The European Ombudsman decision about the question of the sea rescues

Translated by Angela Tagliafierro

The Board of Auditors of the European Union published the results of the investigation started last July on the role of the European Border and Coast Guard (Frontex) in the shipwreck of the ship Adriana along the coast of Pylos (Greece). The investigation focused on the respect of the duties in terms of fundamental rights and research and rescue in the context of the sea supervision.

The rescues in the sea, Frontex, and the responsibility of the European countries

Most of the European institutions agrees on the fact that the management of the migrations needs to be based on two main pillars: creating safe and legal access routes to guarantee a constant and controlled flux of people and reinforcing the outer borders. While the former is completely up to the states, the latter has been entrusted to Frontex, which collaborates with the national authorities mainly to police the land and sea borders of the Union.

Frontex supports the states also by exchanging information about the activities at the outer borders of the EU (operational data, intelligence, analysis of the threats) and by providing technical and operational assistance (staff formation, supply of specialised equipment and direct participation in the field operation. In case of operations of sea rescues (SAR), Frontex is allowed to coordinate and support the efforts of the states members and of the other agencies involved in the rescue operations. However, it is important to highlight that Frontex is not a primary SAR organization: it provides a secondary assistance, as established by the EU Regulation 1896/2019 and the Regulation 656/2014:

“Member States' national maritime authorities remain primarily responsible for SAR operations in their respective areas of competence.”

So, Frontex is allowed to intervene and provide support only when the help is demanded and authorised by the states members involved and accordingly to its operational mandate. Since the task of arrange SAR operations remains within the competence of the states members, it is not clear what it means for Frontex in practical terms.

The investigation open by Ombudsman

The European Ombudsman is an independent institution of the European Union which investigates allegations of maladministration against the activities of EU institutions and bodies. On July 27^th, 2023, it opened an investigation after the shipwreck of the fishing boat Adriana carrying around 750 migrants in the sea of the Greek coast of Pylos. 104 people were saved, and 82 bodies were rescued. It is assumed that the remaining people died. The Adriana tragedy is considered like one of the most serious in the last years for the high number of victims and attracted international criticism. This accident arose questions about the involvement and the responsibilities of the European Union in safeguarding human lives within the framework of its migration and border control policies. The Hellenic Coast Guard (HCG) received many accusations of a direct or indirect involvement in the capsizing. Since Frontex is often concerned with the reaction to sea emergencies, the criticism has been extended to its role, as well.

Criticism and recommendations on Frontex actions

The investigation observed that in the Adriana shipwreck, Frontex followed the applicable rules and protocols. However, the inadequacy of the agency in saving lives at sea and its limited ability to act independently of member states was underlined.

Criticism focused on the shortcomings in the way Frontex reacts to the maritime emergencies in which it is involved and in its aerial surveillance activities. This is noticeable in the ways the Frontex units act when discovering ships in potentially difficult circumstances (emission of emergency signals). One more point raised is the inability to guarantee that the Frontex observers of the fundamental rights are sufficiently involved in the decision-making process on the sea emergencies identified during the activities of surveillance of the agency.

To overcome these shortcomings, the Mediator suggested that the Executive Director of the agency should reconsider if continuing to operate in the state involved in case the national authorities do not respect the SAR duties or get involved in other types of violation of the fundamental rights.

At the same time, the Mediator highlighted that the recommendations and the criticism presented on Frontex job are not enough to fill the wide gap left by the absence of a proactive SAR in the European Union. This is true, especially in the case it is combined with continuous accusations on the behaviour of the authorities in some States members. The investigation reveals the necessity of more clarity on the roles and the responsibilities and, above all, on the nature of the cooperation of Frontex with the national authorities.

Hence, the need to modify the legal mandate of Frontex arises in order to guarantee more independence and to create an independent commission of enquiry to analyse the increasing number of deaths in the Mediterranean. The commission of enquiry is responsible for the responsibilities of the national authorities, of Frontex, and of the European Union institutions. This decision questions again the European commitment to the protection of human lives in the sea and highlights the urgency for the EU legislators to face the problem. 

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