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Regulation 2019/1896 on the European Border and Coast Guard (FRONTEX): The Supranational Administration of the External Borders?

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refugee law that took place in Barcelona. In the spirit of intergenerational academic exchange, students, young researchers, and established experts engage in interdisciplinary discussions on fundamental questions of migration law and migration policy, which have become more virulent than ever since the refugee protection crisis of 2015. European, human rights and international law aspects are supplemented by national perspectives from Belgium, Bulgaria, the Federal Republic of Germany, Italy, Spain, Turkey and the United Kingdom. The entire project sees itself as a laboratory for the exchange of ideas on how modern migration societies can orient themselves towards a sustainable future. With contributions by Claudia Candelmo, Carmine Conte, Francisco Javier Donaire Villa, Arolda Elbasani, Leonard Amaru Feil, Francesco Luigi Gatta, Chad Heimrich, Markus Kotzur, Annalisa Morticelli, David Moya, Claudia Pretto, Andrea Romano, David Fernandez Rojo, Senada Šelo Šabić, Valentina Savazzi, Ülkü Sezgi Sözen and Catharina Ziebritzki.
Regulation 2019/1896 on the European Border and Coast
Guard (Frontex): The Supranational Administration of the
External Borders?
David Fernandez-Rojo*
Introduction
On 6 October 2016, the European Border and Coast Guard (EBCG), the
successor of the European Agency for the Management of Operational Co-
operation at the External Borders of the Member States of the European
Union (FRONTEX), was ocially established. On the day of its inaugura-
tion, the European Commissioner for Migration, Home Aairs and Citi-
zenship, Dimitris Avramopoulos, indicated that the Agency was a historic
milestone in the management of the external borders of the European
Union (EU) as it meant the creation of “a fully-fledged European Border
and Coast Guard system, turning into reality the principles of shared re-
sponsibility and solidarity among the Member States and the Union”.1
Regulation (EU) No. 2016/1624 and the recently adopted Regulation
(EU) No. 2019/1896 represent the third and fourth legislative revision of
FRONTEX’s mandate and functions since the Agency was established by
Regulation (EC) No. 2007/2004. Previously, Regulation (EC) No. 863/2007
introduced the rapid intervention teams and Regulation (EU) No.
1168/2011 strengthened the Agency’s tasks and the protection of funda-
mental rights. In May 2015, the European Commission deemed the design
of a European system of border guards with greater operational tasks as
necessary.2 The adoption of Regulation (EU) No. 2016/1624 was extraordi-
narily fast3 since it did not take a year between its proposal by the Com-
I.
*PhD in EU Law (University of Deusto, 2018) and assistant professor at the Univer-
sity of Deusto.
1Council of the EU, Securing Europe’s external borders: Launch of the European
Border and Coast Guard Agency, Press release 555/16, 6 October 2016.
2European Commission, A European Agenda on Migration, COM (2015) 240 final,
13 May 2015, 20.
3Given the urgency in adopting the proposal of the EBCG, and despite its impor-
tance, the European Commission did not carry out an impact assessment.
289
mission on 15 December 2015 and its publication in the Ocial Journal
on 16 September 2016.
Moreover, less than two years aer the adoption of Regulation
2016/1624, the president of the European Commission announced in his
speech on the 2018 State of the Union made on 12 September, the Com-
mission’s intention to “to further strengthen the European Border and
Coast Guard to better protect our external borders with an additional
10,000 European border guards by 2020”.4 On the same day, the Commis-
sion put forwards an updated version of the recently adopted EBCG.5
Again, in record time, Regulation 2019/1896 was published in the Ocial
Journal of the EU on 14 November 2019.6 Regulation (EU) No. 2019/1896
was in fact one of the very last texts voted at the European Parliament un-
der the 2014–2019 mandate.7 In particular, on 17 April 2019, the Parlia-
ment 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 2027.8
This chapter centres on analysing the reinforced operational mandate of
the EBCG vis-à-vis the Member States in comparison to its predecessor,
FRONTEX. Specifically, it assesses to what extent Regulations 2016/1624
and 2019/1896 on the EBCG operationally transform FRONTEX, as the
very name of the Agency seems now to suggest, into a fully fledged Border
and Coast Guard Agency that Europeanises the administration of the exter-
nal borders. From an examination of the initiatives and studies that were
undertaken with the objective of evaluating the feasibility of designing a
European Corps of Border Guards, as well as from an analysis of the new
operational tasks conferred on the EBCG, the chapter concludes that Regu-
lations (EU) No. 2016/1624 and 2019/1896 are far from establishing an ab-
4European Commission, State of the Union 2018 – the Hour of European
Sovereignty, https://ec.europa.eu/commission/sites/beta-political/files/soteu2018-
speech_en_0.pdf, 12 September 2018.
5European Commission, Proposal for a Regulation of the European Parliament and
of the Council on the European Border and Coast Guard, COM(2018) 631 final,
12. September 2018.
6Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13
November 2019 on the European Border and Coast Guard and repealing Regula-
tions (EU) No. 1052/2013 and (EU) 2016/1624, OJ L-295, 14 November 2019.
7European Parliament legislative resolution of 17 April 2019 on the proposal for a
regulation of the European Parliament and of the Council on the European Border
and Coast Guard, P8_TA (2019)0415.
8Proposal for a Regulation of the European Parliament and of the Council on the
European Border and Coast Guard, COM/2018/631 final, 12 September 2018.
David Fernandez-Rojo
290
solute integration and supranational administration of border manage-
ment at the European level. Rather, the new operational functions delegat-
ed to the EBCG focus on supervising the eective functioning of border
management and assisting the national authorities that are subject to an
extraordinary migratory pressure. Additionally, the preeminent role that
the Member States continue to play in the EBCG’s administrative gover-
nance ensures their eective and daily control in the Agency’s recently re-
inforced operational mandate.
The creation of a European Border and Coast Guard Agency as a constant in
The EU political and legislative agenda
The need for a shared responsibility and a common European approach to
border management was firstly addressed in a European Parliament Reso-
lution of 3 April 1998 on the implications of the enlargement of the EU
for cooperation in the field of Justice and Home Aairs (JHA). This Reso-
lution stated that a “European border control force should be introduced
to control future external borders which draws on the national experience
of border control forces for implementation at Community level […]”.9
While the EU enlargement influenced the debate at the European level sur-
rounding the cooperation between Member States in the management of
their external borders, the incorporation of the Schengen acquis into the
framework of the EU was the key factor for the integration of border man-
agement. Precisely, in October 1999, the Tampere Programme stressed that
the integration of the Schengen acquis into the Union required an en-
hanced cooperation and mutual technical assistance between the Member
States and the candidate countries to eectively control the European ex-
ternal borders.10 This section examines the various studies and communi-
cations published with the aim of assessing the feasibility of developing a
truly European Border Guard and which, directly or indirectly, have influ-
enced Regulations 2016/1624 and 2019/1896 of the EBCG.
II.
9Resolution of 3 April 1998 on the implications of enlargement of the European
Union for cooperation in the field of justice and home aairs, OJ C-138, 04 May
1998, A4-0107/98, para 19.
10 Monar, The Project of a European Border Guard: Origins, Models and Prospects
in the Context of the EU’s Integrated External Border Management, in: Caparini/
Otwin (eds.), Borders and Security Governance: Managing Borders in a Glob-
alised World, Münster 2006, 193, 195.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
291
Institutional models for the management of the European external borders
In November 2001, the European Commission announced the adoption of
a coherent strategy to guarantee a high standard of external border con-
trols. The Communication called for the creation of a permanent technical
cooperation support facility in charge of information gathering and dis-
semination, coordination of operational cooperation, and the administra-
tion of the European migration systems (i.e. Schengen Information Sys-
tem, Eurodac and European Visa Identification System).11
Subsequently, in December 2001, the European Council of Laeken con-
sidered that a better management of the European external borders would
“help in the fight against terrorism, illegal immigration networks and the
trac in human beings”. In order to achieve these objectives, the Euro-
pean Council asked the Council and the European Commission “to work
out arrangements for cooperation between services responsible for external
border control and to examine the conditions in which a mechanism or
common services to control external borders could be created”.12
The European Commission followed the mandate of the European
Council of Laeken and financially contributed (through the Odysseus Pro-
gramme) to a feasibility study led by Italy (with the participation of Bel-
gium, France, Germany, Italy and Spain) regarding the establishment of a
European Border Police.13 On 30 May 2002, the study was made public
and two organisational models, “unitary” and “network”, were identified
according to the degree of integration and supranationality desired to be
conferred on the EU in the management of the external borders.
