By Tom Binder, Jens van Straalen and Sybren Straatsma
On the 15th of December, the European Commission published a press release announcing its proposal for a regulation that would establish European Border and Coast Guard (hereinafter: ‘the Commission Proposal’). This European Border and Coast Guard would replace the current European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, better known as ‘Frontex’. With the birth of such a new agency and the redrafting of its mandate, new chances arise to address flaws in the existing accountability framework of Frontex, and ensure that these are not passed down to its successor. In this blog we want to discuss to what extent the European Border and Coast Guard can be held liable for possible human rights violations under the new Commission Proposal. In order to do so, we shall first describe the problems with the accountability of Frontex for human rights violations under the current framework.
Ever since Human Rights Watch published a highly critical report onFrontex in 2011, the judicial accountability of Frontex has been under scrutiny from the academic world. Several authors such Fischer-Lescano and Majcher have raised red flags in regard to the limited possibilities of holding Frontex accountable under Union law for its actions. Notwithstanding its obligations under EU secondary law, Frontex must still comply with its obligations under primary Union law and international humanitarian law. Conform both the Charter of Fundamental Rights (CFR) and the European Convention on Human Rights (ECHR), it may not subject migrants to degrading treatment, respect their right to life and the principle of non-refoulement.
Problematic in this sense is that Frontex operates as a coordinating Agency. It considers its missions and tasks to be very clear: it coordinates and implements operations, whilst forming a platform for cooperation between Member States. Frontex can therefore not be regarded as a regulatory agency which adopts legal acts, or regulatory acts that intend to create legal effects. Hence Frontex escapes scrutiny by the CJEU, which can review legal acts of agencies conform Art. 263 of the TFEU. As longs as it does not concern a legal act or regulations, for instance in the case of violations of fundamental rights by Frontex, it appears that the road to the CJEU is closed. The only small path leading to the Court in Luxembourg, is Art. 19 of the Frontex Regulation. This article states that Frontex can be held liable for damages occurring as a result of its obligations under contractual – or non-contractual liability. However in practice this path is difficult to pursue. In procedural terms, it is often difficult for victims of fundamental rights violations (often refugees, or non-affluent migrants in the case of Frontex) to start the timely and costly procedure before the CJEU. Moreover, the substantive criteria governing the doctrine of non-contractual liability are very difficult to fulfil. Not only does a breach need to be sufficiently serious, but the causal link between the violations and Frontex must be very clear. Due to the coordinating role of Frontex between participating Member States and hosting states of Frontex operational missions, it is often complicated to establish a direct causal link between Frontex and a violation, that is attributable to Frontex, rather than an individual or a Member State.
Furthermore, as long as accession to the ECHR does not take place, Frontex cannot be held accountable before the European Court of Human Rights as an agency of the Union. The Bosphorus-doctrine up to today still governs the relationship between the different Courts, under which the European Court of Human Rights deems both legal acts and actions of the European Union to be complacent with fundamental rights. Therefore Frontex cannot be held liable for its actions before the Strasbourg Court. Exemplary of this setting is the Hirsi v Italy case in which, the European Court of Human Rights mentioned Frontex often in the judgement but refused to hand down a judgement on its actions, and instead reasoned so that liability was imposed upon Italy as the hosting state of the Frontex operation.
This difficulty to start proceedings against human rights violations of Frontex, creates a gap in oversight over the actions and operations of Frontex. Such a gap, might lead to erratic behaviour by Frontex, and an absence of checks and balances to control such behaviour. We therefore believe that a solution must be found to address this problem, and fill the legal vacuum.
The new Commission Proposal bypasses an important possibility of addressing this issue. Whilst is indisputable that the Commission Proposal includes several extra procedural safeguards to ensure compliance with fundamental rights, judicial accountability of the European Border and Coastguard is not ensured. Examples of such safeguards are the obligation of the European Border and Coastguard to draft a fundamental rights strategy, and to instruct their operational teams to comply with fundamental rights, as laid down in Arts. 20, 21 & 33 of the Commission Proposal. However, the rules governing the accountability of the agency have not changed. Art. 59 of the Commission Proposal is a literal reflection of Art. 19 of the Frontex Regulation; thus the European Border Guard can only be held liable for human rights violations conform the same criteria as Frontex.
The Commission Proposal does open two new different ways in which remedies can be obtained for such human rights violations. Conform Art. 72 of the Commission Proposal, victims of fundamental rights violations can file a complaint the Fundamental Rights Officer of the agency. After processing the violations, the Fundamental Rights Officer shall then pursue the allegations and ensure that Member States follow-up on such violations by starting adequate procedures against their nationals, conform their domestic law. However, the framework for this legal route, does not name any remedy for the individual, but only explicitly mentions the handling of perpetrators.
Another, more appropriate legal mechanism for obtaining remedies for violations of human rights can be found in Art. 41 of the Commission Proposal, which focuses on civil liability. Whilst this article does not deal with the civil liability of the European Border and Coast Guard, it does lay down a framework of conditions that allow participating – or host Member States to be held liable for their actions under European Border and Coast Guard missions. The provision boils down to the fact that hosting states can be held primarily liable for any misconduct, unless such behaviour or infringements of law is caused by gross negligence or wilful misconduct. In such cases the participating Member State can also be held liable.
Whilst such an option provides for a clear remedy, – also for human rights violations – it does not solve the problem of the lack of accountability of the European Border and Coastguard Agency before a Court. The remedy can only be obtained from Member States, but not from the Agency. We therefore hope that either this problem is addressed specifically by the Union legislator in the drafting of the final regulation, or the judicial accountability of agencies is taken up in primary law in future Treaty negotiations.