What’s in a Name?

The plethora of investigations initiated upon the well-substantiated allegations of the involvement of Frontex in human rights violations have placed the issue of the accountability of the agency at the forefront of the public debate and have led to the resignation of its Executive Director, Fabrice Leggeri. Does this development mean, however, that the existing normative framework can ensure the agency’s overall accountability?

This broad assessment covers the non-judicial forms of accountability, namely: administrative (including financial), democratic, and social accountability. It is based on a holistic understanding of accountability, where a combination of judicial and non-judicial accountability mechanisms can together safeguard the rule of law, and where the more ground covered by other forms of accountability, the less urgent the need for access to the (judicial) system of last (or sometimes only) resort becomes. A rigorous system of non-judicial remedies, including, for instance, independent monitoring, can potentially act pre-emptively, adding several layers of supervision to prevent a violation. Vice versa, the narrower the protection offered by non-judicial safeguards, the more pertinent and urgent the availability and effectiveness of a system of judicial remedies becomes.

A new path for democratic or political accountability

As an EU agency, Frontex must justify its actions before the democratically elected institutions, i.e., the European Parliament (EP) and the national Parliaments (Art. 112 of the European Border and Coast Guard (EBCG) Regulation, Article 12 of the Treaty of the European Union (TEU), Protocol 1 of the Treaty on the Functioning of the European Union (TFEU), while Art. 7 of the EBCG Regulation explicitly states that the agency shall be accountable to the Parliament and the Council. In this regard, the involvement of the EP has been strengthened since the agency’s establishment in 2004. The EP is now actively involved in the legislative negotiations, as the EU’s external borders have become subject to co-decision (external borders are now covered under the ordinary legislative procedure, Art. 294 TFEU).

As a form of indirect control, the EP has the power to approve the agency’s budget and thus, exerts its influence upon important issues of human rights concern. The EP has made use of its powers to suspend the discharge of the agency’s budget in 2013 (related to the search and rescue capabilities of the agency), in 2021 and in 2022 (related to human rights compliance).

The EP, in a rare demonstration of its powers and a fair execution of its mandate under Art. 7 EBCG Regulation and under Arts. 13 and 14 TEU, made full use of its supervisory powers establishing a dedicated permanent Frontex Scrutiny Working Group (FSWG) in 2020, and launching an investigation into allegations of human rights violations. This has allowed the members of the European Parliament (MEPs) to take a closer look than ever at the activities of the agency, requesting hearings with the Frontex Executive Directors, the agency’s Management Board, and the European Commission, and structurally studying Frontex documents. Crucially, it has kept the issue current on the political agenda.

In 2022, national Parliaments have started considering the terms of their involvement in Frontex and, at the same time, weigh the possibility of them being held responsible for human rights violations (e.g. Belgium, the Netherlands, Switzerland), strengthening, thus, democratic accountability.

Social accountability under a veil of secrecy

The protection of fundamental rights requires high levels of scrutiny by civil society. However, ‘civil society’ or ‘the public’ is not a unified official forum vested with formal accountability-related powers. Therefore, transparency is an essential requirement. Frontex, as an EU agency, is under the obligation to conduct its work as openly as possible (Article 15(1) TFEU; 11(2) TEU and Article 298(1) TFEU)), while the right to public access to documents is enshrined in Article 15 (3) TFEU, Article 42 EU Charter of Fundamental Rights and Article 2 of Regulation (EC) 1049/2001.

Nevertheless, the lack of transparency is often criticised as a structural problem of Frontex. As crucial information to evaluate the fundamental rights performance of the agency remains unattainable, the journalistic investigation that shook the foundations of the agency’s operations had to rely upon whistleblowers’ testimonies, leaked reports, and forensic investigations. In the investigation of the European Parliament, democratic and social accountability interacted. Journalists, researchers, and civil society organisations offered essential information to the FSWG, while the FSWG investigation itself revealed that the veil of secrecy even extends to the MEPs, who were refused requested documents, or received them with confidentiality restrictions that significantly hampered their work. The most recent striking example is the report of OLAF, the EU Anti-Fraud Office, which found misconduct, concealing evidence, and intimidation of whistleblowers related to pushbacks by three high-ranking officers in Frontex. This scandal, in turn, paved the way for the resignation of the agency’s Executive Director. However, the report was only made available to the MEPs months after its publication, heavily redacted and only in safe reading rooms in Brussels. The information contained in this report is still formally undisclosed to the public,  while it was only recently leaked to the press.

Social accountability for Frontex, whilst much needed, has been long in the making. In this regard, a milestone for social accountability was reached in 2011 with the creation of the Frontex Consultative Forum on Fundamental Rights (Consultative Forum): an independent body of 15 EU agencies and international and civil society organisations. The Consultative Forum provides guidance and independent advice on fundamental rights matters (Article 108 EBCG Regulation). It has broad access to documents and information regarding operations, and it publishes an annual report presenting its observations and recommendations on the agency’s activities regarding fundamental rights. As the Forum has a consultative role, the agency is not bound by its recommendations. As a result, more often than not, its recommendations are disregarded by the agency. Furthermore, it cannot function as a direct link to civil society, although composed of NGOs, due to the confidentiality obligations of its members, while the limited resources of its members and the inadequate support by the agency creates further practical impediments. Consequently, the impact of the Forum is quite limited (Gianetto 2019) and its strategic potential remains unfulfilled.

