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by Julia Köller & Friedemann Bumblies

The European Agency for the Management of Operational Cooperation at the External Boarders of the Member States of the European Union, for short Frontex, is responsible for ensuring the security of the EU´s external boarders together with the national authorities.
We want to give an insight in the functioning of Frontex, beginning with the structure and the different responsibilities that arise with the cooperation between Member States and Frontex. Afterwards, we will address questions about accountability, control and transparency relating to Frontex operations.

Governing Structure of Frontex

The Management Board consists of the heads of the border authorities of all EU Member States and those of the Schengen Agreement, plus two members of the European Commission. Apart from developing the guidelines for the agency, it is responsible for establishing the budget, creating a working program and taking part of decision making processes.
The Executive Director is appointed by the Management Board. He represents Frontex and is mainly responsible for the administration and the management of the agency.
The Consultative Forum and the Fundamental Rights Officer were added in the year 2011 with a revision of the Frontex Regulation No. 1168/2011/EU. They are in charge of helping Frontex to develop a Fundamental Rights Strategy and are working closely together with the Management Board.

Main Tasks of Frontex

The main tasks and responsibilities of Frontex are defined in Art. 2 in the first Regulation No. 2007/2004/EG of October 2004: “The agency shall perform the following tasks:

1. coordinate operational cooperation between Member States in the field of management of external borders;
2. assist Member States on training of national border guards, including the establishment of common training standards;
3. carry out risk analyses;
4. follow up on the development of research relevant for the control and surveillance of external borders;
5. assist Member States in circumstances requiring increased technical and operational assistance at external borders;
6. provide member states with the necessary support in organizing joint return operations.”

In addition to those main tasks, Frontex is able to cooperate with other partners and organizations, such as Europol, and even third countries.
Since the Regulation of 2007 the agency is also able to deploy qualified European Border Guard Teams (EBGT) for its own projects and in case of an emergency. These EBGT consists of qualified experts from all Member States that are being placed at the disposal of Frontex.
The Regulation from 2013 establishes a European Border Surveillance System that facilitates the agency´s task of surveillance.

EUROSUR

EUROSUR is a short form, standing for “European Border Surveillance System”. This monitoring system consists of several technical components, like drones and satellites, which track illegal immigration over the European borders. Furthermore EUROSUR is an “information-exchange system” which allows the European member states and Frontex to effortlessly share their data.
EUROSUR was developed as an initiative of the European Commission in 2008. Since December 2013, the surveillance system is partly in force.
EUROSUR has three core activities. Firstly, to reduce the amount of immigrants who try to cross European borders illegally. Secondly, to reduce the death toll at the maritime borders, providing more rescue operations at sea. The third task is to improve and increase the internal security of the Member States and the EU by preventing cross-border-crime. For example, the official Frontex site claims that EUROSUR will help to prevent human tragedies at sea. NGOs like Pro Asyl, in contrast, reply that EUROSUR will lead to human tragedies, because migrants will use smaller boats, different and even more dangerous routes just to avoid being tracked by the satellites.
The costs of running the EUROSUR project, represents another problem. There are differing numbers to reflect these costs. The European Commission calculates the costs at 244 million Euros. The Heinrich-Böll-Foundation, assume that more than 900 million Euros for this project, which will last until 2020, will be spent (Dolzer 2013:12). These figures reflect a massive difference in estimates. The main problem is that these numbers were published by armaments companies, which may have interests in downplaying the costs. Furthermore, no serious risk valuation has been made.

The problem of transparency

In general, Frontex allows free access to its documents (annual reports, risk analysis…) via its website. Since 2010, the agency releases the magazine “The Border Post” to provide readers with information about their daily work and current political news about border protection. The goal is to reach legitimacy and acceptance among the public. However, any reports from operations like “Hermes or Aeneas” are censored and not available, neither for private persons who are interested in running operations-, nor for the European parliament.
This creates huge problems for NGOs or institutions which try to uncover and restrict the activities of Frontex. The reports and plans from operations are in fact the most important thing to establish an extensive control over the agency.
According to Art. 28/1 2007/2004 EG, Frontex has to guarantee free access to its documents just like other EU-Institutions. What differs from other institutions is that Frontex`s working radius is somewhere between the tasks of a border-police and an intelligence service (Heck 2011:75). Frontex is therefore allowed to restrict the access to its documents when there is the possibility of a risk to running operations.
Art. 7/1 1049/2001/EG obliged Frontex (as a European agency) to make clear why the agency refuses the access to some documents. This right is only permanently guaranteed for EU-citizens or people who live in the EU. So migrants from non-EU states who want to take legal action against, for example, forbidden push-backs during a Frontex operation, have no chance to access the documents they need, in order to prove that injustice happened.
Every person has a right to be informed in every language according to Art. 55/1 EUV and Art. 28/4 2007/2004 EG, regardless of the person’s nationality. This is a big step in the right direction towards more transparency, but it is still not enough, because the right to get information from Frontex does not correspond to the right to get a well prepared statement.

Who is responsibility for a Frontex operation?

Frontex is involved in every step of an operation, from planning, to carrying out the mission. Despite this extensive range of tasks, the Member States are still primary responsible for an operation. For instance are “members of the teams […] only [allowed to] perform tasks and exercise power under instructions from and, as a general rule, in the presence of border guards of the host Member State” (Article 6 (3)/863/2007/EC).
An operation gets only more complicated because of the several different actors that are partaking in a Joint Operation. Firstly there is Frontex that only claims the responsibility to the planning and coordination part of the operation. Then there is the host Member State and the different home Member States of the EBGT. The lack of access to the operation plans or any other documents related to it, does not facilitate to prove any violation against the contract.Therefore, it is almost impossible to take a course of action against the agency itself or even against the EU (because it hasn’t joint the EMKR yet). In the end the Member States are made responsible for any violation that happened.

