On International Migrants Day, the Court of Justice ruled on two appeals in action for damages brought against Frontex. I have discussed the case Alaa Hamoudi v European Border and Coast Guard Agency(Frontex) in a previous blogpost (here). This blogpost will focus on the second case decided on the same day WS and Others v European Border and Coast Guard Agency(Frontex). The Court of Justice largely set aside the order from the General Court, except the General Court’s decision on the inadmissibility of a number of Annexes, as well as the lack of causal link between the alleged conduct and the alleged damage in relation to the cost incurred for travelling to Greece. The case was reverted back to the General Court.

Background to the WS and Others v Frontex case: a missed opportunity

The case was brought by Syrian refugees who first arrived on the Greek island of Milos and were later moved to Leros, where they expressed their intention to apply for international protection. Despite this, the asylum applicants were transferred to Turkey as part of a joint return operation carried out jointly by Frontex and Greece, without any prior individual assessment aimed at ensuring that their return would have not breached the prohibition of refoulement, i.e. the prohibition to be transferred to a country where they could be subjected to persecution, or other form of inhuman and degrading treatment. The applicants sought compensation for material and non-material damage, arguing that Frontex failed to meet its obligations notably under Frontex Regulation (at the time Regulation (EU) 2016/1624) and the Charter of Fundamental Rights. They notably claim that Frontex did not verify whether a return decision on them had actually been taken, breaching thereby their fundamental rights. Under EU law, a return decision may only be issued against third-country nationals who are irregularly staying on the territory of a Member State. Where the persons concerned are asylum applicants, this necessarily presupposes that an asylum interview has been conducted, the application has been examined and rejected, and only thereafter may a return decision lawfully be adopted.

The General Court dismissed the action on the grounds that Frontex has no competence to assess the merits of return decisions or applications of international protection. It concluded furthermore that the damage suffered did not meet the condition of direct causality, without considering the other conditions for an action for non-contractual liability (namely an unlawful conduct and a damage).

The case has gotten significant academic attention and criticism (see for example here, here, here, here, here and here). According to scholarship, the General Court misunderstood the arguments brought by the applicants by limiting itself in merely assessing the alleged illegality of the return decision. Instead, it should have assessed the legality of the agency’s conduct in the execution of the return decision, to determine whether Frontex had failed its fundamental rights obligations. In this way, the General Court, by by-passing the question of joint responsibility, failed to adopt a clear stance on the burning question of whether Frontex and the Member States could be jointly responsible for a damage caused.  

The applicant appealed the decision, and Advocate General (AG) Ćapeta delivered her opinion on the 12^th June 2025. In it, she states that Frontex, in order to discharge its duties of ensuring that a return operation is conducted in accordance with fundamental rights, has a concrete an obligation to verify whether a return decision exists in the context of a joint return operation, to ensure that the return of the migrants would not violate the principle of non-refoulement (para. 83). As a result, she states that the General Court erred in law in stating that there could be no causal link between the alleged unlawful conduct and the damage suffered. She finally recognises the possibility for both Frontex and the Member States to be held liable for harm arising from return operations (para. 93).

Decision of the Court of Justice: A timid positive step without several questions unanswered  

In the WS and Others v Frontex judgment (C-679/23 P), the Court of Justice largely set aside the decision of the General Court. The Court made four main points. First, it held that the General Court incorrectly assessed the role of Frontex in the return operation and erred in considering that Frontex merely provided technical and operational support to Greece. Second, it held that the General Court erred in law in stating that fundamental rights violations occurring during a return operation fall solely under the responsibility of the Member States. Third, it stated that the General Court should have carried out an assessment in concreto to determine whether the causal link between the conduct complained of and the alleged damage had been broken due to the applicants’ own choice (i.e. to fly to Iraq, their residence in Iraq). Finally, it set aside the judgment of the General Court in that it found a lack of causal link between the cost of representation and the alleged conduct of Frontex. This blogpost will focus on the two former points, related to the recognition of Frontex’s obligations and liability. 

1. The recognition of Frontex’s obligations (in return operation) but with limited impact?

The Court of Justice noted that it is worth distinguishing the various phases of a return operation, and that the aim was not to analyse the merits of the return decision, but rather whether the joint return operation was conducted in compliance with applicable rules, and Frontex’s role therein. It then, by referring to several provisions of Frontex Regulation, stated that Frontex must coordinate at technical and operational level return operations, which can solely concern persons subject to an enforceable return decision (see para. 101 of the decision; as well as para. 77 of the Opinion of the AG). Consequently, Frontex must verify that such decision exists for the individuals included in the operation. The principle of conferral and sincere cooperation does not impact this obligation, and even partly reinforces it, as the Agency should support Member States in carrying out their tasks in full respect of EU law (para. 108).

The Court of Justice in the judgment recognised obligations on Frontex that go beyond mere operational and technical support, implying thereby that Frontex could potentially be held liable for not having verified whether a return decision against the applicants existed. However, the General Court will have to decide on that matter and examine whether a causal link exists between the verification obligation of Frontex and the alleged damage.

When focusing on this obligation of Frontex to verify the existence of a return decision, one can argue that the impact of the decision is limited. This is due to the fact, that Frontex in the hearing admitted a duty to verify cases where the return decision contains logical or a manifest error (see here). Additionally, since then the procedure has changed, and a similar issue would not arise anymore. In fact, the Fundamental Rights Officer issued a report in 2020, that indicated that Frontex had since then agreed to include additional information in the web-based Frontex Application for Return, for Member States to declare and confirm the existence of enforceable return decisions before a return operation takes place (see Footnote 9 in the Opinion of the AG).

