Article 112). National parliamentary committees could look into the workings of Frontex as far as it fits into their respective mandates, potentially working with the European Parliament. This could cover the specific questions of policies related to nationals deployed to Frontex and the role of the Member State representative on the Management Board, but also general questions of Frontex compliance with standards and legal obligations, given the national as well as European interests affected by allegations of breaches.

Where accountability is more challenging but just as necessary is in Frontex activities outside the EU, including the Western Balkans, where Frontex is part of EU efforts to contain people by keeping borders closed. Humanitarian crises are raging across the region, leading to social tensions and the alarming rise of ultra-right groups. The approach to migration also risks derailing parallel efforts to support democratic reform under the EU Accession process – governance problems are more likely to be overlooked when countries are playing a role in preventing the movement of people. Indeed, the EU-Turkey Deal teaches the Western Balkans that progress in the Accession process, such as opening chapters, may even be advanced by preventing the movement of refugees (although this element of the deal is moot in the case of Turkey due to internal political changes there, it is highly relevant for the Western Balkan countries). It should also be noted that Frontex is operating in the region on the basis of agreements with the governments which provide it with immunity from the jurisdiction of the countries in question, which hardly places the EU in a strong position to talk about rule of law. Actions in the Balkans and Africa need closer attention from a wider range of parliamentary committees, especially given the spurious security justifications used.

But “Security” trumps all

Frontex in recent years is another example of the “logic” that prevails at the intersection of migration and security, whereby preventing people arriving is seen as so overridingly critical to European security that the ends always justify the means. A more nuanced approach is necessary, for the sake of security if nothing else. First, calling “security” has to be interrogated based on sound analysis of security threats and what might be an effective way to tackle them. The arrival of refugees in Europe is not a major security threat nor is it perceived as such by European populations (except in the countries where this message is relentlessly hammered). In the debate on and with Frontex, tenuous links are often made to terrorism but they do not stand up to scrutiny. Among those arriving to seek protection there are radicalised Europeans and others returning from fighting in Syria and Iraq but forcibly preventing entry and containing them in the Western Balkans and Turkey is about the worst possible approach to these complex threats – from a security perspective, even before considering the negative impact of these measures on the other people affected, the vast majority of whom are fleeing from violent extremism rather than perpetrating it.

Second, derogations from legal obligations, for instance in emergency provisions, are tightly delimited, even – or not least – when it comes to matters of acute threat to national security (which migration is not), in order to prevent abuse. In practice, particularly at certain EU borders, there are efforts to expand the justifications for derogating from EU and international law for more and more situations linked to asylum and migration, in the choices of EU institutions to not act against violations (the omissions) or in the legislative proposals accompanying the Pact. European leaders are dangerously deluded if they genuinely think that this won’t have multiple negative consequences on the rule of law. These practices should not be creeping into the operations of an EU agency.

The only way is up?

Whether the rise and rise of Frontex will eventually be checked by proportionate and reasonable accountability remains to be seen but it is about much more than the agency itself. It is about the use of an EU agency largely controlled by the Member States to pursue a narrow and damaging agenda on migration and borders which squeezes out the right to asylum and the protection of those on the move. It is also about respect for the complex decision-making processes of the EU that exist for a reason: if the EP, as co-legislator and source of democratic accountability, proposed amendments to improve accountability that were then adopted, this has to be respected (obviously, one would think). In addition, the ECA, OLAF and the European Ombudsman are statutory oversight bodies within the system that provide checks and balances so their recommendations should be applied by the Member States and the Commission, including in the Frontex Management board. In the long term, the Commission itself has perhaps the most to lose should an EU agency not be operating in an appropriate way, whether or not one agrees with its objectives, as well as having the most potential to make a difference. Overall, the Frontex story is a test of whether accountability in the system works, until they do, it is also one which lays bare contradictions in Europe’s efforts to promote the rule of law.

Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)

Photo: (CC) Rock Cohen, November 2010

This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.