Frontex before the EU Courts: Damage, Causation, and Liability under Article 340(2) TFEU

 

Cases: Hamoudi v Frontex   (C-136/24 P) and WS and Others v Frontex (Case C-679/23 P)

 

Antje Kunst*

Photo credit: Rock Cohen

Introduction

In two judgments delivered on 18 December 2025 - Hamoudi v Frontex (Case C-136/24 P) and WS and Others v Frontex (Case C-679/23 P) - the Court of Justice significantly clarified the scope of Frontex’s responsibility for fundamental rights violations.

By referring both cases back to the General Court for re-examination, the Court of Justice highlighted serious flaws in how the General Court approached burden of proof, causation and Frontex’s fundamental rights obligations in actions for damages against the Agency.

In both cases it emphasized that Frontex bears its own obligations to protect the fundamental rights of individuals affected during its operations. This is a positive development which was long overdue. Frontex, like any other EU Agency, must be held accountable for the consequences of its operations. EU law, in particular the Frontex Regulation in connection with the EU Charter of Fundamental Rights is unambiguous on this point, despite the Agency’s persistent attempts to argue otherwise.

In Hamoudi, the Court held that the General Court failed to adapt the burden of proof when assessing whether a pushback operation, in which Frontex was involved, had occurred and whether the applicant was present. In WS and Others, the Court underlined that causation must be assessed in concreto, taking into account the specific circumstances of each case, particularly the vulnerability of asylum seekers.

Factual background of the two cases

The Hamoudi case concerns a young Syrian who was allegedly pushed back in April 2020 by Greek authorities involving Frontex operations. As the Court noted at the time of the alleged incident two Frontex operational activities were ongoing in the geographical zone where Mr. Hamoudi claims it took place. (see factual background at para.10). Mr. Hamoudi requested compensation based on Article 340 (2) TFEU from Frontex for the non-material damage he suffered as a result of the pushback in which Frontex had been involved.

In WS and Others, a Syrian family of six, including children, was unlawfully returned from Greece to Turkey in a Frontex-coordinated joint return operation in 2016, from where they fled to Iraq. The family had expressed their desire to apply for asylum, they were nevertheless placed on the return flight without that there was a return decision by the Member State. The family requested to be compensated for the harm suffered on the same basis as in Hamoudi.

Three conditions under Article 340 (2) TFEU

To establish the non-contractual liability of Frontex under Article 340 (2) TFEU, applicants must satisfy three cumulative conditions: (1) unlawful conduct, (2) actual damage and (3) a causal link between the two.

In Hamoudi, the Court of Justice examined whether the General Court had committed an error of law in its assessment of actual  damage, the second condition. In doing so, the Court of Justice was confined in its review to alleged errors of law on appeal; it could not reassess the facts or evidence as established by the General Court. In WS and Others the Court of Justice focused on whether the General Court had erred in law in its analysis of the existence of a causal link between the alleged unlawful conduct and the damage (the third condition). Upon referral, the General Court will have to reassess the facts and evidence examining whether all three conditions of Article 340 (2) TFEU are met in light of the rulings of the Grand Chamber.

Difficult (factual) assessments will still need to be made by the General Court upon referral. The good news is, however, that the Court of Justice has set out clear parameters for the General Court including active investigation duties as the blog will explain below.

Responsibility for own conduct & What the principle of sincere cooperation really means for Frontex

While the Court of Justice rejects the joint and several liability claim in WS and Others as inadmissible, it does not rule out the possibility of concurrent liability of Frontex and Member States as envisaged by Advocate General Ćapeta in her Opinion (see WS and Others at paras. 85-88 and 127 and here).

In Hamoudi, the Court of Justice stressed that, under the Frontex Regulation, “Frontex is fully responsible and accountable for any decision it takes and for any activity for which it is solely responsible” (para. 66). Beyond that, the Court highlighted that the Regulation requires Frontex, in the conduct of those activities, to ensure respect for fundamental rights. (see, inter alia para. 127).

Similarly, in WS and Others, the Court of Justice made it clear that under the then-applicable Frontex Regulation and the EU Return Directive, Frontex has its own obligations to ensure and effectively monitor respect for fundamental rights during joint return operations. (see inter alia paras. 96 to 102, 130). Joint return operations should only target those persons who are subject to enforceable written return decisions and Frontex is obliged to check that they exist for any individual a Member State plans to include in joint return operations (Frontex’s so-called “verification obligation”) (see paras. 101 and 102) and here.

