Download This PaperEU Operational Powers and Legal Protection. A Legal Theory Perspective on the Operational Powers of the European Border and Coast Guard
29 Pages Posted: 27 May 2020
Date Written: March 30, 2020
Abstract
For the first time in its history the EU is in the process of acquiring significant and genuine permanent operational powers. A new Regulation on the European Border and Coast Guard provides Frontex with a permanent corps of 10,000 border guards of which 3,000 will be EU agents, its own equipment and its own competences to intervene along the borders of the EU and beyond. The operational powers will allow the EU to directly intervene physically in tangible reality. This article argues that the conferral of operational powers on the EU poses a risk to individual legal protection. Because once authorities have acquired operational powers of a certain extent and quality, they can afford to act against or without the law by simply overpowering or eluding the legal mechanisms that normally constrain the exercise of public power. So far Members of the European Parliament and academics critical of Frontex and the new Regulation have overlooked this issue and concentrated exclusively on how to legally constrain the exercise of operational powers. The article addresses this blind spot by examining whether and how public law should place legal constraints not only on the exercise but also on the build-up of operational powers.
Keywords: Frontex/European Border and Coast Guard, Operational Powers, Legal Protection, Potentia
JEL Classification: K19
Suggested Citation: Suggested Citation