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Master Thesis
International and European Law: European Union Law (LLM)
Testing the Accountability of Frontex and Europol:
The actions of the agencies in the external dimension of
Migration policy and the influence on their
accountability systems
Student: Sophie Klara Dura
Student Number: 11311835
Date of submission: 11.07.2017
Supervisor: Prof Dr Christina Eckes
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Abstract
Many authors attribute an accountability deficit to EU agencies. Nevertheless two Eu-ropean agencies, Europol and Frontex, are central figures in the new EuEu-ropean Agen-da on Migration. In this context, this thesis will scrutinize their accountability for ac-tions in the external dimension of EU migration policy. It is argued that although the accountability of the agencies is improved through the reform of the establishing Regulations of both agencies, two problems arise in the external dimension. Firstly, the parliamentary accountability for the cooperation of the agencies with EUNAVFOR MED operation Sophia is weaker than in the case of the cooperation with third country authorities, despite the fact that the CSDP military mission itself is just scarcely accountable to the European Parliament. This poses a problem to the principle of democracy, a founding value of the EU in Art 2 TEU. Since the coopera-tion with operacoopera-tion Sophia is fundamental rights sensitive, a parliamentary discussion about the ethical and fundamental rights consequences of the cooperation would be essential for the democratic legitimacy of the cooperation. In addition, judicial ac-countability of Frontex’ cooperation with third countries is weak. It is argued that this challenges the rule of law, another EU value of Art 2 TEU, because Frontex and the Member States avoid their fundamental rights obligations towards migrants here.
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Table of Contents
I. Introduction ... 1 II. Accountability – the concept ... 2 1. A clear-cut concept of accountability ... 3 2. Demarcation of the concept ... 4 III. The actions of Frontex and Europol in the external dimension of Migration policy and their accountability regime ... 5 1. The external dimension of Migration Policy ... 6 a) Frontex ... 6 aa) Cooperation with third country authorities ... 7 bb) Cooperation with CSDP missions ... 8 cc) Intelligence sharing communities ... 10 b) Europol ... 11 aa) Cooperation with third countries ... 11 bb) Cooperation with operation Sophia and the European Migrant Smuggling Centre ... 12 2. Accountability regime ... 13 a) Frontex ... 13 aa) Managerial accountability ... 13 bb) Political accountability ... 14 cc) Judicial Accountability ... 16 dd) Administrative accountability ... 17 b) Europol ... 18 aa) Managerial accountability ... 18 bb) Political Accountability ... 18 cc) Judicial Accountability ... 20 dd) Administrative accountability ... 21 c) Is Accountability increased? ... 22 3. The accountability mechanisms in practice ... 22 a) Parliamentary Accountability: A shift through the participation in CSDP? ... 22 2. Legal accountability: external actions beyond judicial review? ... 24 IV. Challenges for the fundamental values of the EU ... 25 1. Cooperation with EU military operations and democratic concerns ... 25 a) Accountability from a democratic perspective ... 254 b) The new civil-military nexus and fundamental rights ... 27 c) Democratic Accountability of the agencies in the cooperation ... 28 2. The Rule of Law and the agencies’ cooperation with third countries ... 29 V. Conclusion ... 31
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I. Introduction
Jean Monnet once argued that ‘Europe will be forged in crises, and will be the sum of
solu-tions adopted for those crises.’ Three events that took place in the last years can be said to
have shaped the EU: the Euro debt crisis, the 23rd of June 2016 as the day of the Brexit refer-endum and the tragic night from of the 18th April 2015, when hundreds of migrants drowned in the Mediterranean near the Italian Coast at their desperate attempt to reach the European Coast.
The EU Commission and the High Representative (HR) reacted fast concerning the latter and presented already at the 13 May 2015 the EU Agenda on Migration1. This policy agenda combines internal and external actions and is supposed to be a comprehensive approach to tackle what is now known as the European refugee crisis. Externally, the agenda plans for enhanced cooperation with key countries of origin and transit and a military mission fighting smuggling networks that facilitate illegal immigration in the EU in order to channel immigra-tion to the EU to legal paths. These external policies are under heavy criticism though: Hu-man Rights Watch blames the EU to avoid its own huHu-man rights obligations in outsourcing the ‘dirty work’ to foreign forces.2
Justice and Home Affair Agencies have a prominent place in the Agenda on Migration. It contains the planned reinforcement of the Frontex mandate and the capacity of the agency to support Member States will be reinforced.3 Therefore a new Regulation was adopted within
half a year that integrated Frontex into the framework of a European Border and Coast Guard, consisting of all national authorities responsible for monitoring the borders and Frontex.4 Europol’s role in the agenda is mainly to contribute to the fight against smugglers.5 The EU legislator also puts Europol on a new legal basis6, but in contrast to the new Regulation con-cerning Frontex the legislative procedure had already started 2013.
1 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the Regions: A European Agenda on Migration, COM(2015) 240 final. 2 Huma Rights Watch(2016), EU/NATO: Europe’s Plan Endangers Foreigners in Libya. 3 Agenda on Migration, infra FN 1, p. 10. 4 Regulation (EU) 2016/1624 of the European Parliament and of the Council on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council, and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regula-tion (EC) No 2007/2004 and Council Decision 2005/267/EC, OJ 2016, L 251/1. 5 Agenda on Migration, infra FN 1, p. 3. 6 Regulation (EU) 2016/794 of the European Parliament and of the Council on the European Union Agen-cy for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/986/JHA, OJ 2016, L 135/53.
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Both agencies were already criticised prior to the 2015 Migration Agenda as being not suffi-ciently accountable7 and as developing their own foreign relations that pose problems to the
institutional balances of the EU and human rights.8 It is the expressed aim of both to increase the accountability of the respective agency.9
Against this background it is the aim of this thesis to explore how the renewed accountability system functions within the external dimension of European Migration Policy given how the tasks of the agencies in this field are expanded and accountability might be pivotal in a field so fundamental rights sensitive. Therefore the following research question should be an-swered:
How are Justice and Home Affair Agencies held accountable for their actions in the external dimension of the European Migration Policy?
After first conceptualising the term of accountability (chapter (II)), chapter III starts with a summary of the actions of Frontex and Europol in the external dimension of the new Europe-an Migration Policy. The chapter continues with Europe-an explEurope-anation of both agencies’ current accountability mechanisms, particularly with regard to whether the new Regulations have actually increased accountability. Subsequently attention is drawn to two challenges the ex-ternal dimension poses on the accountability regime. Chapter five explores how these chal-lenges impose problems on two fundamental values of the EU: the principle of democracy and the rule of law.
