European Border and Coast Guard - An Analysis of Regulation 2016/1624 on the Allocation of Competences and the Responsibility to Protect Fundamental Rights of Asylum-Seekers

Sammanfattning: The European Border and Coast Guard was launched on October 6th, 2016. It was established through Regulation 2016/1624 and replaces the European Agency for the Management of Operational Cooperation at the External Borders of the Member States. The Agency is more known as Frontex. The objective with this thesis is to examine two problems in Regulation 2016/1624 that was addressed at the negotiations to the Regulation. The first problem was that the Member States considered the delegated competences to the Agency being too wide and violated the allocation of competences in the Union Treaties. The second problem was that Regulation 2016/1624 did not define if the Agency has a responsibility to protect the fundamental rights of asylum seekers. This is examined through two research questions. The first research question is whether the delegated competences to the European Border and Coast Guard in Regulation 2016/1624 is violating the Union Treaties. The second research question is whether the Agency has a responsibility to protect the fundamental rights of asylum-seekers. In order to answer these questions, a description is given in Chapter 2 on the allocation of competences and on the fundamental rights of asylum-seekers. All fundamental rights of asylum-seekers derive from the non-refoulement principle. An analysis is given on the relationship between the allocation of competences and the responsibility of the Union to protect fundamental rights. In Chapter 3, an analysis is carried out on to the allocation of competences and the competences of the Agency. In Chapter 4, the responsibility of the Agency to protect fundamental human rights of asylum-seekers is analysed. The conclusions are that the European Border and Coast Guard has competences that, in some aspects, violates the Union Treaties and that the Agency has a responsibility to protect the non-refoulement principle. The principle is jus cogens, compelling international law, from which no derogation is allowed. Through these conclusions, another problem is detected. The Union cannot interfere in the executive powers of the Member States to issue decisions of entry, asylum or return, as this would violate the allocation of competences. However, the responsibility to protect the fundamental rights of asylum-seekers requires the Agency to intervene in these executive powers. The dilemma is analysed in Chapter 5 and the conclusion is reached, that there is reason to argue that the responsibility to protect fundamental rights of asylum-seekers expands the competences of the Union. However, this is very likely to never be accepted by the Member States. This since it can be seen as a threat to the sovereignty of the Member States.