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I want to start this paper with a short introduction of Frontex, in which I will pinpoint how we should see Frontex as an agency and I will briefly get into the establishment of Frontex. Subsequently, I will give an overview of the most important criticisms on Frontex, such as the lack of transparency, the lack of accountability Frontex needs to render for its activities, and so on. Then I will discuss the challenges Frontex faces, such as breaking through the secrecy that surrounds Frontex. Finally I will end this paper with a personal conclusion.

2012

EU Justice and Home Affairs

Dirk De Wolf

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Introduction

It is well-known that immigration in the EU suffers from a lack of coordination (Boeri & Bruecker,

2005). This should not be surprising because by its very nature immigration is a supranational

process, but its regulation still concerns mainly the national governments. This is particularly evident

in the case of the EU where internal borders are not enforced in the Schengen area, and spending on

external border enforcement concerns especially Southern European countries, who therefore

provide a public good. Northern members of the EU seem indeed reluctant to contribute to enforce

the border in the South (Wolff, 2008). Somewhat surprisingly, even the ongoing emigration wave

from Northern Africa is producing pressures to reintroduce internal border checks rather than

promoting a European immigration policy. An example to prove my point: In April 2011 French

President Nicolas Sarkozy and Italian Prime Minister Silvio Berlusconi sent a joint letter to the

European Commission and the European Council, requesting EU to ‘review the possibility of

temporarily restoring controls at international borders’ in the Schengen area. The Lisbon Treaty

defines external border enforcement as a shared competence, disciplined by the ordinary legislative

procedure. In particular, “the policies of the Union […] and their implementation shall be governed

by the principle of solidarity and fair sharing of responsibility, including its financial implications,

between the Member States” (Article 80). In spite of its importance Article 80 does not provide any

rule on how to share these costs in practice, though Article 77 calls for the development of a

European border surveillance system (Eurosur) (Journal of the European Union, 2008). So far, the

main attempt to move immigration control to a supranational level has been the establishment of

the Frontex agency in 2005. Frontex is an agency that arose from a compromise between the

Commission’s ambition to create a European Corps of Border Guards and the reluctance of the

member states to devolve too much of their sovereign competences to the supranational level. The

intent of Frontex is coordinating national immigration policies at the European level (Wolff, 2008).

I want to start this paper with a short introduction of Frontex, in which I will pinpoint how we should

see Frontex as an agency and I will briefly get into the establishment of Frontex. Subsequently, I will

give an overview of the most important criticisms on Frontex, such as the lack of transparency, the

lack of accountability Frontex needs to render for its activities, and so on. Then I will discuss the

challenges Frontex faces, such as breaking through the secrecy that surrounds Frontex. Finally I will

end this paper with a personal conclusion.

1. Frontex: a short introduction

Frontex represents the continuation of earlier efforts to arrange cooperation among multiple border

security agencies within the EU. Thinking on how to structure the mandate and tasks of Frontex was

influenced by the experience and work of earlier EU programmes to establish integrated agencies,

such as Europol, or cooperation agreements negotiated in Euro regions. Rather than integrate border

controls on an ad hoc basis or in response to specific needs, Frontex was established as a permanent

and independent coordinating agency (Monar, 2005).

On the one hand, Frontex can be seen as the outcome of a re-balancing of powers between the

Member States, the Council and the Commission following the communitarisation of the policy on

external borders after the Treaty of Amsterdam, constituting an important shift from the

intergovernmental coordination of operational activity under the Council to a more Community-

based approach (Neal, 2009, p. 343). On the other hand, Frontex can be considered the Community’s

answer to the arrival of boat people at its southern external borders. The framing of this

phenomenon as a humanitarian crisis and the authorities apparent incapacity to deal with this

situation has eroded the authority of Member States governments and the Commission. Frontex was

not only intended to restore the public’s trust, it also allowed the Commission and the Member

States to shift the blame for human suffering and the loss of life that coincide with ever more

desperate attempts to evade stricter border controls. In addition, a failure to curb irregular migration

would reflect badly on the Agency rather than the Community institutions or the Member States

themselves (Rijpma, 2010). It is important to know that Frontex’s role is limited to co-ordinate joint

operations by Member States at external sea, land and air borders of the EU. Other tasks concern the

training of border guards1, undertaking risk analysis, the development of research relevant for

control and surveillance of external borders, technical and operational assistance to Member States

at the external borders and support for Member States in joint return operations (Baldaccini, 2010,

p. 230).

The establishment of Frontex shows the willingness of the Member States to experiment in

developing a common border management. However, given the delicate nature of the task, they

agreed on an approach which combines contradictory elements. On the one hand, Frontex has to

operate in a legally insufficiently specified environment. This due to the unwillingness of some

Member States to install a fully-fledged European border guard and the lack of understanding that

international migration flows have to be managed at a European level. On the other hand, Member

1 Frontex neither replaces national border-guard services, nor does it have independent executive powers. For its operations it remains largely dependent on Member States technical and human resources (Rijpma, 2010).

