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By Lilian Tsourdi, Departmental Lecturer in International Human Rights and Refugee Law, University of Oxford, Refugee Studies Centre

Practical cooperation has passed from the margins to the center of the migration and asylum policies. The operationalisation of the hotspot approach to migration management points to the emergence of an increasingly integrated European administration. We are witnessing patterns of joint implementation, with experts deployed by EU AFSJ agencies involved in search and rescue operations, the registration and referral stages, as well as in the processing of asylum claims. However, less attention has been dedicated to a parallel development, that of the expansion of the mandate of EU JHA agencies, and specifically the revamped FRONTEX and EASO agencies, to include monitoring-like functions, as well as functions which have the potential to steer policy implementation. This creates obvious tensions with the agencies’ internal governance structures which are largely intergovernmental. In this contribution, I first outline some of the novel (envisaged) functions, while critically assessing the challenge of independence. I then open the question whether social accountability arrangements could act as a counterbalance. This fully sets the scene for the debate between academics, agency and civil society representatives, set to take place on the 1st February as part of a dedicated workshop in the framework of the 2018 Odysseus Academic Network Policy conference.

EASO and FRONTEX 2.0: the emergence of monitoring and steering functions

One of the solutions to countering the asylum and migration ‘crisis’ was revamping two key JHA agencies, EASO and FRONTEX, responsible respectively for the coordination of practical cooperation in the areas of asylum, and external border management. This became a legal reality already in 2016 for FRONTEX with the adoption of the European Border and Coast Guard (EBCG) Regulation  . It is however still ongoing in the case of EASO where negotiations on a European Union Agency for Asylum (EUAA) Regulation are underway. The European Parliament and the Council reached a partial agreement on the file already in June 2017. Nevertheless, the conclusion of a final agreement is stalling since parts of the new agency mandate hinge on developments in other areas of the asylum policy also currently under negotiation, such as EU asylum procedures and responsibility-allocation (Dublin IV Regulation). While negotiations are ongoing, it is possible to discern common trends from the parts of the negotiations that have been finalised.

The European Border and Coast Guard, despite its denomination, does not aim to replace national border guard units centralising external border management, remaining essentially a new model built on an old logic. However, a shift has taken place. As part of its new functions, the EBCG not only coordinates practical cooperation, but also develops and, to an extent, monitors European border management. Exemplary of the first trend, i.e. developing the policy, is the agency’s role in adopting a ‘technical and operational strategy for European integrated border management’ based on which Member States should establish their own national strategies (art. 3 EBCG Regulation).

Regarding the second trend, i.e. monitoring, two aspects merit highlighting:

  • liaison officers present in Member States are to monitor the management of the external borders (art. 8 EBCG Regulation);
  • a vulnerability assessment aimed at assessing the capacity and readiness of Member States to face upcoming challenges, at identifying (especially for those Member States facing specific and disproportionate challenges) possible immediate consequences for the external borders and for the operation of the Schengen area as a whole, and at assessing Member State capacity to contribute to agency deployments (arts. 8 and 13 EBCG Regulation). The assessment could lead to the adoption of recommendations for alleviating the vulnerabilities and, in case of non-implementation with the latter, to a binding decision endorsed by the Management Board prescribing measures to be adopted by the Member State in question (art. 13 EBCG Regulation). A final, ‘nuclear’ option is to be activated when the functioning of the entire Schengen area is put in jeopardy. That is the adoption by the Council, on the basis of a proposal from the Commission, of a decision by means of an implementing act prescribing measures which the Member State has to implement/, including the roll out of agency-coordinated missions, and deployment of experts on its territory (art. 19 EBCG Regulation).

Similar trends are revealed in the case of the new EUAA. While the agency is not tasked with the adoption of an overall strategy, it has the potential to steer policy implementation through a novel process around country of origin information (COI). EASO currently coordinates networks of national administrators in this area and collects, disseminates and produces COI. Its COI analysis is not binding, Member States can treat it as one of the available sources. The partial agreement foresees an enhanced role for the EUAA through the development together with Member State experts, of a ‘common analysis’ on the situation in specific countries of origin and the production on this basis of guidance notes to assist Member States in the assessment of relevant applications (art. 10 partial agreement EUAA).  The Executive Director would submit, after consultation with the Commission, the guidance notes accompanied by the common analysis to the Management Board for endorsement. Once endorsed, Member States should take this analysis into account in their decision-making ‘without prejudice to their competence for deciding on individual applications’.

