Melanie Fink and Jorrit J
Rijpma
Melanie Fink is APART-GSK Fellow of the Austrian Academy of
Sciences, Central European University and Assistant Professor, Europa
Institute, Leiden University
Jorrit Rijpma is Professor of EU law, Europa Institute, Leiden
University
Photo credit: Влада на Република
Северна Македонија, via Wikimedia
Commons
On 6 September 2023 the General
Court delivered its long-awaited ruling in
WS and others v Frontex. In a short and matter-of-fact judgment, it dismissed
an action for damages by a Syrian refugee family against the European Border
and Coast Guard Agency (Frontex). The family, escaping Aleppo at the height of
the Syrian war in 2016, was returned to Turkey just days after their arrival in
violation of the principle of non-refoulement. Their return was carried out as
a joint return operation between Greece and Frontex. With the action brought
before the General Court, they sought compensation from Frontex for its role in
the violation of the principle of non-refoulement, as well as their degrading
treatment in the return process.
After the many reports of
fundamental rights violations at the external borders, including pushbacks,
this was the first case in which Frontex came under judicial scrutiny for its
role in potential violations. Earlier, a damning OLAF-report,
demonstrating that the Agency had turned a blind eye to pushbacks in the course
of operations it coordinated, had led to the resignation of its Executive
Director.
Since its establishment,
successive legislative amendments have consistently increased Frontex’s powers,
short of transferring command and control over border guards and return
officers. Yet, Frontex has always maintained that it cannot be held responsible
for violations of fundamental rights as it merely acts as coordinator and
facilitator in joint (return) operations. Wrongdoings in the context of joint
operations, so Frontex, would be exclusively on the Member State in charge.
In an unsatisfactory judgment
that fails to do justice to the plight of a refugee family that turned to the
European Union for protection, the General Court now seems to confirm that
stance. Doing so, it failed to acknowledge the role and obligations of Frontex
during joint operations. Adopting an unreasonably and unnecessarily high
threshold for the establishment of the causal link requirement, it also
excludes almost any prospect of Frontex being accountable for any breaches of
its obligations. After a brief overview of the judgment, we will discuss each
of these points in turn. We refer to Regulation
2016/1624, which governed the activities of Frontex at the time of the
return, even though it has been replaced with Regulation
2019/1896 in the meantime. However, the relevant provisions have not substantially
changed.
The judgment
On admissibility, the Court
rejected two arguments advanced by Frontex. First, it did not consider that it
was called upon to make general statements of principle by ruling on the
applicants’ damages claim. Second, it did not accept the argument that the
applicants were barred from bringing an action for damages, as they could have
brough an action for annulment against the letter of the Agency’s fundamental
rights officers dismissing their complaint under the individual complaints’
mechanism. The Court held that these two actions do not preclude each other as
they pursue different objectives, but explicitly left the question whether the
actions of the Agency’s Fundamental Rights Officer within the framework of that
administrative procedure constitute challengeable acts under Article
263 TFEU, which if they are would subject this procedure to judicial review
by the Court.
On substance, non-contractual
liability arises when three
cumulative conditions are met: a sufficiently serious breach of a rule of
EU law conferring rights on individuals, damage, and a causal link between the
unlawful conduct and the damage. Reversing the order in which it assessed the
conditions, the General Court dismissed the action based solely on the absence
of a sufficiently direct causal link between the conduct of the Agency and the
damage that was invoked. At the outset it had already recalled that the
unlawful conduct would need to be the determining cause of the damage. It
considered that the applicants wrongly departed from the presumption that
without the alleged conduct by Frontex they would not have been returned. Here
the General Court repeats Frontex’s mantra that it only provides technical and
financial support. Most importantly, it emphasizes Frontex’s lack of competence
to adopt a return decision or decide applications for international protection,
leaving any liability with the responsible Member State.
The General Court skipped the
question whether the return of the applicants and their treatment during the
return procedure constituted a violation of EU law altogether. Although this
may be interpreted as a sign of judicial economy, it is also a way to avoid
having to pronounce itself on the behaviour of the Member State in question. In
addition, the Court may have otherwise been required it to address the limits
of its own jurisdiction under Article
276 TFEU, which precludes it from assessing the validity or proportionality
of Member States’ law enforcement authorities.
The Role, Obligations, and Responsibility of Frontex
By virtue of Article 28 Regulation
2016/1624, Frontex is prohibited from ‘entering into the merits of return
decisions’ because these ‘remain the sole responsibility of the Member States’.
The Court rightly held that Frontex cannot be responsible for any potential
unlawfulness of the return decision itself. As with any other national
administrative decision, it would be for the Member State authorities to ensure
its lawfulness.
Aside from the question whether a
return decision was even taken under the Return Directive, and whether this decision
was then lawful, the applicants’ allegations in the case go well beyond the decision
itself. Frontex’s alleged wrongdoing concerns the implementation of the
decision, despite clear indications of a risk of refoulement, and the degrading
treatment of the applicants as the expulsion was carried out. This phase of the
return process, i.e. the implementation of return decisions in the form of
joint return operations, is a core competence of Frontex, which by virtue of
Article 28(1) Regulation 2016/1624 renders ‘the necessary assistance’ to return
operations and ensures their ‘coordination or […] organisation’.
