With the reform introduced by the Treaty of Lisbon (ToL) in 2007, the Union has developed the competence in integrated management for the EU’s external borders. The underpinning idea is that, since Schengen abolished every internal control, external borders shall be subject to a more coordinated regulation by both the European Union and the Member States. Until now, the greatest use of the legal basis given by ToL has been made with the institution of the European Border and Coast Guard (EBCG), built on the existing Frontex.

Legal framework

The legal basis for the EBCG relies on

1. Article 77 TFEU, disciplining that “[1] The Union shall develop a policy with a view to: […] the gradual introduction of an integrated management system for external borders; [2] The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt […] any measure necessary for the gradual establishment of an integrated management system for external borders; …”.
2. The principles of subsidiarity (article 5[2] TUE) and proportionality (article 5[4] TUE), since the competence is shared with the Member States. At this regard – as for Schengen – Denmark, the UK and Ireland opt in case-by-case.

Frontex

The European Border and Coast Guard Agency was established with Regulation 2016/1624; while the “European Border and Coast Guard Agency” replaces the “European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union”, it has the same legal personality and the same short name (Frontex, indeed). It is currently seat in Warsaw, Poland. Frontex helps EU countries and Schengen associated countries manage their external borders. It also helps to harmonize border controls across the EU. The agency facilitates cooperation between border authorities in each EU country, providing technical support and expertise.

Frontex acts as a coordinator among Member States who have external borders; it does so by providing them additional technical support both in coordinating the deployment of technical equipment (aircrafts, boats and similar) and border staff. The agency also carries on maritime and external borders operations, as well as it is present in many international airports. Specifically, according to Reg. 2016/1624, Frontex has responsibility in the following areas:

• Risk analysis: all the operations are subject to a risk analysis shared with the Commission;
• Joint operations of deployment (staff and equipment, as mentioned above);
• Research, to meet the needs of new technologies in the field of external borders management;
• Training;
• Joint returns, developing best practices for returning migrants;
• Information-sharing.

Other Instruments

On the basis of the discipline set out under Article 77 TFEU, the EU has implemented other instruments alongside Frontex, to build a common framework of external borders management.

1. Eurosur, the European Border Surveillance System, that provides for “a common framework for the exchange of information and for the cooperation between Member States and Frontex in order to improve situational awareness and to increase reaction capability at the external borders of the Member States of the Union (‘external borders’) for the purpose of detecting, preventing and combating illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants”, as disciplined by Regulation 1052/2013;
2. Entry/Exit System: a system providing for the electronic registration of the entry and exit of third-country nationals admitted into the EU;
3. ETIAS, a system determining the eligibility of all visa-exempt third-country nationals to travel into the Schengen Area
4. A Status Agreement with Albania, allowing Frontex to develop operations in that country.

Currently under discussion

As for now (February 2019), several proposals are under discussion within the EU institutions, notable to mention: a proposed regulation to strengthen Frontex by creating a standing corps of 10 000 EU border guards and a proposal to adopt a Status Agreement with the former Yugoslav Republic of Macedonia, similar to the one mentioned in point 4 for Albania. Finally, the Commission has also proposed to set up a new EIBM Fund to financially support MSs in securing common external borders.

Federico Dante De Falco

For further information:

Frontex, “Programming Document 2018-2020”, Warsaw 2017-12-20, Reg. No. 29062

REGULATION (EU) 2016/1624 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC