I. Operational Powers of the EU

At first glance, the EU has all four tools of government defined by Hood at its disposal. Its most prominent tool is undoubtedly authority. This authority encompasses secondary EU legislation such as Regulations and Directives as well as individual decisions by the EU Commission and agencies. Another key instrument of the EU’s legal authority is the rulings by the Court of Justice of the European Union (“CJEU”). Legal authority as the EU’s most formidable tool of government corresponds with the picture of the EU as primarily a legal order and vehicle. Still, from its inception, treasure played a key role in the European project. Probably the largest use of treasure by the European Community (“EC”) and EU in the last century was the distribution of subsidies for the Common Agricultural Policy.Footnote ¹⁵ Also, the allocation of Structural Funds to support the economic growth of particular regions and economic sectors within the Member States is an instance of treasure. In this century, an impressive display of treasure has been the European Central Bank’s program of buying up bonds from commercial banks in order to lower overall interest rates, so-called quantitative easing. The ECB and the Commission used treasure in the context of the financial and Euro crisis when it borrowed money on the financial markets guaranteed by the EU budget in order to issue loans to the Member States in financial difficulty—especially under the European Financial Stability Mechanism.Footnote ¹⁶ Nodality, as in sending and collecting information, has been a key tool of government for the EU. The EU has a long tradition of setting up public information campaigns and specialized public relations offices. It established its own information collection capacity through the various specialized departments and agencies. It has its own statistics bureau, Eurostat, and it also runs its own databases, for example, Europol Information System, Schengen Information System, European Publication Server, and European Patent Register. In terms of organization, the EU tools are equally substantial. Apart from buildings and equipment, the EU has a corps of 55,000 permanent, trained, paid, and loyal civil servants at its disposal.Footnote ¹⁷

Adding up all these tools of government, one may conclude that, similar to the modern European states as described by Oakeshott, the EU possesses potentia. Yet, one thing is missing in the EU context. The EU still lacks the physical ability to act directly. Of course, its own officials perform acts involving nodality, authority, and treasure. But when it comes to actual physical acts, especially those involving forms of coercion, the EU has to rely on the civil and military servants of the Member States.Footnote ¹⁸ The EU is not an administrative state performing tasks remotely like the administration of the Member States.Footnote ¹⁹ The EU by itself cannot act physically. Although the values and policy objectives make the EU a truly twentieth-century project, its central mode of governance throws it back to the ancien régime—a central authority completely dependent on the cooperation of local officials over whom it does not have direct and effective authority.Footnote ²⁰

II. Operational Powers of the EBCG

Ever since the management of the European borders became a matter of EU policy, the Commission envisaged a truly integrated European border management with a corps of EU border guards.Footnote ²¹ The Member States, however, refused the outright establishment of a genuine European border guard because border control is perceived to be one of the few remaining competences expressing national sovereignty.Footnote ²² By the same token, the Member States did not oppose the gradual and continuous expansion of the agency’s tasks, competences, and resources that stemmed from the establishment of Frontex in 2004.Footnote ²³ The expansion of powers reached a new milestone with the 2016 Regulation transforming Frontex into the EBCG—hereafter the 2016 Regulation.Footnote ²⁴ At its official launching event at the Kapitan Andreevo Border Checkpoint between Bulgaria and Turkey, the EBCG proudly presented its vehicles, equipment, and border guard teams. At the event, the Migration, Home Affairs, and Citizenship Commissioner Dimitris Avramopoulos announced: “From now onwards, the external EU border of one Member State is the external border of all Member States—both legally and operationally. In less than one year we have established a fully-fledged European Border and Coast Guard system.”Footnote ²⁵ Let us take a closer look at the powers so far granted to the EBCG and gauge whether it possesses operational powers as potentia. I will concentrate on the operational powers of the EBCG in terms of human resources, modes of deployment, and infrastructure.

The EBCG has seen an increase of its staff from forty-five in 2005 to 488 in 2017.Footnote ²⁶ However, these staff members work mainly out of the Warsaw headquarters conducting analyses, making operational plans, and coordinating operations. The staff members are not factually executing the actual border operations. By contrast, the 2016 Regulation provided for a rapid reaction pool of 1,500 border guards at the disposal of the EBCG permanently.Footnote ²⁷ Prior to this rapid reaction pool, Frontex worked with border guards that were assigned to specific operations by the Member States. The pool of 1,500 border guards is made available for deployment in operations that fall outside the normal annually planned operations to which the Member States contribute and assign border guards.Footnote ²⁸

Under the 2016 Regulation, the rapid reaction pool could be deployed in two scenarios: Rapid interventions and situations at the external borders requiring urgent actions. The rapid interventions are triggered by a Member State’s request facing “a situation of specific and disproportionate challenges.”Footnote ²⁹ The 2016 Regulation envisaged two situations that may require urgent action. Either a Member State failed to implement the necessary measures ordered by the Agency following recommendations from the Agency in the context of a vulnerability assessment ensuring adequate border control.Footnote ³⁰ Or a Member State was facing specific and disproportionate challenges at the external borders but failed to request support from the Agency—whether that be from the Agency’s joint operation, rapid border intervention, or border management support teams. Still, they failed to implement the actions required under such support operations.Footnote ³¹ In other words, the Member State failed to take the necessary steps to ensure adequate border controls. And thus, the EU had to step in.

