image_printPrint this article

Mariana Gkliati, Assistant Professor of International and European Law, Radboud University

On 15 July, the Frontex Scrutiny Working Group (Scrutiny Group) of the European Parliament’s LIBE Committee published its report on the alleged involvement of Frontex in fundamental rights violations at the external borders.

Frontex welcomed the report and its conclusions which, according to the agency, ‘reaffirmed that there is no evidence of the Agency’s involvement in any violation of human rights.

However, a closer look at the report would indicate that this is only part – if at all – of the story. The comments in this contribution aim to discuss the Scrutiny Group’s findings within the legal framework and their implications as to the agency’s legal responsibility for fundamental rights violations.

A background of enhanced powers and serious allegations

The Scrutiny Group was established in March 2021. Its first four months were dedicated to a fact-finding investigation to establish the truthfulness of the allegations of violations and gaps in the agency’s internal mechanisms.

This investigation was the crown jewel of a series of accountability initiatives that have been launched in the last months, including own-initiative investigations by the EU Ombudsman, the EU Court of Auditors, and OLAF, the EU Anti-fraud Authority. This unprecedented activation of judicial and non-judicial initiatives was sparked by the latest extensive expansion of the agency’s mandate in 2019 and a series of media reports towards the end of 2020 regarding the involvement of the agency in well-documented pushback operations by the Greek Coast Guard.

However, the investigation of the Scrutiny Group did not only cover the area of the Aegean sea but also other border sections where violations were reported, and Frontex surveillance or return operations were carried out. Indicative of the importance, which the European Parliament bestows upon the issue, is that there has been only one other such in-depth inquiry of the LIBE Committee.

The working methods of the Scrutiny Group

In the course of its investigation, the members of the Scrutiny Group studied published reports by credible NGOs, national authorities, and international organisations, as well as a great many internal documents, e-mails and other communication that were requested from Frontex and the European Commission. They further heard from Frontex, the Commission, and a number of legal experts, EU agencies, NGOs, and journalists, during eight hearings. These hearings were live-streamed and recorded, contributing in this way to the social accountability of the agency. Furthermore, a functional mailbox was set up for the Scrutiny Group to receive submissions from civil society. The MEPs carried out a virtual mission at the Frontex headquarters in Warsaw.

The members of the Scrutiny Group formed their opinions during a series of internal technical and shadow meetings and decided upon the outcome of the investigation by majority rule. The findings were presented in a report drafted by the rapporteur, MEP Tineke Strik.

The findings and recommendations

The Scrutiny Group concluded that the agency was aware of fundamental rights violations in host member states, while it failed to address and effectively follow up on these violations. The agency failed, thus, to prevent these violations and similar foreseeable violations in the future.

In the incidents that the Scrutiny Group was able to study, no conclusive evidence was found proving the direct performance of pushbacks or collective expulsions by the agency itself.

The report specifically focused on the implementation by the agency of its mandate and legal obligations, the functioning of its supervisory, monitoring and accountability mechanisms, the obligation of the Executive Director to suspend, terminate or not launch operations, and the role of the agency’s Management Board. The findings and conclusions were accompanied by an extensive list of concrete recommendations to ensure that the agency can effectively abide by its positive obligations and avoid the risk of complicity in the future.

The investigation found several significant shortcomings and wrongdoings and suggested a drastic reorganisation of the agency in order for it to be able to fulfil its role in accordance with its fundamental rights obligations. In this line, the Scrutiny Group suggested that it becomes conditional in the operational plan that Frontex is able to monitor the whole operational area so that member states cannot refuse access to the new fundamental rights monitors or order a Frontex asset away from the scene of an incident. Moreover, it requires the agency next to the response of the national authorities to also take into account publicly available credible information in its investigation of reported serious incidents.

The report also contains extensive recommendations for the effectiveness of the individual complaints mechanism, the reporting and monitoring mechanism of the agency, as well as the role of the Fundamental Rights Officer and the Frontex Consultative Forum.

The complicity of Frontex in fundamental rights violations

In the last years, reports have suggested the direct participation of Frontex teams in fundamental rights violations, for instance, presenting witness testimonies reporting that officers carrying out pushbacks were heard speaking languages other than that of the host country (Karamanidou and Kasparek), or implicating a Finish Frontex dog team in Croatia (Fotiadis).

