Agencification, Fundamental Rights, and the Non-Delegation Doctrine: Frontex's Mandate on Trafficking in Human Beings (THB)

Abstract: This article presents findings from an ongoing study examining Frontex's role in safeguarding human rights for undocumented migrants affected by return policies, as well as for actual and potential victims of trafficking in human beings (THB) who face precarious situations at the intersection of undocumented migration and trafficking dynamics. The Lisbon Treaty established the Area of Freedom, Security, and Justice (AFSJ), which has since seen a significantly expanded role for AFSJ decentralised agencies. Despite Member States’ (MSs) reluctance to transfer further powers to EU institutions, these agencies have been tasked with supporting national authorities to close implementation gaps in EU border management and asylum policies. Frontex now conducts substantial operational activities, deploys support teams within MSs' territories, and plays an oversight role. The Court of Justice of the European Union’s (CJEU) non-delegation doctrine serves as a litmus test to legitimise Frontex’s expanded competencies, ensuring that the Agency’s extended powers align with constitutional safeguards. In critically examining Frontex’s adherence to and enforcement of fundamental rights, particularly in the identification and protection of THB’s victims, we suggest that a human rights-led approach to THB not only fulfils legal obligations but also enhances law enforcement outcomes. Effective identification of THB’s survivals is essential to ensure individuals receive necessary protections, facilitating their recovery, integration, and safe voluntary return to their home countries with reduced risk of re-victimisation. Through this analysis, we contribute to the ongoing debate on the Agency's legitimacy, operational accountability, and role within the broader EU constitutional framework.