Fundamental Rights Challenges and the Role of Frontex in Joint Operations: Insights Based on the WS v Frontex Case
Beatriz Martins, Clara Pinto Ribeiro and Cláudia Baptista
Abstract
Over the last two decades or so, Frontex has been facing increasing accusations of breaching EU law, notably EU fundamental rights. While holding the Agency accountable for such violations is crucial, this blogpost shows that existing mechanisms prove ineffective. It examines in particular the WS v Frontex case decided by the General Court in 2023 and provides some reflections on the role of Frontex in joint operations and the main fundamental rights challenges therein.
Keywords
Frontex, Court of Justice of the European Union, Fundamental Rights, Non-Refoulement, Accountability.
I. Introduction
The European Border and Coast Guard Agency, commonly known as Frontex, has been facing allegations of failing to adequately monitor fundamental rights violations[1], particularly regarding the prohibition of inhuman and degrading treatment and the right to asylum. These two rights cover – though are not confined to – the principle of non-refoulement, recognized by the 1951 Convention Relating to the Status of Refugees.
In 2021, the first action for non-contractual liability was brought against Frontex before the CJEU by a Syrian family who was subjected to a distressing incident. Initially seeking asylum in Greece in 2016, the family was forcefully returned by Greek authorities and Frontex, placed on a flight to Turkey and denied access to the asylum procedure. In the flight, the children were separated from their parents and denied communication. Upon arrival in Turkey, the family was promptly detained without access to essential services or means of sustenance. The applicants alleged violations of several rights, including their human dignity[2], right to asylum[3], the prohibition of inhuman and degrading treatment[4] and protection in the event of removal.[5] They claimed that Frontex failed in its positive obligations to prevent foreseeable violations and uphold fundamental rights.[6]
This blogpost explores the possibilities and challenges in holding Frontex accountable, shedding light on the available legal actions before the CJEU, as well as Frontex’s internal mechanisms of accountability. It discusses the available mechanisms to address Frontex’s accountability considering the recently decided case WS v Frontex,[7] shows their insufficiency and provides some recommendations.
II. WS v Frontex: A General Overview
The WS v Frontex case concerns European Union’s non-contractual liability for Frontex’s conduct.[8] Article 340(2) TFEU sets out that “in the case of non-contractual liability, the Union shall (…) make good any damage caused by its institutions or by its servants in the performance of their duties”. As such, individuals who have suffered losses as a result of actions taken by Frontex can ask for financial reparations.[9] To establish liability in such cases, three cumulative requirements must be met: damage must have been suffered by the claimant; the alleged conduct must be unlawful under European Union law; and there must be a causal link between the damage and the alleged conduct. In this particular case, the last requirement was the most difficult to prove.[10] It is important to note that liability, at least theoretically, might be shared between the EU and Member States. Furthermore, omissions may also lead to liability if there is an obligation to act.[11]
Presenting an action for non-contractual liability for Frontex’ actions before the CJEU is not an easy task. The burden of proof lies with the applicant and a significant challenge when it comes to Frontex is a lack of transparency. The Court also requires a high standard of proof.[12] Moreover, the causal link to be established between the illegal conduct and the damage incurred must be “direct, immediate and exclusive”[13]. For the Court, this means inter alia that the Agency’s conduct must have been the sole act that caused the damage, without the intervention of a third party.[14] Since Frontex acts in conjunction with other actors, such as Member States, and given that the Agency’s supervisory and advisory roles often concern fundamental rights issues,[15] the causality requirement is both extremely hard to prove and of crucial significance.
On 6 September, the Court decided that Frontex’s role was merely of a technical and operational nature, emphasizing that Greece held the primary responsibility for assessing the asylum claims. Consequently, any harm caused by the return of the applicants would be attributable to Greece. For the Court, Frontex had not taken any relevant decisions in this matter and, thus, could not be held liable for causing any harm.[16]
III. A Closer Look at the Main Liability Issues
The first step for establishing liability would be to understand if the alleged conduct is unlawful under EU law, which requires “a sufficiently serious breach of a rule of law intended to confer rights on individuals”.[17] The existence of such a rule of law here is easily verified: the Charter of Fundamental Rights of the EU contains provisions that guarantee the right to seek asylum and the prohibition of inhuman and degrading treatment, which confer rights on individuals and obligations upon institutions and bodies of the Union, as well as Member States when implementing Union law. Additionally, according to the 2016 Regulation, there are rules providing that Frontex must respect and ensure that fundamental rights obligations, and specifically the prohibition of refoulment, are complied with.[18]
The next step would be to understand if the conduct was unlawful, something that the Court did not try to establish here, even if the claimants argued that they would have obtained international protection if they were not returned, due to their Syrian nationality. Indeed, the Court focused mostly on the issue of the causal link without elaborating on the unlawfulness of the conduct.
