Frontex investigations: what changes in the EU border agency's accountability?
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30 March 2021
Frontex, the European Border and Coast Guard Agency, is currently under heavy scrutiny from multiple angles, including the European Parliament, the EU Ombudsman, and the European Anti-Fraud Office. At the same time, judicial action has been initiated vis-à-vis the agency.
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Ilaria Aversa (University of Greenwich)
Mariana Gkliati (Leiden University, University of London)
This unprecedented activation of accountability mechanisms has been sparked by allegations of the complicity of the agency in push-backs at the Greek-Turkish border, supported by evidence published by a consortium of media outlets in November 2020, including the German magazine Der Spiegel, the broadcaster ARD and Bellingcat.
This short policy brief gives a bird’s eye’s view of the recent investigations into Frontex and its activities.
This brief is up to date as of March 2021. For latest updates please follow the corresponding section of the Statewatch Observatory on Frontex.
Internal Accountability
Frontex Management Board Working Group
Purpose: Investigation on alleged Human Rights violations in the Aegean Sea Operations
Investigative body: ad hoc Working Group of the Frontex Management Board (sub-groups on: ‘clarification of the reported incidents’, ‘analysis of the legal framework’ and ‘revision of the current reporting system’).
Members: Member State representatives from Germany, France, Greece, Norway, Romania, Switzerland, Sweden, Hungary, European Commission.
Started: November 2020.
Status: Ended March 2021.
Final Report: Frontex Management Board Working Group, Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea, 05 March 2021.
Main conclusions:
The Management Board overall found no substantial evidence of fundamental rights infringements. However, five cases are noted to need further investigation.
Three cases were not investigated due to the reluctance of the Agency to provide access to necessary documentation.
The Management Board has invited the Frontex Executive Director, Fabrice Leggeri, to provide the documents as soon as possible.
The Management Board further pointed out the following:
- Not every detected attempt of irregular border crossing can automatically be considered as an asylum case. However, the right of access to asylum must be guaranteed regardless of the circumstances.
- Boats must not be left adrift unable to navigate regardless of other vessels in the vicinity.
- An application of the obligation to suspend or terminate an operation due to serious and consistent violations would not be justified in this case.
Main issues highlighted in the Management Board Report:
- Need to improve the reporting and monitoring system
- Lack of clarity in the whistleblowing system of “serious professional wrongdoings”
- Border Guard Team Members are not included in the whistleblowing scheme
- There is no “Compliance Centre” for Team Members
- Team Members can only report Serious Incidents Category 4 (alleged violation of fundamental rights) to the Frontex Situation Centre.
- Team Members find it very hard to categorize serious incidents correctly. As a result they avoid reporting under Categories 1 and 2.
Recommendations to act on the reported issues:
- Improve quality and quantity standards in Technical Equipment Mission Reports and Incident Reports.
- Ensure that every Operational Plan includes a transparent reporting mechanism.
- Revise and enhance the minimum requirements for the experts in the Frontex Situation Centre handling serious incident reports and provide additional training for the experts.
- The Serious Incident Report Category 4 (alleged violation of fundamental rights) should be directly reported to the Fundamental Rights Officer for their independent follow up in accordance with Article 109(2)(b) of the EBCG Regulation.
- The Incident must be investigated without delay. Any retrograde interference to adjust operational data shall be avoided.
- All actions taken by Frontex-owned or co-financed assets should be, where feasible, documented by video consistently.
- The question of a proper implementation of Article 46 of the Regulation (EU) 2019/1896 (obligation of the Executive Director to suspend, terminate or not launch operations if the operational plan is not respected) must be taken into account. The existing legal framework only offers Frontex limited options for action in the event of reported and established violations. The most important measure is Article 46, which is a measure of last resort. In the sense of proportionality, it is necessary to discuss measures and proceedings below the threshold of Article 46.
- The reporting system should be combined with a newly introduced culture, where failure is acknowledged and addressed to create awareness of and sensitiveness towards possible misconduct.
Other outputs of the investigation:
- Preliminary Report of Frontex Management Board Working Group, Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea, 19 January 2021
- Executive summary of preliminary report
- Conclusions of the Management Board’s meeting on 20-21 January 2021 on the preliminary report of its Working Group on Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea
- Management Board Decision 39/2020 of 26 November 2020 on the establishment of the Management Board Working Group on Fundamental Rights and Legal and Operational Aspects of Operations
Other relevant documents:
European Commission, The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders
Frontex Note, Management Board meeting, 10 November
External Accountability
European Parliament Frontex Scrutiny Group
Purpose: Initial four-month enquiry on the respect by Frontex of human rights in operations in the Aegean, followed by mandate to “oversee all aspects of the functioning of Frontex”.
