Abstract: The growth of a mandate of the European Border and Coast Guard Agency, also called Frontex is very closely linked with changes in area of migration. Specifically, the greatest impact on the need for various flexible changes were caused by illegal migration and its flow. The European Border and Coast Guard Agency went through significant changes and the area of responsibilities has been extended. The author wants to refer to these significant developments and the importance of the Agency’s role in border management, border protection and control. Because the illegal migration is also a flexibly changing phenomenon, the European Border and Coast Guards Agency’s mandate also responds to these changes.
Key words: European Border and Coast Guard Agency, Frontex, European Union, Member States, Schengen, external border, integrated border management, border control, standing corps.

Introduction

The illegal migration is an undesirable element that affects all European countries and currently resonates in various areas all over the world. It is a political, sociological, economical as well as a geographical phenomenon. It is the subject of demographic studies and statistics. Due to its broad-spectrum effects and possibilities of research, it is almost impossible to create a unified theory that would explain migration trends in the world. Migration is currently taking various forms, either economic, political, social, security or environmental. Because of its commonness, it will most likely affect the development, organization and direction of the world, Europe and to a significant extent, the European Union.

The founding Maastricht Treaty already conferred European Union with prerogatives in migration and asylum matter. Article 3.2 of the Treaty on European Union calls for ‘appropriate measures with respect to external border controls’, on its basis common standards are being developed slowly but surely throughout the European Union’s territory. The aim is to gradually put in place an integrated system for managing these common standards. The topic is even more strategic since the entry into force of the Schengen Convention¹ in 1995, abolishing border controls between the 26 countries that have ratified this agreement. The national lands of these countries are composing the so-called Schengen area.

The perks of this artificial construction are numerous: limited internal control checks and enhanced freedom of movement for persons and goods across the countries among others. However, the Schengen area also implies a strong management of the European Union’s external borders to be able to maintain its existence. Indeed, Europe's ambitious construction to symbolically erase the borders carries a great risk as it constitutes an opportunity and an incentive for sophisticated cross-border crime. Illegal migration, which we are witnessing today, poses a serious security threat to Europe and its fundamental freedom. The phenomenon of illegal migration has existed here for many years hand in hand with the associated security risk.

Therefore, the protection of the European Union’s external border has long been at the heart of the European Union's agenda. The guarantee of the internal security and prevention of potential threats at the borders was planned to be reached based on the trust, solidarity, and cooperation of the Member States². One of the main illustrations of this solidarity mechanism is the introduction in 1990 of the so-called Dublin convention that defines the country responsible for the registration of asylum seekers³. Its main aim was to eliminate the pre-existent ambiguity of the responsible Member State which until then had led to “countless cases of ‘asylum shopping’, ‘multiple asylum applications’ and ‘refugees in orbit’”. ⁴

Representatives of the Member States were already aware of these border challenges in the late 1990s, and this coincided with the first responses to the institutionalization and integration of the management of the European Union's external borders. One of the first formalized declaration of this need can be found shortly after the terrorist attack of New York, in December 2001 during the Laeken summit. In its conclusion, Member States stated that “better management of the Union’s external border controls will help in the fight against terrorism, illegal immigration networks and the trafficking in human beings. The EU Council asks the Council and the Commission to work out arrangements for cooperation between services responsible for external border control and to examine the conditions in which a mechanism or common services to control external borders could be created.” ⁵

The realization that the protection of external borders can only be achieved at a transnational level has led to the creation of the European Agency for the Management of Operational Cooperation at the External Borders, known as Frontex (hereinafter "Agency”).

