P9_TA(2023)0428 – Negotiations on a status agreement on operational activities carried out by Frontex in Mauritania – European Parliament recommendation of 22 November 2023 concerning negotiations on a status agreement between the European Union and the Islamic Republic of Mauritania on operational activities carried out by the European Border and Coast Guard Agency (Frontex) in the Islamic Republic of Mauritania (2023/2087(INI))
Date: 2023-11-22
Institutions: Committee on Civil Liberties, Justice and Home Affairs, Committee on Foreign Affairs, European Parliament
Subjects: European Commission, Frontex, Mauritania, border control, external border of the EU, fundamental rights, human rights, migration control, negotiation of an agreement (EU), operation of the Institutions








C_202404230EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/4230


24.7.2024






P9_TA(2023)0428

Negotiations on a status agreement on operational activities carried out by Frontex in Mauritania


European Parliament recommendation of 22 November 2023 concerning negotiations on a status agreement between the European Union and the Islamic Republic of Mauritania on operational activities carried out by the European Border and Coast Guard Agency (Frontex) in the Islamic Republic of Mauritania (2023/2087(INI))

(C/2024/4230)



The European Parliament,







—


having regard to Article 218 of the Treaty on the Functioning of the European Union (TFEU), in particular Articles 77(2)(b) and (d), 79(2)(c) and 218(3) and (4) thereof,










—


having regard to the Universal Declaration of Human Rights,










—


having regard to the Convention Relating to the Status of Refugees of 1951 and the additional protocol thereto,










—


having regard to Regulation 33 of Chapter V of the International Convention for the Safety of Life at Sea entitled ‘Distress Situations: Obligations and procedures’,










—


having regard to Chapter 4 of the International Convention on Maritime Search and Rescue on operating procedures,










—


having regard to the UN Convention on the Law of the Sea,










—


having regard to the European Convention on Human Rights,










—


having regard to the Charter of Fundamental Rights of the European Union,










—


having regard to 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 (1),










—


having regard to the European Council conclusions of 9 February 2023,










—


having regard to the EU action plan for the Western Mediterranean and Atlantic routes, presented by the Commission on 6 June 2023,










—


having regard to Council Decision (EU) 2022/1168 of 4 July 2022 authorising the opening of negotiations on a status agreement between the European Union and the Islamic Republic of Mauritania on operational activities carried out by the European Border and Coast Guard Agency in the Islamic Republic of Mauritania (2),










—


having regard to the Commission communication of 21 December 2021 entitled ‘Model status agreement as referred to in 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’ (COM(2021)0829),










—


having regard to its resolution of 19 May 2021 on human rights protection and the EU external migration policy (3),










—


having regard to the report of the Frontex Scrutiny Working Group of the Committee on Civil Liberties, Justice and Home Affairs of 14 July 2021 on the fact-finding investigation on Frontex concerning alleged fundamental rights violations and its recommendations,










—


having regard to Rules 114(4) and 54 of its Rules of Procedure,










—


having regard to the opinion of the Committee on Foreign Affairs,










—


having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A9-0358/2023),










A.


whereas, pursuant to Article 73(3) of Regulation (EU) 2019/1896, in circumstances requiring the deployment of border management teams from the standing corps to a third country where the members of the teams will exercise executive powers, a status agreement must be concluded by the Union with that third country on the basis of Article 218 TFEU;










B.


whereas on the basis of Council Decision (EU) 2022/1168, the Commission received an authorisation from the Council to negotiate a status agreement with the Islamic Republic of Mauritania in July 2022 and has since entered into negotiations with the Government of Mauritania, with a view to concluding a status agreement on the European Border and Coast Guard Agency (Frontex) that would allow for team members deployed by Frontex to perform tasks with executive powers on the territory of the Islamic Republic of Mauritania on the basis of a dedicated operational plan;










C.


whereas the European Council conclusions of 9 February 2023 called for intensified cooperation with countries of origin and transit, as well as the rapid conclusion of negotiations on new and revised status agreements between the EU and third countries on the deployment of Frontex;