States agreed to provide Frontex with the necessary autonomy, in terms of staff and budget, in order

to ensure the minimum requirement of operational autonomy. In terms of material resources and

support, Frontex is entirely dependent on the willingness of the Member States. This paradoxical

situation led to an agency which has sufficient financial resources at hand, disposes of the necessary

flexibility but depends entirely on the goodwill of the Member States to fit it with operational tools.

This contributes to the impression that many of Frontex activities are of an ad hoc nature rather than

following a comprehensive plan (Pollak & Slominski, 2009).

2. Criticism on Frontex

There are many reasons why Frontex can be subject to criticism. It could be argued that it is an

instrument of an essentially flawed EU migration and asylum policy. It could be pointed out that by

reinforcing the management of external borders, through its coordinating efforts and involvement in

the development of the surveillance system (EUROSUR) it contributes to making it increasingly

difficult and hence dangerous for people to reach Europe. Finally, it could be said that the Agency

reinforces a securitized perception of what is essentially a humanitarian problem through its one

sided mandate, the background of most of its staff in national law enforcement agencies and its

military style operations. Frontex does indeed deserve close monitoring, especially where future

legislation might wish to expand its competences (Rijpma, 2010).

However a more fundamental criticism is the lack of an institutional mechanism of prompt

democratic oversight over the operational activities of Frontex. There is no developed framework for

the accountability of Frontex operations. The Agency’s Director is accountable to the Management

Board, which is mainly composed of Member State officials on behalf of which the Agency is acting.

Frontex offered a new hierarchical control mechanism through the Management Board. Yet,

hierarchical control remained to be based on national civil servants accountable to national

parliaments. The Commission had proposed a highly centralized solution which the Member States

watered down to preserve their control over the Agency (Baldaccini, 2010, p. 236; Wolff, 2008).

Public accountability is limited to the adoption by the Management Board of an annual report which

is to be submitted, amongst others, to the Council, the Commission and the European Parliament.

The European Parliament2 has control of the budget but can do little in terms of ensuring that

Frontex is held accountable for the manner in which it fulfills its mandate, including compliance with

2 The European Parliament has informal ways of supervising the work of Frontex, in particular by summoning the Executive Director to report and answer questions, but there is no formal requirement for this in the law (Baldaccini, 2010, p. 236).

Community and international human rights law. This accountability deficit is further compound by

lack of detailed information concerning Frontex activities (Baldaccini, 2010, pp. 236-237).

Transparency of Frontex is rather weak. Some, extremely superficial, information is provided on the

Frontex website3 where it is also possible to retrieve its annual report and work programme. Aside

from that there is no access to more detailed information on Frontex activities and operations4.

Furthermore, the working arrangement with third countries and international organizations are

difficult or impossible to obtain and the operational agreements under which the Agency carries out

its operations are shred in secrecy. Pollak and Slominki (2009) conclude that “Frontex has continued

the culture of secrecy”. The only transparency mechanisms, similar to other EU institutions, is that

Frontex is subject to Regulation No 1049/2001 on access to documents and an individual can lodge a

complaint to the Ombudsman or to the Court of Justice in case Frontex would not respect the fifteen

days deadline to respond to an information request (Baldaccini, 2010, p. 237; Pollak & Slominski,

2009).

As far legal control is concerned, the creation of an agency has not settled the issue of legal

responsibility during the operations of Frontex. Member states are still responsible for what happens

at their external borders. In legal authority, there is a paradox at the heart of Frontex’s legal

existence. On the one hand, the Frontex Regulation stipulates that “the responsibility for the control

and surveillance of external borders lies with the Member States. On the other hand, the same

regulation says that Frontex is a Community body with “full autonomy and independence” with

“legal personality and exercising the implementing powers, which are conferred on it by this

Regulation. Frontex, therefore, exists both as a specter-like coordinating manager as well as an actor

with legal autonomy (Human Rights Watch, 2011, p. 13).

Ever since its establishment, Frontex received many critiques from NGO’s operating in the field of

human rights law. The critiques are concentrated mainly around the obscure manner in which its

operations are executed, the uncertainty surrounding the accountability regime of Frontex

operations in international waters, the lack of independent monitoring of the operations, … . Some

even went further by stating that the Agency currently is outsourcing European immigration policies

by executing its activities beyond the borders of the EU (Schenkel, 2009).

3. Challenges for Frontex3 It should be noted that in the official press releases issued by Frontex one cannot find a word about asylum seekers. Instead, the reports and press releases issued by Frontex emphasize the effectiveness of its operations in terms of intercepted illegal migrants while remaining totally silent with respect to potential asylum issues. 4 The amount of information made public by Frontex can’t be considered sufficient since it doesn’t provide answers to basic questions such as what is the legal basis of the joint operations, who is responsible for the execution of the joint operations?, … .