For these purposes, the Court analyzed some provisions of the Regulation 2016/1624, which was in force at the time. Based on the provisions of this Regulation, particularly articles 27(1) and 28(1), reproduced under articles 48(1) and 50(1) of the currently in force 2019 Regulation[19], the Court emphasized that Frontex had merely a technical and operational assistance role. Under EU law, only Member States have competence to assess the merits of return decisions and applications for international protection. This also meant, for the Court, that a direct causal link could not be proven.
Article 42(1) of the 2016 Regulation sets out that Member States hosting joint operations are to be liable in accordance with their national laws for any damage caused during such operations. This article was also mentioned by the Court to emphasize that in situations that fall under this article, the damages incurred by returned persons would be, “in principle, the sole responsibility of the host Member State”.[20] However, it has been argued that this provision is intended to govern minor torts, and not violations of fundamental rights, as the reference to liability “in accordance with its national law” seems to suggest.[21] In this sense, it seems that the decision is based on a narrow and wrong interpretation of Article 42(1) of the 2016 Regulation.
This becomes especially visible when considering that the Court ignored other provisions relevant to this case, which recognize the possibility for Frontex to be autonomously responsible under European Union law. Most strikingly, the decision makes no mention of Article 60(3), which addresses Frontex’s non-contractual liability and provides that the Agency shall make good any damage caused by it in the performance of its duties.[22] The Regulation also provides that “the Agency shall ensure […] the respect for fundamental rights, the principle of non-refoulement, and the proportionate use of means of constrains” during return operations.[23] In fact, the 2016 Regulation, just like the currently in force 2019 Regulation, mandates the full respect for fundamental rights and attributes the Agency a role in ensuring and monitoring their respect. For example, Article 14(2) sets out the measures the Agency may take during its assistance to Member States, whilst “acting in accordance with the relevant Union and international law, including the principle of non-refoulement”. Additionally, Article 34 states that the Agency must ensure the protection of fundamental rights in the performance of its tasks, including by setting up mechanisms to monitor such protection. Frontex must guarantee that no person shall be returned to “the authorities of a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle”.[24] This means that not only is Frontex expected to guarantee and monitor compliance with the principle of non-refoulement, but it should also take into account the likelihood of a third country violating it.
The Court seems to have ignored these multiple provisions of the Regulation 2016/1624. This is very regrettable, as they clearly indicate that, while the Agency performs an assistance role and is not competent to examine applications for international protection or assess the merits of return decisions, it must guarantee the protection of fundamental rights.
IV. Criticisms
In March 2021, the Frontex Scrutiny Working Group of the EU Parliament’s LIBE Committee was established to assess the Agency’s involvement in fundamental rights violations.[25] While finding “no direct performance of pushbacks or collective expulsions by the agency itself”[26], the Group concluded that Frontex was aware of serious violations which it had chosen to ignore. It found that the Agency was passive and even unwilling to take action in order to prevent these violations.[27]
The Agency has thus failed to fulfil its obligations to guarantee the protection of fundamental rights in the performance of its operations. The Frontex Scrutiny Working Group’s assessment stands at odds with the WS v Frontex decision under which Frontex’s role was considered as too limited for the causal link to be established. This decision not only creates obstacles to the possibility of making Frontex accountable for its actions, but it also sends a dangerous message that the Agency can act with impunity and ignore human rights abuses by hiding behind the conduct of the host Member State.[28]
The decision was based on technicalities that precluded an analysis of the core fundamental rights issues of the case. While Frontex’s work is essential in securing Europe’s borders, this should not come at the cost of fundamental rights and the rule of law.[29] It is hoped that the appeal brought before the Court of Justice will lead to a recognition that the General Court’s reasoning on causality is flawed and based on a too narrow interpretation of the 2016 Regulation. The 2016 Regulation explicitly sets out Frontex as a primus inter pares with Member States during joint activities, having to monitor the protection of fundamental rights. As long as the examination of the appeal before the Court of Justice is ongoing, we remain hopeful that the WS v Frontex case will take a different turn, one that leaves the door open to the accountability of Frontex in joint operations. This is especially important when, under the current regime, significant limitations exist in relation to other means of action under EU law, as will be shown below.
V. Other Possible Judicial Means of Action?
Other judicial means of action before the Court of Justice of the European Union also present significant hurdles. We would like to emphasize here two such means: the action for annulment[30] and the action for failure to act.[31]
Concerning the action for annulment, an important obstacle is the requirement that the challenged measure qualifies as a reviewable act.[32] A measure qualifies as reviewable when it is “intended to produce legal effects vis-à-vis third parties”.[33] However, Frontex’s activities usually occur in the form of factual conduct, meaning its acts don’t produce legal effects and, therefore, generally fall outside the scope of the action for annulment. Moreover, according to Article 263 TFEU, natural persons are non-privileged applicants, facing more rigorous locus standi requirements. This makes it particularly hard for an individual to file such actions before the Court.
