Hamoudi v. Frontex case: Can EU Migration law truly hold Frontex accountable for fundamental rights violations?
By António Gonçalves
Editors: Veronica Corcodel, Dimitra Fragkou
Abstract
This blogpost analyses the General Court’s decision in Hamoudi v. Frontex, the second non-contractual liability case involving Frontex. It highlights flaws in the Court’s reasoning and broader legal challenges to Frontex’s accountability.
Keywords
Frontex; Agencification; fundamental rights; Non-contractual liability
- Introduction
The more things change, the more they stay the same. In September 2023, the academic world was perplexed by the brevity of the General Court’s (GC) ruling in WS and Others v. Frontex.[1] Significant gaps were evident in the GC’s decision, notably its apparent disregard for a set of relevant legal provisions on fundamental rights of the EBCGA 2016 Regulation, in force at the material time of the facts.[2] In Hamoudi v. Frontex[3], the GC similarly did not seize the opportunity to address the equivalent legal provisions of the Regulation 2019/1896. This time, however, by failing to see the forest for the trees, it focused narrowly on issues of evidence, claiming that the presented material was insufficient to prove actual harm, thus dismissing the case.
In another case that could have served as momentum for clarifying Frontex’s independent and joint responsibility threshold for fundamental rights (FR) violations, the GC once again sidestepped this task.
2. Hamoudi V. Frontex: General Overview
In April 2020, a Syrian refugee named Alaa Hamoudi arrived on Greek territory by boat, seeking asylum. After disembarking, the Greek authorities intercepted him and 21 other asylum seekers, confiscating their phones. Shortly afterward, they were placed on a rubber raft and dragged into Turkish waters without being given the opportunity for a hearing. [4]
Adrift, Hamoudi alleges that a Frontex-operated aircraft overflew their boat twice without taking action. In the afternoon of 29 April 2020, a Turkish coast guard boat intercepted and took them into detention, where Hamoudi’s passport was confiscated.[5]
The plaintiff sought legal remedy claiming that the damage he had suffered resulted from Frontex’s failure to comply with its positive obligations enshrined in article 80 of the 2019 EBCG Regulation[6] and in the Charter of Fundamental Rights of the EU, such as the non-refoulement principle and the prohibition of collective expulsion.[7] The applicant argued that the expulsion was conducted in accordance with an operational plan drawn by Frontex, and therefore, Frontex contributed to the unlawful action.
However, the evidence presented— a written declaration, a Bellingcat article, and four screenshots of videos of the pushback recorded by third parties — was deemed by the GC as “manifestly insufficient to demonstrate conclusively that [Hamoudi] was present at and involved in the alleged incident.”[8] The Court emphasised that the claimant cannot be identifiable in the pictures and that its written statement lacks credibility, dismissing the case.1.
– Hamoudi, The Plaintiff Who Could Not Prove His Case with Evidence
In this action for non-contractual liability,[9] under which EU must make good any damage caused by one of its institutions in the performance of its tasks, the GC applied the Bergaderm test.[10] The test establishes that those who have suffered harm from an EU institution must prove three cumulative conditions: actual damage, a causal link, and breach of EU law conferring rights on the plaintiff.[11] In casu, the GC started its analysis by considering whether the plaintiff had suffered actual damage. The Court noted that the assessment must be based on concrete facts under the principle of the unfettered evaluation of evidence.[12]
This approach is questionable. Given that the burden of proof rests solely on the claimant, it is important to question to what extent Hamoudi could realistically gather evidence during an unlawful and covert pushback where evidence might have been erased or hidden. This is particularly pertinent considering the circumstances in which it occurred: at night and under stressful conditions, as he was thrust into the open sea on a life raft with minimal chances of survival. The evidence standards imposed by the GC in casu were thus unreasonable as Hamoudi was neither physically nor mentally able to gather any evidence.
A better approach might have been to request Frontex to provide evidence to prove or refute the plaintiff’s allegations. In similar cases, where claimants face difficulties gathering evidence, the European Court of Human Rights (ECtHR) — whose case-law on human rights is generally followed by the Court of Justice of the EU (CJEU)[13] — reverses the burden of proof.[14] It requires State authorities, who have greater access to crucial information, to provide the necessary evidence to support or dispel the claimant’s allegations or to share additional information.[15] The GC’s decision in Hamoudi v. Frontex not only fails to engage with the ECtHR case law but also opts not to seek further evidence. This approach undermines the principle of effective judicial protection.[16]
The plaintiff stated that a Frontex-operated aircraft overflew twice the boat he was on. Frontex was in a stronger position to provide the footage of the incident, as the plaintiff’s specific reference to the night of April 28 to 29, 2020, would have enabled Frontex to retrieve relevant recordings from that time frame. Such a request from Frontex would have been justifiable, given that the aircraft is reportedly equipped with a camera featuring infrared and low-light sensors, with the footage broadcast in real-time to Frontex headquarters in Warsaw.[17] The captured high-resolution images could have helped the judges to confirm whether Hamoudi was among the 22 asylum seekers, and, if confirmed, proceed with the analysis of the other two requirements.