Current News

In the latest Regulation No…/2014/EU of April 2014, Frontex is being obliged to help persons in distress at sea. Furthermore, the principle of non-refoulement is specified and the rights of migrants are being strengthened. Frontex has to offer the refugees now an opportunity to raise objections ahead of being disembarked. If it is necessary the agency can also have an interpreter and a lawyer on board.
On the other hand, Frontex is still allowed to order the vessel to take another route, or even to escort the refugee´s boat until a change of course is confirmed. On the high sea it is even allowed to “escort” it to a third country.
This development is especially interesting in the context of the new Frontex operation Triton.

Mare Nostrum/ Triton

The Operation “Mare Nostrum” was established after the horrible death of more than 300 migrants in October 2013 and was supported by two Frontex missions, “Hermes” and “Aeneas”.
Since November 1st, 2014, Frontex coordinates a joint operation named Triton which replaced the Italian rescue mission in the Mediterranean Sea. The Italian authorities are responsible for the mission. They control and command the activities together with Frontex. Other actors are the Italian Coast Guard, the naval forces and also Guardia di Finanza.
The “Triton-Team” consists of six ships, two fixed wing surveillance aircrafts, and one helicopter to look out for illegal migrants and their boats. This operation consists of seven teams of guest officers, in intelligence and identification tasks, and five debriefing teams to help the Italian authorities collecting information about networks and routes of people-smugglers (especially in Libya).
Compared with the former Operation “Mare Nostrum”, the equipment and the financial scope of Triton are very limited. The budget of Triton is about 2,9 million Euros a month. This is just a third of the former budget. Italy spent more than nine million Euros every month over one year on “Mare Nostrum”, and saved the lives of about 140.000 people who were in distress at sea close to the Libyan coast.
The difference between the operations is that “Mare Nostrum” was a pure sea rescue mission, whereas “Triton” is a Frontex guided operation, with the main focus on classical boarder control and not at sea rescue.
As shown, Frontex is a complex agency. Its internal processes are, especially for the public, hard to understand. From the first regulation in 2004 to the last one in 2014, Frontex made progress, especially regarding its human right situation. But nevertheless, it has still a long way to go in the protection of the rights of migrants, accomplishing more transparency and establishing binding reporting procedures in case of violation of human rights.

Literature

• Mrozek, Anna: Grenzschutz als supranationale Aufgabe. Der Schutz der europäischen Außengrenzen unter der Beteiligung der Bundespolizei, Baden-Baden 2013.
• Seehase, Juliane: Die Grenzschutzagentur FRONTEX. Chance oder Bedrohung für den Europäischen Flüchtlingsschutz, Baden-Baden 2013.
• Krause, Johannes: Die Grenzen Europas. Von der Geburt des Territorialstaates zum Europäischen Grenzregime, Frankfurt am Main 2009.
• Keller, Ska: Europa: Mit Drohnen gegen Flüchtlinge, o.O., o.J. (http://www.boell.de/de/demokratie/netz-drohnen-zur-fluechtlingabwehr-15640.html) (aufgerufen am: 04.11.2014).
• Pudlat, Andreas: Schengen. Zur Manifestation von Grenze und Grenzschutz in Europa, Göttingen 2013.
• Lisson, Ursula; Weinziel, Ruth: Grenzschutz und Menschenrechte. Eine europarechtliche und seerechtliche Studie, Berlin 2007.
• Heck, Gerda: Die Rolle der Grenzschutzagentur FRONTEX, in Ottersbach/Prölß (Hrsg.), Flüchtlingsschutz als globale und lokale Herausforderung, Wiesbaden 2011.
• Bendel, Petra: Nach Lampedusa: das neue Gemeinsame Europäische Asylsystem auf dem Prüfstand, Bonn 2013.
• Nieth, Jürgen: Festung Europa, o.O. 2013. (http://www.wissenschaft-und-frieden.de/seite.php?artikelID=1893) (04.11.2014).
• O.,A: EU-Asylpolitik nach Lampedusa: Abschottung geht weiter, o.O. 2013. (http://www.proasyl.de/de/news/detail/news/eu_asylpolitik_nach_lampedusa_abschottung_geht_weiter-1/) (04.11.2014).
• Dolzer, Martin: Die politische Funktion von Eurosur und menschenrechtliche Hintergründe, Brüssel 2013. (http://www.sabine-wils.eu/pdf/dolzer-politische-funktion-eurosur.pdf) (19.11.2014).
• Council Regulation; (EC) No 2007/2004 (http://frontex.europa.eu/about-frontex/organisation/structure); (07.11.14)
• Regulation (EC) No 863/2007 of the European Parliament and of the Council; (http://frontex.europa.eu/assets/Legal_basis/rabit_regulation-863-2007.pdf); (07.11.15)
• Regulation (EU) No 1168/2011 of the European Parliament and of the Council: (http://frontex.europa.eu/assets/About_Frontex/frontex_amended_regulation_2011.pdf); (9.11.14)
• Regulation (EU) No1052/2013 of the European Parliament and of the Council; (http://frontex.europa.eu/assets/Legal_basis/Eurosur_Regulation_2013.pdf); (09.11.14)
• Regulation (EU) No…/2014 of the European Parliament and of the Council; (http://register.consilium.europa.eu/doc/srv?l=EN&f=PE%2035%202014%20INIT); (09.11.14)
• FRONTEX; (http://frontex.europa.eu/); (09.11.14)

• Picture credits:
• http://http://frontex.europa.eu/about-frontex/organisation/structure

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