Why it is so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System

On Friday 23 October, a joint investigation conducted by Bellingcat, Lighthouse Reports, Der Spiegel, ARD, and TV Asahi revealed that the European Border and Coast Guard Agency (Frontex) has been complicit in human rights violations at the Greek maritime border. Videos and satellite photos show how arriving migrant boats are forced to turn back towards Turkey with Frontex vessels and planes watching or participating in the manoeuvre.

Initially refusing to launch an investigation into the matter entirely, on Tuesday 27 October, Frontex confidently tweeted that their internal inquiry into the matter showed all was perfectly fine. After pressure from the Commission, the Frontex Management Board held an extraordinary meeting on 10 November in which it decided to set up an internal sub-group to look into the matter. While the mandate is still to be fleshed out later this month, the current focus is on clarifying some legal questions regarding surveillance at sea and ‘hybrid threats’, rather than on investigating the alleged human rights violations and Frontex’s role therein. On 12 November, the European Ombudsman opened an inquiry into how Frontex deals with allegations of human rights violations, in particular the functioning of its individual Complaints Mechanism.

This is not the first time that Frontex’s human rights compliance has been questioned. Still, this episode stands out not just for the severity of the human rights violations in question and the overwhelming evidence presented, but also for how blatantly it exposes the shortcomings in Frontex’s accountability. This post looks at the structural problems—both in Frontex’s design and the EU’s remedies system more generally—at the origin of this accountability gap.

It Wasn’t Me: Blame-Shifting By Design

As an EU body, Frontex is bound by the EU Charter of Fundamental Rights which inter alia guarantees a right to asylum and protects individuals from collective expulsions and refoulement. As I argue here and here, this not only includes negative obligations, but also positive obligations, requiring the agency to take all reasonable measures to prevent apparent human rights risks from materialising. In other words, Frontex is not allowed to conduct a push back itself, to actively help in one, or watch one happen without doing anything about it. Frontex’s founding Regulation more specifically places it under an obligation to monitor human rights compliance during all its operations and to suspend or terminate any (funding of) activities when serious or persisting violations occur.

However, even where convincing evidence is presented, it is notoriously difficult to hold Frontex to account for failures to meet these obligations. This has to do with Frontex’s set up and working methods. To begin with, there is an ever-increasing number of actors that participate in Frontex’s operations, ranging from Frontex itself to national and local authorities, third states, private parties, and other EU bodies and agencies. The participants span different jurisdictions and have different obligations depending on their legal nature and the legal order(s) they are subject to. ‘Multi-actor situations’ like these are unavoidably challenging when it comes to allocating responsibility for wrongdoing. In the case of Frontex these challenges are compounded by two factors that may or may not be intentional, but are surely avoidable.

First, the roles, powers, and authority of all actors involved are obscure and have to be laboriously pieced together from a broad range of documents. We often do not really know who played what role in determining a particular outcome that led to a human rights violation, and who was in a position to prevent it. Second, the activities of Frontex are generally surrounded by secrecy. Information on daily activities is scarce, essential documents to establish responsibility are not publicly available, and material that is shared is ‘edited’ to the point it becomes useless.

What this means in practice is that even if there is hard evidence of a human rights violation, there is always someone else to point the finger at. An incident reported in the above-mentioned investigation illustrates this well. Footage shows the MAI 1103, a Romanian vessel participating in a Frontex operation in Greece, blocking a refugee boat, manoeuvring around it, and later leaving it to be pushed back to Turkey by the Greek coast guard. While this is clearly contrary to the law, assigning responsibility for it among Frontex, Greece, and Romania requires us to know who had a say in the decision to proceed that way, who could have objected to the decision, and who could have done what to prevent it. As long as this is not transparent, the actors involved will be passing the buck among themselves.

Access to Justice: An Outdated System of Remedies

Having been operational for more than 15 years in one of the most contested fields of EU law, Frontex’s human rights compliance has never been assessed by a court. Aside from the many practical obstacles individuals may face in bringing Frontex to court, it is indeed also legally difficult to do so.

National courts lack the competence to rule on the legality of Frontex’s conduct because it was transferred to the Court of Justice of the EU. International courts, the European Court of Human Rights in particular, are also not competent because the EU has not submitted itself to their jurisdiction. That leaves the Court of Justice of the EU, where individuals will find themselves confronted with two particular challenges.

First, whereas the EU has a ‘shared administration’ in that national and EU authorities cooperate closely in implementing and applying EU law, its judiciary is split between a national level that adjudicates on the legality of national conduct and an EU level that adjudicates on the legality of EU conduct. This means that even though Frontex and the national authorities closely cooperate in the application of the EU rules on border control—to the extent that it is difficult to disjoin their actions for responsibility purposes—each of the participants has to be brought to a separate court. In practice, this leaves an applicant with two possibilities. She can either initiate proceedings in as many courts as there are participants, with a significant risk that at least some of them will be unsuccessful. Or she predetermines who is responsible and only proceeds against that participant. Again, this presents a significant risk considering how difficult it is to allocate responsibility among the involved actors.

Second, there is a lack of avenues to challenge Frontex’s actions more specifically, especially for individuals themselves. While individuals can have certain acts annulled (Article 263 TFEU), the human rights violations we are talking about do not occur in the form of a neatly stamped piece of paper. In other words, there is nothing to annul. Individuals can also hold Frontex liable under the action for damages (Article 340 TFEU). This, as I argue here, is probably the avenue with the most chances of success. But due to the Court’s very restrictive stance on liability, this possibility is also fraught with challenges. In short, in the face of a growing EU executive, the EU’s system of remedies is not up for the task anymore.

Conclusion

Where does this leave us? While we may have evidence of Frontex’s wrongdoing, there are two factors that structurally hinder the functioning of existing accountability mechanisms. First, Frontex’s design allows all involved actors to shift the blame to others. Frontex relies on this to locate human rights responsibility exclusively with the Member States, even though there is no legal basis for it. Second, individuals cannot challenge Frontex’s narrative before a court because the EU’s remedies system is outdated.

A human rights violation as such does not question the legitimacy of an entire system. But one that cannot be remedied does. It is thus essential that allegations of human rights violations can be brought to an independent and impartial body who can assess and—to the extent possible—remedy them. While other accountability mechanisms exist, including especially the European Ombudsman, these cannot be a substitute for individuals making use of their right to an effective remedy by claiming their rights in court. This leaves us with an uncomfortable question: Where is that independent and transparent scrutiny of government action that distinguishes ‘us’—the rule of law champions—from ‘them’—the authoritarian rulers that govern unaccountably?