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.

 

The Shifting Frontier: The Advocate General’s Opinion in Joined Cases C‑50/24 to C‑56/24 (Danané)

 

Vasiliki Apatzidou, Doctoral Researcher at Queen Mary University of London, Associate Tutor at the University of London.

Photo credit: Rock Cohen, via Wikimedia Commons

Introduction

Border procedures – the swift processing of asylum applications before granting legal entry into the territory – is one of the concepts that have dominated policy debates in the EU the last years, especially as the EU Pact on Migration and Asylum mainstreamed these procedures making them obligatory in some cases. As the implementation of the new EU asylum legislation is taking shape, CJEU’s interpretations will be decisive. The Advocate General’s recent opinion in Danané (Joined Cases C-50/24 to C-56/24) has reignited one of the most delicate debates regarding border procedures: where exactly does the “border” end?

Summary of the Opinion

In his Opinion of 26 June 2025, the Advocate General addressed two questions referred by the national court of Belgium under Article 267 TFEU. First, whether the “border procedure” under Article 43 of the recast Asylum Procedures Directive (APD) must necessarily be carried out at the physical external border or in transit zones, or whether Member States may designate inland facilities as “places at the border”. Second, what legal consequences follow once the four-week maximum duration for the border procedure has expired, in particular regarding the continuation of detention and the transition to the ordinary procedure.

In his opinion, he argued that nothing in the Directive requires border procedures to be conducted strictly at a border crossing point or transit zones. Member States may lawfully designate inland facilities as “places at the border”, provided this is transparent and grounded in national law. What matters is compliance with the legal framework—the four-week limit, procedural safeguards, and the automatic transition from the border to the regular procedure once time runs out. In such cases, detention may continue in the same facility (in what is physically the same location) on the basis of a different ground for detention under the recast Reception Conditions Directive, and with an individual assessment including a necessity and proportionality assessment. While authorities may continue processing the case as a priority, they must ensure the full procedural guarantees envisaged in the regular procedure.

A Critical Analysis of the Opinion

At first sight, the location of border procedures is supposed to be straightforward. The EU Asylum Procedures Directive (Article 43) allows Member States to examine an asylum claim “at the border or in transit zones” before granting entry into the territory. The underlying logic is clear: these procedures are exceptional, time-limited, they must be concluded within four weeks, and they should be used at the borders for an exhaustive list of grounds, particularly claims that are considered manifestly unfounded. If a decision is not reached by then, the person should be admitted into the territory to pursue the regular procedure with a fuller set of rights (See C‑924/19 PPU, FMS and others). In this way, border procedures symbolically and legally mark the threshold between “outside” and “inside”.

However, in this specific case, the Advocate General takes a pragmatic view. He argues that it does not matter whether the facility where an asylum seeker is detained during border procedures is physically located at the border. A Member State can lawfully designate an inland detention centre as a border procedure site, provided this is done transparently under national law. For him, what counts is the procedural framework: the four-week time limit, the guarantees for applicants in border procedures, and the automatic transition into the regular procedure once time runs out. Geography, he suggests, should not tie the hands of Member States struggling with capacity constraints.

This approach undoubtedly offers administrative convenience. Airports, ports, transit zones and land borders are not designed to host large detention facilities. Hence, moving applicants inland could allow governments to manage asylum seekers more effectively. Yet, in this way, the opinion stretches the original concept of the border in troubling ways, shifting this deep into the territory, as I have argued in another analysis.

First, this risks turning the border into a moving – shifting barrier. If the very same detention facility is deemed a “border” centre on Day 1 and an “ordinary” reception centre on Day 29, the symbolism of non-entry collapses. The border no longer corresponds to a physical threshold, but to a shifting legal barrier applied at the convenience of the state. This undermines the idea that border procedures are exceptional and geographically confined.

Second, the blurring of lines could weaken safeguards against prolonged detention. On paper, the four-week limit remains intact: once it expires, the applicant moves into the ordinary asylum procedure. But if nothing changes in practice—same cell, same guards, same walls—the distinction between border detention and reception detention risks becoming meaningless. For the applicant, the procedural transition is invisible (as only the legal basis changes), while the deprivation of liberty continues uninterrupted.

