The EU General Court’s Judgment in WS & Others v Frontex: What Could International Law on the Responsibility of International Organizations Offer in Grasping Frontex’ Responsibility?

Setting the scene: the facts and the ruling

On 6 September 2023, the General Court as the first instance jurisdiction of the Court of Justice of the European Union (CJEU) handed down the very first ruling which concerned the non-contractual liability of the European Border and Coast Guard Agency (Frontex) for damages caused to individuals by alleged violations of various fundamental rights that Frontex as the European Union (EU)’s border management and return-related operational arm is bound to respect, protect and fulfil. The WS & Others v Frontex case concerns several Syrian nationals (including children) who arrived in October 2016 to the Greek islands in the Aegean, seeking international protection. After unsuccessful attempts to apply for asylum on the Greece islands, they had been shortly removed by air, via a joint return operation co-organised and implemented by Frontex and Greece, to Türkiye, from where they further moved to Iraq.

The applicants submitted that Frontex, through the joint return operation, seriously breached a number of its obligations relating to the protection of their fundamental rights under the Charter of Fundamental Rights of the EU (‘Charter’) and other pieces of EU secondary legislation, including human dignity, the right to aslyum, the principle of non-refoulement, the prohibition of collective expulsion and the rights of the child. The applicants claimed compensation, activating the action for damages under Art. 340 of the Treaty on the Functioning of the EU (TFEU) – also enshrined in Art. 41(3) of the Charter –, for material and non-material damages that they suffered as a result of Frontex’ failure to comply with its above-referred to fundamental rights obligations; as well as for the fear, anguish and suffering during the removal process and the dangerous onward journey to Iraq. The EU General Court rejected the claim and found that since Frontex does not have the power to assess the merits of return decisions or applications for international protection, and, as a result, Frontex’s alleged conduct could not directly cause the damage allegedly suffered, that EU agency cannot be held liable for any damage related to the removal of the applicants to Türkiye. The General Court thus framed the whole issue as one of causation – admittedly out of judicial economy. Issues of attribution of conduct or that of responsibility did not come up in the Court’s reasoning.

Looking through the kaleidoscope – the need for putting on the ‘international law lenses’

This landmark judgment invoking Frontex’ extracontractual responsibility has already been extensively – and critically – commented in the European law blogosphere, notably from the perspectives of its fundamental rights aspects (see Tas and Partipilo); the EU’s and its agencies’ (joint) liability under EU law (see Fink and Rijpma, Davies, and Pareja Sanchez); or both (see De Coninck).

Next to the above insightful, EU-law centred initial analyses, the dimension of what international law – as codified in the Articles on the Responsibility of International Organizations (ARIO) – could have offered for the General Court as a source of inspiration and/or additional legal framework to complement the (slightly outdated) doctrine of shared EU non-contractual liability, making it fit for the challenges of 21th century of shared EU administration (such as border management), is worth putting under more closer scholarly inquiry. This post then offers an alternative, purely international law reading of Frontex potential responsibility for its precise conduct in casu, set against the General Court’s findings in WS & Others, employing the analytical frame of ARIO.

Putting on the ‘international law lenses’, besides an EU law-driven scrutiny, serves to address an existing ‘blind spot’ in legal scholarship by shedding light on the power of ARIO, as a fall-back legal toolkit, and applying its responsibility regime to the particular conduct of Frontex in the concrete case. This is notwithstanding that the General Court only drilled down in one question; namely whether Frontex directly caused, through its actions, compensable harm to the applicants – and the Court found that such link of causation did not exist. As another caveat, the post assumes, without engaging in an in-depth inquiry, that Frontex does have multiple fundamental rights obligations (both negative and positive obligations), which not only stem from primary and secondary EU law but also customary international (human rights) law as per CJEU case law – the breach of which entails the international responsibility of the EU through the operational activities of its agency.

Holding Frontex’ responsible under international law – what can ARIO offer as an alternative to EU liability law?

EU law does not exist in isolation. The responsibility of the EU as a regional international organization for violations attributed to Frontex needs to be studied also within the framework of the ARIO. Integrating both EU and international law approaches within a ‘common environment is needed [to unveil schemes of possible responsibility and] to avoid fragmentation and allow for complementarity and cross-fertilisation’ (Gkliati, p. 182).

It is uncontested that the Syrian claimants were removed to Türkiye via a joint return operation co-organised and carried out by Greece and Frontex together. Departing from the General Court’s (much criticized) finding of no direct link of causation between the conduct of Frontex and the pleaded damage (a question that ARIO do not really address), the crux of the matter is then determining the precise conduct of Frontex. Pursuant to its 2016 founding regulation (in force at the material time of the facts), Frontex’ actions in joint return operations encompassed the organisation of the removal (e.g. chartering an aircraft – as was the case in WS & Others); providing necessary assistance (e.g. practical information on third countries of return, such as contact details or other logistical information); acquisition of travel documents; overall coordination of the joint operation; and (co-)financing. Without knowing the specifics of the particular operational plan applicable to this joint removal flight, several of the above actions certainly formed part of Frontex conduct.