Establishment of a definition of the European Border and Coast Guard Agency mandate

The immediate step towards the institutionalisation of integrated border management is the European Commission's proposal to establish a European Agency for the Management of Operational Cooperation at the External Borders of 11 November 2003. This initiative was based on the power conferred to the European Union by the funding Treaties and more precisely, within Title IV of the Treaty establishing the European Community, Article 62(2)(a) which foresees the adoption by the Council of measures establishing “standards and procedures to be followed by Member States in carrying out checks on persons at such borders”. The core mission of the newly created Agency was mainly centred around the coordination of the Member States’ activities in this field therefore, a no political role nor the power to submit legislative proposals was originally foreseen in the scope of the Agency’s mandate. Agency’s activities were not initially foreseen to replace the activities of the national units responsible for control and surveillance at the external borders. According to the Commission’s proposal⁶, the main tasks of the Agency were mainly as follow:

• coordination of operational cooperation between Member States in the field of control and surveillance at the external borders;
• providing assistance to Member States in the training of their national border guards;
• risk analysis;
• supporting Member States facing circumstances requiring increased operational and technical assistance at the external borders;
• harmonisation of operational cooperation between Member States in the expulsion of illegally staying third-country nationals.

The European Council in November 2003 has expressed its full agreement with the European Commission's proposal. In addition to voice its support to the proposal, the Council stated that the creation of such an Agency was the most acceptable compromise to ensure the integrated protection of the external borders⁷. It further suggests that the Agency should take up its duties by 1 January 2005 at the latest. The European Border and Coast Guard Agency, so-called Frontex (the name originated from the French language “Frontières extérieures" meaning the external borders) was established by Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. This was the very first name given to the Agency.

The timing which led to the creation of the Agency is also in tune with the great enlargement of the European Union with ten new Member States in 2004 which introduced concerns about the capacity of the newcomers to effectively control their borders.

The implementation of the Agency’s first mandate (2005 – 2007)

The Agency began to be operational on 3 October 2005 and was the first European Union’s Agency to be based in one of the new European Union Member States from 2004. The seat was set up in Warsaw, Poland. This location can be seen as a strong politic symbol of the willingness to integrate further Eastern Member States to the European construction.

It is worth underlying the choice of the European Union to create an Agency to deal with migration matters instead of another entity. As Leonard S. mentions in his article⁸, when it comes to strategic areas Member States and the Council “are likely to privilege the setting up of a relatively weak agency, which they can control through its Management Board and which is limited to the coordination of the activities of national bureaucracies in a specific policy area”.

Indeed, the Agency was centrally and hierarchically organised with a Management Board, consisting of one person of each Member State as well as two members of the European Commission. The Member States representatives are operational heads of national security services concerned who are experts in border guard management. The Management Board is the leading component of the Agency, controlling the personal, financial, and organisational structure, as well as initiating operative tasks in annual work programmes. Additionally, the Board appoints the Executive Director. The latter is the second most important actor in the Agency’s organigram as his/her functions encompasses:

• to prepare and implement the decisions and programmes and activities adopted by the Agency’s Management Board within the limits specified by Regulation, its implementing rules and any applicable law;
• to take all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the functioning of the Agency in accordance with the provisions of Regulation;
• to prepare each year a draft working programme and an activity report and submit them to the Management Board;
• to exercise in respect of the staff the powers;
• to draw up estimates of the revenues and expenditure of the Agency and implement the budget;
• to delegate his/her powers to other members of the Agency’s;

According to Mr. Ilkka Laitinen, the first Executive Director of the Agency, “We can classify the tasks performed by the Agency as operational, cooperation, coordination, training and research and development activities.” ⁹ To sum up, even though it remains the task of each Member State to control its own borders, the Agency had to ensure that that they all do so while complying with the same high standards of efficiency. Based on the Council regulation No 2007/2004, The Agency shall be a body of the Community and shall have legal personality.

In 2006, the Agency started to carry out its very first joint maritime operations with Agios, Hera, Gate of Africa and Poseidon across Mediterranean see and Atlantic Ocean. These operations were triggered by a peak of irregular immigration, for instance the one which started in the road from West Africa to the Canaries Islands.

The first revision of the Agency’s founding regulation (2007 – 2011)

Due to the unexpected and very dynamic development experienced by the Agency in the first years of its existence, it was soon clear that there was a strong need to take several measures to improve its organizational capacity. The first significant change took place four years after the establishment of the Agency. In 2006, the European Commission came up with a proposal to create a so-called the "European Border and Coast Guard Team". This term encompasses the project of a team of border guards and other relevant staff from participating Member States, including seconded national experts (so called “SNE”) that are seconded by Member States to the Agency, to be deployed during joint operations, rapid border interventions as well as in the framework of migration management support teams.