The unitary model would centralise all the executive competences of
border control at the European level. This model was organisationally de-
scribed as the most ecient, since it would eliminate any kind of duplicity
or lack of coordination between the several national authorities responsi-
ble for border surveillance. However, it would also be the most dicult of
models to implement, since not only would the Member States be highly
hesitant to delegate such powers, which are directly linked to their nation-
1.
11 European Commission, Communication on a Common Policy on Illegal Immi-
gration, COM (2001) 672 final, 15 November 2001, 19.
12 Presidency Conclusions – Laeken, 14 and 15 December 2001, doc. SN 300/1/01
REV 1, para 42.
13 Feasibility Study for the Setting-up of a European Border Police, Final Report,
Roma, 2002, http://www.statewatch.org/news/2005/may/eba-feasibility-study.pdf,
29; see: House of Lords (European Union Committee), Proposals for a European
Border Guard, 29th Report of Session 2002–2003, 01 June 2003, 10–11.
David Fernandez-Rojo
292
al sovereignty, but because it would also require all the national border au-
thorities to merge.14
On the other hand, the network model would imply the development
of a European Border Corps that would coordinate and assist the national
authorities in charge of the external borders. This model would have a
more flexible structure, easily adaptable to a context as volatile as the exter-
nal borders, and the Member States would receive it more positively. Yet, a
European Border Corps would not guarantee border coordination at the
European level as uniform and eective as the one oered by the unitary
model.15
The Italian study finally recommended an intermediate and predomi-
nantly intergovernmental model, which would consist of “a modified net-
work structure with a centralised body with coordination functions” and
“articulated in a series of ‘knots’, each of them related to specific and sector
requirements/objectives, organised as operational Centres with a little nu-
cleus of support and assisted by a certain number of consultants/experts”.16
Following the mandate of the European Council of Laeken and having
consulted the feasibility study led by Italy, the Commission published a
communication in May 2002 entitled “towards integrated management of
the external borders of the Member States of the European Union”.17 The
main challenge that the European Commission identified in the manage-
ment of the European external borders consisted in the lack of eective op-
erational coordination between the national authorities, preventing the
achievement of a uniform level of security in the borders. The Commis-
sion considered it essential to design an operational common cooperation
and coordination body, which in the short term, would consist of an Exter-
nal Borders Practitioners Common Unit, and in the medium term, a Euro-
pean Corps of Border Guards18.
The External Borders Practitioners Common Unit would have an inter-
governmental nature and would be integrated into the structures of the
Council. On the contrary, the European Corps of Border Guards would be
an independent supranational organisation in charge of developing first
surveillance and control missions at the external borders, and would com-
14 Feasibility Study for the Setting-up of a European Border Police, 29.
15 Feasibility Study for the Setting-up of a European Border Police, 30.
16 Feasibility Study for the Setting-up of a European Border Police, 30.
17 European Commission, Communication Towards Integrated Management of the
External Borders of the Member States of the European Union, COM (2002) 233
final, 7 May 2002.
18 COM (2002) 233 final, 24.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
293
mission its own border guards at a later stage. The European Commission
acknowledged that the design of the European Corps of Border Guards
would require revising the Treaties and overcoming a major constitutional
challenge such as “conferring the prerogatives of public authority on sta
of the European Corps who do not have the nationality of the Member
State where they are deployed”.19 Furthermore, two other practical issues
would need to be settled: the recruitment, statutory, and disciplinary con-
ditions of the border guards placed at the disposal of the European Corps
by the Member States, and the allocation of its own equipment.20
Finally, in June 2002, the Council decided to introduce the External
Borders Practitioners Common Unit, integrated by the heads of the border
control services of the Member States.21 The Council requested the Mem-
ber States to initiate joint operations at the external borders and pilot
projects, establish a network of Member States’ migration liaison ocers,
prepare a common risk analysis model, and design a common core curricu-
lum for border guard training. The EU political leaders in the Seville Euro-
pean Council welcomed the Council’s plan and recommended its immedi-
ate implementation.22 The Member States followed the Seville European
Council’s mandate and developed joint operations and pilot projects on
the external borders, as well as creating ad hoc centres.
Hence, the Council abandoned the idea of developing a European
Corps of Border Guards, since at the time it was not supported by most of
the Member States, thus opting instead for an approach with a strong in-
tergovernmental character – the External Borders Practitioners Common
Unit. The Member States considered the operational and financial support
of the EU, through the Common Unit, sucient to ensure a coherent and
consistent management of the external borders and to improve the eect-
ive implementation of EU law. The Common Unit’s mandate was limited
to increasing the operational coordination between the national authori-
ties, remaining exclusively competent to manage and monitor their exter-
nal borders.
19 COM (2002) 233 final, 21.
20 COM (2002) 233 final, 21.
21 Council, Plan for the management of the external borders of the Member States
of the European Union, doc. 10019/02, 14 June 2002.
22 Council, Presidency Conclusions, Seville European Council, 21–22 June 2002, 22
June 2002, para 32.
David Fernandez-Rojo
294
Negotiating the establishment of FRONTEX
Over the course of a year, the External Borders Practitioners Common
Unit had a very limited impact on the ecient management of the EU’s
borders. The failure of the Common Unit was largely due to its inadequate
preparation and planning, as well as an insucient operational coopera-
tion and legal basis that prevented the Common Unit from developing
common operations.23 Meanwhile, the Member States also failed to fully
comply with their obligations towards the Common Unit, which ended
up being highly politicised and mainly “promoting individual Member
States’ pet projects”.24 Ultimately, the realisation of a uniform and eective
European border management depended on the operational powers con-
ferred on the Common Unit and the commitment of the Member States to
further communitarise this area.
The Common Unit needed to be reviewed with the aim of delegating
the operational tasks to a “new permanent Community structure able to
exercise this day-to-day management and coordination tasks and to re-
spond in time to emergency situations”.25 Therefore, in a report to the
Council by the Greek Presidency, it was considered necessary to design a
new institutional structure to promote eective operational cooperation in
the management of external borders.26 In November 2003, following the
2.
23 Council, Report on the implementation of programmes, ad hoc centres, pilot
projects and joint operations, doc. 10058/1/03, 11 June 2003 and Council,
Progress Report for the Implementation of the Plan for the management of exter-
nal borders of the Member States of the European Union and the comprehensive
plan for combating illegal immigration, doc. 7504/03, 17 March 2003.
24 Neal, Securitization and risk at the EU border: The origins of FRONTEX, Journal
of Common Market Studies 47 (2009), 333, 342.
25 European Commission, “Communication in view of the European Council of
Thessaloniki on the Development of a Common Policy on Illegal Immigration,
Smuggling and Tracking of Human Beings, External Borders and the Return of
Illegal Residents”, COM (2003) 323 final, 03 June 2003, 8.