As to the action for failure to act, it can be brought if the Agency has been called to act and failed to do so in the period of two months. However, it is difficult to prove that Frontex was asked to act, considering especially the transparency issues around the activities of the Agency.[34]
VI. Frontex’s Internal Mechanisms
Article 6 of the Regulation 2019/1896 provides that the Agency shall be accountable to the European Parliament, and Article 111 creates an allegedly “independent and effective” complaints mechanism to “monitor and ensure respect for fundamental rights in all activities of the Agency”. These two mechanisms have, however, important limitations. Regarding Article 6, it has been argued that the European Parliament can only oversee Frontex’s operations to a limited degree[35], not being fully informed and not being able to hold the Agency’s leadership to account. As to the complaint mechanism, there have been critiques in terms of lack of independence and impartiality.[36]
In addition to these two mechanisms, the functioning of the Agency includes seven reporting and monitoring mechanisms to prevent officer abuse, ensure accountability, and avoid complicity in abuses by Member States, as well as a duty attributed to the executive director to suspend or terminate any activities or any funding in the event of serious violations.[37] However, the secrecy and lack of transparency surrounding Frontex’s activities, with limited access to relevant information, hinder our ability to understand how these mechanisms operate in practice.
Considering however the critiques of NGOs operating on the ‘ground’ (or sea), we doubt that such mechanisms operate efficiently. Human Rights Watch has emphasized, for example, that the executive director of Frontex has failed to fulfil his duty outlined in article 46(4) of the 2019 Regulation.[38] Under this provision, the executive director must suspend or terminate the Agency’s activity or withdraw its funding if the fundamental rights officer considers that the activity in question violates fundamental rights.
Moreover, even if the outlined mechanisms were to work efficiently, they concern only political and administrative accountability, and cannot substitute judicial forms of actions, which remain of outmost importance. Such judicial forms of action must include the Court of Justice of the EU, especially because Frontex cannot be held accountable before national or international courts.
VI. Conclusion
While some progress has been made in raising awareness of fundamental rights within Frontex, such as the creation of additional Fundamental Rights Officers, monitor positions[39] and a code of conduct,[40] ensuring legal accountability remains a significant challenge. Indeed, the General Court’s decision in WS v Frontex shows that important challenges persist in relation to legal actions that can be brought before the CJEU. One of the challenges, namely the interpretation of the 2016 Regulation, which will inevitably shape the interpretation of the 2019 Regulation, can still be addressed by the Court of Justice as part of the appeal that was brought before it.
We hope that the Court of Justice will seize this opportunity to consider Frontex’s own obligations in joint operations as potentially triggering its liability under EU law, taking seriously the duty that Frontex has under EU law to ensure compliance with fundamental rights. Only in this way will the Court of Justice not turn a blind eye to the Agency’s complicity in still-ongoing fundamental rights violations.
How to cite this blog post: Baptista, Cláudia; Martins, Beatriz; Ribeiro, Clara; “Fundamental Rights Challenges and the Role of Frontex in Joint Operations: Insights Based on the WS v Frontex Case”. NOVA Refugee and Migration Clinic Blog, April 2024, available at: https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=fundamental-rights-challenges-and-the-role-of-frontex-in-joint-operations-insights-based-on-the-ws-v-frontex-case
[1] Human Rights Watch, ‘Frontex Failing to Protect People at EU Borders. Stronger Safeguards Vital as Border Agency Expands’ (Hrw.org, 23 June 2021) <https://www.hrw.org/news/2021/06/23/frontex-failing-protect-people-eu-borders> accessed 1 April, 2024.
[2] Charter of Fundamental Rights of the European Union [2012] OJ C 326/391, article 1.
[3] ibid, article 18.
[4] ibid, article 4.
[5] ibid, article 19.
[6] Human Rights at Sea, “First Legal Action for Damages against Frontex Before The Court of Justice of the European Union” (Humanrightsatsea.org, 21 October 2021) <https://www.humanrightsatsea.org/news/first-legal-action-damages-against-frontex-court-justice-european-union> accessed 1 April, 2024.
[7] Case T-600/21 WS and others v Frontex [2023] ECLI:EU:T:2023:492.
[8] Gareth Davies, ‘The General Court finds Frontex not liable for helping with illegal pushbacks: it was just following orders’ (European Law Blog, 11 September 2023) <https://europeanlawblog.eu/2023/09/11/the-general-court-finds-frontex-not-liable-for-helping-with-illegal-pushbacks-it-was-just-following-orders/> accessed 1 April 2024.