When deployed in operations run by the EBCG, the border guards were authorized to perform all the operational and factual actions associated with border guard operations, including carrying service weapons, the use of force, and ultimately the use of service weapons and ammunition in the event of legitimate self-defense and the defense of team members.Footnote ³² Furthermore, the EBCG acquired its own equipment to be deployed during its operations.Footnote ³³

At first glance, under the 2016 Regulation, the EBCG acquired genuine operational power as potentia: The EBCG has border guards, equipment, and the competence to deploy them. In effect, according to the Commission, in September 2017, the EBCG deployed over 1,700 border guards and other staff at the EU’s external borders.Footnote ³⁴ So it seems that the EU Commissioner was not exaggerating when referring to the EBCG as a fully-fledged border and coastguard system. Yet, upon closer scrutiny, the EBCG still lacked genuine operational powers as potentia. First, the border guards, including members of the rapid reaction pool, were not officials of the Agency. They were not hired and fired by the Agency, but rather seconded by the Member States. Most importantly, they were not under the authority or instructions of the Agency. The border guards could only act under instructions from, and as a general rule in the presence of, border guards of the host Member State.Footnote ³⁵ Second, the EBCG could not deploy the border guards, not even the 1,500 from the rapid reaction pool, without the consent of the Member States. Even operations in the event of an urgent action depended on the consent of the Member State concerned. The urgent action was not ordered by the Agency or the Commission, but by the EU’s political body, namely the Council. The Member State concerned still had a say in the Council and, with the help of political allies, could block the decision. Moreover, the actual implementation of an urgent action required an operational plan on which the Member State concerned must agree.Footnote ³⁶ Therefore, without the consent of the Member State, the EBCG could not conduct operational actions. Finally, as to potentia in terms of infrastructure, although on paper the EBCG could acquire operational assets of its own, this has remained limited to a dedicated budget of €40 Million for small and medium-sized equipment.Footnote ³⁷

While under the previous 2016 Regulations, the EBCG did not have true operational powers as potentia, this is completely changed with the new Regulation. In effect, one of the most spectacular aspects of the new Regulation is the standing corps of 10,000 border guards and operational staff.Footnote ³⁸ The standing corps is made up of four categories of staff members: Staff members of the Agency itself, operational staff seconded by the Member States for a long term deployment, staff members provided by the Member States for a short-term deployment, and operational staff from the Member States for a Reserve for Rapid Reaction up to the year 2024.Footnote ³⁹ The share of the Agency’s officials will increase from 1,000 in 2021 to 3,000 in 2027.Footnote ⁴⁰ The Agency’s operational staff members will have the full status of EU officials governed by the EU Staff Regulations and Conditions of Employment.Footnote ⁴¹ The Agency’s operational staff members will thus fall under the disciplinary authority of the EBCG and not under the authority of a Member State. Just like under the former 2016 Regulation, the new Regulation grants the operational staff full executive powers such as identity checks, taking fingerprints, patrolling, carrying and using firearms, and legal powers such as entry refusals and the issuing and refusing of visas at the border.Footnote ⁴²

Furthermore, whereas under the 2016 Regulation the rapid reaction pool is to be deployed only in exceptional unplanned operations, the point of the standing corps is to ensure the effective conduct of regular operations.Footnote ⁴³ The standing corps is meant to address the structural understaffing of regular Frontex operations as Member States fail to contribute sufficient qualified operational staff to the EBCG. In other words, the new Regulation seeks permanent deployment of the Agency’s own operational staff in regular operations that are initiated by the Member States, such as joint operations, rapid border interventions, and operational reinforcement.Footnote ⁴⁴ Furthermore, similar to the previous Regulation, operations may be initiated by the Agency. When there is a situation requiring urgent actions, the standing corps may be deployed.Footnote ⁴⁵ When such actions are taken, the concerned Member State must comply with the measures.Footnote ⁴⁶ If not, the Council may trigger the procedure for reintroducing internal border control at the borders of the concerned Member State.Footnote ⁴⁷ However, in line with the 2016 Regulation, a concerned Member State can still prevent the deployment of the standing corps because, under the new Regulation, it is not the Commission but the Council who decides to take urgent action. The Council, based on a proposal by the Commission and after consultation with the Agency, may decide to take urgent action.Footnote ⁴⁸ At the level of the Council, the concerned Member State, or any other Member State, can block the decision to take urgent action. Thus, while under the new Regulation the EU has the power to deploy its own operational staff, it can only do so with the indirect consent of the Member States.

As opposed to the border guards that are provided and seconded by the Member States, the Agency’s own border guards do not fall per se under the jurisdiction of a Member State. When the Agency’s border guards act in their official capacity, they shall be immune from legal proceedings pursuant to Article 11 of the Protocol (No. 7) on the Privileges and Immunities of the European Union, following Article 96 of the new Regulation. The text of the new Regulation is confusing in this respect. Pursuant to Article 85 of the new Regulation, “statutory staff, shall be treated in the same way as officials of the host Member State with regard to any criminal offenses that might be committed against them or by them.”Footnote ⁴⁹ The former 2016 Regulation provided the same form of criminal liability for seconded personnel of Frontex. The difference is now Frontex also has its own statutory staff. So, at first glance, Frontex’s border guards are not exempted from criminal liability. However, Article 85 states that the possible criminal liability of statutory staff is “without prejudice to Art. 95” of the new Regulation. The reference to Article 95 seems like a typographical error—instead of Article 95, it should read Article 96. Article 95 deals with the conditions of employment of statutory staff, which are a matter completely unrelated to the criminal liability of statutory staff as addressed in Article 85. By contrast, Article 96 makes Protocol No. 7 on the Privileges and Immunities of the European Union annexed to the Treaty on European Union (“TEU”) and the Treaty on the Functioning of the European Union (“TFEU”) applicable to the Frontex statutory staff. As a result, Frontex’s statutory staff will benefit from the same immunities as EU servants and thus will “be immune from legal proceedings in respect of acts performed by them in their official capacity.” According to Article 17 of the Protocol, this immunity is not absolute because the EU is required to waive the immunity wherever it considers such waiver not to be contrary to the interests of the Union.