Frontex argued that it was not “notified about an incident nor received any information linked to the alleged incident.”[18] However, this is questionable given that the Agency was conducting two active operations in the region,[19] and, according to the plaintiff, the pushback occurred in line with the Operational Plan for RBI Aegean,[20] a document that defines the objectives of each joint operation, where it is to take place and the quantities and types of technical equipment and officers involved. Hence, a better approach would have been to request the operational documents to assess Frontex’s degree of responsibility for the violation. As in other circumstance, it is not unusual for Frontex to have concealed evidence of pushbacks.[21]
The GC’s decision in Hamoudi v. Frontex is all the more puzzling because it ignored the multiple accusations against Frontex for turning a blind eye to FR violations by EU Member-States[22]and fostering a “culture of secrecy.”[23] This oversight is compounded by the investigations conducted by the EU Anti-Fraud Office, the European Court of Auditors, the European Parliament, and the European Ombudsman.[24] Altogether, these factors should have prompted a more careful and thorough assessment of the case.
3. Poor Legal Accountability Mechanisms
Holding Frontex accountable for FR violations is a challenging and especially complex process. Two factors contribute to this: the multi-actor factor and the procedural factor.[25]
Regarding the first factor, which is perhaps the most important and problematic, Frontex operations involve a range of actors — Frontex itself, national and local authorities, third states and other EU entities — each subject to different jurisdictions. This means that in joint and return operations each actor has different obligations depending on its legal nature and the orders to which it is subjected.[26]
Consequently, these types of operations make allocating responsibility for FR wrongdoings a difficult task.[27] It requires analysing three factors underlying the chain of command which produced the fundamental rights harm: authority (who gave the order that determined the course of conduct that resulted in the breach?), knowledge (who was aware of, or reasonably ought to have been aware of, the violation?), and the ability to prevent (who possessed the authority and capability to prevent the violation?).[28]
However, this analysis is hampered by the hybrid legal framework underpinning the EU’s external border management.[29] The EBCG is composed of personnel from both national authorities and Frontex itself.[30] Consequently, the two counterparts share responsibility for operational and enforcement powers,[31] which ultimately results in a mix of both EU law and national law governing the management of the EU’s external borders.
Such executive hybridity, resulting from an EU-wide ‘agencification’ process,[32] presents critical legal issues, particularly concerning accountability gaps for FR violations.[33] In other words, the shared responsibility complicates the determination of who is responsible for what, leading to the “too many hands” problem and subsequent blame avoidance and shifting.[34] Frontex’s claims that it cannot be held legally responsible for FR violations exemplify this issue.[35]
Furthermore, these multi-party operations require piecing together documents to gather evidence to identify the wrongdoer. In Frontex’s case, however, this issue is more complicated due lack of transparency surrounding its activities.[36] Even the documents that are shared are often so heavily redacted that they sometimes become practically worthless.[37]
The practical consequences of this modus operandi are reflected in the GC’s decision Hamoudi v. Frontex. A thorough examination of the official operational documents, combined with an analysis of the chain of command, would have clarified Frontex’s level of authority, its awareness of potential risks, and its capacity to prevent harm. Such an approach could have led to a different outcome.
Regarding the second issue, i.e., the procedural factor, the legal avenues to challenge Frontex’s actions and seek judicial remedies are limited and riddled with legal hurdles.[38] Primarily, jurisdiction over Frontex’s misconduct lies solely with the CJEU, meaning that neither national nor international courts, including the ECtHR, have the authority to rule on the Agency’s conduct.[39] This issue has become more pronounced as the CJEU has not adequately addressed Frontex’s FR violation cases.
Moreover, of the three channels of EU law through which individuals can bring legal actions against Frontex — an action for annulment, an action for failure to act, or an action for damages[40] — the latter is the most appropriate litigation route.[41] However, the stringent locus standi imposed by the GC makes it difficult, if not impossible, for plaintiffs to be awarded a remedy.
