On Frontex’s Operational Powers, Allocation of Responsibility for Fundamental Rights Violations and Fragmented Justice
By Prof. Jean-Yves
Carlier and Dr. Eleonora Frasca,
Université
catholique de Louvain (UCLouvain), members of Equipe droits et migrations
(EDEM)
Photo credit: Luxofluxo, via Wikimedia commons
1. The
Fragmented Architecture of Accountability in EU Migration Control
The judgments of the Court of Justice
of the European Union (CJEU) in Hamoudi
v. Frontex (C-136/24 P) and WS
and Others v. Frontex (C-679/23 P), together with the decision of inadmissibility in S.S. and Others
v. Italy by the
European Court of Human Rights (ECtHR), can be read as addressing a common
structural problem from two different judicial perspectives: how responsibility
for fundamental rights violations is allocated in a system of composite, and
externalised border controls. Read together, the Luxembourg rulings on
Frontex’s non-contractual liability and Strasbourg’s approach to extraterritorial
jurisdiction reveal, on the one hand, a tightening of accountability within the
EU legal order and, on the other, a persisting fragmentation of protection
under the Convention system. Their juxtaposition reveals an emerging asymmetry
between pushbacks and pullbacks and highlights the risk of a fragmented
landscape of remedies in a field where operational powers are increasingly
shared and strategically displaced.
The CJEU confirmed the centrality of
access to the territory of the Union in contemporary EU migration policy by
subjecting obstacles to external border crossings to strict judicial review. Overturning
decisions by the General Court that absolved the Agency from any
responsibility for its border operations (T-136/22 and T-600/21), the Court contends
that Frontex may incur in non-contractual
liability and must comply with fundamental rights obligations when exercising
its powers in border control operations. The two rulings provide interpretative clarifications regarding the
conditions for engaging Frontex’s non-contractual liability under Article 340(2)
TFEU. Anchoring the Agency’s operational role firmly within the
constitutional framework of fundamental rights, the Court redefined the
division of responsibility between Frontex and Member States in joint
operations (Hamoudi
v. Frontex) and partially reshaped the concept of causation,
clarifying the link between Frontex’s conduct and alleged pushbacks (WS
and Others v. Frontex). In contrast, the Strasbourg
Court did not approach joint state responsibility in externally coordinated
maritime Search-and-Rescue (SAR) operations involving cooperation with Libya (S.S.
and Others v. Italy).
The real challenge in the
interpretation of EU migration and asylum law no longer lies in the technical
refinement of positive norms. Rather, it stems from the operational choices
through which the Union and its Member States implement migration
control. In particular, maritime operations and cooperation with EU agencies as
well as third countries’ national authorities generate complex legal questions
precisely because border control activities are organised (and presented) as
technical or operational, rather than as exercises of public authority with
distinct legal consequences. Two structural features amplify this complexity.
First, Frontex’s operational activities are embedded in a hybrid administrative
framework that blurs the boundaries between Union and national competences.
Second, joint operations disperse decision-making and execution across multiple
actors, including third countries’ migration control authorities. In the
context of pushbacks, this model of composite governance waters down the
attribution of responsibility where illegal coercive practices occur. In the
context of pullbacks, the expansion of controls at and beyond the Union’s
external borders – through externalisation techniques – further complicates
accountability.
2.
Asylum Seekers’ Vulnerability
Requires an Adjustment of the Burden of Proof Regarding the Damage Suffered and
Caused by Frontex’s Pushbacks
In the CJEU’s own words
in Hamoudi
v. Frontex, a pushback operation undermines the
effectiveness of judicial protection for asylum seekers who have reached the
territory of the Union and it “is characterised by the significant
vulnerability of the persons subject to it and by the absence of the
identification and personalised treatment of those persons by the authorities”
(para 88).
Following the Advocate
General’s Opinion and on the very basis of the Frontex
Regulation, the Court clarifies the division of
responsibility between Frontex and the Member States: “while Frontex and the
national authorities responsible for border management have a shared responsibility
[…], Frontex is fully responsible and accountable for any decision it takes and
for any activity for which it is solely responsible under that regulation” (para 66).
For the time being, the CJEU
has adopted a substantive approach to responsibility attribution, refusing to
allow operational powers to serve as Frontex’s procedural shield. The Court recalls that Article 97(4) of the same Regulation
“provides – like the second paragraph of Article 340 TFEU, to which it gives
a concrete expression – that, in the case of non-contractual liability, Frontex
is, in accordance with the general principles common to the laws of the Member
States, to make good any damage caused by its departments or by its staff in
the performance of their duties. Consequently, the case-law of the Court
relating to that provision of the TFEU is relevant in the present case” (para 67).
