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FRONTEX’s Compatibility With Fundamental Rights

LPM037 EU Law Professor Peter Rodford

Student Number: 159234994

Word Count: 5,059

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Introduction “The Mandate of FRONTEX Is Incompatible with Human Rights”1 This is the title of a report produced by the campaign FRONTEXIT in 2014, an international campaign that aims at defending migrants’ human rights at the external borders of the European Union. While it is clearly stated that FRONTEX “promotes, coordinates and develops European border management in line with the EU fundamental rights charter”2, the Agency has now been subjected for years to the criticisms and pressure of NGOs, scholars and the media for not respecting – and sometimes violating – the fundamental rights enshrined in not only international law but also in European founding treaties. The European Agency for the Management of Operational Cooperation of the External Borders of the Member States of the European Union (hereafter ‘FRONTEX’ or ‘the Agency’) was established by Council Regulation (EC) 2007/2004 with the goal to improve “the integrated management of the external borders of the Member States of the European Union”3. Originally, FRONTEX’s action was limited to six areas4 and to a role of assistance and coordination vis-à-vis Member States. However, this regulation has been amended several times, the most important one being the Regulation (EU) No 1168/2011 of the European Parliament and of the Council, and FRONTEX has seen the extension of its mandate and prerogatives. As stated earlier, FRONTEX has been long criticised for its actions with regards to the respect of fundamental rights. This has been reinforced by the expansion of its mandate despite the fact that, since the entry into force of the Lisbon Treaty in 2009, the Charter of Fundamental Rights of the European Union (hereafter ‘the Charter of Fundamental Rights’) has become legally binding and the fact that, following this development, the Regulation (EU) No 1168/2011 and the following regulations of 2013 and 2014 have given a greater importance to the respect of fundamental rights in all activities of the Agency. The issue of FRONTEX compliance with fundamental rights, thus, appears to still be of importance. But beyond simply enumerating the instances in which the Agency may or may not have violated human rights, it is interesting to study how FRONTEX’s relations with this concept have evolved and if the recent amendments of the Agency’s mandate have lessened the concerns over its compatibility with fundamental rights. Therefore, this essay will revolve around one question: has the status of fundamental rights been tangibly strengthened within FRONTEX legal framework since the adoption of the new FRONTEX Regulation in 2011?

1Titleof theFRONTEXITcampaignBilanofMay2014.See:http://www.frontexit.org/en/docs/42-bilan-frontexit-2014en/file ; Lastaccessed:5January2016.2See:http://frontex.europa.eu/about-frontex/mission-and-tasks/;Lastaccessed:5January2016.3Council 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 (hereafter Regulation (EC) No 2007/2004), Article 1, paragraph 1, OJ L 349, 25.11.2004 and OJ L 153M , 7.6.2006, p. 3.4Regulation (EC) No 2007/2004, Article 2, paragraph 1.

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For the purpose of this essay, we will analyse how the new regulations adopted since 2011 have changed FRONTEX position vis-à-vis fundamental rights in general compared to the Agency’s original mandate as laid out in Regulation (EC) No 2007/2004 and what instruments have been introduced to ensure its compliance with this principle. This essay does not intend to be a comprehensive analysis of all aspects of FRONTEX’s mandate and actions with regards to fundamental rights. Nor does it aim at enumerating all the instances in which the Agency may have infringed them as our primary focus is on the compatibility of FRONTEX’s legal framework and mandate with fundamental rights and not on its tangible examples of compliance with these principles. The first section of this essay will focus on the status given to fundamental rights within FRONTEX’s legal framework and mandate prior to 2011. We will then analyse how – or if – fundamental rights have been better integrated and protected by FRONTEX since the adoption of the ‘new Regulation’ in 2011. Finally, we will consider a number of issues that may raise doubts over the compatibility of FRONTEX’s actions with fundamental rights. FRONTEX Legal Framework and the Place of Fundamental Rights Prior to 2011 This section focuses on the legal basis of FRONTEX as laid out by its founding Regulation (EC) No 2007/2004 in relation to fundamental rights and how this has been transposed in the Agency’s mandate. A Lack of Reference to Fundamental Rights FRONTEX has long been criticized for not considering the respect of fundamental rights as a priority that should guide all its operations. For its detractors, this directly stems from the founding regulation of the Agency, in which it is clearly stated that the objective is to improve the integrated management of the external borders of the European Union with no mention of respect of fundamental rights5. Indeed, the lack of reference to fundamental rights has been a source of concern for NGOs since the creation of the Agency in 2005. While the respect for human rights is clearly stated as a foundation of the European Union in the Treaty on the European Union (TEU)6 and in the Schengen Borders Code7, the only statement made about fundamental rights in Regulation (EC) 2007/2004 is in recital 228. However, not once did this regulation mentions the specific fundamental rights by which FRONTEX must abide or the procedures through which the Agency ensured the respect of these rights in its everyday operations.

5 Regulation (EC) No 2007/2004, Article 1, paragraph 1. 6 Consolidated version of the Treaty on European Union, Article 2, OJ C 326, 26.10.2012, p. 13–390. 7 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), Recital 20 & Articles 3 and 6, OJ L 105, 13.4.2006, p. 1–32. 8 Regulation (EC) No 2007/2004, Recital 22.