The specific serious incidents and media reports studied by the Scrutiny Group did not cover allegations of the active involvement of Frontex in pushbacks (Annex to the Scrutiny Group report). The agency’s participation instead took the form of inaction while in knowledge of serious and continuous violations.

The following sections will explore the implications of these findings upon either the agency’s legal responsibility, looking at the rules of attribution and the international framework on responsibility as presented in the International Law Commission Draft Articles on the Responsibility of International Organisations (ARIO).

This responsibility can be either indirect due to assisting the host state in the commission of a violation or direct due to violations committed actively by the agency’s statutory staff or by members of Frontex teams.

Direct responsibility

The violation of the fundamental rights obligations of the agency constitutes a breach of an international obligation that can bring upon the direct responsibility of the agency if the wrongful conduct can be attributed to it (Arts. 3, 4 ARIO).

Wrongful conduct attributed to an organisation is that of the organisation’s agents and organs (Arts. 6-9 ARIO). This primarily concerns Frontex’s statutory staff, who have executive powers similar to those of border guards and return specialists of the member states (Art. 54 EBCG Regulation). In the context of such extensive powers, members of the statutory staff may commit a wrongful act (Article 4 ARIO) that is in breach of an international obligation and affects the rights of individuals (Article 11 ARIO). The fact that the statutory staff is employed by the agency and Frontex has disciplinary powers over them constitutes them de jure agents that bind the agency with their conduct.

While the de jure agents of Frontex are the first that will engage the direct responsibility of Frontex, this can also extend to the members of the border guard teams seconded by member states and their role as de facto organs of the agency. The responsibility rule of Article 6 is to be interpreted broadly to cover any person through whom the agency acts, regardless of the formal status of employment. Looking at the role of deployed border guards through the lens of effective control, persons seconded to Frontex by a member state can be considered its agents if it is proven that Frontex exercises effective control over their conduct (Article 7).

Even though Frontex will at no point issue clearly binding instructions directly towards the deployed officers, several levels of orders and control exist above the day-to-day command of the operation. The decisive elements on who has effective control over the conduct of the deployed personnel, as they have been interpreted by doctrine and jurisprudence, are a) retention of disciplinary powers and criminal jurisdiction by the state, b) decision-making power over the wrongful conduct, or in other words, operational command and control in accordance with formal arrangements and factual circumstances (factual control), c) power to prevent a violation of human rights (positive obligations).

The determination of either one of these elements can tip the balance towards the responsibility of either the state or the agency. Adding to the uncertainty over the debate on responsibility, there is no hierarchical order amongst the different elements, and they can be balanced differently by different courts.

In sum, the agency can have direct responsibility for violations committed directly by its statutory staff or by deployed teams if the agency has effective control over their conduct. Thus, the findings of the Scrutiny Group do not provide grounds for the direct responsibility of Frontex. Even if it is found that Frontex teams (non-statutory staff) are directly involved in a pushback, this would not necessarily result in the agency’s direct responsibility. The illegal conduct of seconded personnel in the context of a Frontex operation would still be attributed to the host state, which would incur direct responsibility. The dual attribution to Frontex and the joint responsibility of the agency along with the host state would depend on proving the effective control of the agency on a case-by-case basis.

Indirect responsibility

The agency may still be held responsible if it has only contributed to an act that is not attributed to it. In this case, Frontex would be indirectly responsible for aiding and assisting in a violation, in knowledge or presumed knowledge of the circumstances. In other words, it may incur indirect responsibility for a wrongful act that is not attributed to it but solely to the host state if it has contributed to it, facilitating its commission (Article 14 ARIO).

Such assistance can result from launching, financing and otherwise supporting operations, in the context of which violations occur, as it can be responsible for ‘setting the scene that allows the result'(Goodwin-Gill, p. 453). It can also result from a failure to effectively utilise its monitoring obligations in light of its positive obligations to prevent a violation.

Vital in this case is whether Frontex knew or should have known about the violation, as indirect responsibility can be engaged not against all threats but against reliable and predictable threats. Such knowledge can occur through the agency’s internal and external reporting mechanism, including vulnerability assessments in the context of the Schengen assessment mechanism, serious incidents reports, and the individual complaints mechanism, or via well-documented credible NGO and media reports of recurring or systemic violations.

