One of the EU’s largest and costliest agencies is facing an unprecedented crisis of confidence.
For the past year, the European Border and Coast Guard Agency, also known as Frontex, has been battling a barrage of extremely serious allegations that, at best, describe the agency as a silent accomplice in human rights violations, and, at worst, as an active perpetrator.
The furore over the accusations has reverberated across Brussels and beyond, with European institutions lining up to publicly reprimand the agency in unusually harsh terms and demand immediate reforms. Simultaneously however, such institutions have been working up plans to bolster its authority and guarantee the organisation continues to play a crucial part in the EU’s migration policy.
Frontex is today in a seemingly perpetual state of damage control. Internal and external investigations, public hearings and new media reports continue to pile up at the agency’s doorstep, creating the image of an entity under siege scrambling to salvage the remains of its reputation. A new lawsuit threatens to bring Frontex before the EU’s Court of Justice for the first time in its history.
For many, the ongoing tumult is an inevitable consequence of the meteoric rise experienced by the agency, which in the span of 15 years has gone from a small, obscure office to a headline-making, multi-million organisation of ever-expanding power.
Migration and security: a mighty convergence
Frontex, an independent, decentralised EU agency, was established in 2004 and began operations the following year. Its original purpose and scope was relatively modest: the bureau was tasked with helping member states coordinate the management of the EU’s external borders.
The formation of the passport-free, borderless Schengen Area a decade earlier had increased the need to reinforce the control of the external borders in order to prevent criminal actors from entering the bloc and having a free pass to carry out illegal activities. At the same time, the terrorist attacks in New York City, Madrid and London had intensified the link between migration and security, making the two issues progressively converge until they became inseparable.
These factors were enough to overcome the reluctance in the capitals to cede any degree of sovereignty to Brussels in the politically sensitive matter of border management. The 2004 enlargement, when 10 countries joined the European Union, provided the final impetus to set up Frontex, headquartered in Warsaw, Poland, with an annual budget of €6 million and 70 staff members.
Shortly after, the role of Frontex and the tools at its disposal began growing. In 2013, the valuable European Border Surveillance System (Eurosur) was put in place to accelerate information exchange between the agency and member states. Frontex was also empowered to deploy guard teams and interventions teams to assists EU countries.
But it was the 2015 migration crisis, during which 1.2 million asylum applications were lodged in the EU, that really thrust Frontex into the spotlight and forever changed its way of working. As European governments scrambled to manage the sudden and massive arrival of migrants without actually agreeing on a common policy to do so, all eyes were on Frontex to provide a quick and effective solution that could appease the critics decrying the deficit of EU-wide action.
A 2016 regulation renamed Frontex as the European Border and Coast Guard and incorporated the mission to fight “serious crime with a cross-border dimension”. An amending regulation three years later expanded the agency’s mandate even further and consolidated its operational, on-the-ground character. The European Commission went as far as suggesting a “right to intervene” to enable Frontex to send in border guards without the consent of a member state.
Although the “right to intervene” was quickly shot down by the capitals, the powers of Frontex nevertheless took on a whole, new dimension.
Today Frontex is authorised to operate across the Schengen Area’s 44,000 km of sea borders and almost 9,000 km of land borders. Its work includes rapid border interventions, joint search-and-rescue efforts, humanitarian assistance, screening and identification of migrants, data analysis, vulnerability assessments and law enforcement cooperation (for example, with Europol), as well as the prevention of smuggling, human trafficking and terrorism.
According to its own statistics, in 2020 the agency helped rescue more than 13,000 migrants, identified nearly 1,200 people and drug smugglers, and mobilised 1,000 officers per month.
Frontex has now its own uniformed service (the so-called “standing corps”) and is able to deploy vessels, aircraft, vehicles and other technical equipment – all of which must be provided by the member state working with the agency. The organisation is even entitled to carry out operations in non-EU countries if the migratory situation becomes problematic for a neighbouring member state. In 2019, the first non-EU mission was launched in Albania.
Despite the sweeping changes and reforms, Frontex’s core purpose remains unmistakably clear: to stop illegal migrants from entering the European Union, particularly those attempting to cross the Mediterranean, where the vast majority of Frontex activities take place.
Scandal and damage control
The precipitous rise of Frontex soon caught the attention of external observers, who warned about the potential side effects of the agency’s ever-expanding mandate.
The great scandal erupted in October 2020, when a group of European media, led by investigative website Bellingcat, released an explosive report that accused Greek authorities of pushing back EU-bound migrants coming from Turkey.
