Select Committee on European Union Ninth Report

CHAPTER 3: The Establishment of Frontex

Background to the Frontex Regulation

49.  The proposal for a European Border Guard which we considered in 2003 can be seen with hindsight to have been too ambitious, and never likely to succeed in that form at that time. But many of the documents proposing such a border guard, and many of the Councils at which they were considered, were also putting forward the less radical alternative of increased cooperation between national border guards.

50.  On 7 May 2002 the Commission presented to the Council and the European Parliament a Communication entitled "Towards integrated management of the external borders of the Member States of the European Union".[26] While the ultimate aim was the establishment of a "European Corps of Border Guards", the Communication proposed as the preliminary steps the consolidation and codification of common rules and standards for external border controls, the creation of an "External Borders Practitioners Common Unit", and other mechanisms for cooperation and the sharing of financial burdens.

51.  There was something in this Communication for all the Member States, since those which were sceptical about the long-term aim of setting up a European Border Guard could still support the suggested preliminary steps. The European Council, meeting in Seville the following month, "applauded" the plan. The conclusions referred to "the intention expressed by the Commission of continuing to examine the advisability of such a [European] police force." Thus it remained unclear whether the long-term aim was to establish an operational force or whether "integrated border management" would stop short of that. On the basis of a report by the LIBE Committee, in December 2002 the European Parliament also approved the plan. The European Council returned to the issue at Thessalonica in June 2003, inviting the Commission "to examine in due course … the necessity of creating new institutional mechanisms, including the possible creation of a Community operational structure, in order to enhance operational cooperation for the management of external borders."

52.  On 20 November 2003 the Commission put forward the proposal for a Council Regulation establishing a European Agency for the Management of Operational Cooperation at the External Borders,[27] and the Council adopted the Regulation establishing Frontex on 26 October 2004.[28] On 26 April 2005 the Council decided that the seat of Frontex should be at Warsaw.[29] In accordance with Article 34 of the Regulation, Frontex took up its responsibilities on 1 May 2005. On 25 May General (then Colonel) Ilkka Laitinen was appointed as Executive Director, and on 3 October 2005 Frontex became operational.

53.  In the course of the last two and a half years Frontex has begun to chart a distinct course, but it is far from set in its ways. There are a number of different directions in which it could turn. The Minister thought the timing of our inquiry was "very auspicious";[30] we hope this report comes at a time when we can influence the agency's development.

The legal position of the United Kingdom

54.  The Frontex Regulation itself states that "This Regulation constitutes a development of the provisions of the Schengen Acquis in which the United Kingdom does not take part … The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application."[31]

55.  The United Kingdom is indisputably not a full Schengen State, nor likely to become one in the foreseeable future. The Schengen States maintained that the Frontex Regulation was a Schengen-building measure, so that the United Kingdom could not be a Frontex State. This was not at all to the liking of the Government. Just as, in the case of Schengen, the Government would like to have the benefits of being a Schengen State without weakening the United Kingdom's external borders, so they would like to participate fully in the organisation and running of Frontex.

56.  United Kingdom Ministers have always shown support for Frontex. In the Conclusions of the meeting of the G6 interior ministers at Stratford-upon-Avon in October 2006, chaired by Dr John Reid MP when he was Home Secretary, "Ministers … underlined their commitment to controlling migration and tackling illegal immigration … and called on Frontex to be given the necessary support to coordinate meaningful EU level action in this area". Dr Reid subsequently wrote to the same effect to the Minister of the Interior of the Finnish Presidency.[32]

57.  Within three months of the Commission submitting to the Council its proposal for the Frontex Regulation, the Government, on the basis of Article 5(1) of the Schengen Protocol to the Treaty of Amsterdam, notified the Council of their wish for the United Kingdom to participate in the adoption of the Regulation. Having been rebuffed, the Government applied to the Court of Justice for a ruling that the Council acted unlawfully in so doing.

58.  On 10 July 2007 Advocate General Trstenjak proposed that the Court should dismiss the application, and in a judgment delivered on 18 December 2007 the Court—ruling in Grand Chamber—unequivocally ruled against the United Kingdom. On the principal argument, the Court ruled that the United Kingdom and Ireland cannot be allowed to take part in the adoption of a measure under Article 5(1) of the Schengen Protocol without first having been authorised by the Council to accept the area of the acquis on which that measure is based. It stressed that the United Kingdom interpretation would deprive Article 4 of the Protocol of all effectiveness.

59.  The United Kingdom's secondary argument was that there is a distinction between measures which are integral to Schengen and measures which are merely related to Schengen. The Court said that this distinction "has no basis either in the EU and EC Treaties or in secondary Community law'. The Court nevertheless examined the legal basis of the Frontex Regulation to establish whether it properly fell within the Schengen Protocol or whether it was a more general Title IV measure (with the Title IV Protocol applying, which gives the United Kingdom a unilateral option to opt in). The Court found that the Regulation is indeed a Schengen building measure.

60.  In evidence to us in connection with our inquiry into the impact of the Treaty of Lisbon Kevan Norris, a Home Office lawyer, referred to the legal basis of the Court's ruling and said that there was nothing in the Protocols to the Treaty of Lisbon which would change this position.[33] It seems to us therefore that for the present the United Kingdom has to accept that, not being a full Schengen State, it cannot play a full role in Frontex. Subject to that legal limitation, the Government should ensure that the United Kingdom participates effectively in the development and operation of Frontex.

Gibraltar

61.  The Frontex Regulation does not apply to the borders of Gibraltar because, as recital (28) delicately states, "A controversy exists between the Kingdom of Spain and the United Kingdom on the demarcation of the borders of Gibraltar". While Article 12(1) provides for the cooperation of the United Kingdom in Frontex operations, Article 12(3) reads: "The application of this Regulation to the borders of Gibraltar shall be suspended until the date on which agreement is reached on the scope of the measures concerning the crossing by persons of the external borders of the Member States"—a date which shows no sign of approaching.

62.  We received from the Government of Gibraltar evidence of its "extreme disappointment" at being excluded even from the ambit of the United Kingdom's limited participation under Article 12(1) (p 153). The evidence refers to lengthy exchanges of correspondence between the Government of Gibraltar and the Foreign and Commonwealth Office stretching from December 2003 to July 2007. We include with the evidence a press release issued by the Government of Gibraltar on 30 July 2004, once it became clear that Gibraltar would not be able to participate even to the extent that the United Kingdom was able to. Gibraltar's chief fear was that, if the United Kingdom were allowed to participate fully in Frontex, its own total exclusion from a measure on external frontiers would further harm its arguments over where that frontier is to be drawn. Perhaps the only favourable outcome of the judgment of the Court of Justice is that this situation has not arisen.

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26   COM(2002) 233 final.  Back

27   COM (2003) 687 final. Back

28   Council Regulation (EC) N0 2007/2004 establishing a European Agency for the Management of Operational Co-operation at the External Borders of the Member States of the European Union, OJ L349 of 25 November 2004, p.1. We refer to it as "the Frontex Regulation". Back

29   2005/358/EC: Council Decision 2005/358/EC of 26 April 2005 designating the seat of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. Back

30   Byrne Q 450. Back

31   Recital (25). Back

32   See our report After Heiligendamm: doors ajar at Stratford-upon-Avon, 5th Report, Session 2006-07,
HL Paper 32, Appendices 3 and 5. Back

33   Q E518. Back