An ‘Impossible Trinity’?

The resignation of the Executive Director (ED) of the European Border and Coast Guard Agency (hereinafter ‘Frontex’) at the end of April 2022 largely results from the report of the European anti-fraud watchdog, OLAF, on misconduct, concealing evidence, and intimidation of whistleblowers related to pushbacks. This report, still not formally disclosed, has been recently leaked to the press.

Prior to the OLAF report, several news outlets,  as well as political and administrative inquiries had cast light on the management of the ED Mr Leggeri, raising several allegations of breaches of the law. These include workplace harassment, fraud in public procurement, delays in hiring fundamental rights monitors, and participation in and covering up of pushbacks and other fundamental rights violations conducted by Greece and other Member States, as well as violations of the internal rules concerning the serious incidents reporting system. In a nutshell, it is since 2020 that the conduct of Frontex has come under scrutiny and the ED has been criticised for his approach to the exercise of its mandate.

Surprisingly, the agency’s Management Board (MB) accepted the resignation and considered that “launching further proceedings against the Executive Director (…) is not necessary anymore, since the outcome of these proceedings will no longer affect the position of the Executive Director.” (sic!). This controversial solution allows for the concealment of the circumstances of the resignation under a veil of secrecy.

Apart from this unjustified lack of transparency, we note that the lack of answerability in this regard is particularly problematic. This can cover the personal criminal, civil, administrative, and financial liability of the ED towards the agency, but can also go beyond the person of the Executive Director, potentially concerning other Frontex staff. Furthermore, beyond the microscale perspective of this specific event, the resignation of the ED leaves open several macroscale issues, which are fundamental and salient since they affect the overall legitimacy of Frontex. These broadly concern the oversight and the accountability mechanisms in place over the Agency as a whole.

It is, therefore, necessary to engage in a new analysis over the emergent European administration, especially since Frontex is a ‘jewel of the crown’ among migration agencies, increasingly mandated to exercise enforcement powers, in cooperation with other EU and international agencies and other (state and non-state) actors. Against the background of the well-substantiated allegations of significant gaps between the legal obligations of the Agency and its work in practice, along with the undeniable evidence of systematic and widespread violence at the external borders of the EU, there is ample evidence that the respect of the rule of law at the EU external borders is jeopardised.

In search of the rule of law and the EU external borders

On the wave of several emergencies, boosted by a ‘polycrisis’ narrative (Zeitlin, Nicoli, and Laffan), EU governance has witnessed the empowerment of EU executive agencies, including in the context of border management. Frontex, in particular, has become a core actor in this emerging EU administrative machinery with its evolution featuring increased executive operational powers, including the use of service weapons, and a significant organisational expansion, in terms of both staff and budget.

In this context, it becomes crucial to investigate whether this ‘success’ is adequately underpinned by a solid legal framework, granting respect for the EU rule of law. The core function of the rule of law for the emergent EU administration is to constrain the discretion exercised by agencies -in the framework of their operational autonomy- to respect the legal framework, including the protection of human rights. This constitutional dimension becomes relevant due to the increased inter-agency cooperation, and the growing trends of digitalisation, informalization, and externalisation. Moreover, the safeguarding of the rule of law needs to be founded on a system of effective checks and balances that can ensure accountability in case of breach of the legal framework.

In her seminal work ‘Accountability in the European Union’, Carol Harlow explores the links between accountability and the rule of law, referring to Oliver’s definition of accountability as:

‘a framework for the exercise of state power in a liberal-democratic system, within which public bodies are forced to seek to promote the public interest and compelled to justify their actions in those terms or in other constitutionally acceptable terms (justice, humanity, equity); to modify policies if they turn out to not have been well-conceived; and to make amends if mistakes and errors of judgment have been made’.

According to this perspective, accountability is closely related to the rule of law. Thus, these evolving traits of the emerging EU administration of the external borders urge a reflection upon the oversight and accountability instruments in place, precisely to strengthen the respect for the rule of law.

Open challenges to the rule of law as accountability at the external borders of the European Union

 In international macroeconomics, the term ‘Impossible Trinity’ refers to three elements, which are impossible to coexist. In this Verfassungsblog series, we examine whether the EU’s external border policy, Frontex and the rule of law constitute such an ‘Impossible Trinity’, or whether they can be reconciled with appropriate accountability mechanisms. For this reason, we debate with some of the most important experts on the topic in an attempt to shed light on the knots of this trinity and propose solutions. The authors cover different aspects of the rule of law in Frontex operations, identify the relevant gaps in the current legal framework, and call for the necessity of further action, including legal review.

The debate series starts with a post by Luisa Marin, which illustrates the emergence of a rule of law crisis in border management and addresses internal and external oversight mechanisms over Frontex. The blog focuses on the Frontex MB, which is the first oversight body that monitors the Agency as well as the ED. Florin Coman-Kund complements this analysis by focusing more specifically on the hybrid nature of EU external border management, which challenges accountability. He argues that hybridity leads to a lack of clarity and thereby of adequate controls and accountability.

The six following posts delve into specific aspects of accountability. First, Mariana Gkliati’s post applies a bird’s eyes view to the main non-judicial accountability mechanisms of the agency, including administrative, democratic, and social accountability. It paints a fragmented and ineffective picture of accountability. Following this, Elspeth Guild analyses the monitoring of fundamental rights compliance at the EU external borders, focusing notably on the Fundamental Rights Officer, the Frontex Scrutiny Working Group (set up by the European Parliament), and the European Ombudsman. Immediately after, Salvo Nicolosi crosses to the side of judicial accountability, identifying relevant gaps in the procedure before the Court of Justice of the European Union. Finally, Tineke Strik’s contribution sheds light on the democratic accountability of Frontex and the role of the European Parliament, and Michele Gigli completes this perspective offering a close-up look upon the financial accountability of the agency. Laura Salzano closes this section with an in-depth analysis of the secrecy of the OLAF report, stressing how transparency is instrumental to the rule of law.

The three last posts offer a look into the future and investigate the rule of law dilemmas that are to come with respect to specific developing activities of the agency. Sarah Tas with an eye on privacy and data protection, looks at the supervision of the Agency’s data processing and intelligence role. Amanda Musco Eklund in her two-part contribution analyses the European Travel Information and Authorisation System (ETIAS), the Central Unit of which is managed by Frontex. Her posts deal with algorithmic discretion, the principle of legality and judicial oversight.

All in all, we argue that border management can and must be reconciled with the rule of law, though we are aware that the ‘trinity’ reveals important ethical dilemmas underlying one of the most salient challenges in contemporary governance. This Debate is developed with the aspiration to contribute to the solution to the human rights challenges faced by EU migration law as a result of ‘policies of non-entrée’, which lead to the regression of the rule of law; furthermore, this nurtures an overall legitimacy crisis of the EU in a domain where its role is constantly expanding. In the words of Canivez: ‘As the fundamental values the EU claims to be based on are of importance to European identity and to European legitimacy, not implementing them in EU policies potentially has strong negative effects and threatens the legitimacy of the European project’.

Thus, after the resignation of the ED, we seek, in this Debate, to pave the way for the next steps that must be made to ensure the effective protection of fundamental rights and adherence to the rule of law. Only this path can lead to the solution of the ethical dilemma sketched above and can, consequently, safeguard the legitimacy of the European project.

The Editors wish to thank Niels Hoek (Radboud University) for his valuable editorial assistance and support.