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.

Proposed AI Liability Directive: The EC lending a helping hand

 

 

Ida Varošanec (PhD student, University of Groningen) and Nynke Vellinga (post-doc researcher, University of Groningen)

 

Photo credit: Cryteria, via Wikimedia commons

 

 

1. Objectives of the proposal

 

On 28 September 2022, the European Commission published a proposal for an AI Liability Directive and an accompanying update of a complementary Product Liability Directive. In the preceding Report on Artificial Intelligence Liability, the Commission acknowledged the immense potential of artificial intelligence (AI). However, it has also identified the risks associated with it. For instance, connectivity of an AI-encompassing product can compromise its safety for users as it may be susceptible to cyber-attacks. Moreover, the outcomes of AI cannot always be predicted. To this end, ex ante risk assessments can be insufficient to address the possible wrongs. The opacity inherent in advanced AI-based products and systems makes it difficult to ascertain the responsibility of AI systems’ behaviours and choices. It is pivotal that humans can be able to understand how algorithmic decisions were reached in order to make a liability claim. Particularly, the opacity of AI systems can hinder victims in proving fault and causality in such cases. Consequently, the AI Liability Directive aims to ensure the provision of protection for victims of AI commensurate with those where damage has been caused by other products. It aims to increase trust in new technologies as well as to contribute to the ‘rollout of AI’ and improve its development in the internal market by preventing fragmentation and increasing legal certainty through harmonisation. Once adopted, these proposals will complement other AI regulation (e.g. the proposed AI Act) and establish liability rules for software and AI systems in the EU.

 

2. The proposed AI Liability Directive: scope

 

Other than what the name might suggest, the proposed AI Liability Directive does not provide any new ground of civil liability. That remains a matter of the national legislature, except when it comes to liability for defective products under the regime of the Product Liability Directive. Instead, the proposed AI Liability Directive provides for burden of proof rules on disclosure of evidence and rebuttable presumptions on a causal link. The rules cannot be invoked in every tort law case: only cases on fault liability fall within the scope of the AI Liability Directive. These are cases where liability for damage caused by (the use of) an AI system are based on fault. Fault encompasses wrongful actions and omissions. Due to the characteristics of AI systems, it can be difficult or prohibitively expensive to prove fault. Consequently, those suffering damage caused by an AI system might not get compensated for damage suffered, whereas those suffering damage from a non-AI system would be able to get compensated as they do not incur the same difficulties in proving fault. The proposed AI Liability Directive would address this discrepancy by providing rules on:

 

‘(a) the disclosure of evidence on high-risk artificial intelligence (AI) systems to enable a claimant to substantiate a non-contractual fault-based civil law claim for damages;

(b) the burden of proof in the case of non-contractual fault-based civil law claims brought before national courts for damages caused by an AI system.’ (art. 1 Proposal)

 

The proposed AI Liability Directive does not apply to risk-based liability claims. However, the proposed new Product Liability Directive does provide similar rules on disclosure of evidence and the burden of proof (art. 8 and 9).

 

The scope of the applicability of the proposed AI Liability Directive is partially limited to a specific category of AI system: the high-risk AI systems. For the definition of a high-risk AI system, the AI Liability Directive refers to the proposed AI Act. The AI Act identifies and lays down rules as per levels of risk associated with AI systems – those that carry (1) unacceptable risk, (2) high risk, and (3) limited risk. The fourth category – that of systems that pose a minimal risk (e.g. spam filters) – although within the material scope are not subject to any concrete rules. The first category – (1) unacceptable risk – concerns AI systems that are a clear threat to the safety, livelihoods and rights of persons (e.g. manipulation and social scoring systems). The third category (those of limited risk), is subject to specific transparency obligations due to their nature (e.g. deep fakes). High-risk AI systems represent those which are embedded in products subject to third-party assessment under sectoral legislation, and those which are not components of products but are deemed to be high-risk when used in certain areas (e.g. transport, education, safety components etc.). Such systems are subject to a set of requirements (e.g. risk assessments, mitigation systems, data quality, logging, and technical documentation) before being placed on the market.

 

The rules on disclosure of evidence as laid down in art. 3 of the proposed AI Liability Directive only apply to these high-risk AI systems. The rules on the burden of proof, however, apply to claims relating to all AI systems. (art. 4).