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This lack of mention of the concept of fundamental rights as a core principle supposed to guide the action of the Agency has then been transposed into its own governance documents. Prior to 2010-2011, little to no allusion to fundamental rights was, indeed, made in both the Work Programmes and Annual General Reports of FRONTEX9. It was not until 2010 that a specific section on fundamental rights was added to FRONTEX annual activity reports. This absence of references to fundamental rights in both FRONTEX’s founding and governance documents have led many within NGOs, civil society and the media to question the inherent nature of the Agency. If no concrete allusion to fundamental rights is made in FRONTEX’s legal basis, how can the Agency be effectively compatible with human rights? Moreover, this raised doubts over the ability – or even the desire – of both FRONTEX and the Member States to comply with the rights of migrants and gave the impression that the Agency could act with apparent impunity10. Weak Monitoring and Absence of Reporting Mechanisms In addition to the lack of mentions of fundamental rights in FRONTEX legal and governance documents, the Agency has always been criticized several times for the weaknesses of its monitoring system and the inexistence of reporting mechanisms, leading many to question FRONTEX repeated confirmation of its compliance with fundamental rights. The establishment of a monitoring system of FRONTEX actions in general, and their compatibility with fundamental rights in particular, was, indeed, not mentioned in Regulation (EC) No 2007/2004. However, this could have been achieved through the Agency’s capacity to sign working agreements with international organisations11. The regulation did not specify which types of organisations, besides EUROPOL, FRONTEX could cooperate with, which was a positive point as it gave the Agency the possibility to partner with a wide range of organisation but at the same time did not give any obligation to enter working agreements with organisations specialised in fundamental rights. Since its founding in 2005, FRONTEX has partnered with more than 20 EU agencies and international organisations12. However, it has only signed working agreements with two relevant organisations with regards to fundamental rights: the UN Refugee Agency and the EU Fundamental Rights Agency. A liaison officer was assigned by the UNHCR to FRONTEX in 2007 and a working agreement was signed on 17 June 2008 “to help ensure that border management complies with the international obligations of EU member states”13. This should be accomplished thanks to “regular consultations, exchanges of information, expertise and experience, inputs into

9 No references to fundamental rights were made in FRONTEX General Reports between 2005 and 2007 3 references to fundamental rights in FRONTEX 2008 General Report 5 references to fundamental rights in FRONTEX 2009 General Report 16 references to fundamental rights in FRONTEX 2010 General Report10 S Keller et al., Frontex agency: which guarantees for human rights?, in , 1st ed., Brussels, Greens/EFA in European Parliament, 2010, pp. p. 11; p. 14-18, <http://www.migreurop.org/IMG/pdf/Frontex-PE-Mig-ENG.pdf> [accessed 3 January 2016]. 11 Regulation (EC) No 2007/2004, Recital 12 & Article 13. 12 Frontex.europa.eu, "Frontex | International Organisations", in , <http://frontex.europa.eu/partners/international-organisations/> [accessed 4 January 2016]. 13 U Refugees, "Q&A: Working for refugees on Europe's outer borders", in UNHCR, 2010, <http://www.unhcr.org/4bf29c8b6.html> [accessed 4 January 2016].

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training (particularly on international human rights and refugee law), and other activities”14. However, no formal work agreement between FRONTEX and the UNHCR appears to be available to the public, which makes us wonder about the actual level of involvement of the UNHCR liaison officer in FRONTEX’s activities and the actual impact of his input. The probability of this working agreement forming the foundation of an efficient monitoring system is also impeded by the fact that the UNHCR liaison officer has a limited access to information related to FRONTEX operations, thus making it difficult to assess the impact of his interventions15. The other working agreement that could have led to the implementation of an external monitoring system was the one signed with the EU Fundamental Rights Agency on 26 May 2010. Much more comprehensive than the agreement signed with the UNHCR, the FRONTEX-FRA partnership was to establish a “cooperation framework […] with the overall objective of strengthening the respect of fundamental rights in the field of border management and in particular in FRONTEX activities”, to “foster a common understanding of fundamental rights in the context of border management across the European Union coordinate their actions, where appropriate”16. The FRA collaborates with FRONTEX in a number of areas such as training, risk analysis, joint operations, return operations, etc. Mutual assistance and evaluation of a number of actions of FRONTEX by the FRA are also specified in this agreement. Still, none of the General Reports produced by FRONTEX between 2008 and 2011 provide information on the effective participation of both agencies to FRONTEX’s activities. The fact that the amount of information available is decided by FRONTEX also contradicts the ability of both agencies to monitor FRONTEX’s operations. Moreover, the fact that only these two organisations have entered working agreements with the Agency further weakens the idea of the existence of a monitor system prior to 2011. Finally, it does not appear in Regulation (EC) No 2007/2004, nor in the Agency’s Work Programmes or General Reports that any kind of incident reporting system related to infringements of fundamental rights was in place prior to 2011. The New FRONTEX Regulation and the Guarantee of Fundamental Rights This section aims at presenting the developments brought by the regulations that have been adopted since 2011 with respect to fundamental rights and as well as the mechanisms created afterwards. It also questions whether or not these tools ensure the full compatibility of the Agency’s actions with fundamental rights. The New Basis of FRONTEX Legal Framework

14 U Refugees, "UNHCR agreement with FRONTEX", in UNHCR, 2008, <http://www.unhcr.org/cgi-bin/texis/vtx/search?page=search&docid=4857939e2&query=FRONTEX> [accessed 4 January 2016]. 15 UNHCR, 2010, op. cit.16 Cooperation Arrangement between the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union and the European Union Agency for Fundamental Rights, Article 1 & 2.1.

