MARTIN U s

NIJHOFF
PUBLISHERS Europeanjoumal of Migration and Law 15 (2013) 337-358

The Peculiar Nature of EU Home Affairs Agencies

in Migration Control: Beyond Accountability
versus Autonomy?

Sergio Carrera", Leonhard den Hertog'' * and Joanna Parkin"

" Centre for European Policy Studies (CEPS), Place du Congrès 1, B-1000 Brussels, Belgium
Jean Monnet Chair, University of Cologne, Albertus-Magnus-Platz, 50923 Cologne, Germany

Abstract
This article analyses the development paths and practices of three EU Home Affairs agencies: Frontex,
Europol and the European Asylum Support Office (EASO). Particular attention is given to those tasks
and forms of inter-agency cooperation raising fundamental rights sensitivities in the scope of migration
controls. The article argues that the specific Home Affairs focus of these agencies and their ways of work-
ing, including the use of 'experimental governance' strategies, poses particular challenges to individuals
on the move, specifically in relation to their right to an effective remedy. These findings are linked to the
academic dehate on the balance between accountability and autonomy of EU Agencies. Due to their pecu-
liar nature, evidenced by several cross-cutting commonalities potentially impacting on basic rights of indi-
viduals, we argue that this balance metaphor is not appropriate for these Agencies; instead higher
standards of accountability should apply with closer on-going control over their activities.

Keywords
EU agencies; accountability; autonomy; migration control; fundamental rights; Frontex; Europol; EASO

1. Introduction

The last ten years of European cooperation have seen emerging EU legal and pol-
icy framev^forks in the domains of external borders, immigration and asylum com-
posed not only of a large body of substantive primary, secondary and 'soft' [aw and
policy instruments, but also by a proliferation of European regulatory agencies
such as Frontex (the European Agency for the Management of Operational Coop-
eration at the External Borders of the Members States of the EU), Europol (Euro-
pean Police Office) and EASO (the European Asylum Support Office). These EU
Home Affairs agencies now constitute the most visible 'faces', both inside and out-
side Europe, of the EU's Area of Freedom, Security and Justice (AFSJ). Some
authors have even considered them to constitute 'a significant departure of the
traditional remits of this exclusive competence of the Member States'' and

•' Corresponding author, e-mail: den-hertog.a(H)uni-koeln.de.

" E. Papastavridis, ' "Fortress Europe" and Frontex: Within or Without International Law?', 79 Nordic
»1 Kiininklijkf Brill NV, Luidun, 2013 DOh ll).1163/157WI«H-()(MH)2(H«
338 S. Carrera et al. / European Journal of Migration and Law 15 (2013) 337-358

decisive drivers transforming the traditional nature and prerogatives of national

law enforcement authorities.^ What makes these 'Home Affairs' agencies so dis-
tinct in the vk^ider field of EU regulatory agencies is that their spheres of action
might potentially carry direct or indirect implications for the fundamental rights
of individuals, and particularly for third country nationals and asylum seekers.
This peculiarity of Home Affairs agencies puts them in a unique and highly sensi-
tive position when situating them within current literature on EU agencies.
There have been rich academic debates searching for the most appropriate
models and theories to understand power and authority of EU agencies.^ Atten-
tion has recently been given to the 'autonomy versus accountability' dichotomy,'*
which takes as its starting point that the independence or autonomy of EU Agen-
cies is their raison d'être. Busuioc, Curtin and Groenleer have for instance argued
that 'the recurring question in relation to the emerging EU executive order is how
a balance can be struck between the autonomy of EU agencies and the account-
ability they must render'.^ The so-called public accountability literature has
become a dominant paradigm in these discussions. Accountability is defined here
as 'a relationship between an actor and a forum, in which the actor has an obliga-
tion to explain and to justiiy his or her conduct, the forum can pose questions and
pass judgement, and the actor may face consequences'.^ Close reading reveals
that the emphasis here lies on ex posi accountability. The 'threat' of accountability
to autonomy is much larger if 'on-going' control (as opposed to ex post account-
ability) is dominant; the defacto decision-making discretion of the Agency is then
seriously constrained (by principals such as the Commission for example). The
central premise remains that an Agency needs autonomy and flexibility to be able
to produce effective and legitimate action.^

Journal of International Law (2010), 75-111, at p. 78. See also: A. Baldaccini (2010), 'Extraterritorial Border
Controls in the EU: The Role of Frontex in Operations at Sea', in: B. Ryan and V. Mitsilegas (eds). Extrater-
ritorial Immigration Control: Legal Challenges, Leiden: Martinus Nijhoff, pp. 229-255.
^' j.J. Rijpma (2012), 'Hybrid agencification in the Area of Ereedom, Security and Justice and its inherent
tensions: The caseof Erontex', in:M. Busuioc, M. Groenleer and J.Trondal (eds). The agency phenomenon
in the European Union: Emergence, institutionalisation and everyday decision-making, Manchester: Man-
chester University Press, pp. 84-102.
^' Eor instance: C. Curtin (2009), Executive Power of the European Union: Law, Practices and the Living
Constitution, Oxford: University Press; R. Dehousse, 'Delegation of powers in the European Union: The
need for a multi-principals model', 31 West European Politics (2008), 789-805.
"•' Eor instance: M. Bovens, 'Analysing and assessing accountahility: A conceptual framev^fork', 13 Euro-
pean LawJournal (2007), 447-468; M. Groenleer (2009), The Autonomy ofEuropean Union Agencies: A Com-
parative Study of Institutional Development, Delft; Ehuron Academic Publishers; M. Busuioc (2010), The
Accountability ofEuropean Agencies: Legal Provisions and Ongoing Practices, Delft: Eburon Academic Pub-
lishers; M. Busuioc, D. Curtin and M. Groenleer, 'Agency growth between autonomy and accountability:
The European Policy Office as 'living institution", 16 Journal of European Public Policy (2011), 848-867.
^' Busuioc, Curtin and Groenleer (2011), p. 849.
''' Bovens {2007), p. 450.
'' M. Busuioc, Accountability, Control and Independence: the Case of European Agencies', 15 European
LawJournal (2.000)), 599-615, at p. 607.
 s. Carrera et aL / Europeanjoumal of Migration and Law i¡ {2013) 337-358 339

This article challenges this scholarly framing of the changing relation between
autonomy and accountability in the specific case of EU Home Affairs Agencies. It
is argued that this academic paradigm may not be the most appropriate for the
analysis of these Agencies as their 'autonomy' may impact on the fundamental
rights of individuals on the move. Here accountability becomes an absolute
requirement for third country nationals and asylum seekers, precisely to have
access to effective remedies and claim rights envisaged in the EU Charter of
Fundamental Rights. These entities present a new and peculiar kind of agency
which demands the rethinking of existing theoretical accounts of EU agencies.
This article analyses the ways of working of Frontex, Europol and EASO paying
particular attention to those tasks and forms of inter-agency cooperation raising
sensitivities in the scope of mobility-related controls. We demonstrate how some
of the activities carried out by these agencies might negatively affect foundational
EU principles and rights, primarily those flowing from the EU Charter of Funda-
mental Rights which should now, after the entry into force of the Lisbon Treaty, be
fully respected by EU Agencies.^
EU Home Affairs Agencies present a number of common characteristics which
are key to understanding the current barriers that third country nationals on the
move might face when they, if subject to unlawful practices by these actors, seek
recognition as claimants of fundamental rights and attempt to gain access to jus-
tice. Three cross-cutting issues are discussed: the problematic nature and devel-
opment of their dejure competences and their defacto activities (Section 2), their
predominant 'Home Affairs' focus (Section 3) and the impact of these factors on
accountability, especially in light ofjudicial review (Section 4).

