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Submission to the EU Ombudsman inquiry CASE OI/3/2023/MHZ
concerning the EBCGA
Laura Salzano, Ph.D. Candidate of the University of Barcelona
Bullet points in support of ‘de:Border Migration Justice Collective’, ‘Legal Centre Lesvos’
and ‘I Have Rights’
On July 2023, the EU Ombudsman launched an own-initiative inquiry1into the
role of the European Border Coast Guard Agency (EBCGA or Frontex) in Search
and Rescue (SAR) operations. The decision of the EU Ombudsman followed the
tragic shipwreck happened off Pylos, in Greece, last June 14th 2023.
The events
The incident occurred on June 13th when a trawler, carrying more than 700
people2, departed from Libya and was spotted by a Frontex plane at 0947 am3.
The trawler was located in the Greek SAR zone, still in international waters. In
response, Frontex notified the Greek authorities about the vessel's presence,
location, speed and overall conditions. Additionally, the agency shared
photographic evidence highlighting the overcrowded nature of the trawler.
The Greek authorities attributed their delay in responding to the situation to the
migrants board who, allegedly, refused assistance4. This reconstruction of the
events conflicts with the version reported by the communication exchange
published by Alarmphone5, a hotline for people in distress at sea, who then
informed Frontex and the Greek authorities.
5See the exchange at: https://alarmphone.org/en/2023/06/14/europes-shield/
4Continuation of information regarding a broad operation of search and rescue of foreigners in
international waters in the maritime area of 47 n.m. southwest of Pylos, Official Statement of the
Hellenic Coast Guard. 14/06/2023. Accessible at:
https://www.hcg.gr/el/drasthriothtes/synexeia-enhmerwshs-anaforika-me-eyreia-epixeirhsh-
ereynas-kai-diaswshs-allodapwn-se-die8nh-ydata-sth-8alassia-perioxh-47-nm-notiodytika-pyl
oy_/
3Frontex statement following tragic shipwreck off Pylos, Frontex News. Accessible at:
https://www.frontex.europa.eu/media-centre/news/news-release/frontex-statement-followin
g-tragic-shipwreck-off-pylos-dJ5l9p;
2Fallon K. et al. (2023). Greek shipwreck: hi-tech investigation suggests coastguard responsible
for sinking. The Guardian.
1Case OI/3/2023/MHZ.
Regardless of the conflicting accounts, when the Hellenic Coast Guard
eventually reached the location of the vessel, their attempt to tow it is believed
to have led to a tragic shipwreck, causing the deaths of hundreds of people on
board.
The Legal Framework
(i) The EBCGA Regulation
The EBCGA is established to ensure European integrated border management
(EIBM) at the external borders with a view to managing those borders efficiently
in full compliance with fundamental rights, under Article 1 of its founding
Regulation 1896/2019.
Under Article 3(1), The EIBM is based on a four-tier access control model
encompassing a multitude of components. These include, inter alia, search and
rescue operations for persons in distress at sea launched and carried out in
accordance with Regulation (EU) No 656/2014 and with international law, taking
place in situations which may arise during border surveillance operations at sea6.
The Agency’s SAR duties are further strengthened in its founding Regulation
which, among other responsibilities the EBCGA is tasked with, mentions
assisting to the Member States through joint operations, taking into account
that some situations may involve humanitarian emergencies and rescue at sea in
accordance with Union and international law (Article 10 (1)(g), Regulation
1896/2019).
Article 80 (1), Regulation 1896/2019
Protection of fundamental rights and a fundamental rights strategy
1. The European Border and Coast Guard shall guarantee the protection of
fundamental rights in the performance of its tasks under this Regulation in
accordance with relevant Union law, in particular the Charter, and relevant
international law, including the 1951 Convention relating to the Status of
Refugees, the 1967 Protocol thereto, the Convention on the Rights of the Child
6Article 3(1)(b), Regulation 1896/2019.
and obligations related to access to international protection, in particular the
principle of non-refoulement (emphasis added).