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FRONTEX’s legal framework started to evolve in 2011 with the adoption of Regulation (EU) No 1168/2011. This regulation was adopted as a result of the pressure exerted by NGOs, civil societies and members of the European Parliament, who were concerned about the human rights implications of FRONTEX’s operations17 and because of the legally-binding status given to the Charter of Fundamental Rights through the entry into force of the Lisbon Treaty in 2009. Subsequently, two new regulations were agreed upon in 2013 and 2014 to further develop and clarify the Agency’s mandate. In 2013, a new framework called EUROSUR was established by Regulation (EU) No 1052/2013 so as to foster a “common framework for the exchange of information and for the cooperation between Member States and the Agency”18. The main purpose of this new instrument is to improve the situational awareness of Member States and to combat irregular immigration19. Finally, the so-called FRONTEX Sea Borders Regulation was adopted on 15 May 2014 to replace Council Decision 2010/252/EU, which was annulled by the Court of Justice in September 201220 and, which established the rules applicable for the surveillance of external sea borders in the context of FRONTEX-coordinated operations. The amendment of FRONTEX’s mandate through Regulation (EU) No 1168/2011 seems to indicate a shift in the Agency’s position vis-à-vis fundamental rights. Mentioned several times in the recitals of the regulation, respect of fundamental rights appears to have become a core principle of not only the Agency but also of the European migration policy21. Moreover, recital 29 of the regulation now gives a detailed list of rights FRONTEX must follow in accordance with the Treaty on the Functioning of the European Union (TFEU) and the Charter of Fundamental Rights22. Additionally, contrary to the founding regulation of the Agency, Regulation (EU) No 1168/2011 refers explicitly to the Charter of Fundamental Rights, to the Convention Relating to the Status of Refugees, and to “obligations related to international protection” in Article 1(2)23, thus supporting the idea that respect of fundamental rights has become a common standard by which all its operations should abide. Moreover, the two regulations subsequently adopted in 2013 and 2014, Regulation (EU) No 1052/2013 and (EU) No 656/2014, further enshrined the respect of fundamental rights as a fundamental element of FRONTEX’s actions.

17 M Cederbratt, "Frontex: Human Rights Responsibilities", in International Journal of Refugee Law Vol. 25 No. 2 pp. 407-434, , 2013, p. p. 1. 18 Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur) (hereafter Regulation (EU) No 1052/2013), Article 1, OJ L 295, 6.11.2013, p. 11–26. 19 Frontex.europa.eu, "Frontex | Eurosur", in , <http://frontex.europa.eu/intelligence/eurosur/> [accessed 20 January 2016]. 20 CJEU 5 September 2012, Case C-355/10 (Parliament v Council).21 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 (hereafter Regulation (EU) No 1168/2011, Recitals 1 & 9, OJ L 304, 22.11.2011, p. 1–17. 22 Regulation (EU) No 1168/2011, Recital 29: “This Regulation respects the fundamental rights and observes the principles recognised in particular by the TFEU and the Charter of Fundamental Rights, notably the right to human dignity, the prohibition of torture and of inhuman or degrading treatment or punishment, the right to liberty and security, the right to protection of personal data, the right to asylum, the principle of non-refoulement, the principle of non-discrimination, the rights of the child, and the right to an effective remedy. This Regulation should be applied by the Member States in accordance with those rights and principles. Any use of force should be in accordance with the national law of the host Member State, including the principles of necessity and proportionality.” 23 Regulation (EU) No 1168/2011, Article 1(2): “The Agency shall fulfil its tasks in full compliance with the relevant Union law, including the Charter of Fundamental Rights of the European Union (“the Charter of Fundamental Rights”); the relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Geneva Convention”); obligations related to access to international protection”.

