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By Elspeth GuildJean Monnet Professor ad personam, Queen Mary University of London and Emeritus Professor Radboud University Netherlands

Revelations about Frontex’s potential unlawful actions in the Eastern Mediterranean began to appear first as the result of a joint investigation by Bellingcat, Lighthouse Reports, Der Spiegel, ARD and TV Asah published on 23 October 2020 and then picked up by the New York Times, on 26 November 2020. The essence of the allegations are that Frontex has been involved in forcing little boats with potential refugees on board away from Greek islands and back to Turkish waters contrary to a judgment of the European Court of Human Rights which found such collective expulsion unlawful. Since then, a controversy around the agency and its compliance with human rights has been raging in Europe: 

  • Already in November 2020 the European Ombudsman’s office opened an inquiry into the effectiveness of the Frontex complaints mechanism. 
  • On 4 March 2021 the European Parliament‘s LIBE committee opened an inquiry into the allegations of human rights violations by the agency regarding the alleged push-backs (which was accompanied by the publication of extensive correspondence with the Frontex director). 
  • The European Union’s anti-fraud office, OLAF also opened an inquiry into the agency in January 2021. 
  • The European Court of Auditors had already opened an inquiry into Frontex in January 2020 regarding the agency’s performance.
  • The Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, has also stepped into the fray issuing a report in March 2021 on EU action which leaves people to drown in the Mediterranean.

Although a report by a special working group set up by the Management Board of the Agency (consisting of representatives of seven Member States and the Commission) set up to investigate media allegations that staff, ships or aircraft working with or financially supported by Frontex had been engaged in violations, did not find sufficient evidence to establish responsibility in respect of the five specific events published in March 2021, this has not calmed the controversy. 

Among the issues which is emerging from the controversy is whether the quality of oversight of Frontex is fit for purpose:

  • The EU Commissioner for Home Affairs made it clear that the Executive Director of Frontex (ED) does not report to her. While she has asked for clarifications and both she and the President of the Commission called for an urgent meeting of the Frontex Management Board in October 2020 when the allegations first came out, the ED has been clear he reports to his Management Board, not the Commission. 
  • The management Board, under Frontex’s legal status regulation, is responsible for appointing the ED, making a range of decisions which authorise various activities, establish procedures for the ED to take decisions relating to the technical and operational tasks of the Agency and exercise disciplinary authority over the ED (Regulation 2019/1896). However, the Board may only advise the ED on any matter related to the development of operational management of the external borders. The Management Board itself is composed of a representative from each Member State and two from the Commission. Their terms are for four years and extendable but dependent on their Member State’s decision. Further the powers particularly in respect of fundamental rights issues of the Management Board are limited. 
  • Frontex also has a Fundamental Rights Officer (FRO) (Article 109 Regulation 2019/1896) with a wide range of responsibilities for fundamental rights monitoring, but this monitor is internal and remains within the hierarchy of Frontex. The failure of the ED to appoint a substantial number of fundamental rights monitors in 2020 is also the subject of investigation by the European Parliament (the legal requirement is written in the Regulation 2019/1896: the Agency shall ensure by 5 December 2020 that at least 40 fundamental rights monitors [under the orders of the FRO] are recruited by the Agency (Article 110(6). Yet, the powers of the FRO and the monitors in the Regulation are fairly limited and certainly not binding on the director. 
  • As far as responsibility is concerned, Frontex has a Consultative Forum which provides advice on fundamental rights matters (Article 106 Regulation 2019/1896). Named as participants on the Forum are the EU Fundamental Rights Agency (FRA), the European Asylum Support Office (EASO) and the UN High Commissioner for Refugees (UNHCR) and other relevant intergovernmental or non-governmental organisations. However, the Forum has no power beyond providing advice to the ED and management board. Should the director choose to put any critical observation or formal or informal recommendation in a bottom drawer, there is no power for the Forum to do anything about it. Also, recommendations made by the Consultative Forum are not made public, notwithstanding general rules on EU administrative transparency.

Generally, it emerges from the current debates around Frontex, that there is no independent external oversight of the agency. As Frontex may exercise coercion in border surveillance activities on behalf of the EU, in conjunction with authorities of its Member States or, under certain circumstances, alone, and as Frontex officers are likely to be armed as soon as this summer, effective and independent oversight is now a high priority for the EU. Indeed, from the constant case law of the CJEU and the ECtHR there is an obligation not only for a thorough and independent investigation of alleged violations of fundamental and human rights but also to take measures to ensure measures are in place to diminish the likelihood of repetition. However, while the operational capacities and the remit of Frontex have grown exponentially over the past five years, independent oversight mechanisms have been overlooked in the process which has favoured only internal review mechanisms. 

