The Management Board thanks the Working Group Fundamental Rights and Legal Operational Aspects of Operations for swift delivery of findings and takes note of its preliminary report. It welcomes in particular that the Working Group has involved also Frontex’s Fundamental Rights Officer, as well as the Fundamental Rights Agency and the Consultative Forum in its discussions.
The Management Board takes note that five out of 13 incidents that have been examined still require further inquiry by the Working Group and additional clarifications.
The Management Board takes note that on the eight incidents that the Working Group could close at this stage and, on the basis of the information provided, it could not establish evidence of fundamental rights violations.
The Management Board is very concerned that the Agency missed to provide information on three incidents identified by the Working Group in time, so that the Working Group could not yet draw any conclusions with a view to certain cases.
The Management Board invites the Executive Director of the Agency to immediately provide the missing information and to implement the recommendations made in the report for the improvement of the Agency’s internal process and procedures, in particular:
- To
apply its current reporting system and to revise it in order to make it more
efficient, including by
>> clearly documenting a detailed allocation of responsibilities within the agency and ensuring that all staff responsible (including the Fundamental Rights Officer and the members of the Management Board) can fully exercise their duties;
>> setting minimum requirements as to the qualification of the experts in the Frontex Situation Centre (FSC),
>> ensuring that Serious Incident Reports on alleged violation of Fundamental Rights are always reported to the Fundamental Rights Officer,
>> providing that every Operational Plan should include a transparent reporting mechanism, inviting the Host Member States to involve in this transparent approach all assets which are acting in the operational area, with the objective that every incident in the operational area is reported.
- To establish a systematic monitoring of the reporting mechanism;
- To clarify the relation between its system of protecting whistleblowers and the exceptional reporting under the Serious Incident Reports mechanism, ensuring that confidential reports from Frontex employees and team members are handled in an appropriate way, given prompt follow-up and that the protection of the identity is guaranteed;
- To ensure clear communication to staff and team members on these mechanisms, including mandatory training sessions;
- To establish transparent rules on the Frontex-internal process to follow-up on serious incidents that have been established, including on the application of Art. 46 of the EBCG Regulation;
- To recruit immediately the 40 Fundamental Rights Monitors (in accordance with the Regulation), which should have been in place by 5 December 2020 under the EBCG Regulation.
The Management Board agrees with the Working Group that there is no reason to establish the principle that any Serious Incident Report should be classified automatically as RESTREINT UE/EU RESTRICTED.
The Management Board requests the Executive Director to report, by 19 February 2021, on the state of implementation of the above recommendations and to submit a roadmap developed in cooperation with the Fundamental Rights Officer on any further steps that the Agency needs to take in this respect, with a view to guarantee their swiftest possible implementation.
The Management Board notes, furthermore, that the European Commission has accepted the request of the Working Group to elaborate on a number of questions that concern in particular the interpretation of certain legal provisions and application of jurisprudence of the ECtHR to the sea borders and the impact of that jurisprudence on the interpretation of provisions of Regulation (EU) 656/2014.
For its next extraordinary meeting, the Management Board asks the Working Group to complete the examination of the incidents and to submit, by 26 February 2021, its final report on its work.