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Whereas Regulation (EU) No 1052/2013 merely repeated the statements and provisions included in Regulation (EU) No 1168/2011 with regards to fundamental rights24, FRONTEX Sea Borders Regulation differs from previous regulations in at least two ways. Firstly, it not only reaffirms the relevant Union law the Agency observe25, it also gives, for the first time, a list of international conventions and other instruments Member States should comply with in the course of border surveillance operations26. Secondly, in conjunction with recitals 10 and 12, it dedicates a specific article to the protection of fundamental rights and the principle of non-refoulement27. Concerning the principle of non-refoulement, while it has been previously mentioned in Regulation (EU) No 1168/201128 and in Regulation (EU) No 1052/201329, Regulation (EU) 656/2014 gives a throughout definition of the term and details the elements that should be considered prior to any form of disembarkation in a third country so as to not contravene this principle. These elements seem to confirm the idea of a strengthening of the value of fundamental rights within FRONTEX’s legal framework, which has been further asserted through the implementation of concrete instruments to ensure the respect of fundamental rights. However, concerns still remain regarding the application of these regulations and their implications for the respect of fundamental rights. In this case, an interesting example would be the ability for FRONTEX to cooperate and enter working arrangements with third countries. This provision already existed in the FRONTEX initial regulation30 and was extended in the amending regulation of 201131. As of October 2015, FRONTEX had signed working arrangements with the authorities of 17 countries, among which Russia, Belarus, Nigeria, and Azerbaijan. The Agency has also adopted negotiating mandates with Libya, Morocco, Senegal, Mauritania, Egypt, Brazil and Tunisia32. The first issue that arises when it comes to FRONTEX’ competence in concluding agreements with Third Countries is that nothing in both the original and the amended regulations of the Agency ensures an external and democratic oversight of the negotiations and signature of such agreements, which means that FRONTEX is able to establish working agreements with non-EU countries without the approval of any EU institution33. Moreover, while the respect of fundamental rights in the context of FRONTEX’ cooperation with Third countries is repeated several times throughout the Regulation34 as well as in the Fundamental Rights Strategy35 and its subsequent Action Plan36, no mentions of the concrete measures 24 Regulation (EU) No 1052/2013, Recitals 11 & 12, Article 2. 25 Regulation (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 (hereafter Regulation (Eu) No 656/2014), Recitals 9, 10 & 19, OJ L 189, 27.6.2014, p. 93–107. 26 Regulation (EU) No 656/2014, Recital 8. 27 Regulation (EU) No 656/2014, Article 4. 28 Regulation (EU) No 1168/2011, Recitals 9 & 19, Articles 1(2) & 2(1a). 29 Regulation (EU) No 1052/2013, Recital 15, Articles 2, 20 & 22.30Regulation (EU) No 2007/2004, Recital 12, Article 14.31 Regulation (EU) No 1168/2011, Recital 22, Article 14. 32 P Garcia Andrade, I Martin & S Mananashvili, EU Cooperation With Third Countries in the Field of Migration, in , Brussels, Policy Department Citizens' Rights and Constitutional Affairs, European Parliament, 2015, p. p. 44, <http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536469/IPOL_STU(2015)536469_EN.pdf> [accessed 21 January 2016]. 33 Statewatch & Migreurop, Reply to the Ombudsman’s request for submission – Frontex’s fundamental rights strategy, in , , 2012, p. p. 12, <http://www.statewatch.org/analyses/no-193-eu-ombs-inquiry-frontex-evidence.pdf> [accessed 19 December 2015]. 34 Regulation (EU) No 1168/2011, Recital 22, Articles 14(1) & 14(4). 35 Frontex Fundamental Rights Strategy, Point 28. 36 FRONTEX, Ombudsman own-initiative inquiry OI/5/2012/BEH-MHZ, in , Warsaw, 2012, p. p. 33, <http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/11758/html.bookmark> [accessed 16 January 2016].

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through which the respect of minimum human rights standards are made37. Additionally, these texts give no indication of how compliance with fundamental rights will be monitored and assessed during the course of these agreements38. Finally, given the fact that FRONTEX can cooperate with Third Countries in areas such as information exchange, joint operations and return operations39 and that some of the countries with which the Agency has signed or is in the process of signing an agreement are known for their human rights violation, FRONTEX’ ability to cooperate with third countries raises doubts over the compatibility of FRONTEX’ action with migrants’ fundamental rights and over the practical implementation of FRONTEX legal framework. An Operational Framework Ensuring the Respect and Protection of Fundamental Rights One of the most important element added to Regulation (EU) No 1168/2011 regarding the respect of fundamental rights may be Article 2a and Article 26a for two main reasons. Article 2a refers to a Code of Conduct, which “shall lay down procedures intended to guarantee the principles of the rule of law and respect for fundamental rights”40 and which all person participating in FRONTEX activities should follow. This Code of Conduct clearly describe fundamental rights as one of the values that should shape all participants’ conduct in its Article 141 and dedicates a whole article to the respect of fundamental rights and compliance with the international and European instruments that protect them42. Article 26a first anchored the Fundamental Rights Strategy and its Action Plan – adopted prior to the Regulation – into FRONTEX’s legal framework43. The Fundamental Rights Strategy – adopted on 31 March 2011 – confirm once again the essential place occupied by fundamental rights within the Agency and states as its objective the establishment of a “fundamental rights culture within the EU border-guard community”44. It then proceeds to enumerate all legal text and instruments FRONTEX adheres to regarding human rights45 before detailing how respect of fundamental rights will be ensured in all areas where the Agency is competent. To guarantee the implementation of the Fundamental Rights Strategy, a Fundamental Rights Action Plan was adopted on 29 September 201146. This Action Plan outlines the activities that were revised in order to better integrate the goal of respect of fundamental rights and lists through 21 specific actions47. Article 26(a) also created two instruments to monitor the Agency’s actions with regards to fundamental rights: a Consultative Forum and a Fundamental Rights Officer48. 37 Statewatch & Migreurop, op. cit., p. 13 38 Ibid. 39 P Garcia Andrade, I Martin & S Mananashvili, op. cit., p. 44 40 Regulation (EU) No 1168/2011, Article 2a. 41 Frontex Code of Conduct for all Persons Participating in Frontex Activities, Article 1(1): The present Code of Conduct aims to promote professional values based on the principles of the rule of law and the respect of fundamental rights and to establish the ethical behaviour standards that guide all persons participating in Frontex activities. 42 Frontex Code of Conduct, Article 4. 43 Regulation (EU) No 1168/2011, Article 26a(1).44 Frontex Fundamental Rights Strategy, p. 1. 45 Frontex Fundamental Rights Strategy, Points 4-12, pp. 2-3. 46 FRONTEX, Ombudsman own-initiative inquiry OI/5/2012/BEH-MHZ, Warsaw, 2012, p. 1 of Annex 1, 47 FRONTEX, Ombudsman own-initiative inquiry OI/5/2012/BEH-MHZ, Warsaw, 2012, p. 2-10 of Annex 3, 48 Regulation (EU) No 1168/2011, Article 26a (2)(3).