(ii) The Sea Border Regulation
Regulation 656/20147constitutes the legal framework of Frontex maritime Joint
Operations. Article 1 limits the objective scope of the Regulation to ‘border
surveillance operations carried out by Member States at their external sea
borders in the context of operational cooperation coordinated by the European
Agency for the Management of Operational Cooperation at the External Borders
of the Member States of the European Union’.
The nomenclature evolution of the European Agency for the Management of
Operational Cooperation at the External Borders of the Member States of the
European Union is a pivotal factor in understanding the currently in force
regulatory landscape. Originating in 2004 under the name of the European
Agency for the Management of Operational Cooperation at the External Borders
of the Member States of the European Union, established by Regulation
2007/20048, it is the first version of the current EBCGA. It subsequently
assumed the appellative ‘Frontex’, and later transformed into the EBCGA in 2016.
This historical developments hold substantial weight, particularly concerning
the Sea Border Regulation, which, upon enactment, referenced the agency in its
initial 2011 revision9. At that time, Frontex functioned as a support entity for
Member States, evolving into a fully-fledged agency with enhanced capabilities
9Regulation (EU) No 1168/2011 of the European Parliament and of the Council of 25 October 2011
amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the
Management of Operational Cooperation at the External Borders of the Member States of the
European Union, OJ L 304, 22.11.2011, p. 1–17.
8Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for
the Management of Operational Cooperation at the External Borders of the Member States of
the European Union, OJ L 349, 25.11.2004, p. 1–11.
7Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014
establishing rules for the surveillance of the external sea borders in the context of operational
cooperation coordinated by the European Agency for the Management of Operational
Cooperation at the External Borders of the Member States of the European Union, OJ L 189,
27.6.2014, p. 93–107.
under Regulation 1624/201610. The evolution included amendments in 200711,
introducing the creation of Rapid Border Intervention Teams, and in 201112,
endowing the agency with the competence to process personal data. The
current regulatory framework grants the EBCGA expanded authority, including
the deployment of its standing corps and the management of a substantial
budget.
Despite the absence of Frontex explicitly listed among the 'participating units' in
a Joint Operation (JO) under the Sea Border Regulation, this omission does not
warrant the exclusion of the Agency from the regulation's subjective scope.
The Regulation remains in force and applicable, with its objective scope
undisputed. Therefore, it logically follows that the subjective scope should,
mutatis mutandis, encompass the EBCGA in its present form operating under
the 2019 revision. Consequently, the fundamental rights obligations established
for the Member States should also cover the EBCGA.
Article 3 Regulation 656/2014
Safety at sea
‘Measures taken for the purpose of a sea operation shall be conducted in a way
that, in all instances,ensures the safety of the persons intercepted or rescued,
the safety of the participating units or that of third parties’ (emphasis added).
This provision is undoubtedly applicable to Frontex. Moreover, it makes no
explicit references to the sole ‘participating units’, but rather generally refers to
all measures taken in the context of a sea operation.
12 Regulation (EU) No 1168/2011 of the European Parliament and of the Council of 25 October 2011
amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the
Management of Operational Cooperation at the External Borders of the Member States of the
European Union, OJ L 304, 22.11.2011, p. 1–17.
11 Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007
establishing a mechanism for the creation of Rapid Border Intervention Teams and amending
Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and
powers of guest officers, OJ L 199, 31.7.2007, p. 30–39.
10 Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016
on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the
European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the
European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council
Decision 2005/267/EC, OJ L 251, 16.9.2016, p. 1–76.
International law
Principle of good faith
The principle of good faith holds the status of a fundamental aspect of
international law.
Article 26 of the Vienna Convention on the Law of Treaties13 (VCLT), enshrines
the principle of pacta sunt servanda, which requires states to implement treaties
in good faith. This means that parties to a treaty must fulfil their obligations and
commitments in accordance with the agreed terms14.
Article 26 Vienna Convention on the Law of the Treaties
Pacta sunt servanda
Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.
The principle finds recognition in Article 216 (2) TFEU, which states:
Agreements concluded by the Union are binding upon the institutions of the Union
and on its Member States.
