I. Unpacking the Concept of Joint Processing

Cognizant of the legal limitation included in the EASO Regulation,Footnote ⁵⁹ I distinguish here between three scenarios: assisted processing; common processing; and EU-level processing. I understand assisted processing to refer to the examination of asylum applications by officials of the competent Member State with the support of officials of one or several other Member States, possibly coordinated through EASO. This would mean in practice either that national officials are active at every procedural stage and are merely assisted by the EU (coordinated) level, or that deployed experts are not independently undertaking actions or adopting decisions that involve executive discretion. By executive discretion here I am not referring to the classical division under national administrative law between discretionary decisions (Ermessensentscheidung or pouvoir discrétionnaire) and those where precise conditions control or “bind” the decision (gebundene Entscheidung or compétence liée). Rather I use this term to denote more broadly administrative actions that have the capacity to affect the legal position of an individual, whether directly or indirectly.

Thereafter, common processing essentially refers to “mixed,” or “composite” administrative proceedings.^{Footnote 60} Broadly speaking:

Their “mixed” or “composite” character refers to the variety of jurisdiction levels involved in a single administrative procedure. In our context, they concern asylum-related decision-making. They occur when the EU (coordinated) level would be exclusively responsible for one or more parts of the procedure that involve executive discretion (such as responsibility determination under Dublin, or proposing a decision on the basis of an interview).

The final scenario is then EU-level processing, where the joint elements disappear, as the decision is taken entirely by an EU authority instead of the Member States. This third scenario would require an amendment of the TFEU, which envisages that “a Member State” is ultimately responsible for the examination of an application.^{Footnote 62} The second scenario is beyond the limits of the current mandate of EASO, which excludes the exercise of direct or indirect powers in relation to the taking of decisions by Member States’ asylum authorities on individual applications for international protection.^{Footnote 63} Only the first scenario, assisted processing, is within EASO's mandate.

II. Joint Processing: Timid Beginnings

Joint processing of asylum applications emerged first through a number of pilot exercises which took place between June 2014 and June 2015. EASO stated that 22 experts took part in the joint processing pilot projects conducted by EASO in 9 Member States in 2014 and 18 experts from 15 Member States were involved in three EASO pilot projects in 2015.^{Footnote 64} These were one-off, short-term exercises to test the feasibility (in practice) of joint processing. Very scarce information exists regarding the precise operationalization of these first pilots. Below I undertake an evaluation of their legal nature based on information provided by EASO. From the little information that is available it would appear that the deployed experts undertook activities that fell both under the first (assisted processing) and second (common processing) scenarios contemplated above. Two examples illustrate this point.

A pilot implemented in Poland from January 19 to February 11, 2015, deployed twelve experts from eight countries in three locations.^{Footnote 65} Two teams performed joint registration and identification of applicants together with the Polish Border Guards.^{Footnote 66} This involvement falls under the first scenario, that of assisted processing, since EASO stressed that they were continuously “under the supervision of the Polish Border Guards.” Another team jointly processed Dublin cases within the Polish Dublin Unit. Regarding that part of the deployment:

In this case, whether we are in the first or second scenario depends on the extent of executive discretion involved in “registering and archiving.” If the deployed experts were the ones who made the decision on which Member State was responsible for processing the application as part of their tasks, then this concerned a form of common, rather than assisted processing, as this decision involves elements of executive discretion.Footnote ⁶⁸ If they were merely typing in and archiving the decisions taken by the Polish Authorities, this was assisted processing.

Another “Asylum Determination Pilot,” involving Belgian and Swedish officials, was implemented in the Netherlands between February 23 and March 13, 2015.^{Footnote 69} As EASO describes it:

The little information that is available thus seems to be pointing to the fact that experts were not merely assisting the Dutch authorities; “each expert started working independently on their assigned cases within the first days of the exercise.”^{Footnote 71} This is arguably the second scenario, common processing, which raises distinct legal questions. These pilots prepared the ground for operations in hotspots. I explore the implementation of joint processing in Greece and the constitutional and administrative challenges this type of processing stirs in the next part.

I. Asylum Decision-Making Through Mixed Administrative Proceedings in Greece

By January 2020 the agency's mandate remained unaltered with no final agreement having been reached on a 2016 Commission proposal which included an expansion of its role in decision-making.Footnote ⁷³ In Greece, its role in asylum decision-making is currently regulated exclusively by national administrative law, rendering asylum decision-making a unique case of mixed administrative proceedings established by national law. Therefore, EASO's involvement is de jure only regulated by Greek law, whereas from the perspective of EU law the agency's involvement is a de facto development.

