Date: Tuesday, 21 November 2023

European Border and Coast Guard Agency, plac Europejski 6, 00-844 Warszawa, Poland

Present

European Ombudsman representatives

Marta Hirsch-Ziembinska, Principal Adviser on Charter compliance

Jennifer King, Legal expert

Richard More O’Ferrall, Inquiries coordinator

Frontex representatives

Fundamental Rights Office (FRO)

FRO SIR (Serious Incident Report) Coordinator

Team Leader FRO.MAS (Multipurpose Aerial Surveillance)

FRO Deputy SIR Coordinator

Situational Awareness and Monitoring Division (SAMD)

Senior Team Leader/ Acting Head of Frontex Surveillance Sector

Shift Leader 24/7 Situation and Crisis Monitoring/ Acting Head of Monitoring Hub

Shift Leader - 24/7 Situation and Crisis Monitoring

Frontex Surveillance Asset Expert and Flight Safety Officer

Service Management Officer

Operational Response Division (ORD)

3 Coordinating Officers

Operational Officer

Purpose of the meeting

The purpose of the meeting was for the Ombudsman inquiry team to gain a better understanding of the procedures and practices of Frontex in the context of its surveillance activities, in particular concerning the detection of vessels in a “state of emergency” with migrants on board. These surveillance activities take place under the auspices of both joint operations and the EUROSUR integrated framework.[1] The meeting also aimed to clarify the framework within which Frontex cooperates with national authorities in the context of its surveillance activities and search and rescue operations (SAR operations), as well as the role of aerial and maritime assets financed or co-financed by Frontex. In addition, the meeting aimed to clarify whether there is a protocol with NGOs providing information to Frontex on vessels carrying migrants.

Introduction and procedural information

The Ombudsman inquiry team introduced themselves, thanked Frontex’s representatives for meeting with them and set out the purpose of the meeting. They outlined the legal framework that applies to meetings held by the Ombudsman, in particular, that the Ombudsman would not disclose any information identified by Frontex as confidential without Frontex’s prior consent.^[2]

The inquiry team explained that it would draw up a draft report on the meeting to be sent to Frontex to ensure that the contents were factually accurate and complete. The meeting report would then be finalised and included in the file.

Meeting-procedural steps

In advance of the meeting, the Ombudsman sent Frontex a list of questions that the inquiry team intended to ask at the meeting. The request also included a request to inspect relevant documents.

On the day preceding the meeting, Frontex facilitated the inspection of the relevant documents at its offices in Warsaw and also provided its written replies to some of the questions. The Ombudsman inquiry team inspected the documents, which were designated sensitive under Frontex’s internal classification system.

The written replies received from Frontex were used as a basis for the discussion in the meeting and were further expanded on, as described under the headings below in the annex.

Conclusion of the meeting

The inquiry team thanked Frontex’s representatives for their time and for the explanations provided, and the meeting ended.

 

Brussels/Strasbourg, 29 November 2023

Marta Hirsch-Ziembinska                                                                                  Jennifer King

Principal Adviser on Charter compliance                                                  Legal Expert

Richard More O’Ferrall

Inquiries coordinator

 

Annex on the information exchanged (not confidential)

General information

At the outset of the meeting, Frontex representatives provided an explanation of Frontex’s role under joint operations and in terms of Multipurpose Aerial Surveillance (MAS) under the EUROSUR integrated framework. Joint operations take place only within specific operational areas set out in the respective operational plans agreed with the host Member States. Those operational plans set out that the resources deployed by Frontex have the obligation to provide assistance to any vessel or person in distress at sea (SAR operations) and must follow instructions (including instructions to stay away) of the Rescue Coordination Centre (RCC) mandated to coordinate the rescue. MAS activities conducted as part of EUROSUR or EUROSUR Fusion Service (EFS) activities^[3] take place under a different framework. These activities are carried out exclusively by aerial assets and are based on ‘service requests’ from Member States and focus on the pre-frontier area[4]. The representatives explained that assets that are deployed as part of joint operations may, where the need arises, be used in surveillance activities outside the designated areas of the joint operation based on the proximity of the assets and upon agreement of the Member State authority hosting the joint operation.