The Court firmly rejected Frontex’s claim that the principle of sincere cooperation under Art.4 (3) TEU could allow it to evade the specific obligations imposed by the  then-applicable Frontex Regulation, most importantly its verification obligation. Instead, the Court made clear, which is important, that the principle of sincere cooperation requires Frontex to help ensure that Member States comply with EU law, especially fundamental rights. (see paras. 107 and 108)

While the Court of Justice’ s statements on Frontex’s legal obligations in both  cases may seem obvious, their significance lies in the fact that the Court explicitly rejects Frontex’s attempts to shield itself from responsibility, even for its own decisions and activities (see in detail the criticism of this here).

Adapting the burden of proof (Hamoudi)

Relying on Article 47 of the Charter, the Court of Justice held that the General Court applied the rules on the burden of proof and the taking of evidence in a manner incompatible with the right to effective judicial protection in the context of an alleged pushback involving Frontex. Article 47 of the Charter required an “adaptation” of the burden of proof. Individuals who claim to be a victim of a pushback involving Frontex cannot be reasonably expected to produce conclusive proof. It is sufficient to present prima facie evidence that a pushback occurred and that they were present during the incident. (paras. 104 and 110)

The Court of Justice also rightly recognized that, at the time of the facts, victims of pushbacks are in a highly vulnerable position, making it very difficult - or even impossible (probatio diabolica) - for them to gather the necessary evidence.  (para. 88 and see here in detail).  Ignoring this reality would risk granting Frontex de facto immunity (para. 105).

In future cases, the General Court will need to take the applicants’ vulnerability into account when assessing whether damage has been established under Article 340 (2) TFEU – and, as the blog explains also when evaluating the causal link between the unlawful conduct and the damage.

Testimony of a pushback victim can constitute prima facie evidence (Hamoudi)

In Hamoudi, the Court carefully assesses the probative value of the testimony of a pushback victim and concludes that the General Court ought to have concluded that Mr. Hamoudi’s witness statement was “sufficiently detailed, specific and consistent” to constitute prima facie evidence that he had been a victim of a pushback operation. (see paras. 119 and 122). The mere fact that a witness statement contains several statements which are insufficiently specific with regard to essential points of fact does not, in itself, justify the conclusion that it cannot amount to prima facie evidence (para. 120)

Similarly, the Court held that the fact that a person claiming to be a victim of a pushback cannot recall the exact date of their journey to Europe, or cannot clearly identify other victims as witnesses, is not sufficient to undermine the probative value of that person’s witness statement for determining whether it constitutes prima facie evidence (para. 122).

The ruling makes clear to the General Court that an applicant’s witness statement may, on its own, constitute prima facie evidence. This is welcome news for applicants who face serious practical difficulties in obtaining additional evidence (which the Court acknowledged in para. 109).

The Court of Justice also relied on a press article - the Bellingcat article – which it treated as merely corroborative, allowing the prima facie evidence provided by the applicant’s witness statement to stand on its own (see para. 125 and also this article).

Contextual evidence (Hamoudi)

Unlike the ECtHR the Court of Justice’s ruling unfortunately does not address contextual evidence such as reports by the UN or NGOs. In the recent G.R.J. and A.R.E. cases, the ECtHR relied on such material to conclude that there is a systemic practice of pushbacks in the Aegean See. The General Court should similarly consider this type of evidence in future cases, as it can be crucial in establishing the facts surrounding pushbacks and Frontex’s involvement.

Evidence in Frontex’s hands (Hamoudi)

The Court emphasised a crucial point regarding proving pushbacks: due to Frontex’s monitoring role, its operational data-collection tasks, and its obligation to ensure compliance with EU fundamental rights, the Agency “must have” relevant information“ at its disposal” (paras. 127 and 133) to establishing whether pushbacks occurred.  This is even more so, when incidents take place in areas and at times where Frontex is on the ground, like during the rapid border intervention in the Aegean Sea and Joint Operation Poseidon.  (paras. 96 and 97).

