[Human rights in the European Union] Can due diligence rescue Frontex?

In a post for European Law Blog, Ewa Romanowska (Asser Institute) criticises a recent decision by the Court of Justice of the European Union (CJEU). The court dismissed a human rights lawsuit brought by Syrian asylum seekers against Frontex, the EU's border agency. Romanowska argues that the ruling exacerbates Frontex's accountability gap.  

In light of existing controversies surrounding the European Border and Coast Guard Agency (Frontex), including alleged human rights violations, a surge in return operations, and the continued search for accountability pathways for the agency, Ewa Romanowska argues that human rights due diligence and impact assessments can assist the Agency’s officers in fulfilling their duties in line with their mandate (Article 1 European Border and Coast Guard Regulation) and fundamental rights (Article 80 European Border and Coast Guard Regulation). She also examines whether an appropriate judicial forum exists to enforce the performance of human rights impact assessments within the agency before executing return operations. 

The case against Frontex  
The issues surrounding the Agency are evident in the case of WS and Others v Frontex brought before the Court of Justice of the European Union (CJEU), where the applicants claim damages from the violation of their right to asylum, the prohibition of collective expulsion, the rights of the child, and the prohibition of degrading treatment. This case was initiated by a family of Syrian nationals seeking asylum in Greece, who were promptly returned to Turkey by Frontex, and later relocated to Iraq in 2016. Due to the distress caused and the living costs incurred, the family is claiming both material and non-material damages resulting from alleged human rights violations committed by Frontex officers. The case is significant because it asks the court to pronounce on fundamental rights violations by resorting to a claim for damages (based on Article 340 Treaty on the Functioning of the European Union), and because the court examines only the last condition of the existence of a causal link between the conduct and damage. While the court finds the action inadmissible based on the lack of existence of a causal link and the agency’s lack of authority to inquire about the merits of the return decision, Romanowska's post highlights the uncertainty of this reasoning. It outlines some existing critiques, that the judgement sidelines fundamental rights obligations that exist notwithstanding the operational and technical mandate, and reiterates that the Court employs a clouded argumentation of the court by mixing the terms of intentions and consequences of an act, does not determine attribution of conduct before determining causation (although these two concepts remain conflated in European Union law and no official test for such exists), and conducts a restrictive reading of causation.  

A new human rights-based approach 
The extent to which Frontex is bound by human rights obligations has been a matter of recurring debate. Recently, European Union (EU) Ombudsperson Emily O'Reilly recommended Frontex officers resort to a due diligence procedure offered by the Agency’s Fundamental Rights Officer in operations providing border surveillance capabilities to the Libyan Coast Guard. In their decision, the Ombudsperson echoed calls by several non-governmental organisations (NGOs) urging the Agency to apply the human rights impact assessments or the due diligence procedure employed by the Fundamental Rights Officer in a transparent way. The recommendations made by the Ombudsperson included conducting a transparent human rights impact assessment, systematically identifying the human rights impacts of Frontex’s concrete activities, publishing the Fundamental Rights Officer’s Due Diligence procedure on its website, and drawing up a set of criteria for when the Fundamental Rights Officer should be consulted when cooperating with third countries. The Ombudsperson also highlighted that in engaging in training and capacity-building programmes with countries with poor human rights records, a prior assessment of the human rights impact should always be carried out.  

The following recommendations regarding employing an assessment of specific Frontex actions can act as a source of inspiration in outlining obligations for Frontex officers. These obligations can also be found in Article 80 European Border and Coast Guard (EBCG) Regulation, which prescribes developing an 'effective mechanism for monitoring respect for fundamental rights in all the activities of the Agency' to mitigate or eradicate human rights abuses at the source. 

Therefore, the appeal proceedings in the mentioned case where the applicants argue that the court erred in law in not finding the causal link and interpreting the EBCG Regulation as not including an obligation to ensure compliance with fundamental rights, present an opportunity for the CJEU to clarify the obligations already outlined in the law. It will not only enhance Frontex’s ability to perform its functions in conformity with fundamental rights but also present a way for the Court to escape legal uncertainties when the agency acts without having the legal power to act. 

Read the full blog post.  

About the author
Ewa Romanowska is currently pursuing a Master's in European Law at Leiden University and possesses a broad interest in law and human rights both within and beyond the European Union. Previously, she was an intern at the T.M.C. Asser Instituut, where she assisted Dr. León Castellanos-Jankiewicz in research on negligent arms exports and related human rights issues.  

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