Third, the opinion could encourage Member States to internalise the border within their own territory. If inland centres can be designated as border sites, governments may effectively shift the “frontier” inward, applying restrictive screening and asylum regimes far from the actual crossing point. This not only distorts the purpose of border procedures but may also normalise an approach where border procedures will be implemented not only at or close to the actual border, but even in locations in the mainland far away from the border crossing point.

By relocating the border inland, the opinion risks diluting the exceptional nature of such procedures. The Court of Justice will now have to decide whether efficiency outweighs legal certainty. If it sides with the Advocate General, we may enter a new phase where “border” no longer means border, but simply wherever the state declares it to be. That would be a quiet yet profound shift in European asylum law—one that moves the frontier not only inward, but also away from the very idea of the border as a fixed point of entry.

A New Legal Framework on the Horizon

This debate will soon be reshaped by the Asylum Procedures Regulation (APR), adopted as part of the EU’s Migration and Asylum Pact and expected to be implemented from the summer of 2026. Unlike the current Directive, the APR explicitly allows border procedures to be applied not only at border crossing points but also in designated locations within its territory (See Article 54 APR). At the same time, it extends the maximum duration: an asylum application can now be examined in border procedure for up to 12 weeks (Article 51 APR), with possible extensions of another 8 weeks in crisis situations.

In other words, what the Advocate General currently justifies through interpretation will soon be hardwired into EU law. As border procedures are mainstreamed and, in certain cases, made obligatory under the new framework, the “border” will no longer be a fixed geographic line but a flexible administrative construct, movable according to state needs. Whether this development ultimately enhances efficiency or risks undermining the very concept of border procedures as a limited and exceptional mechanism is a question that Europe will now have to confront.

Conclusion

The Danané opinion illustrates how the meaning of the “border” is shifting from a fixed geographical threshold to a flexible legal concept defined by administrative choice. While this approach may accommodate the practical realities of managing asylum flows, it raises questions about whether border procedures can retain their exceptional and time-limited character once detached from geography. This dynamic reflects a wider logic of the Pact: borders shift outward through externalization and inward through legal fictions of non-entry, reshaping the link between territory and rights. The decision of the Court will determine if borders remain thresholds of protection, or become shifting spaces of control and exclusion where legal safeguards gradually erode.

 

Advocate General Ćapeta’s Opinion in WS and Others v Frontex before the Grand Chamber: The End of Frontex’s Shielding? Joint Liability of Frontex and Member States in Return Operations

 

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: Asurnipal, via Wikimedia Commons

 

Introduction

On 12 June 2025 Advocate General (AG) Tamara Ćapeta, following a hearing by the CJEU Grand Chamber in February 2025, rendered an important opinion (‘Opinion’) on the appeal of WS and Others v. Frontex,  in Case C-679/23 P against the General Court’s judgment of 6 September 2023.  The General Court’s judgment has been rightly heavily criticised (see for example here, and here). Two authors went as far as stating that the shielding Frontex from meaningful responsibility is not only harmful to victims of fundamental righta breaches committed by Frontex, but that it also undermines the institutional framework of EU agencies and affects the legal credibility of the Court (see here).

The clarity that was lacking in the General Court’s judgment is made up for by the AG, who addressed the issues directly and even offered two possible readings of what the General Court may have intended to find, including that it might have failed to attribute the unlawful conduct to Frontex. (see paras. 60-67 and 84 of the Opinion)

As outlined  here WS and Others v. Frontex involves a Syrian refugee family with four children, who are ethnic Kurds. They arrived on the Greek island of Milos in October 2016 by boat with the intention of claiming asylum. Even though they formally declared their interest in applying for international protection, 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 to flee from Turkey to Iraq, where they reside to this day.

The applicants filed a claim for compensation, alleging that Frontex had violated its own obligations under the then-applicable Frontex Regulation (the 2016 Frontex Regulation) and several fundamental rights under the EU Charter during the return operation.