26 COM (2003) 323 final, 6–8.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
295
Thessaloniki European Council,27 the European Commission proposed the
creation of FRONTEX.28
The negotiations for establishing FRONTEX lasted less than a year,
since the Agency was proposed on 20 November 2003 and adopted on 26
October 2004.29 Two factors rushed these negotiations: 1) the imminent
EU enlargement (expected by May 2004); 2) the completion on 1 January
2005 of the five-year transitional period, aer which external border mat-
ters would be governed by the co-decision procedure, which would imply
that the European Parliament would actively be involved, rather than
merely consulted, in the legislative process.30
While the European Council welcomed the creation of FRONTEX in
2005, it stressed that the European Commission should assess the establish-
ment of a European system of border guards.31 In 2010, the Stockholm
Programme also invited the Commission to initiate “a debate on the long-
term development of FRONTEX [that] should include (...) the feasibility
of the creation of a European system of border guards”.32 The Treaty of Lis-
bon invigorated this debate, leaving a wide margin of appreciation regard-
27 Thessaloniki European Council 19 and 20 June 2003, doc. 11638/03, 01 October
2003, 4. Previously, the European Commission presented a Feasibility study on
the control of the European Union’s maritime borders, see: Council, Feasibility
study on the control of the European Union’s maritime borders – Final Report,
doc. 11490/1/03 REV 1, 19 September 2003.
28 European Commission, Proposal for a Council Regulation establishing a Euro-
pean Agency for the Management of Operational Co-operation at the External
Borders, COM (2003) 687 final/2, 20 November 2003.
29 Council Regulation (EC) No. 2007/2004 of 26 October 2004 establishing a Euro-
pean Agency for the Management of Operational Cooperation at the External
Borders of the Member States of the European Union, OJ L-349, 25 November
2004, 1–11.
30 Leonard, The creation of FRONTEX and the politics of institutionalisation in the
EU external borders policy, Journal of Contemporary European Research 5
(2009), 371, 380; In this respect, the CJEU examined the implementation compe-
tences held by the Council aer the transitional period of five years, see: Euro-
pean Court of Justice, C-133/06, ECLI:EU:C:2008:257, judgement, 6 May 2008 –
European Parliament v. Council of the European Union and European Court of
Justice, C-257/01, ECLI:EU:C:2005:25, judgement, 18 January 2005 – Commis-
sion of the European Communities v. Council of the European Union.
31 European Council, The Hague Programme: Strengthening Freedom, Security and
Justice in the European Union, OJ C-53, 03 March 2005, 6.
32 European Council, The Stockholm Programme – An open and secure Europe
serving and protecting the citizens, 04 May 2010, 56; The 2015 external evaluation
of FRONTEX also signalled that any future revision of the mandate of the agency
should address the feasibility of creating a European Border Guard System; see:
David Fernandez-Rojo
296
ing the model to be implemented to manage the European external bor-
ders. Art. 77 Treaty on Functioning of the EU (TFEU) openly states that an
integrated system of external borders should be progressively established.
In June 2013, the European Commission ordered a study from Unisys
in order to examine the feasibility of introducing a European System of
Border Guards. The study, published on 16 June 2014, put forward a mod-
el, divided into three subsequent phases, to gradually achieve an integrated
management of the European external borders. On the one hand, the mod-
el sought to accommodate the position of FRONTEX, the European Com-
mission, and a large number of members of the European Parliament33
that advocated for a greater delegation of powers to the EU. On the other
hand, the Member States prioritised a more moderate integration of bor-
der management matters.34
According to the study conducted by Unisys, the first phase (until 2020)
for the development of a European System of Border Guards should con-
sist in deepening and developing FRONTEX’ powers and structure to the
fullest. The Agency should continue to support the work of national au-
thorities without being delegated new competences. The second phase,
however, could encompass a transferral of executive powers to FRONTEX
but only in the so-called hotspots (geographical areas subject to a dispro-
portionate migratory pressure). That is, while the daily management of the
borders would continue to be the responsibility of the Member States, the
hotspots’ operations would be the exclusive function of the Agency, which
would act through its own border guards and equipment35. As early as
2030 (phase three), the Unisys study envisaged a EU decentralised Agency
Ramboll and Eurasylum, External Evaluation of the Agency under Art. 33 of the
FRONTEX Regulation, 2015, 101.
33 The European Parliament has been favourable on strengthening FRONTEX’s
powers and mandate; see: European Parliament, Resolution on the mid-term re-
view of the Stockholm Programme, 2013/2024(INI), 02 April 2014, para 80; Euro-
pean Parliament, Resolution on the situation in the Mediterranean and the need
for a holistic EU approach to migration, 2015/2095(INI), 12 April 2016, paras 70–
72; European Parliament, Resolution on the Special Report of the European Om-
budsman in own-initiative inquiry OI/5/2012/BEH-MHZ concerning FRONTEX,
2014/2215(INI), 02 December 2015.
34 Unisys, Study on the feasibility of the creation of a European System of Border
Guards to control the external borders of the Union, 16 June 2014, 21; See: Coun-
cil, Report of the Conference “The Feasibility of a European System of Border
Guards: A practitioner’s perspective” organised by FRONTEX and ERA, doc.
5496/14, 27 January 2014.
35 COM (2015) 240 final, 7.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
297
that would be completely centralised and in charge of the supranational
management of the European external borders. Due to the executive and
decision-making powers of this new “EU federal Agency”, a reform of the
current Treaties and the internal legislation of some Member States is
deemed necessary by the Unisys study.
Although the recently adopted Regulations 2016/1624 and 2019/1896
misleadingly refer to a “European Border and Coast Guard”,36 this “new
FRONTEX” is not a fully fledged European Border Corps.37 However, Reg-
ulations 2016/1624 and 2019/1896 have not created a federal Agency with
centralised and enforcement powers in the management and surveillance
of the European borders. The EBCG, despite its new fancy name, will con-
tinue to operate in a decentralised border management system. As CAR-
RERA and DEN HERTOG highlighted, the EBCG could be better defined
as a FRONTEX+38 or, according to DE BRUYCKER, a mere legal fiction,
made up of the sum of the new Agency and the national authorities that
remain in charge of the management of the external borders.39
The EBCG has not been conferred exclusive and executive powers in the
management of the external borders, as was proposed by Unisys in its third
and final phase of FRONTEX’s development. The EBCG could be better
situated between the first and second phases of the Unisys model, since the
technical and operational tasks originally conferred to FRONTEX have
been significantly broadened, yet the Member States continue to conduct
executive and coercive activities at their external borders. In this regard,
Art. 5 Regulation 2016/1624 and Art. 7 Regulation 2019/1896 stated that
the Member States are primary responsible for the management of their
section of the external borders, and the EBCG’s mandate is limited to sup-
porting the application of EU border management measures by strength-
ening, evaluating, and coordinating the actions of the national competent
authorities.
36 Carrera/Den Hertog, A European Border and Coast Guard: What’s in a Name?,
CEPS Paper in Liberty and Security in Europe 88 (2016), 1, 1–22.
37 Acosta Sánchez, La nueva Guardia Europea de Fronteras y Costas una necesaria
evolución de FRONTEX, Boletín Instituto Español de Estudios Estratégicos 4
(2016), 466, 466–482; Santos Vara, La transformación de FRONTEX en la Agencia
Europea de la Guardia de Fronteras y Costas: ¿hacia una centralización en la
gestión de las fronteras?, Revista de Derecho Comunitario Europeo 59 (2018),
143, 143–186.
38 Carrera/Den Hertog, CEPS Paper in Liberty and Security in Europe 88 (2016) (fn.
36), 1, 1–22.
39 De Bruycker, The European border and coast guard: a new model built on an old
logic, European Papers 1(2) (2016), 559, 559–569.
David Fernandez-Rojo
298
The novel supervisory and operational tasks of the European Border and
Coast Guard Agency
FRONTEX was created in 2004 with the aim of operationally coordinating
and supporting national authorities in the management of their external
borders. Since then, FRONTEX has assisted the Member States through
the development of risk analysis, training programmes, joint operations,
rapid border interventions, return operations and signing agreements with
third countries. These tasks initially delegated to FRONTEX were progres-
sively expanded first with the adoption of Regulations 863/2007 and
1168/2011, as well as more recently in May 2015, with the European Agen-
da on Migration that designed the hotspot approach, a reinforced multilat-
eral cooperation to assist those national authorities subject to an exception-
al migratory pressure.40
Regulation 863/2007 introduced the rapid intervention teams and a
Central Record of Available Technical Equipment (CRATE). As a result, a
Member State, upon request, could temporarily use the resources that the
other Member States voluntarily put at its disposal. This equipment (air-
cra, vessels, helicopters, mobile radar units and other special technical
equipment) was intended to be used on a bilateral basis between Member
States. Subsequently, Regulation 1168/2011 reinforced the operational ca-
pacity of FRONTEX and its autonomy. FRONTEX was allowed to acquire
or lease technical equipment. Yet in reality, the resources of FRONTEX
consisted mainly of equipment owned by the Member States. Regulation
1168/2011 created the European Border Guard Teams. FRONTEX ac-
quired competent border guards seconded by the Member State as nation-
al experts. For a period of up to six months, FRONTEX was competent to
decide where and for how long the seconded guest ocers were going to
be deployed.
