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Hands On, Eyes Closed? CJEU Grand Chamber hearing on Frontex’s role in unlawful pushbacks (WS and Others v Frontex, C-679/23 P) Jan-Hendrik Seelow , Dutch Council for Refugees* *The Dutch Council for Refugees has closely worked with the applicant’s counsel to supp...

Can Frontex be held accountable for participating in allegedly illegal actions? Arguments at last week's CJEU hearing, summarised by Jan-Hendrik Seelow: eulawanalysis.blogspot.com/2025/02/hand...
(thanks to @ourborderwatch.bsky.social)

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We take away that Frontex cannot be shielded from any responsibility! The Advocate General will deliver her opinion on the 12th June.

Today's hearing before the Grand Chamber underlined the question of Frontex's obligations before, during and after a return operation. The family’s lawyers emphasised that this is, in fact, a simple question. Attempts by Frontex to complicate and distort the family’s arguments were quickly unmasked.

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Eleanor Sharpston is a English barrister who represents, among others, the applicant family that suffered the pushback.

She concludes that the case is about Frontex' own obligation to be a safety net. We know that the procedures have changed and that there are better safeguards in place now. But in this concrete case, should Frontex not be held accountable for damages resulting from its actions?

The President of the Court summarises the discussion in simple words, it is not about abstract questions of joint or shared responsibility, but the individual liability of Frontex for failing its own obligations before, during and after return operations. That's it.

A judge is suspicious of this, how would this work if the applicants do not even know what is happening to them? To the Court's knowledge, they thought they were brought to Athens. Had they known they would be pushed back, could they have complained immediately?

Frontex makes the argument that the agency provides a channel for complaints, an immediate link between individuals and the agency.

Can Frontex not be expected to do the bare minimum in protecting the rights of the people? The judges highlight that Frontex' position awfully sounds like "our obligation centres around formalities"...

Frontex answers the question by making several assumptions of other plausible explanations to the scenario, the President of the Court intervenes immediately. This is not a case in abstract, but we speak about this particular family and their story!

Relevant question by a judge: Even if Frontex had received a list of people that had not applied for asylum, how likely is it that a family of six, with four kids, would not ask for asylum after all the trouble they went through - and accepts to be returned? Should Frontex not have been suspicious?

The lawyer of Frontex states that, of course, Frontex cannot be sheltered from any liability whatsoever. But the agency has received and seen a list of returnees. At this point, his answer is interrupted by the judge as we have heard that story before...

The judge intervenes - Does the Frontex Regulation not establish that Frontex can - additional to the member states - be held liable. Or can only the member state be held liable for the totality of the operation?

Frontex answers, albeit in complicated and vague terms, there is, compared to the member state's responsibility, a "considerably smaller amount of responsibility" of Frontex.

Judges ask: Should we accept that the member states have primary responsibility for the return operations, does that mean that Frontex has no obligation at all? Or that they have some sort of individual obligation?

The judges ask: How did Frontex react to the refusal of Greece to provide a report about this incident? In answering, Frontex refers to the rules rather than to the fact that, in practice, they fully accepted this behavior by the member state.

She points to Article 60 of the Frontex Regulation: In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its staff in the performance of their duties.

Shared responsibility betw. states and Frontex? Or primary responsibility of the states for damages? Sharpston points out that the law may seem contradictory. However, the provisions on civil liability may refer to breaking a vase rather than damages occuring through fundamental rights violations.

The President asks again: The question here is whether there is an obligation of Frontex to check the EXISTENCE of a return decision, not whether the decision is correct in substance. Should Frontex in its answer avoid this question, they will be stopped immediately. Frontex continues to struggle...

Frontex is clearly struggling to answer the precise question. We admit that it is a hard question to answer - because the answer should clearly be a yes. Frontex has to have fundamental rights on its radar! Have they failed to verify the absolute minimum, they should be held accountable!

The President of the Court intervenes: Frontex would admit that there should be no fundamental errors in operation. The essence here is, does Frontex not have the initial obligation to at least verify whether a return decision has been taken? Who is subject of return decisions and who is not?

The judge asks again: It is very clear that there has been changes to the rules of procedure, but the question is why? Has Frontex not previously argued that there was no need to verify lists submitted by the member states, due to the principle of sincere cooperation between them and the EU?

Frontex answers: There has been a change in system to verify certain aspects such as whether there has been a return decision, whether the returnee is fit to fly, etc.

Another question by a judge: Following this case, has Frontex actually changed its modus operandi regarding return operations and verifying return decisions issued (Context: To the applicant's knowledge, following the case, Frontex started requiring more proof of whether they have the right person).

To be precise: To verify whether there actually had been a return decision with regard the applicant family! Frontex only received a "list of persons who had not applied for asylum". In any case, there needs to be some sort of verification whether Frontex actually has the right person on the plane.

Sharpston answers: The General Court, in first instance, made the "legal assumption" that the first instance claim was a challenge to a return decision, which is exclusive competency of the member states. Whereas it was not about that, it was about Frontex obligations in conducting such operations.

Questions by a judge: Looking at whether there had been a return decision preceding the return operation, is that not an issue of fact? Context: Issues of fact and evidence cannot be subject to an appeal before the CJEU.