Investigative body: European Parliament, LIBE Committee, Special Scrutiny Group on Frontex
Members: two members of each Party represented in the European Parliament:
EPP: Ms Roberta Metsola and Ms Lena Düpont; S&D: Ms Bettina Vollath and Mr Javier Moreno Sanchez; Renew: Mr Malik Azmani and Mr Dragos Tudorache; ID: Mr Nicolas Bay and Mr Peter Kofod; GREENS/EFA: Mr. Erik Marquardt and Ms Tineke Strik; ECR: Mr Patryk Tomas Jaki and Mr Jorge Buxadé Villalba; The Left - GUE/NGL: Ms Sira Rego and Ms Cornelia Ernst.
Started: February, 2021
Status: Ongoing
Summary of First Session of Scrutiny Group:
In its first session on 5 March, the Scrutiny Group questioned Frontex Executive Director Fabrice Leggeri and Commissioner Ylva Johansson.
The MEPs’ questions concerned the monitoring and reporting mechanisms of the agency, the legal framework concerning border management and search and rescue, and their commitment to cooperate with the investigation of the Scrutiny Group and implement that recommendations this body will issue.
ED Leggeri main points:
- “I am personally committed to cooperating with the Scrutiny Group. You will be granted access to the documents that you need and I offer the possibility for the members of the Scrutiny Group to visit the headquarters”
- “The recruitment for new Fundamental Rights Officer is ongoing and the new one is expected in March. The 40 Fundamental Rights Monitors are expected at the end of March - beginning April, according to interim Fundamental Rights Officer. It is important that they are recruited at the highest possible grade.”
- “Termination of operations (in Greece) is the last step. We have suspension. We can reduce the operational footprint, what I did in Hungary in 2017. But this was not communicated well. We need to improve the communication.”
- “In Hungary [...] the risk is that by design (of the Hungarian Legislation that is not complying with EU standards) Frontex would participate in violations. This is the difference with Greece.”
Commissioner Johansson main points:
- “Frontex is the most important agency in the European Union. With such power also comes responsibility.”
- “Protecting our borders and our values go hand in hand. Shortcomings should be urgently addressed. I am happy to hear that many things are being addressed now.”
- “The Commission cannot give guidance to the agency or the ED. This is the responsibility of the Management Board and the Commission only has two seats in it.”
- “It is not the role of the Commission to interpret the legal aspects. This is the role of the Court of Justice. But we will make some clarification on: illegal entry, possibility to apply for asylum, and that no one should be refouled.”
- “The role of the Commission is to ensure that agency have the best possibilities to carry out their role and comply with the Regulation.”
- “I have the political responsibility over Frontex, but we don’t have competence to issue guidance or instructions. I am responsible for how the two Commission representative in the Management Board operate."
- “I am very concerned that we have repeated reports from reliable sources about illegal and sometimes violent push-backs in Greece [...] but this is for another discussion for another time.”
Recording of the First Session of the Scrutiny Group : European Parliament (2021) Committee on Civil Liberties, Justice and Home Affairs
Relevant documents:
Statewatch, Pushbacks scandal: Frontex correspondence with national and EU authorities
European Commission, Letter to Mr Leggeri, 18 December, subject: Your letter of 4 December 2020 (ref: CAB/KARO/10563/2020
Fabrice Leggeri, Answers to written questions following the LIBE Committee meeting 1 December
European Anti-fraud Office (OLAF)
Purpose: Investigation into alleged misconduct and allegations of migrant pushbacks.
Investigative body: European Anti-fraud Office (OLAF).
Started: December 2020
Status: Ongoing
Summary of the investigation
On 07 December 2020, OLAF raided the offices of Frontex Executive Director Fabrice Leggeri, as well as his head of Cabinet Thibauld de La Haye Jousselin, as part of an investigation into allegations of migrant pushbacks.
According to Der Spiegel, the investigation involves a possible case of fraud involving a service provider, allegations of workplace harassment, and information withheld from the Fundamental Rights Officer. Moreover, the magazine reports that internal documents suggest that Leggeri’s entire leadership style is under scrutiny.
Relevant reading
Scandals Plunge Europe's Border Agency into Turmoil
European Ombudsman I
Purpose: Investigation on Frontex dealing with a request for public access to documents regarding tracking data of Frontex vessels.
Investigative body: European Ombudsman
Started: February 2021
Status: Ongoing
Summary of the investigation
The Ombudsman opened an inquiry following a complaint by a Member of the European Parliament. The MEP requested from the agency tracking data for 16 vessels used in Frontex maritime operations. Frontex refused to disclose the requested information claiming public security risks. The complaint concerns the review of this decision.
The Ombudsman is waiting for Frontex response to her request of clarification over the
tracking information of Frontex vessels.