 

3. The proposed AI Liability Directive: disclosures and presumptions

 

3.1 Rebuttable presumption of a causal link

 

Article 4 introduces a rebuttable presumption of a causal link in the case of fault. It allows the courts to presume the causal connection between the fault of the defendant and the AI output (or failure to produce it) under three cumulative conditions. Firstly, the fault needs to be established (either by an assuming court or a claimant) consisting of non-compliance with the duty of care under EU or national law. Secondly, it must be ‘considerably likely’ that the fault has influenced the output of an AI system. Finally, damage by an AI system needs to be demonstrated. Paragraphs (2) and (3) differentiate between providers and users of AI systems.

 

The causal link concerning a claim for damages caused by a high-risk AI system shall not be presumed if the defendant demonstrates that sufficient evidence and expertise is reasonably accessible for the claimant to prove this causal link (art. 4(4)). When the claim concerns an AI system that is not high-risk, the presumption of the causal link shall only be applied where the national court considers it excessively difficult for the claimant to prove the causal link (art. 4(5)). Moreover, the defendant can always rebut any presumption regarding the causal link (art. 4(6)).

 

3.2 The disclosure of evidence

 

Article 3 of the proposed AI Liability Directive establishes the conditions regarding the disclosure of evidence and introduces a rebuttable presumption of non-compliance. This applies to high-risk AI systems as defined in the AI Act.

 

Article 3(1) of the Directive allows a court to order the disclosure of relevant evidence about specific high-risk AI systems that are suspected to have caused damage. Recital (16) confirms that this requirement has been unaccounted for by the AI Act proposal. However, the disclosure provided for in the AI Liability Directive does not seem to be absolute. Rather, it seems to be subject to a certain proportionality assessment since disclosure is only allowed to the extent necessary for sustaining the liability claim. To do that, national courts ought to consider the legitimate interests of all parties. Particularly, this applies in relation to the preservation of trade secrets and confidential information. The explanation notes convey that the aim is to strike a balance between ‘the claimant’s rights and the need to ensure that such disclosure would be subject to safeguards to protect the legitimate interests of all parties concerned, such as trade secrets or confidential information’. In other words, the goal is to strike a balance between claimant’s rights and the need for safeguards imposed by the court to preserve trade secrets or confidential information. The court will presume that the defendant did not comply with the duty of care if they refuse to disclose the requested information. In this case, the defendant can remedy that and rebut that presumption by providing evidence.

 

Recital (20) confirms that national courts should have the power to take specific measures to ensure the confidentiality of trade secrets during and after the proceedings in a proportionate manner in respect of balancing interests. Such measures could include restricting access to documents containing trade secrets and access to hearings or documents and transcripts thereof to a limited number of people. However, the courts cannot decide on this without considering the need to ensure the right to an effective remedy, fair trial and potential harm that could occur.

 

4. Comment

 

It is commendable that the EU is taking steps to address the information asymmetry between AI systems’ developers and individuals harmed by their creations. The (prospect of the) realisation of liability and compensation can provide an important incentive to AI providers and users to ensure the safe and correct functioning of their systems. Together with the Product Liability Directive, the proposed AI Act and other product safety rules such as the General Product Safety Directive, the European Commission is designing a comprehensive framework addressing the safety of AI systems and liability for damage caused by those systems.

 

Nevertheless, the AI Liability Directive harbours an important flaw that might have been overlooked:  the AI Liability Directive offers defendants a way to avoid having to disclose evidence. As the proposal currently stands, if the defendant refuses to provide trade secret information about an AI system as evidence, they will be presumed as non-compliant with the duty of care. A defendant might decide it is strategically wiser to simply pay compensation in exchange for non-disclosure. After all, trade secrets are of great economic importance to such enterprises and one of the conditions for legal protection of trade secrets requires continuous efforts to keep information secret. In other words, non-compliance becomes a choice in order to avoid disclosure.

 

This is at odds with the drive for transparency of high-risk AI systems in the EU AI Act (art. 13). By offering an option to avoid transparency, the AI Liability Directive undermines this requirement for transparency indicated in the AI Act. This creates tension between these two new instruments. The EC could have chosen a clearer stance on transparency and its necessity, by carrying the requirement of transparency from the AI Act through to the AI Liability Directive.

 

There is an additional disadvantage to the route the EC has chosen. By avoiding the disclosure of the information necessary to establish fault in liability claims, one can avoid any flaws of the AI systems to be disclosed. This might take away any motivation to improve an AI system, as sufficient financial means offer the possibility to keep any shortcomings of the AI system hidden from the public eye. The lack of transparency could thereby lead to disincentivising the development and improvement of AI systems. Ultimately, this might negatively impact innovation and trust in AI.