Regulation (EU) No. 2016/1624 and the recently adopted Regulation (EU) No. 2019/1896 represent the third and fourth legislative revision of FRONTEX’ mandate and functions since the Agency was established. The adoption of Regulation (EU) No. 2016/1624 was extraordinarily fast since it did not take a year between its proposal by the Commission on 15 December 2015 and its publication in the Official Journal on 16 September 2016. Less than two years after the adoption of Regulation 2016/1624, the president of the European Commission announced in his speech on the 2018 State of the Union made on 12 September, the Commission’s intention to “to further strengthen the European Border and Coast Guard to better protect our external borders with an additional 10,000 European border guards by 2020”. On the same day, the Commission put forward an updated version of the recently adopted EBCG. Again, in record-time, Regulation 2019/1896 was published in the Official Journal of the EU on 14 November 2019.
Regulations 2016/1624 and 2019/1896 aim to develop a EU integrated management of the external borders by addressing both the existing deficiencies at the national level and responding effectively to exceptional and sudden migratory flows. This blog post centres on comparatively analysing the new operational powers conferred by Regulations 2016/1624 and 2019/1896 to the new EBCG when supporting the Members States.
Art. 3 para. 2 Regulation 2016/1624 conferred a monitoring role to the EBCG in order to guarantee a common strategy for the management of the European external borders. While FRONTEX also conducted supervisory activities to a certain extent, the EBCG may now deploy its own liaison officers in the Member States with the aim of fostering cooperation and dialogue between the Agency and the competent national authorities (art. 12 para. 3 Regulation 2016/1624). These responsibilities have been further detailed in art. 31 para 3 Regulation 2019/1896.
The information that the liaison officers gather contributes and facilitates the preparation of the EBCG’s vulnerability assessments. At least once every three years, the Agency shall monitor and assess the availability of the technical equipment, systems, capabilities, resources, infrastructure, and adequately skilled and trained staff of Member States for border control (art. 32 para. 2 Regulation 2019/1896). In turn, Member States are required to collaborate with the EBCG in elaborating the vulnerability assessment.
The recommendatory powers conferred to the EBCG are reflected in art. 32 para. 10 Regulation 2019/1896, which signals that if the recommended measures are not implemented in a timely fashion and in an appropriate manner by the concerned Member State, the EBCG’s Executive Director shall refer the matter to the Management Board and inform the European Commission. The Management Board shall then make a decision, based on the original proposal of the Executive Director, describing the necessary measures to be taken by the Member State and the time limit within which such measures shall be implemented. Importantly, art. 32 para. 10 Regulation 2019/1896 explicitly declares that the decision of the Management Board is binding on the Member State.
While it is still early to assess to what extent Regulation 2019/1896 improves the functioning of the vulnerability assessment and the swift deployment of liaison officers, a novel mechanism of impact levels to external border sections has been designed. Arts. 34 and 35 Regulation 2019/1896 state that the EBCG, in agreement with the Member State concerned, may declare three different impact levels and reactions with the aim of swiftly addressing at a given border section a crisis situation.
- Firstly, when the EBCG declares a low impact level, the competent national authorities shall “organise regular control (…) and ensure that sufficient personnel and resources are being kept available for that border section” (art. 35 para. 1 cl. a).
- Secondly, if a medium impact level is established, the concerned Member State shall “ensure that appropriate control measures are being taken at that border section” (art. 35 para. 1 cl. b).
- Thirdly, where a high impact level is declared the national authorities are encouraged to request operational assistance from the EBCG (art. 35 para. 1 cl. c).
- The EBCG may temporarily determine at a given border section a critical impact level, which shall be communicated to the European Commission. Under this scenario, the EBCG’s Executive Director will recommend the Member State concerned to request the EBCG’s operational assistance through the initiation of a joint operation or a rapid border intervention (art. 41 para. 1 Regulation 2019/1896).
While the obligations for the national border authorities under the low, medium and high impact levels are quite vague, under the critical scenario the Member State concerned shall respond, providing justifications for its decision, to the recommendation of the Executive Director within six working days (art. 41 para. 2). According to art. 42 Regulation 2019/1896, should the Member State ignore the EBCG Executive Director’s recommendation, the Council, on the basis of a proposal from the European Commission, may adopt a decision by means of an implementing act, identifying measures to mitigate those risks and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures.
