LEGAL NATURE OF THE WORKING ARRANGEMENTS OF THE EUROPEAN BORDER AND COAST GUARD AGENCY

Abstract

The article analyzes the content and the procedure for concluding working arrangements of the European Border and Coast Guard Agency (FRONTEX). It is noted that, taking into account its legal personality, the Agency's partners may be third countries and international organizations with which it has the right to enter into the relevant arrangements on its own. The author draws attention to the fact that in FRONTEX’s enforcement practices there are different names of concluded agreements, but in form and content they are all working arrangements. The procedure for the negotiation and conclusion of working arrangements is analyzed and it is concluded that the EU pays serious attention to the legal instrument under consideration for cooperation with international partners. In particular, it is noted that the Commission and the Member States play a significant role in the harmonization of the text of the agreement. It is proposed to empower the European Parliament by granting it the right of prior approval of the final text of the document. The content of working arrangements concluded with third countries and international organizations is analyzed in detail and the following features are established: 1) since 2012, there is a trend to consolidate the principle of respect for human rights in agreements with third countries; 2) the agreements may contain provisions on the financial aspects of cooperation between the parties; 3) for the first time in the working arrangement with Kosovo, the provision on the exchange of personal data is enshrined; 4) certain working arrangements provide for the possibility of suspend of the agreement until the dispute is settled between the parties. It is concluded that the working arrangements are not international public treaties, because: 1) agreements with third countries directly establish that such documents do not create international obligations; 2) the agency is not endowed with the international legal personality to conclude agreements on behalf of the Union under the procedure provided for in Art. 218 TFEU; 3) the text of the document mainly contains non-binding wording. The author proposes to consider working arrangements as acts of soft law, the implementation of which leads to legal consequences. Cooperation between FRONTEX and third countries and international organizations is not limited by working arrangements and may be expanded by additional agreements.