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The first instrument introduced by Regulation (EU) No 1168/2011 concerning fundamental rights was the Consultative Forum, which is composed of representatives from two European Union agencies, four UN agencies and intergovernmental organisations and nine civil society organisations49. Officially established in October 2012, the main role of the Consultative Forum is to “assist the Executive Director and the Management Board in fundamental rights matters” and it “shall be consulted on the further development and implementation of the Fundamental Rights Strategy, Code of Conduct and common core curricula”50. This would be achieved through “strategic opinions, recommendations and a pool of information on how FRONTEX can structurally improve the respect and promotion of fundamental rights in its various activities”51. Additionally, Regulation (EU) No 1168/2011 called for the designation of a Fundamental Rights Officer, whose role is to monitor all FRONTEX-coordinated operations and activities and to regularly report to the Consultative Forum and the Management Board52. The Fundamental Rights Officer has free access to documents and officials and had the ability to observe operations in situ and to participate in internal meeting, in addition to receiving all reports on incidents and complaints53. Indeed, an ‘incident reporting scheme’ in cases of fundamental rights infringements54, mentioned in both the Fundamental Rights Strategy55 and FRONTEX’s Code of Conduct56, was finally established by the 2011 amending regulation of FRONTEX. A specific Standard Operating Procedure was drafted to clarify the actions that would be implemented in order to ensure the respect of fundamental rights during joint operations and pilot projects57: first, information is collected directly in the field and then evaluated by the legal service of FRONTEX and the Fundamental Rights Officer. If “serious and persistent violations” are proved to be taking place, both services send a recommendation to FRONTEX’s Executive Director explaining the reasons why the operation should be suspended or stopped58. Finally, it falls to the Executive Director to decide whether or not the operation in question should be suspended or terminated59. However, concerns still remain over the instruments created by FRONTEX to guarantee fundamental rights. The first criticism direct against FRONTEX’s fundamental rights operational framework has been the delay in the implementation of the diverse instruments presented above. While the Fundamental Rights Strategy and its Action Plan predated in fact Regulation No 1168/2011, it is still difficult, as an external observer, to determine when or if the various measures devised to ensure the respect and protection of fundamental rights were implemented. 49 Consultative Forum on Fundamental Rights, Annual Report, in , Warsaw, FRONTEX, 2013, pp. 5-6, <http://frontex.europa.eu/assets/Partners/Consultative_Forum_files/Frontex_Consultative_Forum_annual_report_2013.pdf> [accessed 12 January 2016]. 50 Regulation (EU) No 1168/2011, Article 26a(2) 51 Management Board Decision No 18/2012 on the working methods of the Frontex Consultative Forum and modalities of the transmission of information to the Frontex Consultative Forum, 26 September 2012 (hereafter: the Working Methods), Introduction. Available at: http://frontex.europa.eu/assets/Partners/ Consultative_Forum_ les/Working_Methods.pdf 52 Regulation (EU) No 1168/2011, Article 26a(3). 53 Consultative Forum on Fundamental Rights, 2013, op. cit., p. 14. 54 Regulation (EU) No 1168/2011, Recital 16. 55 Frontex Fundamental Rights Strategy, Point 17 56 Frontex Code of Conduct, Article 22. 57 FRONTEXIT, The Mandate of FRONTEX Is Incompatible With Human Rights, 2014, p. 18, <http://www.frontexit.org/en/docs/42-bilan-frontexit-2014en/file> [accessed 10 December 2015].58 Ibid. 59 Regulation (EU) No 1168/2011, Article 3(1a).

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Moreover, both the Fundamental Rights Officer and the Consultative Forum were established more than one year after the entry into force of the amended Regulation60. With regards to the Code of Conduct, the main criticism has been that the Fundamental Rights Strategy still describes it as a set of “generally accepted standards (i.e. soft law)”61, even though FRONTEX has explicitly referred to it as legally binding62. This uncertainty may be problematic, especially if someone wants to report human rights violation on the basis of a breach of said Code63. Concerning the Fundamental Rights Strategy and its Action Plan in themselves, most of the criticisms refer to a lack of clarification and safeguards regarding data protection, which is concerning considering the role played by FRONTEX in EUROSUR64. The European Ombudsman also concluded that the Action Plan is not detailed enough and that it does not really explain how the integration of fundament rights in FRONTEX’ activities will be implemented in practice. Furthermore, he regrets that all goals presented in the Strategy do not have a corresponding measure in the Action plan65. Regarding the Consultative Forum, its effective influence over FRONTEX’s Executive Director’s and Management Board’s decisions seems questionable for several reasons. First of all, its composition, working methods and the process through which information are transmitted are decided by the Management Board on a proposal of the Executive Director66, which lead us to question its independence vis-à-vis FRONTEX’s executive bodies. Furthermore, the Consultative Forum can only make recommendations, which the Agency is not forced to follow. Finally, questions remain over the Consultative Forum’s access to information concerning the Agency’s operations67. According to article 26a of FRONTEX regulation, “the Consultative Forum shall have access to all information concerning respect for fundamental rights, in relation to all the activities of the Agency”68 and the Consultative Forum 2013 report explains that its members have “a reserved space […] on FRONTEX’ FOSS database in which relevant FRONTEX information is placed on an on-going basis”69. However, it remains unclear what type of information the Agency considers as relevant with reference to fundamental rights and if some information should automatically be sent to the Forum. Pertaining to the Fundamental Rights Officer, the main issue raising doubts over the efficacy of his/her action is the fact that it is “considerably understaffed. According to the Consultative Forum, the FRO only has one assistant – who is also the secretary of the Consultative Forum – and one trainee to fulfil all of his/her tasks70. 60 Frontex Fundamental Rights Officer was appointed on 27 September 2012 and the Consultative Forum was established in October 2012. 61 Frontex Fundamental Rights Strategy, Point 31. 62 Frontex Code of Conduct, p. 3. 63 Statewatch & Migreurop, op. cit., p. 3. 64 Statewatch & Migreurop, op. cit., p. 12. 65 Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), Point 58. 66Regulation (EU) No 1168/2011, Article 26a(2). 67 A Spengeman, "Upholding The Legitimacy of Frontex: European Parliamentary Oversight", in European Security Review, , 2013, pp. p. 5-6. 68 Regulation (EU) No 1168/2011, Article 26a(4). 69 Consultative Forum on Fundamental Rights, 2013, op. cit., p. 1170 Consultative Forum on Fundamental Rights, Annual Report, in , Warsaw, FRONTEX, 2014, pp. 4, <http://frontex.europa.eu/assets/Partners/Consultative_Forum_files/Frontex_Consultative_Forum_annual_report_2014.pdf > [accessed 12 January 2016].

