Query concerning Frontex’s obligation to make information about the complaints mechanism readily available
Resumen de archivo - Caso Q3/2017/MDC - Abierto el Miércoles | 26 abril 2017 - Decisión de Viernes | 23 marzo 2018
Summary of query Q3/2017/MDC
Facts and background
On 5 April 2017, the (then) Spanish Ombudsman, wrote a letter to the European Ombudsman about Frontex’s obligation to make information about the complaints mechanism readily available. The Spanish Ombudsman explained that in her capacity as National Preventive Mechanism against Torture, she monitors Frontex repatriation operations of migrants in which Spain participates, in accordance with Article 8(6) of Directive 2008/115/EC (the Return Directive) and Articles 13 and 14 of the Frontex Code of Conduct for Joint Return Operations Coordinated by Frontex.
The Spanish Ombudsman pointed out that Frontex had set up a complaints mechanism which was available to repatriated persons who considered that their fundamental rights had been breached. The Ombudsman referred to the European Ombudsman’s Draft Recommendation in own-initiative inquiry OI/5/2012/BEH-MHZ.
The Spanish Ombudsman noted that she had recently monitored two Joint Return Operations coordinated by Frontex, in which Spain was the organising Member State. One operation occurred on 16 February 2017, involving flights to Tirana and Tbilisi and the other occurred on 15 March 2017, involving flights to Bogota and Lima. The Spanish Ombudsman stated that the following deficiencies were observed in the course of these and earlier operations:
a) the persons who were about to be repatriated were not informed of the existence of the complaints mechanism.
b) it was not possible for these persons to submit their complaints orally to agents bearing the Frontex emblem and for such complaints to be transcribed.
c) the complaint form was not available in hardcopy during the operations.
d) the complaint form was available in several languages on the website of Frontex but not in Spanish, despite the fact that some of these flights were destined for Latin America.
The Spanish Ombudsman requested that she be kept informed about any action that Frontex would take in response to the matters pointed out above.
On 20 and 25 April the European Ombudsman’s Office contacted the Spanish Ombudsman’s Office to discuss the query.
It was agreed with the Spanish Ombudsman Office that the following questions would be put to Frontex:
“As Frontex is the best-placed institution to address the issues raised by the Spanish Ombudsman, we would appreciate it if Frontex were to state:
(i) if Article 72(10) of Regulation (EU) 2016/1624 could be interpreted to mean that complaints may be submitted orally, during joint return operations coordinated by Frontex, to the Frontex representative(s) present on board;
(ii) if Article 72(10) of the Regulation could be interpreted as to require that the complaint form, including some information on the procedure for handling complaints, be made available in hardcopy in all joint return operations coordinated by Frontex, and
(ii) how Frontex interprets the requirement in Article 72(10) of the Regulation that the languages in which the complaint form shall be made available on the Agency’s website and in hardcopy should be the ones that third-country nationals understand or are reasonably believed to understand.“
On 22 May 2017 Frontex replied to the query. Frontex provided a negative answer to question (i). It submitted that “Article 72(10) must be read in light of Article 72(2)”, and concluded that an oral complaint is not admissible. Frontex elaborated its argument by stating that, when designing its complaints mechanism, it benchmarked against other EU and international bodies which do not allow for complaints to be submitted orally. Frontex explained the practical difficulties that would arise if it allowed oral complaints.
With regard to question (ii), Frontex agreed with the fact that Article 72(10) provides that the complaint forms should be made available in all Frontex activities, including return operations coordinated by Frontex. Frontex further stated that the complaint form contains information on the procedure for handling complaints.
In reply to question (iii) (about Frontex’s interpretation of the language requirement regulated by Article 72(10)), Frontex stated that the list of languages is not included in the Agency’s Rules on the Complaints Mechanism (‘the Rules’) because if this were the case, the Rules would need constant updating should the languages change. The Agency considered that this would be disproportionate and that, if there were several versions of them, this would make the Rules legally uncertain. Frontex added that, at the moment, the complaint form is available in six languages, and that more languages may be added should the operational need arise.
