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.

 

Hamoudi v Frontex: Advocate General Norkus’ Opinion - Reversing the Burden of Proof and the Presumption of Frontex’s Privileged Access to Evidence

 

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: Francesco Placco, via Wikimedia Commons

 

Introduction

Following the hearing  on 4 February 2025 by the Grand Chamber on the appeal of Hamoudi v Frontex in Case C-136/24 against the General Court (GC)’s Order of 13 December 2023 the Advocate-General rendered his opinion on 10 April 2025 (‘Opinion’).  

As outlined  here, the case of Hamoudi v. Frontex involves a Syrian asylum seeker, Mr. Alaa Hamoudi, who, claims that on 28 and 29 April 2020 he was a victim of collective expulsion in the Aegean Sea. In this context, Mr. Hamoudi asserts that while a group of 22 individuals including himself were at sea, a private surveillance aircraft, equipped with a camera and operated by the European Border and Coast Guard Agency (Frontex), flew over the scene twice. A highly damaging report by the EU Anti-Fraud Office (‘OLAF report’) on Frontex was made public through an NGO in October 2022 and covered precisely the period in question — including April 2020 — and confirmed that incidents of pushbacks occurred under Frontex's watch, involving Frontex surveillance aircraft in the Aegean Sea.

In an action for damages before the EU General Court, Mr. Hamoudi requested that he be compensated by Frontex for the non-material damage suffered due to the collective expulsion. In his arguments before the General Court Mr. Hamoudi inter alia asserted that because Frontex surveillance aircraft flew over the collective expulsion it had specific knowledge of that incident but failed to report it and take appropriate action as per its mandate (see para. 11 of the Opinion)

The General Court dismissed the action as manifestly lacking any foundation in law. It found that Mr. Hamoudi had failed to prove the actual damage he claimed to have suffered. The evidence adduced by the appellant ‘was manifestly insufficient to demonstrate conclusively that he was present at and involved in the alleged incident of 28 and 29 April 2020’ (see paras. 39 and 62 of the Court Order).  

Advocate General's limited Analysis: Reversal of the Burden of Proof

As requested by the Court of Justice of the European Union (‘Court of Justice’ or ‘CJEU’) the Advocate General centred his analysis on a possible reversal of the burden of proof in relation to the existence of damage in collective expulsion cases. (para.22 of the Opinion).  In doing so, he looked in detail at the case-law of the Court of Justice in various areas including discrimination (paras. 30 to 37 of the Opinion) and the case law of the European Court of Human Rights (ECHR) in expulsion cases (paras. 40 to 50).

In his analysis of the case-law of the ECHR in expulsion cases he considered the recent successful collective expulsion case of A.R.E. v Greece in particular ‘instructive’.

Importantly, the Advocate General referred to the fact that in A.R.E., the ECtHR applied its case law on the burden of proof related to secret detention cases. Once the applicant presents prima facie evidence, the Court may draw strong adverse inferences from the respondent government’s failure to disclose essential documents to establish the facts, or failure to offer a satisfactory and convincing explanation of the alleged events. (paras. 41 to 44 of the Opinion)

In line with the jurisprudence of the CJEU and ECtHR, the Advocate General rightly emphasizes that the burden of proof cannot be placed on the claimant to establish facts or produce evidence that is likely to be exclusively in the possession or control of the respondent, here Frontex. If any concrete evidence of collective expulsions exists, it is far more likely to be held by the alleged perpetrator rather than the victim. (para. 51 of the Opinion)

The Advocate General’s three conditions

In the Advocate General’s view, based on the CJEU’s and ECtHR’s case law, the burden of proof may be reversed in cases like Mr. Hamoudi’s case when three conditions are met.

The FIRST CONDITION: (see para. 57 of the Opinion) is that the claimant must present prima facie evidence in support of his or her claim. If the claimant’s account is inconsistent, incoherent, or if the claimant lacks credibility, this initial burden is not met, and the case should be dismissed. Consequently, the reversal of the burden of proof becomes relevant only once a prima facie case has been established. In this context, the Advocate General relies in particular on the case law of the ECtHR, for example as set out in the recent case of G.R.J. v Greece (see § 179).