How then should we read Article 85 of the new Regulation? To me, it seems that the immunity for criminal proceedings is the default for Frontex statutory staff. Whenever Frontex, or another competent EU institution, waives the immunity of a particular Frontex border guard, that border guard will be treated in the same way as officials of the host Member State. Thus, when the immunity of a Frontex border guard has been waived, the border guard can be prosecuted as if he were a border guard of the host Member State.

Finally, the new Regulation seeks to ensure that the EBCG acquires substantial operational assets of its own, allowing it to conduct operations without the need to rely too much on equipment and voluntary contributions from the Member States.Footnote ⁵⁰ To this end, the new Regulation provides for a technical equipment pool and the obligation to establish a multiannual strategy for the build-up of the Agency’s operational assets.Footnote ⁵¹ Also, the Agency’s operational assets will include not only small and medium-sized equipment, but also major technical equipment such as aircraft, helicopters, and vessels.Footnote ⁵²

In short, for the first time in history, the new Regulation will grant the EBCG, and by extension the EU, genuine, substantial operational powers in terms of its own human resources, technical equipment, and competence to deploy the operational powers.Footnote ⁵³

III. The Views of Legal Experts on the EBCG Having Operational Powers

Legal experts have been critical of Frontex from its inception. Part of their concern is the way Frontex exercises its powers, including operational powers. Clearly, Frontex’s operational powers are a matter of concern for legal experts, especially Frontex’s capacity to prevent human rights violations.Footnote ⁵⁴ There is, however, a blind spot in the otherwise invaluable critical observations by legal experts. Legal experts concentrate on the exercise of operational powers, but not on the build-up of operational powers. In their analyses, the size and quality of the operational powers are not factors relevant for establishing the risk of abuse by Frontex. What matters to the legal experts is how Frontex exercises these powers and whether there are sufficient legal checks, ex-ante or ex-post, on this exercise. I share their concerns and support most of their solutions, but I find that due to the special nature of operational powers, legal constraints on the exercise of powers are simply not enough.Footnote ⁵⁵ Let me briefly and schematically reiterate the central concerns of legal experts to clarify this blind spot in the current literature. When it comes to Frontex operations and Frontex having operational powers, experts have roughly three types of concerns: First, the conferral of executive powers on Frontex is unconstitutional; second, many Frontex operations are unlawful; and third, accountability for Frontex operations is lagging.

First, many have challenged the constitutionality of the conferral of executive powers to Frontex. The conferral of executive powers to the EBCG is not provided for in the European Treaties and does not follow clearly from any implied powers.Footnote ⁵⁶ The constitutional objection against Frontex having operational powers is not so much based on the particular nature of operational powers. It is instead because treaties have not provided for the conferral of such powers.Footnote ⁵⁷ In other words, the critique is not about the risk of abuse inherently associated with operational powers.

Second, parts of Frontex operations in and of themselves violate existing international law, human rights law, and EU law. For example, extra-territorial pre-entry controls and maritime interdictions may violate the prohibition on non-refoulement, the right to leave one’s country, and the duty to process and scrutinize claims for international protection.Footnote ⁵⁸ Accordingly, important elements of EU border policies, rules, and operations should be adapted or even abandoned.Footnote ⁵⁹ This critique is not directed at the special nature of operational powers, but at the nature of certain tasks and operations. In other words, the concern is not about possible abuses because Frontex has operational powers, but rather that certain operations constitute abuses. The solution is, therefore, not constraining the operational powers but simply abandoning such operations.

Third, legal experts criticize the lack of adequate accountability mechanisms putting checks on Frontex operations. One reason for the lack of accountability was the fact that under the previous Regulations, it was not a settled matter for the EU that Frontex operations may trigger its liability, precisely because Frontex lacked operational powers of its own and merely coordinated operations under the responsibility of the Member States or Third Countries.Footnote ⁶⁰ By contrast, the new Regulation allows Frontex to have its own border guards, thereforebecoming directly legally responsible for the EU border operations bringing “clarity to the legal twilight within which Frontex currently operates.”Footnote ⁶¹ Of course, this clarity does not mean that the actual procedures and mechanisms in place to monitor, establish, and enforce liability are adequate. For example, under the new Regulation, individual complaint mechanisms and the monitoring powers of the EBCG’s own Fundamental Rights Officer (“FRO”) are inadequate in terms of the processes, impartiality, and resources of the FRO.Footnote ⁶² Accordingly, experts propose, interalia, imposing an EU monitor under the auspices of the EU Ombudsman to “regularly monitor the conditions under which the border operations take place.”Footnote ⁶³ To increase accountability, experts also call for more transparency from Frontex even during the planning of operations.Footnote ⁶⁴ Furthermore, the mechanism of immunity for individual EBCG border guards under the new Regulation is perceived to be highly problematic from a rule of law perspective.Footnote ⁶⁵ It should be clear that these critical observations and proposals are not aimed at the build-up of operational powers. They do not identify operational powers as posing a risk of abuse of powers in and of themselves. The focus is on the exercise of operational powers and on accountability mechanisms that can put checks on the exercise of operational powers.