II. Accountability – the concept
Accountability has a prominent place in recent discussions about EU governance in academ-ics as well as in governance documents of the EU.10 Yet there is not one understanding of
6 Rec. 2 Reg. 2016/794; Rec. 14 Reg. 2016/1624. 7 Busuioc (2013), European Agencies: Law and Practices of Accountability. 8 Puntscher Riekman (2008), Security, Freedom and Accountability: Europol and Frontex, in: Guild/ Geyer (ed.): Security versus Justice: Police and Judicial Cooperation in the European Union; Fink (2012), Frontex Working Arrangements: Legitimacy and Human Rights Concerns Regarding ‘Technical Relationships’, Merkourios Vol. 28 Issue 75, pp. 20-35; Santos Vara (2016), The External Activities of AFSJ Agencies: The Weakness of Democratic and Judicial Controls, European Foreign Affairs Review 20, no 1 (2015): 115 – 136; Ott/ Voss/ Coman-Kund (2013), EU agencies and their international mandate: A new category of global actors?, Cleer Working Papers 2013/7. 9 Rec. 2 Reg. 2016/794; Rec. 14 Reg. 2016/1624. 10 Bovens/ Curtin/ t’Hart (2010), The Real World of EU Accountability – What Deficit, Wille (2016), The evolving of EU accountability landscape: moving to an ever denser union, International Review of Adminis- trative Sciences, Vol.82(4), pp. 694 – 717; European Court of Auditors (2014), Gaps, overlaps and chal-lenges: a landscape review of EU accountability and public audit arrangements.
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what accountability is but a great variety of definitions instead,11 making a clear definition of
the concept used in this thesis necessary.
1. A clear-cut concept of accountability
The thesis does not go into details of the discussions, since there is already a comprehensive academic discussion.12 Instead the concept of accountability developed by Bovens will be used.13 This concept has the advantage that it provides a clear-cut notion of what can be un-derstood as an accountability mechanism.14
According to this definition accountability is ‘a relationship between an actor and a forum,
in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences’.15
This implies that the relationship between the actor and the forum is a three-tier process. Firstly it is crucial for accountability that the actor is obliged to ‘inform the forum about his
or her conduct’, although the obligation does not have to be necessarily formal.16 Secondly, the forum must be in the position to interrogate the actor and question the adequacy of the information given from the actor. The third stage requires that the forum is able to pass a
judgement and impose consequences on the actor, although the consequences do not
neces-sarily have to be formal but can vary from fines or civil remedies to informal consequences like the loss of the public image.17
It is crucial to distinguish accountability from control. Accountability is a form of control but cannot be interchanged with this word. Accountability mechanisms only look backwards, thus they are mechanisms of ex post control over the conduct of the actor. Nonetheless, ex
post accountability may have an impact on proactive policy since the actor may adjust their
behaviour to the judgement of the forum. Many actors will also anticipate the negative evalu-ation and adjust their policies already in advance.18
11 Bovens (2007), Analyzing and Assessing Accountability: A conceptual Framework, European Law Journal Vol 13, pp. 447 – 468, p. 449. 12 Mulgan (2003), Holding Power to Account – Accountability in Modern Democracies. 13 Bovens (2007), infra FN 13. 14 Busuioc (2013), infra FN 7, p. 45. 15 Bovens (2007), infra FN 11, p. 450. 16 Ibid, p. 451. 17 Ibid, 451 – 452. 18 Ibid, p. 453.
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2. Demarcation of the concept
In contrast to this, many scholars use the principal-agent theory to analyse accountability. In this model an actor or a group of actors called the agent undertakes an action on behalf of another actor called the principal. In parliamentary democracies the most fundamental princi-pal-agent relation exists between the electorate and the parliament. The government then acts on behalf of the parliament. This relationship requires two mechanisms: the prior delegation of power from the principal to the agent to act on their behalf and the ex post accountability mechanism to monitor and control the behaviour of the agent and ensure that it is in line with the political preferences of the principal.19
This model is not used in this thesis. A first reason for this is that, as Curtin notes, applying the principal-agent theory to EU agencies can be problematic since a clear delegation line is not easy to determine.20 Secondly, the used concept has the advantage that it allows to assess accountability from multiple perspectives in a comprehensive way. Accountability cannot only be seen from the democratic perspective as a mean to monitor the actions of the agent in the principal-agent chain. It can also be assessed from a constitutional perspective as a mean to prevent the abuse of power from the executive. 21 Court procedures are identifiable as ac-countability mechanisms after Bovens’ concept: information is provided by the application for the court procedure and the defence plea, debate takes place during the proceedings and judgements can impose consequences.22 In the EU, the CJEU plays a pivotal role in securing constitutional accountability.23 According to Art 263(1) TFEU it has the power to review the legality of the acts of all decisive EU institutions. There is a comprehensive case law where the court annuls actions of EU institutions because they infringe the institutional balance or other EU law.24 A third perspective that can be taken is the learning perspective that asserts
that the inducement of feedback through accountability enhances effectiveness and efficiency of the actor.25. 19 Gailmard (2014), Accountability and Principal-Agent Theory, in: Bovens/ Goodin/ Schillermans, The Oxford Handbook of Public Accountability, pp. 90 – 101; Strom (2000), Delegation and accountability in parliamentary democracies, European Journal of Political Research 37, pp. 261 – 289. 20 Curtin (2007), Holding (Quasi-) autonomous EU Administrative Actors to Public Account, European Union Law Journal Vol. 13, No. 4, pp. 523 – 541. 21Bovens (2007) infra FN 11, p. 231. 22 Bovens (2007), infra FN 11, p. 456. 23 Harlow (2003), Accountability in the EU, pp. 165 – 166. 24 CJEU, Joined Case C-402/05 P, C-415/05 P, Kadi & Al Bakarrat v Council and Commission; CJEU, Case C-263/14, Parliament v. Council (Tanzania); CJEU, Case C-91/05, Commission, Parliament v Council; CJEU Case C- 362/14, Schrems v Data Protection Commissioner; CJEU, Case 314/84, Foto Frost; etc. 25Bovens (2007) infra FN 11, p. 232.
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The extension of the understanding of accountability beyond the principal-agent theory has the consequence that several types of forums fall under the term of accountability, which vary considerably. Courts only serve as an accountability forum if an eligible person or institution calls them upon to judge about the behaviour and they will review the legality of the conduct. In contrast, executive actors usually have to report to parliaments with a certain frequency and the focus lays on the preferences of the majority, although the legality of the conduct or other criteria might be additionally relevant for the parliaments’ appraisals. The relation be-tween the different types of forums can be described as functional differentiation, meaning that different institutions are involved in different aspects of accountability that are clearly demarcated from one another.26 This is reflected in the perspectives on accountability men-tioned above: whereas parliaments primary contribute to accountability from the democratic perspective, courts essentially ensure accountability from a constitutional perspective.27
III. The actions of Frontex and Europol in the external dimension of Migration policy and their accountability regime
Due to their mandate, Europol and Frontex are presumably the most active agencies in the EU foreign relations policy. Europol’s core mandate is to support cooperation among law enforcement authorities in the Union.28 Nevertheless, crimes regularly exceed EU territory and have a transboundary realm outside to the EU, so that cooperation with third state author-ities is necessary. Frontex’ mandate is meant to facilitate and render effective the application of existing and future Union measures relating to the management of the external border, ensuring a coherent European integrated border management.29 Its actions at the external
border of the EU inherently contain a transboundary element.30 But what are their roles in
external Migration policies that came with the 2015 Agenda on Migration? This chapter aims at answering this questions and will then subsequently display the accountability regime of both agencies. Finally, the chapter closes with a discussion of the effects of the external di-mension on the accountability of the agencies.
