Border externalisation: Agreements on Frontex operations in Serbia and Montenegro heading for parliamentary approval
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On 29 January the civil liberties committee of the European Parliament (LIBE) approved the conclusion of status agreements on the actions on the European Border and Coast Guard Agency (Frontex) on the territory of two neighbouring non-EU states - Serbia and Montenegro.
This approval follows the entry into force in May last year of a status agreement with Albania, while agreements with Bosnia and Herzegovina and North Macedonia still need to be ratified by national governments and given assent by the European Parliament. The agreements allow Frontex to undertake operations on those other states' territories.
The agreement with Serbia was approved by the LIBE committee by 44 votes to ten, while the agreement with Montenegro was approved by 43 to nine. Representatives from the Conservatives & Reformists, Identity and Democracy, European People's Party and Renew Europe voted consistently in favour of both agreements, while the Greens voted against the approval of both.
The Socialists & Democrats were in favour of approving the agreements, though one rapporteur, Silvie Guillaume, was absent in the vote concerning Montenegro. The European United Left group was broadly against the approval of both, though Spanish MEP Pernando Barena Arza did not vote on the agreement with Montenegro.
The agreements will now have to be voted on in a plenary session of the Parliament. That vote was due to take place today, 11 March, but has been postponed to a future date. The Parliament has cut its plenary session short in response to the coronavirus outbreak.
Fundamental rights requirements
The parliamentary rapporteur for the agreements, Austrian MEP Bettina Vollath (Socialists & Democrats) uses the 'explanatory notes' to the Committee's Draft Recommendation to state that that while the agreements themselves are consistent with the EU's template status agreement on Frontex operations in non-EU states, any future agreements should only be reached after a fundamental rights assessment of the state in question.
Negotiations between the EU and each of the five countries with which Frontex is to cooperate were concluded under the agency's 2016 mandate. However, the rapporteur emphasises that they should adhere to provisions in the 2019 regulation, particularly concerning fundamental rights monitoring of operations.
One down, four to go
The agency's 2016 mandate authorises the agency to carry out activities in non-EU states which neighbour one of the bloc's external borders. Under the 2019 Frontex Regulation, which entered into force on 4 December last year, the EU will be able to conclude such status agreements with non-neighbouring third states.
There are now five such status agreements between the EU and non-EU states; one has been fully approved, while the other four are awaiting parliamentary approval. Under all the agreements, Frontex team members can be deployed to a non-EU state's territory and exercise executive powers there. So far, all the agreements concern states which share a border with one or more EU member states, although Frontex has recently suggested that the EU conclude one with Senegal.
The agreement with Albania was concluded on 12 February 2019 and Frontex deployed forces to the country in May. See the table at the bottom of this article for a timeline of each status agreement.
According to Vollath, the status agreements are a formal measure to ensure transparency and democratic oversight of actions taken by the agency in third countries. However, much of the detail of operations carried out by Frontex in those states will be contained in an "operational plan", signed by Frontex's executive director and a competent authority of the state in question.
These plans are not systematically made public and although it is possible for the public to request their release, Frontex can refuse access to them. These non-public documents contain important provisions on fundamental rights and data protection, as well as details on the aims and objectives of the agency's operations.
According to the provisions on fundamental rights in the status agreements themselves, the agency's executive director can suspend or terminate actions in the state (Article 6 of each status agreement). They also outline the criminal and civil liability of the agency and its staff for actions taken in those states.
Article 7 of the status agreements with Serbia and Montenegro grants Frontex team members' immunity from the criminal jurisdiction of those states for "acts performed during and for the purpose of their official functions in the course of the actions carried out in accordance with the operational plan". The decision on whether or not any act has been committed in the course of Frontex's activities rests with the executive director.
The closed nature of these plans raises concerns over Frontex's discretion concerning its activities. Despite known fundamental rights violations at the borders of EU member states, the agency has never suspended an operation due to fundamental rights concerns.
Ignoring fundamental rights advice
Investigative journalist Apostolis Fotiadis recently revealed that senior agency authorities have "consistently disregarded evidence of abuse of asylum seekers on the Hungarian-Serbian border." In 2016, Frontex's executive director ignored advice from the agency's Fundamental Rights Officer to suspend operations on the Hungarian-Serbian border in order to avoid complicity in rights violations by Hungarian officials.
Green MEPs, who voted against the status agreements with both Serbia and Montenegro, have highlighted the dilemma of balancing the possible benefits of the presence of Frontex agents bound by fundamental rights obligations against the ideological and practical impact of externalising the EU's border controls.