The significance of the case lies in the fact that, for the first time, the Court of Justice examines the joint liability of Frontex and Member States for breaches of fundamental rights arising from joint return operations. There is also an opportunity for the Court to develop its case-law on the causal link between the alleged unlawful conduct of an EU agency -specifically Frontex- and the damage suffered by individuals. This blog post focusses on these two issues.

 

Admissibility of the action

Any credible claim that fundamental rights have been violated deserves access to an effective judicial remedy. In cases like this, that remedy is a compensation claim under Article 340(2) TFEU to make good any damage caused by EU institutions, bodies and agencies.

Despite Frontex’s objections on four grounds, the AG rightly concluded that the claim is admissible (see paras. 42- 55 of the Opinion). This includes the General Court’s failure to assess relevant facts like the existence of a return decision which are arguments of points of law. If the Court of Justice agrees, which is expected, it would set an important precedent, opening the door for similar actions against Frontex to be heard in the future.

 

Frontex has its own obligation to verify under the 2016 Frontex Regulation

The AG makes it clear: Frontex has its own independent obligations under EU law when it takes part in joint return operations. That includes a duty to verify whether a valid return decision exists for each person put on the plane (paras. 68–83 of the Opinion).

Crucially, she stresses that Frontex -like all EU bodies- must uphold fundamental rights while carrying out its tasks. It is a legal obligation under Article 51(1) of the EU Charter of Fundamental Rights. So, when Article 34(1) of 2016 Frontex Regulation sets out Frontex’s duty, it is simply restating what EU law already requires (para. 72 of the Opinion).

The AG takes a close look at the 2016 Frontex Regulation and shows that Frontex’s responsibilities during return operations are clearly spelled out therein.

First, Article 28 of the Regulation ties Frontex’s operations directly to the 2008 EU Return Directive, which strictly prohibits returning individuals without an enforceable return decision. Second, Article 4(h) of the Regulation sets out the same point. This is supported by consistent case law from the Court of Justice. The idea is simple but crucial: the existence of return decision helps ensure that the return does not violate the principle of non-refoulement.

The AG makes an important -if obvious- point: the 2016 Frontex Regulation clearly intends that joint return operations coordinated or organised by Frontex must only involve individuals who are the subject of individual, enforceable return decisions.

She goes on to conclude that Frontex bears its own responsibility in this process- again an obvious point despite Frontex's consistent denials. By verifying that return decisions exist for everyone on board, Frontex is fulfilling its legal duty to ensure respect for fundamental rights, including the principle of non-refoulement, in the performance of its tasks, as required by Article 34(1) of the 2016 Frontex Regulation.

Consequently, the General Court erred in law that there could not be a causal link between the allegedly unlawful conduct of Frontex and the damage suffered ( see para. 83 of the Opinion)

 

Joint and several liability of Frontex and the host Member State?

In paragraphs 84–97 of the Opinion, the AG observes that the General Court may have erred in finding that Frontex and a Member State could not be held jointly and severally liable for the same damage. She clarifies the concept of joint and several liability: when more than one actor contributes to a single harm, each may be held fully liable, and the injured party has the right to claim compensation from any one of them for the entire damage (see para. 85 of the Opinion). The issue of shared liability is a much-debated topic in legal scholarship (e.g., here). Can both Frontex and a Member State be liable for separate breaches of EU law that give rise to a single harm? According to the AG, the answer is yes.

She goes on to clarify that under the EU’s integrated border management system, Member States can be held liable for any action or omission. Frontex, on the other hand, is accountable only for actions or failures that fall within the scope of its assigned tasks under EU law (para. 88 of the Opinion).

She offers an important clarification regarding the Court’s earlier ruling in Kočner v Europol (para. 90 of the Opinion), which concerns joint liability of an EU agency and Member States: that case did not establish a general principle that joint and several liability must be expressly provided for in EU legislation, as it was in Kočner.