Next, and most importantly, after reiterating the obligation to compensate any
damage, the Court acknowledges “the need to adapt the burden of proof” in
respect of that damage, adapting it to the “specific circumstances” of
operations conducted by Frontex, even when carried out jointly with a Member
State (paras 86
et seq.).
Unequivocally, the
judgment is rooted in the constitutional framework of Article 47 of the Charter,
inviting the General Court, where necessary, to make use of the exceptional
measures of inquiry permitted under its Rules of Procedure “in order to guarantee
[effective judicial] protection […] which is fundamental in the European Union
as a Union based on the rule of law” (paras 78
and 80–84). This means that Frontex can no longer
rely on the complexity of its operational arrangements nor on the
intermediation of Member States to escape effective judicial review of the activities
for which it is “fully responsible” (para 66).
The Agency cannot claim a “de facto immunity” that would hinder “all legal
action by victims of a pushback operation against Frontex” (para 105).
The “full respect” for the right to an effective remedy requires an “adjustment
of the burden of proof,” which, in particular, must allow applicants to limit
themselves to “present prima facie evidence that that operation, in which
Frontex participated, occurred and that they were present during it” (para 106).
In the present case, this may consist of the applicant’s testimony corroborated
by a press article concerning the pushback.
The General Court ought
to have granted the requests for measures of inquiry and hearings to actively
seek the evidence held by Frontex, for example by ordering the Agency to
produce documents in its possession. The Court notes that, on the one hand,
Frontex is “likely to possess information that is relevant for the purpose of
proving the existence of pushbacks” (para 96)
and, on the other hand, that that failure to cooperate by Frontex “justif[ied]
the General Court’s involvement” (para 148).
The standard of proof must necessarily be relaxed, considering the
informational asymmetry inherent in situations of pushbacks at the borders.
Operational decisions adopted by Frontex must be traceable, and the Agency’s
practices – long presented as purely technical – must be acknowledged in
their full legal significance (on Frontex’s growing power not matching its
fundamental rights responsibility, see G. Raimondo).
3. On
the Reasonableness of Asylum Seekers’ Choices in the Assessment of the Causal Link
The Court further
develops the analysis of causation in light of the asylum seekers’ conduct in WS
and Others v Frontex (Joint return operation).
In its 2023
judgment, the General Court had taken into account
numerous factual elements relating to the applicants’ conduct in order to
dismiss their claim for damages. However, these elements concerned events
subsequent to the refusal of entry into Greek territory and the return to
Turkey, such as their departure from Turkey and their settlement in Iraq.
According to the General Court, such decisions were autonomous choices,
the risks and costs of which the applicants had knowingly assumed. They were,
in a sense, rational choices comparable to those made by economic operators in
other cases concerning the Union’s non-contractual liability. The General Court,
therefore, concluded that the damage resulting from such choices could not be
attributed to Frontex’s conduct, in the absence of a sufficiently direct causal
link with the Agency’s actions.
At that time, we already believed
that this line of reasoning was highly questionable (see our analysis in the Journal
de droit européen). It characterised the
subsequent conduct of the Syrian asylum seekers as “autonomous choices” and effectively
neutralised the prior legal and factual constraints inherent in the asylum
context. Access to the territory of the EU is not a strategic option. Without
access to the territory, there can be no access to the asylum procedure. Where
Frontex, through the actions of its agents – whether alone or in cooperation
with those of a Member State –, unlawfully prevents access to the EU territory,
those actions constitute a decisive cause of the damage
consisting in the impossibility of accessing the refugee status determination
procedure. Even if shared with the Member States, there is a responsibility of
the Union that cannot be ignored.
Similarly, the CJEU
censured the General Court’s flawed causal reasoning. The Court observed that,
while an “entirely rational decision-making may be expected of economic
operators experienced in the management of risks involved in the exercise of
their usual activities […], such rational behaviour cannot be elevated to the rank
of a criterion of general application, in particular when natural persons are
concerned” (para 155).
The applicants’ decision, “although not the only possible response, may be
regarded as a reasonable response having regard to all the circumstances
characterising that situation” (para 157,
emphasis added). Such choices are not capable of breaking any sufficiently
direct causal link between the conduct complained of and the alleged damage
without first assessing in
concreto their reasonableness “in
the light of all the circumstances characterising the context in which they
were made” (paras 161
and 197).
The Court thus clarifies
the method for examining the causal link between alleged violations of
fundamental rights committed by Frontex and the damage suffered by asylum
seekers following their expulsion from Union territory. To that end, the Court
provides a clear reconstruction of the obligations incumbent upon Frontex regarding
the protection of fundamental rights, particularly in the context of joint
return operations. These obligations include verifying the existence of
“written and enforceable return decisions […] for all persons whom a Member
State intends to include in such operations” (para 107),
in order to ensure compliance with the principle of non-refoulement.
