Articles for category: Frontex and the Rule of Law

Frontex and ‘Algorithmic Discretion’ (Part II)

Part I of this contribution explains how the regulatory design of the European Travel Information and Authorisation System (ETIAS) raises issues in relation to the rule of law principle of legality. Essentially, the ETIAS screening rules algorithm illustrates how automation can lead to what I suggest is a new form of arbitrariness. Part II reflects on how these legality issues affect other rule of law principles, including the principle of effective judicial protection. In turn, it raises three accountability issues and calls into question the assumption that the safeguard of manual processing in case of a ‘hit’ is a panacea for all rule of law challenges stemming from this semi-automated decision-making.

10. September 2022

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Frontex and ‘Algorithmic Discretion’ (Part I)

This contribution, presented in two parts, offers a predictive glimpse into future rule of law challenges due to the European Border and Coast Guard Agency’s (Frontex) primary responsibility for the automated processing and screening rules of the soon-to-be-operational European Travel Information and Authorisation System (ETIAS) at the EU’s external borders. . In Part I on legality, I argue that the ETIAS screening rules algorithm illustrates how automation can lead to what I suggest is a new form of arbitrariness – which I refer to as ‘algorithmic discretion’. This can be defined as a situation where the exercise of power and discretion and their limitations are not sufficiently specified at the legislative level but are delegated to an algorithm instead.

10. September 2022

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Frontex and Data Protection

Frontex has become notorious for its multiple fundamental rights violations, including pushbacks. The problem of fundamental rights infringements associated with the Agency has been lasting for years, leading ultimately to the resignation of the Executive Director. What I argue in this post is, first, that the fundamental right to the protection of personal data by Frontex has not yet received sufficient attention by scholars and EU institutions. Second, data protection within the Agency needs to be strengthened to prevent any future new scandals.

9. September 2022

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The Secretiveness over the OLAF Report on Frontex Investigations

The gravity of the decision not to disclose the OLAF Report should not be underestimated. The decision of not initiating proceedings on its basis should not either. Excluding the public scrutiny over such serious violations of human rights and breaches of EU law committed by those who are entrusted with applying it, weakens our democracy and fails to respect the very same values it was founded on. In a Union based on the rule of law, the accountability of civil servants should be ensured through efficient mechanisms.

9. September 2022

Financial Scrutiny of Frontex as a Political Accountability Tool

An investigation by the European Anti-Fraud Office (OLAF) on allegations of misconduct within Frontex ended with a report classified as confidential, which was therefore only accessible to the agency’s Management Board. Shortly after submission of the report, Frontex’ Executive Director (ED), Fabrice Leggeri, resigned, opening up a new cycle in the governance of the agency. Following up on this, the European Parliament (EP) decided to postpone the discharge of Frontex’ budget on the ground of lacking information with regard to the subject of the OLAF report. In this contribution, I argue that the EP’s refusal to approve the discharge of the budget of Frontex, even though having little impact on the financial stability of the agency, is a tool to enable the political accountability of Frontex.

8. September 2022

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European Oversight on Frontex

The scandals about the complicity of Frontex in human rights violations in autumn 2020 exposed weaknesses in the accountability system. In this blog, I will elaborate on this by presenting the rules governing democratic accountability, followed by an analysis of the lessons learned during the parliamentary inquiry on Frontex’ human rights-related performances, in the light of their obligations. I will conclude with ideas on how to strengthen democratic accountability, and how to expand it to the much-needed public accountability of Frontex. 

8. September 2022

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Frontex and Migrants’ Access to Justice

While possibly marking a step in the right direction towards more political accountability, the controversial resignation of Frontex’s former Executive Director, Fabrice Leggeri, leaves open the question about the effective judicial protection for migrants interacting with the agency. A number of judicial actions are brought before the Court of Justice of the European Union (CJEU), as the only competent tribunal with jurisdiction on Frontex. By critically reviewing these judicial actions from the perspective of migrants’ access to justice, this post aims to flag the limits of the existing system of EU judicial remedies in light of Frontex wrongdoings. Beyond access to a court, access to justice vis-à-vis EU migration agencies must integrate elements of good governance, such as transparency and accountability.

7. September 2022

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What Monitoring for Fundamental Rights at EU Borders?

The legal and structural problem of fundamental rights protection and its monitoring at the EU’s external borders in the context of border police operations is high on the EU political and legislative agenda at the moment. In this blog I argue that a truly independent system for monitoring human rights compliance at EU borders must be established which is the responsibility of state bodies, building on existing entities such as Ombudspersons, National Human Rights Institutions, National Preventive Mechanisms. The border monitoring activities must be coordinated across Member States and the competent monitoring bodies must have access to their sister bodies in relevant third countries.

7. September 2022

What’s in a Name?

The available non-judicial forms of accountability are insufficient to ensure the accountability of the agency. Neither their combination nor the respective parts can constitute effective non-judicial remedy in the meaning of Article 13 of the European Convention for Human Rights and Fundamental Freedoms, while their pre-emptive functionality is not deemed adequate to prevent violations. Therefore, the need for legal accountability in the form of judicial remedies becomes all the more essential.

6. September 2022

Hybrid EU External Border Management

The recent resignation of the Executive Director of Frontex disguises in fact the many structural problems and flaws resulting from the hybrid exercise of significant executive powers within a shallow legal framework. This blogpost argues that this leads to a lack of clarity, adequate controls and safeguards which in turn creates fertile ground for abuse of power and unaccountability.

6. September 2022

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