Briefing: External action: Frontex operations outside the EU

Topic

Borders Immigration Asylum Frontex

Country/Region

EU Albania Montenegro Macedonia Bosnia & Herzegovina Serbia

11 March 2021

The EU has negotiated five agreements with states in the Balkans that allow Frontex operations on their territories, and most of the agreements have now been approved by both sides. This briefing looks at the main provisions of those agreements, highlights key differences and similarities, and argues that they will likely serve as a template for future deals with states that do not border the EU, as made possible by the 2019 Regulation governing Frontex.

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For an overview of the key points of the agreements, see the table at the end of this article, or here as a PDF.

Frontex launched its first official joint operation on non-EU territory at Albania’s border with Greece in May 2019. Still ongoing today, this was the first operation resulting from a series of Status Agreements between the EU and a number of Western Balkan states – Albania, Montenegro, Serbia, Bosnia and Herzegovina, and North Macedonia.

These agreements make it possible for Frontex to undertake operations on those other states' territories. Signed in accordance with the agency’s 2016 Regulation, 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. Since the entry into force of Frontex’s 2019 mandate, the EU can now also make such agreements with states that do not border EU territory.

The contents of the status agreements, all based on a template document produced by the Commission, are very similar, with small but important differences emerging from the negotiation procedures with each state, explored below.

The first agreements in context

The five Balkan states targeted for the first agreements make up what is seen by officials as a “buffer zone” between Greece and other Schengen states, and they have long been embroiled in the bloc’s border policies. Through long negotiations over accession to the Union, Western Balkan states are at various stages of approximating domestic law with the EU’s legal ‘acquis’, involving substantial amendments to migration and asylum systems.

In theory, these systems must match up to EU legal and fundamental rights standards in order to allow accession, though violence against migrants is well documented on both sides of these “coterminous borders”. The so-called Balkan Route is the site of well-documented abuses suffered by people on the move, recently compiled and published in a ‘Black Book of pushbacks’ which detail violence perpetrated by border agents, member state police and soldiers. Pushbacks from Croatia and Hungary are particularly notorious, with Frontex finally withdrawing its support for operations in Hungary in January this year due to the state’s violation of a European Court of Justice ruling against pushbacks into Serbia.

The agency had long-insisted that its presence discouraged fundamental rights violations - a far less credible claim in the wake of allegations of Frontex complicity in serious incidents in the Aegean, including possible pushbacks.

Frontex expands external operations while future agreements remain on hold

Following deployment of officers to Montenegro’s border with Croatia in July, Frontex launched a second operation in Montenegro in October. The third executive operation outside the EU (and the second in Montenegro), the aim of this activity is “to tackle cross-border crime at the country’s sea borders, including the smuggling of drugs and weapons, smuggling of migrants, trafficking in human beings and terrorism”.

The agency says it will provide aerial surveillance, deploy officers from EU member states, and provide technical and operational assistance with coast guard functions in international waters, “including search and rescue support, fisheries control and environmental protection”.

The agreement with Serbia was approved by the European Parliament in February this year, along with the agreement with Montenegro. Three presidential entities need to sign the agreement in order for it to be ratified by Bosnia and Herzegovina’s government; the Serb entity has so far refused to do so.

Meanwhile, the agreement with North Macedonia was due to be tabled in the European Parliament this autumn, but negotiations have been held up, in part by Bulgaria’s objection to the language in which it is written. According to the site European Western Balkans, “Bulgaria does not recognise the language of North Macedonia as ‘Macedonian’”, but “as a dialect of Bulgarian”. It will apparently take “a change in terminology regarding Macedonian language in order to allow progress in drafting a final negotiating framework”. While negotiations are stalled, the agreement cannot be considered by the European Parliament.

Once the status agreements are in force, Frontex operations are launched in accordance with an operational plan agreed with each state. These plans include the circumstances under which Frontex staff can use executive powers and other details of the operations not available elsewhere. 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.

Fundamental rights

Under article 8 of the agreements with Albania and Bosnia and Herzegovina (article 9 of the other agreements) all parties are obliged to:

“[H]ave a complaint mechanism to deal with allegations of a breach of fundamental rights committed by its staff in the exercise of their official functions in the course of a joint operation, rapid border intervention or return operation performed under this agreement”.

Both Frontex and the host state must operate such a complaints mechanism, to handle allegations against their own team members. Frontex’s complaint mechanism is currently the subject of an Ombudsman inquiry, following years of research showing it up as inaccessible and ineffective. Details of updates bringing the mechanism into line with Frontex’s 2019 Regulation have not yet been made public, although the rules set out in that Regulation have problems of their own. It is noteworthy that the agreements do not explicitly require an independent complaints mechanism.

On the question of parallel complaints mechanisms for Frontex officers and host country officers, a Frontex spokesperson explained:

“The complaints team within Frontex Fundamental Rights Office has been working since 2019 on the concept of how to deal with complaints concerning Frontex activities in [Albania]. For that purpose, the FRO team met with competent national authorities in Albania in October 2019. Both parties agreed on the draft of a Memorandum of Understanding (MoU), the purpose of which is a coordination between both complaints mechanisms. The MoU draft proposal was shared with Albanian authorities for their consideration on September 2020 and finalization of the modalities.

