WS and Others v Frontex before the Grand Chamber: Ensuring Meaningful Protection of Fundamental Rights in Forced Returns by an EU Agency acting as a Safety-Net

 

Antje Kunst*

*Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union.  

Photo credit:
Влада на Република Северна Македонија via Wikimedia Commons

 

Introduction

On 4 February 2025 the Grand Chamber held a hearing on the appeal in Case C-679/23 P against the General Court (GC)’s Judgment of 6 September 2023 in case WS and Others v. Frontex, Case T- 600/21. The case's high significance lies in the fact that the Court of Justice looks the first time at Frontex's liability in the context for illegal return operations. This article provides a brief summary of the case and comments on some of the issues discussed at the hearing. (For a summary of the arguments at the hearing, see here).

Despite high expectations by many regarding the Grand Chamber’s ruling in this case, the Court may only be asked to rule pursuant to Article 256 TFEU and Article 58 of the Statute of the Court of Justice on whether the GC committed an error of law. Thus, the judicial review might be limited in this respect.

Given the issues discussed at the hearing, it is expected that the Court of Justice will clarify Frontex’s obligations in joint return operations based on the circumstances of the individual case on appeal. Whether it will extend its reasoning beyond this case remains to be seen. It would certainly be desirable if the Court elaborated on Frontex's own fundamental rights obligations, which are distinct from Member States' obligations, also to counter the tendency of the Agency to negate its own obligations, as was noticeable at the hearing. One can certainly expect that Advocate General Ćapeta will offer interesting insights in her Opinion, which she is set to deliver in June 2025.

As a factual background the applicants, a Syrian Kurdish refugee family with four children, arrived on the Greek island of Milos in October 2016 by boat with the intention of claiming asylum. Even though they made their intention clear to apply for asylum just six days later, they were deported by flight to Turkey in a joint return operation conducted by Greece and Frontex. Because of the fear of being returned to Syria by the Turkish authorities (para. 59 of the GC’s judgment), the family decided not to stay in Turkey but to proceed to Iraq, where they reside to this day.

The applicants filed a claim for compensation, alleging that Frontex had violated its obligations under the then-applicable Frontex Regulation (the 2016 Frontex Regulation) and several fundamental rights during the return operation. Specifically, they claimed Frontex failed to comply with its obligations related, inter alia, to the principle of non-refoulement, the right to asylum and the prohibition of collective expulsion.

Admissibility of the action: Article 340.2 TFEU

Any arguable claim that fundamental rights have been violated should be subject to an effective judicial remedy, and that is in these types of cases a claim for compensation under Article 340.2 TFEU (see  more here). Despite Frontex’s arguments, the GC rightly deemed the claim admissible, which some view as a significant success in itself, as it sets a precedent for the admissibility of similar actions.

The GC’s (implicit) conclusion regarding Frontex’s verification duties

The GC dismissed the action finding that Frontex's role in joint return operations was to provide technical and operational support to EU Member States and not to enter the merits of return decisions or decide on applications for asylum (paras. 64 and 65 of the GC’s judgment). 

The GC’s holding that Frontex cannot assess the merits of return decisions or decide on asylum applications is beside the point. By failing to distinguish between a return decision and its implementation, the GC ignored Frontex’s role in the implementation of return decisions. The implementation of returns clearly falls within Frontex’s competence, and this was precisely what the appellants were challenging before the GC. That is why the GC’s findings in this regard constitute an error in law as pleaded by the appellants (see the appeal).

An EU Agency implementing member states’ return decisions

The 2016 Frontex Regulation requires the EU agency to provide necessary assistance and coordinate or organize joint return operations together with member states. With this role come specific responsibilities, which arise undoubtedly not only after a joint return operation, but also before and during such an operation, especially in monitoring and ensuring that individuals like the Syrian refugee family in question are protected from fundamental rights violations.

The 2016 Frontex Regulation specifically requires the agency to ensure respect for fundamental rights, including the principle of non-refoulement, throughout the operation. Its monitoring role in relation to return operations is outlined in Article 28(7) of the 2016 Frontex Regulation, which obligates Frontex to report any fundamental rights concerns to the participating Member States. Additionally, Article 34(2) states that Frontex must ensure no person is returned to a country where they could face refoulement. As an EU agency, it must follow the EU Charter of Fundamental Rights. The EU Return Directive further sets out rules on enforcing return decisions, including postponing a return if there is a risk of refoulement.

Independent verification duties to ensure protection of fundamental rights

From the questions asked it appears that the Court will take the view – quite correctly - that Frontex is, at a minimum, under an obligation to check if it is assisting, organising or coordinating the return of actual returnees, i.e. persons who are subject to written return decisions. It cannot simply trust the national authorities and turn a blind eye to who is on the returnees list.

