The new European border and coast guard agency: pooling sovereignty or giving it up?

Abstract

In 2016, the European Parliament and the Council adopted a legislative act creating and regulating a new European Border and Coast Guard Agency. Its Article 19 states thatshould a Member State's failure to control its own borders jeopardize the collective effort to monitor the external borders of the Schengen Areathe new Agency could take over the management of border control operations in that Member-State. This transfer of power begs a crucial question regarding EU's conflict of sovereignties. First, this article identifies three paradigmatic conceptions of sovereignty (traditional, post-sovereignist, and posttraditional), and, second, it applies them to our case study to assess which conception provides the best explanatory model. We eventually argue that the post-traditional perspective proves the fittest to capture the current integration of the EU's external border management, best described as an institutional bricolage (by contrast with a grand architectonic design).

Rescue Missions in the Mediterranean and the Legitimacy of the EU’s Border Regime

“…After its 2016 regulation, Frontex received increased competences vis-à-vis the Member States whose border regimes it is tasked with coordinating and strengthening (Fjørtoft 2020). Notably, Frontex was given powers to engage in 'vulnerability assessments' of Member States' capacity to manage their borders, and (subject to a council decision) to intervene in the border regimes of Member States, raising familiar concerns of European integration granting the EU powers to interfere in domestic political affairs (Deleixhe and Duez 2019). More distinctively, however, Frontex's 2019 regulations gave the Agency unprecedented powers in the context of European integration.…”

More power, more control: The legitimizing role of expertise in Frontex after the refugee crisis

“…This is a transfer of sovereignty, but to a less invasive degree than treating interventions as a more technical question left to the Commission, as originally proposed. Instead, it is a transfer from each member state acting individually to the “club” of member states acting collectively in the Council (see Deleixhe & Duez 2019, p. 932). Even if member states accept the facts on a given vulnerability, they want the measures to mitigate it to remain a political matter.…”

“…The agency now carries out a yearly assessment of each member state's capacity and border vulnerabilities. This is “a major innovation” (Deleixhe & Duez 2019, p. 928). Second, a member state's failure to comply with Frontex's vulnerability assessment recommendations may trigger an intervention by the agency.…”

“…The so‐called right to intervene (Article 19) gives Frontex the power to deploy border guards to a member state if the functioning of the Schengen area is threatened—subject to a Council decision. This is “unprecedented in the integration process of the EU's external border management” (Deleixhe & Duez 2019, p. 922; see also Niemann & Speyer 2018, p. 27).…”