Meanwhile, Frontex has won a case at the General Court of the EU against activists Luisa Izuzquiza and Arne Semsrott, who sought information about Frontex ships in connection with operations at the EU’s external borders. The complaint concerned the publication of the names, flags and types of vessels used in Operation Triton (now replaced by Operation Themis).
Relevant documents:
European Ombudsman, How the European Border and Coast Guard Agency (Frontex) dealt with a request for public access to documents concerning tracking data of vessels used in Frontex maritime operations
Relevant reading:
Frontex: Billion-euro border agency sues transparency activists
European Ombudsman II
Purpose: Investigation how the European Border and Coast Guard Agency (Frontex) deals with complaints about alleged fundamental rights breaches through its 'Complaints Mechanism'.
Investigative body: European Ombudsman
Started: November 2019
Status: Ongoing
Summary of the investigation
This is an own initiative inquiry by the European Ombudsman into the effectiveness and transparency of the complaints mechanism of the agency, and the role of the Fundamental Rights Officer.
Frontex has responded to the queries of the Ombudsman. The Ombudsman's inquiry team is currently analysing the agency’s replies. It will also hold an inspection meeting with Frontex representatives.
The Frontex Executive Director, Leggeri, has stated that a remote access to the documents needed for the evaluation is being arranged. In the meantime, Frontex provided a short table with the overall yearly complaints received through their Complaint Mechanism.
Relevant documents:
O’Reilly (2020) How the European Border and Coast Guard Agency (Frontex) deals with complaints about alleged fundamental rights breaches through its 'Complaints Mechanism’.
European Ombudsman III
Purpose: Investigation on Frontex failure to maintain a public register of documents and other issues related to public access to documents.
Investigative body: European Ombudsman
Started: March 2020
Status: Ended February 2021
Final report: O’Reilly (2021) Decision in case 2273/2019/MIG on the European Border and Coast Guard Agency’s (Frontex) public register of documents.
Main conclusions:
- The Ombudsman concludes that Frontex must set up an effective public register of documents that is user friendly, complete and regularly updated following case-by-case assessments of each document held by the agency. Frontex has accepted this conclusion and committed to a “roadmap” to meet the requirements by 2022.
- The most problematic issue is the access to documents for non-EU residents. However, the Ombudsman accepts Frontex’s response on the lack of a legal obligation to provide such documents.
- Frontex needs to share data on how many access to documents requests they receive by third-country nationals.
- The response of the agency that they only receive few requests from non-EU residents needs further investigation on its validity. In its response, Frontex did not offer a specified number of requests, which have been accepted versus those which have been rejected. This also needs further investigation, according to the Ombudsman.
Relevant documents:
European Ombudsman, The European Border and Coast Guard Agency’s failure to maintain a public register of documents and other issues related to public access to documents
Related documents:
Statewatch, EU: New transparency obligations for justice and home affairs agencies following Statewatch complaints
Statewatch Observatory on Frontex, Complaints to the European Ombudsman on Europol, Frontex and access to documents: documentation
European Ombudsman IV
Purpose: Investigation how Frontex deals with requests for public access to documents
Investigative body: European Ombudsman
Started: October 2020
Status: Ongoing
The complaint concerns public access to documents by Frontex, and difficulties related to the online portal of the agency dedicated for access to documents requests. The investigation concerns two joined cases.
Relevant documents:
European Ombudsman V
Purpose: Investigation on the failure of Frontex to reply to an administrative complaint
Investigative body: European Ombudsman
Started: January 2021
Status: Ongoing
Related documents:
- The European Border and Coast Guard Agency (FRONTEX) failure to reply to an administrative complaint
Judicial Accountability
Preliminary action against Frontex pursuant to Art. 265 TFEU
- Court: Court of Justice of the European Union
Lawyers: Omer Shatz and Iftach Cohen (Front-Lex), Anastasia Ntailiani (Legal Centre Lesvos) - Submitted: February 2021
- Status: Ongoing
Summary of the legal action:
This is the first legal investigation against Frontex. The lawyers ask Frontex to suspend or terminate its operations at the Aegean in light of serious and persistent human rights violations in accordance with Article 46(4) EBCG Regulation.
