The New European Border and Coast Guard: A failed response to the migration crisis.

On October 6th, 2016 the European Border and Coast Guard, the spiritual and material successor of the European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX), was launched by the European Commissioner for Migration, Home Affairs and Citizenship Dimitris Avramopoulos in an event symbolically held at the Bulgarian-Turkish border (EurActive.com, October 2016).

This marks the end of a hasty process undertaken by European institutions as underlined by the EU Commission President Jean-Claude Juncker in his State of the Union when he also described it as a part of the strategy to ‘defend our borders' (European Commission, September 2016).

The origin can be traced back to the migration crisis, in the midst of which the Commission, following a call to action from the European Council and Parliament, produced the European Agenda on Migration (European Commission, May 2015).

The Commission's Agenda mostly focused on immediate response. As a part of its long-term vision, however, the agenda made a reference to the shared management of the European border with the establishment of the European System of Border Guards. The idea was supported by a feasibility study carried out by Unisys for the Directorate General Home Affairs of the European Commission (DG Home, 2015).

The study described a three-phase evolution plan of border management: from optimal use of existing instruments; then, through shared responsibility; and finally towards full Integration at EU level. The intermediate step implying the delegation of responsibility to the EU level for the so-called ‘hot spots' operations, frontline actions which involve several agencies, where officers would ensure the EU lead under the control of Frontex.

The same study underlined the margin for a more active role for Frontex in supporting joint return operations of migrants outside the EU, performing rapid interventions, conducting risk analysis and training activities.

Finally, on December 15th, 2015, the Commission revealed its proposal for a regulation to establish a European Border and Coast Guard on the blueprint of the second step of that feasibility study (European Commission, December 2015).

The faults in the ‘new' agency

The final text of the regulation approved by the European Parliament on July 6 increments the staff and the budget of the existing Frontex as well as putting forward a 1500-strong rapid reserve pool of borders guards for urgent interventions and boosting the capacity of the organisation to acquire equipment and collect information (European Parliament, July 2016).

However, these measures mostly reformulate amendments that have been already taken on board in the past years. For instance, in 2007, it was introduced in the Frontex regulation an emergency response teams consisting of pre-selected national border guards as well as the power to acquire equipment for Frontex (European Commission, 2007). Regarding information collection, since 2013, Frontex benefited from the European Border Surveillance System, a central hub for the risk analysis of the Agency (Eurosur, 2013).

Beyond a general strengthening of the structure of the agency, the principal merit of the proposal rests on advancing the principle of shared responsibility. From a historical perspective, originally, borders were an entirely national matter; therefore, any mention of shared responsibility is by definition a shift of responsibility towards the European level. However, the magnitude of this shift can vary, and it is concretely measured by the degree of primacy of this re-founded Frontex over the Member States border agencies. 

A key new instrument to establish this primacy is the so-called vulnerability assessment which is filled by liaison officers of the European Agency to evaluate the equipment, infrastructure, staff, budget and financial resources of Member States as well as their contingency plans to address possible crises at the external borders. It is set out that the executive director of the Agency should identify the measures to be taken and recommend them to the Member State concerned. If necessary, the matter can be referred to the intergovernmental mechanism within the Agency, the management board, that can issue a binding decision to the member state.

When a Member State does not comply with the decision, or when facing disproportionate challenges at the external borders, the matter can be transferred to the Council which might take measures to mitigate the risk for the Schengen area. The most notable of these measures is the deployment in agreement with the targeted member State of a rapid reserve pool (European Union, September 2016).

From this swift summary, it can be sensed that the Council and the Member States maintained the heavier quota of the shared responsibility in the management of the external borders to the point that the novelty of the new European agency is called into question.

To understand how a real sense of European primacy could have been conveyed is sufficient to look at the original proposal of the Commission. First, the executive director could directly issue binding directions to address vulnerabilities instead of a mere recommendation and moving eventually the matter to an additional body, intergovernmental in nature, that meets periodically (Article 12(6), European Commission, December 2015). Furthermore, in the original proposal, it was the Commission and not the Council, that had the power to adopt a decision, immediately applicable, requesting the Agency to directly intervene (Article 18, ibid.). European Commission First Vice-President Frans Timmermans referring to this so-called ‘right to intervene' said as he presented the plan to the European Parliament "This is a safety net which, like all safety nets, we hope will never need to be used. But it is essential to restore the credibility of our border management system," (EurActiv.com, December 2015).

The Council puts forward itself in place of the Commission, on grounds of the "potential politically-sensitive nature of the measures to be decided, often touching on national executive and enforcement powers" (Article 17, Council of the European Union, April 2016). A concept further expanded by Commissioner Avramopoulos who commented that "National sovereignty is not threatened by this initiative" adding that "It will always intervene with the approval of the member state" which seems to undermine the credibility of the system (EurActiv.com with AFP, April 2016).

However, the most critical aspect of the new system is set out in a separate amendment made to another EU regulation, the Schengen Borders Code. The new article introduces in the case of non-compliance of a Member State with a Council decision on a border control crisis the Council may recommend that one or more Member States decide to reintroduce border control at all or specific parts of their internal borders for a period of up to six months (Article 80, European Union, September 2016). This amendment, initially rejected by S&D and ALDE groups within the responsible Committee on Civil Liberties, Justice and Home Affairs, represents maybe the biggest treat for the functioning of the new mechanism.  The Council loses the incentive to pressure the targeted country, the root cause of a crisis at the external border, when offered the option to legitimise and legalise its Member States' political desire to please their constituencies by introducing internal controls. In other words, the Council acts in the interest of the governments as confirmed by the words of Avramopoulos, and therefore the Council wouldn’t impose with determination on one of its own, when it's given the chance to instead do something which its Members actually welcome, the reintroduction of internal border controls. 

A final note should be made on the missed opportunity the address vocation of independent, technical and apolitical body under the EU law which seems anachronistic in the highly political spectacle of the migration crisis. The European Parliament, in particular, suggested during the legislative process that the Executive Director and the Deputy Executive could be appointed by common accord by the European Parliament and the Council on the base of a Commission's proposal instead of entrusting the selection in the Management Board (Articles 2,13,68, European Parliament, May 2016). This prestigious appointment process could have invested the role with leadership introducing some level of politicization that would have compensated for the lack of substantive powers of the Agency. Ultimately, under the mentioned constraints of the EU law, the management board, composed mostly of member states, has been inevitably the only place for politicization, yet one far from public scrutiny (Rijpma 2016).

Conclusion

The launch of a new Agency does manage to advance a public commitment of the EU to border integration and to tackle the migration crisis. However, this nominal advancement of the ‘shared responsibility' constitutes a double edged sword, a somewhat typical fuite-en-avant for the EU that can have a negative effect on a new Agency that already inherits from Frontex an expectations/reality gap.

The right for the Council to make the case for closing internal border instead of coping with the threat at the external border gives a potential fatal blow to the new agency capacity to act and to the Schengen project.

It is commendable that the EU has renewed its efforts to face the migration crisis with the symbolic European Border and Coast Guard, however the new Agency, victim of dialectic between the EU institutions, could have been more than a symbol. Europe missed a chance to empower it with greater leadership in light of the great public interest of the matter and a greater primacy over national agencies. Ultimately, the Agency fails short and, in a critical time for the EU, it might turn into the unexpected accomplish of the retreat of the Schengen ideals.

Niccolo Beduschi is a Junior fellow at the CGSRS | Centre for Geopolitics & Security in Realism Studies. He may be contacted at niccolo.beduschi@cgsrs.org 

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