In other words, joint and several liability can apply even when not explicitly laid down in legislation. At the same time, she distinguishes Kočner from the present case. In Kočner, it was not possible to attribute the unlawful conduct- namely, the data processing, to Europol or a Member State. By contrast, in the current case, she explains, it is possible to attribute the same omission - failing to ensure a valid return decision - to both Frontex and Greece (para. 91 of the Opinion).

She concludes correctly had either Frontex or the Member State conducted the necessary verification the Syrian family would have been excluded from the joint return operation, assuming there was no return decision. Consequently, responsibility for the damage in this case can be attributed to both, since either one had the capacity to prevent it.

 

Member State’s primary responsibility does not exclude Frontex’s liability

The AG rejected Frontex’s argument that the agency cannot be held liable simply because Member States bear primary responsibility for return procedures under the 2016 Regulation. She emphasizes that this cannot mean Frontex is absolved of liability for failures -here the omission to verify whether a valid return decision existed. She rightly pointed out that accepting such reasoning would effectively shield Frontex from accountability for unlawful actions or omissions during joint return operations. (para. 92 of the Opinion)

Ćapeta reaches this important conclusion: in situations where both Frontex and Member States share obligations in joint return operations, Frontex can be held liable for damage resulting from a breach of those obligations, even if a Member State may also be held liable for the same damage (para. 93 of the Opinion) This position should be adopted by the Court of Justice; otherwise, Frontex will continue to hide behind a Member State to evade liability.

 

Causal link - broken through own decisions?

The AG disagrees with the General Court’s conclusion that the harm suffered by the appellants -their forced relocation to Türkiye, flight to and eventual settlement in Iraq- was the result of their own choices breaking the causal chain, and not any action or omission by Frontex. She finds this correctly to be an error of law.

Regarding factual causality, the AG refers to the ‘but for’ test and to the General Court’s finding that the alleged unlawful conduct being a conditio sine qua non for the damage to arise is not sufficient to establish a causal link.  

The AG is of the view that the ‘but for test’ is fulfilled in the present case on the assumption that there was no return decision: had Frontex fulfilled its duty to verify whether a valid return decision existed, it might have discovered that none was in place. The appellants likely would not have been included in the joint return operation and would not have suffered the alleged damage. (see paras. 103 and 106 of the Opinion).  In this context the AG notes that, from an early stage, the Court’s case law has imposed limits on the ‘but for’ test when assessing liability, particularly by excluding the liability of EU institutions or bodies for damage deemed too remote (so-called legal causality) (para. 109 of the Opinion).

As set out here, in the present case, however, the damage is not too remote: Frontex’s operation constitutes the most proximate and direct cause of the harm suffered by the family.

As the AG explains, a finding of damage of being too remote often comes into play when others, sometimes even the injured party, have contributed to the harm (paras. 110-112 of the Opinion). In such cases, the causal chain may be considered broken, and liability may not attach. The AG refers to past case law where the injured party’s own actions or decisions were seen as breaking the chain of causation, predominantly in market cases where the injured parties were economic operators. But in this case this reasoning must not apply (paras. 114 to 116 of the Opinion).

A Syrian Kurdish family - two parents and their four children - fled Syria at the height of the war. What followed was a serious breach of their fundamental rights, most notably the principle of non-refoulement. As the AG points out, the family was undeniably in a position of vulnerability.

After being returned to Turkey, they eventually made their way to Iraq - a place they considered safer. While that move may have technically been their own decision, it cannot be called a ‘free choice’. As AG Ćapeta puts it, it was a ‘difficult life-choice decision’.

On that basis, the Court of Justice should follow Ćapeta’s reasoning and find that the factual chain of causation was not broken by the appellants’ actions. Without the unlawful omission by Frontex, they would never have been forced to make such a difficult decision in the first place.

 

Conclusion: The Shielding of Frontex Should End

The AG’s Opinion should mark the beginning of the end of Frontex’s shielding from accountability in EU joint return operations. It is now up to the Court of Justice to carry this principled stance forward. Based on the questions raised by the judges during the oral hearing, there is a strong indication that the Court will overturn the General Court’s judgment - though perhaps not entirely.

