1. Introduction

The legal concept of non-contractual liability—a cornerstone in ensuring EU responsibility over damages it unduly causes—was perceived as a longed-for chance to make Frontex liable for its human rights violations. Below, I show how the principle of non-contractual liability as a tool to make Frontex responsible for Human Rights Violations was reined back by the Court of Justice of the EU. I argue that by its reluctance to review Frontex’s conduct, the CJEU in WS and Others v Frontex¹ created yet another legal blockade to holding the Border Agency accountable. And upon the backdrop of the interminable migration crisis, and the ongoing debate that resulted from the adoption of the new Pact on Migration, oversight and control over the EU Agency’s actions and the question of its responsibility seems especially relevant. 

In the first part of this paper, I briefly introduce why developing the concept of non-contractual liability was crucial within the context of strategic litigation against Frontex. In the second part, I present the reasoning of the Court of Justice in WS and Others v Frontex, where the action was considered inadmissible due to a lack of a causal link between the alleged unlawful conduct of the Agency and the damages suffered by the applicants. Finally, in the third part, I assess the judgment and present the legal and practical problems and gaps in the Court’s reasoning. 

2. Applying  the concept of non-contractual liability

Central to the issue lie concerns over the access to effective judicial remedy within the context of the Agency’s actions. As argued by Melanie Flink, “[while] Member States can be held accountable before their national courts and before international courts, neither of these options are available in relation to Frontex”². Indeed, the only court that can assess the actions of the EU Border Agency is the Court of Justice of the European Union (CJEU). Access to the CJEU, however, remains highly problematic. One option to gain standing within a CJEU case lies in the action for annulment based on Article 263 TFEU³—a legal instrument intended against measures ‘intended to produce legal effects’⁴. Since Frontex usually operates as a logistical and financial support to Member States’ own equivalent authorities, connecting a operational decision directly to Frontex in the judicial proceeding is difficult to say the least⁵. Additionally, actions such as illegal pushbacks conducted by Frontex are not legal acts that can be annulled. Claiming Failure to Act based on Article 265 TFEU is also highly challenging, given the restrictive accessibility requirements for individuals before the CJEU⁶. And as importantly aforementioned, domestic national courts do not have jurisdiction over Frontex, due to jurisdictional immunity.   

In response, Melanie Fink developed the concept of suing Frontex based on non-contractual liability—a measure which would hold responsible an entity for its damages regardless of the contractual relationship with the victim, like an asylum applicant. Backing this concept is Article 340(2) which states that ‘the EU is liable to make good any damage caused by its institutions or by its servants in the performance of their duties’⁷. Up until today, non-contractual liability was notably applied in cases WS and Others v Frontex and Alla Hamoudi v Frontex. As stated by Daniel Thym: ‘non-contractual liability provides a procedural safety net that could possibly be made use of. Test balloons were pending before the General Court at the time of writing’⁸. As presented in the following parts, the balloons did not, however, fly too high. 

3. WS and Others v Frontex

3.1. Factual Background

On 6 September 2023, the European Court of Justice published its judgment to case WS and Others v Frontex. The case regarded Syrian nationals, who arrived on the Greek Island of Milon in October 2016, lodged their interest in applying for international protection in Leros in Greece, and on 20^th October were transferred to a temporary reception center in Southeast Türkiye in a joint operation between Frontex and relevant Greek authorities⁹. Regarding the procedure then-pending before the CJEU, the applicants claimed that the Court should find Frontex guilty for engaging in improper conduct concerning them, and shall pay them compensation of 96 thousand Euro of material damage, and 40 thousand Euro for non-material damage. In response, Frontex asserted that the Court should reject the application, and the applicants should be ordered to pay the legal costs for litigation.

3.2. Reasoning of the Court

The Sixth Chamber of the General Court started its assessment by reviewing Frontex’s claim that the application should be perceived as inadmissible, given that the applicants should have brought an action for annulment based on Article 263 TFEU, against the letter of the Fundamental Rights Officer from October 2020¹⁰. Importantly, the CJEU asserted that a claim for damages based on Article 340(2) TFEU is an “independent form of action in the system of remedies available in the EU Law”, and “bringing an action of annulment is not a prerequisite for bringing actions of damages”¹¹. As underlined by the Court in Paragraph 34, the EU, in the case of non-contractual liability, must make good of any damage caused by its institutions or authorities¹². As such, the Court began by reviewing the substance by listing a set of three cumulative conditions for the application of non-contractual liability: unlawfulness of the alleged conduct, actual damage suffered, and a causal link between the former two¹³ Then, the Court observes that where one of these conditions is not fulfilled, the action must be entirely dismissed¹⁴. In Paragraph 56, the Sixth Chamber notes that a preliminary point must be cognized of, that the pleaded damage must be a “sufficiently direct consequence of the conduct complained of”, and “it is for the applicant to adduce evidence of a causal link between the conduct complained of and the damage pleaded”¹⁵. In short, the Court affirms that the burden of proof lies solely on the victim of the damage, needing to prove a ‘sufficiently direct consequence’ of the conduct.

