Jan-Hendrik Seelow, Dutch Council for Refugees*
*The Dutch Council for Refugees has
closely worked with the applicant’s counsel to support the case from the
beginning
Photo credit: Francesco Placco, via Wikimedia Commons
Introduction
It is a few minutes after 9 a.m.
and the Grand Chamber is still buzzing with morning energy. While Counsels of
the parties have just convened in the back room for an introductory briefing,
the courtroom is filling up. Many of the seats are occupied; students, other
interested visitors and a number of media representatives are present. A larger
group were visiting the European Commission and could not miss the hearing.
Some members of the two legal teams who did not attend the morning's
preliminary briefing are eagerly rummaging in their bags, spreading out
documents, and are accompanied minutely by cameras, microphones hovering above
them on long poles.
The interest in today's hearing
is undeniably high, and not without good reason. What is at stake today is
nothing less than the question of whether Frontex itself can be held liable for
its involvement - the extent of which must also be assessed - in illegal
pushbacks. Frontex, as an EU agency and as the ‘eyes and ears’ of the EU at its
external borders, certainly plays a representative role and should, like any
other Union institution, be obliged to respect fundamental rights and the rule
of law. And the EU Court of Justice most certainly has jurisdiction with
respect to its compliance in that regard.
In October 2016, a Syrian family
of six, two parents and four children, arrived in Greece, where their asylum
application was registered. Just eleven days later, Frontex and Greek
authorities placed them on a flight to Türkiye, without processing their asylum
request or issuing a return decision. Upon arrival, the family was immediately
detained. In 2021, after unsuccessful attempts of seeking justice through
Frontex’s complaint mechanism, the family filed a claim for damages against
Frontex based on Article 268 TFEU (non-contractual liability of EU bodies).
The EU General Court (GC) issued
its judgment
on September 6, 2023, focussing on only one of the three conditions for
non-contractual liability within the Court’s jurisprudence: the conduct must be
unlawful, actual damage must have been suffered, and there must be a causal
link between the alleged conduct and pleaded damage. That Court chose to focus
on the causal link, instead of first establishing the unlawful conduct that the
applicants challenged. Highlighting that, as regards return operations, “Frontex’s
task is only to provide technical and operational support to the Member States
and not to enter into the merits of return decisions”, the GC negated a causal
link between the agency’s actions and damages that occurred as a result of the
return. No mention was made of the fact that no formal return decision had ever
been issued, a failure that went unnoticed by Frontex as it put the people –
supposedly ‘returnees’ – on its plane. Critical comments were not long in
coming (for example here,
here),
some of which on this blog (here,
and here).
The family launched an appeal of
the General Court’s judgment to the CJEU in November 2023. A little more than a
year later, here we are, at the appeal hearing before the CJEU Grand Chamber.
As a disclaimer, the following sections aim to illustrate the hearing by
summarising submissions, the essence of the questions raised by the judges, and
their responses – without aiming to imply underlying or hidden messages. For
the sake of transparency, a recording of the hearing can be viewed here.
The hearing
Following an introduction of the
President, Eleanor Sharpston takes the floor. She represents the Syrian family
together with lawyers from Prakken d’Oliveira, an Amsterdam based Human Rights
Law Firm. Sharpston is an English barrister with a long career in EU law. She
had been Advocate General at the Court of Justice since 2006, which came to an
abrupt end with Brexit. Her appearance before the Court is therefore a
remarkable event in itself. When she entered the courtroom, several members of
staff accorded her a heartfelt welcome.
After an appreciation to the Court
for the Grand Chamber referral, Sharpston highlights the key issues of the case
in simple terms. Does Frontex have to verify before a return operation that the
people affected are actually subjects of a return decision? Or could anyone be
on that plane? She makes very clear that these are issues of law, not of fact.
The GC erred in law by assuming the application was filed against a return
decision. Instead, no such decision had ever been taken. The applicants argued
that it was Frontex’s own obligation to notice this and intervene accordingly.
Referring to the EU acquis, Sharpston
pleads that – had everything gone according to law – the family would have
remained in Greece for a processing of their asylum application, and eventually
received proper protection and social support. Emphasis clearly lies on the
question: which obligations of its own does Frontex have before, during and
after any operation it is involved in? Whilst the reporting obligations after
an operation are vital, had they proactively monitored the operation,
discovered that there was a flagrant error in the return (the absence of a
return decision) and intervened accordingly, no damage would have occurred.
These are – according to Sharpston – ‘obligations of result’ and not satisfied
with a ‘nice try’.
Frontex takes the floor. The
agency hired Dr. Bertrand Wägenbaur, a German lawyer leading the CJEU
litigation at Alber & Geiger. From his remarks, it swiftly transpires that
both parties focus on the question of where the line is drawn between the
competences of the member states and Frontex in relation to return measures.
While Sharpston concentrates on Frontex's individual obligations under its own
regulation, Wägenbaur focuses on the division of competences underlying the EU
acquis.