Under the MAS framework, each surveillance flight takes place following a draft operational order planned one day before. Frontex’s representatives explained that service requests from Member States are a form of commitment, whereby those states seek support from Frontex depending upon their specific needs. In their view, these service requests do not impose binding obligations akin to a contract, as there may be instances where Frontex is unable to provide the service requested. This may be due to technical, financial or operational reasons, for example, ”airframe technical limitation” (technical limitations depending upon the nature of the aerial asset) or weather conditions[5] .

The Ombudsman inquiry team referred, in this context, to an incident involving the Maltese authorities, where the national authority insisted that the limitations in the service request were binding on Frontex such that the agency was not permitted to conduct MAS within the Maltese SAR area without the formal consent of the Maltese authorities. The Frontex representatives confirmed that, arising from that incident and following discussions with the Maltese authorities, the limitation was removed from subsequent Maltese service requests. Furthermore, following discussions with Member States, the service request form now includes two statements: (i) that the activities carried out under the terms of the request must comply with fundamental rights, namely, with EU human rights law and the principles deriving from EU asylum law, including concerning the determination of the places of safety (when applicable) and (ii) that there are no territorial limitations to its surveillance activities. 

The Frontex representatives also explained who is present in its European Surveillance Room in Warsaw. The European Surveillance Team (EST), coordinated by a team leader, is responsible for monitoring ongoing MAS activities. The EST includes, in general - depending on the national legislation regarding the coast guard functions of the state requesting the service - one national expert from law enforcement, one national expert with search and rescue (SAR) expertise (these two roles can be merged into a single expert) and a ‘reporting officer’ from Frontex. For surveillance of vessels in possible emergency situations, the SAR expert liaises with the national rescue coordination centre (RCC). A fundamental rights monitor (FROM) may also be present or at least contactable to provide advice concerning fundamental rights issues. This composition in the European Surveillance Room remains constant regardless of the Member State involved. Where a RCC designates an incident as a SAR and assumes the responsibility for coordinating the operation, there may be no requirement for Frontex to consult the relevant national experts within the EST.

In reply to questions asked about how Frontex follows up on recommendations made by the FRO or its Management Board, for example in the Fundamental Rights Action Plan, Frontex explained that such recommendations are taken into account when implementing MAS activities.

In final ‘serious incident reports’ (final SIRs) issued following an investigation into incidents at sea in which Frontex was involved, the FRO may also set out recommendations. Where recommendations concern practical improvements at services level on how Frontex carries out its operations, these are immediately implemented, to the extent that they are feasible in a legal and practical sense. Recommendations in final SIRs, addressed to the Member States, usually need to be addressed at a political level. In addition, Frontex representatives stated that the operational units and the FRO have weekly meetings to discuss and ensure implementation of the recommendations set out in the Action Plan and SIRs.

Designation of emergency status

General

Frontex has no specific internal rules or guidelines on the designation of the status of emergency situations since SAR situations are within the competence of the responsible RCC. The procedures on SAR situations are defined in EU and international law, including the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual.

Where Frontex aerial surveillance detects vessels in potential emergency situations, the relevant details that can be observed - sea state, course and speed of the boat, sea worthiness, level of occupancy visible, buoyancy, information from thermal imagery, visible presence of life saving devices - are noted in the sighting report. Such information is immediately communicated to the RCC responsible for the search and rescue region (SRR) in which the event takes place, other relevant RCCs and entities involved in the ongoing situation and to the Fundamental Rights Office.

Where a Frontex surveillance asset records the first sighting of a vessel in a potential emergency situation, Frontex will maintain a “monitoring posture” waiting for instructions to be provided by the relevant RCC. Only the RCC can designate the emergency status of the vessel (that is, distress - the most serious phase of a maritime emergency). Nevertheless, the Frontex surveillance asset (FSA) on site might broadcast a Mayday call on behalf of the vessel (a Mayday Relay) if there is clear evidence of a risk to life, for example, if there is a fire, an imminent risk that the vessel will sink, the presence of people in the water, if the boat is adrift and if others are not aware of the incident, etc. This Frontex does on a regular basis. To illustrate this, Frontex representatives referred to a particular incident, in which Frontex was the first to locate the vessel at imminent risk of sinking. In that case, the boat was in a clear state of emergency. Frontex notified the rescue coordination centre (RCC) responsible for the SRR in which the event took place and broadcast a Mayday call on behalf of the vessel until the relevant RCC assumed coordination. However, where a RCC is already aware of and involved in following up on a sighting or alert of a vessel, the Frontex aerial asset maintains a monitoring posture, providing regular updates, unless otherwise instructed by the coordinating RCC. Frontex does not designate the emergency status. This is the responsibility of the “competent” RCC: the coordinating RCC in whose SAR area the vessel is.