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Finally, the incident reporting scheme implemented by FRONTEX has also been criticised on several grounds. First, NGOs and civil societies regret the fact that this mechanism remains internal and without possibility of independent control. Second, the regulation and the Standard Operating Procedure do not define what “serious and persistent violations” means, which implies that determining which fundamental rights violations should be ‘prosecuted’ is left to the Executive Director’s discretion71. Moreover, the Executive Director is the only one competent to decide which operations should be suspended/terminated, which leave a large room for manoeuvre with regards to violation of fundamental rights and further weakens the reporting system. Finally, FRONTEX still refuses to implement an individual complaints mechanism, despite calls from numerous NGOs and international and European bodies – among which the European Ombudsman72 and the Consultative Forum73 – stating that it does not have “executive powers to investigate incidents involving allegations of violations of human rights”74. FRONTEX vs Fundamental Rights: Remaining Challenges This section concentrates on selected issues that may cast doubts over the compatibility of FRONTEX’s actions with fundamental rights. We have decided to focus on the question of the transparency and responsibility of the Agency. Responsibility of FRONTEX The main issue that have caused many among NGOs and civil societies to question FRONTEX’s and Member States’ commitment to the respect of fundamental rights is that of the responsibility in case of violations of said rights. According to Regulation (EU) No 1168/2011, FRONTEX has legal personality75. However, “the responsibility for the control and surveillance of external borders lies with the Member States”76. Moreover, the Code of Conduct explicitly states that “participants in Frontex activities are primarily and individually responsible for their actions in their work”77 and not once does the Fundamental Rights Strategy or the Action Plan78 explains who is responsible in case of infringements of fundamental rights. This situation is confusing and may lead to a legal impossibility to attribute reparations if a damage is caused to an individual. As explained by Jean Matringe: “there is no clear rule for attributing actions liable to cause damage. Consequently, it is difficult to determine which entity should be held accountable for them, which leads to a legally and politically untenable

71 FRONTEXIT, op. cit., p. 18. 72 Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ, op. cit., Point 82 & 83. 73 Consultative Forum on Fundamental Rights, 2014, op. cit., p. 38. 74 Consultative Forum on Fundamental Rights, 2014, op. cit., p. 5. 75 Regulation (EU) No 1168/2011, Article 15. 76 Regulation (EU) No 1168/2011, Article 1(1), paragraph 2. 77 Frontex Code of Conduct, Article 7. 78 On that matter, FRONTEX has only explained, in its answer to the European ombudsman, that four tools exist to prevent possible failures of European Border Guard Teams to fully respect fundamental rights : FRONTEX, Ombudsman own-initiative inquiry OI/5/2012/BEH-MHZ, Warsaw, 2012, p. 6-7 of Annex 1

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vacuum. The system resulting from the previous texts combined with the proposed revision constitutes a legal monster”79. Furthermore, FRONTEX’s main argument to justify its irresponsibility in the case of violation of fundamental rights has always been to say that it does not have executive powers to investigate human rights violations and that it only has a role of coordination. Yet, as explained by Statewatch and Migreurop, these two arguments do not hold for several reasons. First, the “mere role of coordinator” of the Agency is questionable judging by the extended mandate it enjoys today thanks to the regulations that have been voted since 2011. Secondly, even though, FRONTEX do not have executive powers, it is still plays an active role in every operation it coordinates80. These two elements, added to the fact that most monitoring and reporting mechanisms with regards to fundamental rights are internal to the Agency and not yet fully implemented raises serious doubts over the compatibility of FRONTEX legal framework with fundamental rights. Even though, this principle has been constantly reaffirmed in both the texts and the discourse of the Agency since 2011, one can still wonder how a European agency can efficiently ensure the respect of fundamental rights if it is near-impossible to determine who is responsible in the case of a violation of said rights. The Question of Transparency The last issue we decided to study was that of the transparency of the Agency and of its operations. While the question of explicitly transparency is not addressed in the various regulations adopted since 2011, Article 33 of Regulation (EU) No 1168/2011 affirm that an analysis on the compliance of the regulation with the Charter of Fundamental Rights should be conducted81 and the Fundamental Rights Strategy mentions the creation of an annual progress report on the implementation of the strategy that will be made public82. Moreover, the Fundamental Strategy and the Action Plan state that it is one of the prerogative of the Consultative Forum to ensure the transparency of FRONTEX’s activities83. It is true that the creation of a Consultative Forum has increased the transparency of the Agency, especially through the publication of annual reports. However, the Forum’s level of access to information related to fundamental rights remains, as explained previously, unclear. FRONTEX’s Executive Director’s and Management Board’s leeway on that matter may, thus, only reinforce the opacity of the Agency. Furthermore, the annual progress report has not been very detailed in the previous years, less than one page annexed to FRONTEX’s annual General Reports.