In May 2015, the European Agenda on Migration designed the hotspot
approach. The hotspots are defined as geographical areas subject to sud-
den, specific, and exceptional mixed migratory flows that the competent
national border and asylum systems are unable to eectively process.41
FRONTEX was called to play a threefold operational role at the hotspots; a
registration and screening role – by assisting the concerned Member State
in fingerprinting and determining the identity and nationality of the arriv-
III.
40 Explanatory note on the “Hotspot” approach, 15 June 2015, http://www.state-
watch.org/news/2015/jul/eucom-hotsposts.pdf.
41 Explanatory note on the “Hotspot” approach, 3.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
299
ing migrants; a debriefing role – by contributing to the national illegal mi-
grant smuggling and tracking investigations; and lastly, a return role –
by coordinating with the competent national authorities regarding the re-
moval of those migrants that do not qualify for asylum or international
protection. All of these tasks were expressly stated in Art. 18 para. 4 Regu-
lation 2016/1624 and now in Art. 40 Regulation 2019/1896, which regulate
the deployment of migration management support teams in the
hotspots.42
Whereas FRONTEX had not fully explored the tasks and every opera-
tional possibility that Regulations 863/2007 and 1168/2011 or the novel
hotspot approach oered, on 15 December 2015 the European Commis-
sion proposed the creation of the EBCG.43 The Commission stressed that
“the sheer scale of the mixed migratory flows which have crossed the exter-
nal borders of the European Union and the consequent secondary move-
ments, demonstrated that existing structures at Union and Member State
level are inadequate to address the challenges arising from such a large in-
flux”.44 The Commission considered that the control of the European ex-
ternal borders and the maintenance of security within the Schengen Area
required, in accordance with the principles of solidarity and responsibility,
the progressive development of an integrated system of management of the
external borders.
Regulations 2016/1624 and 2019/1896 aim to develop EU integrated
management of the external borders by addressing both the existing defi-
ciencies at the national level and responding eectively to exceptional and
sudden migratory flows. To achieve these ambitious objectives, Regula-
42 For an analysis in depth of the hotspot approach see Casolari, The EU’s Hotspot
Approach to Managing the Migration Crisis: A Blind Spot for International Re-
sponsibility?, The Italian Yearbook of International Law 25 (2015), 109, 109–134;
Fernandez-Rojo, Los hotspots: expansión de las tareas operativas y cooperación
multilateral de las agencias europeas Frontex, Easo y Europol, Revista de Derecho
Comunitario Europeo 61 (2018), 1013, 1013–1056; Neville/Sy/Rigon, On the front-
line: the hotspot approach to managing migration, Study for the LIBE Commit-
tee, PE 556.942, May 2016, 33–40.
43 See: External Evaluation of the Agency under Art. 33 of the FRONTEX Regu-
lation Final report 28 July 2015; FRONTEX Management Board Decision No.
40/2015 adopting recommendations of the Management Board following the
evaluation of FRONTEX (Art. 33) 20 October 2015.
44 Proposal for a Regulation of the European Parliament and of the Council on the
European Border and Coast Guard and repealing Regulation (EC) No. 2007/2004,
Regulation (EC) No. 863/2007 and Council Decision 2005/267/EC, COM (2015)
671 final, 15 December 2015, 2.
David Fernandez-Rojo
300
tions 2016/1624 and 2019/1896 indicate that the EBCG shall have the fol-
lowing operational tasks vis-à-vis the Member States: 1) monitor the eect-
ive management of the external borders; 2) provide reinforced technical
and operational assistance to Member States through joint operations and
rapid border interventions and; 3) ensure the practical implementation of
EU border management measures in situations requiring urgent action at
the external borders. This section centres on comparatively analysing the
new operational powers conferred on the new EBCG when supporting the
Members States through Regulations 2016/1624 and 2019/1896.
The EBCG’s supervisory role
Art. 3 para. 2 Regulation 2016/1624 conferred a monitoring role on the
EBCG in order to guarantee a common strategy for the management of the
European external borders. While FRONTEX also conducted supervisory
activities to a certain extent, the EBCG may now deploy its own liaison
ocers in the Member States with the aim of fostering cooperation and di-
alogue between the Agency and the competent national authorities
(Art. 12 para. 3 Regulation 2016/1624). The EBCG liaison ocers, 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
eectively manage its borders (Art. 12 para. 3 (h) Regulation 2016/1624).
According to the EBCG Management Board Decision 14/2017, the Ex-
ecutive Director of the Agency is in charge of appointing the members of
the temporary sta of the EBCG to be deployed as Liaison Ocers. The
EBCG’s Liaison Ocers are namely responsible for: 1) acting as an inter-
face and facilitating the cooperation between the EBCG and all Member
States’ authorities; 2) supporting the collection of information and best
practices; 3) monitoring the measures taken by the Member State at its
border sections to which a high impact level has been attributed; 4) con-
tributing to promoting the application of the Union acquis; 5) reporting
regularly to the Executive Director on the situation at the external borders,
on the capacity of the Member States concerned to deal eectively with the
situation at the external borders, and on the execution of return and pre-
return activities; and 6) monitoring and reporting on the measures taken
by the Member States with regard to a situation requiring urgent action at
1.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
301
the external borders.45 These responsibilities have been further detailed in
Art. 31 para 3 Regulation 2019/1896.
The information that the liaison ocers gather contributes and facili-
tates 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 sta of Member States for border con-
trol (Art. 32 para. 2 Regulation 2019/1896). In turn, Member States are re-
quired to collaborate with the EBCG in elaborating the vulnerability as-
sessment.
Pursuant Art. 32 para. 1 Regulation 2019/1896, the Agency shall, by de-
cision of the Management Board based on a proposal of the Executive Di-
rector, establish a common vulnerability assessment methodology. This
methodology consists of a baseline assessment, a simulation exercise, a sim-
ulation assessment, and the recommendations issued by the EBCG.46 Dur-
ing the baseline assessment, the Agency is in charge of checking for vulner-
abilities and analysing the data gathered. Subsequently, the Agency’s Ex-
ecutive Director may decide to conduct a simulation exercise for selected
Member States and a stress test of the competent national authorities’ pre-
paredness to specific threats and challenges at the external borders, which
may lead to additional recommendations on measures for the Member
States.47 Finally, the Member States are informed of the results of their vul-
nerability assessments and the EBCG’s Executive Director may recom-
mend that the concerned Member State adopt, within a certain period of
time, certain measures.
The recommendatory powers conferred on the EBCG are reflected in
Art. 32 para. 10 Regulation 2019/1896, which signals that if the recom-
mended measures are not implemented in a timely fashion and in an ap-
propriate manner by the concerned Member State, the EBCG’s Executive
Director shall refer the matter to the Management Board and inform the
45 FRONTEX, Management Board Decision 14/2017 on the deployment of FRON-
TEX Liaison Ocers to Member States, 13 June 2017.
46 FRONTEX, What is Vulnerability Assessment?, 16 October 2017, http://bit.ly/
2zsPmsr.
47 European Commission, Report on the operationalisation of the European Border
and Coast Guard, COM (2017) 42 final, 25 January 2017, 6; European Commis-
sion, Report on the operationalisation of the European Border and Coast Guard,
COM (2017) 201 final, 02 March 2017, 7; Ferraro/De Capitani, The new European
Border and Coast Guard: yet another “half way” EU reform?, ERA Forum 17
(2016), 385, 385–398.