When assessing the status of a vessel, Frontex can take into account only the factual evidence it has gathered/discovered with its surveillance. Even if other parties (boats, RCCs, third party actors such as NGOs) have relayed information, Frontex cannot take this into account since the overall competence for the coordination of SAR events remains with the RCC. Frontex cannot coordinate SAR operations on its own initiative. When Frontex receives information about the alleged condition of a boat or of the passengers on board including from NGOs, it seeks to verify that information from other sources, including the national experts of the European Surveillance Room that have a role in facilitating the communication with the Member States’ RCCs.

Specific incidents in SIRs inspected

Adriana:

Eagle 1 (manned aircraft) was on a surveillance mission in the context of Joint Operation (JO) Themis. Following a communication between the Italian RCC and the Greek RCC, for which Frontex was included in copy, about the overcrowded fishing vessel in a potential emergency situation, Frontex instructed Eagle 1 to go to the coordinates provided, even though it was outside the JO and mission flight plan. Eagle 1 was at the end of its fuel load. Once Eagle 1 detected Adriana, it conveyed live video imagery to the European Surveillance Room (ESR), the International Coordination Centre for JO Themis, the Italian Rescue Coordination Centre and the Italian National Coordination Centre for EUROSUR.  The live streaming was also conveyed to the ESR and thus made available to the national experts from Greece and Italy.

Crotone:

As part of its surveillance in the context of JO Themis, Eagle 1 (see above) detected a “pleasure boat”. Due to strong winds, Eagle 1 had to return to base. The information it collected, which was included in the sighting report, was conveyed to the relevant Italian authorities.

Issuance of Mayday signals

General

Frontex’s representatives explained that recommendation 14[6] in Frontex’s Fundamental Rights Action Plan concerns MAS activities. Frontex has no specific internal rules or guidelines on the issuance of Mayday signals - the international legal framework for SAR including the IAMSAR manual, referenced above, applies.

Frontex’s representatives indicated that the EST team leaders receive specific training on SAR legal framework and aircraft coordination in case of SAR events. Although Frontex is not an RCC, understanding the mechanisms governing the SAR operations is essential to ensure Frontex can provide the best support in such cases to the relevant authorities. Such decisions to issue a Mayday call on behalf of a vessel are made by the EST team leader after consultation with the national experts which are part of the EST, and in accordance with the applicable legal framework (EU and international law). The EST includes ‘search and rescue experts’, who facilitate the communication with Rescue Coordination Centres and contribute to the assessment of the cases.

In accordance with the applicable legal framework, Mayday signals on behalf of a vessel are issued when there is an imminent danger to life, based on the verifiable information identified by Frontex in the context of its surveillance. Frontex has issued Mayday signals on behalf of a vessel, based on its surveillance, on a number of occasions. Typically, this would be where a boat was in a severe state of non-sea worthiness and about to sink or where there are already people in the water, when the boat is adrift, on fire or when overcrowded with severe weather conditions persisting in the area: in other words, in situations where there is an imminent danger to human life.

In taking such a decision, Frontex must take into account all factors. Where a Mayday call on behalf of the vessel is issued, the coordinating RCC will consider all available options including  directing vessels in the vicinity to assist in the search and rescue operation (SAR). The RCC is the sole entity in charge of coordinating the SAR operations and in this context, the use of a Frontex surveillance asset may not be required. The RCC implements the SAR plan based on its needs assessment of what assets are to be deployed. In that context, Frontex representatives stated that the Frontex surveillance asset is not a SAR unit in that it cannot conduct rescue operations. As such, the decision to issue a Mayday call on behalf of a vessel must be made only where there is a clear and imminent risk to life.