This proposal was formalised within the Regulation (EC) No 863/2007 of 11 July 2007¹⁰ or so-called “RABIT regulation”. It must be underlined that the possibility for the Agency to launch rapid border interventions was strictly conditioned by the request of a Member State facing large influx of migrants through irregular channels. This is the first reference to irregular migration in the Agency’s regulation. Upon receiving a formalised request for support from a Member State, the regulation gave 5 days to the Agency to assess whether a deployment can organised. This intervention is then under the commandment of the host Member State and border control operations are carried out in accordance with the Schengen Border Code. All together more than 11 million euros have been allocated of the Agency's annual budget in 2006 to joint operations, pilot projects and support Member States in organising joint return of illegally staying third-country nationals.

The operations included joint border patrols at the Mediterranean Sea and the Canaries, deployment of groups of experts seconded from different Member States, assisting in identification of illegal immigrants as well as enhanced exchange of relevant information between Member States' migration management services.

The content of the first mandate of the Agency is pretty much reflecting the state of play of the European border control policy at that time. The Member States were reluctant to allow their national sovereignty more taken away in the name of European harmonisation. The RABIT regulation was designed to leave to the Member States the power of initiative as well as the control of any team deployed in its national territory. However, this approach self-centred around each Member States is not relevant when facing simultaneous migratory crisis across European Union.

The introduction of EUROSUR in the Agency’s mandate (2011 – 2016)

The unprecedent migration waves coming to Europe territory has triggered several reactions from the Member States and the European Union. One can notice that unfortunately the reactions were not harmonised. This can be explained by the absence of strong asylum policy but not only. The reasons underlying the lack of a single European reaction are pluriform but mainly linked to the lack of information shared between Member States and the Agency.

Therefore, the Agency was granted with a new function that was designed to allow a greater coordinating role in joint operations and greater information systems. One of the main tools created in this regard was the European Border Surveillance system (EUROSUR) which is a framework for information exchange and cooperation between Member States and the Agency to improve situational awareness and increase reaction capability at the external borders. Introduced by the Regulation (EU) No 1052/2013¹¹, this system is operated by the Agency and rely as well on the National Coordination Centre (NCC) of each Member States. These are operating on a 24/7 basis and act as a focal point for border surveillance at national level. Within this framework, Member States share their national situational picture and report to the Commission their cooperation with neighbouring third countries. In addition, the Agency is operation EUROSUR fusion services that is gathering data collected by different European institutions such as the European Maritime Safety Agency and the EU satellite Centre. EUROSUR allows a better flow of information that is now continuous and based on various inputs provided by a wide range of European stakeholders.

Along the same time period, the system created by the Dublin regulation was heavily criticised both by the Member States as well as the human rights defenders for putting too much pressure on one State and accentuate further the inherent geographical realities at the European borders. The migratory pressure, especially along the Western Balkan Route in 2015, coupled with the terrorist attacks that took place in Europe are the two main crisis situations that the EU had to face since the adoption of EUROSUR. It clearly highlighted the need to take a step further in the European migration policy as the Member States were not able to find a common agreement on the way to tackle these issues. Prior to the refugee crisis, only three countries had erected fences at their external borders to prevent the migratory flows, there were respectively Spain, Greece, and Bulgaria. The increased pressure at the external borders initiated more of these initiative among the Member States.

The planned enlargement of the Agency’s mandate has caused several debates on whether the border management was still in the remit of the Member States.

However, there was a strong consensus for the development of an extended mandate within the political management of the European Union. In its resolution of 2014¹², the European Parliament already called for the Agency to strengthen its role in the safeguard of Schengen acquis. Additionally, when delivery the State of Union speech in 2015, Mr. Juncker made a strong statement by emphasising that “[t]here is not enough Europe in this Union. And there is not enough Union in this Union¹³.” He continued then by calling for a better management of the migratory crisis and expressed the willingness of the European Union to “strengthen Frontex significantly and develop it into a fully operational European border and coast guard system”.