Although these questions overlap
and a differentiation may seem purely semantic, they represent two different
perspectives that are taken here. Frontex points towards Article 4(3) TFEU
which enshrines the principle of sincere cooperation. The agency, having
received a list of people that had not applied for asylum, could not take the role
of some ‘guardian’ that ensures that the member states have done their
‘homework’ properly. He admits that it would be a mistake should Frontex ‘look
to the ceiling’ and find all and everything to be the competency of member
states. But in this case, according to Wägenbaur, the agency had in fact
received a list of people which it did not have to verify further. He therefore
limits Frontex’s own obligations to those of operational manner, save highly
exceptional circumstances. Question remains, what would be those highly
exceptional circumstances if not removals of a family of six, with four
children, while their asylum application is still pending? Does Frontex not
have monitoring functions? And who supervises Frontex, if not this Court?
The very first question from the
row of judges concerns the admissibility of the appeal. Challenging the
assumption of the GC that the application was directed toward a return decision
might be a question of fact rather than of law. Barrister Sharpston takes the
stand to reply that the GC, in first instance, made the ‘legal assumption’ that
the first instance claim was a challenge to a return decision, which is uncontestably
an exclusive competency of the member states. In contrast to that, the
challenge was directed at Frontex conduct. To be precise, whether Frontex had
fulfilled its obligations deriving from its own Regulation (Regulation (EU)
2016/1624), its Standard Operating Procedures, and its duties under the Charter
of Fundamental Rights, by verifying whether there actually had been a return
decision with regard the applicant family. The agency had only received a list
of persons who had not applied for asylum.
A subsequent question refers to
the fact that following this incident, Frontex had in fact changed its modus
operandi regarding return operations and is now applying a ‘check list’ to
verify, among other things, whether there has been a return decision and
whether the returnee is fit to fly. Frontex elaborates on the new procedures
without answering the question why they had been established, leading to a
reiteration of the question: Had Frontex not previously argued that there was
no need to verify lists submitted by the members states, due to the principle
of sincere cooperation between them and the EU? How come the change in
procedure? Frontex clearly struggles to answer the question.
At this point, the President of
the Court, Koen Lenaerts, leans forward and intervenes. Frontex had previously
admitted that there should be no fundamental errors in conducting return
operations. The essence of the question here was whether Frontex had not the
initial obligation to at least verify whether a return decision had been taken.
This brief repartee gives place
to another critical question; who is to be held liable for damages? The
question originates from Article 42(1) Regulation 2016/1624 which holds that
“Where members of the teams are operating in a host Member State, that Member
State shall be liable in accordance with its national law for any damage caused
by them during their operations” – seemingly conflicting with Article 60(3) of
the same Regulation. The latter specifies the case of non-contractual
liability: “the Agency shall, in accordance with the general principles common
to the laws of the Member States, make good any damage caused by its
departments or by its staff in the performance of their duties”. Barrister Sharpston
provides in essence that, while these articles may appear contradictory at
first glance, the provision on civil liability may refer to ‘breaking a vase’
rather than damages occurring through fundamental rights violations. Article
60(3) would pay tribute to the shared responsibility of both parties during
operations and develop appropriate standards that allow for holding Frontex
liable for damages occurring from a breach of its own laws and provisions.
After this rather academic
debate, as it was called by President Lenaerts, the discussion circles back to
the question who bear(s) primary responsibility for ensuring the lawfulness of
a return operation. The question is posed, should we accept that the member
states have primary responsibility, does that mean that Frontex has none at
all? Do they have some sort of individual obligation? Or is there a third way?
Wägenbaur responds that Frontex, compared to the member states, had a
‘considerably smaller amount of responsibility’. The judge intervenes – does
Regulation 2016/1624 not establish that Frontex, additional to the member
states, can be held liable? Or can only the member state be held liable for the
totality of the operation? Of course, Wägenbaur admits, Frontex cannot be
sheltered from any liability whatsoever. But he repeats that the agency had
received and seen a list of people who had not requested asylum.
The fact that Frontex operated on
the basis of such list without conducting any further verification leads to the
last question that this contribution will reflect upon, a question that may
stem from more willingness to put oneself, imaginably, in the situation at
stake. Even if Frontex had, one of the judges asks, received a list of people
that had not applied for asylum, how likely is it that a family of six, with
four kids, would not ask for asylum after all the trouble (risking their lives
on a boat) they went through, and then choose to be returned? Should this not
have triggered further monitoring or even suspicion than to basing the return
operation simply on that list? After being pointed to the fact that this
question does not concern cases in abstract, but a particular incident, a
particular family and their story, Frontex submits that the agency provides a
channel for complaints, an immediate link between individuals and the agency.
This triggers a follow-up: How would such a complaint mechanism work in a
situation where the applicants do not even know what is happening to them? Had
they not believed to be brought to Athens?
The Court’s President brings all
people in the Grand Chamber on that day back on the same track. He summarises
the discussions in simple terms. The matter at hand is not about abstract
questions of joint or shared responsibility for failures during return
operations, but the liability of Frontex for failing its own obligations.
Eleanor Sharpston emphasises that the questions underlying the appeal are, in
fact, simple questions. She calls the attempts by Frontex to complicate and
distort the family’s arguments ‘Strohmann’ attempts. “I think the Court has
seen through that”, Sharpston concludes. Her eyes beam through the room one
last time. On her head, she wears the typical Irish wig, tribute to her praxis
as barrister. Frontex’ representatives, led by Wägenbaur, will have to remain
in the room to defend Frontex again, in the hearing for the appeal in Hamoudi
v Frontex, which immediately follows. The Advocate General will deliver her
opinion on the 12th of June.
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