However, the reasoning of the Court of Justice was based on assessing the concrete obligations stemming from Frontex’ general task of monitoring compliance with fundamental rights in its activities at the external borders and in return operations. This arguably means that Frontex’s obligations are not solely limited to verify the existence of a return decision. The existence of a broader set of obligations can be inferred by the press release, which, for instance, noted that ‘EU law imposes on Frontex a set of obligations intended to ensure respect for fundamental rights in the context of joint return operations’, which do not entail assessing the merits of return decisions (a matter which remains the Member States competences).

In this light, one could consider other additional obligations stemming from this general duty of monitoring compliance with fundamental rights, which might be the object of future litigation. Examples could relate, for instance, to positive obligations of the Agency to actively ensure the protection of fundamental rights, through monitoring and reporting duties (for a longer discussion, see the blogpost of Fink and Rijpma). This is also part of Frontex’s Regulation (at the time Regulation 2016/1624) which notes in Article 28(7) that the Agency shall, for example, communicate its fundamental rights concerns with regards return operations, to the participating Member State and the Commission. Thus, even though the procedure has since been amended so as to require an explicit verification of the existence of a return decision, the judgment may nevertheless be relied upon by analogy in relation to other obligations incumbent on Frontex. In practice, however, it is likely to be more difficult to establish a lack of due diligence in the monitoring of return operations, in particular to prove that Frontex was aware of, or ought to have been aware of, fundamental rights concerns and failed to act upon them, than it is to demonstrate the absence of any verification in a situation where no return decision has in fact been adopted.

Another potential situation in which the judgment could also apply is in the scenario of the launching of rapid border intervention. In principle, such an intervention, requires a formal request of a Member State that includes a description of the situation, the possible aim, and the envisaged operational needs (see Article 17(1) of Regulation 2016/1624). One could, therefore, imagine a scenario in which Frontex launches a rapid border intervention without having verified that the Member State had duly submitted such a formal request. While the reasoning of the Court of Justice could, in theory, extend to such a scenario, it would in practice be very difficult for affected individuals or other parties to be aware of the procedural framework, and, in particular, of the lack of such a formal request.

2. Little to no clarifications made on Frontex’s regime of liability

The Court of Justice had the opportunity to clarify the contours of joint and several liability in EU law, and more specifically here of Greece and Frontex. Instead, it followed the General Court’s approach to sideline the issue (as had been criticised here and here).

This is disappointing, as it (once more) does not offer long-awaited clarifications on the concept joint and several liability, and goes against the AG Opinion, which on the matter showed more flexibility. The AG noted it was apparent from the applicant’s submissions before the General Court that they relied on arguments referring to the joint liability of Frontex and Greece in return operation (see para. 52 of the Opinion and related Footnote 18). This allowed the AG to enter into discussion on whether there is joint and several liability (meaning that each party who inflicted the damage can be required to compensate the applicant for the damage in its entirety) of Frontex and the host Member States (see paras. 84-97 of the Opinion). The AG does not seem to expressly recognise joint and several liability but concludes that Frontex can be held liable for damages, ‘even if a Member State can be liable in parallel for the same damage’ (para. 93 of the Opinion).

While the Court sidelines any complaints related to joint and several liability, it does timidly refer to the possibility of liability of both the Member State and Greece, hinting thereby at the concept of ‘shared liability’ without expressly mentioning it. The fact that the host Member State is liable for damage caused by a member of the European Border and Coast Guard team operating in their Member State, does not mean that Frontex is excluded from any liability with regards to potential fundamental rights breaches committed on its part during return operations (para. 126 of the judgment). In addition, without ruling on whether a causal link exist between the unlawful act and the damage, it does state that a causal link cannot as such be excluded (see for example para. 110 and para. 133 of the judgment). However, even there, the Court of Justice does not offer any hints on whether a causal link should be recognised. Instead, it notes  that “the fact that Frontex is under a verification obligation in that respect does not mean that there is necessarily a causal link” between the possible infringement and the alleged damage (para. 111 of the judgment). The General Court will have to give an ultimate decision on the issue. 

Concluding thoughts: False hope?

The WS and Others v Frontex judgment marks a cautious positive decision from the Court of Justice. By setting aside the General Court’s narrow judgment, the Court of Justice confirms that Frontex’s responsibilities go beyond the provision of technical and operational support. In doing so, it timidly opens the door to Frontex’s liability under EU law, where the Agency, despite having knowledge of relevant circumstances, fails to ensure that Member States conduct joint operations in compliance with fundamental rights.

However, the practical impact of the judgment of the Court of Justice could ultimately remain limited. This is not only because the specific obligation identified by the Court (namely the verification of the return decision) has since then been embedded into the Agency’s practices, but also because, even in analogous situations, it will likely be difficult to establish a lack of due diligence on the part of the Agency where the alleged shortcomings are not as clear-cut and formally ascertainable. Additionally, even when a breach of obligations under Frontex Regulation could be identified, demonstrating a direct causal link between Frontex’s conduct and the harm suffered by individuals would most likely remain highly complex. The Court of Justice, indeed, has not expressly stated whether a causal link between Frontex’s failure to verify the existence of a return decision and the harm suffered by the applicants existed, and has not solved the debate on the possibility of recognising joint and several liability, leaving that issue open and further limiting the decision’s broader practical reach.

Posted by Sarah Tas (University of Maastricht)

Sarah Tas is Assistant Professor in the Public Law Department, at Maastricht University. She works at the intersection of Administrative law, European law, fundamental rights protection and more specifically data protection. Sarah has extensively published on the supervision and accountability of Frontex and Europol, as well as their datafication. Her work also has societal significance; she has notably co-authored a targeted substitute impact assessment for the European Parliamentary Research Service, on a proposal strengthening Europol’s role in the fight against migrant smuggling and trafficking in human beings, and is also a member of Europol’s Consultative Forum