In this context, the Court made clear that the Agency cannot simply claim it had no knowledge about an alleged pushback without a proper explanation why this is so (see para. 127).

Evidencing Pushbacks: The General Court’s duty to investigate (Hamoudi)

The Court of Justice rightly criticised in Hamoudi that Frontex had failed to cooperate voluntarily (para. 148) whilst it “must have had at its disposal” the relevant information. In this regard, the Court drew the correct conclusion by making clear to the General Court that it must actively use its investigation powers instead of accepting evidentiary gaps caused by Frontex’s lack of cooperation. The General Court failed to use all procedural tools at its disposal to obtain relevant operational information from Frontex which is responsible for upholding fundamental rights during joint operations. (para. 133)

The General Court can request parties to produce all documents, provide information or appear in person, and even seek evidence on behalf of applicants who face difficulties accessing it (paras. 81 and 82).  Claims of pushbacks cannot simply be dismissed for insufficient evidence. The Court must order, in particular at the request of the applicant, measures to clarify the facts.

This has concrete implications for the proceedings now returning to the General Court. Mr. Hamoudi had requested a number of investigative measures (see paras. 135-141) but they were unlawfully rejected (see paras. 142, 150). On referral, the General Court must fully use its powers to obtain all information from Frontex and importantly should draw appropriate conclusions if Frontex continues to withhold evidence.

From Prima Facie Evidence to Proof (Hamoudi)

The Court of Justice in Hamoudi did not go so far as to say the burden of proof should be reversed (cf. Advocate General’s Norkus’ Opinion). However, it made a crucial clarification: when the General Court, for example on referral, concludes that prima facie evidence of a pushback with Frontex involvement has not been successfully rebutted, whether through the applicant’s testimony at a hearing, evidence from other parties, or the Court’s own investigation, then the fact in question must be treated as proven (para. 132).

In this context, it is appropriate for the General Court to draw inferences if Frontex continues to be non-cooperative and fails to provide requested information. The General Court may, for instance, attach special significance to withheld evidence or question the credibility of Frontex’s account of events. (see here regarding cases before the ECtHR). 

Assessing causal link to damage (WS and Others)

In WS and Others the Court of Justice clarified the causal link between unlawful conduct and damage, namely the costs related to the family’s temporary residence in Turkey, flight to and residence in Iraq. In exceptional cases the connection between the conduct and the harm may remain “unbroken”, even if the affected person made a decision between the conduct and the harm suffered. The Court agreed with Advocate General Ćapeta  (see here an analysis of her Opinion), that this may be reasonable given the extraordinary circumstances faced by asylum seekers, including trauma,  displacement, and risk to safety (see paras. 156 -157 and in more detail here).

The Court emphasized that the assessment of causation cannot be considered in isolation from the factual context of the case, including vulnerability and the risk of refoulment. The General Court upon referral will need to take this factual context into account when it re-examines the causal link.

Costs of legal assistance to be linked to Frontex (WS and Others)

The Court of Justice clarified that the costs of legal assistance incurred in the context of complaints against Frontex may be linked to Frontex conduct (see 166 to 174). The complaints mechanism under the Frontex Regulation  is a tool available to those directly affected by alleged fundamental rights violations by Frontex. Here again, the Court of Justice refers to the particular vulnerability of complainants (para.171), stressing that the decision to seek legal assistance cannot be treated as merely a personal choice, it was a necessary and reasonable step. The General Court will have to take this into account when examining the causal link between the costs of legal representation relating to the complaints mechanism and any unlawful conduct on the part of Frontex.

Conclusion

All eyes are now on the General Court, which must take a fresh look at these two cases. Its room for manoeuvre is limited, given the detailed rulings by the Court of Justice in both cases. Prospects in WS and Others look relatively strong, while in Hamoudi a positive outcome is possible though meeting the causal link requirement may be challenging. What is already clear however, is that the era of Frontex’s non-accountability is over.

 A serious engagement by the General Court is now expected setting the stage for how similar claims will be treated in future litigation.

*Antje Kunst is 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 relating to their fundamental rights in the context of EU external action and other areas, as well as access to justice for individuals, including staff cases. She has appeared in numerous cases before both the Court of Justice and the General Court of the Court of Justice of the European Union, including litigation involving EU bodies, agencies and missions operating under the EU’s external action framework.