EASO's involvement was first regulated in 2016 with two consecutive amendments of Greek national administrative law.Footnote ⁷⁴ Notably, a law adopted in April 2016 and amended in June 2016, transposing among other elements the recast Asylum Procedures Directive,Footnote ⁷⁵ establishes an accelerated border asylum procedure addressing also the situation at hotspots.^{Footnote 76} In its 2016 version, the law stated that in case of large numbers of arriving third country nationals or stateless persons who seek asylum at border areas, in transit zones, or in centers of reception and identification (which is the name given under Greek legislation to hotspots), an exceptional procedure applied.^{Footnote 77} As part of this exceptional procedure, the law in question foresaw that “interviews with applicants for international protection may be conducted by personnel made available by EASO.”^{Footnote 78}

The national law provisions on EASO involvement were amended in June 2016. Notably, the original April 2016 version of Law 4375/2016 stated that interpreters, as well as seconded personnel made available by EASO, “may assist the Greek Asylum Service in recording the claim; the interview; and any other process.” Thus, the April 2016 version of the law stated that the Greek Asylum Service can be assisted (μπoρɛί να ɛπικoυρɛίται) by EASO experts and interpreters. However, it already did not reflect the administrative reality on the ground. Hence, the law was amended in June 2016 to state that deployed experts can conduct asylum interviews.

EASO-deployed experts at hotspots in Greece are independently conducting a part of the asylum process that entails discretion. They conduct the asylum admissibility interviews on behalf of the Greek Asylum Service, at least in the majority of cases, and then submit their findings, on the basis of which the Service issues the final admissibility decision.^{Footnote 79} The admissibility phase is geared at weeding out applicants that could be returned to safe third countries. In the case at hand, it is part and parcel of the operationalization of the so-called EU-Turkey deal.Footnote ⁸⁰ This is arguably a legally non-binding document that mentions explicitly commitments of the EU and its Member States towards Turkey as part of a cooperation “bargain” with a view to returning arriving migrants, asylum seekers, and refugees from the EU territory to Turkey.Footnote ⁸¹ Despite the non-binding nature of the document, the implementation of these arrangements involves Member State action under the asylum and return acquis, and the consequent applicability of the EU Charter of Fundamental Rights on those Member State actions.Footnote ⁸² Inherent parts of the admissibility process are assessing the credibility of the applicants, detecting vulnerability, and making a finding on the safety of third countries; all of these entail elements of discretion. EASO's implication in processing is numerically significant. For example, EASO conducted 8,958 interviews in the fast-track border procedure during 2018.Footnote ⁸³ During the first half of 2019, EASO conducted 2,955 interviews in the fast-track border procedure, mainly covering applicants from Afghanistan, Palestine, Iraq, Syria, and Cameroon.Footnote ⁸⁴

Legal developments at national level did not stop there, though. A 2018 amendment foresaw that Greek speaking EASO staff can be involved in a similar manner in the examination of the merits of asylum claims.Footnote ⁸⁵ Therefore, this no longer concerns operations as part of the hotspot approach to migration management and the admissibility stage, but rather the regular procedure. As of July 2019, EASO experts supporting the regular procedure were deployed in two locations: 21 were deployed with the Regional Asylum Office of Lesbos and nine with that of Thessaloniki.Footnote ⁸⁶ On average, each caseworker conducts four interviews per week.Footnote ⁸⁷ These developments are crystallized in the latest legislative amendments of November 2019 that saw the adoption of a revamped “Greek International Protection Act” bringing together in a single legislative instrument all relevant asylum legislation.Footnote ⁸⁸

EASO is also involved in a support function at second instance decision-making in Greece. It provides so-called rapporteurs to the national Appeals Committees, a function that is expressly stipulated by national law.Footnote ⁸⁹ According to Greek legislation, rapporteurs are tasked with preparing a preliminary report which includes the following elements: “A narrative account and processing of the facts of the case and of the arguments raised by the appellant, as well as their correlation with information on the country of origin that is to be made available to the independent Appeals Committees for their judgment.”Footnote ⁹⁰ Recent field research conducted by ECRE confirms that rapporteur tasks are limited to the initial preparation the case file and to conducting COI research upon request by the Committee members.Footnote ⁹¹ They are therefore not providing members of the Appeals Committees with a concrete legal opinion, even an advisory opinion, regarding the grant of international protection. Hence, stakeholders at national Greek level did not identify conflict of interest issues stemming from the presence of EASO experts in both the first and second instance procedure.Footnote ⁹²

