“We Were Just Cooperating!”
The Case for Frontex’ Fundamental Rights Obligations
On June 12th 2025, Advocate General (AG) Ćapeta delivered her Opinion in Case WS v Frontex (C-746/23 P), concerning the responsibility of the European Border and Coast Guard Agency (EBCGA or Frontex) for violations of fundamental rights in joint return operations (JROs). The fundamental rights allegedly violated include the right to asylum, right to a good administration and an effective remedy, the protection from non-refoulement (as enshrined in the Charter of Fundamental Rights (CFR)), as well as several provisions of secondary law (Opinion, p. 24). The Opinion is presented in the context of the appeal to the General Court’s (GC) decision in Case T-600/21 (commented by many experts, including De Coninck, Gkliati, and Tas), which dismissed an action for damages under Art. 340 TFEU brought by two Syrian nationals who were returned from Greece to Turkey during a Frontex-coordinated JRO. Alongside the suffering of an unlawful damage, such action requires the attribution of the unlawful conduct to the relevant actor and the existence of a causal nexus between the conduct and the damage (see Novar GmbH v EUIPO, p. 25).
In her Opinion, AG Ćapeta first exposes serious logical and legal flaws in the General Court’s approach, namely, the misapplication or confusion of the distinct legal elements of attribution and causation. She then explains why Frontex can be held directly accountable for fundamental rights violations when acting in cooperation with Member States; a question that was central to the applicants’ case and one that the General Court failed to address entirely.
The General Court’s ruling in WS v Frontex
The GC rejected the claim for damages on the basis that the alleged harm could not be directly attributed to Frontex. Under Article 340(2) TFEU, in cases of non-contractual liability, the Union shall make good any damage caused by its institutions and servants in the performance of their duties. For liability to arise, three cumulative conditions must be satisfied: the existence of actual damage, the conduct of the institution or agency must be unlawful, and there must be a direct causal link between that conduct and the harm suffered. Should any of these elements be lacking, the action must be dismissed in its entirety (Novar GmbH v EUIPO, p. 26).
The GC based its ruling in WS on the elements that the issuance of return decisions and the processing of asylum claims fell solely within the competence of the Greek authorities (WS, p. 64), as per Article 6 of the Return Directive and Article 4 of the Asylum Procedure Directive. Member States bear sole responsibility for issuing return decisions, and must do so in writing (Return Directive, art. 12(1)). For this reason, procedural irregularities or rights violations that occurred during the execution of the return decision were not, in the Court’s view, causally linked to the conduct of the Agency, but rather had to be attributed solely to the competent national authorities. Consequently, it concluded that Frontex’s conduct could not have caused the alleged harm, since it was not the competent actor responsible under EU law for the concerned decision. On this basis, the Court reasoned that the required causal nexus between Frontex’s conduct and the applicants’ alleged harm was lacking (WS, paras. 64-66), as the damage could not be attributed to Frontex (WS, p. 70), and dismissed the action.
However, as the applicants had already argued at first instance, and as AG Ćapeta reiterates, no return decision had ever been issued in their case. The applicants did not contest the nonexistent national decision, but rather Frontex’s failure to take measures to prevent a breach of their fundamental rights in the execution of the JRO (Opinion, p. 25). Therefore, the question for Court should have been whether Frontex should have checked the existence of such decision in the first place. Had it done so, it would have found that the operation lacked a lawful basis. In the applicants’ view, this omission amounted to a breach of the Agency’s positive obligations. This point, although raised, was never addressed by the General Court.
The AG suggests two possible explanations for the Court’s reasoning, and its exclusion of this point from the legal analysis: either the GC misunderstood the nature of the applicants’ claim—treating it as a challenge to the return decision itself – or it adopted the view that Frontex cannot incur liability when merely supporting Member State operations (Opinion, p. 61). Both, she implies, fail to address the real question raised by the case: whether Frontex, as an EU agency, bears independent fundamental rights obligations under the EBCGA (then amended in 2019), and if the agency can incur liability independently of the Member State (Opinion, p. 67). She responds affirmatively to both: Frontex is directly bound by the Charter (Opinion, p. 72) and may, as an EU agency, be held liable for its actions (Opinion, p. 93).
All aboard the Charter
The AG concludes that verifying the existence of return decisions is part of the Agency’s fundamental rights obligations. Her analysis builds on primary legislation: as established under Article 51(1) CFR, the EU Charter applies to all EU Institutions, bodies and agencies when implementing Union law, also extraterritorially. Therefore, Frontex already holds the obligations to respect the rights protected therein, and the reinstatement of such rights in its founding Regulation is merely declaratory (Opinion, p. 72). An alternative reading would lead to incoherent results: interpreting the Agency’s mandate and responsibility regime in such a way that it bears no legal responsibility when cooperating with Member States would, in effect, exempt it from accountability across the vast majority of its operational activities. Such an interpretation would even run contra legem, in light of EU primary law, the very EBCGA Regulation, as well as general principles of EU law (on this last point, more is elaborated below).