Given the often high number of migrant boats crossing the sea (on one day, Frontex surveyed 90 separate overcrowded boats), Frontex’s representatives stated that it would be neither possible nor, in their view, advisable to issue a Mayday signal on behalf of each one of the vessels based solely on detection. This could have a significant impact on the relevant RCC called upon to intervene in several cases with no possibility to formulate an order of priority of the specific cases.

Furthermore, where a SAR operation is already declared/underway, or a coordinating RCC is already aware of (and assumed to be in charge of) an emergency situation, it is up to that RCC to coordinate the SAR activities. A third party issuing a Mayday signal on behalf of a vessel that is not in a clear state of emergency could interfere with an ongoing SAR operation creating potential miscommunication and confusion for the coordinating authority and maritime/aerial assets operating nearby.

Frontex’s representatives stated that each case is assessed based on its own specificities in light of the provisions of the international legal framework governing SAR and that it is challenging to lay down more detailed guidance on when to issue a Mayday signal on behalf of a vessel as it may unnecessarily constrain the reflection necessary in making any decision. Frontex also does not take into account the identity of the RCC involved in its decision on whether or not to issue a Mayday signal on behalf of a vessel as this would amount to an audit of the national authorities and would overstep Frontex’s mandate.

Specific incidents in SIRs inspected

The SIRs inspected by the inquiry team included examples where the Frontex European Surveillance Team had issued Mayday signals on behalf of a vessel.

Adriana: Taking into account the general considerations described above, members of the Frontex surveillance sector stated that it had not been considered necessary by the EST to issue a Mayday signal on behalf of the vessel. While the boat was overcrowded, there was no evidence of a state of emergency on board and no indication that there was an imminent danger to human life.

Surveillance/presence at ongoing emergency situations

General

Frontex’s representatives explained that recommendation 13[7] in Frontex’s Fundamental Rights Action Plan (Action Plan) concerns MAS activities. Frontex has no internal rules or guidelines on the designation of the emergency status of vessels it detects during its surveillance as only the coordinating RCC has this competence. Frontex’s representatives indicated that EST team leaders are sent on training to improve their situational awareness when facing situations in which a Frontex surveillance asset is engaged in support of SAR events.

Where Frontex, through its planned surveillance activities (either through EUROSUR or joint operations) becomes aware of a vessel in an emergency situation, it will try to continue its surveillance for as long as possible. This is in line with the recommendations set out in the Fundamental Rights Action Plan and other guidance.

It may be obliged to discontinue surveillance due to (a) practical constraints - fuel or weather conditions; (b) the need to monitor other  emergency situations, where instructed by the coordinating national authority; (c) the risk that ongoing surveillance may pose additional/alternative risks to safety and human life (of the crew or other vessels in the area); (d) if it is instructed to discontinue surveillance by the coordinating authority, which has control over the entire area, including airspace; (e) related to (d), where airspace restrictions are put in place (Notice to Air Missions or NOTAMs).

Once a national authority has taken over coordination of an emergency situation, or started a SAR operation, the national RCC is in charge of organising which assets contribute what support. The RCC is always aware of (a) what assets Frontex has at its disposal and (b) the existing flight plans of Frontex surveillance assets. As such, Frontex could/would contribute aerial surveillance to an emergency situation already under the coordination of a national RCC only if it was (a) requested to do so by the RCC or (b) this was on the route of the existing flight plan of an asset, and the RCC does not have a NOTAM in place that restricts access to the area or agrees that the asset proceed on route to the specific location without jeopardising the ongoing SAR operations.

Where a coordinating RCC does not request Frontex assets to contribute to an ongoing SAR operation, Frontex may proactively contact the RCC to notify them of what assets it has available and its willingness to divert assets to assist. Frontex cannot unilaterally divert aerial surveillance assets into the area of an ongoing SAR operation being coordinated by the relevant national authority. This could create safety risks for assets involved in the SAR (in most cases a NOTAM will be in place) and would also exceed Frontex’s mandate and impinge on the coordinating mandate of the RCC.

As part of joint operations, Frontex has co-financed deployment of maritime assets (vessels/boats) that could be made available to assist in the context of an ongoing SAR operation, if requested to do so by the competent RCC. The maritime assets deployed by Frontex have different capacities depending on their type of technical features. Such assets do not always have the range or capacity to contribute to longer range SAR operations beyond the coastal waters. In the context of joint operations, Frontex may also co-finance the participation of assets owned by national authorities. This could also mean that such assets are involved in SAR activities, if requested to do so by the competent RCC.