As stated here, from the questions of the judges at the hearing it appears that the Court of Justice is considering to hold that prima facie evidence had been presented by Mr. Hamoudi. In any event, the Advocate General correctly opines that the General Court may have placed the ‘evidentiary bar’ too high in the first place (para. 64 of the Opinion). In this context, though, the Advocate General omits that the General Court in its assessment of the evidence failed to consider the various contradictory public statements about the events by Frontex outside the proceedings, in particular when the OLAF report was made public and crucial general contextual evidence. Such general contextual evidence was considered in the recent G.R.J. and A.R.E. cases by the ECtHR. This evidence led the ECtHR to conclude that there is a systemic practice of pushbacks in the Aegean See and that the Greek Government failed to refute the evidence by providing a satisfactory and convincing alternative explanation (see § 190 in G.R.J. and § 229 in A.R.E. and footnote 80 of the Opinion).

The SECOND CONDITION: (para. 59 of the Opinion) for the burden of proof to shift is the existence of a clear or structural imbalance in access to evidence—specifically, where the claimant faces significant obstacles in presenting evidence, while the respondent, in this case Frontex, is in a better or more privileged position to refute the allegations. Mr. Hamoudi, a vulnerable asylum seeker with his mobile phone confiscated, lacks the evidence to prove Frontex’s involvement in the events, whereas the respondent is best placed, in a privileged position to prove or disprove the allegations (see in more detail under: ‘Presumption of privileged access must be applicable to Frontex’). There can be no doubt that the second condition is met.

The THIRD CONDITION: (para. 60 of the Opinion) is that the failure to shift the burden of proof would render ineffective the claimant's (fundamental) rights protected under EU law while a shift would not undermine the respondent’s (fundamental) rights under EU law. In Mr. Hamoudi’s case the failure to shift the burden of proof would render ineffective his fundamental rights inter alia under Article 19 of the EU Charter of Fundamental Rights and undermine his right to an effective remedy under Article 47 of the Charter. The shift would not undermine any (fundamental) right of Frontex under EU law. On the contrary, by providing evidence to prove or disprove the allegation, Frontex assists the Court in reaching an accurate outcome (regarding a public authority’s duty pursuant to Article 24 of the Court’s Statute to assist the Court in reaching the correct result see more here).

Presumption of privileged access to evidence not applicable?

Somewhat surprisingly towards the end of the Advocate General’s Opinion, he expresses the view that the presumption established in the jurisprudence of the ECtHR on expulsion cases—namely, that the claimant is at a disadvantage in presenting evidence while the respondent is in a stronger or more privileged position to rebut the allegations – may not be applicable to Frontex. The ‘automatic’ shift of the burden of proof, once prima facie evidence has been presented, allegedly could only be applied when the authorities of a Member State are involved (paras. 61 and 62 of the Opinion). This despite the fact that the AG opined earlier in his Opinion (para. 29) that the differences in the procedures before Strasbourg and the CJEU are more apparent than they are real.

According to the Advocate General, actors like Frontex possess more limited powers compared to the authorities of a Member State, and it was unclear whether—and to what extent—their actions contribute to the difficulties claimants face in adducing evidence of their involvement in the events at issue. Due to these limited powers, it was not clear that they would be in a better or more privileged position to rebut the claimant’s allegations (para. 62 of the Opinion).

The Advocate General’s suggestion that Frontex’s actions must have contributed to the difficulties experienced by the claimants in adducing evidence of their involvement in the events at issue is misplaced. This is not a requirement under the case law of the Court of Justice, nor under that of the ECtHR. According to this case law, it is sufficient to establish the evidentiary difficulties faced by the applicant and the respondent’s capacity to provide evidence in rebuttal.

It is wholly irrelevant whether a Member State may have more authority over certain types of evidence.  The issue is not whether Frontex differs from a Member State in terms of powers over evidence but rather who holds relevant evidence, and who does not. This must be assessed in casu,  e.g. here in relation to Hamoudi and Frontex. The Agency is not being asked to produce evidence concerning Member States’ actions, but rather evidence regarding its own actions or inactions, and knowledge, particularly in light of its established presence and two active joint operations in the region.

At the hearing, Frontex claimed its hands were tied because it did not have access to evidence held by the Member State. This is irrelevant, what matters is that it has evidence in its possession and control that may reveal what the agency did, failed to do, or knew regarding the alleged collective pushback action on 28 and 29 April 2020 in the Aegean Sea.

Undesirable Consequences of having to demonstrate Privileged Access to Evidence

If, as the Advocate General proposes, the burden of proof only shifts when it is first shown that Frontex is better placed to refute the allegations than a claimant, then in practice, the burden might never shift. The Court of Justice should firmly reject this approach.