David Fernandez-Rojo
302
European Commission. The Management Board shall then make a deci-
sion, 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, Art. 32
para. 10 Regulation 2019/1896 explicitly declares that the decision of the
Management Board is binding on the Member State.
Regulations 2016/1624 and 2019/1896 clearly reinforce the incipient
monitoring and supervisory capacity of FRONTEX. Currently, the EBCG’s
Management Board is mandated to adopt, by two-thirds majority of the
members with a right to vote, binding measures, if the actions or omis-
sions of a concerned Member State may compromise the Schengen Area.48
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 eectively ensure that a concerned Member State tackles the vulnera-
bilities identified in its external borders.
Although the EBCG started to undertake vulnerability assessments a
few months aer Regulation 2016/1624 entered into force, the presence of
liaison ocers in Member States had a slow start. It was not until June
2017 that the EBCG’s Management Board approved the rules that defined
the role and tasks of the Liaison Ocers. The European Commission
urged the Agency to “step up and accelerate the work towards the deploy-
ment of liaison ocers”, since in September 2017, the Memorandum of
Understanding with the Member States, which set out the modalities of
deployment, was not adopted and the selection procedures for the recruit-
ment of the Liaison Ocers were not yet launched.49 During 2017, the
EBCG smoothly delivered baseline vulnerability assessments and issued
recommendations to the Member States with concrete measures, address-
ing the identified vulnerabilities.50 In this regard, the competent national
authorities were required to improve their processes of data collection,
with the aim of eciently providing complete data on their border man-
agement capacities.51
While it is still early to assess to what extent Regulation 2019/1896 im-
proves the functioning of the vulnerability assessment and the swi de-
ployment of liaison ocers, a novel mechanism of impact levels to exter-
48 European Commission, Fih Report on the operationalisation of the European
Border and Coast Guard, COM (2017) 467 final, 06 September 2017, 7.
49 COM (2017) 467 final, 12.
50 COM (2017) 467 final, 7–8.
51 European Commission, Fourth Report on the operationalization of the European
Border and Coast Guard, COM (2017) 325 final, 13 June 2017, 10.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
303
nal border sections has been designed. Arts. 34 and 35 Regulation
2019/1896 state that the EBCG, in agreement with the Member State con-
cerned, may declare three dierent impact levels and reactions with the
aim of swily addressing at a given border section a crisis situation. Firstly,
when the EBCG declares a low impact level, the competent national au-
thorities shall “organise regular control […] and ensure that sucient per-
sonnel and resources are being kept available for that border section”
(Art. 35 para. 1 (a)). Secondly, if a medium impact level is established, the
concerned Member State shall “ensure that appropriate control measures
are being taken at that border section” (Art. 35 para. 1 cl. (b)). Thirdly,
where a high impact level is declared the national authorities are encour-
aged to request operational assistance from the EBCG (Art. 35 para. 1 (c)).
In addition, the EBCG may temporarily determine at a given border sec-
tion a critical impact level, which shall be communicated to the European
Commission. Under this scenario, the EBCG’s Executive Director will re-
commend the Member State concerned to request the EBCG’s operational
assistance through the initiation of a joint operation or a rapid border in-
tervention (Art. 41 para. 1 Regulation 2019/1896). While the obligations
for the national border authorities under the low, medium and high im-
pact 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
(Art. 41 para. 2). According to Art. 42 Regulation 2019/1896, 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 cooper-
ate with the Agency in the implementation of those measures.
The EBCG’s expanded operational tasks
The EBCG continues to provide operational assistance to the Member
States, as did FRONTEX, through the coordination of joint operations and
rapid border interventions and through the deployment of teams on the
ground (Art. 37 Regulation 2019/1896). For the first time, Regulation
2016/1624 regulated the technical and operational capacity of the EBCG in
the hotspots, where the national authorities face a sudden and dispropor-
2.
David Fernandez-Rojo
304
tionate migratory pressure according to the 2015 Migration Agenda.52 In
particular, pursuant to Art. 18 para. 2 Regulation 2016/1624, “the executive
director, in coordination with other relevant Union agencies, shall assess a
Member State’s request for reinforcement and the assessment of its needs
for the purpose of defining a comprehensive reinforcement package con-
sisting of various activities coordinated by the relevant Union agencies to
be agreed upon by the Member State concerned”.
In this regard, Art. 40 para. 1 Regulation 2019/1896 now details that in
the hotspot areas migration management support teams, composed of ex-
perts from the relevant Union Agencies, will be deployed upon request of
a Member State subject to large inward mixed migratory flows. The
EBCG’s teams deployed in the hotspots are in charge of reinforcing the
technical and operational assistance by “screening of third-country nation-
als arriving at the external borders, including the identification, registra-
tion, and debriefing […] and, where requested by the Member State, the
fingerprinting […]” (Art. 40 para. 4 Regulation 2019/1896). Notwithstand-
ing that the hotspot approach has been incorporated in Regulation
2016/1624 and 2019/1896, which in turn reveals that the approach consti-
tutes a EU long term measure to tackle extraordinary migratory pressures,
there is to date no specific legal framework clarifying the functioning,
powers and responsibility of the EBCG in the hotspots.
Not only are the operational activities of the EBCG reinforced in re-
gards to the hotspots designed for those Member States subject to an ex-
traordinary and exceptional migratory flow, but also in regards to third
countries. The EBCG shall facilitate, in line with FRONTEX’ previous
practice, technical and operational cooperation between the Member
States and third countries. The EBCG is now competent to sign work
agreements, which shall respect EU Law, fundamental rights, and the prin-
ciple of non-refoulement, with the authorities of third countries in charge
of border management (Art. 73 para. 1 Regulation 2019/1896)53. In addi-
52 COM (2015) 240 final, 6.
53 These agreements signed by FRONTEX were widely criticised by the doctrine giv-
en its lack of transparency, dicult control and potential violation of fundamen-
tal rights; See: Fink, Frontex Working Arrangements: Legitimacy and Human
Rights Concerns Regarding “Technical Relationships”, Merkourios-Utrecht Jour-
nal of International and European Law 28 (2012), 20, 20; García Andrade, EU Ex-
ternal Competences in the Field of Migration: How to Act Externally When
Thinking Internally, Common Market Law Review 55 (2018), 157, 157; Santos
Vara, The External Activities of AFSJ Agencies: The Weakness of Democratic and
Judicial Controls, European Foreign Aairs Review 20 (2015), 115, 118.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
305
tion, the EBCG may deploy experts from its own sta as liaison ocers in
third countries (Art. 77 Regulation 2019/1896), as well as to establish an-
tenna oces on the territory of a third country in order to facilitate and
improve the coordination of the Agency’s operational activities (Art. 60
Regulation 2019/1896). Nonetheless, the main novelty introduced by
Regulation 2019/1896 concerns those circumstances that require greater
technical and operational assistance, in which the Agency, prior to the
adoption of a status agreement, may deploy “border management teams
from the standing corps to a third country where the members of the
teams will exercise executive powers” (Art. 73 para. 3). That is, on the basis
of an operational plan agreed between the Agency and the third country
concerned, the EBCG “may coordinate operational cooperation between
Member States and third countries and provide technical and operational
assistance to third countries in the context of European integrated border
management” (Art. 74 para. 1).54
Furthermore, with the objective of reducing the dependence of the
EBCG on the Member States’ technical equipment, Art. 38 Regulation
2016/1624 stipulated that the Agency may acquire its own technical equip-
ment to be deployed during joint operations, pilot projects, rapid border
interventions and return operations. The European Commission’s reports
on the operationalisation of the EBCG stressed that the Agency was espe-
cially interested in acquiring small and medium-size assets (e.g. aerial
surveillance services or mobile oces). In particular, the European Com-
mission allocated EUR 40 million to the EBCG from 2017 to 2020 in order
to acquire its own equipment.55 In this regard, Art. 63 para. 4 Regulation
2019/1896 points out that where the EBCG acquires or co-owns equipment
such as aircras, helicopters, service vehicles or vessels, the Agency shall
agree with a Member State the registration of the equipment as being on
government service.