2. EU Home Affairs Agencies: A Brief Overview

Frontex, Europol and EASO constitute a special kind of EU agency. Their location
in the EU legal system and the particular nature of their competences, activities
and instruments make a peculiar sort of European actor. The three agencies are
paradigmatic of an innovative institutional configuration delineating the EU's
AFSJ as an administrative, regulatory and political space in constant evolution
and institutional development.
Frontex was established with the aim of coordinating and assisting Member
States' actions in the surveillance and control of the external borders of the EU.^
One of the most visible ways through which Frontex has been involved in strength-
ening operational cooperation between Member States since its entry into

*" flharter of Fundamental Rights of the European Union, OJ C 83/02, 30 March 2010.
"> Council, Regulation No. 2007/2004 of 26 October 2004 establishing a European Agency for the Manage-
ment of Operational Cooperation at the External Borders of the Member States of the European Union
(Frontex Regulation), OJ L 349/1,25 November 2004.
340 S. Carrera et al. / European Journal of Migration and Law 15 (2013) 337-358

operation in 2005 is the agency's frequent coordination ofJoint Operations (JOs).'"

In 2007 Frontex was also mandated to deploy Rapid Border Intervention Teams
(RABITs) to assist Member States faced with a perceived excessive flow of irregu-
lar migrants," a mechanism deployed so far only once, on Greece's external land
border with Turkey in November 2010.'^ The Agency's operational powers have
further been reinforced in 2011 with the adoption ofthe amended version ofthe
Frontex Regulation, which has granted the agency stronger powers in the coordi-
nation of JOs and the deployment of European border guard teams under the
supervision of a Frontex Coordination Officer (FCO), who monitors the imple-
mentation ofthe Operational Plan and Code of Conduct, and is expected to play a
role in reporting of incidents during border control operations.''*
Europol is the EU's law enforcement agency, tasked to 'support and strengthen
action by the competent authorities ofthe Member States and their mutual coop-
eration in preventing and combating organised crime, terrorism and other forms
of serious crime affecting two or more Member States.''"* During its 15 years of
activities, Europol's core task has mainly consisted in facilitating the exchange of
information between Member States and developing 'criminal intelligence'.'^ In
recent years, Europol has also been granted operational powers, enabling it to
help coordinate and implement Member States' investigative and operational
actions'*" and to participate (since 2007)'^ in Joint Investigation Teams (JITs). A
significant proportion of Europol's operational and intelligence actions have been
devoted to criminal activities associated with migration, particularly 'illegal immi-
grant smuggling' and 'trafficking in human beings'.'**

"" See Baldaccini {2010).

'" EP and Council, Regulation (E(') No. 863/2007 of 11 July 2007 establishing a mechanism for the creation
of Rapid Border Intervention Teams and amending Cxiuncil Regulation (EC) No. 2007/2004 as regards
that mechanism and regulating the tasks and powers of guest officers (RABIT Regulation), OJ L 199/30,
31 July 2007.
'^' See Carrera, S. and Guild, E. (2010), 'Joint Operation RABIT 2010' - FRONTEX Assistance to Greece's
Border with Turkey: Revealing the Deficiencies oJ Europe's Dublin Asylum System, Papers in Liberty and
Security in Europe (34), Brussels: CEPS.
™ EP and Council, Regulation (EU) No. 1168/2011 of 25 October 2011 amending the Frontex Regulation,
Oj L 304/1, 22 November 2011. The FCO's role is to also monitor and report on the adequate implementa-
tion ofthe operational plan (and its compliance with fundamental rights) in the framework of JOs. See:
Erontex (2012), Response to Ombudsman specific questions (Annex 1), p. 8.
''" Article 3, Council, Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office
(Europol Council Decision), OJ L 121/37,1.5 May 2009, this is also echoed in Article 88(1) TFEU.
'^' Article 5, ibid.
'ß' Article 6, ibid.
'" (Council, Act of 28 November 2002 drawing up a Protocol amending the Convention on the establish.,
ment of a European Police Office (Europol Convention) and the Protocol on the privileges and immunities
of Europol, the members of its organs, the deputy directors and the employees of Europol, OJ C 312,
16 December 2002 (entered into force 29 March 2007).
'*' See the Annex to the Europol Council Decision.
 s. Carrera et aL /Europeanjoumal of Migration and Law 15 (2013) 337-358 341

The youngest of the EU's 'Home Affairs' agencies, EASO, was formally estab-
lished on 19 May 2010.'^ The purpose of the agency is to 'facilitate, coordinate and
strengthen practical cooperation among Member States' towards the implemen-
tation of the Common European Asylum System (CEAS),^^ to provide 'operational
support' to Member States subject to 'particular pressure' on their asylum and
reception centres,^! and to provide 'scientific and technical assistance', drawing
on its role as an 'independent source of information'.^z As with Frontex and
Europol, the agency has been granted important 'operational' tasks: EASO is man-
dated to deploy Asylum Support Teams (ASTs) on the territory of a Member State
'under pressure' or in need of 'emergency support',^^ and has deployed over
40 ASTs since the beginning of its operations in Greece in 2011.^*
A number of the competences and activities of Frontex, Europol and EASO fall,
directly or indirectly, within the scope of the EU's wider migration-related policy
terrain, where the focus of attention is directed towards controlling or managing
the mobility of third country nationals crossing the common EU external borders.
Naturally, the normative approaches driving these three agencies' foundational
remits and the categories of individuals falling within their scope of action are (at
least formally) rather different in nature and fundamentals. Thus where Erontex
directs its activities towards irregular immigrants and the control of external bor-
ders and EASO towards asylum-seekers and refugees, Europol has adopted a focus
more centred on 'organised criminal groups facilitating illegal immigration and
trafficking of human beings', Nonetheless a commonly shared interest in human
mobility lies at the heart of their actions and rationale. Furthermore, and as we
will argue, inter-agency cooperation is leading to a worrying blurring of'who' is to
be targeted by EU Home Affairs Agencies, where the individual legal status shifts
too easily from human rights holder to a potential criminal or 'unwanted illegal
immigrant'.

2.1. Defure Competences and De Facto Activities

The dominant narrative framing of EU Home Affairs agencies by policy-makers
and officials is careful to insist on their role as 'coordinators' or technical

"" EP and Council, Regulation (EU) No. 439/2010 of 19 May 2010 establishing a European Asylum Support
Office (EASO Regulation), OJ L 132/11, 29 May 2010.
2"' Article 2(1), í6irf.
-" Article 2(2), ibid.
-'^' Article 2(3), ibid.
23' Articles 8-io, ibid.
^'" Commission, The European Asylum Support Office (EASO), MEMO/11/415, Brussels, 19 June 2011 and:
EASO, Work Programme, February 2011, p. 12. See EASO Press Release, 'EASO Delegation visits Greece',
13 November 2012, PRii/2012. Another recent example has been the deployment of ASTs to Luxembourg.
Refer to Operating Plan for the Deployment of Asylum Support Teams to Luxembourg, 26 January 2012,
available online at http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/pdf/operating_plan_ast
lu_en.pdf#zoom=ioo.
342 S. Carrera étal. / EuropeanJournal of Migration and Law 15 (2013) 337-358

'facilitators' of Member State actions. This discursive framing has to a certain

extent promoted the conception that EU Home Affairs agencies cannot be held
responsible for alleged human rights breaches and has re-directed questions of
accountability towards Member States.^^ In this section, we unpack this framing
by assessing their deJure competences and defacto activities.
Indeed, while presented as purely technical or bureaucratic in nature and
scope, some of these EU Home Affairs agencies competences and activities chal-
lenge traditional understandings of the boundaries of'executive and administra-
tive power' in the AFSJ and the EU legal system. True, they are formally mandated
to play a 'supportive' or 'facilitative' role vis-a-vis EU Member States through the
'coordination' of operational activities with national authorities and the enact-
ment of Union soft law/policy.^'' That notwithstanding, the three agencies under
study present competences which move beyond mere 'regulatory' or administra-
tive powers and rather expand over 'operational' activities. Indeed, the possibility
to deploy staff on the ground constitutes an innovative feature in their remits and
competences.
Furthermore, the dynamism and high degree of'experimentation' characteriz-
ing the activities of these agencies has further exacerbated the expansion of their
activities beyond the merely 'facilitative'. Their competences and areas of inter-
vention are in constant mutation, struggle and redefinition and over the years
have been expanded very dynamically beyond original expectations.^^ This wid-
ening of their powers has not only taken place through the legislative process but
has also developed through agencies' defacto expansions and 'learning by doing'-
like interventions. This section discusses both the de Jure competences and
defacto activities undertaken by Frontex, Europol and (potentially) EASO that
may have legal effects on mobile third country nationals, including those which
may jeopardise rights enshrined in the EU Charter of Fundamental Rights.