Accepting that Frontex is - unlike a Member State - not presumed to have privileged access to evidence would undermine its positive obligations to protect fundamental rights of individuals in distress at sea and enable Frontex’s impunity and outright ignores a textual reading of article 7(4) in line with article 80(2) and 80(3) of the Frontex Regulation, which outlines the exclusive positive human rights responsibilities that Frontex has within the context of joint operations. It would risk making Frontex’s legal obligations unenforceable. This would also contradict the Advocate General’s THIRD CONDITION outlined in paragraph 60 of the Opinion.

Presumption of privileged access must be applicable to Frontex

Related to Frontex’s own actions, its own responsibility to comply with its own fundamental rights obligations as per the Frontex Regulation, and the harm resulting for claimants, Frontex must be presumed of being in a better or more privileged position in collective expulsion cases such as the present one.

The appellant is a Syrian refugee, pushed back at night, with his mobile phone confiscated and lacks access to the evidence which shows Frontex’s involvement. Frontex, on the other hand, operates its own aerial surveillance systems and joint operations logs and collects video and radar data from its flights. The likelihood that it possesses or has under its control relevant video surveillance footage and/or incidents reports, relevant logbooks on surveillance operations is extremely high which places Frontex in a particularly privileged position with regard to access to evidence in these types of cases. Moreover, it was established in the OLAF report and during the hearing that Frontex was fully aware of the practice of so-called ghost landings pursued by the Hellenic coast guard and from that flows the duty within the context of its joint operations to collaborate with Member State authorities to prevent human rights abuses.

While it is true, as the Advocate General points out, that the General Court did not examine Frontex’s involvement in or knowledge of the alleged events of 28 and 29 April 2020, this omission stems from the General Court’s erroneous exclusive focus on the question of damage to the appellant and whether he was present and affected by those events. However, this cannot mean that Frontex cannot be regarded as possessing or having under control the evidence needed to rebut Mr. Hamoudi’s allegations. (c.f. para. 63 of the Opinion). The very nature of ghost landings entails that the Hellenic Coastguard is no longer present at sea.

Accordingly, Frontex is in the exclusive position and best placed to confirm or deny the prima facie evidence provided by Mr. Hamoudi regarding the events that took place at sea, including whether it had a surveillance aircraft with a camera operating over the area during the collective expulsion of 28 and 29 April 2020 but failed to report it.

If there is an shift of the burden of proof based on the available contextual and personal prima facie evidence, Frontex would not face a probatio diabolica (an impossible proof). It is also not an unreasonable proof for Frontex to provide: recall that its access  led to the damning  report by OLAF which affirmed its presence on the night of 28-29 April. Frontex is not asked to prove facts that lie completely outside its sphere of influence and knowledge (see the case law of the CJEU cited at para. 53 of the Opinion). To the contrary: its being asked to provide evidence regarding events taking place within the very area of the joint operations in the region, falling entirely and exclusively within its mandate.

Conclusion

The Court of Justice in the present case should accept that the three conditions proposed by the Advocate General must be met in expulsion cases like this one for the burden of proof to shift. It should hold that this entails a reversal of the burden of proof for Frontex when the case concerns its own actions or inactions.

Contrary to the Advocate General’s assertion in his Conclusion, the state of the proceedings before the General Court permits the Court of Justice to assess that the appellant adduced prima facie evidence (FIRST CONDITION) which does allow for the burden of proof to shift, as Frontex is in a better and more privileged position than the applicant to prove or disprove its involvement in, and knowledge of, the alleged events (see Footnote 96 of the Opinion). This is not a question for the General Court to determine in proceedings following a referral back to it (contrary to what the Advocate General proposed in his Conclusion of his Opinion).

It is well established that Frontex possesses evidence directly linked to its core (and exclusive) responsibilities, including the gathering of surveillance data, the production of incident and operational reports, and the monitoring of compliance with fundamental rights as per Article 7(4) and 80(3) and 80(4) of the Frontex Regulation. This places the agency in a similarly ‘privileged’ evidentiary position as Member States are in relation to their own responsibilities in this case.

