To Mr Hans Leijtens Executive Director European Border and Coast Guard Agency

 

Dear Mr Leijtens,

Please find enclosed my above decision.

On the basis of my inquiry, I have decided to close it with the following conclusion:

No further inquiries are justified into how Frontex deals with potential maritime emergencies. However, the Ombudsman makes suggestions for improvement to address a number of shortcomings identified in the inquiry.

The suggestions for improvement to Frontex are as follows:

A. If the FRO identifies persistent violations of fundamental rights by a Member State in responding to maritime emergencies, or should Frontex become aware of such serious violations following formal inquiries or court judgements, Frontex should consider terminating, withdrawing or suspending Frontex’s activities with the Member State in question, in line with Article 46 of Regulation 2019/1896. This should also be considered in the context of the Pylos shipwreck, for which there are ongoing national investigations. Frontex should consider whether the threshold has been reached to allow it to terminate, withdraw or suspend its activities with the Member State in question. It should publicly clarify its reasons for concluding that the threshold has or has not been reached.

B. Frontex should conduct a sustained and serious organisation-wide reflection, led by its Executive Director and with the involvement of members of its Management Board, on how it upholds its fundamental rights obligations in its response to maritime emergencies and search and rescue operations.

C. Frontex should adopt and publish internal guidelines on how to react to maritime emergencies detected by Frontex’s aerial surveillance, including regarding the issuance of Mayday relays and possibly also other emergency signals.  This should cover all relevant factors, including taking into account whether the relevant RCC has clearly communicated its actions and confirmed that it is coordinating an SAR operation, as well as potential concerns about the record of national authorities. Frontex should also reflect on how better to respond to unofficial reports, such as those from NGOs, which may have vital information to impart, and how to include them its assessments. Reported dangers to children should be given the highest priority.

D. As regards joint maritime operations coordinated by Frontex, the operational plans should also include provisions on how to respond to maritime emergencies, while awaiting instructions from the relevant rescue coordination centre, including regarding the issuance of Mayday relays.

The operational plans should also:

(i) include provisions on how the responsibilities in maritime emergency situations/potential SAR incidents are distributed between the host country, Frontex and participating Member States;

(ii) specify the obligations of each actor intervening in joint operations in relation to SAR, and specify the steps that Frontex and staff in national coordination centres should take upon the detection of a maritime emergency situation;

(iii) specify the conditions for the use of equipment (such as cameras) and include possible sanctions if this not done; and

 (iv) specify the role of coordinating officer in SAR operations for each maritime joint operation.

E. In the context of service requests for aerial surveillance under EUROSUR, Frontex should accept only those requests that provide for full respect of fundamental rights during SAR operations and do not include any pre-emptive or territorial limitations to its surveillance activities. Furthermore, Frontex should make its aerial surveillance service conditional on the agreement of the relevant Member State that:

(i) the relevant authorities will keep Frontex updated in a timely manner on the response to ongoing maritime emergencies in which Frontex assets are or have been involved, provided this does not compromise the operation; and

(ii) Frontex’s aerial surveillance assets can be present at and assist SAR operations, where possible, unless this could be detrimental to the success of the SAR operation itself, and that national authorities respond to Frontex’s offers of assistance and provide explanations where they decline such offers.

F. The FRO should introduce practical arrangements to ensure that, where serious maritime incidents are detected in the context of Frontex’s surveillance activities, an FROM is present in European Surveillance Room. If the physical presence of the FROM is not possible, the assigned FROM should be available and able to provide advice on fundamental rights compliance to such incidents in real time.

I would be grateful if Frontex could inform me by the end of June 2024 of any action it has taken in relation to my suggestions for improvement.

However, there are also broader questions for the EU that were raised in the context of my inquiry and which I am calling on the European Parliament, the Council of the EU and the European Commission to address. These are set out in the general conclusions accompanying my inquiry, which you will also find attached. In particular, they concern the absence of proactive EU search and rescue operations and the absence of a single EU-level accountability mechanism for assessing incidents involving alleged violations of fundamental rights and/or search and rescue obligations.

To address this, I believe there is a need to:

· establish an independent commission of inquiry to assess the reasons for the large numbers of deaths in the Mediterranean, to learn the lessons from incidents such as the Adriana shipwreck, and to make recommendations on how to protect fundamental rights and the right to life in the response to maritime emergencies;

· ensure EU-level consequences for any findings that a Member State authority has failed to comply with its fundamental rights and/or search and rescue obligations in regard to this incident and more generally; and

· reflect on changes to the legislation setting out Frontex’s mandate, which would enable it to play a more comprehensive and proactive search and rescue function.

The ongoing loss of life in the Mediterranean Sea is an indictment of the EU’s commitment to uphold this most fundamental of rights, and I trust that the European Parliament, the Council of the EU and the European Commission will treat this matter with the urgency it deserves.

I also look forward to hearing from Frontex, as set out above.

Yours sincerely,

Emily O'Reilly

European Ombudsman

Strasbourg, 26/02/2024

 

Enclosures:

Decision with annex

General conclusions