The following is a guest post by Zeynep Timocin Cantekin, a foreign law intern working with Foreign Law Specialist Jenny Gesley at the Global Legal Research Directorate of the Law Library of Congress. This blog post is part of our Frequently Asked Legal Questions series.
The Council of the European Union stated that the increasing number of terrorist attacks since 2004 and the 2015 European migration crisis have exposed the vulnerabilities of the existing border management framework of the European Union (EU). Since 2004, the European Commission (Commission) has adopted measures to simultaneously increase security at the EU’s external borders for the Schengen Area and to safeguard the principle of free movement of persons. The latest measure is a new regulation broadening the mandate of the European Border and Coast Guard Agency (Agency), which entered into force on December 4, 2019. The Regulation is part of the 2015 European Agenda on Migration, which aims to strengthen the external borders of the EU.
This blog post will provide a brief background regarding the evolution of the Agency. Although the Agency is still commonly referred to as “Frontex” (the name of its predecessor), for the purposes of this post, I will use Frontex only to refer to the institution established in 2005 and abolished in 2016.
- What is the Schengen Area? (1985-present)
The Schengen Area was created in the 1985 Schengen Agreement adopted by five of the ten member states of the then European Economic Community. The Schengen Area was established to create a single common border by gradually abolishing all internal border controls, to create one single visa policy, and to harmonize rules for illegal migration and police cooperation in criminal matters. The Schengen Agreement was integrated into the EU legal framework in the 1997 Treaty of Amsterdam. With this, the Schengen Agreement became a core and binding part of EU law, and all future member states of the EU became obligated to join the Schengen Area. Today, 26 European countries participate in the Schengen Area. (22 of the 27 EU member states and the four European Free Trade Area (EFTA) member states, Norway, Iceland, Switzerland, and Liechtenstein, which are non-EU).
- Who coordinates the management of the external borders of the Schengen Area?
Frontex, the Agency’s predecessor, was established on November 25, 2004, to oversee the external border controls of the Schengen Area. The primary objective of Frontex was to coordinate the border management of the member states. The adoption of the Frontex Regulation was “a development under the Schengen Agreement.” (Frontex Regulation, recitals 23-26.) Therefore, participation in Frontex operations was obligatory for states participating in the Schengen Area. (Frontex Regulation, art. 21 para. 3; art. 29 para. 1.) In 2016, the Commission abolished the Frontex Regulation and transformed Frontex into the Agency so it would be able to deal more effectively with challenges to border security. Since 2016, the Agency coordinates the management of the external border of the Schengen Area, working closely with national authorities.
- What was the European migration crisis of 2015?
The European migration crisis began in 2015 and was characterized by an unprecedented increase in the number of people irregularly arriving in Europe by crossing the Mediterranean Sea or via an overland route through southeast Europe. Because Greece and Italy were the first points of entry for a great number of people, they faced extraordinary pressures trying to manage and secure their borders. The EU Dublin Regulation requires the sending of irregular migrants to their first point of entry for the initiation of any return operation or asylum application, which increased the burden on these countries. In part, the rise in the number of migrants was due to the increasing number of Syrian refugees and the spillover from the migration crisis in Turkey. Since 2015, the Commission has proposed a series of initiatives to (re)strengthen the management and protection of the external borders and to restore the normal functioning of the Schengen Area.
- What was the role of Frontex during the migration crisis?
During the crisis, Frontex was active in the coordination of operations (rescue, return, etc.), but it had a limited mandate. For example, per article 9 of the Frontex Regulation, Frontex could only coordinate return operations but could not initiate them. In 2015, the then Commission President Juncker stated that the Commission was committed to learn from the weaknesses of the border management system that became evident during the migration crisis. The Commission considered the Frontex-coordinated joint-operations Triton (in Italy) and Poseidon (in Greece) as examples of the capabilities of Frontex, and “as models for future action,” which led to the transformation of Frontex into the Agency in 2016.
- What is the European Agenda on Migration?
Migration was added to the list of shared competences between the EU and its member states in the Treaty of Lisbon. (Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), art. 4, para. 2(j); art. 67, para. 2.) In May 2015, the Commission responded to the crisis with its European Agenda on Migration (Agenda). In the Agenda, the Commission had two main objectives: (1) to address immediate challenges with regards to irregular migration, borders, asylum, and legal migration, and (2) to better equip the EU with more efficient tools to respond and manage these challenges. The Agenda then identified four areas to improve on to better manage migration:
(1) fight against irregular migration (which includes EU’s cooperation in global issues to fight the root causes of irregular migration);
(3) a common asylum policy; and
(4) a new European policy on legal migration.
The Agenda also notes that having EU rules on tackling identified problems would not be enough as long as a lack of operational cooperation between member states remains. To this end “strengthening the Frontex’s role and capacity” is identified as one of the solutions. In September 2015, President Juncker called for Frontex to be developed into “a fully operational European border and coast guard system.” A report prepared for the Commission concluded that such a system would be feasible.
- What is the current mandate of the Agency? (2016-present)
As part of the measures strengthening the EU’s external borders, the European Border and Coast Guard Agency was launched in October 2016 at the Bulgarian border with Turkey. Frontex’s existing operations continued, but the new Agency was granted an extended mandate which included: (1) a continuous reserve pool of 1,500 people and equipment (rapid reaction pool) in anticipation of any future crisis; (2) a monitoring and supervisory role by conducting “mandatory vulnerability assessments” to assess and identify any risks at the borders; (3) the right to intervene if national action is not enough or imminent; (4) the ability to launch joint surveillance operations with coast guards; (5) the ability to work in third countries; (6) the ability to initiate its own return operations; and (7) the ability to cooperate with other EU agencies on issues related to cross-border crime and terrorism.
In September 2018, the Commission proposed an updated mandate for the Agency in order to improve its control of the EU’s external borders. On December 4, 2019, the Regulation amending the mandate of the Agency entered into force. The broader mandate adds or extends the following powers of the Agency:
(1) the ability to establish “a standing corps” of 10,000 operational staff;
(2) the European Border Surveillance System (EUROSUR), which provides the infrastructure to obtain border-related data, is brought under the authority of the Agency;
(3) the operational capability at all stages of return operations is increased;
(4) the ability to set up “antenna offices” in the host member states and host third countries; and
(5) the ability to cooperate with all third countries instead of just the neighboring third countries.
According to a 2019 Commission report evaluating the progress made since the 2015 Agenda, the Commission states that there has been “a significant increase in the operational support provided by the Agency in return operations” since 2016. The Commission also adds that the extended mandate of 2019 “will take the Agency to a new operational stage,” especially with the establishment of a standing corps of 10,000 operational staff.