26 Barberis (1998), The New Public Management and a New Accountability, Public Administration, p. 465. 27 Bovens (2007), infra FN 11, p. 456. 28 Art 1(1) Reg. 2016/794. 29 Art 6(2) Reg. 2016/1624. 30 Trauner (2016), New kids on the CFSP block: The JHA agencies, European Union Institute for Security Studies, Brief Issue 7/16, p. 2.
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1. The external dimension of Migration Policy
The idea of migration policy as having a strong external realm is not an innovation of the Agenda on Migration 2015, but dates back to the last century and has been part of the EU approach since the beginning of a common asylum policy.31
This foreign realm was analysed by some authors under the term extra-territorialisation. The term covers ‘the means by which the EU attempts to push back the EU’s external borders or
rather police them at distance in order to control unwanted migration flows.’32
Practices falling under this category attempt to ensure that migrants do not leave their country of origin or ,when doing, that they remain as close as possible to it. They also enable the ef-fective repatriation of people who do manage to reach the EU to their country of origin or other non-EU countries.33
a) Frontex
Frontex should support the Member States in the return of persons that do not have the right to stay on EU territory.34 An effective return policy is one of the four pillars set out in the 2015 Agenda to tackle immigration to the EU comprehensively.35 Another important task of Frontex is to support Member States in Joint Operations that assist Member States to control their external borders.36 However, with the termination of Joint Operation Hera II in Decem-ber 201637 there is no Joint Operation taking place in extraterritorial waters.
This thesis will focus on the cooperation of Frontex with third countries and the CSDP mis-sion EUNAVFOR Med since there are already complex reports about the implications of
31 Boswell (2003), The ‘External Dimension’ of EU Immigration and Asylum Policy, International Affairs, Vol. 79, No. 3, pp. 619 – 638. 32 Rijpma/ Cremona (2007), The Extra-Territorialisation of EU Migration Policies and the Rule of Law, EUI Working Papers, LAW 2007/01, p. 12; see: Ryan/ Mitsilegas (ed.) 2010, Extraterritorial Immigration Con-trol – Legal Challenges. 33 Rijpma/ Cremona, infra FN 32, p. 12. 34 Migration Agenda, infra FN 1, p. 6 35 Ibid, p. 7. 36 Art 14(2)(a) Reg. 2016/1624. 37 http://frontex.europa.eu/news/longest-frontex-coordinated-operation-hera-the-canary-islands-WpQlsc (last access: 10.07.2017)
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return policy by the Ombudsman38 and the (extra-territorial) Joint Operations by the
Europe-an Parliament.39
aa) Cooperation with third country authorities
Frontex has the power to cooperate with relevant third country authorities in the framework of non-binding working arrangements.40 In essence, these working arrangements generally contain the cooperation with the respective border authority relating to risk analysis, joint return operations, in the field of training, research and development, and provide for the par-ticipation of the parties in pilot projects. Some of the working arrangements also promote the interoperability between the authorities. Thus, although working arrangements do not alter the legal framework and cannot provide the needed consent of the third state to operate in its territory, they do deliver the basis for the participation of the third state in operations.41 To this date there are 18 working arrangements between Frontex and third country authorities in place, inter alia with Russia, Ukraine and Turkey.42 The agreements with third countries require the prior approval of the Commission and the agency has to inform the European Par-liament prior to the conclusion.43
The working arrangements have been criticised for their potential negative impact on indi-viduals.44 Moreover, it has been argued that actions of Frontex in cooperation with third countries had better be based on international agreements of the EU, given the inherently po-litical nature and the fundamental rights repercussions.45 Alternatively, it has been argued that
they should be dependent on the prior approval of the European Parliament.46 In the current
38 European Ombudsman, Decision of the European Ombudsman closing her own-initiative inquiry OI/9/2014/MHZ concerning the European Agency for the Management of Operational Cooperation at the External Border of the Member States of the European Union (Frontex), Decision on 04 May 2015. 39 Cogolti et al (2015), Migrants in the Mediterranean: Protecting human rights, Study for the European Parliament’s Committee on Human Rights. 40 Art 54(2) Reg. 2016/1624. 41 Fink (2012), infra FN 8, pp. 29 – 30.
42 Frontex web page, URL: http://frontex.europa.eu/partners/third-countries/ (last access: 17.05.2017) 43 Art 54(2) Reg. 2016/1624.
44 Report of the Parliamentary Assembly, Council of Europe Doc. 13161 2013, International Journal of
Refugee Law, Vol. 24 No.2, pp. 407 – 434.
45 Fink (2012), infra FN 8, p. 35.
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approach, Frontex is mandated to discuss a further working arrangement with Libya47 and is
negotiating another with Egypt.48
Separately from the working arrangements, Frontex may deploy liaison officers in third coun-tries that establish and maintain contact with the competent authority in the third country, on the basis of Art 55 Reg. 2016/1624. Recent examples are the deployment of Frontex liaison officers in Turkey49 and in Niger.50 A liaison officer can be deployed in a third country only after the Commission had the chances to express its opinion. The European Parliament, should be kept fully informed of those activities without delay.51 Liaison officers may only be posted in countries that comply with minimum human rights standards, but what this means is not further determined in the Regulation.52
Within the framework of the Agenda on Migration 2015 and the following EU-Turkey Statement, Frontex cooperates comprehensively with Turkish Border authorities: Frontex posted a liaison officer in Turkey53 and its joint operation Poseidon in the Aegean Sea inter-changes operational information with Turkish Border authorities.54
bb) Cooperation with CSDP missions
Besides cooperation with third countries, Frontex also works together with civilian and mili-tary CSDP missions. The basis for this cooperation is Art 52(1-2) Reg. 2016/1624, after which the agency may cooperate with Union institutions. To cooperate with EU civil and military CSDP missions, Frontex has to conclude a working arrangement with the EEAS, a
47 Communication from the Commission to the European Parliament, the European Council, the Council and the European Investment Bank on establishing a new Partnership Framework with third countries under the European Agenda on Migration, COM(2016) 385 final., p. 15 48 European Commission and High Representative of the Union for Foreign Affairs and Security Policy, Joint Communication to the European Parliament, the European Council and the Council: Migration on the Central Mediterranean route – Managing flows, saving lives, JOIN(2017) 4 final, p. 14. 49 Communication from the Commission to the European Parliament, the European Council and the Coun-cil, Second Report on the progress made in the implementation of the EU-Turkey Statement, COM(2016) 349 final. 50 Report from the Commission to the European Parliament, the European Council and the Council, Third Progress Report on the Partnership Framework with third countries under the European Agenda on Mi-gration, COM (2017) 205 final. 51 Art 55(4) Reg. 201571624. 52 Art 55(1). 53 Communication from the Commission to the European Parliament, the European Council and the Coun-cil: First Report on the progress made in the implementation of the EU-Turkey Statement, COM(2016) 231 final, p. 3. 54 Communication from the Commission to the European Parliament, the European Council and the Coun-cil: Third Report on the Progress made in the implementation of the EU-Turkey Statement, COM(2016) 634 final., p. 4.