The Court of Justice should therefore set aside the order under appeal, hold that the three conditions for shifting the burden of proof as outlined by the Advocate General are met in Hamoudi’s case as it would have been the case if the respondent had been a Member State (see footnote 96 of the Advocate General’s Opinion). It should refer the case back to the General Court to reassess the matter, taking into account that the burden of proof has shifted to Frontex.

Frontex accountability: an impervious path

 

 

Laura Salzano, PhD student in Constitutional Law, Barcelona University

 

Since its creation in 2004, Frontex’ role and responsibilities have been some of the most debated issues among EU and human rights observers. Reasons for such attention are many: misuse of power, lack of transparency and non-cooperative behavior are just some of the allegations addressed to the Agency by professionals as policy experts and lawyers, academia, activists and NGOs.

 

Such criticisms are not only exogenous to the EU: the Frontex Consultative Forum (established in 2012, it assists the Executive Director and the Management Board in fundamental rights matters) expressed serious concerns in its annual reports for many consecutive years. It disclosed that the Management Board undermined the Fundamental Right Officer’s independence by appointing a former Adviser of the Executive Director as Fundamental Rights Officer ad interim; more seriously, it denounced the Agency’s reluctance to provide the needed human resources to the Fundamental Rights Office and to limit the Forum’s access of information. Also, it brought the ineffectiveness of the Individual Complaint Mechanism to the public’s attention: in 2018 only 3 incidents for alleged violations and 10 complaints were reported: an incredibly low number considering the 1500 officers deployed along the EU’s external borders.

 

Despite the almost total absence of incident reporting, the media revealed many instances in which the Agency’s officials were implicated in acts of physical violence towards refugees through the use of pepper spray, batons, and of dogs to hunt migrants. These deficiencies on human rights are due to its regulatory framework: while Frontex has been progressively granted a higher degree of power in the management operational tasks, its accountability did not grow accordingly. In fact, its competences and powers were strengthened by the 2016 Regulation and then again in 2019 (as discussed here and here).

 

This latter revision created the first EU uniformed service: the European Border and Coast Guard standing corps. The shift from mere assistance to Member States to operative powers was not accompanied by the setting up of a redress mechanism for violations of human rights. This brought the EU Ombudsman to recommend back in 2013 the establishment of an instrument enabling those whose fundamental rights were breached by Frontex to complain. While no action was immediately taken within the Agency, such recommendation was embedded in the 2016 Regulation and then enhanced in 2019. The current mechanism now provides the possibility of lodging a complaint for violations resulting from actions and omissions (Article 111, para. 2) but, as observed  by the Consultative Forum, it substitutes a proper independent judicial review and therefore does not satisfy the right to an effective remedy as enshrined in Article 47 of the EU Charter of Fundamental Rights. To assess this and other issues (i.e., the independence of the Fundamental Rights Officer) the EU Ombudsman has undertaken a strategic inquiry, still pending.

 

More recently, Frontex has come back under the spotlight of political tensions after the publication of an investigation revealing the Agency’s involvement in push-backs at the Greek-Turkish border. Whereas the notion of “push-backs” is not defined under EU law, it is commonly used to describe the set of actions aimed at pushing back migrants and asylum seekers at borders or immediately beyond them - with the purpose of preventing them to reach the protected frontier - without a proper assessment of their status and rights. Such actions often put migrants' lives at serious risk and raise issues with regard to the principle of non-refoulement, protected at EU level by the Art. 19 of the EU Charter.

 

Such serious events triggered a response from the European Commission which, for the first time, took action to investigate the allegations by calling for an urgent meeting. At the moment though, no concrete action has been undertaken yet and when reporting to European Parliament last December 1st, Frontex’ Executive Director was urged to resign.

 

As said, allegations of push-backs were the main subject of the LIBE Committee’s hearing held on  December 1st. In that occasion, for all the six incidents reported by the media, the Agency denied its involvement using several arguments.

 

The first one lies on the legal interpretation of the prevention of departure. As stated by the Agency, those events reported as illegal pushbacks by the media, could instead be interpreted as interceptions under Regulation 656/2014 (Sea Borders Regulation). According to it, if there is evidence to believe that a vessel is involved in smuggling of migrants, States may, inter alia, warn and order the vessel not to enter and alter its course towards a destination other than the territorial sea. As explained, the Regulation frames two kinds of actions that can be undertaken at borders lawfully: interceptions at sea and search and rescue activities. The issue is quite significant, since these operations take place in a grey and evolving area of the law while having the potential to highly impact migrants' human rights. Despite the fact that lawful and unlawful conducts are separated by a fine line, the European Commission's Schengen Borders Code (SBC) handbook restates which legal safeguards border coast guards should always respect, e.g. allowing anyone in need of international protection to access it. In any case, the European Commission, responding to a specific request from the Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea, clarified that the criteria of the well-known N.D. N.T. case do not apply to the present case. Predictably, it specified that being that judgment related specifically to a land border, it cannot be indiscriminately applied.