Regardless of the Court’s reasoning that Frontex cannot be held liable for fundamental rights violations as it merely acts as a coordinator and facilitator, providing ‘technical and operational support’ (para. 64) in joint return operations, the EU agency’s derivative responsibility (complicity) for international wrongs committed by another Member State (namely Greece) could be still established under the ARIO. Despite the absence of the above causal link, Frontex responsibility under international law can be incurred for ‘aiding or assisting’ in the commission of an international wrong (here: unlawful removal of asylum seekers in violation of several fundamental rights) as per Art. 14 ARIO. In this scenario, the EU’s responsibility is not triggered by Frontex unlawful conduct, but it arises in connection with an internationally wrongful act committed by a Member State (Greece) to which Frontex provides some form of, in itself lawful, technical or operational assistance. This may consist of the afore-mentioned various supportive and organizational actions as concretely specified in the operational plan applicable to the joint return flight (although the latter’s content is not publicly available). A key precondition under Art. 14 ARIO is that Frontex has to do so with knowledge of the circumstances of the internationally wrongful act – which is hard to deny given its close cooperation with Greece in the forcible implementation of the applicants’ return, and Frontex’ cross-cutting due diligence obligations under its founding regulation, with its agents being experts and the ‘grown up in the room’ (Davies).

Given that, in light of the above, Frontex indirect responsibility would most likely stand for aiding or assisting under Art. 14 ARIO, Art. 48 ARIO also becomes applicable. This provision stipulates that ‘[w]here an international organization and one or more States […] are responsible for the same internationally wrongful act, the responsibility of each State or organization may be invoked in relation to that act.’ The ARIO commentaries explicitly acknowledge that such joint responsibility is envisaged in situations of aiding or assisting, too. And it is clear that WS & Others concerns the ‘same internationally wrongful act’, i.e. the applicants’ unlawful removal from Greece. Although Art. 48 ARIO remains silent on the ‘joint and several’ nature of invoking such shared responsibility, it does not rule it out either (nor do the ILC commentaries to ARSIWA), so international law leaves this possibility open. The Guiding Principles on Shared Responsibility in International Law, albeit the outcome of a purely academic exercise without binding legal effect but carrying authoritative weight, further supports the claim of ‘joint and several’ responsibility in such situations of indivisible harm caused (principle 10). In other words, if the EU Courts ever decide to opt for ‘joint and several’ responsibility for such complicity-triggered violations of (fundamental rights) law, the general international legal framework allows for this.

Openings for a genuinely Völkerrechtfreundlich approach of the EU Courts towards concepts of responsibility

Contrary to international law which is rich(er) in ‘secondary  rules’ (of primary importance) such as norms governing the responsibility of international organizations for wrongdoings, but lacks a system of (compulsory) international judicial dispute settlement mechanisms with ‘sharp teeth’, EU law is highly dense in ‘primary norms’ (also caused by its ‘over-legislation’) and the CJEU is vested with compulsory and exclusive jurisdiction in all matters falling under the material scope of the EU Treaties. Yet, this supranational legal order remains quite thin and underdeveloped as regards ‘secondary rules’, including rules on derivative responsibility, or even ‘joint/shared responsibility’ etc. Here may the ARIO come in as a subsidiary, gap-filling legal toolkit from which the EU Courts can transplant some concepts into the EU legal order (notably aiding or assisting; and joint responsibility) either as concepts having customary international law character, capable of forming part of the EU legal system; or just drawing upon these international legal rules as sources of inspiration in case the ‘legal convictions’ of both legal orders converge.

Ultimately, the preceding short analysis aimed to offer an alternative, international law-based responsibility avenue to tackle ’accountability gaps’ when the EU border-management and return-enforcement agency carries out joint operations together with Member States. As the Kočner v Europol case about the joint liability of the EU agencies and Member States is now on appeal  before the CJEU, the WS & Others judgment can likewise be referred to the Court of Justice for review, and another action for damages against Frontex, with a different factual situation (pushbacks at the Aegean Sea – Hamoudi v Frontex) is still pending before the General Court, the EU Courts will soon be offered further opportunities to draw on the afore-discussed, dogmatically more refined responsibility concepts under the ARIO and beyond when assessing the nature of the specific conduct of EU agencies. The responsibility of international organizations, including that of the Union’s own agencies, is yet another area where the EU legal order and international law should not ‘pass by each other like ships in the night’ (AG Maduro, para 22).