Main grounds for the Action:
- No Due Diligence: FRONTEX’s Decision to Operate in a Member State with Suspended or Dysfunctional Asylum System and Alleged Crimes Against Humanity
- No Specific Operational Plan: No Monitoring Mechanism; Failure to Investigate
- Structural Failures of FRONTEX Irrespective of the Involved Host and Home Member States
- Systematic, Widespread and Serious Violation of Fundamental Rights Obligations
Relevant documents:
The First Legal Action v. Frontex: Press Release
The First Legal Action v. Frontex the Full Document
Communication to the Office of the Prosecutor of the International Criminal Court - SJAC
Court: International Criminal Court
Lawyers: Mohammad Al Abdallah, Roger Lu Phillips, Nessma Eman Bashi
Submitted: January 2021
Status: Ongoing
Summary of the legal action:
The Syria Justice and Accountability Centre (SJAC) submitted a communication to the ICC based on Article 15 of the Rome Statue, asking her to investigate crimes against humanity against Syrian refugees in Greece. The lawyers submit evidence of systematic human rights abuses against refugees on Greek territory and at reception and identification centres on the Aegean islands. The evidence also points at Frontex agents participating in or being complicit in push-backs by the Greek authorities. The case is at the Office of the Prosecutor who will decide whether to prosecute.
Relevant documents:
Communication to the Office of the Prosecutor of the International Criminal Court Under Article 15 of the Rome Statute, The Situation in Greece: Systematic human rights abuses against refugees on Greek territory and at reception and identification centres on the Aegean islands
Communication to the Office of the Prosecutor of the International Criminal Court – Sea deaths
Court: International Criminal Court
Lawyers: Omer Shatz and Dr Juan Branco,
supported by Paula Stuurman, Joanna Pickering, Elise Lauriot Dit Prevost, Maxine Both, Matthew Abbey, Jeanette Trang, Milena Reig-Amette and Francesco Pinotti.
Submitted: 2019
Summary of the legal action:
The lawyers submitted a communication to the ICC based on Article 15 of the Rome Statue, asking her to investigate crimes against humanity regarding the EU migration policies in the Central Mediterranean and Libya between 2014 and 2019. The lawyers request that EU member states that played a prominent role in the refugee crisis, namely Italy, Germany and France, are prosecuted for the deaths of thousands of migrants who drowned in the Mediterranean fleeing Libya. Evidence is also submitted about Frontex’s problematic practices and their consequences for fundamental rights. The case is at the Office of the Prosecutor who will decide whether to prosecute.
Relevant documents
Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to Article 15 of the Rome Statute, EU Migration Policies in the Central Mediterranean and Libya (2014-2019)
UN Special Rapporteur on the human rights of migrants
The UN Special Rapporteur has decided to dedicate his forthcoming report to the 47th session of the Human Rights Council to explore ways and means to address the human rights impact of pushbacks of migrants.
This investigation is not directly focused on Frontex. The report investigates current harmful practices and trends at international borders and explores ways and means to address the human rights impact of pushbacks of migrants on land and at sea. Stakeholder submissions, however, have also focused on the role of Frontex in harmful practices of border control in the Aegean. For this reason, it can be expected that the Special Rapporteur also looks into issues regarding the agency. The Special Rapporteur has asked submissions to focus on specific questions including case studies and specific examples of current practices and challenges.
Purpose: Investigation on pushbacks and their impacts on migrants’ human rights
Investigative body: Special Rapporteur on the human rights of migrants
With inputs by: Amnesty International, Human Rights Watch, ECCHR, EuroMed Rights, GLAN (updated 15th March, 2021)
Started: February 2021
Status: Ongoing
Related Documents
Inputs from stakeholders:
Focusing on: how the overarching objectives of limiting the number of asylum applications and irregular arrivals relate to fundamental rights violations; the accessibility, independence and effectiveness of complaint mechanisms and internal reporting mechanisms; the monitoring, control and supervision of border control and policing agencies; the need for independent border monitoring mechanisms with meaningful investigative and enforcement powers; how a stronger formal role might be afforded to NGOs, journalists and independent observers in monitoring and reporting mechanisms; and the availability of effective remedies in multi/supra-national operations.
Focusing on: Bosnia-Herzegovina, Croatia, Cyprus, France, Greece, Italy, Malta, Slovenia and Spain.
Focusing on: Cyprus recent alleged pushbacks of Syrian and Lebanese refugees to Turkey and Lebanon.
GLAN:
Focusing on: Migration and financial cooperation to implement illegal pushbacks; Pushbacks by proxy (focusing on Libyan Coast Guard); Constructive refoulement: Prosecution and criminalisation of SAR NGOs to diminish their capacity to conduct rescue at sea; The weaponisation of life-saving equipment for pushbacks (focusing on Aegean Operations); Collective expulsions as systemic discrimination (focusing on Greece’s pushbacks toward Turkey); Pushbacks as enforced disappearances of migrants (focusing on Greece); Private refoulement: The use of private merchant vessels to perform interdictions; and Aerial refoulement.
Focusing on: Croatia, Cyprus, France, Greece, Malaysia, Malta, USA, Frontex
Focused on: The systemic nature and embeddedness of pushbacks in the EU legal framework for migration and external border control.
Image: Frontex
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