Tilting the Scales
The Burden of Proof When Power Wears an EU Uniform
On April 10 2025 AG Norkus delivered his Opinion in the appeal of Hamoudi v Frontex (Case C-136/24). Mr. Hamoudi (see comments of the case here and here) arrived in Greece by boat from Turkey in April 2020, seeking asylum. Soon after landing, Greek authorities apprehended him, seized his phone, and sent him to sea – together with other 21 people – on a life raft without any means of propulsion. While adrift, the group was flown over twice by a Frontex aircraft, before being intercepted and detained by Turkish authorities. The account of Mr. Hamoudi aligns with the sequence of events depicted by the EU Anti-Fraud Office (OLAF) report, which revealed pushback operations taking place in the Aegean Sea under Frontex’ watch in April 2020, including the relevant dates of the facts of the case. In an action for damages before the General Court (T‑136/22), Mr. Hamoudi sought compensation from Frontex for the harm suffered due to the collective expulsion. In spite of the authoritative OLAF report corroborating the evidence presented by Mr. Hamoudi (a written declaration, a Bellingcat article concerning the events and multiple photographs taken from YouTube videos documenting the pushback), the GC dismissed the case considering the evidence adduced ‘manifestly insufficient to demonstrate conclusively that he was present at and involved in the alleged incident’ (for a comment of the dismissal, here). Mr. Hamoudi appealed the order, thus bringing Frontex before the CJEU’s Grand Chamber for the first time since the Agency’s creation in 2004.
In his Opinion, AG Norkus tackles a question that is pivotal not only for Mr. Hamoudi’s right to compensation ex art 340(2) TFEU, but more broadly for the evolution of the EU legal system: how should the CJEU address stark power imbalances in evidentiary matters? In formulating EU procedural rules for cases involving collective expulsions, the CJEU should take into account the blatant asymmetry in accessing evidence existing between asylum seekers adrift at sea and an EU Agency equipped with cutting-edge surveillance technology. Yet, the reasoning of the AG on the allocation of the burden of proof appears to misfire in some crucial respects.
The burden of proof in case of collective expulsions
Noting that there is no EU legislation governing the concept of proof (para 24), the AG sought to delineate the rules applicable to allocate the burden of proof in cases of collective expulsions. To do so, he drew on both the case-law of the CJEU and of the ECtHR. By relying extensively also on the latter, AG Norkus expanded the playfield compared to what the GC did in the first instance, in which the court did not engage with the ECtHR standards for the evidentiary assessment (as criticized by scholars here and here). The AG pointed out, in fact, that while a declaration of violations from the ECtHR appears to differ from an action for damages before the CJEU, this distinction is ‘more apparent than real’ (para 29). He continues – echoing the applicant during the hearing – by acknowledging that there is a ‘certain parallelism’ between article 340 TFEU and article 34 ECHR. Following Article 52(3) of the Charter, the AG underlines that when a Charter right corresponds to one in the ECHR, the CJEU must interpret it in harmony with the ECtHR.
Examining the case-law of the ECtHR, the AG found the recent case A.R.E. v Greece particularly significant. In that case, the ECtHR applied principles developed in its own case law on secret detention in the context of collective expulsions. The ECtHR held that when a claimant submits prima facie evidence and the respondent fails to disclose essential documents or provide a credible alternative account, the court may draw adverse inferences against the respondent (paras. 40–50). Crucially, the AG observed that the Strasbourg Court evaluates the prima facie evidence in light of the broader factual and institutional context existing at the time of the alleged violation (para 48-50).
As for EU case-law, the AG looked into various fields such as anti-discrimination, asylum, and consumer protection (paras. 30–37). The cases analyzed illustrate that the principle probatio incumbit ei qui agit may be modified to give claimants the possibility to access fair procedures, without breaching the right to a fair hearing at the expense of the respondent (para 35).
In line with both CJEU and ECtHR case-law, the AG rightly notes that the burden of proof in cases of collective expulsions should not rest on the claimant since “concrete evidence of collective expulsions, if it exists at all, may therefore be in the hands of the alleged perpetrators rather than of the victims thereof” (para. 51). As to the qualification of Frontex as the perpetrator of the collective expulsion, it is worth noting that in the appeal the claimant explicitly deemed Frontex as the ‘true author’ of the collective expulsion, which was executed in line with the legally binding Operational Plan for RBI Aegean, drafted by Frontex’s ED.
Shaping the EU’s evidentiary rules
After thorough research into relevant cases, the AG outlines a series of subsequent and cumulative conditions that must be fulfilled for the burden of proof to shift from the claimant to the respondent.
The first condition (para. 57 of the Opinion) is that the claimant presented prima facie evidence to support their allegations. If the claimant’s account lacks consistency, coherence, or credibility, this first condition is not satisfied and the possibility of a shift of the burden of proof must be dismissed.
The second condition (para. 59) refers to a clear or structural imbalance in access to evidence. The burden may shift when the claimant faces serious difficulties in obtaining evidence, while the respondent is in a stronger position to access and present relevant information.
The third condition (para. 60) is met when denying the shift in the burden of proof would make it impossible for the claimant to exercise their fundamental rights under EU law, while granting the shift would not infringe upon the rights of the respondent.