79Jean Matringe, at the hearing A new mandate for FRONTEX: Beyond the security obsessions, a human rights perspective? organised by the Greens/EFA group in the European Parliament on 15 September 2010. In: S Keller et al., op. cit., p. 23, note 33 80Statewatch & Migreurop, op. cit., pp. 15-16.81Regulation (EU) No 1168/2011, Article 33(2b): “The evaluation shall include a specific analysis on the way the Charter of Fundamental Rights was complied with in the application of this Regulation”. 82Frontex Fundamental Rights Strategy, Point 37.83Frontex Fundamental Rights Strategy, Point 38: “In order to increase the transparency and credibility of this process, external third parties, in particular those· representing civil society, shall be involved. Their concerns and perspectives must be taken into account for the evaluation and revision of the strategy. Frontex, national border-guard services, external partners and representatives of civil society shall therefore have the possibility to exchange views and suggest means of improvement for the strategy and the Action Plan in a consultative forum, to be convened periodically at Frontex Headquarters”

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Finally, criticisms have been levelled against FRONTEX during the public consultation opened by the European Ombudsman in 201284: for instance, some organizations – such as the Committee on Migration, Refugees and Displaced Persons of the Parliamentary Assembly of the Council of Europe – have underlined the fact that there is a lack of transparency, especially when it comes to the criteria used to determine if an operation has violated fundamental rights and whether or not it should, therefore, be terminated85. Thus, given the few examples presented above, the amendments introduced by the regulations adopted after 2011 have certainly improved the transparency of the Agency. However, some problems persist. Addressing them is essential as no institution can claim to respect and protect fundamental rights if it is not possible to comprehensively verify this assertion. Conclusion Assaidintheintroduction,thisessaydidnotintendtocomprehensivelydescribethebehaviourofFRONTEXwithregardstofundamentalrightsinalldimensionsofitsmandate.Instead,wetriedtoprove,byusingselectedexamplesdirectlyrelatedtotheAgency’slegalframework,whetherornotFRONTEXwascompatiblewithfundamentalrights.Regarding the principles of respect of and compliance to fundamental rights, FRONTEX legalframework has greatlyevolved since its establishment in 2005. From an agency purelyorientedtowardssecurity,FRONTEXhasprogressivelystrengthenedthepositionoffundamentalrightswithinitslegalframeworkandimplementedvariousinstrumentstoensuretheirprotection.The attention given to fundamental rights within the regulations adopted after 2011 hasexponentially increased and an operational framework comprising rules and monitoring andreportingmechanismshasbeensetup.However,inmanyaspects,thetoolscreatedbyFRONTEXremainincompleteandtheleewayfromwhichtheAgency’sExecutiveDirectorandManagementBoardbenefit–especiallywhenitcomestothe extent of FRONTEX’smandate, to the criteria used to terminate an operation susceptible ofviolating fundamental rights and to the access to information related to FRONTEX-coordinatedoperationsgiventothemonitoringentities–makesusquestiontheefficiencyofthemechanismssupposedtoensurethecompliancetotheserights.Moreover, two issues remain problematic. Despite some improvement, the question ofwho isresponsible incaseof infringementsofhumanrightsandtheopacitythatpersistaroundmostof

84Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ85Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ, op. cit., Point 50.

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FRONTEXoperationalactivitiesarestillasourceofconcernandcontradictthestatementmadesomany times by FRONTEX’s officials that the Agency “consider[s] the respect and promotion offundamental rights [as] unconditional and integral components of effective integrated bordermanagement.Whilemany of FRONTEX detractors considerwhat has been implemented by FRONTEX as just afaçade,wedothinkthatrealprogresshasbeenmade.Yet,despitethesenewdevelopments,itisstillnot possible to affirm, in our opinion, the full compatibility of FRONTEXwith the principles offundamental rights enshrined in the EuropeanUnion Treaties.More efforts are still needed andFRONTEXandtheMemberStatesshouldprobablyrethinkthewholephilosophyoftheAgency:ifthemainobjectiveremainstacklingirregularimmigrationatallcost,itappearsdifficulttoensurethefullrespectoffundamentalrights.Finally,itwouldbeinterestingtoseewhatimpacttheCommission’sproposaltocreateaEuropeanBorderandCoastGuardwouldhave,ifadopted,withregardstotheprotectionoffundamentalrightsnotonlyonthelegaldocumentsdefiningFRONTEX’smandatebutalsoonitsday-to-dayactivities. References European treaties Charter of Fundamental Rights of the European Union (2010/C 83/02); European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December 2007, 2008/C 115/01; Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders, 15 March 2006, OJ L 105, 13.4.2006, p. 1–32; Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, (2007/C 306/01). Secondary Legislation Council 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 (O.J. L 349, 25.11.2004); Regulation (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 (hereafter Regulation (EU) No 656/2014), Recitals 9, 10 & 19, OJ L 189, 27.6.2014, p. 93–107.