Interestingly, when legal experts directly consider the merits of the EBCG having operational powers, many are rather positive. The main reason for this is that they expect the EBCG to do a better job of safeguarding the fundamental rights of migrants during border operations than the border agencies of the individual Member States.Footnote ⁶⁶ Furthermore, legal experts do not contest the EU’s basic assumption that a centralized and fully integrated EU border guard with genuine operational powers will enable the EU to execute border policies more effectively and vigorously than the current fragmented cooperation model of national border agencies, which have varying willingness and capacity to contribute to and participate in border operations.Footnote ⁶⁷ I think the experts are right to point out the protective potential of an EU border guard with genuine operational powers. Again, this Article is not an argument against operational powers. But the general picture that emerges from the literature is too one-sided—operational powers are potentially salutary, provided that Frontex implements the ex-post and ex-ante accountability checks on the exercise of these operational powers.

I have found only oblique references to some awareness that the size and quality of operational powers matter in and of themselves. For example, legal experts advocate that the EU border guard should be of a predominantly civilian nature, rather than military. This view relies on the insight that, by its very nature, a civilian agency is better equipped to conduct operations involving civilian migrants while respecting fundamental rights and the rule of law than a military agency.Footnote ⁶⁸

Similarly, legal experts criticize the deployment of border guards in hot spots. They argue this puts undue focus on border control at the expense of providing international protection.Footnote ⁶⁹ This criticism shows that legal experts are aware of the fact that the nature or type of operational powers conferred on the EBCG matters.

Also, the constitutional objection against a conferral of executive powers on the EBCG relies on a distinction between regulatory and executive powers. The exercise of regulatory powers is more susceptible to judicial review by a court, in this case the CJEU, than the exercise of executive powers. The latter are “factual rather than legal and involve a level of discretion that is difficult to regulate.”Footnote ⁷⁰ As a result, “(j)udicial review [by the CJEU] would not be available for purely factual actions during border checks and surveillance, although the possibility of an action for damages would be open” when the factual actions violate European law.Footnote ⁷¹ Arguably, and considering the Meroni doctrine, this impossibility of judicial review by the CJEU makes the conferral of operational powers on the EBCG unconstitutional. There is thus a difference between legal powers and factual powers in terms of being susceptible to effective judicial review and legal protection. Accordingly, factual actions require extensive and precise regulation for a court to conduct a full judicial review. I do not think that the difference between factual actions and legal acts lies in the level of discretion involved. Rather, as I will argue in the next section, it is the physical and concrete nature of factual actions and operational powers that enable authorities to sometimes simply overpower, or elude, normal legal mechanisms offering ex-ante legal protection. That is why legal experts must also concentrate on legal standards constraining the build-up of operational powers.

I. “Law Constrains Law”

The law is good at constraining authorities to the extent that authorities use and need the law to govern. This connects to the idea that the rule of law at least requires authorities to rule through law.Footnote ⁷² Also, the law-like character of a measure taken by authorities is determined by the extent to which the measure can be subjected to judicial review.Footnote ⁷³ To put it differently, the law-like nature of a measure and legal protection go hand in hand. Therefore, the more authorities claim that their actions are based on the law and demonstrate their actions in a legal form, the more they subject themselves to the law’s constraining forces. But why do authorities govern through law? This is, of course, an immense topic of legal sociology, legal psychology, and political science that is beyond the scope of this Article.Footnote ⁷⁴ For our purposes, we can limit ourselves to an archetypical communicative scheme that lies at the basis, at least conceptually, of most invocations of law by authorities.Footnote ⁷⁵ When authorities invoke the law, they claim obedience from subjects.Footnote ⁷⁶ In doing so, they ask the subjects to cooperate. The cooperation can consist of positive actions, such as offering help and making contributions, or inactions, such as refraining from obstructing or resisting authorities.Footnote ⁷⁷ If authorities can secure such cooperation, it allows them to govern over subjects and matters that would otherwise remain beyond their reach. In other words, through successful invocations of the law, authorities can get things done which they otherwise could not execute themselves. Also, the law enables authorities to have subjects do things even if the authorities lack the physical capacity to coerce subjects into doing these things. As stated in terms of Christopher Hood’s Tools of Government, legal authority can compensate for the lack of organization.

A successful invocation of the law depends on whether subjects believe that the call for obedience is lawful. In other words, by relying on the law, authorities must convince subjects that they respect the law. As a result, the law that enables authorities to govern beyond their physical powers coevally constrains them. This is why the law is good at constraining the use of the law. More technically speaking, by governing through law, the authorities expose themselves to legal challenges. This is a precondition for individual legal protection. The risk of non-cooperation, especially obstruction and resistance, makes it critical for authorities to show that they are acting in accordance with the law. This explains how legal competence or legal authority can become a vehicle of both governmental power and legal protection. Legal competence can be invoked by authorities to govern beyond their own physical control. By the same token, the lack of legal competence can constitute an effective legal challenge by subjects against authorities. The advantage of legal competence for subjects is that it operates not only ex-post factum but also ex-ante. Authorities will often have an interest in refraining from acting outside their legal competence motu proprio. Obviously, from the individual’s perspective, ex-ante protection is preferred over ex-post protection because it prevents or stops the unlawful exercise of powers.

II. Operational Powers May Overpower or Elude the Law

The basic communicative scheme of invoking the law to obtain cooperation from subjects may become obsolete when authorities acquire operational powers of a certain size and quality. The operational powers may allow the authorities to execute the tasks themselves, to coerce subjects into compliance, or simply to make non-compliance physically impossible. Operational powers enable authorities to overpower or elude legal constraints that can otherwise protect individuals, such as legal competence.

