EU Law Analysis: The next phase of the European Border and Coast Guard: towards operational effectiveness


Mariana Gkliati, PhD researcher
at Leiden University working on the accountability of Frontex for human rights
violations during its operations
Two years after the
establishment, in record time, of the European Border and Coast Guard (EBCG), the
Commission’s new proposed
Regulation
opens the way for a standing corps of 10,000 border guards, with
its own equipment and greater executive powers.
The proposal was
presented during the State
of the Union Address
on 12 September 2018. President Jean-Claude Juncker,
in his speech before the European Parliament, announced the adoption of 18
concrete initiatives, among which migration and borders reform occupied a
central spot. Apart from the strengthening of the EBCG, these proposals include
a reinforced role for the European Asylum Agency, EASO, a stricter EU returns policy, as
well as measures for safe and legal pathways for regular migration to Europe.
The intentions
of the Commission were expressed by Commissioner Avramopoulos himself in quite
straight lines: ‘more Europe where more Europe is needed’.
Frontex is perhaps
the most vivid representation of this message. The agency has been vested with
new powers and competences almost every two years since its establishment in
2004, while its operational capacity has been growing steadily, with a spike in
both personnel and budget after 2015.
*(I produced this table
with information collected mainly from annual reports, partly with the help of
student assistant, Nilson Milheiro Anselmo)
This gradual
approach was a necessary reconciliation between the Commission’s original
vision of fully-integrated border management led by a fully-fledged corps of
border guards on the one hand, and the sovereignty concerns of member states on
the other.
In 2016 the member
states felt that the time was ripe to accept a name that symbolically limits
the absolute sovereign control over their borders bringing them closer to a
fully integrated scheme of border management, and the European Border and Coast
Guard (EBCG) was established. It was apparent already then that this was not a completely
new EU agency but rather ‘Frontex
reloaded
’ with ever more powers and competences and a generous budget.
This is where
President Juncker drew the line between the past and the future of integrated
border management: ‘Temporary solidarity is not good enough’ he stated. ‘We
need lasting solidarity – today and forever more’.
The effectiveness
goal is to be achieved mainly with a increased operational capacity in terms of
staff and equipment, expanded operational competences, and a sharp budgetary
increase.

Standing corps of 10,000 border guards
Perhaps the most
monumental change brought by the new Regulation is the establishment of a ‘standing
corps of 10,000
operational EU staff with executive power and their own
equipment’.
In order to address
the vital operational issue of availability of human resources, the EBCG
Regulation set in 2016 an absolute minimum of 1,500 seconded border guards and
other experts that should be available at any time in order to ensure the
effectiveness of the agency on short notice. This comes in addition to the
European Return Intervention teams, currently involving 550 return experts. In
fact, Frontex had more than 1,700 officers deployed
at the EU borders in 2018 assisting with functions such as surveillance,
registration, document checks, fingerprinting and security checks. The agency’s
own staff has also been growing steadily, as shown in the table below. The
agency started with 70 employees in 2006, while there were almost 500 people
working in Warsaw in 2017. In the first months of 2018 the agency requited
another 162 new staff, which means that one in three working in Warsaw were
hired in 2018 alone. The goal is that by 2020 the agency will have 1,500 own
staff, which will grow to 3,000 by 2027.