Administrative accountability: need for external oversight

Having reviewed the social accountability, it is time to turn to administrative accountability. The agency’s administrative accountability includes internal and external oversight systems and mechanisms, which represent the procedural obligations of the agency under the right to an effective remedy and to good administration. External quasi-legal fora can exercise independent, external administrative or financial control and supervision over particular aspects of the agency’s work. In this regard, OLAF investigates illegal reception, allocation of funding, corruption and serious misconduct (Article 117 EBCG Regulation). Moreover, the European Court of Auditors exercises control over the budgetary and financial management of the agency (Article 116 EBCG Regulation). The European Ombudsman can also receive complaints regarding denied requests for access to documents or other types of maladministration against the agency (Article 228 TFEU, Article 43 Charter, Article 114(5) EBCG Regulation). To add to this, the Ombudsman can conduct its own initiative inquiries. In recent years, the EU Ombudsman has opened three inquiries in response to complaints regarding public access to documents and the agency’s complaints mechanism (2019, 2020, 2021). Furthermore, the European Data Protection Supervisor plays a supervisory role over matters of privacy and data protection.

Whereas external supervision is robust in financial affairs and certain procedural administrative matters, the current accountability framework concerning human rights is primarily internal. The Executive Director is first and foremost accountable to the Management Board (MB), which is also responsible for monitoring the overall function of the agency. While the agency’s MB has been relatively silent until now, it has been forced to act by issuing an investigation into the alleged fundamental rights violations in the Aegean. However, in the end, the MB found no substantial evidence of fundamental rights infringements, an outcome which was heavily criticised. The main criticisms entailed that the MB had missed the opportunity to carry out an independent inquiry, which also failed to involve the Fundamental Rights Officer and the Consultative Forum.

It can be noted that the agency has developed a Fundamental Rights Strategy and Codes of Conduct to ensure respect for fundamental rights in Frontex activities, complemented by a Fundamental Rights Office (FRO), who monitors respect with fundamental rights – one of the most progressive steps in administrative accountability since 2019 staffed with dedicated fundamental rights monitors –  and an individual complaints mechanism, which allows victims of fundamental rights violations to issue a complaint with the agency. However, the implementation of these safeguards in practice falls short in part as result of the limited resources of the FRO, the negative perception of the effectiveness of monitoring, the weaknesses of the complaints mechanisms, and the lack of practical tools for implementing the Codes of Conduct.

Conclusion

Having applied a bird’s eyes view to the main non-judicial accountability mechanisms, we can note that despite its promising potential, the existing framework for the non-judicial accountability of Frontex cannot secure a sufficient standard of accountability in practice.

Firstly, it can be observed that there is not one specific and consistent framework of accountability nor is there a coherent set of accountability standards and mechanisms. The result is a loose compilation of several fora, which cannot be deemed to complement each other like the match of multiple pieces of the same puzzle. We can, thus, hardly talk of a system of accountability. These present a fragmented picture instead.

Concerning the separate fragments, the existing political accountability mechanism reveals a severe democratic deficit. Although the involvement of the EP has been strengthened at the legislative level, several gaps remain in the operational field, where most important decisions are made. This is bound to lead to weak parliamentary control. Moreover, a lack of awareness over the activities of Frontex renders control from national parliaments practically ineffective.

With respect to social accountability, much is kept from the public eye. Most importantly, the right to access to documents is not adequately applied, as a vast number of requests are partly or wholly denied on the ground of public security. Furthermore, the impact of the Consultative Forum is fairly limited. All in all, the veil of secrecy covering the specific activities of the agency does not facilitate proper scrutiny by civil society, constituting social accountability equally ineffective, thus, compromising this vital element of accountability.

Finally, the monitoring of the FRO is a weak method of scrutiny, as he has limited powers and impact on the agency’s work. This is problematic, as the crown jewel of administrative accountability – the individual complaints mechanism – fails to meet international standards of accessibility, institutional independence, and adequate capacity for evidence-based investigation, meaning it does not provide a suspensive effect in the context of joint expulsions. While the legislature and the agency have created fertile ground for administrative accountability, this cannot be achieved if the monitoring mechanisms remain primarily internal, ineffective, and without adequate enforcement.

In sum, the available non-judicial forms of accountability are insufficient to ensure the accountability of the agency. Neither their combination nor the respective parts can constitute effective non-judicial remedy in the meaning of Article 13 of the European Convention for Human Rights and Fundamental Freedoms, while their pre-emptive functionality is not deemed adequate to prevent violations. Therefore, the need for legal accountability in the form of judicial remedies becomes all the more essential.

Nevertheless, it needs to be emphasised that the recent attention to the agency’s fundamental rights obligations, including the Executive Director’s forced resignation, is the result not of one but the different accountability mechanisms working together. It is the very first time we see such combined and robust activity, with the different political, administrative, and social accountability mechanisms applying soft but effective pressure, at least in terms of a change in leadership.

Still, such systemic issues are never the work of one person. They reflect, instead, policy choices and require structural changes. The different mechanisms need to show more vigilance than ever to stress the need for effective independent external monitoring, and to improve the existing accountability infrastructure. This includes, amongst others, ensuring the unrestricted access of fundamental rights monitors to the whole operational area in all Frontex operations, the compliance with the advice of the FRO and the Consultative Forum, and the development of clear criteria and due diligence procedures for suspending or terminating operations in case of serious and persisting violations. In this sense, replacing the Executive Director is not the end of the accountability process, but rather a new beginning. This new beginning cannot but also include the judicial route as well, even in spite of the numerous procedural hurdles.