By Alexander Schuster and Celia Challet
2021 has been a troublesome year for the European Border and Coast Guard Agency (Frontex). The EU agency that assists Member States with their external border control has been exposed for its alleged complicity in human rights violations as part of its operations. Attention has been particularly drawn to Frontex’ activities in the Aegean Sea, where, according to a joint investigation by media outlets and NGO reports, Greece has proceeded to ‘push-backs’ and unlawful collective expulsions against asylum seekers and violated their fundamental rights. Although the direct participation of Frontex in these alleged actions remains to be established, the possibility that such violations were committed at EU external borders with its involvement has triggered a series of reactions. The European Ombudsman has already investigated Frontex. The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs is currently investigating Frontex’ alleged fundamental rights violations (a working version of its report was published on 14 July 2021). A Syrian NGO has taken the unprecedented step to submit a communication to the Office of the Prosecutor of the International Criminal Court, calling upon the latter to launch an investigation into crimes against humanity potentially committed by Greece and Frontex.
Even more importantly, 2021 has witnessed the launch of the first ever legal action against Frontex before the Court of Justice of the EU (CJEU) on grounds of human rights violations. On 21 May 2021, three NGOs acting on behalf of two asylum-seekers, who allegedly suffered human rights violations and ‘push-backs’ while seeking asylum in Lesbos, submitted an action for failure to act against Frontex under Article 265 TFEU (case T-282/21).
In their written submission (non-confidential version accessible here), the NGOs argue that Frontex’s failure to act was twofold. On the one hand, Frontex failed to suspend or terminate its activities in the Aegean Sea region within the meaning of Article 46(4) of its own Regulation. Under this provision, Frontex’ Executive Director must withdraw the financing, or suspend or terminate any activity by the Agency if they consider that there are violations of fundamental rights or international protection obligations that are of a serious nature or likely to persist. On the other hand, Frontex failed to fulfil its positive obligations under the Charter of Fundamental Rights (the Charter) with respect to preventing foreseeable violations of fundamental rights in the context of its operations in the Aegean Sea. According to the applicants, this failure to act infringed, inter alia, Articles 2, 4, 18, 19 of the Charter which respectively provide for the right to life, the prohibition of torture, the right to asylum and the prohibition of collective expulsions. Frontex’ failure to act also allegedly infringed Article 78 TFEU, under which, inter alia, the EU shall ensure compliance with the principle of non-refoulement.
The action launched against Frontex before the General Court is thus not only novel, but has also drawn maximum attention to Frontex’ activities and human rights records. There remains much speculation, however, what can be reasonably expected from this case. Several aspects are worth exploring.
Firstly, the most essential aspect will be to determine whether the case is admissible. Undoubtedly, it will be difficult for the parties to satisfy the requirements for standing under Article 265 TFEU and, in particular, individual concern (in that regard, the Court’s approach seems rather similar to the one under Article 263 TFEU. See, for instance, case Camar and Tico, para. 78 et seq.). It seems difficult to demonstrate that the individuals belong to a ‘closed group’ as they are simply identifiable as members of a general category: any person crossing the Mediterranean could have been affected. Thus, it seems little surprising that the applicants did not extensively discuss the question of admissibility in their submission: given the strict and narrow interpretation of direct and individual concern by the Court, they might have wished to shift the focus of their submission to the pleas.
In any case, the question provides for a ground-breaking occasion to change the ever-lasting saga on the locus standi. Since the CJEU is the only body to which Frontex can be brought for its actions, it has the potential of either restricting or enabling access to this forum. This is particularly important, as actions for failure to act are among the only remedies that can be launched as regards Frontex and Human Rights compliance. An action for annulment is always possible, but push-backs, in essence, might not necessarily entail the prior adoption of an EU act in the sense of Article 263 TFEU. It follows that the Court must, once again, interpret the scope of the locus standi of non-privileged applicants.
The second main question relates to the likelihood of success of the claims. Even if the General Court considered the action as admissible, to what extent would it accept the NGOs’ arguments? For both pleas, uncertainties indeed remain as to the standard of judicial review that would be applied by the Court. Regarding the first plea, the Court would have to decide whether in light of the information available to Frontex during the relevant timeframe, the latter was compelled to apply Article 46 of its Regulation. As for the second plea, it remains to be seen to what extent an alleged failure to prevent violations of fundamental rights can be qualified as a failure to act under Article 265 TFEU. Additionally, the Court would face the challenge of identifying clear responsibilities for Frontex or the Member States within the joint operations.
Irrespective of its outcome, this case is thus likely to have fundamental legal implications as regards Frontex’ actions and the standard of judicial review applied to them. Since it is the first time an EU agency is brought to court under Article 265 TFEU, the case could also have broader implications for the functioning of agencies. Finally, one should not overlook the political repercussions of this case. If the Court declares the application inadmissible, genuine doubts concerning effective scrutiny mechanisms to Frontex’ actions could arise. If the Court rules that the action is in fact admissible, it would send a strong signal towards more accountability of Frontex and EU agencies overall.
Celia Challet is a Ph.D. candidate in Ghent and an Academic Assistant at the College of Europe.
Alexander Schuster is a recent LLM graduate from the College of Europe and started his Schuman Traineeship in October 2021.