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The new European Border and Coast Guard: yet another “half way” EU reform?

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Abstract

The adoption of EU Regulation 2016/1624 is an endeavour to widen the scope of existing measures shaping a fully-fledged EU integrated border policy. This article discusses key innovations and ambiguities in the text in the light of the debate regarding the still lacking supranational model. EU security has become the driving factor of border management system. The article argues that the respect for the principle of institutional balance is threatened by this Regulation as well as the principles of the rule of law and democratic control, notably at national level.

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Notes

  1. A quite detailed collection of the legislative preparatory works can be found here: https://free-group.eu/2016/06/10/wiki-lex-the-new-eu-border-guard-proposal/.

  2. Regulation (EU) 2016/1626 of the European Parliament and of the Council of 14 September 2016 amending Council Regulation (EC) No. 768/2005 establishing a Community Fisheries Control Agency, OJ L 251, 16.9.2016, pp. 80–82.

  3. See Regulation (EU) No. 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, OJ L 286, 1.11.2011, pp. 1–17.

  4. In the post-Lisbon framework, it is essential to consider the new role in EU legislation of the Charter of Fundamental rights, see more details in: Ferraro/Carmona [3].

  5. As noted by Hoffman-Morini “Policy-specific powers exist allowing for the creation of structural or procedural “measures”, for example, in the area of research, in the environmental field, in the air and maritime transport or regarding border checks, asylum and immigration in the context of the so-called “Area of Freedom, Security and Justice” allowing for the adoption of “any measure for the gradual establishment of an integrated management system for external borders”. See: Hofman/Morini [6].

  6. Recently codified: Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 77, 23.3.2016, pp. 1–52.

  7. See: Regulation (EU) No. 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), OJ L 295, 6.11.2013, pp. 11–26.

  8. See: Council Regulation (EC) No. 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. The regulation has already been modified in 2007, 2011, 2013 and 2014. The current Consolidated version can be found here: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:02004R2007-20140717.

  9. Notably the Schengen Information System which according to the European commission planning will be (hopefully) updated to the post-Lisbon legal framework in 2017.

  10. Carrera/Den Hertog [1].

  11. Rijpma [7].

  12. De Bruycker [2].

  13. See the joint press release “A reinforced FRONTEX Agency EU turns a deaf ear to NGO’s warnings”, PROGRESS Lawyers Network, 22.09.2016.

  14. Adopted three months after September 11 and in the political framework which will be the base for the creation in the US of the Homeland Security Department.

  15. Already at the time of the negotiation of the Constitutional Treaty, the Final Report of Working Group X “Freedom, Security and Justice” to the European Convention (December 2002, p. 17) made clear that: “Consideration should also be given to indicating, in this legal basis, the possible longer-term perspective of a common European border guard unit operating in conjunction with national border control services”.

  16. According to these conclusions: “Integrated border management is a concept consisting of the following dimensions:

    • Border control (checks and surveillance) as defined in the Schengen Borders Code including relevant risk analysis and crime intelligence.

    • Detection and investigation of cross border crime in coordination with all competent law enforcement authorities.

    • The four-tier access control model (measures in third countries, cooperation with neighboring countries, border control, control measures within the area of free movement, including return).

    • Inter-agency cooperation for border management (border guards, customs, police, national security and other relevant authorities) and international cooperation.

    • Coordination and coherence of the activities of Member States and Institutions and other bodies of the Community and the Union.”

  17. At the same time, the increasing numbers of migrants making dangerous sea crossings in unsafe boats led the Commission to focus on the Southern Maritime Borders. The goal of establishing integrated border management was added with the Lisbon Treaty (Article 77(2)(d) TFEU). The establishment, in 2004, of FRONTEX, the Agency for managing cooperation on the EU’s external borders, was a key element in fostering improved coordination. With the 2011 update of FRONTEX’s mandate, developing a European border surveillance system was key task for the Agency, as well as more generally assessing risks on the external frontiers.

  18. “The objective of Union policy in the field of external border management is to develop and implement European integrated border management at national and Union level, which is a necessary corollary to the free movement of persons within the Union and is a fundamental component of an area of freedom, security and justice.”

  19. See a recent Case raised by the European Parliament Case C-355/10 (decided by the Grand Chamber) 5 September 2012 (Schengen Borders Code—Decision 2010/252/EU—Surveillance of the sea external borders—Introduction of additional rules governing border surveillance—Commission’s implementing powers—Scope—Application for annulment).

  20. See Ferraro [5]; For a more detailed analysis, see Ferraro [4].

  21. See Council Regulation (EU) No. 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen, OJ L 295, 6.11.2013, pp. 27–37.

  22. See Regulation (EU) No. 1051/2013 of the European Parliament and of the Council of 22 October 2013 amending Regulation (EC) No. 562/2006 in order to provide for common rules on the temporary reintroduction of border control at internal borders in exceptional circumstances, OJ L 295, 6.11.2013, pp. 1–10.

  23. See: Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, OJ L 135, 24.5.2016, pp. 53–114.

References

  1. Carrera, S., Den Hertog, L.: A European Border and Coast Guard: what’s in a name? CEPS, no. 88/2016. Available at: https://www.ceps.eu/system/files/LSE%20No%2088%20SC%20and%20LdH%20EBCG.pdf

  2. De Bruycker, P.: The European Border and Coast Guard: a new model built on an old logic. European Papers, no. 2/2016. Available at: http://www.europeanpapers.eu/en/e-journal/european-border-and-coast-guard-new-model-built-old-logic

  3. Ferraro, F., Carmona, J.: Fundamental rights in the European Union. The role of the Charter after the Lisbon Treaty. European Parliamentary Research Service, Brussels, March 2015 (Original manuscript in English). Available at: http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/554168/EPRS_IDA(2015)554168_EN.pdf

  4. Ferraro, F.: Lo spazio giuridico europeo tra sovranità e diritti fondamentali. Democrazia, valori e rule of law nell’Unione al tempo della crisi (European legal space between sovereignty and fundamental rights: democracy, values and the rule of law in the Union in the times of crisis). Editoriale Scientifica, Napoli (2014)

  5. Ferraro, F.: Schengen governance after the Lisbon Treaty. European Parliamentary Research Service, Brussels (2013). Available at: http://www.europarl.europa.eu/eplibrary/Schengen-governance-after-the-Lisbon-Treaty.pdf

  6. Hofmann, H.C.H., Morini, A.: Constitutional aspects of the pluralisation of the EU executive through “agencification”. European Law Review 37(4), 419–443 (2012)

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  7. Rijpma, J.: The proposal for a European Border and Coast Guard: evolution or revolution in external border management? Directorate-General for Internal Policies, European Parliament, March 2016. Available at: http://www.europarl.europa.eu/RegData/etudes/STUD/2016/556934/IPOL_STU(2016)556934_EN.pdf

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Authors and Affiliations

  1. University of Naples “L’Orientale”, Via Partenope 10/A, 80121, Napoli, Italy

    Francesca Ferraro

  2. Queen Mary University of London, Mile End Road, London, E1 4NS, UK

    Emilio De Capitani

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  1. Francesca Ferraro
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  2. Emilio De Capitani
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Correspondence to Francesca Ferraro.

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Ferraro, F., De Capitani, E. The new European Border and Coast Guard: yet another “half way” EU reform?. ERA Forum 17, 385–398 (2016). https://doi.org/10.1007/s12027-016-0447-y

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