^^* Quite telling in this regard is a 2009 interview with Mr. (iil Arias-Fernández (deputy director Frontex)
concerning Italian practices amounting to returning intercepted migrants to Libya. An excerpt from
the interview: Technically speaking, assets co-ordinated by Frontex are taking part in operations in the
area and... these people could be sent back to their country of origin.' But he said to bold Frontex respon-
sible for the return of migrants to Libya was 'far from reality'. 'We can't be accountable for decisions taken
by Italy,' he said. Source: EuropeanVoice, 'Frontex "may be helping" Italian migration policy', 24 Septem-
ber 2009, available online at bttp://www.europeanvoice.com/article/imported/frontex-may-be-helping-
italian-migratioii-policy/65936.aspx.
^^' M. Shapiro (2on), 'Independent Agencies', in: P. Craig and G. De Burea, G. (eds), The Evolution of EU
Law, Oxford: Oxford University Press, pp. 111-120. To give some examples of 'soft law': Frontex issued a
Code of (Conduct for its operations and builds a common curriculum for border guards (resp. Articles 2a
and 5 of the new Frontex Regulation) and EASO is also mandated to give trainings to officials (Article 6
EASO Regulation).
^^' See Section 2.3.
 s. Carrera et aL / EuropeanJoumaL of Migration and Law ¡s (2073) 337-358 343

2.2. De Jure Competences

Europol and Frontex are exemplary of the dynamic nature of EU Home Affairs
agencies' legal mandates, with both agencies having passed through several legis-
lative revisions which have widened their competences and scope of activities,
including into the operational field. Yet, there continues to exist a large degree of
obscurity and lack of common definitions and understanding with regard to what
these agencies actually 'do'. There is a widespread 'doxa' according to which these
agencies do not take any actual decisions that would lead to their responsibility in
cases of fundamental rights violations:^^ but merely 'facilitate' (support and assist)
and 'coordinate' EU Member States' actions.^^ However, EU law does not define
the terms 'operational' or 'coordination' in the scope of EU agencies' work. None
of their founding regulations provides a legal definition stipulating the concept of
'coordinator' and 'facilitator', or where the boundaries of such a role should be
drawn. The interpretation of'investigation' raises a similar definitional dilemma
when understanding the scope of Europol's responsibilities.^*^
This particular framing of EU Home Affairs agencies' activities as 'facilitating' or
'coordinating' may effectively prevent an open discussion on the potential funda-
mental rights implications of their activities. There appears to be an anachronistic
attempt to 'de-politicise' legally and politically what they do while they are inher-
ently part of a public debate. This 'de-politicisation' largely results from the fact
that they have been expressly excluded from intervening in certain legal terrains,
such as the 'application of coercive measures'.^' The background is a prominently
political baggage which most directly reflects sovereignty sensitivities under which
the Member States are hesitant to transfer national competences in these areas of
EU law and policy.
The 'intergovernmentalism' which has traditionally characterized European
cooperation injustice and Home Affairs has constituted a determinant factor in
the actual degree of'delegation of powers' which has been formally granted to EU
Home Affairs agencies mandates. Member States governments have showed con-
stant resistances at times of transferring authority and autonomy to these AESJ
bodies. This has come along with some mistrust and even competition between
EU agencies like Europol and Erontex and the competent national law enforce-
ment authorities. These 'intergovernmental and national barriers' have led them

^*' Eor example, the Europol Council Decision refers on multiple instances to the actions taking place
under the responsibility of the Member States, see e.g.. Article 6(5) which refers to data processing in the
context of JITs. See also responses by Erontex to the European Ombudsman inquiry: European Ombuds-
man (2012), Own-initiative inquiry OI-5-2012-BEH-MHZ concerning implementation by Erontex ofitsfiinda-
mental rights obligations, 6 March 2012, Strasbourg, p. 6.
-^' This is reiterated in the founding Regulations of the Erontex, Europol and EASO; see resp. Articles 1(2),
3 and I of those Regulations.
^'" Busuioc (2010), p. 189.
*" Article 88(3) TFEU. See also the founding Regulations of Erontex and EASO; resp. Articles 1.2 and
Recital 14.
344 <""• Carrera et al. / Europeanjoumal of Migration and Law 15 (2013) 337-358

to develoj) strategies to gain more autonomy 'through the back door' in a pre-
dominantly intergovernmental environment of supranational cooperation. That
notwithstanding, their powers and level of independence extend beyond inter-
governmental allocation of power and are moving towards terrains that are
increasingly within EU policy and soft law venues. While presented as purely
'technical' or 'bureaucratic' in nature and scope, some of these agencies' compe-
tences do transform classical understandings of the boundaries of'executive and
administrative power' in the EU AFSj.
Closer examination of these agencies' tasks reveals that they are entitled to act
not only as coordinators, but also as the planners and initiators of operational
actions.'^^ One could therefore argue that while it is for national authorities to
formally take the final decision for operational actions, the 'assistance' and 'input'
of these agencies into the decision-making process is indispensable and could
lead to 'joint responsibility' or 'chain responsibility' for consequences incurred.
The same could be argued for the absence of proper Agency oversight of Member
States activities within operations. The CJEU has held that if an EU body fails to
exercise its supervisory power over Member State actions, EU liability can be
triggered.-^-^ This is crucial when one considers that under the new Frontex Regula-
tion, the agency receives competences to inter alia ensure the implementation of
the joint operational plan, to abort missions in violation of fundamental rights
and to organise jROs. Hence, independently of the label given or practitioners'
interpretation provided. Agency actions may have legal repercussions and they
could thus incur responsibility for fundamental rights breaches.^'^
Which fundamental rights could be placed at stake by agency action? There are
several scenarios by which agencies may have 'legal effects' on the status and fun-
damental rights of persons on the move. In certain Frontex operational activities
for instance, respect for the right to asylum, the principle of non-refoulement and
the right to an effective remedy (resp. Articles 18,19(2) and 47 of the Charter) may
be at stake. This is the case in JOs where third country nationals, among whom
may include those in need of international protection, are returned to their home
or transit countries before having reached EU territory. Such so-called 'push-backs'
deny individuals access to the asylum systems of the Member States, allowing
them no opportunity to have their claim for international protection properly
assessed, let alone access a judicial remedy to challenge the pre-border return.^^
The reality of such fundamental rights violations was highlighted by the

32' For example, Frontex may itself propose JOs (Article 3 Frontex Regulation). Some of the arguments
put forward by this article are substantiated on the research findings coming out of the more in-depth
analysis by; S. Carrera, E. (iuild, L. den Hertog and |. Parkin, Implementation of the EU Charter of Funda-
mental Rights and its impact on EU Home Affairs Agencies - Erontex, Europol and the European Asylum
Support Office, EP Study (Citizen's rights and constitutional affairs) (Brussels, 2011).
^^' See, e.g., Case O132/77, Société pour ¡Exportation des Sucres [1978] ECR 1061, paras 26-27).
•^** Rijpma (2012), pp. 13 and 19.
•'^' See S. Lavenex, 'Shifting up and out: The foreign policy of European immigration control', 29 West
European Politics (2006), 329-350, at p. 330.
 s. Carrera et ai/ European Journal of Migration and Law i¡ (2013) 337-358 345

landmark ruling of the European Court of Human Rights (ECtHR) in Hlrsi and
others v. Italy?^ A number of Member States who feature as regular participants
in Frontex Joint Operations (i.e. Greece, Italy, Malta and Spain) are reported to
have previously engaged in so-called 'push-back' practices.^''' The question there-
fore arises as to the responsibility incurred by Frontex if national officers resort
to similar measures when acting within an operation that is planned, coordinated
and funded by the agency. The risk is not merely hypothetical. Indeed, at-sea
interceptions and diversions back to the coast of a third state were a feature of
the Frontex Joint Operation HERA.^^
In the course of other operational activities involving the forcible return of
migrants (Frontex JROs) or police raids and arrests (Europol JITs), scenarios may
well arise in which the right to human dignity (Article 1 EU Charter) or the prohi-
bition of torture and inhuman or degrading treatment (Article 4 EU Charter) -
both fundamental human rights that are absolute in nature and which therefore
do not accept any weighing with other collective rights or state/public interests -
may be at stake. Similarly, although EASO ASTs do not decide directly on asylum
applications, it is not unforeseen that through the provision of support, informa-
tion and advice, as well as infrastructure and capacity building, this agency could
impact on the assessment of individual cases or the reception and detention con-
ditions of asylum seekers. Indeed, the possibility of liability could well exist in
those cases where an EU agency 'supports' through 'the provision of infrastructure
and financing' Member States such as Greece, where there is substantial evidence
documenting the failure of its asylum system.^^ Here the agency could be accused
of an act of abetting a violation of human rights on the part of a Member State by
indirectly supporting a wrongful act.'*"