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EU body, on the basis of this provision55. This cooperation has to take place within the
framework of working arrangements and shall have ‘the objectives of better addressing
mi-gratory challenges and preventing and detecting cross-border crime such as migrant smug-gling […]’.56 The arrangements need the prior approval of the Commission and require in-formation of the European Parliament.57
Firstly, a major CSDP cooperation is Frontex’ involvement with the military EUNAVFOR MED mission in the Mediterranean Sea, hereinafter: operation Sophia58. This operation, based on Council Decision 2015/77859, should contribute ‘to the disruption of the business
model of human smuggling and trafficking networks in the Southern Central Mediterrane-an’.60 Its mandate is organised in three phases: in the first phase the mission shall support the detection and monitoring of migration networks through information gathering and patrolling in the high sea.61 In the second phase the operation shall conduct boarding, search, seizure and diversion of vessels being used for human smuggling or trafficking in the high sea62 or in the territorial waters of the coastal state concerned (i.e.Libya).63 In its final third phase the operation shall ‘take all necessary measures’ against vessels and related assets which are suspected of being used for human smuggling or trafficking in the territory of the state con-cerned (e.g. Libya).64
Liaison Officers of Frontex are deployed on vessels of the mission and advise the Command-er Officials if enough evidence exists to detain pCommand-ersons suspected of human smuggling.65
Frontex also conducts trainings of Libyan Coast Guard and Navy officers on board of vessels of the operation.66 However, the main component of the cooperation lays in the exchange of
55 Savary (2016), Internal-External Security nexus – strengthening ties between CDSP and FSJ Actors, p. 183, in: Handbook CSDP, European Security and Defence college, edited by Jochen Rehrl. 56 Art 52(2) 57 Art 52(2). 58 Communication from the Commission to the European Parliament, the European Council, the Council and the European Investment Bank on establishing a new Partnership Framework with third countries under the European Agenda on Migration, COM(2016) 385 final., p.4. 59 Council Decision (CFSP) 2015/778 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED), OJ 2015, L 122/31. 60 Ibid, Art (1). 61 Art 2(2)(a). 62 Art 2(2)(b)(i) 63 Art 2(2)(b)(ii) 64 Art 2(2)(c) 65
EUNAVFOR MED – Operation Sophia, Six Monthly Report (June to December 2015), published on wik-ileaks: https://wikileaks.org/eu-military-refugees/EEAS/EEAS-2016-126.pdf (last access: 04.06.17)
66 See Frontex News 2016-12-13, source:
(last access: 17.05.17); Joint Communication to the European Parliament, the Euro-10
operational information and communication mechanisms.67 Frontex itself is present in the
southern Mediterranean with Joint Operation Triton that includes eleven vessels and five air-crafts.68
Besides this, Frontex also has been closely associated with the EU civil mission EUBAM Libya.69 The mission’s mandate is to support the Libyan authorities in developing border management and security at the country’s land, sea and air borders.70 As an Interim Strategic Review of Libya from the EEAS published on statewatch.org71 shows, the mission apparently enabled Libyan authorities to participate directly in a number of Frontex events in Europe.72
cc) Intelligence sharing communities
One of Frontex’ further tasks is to monitor migratory flows and carry out risk analysis and vulnerability assessments.73 The sources of this information may come from its partners from the working arrangement. Frontex also manages four regional sharing communities with non-EU countries: the Western Balkans Risk Analysis Network, Eastern European Border Risk Analysis Network, Turkey-Frontex Risk Analysis Network and Africa-Frontex Intelligence Community (AFIC). Only the latter community includes countries with which Frontex has not concluded an agreement. The regular activities of the AFIC are workshops, field visits, regular information exchange and replies to requests for information.74
The engagement of Frontex in the first three communities can be based on Art 54(2), since all the participating Member States have working arrangements with the agency. The participa-tion in the AFIC is more problematic however, since Frontex has working arrangements with only a few countries and countries under dictator status as Eritrea have an observer status.75
pean Council and the Council Migration on the Central Mediterranean route: Managing flows, saving live, JOIN(2017) 4 final. 67 Infra FN 65. 68 http://frontex.europa.eu/pressroom/hot-topics/joint-operation-triton-italy--ekKaes (last access: 04.06.17) 69 EEAS, Factsheet on EU Border Assistance Mission (EUBAM) in Libya, Nov. 2016, https://eeas.europa.eu/sites/eeas/files/eubam_libya_factsheet_en_nov2016_en.pdf (last access: 17.05.17) 70 Art 2 of Council Decision 2013/233/CFSP on the European Integrated Border Management Assistance Mission in Libya, L 138/15. 71 http://www.statewatch.org/news/2015/jun/eu-eeas-interim-report-UBAM-7886-15.pdf 72 Ibid, p. 9. 73 Art 8(1)(a),(b) Reg. 2016/1624. 74 Frontex, AFIC Report 2016, p. 9. 75 Ibid, p. 8.
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b) Europol
A considerable amount of Europol’s work targets criminal gangs that facilitate illegal immi-gration. In the following two actions of Europol linked to the extraterritorial immigration control of the EU are presented: its cooperation with third countries and with operation So-phia.
aa) Cooperation with third countries
Europol is an intelligence agency that is meant to be a ‘hub for information exchange in the
Union’ that collects, stores, processes and exchanges information.76 Europol can only gather information from public sources on its own and is therefore dependent on the transfer of in-formation from Member State authorities and Union bodies, but also from third countries, international organisations and private persons.77
Europol was established as an intergovernmental body called the Europol Convention.78 Be-fore to the adoption of the new Regulation 2016/794, Europol had real international treaty-making powers79: According to Art 23(2) Decision 2009/371/JHA, Europol could conclude international agreements with third states and organisations that had been put on a list by the Council and exchange personal data on the basis of these agreements. Europol made signifi-cant use of this power: it signed 14 operational agreements that provide exchange of special-ist knowledge, general situation reports, results of strategic analyses, information on criminal investigative procedures, information on crime prevention, participation in training and providing advice and support in individual criminal investigations. All these agreements in-clude the exchange of information about illegal immigrant smuggling. Europol furthermore concluded three strategic agreements with Russia, Turkey and the Ukraine. In essence, the only difference between the latter agreements to operational agreements is that they do not provide for the exchange of personal data.