Both Regulation 2016/1624 and 2019/1896 aim to provide the EBCG
with technical and human resources that are immediately and flexibly
available to be deployed, with the goal of filling in the operational gaps
that continuously aicted FRONTEX. However, Regulation 1168/2011
amending FRONTEX had already attempted, with little success, to in-
54 These new external functions of the EBCG raise important questions in regards to
the delimitation of responsibility among the actors involved and the respect for
fundamental rights; See: Rijpma, External Migration and Asylum Management:
Accountability for Executive Action Outside EU Territory, European Papers 2
(2017), 571.
55 COM (2017) 467 final, 4.
David Fernandez-Rojo
306
crease the operational autonomy of the Agency. Nevertheless, regarding
the acquisition of equipment, not only did FRONTEX lack the operational
and technical capabilities to manage its own aircra, vessels, and patrol ve-
hicles, but since the lines of responsibility were not clearly spelled out, the
Member States were also unwilling to register ships or aircra purchased
and operated by the Agency.56 It is true that the European Commission
now has a strong budgetary commitment to ensure that the EBCG ac-
quires or leases technical resources, but the Agency still lacks the necessary
structures and expertise to eectively manage its own equipment. Regula-
tions 2016/1624 and 2019/1896 do not design a clear framework for the
EBCG’s responsibility, and it remains highly questionable whether the
Member States will authorise the registration of equipment that is beyond
their control.
Lastly, 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
ten working days from the date that the Operational Plan is agreed upon
by the Executive Director and the host Member State. The EBCG may con-
tribute 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 aecting the
discharge of national tasks (Art. 39 para. 7 Regulation 2016/1624).
In accordance with Art. 20 para. 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. As was the case with FRONTEX, the
EBCG may contribute to the European Border and Coast Guard Teams
(EBCGT) with border guards or other relevant sta seconded by the Mem-
ber States for a maximum period of twelve months or more, but not less
than three months (Art. 20 para. 11 Regulation 2016/1624). The EBCG is
in charge of selecting the Seconded Members of Teams in accordance with
the Agency’s operational requirements. The selected members shall be in-
cluded in the EBCGT pool, deployed by the Agency, and shall undertake
their duties with the interests of the EBCG in mind.57
56 House of Lords (European Union Committee), FRONTEX: the EU external bor-
ders agency, 9th Report of Session 2007–2008, 05 March 2008, 52.
57 FRONTEX, Management Board Decision 27/2017 laying down rules on the sec-
ondment of national experts with the tasks and powers of the Members of the
Teams to FRONTEX, 27 September 2017.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
307
While the establishment of a Rapid Reaction Pool of 1,500 was a posi-
tive measure for emergency situations at the external borders, Regulation
2016/1624 did not manage to overcome the insucient pooling of Mem-
ber States’ border guards for concrete locations and concrete periods in
regular joint operations.58 For this reason, Regulation 2019/1896 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 2019/1896.
Pursuant to Art. 54 para. 1 Regulation 2019/1896, the Standing Corps is
composed of four categories of border guards: 1) operational sta mem-
bers of the Agency (Art. 55), 2) operational sta seconded from Member
States to the Agency for a long-term deployment (Art. 56), 3) operational
sta from Member States ready to be provided to the Agency for a short-
term deployment (Art. 57) and 4) operational sta from the Member States
ready to be deployed for the purpose of rapid border interventions
(Art. 58). The EBCG’s operational sta members is a new category of sta
designed by Regulation 2019/1896 in order to ensure the eective manage-
ment of the external borders. Regarding the other three categories of bor-
der guards, the Member States are obliged to second to the Agency opera-
tional sta 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 (Art. 54 para. 3
Regulation 2019/1896) such as verifying the identity and nationality of per-
sons, authorising or refusing of entry upon border check, stamping of trav-
el documents, issuing or refusing of visas, patrolling or, registering finger-
prints (Art. 55 para. 5 Regulation 2019/1896). Importantly, Art. 82 para. 2
Regulation 2019/1896 states that the performance of executive powers by
the EBCG’s operational sta 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 on the EBCG’s opera-
tional sta members may breach the primary law provisions that regard
the Member States as ultimately responsible for their own internal security
58 COM (2018) 631 final, 4.
David Fernandez-Rojo
308
and external border management.59 While the European Commission con-
siders that Art. 77 para. 2 (d) TFEU provides the legal basis to bestow upon
the EBCG’s sta members executive tasks if they are clearly defined to
match the objective of the establishment of an integrated management sys-
tem for external borders,60 Art. 77 para. 2 (d) TFEU shall also be read in
light of Arts. 72 and 73 TFEU.
Art. 72 TFEU states that the competences that the EU enjoys in the AFSJ
“shall not aect the exercise of the responsibilities incumbent upon Mem-
ber States with regard to the maintenance of law and order and the safe-
guarding of internal security”. In other words, the EU cannot replace the
Member States’ prerogatives of coercion and “EU agencies are therefore li-
mited to supporting actions of national authorities, except (and only) to
the extent that the Treaty confers express powers to act on such agen-
cies”.61 Relatedly, Art. 4 para. 2 TEU provides that “the Union […] shall re-
spect their essential State functions, including ensuring the territorial in-
tegrity of the State, maintaining law and order and safeguarding national
security. In particular, national security remains the sole responsibility of
each Member State”.
Furthermore, Art. 73 TFEU indicates that “it shall be open to Member
States to organise 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 safe-
guarding national security”. As MUNGIANU clearly explains “insofar as
the EU limits itself to the role of coordinator without any law enforcement
power, and insofar as the Member States are free to engage in a form of
cooperation among themselves. Art. 73 TFEU has been respected”.62
Hence, while competences are shared between the EU and the Member
States in the AFSJ (Art. 4 para. 2 (j) TFEU), Arts. 72 and 73 TFEU limit the
powers conferred on the Union in matters directly linked to Member
States’ national sovereignty (Art. 2 para. 6 TFEU).
59 Meijers Committee, CM1817 Comments on the dra for a new Regulation on a
European Border and Coast Guard, (COM (2018) 631 final) and the amended
proposal for a Regulation on a European Union Asylum Agency (COM (2018)
633 final), 27 November 2018, 4 and European Council on Refugees and Exiles,
Comments on the Commission Proposal for a Regulation on the European Bor-
der and Coast Guard (COM (2018) 631 Final), November 2018, 9.
60 COM (2018) 631 Final, 7.
61 Peers, EU Justice and Home Aairs Law: EU Criminal Law, Policing, and Civil
Law, Volume II, London 2016, 27.
62 Mungianu, Frontex: Towards a common policy on external border control, Euro-
pean Journal of Migration and Law 15 (2013), 359, 371.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
309
The EBCG’s operational power to “intervene”
The new EBCG’s capacity to intervene led to considerable rejection by the
Member States during the negotiations of Regulation 2016/1624.63 Art. 3
para. 2 Regulation 2016/1624 states that “the Agency shall, by decision of
the management board based on a proposal of the executive director, es-
tablish a technical and operational strategy for European integrated border
management”. Currently, Art. 8 para. 2 Regulation 2019/1896 specifies that
“the multiannual strategic policy for the European integrated border man-
agement shall set out how the challenges in the area of border manage-
ment and returns are to be addressed in a coherent, integrated and system-
atic manner […]”.
That is, the national authorities in charge of border management shall
conform to the strategy adopted by the EBCG (Art. 3 para. 3 Regulation
2016/1624 and 8 para. 6 Regulation 2019/1896). Member States shall ab-
stain from conducting “any activity which could jeopardise the function-
ing of the Agency or the attainment of its objectives” (Art. 8 para. 2 Regu-
lation 2016/1624 and Art. 7 para. 5 Regulation 2019/1896). To this end, the
EBCG is authorised to supervise the eective functioning of the national
external borders, undertake vulnerability assessments, monitor whether a
Member State is qualified to eectively implement the applicable EU legis-
lation, 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 mea-
3.
