EP Study on Implementation of EU Charter of Fundamental Rights and Impact on Frontex, Europol, and EASO

The European Parliament Policy Dept. C has released a study requested by the LIBE Committee entitled: “Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies: Frontex, Europol and the European Asylum Support Office.”  The study is authored by Prof. Elspeth Guild, Dr. Sergio Carrera, Mr Leonhard den Hertog, and Ms Joanna Parkin.  The study will be presented in the 3 October 2011 LIBE meeting.

Abstract:  “This study sets out to examine the impact and implementation of the EU Charter of Fundamental Rights with respect to three EU Home Affairs agencies: Frontex, Europol and EASO. It assesses the relevance of the EU Charter when evaluating the mandates, legal competences and practices of these agencies, particularly in the fields of external border control and the management of migration.  After identifying specific fundamental rights guaranteed in the EU Charter that are potentially put at risk by the actions of these three agencies, and judicial obstacles that prevent individuals from obtaining effective legal remedies in cases of alleged fundamental rights violations, we present a set of policy recommendations for the European and national parliaments.”

Excerpts from the 100+ page study:

“KEY FINDINGS

• EU home affairs agencies have confirmed themselves as distinct forms of EU regulatory agency. Their scope of action and tasks are not fully predetermined and defined in their founding regulations, at times allowing for the flexible accommodation, and sometimes extension, of their competences to new domains on an ad hoc basis. The three agencies have been granted important operational tasks that go beyond mere ‘regulatory activities’. Yet their dominant framing as depoliticised ‘coordinators’ or ‘facilitators’ of Member State actions has increased their relative autonomy, in some cases preventing a proper democratic scrutiny of the nature and impact of their activities and evading questions of accountability, responsibility and liability in cases of alleged unlawful actions, including potential fundamental rights breaches and risks. These observations are particularly pronounced in the cases of Frontex and Europol. It remains to be seen the extent to which the functioning and activities of EASO will follow a similar pattern.

• Certain activities performed by Frontex, Europol and EASO as foreseen in their legal remits or developed through informal (de facto) practices present a sensitive relationship with specific fundamental rights provisions foreseen in the EU Charter. This is particularly relevant as regards three categories of actions common to each agency: 1) operational activities, 2) the exchange and processing of information and, in the case of Frontex and Europol, personal data (and the subsequent uses of this information) and 3) relations, cooperation (including so-called ‘capacity building’) and exchange of information with third countries through working arrangements and ‘soft law’. Inter-agency cooperation between Frontex, Europol and potentially in the future EASO, further magnifies the scope, and opens up new venues for, breaches of fundamental rights.

• The relationship between Frontex, Europol (and to some extent) EASO and fundamental rights is further strained by their ‘home affairs focus’ and the legacy of cross-pillarisation which affects their policies, practices and political ambitions. A conflation of irregular migration with ‘insecurity’ and ‘threat’ legitimises the adoption of coercive policies which, together with a culture of secrecy and lack of transparency, exacerbates the vulnerable status of individuals targeted by the actions of these agencies.

• There is a profound ‘knowledge gap’ concerning the added value, nature and impact of the activities by Frontex, Europol and EASO on the ground, as well as their full compatibility or coherency with EU internal and external policy priorities and legal frameworks. This report reveals a severe lack of information and monitoring of their actions, especially those of an ‘operational’ nature, which lead to legal uncertainties and accountability gaps that put the agencies at odds with the EU Charter and general rule-of-law principles of the European legal regime.

• Finally, there is an anachronistic relationship between the overly-politicised nature of some of these EU home affairs agencies as a result of pressures applied by certain EU Member States and the European institutions to demonstrate the practical application of ‘the principle of solidarity’ and ‘mutual trust-based cooperation’ at EU level, and their weak democratic and public accountability. It is paradoxical that, despite the political drivers which steer the activities of EU Home Affairs agencies, their framing as ‘technical’ rather than political actors prevents a full and plural debate and accountability of their actions.