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Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), Article 1, OJ L 295, 6.11.2013, p. 11–26. 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; European Ombudsman’s Enquiry Draft recommendation of the European Ombudsman in his own-initiative inquiry OI/5/2012/BEH-MHZ concerning the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) FRONTEX, Ombudsman own-initiative inquiry OI/5/2012/BEH-MHZ. Warsaw, 2012, p. p. 33, <http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/11758/html.bookmark> [accessed 16 January 2016]. Articles Cederbratt, M, "Frontex: Human Rights Responsibilities". in International Journal of Refugee Law Vol. 25 No. 2 pp. 407-434, 2013, p. p. 1. Pascouau, Y, & P Schumacher, "Frontex and the respect of fundamental rights: from better protection to full responsibility". in European Policy Centre - Policy brief, 2014. Spengeman, A, "Upholding The Legitimacy of Frontex: European Parliamentary Oversight". in European Security Review, 2013, pp. p. 5-6. Reports Consultative Forum on Fundamental Rights, Annual Report, Warsaw, FRONTEX, 2013 Available at: <http://frontex.europa.eu/assets/Partners/Consultative_Forum_files/Frontex_Consultative_Forum_annual_report_2013.pdf> [accessed 12 January 2016]. Consultative Forum on Fundamental Rights, Annual Report, Warsaw, FRONTEX, 2014, Available at: <http://frontex.europa.eu/assets/Partners/Consultative_Forum_files/Frontex_Consultative_Forum_annual_report_2014.pdf > [accessed 12 January 2016]. Cooperation Arrangement between the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union and the European Union Agency for Fundamental Rights, 26 May 2010; FRONTEXIT, The Mandate of FRONTEX Is Incompatible With Human Rights. , 2014, p. p. 18, <http://www.frontexit.org/en/docs/42-bilan-frontexit-2014en/file> [accessed 10 December 2015]. FRONTEX General Report of 2005, available at: http://www.statewatch.org/observatories_files/frontex_observatory/general_report_2005_en%5B1%5D.pdf;

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FRONTEX Annual Report of 2006, available at: http://www.statewatch.org/news/2007/jul/frontex-annual-report-2006.pdf; FRONTEX General Report of 2007, available at: http://www.statewatch.org/news/2008/dec/eu-frontex-ann-rep-2007.pdf; FRONTEX Annual Report of 2008, available at: http://www.statewatch.org/news/2009/jul/eu-frontex-annual-report-2008.pdf; FRONTEX General Report of 2009, available at: http://www.statewatch.org/observatories_files/frontex_observatory/gen_rep_2009_en.pdf; FRONTEX General Report of 2010, available at: http://frontex.europa.eu/assets/About_Frontex/Governance_documents/Annual_report/2010/frontex_general_report_2010.pdf; FRONTEX General Report 2011, available at: http://www.europarl.europa.eu/document/activities/cont/201207/20120725ATT49372/20120725ATT49372EN.pdf; FRONTEX General Report of 2014, available at: http://frontex.europa.eu/assets/About_Frontex/Governance_documents/Annual_report/2013/General_Report_EN.pdf; Garcia Andrade, P, I Martin, & S Mananashvili, EU Cooperation With Third Countries in the Field of Migration. in Brussels, Policy Department Citizens' Rights and Constitutional Affairs, European Parliament, 2015, p. p. 44, <http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536469/IPOL_STU(2015)536469_EN.pdf> [accessed 21 January 2016]. Keller, S, U Lunacek, B Lochbihler, & H Flautre, Frontex agency: which guarantees for human rights?. in 1st ed., Brussels, Greens/EFA in European Parliament, 2010, pp. p. 11; p. 14-18, <http://www.migreurop.org/IMG/pdf/Frontex-PE-Mig-ENG.pdf> [accessed 3 January 2016]. Statewatch, & Migreurop, Reply to the Ombudsman’s request for submission – Frontex’s fundamental rights strategy. 2012, p. p. 12, <http://www.statewatch.org/analyses/no-193-eu-ombs-inquiry-frontex-evidence.pdf> [accessed 19 December 2015]. FRONTEX Internal Documents Frontex Code of Conduct for all Persons Participating in Frontex Activities Frontex Fundamental Rights Strategy. 2011. FRONTEX General Report of 2005, available at: http://www.statewatch.org/observatories_files/frontex_observatory/general_report_2005_en%5B1%5D.pdf; FRONTEX Annual Report of 2006, available at: http://www.statewatch.org/news/2007/jul/frontex-annual-report-2006.pdf; FRONTEX General Report of 2007, available at: http://www.statewatch.org/news/2008/dec/eu-frontex-ann-rep-2007.pdf; FRONTEX Annual Report of 2008, available at: http://www.statewatch.org/news/2009/jul/eu-frontex-annual-report-2008.pdf;

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FRONTEX General Report of 2009, available at: http://www.statewatch.org/observatories_files/frontex_observatory/gen_rep_2009_en.pdf; FRONTEX General Report of 2010, available at: http://frontex.europa.eu/assets/About_Frontex/Governance_documents/Annual_report/2010/frontex_general_report_2010.pdf; FRONTEX General Report 2011, available at: http://www.europarl.europa.eu/document/activities/cont/201207/20120725ATT49372/20120725ATT49372EN.pdf; FRONTEX General Report of 2014, available at: http://frontex.europa.eu/assets/About_Frontex/Governance_documents/Annual_report/2013/General_Report_EN.pdf; Frontex’s Programme of Work 2014, Regulation No. 1899/05/02.2014; Management Board Decision No 18/2012 on the working methods of the Frontex Consultative Forum and modalities of the transmission of information to the Frontex Consultative Forum, 26 September 2012 Available at: http://frontex.europa.eu/assets/Partners/ Consultative_Forum_ les/Working_Methods.pdf Web Sites http://www.frontex.europa.eu http://www.unhcr.org