63 Art. 18 para. 1 of the original European Commission proposal stated that “the
Commission, aer consulting the Agency, may adopt a decision by means of an
implementing act, identifying the measures to be implemented by the Agency
and requiring the Member State concerned to cooperate with the Agency in the
implementation of those measures”. Given the rejection that this provision
aroused among the Member States, it was decided that the Council instead of the
Commission shall be responsible for adopting implementing acts. Regarding the
rejection of some Member States see: Avramidis, EU Border Force Plan Faces Re-
sistance from Governments, Reuters, 13 December 2015, http://reut.rs/1jWwau1;
De La Baume, Countries Balk at EU Border Force Proposal, Politico, 15 December
2015, http://politi.co/1mmOyhj; see also, Rijpma, The proposal for a European
Border and Coast Guard: evolution or revolution in external border manage-
ment?, Study for the European Commission (LIBE committee) (2016), 18; Rosen-
feldt, Establishing the European Border and Coast Guard: all-new or FRONTEX
reloaded?, EU Law Analysis, 16 October 2016, http://eulawanaly-
sis.blogspot.com.es/2016/10/establishing-european-border-and-coast.html.
David Fernandez-Rojo
310
sures are not eectively implemented (Art. 18 Regulation 2016/1624 and
42 Regulation 2019/1896). 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 migrato-
ry pressure, the EBCG shall ensure a unified, rapid, and eective EU re-
sponse so as not to jeopardise the functioning of the Schengen Area. In
this situation and according to Art. 42 para. 1 Regulation 2019/1896, “the
Council, on the basis of a proposal from the Commission, may adopt with-
out delay a decision by means of an implementing act to identify measures
to mitigate those risks to be implemented by the Agency and requiring the
Member State concerned to cooperate with the Agency in the implementa-
tion of those measures”.
Since the Council decision is adopted, the EBCG’s Executive Director
shall, within two working days, dra an operational plan and submit it to
the Member State concerned (Art. 42 para. 4 Regulation 2019/1896). 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 of the necessary operational sta from the European Bor-
der and Coast Guard standing corps, for the practical execution of the
measures identified in the Council’s decision.
Art. 42 para. 8 Regulation 2019/1896 requires the Member State con-
cerned 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 Art. 42 para. 10 Regulation 2019/1896 indi-
cates that the European Commission may authorise the reestablishment of
border controls in the Schengen Area, provided that the concerned Mem-
ber State neither executes the decision adopted by the Council, nor agrees
with the EBCG’s Operational Plan within 30 days. Ultimately, the Mem-
ber 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 of
the Schengen Area (Art. 42 para. 5 Regulation 2019/1896).
The EBCG’s Internal Administrative Structure: Balancing the Agency’s
Reinforced Supervisory and Operational Tasks
This section studies the EBCG’s administrative organisation, constituting
an important determinant of the degree of influence that the Member
States exert in the increasing operational, supervisory, and implementation
IV.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
311
powers conferred on this EU decentralised Agency. In other words, the
EBCG’s operational role is expanding, and thereby, the administration of
border management is further Europeanised. However, through the elec-
tion and supervision of the Executive Director, and through the majority
presence of national representatives at the Management Board of the
EBCG, Member States continue to eectively steer and control its rein-
forced operational tasks.
The EBCG’s Intergovernmental Management Board
The Management Board is the EBCG’s strategic planning body. The Man-
agement Board is in charge of a wide range of key managerial and oversee-
ing activities,64 which mainly include appointing and exercising disci-
plinary control over the Agency’s Executive Director and annually adopt-
ing the general budget, the Work Programme, and the Activity Report.
The EBCG’s Management Board is composed of twenty-six Member States’
representatives that are signatories of the Schengen acquis and two repre-
sentatives of the European Commission, all with a right to vote.65 These
members shall be appointed for an extendable period of four years on the
basis of their degree of high-level relevant experience and expertise in the
field of operational cooperation on border management and their relevant
managerial, administrative and budgetary skills.
The predominant intergovernmental character of the EBCG’s Manage-
ment Board aims to oset the increasing administrative integration at the
EU level of nationally sensitive matters, like border management.66 Put dif-
ferently, the European Parliament does not have any representative in the
EBCG’s Management Board, and the European Commission participation
is in a clear minority with only two representatives. Member States have
thus secured control over the strategic decisions that are made at the core
of the Agency.
Furthermore, the EBCG’s Management Board makes current decisions
regarding business matters with voting rights by the absolute majority of
its members with a right to vote (Art. 105 para. 1 Regulation 2019/1896),
and by two-thirds majority for the appointment and dismissal of the Ex-
1.
64 See: Art. 100 Regulation 2019/1896.
65 FRONTEX’s Management Board Membership, http://frontex.europa.eu/about-
frontex/organisation/management-board/.
66 Llorens, El nuevo mapa de las agencias europeas del Espacio de Libertad, Seguri-
dad y Justicia, Revista de Derecho Comunitario Europeo 56 (2017), 77, 106.
David Fernandez-Rojo
312
ecutive Director, the designation of the chairperson of the Management
Board, and the adoption of the annual budget and the Work Pro-
gramme.67 Importantly, Regulation 2019/1896 also provides stricter major-
ity rules in regards to the EBCG’s novel operational and supervisory tasks.
Art. 100 para. 2 cl. d Regulation 2019/1896 signals that decisions on con-
ducting the vulnerability assessment and monitoring the implementation
of the recommendations on the basis of the results of the vulnerability as-
sessments shall be adopted by a two-thirds majority. Similarly, Art. 100
para. 2 (c) states that a majority of two thirds of the members with a right
to vote in the Management Board are in charge of adopting decisions on
establishing antenna oces or prolonging the duration of their operation.
Previously, Regulation 2016/1624 designing the EBCG also provided
stricter majority rules in regards to the novel operational tasks designed,
and especially, when deploying EBCGT in the territory of the Member
States. Art. 20 para. 4 Regulation 2016/1624 detailed that the Management
Board shall decide, by a three-quarter majority, on the profiles and the
minimum number of border guards to be made available during rapid bor-
der interventions. Additionally, Art. 62 para. 1 (c) and cl. h Regulation
2016/1624 pointed out that any decisions on the EBCG to conduct vulner-
ability assessments, and the profiles and minimum number of border
guards to be made available for the rapid reaction pool of the EBCGT, re-
quired respectively within the Management Board a two-thirds and three-
quarters majority.
The higher voting thresholds set within the Management Board both
with the former Regulation 2016/1624 and the current Regulation
2019/1896 in regards to the reinforced operational and supervisory powers
conferred on the EBCG ensure that the Member States have a significant
say and control over the Agency. While the competent national authorities
have agreed to make national resources and personnel available to the
EBCG and to assist the Agency in very sensitive and sovereign matters, the
Member States monopolise and steer the strategic operational and moni-
toring decisions of the EBCG within the Management Board.
67 See: Art. 100 para. 2 Regulation 2019/1896.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
313
The EBCG’s executive directors
The executive directors have a leading position in the governance, manage-
ment, and day-to-day administration of the EU decentralised agencies68.
They are in charge of managing the agencies’ finances and personnel, eec-
tively implementing the agencies’ tasks and acting as their legal representa-
tives. Among many other functions,69 the EBCG’s director must be com-
pletely independent and prepare and implement the multiannual pro-
gramming dra, annual work programmes, the consolidated annual re-
port, and strategic decisions adopted by the Management Board. The Man-
agement Board appoints the executive director on the basis of a shortlist
drawn up by the European Commission, following an open and transpar-
ent selection procedure.70
The European Parliament assumes a relevant role in the appointment of
the EBCG’s executive director since the Management Board is obliged to
take into account the Parliament’s views.71 According to Art. 107 para. 2
Regulation 2019/1896, before the EBCG’s executive director is appointed,
the candidates proposed shall be invited to make a statement before the
European Parliament and answer questions put forth by its members. Fol-
lowing such a statement, the Parliament shall adopt an opinion setting out
its views and may indicate a preferred candidate. The EBCG’s Manage-
ment Board shall take these views into account when appointing the ex-
ecutive director. In the case that the Management Board decides to appoint
a candidate other than the candidate whom the Parliament indicated, the
Management Board must inform the Parliament and the Council in writ-
ing as to how the Parliament’s opinion was taken into account.
