This article belongs to the debate » Frontex and the Rule of Law
09 September 2022

The Secretiveness over the OLAF Report on Frontex Investigations

Rule of Law Fading into Arbitrariness?

Over the last year and a half, the European Border Coast Guard Agency (hereinafter: Frontex or Agency) has received increased attention for, inter alia, its alleged complicity in human rights violations in the Aegean Sea, in Greece. Following an investigation carried out by Der Spiegel and Lighthouse reports, the European Parliament and the EU Ombudsman started their own. Lastly, the Agency got the attention of the EU Anti-Fraud Office (OLAF, tasked with the fight of EU illegal activities under Article 1, Regulation 883/2013).

The investigation lasted one year, but the final report has not yet been disclosed to the public, and it remains uncertain if and when it will be, as the OLAF Regulation does not provide clarity in this sense. Prior to its leak to the press, it had only been presented to selected members of the ‘Civil Liberties, Justice and Home Affairs’ (LIBE) Parliamentary Committee, while the public is being kept in the dark. Notwithstanding, its content is as serious as leading to the resignations of the Agency’s Executive Director.

Of no avail have been the numerous calls made by the LIBE Committee and individual MEPs to publish it, for the sake of transparency. The report is being kept secret, and the Commission made it clear that it was never meant to be published (Minute 14.14, EU Commission Midday briefing 28/07/2022).

The present blog focuses on the implications of the secretiveness over the OLAF Report and its most controversial aspects. Preventing public scrutiny over human rights violations committed by civil servants and precluding access to the evidence needed to exercise the right to an effective remedy should have no space in a Union based on the rule of law.

The secret unveiled

The content of OLAF’s Report remains classified to date. As the Executive Director ad interim and the Frontex Fundamental Rights Officer stated to the European Parliament’s Frontex Scrutiny Working Group (FSWG), not even they have been allowed to read it.

The only information available today is what has been shared by investigative journalists, who received a leaked copy of the report and published some extracts. According to these extracts, human rights violations had indeed been committed in the Aegean Sea by Greek authorities (which carried out their own investigation finding no evidence of pushbacks). Reportedly, the former Executive Director was aware of it and covered them up, ‘lied to the European Parliament, and concealed the fact that the agency even provided support for some pushbacks using European taxpayer money’. Moreover, thanks to its aerial surveillance, Frontex was able to monitor the pushbacks from Warsaw’s headquarters. Hence, the Agency seemed to have been fully aware of the distress situations suffered by migrants at sea, failed to rescue them in violation of the law, and did not denounce the acts of the national authorities. As noted, the activity of a Frontex surveillance aircraft was even suspended to avoid recording future human rights violations. Lastly, journalists unveiled a general culture of disregard for human rights and a deep disrespect for the Fundamental Rights Monitors, who have been compared to violent dictators or isolated for not being ‘real Frontex colleagues’.

Regulation 1049/2001 on public access to documents

Requests to access the report must be directed to OLAF, Frontex, the Commission or any other EU body holding it, as provided under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents.

The Regulation was initially meant to enhance transparency of the EU decision-making process and ensure ‘the widest possible access to documents’ (Article 1 (a)). The Lisbon Treaty extended the scope from the sole three Institutions involved in the decision-making process to any other Institution, Agency, and body of the EU. As analysed elsewhere (Salzano, Gkliati), Reg. 1049/2001 is not the right tool to regulate transparency at any level in the EU: the subjective scope limited to EU citizens (provision that can be discretionally derogated for third-country nationals) and the imperative grounds (contained in Article 4, mentioned below) forbidding public access makes it unfit to ensure transparency of EU Home Affairs Agencies. It also proved to pose similar issues in relations with OLAF’s documents: in fact, the EU Anti-Fraud Office’s document is at the moment inaccessible by the public, a restriction that seems unjustified in light of the impact of its findings on our democracy and individuals’ human rights.

Regulation 1049/2001 provides exceptions allowing partial or total denial to the requests of access to documents. The exceptions contained in Article 4(1) protect public interest and are peremptory: if arising, access shall be denied. Article 4(2) states that Institutions shall refuse access to protect commercial interests, court proceedings or legal advice and purpose of inspections, investigations and audits ‘unless there is an overriding public interest in disclose’ (emphasis added). The public interest in disclosing the report, in this case, is in re ipsa, given the nature of the investigation. Applying the exceptions to deny access to the report does not seem proportionate considering what is at stake: human rights violations, major breaches of the rule of law and the use of EU funds for illegal purposes.

Keeping the report secret does not appear to be justified in light of the CJEU’s case-law either. In the past, the Court recalled (Case T437/08 CDC, Hydrogene Peroxide v Commission) that public access can be denied while the investigations are ongoing, which seems a proportionate requirement to ensure their effectiveness. The Court also stated that the purpose of the exceptions of Article 4(2) ‘is not to protect the investigations as such, but rather their purpose’ (Case T437/08 CDC, Hydrogene Peroxide v Commission). It also repeatedly remembered that exceptions must be interpreted and applied strictly (Sison v Council, Sweden v Commission, Sweden and Turco v Council).

In the present case, the purpose of the investigation was to assess the validity of allegation of ‚harassment, misconduct and migrants pushbacks’ and, as known, investigations were concluded in February 2022. Nonetheless, the victims of such conducts have had no chance to access the documents needed to exercise their effective remedy.

If the investigation was initiated to assess the breach of EU law by top EU officials, reinstate the rule of law and protect those who had been endangered by illegal actions, keeping the report secret is hardly compatible with its purpose or legitimate under the EU law. Considering that the findings of human rights violations were so serious that they led to the resignation of the former Executive Director, the decision of denying the existence of a public interest in disclosing the report may raise questions about its arbitrariness.