 

The second argument concerns competence. As the Director declared, full technical command lies within the host Member State: vessels, airplanes and all the deployed means were subject to the sole command of Greek authorities. On the other hand, the Agency enjoys wide supervisory powers, while Member States retain responsibility for the management of the section of their external borders (Art. 7, Reg. 2019/1896). The Management Board establishes - following a proposal from the Executive Director - technical and operational strategies. Moreover, Frontex liaison officers - who act as representatives of the Agency at borders and monitor and assist Member States in their operation - respond to it, as enshrined in Article 31. Also, Frontex exercises such power by means of the vulnerability assessment (Article 32), aimed at establishing Member States' ability to respond to challenges at external borders. Again, the assessment methodology is decided by the Management Board on a proposal of the Executive Director. Such a complicated picture is made even more difficult since the responsibility is shared between a multitude of public actors, usually involved in border control operations: the Host State (where operations take place); the Participating State(s) (other Member State(s) participating in the operation); Frontex’ standing corps. This directly leads to the unaccountability of the Agency: as illustrated by Prof. Fink, “national courts lack the competence to rule on the legality of Frontex’s conduct”, while the ECHtR has no jurisdiction on the EU and before the ECJ the “judiciary is split between a national level that adjudicates on the legality of national conduct and an EU level that adjudicates on the legality of EU conduct.”

 

The third argumentation revolves around the geopolitical context. There is no doubt that the situation at the Greek-Turkish border is a tense one, primarily due to the known border dispute. It was reported that EU Member States are often threatened by F16 planes of the Turkish military forces - thus raising the need to protect Member States’ security - falling in the framework of hybrid threats. In this case, provision of Article 41 on “critical impact level” applies. In fact, the Executive Director shall recommend any possible action needed to address the criticality. In case of situations requiring urgent actions, the European Parliament shall be informed without delay (Art. 43), while Art. 46 bounds the Executive Director to terminate activities if conditions to conduct them are no longer fulfilled. On the contrary, MEPs were informed only on December 1st. In any case, the issue raised deserves attention: working at EU external borders entails carrying out operations in highly sensitive geopolitical contexts. Nevertheless, according to its Regulation, the Agency is only accountable to the European Parliament and to the Council, surely not fully prepared to deal with external affairs, security and defense - being these the core competences of the EU External Action Service.

 

European Union borders management suffers from a specific vulnerability when it comes to the rule of law. Those whose rights are violated are mostly left with unclear, burdensome and inadequate mechanisms. A necessary starting point would be amending the Regulation to define a clear chain of command to identify anyone involved in the concerned action or omission, from the person who physically carried out the action - or did nothing to avoid it and should have - to the Executive Director. As argued by Prof Fink, only an effective ex post remedy accessible to individuals would close the accountability gap, allowing for damage compensation and a clearer identification of the public liability.

 

Barnard & Peers: chapter 26

JHA4: chapter I:3

Photo credit: Rock Cohen, via Wikimedia Commons

EU Migration Agencies: the Operation and Cooperation of Frontex, EASO and Europol

 

 

Dr. David Fernández-Rojo, Universidad de Deusto - davidfrojo@deusto.es

 

The so-called “refugee crisis” revealed the urge to ensure the functioning of the Schengen area and the Common European Asylum System (CEAS), the desire to operationally assist those Member States most affected by the sudden and extraordinary arrival of mixed migratory flows, and the need to implement effectively and uniformly the EU measures adopted in regard to migration, asylum and border management matters. Against this background, the decentralized EU Agencies, Frontex, EASO and Europol, have emerged as key actors, not only in providing emergency operational assistance to the frontline Member States, but also in implementing the hotspot approach. The expansion of the operational role, multilateral cooperation, presence on the ground and institutional significance within the Area of Freedom, Security and Justice (AFSJ) of Frontex, EASO and Europol, is now unquestionable.

