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EU: Accountability measures for Frontex: critical experts weigh in

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20 May 2021

Two new papers, from the Meijers Committee and the European Council on Refugees and Exiles (ECRE), set out ways to improve the accountability and transparency of EU border agency Frontex.

The papers have been published in response to the multiple investigations and inquiries launched following the publication of allegations that Frontex knew of, or was directly involved in, pushbacks from Greece to Turkey.

It has long been recognised by critics that Frontex is not subject to adequate legal, political or administrative scrutiny, and as the Meijers Committee note in their paper:

"The atypical and largely ad hoc forms of investigation and accountability that are being used in the aftermath of the allegations against Frontex in relation to the pushbacks at the external border in Greece attest to this fact."

Both the Meijers Committee and ECRE set out multiple proposals that could remedy some of these faults. The recommendations from the papers are set out below.

Meijers Committee: Frontex and pushbacks: obligations and accountability (link)

The Meijers Committee makes the following recommendations:

1. Ensure that in all Frontex operations at sea, regardless of the maritime zone and regardless of the nature of the operation (interception, prevention of departure, search and rescue), no migrant is returned or dissuaded from entry without full respect for procedural rights established in human rights law and the Schengen Borders Code.
2. This means respect for the following rights: the right to access interpreters and legal assistance, the right to bring arguments against return, the right to appeal, the obligation to identify the migrants and the obligation to refuse entry only by standardised.
3. Ensure that in all Frontex operations at sea, migrants have effective access to opportunities to ask for asylum.
4. Ensure that the recommendations above are included in all Operational Plans of Frontex.
5. Ensure that all officers participating in Frontex operations have the possibility to report human rights-relevant incidents they witness without repercussions to their reputation or career. Ensure that a failure to meet their obligation to report triggers consequences.
6. Ensure that reports of human rights-relevant incidents are treated with priority and include the Fundamental Rights Officer.
7. Ensure that Frontex, especially its personnel on the ground, is trained to take measures when they are made aware of (risks of) human rights violations. Ensure that the measures taken are communicated to and are open to scrutiny by the Fundamental Rights Officer.
8. Ensure a more proactive approach to transparency, including making documents necessary to establish the respective roles and responsibilities of the involved actors, such as (parts of) Operational Plans, publicly available.
9. Ensure that there is a common forum for individuals to lodge complaints about human rights violations that occurred in the context of Frontex operations. Complaints should be assessed by an independent and impartial body that has the competence to impose consequences on the Member States and Frontex itself.

ECRE: Holding Frontex to account: ECRE's proposals for strengthening non-judicial mechanisms for accountability of Frontex (link to pdf)

The EU Member States:

• strengthen their scrutiny over their deployed or seconded border and coast guards
• carry out adequate independent investigations into SIRs and complains received from the FRO and ensure timely follow up with the FRO on the precise results of the investigations
• support legal assistance for victims of violations seeking to use the Frontex complaints mechanism, as well as in initiating judicial proceedings.

The Frontex Management Board:

• oversee Frontex’s activities and their compliance with EU and international human rights obligations
• regularly invite the Parliament to its meetings as per Art.104(7)
• adopt an opinion to modify the composition of the MB and accord Parliament a seat in line with the Common Approach
• in the context of appointing an ED, inform the Parliament about detailed reasons why the candidate preferred by the Parliament was not appointed when this is the case
• ensure the independence of the FRO, by, inter alia, inviting the representatives of the CF to participate in the selection panel charged with selecting the FRO and regularly inviting the FRO for exchanges on any aspect of her/his work, including restrictions to her/his independence
• adopt a decision, taking into account recommendations from the FRO and the CF, to set a quantitative indicator for the number of the fundamental rights monitors compared to overall staff
• follow up on the FRO’s recommendations and opinions within a specified timeline and draw up an action plan to implement the recommendation or, alternatively, explain the specific reasons for rejecting a recommendation and invite the FRO to exchange views on the matter
• publish yearly statistics on which recommendations were rejected and which were implemented
• verify whether the ED implemented all the MB conclusions related to the SIR mechanism based on the report of its WG on Fundamental Rights and Legal Operational Aspects of Operations and the Aegean Sea
• ensure that all the 2019 recommendations of the evaluation of the CF are implemented, including proactive sharing of information with the CF by the ED, reinforcing the CF Secretariat, enabling the CF to publish recommendations and opinions on a more regular basis and Frontex’s follow up actions
• ensure training for Frontex focused on the obligation to comply with EU and international human rights obligations and the consequences of a violation
• adopt a decision to extend the scope of access to documents to third-country nationals.