Subsequently, the Court presented the applicant’s claim. Applicants believe Frontex’s action caused them “actual and certain” damage of material and non-material natures¹⁶. They assert that the Union Agency infringed its obligations connected with the protection of fundamental rights in joint operations, especially the non-refoulment (ie., push-back illegality) principle, the prohibition of collective expulsion, the rights of the child, the right to asylum, the prohibition of degrading treatment, and the right to good administration and effective remedy¹⁷. Otherwise, argue the claimants, they would have obtained the international protection to which they were entitled, given their Syrian nationality, and the situation in their country in 2016. The Court firstly lists the alleged suffered material damage, consisting of such elements as the cost of renting a house and the cost of purchasing furniture, the expenses of fleeing to Iraq, the rent paid, and the cost of legal assistance¹⁸. Secondly, the alleged non-material damage consisted of such elements as feelings of anguish – especially by children, caused by the forced return to Türkiye, and fear connected to a dangerous journey to Iraq resulting from the an anxiety of being returned to Syria by the Turkish authorities¹⁹. Conversely, Frontex asserted the lack of a direct causal link between the alleged conduct and the damage invoked²⁰. 

The Court starts its review by observing that the cost of travel to Greece predates the return operation, thus they cannot be considered a consequence of Frontex’s action²¹. As affirmed by the Court, moreover, the applicant’s arguments are based on a logical fallacy: the argued premise that without the alleged unlawful action of Frontex, they would not have been unlawfully returned to Türkiye, would have obtained international protection, and would have been provided with housing, basic support, and permit to stay²²—hardly a proof of direct causal link, or so observed the Court.

The argumentation of the Court begins by referring to Article 27(1)(a) and Article 28(1) of the Regulation 2016/1624²³, which provide that “Frontex’s tasks is only to provide technical and operational support to the Member States, and not to enter into merits of the return decision^”24. Additionally, according to Article 6(1) of Directive 2008/115/EC, returning of illegally staying third-country nationals falls within the competence of the Member States alone²⁵. Secondly, Articles 2(f), 4, 6, 8, and 31 of the Directive 2013/32/EU²⁶ on common procedures for granting and withdrawing international protection state that “the Member States alone are competent to examine applications for international protection, which designate the bodies responsible for an appropriate examination of applications”.²⁷ Consequently, argues the Court, due to a lack of Frontex’s competence in both assessing the merits of the return decision and regarding application for international protection, the direct causal link cannot be established between the alleged damage and the alleged Frontex’s conduct.²⁸ Thus, the Court believes the criterion presented in Paragraph 56 is not fulfilled, concerning both material and non-material damage. The Court adds that the damage invoked must result directly from the alleged illegality and not from the applicant’s choice as to how to react to the allegedly unlawful act.²⁹

Thus, the Court concludes that the material and non-material damage alleged by the applicants as states in Paragraphs 58 and 59 are the result of their choices. Firstly, their move to Saruj was a consequence of their decision not to comply with the instructions from the temporary travel permit in Türkiye. Secondly, the flee to Iraq was a consequence of a fear of being returned to Syria by the Turkish authorities, resulting from a failure to comply with the instructions on their temporary travel permit. As a result, the alleged damage cannot be regarded as being a direct consequence of the conduct of Frontex. In Paragraph 71 the Court concludes that the applicants failed to present a sufficiently direct causal link between the invoked damage and the alleged Frontex action, according to the requirements referred to in Paragraph 56.³⁰ Additionally, as mentioned in Paragraph 53, where one of the conditions of the non-contractual liability is not met, the action has to be dismissed in its entirety. Consequently, the Court dismissed the action for damages, and ordered the applicants to pay the costs for the legal litigations of both parties.³¹

4. Assessment and Critique of the Judgment

4. 1. Negative and Positive Obligations

To discuss the case, it is necessary to understand the concept of positive and negative obligations under fundamental rights. Negative obligations require public authorities not to perform conduct infringing fundamental rights. Positive obligations, on the other hand, require active protection of fundamental rights and countering possible infringements.³² 