 

Hence, my book entitled “EU Migration Agencies: The Operation and Cooperation of Frontex, EASO and Europol”, published by Edward Elgar Publishing, comparatively analyzes the evolution of the operational tasks and cooperation of Frontex, EASO and Europol. Special attention is paid to the expansion of the legal mandates of these AFSJ agencies, the reinforcement of the activities they undertake in practice on the ground and to what extent a gap exists between these two dimensions.

 

The evolution of the operational tasks of Frontex, EASO and Europol is analyzed and two trends are highlighted. Firstly, while the Regulations of these AFSJ agencies continue to stress that their operational role is limited to providing the competent national authorities with the technical assistance they may require, the tasks of Frontex, EASO, and to a more limited extent, Europol, have an operational nature on the ground. Secondly, Frontex, EASO and Europol are increasingly involved in guaranteeing the effective and uniform implementation of EU migration, asylum and border management measures, as well as ensuring that the concerned Member States do not jeopardize the functioning of the Schengen area or the CEAS. These two emerging trends are discussed in turn.

 

In this book I point out that Frontex, EASO and Europol closely accompany the frontline Member States in the implementation of EU migration, border management and asylum policies. These agencies focus on operationally supporting the competent border, asylum and law enforcement national authorities in effectively implementing EU law. The expansion of EU competences in AFSJ matters has gone hand-in-hand with the reinforcement of their administration, which no longer falls exclusively on the Member States, but rather, on a conundrum of diverse actors, among which Frontex, EASO and Europol play a prominent operational role.

 

The growing integration that the AFSJ is experiencing has led to a Europeanization of its administration. It is necessary to ensure a uniform and effective implementation of EU border management, asylum and migration laws. The long-standing notion of administrative and implementation power in AFSJ matters is therefore progressively shifting. The deepening of the operational powers and cooperation of Frontex, EASO and Europol is eroding the exclusive procedural autonomy that Member States previously enjoyed, when implementing EU law. These AFSJ agencies increasingly steer and shape the effective and uniform implementation of EU migration, asylum and border management laws and policies at the national level.

 

Furthermore, the extent of the operational functions of Frontex, EASO and Europol may theoretically range from merely coordinating and providing technical assistance to the Member States, to developing full-fledged enforcement and coercive powers. Since Frontex, EASO and Europol do not have independent executive competences, their tasks can no longer be described as merely technical or supportive. Despite the lack of transparency and the vague legal provisions regulating the activities that Frontex, EASO and Europol undertake in practice on the ground, their tasks do have an operational nature. The issue is that the legal frameworks of Frontex, EASO and Europol lag behind the real operational powers that these agencies exercise on the ground, which creates legal uncertainty.

 

The reinforcement of the legal mandates and inter-agency operational cooperation of Frontex, EASO and Europol thus reveal a trend, under which these AFSJ agencies are mandated to increasingly develop operational and implementation activities. The operational and implementation role of Frontex, EASO and Europol has followed a constant and linear progression since their respective establishment. While Europol, due to its still markedly intergovernmental nature, is starting to operationally assist the national law enforcement authorities in their national investigations about illegal migrant smuggling, Frontex and EASO already conduct significant operational tasks on the ground and ensure the implementation of the adopted European Union measures at the national level. Whereas the current tasks already represent an erosion of the operational powers and implementation prerogatives of the Member States, none of these AFSJ agencies have been bestowed centralized, fully autonomous operational and enforcement powers on the ground.

 

The reinforcement of the operational tasks and implementation role of Frontex, EASO and Europol is not in itself an issue. What is problematic is the broad formulation of these AFSJ agencies’ legal bases and the lack of transparency surrounding their operational activities and cooperation, rendering the task of determining the degree of discretion they enjoy difficult. The key challenge involves determining the degree of discretion that Frontex, EASO and Europol enjoy and whether the institutional balance in the EU is respected. In this light, and despite the fact that Frontex, EASO and Europol have not been vested with strictly delegated powers, this book followed the CJEU’s non-delegation doctrine as useful guidance to analyze the legality of these AFSJ agencies’ operational functions under EU constitutional law.

 

The CJEU, in its Short-Selling judgment (discussed here), updated and relaxed its initial Meroni doctrine, by no longer confining delegation to clearly defined executive powers, but rather to powers precisely delineated and amenable to judicial review in the light of the objectives established by the delegating authority.