Admittedly, the Court specifies that this obligation of verification does not
automatically entail the existence of a causal link, the assessment of which
“must be undertaken taking into account of all the relevant facts […] and the
legal assessments required” (para 112).
Furthermore, given the
joint nature of such operations, the fact that Frontex provides “technical and
operational” support to Member States does not mean that any alleged violation
of the asylum seekers’ fundamental rights would result exclusively from the
Member State’s conduct (in this case, Greece), thereby excluding the
possibility of engaging Frontex’s liability. In doing so, the Court requires a
well-articulated reading of liability arising from the exercise – even in
hybrid form – of the Union’s public authority, subject to full and effective
judicial review.
The lesson is clear:
litigation concerning Frontex cannot constitute exceptional litigation.
The more autonomous capacities the Agency possesses, the more it might be held legally
accountable for their exercise. Clearly defining the contours of responsibility
thus becomes a central issue of the EU administrative and constitutional law.
The Court’s judgment reflects a firmer recognition of Frontex’s own obligations
regarding fundamental rights protection and a more open approach to causation
in joint operations. It stands in clear opposition to the restrictive
interpretations of the conditions for engaging the Agency’s non-contractual
liability adopted by the General Court in 2023.
4. On
Allocation of Responsibilities for Fundamental Rights Violations and Competences?
One can only endorse
these two Frontex rulings, which hold the EU agency accountable for its
actions. That is not to say that assessing their consequences will be
straightforward. As the cases have been referred to the General Court following
the annulment of its original decisions, the concrete analysis of causation,
damage and compensation for the harm suffered remains open. However, it cannot
be denied that the Court’s reasoning leads to a certain shared responsibility
between the Member States and the EU agency. Could this division of
responsibility result in joint and several liability (in solidum) of all
the actors for the entirety of the damage? The question is not definitively
settled. Advocate General Tamara Ćapeta devoted a fairly extensive analysis to
this issue in her Opinion
in WS and Others. Limiting herself on
this point to examining causation, she nevertheless suggested that “in
situations in which both Frontex and Member States share obligations in joint
return operations, Frontex can be held liable for damage caused by the breach
of such obligations, even if a Member State can be liable in parallel for the
same damage” (para 93).
Her reasoning drew on a possible analogy with the joint liability of another EU
agency, Europol (Kočner
v. Europol). In the case of Europol, it might be
difficult a posteriori for a person harmed by an abusive alert to
determine whether the source was the EU agency or a Member State. In contrast,
with Frontex there would be, in a sense, a
priori responsibility on the part of each actor – both the State and the Agency
– each being fully required to prevent any serious violation of fundamental
rights. Both scenarios could lead, in similar fashion, to joint and several
liability.
However, the CJEU held
that the plea alleging possible joint and several liability was inadmissible on
the ground that it had not been raised before the General Court (WS
and Others, paras 80–89). Consequently, at least in the cases at issue, it is
highly likely that – not least because of the division of competences –
separate findings of liability will be made corresponding to each actor’s share
of responsibility. This latter scenario could generate complex litigation,
leading to parallel proceedings before Luxembourg and Strasbourg. In his
commentary on the two judgments, Johan Callewaert
highlights their systemic significance for protection under the European
Convention on Human Rights (ECHR). The complex cooperative frameworks of a
hybrid administration (such as joint operations) create new situations from the
ECHR perspective. Certain actions carried out on the territory and under the
jurisdiction of Member States, but by EU agencies such as Frontex, result in
fragmented Convention protection: “patchwork
coverage”. Some actions would remain covered by
the Convention when attributable to national authorities, whereas those
attributable to EU bodies would escape it and fall instead within the
jurisdiction of the EU courts, with the result that the ECtHR would no longer be
able to hold a State liable for the entirety of the damage arising from
a joint operation. In other words, while the 2025 Frontex case law shed some
light – by reducing the grey areas regarding EU liability – it also cast a
shadow, as any light does, in this case concerning the extent of damage that
the ECtHR may attribute to the responsibility of States. The way out of this
paradox would, of course, be the completion of the EU’s accession to the ECHR.
Yet that prospect still appears remote.
5. Non-Justiciability
of Human Rights Violations Arising from the Coordination of Search-and-Rescue (SAR)
Operations at Sea
While the evolving case
law concerning Frontex has led the two European courts – Luxembourg and
Strasbourg – to review, concurrently if not jointly, compliance with
fundamental rights in pushback operations at the borders, for the time being,
so-called pullback operations still escape review by the Strasbourg Court. Even
if the ECtHR emphasised
that “entering into bilateral agreements on migration
with third States has the effect of placing extremely vulnerable individuals at
serious risk of infringements of their fundamental rights” (S.S.
and Others v. Italy, para 110), such arrangements do not automatically bring those
individuals within the jurisdiction of a Contracting State for the purposes of
the Convention, thereby limiting access to Strasbourg protection.