[9] Mariana Gkliati and Herbert Rosenfeldt, ‘Accountability of the European Border and Coast Guard Agency: Recent developments, legal standards and existing mechanisms’ (2018) RLI Working Paper No. 30, 13 https://sas-space.sas.ac.uk/9187/1/RLI_Working_Paper_No.30.pdf> accessed 1 April 2024. Gareth Davies, ‘The General Court finds’.
[10] Gareth Davies, ‘The General Court finds’.
[11] Melanie Fink and Narin Idriz, ‘Effective Judicial Protection in the External Dimension of the EU’s Migration and Asylum Policies?’ in Eva Kassoti and Narin Idriz (eds), The Informalisation of the EU’s External Action in the Field of Migration and Asylum (The Hague: TMC Asser Press, 2021) 140.
[12] Mariana Gkliati and Herbert Rosenfeldt, ‘Accountability of the EBCGA’, 14. Gareth Davies, ‘The General Court finds’.
[13] ibid.
[14] ibid.
[15] Melanie Fink, ‘The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable’ (2020) 21 German Law Journal 534.
[16] Gareth Davies, ‘The General Court finds’.
[17] WS and others v Frontex, para 36.
[18] Melanie Fink, ‘Expert Opinion: Case T-600/21 WS and Others v Frontex’ (2022) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4553835> accessed 1 April 2024.
[19] Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 [2019] OJ L 295.
[20] WS and others v Frontex, para 66.
[21] Gareth Davies, ‘The General Court finds’.
[22] Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC [2016] OJ L 251, Article 60 (3).
[23] ibid, Article 28(3).
[24] ibid, Article 34 (2).
[25] Mariana Gkliati, ‘The First Steps of Frontex Accountability: Implications for its Legal Responsibility for Fundamental Rights Violations’ (Blog of the Odysseus Network, 13 August 2021) <https://eumigrationlawblog.eu/the-first-steps-of-frontex-accountability-implications-for-its-legal-responsibility-for-fundamental-rights-violations/> accessed 1 April, 2024.
[26] Tineke Strik, ‘Report on the fact-finding investigation on Frontex concerning alleged fundamental rights violations’ (14 July 2021) LIBE Committee on Civil Liberties, Justice and Home Affairs <https://www.statewatch.org/media/2590/ep-frontex-scrutiny-group-final-report-14-7-21.pdf> accessed 1 April, 2024.
[27] Mariana Gkliati, ‘The First Steps’.
[28] Sarah Tas, ‘Frontex Above the Law: A Missed Opportunity for a Landmark Judgment on Frontex’s Responsibility with Regards to Fundamental Rights Violations’ (EU Law Live, 18 August 18 2023) <https://eulawlive.com/op-ed-frontex-above-the-law-a-missed-opportunity-for-a-landmark-judgment-on-frontexs-responsibility-with-regards-fundamental-rights-violations-ws-and-others-v-frontex-t-600-21/> accessed 1 April 2024.
[29] Gareth Davies, ‘The General Court finds’.
[30] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47, Articles 263 and 264.
[31] ibid, Article 265.
[32] Melanie Fink and Narin Idriz, ‘Effective Judicial Protection’.
[33] Treaty on the Functioning of the European Union, Article 263(1).
[34] Sarah Tas, ‘Frontex Actions: Out of Control? The Complexity of Composite Decision-Making Procedures’ (2020) Tarn Working Paper Series3/2020 <https://ssrn.com/abstract=3632712> accessed 1 April 2024.
[35] Jori Pascal Kalkman, ‘Frontex: A Literature Review’ (2021) 59(1) International Migration 165.
[36] ibid.
[37] Regulation (EU) 2019/1896, Article 46(4); Melanie Fink, ‘Why It Is so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System’ (EJIL: Talk!, 26 November 2020) <https://www.ejiltalk.org/why-it-is-so-hard-to-hold-frontex-accountable-on-blame-shifting-and-an-outdated-remedies-system/> accessed 1 April 2024.
[38] Human Rights Watch, ‘Frontex Failing to Protect People at EU Borders. Stronger Safeguards Vital as Border Agency Expands’ (Hrw.org, 23 June 2021) <https://www.hrw.org/news/2021/06/23/frontex-failing-protect-people-eu-borders> accessed 1 April 2024.
[39] European Council on Refugees and Exiles, ‘Editorial: Fronting up to Frontex’ (2 April 2021) <https://ecre.org/editorial-fronting-up-to-frontex/> accessed 1 April 2024.
[40] European Council on Refugees and Exiles, ‘An EU Agreement on Reform of Frontex’ (5 April 2019) <https://ecre.org/an-eu-agreement-on-reform-of-frontex/> accessed 1 April 2024.