Another innovation is a monitoring role for the agency, which has been somewhat watered down during the negotiations. The partial agreement on an EUAA establishes a function to ‘monitor the operational and technical application of the CEAS with a view to assisting Member States to enhance the efficiency of their asylum and reception systems’ [emphasis added] (art. 2 partial agreement EUAA). Member States though the Council have managed to greatly align the EUAA monitoring mechanism to the ‘vulnerability assessment’ process in the ECBG Regulation. The now stated aim of the monitoring is to ‘prevent or identify possible shortcomings in the asylum and reception systems of Member States and to assess their capacity and preparedness to manage situations of disproportionate pressure so as to enhance the efficiency of those systems’ (art. 13 partial agreement EUAA).  It is envisaged that information would come mainly through the Member States themselves, but that the agency ‘may also take into account information provided by relevant intergovernmental organisations or bodies, in particular UNHCR, and other relevant organisations’. Finally, the EUAA would have the capacity to conduct on-site visits and case sampling.

The findings of this monitoring exercise would be sent to the Member State for comments. Taking those comments into account, the Executive Director would then draw up draft recommendations, in consultation with the Commission, outlining both the measures to be implemented by the Member State, including with the assistance of the Agency as necessary, and providing a time-line for their implementation (art. 14 partial agreement EUAA). The Member State would be given again an opportunity to comment, after which the Management Board would adopt the recommendations by a 2/3 majority of its voting members (art. 14 partial agreement EUAA). If these recommendations are not followed, and it is considered that the functioning of the Common European Asylum System is jeopardized, the next layer of monitoring actions involves the European Commission. The Commission would address its own recommendations to the Member State in question, and might decide to organize on-site visits to follow-up on their implementation (art. 14 partial agreement EUAA). A final, ‘nuclear’ option, aligned with what is foreseen in the EBCG Regulation, is an implementing act to be adopted by the Council prescribing a set of measures, including potential operational deployments, which the Member State would be required to accept (art. 22 partial agreement EUAA).

Both agencies are therefore to play pivotal roles not only in assisting, or jointly implementing the EU external border and asylum policies alongside Member States, but also in steering and monitoring policy implementation. This new set of tasks throws the challenge of agency independence into sharp relief.

The challenge of independence

In order to credibly and effectively operationalise these new functions, it would seem that agencies need to be independent from national interests and political influences. EU agencies, however, are ‘betwixt and between’, as eloquently noted by Deirdre Curtin, being both institutionally and functionally dependent on EU institutions and Member States. Agencies in the AFSJ do not constitute an exception. This is exemplified through the process by which they operationalise their mandate, which is inherently collaborative, and the design of their internal governance structures.

EASO’s Management Board is, for example, composed of one member per Member State bound by the Regulation, two members from the European Commission, and UNHCR as a non-voting member (arts. 25-27 EASO Regulation). It has far-reaching functions in the areas of planning and operationalising the agency’s mandate and is heavily involved on key agency products. By this I am referring to the need for the Board to specifically ‘adopt’ some of the agency’s outputs that are ‘drawn up’ by EASO (e.g. art. 29  EASO Regulation). These realities would be enhanced in new EUAA where the composition of the Management Board remains unaltered, while this organ would see its powers increased, including in the framework of the envisaged steering and monitoring functions as outlined in the previous section. A similar picture emerges when one examines the internal governance structures of the EBCG. The Management Board is composed by ‘one representative of each Member State and two representatives of the Commission, all with a right to vote’ (art. 63 EBCG Regulation). The Board again has an impressive array of functions (art. 62 EBCG Regulation), including holding pivotal roles in the steering and monitoring processes analysed in the previous section.

Parallel to containing extremely powerful Management Boards, both FRONTEX and EASO 2.0 are subject to multiple layers of accountability processes. According to Bovens, Goodin and Schillemans, accountability consists of three elements or stages: i) the actor should be obliged to inform the forum about his or her conduct, by providing various sorts of information about the performance of tasks, about outcomes, or about procedures; ii) there needs to be a possibility for the forum to interrogate the actor and to question the adequacy of the explanation or the legitimacy of the conduct; and finally, iii) the forum may pass judgment on the conduct of the actor.

While their detailed analysis goes beyond the scope of this blog post, both agencies are subject to extra-judicial (such as political and financial), as well as judicial types of accountability. Accountability processes are a safeguard to the good functioning of EU agencies. However, in practice there is a delicate balance to be struck between agency accountability and independence. This is exemplified by the figure of the Executive Director who finds herself in the midst of the accountability and independence debate. This key figure should be independent in conducting her duties, and at same time she is the agency representative that is called to report to several accountability fora, including the Management Board, the Council, the European Parliament, and the European Commission. This reality further compounds the independence conundrum.