Specific incidents in SIRs inspected

Adriana: As mentioned above, Eagle 1 was coming towards the end of its mission (and its fuel pay load) under JO Themis when it was instructed to go to the coordinates of the Adriana. Eagle 1 stayed with the Adriana for as long as possible, leaving only when it reached ‘bingo fuel’, that is when it had to return as it had run out of fuel.

At various occasions, starting from 16.35 UTC on 13 June 2023, Frontex contacted the Greek authorities offering the support of its surveillance aircraft to assist with the Adriana incident. The Greek authorities never responded positively to this. At 18.45 UTC on 13 June, a Frontex remote piloted aircraft (Heron 2) took off, as scheduled under its flight plan, to undertake surveillance activities in the context of EUROSUR. Its flight pattern was scheduled to be performed inside the Greek SAR area, where the Adriana was located. This flight pattern had been submitted to the Greek authorities the previous day and no objection was received. The intended flight pattern was also discussed during the pre-flight operational briefing involving also the Greek national expert being part of the Frontex’s European Surveillance Team. At 18.50 UTC on 13 June, the Greek authorities asked Frontex to send Heron 2 to survey another vessel (an overcrowded sailboat off the coast of Crete). The EST identified a NOTAM in place in a designated area covering the ongoing SAR operation involving the Adriana. At 23.20 UTC, Heron 2 resumed its flight plan and Frontex directed it to the last known coordinates of the Adriana (which was inside the Heron 2 flight pattern established for that day).

According to Frontex representatives, Frontex did all it could, taking into account the general information above. It even went beyond its standard activities, both by directing Eagle 1 to leave the operational zone of JO Themis to initially survey the Adriana and then by repeatedly offering the Greek authorities its aerial assets to assist with the SAR. The latter was an additional proactive initiative not normally undertaken. Frontex’s representatives emphasised that, when Eagle 1 left the location of the Adriana, two RCCs were aware of the sighting, one of which was the national authority responsible for the SRR where the incident occurred.

Crotone: Eagle 1 detected the “pleasure boat” and relayed the information to the Italian authorities which were receiving the live streaming video of the pleasure boat. The emergency situation developed later when Eagle 1 was no longer on scene.

After the shipwreck had occurred, Frontex offered to bring forward the take-off of Eagle 1 to assist in the SAR operation. The Italian authorities did not respond to this and only later asked it to assist with the search efforts.

Limitations through service requests

In the context of the inspection of documents, the Ombudsman inquiry team became aware that the ‘service request’ under which Frontex makes available the provision of surveillance activities to one Member State, included limitations on the possible surveillance activities of Frontex.

Frontex representatives explained during the meeting that concerns about the provisions in this service request had also been raised by the FRO and that Frontex had updated its service request forms to ensure that such limitations are not included.  In addition, following discussions with Member States, these service request templates also contain a statement that the activities carried out must comply with fundamental rights as regards search and rescue and non-refoulement.

Interaction with coordinating national authorities during ongoing SARs

General

Where Frontex sends sighting reports and is aware of an ongoing SAR, it seeks updates from the coordinating RCC in the context of its offers of assistance. However, there is no obligation on national authorities to provide updates or information to Frontex. The Frontex representatives explained that, during an ongoing SAR, the relevant national experts in Frontex’s European Surveillance Team may have privileged access to national ICT systems. This does not mean, however, that they will have access to the full coordination picture of the ongoing SAR operation and may thus not be in a position to update Frontex.

Specific incidents in SIRs inspected

Adriana:

In tandem with Frontex’s repeated offers to assist with the ongoing SAR operation, Frontex also asked for updates from the Greek authorities but did not receive any. The national expert in the European Surveillance Team, who is a member of the Hellenic Coast Guard, was also in contact with Greek RCC.