The investigation claimed that Frontex had knowledge of this practice, which is illegal under international law, and failed to put an end to the collective expulsions. In some cases, the journalists said, Frontex staff assisted the Greek officials in carrying out the pushbacks, making the EU agency a direct, hands-on participant in the illicit behaviour.
The report unleashed a political storm in Brussels and across the continent.
Members of the European Parliament called for the immediate resignation of Frontex’s Executive Director, Fabrice Leggeri, who stood his ground, refuted the charges and denied any knowledge of pushbacks. The European Commission asked for clarifications and the implementation of overdue reforms, saying there should “no shadow of doubt in any functioning of this agency”.
Meanwhile, OLAF, the EU’s anti-fraud watchdog, and the European Ombudsman, Emily O’Reilly, opened separate probes to examine the allegations of harassment, misconduct and unlawful operations. The European Parliament set up a special working group to personally conduct a fact-finding investigation and shed light on the controversy.
In the face of heightened scrutiny and intense criticism, Frontex launched an internal inquiry to review a list of 13 incidents where fundamental rights were reportedly violated. The inquest later concluded that most of the cases weren’t supported by enough evidence, but admitted that two of them had the characteristics of an “unprocessed return”.
A similar judgement was reached by the MEPs themselves. After their four-month-long research, the lawmakers “did not find conclusive evidence on the direct performance of pushbacks and/or collective expulsions by Frontex” but harshly denounced the agency’s way of working, which they say laid the ground for EU law breaches.
“The [working group] concludes that the agency found evidence in support of allegations of fundamental rights violations in member states with which it had a joint operation, but failed to address and follow-up on these violations promptly, vigilantly and effectively. As a result, Frontex did not prevent these violations, nor reduced the risk of future fundamental rights violations.”
The lawmakers also criticised Frontex’s deficient monitoring mechanism, lack of cooperation and slow uptake of reforms. According to a 2019 regulation, Frontex is supposed to establish a Fundamental Rights Office with 40 specialised agents tasked with assessing whether its daily activities respect the EU’s fundamental rights.
When MEPs released their findings in mid-July, Frontex had hired 20 of the 40 dedicated agents, 15 of whom had assistant status (AST) instead of the recommended administrator title (AD). “This lower ranking may affect the [agents’] authority and autonomy, access to classified and sensitive information, and therefore their effectiveness,” lawmakers wrote.
The Ombudsman’s inquiry also took aim at the absence of reforms and capabilities of the Fundamental Rights Office. It added the agency’s complaints mechanism, set up in 2016, has so far dealt with a very low number of complaints: 69 in total, of which 22 were admissible. No complaint has been processed concerning the actions of staff members, the Ombudsman noted.
Undeterred, Frontex is standing firm against the fierce criticism. Up until now, all the probes, while highly damaging, have absolved the agency of the most serious charges.
“Frontex is a bigger, more complex organisation than a couple of years ago, so a system that was designed in the past needs to undergo further transformation,” said director Fabrice Leggeri, when he welcomed the results of the parliamentary investigation. “The report underlined the challenges of the agency’s transformation in a more and more complex security environment.”
An agency in constant growth
The outrage caused by the pushback allegations and the subsequent investigations have turned Frontex into the most talked-about, controversial EU agency, attracting an extraordinary amount of media and political attention.
While the main European institutions are frequently subject to scrutiny and criticism, EU agencies operate quietly in the background, within their narrow scope, and are, for the most part, unknown to ordinary citizens. Only the European Medicines Agencies (EMA) and European Centre for Disease Prevention and Control (ECDC), which rose to prominence during the coronavirus pandemic, have got a similar close-up look, albeit without any allegations of human rights violations.
Frontex’s ballooning budget has become another bone of contention.
The organisation financial allocation has soared since the migration crisis: from a modest €93 million in 2014, the year prior to the crisis, to a proposed €543 million in 2021 – almost a 500% boost.
MEPs have refused to approve the agency’s financial accounts from 2019 until the pushbacks accusations are clarified. The Parliament’s annual green-light is necessary to formally close the institutional accounts. Other reasons cited by lawmakers for their delay were the agency’s “significant gender imbalance” and its regular practice of meeting with unregistered lobbyists.
The European Court of Auditors, an institution that safeguards the EU finances, has also censured the work of Frontex and its financial supervision.
In a report released in June, the Court finds that Frontex’s support for border management is not “sufficiently effective” nor “adequate” to combat illegal immigration and cross-border crime, and casts doubt over the agency’s ability to fulfil its expanded mandate.