With the new Regulation 2016/794 the external actions of Europol have been integrated into the EU framework of external relations. After Art 23(4) Europol may only conclude working
76 Rec. 12 Reg. 2016/794. 77 Art 23 Reg. 2016/794. 78 Council Act 95/ C 317/01 drawing up the Convention based on K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention), O.J. No C 316/1. 79 Heimas (2008), The External Relations of Europol – Political, Legal and Operational Considerations, in: Justice, Liberty, Security, New Challenges for EU External Relations, pp. 367 – 393 (Martenczuk & Van Thiels eds)
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arrangements that do not allow the exchange of personal data. This is restricted now to coun-tries for which the commission adopted an adequacy decision regarding their data protection regimes, countries with which the EU has an international agreement and countries with which Europol concluded an international agreement prior to the new Regulation.80
These agreements may also be the basis for the participation of third countries in joint inves-tigative and policy operations of Europol and the Member States. For example, in June 2016 Europol supported the SIROCCO-2 Action Day. For this action police and border units of eight EU or Schengen associated countries joined forces with units of the former Yugoslav Republic of Macedonia and Serbia to pull down migrant smuggling criminal networks that operate along the Western-Balkan route.81
bb) Cooperation with operation Sophia and the European Migrant Smuggling Centre
The European Migrant Smuggling Centre (EMSC) was launched on February 22nd 2016, to support the Member States in their actions to dismantle smuggling networks facilitating ille-gal immigration.82
The EMSC integrates the Joint Operational Team Mare (JOT Mare), which was already launched at 17 March 2015 to tackle the problem of migrant smuggling across the Mediterra-nean to the EU.83 Since one of the key areas of the European Agenda on migration is to fight migrant smuggling, the operation got an important place in the migration policy. The opera-tion is closely associated to Frontex and operaopera-tion Sophia.84
The cooperation with a military CDSP mission is a novelty for Europol.85 The agency and operation Sophia signed a Memorandum of Understanding (MoU) on December 22nd 2015, to
facilitate the coordination of activities and the exchange of knowledge and mutual support. The MoU defines mutual contact points for operational coordination and allows for
participa- 80 Art 25(1) Reg. 2016/794. 81 Europol, Press Release 29.06.2016, URL: https://www.europol.europa.eu/newsroom/news/39-migrant-smugglers-arrested-during-sirocco-2-action-day-along-western-balkan-route (last access: 19.05.17) 82 Europol, Press Release 22.02.2016, URL: https://www.europol.europa.eu/newsroom/news/europol-launches-european-migrant-smuggling-centre (last access: 19.05.2016. 83 Europol, Press Release 17.03.15, visit: https://www.europol.europa.eu/newsroom/news/joint-operational-team-launched-to-combat-irregular-migration-in-mediterranean (last access: 16.05.17) 84 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, EU Action Plan against migrant smuggling (2015 – 2020), COM(2015) 285 final, p. 6. 85 Trauner (2016), infra FN 30, p. 3.
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tion in respective exercises and trainings.86 Since then, operation Sophia has integrated the
Europol’s Secure Information Exchange Network Application (SIENA) in its operation.87
The MoU is an arrangement with the EEAS on the basis of Art 23, after which Europol may establish and maintain cooperative relations with Union bodies. Unlike Frontex, Europol does not need the approval of a EU institution to agree to such an arrangement.
2. Accountability regime
In this part of the thesis the accountability mechanisms in place to hold Frontex and Europol to account will be explored. The different mechanisms will be categorized into four groups respective of the nature of the forum88: managerial accountability, political accountability, judicial accountability and administrative accountability. Particular attention shall be drawn to improvements through the Regulations 2016/794 and 2016/1624.
a) Frontex
aa) Managerial accountability
This category concerns the accountability vis-á-vis the management board of agencies, often the most immediate constraint on the grant of authority.89 The management board of Frontex is set up of one representative of each Member State and two representatives of the Commis-sion.90
The board of Frontex has a dual role. It has a decisive decision-making power concerning decisions of the agencies with a politically sensitive nature91 and holds the executive director
of the agency to account for their activities.92 The executive director is responsible for the
86 Europol, Press Release 22.12.15, visit: https://www.europol.europa.eu/newsroom/news/eunavfor-med-operation-sophia-and-europol- determined-to-strengthen-bilateral-cooperation (last access: 16.05.2017). 87 EUNAVFOR MED Op. Sophia – Six Monthly Report 1 January – 31 October, source:http://statewatch.org/news/2016/dec/eu-council-eunavformed-jan-oct-2016-report-restricted.pdf (last access: 16.05.17) 88 Bovens (2007), infra FN 11, p. 455 – 457. 89 Busioc (2013), infra FN 7, p. 75. 90 Art 63(1) Reg. 2016/1624. 91 Rijpma (2015), The Proposal for a European Border and Coast Guard: evolution or revolution in external border management, Study for the LIBE Committee of the European Parliament. 92 Art 68(4) Reg. 1624/2016
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implementation of strategic decisions taken by management boards and decisions related to operational activities.93
The management board fulfils all the three stages an accountability mechanism needs. Firstly, there are extensive reporting duties of the executive director towards the management boards in the Regulation.94 Secondly, since the executive director shall take part in the deliberations of the management board, it is also able to pose question and to interrogate further the activi-ties.95
Finally, the possibility of the management forum to pose consequences on the executive di-rector is in fact increased through the new Regulation. Next to its power to exercise discipli-nary authority over the executive director96 and to dismiss the executive director on a pro-posal of the Commission,97 a great share of decisions now need the approval of the manage-ment. Before the adoption of the new Regulation, this could have been done by the executive director autonomously. 98 This power can be used to pressure the executive director to reme-dy a certain conduct.99
bb) Political accountability
Political accountability captures the accountability mechanism along the principal-agent rela-tionship.100 In the case of the EU agencies these forums are the European Parliament and the Council.101 According to Art 7 Reg. 2016/1624 the agency shall be accountable to the Euro-pean Parliament and the Council.
Frontex has the obligation to inform the European Parliament about issues which before the new Regulation, were to be reported merely to the Commission and the Council. The general risk analysis needs to be provided to the European Parliament as well as to the Council and the Commission102 and the agency shall furthermore inform the European Parliament about
93 Art 68(3) 94 E.g.: Art 8(2), Art 8(3) for communication activities, Art 11(5) for the result of risk analysis, Art 16(3)(h) for Joint Operations. 95 Art 66(2). 96 Art 62(2)(m) 97 Art 69(2) 98 Art 62(2), 99 Busuioc (2013), infra FN 7, p. 103. 100 Bovens (2007), infra FN 11, p. 455. 101 Busuioc (2013), infra FN 7, p. 115. 102 Art 11(2)
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the results of its research.103 The agency also has information duties towards the European
Parliament concerning the new established vulnerability assessment104 and its powers in a
situation requiring urgent actions.105
Another improvement made is the explicit demand that the classification of information un-der the Commission’s rule on security106 shall not preclude its availability to the European Parliament.107 This ensures that information is effectively provided to the European Parlia-ment.