This coordinating role comes with
obligations. Concretely, Article 28(3) Regulation 2016/1624 explicitly states
that ‘Agency shall ensure that the respect for fundamental rights, the
principle of non-refoulement, and the proportionate use of means of constraints
are guaranteed during the entire return operation’ (see also generally Article 34
Regulation 2016/1624). In addition, as an EU body, Frontex is bound by the EU
Charter of Fundamental Rights, including the absolute prohibitions of refoulement
in Article 19 and of inhuman or degrading treatment in Article 4. These rights
are widely understood under European human rights law to include positive
obligations that require authorities to actively ensure the protection of a
right, for example by taking practical steps to protect a person against
interferences by others. Frontex has a whole toolbox of means available to meet
these obligations, including reporting and communication duties. As a last
resort, Article 25(4) Regulation 2016/1624 requires the agency to withdraw,
should violations of fundamental rights or international protection obligations
occur that are serious or likely to persist.
Frontex conducts joint return
operations together with the Member States. However, if it violates its own
obligations under EU law, it bears responsibility that may be invoked through
an action for damages. This responsibility is independent from any possible
responsibility of the Member State who in turn bears responsibility for its own
failures in the process (see also here). Not
separating the return decision from its implementation, the Court failed to
acknowledge the role of Frontex in the latter. In addition, shielding the
agency from responsibility for a violation of its obligations in joint return operations
emasculates these provisions, which also negatively affects the credibility of
the EU as a rule of law advocate.
Causation and Joint Liability
An important complicating factor in
this case, is the interplay between the actions of Frontex and the host Member
State. Situations where more than one actor is involved in causing harm are not
uncommon, but incredibly complex when it comes to allocating legal
responsibility (see also here).
First, it might be unclear who is
considered the ‘author’ of a violation, in other words, to whom the unlawful
conduct is attributable. As a national administrative decision, the return
decision is clearly attributable to the host state. Things are more
complicated at the implementation level, where the actions of the host
state and Frontex are more intertwined. However, since the Court did not
separate the return decision from its implementation, the question of
attribution played no role in the case.
The second difficulty concerns
causation, that is the link between the unlawful conduct and the damage. The
Court denies the existence of a sufficiently direct causal link between Frontex’s
conduct and the harm complained of because Frontex lacks the competence to interfere
with the return decision or grant international protection. In other words, in
the Court’s view, the return decision is the cause for the applicants’ harm,
not Frontex’s conduct. Underlying this argument seems to be an assumption that
‘exclusive’ causation might be required for liability to arise. This is also
the view the General Court defended in the recent case Kočner
v EUROPOL, a case currently under appeal with Advocate
General Rantos suggesting the Court of Justice take a less restrictive
approach to the causation requirement.
In the past, there have been cases
in which the Court seemed accepting of the idea that the existence of an
additional determining causes for a damage does not necessarily bar a finding
of liability. In light of the coordinating nature of Frontex’s tasks, allegations
of wrongdoing will usually, if not always, go hand in hand with (potential)
wrongdoing by one or more Member States. If Frontex is not accountable simply
because a Member State may have acted unlawfully too, this appears to exclude any
reasonable prospect of Frontex being held accountable for breaches of its
obligations. In fact, it would seem to stand in the way of joint liability
between the Union and a Member State altogether, which has been recognised by
the Court as early as 1967
and is a necessary means to ensure accountability in the EU’s multi-level
administration (for more detail see here).
Conclusion
The Court, in limiting itself to
an assessment of causality, failed to acknowledge a clear violation of one of
the core tenants of EU refugee law, the prohibition of refoulement, as well as
a range of safeguards laid down in EU secondary legislation. Frontex was
present during this violation, and rather than intervened, contributed to it.
All of this would not in itself have resulted in Frontex being held liable, but
the argument that it is excluded because of a lack of competence regarding the decisions
on return and international protection is flawed and lays bare a misconception of
the practical reality of joint law enforcement operations as well as the role
and obligations of Frontex under EU law in that context.
This judgment begs the question
what Frontex’s fundamental rights obligations are worth in the absence of a
meaningful way to enforce them. Even if a Member State could, at least in
theory, be held responsible before the national judge, and ultimately before
the ECtHR, that should not mean that the exercise of public power by a Union body
should be allowed to escape judicial review. In a system of shared
administration, which the management of the shared external borders has become,
joint responsibility carries a need for joint liability.
This case shows how the ‘complete
system of remedies’ fails to provide effective judicial control of public
power in the EU's area of freedom, security and justice, which is characterised
by integration through operational cooperation rather than law. Enforcement
powers remain the Member States’ exclusive prerogative in name, but in practice
are increasingly exercised jointly by the Member States and the EU. This
judgment could have provided a welcome correction to this constitutional oversight.
If upheld on appeal, it will reinforce the need for the long overdue accession
of the EU to the ECHR.
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