The Court may well agree with the AG that a final ruling is not yet possible and that the case should be referred back to the General Court for a fuller factual assessment. Nonetheless, a clear and thorough judgment will be essential - not only to guide the outcome of this case, but also to provide legal clarity for similar future cases. What emerges already from the facts presented and the Court’s existing case law is this: the EU judiciary must eventually take the necessary step of establishing Frontex’s non-contractual liability for the unlawful deportation of the family and award appropriate damages.

Hamoudi v Frontex, an EU Courts pushback case: Shifting the burden of proof and a duty to assist the Court (a duty of candour?)

 

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: Rock Cohen, via Wikimedia Commons

 

Introduction

On 4 February 2025 the Grand Chamber held a hearing on the appeal of Hamoudi v Frontex in Case C-136/24 against the General Court (GC)’s Order of 13 December 2023. This appeal is taking place alongside the separate challenge in WS v Frontex (see analysis of that case and summary of the hearing).  

The case of Hamoudi v. Frontex concerns Syrian asylum seeker Alaa Hamoudi, who alleges that on 28 April 2020, he and 21 other individuals were subjected to a pushback operation in the Aegean Sea. He claims that upon arriving from Turkey by boat, he entered Greek territory on the island of Samos to seek asylum. Local police intercepted him, confiscated his mobile phone, and later that day, Greek authorities forced him and the others back out to sea. The following day, a vessel from the Turkish coast guard took them aboard. Hamoudi also alleges that on 29 April 2020, while at sea, a private surveillance aircraft operated by Frontex, equipped with a camera, flew over the scene twice.

In February 2022 OLAF issued a highly damaging report on Frontex which addresses incidents of illegal pushbacks involving Frontex assets like Frontex Surveillance Aircraft, in particular in the Aegean Sea, in late April 2020. This report was not made publicly available (see here more on this fact).

In March 2022, Mr. Hamoudi brought an action pursuant to Article 340.2 TFEU  against Frontex, seeking €500,000 compensation for non-material in damage in respect of violations of his fundamental rights, including the prohibition of collective expulsion and the principle of non-refoulement under the EU Charter of Fundamental Rights.

The GC dismissed the action by Court Order stating it "manifestly lacked any foundation in law." (para. 62 of the Court Order). The GC found that the appellant’s own written statement taken by an NGO more than a year and a half after the events, a Bellingcat article, and four screenshots from third-party video recordings of the pushback were “manifestly insufficient” to conclusively prove Hamoudi’s presence or involvement in the incident.  It further noted that the claimant could not be identified in the images. Further his own written statement lacked credibility (paras. 40 and 41 of the Court Order).

Hamoudi appealed this decision on 19 February 2024, contending that the General Court erred in its legal assessment and mischaracterized the facts.

Relevance of two ECtHR expulsion cases

In January 2025, in two groundbreaking judgments A.R.E. and G.R.J. v. Greece the European Court of Human Rights (ECtHR) unanimously confirmed Greece's “systematic practice” of pushbacks of third-country nationals from Greece back to Turkey. Both ECtHR cases are very similar in terms of facts to the Hamoudi case.  The G.R.J.  case which was referred to by the judges during the hearing concerns like in the Hamoudi case a pushback from the island of Samos to Turkey in 2020.

Significantly the parties were asked to comment on the relevance of these two judgments seemingly with a view to consider the ECtHR’s finding on the existence of a “systematic practice” of pushbacks by Greece. The Court might likely to be inspired by the ECtHR approach in these types of cases, if not align its case law with the Strasbourg Court’s large case law on expulsion. Both Courts have engaged in the past in a judicial dialogue, referring to each other’s case law, aiming for consistency in protecting human rights of individuals.

Assisting the court in reaching the correct result

Pushbacks are difficult to prove, in particular when they happen at night and mobile phones are confiscated or destroyed (as happened to the appellant and applicants in ECtHR cases (e.g., in  A.R.E.  para. 266).

In proceedings before the ECtHR, respondent states often deny the facts rather than disclosing relevant records, surveillance footage, or photos and videos documenting the events, as elaborated here. In Hamoudi, Frontex representatives, during the hearing before the Grand Chamber, claimed it was unclear whether Frontex had been present at the scene of the events, noting that "they had not been monitoring the situation from afar through their binoculars" (see here).