^''' ECtHR Grand Chamber, 23 February 2012, Hirsi and others v. Italy, Application No. 27765/09.
3" For example. Pro Asyl, 'The truth might be bitter but it must be told: The situation of refugees in the
Aegean and the Practices of the Greek Coast Guards', Press Release, Frankfurt, October 2007, available
online at http://www.statewatch.org/news/2007/oct/greece-proasyl-refugees-prel.pdf.
ä'*> BBC; News, 'Stemming the immigration wave', 10 September 2006, available online at http://news.bbc
.co.Uk/a/hi/europe/5331896.stmtmap. Frontex does not deny this (Frontex, 'HERA III Operation', News
Release, Frontex, Warsaw, 13 April 2007). It claims these diversions always took place under the responsi-
bility ot a Mauritanian officer, but in our opinion the role of Frontex was absolutely indispensable for such
diversions to occur. See Frontex, 'HERA 2008 and NAUTILUS 2008 Statistics', News Release, Frontex, War-
saw, 17 February 2009; see alsoJ.J. Jeandesboz (2008), Reinforcing the Surveillance ofEU Borders: The Euture
Development ofERONTEX and EUROSUR, CHALLENGE Research Paper No. 11, Brussels; CEPS, pp. 15-16.
ä"' E(^tH R, 21 January 2011, MSS v. Belgium and Greece, Application No. 30696/09, paras 233, 234, 263, 264,
366-368; see also S. Troller (2011), On the borders of legality - Why Erontexforces should stopfillingGreek
Jails with asylum seekers. New York, NY: Human Rights Watch, available online at http://www.hrw.org/en/
news/2011/02/08/borders-legality.
•"" According to Article i6 ofthe International Law Commission's Articles on Responsibility of States for
lnterniitionally Wrongful Acts (2001), it could be argued that the assistance on 'capacity building' could
amount to '[a]id or assistance in the commission of an internationally wrongful act'. This has been argued
by R. Weinzierl (2007), The Demands ofHuman and EU Eundamental Rightsfor the Protection of the Euro-
pean Union's External Borders, Berlin: German Institute for Human Rights, pp. 63-64.
346 s. Carrera et al. / European journal of Migration and Law 15 (2013) 337-358

It is not only through operational activities that agency actions intersect with
human rights. Home Affairs agencies' extensive (and expanding) data processing
powers are also highly rights-sensitive. Risks exist for instance where the accuracy
and quality of personal data on vulnerable mobile groups is in doubt. Thus for
example, the House of Lords 29th Report on Europol documents an incident
whereby Information on a group of 33 young women entered in the Europol infor-
mation system indicating they were prostitutes and suspects of criminal activity
were found to be inaccurate. It transpired that the majority of women were in fact
likely victims of trafficking, and that there was not sufficient evidence to hold
them in the Europol system as suspects. Despite this anomaly being flagged, a
follow-up inspection nevertheless found that the information was still held in the
Europol system a year later.'*' It is relevant to mention here that just under a quar-
ter (24%) of the information held on the Europol information system concerns
trafficking in human beings."*-^ The above example indicates a worrying scope for
erroneous data, which could have serious repercussions for individuals in a par-
ticularly vulnerable position, implying not only a violation of the right to data pro-
tection but, if this were to lead to their treatment by national authorities of
Member States as criminals rather than victims, then also a breach of other
rights.
Fundamental rights concerns may also be raised by the evolving dejure compe-
tences of the Home Affairs agencies in the external dimension. EASO's mandate
presents a significant foreign affairs dimension as regards the external aspects of
the CEAS and the agency 'may also cooperate with the authorities of third coun-
tries competent in technical aspects'.'*^ In a similar fashion, both Frontex and
Europol are becoming active foreign affairs players. Europol, for instance, has in
recent years concluded a large number of agreements with third countries on data
processing as well as technical, operational or strategic cooperation.'*'* Frontex, on
the other hand, has also engaged in cooperation with third countries in the scope
of'integrated border management' through the conclusion of a series of working
arrangements'*'' and in the framework of the so-called 'Mobility Partnerships'
with third States.'*"

•"' House of Lords (2008), Europol: Coordinating the Fight against Serious and Organised Crime, 29th Report,
Session 2007-2008, Select Committee on the European Union, London: The Stationary Office, p. 58.
*^' Europol (2011), pAiropot Review: General Report on Europol Activities 2010, The Hague: Europol, 3 May,
p. 14.
''3' Articles 7 and 49, EASO Regulation.
'*'" Europol has 17 working arrangements with third States, 8 of which include provisions on the exchange
of personal data (Europol website).
"^^ For an analysis of the working arrangements, refer to E. Guild and D. Bigo (2010), 'The Transformation
of European Border (Controls', in: B. Ryan and V. Mitsilegas (eds). Extraterritorial Immigration Control:
Legal Challenges, Leiden: Martinus Nijhoñ, pp. 257-278.
•*'"' S. Carrera and R. Hernandez i Sagrera (2009), The Extenialisation of the EU's Labour Immigration Policy:
Towards Mobility or Insecurity Partnerships?, CEPS Working Document 321, Brussels: CEPS. See Commis-
sion, Communication on a Dialoguefor Migration, Mobility and Security with the Southern Mediterranean
 s. Carrera et aL /Europeanjoumal of Migration and Law 15 (2013) 337-358 347

Moreover, international cooperation between these EU actors and third coun-

tries takes place not through classical legal mechanisms such as international
agreements but rather in the framework of quasi-legal or sui generis soft policy
tools, such as 'working arrangements', which are in a majority of cases non-legally
binding for the parties involved and whose legal effects remain dubious.'*'' The
'technocratic' and 'soff law' framing of the external affairs work here also leads to
an avoidance of democratic decision-making and a political pluralistic debate
about the decisions and actions being taken. They are not covered by the demo-
cratic scrutiny applicable to EU international agreements pursuant to Article 218
TFEU under which the EP has a central role. However, these 'quasi-legal' instru-
ments may have repercussions for fundamental rights of individuals, especially in
those aspects related to 'the sharing of information', operational cooperation and
financial assistance/capacity management in border controls.