In concrete situations, authorities may have sufficient operational powers to the effect that they can effectively act even when subjects do not cooperate or even when subjects may try to obstruct the authorities. Practically speaking, under these circumstances, the authorities can govern without the need to invoke the law. The law’s enabling function becomes superfluous from a practical perspective. And if the law does not enable authorities, it is also less likely to constrain them. The basic mechanism of law that both enables and constrains authorities is put out of order, at least temporarily. Unlawful actions by authorities, especially physical acts, often fit in this scenario. Textbook examples are cases of police brutality. Typically, they occur insituations where police officers outnumber targeted individuals, and there are no, or only a few, bystanders present or the bystanders are not sufficiently organized. Targeted individuals may protest against the police actions’ unlawfulness, but this will be to no avail, as under these circumstances, authorities tend to be unsusceptible to legal arguments. By contrast, when law enforcement agents are outnumbered by targeted individuals and bystanders, they are more inclined to conduct their operations by the book. Cases of police misconduct are spectacular examples where operational powers put ex-ante legal constraints out of order. But there are many other areas where authorities can afford to act unlawfully simply because they physically can. In the context of migration and border control, the push-back operations in the Mediterranean Sea are a case in point.

Sometimes operational powers overpower not only ex-ante legal constraints but also make ex-ante legal protection pointless. Operational powers include both human resources, such as the corps of civil servants, and infrastructure. When used in specific ways, infrastructure enables authorities not so much to overpower ex-ante legal constraints, but rather to elude legal challenges altogether. A good illustration of operational powers as infrastructure eluding individual legal protection are border fences. Authorities can use coercive physical manpower to control the borders. But, they can also erect a border fence. When effective, the fence prevents individuals from crossing the border. The legal decision to erect the fence, the construction of the fence, and the fence’s actual existence do not claim obedience from aliens seeking entrance to the territory. The aliens, in a way, do not matter. Moreover, from a technical legal perspective, it is difficult for aliens to identify the particular actions they may want to challenge legallyFootnote ⁷⁸ because the erection and presence of the fence do not constitute a legal act directed at these aliens. In the absence of an individual legal decision, it is extremely difficult, both practically and formally, for an alien to legally challenge the fence’s presence under administrative law. The erection and presence of the fence can be qualified as a mere factual act. However, unlike factual acts, such as border guards coercing an individual alien or inflicting physical harm on an alien, the factual act of maintaining a border fence is not in and of itself coercive, thereby potentially triggering a cause of action such as a criminal or tortious liability, for example.Footnote ⁷⁹ Thus, whereas the physical and coercive capacity of the corps of civil servants enable authorities to overpower legal protection, operational powers as infrastructure allow authorities to simply evade individual legal protection.

III. Operational Powers are Resilient

Another reason why operational powers pose a challenge to individual legal protection is their autonomy and resilience. When they are sufficiently extensive, operational powers almost lead a life of their own. Operational powers rarely remain idle. They need an outlet and tend to be used. So, if large groups of human beings are mobilized, trained, and organized, it is likely that they will be put into action sooner or later. A case in point is the mobilization of troops and having a standing army.Footnote ⁸⁰ Not only human resources but also infrastructure and equipment rarely remain unused. Furthermore, operational powers have a particular resilience. Infrastructure initially built for a particular, temporary purpose often outlives its original function. A striking example of infrastructural resilience is the way Western European detention facilities built at the beginning of the twentieth century remained in place and in use throughout the remainder of the century by simply adapting their functions to the new “needs.” Similarly, in most Western European states, it is not easy to make civil servants redundant on a large scale. The point here is to see the contrast with legal powers. When public authorities have their legal powers withdrawn, this can take immediate effect, even retroactively. This is because legal authority is a matter of normative convention. So, while the stroke of a pen can cancel legal competencies, operational powers take much more time to unwind. As a consequence, public authorities often have operational powers at their disposal that no longer correspond with the initial objective for which they were granted.

I have discussed three reasons why operational powers by themselves pose a serious risk of compromising legal protection. To be sure, I am not suggesting that operational powers always overpower and elude individual legal protection. But I am arguing that today, this risk is insufficiently mitigated because public law only has legal mechanisms that constrain the exercise of operational powers. We should also explore the possibility of having legal standards that constrain the build-up of operational powers.

I. Western Legal Thought and the Build-Up of Operational Powers

Legal experts commenting on the EBCG do not raise the issue of operational powers as an inherent risk to individual legal protection. They certainly do not propose to put legal constraints on the build-up of the EBCG’s operational powers. This legal blind spot should not come as a surprise. It was only from the second half of the nineteenth century that authorities were acquiring substantive operational powers. In effect, as Oakeshott has put it, “now, even the least powerful government enjoys a mastery quite unknown to the most powerful in earlier times.”Footnote ⁸² So probably, until the end of the ancien régime, the potentia of centralized authorities was simply not significant enough to become a core concern for legal and political writers.Footnote ⁸³ Accordingly, from early modernity onwards, the central question of political and legal thought in the West has been about the legitimacy and legal status of the power to make new law as opposed to upholding the existing law of the land—be it by a King, parliament, the people, constituting powers, ordinary courts, or constitutional courts.Footnote ⁸⁴

When the administrative state was rising by the end of the nineteenth century, scholars from Weber to conservative liberals noticed the expanding operational powers—especially the large corps of permanent, loyal, and trained civil servants. However, the central question of Western legal and political thought remained exclusively focused on the nation state’s legal powers and the administrative state.Footnote ⁸⁵ So when legal theorists continued to develop a concept of the rule of law as Rechtsstaat or état de droit in direct response to the emergence of administrative law from the second half of the nineteenth century, they focused entirely on the normative status of legal acts issued by the State, especially administrative authorities.Footnote ⁸⁶ They were trying to solve the puzzle of the origins, justification, hierarchy, and judicial review of a state that is the source of its own law. They did not spend much intellectual energy on another quintessential feature of the modern administrative state, namely its operational powers. Later on, liberal critics of the administrative state pointed to the dangers of the administration’s legal power to change the law at will, thereby compromising the rule of law, especially legal certainty.Footnote ⁸⁷ They did not identify operational powers as posing a risk to the rule of law regarding individual legal protection.

