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The Ombudsman opened an inquiry on her own initiative to look into how the European Border and Coast Guard Agency (Frontex) deals with alleged breaches of fundamental rights through its ‘complaints mechanism’, and to address the role and independence of Frontex’s Fundamental Rights Officer in this regard.

In the context of a previous inquiry, the Ombudsman recommended the creation of an independent mechanism for handling complaints about Frontex operations. The complaints mechanism was approved by the EU legislators, and became operational in 2016.

Through the complaints mechanism, Frontex deals with complaints from individuals who believe their fundamental rights have been violated in the context of Frontex operations. The Fundamental Rights Officer’s role is to deal directly with complaints about the actions of Frontex staff members, as well as to ensure that complaints about the staff of national authorities involved in Frontex operations are dealt with properly by the relevant authorities. 

This inquiry aimed to assess how Frontex has implemented new rules concerning the complaints mechanism and the Fundamental Rights Officer, which came into force in November 2019. It also sought to assess the overall effectiveness of the complaints mechanism, against a background of public concerns about fundamental rights violations in the context of Frontex operations.

Since its creation, the complaints mechanism has dealt with a very low number of complaints, with no complaints as yet concerning the actions of Frontex staff members. Between 2016 and January 2021, the Fundamental Rights Officer had received 69 complaints of which 22 were admissible. With operations made up of staff members from different bodies, who are responsible to different authorities, it may be difficult for potential complainants to identify the alleged perpetrators and to understand how and to whom they can report alleged violations, and seek redress through the appropriate channels.

In this inquiry, the Ombudsman also reviewed complaints dealt with by the complaints mechanism and identified various potential shortcomings that may make it more difficult for individuals to report alleged fundamental rights violations and seek redress. The Ombudsman’s inquiry also identified delays by Frontex in implementing its new obligations concerning the complaints mechanism and the Fundamental Rights Officer.

Based on the inquiry, the Ombudsman sets out a series of suggestions for improvement to Frontex, with a view to improving the accessibility of the complaints mechanism for potential victims of fundamental rights violations and strengthening the accountability of Frontex operations and all those involved therein. These include suggestions on how to make it easier for potential victims of fundamental rights violations to be aware of redress possibilities and to report incidents, as well as suggestions to improve how complaints are handled and followed up on.

The cases concerned two requests for public access to documents detailing Europol’s contractual relations and communications with two companies providing a data analysis platform for the Agency. Europol refused public access, in part or in full, to most of the documents identified in the first request, arguing mainly that disclosure would undermine the protection of the public interest as regards public security. Europol refused public access to all the documents identified in the second request in order to protect public security and its internal decision-making process.

On the basis of an inspection of the requested documents, the Ombudsman considered that most of the information they contained would, if disclosed, be likely to undermine the protection of the public interest as regards public security. The Ombudsman did not consider that there were grounds to continue her inquiry as regards the very limited information that was not covered by that exception.   

While the Ombudsman identified a number of shortcomings in how Europol had dealt with the matter, overall she concluded that there was no maladministration by Europol in refusing public access to the documents at issue.

The case concerned the European Commission´s decision to reject a tender in a public procurement procedure for the translation of a report on the judicial reform in Cyprus. The complainant considered that the Commission had been wrong in rejecting his tender because it considered he did not meet the specifications for the required experience. In the complainant’s view, the Commission should have asked him for clarifications.

The Ombudsman found that the Commission acted reasonably, and closed the inquiry finding no maladministration. She trusts that, going forward, the Commission will ensure that unsuccessful tenderers receive an adequate explanation of the reasons why their tender has been rejected, without having to ask for clarification.

The case concerned the selection procedure for appointing a European prosecutor, part of the ‘College’ of the European Public Prosecutor’s Office (EPPO). The complainant is an unsuccessful candidate, who considered that there were irregularities in the selection procedure and the ad hoc ‘selection panel’s’ opinion to exclude his candidature for the position. In addition, the complainant did not receive a reply to concerns he raised.

In the course of the inquiry, the Ombudsman’s inquiry team took the view that there was a lack of clarity around possible review procedures and made a proposal for a solution and a suggestion for improvement to the Council of the EU. The Council rejected the proposals.

The selection procedure for the posts of European prosecutors lacks any mechanism providing for acts or omissions of the selection panel to be reviewed. There is clearly an accountability vacuum and the Council has missed an opportunity to enhance public trust in and the legitimacy of the selection procedure for these important posts. The solution proposal and suggestion for improvement would have helped address these shortcomings.

As the selection panel is not an EU body, which can be subject to an inquiry of the Ombudsman, and both the Council and Commission have refused to take responsibility for the actions of the panel, the Ombudsman considers that no further inquiries are justified and closes the case.

The complainant considered that the European Union Agency for Law Enforcement Cooperation’s (Europol) public register of documents did not comply with EU rules on public access to documents.

The Ombudsman commended Europol’s past efforts towards establishing a register of documents and took note of its distinct characteristics, but also found room for improvement. She therefore proposed that Europol should update its register according to certain principles.

Europol agreed with the Ombudsman’s proposal and committed to take specific steps to implement the proposal in the short and medium term. The Ombudsman welcomed Europol’s decision to accept her proposal for a solution, and closed the inquiry.

The case concerned the European Border and Coast Guard Agency’s (Frontex) public register of documents. The complainant contacted Frontex and argued that its register of documents did not comply with EU rules on public access to documents, and that Frontex had not included information about sensitive documents in its annual reports on public access. The complainant also took issue with Frontex’s policy by which non-EU residents do not, under normal circumstances, have the right to request public access to documents. Frontex replied to the complainant but did not commit to making any changes.

The Ombudsman commended Frontex’s past efforts towards establishing a register of documents and took note of its distinct characteristics, but also found room for improvement. She therefore proposed that Frontex should update its register according to certain principles. She also proposed that Frontex should publish the number of sensitive documents it holds that are not included in the register, as required by the applicable rules.

Frontex agreed with the Ombudsman’s proposal and laid out a number of steps it intends to take to implement the proposal in the short, medium and long term. The Ombudsman welcomed Frontex’s decision to accept her proposal for a solution and, given that she also found no maladministration in relation to how it deals with requests for access from non-EU residents, closed the inquiry.