The draft of this MoU will serve as basis for other third countries arrangements on the coexistence of complaints mechanisms, such as the case for Montenegro.”

An extra article 3

The agreements with Montenegro, North Macedonia and Serbia contain an article not included in the agreements with Albania and Bosnia and Herzegovina. From article 3, on launching an action:

“The Agency may propose launching an action to the competent authorities of [the host state].

The competent authorities of [the host state] may also request the Agency to consider launching an action.”

The launching of any action requires the consent of competent authorities of the host-state and of Frontex (Article 3(2) of the status agreements), while any disputes over the content of the status agreements shall be resolved between the non-EU state in question and the European Commission (Article 11).

Privileges and immunities of the members of the team

Members of teams deployed in each of the host states shall enjoy immunity from the criminal, civil and administrative jurisdiction of the host state, for all acts carried out in the exercise of official functions, where these are committed in the course of actions contained in the operational plan (articles 6 or 7). It is at the discretion of the executive director of Frontex (currently Fabrice Leggeri) to determine whether acts were committed in the course of actions following the operational plan. This immunity may be waived by the team members’ home state – that is to say, the state of nationality of a Frontex team member, such as Spain or Germany.

While the agreements with Albania, Montenegro, and North Macedonia include the provision that the executive director’s decision will be binding upon the authorities of the host state, no such article is found in the agreements with Bosnia and Herzegovina and Serbia.

A further difficulty with this article was highlighted earlier this year in an internal Frontex report: Protocol No 7 annexed to the Treaty of the European Union (TEU) and to the TFEU, under which the privileges and immunities Agency and its statutory staff are covered, is not applicable outside of the EU. The Commission has not yet responded to a request for comment on an investigation said to be underway into this issue.

Acting on behalf of the host non-EU state

Across the status agreements, members of the teams are limited to performing tasks and exercising powers in the host territory in the presence and under instructions of the host state’s border guards or other relevant authorities. The host state may authorise members of teams to act on its behalf, taking into consideration the views of the agency via its coordinating officer. The agreement with Serbia contains extra emphasis (article 5):

“the competent authority of the Republic of Serbia may authorise members of the teams to act on its behalf as long as the overall responsibility and command and control functions remain with the border guards or other police officers of the Republic of Serbia present at all times.”

This agreement also emphasises that “the members of the team referred to in paragraphs 1 and 3 to 6 do not include agency staff”.

Members of teams shall be authorised to use force, including service weapons as permitted by the host state, home state, and Frontex. Each host state may authorise members of the team to use force in the absence of border guards or other relevant staff under article 4 (6) – Albania and Bosnia and Herzegoviina – or 5 (6) – Montenegro,

Access to databases

The agreements with Albania and Montenegro allow the host state to authorise members of the team to consult national databases if necessary for the operational aims or for return operations. Serbia and Bosnia and Herzegovina’s status agreements are more cautious, allowing certain data from national databases to be shared at the request of a member of the team, provided it is needed to fulfil operational aims as outlined in the operational plan. The agreement with Serbia contains, once more, additional provisions: “members of the team may be communicated only information concerning relevant facts which is necessary for performing their tasks and exercising their powers”, though it also includes in the subsequent paragraph:

“For the purposes of fulfilling operational aims specified in the operation plan and the implementing actions, the competent authority of the Republic of Serbia and members of the team may exchange other information and findings”.

Language on discrimination

The agreement with Serbia once again follows slightly different wording to the others in terms of the prohibition of discrimination. The agreements with Albania, Bosnia and Herzegovina, Montenegro and North Macedonia recite:

“While performing their tasks and exercising their powers, they shall not arbitrarily discriminate against persons on any grounds including sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation or gender identity.”

However, the agreement with Serbia does not include any reference to gender identity.

Obligation to give evidence as witnesses in criminal proceedings

Under each of the agreements with Albania, Bosnia and Herzegovina, North Macedonia and Serbia, members of the team shall not be obliged to give evidence as witnesses. Not only does the agreement with Montenegro omit this provision, it also outlines:

“Members of the team who are witnesses may be obliged by the competent authorities of Montenegro, while respecting paragraphs 3 and 4, to provide evidence through a statement and in accordance with the procedural law of Montenegro.”

Frontex and home state obligation not to jeopardise criminal proceedings

The agreement with Serbia is the only agreement not to include an obligation on the agency and home state of a team member 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.

Lingering uncertainty

On top of uncertainty over when the agreements with North Macedonia and Bosnia and Herzegovina might be completed, questions remain regarding the accessibility of complaints mechanisms and the application of rules governing privileges and immunity of team members, even in Albania and Montenegro, where operations have been launched already.

Additionally, since the entry into force of its new regulation in 2019 and the removal of provisions limiting Frontex’s extra-EU operations only to neighbouring states, the EU can now conclude status agreements with countries not bordering the EU. The implementation of these agreements, as well as their contents, will likely set a precedent for negotiations and operations further afield.

Jane Kilpatrick

Table: comparison of the key points of the agreements (also available here as a PDF)

Albania

Bosnia and Herzegovina

Montenegro

North Macedonia

Serbia

Suspension and termination of an operation

ARTICLE 5

Both Frontex executive director and the Republic of Albania may suspend or terminate an action if status agreement or operational plan are not respected.