2.3. De Facto Activities

The mandates of the agencies remain in a constant evolution not only legally but
also 'factually'. A shared characteristic of Frontex and Europol has been their
'activism' in areas which originally did not formally fall within their legal man-
dates or which, while corresponding with 'the letter' of their founding regulations,
have moved beyond original expectations and allocation of responsibilities. For
example, in implementing JROs, Frontex activities expanded beyond the formal
competences laid down in its original founding Regulation. Indeed, the Com-
mission highlighted the 'mismatch between the legal basis and reality: while the
legal basis only talks about Frontex 'assisting' Member States, the agency has
already, and successfully, taken on a 'coordinating' role'."*^ Furthermore, Frontex
had already begun to process personal data in the context of JROs, several years
before it obtained the legal basis to do so.'*^
The above-mentioned obscurity characterising their powers (e.g., lack of defini-
tion of what 'coordination' actually entails) has allowed for informal practices to
emerge and become an accepted and established part of these agencies' regular
activities. PoUak and Slominski, in their analysis of Frontex, refer to this

Countries, COM(2ou) 292 final, Brussels, 24 May 2011. See also S. Carrera (20U) The EU's Dialogue on Migra-
tion, Mobility and Security with the Southern Mediterranean: Eilting the Gaps in the Global Approach to
Migration, Papers in Liberty and Security in Europe (41), Brussels: CEPS.
•"' They are not concluded under the general EU competence for concluding international agreements of
Article 216 TFEU.
''*' Commission, Impact Assessment accompanying the Proposalfor a Regulation of the European Parlia-
ment and of the Council amending Council Regulation (EC) No. 2007/2004 establishing FRONTEX, Staff
Working Document, SEC(2oio) 149,24 February 2010, p. 16.
•"" European Data Protection Supervisor (EDPS), Opinion on a notificationfor Prior Checking receivedfrom
the Data Protection Officer ofthe European Agency ERONTEX concerning the 'collection ofnames and certain
other relevant data of returneesforjoint return operations (JRO)', Case 2009-0281, EDPS, Brussels, 26 April
2010. It now has that legal basis, see Article ub, 2011 Frontex amending Regulation.
34B .S'. Carrera et al. / European Journal of Migration and Law 15 (2013) 337-358

phenomenon as 'ex|)erimentalist governance'.''" While dynamism and flexibility

are claimed to be necessary features for these agencies to respond to new needs
and evolving political realities, this development path stands in tension with the
rule of law principles of legality, transparency and accountability.
An example here may be provided by the engagement of Frontex officers, dur-
ing Joint Operation Hermes Extension, in the identification and interviewing
('pre-screening') of migrants arriving in Southern Italy during the outbreak of the
Arab Spring. The agency's activities here were highly intransparent, with little
information provided at the time as to the precise purpose of such 'pre-screening'.
Despite later clarifications that these interviews were not related to identification
and registration procedures, merely 'information gathering', it is not difficult
to imagine a scenario whereby the informal contacts and exchanges between
Frontex and Italian border guards working side by side would influence
the processing of arrivals by Italian authorities, including the direction of asylum
procedures.
The open questions characterising these agencies from a rule of law viev^oint
are further illustrated by the relation between Frontex and the Schengen Borders
Code (SBC).''' The agency began its operational activities before the Union had
adopted the Code. The link between Frontex actions and the SBC was therefore
not included in the agency's founding Regulation. Moreover, joint maritime oper-
ations taking place in the territorial waters of African countries took place outside
the scope of the SBC, based on bilateral agreements between the hosting Member
State and the third country in question and remaining by and large secret and
outside national and EU democratic scrutiny. These defacto interventions thus
question the actual applicability of the SBC,^^ and more general fundamental
rights obligations. It has been only recently (March 2011) that the European Com-
mission tried to provide a proper legal framework to these activities with a pro-
posal to amend the SBC.^^ A similar lack of legal certainty has surrounded search
and rescue at sea in the course of Frontex JOs. Although the Council adopted a
Decision in 2010 identifying 'guidelines' for search and rescue during those opera-
tions, supplementing the SBC,'''* these were successfully challenged before the

'•<" |. Pollack and P. Sloniiiiski, 'Experimentalist but not Accountable Governance? The Role of Frontex in
Managing the EU's External Borders', 32 West European Politics (2009), 904-924, at p. 905.
^" EP and Council, Reguiation EC¿'¡62/2co(i establishing a Community Code on the rules governing the
movement ojpersons across borders (Schengen Borders Code), 15 March 2006, OJ L 105/1,13 April 2006.
^^' See, for instance, E. Brouwer (2010), 'Extraterritorial Migration Control and Human Rights: Preserving
the Responsibility of the EU and its Member States', in B. Ryan and V. Mitsilegas (eds). Extraterritorial
Immigration Control: Legal Challenges, Leiden: Martinus Nijhoft, pp. 199-228.
^^' Commission, Proposalfor a Regulation amending Regulation (EC) No. 562/2006 establishing a Commu-
nity Code on the rules governing the movement oJ persons acro.'is borders (Sehengen Borders Code) and the
Convention impiementing the Sehengen Agreement, C'OM(2oii) 118 final, Brussels, 11 March 2011, Annex VI,
points 1.1.4.3 ''ii'l 1.1.4.4.
'>'" Council, Decision supplementing the SBC as regards the surveillance of the seo external borders in the con-
text oJ operational cooperation coordinated by Frontex (2010/252/EU), 26 April 2010, OJ L111/20,04 May 2010.
 s. Carrera étal. / Europeanjoumal of Migration and Law 15 (2013) 337-358 349

Court by the European Parliament and in September 2012 the Court annulled the
Decision.^^ The Commission has now presented new proposals for rules which
partly take into account the aforementioned Hirsi judgment.^^ jhig situation
however signposts that explicit and specific rules for search and rescue were not
laid down in EU law before Frontex started to engage in such activities.

3. A Home Affairs and Insecurity Focus: Implications for Judicial

Accountability and Fundamental Rights

The above presented problematic concerning the tension between, on the one
hand, de jure competences and de facto activities and, on the other hand, rule of
law principles and fundamental rights is closely connected to the predominant
Home Affairs focus which underpins these agencies' rationales. This distinctive
Home Affairs focus not only influences their goals and priorities, but also exacer-
bates the challenges that their activities pose to fundamental rights of migrants
and asylum-seekers, via two main outcomes: first, their'insecuritisation' of human
mobility and, second, their recourse to secretive information/data gathering and
processing.
First, the activities of Frontex and Europol, and most notably their inter-agency
cooperation, foster processes of insecuritisation of 'migration', in particular of
irregular immigration, whereby economic and undocumented migrants as well as
asylum seekers are constructed as a 'risk' or 'threat' for the Union and the Member
States.-^'' The insecuritisation of mobility as irregular migration reinforces and is
reinforced by the increasing overlap oí police and external border control objec-
tives and activities and the assumed link between immigration and criminality.
This process is fostered by information exchange and processing activities, which
is one of the central components of the inter-agency cooperation as envisaged in
the AFSJ.^^ The content of such 'strategic information', including routes suppos-
edly used by irregular migrants, smugglers and traffickers, or methods used by
individuals 'threatening the security of the external borders or facflitating illegal
immigration',^^ demonstrates the growing conflation of 'persons on the move'

55' CJEU (Grand Chamber) Case C-355/10, EPv Council, nyr.

5''' Commission, Proposalfor a Regulation of the Parliament and the Council establishing rules for the sur-
veillance ofthe external borders in the context ofoperational cooperation coordinated by Erontex, COM(2O13)
197 final, 12 April 2013. See for the opinion that the Hirsi judgment is still not fiilly taken into account,
especially as regards effective remedies: Meijers Committee, Note on the Proposalfor a Regulation estab-
lishing rulesfor the surveiliance of the external sea borders in the context ofoperational cooperation eoordl-
nated by Erontex, 23 May 2013.
='•' D. Bigo, 'Security and Immigration: Toward a Critique of the Governmentality of Unease' in 27 (Suppl.)
Alternatives: Global, Local, Political (2002), 63-92; J. Huysmans (2006), The Politics of Insecurity: Eear,
Migration, and Asylum in the EU, Oxford: Routledge.
="*' " See: Commission, Action Plan Implementing the Stockholm Programme, COM(2oio) 171final,pp. 32,52.
5^' Article 2, Strategic Cooperation Agreement between Frontex and Europol, Warsaw, 28 March 2008.
350 .S'. Carrera et al. / Europeanjuurnal of Migration and Law 15 (2013) 337-358