On the second stage of accountability mechanisms, the debating stage, the European Parlia-ment can invite the executive director to report on the fulfilParlia-ment of their tasks who are then obliged to issue a respective statement, if this is requested.108 This is an improvement to the old Regulation, where no obligation of the executive director was stipulated.109 It is ensured formally now that the executive officer actually appears in front of the European Parliament. Since Frontex is partially upheld by the EU budget110, the European Parliament can sanction Frontex financially. The European Parliament, acting on a recommendation of the Council, is the institution responsible for granting discharge to EU funded agencies.111 Given the power to withhold the budget, the European Parliament could theoretically demand the agency to remedy deficiencies and ‘hold the budget hostage’.112 Ultimate and drastic sanctions could come from the European Parliament’s roles as co-legislator concerning the Frontex Regula-tion.113
Frontex has less reporting duties to the Council. Nevertheless the Council also receives the general risk analysis,114 the vulnerability assessment115 and the report relevant to the outcome
103 Art 37(1) 104 Art 13(9) 105 Art 19 (2) 106 Set out in Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting classified information, OJ L 72, 17.3.2015, p. 53–88. 107 Art 50(3) Reg. 1624/2016. 108 Art 68(2). 109 Compare: Art 25(2) Council Reg. 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, O.J: L 349/1. 110 Art 75 Reg. 2016/1624. 111 Busuioc (2013), infra FN 7, p. 177. 112 Ibid, p. 182. 113 Busuioc (2013), infra FN 7, p. 127, Pollack (1997), Delegation, Agency, and Agenda Setting in the Euro-pean Community, International Organization, 51(1), pp. 99 – 134, p. 118. 114 Art 11(2) 115 Art 13(9)
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of the evaluation of the procedures of the agency.116 It may also invite the executive
direc-tor117, however there is no comparable formal obligation of the executive director to appear in
front of the Council. The Council has no power over the EU budget, but it possesses sanction-ing power comsanction-ing from its position as co-legislator. Since the Council is the EU institution representing the Member States’ governments who in turn have decisive powers over Fron-tex, the possible actual consequences coming from this forum are more forceful than those from the European Parliament. Not only consists the budget of the agency partially of contri-butions of EU Member States and Schengen associated countries,118 the agency is also de-pendent on the deployment of staff and assets for its operations from the Member States. In addition, the management board consists of Member States representatives as well, so that the accountability in front of Member State representatives is supplementary ensured through this forum.
cc) Judicial Accountability
This category concerns the accountability vis-à-vis the courts, which classify, as assessed in Chapter II, as accountability forums.119
Since the Treaty of Lisbon, the CJEU has been competent to review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-á-vis third par-ties according to Art 263 TFEU.120 The Court interprets the provision restrictive. It may be hard to prove that a measure produces legal effects, because Frontex is only mandated to as-sist and support the Member States.121
Another problem that occurs is the so-called ‘problem of many hands’: Frontex’ operations are dependent on guest officers deployed from the Member States to Frontex. This leads to problematic delineation questions on who is to hold responsible in court for a certain conduct, Frontex or the Member State. 122
116 Art 62(6) 117 Art 68(2). 118 Art 75(1)(b) 119 Bovens (2007), infra FN 11, p. 456. 120 Busioc (2013), infra FN 7, p. 209. 121 Santos Vara (2016), infra FN 8, pp. 133 – 136, Art 8 Reg. 2016/1624. 122 Mungianu (2016), Frontex and Non-Refoulement – The International Responsibility of the EU, Chapter 4.
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dd) Administrative accountability
The first administrative accountability forum that comes into mind is the European Ombuds-man. However, the accountability of agencies vis-à-vis this forum is already discussed in length in the work of Busuioc and has not to be repeated here.123 An innovation of the new Regulation is a newly set up internal compliance mechanism that should safeguard respect for fundamental rights in all activities of the agency. 124
Any person directly affected by a Frontex coordinated operation who considers themselves subject to a breach of fundamental rights may submit a complaint in writing to this complaint mechanism,125 which is then handled by Frontex’ Fundamental Right Officer (hereinafter: FRO).126 The finding that the complainant’s fundamental rights were violated has no conse-quences outside the agency. The FRO shall report its finding to the management board127. If a member of the Frontex’ staff was responsible, the executive director has to ensure appropriate follow-up.128. Alternatively the respective Member State may be requested to ensure handling the case, if a person deployed of the respective state is responsible.129 . It does not substitute a court proceeding, because individuals cannot seek compensations for the violations. Yet, it does not make the claim to try this. Internal consequences following a fundamental rights violation can also lead to an increased fundamental rights compliance: border guards will be aware of that a fundamental rights violation can lead to disciplinary measures and avoid them.
Rijpma points to the formulation of the consequences to show the deficiencies of the
mecha-nism: it is not clear what happens if the requested follow-up is not sufficiently implemented and there are no deadlines given.130 Nonetheless, the compliance mechanism qualifies as an additional accountability mechanism especially designed for fundamental rights compliance.
123 Busuioc (2013), infra FN 7, pp. 189 – 197. 124 Art 72 Reg. 2016/1624 125 Art 72(2) 126 Art 72(4) 127 Art 72(9) 128 Art 72(6) 129 Art 72(7), (8) 130 Ripma (2015), infra FN 91, p. 30.
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b) Europol
The accountability system of Europol is discussed in length in the book of Busuioc.131 This
section therefore only briefly summarizes her findings and outlines the changes of the new Regulation 2016/794.
aa) Managerial accountability
The executive Director of Europol is accountable to the management board.132 This board consists of one representative of each Member State and one representative of the Commis-sion.133
The findings by Busuioc, who conducted interviews with board members to assess the effi-ciency of accountability, are of great relevance here. She found that the representatives strug-gle assessing if they get enough information and see deficits in the coordination between each other. In addition, members reported problems to understand what their task is.134
Unlike the management board of Frontex, Europol’s management board has not the power to appoint or remove the executive officer,135 as this role is preserved for the Council. However, the management board has the indirect possibility to refrain from adopting the annual work-ing programme136 or other decisions that need its approval.
bb) Political Accountability
The Council is in a strong position to hold Europol to account. The new Regulation sets the informal practice that Europol’s executive officer is invited and questioned by the Council137
on a formal basis.138 The management board has to forward the programming and work pro-grammes to the Council.139 Since the Council can remove the executive officer of office140, it
131 Busioc (2013), infra FN 7; Busuioc/ Curtin/ Groenleer (2011), Agency growth between autonomy and accountability: the European Police Office as a ‘living institution’, Journal of European Public Policy, 18:6, 848-867, DOI: 10.1080/13501763.2011.593313. 132 Art 16(1) Reg. 2016/794 133 Art 10(1) 134 Busuioc (2013), infra FN 7, p. 84 – 87. 135 Art 11(1)(j). 136 Art 11(1)(a) 137 Busuioc (2013), infra FN 7, p. 142. 138 Art 16(3) 139 Art 12(1) 140 Art 11(1)(j).
