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Decision in OI/5/2020/MHZ on the functioning of the European Border and Coast Guard Agency's (Frontex) complaints mechanism for alleged breaches of fundamental rights and the role of the Fundamental Rights Officer

Tuesday | 15 June 2021

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.

Decision in case 233/2021/OAM on how the European Border and Coast Guard Agency (Frontex) dealt with a request for public access to documents concerning tracking data of vessels used in Frontex maritime operations

Tuesday | 30 March 2021

The case concerned the European Border and Coast Guard Agency’s (Frontex) refusal to grant public access to tracking data of several vessels used in its maritime operations in the Aegean Sea. The complainant sought access to specific types of data regarding the location of the vessels. Frontex initially identified several documents containing location information but refused to grant public access on the grounds that doing so would undermine the public interest as regards public security. In its final reply, Frontex stated that it did not hold any documents containing the specific data requested.

The Ombudsman inquired into the issue and confirmed that Frontex did in fact not hold documents containing the specific data requested. She nevertheless assessed the substantive position set out by Frontex with respect to documents containing similar data, among others vessel positioning data, and found that the refusal was justified.

The Ombudsman called on Frontex to ensure a consistent approach when replying to requests for public access to documents. In particular, Frontex should be diligent in verifying what documents are in its possession and offer comprehensive explanations to applicants.