Management Board updates


Conclusions of the Management Board’s meeting on 5 March 2021 on the report of its Working Group on Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea

2021-03-05

The Management Board thanks the Working Group Fundamental Rights and Legal Operational Aspects of Operations for the additional work done following the delivery of the Group’s preliminary report at the end of January and takes note of the findings of the Group’s final report. It also thanks Frontex’ Fundamental Rights Officer, Fundamental Rights Agency and the Consultative Forum for their continued participation in the discussions of the Group.

The Management Board welcomes the explanations provided by the European Commission as concerns the legal framework governing Frontex’s maritime operations. According to the Management Board, the recommendations and final conclusions of the Report of the Working Group with regard to Frontex’s maritime operations in the Aegean Sea are coherent with these explanations.

The Management Board, being aware of the complex environment of the operational efforts of Frontex and host country assets respectively in the area, would like to underline the fact that approximately 28,000 persons were rescued in the Frontex coordinated joint operations, expresses its thanks, and acknowledges the professionalism of all border and coast guards officers that participated in these activities.

The Management Board takes note, that in total -8- out of the -13- examined incidents were clarified to the effect that no third-country nationals were turned back in violation of the principle of non-refoulement, or otherwise in violation of Article 80(2) of Regulation (EU) 2019/1896. In particular, -6- out of these -8- incidents took place entirely in Turkish Territorial Waters.

The Management Board also takes note that, despite the additional evidence gathered and reviewed by the Group, it has not been possible to establish the facts related to all five plus one incidents that still remained to be examined following the Group’s preliminary report.

In this respect, the Management Board:

  1. Takes note that there are indeed no indications that an incident as reported by the media for 28/29 April was observed by Frontex assets;
  2. Welcomes that one Serious Incident Report was followed-up by a letter from the Executive Director to the authorities of the host Member State, but regrets that no further follow-up was undertaken following the receipt of the letter from the host Member States authorities;
  3. Encourages at the same time the Agency to close another Report as exchanges between the Agency and the host Member State’s authorities have been ongoing until recently at the technical level;
  4. Regrets that in the case of three other incidents some aspects in the presentation of facts by the different parties involved could not be clarified, but that the Agency, in these cases, also has not taken any decisive action to this end.

The Management Board notes with concern that the reporting systems currently in place are not systematically applied, do not allow the Agency to have a clear picture of the facts relating to (potential) serious incidents and do not allow for a systematic analysis of fundamental rights concerns. The Agency needs to make urgent improvements in this respect.

Also for that reason, the Management Board welcomes that Frontex has already undertaken work to implement the Board’s recommendations from its meeting on 21 January 2021 as concerns Frontex’ incident reporting system.

On that basis, the Management Board has drawn the following conclusions:

1. It reiterates its request to the Agency:

- to revise its reporting system 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) as well as 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 and assessed by the Fundamental Rights Officer;
  • providing that every Operational Plan should include a transparent reporting mechanism and reiterating the conclusions in this regard accepted at the Management Board meeting on 21st January 2021;
  • taking into account the recommendations of the Working Group, including the following: 
    ✓ the documentation and monitoring of sensitive scenarios should be considered under the reporting mechanism. This would strengthen as well the idea of a "second set of eyes principle"
    ✓except if not possible all action taken by Frontex assets or Frontex co-financed assets – within scope of Regulation (EU) 656/2014 – should be comprehensively documented by video footage;

- To establish a systematic monitoring of the reporting mechanism;
- To clarify the relation between its system of protecting whistle-blowers 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 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. In this respect, the Management Board welcomes the progress in the selection procedures led by the Fundamental Rights Officer.

2. The Management Board asks the Executive Director of the Agency, to submit a proposal for establishing a transparent process to follow-up on Serious Incident Reports on potential violations of fundamental rights.

In particular, there is a need to clarify:
- The process to establish a Final Serious Incident Report, that could be concluded in due time;
- The process to follow-up to a Final Incident Report establishing a potential violation of fundamental rights. While the Management Board welcomes that, in the one incident where a Final Serious Incident Report was established, the Executive Director issued a letter to the authorities of the host Member State asking for an internal investigation into the incident, there is a need to establish proper internal procedures with a view to the further steps that should be taken, following such request and with the objective to increase transparency.

The Management Board requests the Executive Director to expand the roadmap submitted for today’s meeting, in cooperation with the Fundamental Rights Officer, to include the above additional recommendations and to report, three weeks ahead of the Management Board meeting in May, on the state of implementation of these recommendations.

The Management Board agreed to monitor further the follow up on the report of the Working Group Fundamental Rights and Legal Operational Aspects of Operations.

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