UNCLOS
The United Convention on the Law of the Sea (UNCLOS), also called the
Constitution of the Ocean, is the major international treaty setting up the
regime of law at sea.
14 See more at: Moreno-Lax, V. (2019). The axiological emancipation of a (non-) principle:
autonomy, international law and the EU legal order. In The Interface Between EU and
International Law: Contemporary Reflections. Bloomsbury Publishing.
13 Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155,
p. 331.
The European Union ratified the UNCLOS with Council Decision 98/392/EC15,
thus accepting its provisions as an integral part of EU law from the moment of
entry into force16. As a result, the European Union, including its legislative,
executive, and judicial institutions, as well as EU Agencies, becomes legally
bound by the obligations set forth in these treaties17.
This adherence to international treaties finds its legal roots in the principle of
pacta sunt servanda18, above-mentioned. Under this provision, any agreement
concluded by the EU is legally binding on both the Union and its Member States.
This obligation extends to EU agencies, including the EBCGA, which are equally
obligated to uphold the provisions of international treaties within their
respective spheres of competence. Consequently, when a treaty imposes specific
actions for the attainment of its objectives, the EU and its Agencies are obliged
to implement the necessary measures accordingly.19
Article 98 (1) UNCLOS
Duty to render assistance
Every State shall require the master of a ship flying its flag, in so far as he can do so
without serious danger to the ship, the crew or the passengers:
(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress, if informed of
their need of assistance, in so far as such action may reasonably be expected of him;
(c) after a collision, to render assistance to the other ship, its crew and its passengers
and, where possible, to inform the other ship of the name of his own ship, its port of
registry and the nearest port at which it will call.
[...]
19 C-239/03, Commission v France, ECLI:EU:C2004598.
18 Article 26, Vienna Convention on the Law of the Treaties, 23 May 1969. Entered into force on 27
January 1980. United Nations, Treaty Series, vol. 1155, p. 331
17 Opinion of AG Jääskinen. para. 85.
16 Case 181-73, R. & V. Haegeman v Belgian State, ECLI:EU:C197441, para. 5; Opinion 1/91,
ECLI:EU:C1991490, para. 3; Joined Cases C‑401/12 P to C‑403/12 P, Council of the European
Union, European Parliament, European Commission v Vereniging Milieudefensie and Stichting
Stop Luchtverontreiniging Utrecht, Opinion of AG Jääskinen, ECLI:EU:C2014310 paras. 44, 85;
C-280/93, Opinion AG Gulmann, EU:C1994235, para. 137.
15 98/392/EC: Council Decision of 23 March 1998 concerning the conclusion by the European
Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and
the Agreement of 28 July 1994 relating to the implementation of Part XI thereof, OJ L 179,
23.6.1998, p. 1–2.
Conclusions
In conclusion, the EBCGA cannot be considered as exempted from Search and
Rescue (SAR) duties, as it is tasked with implementing the European Integrated
Border Management (EIBM), which encompasses SAR operations. This
responsibility is inherent in Frontex's role at sea, regardless of the outdated
wording in the Sea Border Regulation.
Although the Sea Border Regulation is antiquated, its application should follow
an evolutionary interpretation that takes into account the reality of the EBCGA
after the 2019 revision. The evolving identity of the EBCGA should be considered
as reinforcing the Agency’s fundamental rights duties in its maritime operations.
Moreover, Frontex’s fundamental rights duties arise under its own Regulation in
Article 80 (1).
Furthermore, the principle of good faith implementation permeates the
interpretation of the EU acquis and serves as a general principle of EU law and
crucial guide in this context. As an EU Agency, Frontex is obligated by SAR duties
under the UNCLOS. The principle of good faith unequivocally rejects any
interpretation that would exempt Frontex from these obligations.
Navigating the intricate interplay between regulatory frameworks and evolving
agency structures, it is essential to acknowledge the enduring relevance of the
Sea Border Regulation and Frontex's clear role in SAR activities. A conscientious
and faithful implementation of EU legislation demands that Frontex, now
operating as the EBCGA, continues to fulfil its SAR obligations without
exemption, upholding the core principles of maritime safety and human rights
within the European Union's border management framework.