The Court chastises the agency for its “gaps and inconsistencies” in the information exchange system with member states, the lack of “complete and good-quality data” in its risk analyses and the absence of regular financial reporting. “The last external evaluation of Frontex was published in July 2015”, the Court says, noting the evaluation took place before the 2016 and 2019 reforms, which represented a watershed moment in the agency’s history.
Despite the dented reputation and the strong words of disapproval, the EU is not ready to let go of Frontex. In fact, Brussels is thoroughly aware of how much it needs the agency. So much that it has already unveiled plans to strengthen and widen its competences.
The European Commission wants to entrust the organisation with handling the voluntary return of those migrants and asylum-seekers whose applications are denied. (Around a third of those with no right to stay in the EU go back to their country of origin, with only a fraction doing so on a voluntary basis). Frontex will assist EU countries in all stages of the voluntary return, including pre-return counselling and post-arrival support.
A separate Commission proposal to reform the passport-free Schengen Area and make it “stronger and more resilient” after the pandemic also envisions a central role for Frontex. If Europeans want to have the best free movement inside the bloc, the thinking in Brussels goes, then the EU must have the best control of its external borders.
Consequently, Frontex’s budget is expected to keep growing, together with its human resources.
The agency’s standing corps is scheduled to increase from 6,500 officials in 2021 to up to 10,000 in 2021 – a figure that will include 3,000 border and coast guards, return escorts and experts. The office will deepen its cooperation with the European Asylum Support Office (EASO) and non-EU countries. The European Parliament approved the changes with 403 votes in favour and 162 against.
The next chapter: Luxembourg
Frontex’s public relations nightmare is not over.
A group of three civil society organisations – Front-LEX, the Progress Lawyers Network and the Greek Helsinki Monitor – has filed a lawsuit to the EU’s Court of Justice (ECJ) in Luxembourg accusing Frontex of violating fundamental rights and international protection obligations in the Aegean Sea.
The case was submitted on behalf of two asylum seekers who claim they were assaulted, detained, forcibly transferred back to sea and abandoned on rafts while they were trying to seek protection in the European Union.
The litigants put the blame for the episode on Frontex because, they say, it continued its Greek operations despite being aware of widespread breaches of EU law. The group also believes the previous investigations into the agency haven’t been able to rein in its powers.
“It is the first time that an EU body, impartial body, independent body, tribunal, a court will conduct a judicial oversight over these issues in an attempt – at least we hope so – to hold the agency to account, in the sense that all the other bodies have failed to control this agency,” Omer Shatz, a lawyer who works at Front-LEX, told Euronews.
“It is Frontex that monitors the area [the Aegean Sea] by drones, by boats, etc. It is Frontex that detects the location of migrant boats. It is Frontex that intercepts, meaning they stop the migrant boats, and at this stage they pick up the phone and call the Greek coastguard to finish the job – that is to get rid of the migrants.”
Fabrice Leggeri reacted to the legal action saying he was “confident that the agency has undertaken its activities in strict compliance with the applicable legal framework”.
The case will see Frontex answers questions directly before the Luxembourg court, where the last word of EU law is meant to be spoken. The resolution of the lawsuit could take up to two years, a time during which new evidence might come to light. OLAF, the EU’s anti-fraud watchdog, is yet to release the findings of its own investigation into the pushback allegations.
Regardless of the verdict, Frontex will continue to enjoy a privileged position as the fastest-growing EU agency with the largest budget: up to €11 billion have already been earmarked for the 2021-2027 period to finance the standing corps, new equipment and the performance of additional tasks.
The EU’s perennial failure to design and agree on an EU-wide migration policy only serves to buttress the agency’s dominant position. While front-line Southern countries demand more solidarity and financial assistance, wealthy Northern states – the most coveted destination – ask for a fairer reallocation system among member states, a prospect that Eastern countries refuse to even discuss.
Migration has become such a toxic topic in national politics that some parties prefer to avoid any debate altogether out of fear of stoking radical forces. The European Council repeatedly refrains from making any concrete commitments, other than exhausting the existing tools. A new pact on migration and asylum put forward in September by the executive of President Ursula von der Leyen has been languishing in the EU’s legislative limbo with no breakthrough in sight.
In this context of doubt and division, Frontex has secured its right to expansion, occasionally interrupted by the critical scrutiny of the same institutions propelling its rise.
“It is clear that Frontex operates at the heart of European Home Affairs and it is crucial for many reasons. So the European Union really needs Frontex,” Ylva Johansson, the EU Commissioner for home affairs, recently told a hearing of the European Parliament.
“But Frontex nor its Executive Director operate in a legal or political vacuum.”
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