4. 2. Not Answering the Important Questions

The first fundamental problem with the above judgment is its misinterpretation of the question posed by the applicant regarding Frontex’s liability in the refoulement (push-back) illegal under international and EU law, and thus, not answering it.³³ In Paragraph 62 the Court states that the “applicant’s arguments are based on an incorrect premise, that without the alleged unlawful action of Frontex, they would not have been unlawfully returned to Türkiye”.³⁴ However, as we can read in Paragraph 57, the applicants refer to the positive obligation of Frontex—that is, its obligations relating to the protection of fundamental rights in the context of joint operations. As argued by Joyce de Conninck, “The Court appears to suggest that the Applicants take issue with the underlying decision to refuse international protection and the subsequent return decision and somehow connect these decisions to Frontex”.³⁵ Nonetheless, the claim of the applicants in fact refers to complicity of Frontex in the unlawful action. As a result, the Court seems to leave behind the notion of Frontex’s positive obligations. In that regard, Article 22(1) of Regulation 2016/1624 implies that in joint operations, Frontex’s staff is present on the ground.³⁶ Considering the Agency’s partial work as a knowledge hub collecting and reporting data, Frontex can be reasonably assumed to be knowledgeable of possible fundamental rights violations. As we know from the case, Frontex did not stop the planned pushback operation but rather supported it. Such omission could also be a subject of liability, which was entirely ignored by the Court.³⁷ 

4.3. Lack of Causal Link

As stated by Article 340 TFEU, one of the conditions for EU liability is a causal link between the alleged conduct and the damage.³⁸ The fundamental argument of the Court, presented in Paragraph 64, is that pursuant to Article 27(1)(a) and Article 28(1) of Directive 2016/1624, Frontex’s actions are limited to providing technical, and operational support, and thus cannot be connected with the physical decision made by the authority of the Members State.³⁹ Based on this, the Court underlines the lack of causal link between the allegations of Frontex’s action, and the damage suffered by the migrants. This approach to causality is criticized for being too narrow and exclusive.⁴⁰ Indeed, when we read this provision in conjunction with various provisions regarding Frontex’s responsibility in safeguarding fundamental rights, it should seem natural, as confirmed by Lusignano Case that, “damage may have several determining causes that all contributed decisively to its occurrence”.⁴¹ Thus, in the given situation we should note that Frontex failed to fulfill its obligation to protect individuals from breaching their fundamental rights while monitoring the joint operation, which seemingly connects with the suffered damage.

If by the Court, Frontex is not considered the author of any of the decisions undertaken in joint actions, it is de facto virtually impossible to connect Frontex to any breach of fundamental rights, as the Agency is, again, “limited to providing technical, and operational support”. Furthermore, Frontex’s action would always be inextricably connected with the actions of the Member States and the Union Agency, which drags Frontex from becoming liable for its action.

5. Conclusion

The awaited WS and Others v Frontex judgment brought much disappointment for those hoping for a legal remedy efficient in holding the Union Border Agency responsible for fundamental rights violations. As presented in the paper, the Court acknowledged the usage of a non-contractual liability as a legal remedy. The CJEU, however, decided to focus on the lack of a causal link and to present Frontex as a body of merely supportive and cooperative function, which could not influence the situation of the migrants. The decision by the Court was met with a strong reaction from the academic community, criticizing the decision on various levels.

Such an interpretation by the Court is of fundamental meaning in the context of liability in joint operations, as it creates a massive accountability gap. Consequently, in this judgment, the Court seems to cherry-pick the arguments useful for shielding Frontex from responsibility for the fundamental rights violations. Some academics, even, go as far as to imply the political motivations behind the judgment.⁴² It may seem far-fetched, however, the CJEU is highly effective in creating a legal shield around Frontex. After the WS and Others judgment, it was hoped that the later decision in Alla Hamoudi v Frontex⁴³ may bring a different outcome. However, in the judgment published in December 2023, the Court once again managed to sidestep the vital questions of responsibility in the context of joint operations of Frontex and Member States authorities. This time, the Court refused to review Frontex’s conduct, based on inadmissible evidence, regarded as an “Unsustainable Burden of Proof” by the academics.⁴⁴ As a consequence, the academics’ attempt to make Frontex liable with the use of non-contractual liability was blocked by two judgments with highly narrow interpretations and Frontex-conducive argumentation.