The issue of oversight of law enforcement agencies is neither new to human rights nor EU law. The question of how to accommodate the activities of law enforcement agencies with fundamental rights has been something of a quest over time for European institutions and courts. As the activities of law enforcement agencies have begun to impact on fundamental rights in the EU, the Court of Justice of the European Union (CJEU) has had to examine what kind of oversight is needed. Similarly, in the Council of Europe context, the European Court of Human Rights (ECtHR) has frequently and over a long period had to engage with the issue of oversight of coercive agencies in order to determine the legality of their actions. 

Most recently for the CJEU on 8 October 2020, two judgments (C-623/17 PI and C-511/18 La Quadrature du Net) relating to oversight of state coercive bodies may be relevant also to the oversight gap of Frontex. While the subject matter of the cases is national security services and their access to personal data, the Court took the opportunity to provide guidance on what effective oversight is for agencies which have a coercive role (including specifically law enforcement). While the legal frameworks of national security services and Frontex differ considerably, the need for effective oversight is equally pressing and at the core of these judgments. In both cases fundamental rights are at risk – in the case of national security surveillance the right to privacy, in the case of Frontex actions, the Charter rights to asylum (article 18) and the prohibition on collective expulsion (Article 19). 

In the La Quadrature du Net judgment, the Court never uses the term oversight. Instead, it requires an effective review by a court or by an independent administrative body which fulfils the conditions of providing an effective remedy under Article 47 of the EU Charter of Fundamental Rights. This language is close to that of the ECtHR rulings which in any event must be taken into account by the CJEU when determining the scope of rights which appear in both the EU Charter and the European Convention on Human Rights (see in particular Charter Articles 4, 18 and 19). The ECtHR has frequently been required to determine the characteristics necessary for an effective review. It has avoided accepting the title given by states to bodies charged with reviewing security services in favour of a functional definition based on the body’s composition, powers and scope of action. Whether an entity is called a court or an independent administrative body, is not determinative of its status according to the ECtHR  (Zand v Austria 1978). Instead, independence is a key requirement which means both independence from the executive and independence from the parties (Piersack v Belgium 1982 European Court of Human Rights). 

Lack of independence of a body is apparent in the manner of appointment of its members, where the role or duties of the members make them vulnerable to outside pressure, if they can be removed or their terms ended, or their tasks and duties changed substantially by the body which appointed them (ECHR Luka v Romania 2009). The CJEU further reviewed the requirements of independence of the court or independent administrative body in HK (para 51) about oversight of law enforcement agencies regarding access to electronic data. The court or body entrusted with carrying out the review must have all the powers and provide all the guarantees necessary in order to reconcile the various interests and rights in question. 

As regards independent administrative bodies, they must have a status which enables them to act objectively and impartially and for this purpose must be free of any external influence (para 53). The CJEU clarified that the independence of a body carrying out a review means that it must be a third party in relation to the authority over which it is exercising its authority. This is necessary to ensure that the review is carried out objectively and impartially and free from any external influence. In particular, independence entails that the authority entrusted with the review must not be involved in the conduct of the (criminal) investigation and must be neutral vis-à-vis the institution under review. 

These mandatory characteristics for independence mean that administrative bodies within the hierarchy of law enforcement agencies cannot qualify as permissible oversight bodies. The arms’ length relationship which the CJEU requires to establish independence is not only structural but must also be effective and real in practice. The lack of independence of the body carrying out a prior review cannot be remedied by the independence of the body carrying out a subsequent review. 

The scope of the court or independent administrative body must be substantive. Its powers cannot be limited to checking whether the actions of the law enforcement agency are simply consistent with the law which created the agency. The body must have the investigative powers that allow it to examine the facts of any action by the agency and their compatibility with EU fundamental rights as expressed in the charter and the ECHR. Further the opinion or decision of the court or independent administrative body must be binding, notwithstanding the sensitivities which this may entail.

For the moment, Frontex does not appear to have an oversight body which meets the requirements of the CJEU or the ECtHR. This is an important failure regarding the structure of the agency which needs rectification urgently as the allegations of fundamental and human rights abuses against the agency’s actions multiply. As the current and previous controversies around Frontex actions show, setting up such an oversight body or mechanism is also in the interest of Frontex.