and criminals. Illustrative in this respect was Europol's assessment ofthe migra-
tion flows from North Africa in the wake ofthe Arab Spring as a potential 'terror-
ist threat'.''*' Through inter-agency cooperation the concept of individuals as
rights-holders becomes blurred against the backdrop of'mixed migration flows'
and an emphasis on illegitimate or unwanted mobility. This linkage between
irregular immigration and other perceived threats to the EU justifies the develop-
ment and practice of coercive and stringent policy responses focused on 'policing
migration' inside and even outside the common European (Schengen) territory.
Telling examples of this paradigm are the above-described 'extraterritorial' migra-
tion controls and returns.
Second, the sovereignty sensitivities inherent to their fields of activity and the
on-going reluctance by certain national governments to extend their degree of
autonomy have led these agencies to employ information management and data
exchange techniques as one ofthe key mechanisms to gain more power and dis-
cretion in their activities.*^' This is manifest in the increasing prioritisation given
to the exchange of information and the access and processing (in the cases of
Europol and now Frontex) of'personal or depersonalised data', as well as the use
of security (surveillance) technologies in the work of agencies such as Frontex.^^
The active role taken by Frontex in laying the groundwork for the EUROSUR
proposal,'''^ and the central role accorded to the agency therein, present the
next step in a process which is seeing the agency progressively evolve towards an
'intelligence actor'. This process, which is consolidated through inter-agency
cooperation with Europol, can be understood in light of the (above-mentioned)
construction of an insecurity continuum of threats elaborated by Bigo (1996)
which institutionalises a connection between immigration and asylum with other
aspects widely categorised as dangers to internal security and social cohesion,
and which at times include notions as broad as acts of political violence denomi-
nated as terrorism.^'* In this manner the 'agencification' of AFSJ policies is insti-
tutionalising the insecurity continuum of threats and legitimizing the use and
development of highly contested border security policies with surveillance prac-
tices and technologies with significant implications over fundamental rights, not

''°' Europol (2011), EU Terrorism Situation and Trend Report, TE-SAT 2011, The Hague, 19 April.
''" |. Parkin (2012), EU Home Affairs Agencies and the Construction oJ Internal Security, Papers in Liberty
and Security Series (53), Brussels: CEPS; see also Pollack and Slominski (2009), p. 908.
''^' Member States are interested in a further expansion of this role played by Frontex suggesting ¡«fer a/Za
the increased sharing of 'satellite images', see: Council, Implementation of Council Conclusions on 29 Meas-
ures for reinforcing the protection ofthe external borders and combating illegal immigration: analysis ofthe
replies to the questionnaire on 'MS needs and capacities regarding Common PreErontier Intelligence Picture
(CPIP), Doc. 12542/11, Brussels, 6July 2011, pp. 8-9.
••a' Commission, Proposal for Regulation of the EP and the Council establishing EUROSUR, C0M(20ii)
873 final, Brussels, 12 December 2011.
'•'" D. Bigo (199b), Police en Réseaux: L'expérience européenne. Presses de Sciences Po, Paris, pp. 258-266.
 s. Carrera etaL / EuropeanJournal of Migration and Law 15 (2013) 337-358 351

least data protection and privacy.'^s j ^ i s ^gy of working also justifies a degree of
'secrecy' and lack of transparency which often surrounds their operational activi-
ties''^ and processing of 'information'.^^ A somehow similar 'secrecy logic' now
appears also to characterise the work of EASO which declined to publicly disclose
the Operating Plan concluded with Greece for the deployment of ASTs.''^

4. Redress for Fundamental Rights Breaches: In Search of Effective Remedies?

The cross-cutting elements addressed in this article that characterise EU Home
Affairs agencies, namely the progressive development of sometimes unclear
dejure competences and defacto 'experimental' activities and their Home Affairs
focus (particularly pronounced in the case of Frontex and Europol), present ten-
sions with accountability and fundamental rights. The relevance of fundamental
rights in their remits has been (at least formally) taken into consideration by the
three agencies. This is evident when looking, for instance, at the data protection
framework that has been devised for the activities of Europol,^^ the Fundamental
Rights Strategy recently adopted by Frontex,^° its working arrangements with the
UNHCR and the FRA,'^'' or the close input and the specific role that UNHCR plays
in EASO's organisational structures.^^
The question remains however as to the extent to which this fijndamental
rights framework of protection is actually being effectively delivered in practice
and the degree to which individuals have access to these rights and freedoms.

''^' D. Bigo, S. Carrera, B. Hayes, N. Hemanz andJ.J. Jeandesboz (2012), Evaluating Current and Forthcom-
ing Proposals onfHA Databases and a Smart Borders System at EU external borders, Study for the European
Parliament, Brussels: CEPS.
'^'5* For example, the agreements with third States on migration cotitrols have been kept secret by Frontex
and the involved Member States.
'•'" See for instance: Frontex, Programme of Work 200g, p. 24.
•**" c;ommission. The European Asylum Support Office (EASO), MEMO/11/415, Brussels, 19 June 2011; See
also the EASO Monitor website article. Document request denied by the Commission, EASO, Valetta, 2 May
2011 (http://easomonitor.blogspot.com/2011/05/document-request-denied-by-commission.html). In the
end, through a request, EASO granted access to the document to the current authors specifically, but only
in full confidentiality.
''^' Europol developed an own data protection system, which is widely held to offer a more robust level of
protection than that provided by the current EU level ñ-amework on data protection. See for instance
A. De Moor and G. Vermeulen, 'The "new" principal task for Europol to support Member States in connec-
tion with major international events: The blurring of boundaries between law enforcement and public
order?', 16 Policing in Europe -Journal ofPolice Studies (2010), 120-138.
•"" Frontex (2011), Fundamental Rights Strategy, Warsaw, March.
' " Resp. UNHCR (2008), UNHCR agreement with Frontex, Press Release, Geneva, 17 June (http://www
.unhcr.org/4857939e2.html). For an example of one of the outcomes of this cooperation, see UNHCR
(2011), Protection Training Manual for European Border and Entry Officials, Geneva, 1 April, available online
at http://www.unhcr.org/4d948c736.html. See also: Cooperation Agreement between Frontex and the FRA,
26 May 2010, available online at http://www.fra.europa.eu/fraWebsite/attachments/Cooperation-Agreement-
FRA-Frontex_en.pdf.
™ Article 50, EASO Regulation.
352 S. Carrera et ai / EuropeanJournal of Migration and Law 15 (2013) 337-358

This was for instance a key concern raised by the European Ombudsman own-
initiative inquiry concerning the implementation by Frontex of its fundamental
rights obligations opened in March 2012,^^ which sought to scrutinize the extent
to which Frontex has put in place the necessary mechanisms and instruments
to promote and monitor compliance with respect for fundamental rights and
raised a number of concerns and gaps regarding the practical delivery of funda-
mental rights during Frontex operational actions.'^* In this section we focus espe-
cially on judicial accountability for alleged breaches of fundamental rights of third
country nationals.
The official demarcation of responsibilities, limiting agency activities to 'coor-
dinating' or 'assisting', means that 'formally' it is the Member States who are the
ones directly acting vis-à-vis the individual, despite extensive agency inputs. This
means that, in the case of a fundamental rights violation against an individual
who wishes to seek judicial redress, agencies can effectively 'dodge' accountabil-
ity by using Member States' liability as a screen. This could also complicate legal
remedies before the CJEU, as the Agencies are also subject to its jurisdiction
under the Lisbon Treaty. There are several legal avenues to which an individual
can turn when mounting a claim before the Court. The two most relevant here
are the action for annulment (Article 263 TFEU) and the compensation for dam-
ages procedure (Article 340 TFEU). The former is employed when an applicant
wishes to argue that an EU body has acted unlawfully and, if successful, leads to
the act being declared void;''-'' the latter allows an individual to sue an EU institu-
tion or body for compensatory damages.^*' There are however several legal obsta-
cles facing individuals who wish to seek redress against Agency action. They
would, for instance, have to establish that an 'act' has been addressed by an
agency directly to an individuaF^ or that Member State actions have not 'broken'
the causal link between agency conduct and the damage incurred.^^ Some past
dynamic case law by the Court on effective remedies as a requirement of a Union

'^' European Ombudsman Own-initiative inquiry 0I-5-2012-BEH-MHZ concerning implementation by