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can also impose further consequences besides being the legislator and through actions of the Member States as described above.
One of the main objectives of the new Regulation was to increase parliamentary control and accountability over Europol since this is required by Art 88(2) TFEU, which calls for a pro-cedure of scrutiny of Europol’s (and Eurojust’s) activities by the European Parliament to-gether with the national parliaments.141
Especially the Joint Parliamentary Scrutiny Group (JPSG), set up after Art 51, deserves no-tice. It is intended to be a specialised groups consisting of members of the national parlia-ments and the relevant Committee of the European Parliament.142 Its task is to monitor Euro-pol’s activities including the impact of those activities on the fundamental rights and free-doms of natural persons.143
This group has ex ante control functions while being an ex post accountability mechanism. The JPSG receives threat assessments, annual activity reports, information about administra-tive arrangements with third countries or international organisations and the evaluation report drawn up by the Commission.144 Furthermore, the JPSG has the right to invite the chairperson of the management board and the executive director or their deputies to discuss matters of Europol’s activities.145 However, the JPSG is not directly in the position to impose conse-quences on Europol but merely to draw a conclusion on the political monitoring of Europol’s activities and submit these to the European Parliament and the national parliaments.146 The parliaments may then impose sanctions with their budgetary power.
To ensure that the European Parliament also has access to classified information or non-classified information, Art 52(3) requires Europol and the European Parliament to conclude a working arrangement concerning this matter.
141 European Commission, Proposal for a Regulation oft he European Parliament and oft he Council on the European Union agency for Law Enforcement Cooperation and Training (Europol) and repealing Deci-sions 2009/371/JHA and 2005/681/JHA, COM(2013) 173 final, p. 5; Regulation 794/2016, Rec. 2. 142 Art 51(1) Reg. 2016/794 143 Art 51(2) 144 Art 51(3) 145 Art 51(2)(a) 146 Art 51(5)
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cc) Judicial Accountability
A central issue for the judicial accountability of Europol’s activities was under the old Regu-lation 2009/371/JHA147, that only the Member States were liable for damages caused to an individual as a result of legal or factual errors in data stored and processed at Europol148. This excluded the possibility of individuals to seek compensation from Europol in front of the CJEU.149 The only possibility for individuals to complain against Europol was the Joint Su-pervisory Body. However, no appeal was possible against its decisions due to the exclusion of EU liability.150
The judicial accountability in front of the CJEU has been improved with the new Regulation. Art 50(1) now stipulates that an individual who has suffered damage as a result of an unlaw-ful data procession operation has the right to seek compensation either from Europol or from the respective Member State. The Joint Supervision Body is abolished and its tasks trans-ferred to the external European Data Protection Supervisor (EDPS). The new Regulation ex-plicitly stipulates that any action against a decision of the EDPS shall be brought before the CJEU.151
Since the Regulation provides the data subject a right of access to obtain information on whether their personal data is processed by Europol,152 the individual also has the possibility to learn if they are subject to a fundamental right infringement.
It remains doubtful though whether the liability of Art 50(1) also grasps for example the lia-bility for the damage suffered for a wrongful detention on the basis of wrongly processed information by Europol as other authorities step in the line of causation between the wrongful information and the wrongful detention. Furthermore, the conditions the case law of the CJEU requires for the liability of the EU are strict since the claimant has to proof that their damages were caused by a sufficiently serious breach of EU law that confers rights on indi-viduals.153 147 Council Decision 2009/371/JHA establishing the European Police Office (Europol), O.J. L 121/37 148 Art 52(1) Dec. 2009/371/JHA 149 Puntscher Riekman (2008), infra FN 8, p. 26; Ligetti/ Marletta (2016): EU Criminal Justice Actors: Ac-countability and Judicial Review vis-à-vis the EU Citizen, New Journal of European Criminal Law, Vol. 7, Issue 2, 175 – 189, p. 188. 150 Busioc (2013), infra FN 7, p. 210. 151 Art 48 Reg. 2016/794 152 Art 36 153 CJEU, Case C-352/98 P, Bergaderm and Goupil v Commission.
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A similar problem is oftentimes seen in the judicial accountability of many agencies: since the agencies only provide the information or assessments leading to the decision of another authority, the agency cannot be made legally accountable for its actions although the infor-mation is decisive for the decision-making of the other authority.154
dd) Administrative accountability
With the new Regulation administrative accountability of Europol is transferred to the Euro-pean Data Protection Supervisor (EDPS). According to Recital 50 of Regulation 2016/794, the EDPS shall monitor the lawfulness of data processing carried out by Europol. The EDPS is informed through two different channels. Firstly, any individual has the right to lodge a complaint with the EDPS if they consider the processing of their personal data by Europol not to comply with the Regulation.155 The EDPS is an independent EU data protection au-thority established by Regulation No 45/2001.156 Secondly, Europol has extensive informing duties towards the EDPS in terms of processing personal data. For example, Europol has to provide to the EDPS a statistical annual overview of all personal data that have been pro-cessed.157 It furthermore has to inform the EDPS in case personal data is stored for a time period exceeding five years158 and in case of a personal data breach159.
The EDPS also has power to obtain access to all personal data and to all information neces-sary for their inquiries and can obtain access to any premises in which Europol carries out its activities.160
The consequences the EDPS may impose range from the power to order Europol to rectify, erase, restrict or destruct personal data161 to disclosures of Europol’s failures to other relevant EU institutions162. It may refer the matter to the CJEU.163
154 Busioc (2013), infra FN 7, p. 217. 155 Art 47(1) Reg. 2016/794. 156 Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of indi-viduals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, O.J. L 8/1. 157 Art 30(6) Reg. 2016/794. 158 Art 31(3). 159 Art 34(1). 160 Art 43(4). 161 Art 43(2)(e) 162 Art 43(2)(g). 163 Art 43(2)(h).
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The situation has improved as compared to how it was before the adoption of the new Regu-lation. The old Joint Supervisory Body was in fact dependent from Europol, as it also had to conduct administrative tasks in the agency164. It was only competent to draw reports and for-ward them to the Council and the European Parliament and to complain to the executive of-ficer and management board.165
c) Is Accountability increased?
The Parliament is now to be informed about a wider field of Frontex’ actions than it was the case beforehand. In line with this, Art 50 Reg. 2016/1624 ensures that the European Parlia-ment is to be informed about classified information, thus also increasing effective accounta-bility. The set-up of a complaint mechanism regarding fundamental right breaches is an im-provement, too. However, its effectiveness will depend on how the Member States and Fron-tex ensure that follow up takes place and how the possibility to lodge a complaint is made public to affected individuals.