In its own submissions at the hearing, Frontex acknowledged a duty to verify cases where the national documentation, including written return decisions, contains a logical or a manifest error.

The absence of enforceable return decisions in this case is not disputed by Frontex. In this respect, Frontex failed to check the relevant national paperwork. A Syrian-Kurdish family was returned where they came from, Turkey, despite having expressed their intention to seek asylum in Greece - a fact that a proper verification of the national paperwork would have likely revealed.

Frontex should have identified a clear error on the returnees list, as there were sufficient indications that the Syrian-Kurdish family, including four children, had been wrongly included. The presence of this family on the return flight—after arriving in Greece by boat and being scheduled for return a few days thereafter to Southeast Turkey without apparently having filed an asylum claim—should have raised concerns or suspicion about their possible wrongful inclusion on the list of returnees.

Regarding the risk of refoulement, the GC acknowledged that the appellants feared "being returned to Syria by the Turkish authorities" (para. 68 of the GC’s judgment). In this context, the GC failed to rule that Frontex is obligated to assess whether individuals like the Syrian-Kurdish family risk being transferred to a third country where they may face refoulement or violations of their fundamental rights. Frontex has a duty to prevent any form of refoulement in line with its own fundamental rights obligations as clearly set out in the Frontex Regulation. 

The GC failed to rule that Frontex could and should have enquired, for example by contacting the Greek authorities why this family was on the return flight to Turkey and whether their placement on the list was justified. The Agency’s failure to do so constitutes an unlawful act which the GC failed to establish.

Frontex submitted at the hearing that a few years after the events in question, a new IT tool was introduced by Frontex, requiring Member States to confirm several key conditions before a return operation can proceed. These conditions include: (a) the existence of an individual implementable final return decision, (b) the exhaustion of all judicial remedies, (c) confirmation that the returnee has not applied for asylum. To fulfil in a meaningful way its fundamental rights obligations, Frontex must actively verify this information or, at the very least, implement robust mechanisms to ensure that these criteria are met before facilitating or participating in return operations. It failed to do so in the present case.

Consequently, the GC’s conclusion that Frontex had no obligations regarding the return flight of the family to verify, to the very least, whether the return operation involved actual returnees (see the appeal) constitutes an error of law.

Sufficiently direct causal link

The GC concluded that Frontex could not be held liable for any damages related to the return operation, as the appellants had not adduced evidence of a sufficiently direct causal link between the damage invoked and the alleged conduct of Frontex (para.71 of the GC’s judgment).

The appellants correctly contended that if Frontex had fulfilled its obligations regarding the protection of fundamental rights in the context of joint operations, they would not have been unlawfully returned to Turkey. Instead, they would have obtained the international protection to which they were entitled, given their Syrian nationality and the situation in Syria at the time.

In the appeal, the appellants argued that the GC erred in law by concluding that the necessary causal link between Frontex’s actions and omissions and the harm suffered was broken by the appellants’ own "choices." In this regard it is not arguable that it was their choice to stay in Turkey in a rented house for some time, and then to abandon it and go to Iraq. On the contrary the damage they suffered was a direct result of Frontex’s failures. If the Agency had properly checked the relevant material the appellants would not have been wrongful returned to Turkey and incurred the harm they suffered.

The appellants contend that the harm they suffered was a foreseeable result of Frontex’s failure to fulfil its obligations to uphold fundamental rights during return operations and to prevent individuals from being disembarked in violation of the non-refoulement principle. At the hearing, the question was raised as to whether it was foreseeable that the family, out of fear, would not remain in South-East Turkey but instead flee to Iraq. It has been convincingly argued here  ‘it appears evident that people forcibly expelled to Turkey in 2016 could have suffered chain (i.e., indirect) refoulement to their countries of origin.’  In this case, the damage related to Iraq did not result from an unpredictable intervening event; rather, it was arguably reasonably foreseeable that the Syrian-Kurdish family out of fear to be sent back to Syria by the Turkish authorities would flee to Iraq. If the Court agrees with this, the damage related to Iraq was a direct and foreseeable consequence of Frontex’s unlawful conduct and the GC erred in law by failing to establish this.

Conclusion

The Grand Chamber’s ruling will be highly significant in defining Frontex’s role in protecting fundamental rights during return operations. Judicial scrutiny will enhance accountability and drive further reform, even if the Court must limit its ruling to the specific circumstances of this case. Both member states and Frontex have important obligations to meet when they conduct joint return operations. In this respect, as Eleanor Sharpston, Counsel for the appellants, stated in her concluding remarks: Frontex provides “a safety net that, […] preserves the honour of the European Union as an entity that values and respects the rule of law and fundamental rights.”