Frontex actions beyond EU borders : status agreements, immunities and the protection of fundamental rights

Abstract

Reg. (EU) 2019/1896 confers upon Frontex the power to deploy border management teams from the standing corps to any third country. It also provides for the conclusion of a status agreement between the EU and the third country concerned, on the basis of art. 218 TFEU, in cases where team members exercise executive powers on the latter's territory. Besides setting out the scope of the operations and the tasks and powers of Frontex team members, status agreements also contain provisions on their civil and criminal liability. In particular, members of the team enjoy immunity from the jurisdiction of the partner country in respect of the acts performed in the exercise of their official functions in the course of the actions carried out in accordance with the operational plan. At the same time, reg. (EU) 2019/1896 states that the Agency is bound by EU law ﾖ including the fundamental rights protection acquis ﾖ where cooperation with third countries takes place on the territory of those third countries. To this aim, both the regulation and status agreements contain various safeguards, among which a previous fundamental rights situation assessment by the Commission, the setting up of a complaints mechanism, a special role assigned to the Agency's fundamental rights officer and the creation of the fundamental rights monitor. The new model status agreement enacted by the Commission in December 2021 contributes to strengthen this toolkit. Against this background, the present contribution analyses the legal remedies at disposal of people, especially third country nationals, claiming to have their fundamental rights been violated as a result of Frontex executive operations carried out beyond EU borders. The analysis assesses the possibility to strike a balance between the effective protection of fundamental rights and the provisions concerning immunities of Frontex border guards.