Erontex ofitsfundamental rights obligations, 6 March, Strasbourg.
'"' The European Ombudsman delivered his Draft Recommendation on 9 April 2013 in his own-initiative
inquiry on Frontex (see above), esp. p. 21.
'*' See Article 264 TFEU. This means that the act and the acts based upon it are no longer in effect None-
theless, the Court can also qualify the extent of the nullity by leaving parts of the act untouched by the
retroactive erga omnes nullity; see P. Craig and G. De Burea (2008), EU Law - Text, Cases and Materials,
4th edn, Oxford: Oxford University Press, pp. 571-573.
™' Moreover, if an action is brought before tbe Court, it may order the suspension of a contested act or
prescribe interim measures - see Articles 278 and 279 TFEU.
" ' That is needed under the admissibility criteria under the action for annulment' procedure of Article 263
TFEU. See also: Craig and De Biirca (2008), p. 509.
'*' That is needed for the 'compensation for damages procedure' of Article 340 TFEU. See also: CJEU Case
C-312/00 P, Camar [2002] ECR I-11355, para. 53. The landmark case in this context is: CJEU Case C-352/98 P,
Bergaderm [2000] EC^R I-5291, para. 42.
 s. Carrera étal. / Europeanjoumal of Migration and Law 15 (2013) 337-358 353

'founded on the rule of law',^''' also applied in cases concerning EU agencies,^^

arguably supports the expectation that in the future the Court may also consider
a dynamic interpretation to offer legal address against these novel forms of gov-
ernance by Home Affairs agencies.
The undisclosed and unclear ways of working of the agencies often make it dif-
ficult to establish liability and bring evidence before a court of law. There is often
a simple lack of information on what precisely has taken place, and by whom, dur-
ing operational actions. For example, the nature and reach of Frontex actions in
the jO HERMES was highly obscure. Frontex has not disclosed details on where
exactly the involved border guards and equipment operated (e.g., in which Juris-
diction?), in which specific activities they engaged (e.g., return in the context of
the Italian-Tunisian readmission agreement?), which detailed procedures have
been followed in the reception of the immigrants (e.g., were they all informed of
the possibility to obtain international protection?) and what the effect is, even
unintended, of the work of the Frontex debriefing and screening officers for
migrants' asylum applications.^'
Moreover, the interwoven web of actions by several players (Member States,
EU agencies, third countries and international organisations) is difficult to disen-
tangle, further complicating the process of building a case to seek judicial redress.
Illustrative examples in this context are the Frontex joint operations at sea, espe-
cially those taking place extraterritorially.82 JO HERMES also demonstrates how
Europol becomes increasingly active in EU level-coordinated 'border control'
operations, and it is expected that in the future EASO wifl also be engaged in such
coordinated actions.^^ j ^ j s already crowded field of EU Home Affairs agencies
and Member State border authorities is further complicated by existing actions
ot organisations such as NATO naval forces, which since 2002 have assisted Mem-
ber States like Greece in irregular immigration operations and (surprisingly) 'the
fight against terrorism' in this context.^'* In this multi-actor field responsibility for
unlawful actions causing fundamental rights violations shifts from one side to

79)
CJEU Case 294/83,Les Verts vParliament [1986] ECR 1339.
CFI Case T-411/06, Sogelma v. EAR [2008] ECR II-2771, para. 37.
81)
Frontex has published a number of press releases on the Hermes JO (see the Frontex website page on
news releases, see also ftnt. 77 below) but left these issues unaddressed.
'*^' See Baldaccini (2010), p. 230; see also Amnesty International and the European Council on Refugees
and Exiles (ECRE), Briefing on the Commission proposalfora Regulation amending Council Regulation (EC)
2007/2004 establishing Erontex, London and Brussels, September 2010.
™ Frontex (20U), Hermes 2011 starts tomorrow in Lampedusa, News Release, Warsaw, 19 February, availa-
ble online at http://www.frontex.europa.eu/hermes_20ii_extended/news_releases/; Frontex (2011),
Hermes 2011 up and running, News Release, Warsaw, 22 February 2011, available online at http://www
.frontex.europa.eu/hermes_2ou_extended/news_releases/.
>"" See for instance the report of the NATO Parliamentary Assembly, Mediterranean and Middle East
Special (iroup. Migration in the Mediterranean Region: Causes, Consequences, and Challenges, Brussels,
Rapporteur:AntonioCabras,2oo9,availableonlineathttp://www.nato pa.int/default.asp?SHORTCUT=i858;
see also: Ciuild and Bigo (2010), p. 273.
354 ^. Carrera et al. / European Journal of Migration and Law 15 (2013) 337-358

another and legal liability becomes difficult to attribute to a single organisation.

When reports about violations surface, actors are quick to denounce their involve-
ment and to shift the blame to other players. Illustrative of this reflex was the
reaction by Frontex to a Human Rights Watch report revealing push-backs to
Libya (the agency strongly denying any involvement while pointing the finger
to Italy),^'' and the refusal by NATO and France to acknowledge any role in the
case of the migrant boat left to drift in the Mediterranean in 2011 resulting in
the deaths of 63 people.***" The report on the latter case by Rapporteur Strik ofthe
Council of Europe highlighted the evasion of responsibility by several actors.^^
The case has now been brought before Spanish and French courts.^^
Taken together, these factors result in the paradoxical scenario whereby agency
interventions of Frontex and Europol, despite being highly politicised, largely
evade the full legal accountability and public scrutiny that would enable deter-
mining their precise responsibility and potential liability in cases of fundamental
rights allegations before a court of law.^^ Despite several reports about the func-
tioning of the Agencies (particularly Frontex) and their weaknesses in terms of
accountability for possible fundamental rights breaches,^" there is a lack of con-
crete knowledge and public information concerning the actual scope of their spe-
cific actions, which makes it difficult to carry out evidence-based daily monitoring
and ex-post evaluation of their activities. The existence of a set of EU actors
whose unclear competences, 'experimentalist' governance strategies and Home
Affairs focus could allow these agencies to side-step their obligations under EU

^5' See: FRONTEX, News Retease, 21 September 2009.

^^' See J. Shenker, 'Aircraft carrier left us to die, say migrants'. The Guardian, 8 May 2011, available online
at http://www.guardian.co.uk/world/2011/may/08/nato-ship-libyan-migrants; and 'Libyan migrants' boat
deaths to be investigated by Council of Europe', The Guardian, 9 May 2011, available online at http://www
.guardian.co.uk/world/20ii/may/o9/refiigees-libya?intcmp=239. See also: Reuters, 'NATO, France deny
failing to save Libyan migrants', 9 May 2011, available online at http://www.reuters.com/article/2011/05/09/
us-libya-nato-migrants-idUSTRE74836P2oiio509.
"" T. Strik (2012), Lives lost in the Mediterranean Sea: Who is responsible?. Report for the Parliamentary
Assembly, Committee on Migration, Refugees and Displaced Persons, Council of Europe. See also L. den
Hertog (2012), Two Boats in the Mediterranean and their Unfortunate Encounters with Europe's Policy
towards People on the Move, Papers in Liberty and Security in Europe (48), Brussels: CEPS.
^^' International Federation for Human Rights (FIDH) held a press conference on this case in Paris on
18 June 2013, see: http://cibul.net/event/paris-press-conference-on-the-left-to-die-boat-case/enisClientands
Client= (accessed 19 July 2013).
*^' Refer to S. Carrera and B. Petkova (2012), 'The role and potential of civil society and human rights
organizations through tbird party interventions before the European Courts: The case ofthe EU's Area of
Freedom, Security and Justice', in:M. Dawson, E. Muir and B. De Witte (eAs), Judicial Activism at the Court
of Justice: Causes, Responses and Solutions, Cheltenham: Edward Elgar, forthcoming; See also S. Carrera,
M. De Somer and B. Petkova (2012), The Court ofJustice ofthe European Union as a Eundamental Rights
Tribunal, Papers in Liberty and Security in Europe (49), Brussels: CEPS.
90) ijge eg European Ombudsman (2012) and UN Human Rights Council, Report ofthe Special Rappor-
teur {Mr Crépeau) on the human rights ofmigrants - Regional study: management ofthe external borders of
the EU and its impact on the human rights of migrants, 23rd session. Doc. A/HRC/23/46, Geneva,
24.04.2013.
 s. Carrera et aL / Europeanjournal of Migration and Law 15 (2013) 337-358 355

and international law represents an important gap in the EU's fundamental

rights protection framework.

5. The Need for More On-going Scrutiny

The oft-cited solution to the autonomy versus accountability dilemma is ex post
accountability. However, this option is inadequate where EU Home Affairs agen-
cies' operational decisions will have had irreversible impacts on human rights.
Rather, the only satisfactory mechanism to ensure accountability would be closer
on-going scrutiny through independent monitoring. This is somewhat analogous
to the term of 'on-going control' as referred to in the introduction of this article,
with the crucial difference being that here we do not necessarily refer to control
from the principals. The arrangements surrounding Frontex shall be taken as an
example here to further develop this idea.
During the last amendment of the Frontex mandate several additional moni-
toring provisions have been introduced. However, they focus primarily on ex post
accountability and do not fully ensure a genuine complaint mechanism and inde-
pendent monitoring of the Agency's activities. Although the establishment of the
Fundamental Rights Officer (FRO) and the Consultative Forum (CF) lead to more
reporting on the fundamental rights sensitivities of the Agency's work, it remains
to be seen whether these new entities can truly offer independent on-going
scrutiny.9' Both have scarce possibilities to physically monitor actual practices on
the ground and thus rely mostly on information from the Agency itself The moni-
toring introduced for JROs appears to move somewhat towards on-going scrutiny,
although its independence cannot be safeguarded.^^ Most of all, the weak provi-
sion on allowing independent monitors from Union agencies and international
organisations casts doubt on the commitment to possible on-going scrutiny.^^
Overall the it is doubtful whether these new mechanisms would suffice to provide
an accurate and independent picture of developments on the ground.
The argument presented here thus speaks in favour of additional constraints on
'operationalflexibility'.In the case of Frontex, the European Ombudsman inquiry
identified several unclear provisions and presented proposals to remedy those.^'*
For example, it identified that the Fundamental Rights Strategy does not clarify
Frontex' responsibility for possible fundamental rights breaches and recommends
that Frontex could clarify 'whether it considers itself responsible for fundamental
rights breaches within its activities and, if so, under which terms'.^^ This however

'^" See Article 26a, amended Frontex Regulation.

™ See Article 9(ib), ibid.
'-"-*' Article i3(para. 3), ibid.
"'" Parts 'C and 'D', European Ombudsman (2012).
•'^' Wid., pp. 14 and 21.
356 X Carrera étal. / European Journal of Migration and Law 15 (2013) 337-358

primarily relates to ex ante and ex post accountability. However, independent

monitors with fundamental rights expertise participating in operational activities
could ensure that violations are prevented and that the FRO and the CF are sup-
plied with credible information about the fundamental rights situation on the
ground. So, more on-going scrutiny would also benefit the quality of ex post
accountability.
Concretely, the monitoring could be realized by a significant enlargement of
the CF's mandate and resources which would allow for the setting up of an 'EU
Border Monitor' assessing directly on the ground the compliance of Frontex bor-
der controls and JROs with EU law.'-"" The CF could thereby be 'upgraded' to a
Secretariat from which monitoring missions are continuously coordinated. This
could be supported by a pool of volunteers who are qualified to participate in such
monitoring missions.^'' The effective functioning of this EU Border Monitor how-
ever entails that Frontex and participating Member States should be under an
obligation to accept such monitors in their operational activities. The current
(host) Member State 'veto' over the presence of such monitors should thus be
abolished.^**
Although some would surely argue that this impacts on the autonomy of these
Agencies, we contend that applying this theoretical trade-off is problematic here.
Where individual human rights are at stake, the matter cannot be a question of
balancing one out against the other, but rather ensuring full accountability. If
autonomy means that action can be taken secretly and without proper scrutiny,
then should there be a place for it in the functioning of these Agencies? Autonomy
should thus not become a concept justifying the masquerading of problematic
policies and actions, neither by the Agencies themselves nor by the 'principals'
employing the Agencies as 'shields' against accountability. Rather, sustainable
autonomy could stem from 'opening up'; from answering fully to accountability
demands. Concretely, if independent monitors were allowed to systematically
give input into and document operational activities, this would offer an opportu-
nity for the Agencies to learn from fundamental rights expertise and to show that
they comply with fundamental rights obligations.

6. Conclusions
Frontex, Europol and EASO have confirmed themselves as a distinct and peculiar
kind of EU regulatory agency. It should be noted that most findings in this article

^°' See: E. Guild, K. Groenendijk and S. Carrera (2008), 'Ten Recommendations on Freedom, Security and
Justice for the European Parliament Elections', CEPS Policy ßne/173, p. 1.
"''^ Some inspiration could be drawn from the UK 'Independent Monitoring Boards'. They already moni-
tor immigration centres and return flights, see also their submission to tbe Ombudsman inquiry available
online at: http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/12059/html.bookmark.
^*' See Article I3(para. 3), amended Frontex Regulation.
 s. Carrera et al. / Europeanjoumal of Migration and Law 15 (2013) 337-358 357

are based on the activities so far conducted by Frontex and Europol, whereas the
actual ways of working of EASO are only now beginning to emerge. Nonetheless,
several commonalities shared by Frontex and Europol have been identified and
similar tendencies can be seen in their work. First, their 'Home Affairs' framing of
mobility legitimises the adoption of coercive policy responses. Secrecy and lack
of transparency characterise some of the activities of the three actors with possi-
ble adverse consequences for judicial accountability. Second, the three agencies
have been granted important operational tasks which go beyond mere 'regulatory
activities' by aflowing them to intervene in the national arenas of the EU Member
States. The 'open-ended' nature inherent to the functions played by these EU
Home Affairs agencies has been presented in a rather technical or bureaucratic
fashit)n which attempts to frame their role as mere 'coordinators', 'facilitators'
and/or 'assistants' at the service of EU Member States and the implementation
of European policies but ultimately not taking any effective 'decision' which has
a policy and legal impact. This strategy of 'depoliticising' their role has also pri-
marily aimed at highlighting their 'independence', preventing controversies and
a proper democratic scrutiny (political debate) of the nature and impact of
their activities and evading questions of accountability, responsibility and liability
in cases of unlawful actions, including potential fundamental rights breaches
and risks.
In this article we have shown how some of the activities performed by Frontex,
Europol and EASO present sensitivities to specific fundamental rights. This is
especially the case in relation to, first, their operational activities, second, the
exchange and processing of information and personal data (in the cases of Fron-
tex and Europol) for carrying out 'risk analysis' and 'threat assessments'; and third,
their relations, cooperation and exchange of information with third countries
through working arrangements and 'soft law'. Yet the factual inputs of agencies
like Frontex and Europol are at the same time highly ambiguous, making 'respon-
sibility' a constantly shifting and volatile dimension that is hard to capture and
scrutinise in practice. This results in a high degree of vulnerability of third country
nationals on the move by making it difficult for them to obtain access to justice in
cases of alleged breaches of fundamental rights and guarantees.
As a consequence, we contend that the traditional framing of autonomy vs.
accountability as dealt with in the academic literature cannot be applied to EU
Home Affairs agencies. The application of a 'balance approach' to agencies such as
Frontex, Europol and EASO is problematic given that the activities of these agen-
cies hold profound implications for human rights and liberties, some of which are
even absolute in nature and accept no derogation or exception by public law
enforcement authorities. This means that accountability must take centre stage
and cannot be balanced against autonomy. Hence this nature imposes a pressing
need for the highest degree of accountability, allowing for effective and real access
to justice. In light of this, we made the case for closer on-going scrutiny of the
358 S. Carrera et al. / European Journal of Migration and Law i¡ (2013) 337-358

operational activities of the agencies, arguing that the standard solution to the
'autonomy v. accountability' dilemma - namely ex post accountability - is insuf-
ficient in the case of these Agencies. In our view, it is exactly when the Agencies
'open up' and allow for more independent monitoring that they can increase the
trust in their autonomous role.
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