Thus, if it can be reasonably presumed that Frontex has been aware of a violation or willfully ignored it, it may incur indirect responsibility for assisting in that violation by financial, operational and practical means or by failing to exercise its positive obligations to prevent it.

The Scrutiny Group has established that Frontex knew and ignored internal serious incident reports, repetitive opinions and recommendations of the Consultative Forum and the Fundamental Rights Officer, as well as publicly available information from credible sources.

It further found inactivity, or even unwillingness, to act in order to prevent the violations, following these multiple warnings and effectively follow up on them. As a result, the agency has failed to fulfil its positive obligations to safeguard fundamental rights at the border, prevent and effectively address violations. This incurs Frontex’s indirect responsibility for complicity in the violations of the host state. In this regard, Frontex and the host state can have shared responsibility.

Article 46

The Scrutiny Group paid particular attention to the application of Art. 46 of the EBCG Regulation, which stipulates that the Executive Director has a duty to withdraw financing from, suspend, or terminate activities in whole or in part in case of violations that are serious or likely to persist. Similarly, such an activity may not be launched where this would lead to such violations.

Given the serious nature and the vast number of reported violations at the Aegean Sea and the land border in Evros, the Scrutiny Group criticised the lack of a comprehensive assessment of the application of Article 46 and called upon the Executive Director to examine the suspension of Frontex operations in Greece.

In an action submitted to the CJEU pursuant to Art. 265 TFEU in May 2021, the Court has been asked to examine whether the non-suspension of sea border surveillance operations at the Aegean in accordance with Art. 46(4) EBCG Regulation constitutes unlawful failure to act.

Art. 46 has been activated only one time in the case of Hungary in January 2021, only after the Judgement of the CJEU on infringement procedures (Case C-808/18) ruling that Hungary was in violation of EU rules on access to international protection, reception and detention, and return. During its investigation, the Scrutiny Group found that the agency had still not suspended its return operation in Hungary and called upon the agency to do so immediately. Several other failures were identified regarding the implementation of Art 46, including the lack of a due diligence procedure, clear criteria for assessing the circumstances that should trigger its activation, and the lack of justification of the decisions of the Executive Director.

These failures can amount to the violation of the positive obligations of the agency to protect fundamental rights and bring upon its indirect violation for aiding and assisting in systematic violations.

Conclusions

The investigation of the European Parliament has brought the topic of the obligations of Frontex for fundamental rights violations to the forefront of the political and academic debate (Guild and Thym). The examination of its responsibility for breach of these obligations is the necessary next step.

This responsibility can be indirect, through assisting Greece or Hungary in the commission of violations, either actively (e.g., technical and financial support) or by omission due to the agency’s positive obligations (e.g., failure to suspend or terminate an operation).

The agency can also incur direct responsibility for actions and omissions attributed to its statutory staff. Under certain circumstances, the agency may also have a sufficient degree of effective control over the seconded personnel in the two countries to be considered its de facto agents, engaging the agency’s responsibility with their conduct.

The first comprehensive steps for the judicial and non-judicial accountability of the agency have been taken. The Frontex Scrutiny Working Group has concluded the first phase of its investigation but has a permanent mandate and should report to the LIBE Committee every four months, aiming to follow up on the implementation of its recommendations. The European Parliament will discuss a Resolution upon the findings of the Scrutiny Group in the autumn, which should also discuss the discharge of the agency’s 2019 budget, which was suspended in April 2021 pending the Scrutiny Group inquiry, the recruitment of the 40 fundamental rights monitors and the conclusion of the OLAF investigation.

Finally, our eyes are turned to the Court, which soon will be asked again for guidance on this matter and the development of an effective external mechanism for monitoring surveillance operations at the EU’s external borders.

*A more in-depth analysis of these issues is to be found in M. Gkliati, The next phase of the European Border and Coast Guard: Responsibility for returns and pushbacks in Hungary and Greece, in ‘Migration and EU Borders: Foundations, Policy Change, and Administrative Governance’, Andrea Ott, Lilian Tsourdi and Zvezda Vankova (eds), European Papers (forthcoming).