The inadmissibility
decision delivered in S.S.
and Others v. Italy reveals the limits
of Convention responsibility in the face of the EU policy of delegating
migration control, including maritime control, to third countries. The
involvement of EU Member States in SAR operations in the Mediterranean cannot
be understood without reference to the central role entrusted, for more than a
decade, to the border coast guards of third countries such as Libya or Tunisia.
In the absence of an integrated EU SAR programme, the Union and its Member
States have progressively externalised the management of SAR obligations, while
adopting an increasingly restrictive approach toward humanitarian operations
conducted by non-governmental organisations (NGOs). This development has been
accompanied by financial, material and operational support to third countries:
provision of vessels, training, technical assistance and the establishment of a
coordination centre (on this topic see E. Frasca).
Although the strengthening of SAR capacities in these countries is officially
carried out in the name of saving human lives, it is structurally linked to the
objective of preventing irregular Mediterranean crossings into the EU
territory.
By relocating such
actions, externalisation also makes it possible to shield these practices from
scrutiny under the obligations arising from the ECHR. Yet this strategy unfolds
in a context marked by interceptions at sea that systematically expose migrants
to serious violations of their fundamental rights, including treatment contrary
to Articles 2 and 3 of the Convention. Like the cases concerning Frontex
before the CJEU, S.S. and
Others v. Italy raises the issue of the dilution and
segmentation of the exercise of powers and, consequently, of responsibilities
in the conduct of SAR operations at sea. The Strasbourg Court confirms that its
jurisdiction over extraterritorial actions of Contracting States remains exceptional.
To fall within its jurisdiction, such extraterritorial actions require the
establishment, in the control exercised over individuals, of a direct link with
the respondent State. In this way, a dissociation occurs between factual
causation and legal attribution, creating a procedural obstacle that is
practically insurmountable (on this topic, see C. Ryngaert).
In the present case, the Court held that the financial, logistical and
operational support provided by Italy to strengthen the capacities of the Libyan
coast guard does not, absent effective control or direct operational direction,
amount to sufficiently decisive influence to trigger jurisdiction within the
meaning of Article 1 of the Convention. In doing so, it effectively casts
a veil of ignorance over any responsibility of a Contracting State under
the ECHR. Any notion of indirect, functional, or remote control is rejected,
even where the risks faced by the persons “rescued” at sea – only to be
returned to Libya and subjected to torture and inhuman treatment that has been
widely documented – are fully known.
Conclusion: A Rebuttable Presumption
Grounded in Prima Facie Evidence
Rulings on matters of access to the
EU territory are likely to become more and more significant, signalling a new
focus not only by Member States but also by national courts and, consequently,
by the CJEU and the ECtHR, on the control of the Union’s external borders and
their heir harmful consequences on asylum seekers. The
ECtHR’s
inadmissibility decision may be read as
consistent, confirming the Court’s settled case law on extraterritorial
situations (Banković,
Al-Skeini,
M.N.
v. Belgium). It may also be read as a retreat from
an evolutive interpretation of fundamental rights in light of today’s
conditions. Indeed, a well-established case law recognises indirect responsibility
or secondary accountability (par ricochet) in cases of extradition or
refoulement, and this restrictive interpretation of jurisdiction refuses to
adapt this case law to the reality and contemporary transformations of
migration control. There is a middle ground between the frequently criticised
slippery slope of judicial overreach whereby Courts are deemed overly
protective and the equally problematic territorial lock that shields
fundamental rights violations of a serious nature from scrutiny. The middle
ground advocated here may appear modest: a rebuttable presumption grounded in
prima facie evidence. However, it is precisely in such narrow interpretative
openings that the protection of fundamental rights may evolve, by adapting
interpretation to the context – a context marked, on the one hand, by
situations of extreme vulnerability and, on the other hand, by elements such as
bilateral agreements and conspicuous funding which make it possible to presume
a genuine link between the contested acts and a Contracting State. Just as the
Luxembourg Court has done with regard to Frontex, the Strasbourg Court would be
well advised to accept that prima facie evidence gives rise to a rebuttable
presumption (juris tantum) requiring the Contracting State to produce
evidence capable of rebutting responsibility through facts and documents that
would exonerate it. “There’s a crack in everything. That’s how the light gets
in”, sang the poet Leonard Cohen.
In the present context, we believe that European courts and judges must now
more than ever try to maintain a balance. That crack
is the space within existing doctrine, mindful of the rights of the
individuals concerned, that allows Courts to remain
faithful to their jurisdictional frameworks while adapting to new realities of
migration control.
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