This is not to say that the Management Boards’ composition and role, or the existence of accountability arrangements are inherently negative. Regarding the former element, Ellen Vos has argued that ‘having all Member States represented at agency boards is in line with the conceptual understanding of the EU executive as an integrated administration and is an expression of the composite or shared character of the EU executive’. As for the enhanced role of the Management Board within FRONTEX and EASO 2.0 it could be explained based on the nature and scope of their activities. The tasks which these agencies are called to undertake are intrinsically linked with the implementation of the asylum and external border control policies and are therefore tasks in the remit of the Member States. When the European level, through an EU agency, starts to be more implicated in policy implementation, including through the deployment of experts on the ground, the Member States naturally want to have a strong say. However, it cannot simply be concluded that the national level is seeking to ‘reappropriate powers through the back door’, since the duty to implement legally rests with the Member States. In what concerns accountability structures, they enhance transparency in the workings of the agencies and are linked with the principle of good administration enshrined in the EU Charter of Fundamental Rights.

At the same time the independence challenge posed is real and should not be underestimated. The new steering and monitoring powers entrusted to EU agencies have the potential to further impact asylum seekers’ and migrants’ fundamental rights. ECRE noted recently that the EUAA’s governance structure, in combination with the fact that the agency has no protection mandate per se, entails the risk that its country of origin guidance ‘would be shaped by political considerations and administrative convenience rather than international protection considerations’. In a recent article, Ariadna Ripoll Servent, raises another type of danger, notably that given the distribution of power in the field of asylum and border controls, the EBCG and the EUAA risk being captured by strong regulators and used as ‘proxies’ to control weaker ones. Indeed, understanding ‘national interest’ in these fields as singular does not do justice to either the divergence of interests between Member States, nor to their power differential. As explored in the work of Natascha Zaun presented here on this blog strong regulators of North-Western Europe have used their powerful bargaining positions to shape EU asylum policies decisively, which has allowed them to impose their will on Member States in South-Eastern Europe. EU agencies can be conceptualised as vessels to operationalise, at least in part, the principle of solidarity and fair-sharing of responsibility. However, as I analysed in a recent article in MJECL the conception of solidarity remains emergency-driven, and this persists in the framework of the new agency Regulations. This reality combined with a deficit of independence could see these monitoring processes instrumentalised, rather than becoming impartial and objective monitoring exercises of the asylum and external border control policies of each Member State leading to the activation of genuine and robust solidarity measures.

Perspectives

The tension brought about by the expansion of the mandates of AFSJ agencies is palpable. These agencies are clearly moving beyond operational cooperation and have the potential to steer and monitor policy implementation. This mandate expansion, has not been coupled with a radical redesign of the internal governance structure of the agencies in what concerns the composition and role of their Member State-dominated Management Boards. This is compounded by a plethora of accountability arrangements. While these new functions have the potential to further harmonise practices, and to boost policy implementation and solidarity, they also entail dangers, as outlined in the previous section.

The way forward to counter these challenges is not clear. Altering the composition of Management Boards or restricting their functions, while it would have been impactful, does not seem to be a politically plausible solution. In view of this, one alternative avenue to be explored is further enhancing the role of external expertise within the AFSJ agencies, whether expertise is provided through international organisations, academics, expert practitioners, or expert civil society representatives. A characteristic example would be the proposal to establish a peer review system of the ‘common analysis’ on the situation in specific countries of origin by a panel of independent experts on COI. This would infuse the process of the adoption of guidance notes based on this analysis with further impartiality than that afforded by the exclusive involvement of the agency Management Board in endorsing these products. Similar processes could be conceptualised in the framework of the national ‘vulnerability assessments’, or the monitoring of national asylum systems.

Another avenue which seems to be promising is strengthening social accountability processes. Madalina Busuioc has raised the danger of the proliferation of accountability obligations which can lead certain agencies facing an ‘accountability overload’. However, it seems that accountability towards civil society has the potential, apart from better ensuring individuals’ fundamental rights, to act as a counterbalance to the power wielded by Member States, and consequently to enhance agency independence. The EBCG has taken some decisive steps in this direction by boosting the role and powers of its Consultative Forum, parallel to instating the role of a Fundamental Rights Officer and initiating an individual complaints mechanism (arts. 61, 70-72 EBCG Regulation). The effectiveness of these mechanisms in practice, especially in what concerns the third element of accountability which is that ‘the forum may pass judgment on the conduct of the actor’, needs to be further studied. This will allow to ascertain to what extent they constitute a useful blueprint for the EUAA, as well as how they should be further reformed to better ensure these goals.


Discussions during the Odysseus Network workshop on the 1st February 2018 will shed further light to the operationalisation of, or ongoing negotiations around, these new functions, as well as critically debate potential solutions to the independence conundrum.