Responsibility in Joint Returns after WS and Others v Frontex: Letting the Active By-Stander Off the Hook

 

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

See also analysis of the human rights aspects of the judgment, by Francesca Romana Partipilo 

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.