RECOMMENDATIONS

Recommendation 1: A new ‘model of agency-building’ should be ensured and mainstreamed across current and future EU Home Affairs agencies. The model should act as a ‘standard setter’ against which the European Parliament and national parliaments can evaluate and scrutinise the performance and functioning of agencies, while still respecting agencies’ specific characteristics. Given the dynamic evolution of EU Home Affairs agencies, the model could be taken into account if and when the legal mandates of the agencies are opened for re-negotiation. The components and features of this model should include:

• A more direct involvement of the European Parliament in the appointment of agency Executive Directors by requiring a binding approval from the Parliament for selected candidates.
• A stronger representation of the European Commission on the Management Boards of agencies (a minimum of 5 Commission representatives, increased weighting of their votes and the granting of veto rights for certain fundamental rights sensitive issues.)
• Advisory boards or ‘consultative forums’ should be established in all EU Home Affairs agencies as an integral part of their governance structure.
• Time limits on the confidential status of documents pertaining to agency activities, which oblige the automatic release of such documents to the public within a set time frame should be put in place to promote transparency and public accountability.
• Institutional structures for individuals to access effective legal remedies in cases of fundamental rights violations should be revised and developed.
• Codes of conduct and comprehensive training in fundamental rights for all staff involved in agency activities, particularly operational actions, should be streamlined across all Home Affairs agencies.
• Mechanisms to strengthen compliance with fundamental rights obligations on the ground should be included in the legal mandates of EU Home Affairs agencies: fundamental rights strategies and implementation plans, an in-house fundamental rights officer and independent monitor responsible for initiating disciplinary measures in case of misconduct.
• To support internal accountability an independent Board of Appeals could be established composed of independent lawyers. Any challenged actions should be frozen while under consideration by the Board of Appeals.
• EU Home Affairs agencies should have the competence to suspend or terminate activities if violations of fundamental rights occur in the course of those activities.
• Clear legal definitions should be provided for key concepts related to agency tasks; agency actions should not exceed their legal remits and competences.
• Comprehensive provisions on data protection should be integral to the legal mandates of EU Home Affairs agencies accompanied by independent supervisory bodies empowered to issue binding opinions.

Recommendation 2: The Inter-Institutional Working Group (IIWG) charged with identifying rules to support a global framework for regulatory agencies should explicitly recognise the fundamental rights-related accountability gaps identified by this report in the activities of EU Home Affairs agencies and take these into account it its final declaration.

Recommendation 3: A closer democratic scrutiny of agencies functioning, planning and work should be ensured through the creation of a permanent inter-parliamentary body or committee dealing specifically with regulatory agencies. The body should be run by the European Parliament’s LIBE Committee and include representatives from the corresponding committees of national parliaments.

Recommendation 4: In order to improve access to justice and effective remedies for individuals regardless of their nationality and/or location, subject to actions by EU Home Affairs agencies, a new branch of the Court of Justice should be established – an Agencies Tribunal – following the same format as the EU Civil Service Tribunal. This body would deal with admissibility claims and complaints of a legal and administrative nature against the agencies and national authorities participating in agencies’ operations and activities.

Recommendation 5: the Commission should have the competence to freeze Agency activities in cases of actual, suspected or imminent breaches of fundamental rights, while the legality of the case is being examined in detail. For such an ex ante procedure to be fully effective, careful attention should be paid to ensuring its overall objectivity, impartiality and democratic accountability. The procedure would be activated by the European Commission (on its own initiative or that of the European Parliament) on the basis of evidence provided by impartial actors such as the EU Agency on Fundamental Rights (FRA) or a new external network of independent and interdisciplinary experts/academics working in close cooperation with civil society organisations based in the different member states.

Recommendation 6: A new piece of secondary law should be adopted specifying the access to rights and to justice by third country nationals subject to new border and migration controls (including those taking place ‘extraterritorially’). The tasks and competences of the EU Home Affairs agencies call for more legal certainty. Their remits and activities and allocation of responsibilities should be clearly defined in law. Any experimental governance activities should be avoided in order to ensure respect for the principles of legal certainty and accountability.

Recommendation 7: Particular attention should be paid to the practical implementation of EASO’s mandate, given the particularly sensitive nature of some of the agency’s tasks from a fundamental rights viewpoint. Guaranteeing the right to asylum envisaged in Article 18 of the EU Charter of Fundamental Rights should constitute an explicit priority for EASO and the agency’s work should be focused first and foremost around this objective.

Recommendation 8: The fundamental rights sensitivities of Europol’s work and safeguards should be taken into account when Europol’s mandate is re-opened for negotiation in 2013. DG Justice should play an active role during the preparation of the Commission’s proposal for a Europol Regulation to conduct a fundamental rights proofreading of the new legislation. Moreover, the European Parliament should ensure that the new ‘model of agency-building’ proposed in Recommendation 1 of this report would be mainstreamed to Europol to the largest extent.

Recommendation 9: The European Parliament should call upon Frontex to no longer conduct any joint operation in the maritime territory of third states, as the consistency of this practice is not only questionable with respect to the rule of law principles of legal certainty and accountability, but it is also at odds with fundamental rights foreseen in the EU Charter.”

Click here for Study.