If Frontex complies with fundamental rights standards, cooperation with non-EU states' border control agencies could lead to an improvement in conditions. However, "the most important impact is on those wishing to access asylum procedures", says rapporteur Tineke Strik. "Agencies' cooperation with those countries is advanced, but cooperation on asylum processes is not so yet - this is the wrong order".
Ultimately, prioritising border control and security measures in cooperation with non-EU states will have a negative impact on those needing to access the EU from states which do not yet have sufficient protection procedures, as Fotiadis' reporting has shown. Strik notes, however, that she is "not in principle against this cooperation, but only once states have first reached safeguards. Then it is a different matter".
Vollath, the parliamentary rapporteur, emphasised the negotiations with Serbia, Montenegro, North Macedonia, Bosnia and Herzegovina and Albania have led to differences between each of the agreements they have with the EU.
The agreement with Serbia is the only such agreement not to include an obligation on the agency and home member state of an individual team member (for example, France) to "refrain from taking any measure likely to jeopardise possible subsequent criminal prosecution of the member of the team by the competent authorities" of the host non-EU state.
Only the agreement with Montenegro obliges members of Frontex teams to give evidence as witnesses in criminal proceedings. The other status agreements assert that "members of the team shall not be obliged to give evidence as witnesses".
Legal uncertainty could arise from differences in the wording of the agreements on the right of members of the agency's teams to act on behalf of the third country they are hosted in. There is similar inconsistency between the agreements' language on discrimination. Vollath foresees "difficulties or divergences" arising from these inconsistencies.
Content of the agreements
All five agreements allow the agency to carry out joint operations and rapid border interventions on the states' borders, where those borders are coterminous with those of an EU member state or states. Frontex can also assist those states with deportation operations from EU member states to those countries.
In her approval of the status agreements, rapporteur Vollath stresses that these return operations relate solely to deportations from EU territory, an important clarification, given that the Commission's original proposal for what became the 2019 Frontex Regulation involved Frontex assisting in the coordination of return operations from one non-EU country to another - a proposal that was popular among member states but refused by Parliament.
When the Regulation was finally approved, Poland published a statement saying that it "strongly disfavours the removal of provisions expanding the European Border and Coast Guard Agency's (Frontex) mandate regarding the support of return operations from third countries". Hungary expressed disappointment that:
"By omitting the competence of the Agency to assist third countries in return procedures, which would be particularly important to address the challenging migration situation in the Western Balkan region, the EU has weakened its role and possibilities in controlling illegal migration outside the EU".
Similar sentiments were expressed by Poland and Slovenia.
Externalisation and return
For the European United Left group's shadow rapporteur Sira Rego, the decision to vote against the approval was based on the fact that "deploying of the Agency outside EU territory constitutes one more step in the direction of externalising border control. Moreover, there is the possibility of the Agency to participate in return operations towards the third countries."
"Especially in view of the upgraded mandate of the Agency and the, believed to be deliberate, lack of clarity in the wording of the Agreement, we even have more concerns as it seems that the Agency will be able to conduct/be involved in return operations of third country nationals who are not of the nationality of these concrete third countries with which the Agreements are signed. Until now, the understanding was that EBCG would be involved in operations returning nationals of the country with which the Agreement is signed to this country. However, now it seems possible that the return operations could also be for nationals of other third countries, for example not only returning a Serbian to Serbia but also an Afghan to Serbia."
According to the status agreements, the launching of any action requires the consent of competent authorities of the host-state and of Frontex, while operational plans will have oversight by the European Commission (Article 3(2), Article4(1), and Article 11 of the status agreements ).
Frontex status agreements with non-EU states - timelines and links
Council Decision authorising opening of negotiations Council Decision on the signing of the Status Agreement Parliamentary consent Council Decision on the conclusion of the Status Agreeement Albania 6 October 2017 10 July 2018, Council Decision (EU) 2018/1031 15 January 2019 12 February 2019, Council Decision (EU) 2019/267 Bosnia and Herzegovina 6 October 2017 9 April 2019, Council Decision (EU) 2019/634 Not yet granted 26 March 2019 (awaiting Parliament consent) Montenegro 6 October 2017 19 March 2019, Council Decision (EU) 2019/453 Not yet granted 12 March 2019 (awaiting Parliament consent) North Macedonia 23 February 2017 28 September 2018 Not yet granted 25 September 2018 (awaiting Parliament consent) Serbia 23 Februray 2017 22 January 2019, Council Decision (EU) 2019/400 Not yet granted 15 January 2019 (awaiting Parliament consent)
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