Frontex claimed to have verified the existence of the relevant documents (Opinion, p. 80). It stated that it had received a document from the Hellenic authorities listing the applicants’ names. According to the latter, the list contained names of individuals who had not applied for asylum (Opinion, p. 80, 81). The Agency maintained that it relied on this document and did not contest it, in line with the principle of sincere cooperation (Art. 4(3) TEU). However, the applicants had, in fact, requested international protection (Opinion, p. 81). While this element alone would have been sufficient to prevent the execution of the return, it would have been enough for them to express, in any form, a fear of persecution or serious harm to trigger protection obligations. As per the Schengen Handbook, applicants are not even required to explicitly invoke the word ‘asylum’ (Article 12(1), Schengen Handbook).
No exemption for Frontex
The AG also examined the possibility of joint and several liability between Frontex and the Member State. In WS, the GC appeared to reject this possibility outright, excluding the Agency’s liability entirely. As elaborated in the following section, this reasoning is, in my view, unsustainable.
First, Article 5 of the 2016 Regulation – substantively replicated in Article 7 of the current Regulation – introduced the concept of ‘shared responsibility’ between the EBCGA and the Member States for the implementation of the European Integrated Border Management (EIBM). It is within this structure that Frontex operates and implements its mandate of ensuring the EIBM (as per Art. 1, EBCGA Reg.), which includes returns/joint return operations (Art. 4(1)(h), 2016 EBCGA Reg.). Exempting the Agency from responsibility solely on the basis that return decisions are formally adopted by Member States does not seem compatible with the logic of the shared responsibility regime: no provision in the Regulation supports a blanket exclusion of the Agency’s liability for selected items of the EIBM, nor does it establish an ad hoc legal regime for returns. On the contrary, the Agency was additionally bound to assess the action of Member States in the implementation of returns and other activities. As such, the ‘shared responsibility’ framework must be understood as extending to all components of the EIBM, return operations included.
This interpretation finds additional strength in light of the Treaties: under Article 288 TFEU, Regulations are binding in their entirety, have general application and are directly applicable in all Member States. Therefore, both Article 5 on the “shared responsibility” model and Article 4 outlining the scope of EIBM constitute a binding part of the legal framework governing Frontex’s actions, and are generally and directly applicable. In light of the aforementioned, it remains unclear why the GC did not interpret Frontex’ responsibility for potential fundamental rights violations as part of the ‘shared responsibility’ framework alongside the Member State involved, but rather excluded it altogether. The GC seems to have ignored the provision, or disapplied it in that specific context, therefore deviating from Article 288 TFEU.
To argue otherwise – to maintain that certain provisions of the Frontex Regulation can be selectively disregarded – is to suggest either an inconsistent interpretation of primary law or that the Regulation itself fails to meet the requirements of Article 288 TFEU. The latter conclusion would call into question the Regulation’s status as a binding and effective legal act. This reasoning would also imply that the Agency is operating on the basis of an instrument that does not meet the definition of a Regulation under Union law, thereby lacking a valid legal foundation. This would render not only the EBCGA’s actions, but potentially even its institutional existence, ultra vires and ultimately unlawful.
Conversely, if the Regulation is valid and legally enforceable, it necessarily entails that Frontex’s actions must be reviewable and the Agency responsible for fundamental rights violations. In the EU legal order, individuals have the right to an effective remedy (Johnson, p. 19) and enjoy a complete system of remedies (Unión de Pequeños Agricultores, p. 30). As famously held in Les Verts, no EU body can escape judicial review to ensure compatibility with the Treaties in a community based on the rule of law (Les Verts, p. 23).
Joint operations, joint responsibility
In line with this, AG Ćapeta notes that the concept of join and several liability is already established in EU law (Opinion, p. 34; see Firma E. Kampffmeyer, and AG Rantos’ Opinion in Kočner). She argues that both Frontex and the Member State can be held liable for harm arising from return operations. This was also the interpretation proposed by the Joint Guidelines on “Shared Responsibility” for European Integrated Border Management, intended to clarify accountability frameworks in multi-actor operations involving Frontex. The Guidelines propose that claimants should be allowed to seek compensation from either Frontex or the Member State for the full extent of the damage suffered. Once compensation is awarded, the responsible actors may settle questions of internal contribution and recourse separately (see Guidelines 11-13). This model would facilitate access to remedies without requiring claimants to delineate the precise extent of each actor’s contribution – a particularly difficult task in operational contexts marked by designed opacity, and blurred chains of command. By doing so, the joint responsibility framework reinforces the principle of effective judicial protection and provides a pragmatic solution for ensuring the EBCGA’s accountability.
A step in the right direction
The AG’s Opinion is encouraging. The Court should follow this line of reasoning and take the opportunity to clarify the scope of the EBCGA’s liability regime and the operational dimension of the ‘shared responsibility’ mechanism. It has in the past demonstrated a willingness to interpret the Treaties dynamically in order to uphold fundamental rights—even in areas formally excluded from its jurisdiction: in case KS KD, for instance, it affirmed its jurisdiction to review a measure adopted under the Common Foreign and Security Policy (despite the limits set by Article 24 TEU and 275 TFEU), in order to protect fundamental rights. Much less interpretive effort would be required to hold the EBCGA accountable. This may well be the case to set the standard.