The strengthening of the Agency’s mandate (2016 – 2019)

Ultimately in 2015, European Union and the Member States finally came to an agreement on the content of the new the Agency’s mandate with the regulation 2016/1624¹⁴. The aim was pretty much straightforward: to track irregular immigration and to combat smuggling networks more effectively by expending the Agency’s mandate in relation to the European integrated border management. The latter includes to “manage the crossing of the external borders efficiently and address migratory challenges and potential future threats at those borders, thereby contributing to addressing serious crime with a cross-border dimension and ensuring a high level of internal security within the Union. At the same time, it is necessary to act in full respect for fundamental rights and in a manner that safeguards the free movement of persons within the Union¹⁵”.

First novelty is the renaming of the Agency into the European Border and Coast Guard Agency. This new title is putting a stronger reference on the core missions of the Agency.

Secondly, the components of the European integrated border management are legally named and defined by the article 4 of the regulation. It now comprises twelve elements. The Agency has issued a technical and operational strategy¹⁶ for the European integrated border management.

Thirdly, the Agency is empowered with a supervision role in the vulnerability assessment of the Member States and has the duty to assess the challenges at their external borders by considering their equipment and resources available. Based on this evaluation, the Executive Director of the Agency can address some recommendations to the Member State evaluated on the best way to address the identified vulnerabilities. This goes hand in hand with the new tasks of the Agency to carry out risk analysis on cross-border crime and migratory trends. In addition, this task can be seen as complementary with the leading tasks of the Agency in the framework of the EUROSUR.

Fourthly, as an echo to the first revision of the Agency’s mandate introducing the rapid intervention team, the new regulation provides the Agency with a reaction pool of 1 500 officers who can be deployed within three days. These officers are planned to be put at the disposal of the Agency by the Member States. On the same model, a pool of equipment such as vehicles, is to be constituted by the Agency. Here, one can see again the accent that is put on the coordination role of the Agency but there is no trace of any power of initiation. In fact, the efficacity of this system is dependent on the Member States’ existing procedures to trigger rapid intervention. Without such procedures in place this system only remains a possibility therefore this competence allocated to the Agency is a reminder that border management is still implemented first and foremost by the Member States.

Other novelty brought by this mandate, the Agency takes a stronger role in the return operations, and particularly in relation to the migrants’ reception in the hotspots. This comes in addition of the already assigned tasks of the Agency to register and screen the migrants upon their arrival.

Another innovation to highlight is the possibility for the Agency to deploy liaison officers in Member States, in addition to the previous ones deployed in third countries. The liaison officers not only collect information, but they also provide support in third countries dealing with immigration-related issues such as the identification of persons in need of international protection. The European network of immigration liaison officers (ILO) exists since 2004 but its founding regulation¹⁷ was amended in 2019 to offer a better role to play for the Agency in this matter.

Finally, the Agency also received through this mandate a greater role in the field of cooperation with third countries. Nevertheless, joint operation on the soil of third countries can only be launched based on a status agreement.

However, despite that the measures foreseen in the mandate were not all fully implemented, such as the establishment of an EU vehicle pool, the initiative to strengthen the Agency’s capacity to fulfil its missions can been perceived as successful. As an illustration, based on the Commission report from 2018¹⁸, the EUROSUR was perceived by the Member States to have contributed to enforcing synergies at European level, hence limiting costs at national level. The report even states further that “the EU added value of EUROSUR is fully acknowledged by the EU border management community. Removing the EUROSUR framework is not conceivable since most Member States now depend on it for border surveillance”.

One of the most relevant tools to assess at a larger scale how the Agency did complete its new mandate is the special report of the European Court of Auditors (hereinafter “ECA”) on the Agency’s support to external border management¹⁹. This report is focused on the Agency’s core activities from the into force of the regulation 2016/1624 until December 2020. Its conclusions are highlighting the flaws of the implementation of the new mandate and propose several suggestions to address these weaknesses. One of the main negative assessments made was done in reference to the reoccurring gaps in the deployment of the Agency’s missions in hotspots therefore causing a lack of efficient support during challenges at the borders. The Agency responded to this criticism by stating that “during 2019 there was no Rapid Intervention Exercise due to the fact that the new mandate was being negotiated by the legislator with a view to adoption²⁰”.

