Push backs and diminishing standards of EU law within Frontex

Push backs and diminishing standards of EU law within Frontex

Recent events from EU border, namely Greek – Turkish border show significant limits in protecting EU external border five years after emerging of migration crisis of 2015 and 2016. As discussed by many experts, such as Sergio Carrera,[1] divergence between rule of law set by EU and Council of Europe enforced by EU institutions and agencies, and security measures introduced and implemented by EU member states.

The incident form early March 2020 form Greece raised by Danish police patrol operating within Frontex mandate in on Greek – Turkish border shows limits of EU coordinated system. According politico.eu Danish unit refused to follow order of Greek commandership not to rescue 33 migrants heading to the EU and tow them out of Greek waters. According the Danish head of police unit in Greece they have been following mandate given by Frontex.[2] This very case shows mismatch between legal basis of EU coordinated system and situation on the ground where member states takes responsibility for border protection.

EU versus member states

This reflects relations between the EU and EU member states as being framed by migration crisis are driven by two main tendencies. Firstly, it is day-to-day business related to dealing with flows of migrants when it comes to providing health, housing, and legal assistance. Secondly, it is the assistance provided to national authorities within EU and non-EU countries in case of border management and border control regime. Effective control of the EU external border has become an issue of very high importance for both the EU and its member states. Since the beginning of migration crisis in 2015, the issue of border protection has been blocked by divergent aims of the European Commission and EU member states. As the lesson learned from the case of Hungarian-Serbian border that consists of three-layer wire razor fence together with surveillance equipment, the issue of EU external border protection with limited transparency due to reluctance of EU member state act in the spirit of transparency and principles of rule of law.[3] At the same time, the border protection as well as safeguarding public policy in the EU is exclusive competence of EU member states with coordination competences of European Commission.[4]

Legal aspects

The current development on EU external border raises very important point related to border protection management and its legal justification.[5] Into what extend is it sustainable to keep the current EU border management system in operation without bringing it to legal collapse? Yet, the problem is not executed border protection on the ground, but rather legal and institutional consequences of this practice. Above mentioned case is not anything new. This has been also argued by European Court for Human Rights (ECtHR) in decision ND and NT v. Spain.[6] The court identified practice of Spain as unlawful referring to Article 4 of Protocol 4 (prohibition of the collective expulsion of foreigners) and Article 13 (effective remedy).[7] In this context, it is also worth to mention resolution 2299 (2019) of Parliamentary Assembly of Council of Europe saying in article 1 following:

“As these practices are widespread, and in some countries systematic, these “pushbacks” can be considered as part of national policies rather than incidental actions. The highest risk attached to pushbacks is the risk of refoulement, meaning that a person is sent back to a place where they might face persecution in the sense of the 1951 United Nations Convention Relating to the Status of Refugees (“the Refugee Convention”), or inhuman or degrading treatment in the sense of the European Convention on Human Rights (ETS No. 5, “the Convention”).”[8]

The problem touches the multidimensionality of the border management system. The Frontex agency has been given mandate of by the EU corresponding with Charter of Fundamental Rights of the EU.[9] The trick here is following. The EU – neither European Commission, nor Court of Justice of the EU – has competence to enforce Charter of FR. All member states have adopted the Charter into their national legal system which has to be in line with European Convention on Human Rights (ECHR). Therefore, ECfHR as exclusively institution active in field of human rights protection on European level is main point of reference. However, ECfHR stands outside the EU institutional structure and its decisions have thus rather political than legal consequences.

In this context, the resolution 2299 (2019) of PACE urges Frontex following:

 “In case of violations of human rights or international protection obligations that are serious or likely to persist, the agency’s Executive Director should suspend or terminate such operations, in line with Article 25.4 of Regulation (EU) 2016/1624 of 14 September 2016 on the European Border and Coast Guard. “

The Frontex agency has stated that the agency closely cooperates with Fundamental Rights Office, an independent body of EU structure, in order to enable to lodge a complaint referring to violation of fundamental rights.[10] Despite the fact that this legal matrix has been raised already before main influx of people in 2015 and 2016, it has very limited impact into existing practice on the ground.[11] This is the case of early March mentioned case shows that very little has been done to translate legal substance into day to day reality on the border. Having on mind that despite vast of evidences about push backs, it is politically extremely difficult to enforce implementation that is in line with fundamental rights.[12]

Operational aspects

Border management shall be implemented as a shared responsibility of Frontex and member states.[13] It means that, the member states have the primary responsibility to manage their external borders, while the agency is facilitating the application of the EU border management measures and supporting the efforts of the national authorities. Frontex currently mainly provides this support by seconded team members and team members from the home member states. These officers have a ‘dual responsibility’, more or less are responsible both to their home organisation both to Frontex during the operation, and they work under the command and control of the hosting country.[14]

The creation of a ‘standing corps’ under the new Frontex regulation is also ongoing. Contrary to the previously described structure, a part of its staff (statutory staff and long-term secondment) will be responsible only towards Frontex, while the other staff, short-term secondment and the reserve for rapid reaction will have the same dual responsibility described in the previous paragraph.

Implications for Frontex

In context of the aim of the European Commission to strengthen role of Frontex within system of border protection, such events raise question how the border protection system is ready to cope with fundamental legal challenges. Given hardness of political process resulting into reform of primary law of the EU, it is needed to make clarification: does the intensified border protection means more power to member states and de facto weakening position of EU institutions? If the answer leans to this direction, the current legal framework of Frontex is hardly sustainable. When referring to above mentioned case, one has to pay attention to mandate of this very mission. This means that operations of Frontex must be in line with fundamental rights, as is it understood by EU institutions and agencies. Thus, the Frontex is in schizophrenic position of defending EU interests: it is emergency of providing security, or respecting rule of law? As case of Danish police officers shows, there is still significant differentiation what Frontex should do and how it supposed to be implemented. According the official statement of the agency, respect to fundamental rights is still very significant element of operations[15],  this can also be derived from Article 80 of the Frontex regulation[16].

Beside political and legal dimension, the border protection has also operational dimension. This depart from fact that Frontex is composed as an – very simplified – intergovernmental organization that operates with resources provided by participating states. Said that, it the institution has limited resources to implement security measures primarily in line with Charta of Fundamental Rights since majority of operational capacity is delivered by EU member states.

Acknowledging the veracity of this statement the concerns are raised in relation to the vast majority of the deployed staff, specifically those officers who have dual responsibility and accountability described under the previous section. While as these police officers work under the command and control of the host country and in a limited extend of Frontex, they have been heavily influenced by the organizational culture and values of their sending country. This culture influences their attitude towards respect for fundamental rights. As we experienced, what the Danish police considered to be unacceptable, and clear violation of the fundamental rights, the same action was executed by the police officers coming from other member states. This phenomenon will remain with the creation of the ‘standing corps’ as well, as only a small number of the staff will have sole responsibility towards Frontex, while the others will remain the member of their national police services.

In this context, further nationalizing of Frontex institutional culture is the most probable result of similar events. It means that hand in hand with growing incidents like in February/March 2020 on Greek-Turkish border causing increased number of people aiming to enter to the EU irregularly, the Frontex agency will experience further tensions on both institutional and operational level mostly coming from the different organisational culture. This significantly jeopardises the functionality and the success of the operations and therefore may questions the need for EU support from the requesting country. As stated above, since member states plays and their cooperation is crucial one for border protection, role of agency as EU agency might be questioned in terms of moving responsibility as well as power to member states.