Unlike in the case of Short-Selling, the operational powers of Frontex, EASO and Europol are neither circumscribed by well-detailed conditions that limit their discretion, nor clearly detailed in a legal framework or their Regulations. These AFSJ agencies’ operational tasks are not restricted to merely providing technical support to the frontline Member States, but rather, they develop expanding cross-agency operational cooperation and activities on the ground. These agencies’ tasks entail the exercise of discretional prerogatives that are not narrowly delineated or clearly conditioned in any national or EU legal instrument. For instance, Frontex and EASO played a strong recommendatory role in the hotspots, which in principle, is compatible with the non-delegation doctrine, since the concerned Member States are not bound by Frontex and EASO’s recommendations.

 

Nonetheless, the national authorities, subject to extraordinary migratory pressure, may decide to rubber-stamp the recommendations put forward by the agencies. Frontex’s influence over the Greek officials in determining the nationality of the arriving migrants, Europol’s advice and operational support to the national enforcement authorities to dismantle migrant smuggling networks, and EASO’s admissibility assessment of the asylum applications or the detection of vulnerable applicants encompass in practice discretional and political choices. In these cases, the responsibilities of the agencies are blurred, since the national authorities adopt a final decision based on the assessment of the agencies.

 

Although fully autonomous enforcement and coercive powers are not possible under the current Treaties and would breach the non-delegation doctrine, the ambiguity and lack of transparency surrounding the operational tasks that Frontex, EASO and Europol undertake on the ground challenge the determination of their discretion and whether they actually make policy choices. In the author’s view, the main limitation and control of Frontex, EASO and Europol’s distinctive operational and implementation role comes from the Member States. While it is true that Frontex, EASO and Europol assist the Member States in matters closely linked to their national sovereignty prerogatives, the competent national authorities that vote at the management boards tightly control their recently reinforced operational, implementation and supervisory functions. Only two representatives of the European Commission have voting rights in Frontex and EASO’s management boards and this figure falls to just one representative in the case of Europol. The presence of the European Parliament in Frontex, EASO and Europol’s management boards is non-existent. Member States also exert their influence over the appointment and supervision of the executive directors, who lead the governance, management and daily administration of Frontex, EASO and Europol.

 

Member States’ reluctance to fully abandon their well-established bilateral practices, share information and operationally cooperate with Frontex, EASO and Europol in core national sovereign matters, like border management, asylum or migration, is especially reflected in these AFSJ agencies’ management boards. The Member States will thus maintain control of the strategic decisions and the daily management of Frontex, EASO and Europol. While centralizing on the executive, decisional and enforcement powers of Frontex, EASO and Europol will ensure a fully effective and harmonized implementation, it is important to bear in mind that these agencies represent an institutional trade-off or a common ground between intergovernmentalism and communitarization in the AFSJ. That is, Member States do not wish to relinquish further sensitive competences to the EU Institutions; but at the same time, they increasingly need supranational operational assistance regarding matters that can only be effectively managed in an integrated manner at the EU level. For this reason, whereas Europol, Frontex and EASO have been conferred upon significant operational tasks, none of these agencies are vested with full decisional, enforcement or coercive powers, which remain as an exclusive competence of the competent national authorities.

 

Hence, this book makes four main contributions. First, it maps Frontex, EASO and Europol as EU decentralized agencies, which are clearly distinguished by their operational powers and by the possibility to directly assist the competent national authorities on the ground. In particular, the establishment and early operational functions conferred on Frontex, EASO and Europol are studied. Second, it comparatively analyzes the reinforcement of the operational tasks vested on Frontex, EASO and Europol, as well as the extent of their assistance on the ground and influence on the implementation prerogatives of the national authorities in the aftermath of the “refugee crisis”. Third, it explores the bilateral and multilateral inter-agency cooperation between Frontex, EASO and Europol. Specifically, the expanded multilateral and operational cooperation that takes place in the hotspots is studied. Fourth, the limitations to the reinforced operational activities and cooperation of Frontex, EASO and Europol is analyzed. The constitutionality and legal bases of these AFSJ agencies, as well as the degree of discretion that they enjoy according to the Court of Justice of the European Union (CJEU) non-delegation doctrine, is examined. The internal administrative organization and governance of Frontex, EASO and Europol is also studied as to determine the influence and real control that the Member States and civil society may exert over the increasing operational powers these AFSJ agencies have been conferred.

 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: Rock Cohen, via wikimedia commons