Table of Contents: I. Introduction. – II. Agencies and agencification. – III. Engagement in Greece in light of push backs and suspension of asylum law. – IV. Involvement at the Hungarian-Serbian border. – V. Expanding competences. – V.1. Standing corps of 10.000 border guards. – V.2. Returns. – VI. Responsibility implications. – VI.1. Liability in EU law and the EBCG Regulation. – VI.2. Indirect responsibility. – VI.3. Direct responsibility before 2019. – VI.4. Direct responsibility after 2019. – VII. Frontex responsibility for operations in Hungary and Greece. – VII.1. Surveillance operations at land and sea borders. – VII.2. Return operations. – VIII. Conclusion.
Abstract: This Article deals with the potential responsibility of Frontex, the European Border and Coast Guard Agency, for human rights violations, through the case studies of the Greek-Turkish and the Hungarian-Serbian border, where systematic human rights violations have been well-reported. Such violations are studied in the context of the activity of Frontex in border surveillance and return operations in Hungary since 2016, and the Rapid Border Intervention launched in Greece in 2020. This Article looks, in particular, into the indirect responsibility of the agency through assisting the host state in the commission of a violation, and into its direct responsibility due to exercising a degree of effective control over seconded agents. What is more, it notes the shift after the 2019 amendment of the EBCG Regulation from complicity, as the main form of responsibility for Frontex, to direct responsibility. This shift is brought by the expansion of the powers and competences of the agency, especially with respect to the standing corps of 10.000 border guards, including the agency’s own statutory staff, increased use of own large assets (aircrafts, vessels), and an increased role in return operations. The author further reflects upon the role of EU agencies in a model of “mixed government”, in ensuring the balance between supranationalisation and intergovernmentalism, and amongst the interests of EU citizens, Member States, and European integration. The conclusion is drawn that, no such balance can be struck before human rights, amongst the core EU values, are properly upheld, and before suitable accountability safeguards are set.
Keywords: border – human rights – migration – Frontex – refugee – refoulement.
* Assistant Professor of International and European Law, Radboud University, firstname.lastname@example.org.