D.


whereas, pursuant to Article 73(2) of Regulation (EU) 2019/1896, when cooperating with the authorities of third countries, Frontex must act within the framework of the Union’s external action policy, including with regard to the protection of fundamental rights and personal data, the principle of non-refoulement, the prohibition of arbitrary detention and the prohibition of torture and inhumane or degrading treatment or punishment;










E.


whereas according to Regulation (EU) 2019/1896, cooperation with third countries is an important part of European integrated border management; whereas in situations where the Commission recommends that the Council authorise it to negotiate a status agreement, the Commission should assess the fundamental rights situation relevant to the areas covered by the status agreement; whereas such an assessment has not been performed yet; whereas in its report of 21 May 2019, the Frontex Consultative Forum called on Frontex to carry out an effective fundamental rights impact assessment prior to engaging with a third country;










F.


whereas Article 218(10) TFEU obliges the Commission to immediately and fully inform Parliament during all stages of the conclusion procedure for a status agreement;










G.


whereas according Article 218(11) TFEU, a Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice of the European Union (CJEU) as to whether an envisaged agreement is compatible with the Treaties; whereas when the opinion of the CJEU is negative, the envisaged agreement may not enter into force unless it is amended or until the Treaties are revised;










H.


whereas once concluded, nothing precludes a Member State, the European Parliament the Council or the Commission from considering it appropriate to obtain this opinion on the compatibility of the negotiated status agreement with the Treaties;










I.


whereas the model status agreement referred to in Article 76(1) of Regulation (EU) 2019/1896 is to serve as the basis for the Commission’s negotiations with Mauritania; whereas it establishes a framework for cooperation between Frontex and its teams on the one hand and the competent authorities of the third country concerned on the other, setting out, among other things, the scope of operation, criminal and civil liability, the tasks and powers of members of the team and practical measures related to the respect of fundamental rights; whereas Frontex must ensure that fundamental rights are fully respected during those operations and provide for a complaints mechanism;










J.


whereas, according to the model status agreement referred to in Article 76(1) of Regulation (EU) 2019/1896:






—


Frontex’s team members may, in general, only perform tasks and exercise powers in the territory of the third country under instructions from and in the presence of the border management authorities of that country, and must comply with the laws and regulations of the third country as well as applicable Union and international law; the third country’s authorities must only issue instructions that are in compliance with the operational plan to the team members; this is the only operational framework where EU personnel operate under third-state command;










—


Frontex’s team members enjoy immunity from the criminal jurisdiction of the third country under all circumstances, and must not be subject to any form of arrest or detention in the third country or by its authorities; the waiver of immunity is at the discretion of the Executive Director or the home Member State, depending on the status of the team member;














K.


whereas Mauritania is both a transit and destination country for migration from other West African countries, such as Senegal, Mali, Guinea and Guinea Bissau; whereas in the last two years, there has been a substantial increase in the number of people travelling along the Mauritanian coast to take the Canary Islands migration route, leading to increased EU engagement, in particular on border management; whereas according to the Spanish Commission for Refugee Aid, the route through Mauritania is one of the deadliest in the world, and 2021 marked the highest number of deaths and missing people since data first started being recorded;










L.


whereas as of 31 May 2023, the Office of the UN High Commissioner for Refugees (UNHCR) reported the presence of 108 972 refugees and asylum seekers in Mauritania, including 84 093 Malian refugees in the Mbera camp;










M.


whereas despite having signed the 1951 Convention Relating to the Status of Refugees, its 1967 Protocol and the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, Mauritania has no national legal asylum system in place; whereas in the absence of such a system, the UNHCR conducts registration and refugee status determination and other protection activities on the basis of a Memorandum of Understanding with the authorities; whereas people deemed ineligible for protection are structurally deported to the Malian and Senegalese border by the authorities without further procedure; whereas this has included deportations of people whose cases have not been assessed by the UNHCR, including the deportation of persons perceived by authorities as ‘candidates for sea departures’, persons intercepted at sea in the Western Sahara by Moroccan authorities and persons legally residing in the country; whereas Western and Central African nationals are frequently deported without due process, with no individual legal status assessments or formal deportation decisions;