On 19 December 2017 the acting Spanish Ombudsman submitted his observations on Frontex’s reply.
The Spanish Ombudsman was not satisfied with Frontex’s reply. He found it unacceptable that the complaint form was not available in Spanish on the Agency’s website and in hardcopy. According to the Spanish Ombudsman, it was clear from the wording of Article 72(10) that this provision imposed an obligation on Frontex to make “the complaint form ... available... in languages that third-country nationals understand or are reasonably believed to understand”. This is why Frontex’s mere reference, in its reply to question (iii) of the query, to the fact that the list of languages is not included in the Rules, and the reference to ‘operational needs’, were disappointing.
In this regard, the Spanish Ombudsman highlighted the existence of return operations involving Spanish-speaking persons. Additionally, Spanish is the third most spoken language in the world, with 528 million persons speaking it. Consequently, the Spanish Ombudsman considered that it seemed more than reasonable that the complaint form should be made available in Spanish on Frontex’s website and in hardcopy. He also noted that Article 5(1) of the Rules provides that “[t]he Agency makes the complaint form available in the most common languages that third country nationals understand or are reasonably believed to understand”.
Finally, the Spanish Ombudsman stated that the wording of Article 72(10) of the Regulation showed an intention to avoid and correct fundamental rights breaches. In his view, this intention could be considerably weakened if a person could not make use of the complaint form “in languages that third-country nationals understand or are reasonably believed to understand”.
In view of the foregoing, the Spanish Ombudsman considered that the availability of the complaint form in Spanish should not be determined in accordance with operational needs but should, rather, be based on respect for fundamental rights. This was further confirmed by the objective of Frontex to “embed the respect and promotion for Fundamental Rights in the culture and activities of Frontex”.
On 12 February 2018, the Ombudsman received Frontex’s reply to the Spanish Ombudsman’s submissions. Frontex welcomed the Spanish Ombudsman’s arguments because, it said, they contributed to making the complaints mechanism more inclusive, in line with principles of good administration.
With regard to the issue of the ‘most commonly understood languages’ (Article 5(1) of the Rules), Frontex noted that the Agency collects data from the relevant units and then determines the need to have the complaint form available in a specific language. The process, carried out on a yearly basis, entails “compiling the nationalities of people arriving at the EU’s external borders wherever the ... Agency operates, as well as the countries to which people are most commonly returned with the support of the Agency.” Frontex stated that, following this assessment, a list of the most common languages of potential complainants is compiled internally.
The Agency noted that the complaint form was not mandatory and that complaints could also be sent in other languages, especially in the case of an EU language.
Finally, Frontex informed the Ombudsman that it had taken the initiative to translate the complaint forms into Spanish, Russian, Serbian and Albanian specifically for the purposes of return operations. It stated the complaint forms will become available on the website and in printed form. Frontex said that it would also make additional information available in the aforementioned languages. Frontex noted that it was available for further discussions on the development of the complaints mechanism.
Frontex’s reply was sent to the Spanish Ombudsman on 16 February 2018.
The European Ombudsman’s inquiry team checked Frontex’s website and was able to confirm that the complaint form and additional information are now also available in Spanish, Russian, Serbian and Albanian.
In view of the content of the reply, the implementation of improvements and the fact that the Spanish Ombudsman did not submit any further observations, it was concluded that the issues raised in the query had been adequately addressed and that the query could be closed
 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ 2008 L348, p. 98.
 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, OJ 2016 L 251, p. 1.
 Section II, 3.11 of the Programming Document 2017-2019, available at: http://frontex.europa.eu/assets/About_Frontex/Governance_documents/Work_programme/2017/Programme_of_work_2017.pdf
 It pointed out that, in 2017, the six most common languages spoken within the framework of return operations were Albanian, Serbo-Croatian, Arabic, Georgian, Russian and Spanish (spoken by 2% of those returned). In 2016, it was assessed that the most common languages spoken within the framework of the Agency’s joint operations were Arabic, English, French, Urdu, Tigrinya and Pashtu.
 According to Article 8 of the Rules on the Complaints Mechanism, the lack of availability of a form in a certain language does not constitute a reason of inadmissibility.