Refugee Camps at EU External Borders, the Question of the Union’s Responsibility, and the Potential of EU Public Liability Law

‘The EU hotspot approach as implemented in Greece is the single most worrying fundamental rights issue that we are confronting anywhere in the European Union’. This quote by the head of the EU Agency for Fundamental Rights (FRA) might sound drastic. Yet, it is not far-fetched. EU bodies, national institutions, international organisations including the Council of Europe, and NGOs, have, during the past four years, continuously documented that the asylum processing centres at the EU external borders lead to fundamental rights violations on a daily basis. The EU hotspot administration indeed jeopardises the respect for fundamental rights and the rule of law as enshrined in Article 2 TEU.

Usually, when something is going wrong, a first step towards improvement is to ask: who is responsible? And yet, with regard to EU hotspots, this question is still subject to debate. Responsibilities are effectively blurred by the sheer number of actors operating in those centres combined with a lack of legal clarity. On the political level, this leads to responsibility-shifting between the European Commission, Greece and local municipalities. On the legal level, so far, only Greece as the host Member State is considered responsible, namely under the ECHR. The considerable involvement of the Commission and EU agencies—in particular Frontex and the European Asylum Support Office (EASO)— however suggests to look to EU law and to examine whether and to what extent the European Union is legally responsible.

It is argued here that EU public liability law—more specifically: an action for damages against the Union or its agencies Frontex and EASO—has a particular potential in this context. First, it would help secure the right to an effective remedy to concerned individuals. Second, it would thereby serve to address systemic deficiencies in the EU hotspot administration. Third, it could ultimately provide an answer to the crucial question of whether the Union is responsible for fundamental rights violations in EU hotspots.

1 – The violation of fundamental rights in EU hotspots—systemic deficiencies

In 2015, the Commission put forward the EU hotspot approach as part of the European Agenda on Migration. While the approach is implemented both in Italy and Greece, this contribution focuses on the latter. Each of the five EU hotspots in Greece, located on Aegean islands, consist of a refugee camp, an administrative complex, and, in some cases, a pre-removal detention facility. In March 2016, with the implementation of the EU-Turkey Statement, the EU hotspots were transformed into return centres meaning that the asylum procedure and the reception conditions were adapted to the aim of return. Currently, about 41,000 persons are staying in those camps.

The approach of ‘processing asylum claims at borders, particularly when these centres are located in relatively remote locations, creates fundamental rights challenges that appear almost unsurmountable’. This assessment by FRA seems plausible given the empirical evidence provided by the already four-years long ‘hotspot experiment’. More specifically, FRA finds fundamental rights risks with regard to, inter alia, Articles 1, 4, 5(3), 6, 7, 18 and 19, 20 and 21, 24, 25 and 26, 41 and 47 of the EU Charter on Fundamental Rights (ChFR). Two aspects deserve particular attention.

First, the reception conditions are far from complying with any standard of EU secondary law and wholly inadequate for human beings: Shelter is insufficient (if there is any), there exists exposure to extreme weather conditions, a high risk of sexual, gender-based and other forms of violence, a lack of medical services despite widespread physical and severe psychological health issues, insufficient and inadequate sanitary facilities, and a lack of access to education or social services. Taken as a whole, the reception conditions arguably amount to a violation of Article 4 ChFR prohibiting inhuman or degrading treatment, at least insofar as vulnerable persons are concerned. This follows from the standards established by the CJEU from N.S. to Jawo, taking into account the case law of the ECtHR from M.S.S. to Tarakhel. Concerning EU hotspots specifically, the ECtHR seems to slowly change its jurisprudence: In contrast to earlier decisions concerning the situation in March 2016, a violation of Article 3 ECHR was found in more recent interim measures concerning vulnerable persons. Even if one assumes that a violation of Article 4 ChFR can be found only for vulnerable persons, this still affects a considerable number of people.

Second, a deportation to Turkey, at least in the vast majority of cases, would be in breach of the Asylum Procedures Directive, since Turkey cannot be considered as safe third country or first country of asylum. This is, despite the differing decision of the Greek Council of State, in line with the view of the Greek administration (and the Administrative Court of Munich). Considering the situation in Turkey, it seems that, at least for the vast majority of persons, the deportation would amount to a violation of the non-refoulement principle as enshrined in Articles 4, 18, 19(2) ChFR. This follows from the minimum standards established by the ECtHR in Ilias and Ahmad with regard to Article 3 ECHR. (The CJEU has not yet established the constitutional standards following from Articles 4, 18, 19(2) ChFR: The decision in Alheto concerns a specific case, and the decision in LH  remains to be awaited). With regard to the situation in Turkey specifically, an individual complaint before the ECtHR is pending.