N.


whereas Mauritania’s current legal framework does not allow for effective protection of women and children, or of LGBTIQ+ persons; whereas same-sex activity is deemed illegal under Mauritanian criminal law and is still a criminal offence punishable by death;










O.


whereas refugees, asylum seekers and migrants in Mauritania continuously face systemic and serious human rights violations and ill-treatment such as refoulement, arbitrary arrests and detention, (gender-based) violence, including cases of torture, exploitation, abusive detention conditions, extortion and theft, and abusive collective expulsions to Senegal and Mali; whereas people are not assessed with regard to their nationality and vulnerability; whereas the UNHCR does not appear to carry out regular visits to border check points, places of disembarkation after interceptions at sea or places of detention to identify any protection needs; whereas civil society organisations seem to be prevented from doing so; whereas the implementation of anti-trafficking legislation has led to instances of migrants being criminalised;










P.


whereas Mauritania only formally abolished slavery in 1981 through the adoption of Law 2015-031, and was the last country in the world to do so; whereas slavery has only been criminalised since 2015; whereas in 2022, the UN Special Rapporteur on contemporary forms of slavery concluded that the country had taken significant steps but that the continued existence of slavery and slavery-like practices, including forced labour, remained a concern and had an impact on both migrants and Mauritanian citizens;










Q.


whereas Mauritania has not abolished the death penalty, despite a de facto moratorium since 1987; whereas foreign detainees facing the death penalty rarely have access to legal assistance or a competent translator;










R.


whereas the Mauritanian authorities have been receiving bilateral border management support from the Spanish authorities since 2006 in an advisory capacity only, including through the physical deployment of the Guardia Civil; whereas the Frontex status agreement would, for the first time, allow a non-Mauritanian actor to exercise executive powers at the border of the country through its deployed team members;










S.


whereas Frontex, under Operation HERA, also carried out occasional joint operations in Mauritania between 2006 and 2018; whereas this cooperation has not been evaluated on its impact on the protection of and respect for the human rights of migrants in Mauritania; whereas on 20 September 2022, Frontex opened a risk analysis cell in Nouakchott in the context of the Africa-Frontex Intelligence Community; whereas eight risk analysis cells are currently part of the Africa-Frontex Intelligence Community network, with the role of collecting and analysing data on cross-border crime and supporting authorities involved in border management;













1.


Acknowledges that Frontex deployment in Mauritania, acting in line with the EU acquis, has the potential to have a positive effect on respect for fundamental rights; expresses its deep concern about the situation of fundamental rights in Mauritania, especially for migrants and refugees, and considers that the possible conclusion of a status agreement between the EU and Mauritania providing for the exercise of executive powers by Frontex in Mauritania would entail a high risk of violations of fundamental rights and international protection obligations that are of a serious nature and likely to persist;












2.


Recalls Frontex’s legal obligation to comply with EU law to ensure that fundamental rights are fully respected during operations and considers that a possible status agreement that would allow team members deployed by Frontex to perform tasks with executive powers under a dedicated operational plan must contain the necessary guarantees and mitigation measures to uphold EU and international law and principles, and the protection of fundamental rights, in line with Regulation (EU) 2019/1896;












3.


Expresses its concern about the fact that the route through Mauritania is one of the deadliest in the world and that 2021 marked the highest number of deaths and missing people since data first started being recorded;












4.


Is concerned on the potential impact of a status agreement on the freedom of movement in West Africa, most notably in Mauritania, and on the Economic Community of West African States’ protocol relating to free movement of persons, residence and establishment;












5.


Considers that provisions of the model status agreement must be improved in order to address the abovementioned serious concerns that could lead to severe accountability gaps in the event of fundamental rights violations, which should be properly addressed;












6.