Since non-contractual liability was not originally designed to address FR violation cases,[42] the Bergaderm test is ill-suited for such situations. The test places the entire burden on the plaintiff to meet three cumulative conditions. However, in cases involving unlawful actions by powerful entities against vulnerable individuals, this approach overlooks the significant challenges in gathering evidence, effectively placing the burden of proof onto the weaker party. As a result, if the applicant fails to satisfy one element, the Court dismisses the case without analysing the others, creating barriers to justice. The inadequacy of the burden of proof proved a critical obstacle to justice in Hamoudi v. Frontex.
4. Improving Frontex’s Accountability Mechanisms
In the face of these legal challenges, it is important to develop new measures that allow individuals to seek remedies more effectively. Therefore, two improvements aimed at increasing Frontex’s accountability for FR violations are proposed.
Secrecy has been a structural problem. As previously discussed, when a FR violation occurs in a Frontex operation, identifying the chain of command that produced the harm is akin to untying the Gordian knot.
Hence, as Gkliati and Kirkpatrick argue, Frontex should make publicly available the documents “showing which entity […] is involved in what aspects of joint operations, [thus making it] easier to see who should be held accountable for eventual wrongful conduct.”[43] Some authors go as far as advocating for guaranteed access to this information for non-EU citizens and residents, reasoning that those affected by Frontex’s acts are usually third-country nationals.[44]
Secondly, the GC must revise the criteria it uses for assessing non-contractual liability cases to accommodate joint liability. This concept allows for “two or more actors [to] share varying degrees of legal responsibility for their respective contributions to a single [FR] harm.”[45] This approach is the most effective solution to address the accountability challenges posed by the EU integrated administration model, particularly regarding the shared responsibility issues in border management, where one party’s responsibility for harm does not diminish the degree of responsibility borne by another.
In Hamoudi v. Frontex, the GC had the opportunity to assess Frontex’s responsibility for failing to protect the FR of Hamoudi. Regardless of whether Frontex was notified of the incident, it remains accountable under the 2019 Regulation: the Agency must ensure that all parties involved in joint and return operations, including itself and MS personnel, comply with FR standards and take preventive measures.[46] Should the joint liability mechanism have been applied in the Court’s decision, the Agency would have been held accountable for failing to comply with this positive obligation.
5. Conclusion
The legal framework for Frontex operations has accountability gaps that require amendments. In Hamoudi v. Frontex, despite the questionable weight of the evidence presented, the GC’s approach did not allow to fully investigate whether Hamoudi suffered actual harm because it did not seek additional evidence from Frontex. Furthermore, the Court’s approach was overly lenient, failing to consider the particularities of joint border management operations.
Alongside previous cases, Hamoudi v. Frontex adds to the growing uncertainty about whether there is any effective legal recourse for holding Frontex accountable for fundamental rights violations. By failing to clarify this issue, the GC signals that Frontex can abuse its powers without facing legal consequences.
Given this, it is critical that, following appeal,[47] the ECJ provide guidance on how to move forward with establishing effective accountability tools that address the challenges of shared administration.
HOW TO CITE THIS BLOG POST:
Gonçalves, António. “Hamoudi v. Frontex case: Can EU Migration law truly hold Frontex accountable for human rights violations?” NOVA Refugee Clinic Blog, October 2024, available at:
[1] Case T-600/21 WS and Others v Frontex [2023] (CJEU,).
[2] Cláudia Baptista, Beatriz Martins and Clara Ribeiro, “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 9 2024).
[3] Case T-136/22 Hamoudi v. Frontex [2023] ECR 65.
[4] Hamoudi v. Frontex, para 2.
[5] Ibid, para 4.
[6] 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.
[7] Charter of Fundamental Rights of the European Union (2012) OJ C 326/391, article 19 (1) and (2).
[8] Hamoudi v. Frontex, para 39.
[9] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47: article 340.
[10] Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291.
[11] Ibid, para 42.
[12] Hamoudi v. Frontex, para 31.
[13] Tobias Lock, “The European Court of Justice and International Courts” (online edn, Oxford Academic, 2015). 167–242.
[14] Tas, Sarah; Pirrello, Agostina, “Advancing Accountability: The Case of Alkhatib and Others v. Greece” (Verfassungsblog, Feb. 16 2024).
[15] J.K. And Others v Sweden App no. 59166/12 (ECtHR, 23 August 2016), paras 93, 97 and 98. See also: Case of N.D. and N.T. v. Spain Apps nos. 8675/15 and 8697/15 (ECtHR, 13 February 2020), para 85.
