31
October
2023

The European Border and Coast Guard and fundamental rights

Fundamental rights are an important consideration in European border management. Virtually all activities can have an impact on rights – from risk analysis to training, border checks and border surveillance. Safeguards in laws regulating European border management aim to protect rights. This report is a contribution to the first review of the European Border and Coast Guard Regulation (EU) 2019/1896 that offers an opportunity to reflect on how best to improve the fundamental rights situation at the external borders of the EU.


2. Frontex internal fundamental rights mechanisms

Respect and promotion of fundamental rights is a core part of the Frontex mandate. The EBCG Regulation equips Frontex with several internal dedicated fundamental rights safeguarding mechanisms: a fundamental rights officer (Article 109), fundamental rights monitors (Article 110), a complaints mechanism (Article 111), a fundamental rights strategy and its implementing action plan (Article 80). These internal fundamental rights safeguarding and monitoring mechanisms are all now in place. With its targeted legal and operational advice, the Frontex Consultative Forum established under Article 108 of the Regulation significantly strengthened Frontex’ attention to fundamental rights.[5] For an overview of the Consultative Forum’s work the Frontex webpage on its work programmes and annual reports.

In June 2021, the fundamental rights officer was recruited by Frontex followed by a deputy fundamental rights officer in March 2022. The size of the fundamental rights office increased from 10 staff in June 2021 to 65 by the end of April 2023, according to the fundamental rights officer. This growth has brought Frontex significant fundamental rights expertise and capacity. However, the overall number of Frontex staff increased and the Standing Corps were established in parallel. With the number of Standing Corps Officers expected to grow to potentially 10,000 by 2027, the expanded fundamental rights office should continue to grow at the same pace as the overall growth of the Agency.

Frontex is required to have fundamental rights monitors to “constantly assess the fundamental rights compliance of operational activities” and to “provide advice and assistance” under Article 110 of the EBCG Regulation. However, there was a significant delay in the recruitment of fundamental rights monitors, who were not in place by 5 December 2020, as required by Article 110 (6) of EBCG Regulation.[6] FRA (2021), Fundamental Rights Report, 10 June 2021.
The positions were only filled in the course of 2022.[7] Frontex (2022), Fundamental Rights at Frontex, Fundamental Rights Monitors.
Through a pilot project running from November 2019 until June 2021, FRA assisted Frontex in establishing fundamental rights monitoring.[8] See Frontex, Fundamental Rights at Frontex, Fundamental Rights Monitors as well as FRA and Frontex to work together on developing fundamental rights monitors, news item, 10 June 2020.
FRA developed monitoring tools and other materials, provided advice on methodologies and conducted pilot monitoring visits to Frontex operational areas to test such tools and to tailor them to the modalities of work and to the tasks of the monitors. In March 2023, Frontex adopted Standard Operating Procedures (SOPs) describing the roles and responsibilities of the fundamental rights monitors. Although monitors have been facing challenges to access certain documents or to observe certain Frontex activities, as reported in theannual report of the fundamental rights officer, FRA expects that the SOPs will address the remaining obstacles.

Article 111 of the EBCG Regulation further developed Frontex’ internal complaints mechanism. The mechanism is available to individuals who consider that their fundamental rights have been violated in the context of Frontex operations. In 2021, the European Ombudsman noted in an own-initiative inquiry the very low number of complaints submitted, delays and other issues regarding replies by national authorities and inadequate transparency about the mechanism’s activities. The Ombudsman provided nine suggestions for improvement, including allowing anonymous complaints and providing a procedure for appealing decisions by the fundamental rights officer.[9] European ombudsman, Decision in [https://www.ombudsman.europa.eu/en/decision/en/1431088] on the functioning of the European Border and Coast Guard Agency's (Frontex) complaints mechanism for alleged breaches of fundamental rights and the role of the Fundamental Rights Officer. Between 2016 and January 2021, the FRO had received 69 complaints of which 22 were admissible.
In 2021, the Consultative Forum also issued a dedicated recommendation on the draft rules on the complaints mechanism. Some of the concerns raised – for example the need for timely response by national authorities – may require an adjustment to Article 111 of the EBCG Regulation.

As required by Article 80 (1) of the EBCG Regulation, Frontex adopted a new fundamental rights strategy in February 2021 and the Management Board approved an Action Plan for the operational aspects of its implementation in November 2021.[10] Frontex (2021), Management Board adopts the new Frontex Fundamental Rights Strategy, news item, 15 February 2021 and Frontex, Management Board Decision 61/2021 of 9 November 2021 adopting the Fundamental Rights Action Plan for the implementation of the Fundamental Rights Strategy, 9 November 2021.
Frontex developed both documents in consultation with the Consultative Forum, which suggested that they be kept as living documents and be regularly assessed by independent experts with fundamental rights expertise.[11] Frontex (2022), Ninth Consultative Forum Annual Report 2021, October 2022, Annex 7.
Frontex’ fundamental rights strategy and action plan could constitute a blueprint for similar national strategies.

One of the guiding principles of the Frontex fundamental rights strategy is to apply fundamental rights due diligence.[12] Frontex (2021), Fundamental rights strategy, Guiding Principles, Warsaw, 14 February 2021.
Under the European Convention on Human Rights (ECHR), rights relevant to border management (e.g. right to life, prohibition of torture, inhuman or degrading treatment or punishment, right to liberty and security) entail positive obligations.[13] Akandji-Kombe, J.F., Directorate General of Human Rights (2007), Positive obligations under the European Convention on Human Rights. A guide to the implementation of the European Convention on Human Rights, Human rights handbook, No.7, Strasbourg, Council of Europe.
Pursuant to Article 52 (3) of the Charter, such positive obligations are also implied in the corresponding Charter rights. A key aspect of such positive obligations is to carry out prior fundamental rights assessments.

Consequently, the fundamental rights office adopted a due diligence policy (not publicly available) setting out a procedure for a fundamental rights impact assessment before starting cooperation activities with third countries.[14] Frontex (2023), Fundamental rights officer, Fundamental rights due diligence procedure on Frontex cooperation with third countries, March 2023.
Such a procedure would, however, also be relevant in the context of Article 46 of the EBCG Regulation relating to not launching, suspending or terminating Frontex activities in case of violations of fundamental rights or international protection obligations that are of a serious nature or likely to persist. As the European Commission pointed out in the fundamental rights assessment of North Macedonia pursuant to Recital (8) of the EBCG Regulation, the Frontex Executive Director and the fundamental rights officer remain bound by the rules in Article 46 on suspending and terminating operational activities in case of serious and persistent fundamental rights violations.[15] Council of the European Union, Commission Staff Working Document Fundamental rights assessment of the Republic of North Macedonia linked to the Proposal for a Council decision on the conclusion, on behalf of the Union, of the Agreement between the European Union and the Republic of North Macedonia on operational activities carried out by the European Border and Coast Guard Agency in the Republic of North Macedonia of 23 September 2022, SWD(2023) 33 final, 2 February 2023.

Overall, the Frontex internal fundamental rights mechanisms now established are expected to function more effectively following a certain period of implementation. However, some legislative adjustments to the complaints mechanism and clearer wording setting out the parameters for a fundamental rights assessment to inform any decision under Article 46 of the EBCG Regulation would further strengthen the internal fundamental rights protection architecture of Frontex.