Strongly urges the Commission and Frontex to adopt the following measures without further delay, should negotiations for a status agreement continue:














6.1






European Commission








a)


include explicit safeguards allowing deployed officers to disregard orders issued by Mauritania’s authorities that contradict Frontex’s fundamental rights obligations that derive from EU and international law;










b)


refrain from including specific provisions allowing for the agreement to be provisionally applied before the European Parliament assesses whether to give its consent to it;










c)


ensure that Frontex staff who are granted immunity for their activities in Mauritania must continue to be held accountable under EU or Member State laws in order to guarantee legal certainty, adopt guidelines, in cooperation with Frontex’s Executive Director, on waiving immunity for deployed staff, including specifications on how requests from the third-country authorities will be dealt with, as well as enshrining a strong role for the Fundamental Rights Officer (FRO);










d)


ensure sufficient and accessible internal and external mechanisms for non-EU individuals and ensure that Frontex develops mechanisms to receive complaints in the first instance, in line with the recommendations of the EU Ombudsman;










e)


include clear guidelines and, if considered necessary, mitigating measures on combating corruption in identified areas of cooperation between officers of Frontex and Mauritanian authorities and security forces, as well as safeguards to avoid the misuse of EU material support;










f)


in parallel to the negotiations on the status agreement, provide support and resources to assist Mauritanian authorities in developing a comprehensive legal asylum system, based on fundamental rights and in line with the guidelines and practices of the UNHCR, including additional capacity-building support to Mauritanian national human rights institutions and civil society organisations focusing on human rights; ensure that any potential future Frontex deployment will take place in a legal context where access to international protection procedures for persons in need, including access to information, legal assistance, interpretation services and necessary support, can be effectively exercised, and where the independence of judicial and human rights institutions is guaranteed;










g)


include provisions and guarantees for adequate human rights protection in the status agreement in order to ensure that the Mauritanian authorities respect fundamental rights during operations, including on monitoring compliance, as well as sound options that will ensure accountability in the event of violations; ensure that the Mauritanian authorities set up an independent and effective complaints mechanism, in line with the complaints mechanism established by Frontex in accordance with Article 111 of Regulation (EU) 2019/1896;










h)


uphold, at all times, the highest standards of human rights law during the negotiations and implementation of status agreements and ensure compliance with all relevant conventions agreements, and standards related to human rights to which the EU is legally bound;










i)


keep the European Parliament fully and regularly informed on all steps of the negotiations process, in accordance with Article 218(10) TFEU, and, in general, inform the European Parliament before opening negotiations with third countries on a status agreement;










j)


in the event that the status agreement is concluded, ensure and share a periodical evaluation of the application of its provisions and of the joint operational activities, with a focus on the impact on fundamental rights, and include an adequate fundamental rights monitoring mechanism for Frontex’ activities;










k)


in parallel with the implementation of the status agreement, provide fundamental rights training to the relevant Mauritanian authorities as a core component of executive operations in the country, including on search-and-rescue obligations and on the rights of those concerned, including appeals to complaints;










l)


make any material support to the border authorities of Mauritania conditional on full respect for fundamental rights and ensure that monitoring is carried out;










m)


in line with the Frontex FRO’s approach when launching operations on the territory of a third country and in cooperation with the FRO, perform ex ante fundamental rights impact assessments that are relevant to the areas linked to the potential Frontex deployment before engaging in negotiations with third countries on the conclusion of status agreements in order to be able to fully consider the impact of the potential cooperation and to negotiate on the necessary safeguards, in accordance with recital (88) of Regulation (EU) 2019/1896; make this impact assessment, which Parliament regrets has not yet been performed, publicly available or at least share it with the co-legislators;

