The EBCG continues to provide operational assistance to the Member States, as did FRONTEX, through the coordination of joint operations and rapid border interventions and through the deployment of teams on the ground (art. 37 Regulation 2019/1896). For the first time, Regulation 2016/1624 regulated the technical and operational capacity of the EBCG in the hotspots, where the national authorities face a sudden and disproportionate migratory pressure according to the 2015 Migration Agenda. In particular, pursuant art. 18 para. 2 Regulation 2016/1624, “the executive director, in coordination with other relevant Union agencies, shall assess a Member State’s request for reinforcement and the assessment of its needs for the purpose of defining a comprehensive reinforcement package consisting of various activities coordinated by the relevant Union agencies to be agreed upon by the Member State concerned”.
In this regard, art. 40 para. 1 Regulation 2019/1896 now details that in the hotspot areas migration management support teams, composed of experts from the relevant Union Agencies, will be deployed upon request of a Member State subject to large inward mixed migratory flows. The EBCG’s teams deployed in the hotspots are in charge of reinforcing the technical and operational assistance by “screening of third-country nationals arriving at the external borders, including the identification, registration, and debriefing (…) and, where requested by the Member State, the fingerprinting (…)” (art. 40 para. 4 Regulation 2019/1896). Notwithstanding that the hotspot approach has been incorporated in Regulation 2016/1624 and 2019/1896, which in turn reveals that the approach constitutes a EU long term measure to tackle extraordinary migratory pressures, there is to date no specific legal framework clarifying the functioning, powers and responsibility of the EBCG in the hotspots.
Furthermore, with the objective of reducing the dependence of the EBCG on the Member States’ technical equipment, art. 38 Regulation 2016/1624 stipulated that the Agency may acquire its own technical equipment to be deployed during joint operations, pilot projects, rapid border interventions and return operations. In this regard, art. 63 para. 4 Regulation 2019/1896 points out that where the EBCG acquires or co-owns equipment such as aircrafts, helicopters, service vehicles or vessels, the Agency shall agree with a Member State the registration of the equipment as being on government service. Regulation 2019/1896 aims to provide the EBCG with technical and human resources that are immediately and flexibly available to be deployed, with the goal of filling in the operational gaps that continuously afflicted FRONTEX. However, Regulation 2019/1896 does not design a clear framework of the EBCG’s responsibility, and continues to be highly questionable whether the Member States will authorise the registration of equipment that is beyond their control.
Lastly, a key operational power introduced by Regulation 2016/1624 was the establishment of a Rapid Reaction Equipment Pool, consisting of technical equipment to be deployed in rapid border interventions within 10 working days from the date that the Operational Plan is agreed upon by the Executive Director and the host Member State. In accordance with art. 20 para. 5 Regulation 2016/1624, the competent national authorities shall make available a minimum of 1,500 border guards to the EBCG for their immediate deployment in joint operations and/or rapid border interventions.
While the establishment of a Rapid Reaction Pool of 1,500 was a positive measure for emergency situations at the external borders, Regulation 2016/1624 did not manage to overcome the insufficient pooling of Member States’ border guards for concrete locations and concrete periods in regular joint operations. For this reason, Regulation 2019/1896 centres on designing a permanent, fully trained and operational Standing Corps of 5,000 Border Guards by 2021 and 10,000 by 2027 based on the distribution key set out in Annex I to Regulation 2019/1896.
Pursuant art. 54 para. 1 Regulation 2019/1896, the Standing Corps is composed of four categories of border guards:
- 1) operational staff members of the Agency (art. 55)
- 2) operational staff seconded from Member States to the Agency for a long-term deployment (art. 56)
- 3) operational staff from Member States ready to be provided to the Agency for a short term deployment (art. 57)
- 4) operational staff from the Member States ready to be deployed for the purpose of rapid border interventions (art. 58).
The main novelty is not so much the establishment of the Standing Corps, but rather the fact that the Standing Corps deployed as team members (category 1) are conferred executive powers (art. 54 para. 3 Regulation 2019/1896) such as verifying the identity and nationality of persons, authorising or refusing of entry upon border check, stamping of travel documents, issuing or refusing of visas, patrolling or, registering fingerprints (art. 55 para. 5 Regulation 2019/1896). Importantly, art. 82 para. 2 Regulation 2019/1896 states that the performance of executive powers by the EBCG’s operational staff members shall be subject to the authorisation of the Member State that is hosting the operation.