The challenges for Frontex in safeguarding and furthering the Schengen dream are manifold and

varied. They exist at the everyday operational level at land, sea and air borders; at the administrative

and legal levels, through training and development of common standards; to research and

development and forward planning of border-control technologies, to the policy and political level

within and between Member States. While it must always be borne in mind that border control

remains the responsibility of the Member States concerned, it is Frontex’s task to promote

uniformity of the highest standards and best practice in this field. To achieve this uniformity at all of

Europe’s borders is an ambitious task and one that must always be concluded within the binding

legal frameworks of not only Frontex mandate and the Schengen Borders Code, but also such treaties

as the Geneva Convention and Lisbon Treaty, both of which put a clear and firm emphasis on the

fundamental rights of individuals and the importance of human dignity at all stages of border and

migration management. It is for these reasons that Frontex is itself constantly changing (Laitinen,

2011).

Furthermore, there can be questions raised about the fundamental paradox of risk analyses5. The

paradox afflicts the use of risk analyses as the basis for all operational and coordinating tasks and for

arriving at strategic and tactical decisions in Frontex. The methodology and findings of risk analyses

are secret, which violates the commitment to transparency and accountability espoused by the

European Commission and Frontex. It is impossible for an outsider to judge on what legitimate basis

decisions were made or whether they are based on risk analyses. The most basic decisions of Frontex

are hidden behind a shroud of secrecy. It is not clear why secrecy matters to Frontex. With some

minor exceptions (specific cases, methodologies which would reveal too much or prove

embarrassing) secrecy is unnecessary and actually harms the image and efforts of Frontex. Secrecy

seems to be an almost automatic reflex of intelligence gatherers and analysts. If it is intelligence, it

must be kept secret; only secret knowledge is worthy to be called intelligence. For Frontex, which

more by historical events than design has become identified with controlling illegal immigration,

secrecy is completely unnecessary, almost irrelevant. Its risk analyses of illegal migration focus on the

global picture to be able to assess where migration pressures might come from and reach the

borders of the EU, and hence prepare for an effective response. Most of the information on global

mobility, legal and illegal, can be found in a vast number of publications and information systems. All

of this is known. Hence it is highly unlikely that risk analyses of global migrations conducted by

5 Risk analyses as now done, as far as one can determine, has limited practical utility for border management. It is not actionable. Risk analyses sets the outline and framework for policy, but says little about how to handle illegal migrants or transnational criminals arriving at border checkpoint. Risk analyses focuses on group mobility, not individuals. Hence the specific interrogation, detection and control decisions will have to be made using the skills and hunches of border guards. Those skills are not learned from analyzing intelligence (Marenin, 2010).

Frontex will add anything new to this picture (Marenin, 2010). Through risk analyses the agency

legitimises the permanent repression of irregular migrants on continuously new escape routes.

Because of its legal bureaucratic authority, the Agency retroactively influences the problem

perception of the European Commission, the Council and the European Parliament. The result of the

risk analyses and the research which Frontex conducts, generate a certain knowledge through which

the information acquires a meaning. This knowledge changes the social reality and, as a reaction to

that, triggers a demeanour. As a result Frontex on the one hand reflects a social reality, but

simultaneously the organization again establishes this reality through the illegalisation of migrants,

and through the institutions of the EU border surveillance, they marginalize those in search of

protection. Therefore they make them vulnerable (Barnett & Finnemore, 2004).

There are major drawbacks to this secrecy besides the seeming violation of the official commitment

to transparency. It is impossible to check on the accuracy of information in the datasets used for the

analyses. It is not unheard of that intelligence files contains errors, rumors passed on as facts,

speculations. Secrecy undermines trust and limits the legitimacy of new EU institutions and their

work. If the public or political leaders have suspicions about intents and practices of border

management, keeping the reasons for decisions secret will only fuel suspicions further. ‘Trust us, we

are only doing this to protect you’ is not a legitimating strategy. Secrecy limits oversight and

accountability, raising questions about ‘what are they hiding?’, by applying the secrecy rule the very

source of legitimizing the operation cannot be at all contested, reviewed and in the end made

democratically accountable (Carrera, 2007, p. 14; Marenin, 2010).

Conclusion

Today Frontex plays a key role in the European concept of the integrated border surveillance, where

with the help of the Member States the control and the surveillance of the common external borders

of the EU is secured. At the same time because of its expertise, the organization is also intensely

involved in the process of formulation and implementation of the EU policy. By its research and risk

analyses Frontex has openly gained competence within the institutional framework of the European

Union. Because of this, its work once again becomes legitimised and its leeway expands further.

However the Agency displays severe shortcomings in its architecture. Human rights organizations

criticize the continuous violation of refugee and human rights, especially during Frontex’s sea

operations. There is no supervision whatsoever by the European Parliament and the European justice

courts. Also the involved refugees have no possibilities to legally appeal against random proceedings

from Frontex.

The accountability of Frontex still remains insufficient. That needs to be deliberated on, whether for

example an independent supervisor would be useful to abolish the information deficit of Frontex.

Adjacent to that a strong European Parliament is needed, which utilizes its power and depicting

ability, if only by using its budgetary power or by enforcing its authority to better control Frontex and

the member states in the future. At the same time, The European Court of Justice and the European

Court of Human Rights need to practice supervision on Frontex to guarantee the legal protection

against illegitimate actions. The European Parliament does not indeed possess sanctioning rights

regarding Frontex. Therefore they should create a parliamentary committee which focuses on

Frontex and verifies risk analyses and operations.

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