6.2





Frontex








a)


ensure effective, proactive and timely consultation with the FRO when deciding whether to launch a joint operation in Mauritania, in line with the requirements of Regulation (EU) 2019/1896;










b)


involve the Frontex Consultative Forum on developments related to the status agreement, in accordance with Article 108 of Regulation (EU) 2019/1896, and consult with it, in line with its working methods and mandate, including on the possible organisation of an on-the-spot visit to Mauritania;










c)


ensure that any operational plan establishing operations on the territory of Mauritania should:






i)


enshrine a robust and formal mechanism to address complaints to Frontex or the relevant Mauritanian authorities for actions or failure to act of deployed staff or host staff in the country, in accordance with Article 111 of Regulation (EU) 2019/1896, include clear provisions on follow-up and enforcement tools after complaints are lodged, and clearly communicate about this follow-up;










ii)


pursue, in cooperation with the Mauritanian authorities, a Frontex presence in critical areas where the apprehension of migrants or violence or degrading treatment against them is likely to take place, and ensure that the FRO and Fundamental Rights Monitors have full access to the operational area, in line with the FRO’s standard operating procedure, in order to have an independent mechanism to oversee and evaluate Frontex activities in Mauritania, while ensuring clear commitments to transparency and information sharing of Frontex activities;










iii)


ensure that the collection and analysis of any personal data are fully compliant with Regulation (EU) 2018/1725 (4) and respects fundamental rights;










iv)


work closely with the UNHCR during operations in Mauritania in order to guarantee the right to asylum;










v)


ensure provisions on training for Frontex staff deployed in Mauritania on the regional and Mauritanian human rights situation and legal framework;














d)


ensure adherence to Frontex rules on waiving immunity for deployed staff, including specifications on how requests from Mauritania’s authorities will be dealt with, as well as those enshrining a strong role for the FRO; make the deployment of standing corps officers conditional on these guidelines;










e)


explore and, where possible, establish mechanisms for persons potentially affected by Frontex’s actions on the territory of Mauritania to effectively seek remedy through external bodies;










f)


sign a Memorandum of Understanding with Mauritania in order to align complaint mechanisms;










g)


in the event of the signing of the status agreement and the establishment of an operational plan, ensure that the FRO permanently deploy a Fundamental Rights Monitor to oversee operations in Mauritania and monitor the cooperation in relation to the fundamental rights, in accordance with Regulation (EU) 2019/1896;










h)


include special guidelines for the processing of asylum requests from vulnerable migrants, most notably children, unaccompanied minors, women, LGBTQI+ persons and members of communities that face targeted violence or discriminatory prosecution in their country of origin;










i)


ensure meaningful consultation, dialogue and engagement with civil society organisations and relevant stakeholders throughout the planning, implementation, and evaluation of its operations in Mauritania, including the dissemination of information;










j)


conduct periodical evaluations of joint operations in third countries, including in Mauritania, with a focus on fundamental rights, share them with the European Parliament and the Council and make them publicly available;
















7.


Emphasises the responsibility of Frontex to address any human rights violations by its staff in Mauritania, in line with its existing procedures, and to ensure accountability; recalls that violations of a serious nature or that are likely to persist are cause for the presence of Frontex personnel to be questioned and should trigger a re-evaluation or suspension of the deployment of Frontex in Mauritania, in accordance with Article 46(4) of Regulation (EU) 2019/1896 and Article 18 of the model status agreement; calls on Frontex to denounce any such actions in order to avoid all complicity in human rights violations by Mauritanian security forces and to cooperate with relevant authorities to ensure the prompt and impartial investigation of any alleged human rights abuses;
°
° °












8.


Instructs its President to forward this recommendation to the Council, the Commission, the European Border and Coast Guard Agency, its Fundamental Right Officer, the Government of Mauritania and the signatories to the Cotonou Agreement between the European Union and the group of African, Caribbean and Pacific countries.






(1)  
            OJ L 295, 14.11.2019, p. 1.

(2)  
            OJ L 181, 7.7.2022, p. 18.

(3)  
            OJ C 15, 12.1.2022, p. 70.

(4)  Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).


ELI: http://data.europa.eu/eli/C/2024/4230/oj
ISSN 1977-091X (electronic edition)