[16] Salvatore Nicolosi, “The European Border and Coast Guard Agency (Frontex) and the limits to effective judicial protection in European Union law” (2024) 30 (1-2) European Law Journal, pp. 149-164.
[17] Giorgos Christides, et al., “EU Border Agency Frontex Complicit in Greek Refugee Pushback Campaign” Der Spiegel (Hamburg, Oct 23 2020).
[18] Hamoudi v. Frontex, para 38.
[19] Joyce de Coninck, “Shielding Frontex 2.0” (Verfassungsblog, Jan. 30 2023).
[20]Hamoudi v. Frontex, para 10.
[21] Giorgos Christides, et al., “Scandals Plunge Europe’s Border Agency into Turmoil” (Feb 5 2021).
[22] Nick Waters, Emmanuel Freudenthal and Logan Williams, “Frontex at Fault: European Border Force Complicit in ‘Illegal’ Pushbacks” Bellingcat (Greece, Oct. 23 2020). See also: Giorgos Christides, et al., “Scandals Plunge Europe’s Border Agency into Turmoil” Feb 5 2021); and Giorgos Christides, et al., “EU Border Agency Frontex Complicit in Greek Refugee Pushback Campaign” Der Spiegel (Hamburg, Oct 23 2020).
[23] Mariana Gkliati and Jane Kilpatrick, “Crying Wolf Too Many Times: The Impact of the Emergency Narrative on Transparency in FRONTEX Joint Operations” (2021) 17 Utrecht Law Review pp. 57–72.
[24] Nicolosi, Salvatore, “Frontex and Migrants’ Access to Justice: Drifting Effective Judicial Protection” (Verfassungsblog, Sep. 07 2022).
[25] Melanie Fink, “Why it is so Hard to Hold Frontex Accountable: On Blame-Shifting and an Outdated Remedies System” (EJIL: Talk!, Nov 26 2020).
[26] Ibid.
[27] Mariana Gkliati, “The Next Phase of the European Border and Coast Guard: Responsibility for Returns and Push-backs in Hungary and Greece” (2022) 7 (1) European Papers pp. 171-193.
[28] Fink (n 21).
[29] Coman-Kund, Florin, “Hybrid EU External Border Management: Frontex, the Rule of Law and the Quest for Accountability” (Verfassungsblog, Sep. 06 2022).
[30] Article 4 of Regulation (EU) 2019/1896 (see footnote 4 for full citation).
[31] Ibid., article 7.
[32] Zhong, Y., & Carrapico, H., “The development of Frontex: integration through supranationalism. European Politics and Society” (2023) 25(2), pp. 233–248.
[33] Tas and Pirrello (n 10).
[34] Coman-Kund (n 25).
[35] European Ombudsman, “Opinion from Frontex on the European Ombudsman’s own-initiative inquiry into the implementation by Frontex of its fundamental rights obligations” (2012), European Ombudsman, Case Number OI/5/2012/BEH-MHZ.
[36] Gkliati and Kilpatrick (n 19).
[37] Jane Kilpatrick and Mariana Gkliati, “Frontex, secrecy and security: control of information as strategy for institutional preservation” (Open Government in the EU, Oct 12 2021).
[38] Fink (n 21).
[39] Sarah Tas, “Frontex Actions: Out of Control? The Complexity of Composite Decision-Making Procedures” (2020) Tarn Working Paper Series 3/2020.
[40] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47: articles 263, 265 and 340, respectively.
[41] Mariana Gkliati, “Shaping the Joint Liability Landscape? The Broader Consequences of WS v Frontex for EU Law” (2024) 9 (1) European Papers, 69-86.
[42] Nilcolosi (n 20).
[43] Gkliati and Kilpatrick (n 19) 70.
[44] Lucas Rasche, “Great power warrants great responsibility: four proposals to strengthen Frontex’ accountability” (2019) Hertie School Jacques Delors Centre Policy Brief. See also: European Council on Refugees and Exiles, “Holding Frontex to Account: ECRE’s Proposals for Strengthening Non-Judicial Mechanisms for Scrutiny of Frontex” (2021) European Council on Refugees and Exiles Policy Paper 7.
[45] Joyce de Coninck, “Shielding Frontex” (Verfassungsblog, Sept. 9 2023).
[46] Article 80 (1) (2) of the Regulation (EU) 2019/1896 (see footnote 4 for full citation).
[47] Case C-136/24 P Alaa Hamoudi v Frontex, Appeal brought on 19 February 2024 against the order of the General Court (Seventh Chamber) in Case T-136/22 Hamoudi v Frontex [2024] OJ C/2024/2735.