The Europol Regulation managed to improve a great share of issues that had been criticised before. The set-up of the JPSG provides more parliamentary oversight over the agency by the European Parliament and the national parliaments. Also the improvements of judicial ac-countability seem noteworthy. However the practice has to show if the CJEU will in fact de-termine in any case that Europol is liable towards an individual.
3. The accountability mechanisms in practice
After laying out the accountability systems of the agencies, the question whether the policies presented in the first part of this chapter constraint their function must be addressed. Two challenges can be identified here. The first concerns the parliamentary accountability of the cooperation with operation Sophia and the second the judicial accountability of Frontex in its actions with third country authorities.
a) Parliamentary Accountability: A shift through the participation in CSDP?
A first problem occurring in the external dimension is the new civil-military nexus meaning the close incorporation of Frontex and Europol into the CSDP mission operation Sophia.
164 Puntscher Riekman (2008), infra FN 8, p. 27. 165 Art 34(4), (6) Reg. No 2009/371.
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The possibility for the Parliament to hold Europol and Frontex to account is more present when the agencies cooperate with a third state authority or an international organisation ra-ther than when they are cooperating with a CSDP mission over the EEAS. After Art 54(11) Reg 2016/1624, Frontex must inform the European Parliament about activities conducted in cooperation with third countries and shall include an assessment of the cooperation with third countries in its annual report. Frontex also has to inform the European Parliament about ar-rangements with Union bodies.166 However, the obligation to inform is formulated narrower: Frontex must not inform the Parliament about the activities conducted in cooperation with the Union body but just about the arrangement as such. There are no special information duties so that the European Parliament depends on the questioning of the executive officer or the annual activity report on this matter. This may mean that the European Parliament receives less information.
As explained above the transfer of personal data is now restricted for Europol when it comes to third parties, however the transfer of personal data to Union body is nonetheless possible after Art 24 Reg. 2016/794. The new JPSG does receive information about administrative arrangements with third countries and international organisation but not about arrangements with European bodies like the EEAS.
On the other hand, the formal powers of the European Parliament to hold a military CSDP mission to account are limited. According to Art 36(1) TEU the High Representative of the EU has to consult the European Parliament regularly on the main aspects of the CFSP and CSDP and must ensure that the views of the European Parliament are duly taken into account. The European Parliament can also pose questions to the Council and the High Representative, Art 36(2). The possibility to impose formal consequences is not present: the European Par-liament has neither influence on the military budget167 nor decision-making powers. In prac-tice, the European Parliament developed routines that increasingly scrutinize the CSDP mis-sion through hearings, field trips, questions, debates and reports.168 Operation Sophia was
subject to several European Parliament resolutions.169 Nevertheless, there are pitfalls: there is
166 Art 52(2) 167 Peters/ Wagner/ Glahn (2014), Parliamentary control of CSDP: the case of the EU's fight against piracy off the Somali coast, European Security, 23:4, 430-448, p. 439. 168 Ibid, p. 440. 169 European Parliament resolution of 4 February 2016 on the situation in Libya (2016/2537(RSP)); Eu-ropean Parliament resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI)); European Parliament resolution of 5 July 2016 on the fight against trafficking in human beings in the EU’s external relations (2015/2340(INI).
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no comparable provision to Art 50(3) Reg. 2016/1624 that ensures that the European Parlia-ment receives classified information and since the European ParliaParlia-ment has no decision-making power in the CSDP, it cannot pressure the persons in charge to remedy a certain con-duct. Thus, the EEAS and the Council are less accountable for a military CSDP mission to the European Parliament than Europol and Frontex are for cooperation with third countries. This causes a shift in parliamentary accountability. The agencies are less accountable towards the European Parliament when they cooperate with the CSDP military mission than when they are cooperating with third country authorities. On the other hand is the CSDP military mission is scarcely accountable towards the Parliament.
2. Legal accountability: external actions beyond judicial review?
The cooperation with third countries, especially by Frontex, imposes a challenge to the judi-cial accountability.
The CJEU only has jurisdiction over international agreements, Art 218(11) TFEU. Working arrangements are beyond the court’s jurisdiction. It is assumed that they do not need to be subject to judicial review because they are not binding and merely technical in their nature.
Fink argues regarding Frontex’ working arrangements that it is difficult to differentiate if
they are technical or political arrangements, since they can provide the basis for the participa-tion of third countries in operaparticipa-tions and for technical and financial aid.170
The Court neither has jurisdiction on the effects the cooperation with third countries may have: If the Turkish border authority is enabled because of the operational information pro-vided by Frontex to intercept a migrant boat in its territory and the migrants are brought back to the Turkish Coast, this conduct is out of the realm of the Court’s jurisdiction. However, it possibly infringes or leads to the infringement of international and human rights law, like the right of everyone to leave any country (Art 12(2) ICCPR) and the possible infringement on the prohibition of inhumane or degrading treatment (Art 3 ECHR).
It is of course inherent in the cooperation with third countries that one domestic court cannot control the actions of the other party. However, this is balanced out through the jurisdiction of the Court about the agreement before the actions take place and through the jurisdiction of the court over the actions of the domestic actors.
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The CJEU cannot challenge the working arrangement since it is received to be not legally binding. The actions of Frontex in the scope of the arrangements cannot be challenged either: it is the border authority of a third country that conducts the action in question. Frontex only contributes with information, which does not display an act intended to have legal effect
vis-á-vis a third body after Art 263 TFEU.
IV. Challenges for the fundamental values of the EU
In the previous chapter, two problematic fields have been elaborated on with regard to the judicial and parliamentary accountability in the external actions of Frontex and Europol in migration policy. Building on this, an argument is made on how this stands in contrast with two fundamental principles of the Union stipulated in Art 2 TEU: the principle of democracy and the principle of the rule of law.
1. Cooperation with EU military operations and democratic concerns
As it has been shown so far, the cooperation of Europol and Frontex with operation Sophia resulted in a shift of their accountability vis-à-vis the European Parliament. This thesis ar-gues, that this challenges the principle of democracy.
a) Accountability from a democratic perspective
It is one of the core principles of a liberal democracy that the people are the ultimate source of public authority and that state action has to be sufficiently democratic legitimized by the people. 171 This is the starting point of the already mentioned democratic perspective on ac-countability, which orients itself at the principal-agent chain that exists in democracies. In a basic parliamentary democracy, power is delegated from the people to the parliament that transfers power to the government, inter alia the actual policy making, drafting of laws or the implementation. Every transferred state power has to be retraceable to the people as the ulti-mate source of legitimacy.
The other site of the delegation of power is accountability since it ensures that the delegator can monitor whether the agent is fulfilling their task in accordance with the preferences of the principal. This is an essential condition for a democracy172 and has been identified as one of
171 Betham, D/ Lord, C. (1998), Legitimacy and the EU, p. 9.
172 Bovens/ Curtin/ t’Hart (2011), Studying the Real World of EU Accountability: Framework and Design,
