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EU: Updates to Frontex complaints mechanism shrouded in secrecy

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11 September 2020

EU border agency Frontex is in the process of updating the rules governing its highly-criticised individual complaints mechanism. Attempts to ensure transparency over those updates - which have important implications for the protection of fundamental rights - have, so far, been unsuccesful.

Frontex's individual complaints mechanism was set up by the revamped Regulation of 2016 in response to long-standing demands, including from the European Ombudsman, who had called for such a mechanism since 2013.

The purpose of the mechanism is to allow anyone who believes they have had their rights breached by the action or inaction of officials involved in a Frontex operation to lodge a complaint with the agency, after which it will be dealt with by the agency itself or forwarded on to the relevant national authorities.

As explored in the recent Statewatch publication Deportation Union: Rights, accountability and the EU's push to increase forced removals, the minimum standards to qualify a complaints mechanism as an effective remedy include "institutional independence, accessibility in practice, adequate capacity to conduct thorough and prompt investigations based on evidence, and a suspensive effect in the context of joint expulsions." [1]

Despite additional measures introduced in the 2019 Regulation, concerns still abound, such as the lack of any mention of the possibility to appeal against decisions on the outcome of complaints, or of any time limits for processing complaints. Ultimately, as Deportation Union argues, the complaints mechanism cannot be considered as truly independent and effective.

Therefore, the discussions and decisions on how the agency plans to update the mechanism are of the utmost importance for upholding fundamental rights standards - particularly as the agency prepares to deploy its own standing corps of officers, rather than member state border guards, for the first time in January 2021.

On 20 May 2020 Statewatch made a request to the Frontex "transparency office" for access to various documents, including:

• the design and syllabus of training materials for the Basic Training Programme for Category 1 standing corps staff;
• a copy of good practices regarding interventions and tactics; and
• the first draft of the Executive Director’s decision on the adaptation of the individual complaints mechanism.

This last document was described in an internal Frontex report, published by Statewatch, which noted that:

“...further developments… to take place in the area of fundamental rights protection, among which setting up special rules of independence of Fundamental Rights Officer, special complaints mechanism and the establishment of the teams of the Fundamental Rights Monitors are the most significant”.

The document noted that "internal consultations on the first draft of the ED decision are ongoing in view to adapt the complaints mechanism."

Receiving an answer to this request, whether positive or negative, was not straightforward.

The following day, 21 May, Statewatch received a novel response from Frontex: that because of an ongoing request (itself subject to various delays), this request would not be considered until after the conclusion of the first application.

Statewatch asked which law or procedural rule required that only one application be dealt with at a time. No explanation was forthcoming, but the transparency office did subsequently notify Statewatch that the request for access to documents was acknowledged, almost a week after the initial request, on 26 May.

The second delay was referred to Statewatch another week later, on 2 June: the transparency office requested clarification regarding the documents sought, despite the fact that they were requested with the same wording as appeared in Frontex’s own internal report. This demand seemed rather odd, given Frontex’s insistence that it demonstrates its commitment to transparency by assisting "as much as possible" where an applicant "had difficulties describing or finding the document(s) they were looking for".

Eventually, the timeline for the request was re-stared 10 days later, on 12 June 2020. 

Finally, on 26 June, the transparency office made a response to the request. Almost all of the documents were shared, though with some details expunged. All the documents, that is, except one: the first draft of the Executive Director’s decision on the adaptation of the independent complaints mechanism to comply with the 2019 Regulation.

Access to this document was denied on the grounds that its disclosure would:

"...seriously undermine internal decision-making processes regarding current and future activities of Frontex and Member States. The ongoing discussions taking place within Frontex and under its auspices and involving numerous stakeholders require special protection.  Namely, disclosing the requested document would reveal negotiation positions of the stakeholders, which would erode the mutual trust among all participants."

Statewatch appealed this decision, on the following grounds:  

1. The purpose of Regulation 1049/2001on access to documents is to give the public the widest possible right of access, and therefore any exceptions to that access must be interpreted and applied strictly, as the Court of Justice of the EU has ruled on numerous occasions. [2]
2. Public right of access to documents is connected to the democratic nature of EU institutions. In this instance, access to information seems particularly important, given that the document requested relates to accountability mechanisms of the agency.

In response to this confirmatory application, Frontex’s legal team explained that as the agency is "not an institution with a legislative capacity," it is therefore entitled to "a wider margin of discretion in what constitutes its 'space to think'", based on its interpretation of the preamble to the access to documents Regulation, which states in paragraph 6 that "wider access should be granted to documents in cases where the institutions are acting in their legislative capacity."

Arguing that the agency was drawing on the views of "a variety of stakeholders" for the draft decision on the complaints mechanism, the legal team stated that:

"...a release of the document, including views and comments of the stakeholders in the confidentiality of their contributions to this and other governance documents would be hampered to the extent that Frontex would be effectively deprived of its 'space to think'."

The Frontex press office confirmed to Statewatch that those stakeholders are the Fundamental Rights Office, the Legal and Procurement Unit, the Executive Director and the Management Board and the Frontex Consultative Forum. That is to say, all of the stakeholders are internal to the agency.

In their response to Statewatch's confirmatory application, the legal team continued:

"it is for the applicant [Statewatch] to demonstrate precisely in what way disclosure of the document at issue would… prevail in the present case over protection of the purpose of the legal advice and the decision-making process”."

The issue at hand is the design and structure of a mechanism intended to deal with complaints against an agency that wields growing powers over individuals who may be in particularly vulnerable situations. Not only is this an issue of fundamental public interest, but greater transparency would likely be an aid in designing a better-functioning mechanism. Unfortunately, the agency against which any complaints would be filed thinks otherwise.

Further reading

• For a detailed examination of the individual complaints mechanism set out in the 2019 Frontex Regulation, see the section 'The complaints mechanism: improved but insufficient' in the report Deportation Union (August 2020)
• For case law cited in correspondence between Statewatch and Frontex, see:
  • Kingdom of Sweden and Maurizio Turco v Council of the European Union
  • Liga para a Protecção da Natureza (LPN) and Republic of Finland v European Commission
  • Association Justice & Environment, z.s. v European Commission
  • Council of the European Union v Access Info Europe

Notes

[1] Sergio Carrera and Marco Stefan, ‘Complaint Mechanisms in Border Management and Expulsion Operations in Europe: Effective Remedies for Victims of Human Rights Violations?’, CEPS, 2018, https://www.ceps.eu/system/files/Complaint%20Mechanisms_A4.pdf

[2] Case T-233/09 (AccessInfo Europe v Council of the European Union) paragraph 55; Case C-64/05 (Sweden v Commission) paragraph 66.