Follow up to fundamental rights recommendations

In addition to the recommendations on surveillance (stay on site) and Mayday signals on behalf of a vessel, raised above, the Ombudsman inquiry team asked more generally about the follow up to recommendations by the FRO and in the Fundamental Rights Action Plan and other documents. Frontex representatives stated that they implement everything that can be implemented. Where the recommendations overlap with other policies, or with the mandates and responsibilities of national authorities, it may not be possible to implement recommendations. But there is good cooperation with the FRO and Frontex tries to work with the FRO to implement recommendations.

Use of cameras on co-financed assets

General

As mentioned above, in the context of joint operations, there are assets pledged by Member States during the ‘annual bilateral negotiations’ and deployed to a joint operation. There are assets owned or leased by Frontex, and there are host Member State assets that may be co-financed when they participate in the joint operation. The latter are obliged to have body-cameras and to use these when they are participating in activities under a joint operation. Frontex’s representatives stated that the problem of not using body-cameras on co-financed assets is more widespread than JO Poseidon. The FROMs’ own mission reports show that within JO Poseidon cameras are not properly used by the Greek authorities. Those reports document a list of actions to try and ensure that such body-cameras are properly used given the duty to report alleged breaches of fundamental rights and where such recordings are a key instrument. In addition, the FRO referred to data protection constraints in certain Member States, whereby even if recordings exist they are retained for only 15 days. The FRO is considering how best to address this short retention period.

Specific incidents in SIRs inspected

Adriana: The Hellenic Coast Guard boat N920, which was at the scene of the shipwreck, was not a co-financed asset under JO Poseidon at the moment of the incident. Frontex agrees on the type, number and periods that the host Member State assets will be co-financed and the Hellenic Coast Guard decides which concrete assets will be assigned. While it may receive co-financing where it participates in activities under JO Poseidon, this was not the case in the Adriana incident: the N920 was involved in a SAR coordinated by the Greek national authorities in the Greek search and rescue area (not in the operational area of JO Poseidon). Thus, reports stating that the boat was co-financed by Frontex are not accurate. Its acquisition may have been financed by the EU under the Internal Security Funds. However, in this case, it would be for the European Commission to ensure that Greece complies with its fundamental rights obligations, as well as any provisions on the use of cameras.

Crotone: One of the Italian coast guard boats involved in the SAR operation was co-financed by Frontex for its activities in the SAR. Frontex representatives could not provide further detail on this.

Role of the FRO in surveillance and ongoing SAR situations

According to the various internal rules and procedures setting out the basis for Frontex’s surveillance activities, the FRO is part of the EST (the FRO has a “seat” there) and should be present, to the extent possible, to provide advice in the context of such surveillance activities.

The Ombudsman inquiry team established that no FRO representative was present in the European Surveillance Room at the time of the Adriana shipwreck and as regards the incident near Crotone. In the case of the Adriana, the surveillance took place during normal working hours (in the morning), as did some of the subsequent attempts to contact the Greek JRCC, however the shipwreck occurred during the weekend. In the case of Crotone, the incident occurred during the weekend. In both incidents the assigned on-duty FROM followed up with the Team Leader.

The Ombudsman inquiry team asked why the FRO is often not permanently present, given the issues at stake, in particular due to the clear benefits of having fundamental rights advice in the context of an ongoing incident, rather than retroactively, after a potential violation has occurred.

The FRO explained that, due to limited human resources and the fact that the fundamental rights monitors can only be present during working hours as they do not work in shift and that they are also required to assist in other aspects of Frontex’s operations, it is not possible to provide a constant presence in the Surveillance Room. FRO representatives are therefore often not present. However, every week for the last two years, the FRO.MAS Team sent an email to the European Surveillance Team to inform them who is the FROM assigned to monitor the MAS activities from Monday to Friday (9.00 to 17.30) with a backup for the weekend. In addition, the FROMs are in copy of all sighting reports and have access to all relevant information, including the real time streaming from the FSA. When not present in the European Surveillance Room, the assigned FROM regularly checks the sighting received in real time by email and interacts twice a day with the team leader.

Aware of the above-mentioned limitations, the FRO is working with operational units to establish solutions, for example having in place an on-call system after 17.30 and during the weekend and protocol/guidelines for the European Surveillance Team on when to contact the FROM on-duty.

The FRO highlighted the challenges in having access to information and timely replies from Member States authorities also as regards the SIR investigations.