The European Commission:

• ensure effective oversight of the correct implementation of the Regulation as the Guardian of the Treaties via its two members at the MB, by raising any concerns about non-compliance with the MB, the ED, and the FRO and ultimately starting the action for annulment in front of the CJEU under Art.263 of the TFEU
• engage actively with parliamentary scrutiny of Frontex, particularly the work of the LIBE Frontex Scrutiny Group and beyond
• include the following elements in the next revision of the 2019 Regulation:
• grant a seat on the MB to the Parliament
• empower the Parliament to review the decisions (or the lack thereof) of the ED under Art.46
• require that the MB submits the single programming document to the Parliament and adopt it only if the Parliament issues a positive opinion
• widen the personal scope of the complaints mechanism by withdrawing the requirement for the person to be directly impacted by the act and omissions of the team members and allow complains by third parties acting in public interest
• empower the European Ombudsman to review the complaints relating to the Frontex staff
• provide for a procedure for access to information which is adapted to Frontex, including enabling access to third-country nationals and involving the FRO’s office in vetting the refusal of information based on security reasons
• give organisations the right to make a complaint for an affected person.
  The European Parliament LIBE Committee:
• continue exercising its democratic oversight over Frontex’s activities via its budgetary powers
• request a seat in the MB as per the Common Approach
• request a formal role in appointing and dismissing the ED
• request the ED to submit and present the Agency’s annual reports and other report, including on the number of complaints and serious incidents and the results of the investigations as per Art.106(2)
• proactively monitor and request information about compliance with fundamental rights in Frontex operations in third countries in accordance with Art. 73(7)
• support the FRO’s independence by asking the FRO to present her/his annual reports and regularly invite the FRO to hearings
• strengthen its oversight over the accountability mechanisms by asking the Agency and the FRO to report on SIRs and complaints and on follow up to these
• set up a joint parliamentary scrutiny group with national parliaments to ensure joint scrutiny of Frontex’s activities, vest it with investigative powers, and collaborate with the FSWG
• propose a clear procedure for access to internal documents involving the FRO in weighing up confidentiality against transparency and ensure that the FRO has adequate capacity for this purpose
• within the FSWG, formulate recommendations to foster accountability mechanisms, including to:
• offer a seat at the MB to the Parliament (and pending this, to regularly invite the Parliament to the MB’s meetings)
• give power to the Parliament to confirm a candidate for the post of the ED
• (in the shorter run) formally involve the FRO in decision-making on the complaints and fundamental rights related SIRs and ensure adequate resources for this purpose
• (in the longer run) empower the European Ombudsman to assess the merits of the complaints directed against Frontex staff.

The European Parliament Budgetary Control Committee:

• refuse budget discharge for the financial year 2019 for as long as the complaints mechanism and SIR mechanism are not improved, while the required 40 fundamental rights monitors are not hired, and while the OLAF investigation is ongoing
• for the future discharge proceedings, take the LIBE Committee’s recommendations into account and attach observations regarding the respect of fundamental rights, transparency and effectiveness of the complaints mechanism and SIR mechanism to its discharge decision.