Once again, one can see that the Agency’s intervention is strictly limited by the content of its mandate, there is no room for manoeuvre outside of it. Only three years after the reorganisation of the Agency’s mandate, it was already time to enhance it further.

The introduction of the first European uniformed law-enforcement service (2019 – ongoing)

During the summer 2018, the European Commission has introduced a new reform proposal for the Agency²¹. Its content was politically agreed between the European Council and the European Parliament and officially signed by the European Council on 8 November 2019. The result of this negotiation was formally expressed via the regulation (EU) 2019/1896²² also called the 2019 EBCG regulation. This regulation is a development of the Schengen acquis on border control as stated by the article 77(2)(b) of the Treaty on the functioning of the European Union.

It is worth noting that this regulation was adopted without prior risk assessment despite the urge of the European Council to base the new mandate on strong justifications or previous assessment of the Agency’s previous mandates. However, the Commission already stated in reaction to the ECA’s report on the Agency’s support to external border management that “The 2019 EBCG regulation provides the basis for addressing several of the recommendations made by the ECA. The implementation of recommendations addressed to the Commission is already starting.²³”.

The plan is ambitious: it is for the Agency to supervise not less than 10 000 border guards, or so called “standing corps” to secure the European borders. The regulation therefore introduced the EU’s first uniformed law-enforcement service. It sends the strong political signal that Member States would not be left alone in tackling irregular immigration. The idea is, however, not new. Already in 2001, Germany and Italy had presented a joint initiative aiming to establish a “European Border Police” to the Council. This possibility was explored via the Odysseus programme but was not developed further due to the resistance of few Member States. At that time the Agency was not even created therefore there was no proper set-up which could have supervised such initiative. Therefore, the launching of the European Border and Coast Guards standing corps (so-called EBCG standing corps) projects can be considered as an attempt to restore the confidence in the security of the Schengen area and core philosophy. It also shows an enhanced political determination from the Member States to tackle the migration pressure in a more efficient way. The main aim is to build a permanent but flexible mechanism to ensure the European collective ability to deal with several challenges at the external borders as the previous mandate didn’t grant the Agency with enough competences and resources to do so effectively. This mechanism encompasses three categories of standing corps:

• Category 1 which is composed of statutory staff from the Agency who are conferred executive powers as the ones from Member States
• Category 2 Standing Corps officers who are national experts deployed for short-term missions in joint operations
• Category 3 which is made of experts from Member States who are deployed on a long-term basis

All the EBCG standing corps are to follow a common basic training and pre-deployment training in order to share common operational practices and be able to work together in a complementary manner. Category 1 will be trained in their field of specialty according to the profile(s) assigned to them. The list of profiles was set up by the Management Board of the Agency in a decision of 2020²⁴, based on the operational needs established by the various risk assessments and vulnerability assessments carried out by the Agency. The new Agency’s task force of 10 000 European border guards aimed to be fully implemented by 2027. The size of the foreseen pool of EBCG standing corps was defined by the Commission and other European stakeholders based on the future operational needs in border management as well as to ensure the capacity to react efficiently to any future crises.

Another big novelty brought by the 2019 EBCG regulation is the hosting role of the Agency for the central unit of the European Travel Information and Authorization System (ETIAS). This electronic authorisation system is foreseen to be fully operational by the end of 2022. This system aims to improve the protection of European external borders therefore, the choice which was made to implement it within the Agency appears to be logical.

In order to allow the Agency to perform the missions stated in the 2019 EBCG regulation, the European institutions and Member States have agreed to grant the Agency with an average budget of 900 million euros per year. Consequently, the Agency will become the bigger European Agency and a massive budget to complete the missions allocated in the new mandate.

As the Agency grows bigger this has led to an increasing attention from public scrutiny which has resulted in additional regulatory safeguards. For instance, operational missions are only possible by invitation from the country hosting the joint operation. Again, the aim of the Member States is not to delegate fully the role of border control to the Agency, they are keeping the power of initiative.