A few scholars obliquely highlighted the relevance of distinguishing between the administration acting through law and the administration acting through physical acts. Some explicitly argued that the administrative state’s true character is its capacity to intervene directly in social-economic life. Carl Schmitt acknowledged that when the administration acts through factual or physical measures (unmittelbare Aktion, vi armata, bloss faktische Vorgehen, or rein tatsächliche Massnahmen) such measures are not susceptible to legal invalidation but create a fait accompli (vollendete Tatsachen schaffen). Accordingly, the shooting of people cannot be “ausser Kraft gesetzt werden.”Footnote ⁸⁸

Hans Kelsen argued that what makes the administrative state truly administrative is the exercise of direct administrative power (unmittelbare Verwaltung). In other words, when the state intervenes (eingreift) physically and directly in social life.Footnote ⁸⁹ According to Ernst Forsthoff, the new administrative state increasingly and actively provides for its subjects through public services and welfare (Daseinsvorsorgen),Footnote ⁹⁰ calling for a rejection of the standard liberal constitutional and administrative law way of thinking. The liberal scheme of allegedly politically neutral law that arbitrates individual rights and freedoms and state powers has mainly become obsolete.Footnote ⁹¹ The law should not so much protect the rights and freedoms of autonomous individuals, but should instead guarantee fair and just participation in public services.Footnote ⁹² Furthermore, the administrative state cannot be politically neutral because it is directly involved in the highly political business of distributing basic goods and social-economic risks.Footnote ⁹³ The structure of Forsthoff’s argument has some commonalities with my point about how operational powers may enable authorities to simply elude the law. Yet, my point expresses a normative concern about how non-coercive operational powers easily escape the standard legal constraints such as fundamental rights. By contrast, Forsthoff, at that time a member of the Nazi party, welcomed the inadequacy of the liberal democratic state governed by the rule of law as he saw in it a justification for the emergence of the totalitarian state.Footnote ⁹⁴

Much later, Niklas Luhmann pointed to the problematic legal status of infrastructure when denying “the design of the aisles in supermarkets or a computerized air traffic system . . . to be part of the legal order.”Footnote ⁹⁵ Michel Foucault describes the exact conditions that enable the advent of a state with comprehensive operational powers when he analyzes the emergence of the various modes and rationalities of governance from the sixteenth and seventeenth century onwards—which include police, discipline, security, and bio-politics. Yet, he is still very much focused on the genealogy of these rationalities. He does not identify the state’s capacity to physically intervene by concrete actions as a distinct novelty of the modern administrative state. Furthermore, his inquiry is not informed by a concern for how to legally constrain the exercise of operational powers.Footnote ⁹⁶ Though Foucault himself did not undertake a complete examination of law, legal theorists have elaborated on his views about the law and applied his research methods to the law.Footnote ⁹⁷ However, these Foucauldian approaches to the law have not led to investigations into the relationship between operational powers and individual legal protection. Similarly, when legal scholars apply Foucault to EU migration law and border policies, they do not identify operational powers as distinctively problematic for the legal protection of migrants.Footnote ⁹⁸

Martin Loughlin is one of the few well-known contemporary public law scholars who explicitly uses Foucault in the context of operational powers as potentia.Footnote ⁹⁹ In his book on the foundations of public law, he spends an entire chapter on the concept of potentia, drawing mainly on Michael Oakeshott, Michel Foucault, and Michael Mann.Footnote ¹⁰⁰ According to Loughlin, potentia introduced a new mode of governance that poses a fundamental challenge to public law. The problem is the underlying logic potentia, namely the ultimate aim of a political and legal order caring for the population and providing the necessary infrastructure. This leads to potentially unlimited state power in three ways. First, because the government’s task is the care of the population, there is simply not an area of social life where the government and the law cannot intervene. In other words, there are no intrinsic limitations on the power of government and law (ratione materiae). According to Loughlin, jurisdictional limitations on what the government may do become obsolete.Footnote ¹⁰¹ Second, because the government is responsible for structuring social interactions and actual output, effectiveness, and results, there is in principle no intrinsic limitation as to the means of government. Third, care for the population means that the law is no longer about deciding and addressing conflicts between people with different interests, resources, and beliefs; the law no longer aims to mediate between different claims about truth, reality, and what is to be done. It adopts a managerial perspective of a common, homogeneous interest and an overall win-win situation. It ceases to be “a de jure fragmented public space assuring unresolvable confrontation.”Footnote ¹⁰² Instead, these underlying conflicts are silenced in the name of a new higher universal truth.Footnote ¹⁰³

Loughlin focuses primarily on the logic of potentia, whereas I focus on the physical aspect of operational powers as potentia and legal protection. Still, I share his ultimate concern. Loughlin warns against how the hegemonic, expansive, and over-inclusive logic of potentia turns every measure of public policy into a question of absolute and social truth: What best serves the higher goal of satisfying social needs? This logic dissolves political, social, and legal conflicts into a question of truth. As if there are no conflicting and opposing interests, but just a false understanding of the truth. This logic will render obsolete the very fabric of law and public law, namely legal distinctions and categories that openly recognize that the interests, functions, and powers of the various actors and institutions are not fully aligned, but are continuously in conflict.Footnote ¹⁰⁴ The logic of potentia puts the law out of order.

