First thoughts on the European Border and Coast Guard Agency

2016-03-02

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The Commission has already presented a regulation for the establishment of a European Border and Coast Guard Agency.¹ The draft legislation was discussed in the European Parliament’s LIBE Committee (Civil Liberties, Justice and Home Affairs) on February 29.² The purpose of this regulation is three-fold:

1. To establish border management as a shared competence between the Union and the Member States, meaning that sovereignty and responsibility will no longer be confined to the national level;
2. To greatly reinforce the operational capacity of the EU’s existing agency for border control, Frontex, to rename it into “European Border and Coast Guard Agency”, and to broaden its mandate so as to be able to operate within a Member State’s space without the need to remain under the command of the respective national authorities;
3. To make cooperation with third countries a Union-level issue, which will among others help circumvent whatever constraints in the bilateral relations between Member States and their non-EU neighbours.

Main problems are addressed

As explained in my latest analysis on the design flaws of the Schengen Area, the management of external borders cannot be a purely national competence.³ The current design of Europe’s system for internal passport-free travel exacerbates asymmetric shocks in countries that function as entry points for third country nationals, such as Greece and Italy. Frontline states are not in a position to cope with a Europe-wide phenomenon by relying only on their own means. It also is unfair for them to have to bear such a disproportionate burden and be blamed for not being able to deal with it.

I therefore agree with the intention of this regulation to qualify the matter as one of shared competence between the Union and the Member States (in line with the principles of conferral, subsidiarity and proportionality). Also the technical instrument used for this draft piece of law, a European regulation, means that there will be uniformity in the implementation of its provisions, which seems to be appropriate given the arbitrariness in the response of Member States to the influx of migrants and refugees.

I also approve of the intention to greatly expand the scope of Frontex, both with respect to its resources and its operational capacity. As things currently stand, Frontex is ill suited for the task of contributing to the control of the Union’s external borders. It is both under-resourced and legally limited in what it can do, especially with regard to the need of remaining under the supervision of the authorities of the Member State in which it operates (thus preserving the idea of national sovereignty/responsibility over border issues in line with the Schengen Agreement). For Schengen’s design flaws to be addressed, Frontex must also undergo thoroughgoing reform. To that end, this regulation is in the right direction.

Power moves to the Union level

The tasks of the European Border and Coast Guard Agency (hereinafter referred to as “EU Coast Guard”, “EU Border Agency”, or “the agency”), range from information gathering to active involvement in border management. The agency will have a federated structure. It will remain above—and act as a supervisor of—the border and coast guards of the Member States. National authorities will continue to be the primary actors in all operations, though under a legal framework that deprives them of ultimate discretion on the specifics. Contrary to the design of the soon-to-be-reformed Frontex, power will be moved to the Union level.

The distribution of authority in this new arrangement is made manifest in at least three instances:

• hierarchy: in the supervisory role of the agency, especially as concerns its ability to assess the equipment, resources, and operational adequacy of the Member States, and to adopt legally binding decisions for them to address any flaws therein;
• direct control: in the operational capacity of the agency to directly intervene in the management of the external borders on the occasion where the government in question fails to act in accordance with its responsibilities;
• own resources: in its system of own resources, in particular the fact that the pooling of human capital will be mandatory, while the agency will be in a position to maintain its own equipment pool either in co-ownership with Member States or even in its own right.

What this practically means is that the EU will become sovereign, at least in a limited sense, over the issues concerned, much like it has become so on other areas of policy where responsibilities are shared at the supranational level, most notably on economic governance.

Sovereignty and territoriality

The one area where I would hold reservations is on the issue of territoriality, an essential element in the sovereign exercise of legitimate force. More specifically, the EU Border Agency will be able to formulate the modalities of cooperation with third countries and to engage in joint operations with them. This however presupposes that the Union’s [sea] borders are clearly delineated, or that there are no disputes whatsoever over which state maintains authority over them.

