Fundamental rights are an important consideration in border management. Safeguards in laws regulating European border management aim to protect rights under the Charter of Fundamental Rights of the EU (the Charter). The review of the European Border and Coast Guard Regulation (EU) 2019/1896, hereafter referred to as the EBCG Regulation, offers an opportunity to reflect on how best to improve the fundamental rights situation at the external borders of the EU.
This is FRA’s contribution to the first evaluation of the EBCG Regulation pursuant to Article 121 (3) and (6).
The European Border and Coast Guard is established in law under the EBCG Regulation. The European Border and Coast Guard is composed of the European Border and Coast Guard Agency (Frontex) and Member State authorities responsible for border management and return.
Over the last 15 years, the European Union Agency for Fundamental Rights (FRA) has engaged extensively in the field of border management and return by issuing reports, opinions, and practical tools, as well as providing training and other capacity building activities to the European Union (EU) and its Member States. FRA has also engaged in real-time response actions. In 2010, FRA concluded a cooperation arrangement with Frontex and since then has been providing Frontex with fundamental rights expertise. In 2018, following a request by the European Parliament, FRA issued an opinion on the fundamental rights implications of the then proposed EBCG Regulation.
The EBCG Regulation contains several references to fundamental rights. For the evaluation, Article 121 of the EBCG Regulation requires the European Commission to seek input from both FRA and the Frontex Consultative Forum. This contribution is the Agency’s response to the European Commission’s request of 2 February 2023.
Fundamental rights are an integral part of the European integrated border management under Article 3 (2) of the EBCG Regulation. Virtually all activities by Member States and Frontex may impact on fundamental rights – from risk analysis to training, border checks and border surveillance. Activities such as these may impact on absolute rights such as the right to life, the prohibition of torture and other forms of ill-treatment, and the principle of non-refoulement. The fundamental rights safeguards included in the EBCG Regulation and, more generally, in applicable EU law relating to border management, aim to ensure that interferences with fundamental rights conform with the Charter. Safeguards also aim to promote fundamental rights, which is one of Frontex’ task in Article 10 (1) (ad) of the EBCG Regulation.
This contribution identifies six key areas where evidence suggests that legislative adjustments might be the most appropriate solution to address identified fundamental rights gaps.
For other issues, FRA refers to the contribution submitted by the Frontex Consultative Forum and, for the Frontex complaints mechanism, to the inquiry by the European Ombudsman.
This contribution is based on FRA’s extensive work at the EU’s external borders and in the field of return, including research carried out for different FRA publications, such as FRA’s annual Fundamental Rights Reports, regular migration bulletins, and forced return monitoring updates.
It also builds on FRA’s work on fundamental rights monitoring at external borders, country visits to Member States, and FRA’s interactions with Frontex on a wide range of issues under the 2010 cooperation arrangement. In addition, FRA visited Frontex headquarters on 22 March 2023 for bilateral discussions with staff on the issues covered in this contribution.