The point of this brief excursion in legal thought is twofold. First, it explains why today, legal experts and scholars have not paid attention to the build-up of operational powers from the perspective of legal protection. It seems primarily a matter of legacy. We did not find arguments in legal theory and jurisprudence to the effect that legal thinkers should not or need not address the risk of operational powers compromising individual legal protection. Second, when legal scholars sporadically touch on the issue of the state’s factual power, either obliquely or directly, their observations actually support the claim about the insufficiency of legal mechanisms that only constrain the exercise of operational powers, but not their build-up.

II. International and European Law and the Build-Up of Operational Powers

There are only a few examples of positive law coming close to constraining the build-up of operational powers. These precursors point to an awareness of the risks associated with operational powers. In public international law, a clear case in point is the Non-Proliferation Treaty.Footnote ¹⁰⁵ We might even say that a large part of classical international law was all about controlling the build-up of operational powers and organizing counter forces, namely the capacity to wage war. One of the central instruments of classic international law until World War I was peace treaties.Footnote ¹⁰⁶ They constituted the basis for the so-called jus publicum Europeanum.Footnote ¹⁰⁷ One of the primary purposes of this jus publicum Europeanum was to limit destructive and unproductive wars on the European continent. In an almost similar vein, the predecessor of the current European Union, the European Coal and Steel Community (“ECSC”), also sought to control the capacity to wage war.Footnote ¹⁰⁸ In fact, it would not be a stretch of the imagination to construe the Treaty on the ECSC as the last major peace treaty of the European continent. The ECSC was all about constraining the physical power to wage war by controlling production and production capacity of modern war machinery’s basic components, namely, coal and steel. In this respect, the rationale behind classic international law could operate as a cue for thinking about putting legal constraints on the build-up of operational powers.

I presented the ECSC as an example of legal constraints on the build-up of operational powers. Strictly speaking, it is not about the operational powers of public authorities. It is about the production and the capacity to produce coal and steel tout court. For example, under the ECSC, capacity and production restrictions were imposed on coal and steel enterprises instead of public authorities.Footnote ¹⁰⁹ By contrast, a genuine and rare example of European law placing legal constraints on building up or maintaining operational powers can be found in the Schengen regime. A core provision of the Schengen Border Code (“SBC”) prohibits conducting border checks at the Schengen area’s internal borders.Footnote ¹¹⁰ To make it more difficult to reintroduce border checks in violation of Article 22 SBC, the Border Code provides for the dismantling of the border control infrastructure.Footnote ¹¹¹ In other words, the SBC explicitly targets the infrastructure of the Member States needed for conducting internal border checks. The provision directly constrains the build-up and maintenance of operational powers.

Another example of EU law intervening directly in the build-up of operational powers is the General Data Protection Regulation. It introduced the mechanism of “data protection by design.”Footnote ¹¹² This means that those responsible for processing personal data must build into their Information and Communications Technology (“ICT”) systems safeguards for privacy and fundamental rights. In other words, the IT systems must be technically designed to prevent data protection violations. The protection by design is mostly a countermeasure disabling certain functionalities of the IT system. For example, the Regulation leaves open the technical possibility to manually reactivate its functionality. The data protection law is not targeted at the operational powers of public authorities per se, but rather at anyone processing personal data, including the authorities of the Member States and the EU. Moreover, in terms of Hood, it is strictly speaking not a matter of the organization or operational powers, but instead a matter of nodality. Still, it is a clear example of how law constrains the capacity to do wrong.

Even more than data protection law, the logic of EU competition and environmental law is all about constraining the capacity to act unlawfully. To be sure, competition and environmental law are not aimed at constraining public authorities’ operational powers. Still, these legal fields show how public law tries to constrain the physical capacity to act unlawfully. In competition law, companies are required to obtain ex-ante clearance or approval to undertake a merger or acquisition to prevent them from gaining a dominant market position. In such cases, there is no actual anti-competitive behavior or the abuse of a dominant position by the company in question. The whole point of these types of regulations is to prevent the company from becoming so powerful that it becomes too easy to display anti-competitive behavior and make abuse of its dominant position. Similarly, many norms of environmental law prohibit certain activities as well as the possession of certain installations and hazardous materials. The underlying logic of such prohibitions is to prevent the build-up of the factual capacity from causing environmental damage. In other words, it is an explicit acknowledgment that normal legal rules prescribing prudent behavior and attributing tortious and criminal liability are not sufficient constraints on operational powers—sometimes public law must impose ex-ante constraints on the build-up of factual capacity. This is also reflected in the precautionary principle, a typical construction of environmental law.Footnote ¹¹³ Accordingly, certain new technologies may not be used or will require precautionary measures because there is too much scientific uncertainty about their possible adverse environmental effects.

I do not think that we should transpose the precautionary principle from environmental law and apply it to the build-up of operational powers. The precautionary principle of environmental law is in a way too sophisticated as it aims to address scientific uncertainty. Also, the reversal of the burden of proof it entails is not necessary in the context of operational powers. The problem with operational powers is not so much scientific uncertainty about its effects on legal protection. The challenge is, rather, to simply acknowledge that operational powers pose a risk, certain or uncertain, to legal protection and that those risks may not be sufficiently mitigated through the normal mechanisms of legal protection. Therefore, what can be borrowed from the precautionary principle in the context of operational powers is its ex-ante focus on risk assessment and precautionary measures.Footnote ¹¹⁴