The question arises: Is it acceptable for an EU agency like Frontex to present such arguments, displaying a stance similar to that of states before the ECtHR? Or does it, instead, have a duty to assist the Court? Article 24 of the Court’s Statute provides that the Court “may require the parties to produce all documents and to supply all information which the Court considers desirable.” This provision establishes not only a procedural obligation for the parties to cooperate fully with the Court but also an implicit duty to assist the Court in reaching an accurate outcome. The Court here relies on the transparency and good faith of the parties to uncover the relevant facts and produce it before the Court.

In UK public law there is a duty of candour vis-à-vis the Court. The duty of candour requires a public authority "not to seek to win [a] litigation at all costs but to assist the court in reaching the correct result and thereby to improve standards in public administration." (see also here)

This principle is not unknown in member states. In Germany for example pursuant to §99 Administrative Court Procedure Code and §138 Code of Civil Procedure , public authorities must act truthfully and fully cooperate with the administrative courts.

Arguably as an EU agency, Frontex, and based on Article 24 of the Court’s Statute it has a duty to assist the Court in reaching the correct result by providing information and disclosing evidence exclusively within its possession, even if that evidence may be unfavourable to its case. In other words, it is not acceptable for Frontex to adopt the same approach as states in these types of cases.

Furthermore, contrary to what the EU Agency presented before the Court, Frontex also “sits on evidence” -not only the member states- related to its activities collecting evidence when it carries out its assistance and surveillance activities acting under a clear mandate to protect the fundamental rights of individuals in distress at sea, in accordance with Articles 80(2) and 80(3) of the Frontex Regulation.

Impossible proof

The burden of proof imposed by the GC amounted to probatio diabolica, an impossible proof for Mr. Hamoudi.

There might be cases in which applicants are able to provide robust evidence related to their individual situation, such as photographs, video recordings, and witness testimonies. The possession of mobile phones with geolocation capabilities gives victims of pushback operations new means to provide proof of their presence in a certain area or to prove the involvement of Frontex.

In most cases, individuals like Hamoudi face serious practical difficulties in gathering evidence. The incident took place at night and under very stressful conditions, with Hamoudi being in the open sea in a boat. Hamoudi was unable, both physically and mentally, to gather any evidence. (see more on this here) Taking away mobile phones as happened to Mr. Hamoudi makes it impossible for the victim to use such evidence.  This is what the General Court failed to consider.

Applying the rules governing the burden of proof in Strasbourg expulsion cases

The appellant argues in his appeal that the General Court (GC) committed an error of law by failing to properly assess and apply the relevant rules governing the burden of proof. Specifically, the appellant contends that the GC did not consider the legal criteria established by the ECtHR in its expulsion case law, which aligns with the EU Court’s own established practice (e.g., in discrimination cases).

When adjudicating such cases, the ECtHR shifts the burden of proof to the state as elaborated here  where there is different access to information which advantages the state and leaves the applicant without evidence or when the defending State possesses information that could  corroborate or refute the applicant’s allegations. Despite what Frontex alleged at the hearing Frontex certainly has access to information regarding the events in question as also the OLAF report shows. This relates to information regarding its own compliance with its own fundamental rights obligations and the existence of the immaterial harm stemming from the events during the night in question.

The ECtHR expulsion case law provides that once an applicant has furnished prima facie evidence in support of his or her version of events, the burden of proof should shift to the respondent when (a) there is an absence of personalized treatment—such as not being interviewed or having personal details taken—which lies at the very core of the applicant’s complaint, as in the present case; and (b) this absence has contributed to the difficulty in adducing evidence of involvement in the event (see Case of N.D. and N.T. v. Spain, para. 85).

As analysed here in its recent rulings the ECtHR has explicitly acknowledged that the state’s complete denial of alleged facts places the applicant in an inherently difficult evidentiary position, in which they may be unable to establish the veracity of their account (A.R.E., para. 218; G.R.J., para. 183).

