Assessment
Concerning recommendation A. - "clarifying (i) whether Frontex considers itself responsible for fundamental rights breaches within its activities and, if so, under which terms; and (ii) in the Code of Conduct, the legal framework applicable to the conduct of all participants in Frontex operations (point 61 of the Ombudsman's assessment)"
Frontex's stance
87. Frontex recalled that, according to Article 1 of the Frontex Regulation, its mandate is to facilitate and render more effective the application of Union measures related to the management of external borders by ensuring the coordination of actions of the Member States and contributing to an efficient, uniform and high level of control on persons and of surveillance of external borders. Frontex is obliged to respect and promote fundamental rights in its coordinated activities in compliance with EU law, in particular the Charter of Fundamental Rights of the EU, as well as international law.
88. Frontex equally recalled that its mandate is limited to a practical supporting role, with the responsibility for the control and surveillance of external borders lying with the Member States. While Frontex has responsibility for the actions defined by its mandate, it cannot be held answerable for the Member States' sovereign actions, as clearly defined by the legislator.
89. At the same time, Frontex argued that it is fully aware of the rationale underlying the amendment of the Frontex Regulation in 2011 and aims at increasing the Agency's responsibility in particular in areas where Frontex could have knowledge of potential fundamental rights violations. In this regard, it recognised that it was given new instruments to react to possible fundamental rights violations during joint operations, for instance, through the possibility of the Coordinating Officer expressing his or her views on the instructions given to the members of EGBTs by the host Member State which includes raising perceived violations of fundamental rights. Frontex added that it may terminate a joint operations when, according to its assessment, the conditions for such operations are no longer fulfilled. Moreover, the Executive Director has the obligation to suspend or terminate joint operations if he considers that violations of fundamental rights or international protection obligations are serious and persistent.
90. Frontex specified that it aims to prevent violations of fundamental rights through a number of tools, namely, (i) the harmonisation of fundamental rights training in the Member States; (ii) the establishment of a monitoring and reporting system for possible violations of fundamental rights; (iii) the mainstreaming of fundamental rights in its activities; (iv) the promotion of swift processing of potential complaints lodged by migrants with the respective Member States authorities in the course of joint operations; and (v) serving as the custodian of best practices.
91. Turning to the legal framework applicable to the conduct of participants in operations coordinated by it, Frontex recalled that Article 10(3) of the Frontex Regulation provides that the guest officers act under instructions of the host Member State, while they remain subject to disciplinary measures of their home Member States, including in cases of violations of fundamental rights or international protection obligations. Frontex emphasised that all participants in operational activities coordinated by it receive training in EU and international law, including fundamental rights and access to international protection, as well as briefings concerning the particular operational area and applicable law. They are also informed about their duty to comply with the applicable law and the Operational Plan. Lastly, they are subject to the professional values, ethical principles and rules laid down in the Code of Conduct. Frontex added that "humanity" is one of its core values with concrete implications on the activities of the Agency, given that it serves as a guiding principle on best conduct in case of doubt.
92. Frontex emphasised that significant work had been done, both before and after the amendment of the Frontex Regulation, in order to ensure respect of fundamental rights within Frontex's mandate. In the given context, Frontex also referred to the drafting of the Strategy and the Action Plan as well as to the taking up of duties of the FRO and the CF. Frontex underlined that respect for and promotion of fundamental rights are a continued concern for it and the relevant Member States authorities and pledged its continuing efforts in this regard.
93. Lastly, Frontex pointed out that it is aware of potential gaps concerning the clarification of responsibilities between the numerous different actors and declared its intention to endeavour "to bring more clarity, at practitioner's level, within the limits of its mandate". The Agency added that further revision of the Strategy will consider the Ombudsman's suggestions.
The Ombudsman's assessment
94. The Ombudsman welcomes Frontex's clarifications as regards the extent of its responsibility as well as the applicable legal framework. Frontex's readiness to bring more clarity to its mandate and to make the relevant amendments to the Strategy is particularly important.
Case closed - deficiencies addressed.