Use of other devices and technology

In reply to a query from the inquiry team concerning the possible deployment of life rafts from Frontex aerial assets, Frontex representatives explained that this option is not a general capacity per se. Even where such a capacity exists, decisions to deploy life rafts are based on instructions received from the coordinating RCC and must be carefully assessed to avoid creating additional risk to life.

As regards the use of satellite imagery through the Copernicus system to aid in the surveillance of migrant boats, Frontex’s representatives explained that, while this facility has specific uses in the context of its surveillance activities, it is not useful for surveying boats in real time. The satellites pass at specific times of the day, according to the satellite orbits (as it could be more than once per day) and surveillance or imagery must be based on a service request in advance, giving specific coordinates. Even where used, the satellite imagery may not be useful to detect smaller boats and will take three hours for delivery of the images.

Frontex, in some Frontex surveillance assets, has available the capability to detect satellite phone signals in order to support the detection of potential boats in emergency situations at sea. Such capability contributes to saving lives at sea, particularly in operational scenarios where other sensors might not be as effective under unfavourable weather conditions (radar and visual tools).  It may also use the location of calls to provide further information on a boat but it does not intercept calls. In any event, Frontex explained that this technology works only if the asset is airborne.

As regards the exchange of information between Frontex and national authorities in the context of joint operations, Frontex explained that the Joint Operations Reporting Application (JORA) collects information inputted from host Member States on joint operations. Those Member States can provide details of incidents within and outside the operational area of the joint operations, occurring in non-EU countries’ territory as regards prevention of departures or non-EU country actions. Frontex validates this information by means of a quality/consistency check, whilst International Coordination Centres validate the entries at national level. [8]

The CO was aware of the incident and asked if Frontex surface assets were engaged but Frontex was not involved as the incident was far away from the operational area and where the co-financed technical equipment was deployed.

 

[1] Established in 2013, the European Border Surveillance system (EUROSUR) is a framework for information exchange and cooperation between Member States and Frontex to improve situational awareness and increase reaction capability at the external borders. Frontex operates EUROSUR, composed of national authorities of Member States responsible for border management, including coast guards, to the extent that they carry out border control tasks. Frontex maintains a European situational picture containing information on the situation at European borders and the pre-frontier area.

[2] Article 4.8 of the European Ombudsman’s Implementing Provisions.

[3] Frontex is responsible for coordinating the EUROSUR Fusion Services through which Frontex shares information collected from satellites and other surveillance tools such as the ones used by the European Maritime Safety Agency and the EU Satellite Centre with Member States.

[4] Art. 2(13) of Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OL 295, 14.11.2019, p. 1).

[5] Art. 28.3 of REGULATION (EU) 2019/1896 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 November 2019

[6] Recommendation 14 in the Action Plan states that surveillance assets should remain at the location of detected incidents to document border police/coast guard measures until completed and that a systemic assessment/justification as to whether to remain or not should be based on defined criteria. (Frontex Management Board Decision 61/2021 adopting the Fundamental Rights Action Plan for the implementation of the Fundamental Rights Strategy: https://www.frontex.europa.eu/assets/Key_Documents/MB_Decision/2021/MB_Decision_61_2021_adopting_the_Fundamental_Rights_Action_Plan_for_the_implementation_of_the_FRS.pdf )

[7] The recommendation 13 in the Action Plan states that the evaluation of the situation and corresponding communication should be sent as soon as possible to the relevant authorities. Mayday relay communications should be dispatched immediately following the sighting of a distress situation. (Frontex Management Board Decision 61/2021 adopting the Fundamental Rights Action Plan for the implementation of the Fundamental Rights Strategy: https://www.frontex.europa.eu/assets/Key_Documents/MB_Decision/2021/MB_Decision_61_2021_adopting_the_Fundamental_Rights_Action_Plan_for_the_implementation_of_the_FRS.pdf )

[8] Reporting in case of pre-frontier or non-joint operation operational areas is also available via JORA and the EUROSUR application. The Agency is currently working on enhancing situational reporting in the context of EUROSUR, and in particular SAR-related single events reporting (Annex II of COMMISSION IMPLEMENTING REGULATION (EU) 2021/581 of 9 April 2021 on the situational pictures of the European Border Surveillance System (EUROSUR) Regulation.