The European Border and Coast Guard consists of both the Member State authorities responsible for border management and return, and Frontex as their EU level counterpart. Nevertheless, the EBCG Regulation sets out more obligations for Frontex than Member States, related to the protection and promotion of fundamental rights.

Legal and policy developments following the EBCG Regulation point to a gradual alignment of national and EU-level fundamental rights obligations. The 2023 Commission Communication establishing the multiannual strategic policy for European integrated border management (EIBM) highlights that “Frontex and the Member States should foster an EIBM culture characterised […] by the full respect for fundamental rights, and they should integrate fundamental rights safeguards throughout all their activities.” It goes on to emphasise that “[f]fundamental rights monitors are to protect and promote the respect for fundamental rights as a core element of all activities of the European Border and Coast Guard, under every component of EIBM.” Its annex recommends Member States to develop “tailored national fundamental rights strateg[ies] and action plan[s],” or including an explicit fundamental rights component within their national EIBM strategy. The revamped Schengen evaluation and monitoring mechanism significantly strengthened the fundamental rights dimension of Schengen evaluations.

Although general provisions of the EBCG Regulation, such as Article 1 (subject matter), Article 3 (2) on integrated border management, and parts of Article 80 (general fundamental rights safeguard clause) apply to both Frontex and the Member States, more concrete and detailed measures to protect and promote fundamental rights are envisaged only for Frontex. The following examples illustrate this:

• Article 5 (4): Frontex must contribute to the continuous and uniform application of the EU acquis on fundamental rights, in particular the Charter of Fundamental Rights of the EU;
• Article 80 (1): Frontex must adopt a fundamental rights strategy and action plan;
• Article 81: Frontex must draw up a code of conduct;
• Article 110 (1)-(2): Frontex must constantly assess the fundamental rights compliance of all its operational activities;
• Article 110 (6): Frontex must recruit and deploy at least 40 fundamental rights monitors.

The EBCG Regulation does not sufficiently operationalise corresponding duties for Member States. Through its regular work on borders, FRA observed that the divergence between the safeguards at EU (Frontex) level and the national level is prone to have adverse implications on fully upholding fundamental rights when conducting operational activities within the single EU border management space. Three examples illustrate this:

1. Fundamental rights monitoring remains uneven. Frontex has the duty to constantly assess the fundamental rights compliance of all its operational activities by its fundamental rights monitors. There is no similar obligation for Member States under EU law,. although the European Commission has recently encouraged this. National border monitoring mechanisms have a preventative function. They can also support domestic investigations of allegations against border management authorities by providing objective, evidence-based and unbiased analysis and reporting. This improves transparency and accountability, and thus enhances trust in relevant public authorities.[1] See in this context FRA (2022) ‘Establishing national independent mechanisms to monitor fundamental rights compliance at EU external borders’, 14 October 2022; FRA (2022), ‘Establishing independent and effective national border monitoring mechanisms: Expert meeting’, news item, 22 November 2022.
    
2. In some Member States, the officers that Frontex deployed did not patrol critical sections of the external border where they could witness alleged fundamental rights violations.[2] See in this context also: European Parliament, Report on the fact-finding investigation on Frontex concerning alleged fundamental rights violations, LIBE Committee on Civil Liberties, Justice and Home Affairs, 14 July 2021, para. 3A.
   When deployed to operations through Frontex, officers are obliged to report (potential) violations of fundamental rights through the serious incident reporting (SIR) mechanism. There is no such duty under domestic law, although other reporting mechanisms may exist in some Member States.
3. Third countries may get conflicting messages on EU fundamental rights law standards. Frontex and Member States deploy officers to third countries. Figure 1 illustrates Member States which deployed officers to Serbia and North Macedonia in mid-April 2023. In Serbia, such deployments coexist with Frontex deployment, whereas in North Macedonia, all parallel deployments by Member States were subsumed into the Frontex joint operation which began in mid-April.[3]  Frontex, Frontex launches joint operation in North Macedonia, 20 April 2023.
   

Figure 1 – Bilateral deployments to Serbia and North Macedonia, 14 April 2023

The map shows that Austria and Hungary deploy officers to Serbia and Austria, Croatia, Czechia, Hungary, Slovakia and Slovenia deploy officers to North Macedonia.

Source: International Organization for Migration, 2023.

Notes: As of 20 April, deployments to North Macedonia are part of a Frontex joint operation. Bilateral deployments discontinued.

* This designation is without prejudice to positions on status and is in line with UNSCR 1244 (1999) and the International Court of Justice’s Opinion on the Kosovo declaration of independence.

Deployments in third countries under the aegis of Frontex need to follow a strict fundamental rights scrutiny (such as adherence to the Frontex code of conduct, establishment of a complaints mechanism, oversight by the fundamental rights officer, etc.) which is not required to the same degree when Member States deploy officers outside the Frontex framework. Bilateral deployments are thus not subject to the same fundamental rights guarantees as those reflected in status agreements and working arrangements governing the cooperation between Frontex and third countries under Article 73 of the EBCG Regulation.[4] See in this context also the model instruments  European Commission, Communication from the Commission to the European Parliament and the Council. Model status agreement as referred to in Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, COM(2021), 21 December 2021; European Commission, Communication from the Commission to the European Parliament and the Council Model working arrangement as referred to in Regulation (EU) 2019/1986 of the European Parliament and of the council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624, COM(2021) 830 final, 21 December 2021. For a list of all such working arrangements as of April 2023, see Frontex, Public Register of Documents.
Any deployment under Frontex requires a prior fundamental rights impact assessment. Vague fundamental rights safeguards increase the risks for fundamental rights.

Therefore, should the EBCG Regulation be revised in future, consideration could be given to approximate the fundamental rights safeguards (such as a fundamental rights strategy and action plan and fundamental rights monitoring) applicable to Member States with those of Frontex.