As the Meijers Committee and the European Council on Refugees and Exiles rightly noted, conferring executive powers to the EBCG’s operational staff members may breach the primary law provisions that regard the Member States as ultimately responsible for their own internal security and external border management. While the European Commission considers that art. 77 para. 2 cl. d TFEU provides the legal basis to bestow upon the EBCG’s staff members executive tasks if they are clearly defined to match the objective of the establishment of an integrated management system for external borders, art. 77 para. 2 cl. d TFEU shall also be read in light of arts. 72 and 73 TFEU.
The new EBCG’s capacity to intervene led to considerable rejection by the Member States during the negotiations of Regulation 2016/1624. Currently, art. 8 para. 2 Regulation 2019/1896 specifies that “the multiannual strategic policy for the European integrated border management shall set out how the challenges in the area of border management and returns are to be addressed in a coherent, integrated and systematic manner (…)”. That is, the national authorities in charge of border management shall conform to the strategy adopted by the EBCG (art. 3 para. 3 Regulation 2016/1624 and 8 para. 6 Regulation 2019/1896).
The EBCG is thus conferred a supervisory and intervention role, which allows the Agency to adopt quasi-binding measures for the Member States and to directly intervene in the territory of the Member State if such measures are not effectively implemented (art. 18 Regulation 2016/1624 and 42 Regulation 2019/1896). In the event that a Member State neither adopts the measures recommended in its vulnerability assessment, nor requests/takes necessary actions in the face of disproportionate and sudden migratory pressure, the EBCG shall ensure a unified, rapid, and effective EU response so as not to jeopardise the functioning of the Schengen area. In this situation and according to art. 42 para. 1 Regulation 2019/1896, “the Council, on the basis of a proposal from the Commission, may adopt without delay a decision by means of an implementing act to identify measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures”.
Since the Council decision is adopted, the EBCG’s Executive Director shall, within two working days, draft an operational plan and submit it to the Member State concerned (art. 42 para. 4 Regulation 2019/1896). Once the operational plan is submitted, the Agency’s Director and the Member State concerned shall agree on concrete actions to be adopted, including the deployment the necessary operational staff from the European Border and Coast Guard standing corps, for the practical execution of the measures identified in the Council’s decision.
Art. 42 para. 8 Regulation 2019/1896 requires the Member State concerned to comply with the Council decision by cooperating with the EBCG and taking the necessary actions to facilitate the implementation of the Council’s decision and the Agency’s operational plan. However, these obligations are tempered when art. 42 para. 10 Regulation 2019/1896 indicates that the European Commission may authorise the reestablishment of border controls in the Schengen area, provided that the concerned Member State neither executes the decision adopted by the Council, nor agrees with the EBCG’s Operational Plan within 30 days. Ultimately, the Member State concerned subject to the EBCG’s “intervention” shall expressly consent and agree with the Agency in regards to the operational support that will be provided in its external borders as to ensure the functioning the Schengen area (art. 42 para. 5 Regulation 2019/1896).
In the aftermath of the “refugee crisis”, the transformation of FRONTEX into the EBCG, as well as the need to promote a shared management of the European external borders emerged as a top political priority for both the EU and the Member States. Regulations 2016/1624 and 2019/1896 introduce the new EBCG as a guarantor of an integrated management of the European borders. In the European Commission own words, “by setting new standards and imbuing a European culture within border guards, the European Border and Coast Guard will also become a blueprint on how EU border management should be implemented”.
Both Regulations 2016/1624 and 2019/1896 clearly strengthen the EBCG’s autonomy since the Agency will depend to a much lesser extent on the specific operational secondments and support of the Member States. The EBCG should finally have its own equipment and operational personnel for its immediate deployment in joint and rapid operations. However, the most controversial, significant and novel operational powers included in Regulations 2016/1624 and 2019/1896 consist in introducing the Agency’s capacity to “intervene” and granting executive powers to the Agency’s staff members respectively.
Regulation 2019/1896 confers executive powers to the EBCG’s standing corps deployed as team members. While these executive powers may ensure a more effective, integrated and supranational administration of the European external borders, these activities also entail a significant, and difficult to control, degree of discretion that excessively stretches the Treaty provisions establishing the Member States as ultimately responsible for their own internal security and external border management.
However, it is still early to conclude whether we are only facing another revision of FRONTEX’ initial mandate as a reaction to an unprecedented migratory pressure or, on the contrary, Regulations 2016/1624 and 2019/1896 constitute the definitive step that will facilitate in the future the establishment of a European Corps of Border Guards with full executive, implementation and decision-making powers in the management of the European external borders.