The consolidated case law of the ECtHR regarding the reversal of the burden of proof might serve as a compelling source of inspiration for the ECJ’s judges in this specific case, which bears significant similarities to the large number of expulsion cases the ECtHR has adjudicated, most recently in G.R.J.

The fact that this is an application for damages under Article 340(2) TFEU against an EU agency, rather than a human rights application before the ECtHR against a state, does not make a difference, as similar objectives are pursued. The judges might consider that the conditions to be met for being successful with claim for damages before the ECJ are significantly higher than a human rights application before the ECtHR. This applies particularly to the more extensive requirements for proving harm under the ECJ’s case law compared to the standards for establishing victim status under Strasbourg case law. In other words, and contrary to what Frontex appeared to imply during the hearing, the bar for establishing liability remains high and substantial.

Meet prima facie threshold

To meet the prima facie threshold under the ECtHR, regularly two key elements are required (a) an individual account which is specific, consistent, generally coherent, and credible and (b) general context evidence concerning the broader context relevant to applicants’ claims.  In G.R.J.  the ECtHR relied on such general context evidence: “[h]aving regard to the large number, diversity, and concordance of the relevant sources …the Court concludes that there is serious evidence to suggest that, at the time of the alleged events, there was a systematic practice of refoulement by the Greek authorities of third-country nationals from the Greek islands to Turkey.” G.R.J. , para. 190, unofficial translation. Contradictions in the respondent’s statements will be considered as well.

It appeared from the judges' questions during the hearing that the Court was indeed considering holding that the General Court had failed to consider shifting the burden of proof to the EU Agency. This is not surprising in view of its own well-established case law on the reversal of the burden of proof in similar cases of asymmetry of access to information, albeit in other areas (e.g., discrimination) and its approach to consider relevant case law of the ECtHR as a source of inspiration. In this regard, the Court has ample reasons to hold that the applicant has provided prima facie evidence of the violation and that the General Court should have considered shifting the burden of proof to Frontex.

The judges inquired about OLAF’s 2021 report on Frontex and its findings concerning the events of 28 and 29 April 2020. It mentioned the fact that the report refers to two Frontex officers confirming the credibility of the Bellingcat article admitting that the operation of which Mr. Hamoudi claims to be the victim of took place. In any event, if the case had been considered by the Strasbourg Court, it would have found that the specific and consistent account by Mr. Hamoudi, partially corroborated by OLAF’s findings and the Bellingcat article, constitutes prima facie evidence, thereby triggering a shift in the burden of proof.  The Court of Justice would be justified in following the Strasbourg case law and reaching this conclusion. This is also so because of the widely documented information on the general context and the myriad of contradictory statements about the events by Frontex outside the proceedings.

Refuting the appellant’s claims

Frontex stressed at the hearing that it could not “live up” to substantiating, refuting or corroborating the prima facie evidence of the appellant. It was in a situation of an impossible proof. This is wholly unconvincing. Frontex could simply review its records or surveillance footage to determine whether, at the relevant date and time, its surveillance aircrafts were operating over the area where the unlawful pushback of Mr. Hamoudi occurred. Frontex conducted two active operations in the region and is best placed to substantiate or refute the appellant’s claims. With an explicit to mandate to provide support to Greece in the Aegean Sea fully aware of Greece’s shady practices and under an explicit mandate to safeguard fundamental rights of individuals in distress at sea as per Article 80 (2) and 80 (3) of the Frontex Regulation it was monitoring the situation.

Conclusion

Enabling the EU Courts to focus on the legal assessment of alleged fundamental rights violations in such cases by providing as much factual information as possible serves the interests of all parties involved—including the Court itself.

Frontex has faced significant criticism over alleged pushback practices in the Aegean Sea, raising serious concerns about compliance with its fundamental rights obligations. It is in the Agency’s interest to be as transparent as possible, not to seek to win a litigation such as the Hamoudi case at all costs but to assist the court in reaching the correct result. By doing so, Frontex can contribute to reinforcing trust in the EU Agency’s commitment to human rights and accountability.