Today’s availability is still not adequate to fill the operational needs of the
agency in a predictable and expeditious manner, as it has to rely for its work
mainly on border guards provided by the member states on a voluntary basis. The
standing corps of 10,000 will constitute a ‘reliable intervention force’ of
agency staff and seconded or deployed officers, i.e. border guards and return
experts.
The intention is the
gradual proportional increase of the agency’s own staff and long-term
deployments. The number of short-term deployments will gradually decrease in favor
of statutory Agency staff  and staff seconded
by member states for long-term duration, as shown in the scheme below.
The foundations for
this amendment have already been set over the years, and member states are even
more likely to support it because of the envisaged financial
support system
that will allow member states to replace the deployed
personnel and maintain the capacity of their national border authorities.
Furthermore, the costs of their salary and overall deployment will be covered
by the agency.
The standing corps
will have executive powers similar to the border guards and return specialists
of the member states. They will be able to authorise or refuse entry at border
crossing points, stamp travel documents, patrol borders, and intercept persons crossing
irregularly. In addition, they will perform identity checks using the False
and Authentic Documents Online system
, which the agency will take over from
the Council General Secretariat. Finally, the power to carry weapons will
extend from the deployed national border guards to all members of the standing
corps including agency staff.
Another step closer
to improving the stability, flexibility and autonomy of the agency is the acquisition
by the agency of its own equipment. ‘We need more planes, more vessels, more
vehicles’, stated President Juncker.
At first, such
equipment was made available by the member states on an ad hoc basis, but in
2007, Frontex created the Centralised Record of Available Technical Equipment (CRATE),
to which states contribute on a voluntary basis, in accordance with the needs
specified by the agency. CRATE was replaced in 2016 by the Technical
Equipment Pool
, which serves as a record of all technical equipment
available to the agency, whether that is owned by a member state or the agency
or co-owned by both. However, while the contributions on paper seem to almost
fully cover the agency’s needs, the actual
availability
of the pledged assets by the member states is more
problematic, especially during the busier summer months.
Therefore there is
a growing emphasis on developing the agency’s own capabilities. As of 2017,
Frontex had €10 million per year in its disposal (EUR 40 million in total for
2017-2020) to acquire
its own equipment
, while co-ownership with a member state, renting,
leasing, and long-term deployments were identified as additional options in the
EBCG Regulation in 2016.
The agency has
already started acquiring smaller pieces of equipment and running relevant
leasing and rental projects, while now the goal is to move to larger items,
such as vessels and planes. The Commission has now earmarked €2.2 billion of
the EU budget for 2021-2027 to allow Frontex to acquire, but also to maintain
and operate the necessary air, maritime and land assets.
The budget
allocated for Frontex notes a sharp increase. An additional €2.3 billion is
proposed for 2019-2020, which is followed by €11.3 billion proposed for the
2021-2027 period. This increase is in conformity with the general direction of
the last years, especially since 2015, as shown in the Table. However, the
allocated budget has always counted millions rather than billions. The highest allocation
until now was in 2017 with €302 million.
The ‘right to intervene’
was one of the most controversial aspects of the 2016 EBCG Regulation. According
to this right, the agency may launch an emergency intervention, even without
the consent of the member state, if the latter does not take the measures
identified by the agency in the vulnerability assessment, if the member state
is faced with a crisis at its borders. If the member state does not cooperate
with the implementation of the suggested measures, it’s threatened with the
reintroduction of internal border checks.
Precisely because
of the sensitive nature of the issue, the initial proposal was watered-down in
2016. While initially the agency could intervene on its own, in the final
compromise the measures proposed by the agency can be implemented by the
Council upon the proposal of the Commission.
The 2018 proposal
moves one step closer to the initial conception, with the right to intervene
being left to the Commission excluding the participation of the Council.
Returns have been the
fastest growing activity of the agency. Frontex acquired further competences in
2016, mainly including organising and coordinating joint return operations.
This resulted to 14,884 persons being  returned in
2017. Returns reached 8,966 from January to August 2018. However, the agency
could not enter into the merits of return decisions or provide supporting
information.
With the 2018
proposal the agency may now prepare return decisions itself and provide its own
return escorts. It may also assist in the acquisition of travel documents, the
identification of irregular migrants, and in the development of national return
management systems. The central tasks of hosting an operation remain with the
member state.
Finally, Frontex will
be able to assist non-EU states with their return activities elsewhere, which
include mixed return operations with the participation of member states.
Apart from
assisting non-EU countries in their own return activities, the cooperation with
third countries is strengthened even further. The option to launch an operation
in a third neighboring country was introduced in 2016. The new proposal allows
a border control operation to be launched in any third country not limited to
neighboring countries.
Further, the
establishment of ‘disembarkation centres’ on third countries is proposed for
migrants intercepted at high sea. The concept of regional disembarkation is
developed in contact with UNHCR and the IOM. Notably, Libya has for the moment turned
down
the idea.
Frontex will
participate in the deployment of migration management support teams in hotspots
and controlled
centres
. Such centres, to be set up by member states on a voluntary basis,
will act as a cetralised location for EU migration management activities and
aim to facilitate and accelerate the processing of asylum claims and  the execution of return decisions. All
necessary steps should be concluded within a maximum of eight weeks.
Frontex will work
there hand in hand with EASO, which also receives an enhanced
mandate
, assisting in the identification of beneficiaries of international
protection and in returns, while EASO will support in the processing of asylum
applications.
Supranationalisation and accountability
Even though the
enhancement of the powers and competences of Frontex seems to come as a
response to ad hoc incentives, such as the ‘migration crisis’ in 2016 or the
need for greater effectiveness today, these changes are in fact far from
incidental. They reflect the Commission’s longer-term
vision
for progressive integration that will result in a European Border
Guard vested with full
operational powers
, effectively replacing the national border authorities.

In this respect the
Commission proceeds to progressively ask for the incre
ase of the number of
available border guards and budget, but it also pushes for amendments that
failed to pass the trilateral dialogues already in 2016, such as the right to
intervene without the consent of the member state. This is a big leap towards supranationalisation
that member states have so far been unwilling to take.

Greater autonomy
and control over the operation, however, also moves Frontex closer to the realm
of accountability. With growing executive powers and operational mandate, and
direct control over the deployed personnel and equipment comes an even greater
need for accountability.
This is especially
so given the new mandate of the agency, for instance in the area of returns,
where Frontex will have the power to prepare return decisions. The Commission emphasizes
that the final decision remains upon the member state. However, the complaints
concerning EASO, and the beyond
its mandate influence
on the asylum decision-making process in Greek
hotspots, sets a disturbing precedence that should not be underestimated in the
case of the EBCG.
Frontex operations
are particularly sensitive to human rights violations, and with the individual
complaints mechanism, established in 2016, falling
remarkably short
of the standards of an effective remedy, accountability
for Frontex still remains an open end.
Barnard &
Peers: chapter 26
Photo credit: European
Parliament



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