Access to the OLAF Report: fundamental right or concession?

Transparency, as corollary of healthy democracy and social accountability, is protected by EU primary law. Article 42 of the Charter of Fundamental Rights protects the right of any EU citizen and any natural or legal person residing or having its registered office in a Member State to access documents. Article 41 protects the right of every person to good administration, as the right to have affairs handled impartially, fairly and within a reasonable time. This entails, inter alia, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy.

While both rights are listed under Title V on citizens’ rights, Article 41 is the only one under this Title to be recognised as a right of every person, regardless of the citizenship. In fact, Article 41 is inherently linked to the right to an effective remedy and a fair trial, protected under Article 47 of the Charter and Article 6 of the European Convention of Human Rights (ECHR). This right cannot know limitations based on nationality, without amounting to an illegitimate discrimination.

Hence, denying access to the OLAF report does not only constitute an unjust exclusion of public scrutiny. It might also imply a violation of EU primary law, should the access to the report be needed to build a case and challenge, for ex., the refoulement suffered by one or more refugees, which may be well reported by an EU body. What is, thus, left of an absolute right, such as the right of non-refoulement, if one has no means to protect it?

Left in the dark, with no alternatives?

On a general note, protecting the confidentiality of investigations of misconduct is not illegitimate per se and, depending on the specific circumstance, might be deemed appropriate. Keeping secretiveness around it becomes highly problematic when accessing the information contained in the report is the only way to breach the fog surrounding a public body’s action. Alternative mechanisms should be put in place to balance the interests at stake: protecting confidentiality, allowing public scrutiny and the protection (or an effective remedy after the violation) of human rights. In order to do so, an ad hoc independent supervisory body (tasked with deciding whether the non-disclosure of a specific document is a proportionate limitation of a fundamental right or an unacceptable constraint to our democracy) would be fit to ensure the impartiality needed to handle such a sensitive situation, especially when issues of criminal liability and human rights violations arise.

Calling for publicity over the OLAF report is key to overcome the shield built around Frontex’s activity, which is otherwise impossible to scrutinise. In fact, as well-reported, the Agency’s transparency is affected by structural shortcomings, such as the opacity surrounding their activities and its incomplete public register of documents. This, alongside the lack of proper (judicial) accountability mechanisms, has made it impossible to hold Frontex officials accountable for their actions so far. Public oversight over the Agency is reduced to less than the bare minimum and is mostly dependent on the work of NGOs such as Statewatch and investigative journalists, acting as safe keepers of our democracy.

As said, the former Executive Director was brought to resign on the basis of the investigation conducted by OLAF. Notwithstanding, neither he, nor anyone of those involved in said episodes are facing legal proceedings for violating EU law. OLAF is an administrative body and, as such, conducts administrative investigations. Fixing the systemic flaws characterising the Agency needs a ruling from a judicial body certifying the illegality of those practices. Without it, a different Management Board does not necessarily entail a different handling of its sensitive tasks. However, obtaining a ruling is being more burdensome that it should be. In fact, as explained, the nature of Frontex activities, its structure and functioning make it particularly difficult to allow the CJEU’s oversight over Frontex, which has never been successfully brought to Court yet. Also, being an EU Agency, neither national courts, nor the European Court of Human Rights (ECtHR) hold jurisdiction over it.

Nevertheless, there seems to be enough evidence for the Commission to bring an action for annulment (Art. 263 TFEU) to review the legality of the agency’s conduct and let it judge its involvement in illegal push-backs. In fact, as privileged applicant, it does not need to prove any interest to initiate an action (Case 45/86, Case T369/07). Notably, the Commission is also the only one among EU bodies that has had access to the report, besides OLAF itself, the former Frontex Management Board and only a few selected MEPs.

For non-privileged applicants, such as EU citizens or third-country nationals whose human rights have been violated by Frontex, bringing the case might be way more challenging, as they have to prove that the challenged act of the agency concerns them directly and individually. Accessing the OLAF report could be the only way to prove so, as other key documents (e.g., Serious Incidents Reports and Operational Plans) are not shared with the public.

Disappointingly, neither the Commission, nor any other EU Institution or body have initiated any formal action against Frontex, nor, as said, has the report been published.

Last resort could be represented by the European Public Prosecutor’s Office (EPPO), which is responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union, among other things (Art. 4, Reg. 1939/2017). Under Art. 101 of its funding Regulation, the EPPO may request OLAF to provide information, analyses, expertise and operational support.

Initiating an investigation is not subject to discretion: the EPPO shall open and conduct one without undue delay (Art. 5 (5)). It is obliged to do so where ‘there are reasonable grounds to believe that an offence within the competence of the EPPO is being or has been committed’ (Art. 26 (1), Reg. 1939/2017, emphasis added).

While the OLAF Regulation recognised the power on the Office’s Director-General to not initiate an investigation due to policy priorities, the annual management plan and the office’s resources (Art. 5 (1)), such discretion is excluded for the EPPO, given its judicial nature.

Therefore, if reasonable grounds are evident and reported, and the EPPO is obliged to initiate a proceeding in such cases, and it is also allowed to access the OLAF report, why has a case against Frontex not been initiated yet?

To conclude, the gravity of the decision of not disclosing the OLAF Report should not be underestimated. The decision of not initiating a proceeding on its basis should not either.

Excluding the public scrutiny over such serious violations of human rights and breaches of EU law committed by those who are entrusted with applying it, weakens our democracy and fails to respect the very same values it was founded on. In a Union based on the rule of law, the accountability of civil servants should be ensured through efficient mechanisms.