The Frontex Executive Director:

• ensure that the annual reports include all the statistics and summary information relating to the complaints submitted, assessed and closed, as well as the number of requests for information received and follow up to them
• involve the FRO in decision-making on the complaints against Frontex staff and provide a detailed follow-up to her/his recommendation within a reasonable timeline
• regarding the complains about national staff, if a response is not forthcoming, raise the issue with the MB and, in case of a late reaction from national authorities, suspend the officer from Frontex’s activities until the final decision has been taken
• ensure that the new rules on the complaints mechanism, currently under preparation, provide for the binding nature of the FRO’s recommendations, fact-finding visits by the FRO, and details and specific timelines for follow up
• implement all the MB’s recommendations in the new SOPs for the SIR mechanism, currently under preparation, including empowering the FRO to assess fundamental rights-related SIRs, introducing systematic monitoring of the procedure, protection of whistle-blowers, setting up a transparent follow up process for SIRs and the proper and transparent procedure to follow up on such reports. In addition, ensure that the new SOPs clarify the scope of the four categories of serious incidents and introduce sanctions for falling to report serious incidents
• take into account the FRO’s opinion under the procedure under Art.46 or alternative thoroughly explain why the opinion was not followed
• ensure that the duty officer transmits any case of the use of force to the FRO, rather than only these which she/he deems “incident involving the use of force”
• ensure that the annual reports include detailed information on the functioning of the supervisory mechanism on the use of force, including the statistics on the number of “incidents involving the use of force” which led to administrative inquiries and pre-disciplinary or disciplinary proceedings and the final decisions of these investigations
• follow up on the FRO’s recommendations and opinions within a specified timeline and draw up an action plan to implement the recommendations or, alternatively, explain the specific reasons for rejecting a recommendation and invite the FRO to exchange views on the matter.

The Frontex Fundamental Rights Officer:

• continue supporting Frontex’s internal accountability
• properly train new fundamental rights monitors once they are hired and ensure their independence; extend training on fundamental rights to other staff members
• alert the LIBE Committee of the Parliament, MB and Commission when the space for independent recommendations is restricted
• broadly interpret Art.109(4) and MB Decision 6/2021 to require that the ED respond to the FRO’s recommendations within a specified timeline and indicate in writing in detail the reason for not following a recommendation
• broadly interpret Art.109(2) and investigate and inquire into any situation which raises fundamental rights concerns in Frontex’s operations inside and outside the EU, including in the framework of the supervisory mechanism on the use of force, and ensure sufficient staff are available for this task
• ensure that the working methods of conducting investigations, currently under preparation, include access to all relevant documents, access to relevant audio-visual material such as recordings of body-cameras, regular and unannounced on-site visits including outside the EU, interrogation of the members of the team, the possibility to contact home Member States and speak with people subject to Frontex’s activities in private, conclusions and recommendations directed to the MB and ED which should be followed-up within a specified time-period and inclusion of the results in the FRO’s annual report, as well as reports to the MB and the Parliament
• widely interpret its prerogatives under Art.109(2) and systematically carry out on-the-spot visits to operations and speak with the people affected by the Agency’s activities
• instruct the fundamental rights monitors deployed to operations to inform the individuals about the complaints mechanism, support them in filling out the complaints, and refer them to the relevant legal assistance providers
• include detailed information about the complaints procedure in annual reports, including the status of the proceedings and the delay in the follow up from the authorities
• take up the new role of assessing the fundamental rights-related SIRs, as recommended by the MB, including fact-finding visits, requesting documents, and issuing binding recommendations to the ED
• in the context of the SOPs under Article 46 of the Regulation, under preparation, propose a clear procedure for the suspension of an operation which would include the opinion of the FRO and be subject to scrutiny of the Parliament
• start reporting to the Parliament on a regular basis, including on the instances where the FRO’s advice or recommendations was not followed by the ED or the MB.

The European Ombudsman:

• continue current inquiries in an effective manner and support the strengthening of the complaints mechanism
• continue considering complaints from the individuals to whom access to information was refused.