Way forward

There will always be an inevitable gap between the migration crisis and the continuous development of the Agency, no matter how many mandates are created.

Despite extended powers and missions the Agency alone will never suffice to hold by itself the various challenges at the European Borders. This is caused by the sensitivity of the border control tasks as it touches upon the sovereignty of the European Member States. As an illustration, both in 2016 and 2018, most of them have rejected the proposals for the Agency to carry out fully and independently the border control. Throughout the successive mandates of the Agency, the core principle that the responsibility for control and border tasks of the external borders is a shared responsibility between the Member States and the Agency has remained unchanged. Despite the continuous growth of the Agency in this field, Member states still retain the primary responsibility for border management. The Commission has recalled in its reply to the European Court of Auditors - ECA that when implementing border management, the Agency is bound by the limit of its own mandate.

However, further developments to the Agency can bring enhanced efficiency to the European model of border management. For instance, the entry into force of the Regulation 2019/1896 from 5 December 2021 will oblige Member States and Schengen associated countries to report in EUROSUR all events detected on their national borders. This will for sure improve the overall monitoring of the situational picture at European borders.

The Commission has already planned a wide evaluation of the EBCG Regulation’s implementation by the end of 2023. This will be an opportunity to adjust and further design the mandate of the Agency to address the border management of EU external borders.

Nevertheless, the Agency can pave the way for an advanced European and operational security cooperation.

Author: Mgr. Denisa Szajkóová

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¹ The Schengen acquis - Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany, and the French Republic on the gradual abolition of checks at their common borders, Official Journal L 239, 22/09/2000 P. 0013 - 0018
² Article 4(3) TFEU explicitly refers to the principle of cooperation between the European institutions and the Member States
³ Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities - Dublin Convention OJ C 254, 19.8.1997, p. 1–12
⁴ The Dublin Regulation: A Critical Examination of a Troubled System, article written by Victoria Smythies and Lara Ramazzotti. Available at: The Dublin Regulation: A Critical Examination of a Troubled System | internationalrefugeelaw (wordpress.com)
⁵ Presidency conclusions, European Council meeting in Laeken of 14-15 December 2001, point 42 (SN 300/1/01 REV 1).
⁶ Proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders /* COM/2003/0687 final - CNS 2003/0273
⁷ 2548th Council meeting - Justice and Home Affairs - Brussels, 27 and 28 November 2003
⁸ The creation of FRONTEX and the politics of institutionalisation in the EU external borders policy, Leonard,S. Available at: http://usir.salford.ac.uk/id/eprint/2767
⁹ Frontex, An inside view. Gen. Brig. Ilkka Laitinen. EIPASCOPE2008/3. p. 2
¹⁰ Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams (OJ L 199, 31.07.2007, p. 30) and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers.
¹¹ Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur)
¹² Paragraph 74 of the European Parliament Resolution of 2 April 2014 on the mid-term review of the Stockholm Programme, OJ C 408, 30.11.2017, p. 8.
¹³ State of the Union 2015: Time for Honesty, Unity and Solidarity (europa.eu)
¹⁴ Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard (OJ L 251, 16.9.2016, p. 1).
¹⁵ Recital 2 of the regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard
¹⁶ Technical and Operational Strategy for Europoean Integrated Border Management, Frontex, 2019. Accessible under: EU_IBM_Brochure_EN.pdf (europa.eu)
¹⁷ Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network
¹⁸ COM (2018) 632 Report from the Commission to the European Parliament and the Council on the evaluation of the European Border Surveillance System (EUROSUR)
¹⁹ European Court of Auditors special report 08/2021 Frontex’s support to external border management, accessible under the following link: Special Report 08/2020: Frontex’s support to external border management (europa.eu)
²⁰ The European Border and Coast Guard Agency reply, listed in the annex of the European Court of Auditors special report 08/2021 Frontex’s support to external border management, accessible under the following link: Special Report 08/2020: Frontex’s support to external border management (europa.eu)
²¹ COM(2018) 631: Proposal for a new regulation on the European Border and Coast Guard
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