Those two aspects speak in favour of describing the implementation of the EU hotspot as systemically deficient. Both a breach of Article 4 ChFR as well as breach of the non-refoulement principle as enshrined in Article 4, 18, 19(2) ChFR meet the threshold of being relevant for Article 2 TEU. Further, both breaches are systemic in the sense of widespread or inherent to the situation: An arguable limitation to the sub-group of vulnerable persons does not hinder the qualification as systemic. Due to the design of EU hotspots as return centres, the question whether deportations to Turkey violate the non-refoulement principle is, despite the relatively low numbers of returns, of structural relevance.

2 – The considerable involvement of the Union in the EU hotspot administration

Against this background, it is worthwhile to have a closer look at the involvement of the Union in the EU hotspot administration. From the perspective of EU administrative law, the distinctive characteristic of EU hotspots, in comparison to other asylum processing centres at EU external borders, is the close administrative cooperation between Union bodies and national authorities. This becomes clear already from Article 2(23) Frontex Regulation defining a ‘hotspot area’ as an area ‘in which the host Member State, the Commission, relevant Union agencies and participating Member States cooperate, with the aim of managing an existing or potential disproportionate migratory challenge characterised by a significant increase in the number of migrants arriving at the external borders’.

The EU hotspot administration can hence be described as the paradigm example for advanced vertical administrative cooperation within the integrated European asylum administration. This means that several EU agencies—such as Frontex, EASO, Europol, and Eurojust—cooperate with several national authorities—such as asylum service, reception service, police, and army. In practice, international organisations such as UNHCR and IOM, several NGOs, and a private security company operate in those centres in addition.

The operational level—the role of Frontex and EASO

On the operational level, migration management support teams (MMST) deployed by the EU agencies support the Greek authorities. The distinctive feature of the MMST lies, inter alia, in the close inter-agency cooperation. While Frontex supports in particular by registering applicants and escorting deportations to Turkey, EASO supports notably by conducting asylum interviews and drafting legal opinions recommending the acceptance or rejection of the concerned individual’s claim for international protection.

With a view to EU public liability law, it should be kept in mind that the responsibility to issue administrative decisions lies with the host Member State. The role of Frontex and EASO is to provide non-formally binding administrative support. However, the line between formally-binding and non-formally binding is not that easy to draw: Non-formally binding administrative conduct can have de facto binding effects on national authorities, as illustrated by EASO’s involvement in the assessment of asylum claims. And non-formally binding administrative conduct can have quite significant effects on individuals, in particular since the reformed Frontex Regulation does not exclude the use of force by Frontex MMST staff.

The coordination and monitoring level—the role of the Commission and the EURTF

On the coordination and monitoring level, responsibility lies with the European Commission, who is supported by Frontex, EASO, and the other relevant EU agencies in this respect. Article 40(3) Frontex Regulation provides that the ‘Commission, in cooperation with the host Member State and the relevant Union bodies, offices and agencies (…) shall be responsible for the coordination of the activities of the migration management support teams.’ The Commission performs this task within the framework of the EU Regional Task Force (EURTF). The EURTF is a coordination structure which has been established without a clear legal basis and operates under non-public ‘terms of cooperation’ and ‘rules of procedure’.

With a view to EU public liability law, it should be noted that the Commission’s mandate includes the supervisory obligation to ensure that the EU hotspot approach is implemented in line with EU law. This becomes clear already from Article 40(3) Frontex Regulation, read in light of its Article 1 and recitals. Further, and more importantly, this follows from Article 17(1) TEU, as interpreted by the CJEU in Ledra, as well as from Article 51 ChFR.

3 – The Potential of EU Public Liability Law—enforcing EU law from below

The Commission, Frontex, and EASO are hence closely involved in the EU hotspot administration which is systemically deficient, and leads to fundamental rights violations in individual cases. This gives rise to the crucial question: Can the Union be held responsible? A legal regime which could provide an answer to this question would ideally grant the right to an effective remedy to the concerned individual and enforce the rule of EU law more generally, while at the same time allowing for the attribution of responsibility among the involved actors.

It is argued here that EU public liability law has a particular potential in this context due to its subjective and objective legal protection function combined with its attribution function. More specifically, the particular potential lies in the action for damages against the Union or its agencies—as codified in Article 340(2) TFEU respectively Article 97(4), 98 Frontex Regulation, and Article 45(3) EASO Regulation. In the latter case, the agency would be liable under its founding Regulation in a first degree, and the Union, since it cannot exclude its liability under Article 340(2) TFEU by adopting secondary law, in a second degree.

To begin with, it seems that, among