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)

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...

eulawanalysis.blogspot.com

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.

The hearing has ended 🚨 we will come back with a comment later.

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.

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

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?

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.

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 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?

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).

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.

Frontex states: It was the applicant's own decision to go to Greece, and after having been returned to move on to Iraq. What is disregarded: No one flees from persecution voluntarily!

Now Frontex takes the stage: The member states have exclusive competency to assess asylum applications and to issue return decisions. The role of Frontex cannot be of some sort of guardian that ensures that the member states have done their 'homework' properly.

Sharpston: The applicants have never claimed that Frontex has the obligation to check whether a return decision is actually correct, but it should always verify whether a return decision has been taken at all. Simply put: Frontex must check whether the people on its plane are actually returnees.

An obligation of result, not just of 'nice try': Sharpston highlights that according to its own regulation, Frontex SHALL ENSURE that there is no risk of refoulement when returning people.

The essence of the case: The Frontex regulation obliges Frontex to operate in a lawful manner. Is is not enough to report afterwards, but where operations go wrong, Frontex MUST intervene.

Sharpston: Frontex has duties before, during and after any operations involved in. Reporting duties are important for the future. Most importantly, Frontex failed its earler substantial obligations. Had they proactively monitored the operation and intervened, the applicants had not suffered damage.

A clarification of the Court on today's questions are essenstial - for the family to receive justice - but also for many others to be protected from arbitrary returns. Does Frontex have the obligation to verify that a return decision has been issued before returning someone? The applicant's say yes.

Sharpston refers to the EU acquis to highlight that - if everything had gone according to law - the family would have remained in Greece, received proper protection and social support.

Barrister Sharpston takes the floor and thanks the Court for referral to the Grand Chamber. The key issues are issues of law, and not of facts: Does Frontex have to verify before a return operation that the people affected are actually to be returned? Or could everyone be on that plane?

It’s 9am, the hearing before the Grand Chamber of the CJEU is about to start. Today will be about Frontex’ involvement in illegal pushbacks. To be precise, the obligations it has before, during and after removal operations - and most importantly, whether they can be held responsible for violations!

Every week men, women and children fleeing war and violence are illegally deported from Europe's borders. People have been killed, others were attacked or mistreated. We hold the EU accountable and demand an immediate end to these human rights violations at our external borders #Frontex #CJEU

On Tuesday, 4 February at 09:00, the CJEU Grand Chamber will hear a landmark case against Frontex, addressing the crucial question: Can Frontex be held accountable for its role in illegal pushbacks – a practice systematically employed at the EU’s external borders? We will cover the hearing live 🔊