My first reading of the regulation has not offered a clear understanding as to how bilateral relations between EU and non-EU states will be handled in cases where that prerequisite is not satisfied. I am, in particular, wondering about the case of the Aegean Sea where there is a long standing set of disputes between Greece and Turkey.

To outline the problem, Greece suggests that its Exclusive Economic Zone (EEZ) emanates equally from its mainland and islands, which renders the Aegean Sea all the way to Cyprus a mostly Greek sovereign space. Whereas Turkey argues that the EEZ can only extend from the mainland, which effectively divides control over the Aegean along the 25th meridian east of Greenwich (basically cutting the sea in half).

The particularities of that case notwithstanding, it is not clear how the EU Coast Guard will be able to define its own area of jurisdiction without adopting a certain approach on the matter. It will have to provide its assent to either side’s position or opt to accept the status quo, with whatever implications that may have.

On the face of it, this may be dismissed as a Greece-only problem. Though with border management expected to become an EU shared competence, such reasoning cannot withstand scrutiny. It is erroneous to think that the dispute over the Aegean remains an item of Greek foreign policy when ultimate power rests not with Greece but with the Union.

Perhaps the draft regulation contains provisions on how to deal with such exceptional circumstances, which I may have overlooked in my first reading. At any rate, issues of sovereignty cannot be taken lightly, nor can border management be abstracted as a self-contained technical consideration divorced from international relations and the ramifications thereof.

More authority requires more legitimacy

While my overall assessment of this draft legislation is positive, I am greatly concerned about the Commission’s eagerness to treat this transfer of sovereignty as yet another “technicality” that is only meant to ensure Union-wide quality standards and best practices over policy implementation.

The management of land and sea borders is a cardinal expression of sovereignty, one that decisively contributes to the delineation of the area within which a state may be self-instituted and remain free from external interference. From a democratic perspective, the definition of the sovereign space is a prerequisite to the establishment of a well-functioning political order along the lines of a republic. Democracy, the capacity for collective self-government, cannot be founded in a power vacuum, or on territory that does not guarantee the continued independence of the polity.

The EU does not seem to adopt such a holistic view. Border management is just another technocratic exercise that has ostensibly no impact on political life. With this new regulation the Commission will be in a position to determine when the EU Coast Guard will be able to operate in a Member State’s space without that government’s consent. That seems to be quite an intrusive, albeit justifiable, prerogative. To make it perfectly legitimate a certain transfer of input legitimacy and accountability to the Union level would be necessary; one that would at least be commensurate with the corresponding transfer of sovereignty. Also, the states that are directly affected by this piece of law would be excused to expect credible guarantees on the preservation of their territorial integrity and constitutional order in exchange for their relative enfeeblement in controlling their borders.

Understandably, the EU Treaties will need to be amended for the Union to become more democratic. However, it seems that in the meantime the EU gains even more competences with the hope being that in the indeterminate future any concerns over legitimacy will be addressed by means of a new Treaty. A pragmatic view must then be that pressing issues require immediate solutions so as to prevent the meltdown of the European acquis and, once a certain degree of stability is reached, ex post corrections will be made in line with the need to enhance EU-level democracy.

Finally and to conclude with some of the procedural issues concerning the making of the law, it seems that the European Parliament has drawn a rather ambitious timeline for its work on preparing amendments to the Commission’s proposal. The draft report will be presented on April 11, while the deadline for amendments extends to April 20, with a vote at the LIBE committee expected in May.⁴ While dates are subject to change, it is safe to assume that if everything goes per plan, it will not be very long before Frontex is replaced by the European Border and Coast Guard Agency, while the EU makes a decisive step forward in gaining shared competence over the management of its external borders.

1. Full text of the regulation in pdf format. Published on December 15, 2015. [^]

2. Press release on the LIBE debate by the European Parliament’s press service. [^]

3. Can Europe cope with migration? Published on February 28, 2016. [^]

4. Technically, LIBE will be considering two draft reports. The one on the EU Coast Guard and the other on the revision of the Schengen Borders Code. [^]