Applying sequentially the three conditions to Mr. Hamoudi’s case, the AG rightly suggests with regard to the prima facie evidence (first condition) that the GC may have set the bar too high (para 65). The AG noted, in fact, a contradiction in the GC’s formulation as the phrase ‘manifestly insufficient’ suggests that no evidence whatsoever was submitted, while the simultaneous use of the word ‘conclusively’ suggests otherwise. What the AG did not notice with regard to this first condition is that the GC also failed to take into account general contextual evidence, which instead, as noted by the AG when examining A.R.E., is considered by the ECtHR. The general contextual evidence in this case would be, for example, Frontex’ correspondence with national authorities showing that the Agency knew about the pushbacks (as widely documented by investigative journalism). As for the imbalance of power (second condition) the facts speak for themselves: a vulnerable individual at sea with no access to communication is clearly at a disadvantage when compared to an EU Agency with an enormous budget and growing staff. Moreover, as per its Regulation, Frontex was under a positive obligation to intervene in the events recounted by Mr. Hamoudi and confirmed by the OLAF report. Articles 80(2) and (3) establish the Agency’s exclusive obligation to take action in case of human rights abuses and potential violations. The OLAF report confirmed that Frontex had been made aware of the abuses in the same month and, therefore, the Agency should have taken action. Crucially, Article 7(4) states that the Agency shall be fully responsible and accountable for any decision and for any activity for which it is solely responsible under its Regulation. As for the third condition, refusing to shift the burden would render ineffective Mr Hamoudi’s rights under, inter alia, Article 19 (protection from collective expulsion) and Article 47 (right to an effective remedy) of the Charter. Shifting the burden, instead, would not compromise any of Frontex’s rights. Rather, by submitting evidence, Frontex, as a public authority, would fulfill its obligation under Article 24 of the Court’s Statute to assist the Court in reaching a fair and accurate outcome.
Shifting the ‘opponent’ rather than the burden?
Having laid out the three steps that could lead to the reversal of the burden of proof, in paras 61 and 62, the AG oddly shifted from articulating procedural rules to focusing on the institutional status of the parties involved in the evidentiary dispute. He first observes that in anti-discrimination and collective expulsion cases, there is typically a presumption that the applicant faces a more powerful party and that this power imbalance justifies the automatic reversal of the burden of proof once prima facie evidence is presented (para. 61). However, in a surprising pivot, the AG then questions whether this presumption applies when the accused actor is not a Member State but an EU agency like Frontex. The AG states that because Frontex has “more limited powers” than Member States, it is unclear to what extent the Agency’s actions can contribute to the claimant’s evidentiary burden (para. 62) and that it is not self-evident whether Frontex is in a more privileged position than the applicant to rebut the allegations. This observation clearly overlooks Frontex’ obligations enshrined in its Regulation. Moreover, it distorts the central issue of the case: rather than weighing Frontex’ power in relation to Mr. Hamoudi, the AG shifts the claimant’s opponent and compares the Agency’s power to have access to evidence to that of Member States. The proper question, however, is whether Frontex, an EU agency operating under a legal obligation to uphold fundamental rights, is better placed than the applicant to access and disclose the relevant evidence of a collective expulsion. Moreover, the AG’s suggestion that relevant evidence may lie with national authorities risks devaluing the ‘parallelism’ mentioned by the AG himself (see above) between article 34 ECHR and article 340 TFEU. This is because it disregards the differences that should make the ECtHR competent to assess violations by Contracting Parties on the one hand, and the EU courts competent to ‘make good any damage caused by its institutions or by its servants’ on the other. According to the AG, the burden of proof does not shift automatically to Frontex because of its “more limited powers” compared to national authorities. However, the specific facts of the case tell another story: as the Opinion itself notes (para. 63), the very nature of “ghost landings” implies that national coast guards may not be present at sea, thus increasing Frontex’ central role and responsibility as per Article 80(2) and 80(3) read in line with Article 7(4) of Frontex Regulation (see above). Furthermore, both the OLAF report and Frontex’ statements during the hearing confirmed that the Agency had prior knowledge of the ghost landings carried out by the Hellenic Coast Guard (see also the letter of Frontex’ ED to Greek authorities enquiring about pushbacks in April 2020). As a result, Frontex was under a clear duty to work with national authorities to prevent human rights violations, of which the Agency was aware. Thus, Frontex is in the best—and probably only— position to verify or refute the prima facie evidence presented by Mr. Hamoudi, including whether one of its surveillance aircrafts was operating over the relevant area during the alleged collective expulsion and whether the Agency failed to report what it observed, thus contravening its obligations.
Time to advance access to justice
As to the next steps of the case, the AG offers the CJEU two options: if the Court considers that the proceedings before the GC allow a determination that the appellant presented prima facie evidence and the evidence is found lacking, then the appeal should be dismissed. If the Court either lacks sufficient basis to decide or finds the evidence sufficient, the appeal should be upheld, the order set aside, and the case referred back to the GC to assess whether the burden of proof should shift.
This conclusion does not seem satisfactory, as the state of the proceedings before the GC certainly enables the CJEU to conclude that the appellant has provided prima facie evidence and that also the other conditions outlined by the AG for the shift of the burden of proof are complied with.
In spite of the critical points outlined, the Opinion has the potential to strengthen access to justice vis-à-vis Frontex. As noted by Front-Lex, a crucial step forward is the application of Strasbourg principles to cases involving non-state actors like Frontex. To date, the GC has consistently refrained from applying the minimum threshold of protection set by the ECtHR in cases involving Frontex. As such, the AG Opinion might mark a positive development and could still pave the way for a CJEU’s decision that fosters access to justice in the EU.