III. Legal Constraints on the Build-Up of the EBCG’s Operational Powers

From the existing legal arrangements dealing with operational powers, we may draw analogies for the concrete case of the EBCG. Roughly speaking, there are two types of possible constraints on the build-up of operational powers: Actual constraints limiting the extent and nature of operational powers and the creation of mitigating counterforces. The latter is, strictly speaking, not a constraint on the build-up of operational powers. But to the extent that the operational counterforces are put in place coevally with the creation of operational powers, we may consider them to be physical constraints on the build-up of operational powers. The operational counterforces’ function is either to deter the unlawful use of operational powers or to mitigate its effect. The counterforces are necessary in contexts where limiting the build-up of operational powers is undesirable or impossible. For instance, effective policing operations require a certain amount and quality of operational powers that are necessarily coercive and intrusive for individuals. By their very nature, coercive and intrusive actions that are otherwise lawful always run a relatively great risk of degenerating into the unlawful use of force. This risk is inherently and inevitably associated with any level of effective coercive and intrusive powers. Accordingly, limiting the build-up of operational powers is not a feasible solution to ensure effective individual protection. In these contexts, physical counterforces may deter the unlawful use of otherwise indispensable coercive and intrusive powers.

As mentioned earlier, in theory, the logic of the precautionary principle would be a fitting legal constraint on the build-up of the EBCG’s operational powers. It should involve a thorough mapping of the significant and most likely risks to effective legal protection. This is lacking in the current new Regulation. In the paragraph on fundamental rights, the new Regulation asserts that the border guards will respect fundamental rights. This statement expresses a commitment to respect fundamental rights, but it is not a risk assessment of possible fundamental rights violations caused by the EBCG when exercising its operational powers.Footnote ¹¹⁵ The risk assessment requires input from people with hands-on expertise in border operations, including those at the receiving end of such operations.Footnote ¹¹⁶ I am not such an expert. For now, I can only sketch some broad risk categories that seem particularly relevant for the EBCG from the perspective of an outsider.

The major risk posed by the EBCG’s operational powers is the powers used for the policing aspects of the border control tasks.Footnote ¹¹⁷ To what extent are the number of guards in the standing corps, the type of training and experience oriented towards civilian law enforcement versus military operations, and the equipment—such as the types of firearms—tailored to the policing tasks of the EBCG? What are the risks of an unlawful exercise of operational powers? What physical counterforces are put in place to reduce the risks and mitigate the unlawful use of operational powers? The answers to these questions involve a detailed assessment of the border operations’ practical elements and concrete contexts. This assessment must be directly related to the various elements of the operational powers. The precautionary test must involve a typology and list of concrete forms of the unlawful exercise of operational powers. It is up to experts, and in the first place, the Commission, who proposed the build-up of operational powers for the EBCG, to come up with a concrete, detailed list of risks.

The precautionary principle should involve assessing the risks associated with the border guards and their personal equipment and the risks associated with other assets and infrastructure. For example, a frequent source of fundamental rights violations in the EU border management is the reception conditions of migrants. The common critique and response are to improve the reception conditions and training of reception personnel.Footnote ¹¹⁸ The question is whether such responses will ever be adequate. Often, the actual reception centers are located in sites originally built as detention facilities or military camps. This means that the very architectural and physical make-up of the actual reception centers may be structurally unsuitable for hosting migrants, especially families and minors, irrespective of well-intended efforts to improve reception conditions. Furthermore, authorities tend to use their infrastructure, even when the infrastructure is not suitable for the task at hand. This is especially the case when there are no immediate alternatives available. In other words, by simply having certain operational powers at its disposal, in our example reception centers, the EBCG runs a structural risk of violating reception conditions.Footnote ¹¹⁹ Under a precautionary test, the Commission will have to explain that the risk of fundamental rights violations is proportionate to the benefits of the EBCG having the centers at its disposal.

Another risk associated with infrastructure is that infrastructure allocated for one purpose may be used for another. Though efficient from the perspective of asset utilization, it may create disproportionate operational powers. Such misappropriation becomes increasingly likely when authorities have to perform tasks with conflicting priorities. The EBCG runs this risk as it is supposed to combine its primary task of policing the borders with additional search and rescue (“SAR”) operations. In fact, critical international and EU law experts actually want the EBCG to make search and rescue operations a higher priority and shore up its SAR capabilities.Footnote ¹²⁰ Though well-intended, a stronger role for the ECBG in SAR may turn out to be counterproductive. First, in off-time, the SAR capabilities may be used for purposes other than SAR, such as policing operations. Second, suppose during the same operation the EBCG must conduct both policing tasks and SAR interventions. In that case, it may neglect the latter and even use the SAR capabilities for the policing tasks. A genuine precautionary test must also weigh the risk of the improper use of infrastructure.

Apart from introducing a precautionary test comprising a risk assessment of coercive powers and infrastructure, we must also consider introducing operational counterforces. Because coercive and intrusive operational powers are indispensable for the EBCG, limiting only its operational powers is undesirable. Therefore, operational counterforces must be put in place. At first glance, the Fundamental Rights Officer seems like a good example of a counterforce. However, under the previous Regulation as well as the new Regulation, the FRO does not constitute a genuine operational counterforce. A serious operational counterforce is a truly independent and operational fundamental rights unit. Independent means that the officials are not part of the EBCG but are from another EU agency. Operational means that at least two officials are physically present at the site of concrete border operations. The officials should not only monitor the exercise of operational powers insitu and in real time, but also should have the legal and physical capacity to intervene. This goes further than what legal experts have been proposing. They see the monitoring function as looking “regularly at the conditions” under which Frontex operations take place.Footnote ¹²¹ The protective ex-ante effects of such a monitoring mechanism depend on deterrence and the improvement of operational procedures. But they do not offer a real physical counterforce at the actual moment when operations go wrong. I submit that a genuine counterforce against the EBCG’s operational powers entails a fundamental rights unit with an ongoing physical presence at every border operation with powers to intervene on the spot.