Due to the significant responsibilities bestowed upon the EBCG’s execu-
tive director, the European Institutions and the Member States aim to in-
2.
68 Busuioc/Groenleer, Wielders of supranational power? The administrative behaviour
of the heads of European Union agencies, in: Busuioc/Groenleer/Trondal (eds.),
The Agency Phenomenon in the European Union: Emergence, Institutionalisa-
tion and Everyday Decision-Making, Manchester: Manchester University Press
2012, 128, 128–150.
69 Art. 106 para. 4 Regulation (EU) No. 2019/1896.
70 Art. 107 Regulation (EU) No. 2019/1896.
71 See: Carrera/Hernanz/Parkin, The “Lisbonisation” of the European Parliament: As-
sessing Progress, Shortcomings and Challenges for Democratic Accountability in
the Area of Freedom, Security and Justice, Centre for European Policy Studies
Liberty and Security in Europe Paper 58, (2013), 1, 1–44; Trauner, The European
Parliament and agency control in the Area of Freedom, Security and Justice, West
European Politics 35 (2012), 784, 784–802.
David Fernandez-Rojo
314
fluence her or his appointment. Notwithstanding that the EU Institutions
increasingly participate in the appointment process by proposing and be-
ing consulted, the Management Board, a predominantly intergovernmen-
tal body, makes the final decision and tightly oversees the executive direc-
tor (Art. 107 para. 4 Regulation 2019/1896).
Consequently, the main limitation to the EBCG’s reinforced opera-
tional and supervisory role comes from the Member States. While it is true
that the EBCG operationally assists the Member States in matters closely
linked to their national sovereignty prerogatives, the competent national
authorities that vote at the Management Boards tightly control its recently
reinforced operational, implementation and supervisory functions. Mem-
ber States’ reluctance to fully abandon their well-established bilateral
practices, share information, and operationally cooperate with the EBCG
in core national sovereign matters like border management is especially
reflected in its Management Board and appointment of the executive direc-
tor.
Conclusion
In the aermath of the “refugee crisis”, the transformation of FRONTEX
into the EBCG, as well as the need to promote a shared management of
the European external borders emerged as a top political priority for both
the EU and the Member States. At the time, the establishment of FRON-
TEX was also influenced by conjunctural aspects such as the future expan-
sion of the European Community to the East, the growing migratory pres-
sure on the southern coasts and the terrorist threats aer the attacks of 11
September 2001. Currently, Regulations 2016/1624 and 2019/1896 intro-
duce 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”.72
Both Regulations 2016/1624 and 2019/1896 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.
V.
72 COM (2018) 631 Final, 2.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
315
However, the most controversial, significant and novel operational powers
included in Regulations 2016/1624 and 2019/1896 consist of introducing
the Agency’s capacity to “intervene” and granting executive powers to the
Agency’s sta members respectively.
Regulation 2016/1624, in order to avoid endangering the functioning of
the Schengen Area, entitled the EBCG to intervene if a Member State de-
cides not to implement the measures recommended by the executive direc-
tor to tackle the weaknesses detected at its external borders, or if the Mem-
ber State does not request operational assistance in the face of dispropor-
tionate and sudden migratory pressure at its borders. However, it is debat-
able 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 2019/1896, do not provide much clarity in
this respect, which is a common feature of those European legislative in-
struments in charge of regulating highly sensitive competences that re-
quire the support of national authorities.
Regulation 2019/1896 confers executive powers on the EBCG’s standing
corps deployed as team members. The Member State hosting an operation
may empower the Agency to verify the identity and nationality of the ar-
riving migrants, authorise or refuse entry upon border check, stamp travel
documents, issue or refuse visas, patrol or register fingerprints. While these
executive powers may ensure a more eective, integrated and supranation-
al administration of the European external borders, these activities also en-
tail a significant – and dicult to control – degree of discretion that exces-
sively stretches the Treaty provisions establishing the Member States as ul-
timately responsible for their own internal security and external border
management. In this regard, aware of the impact that the EBCG’s expand-
ed operational activities may have in the fundamental rights of the individ-
uals, Regulation 2016/1624 introduced and now Regulation 2019/1896 de-
tails the functioning of the individual complaint mechanism, which allows
any person who is directly aected by the tasks that the EBCG conducts on
the ground to lodge a complaint (Art. 111 Regulation 2019/1896).73
Although it is true that currently the EBCG assists the Member States
more independently in matters closely linked to their national sovereignty
prerogatives, the competent national authorities that vote at the Manage-
73 See: Carrera/Stefan, Complaint Mechanisms in Border Management and Expul-
sion Operations in Europe: Eective Remedies for Victims of Human Rights Vio-
lations?, Centre for European Policy Studies, (2018); Fernandez-Rojo, Reglamento
2016/1624: de FRONTEX a la Guardia Europea de Fronteras y Costas, Revista
General de Derecho Europeo 41 (2017), 223, 223–251.
David Fernandez-Rojo
316
ment Board will continue to tightly control the Agency’s recently rein-
forced 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 pow-
ers 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, Reg-
ulations 2016/1624 and 2019/1896 do not create a European Corps of Bor-
der Guards with full and exclusive competences in border management.
Nevertheless, Regulations 2016/1624 and 2019/1896 do reveal how dicult
it still is to strike a balance between designing an eective, integrated strat-
egy for the management of the European external borders and the Mem-
ber States’ resistance to conferring operational powers directly linked to
their core national sovereignty. It is still early to conclude whether we are
only facing another revision of FRONTEX’s initial mandate as a reaction
to an unprecedented migratory pressure or, on the contrary, Regulations
2016/1624 and 2019/1896 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.
Regulation 2019/1896 on the European Border and Coast Guard (Frontex)
317
Article
Full-text available
Recenti casi di cronaca che hanno visto protagonista l’Agenzia europea della Guardia di Costiera e Frontiera hanno offerto il giusto spunto per una riflessione giuridica in merito alle tutele offerte a coloro i cui diritti siano lesi nell’ambito delle operazioni di controllo delle frontiere. Le condotte analizzate, i cd. push-backs, già di per sé di difficile inquadramento, si inseriscono in un più complesso contesto che rende particolarmente onerosa la tutela dei diritti umani. Le frontiere diventano quindi espressione di fragilità dello stato di diritto e luogo dove vengono poste in essere operazioni potenzialmente idonee a ledere i diritti di individui già fortemente vulnerabili, ma da cui viene offerta insufficiente tutela. Dopo aver inquadrato le condotte, l’articolo analizza la debolezza strutturale dei meccanismi di tutela dei diritti umani. Recent news reported events concerning the involvement of the European Border and Coast Guard Agency. Such episodes provided the opportunity for a legal reflection on the effectiveness of the legal tools to protect human rights in the context of the Agency’s operation. The conducts under analysis, the so-called push-backs, take place in such a complex legal context that the whole mechanism of human rights protection is particularly burdensome. These operations, besides having the capacity to seriously hinder the human rights of vulnerable individuals, take place at EU borders which are already fragile when it comes to rule of law. After framing the conduct, the article analyses the structural weakness of existing human rights protection mechanisms.
2018) 631 final) and the amended proposal for a Regulation on a
Meijers Committee, CM1817 Comments on the draft for a new Regulation on a European Border and Coast Guard, (COM (2018) 631 final) and the amended proposal for a Regulation on a European Union Asylum Agency (COM (2018) 633 final), 27 November 2018, 4 and European Council on Refugees and Exiles, Comments on the Commission Proposal for a Regulation on the European Border and Coast Guard (COM (2018) 631 Final), November 2018, 9.