Aida Halilovic argues that the EU’s empowerment of the European Border and Coast Guard Agency (Frontex) is controversial. Frontex straddles overlapping administrative and political dimensions, and makes decisions on matters that sit between the public goods of liberty and security, where democratic deliberation might be needed
In an era of escalating security challenges, the EU faces threats that transcend national borders. From terrorism and organised crime to irregular migration and cyber threats, the landscape of border security is increasingly complex.
Member States must cooperate to respond efficiently and coherently; common threats call for common approaches. However, such responses have proved difficult because of the legal and political limits of the EU's area of freedom, security and justice (AFSJ).
For a start, passports and IDs require the unanimity of European Council Member States. Second, policing and decisions to welcome foreigners fall under the exclusive competences of those Member States. Third, the EU has ruled out the harmonisation of national laws regarding migrants’ integration and crime prevention.
This tension between national sovereignty and EU integration has led the EU to pivot away from a legislative approach to a more flexible model. As a result, the EU now entrusts specialised agencies like the European Border and Coast Guard Agency (Frontex) to define ‘risks, threats and vulnerabilities’ for EU borders.
The EU now entrusts specialised agencies like Frontex to define risks, threats, and vulnerabilities for EU borders
Frontex plays a crucial role in promoting EU security standards and practices through joint operations, standardised training, benchmarking, and robust information exchange and analysis. This allows for the gradual socialisation of national practitioners and decision-makers into a shared security culture. In an ideal world, Frontex would be a depoliticised administration but it has a regulatory role with significant political implications.
Frontex has a mandate to monitor migration to and within the EU. It prepares risk analyses based on data and trends related to irregular migration, vulnerabilities at external borders, and other border management challenges.
The Frontex Risk Analysis Network (FRAN), made up of national and EU analysts, gathers data and develops integrated analytical reports, incorporating inputs from national administrations.
FRAN has introduced standards and procedures for national practitioners to follow, creating a form of administrative interdependence. Therefore, the norms and practices propagated within the network can influence national autonomy.
Frontex processes the data it collects based on the Common Integrated Risk Analysis Model (CIRAM). Frontex developed this analytical framework to apply to all Member States. The framework defines risk in the context of border management, and it provides guidelines for analysts on how to identify and assess risks qualitatively, ‘in view of their level of threat, vulnerability and impact’.
Effectively, this means that Frontex sets the framework for defining what the EU considers a risk or threat, and determines its gravity.
A critical aspect of this influence is how Frontex perceives the public good being pursued, particularly in balancing security and liberty. The key indicators used to aggregate the data reflect this delicate balance. Data collected include detections of illegal border crossings, refusals of entry, detections of illegal stay, facilitators, fraudulent documents, return decisions, effective returns, and passenger flow.
These indicators reveal a dominant political trend of securitising migration. They give little attention to legal migration phenomena and non-criminal aspects.
Frontex's risk analyses are meant to be objective, yet there have been instances where political considerations have overruled decisions based entirely on risk analysis
Frontex’s risk analyses directly influence how EU Member States manage their borders. Member States must take the results of these analyses into account when planning their operations and return activities. Furthermore, Frontex conducts operational risk analyses to support joint operations, which are meant to be objective. Yet there have been instances where political considerations have overruled decisions based entirely on risk analysis.
Moreover, Frontex risk analysis affects Member States' ability to access EU funding. Frontex influences permission for Member States to reinstate border checks at internal borders. It therefore serves as a ‘particular form of knowledge with an important political effect’.
Member States retain sole competence over final individual decisions. However, the obligation to consider Frontex analyses can effectively constrain their autonomy, at least procedurally.
In addition, Frontex conducts tasks that we could consider political, rather than technical or administrative. Activities such as the designing of data collection and analysis methodologies could entail political determinations of what constitutes a risk or threat for the EU.
Frontex is increasingly involved in shaping security cultures and pinpointing political priorities in the EU
The distinction between administrative and political tasks is not, however, completely clear-cut. Indeed, according to Carl Schmitt, ‘any decision about whether something is unpolitical is always a political decision’. As such, Frontex is increasingly involved in shaping security cultures, pinpointing political priorities, and developing foundational concepts like risk and threat, which all have an impact on EU and national policies.
The harmonisation of security practices through EU agencies introduces a level of administrative standardisation across the EU. This standardisation is essential for ensuring cohesive and efficient responses to transnational security threats. It enhances cooperation and trust among Member States, and empowers national agencies by providing them with access to greater resources and intelligence.
However, this centralisation of security standards and practices can also limit the autonomy – and legitimacy – of national administrations. It can constrain their ability to implement policies that deviate from established EU norms, and erode sovereign control over their internal security.
Perceived security needs and perceptions of the public good can be formed in the cooperative activities of the security actors involved. They need not follow a politically and democratically determined direction.
The regulation of crises, risks, and threats requires actors first to determine what these are. This is a political task, inevitably influenced by what the actors involved believe to be in the public interest.
As such, the prioritisation of matters in the public interest, through cross-jurisdiction socialisation and harmonisation of practices, might sidestep and pre-empt the ‘normal’ democratic deliberation process. This is particularly significant in the AFSJ, where legal harmonisation is challenging. Yet this is also where the practical coordination efforts of Frontex can achieve de facto harmonisation.