The composition of the Appeals Committees has been altered at the end of 2019 through the revamped Greek International Protection Act. Each Appeal Committee now consists of three administrative law judges, the latest legislative amendment having removed from their composition the UNHCR representative.Footnote ⁹³ The previous change had taken place in June 2016, and had altered their composition to two administrative law judges, appointed by the “General Commissioner of the Administrative Courts,” and one UNHCR representative.Footnote ⁹⁴ Prior to June 2016, they had comprised one representative of the Ministry of Interior, one UNHCR representative, and one representative appointed from a list of human rights experts compiled by the National Commission on Human Rights. The procedures themselves were already amended in June 2016 to remove a provision that allowed the appellant to request a personal hearing before the Appeals Committees at least two days before the appeal. The Greek Government in 2016 ostensibly undertook this move to address the “disjunction” between the decisions at first instance that authorized return of applicants to Turkey on the basis that it constitutes a safe third country, and the extremely high rate of reversal on appeal.Footnote ⁹⁵

II. Constitutional and Administrative Challenges in the Emerging Integrated European Administration

Asylum decision-making through mixed proceedings stirs up several challenges of a constitutional and administrative nature in EU law.Footnote ⁹⁶ It also constitutes a significant development in the manner of implementation of the EU asylum policy. Regarding the latter point, the de facto workings of the EU asylum agency point towards the emergence of an increasingly integrated European administration. In terms of EU administrative law, there is an emergence of a variant of procedures that could be understood as de facto composite, or mixed, administrative procedures. Namely, although the asylum decision-maker at first instance according to both EU and national law is the Greek Asylum Service, de facto this decision is based on a recommendation from, and facts ascertained during, an interview conducted by experts deployed by an EU agency. While EASO (deployed experts) are not the ones adopting the final decision, their advisory opinions influence the outcome, albeit indirectly. Issues such as fact assessment and credibility assessment are ascertained on the basis of this interview that therefore greatly impacts the final decision. Hence, this is morphing de facto into a composite process.

The 2016 Commission proposal to expand the powers of EASO and transform it into an EU Asylum Agency confirms these trends. While its fate is unclear, that proposal introduced elements of not only assisted but also common processing in the agency's mandate. The envisaged measures as part of operational support, are variegated. They include preparatory acts of the asylum procedure that do not entail executive discretion, such as assistance with the identification and registration of third country nationals, and assistance with the provision of information on the international protection procedure.^{Footnote 97} The proposed regulation also includes a form of common processing: Migration management teams deployed in areas under pressure could potentially be tasked with the “examination of claims,”^{Footnote 98} even though the final decision on protected refugee status would remain the competence of Member States.^{Footnote 99} These trends were further enhanced in the Commission's amended proposal, released in September 2018, which in many respects complements, rather than repeals, the earlier proposal.^{Footnote 100} Nonetheless, at the time of writing, these legal developments remained prospective.

In the meantime, de facto administrative integration raises challenges of both a constitutional and administrative nature. In order to ascertain the constitutional level challenges, I shall begin by categorizing the national legislative texts and the type of joint processing activities that are taking place in practice under the conceptual framework that I previously developed.

The April 2016 version of the Greek law stated that the Greek Asylum Service can be assisted by EASO experts and interpreters. This would seem to point to actions under assisted processing, that is, would include EASO experts independently undertaking actions that entail executive discretion. That version was compatible with the limitations upon EASO according to its current mandate, notably that it “shall have no powers in relation to the taking of decisions by Member States’ asylum authorities on individual applications for international protection.”^{Footnote 101}

Nevertheless, the law was swiftly amended in June 2016 to state that deployed experts can conduct asylum interviews so as to reflect actual practice on the ground. As previously analyzed, conducting an admissibility interview independently entails undertaking actions and decisions that involve executive discretion. The administrative reality is that this moves clearly beyond assisted processing, to the realm of what I defined above as common processing. The June 2016 Greek legislation and its operationalization arguably give “powers in relation to the taking of decisions on individual applications” to the agency, in the very least indirect powers.^{Footnote 102} In this sense they exceed the legal limits under the EASO regulation. There is no CJEU case law on what a direct or an indirect power is in relation to taking a decision on an individual application for international protection. However, emitting an opinion, even a non-binding one, on an individual case, on the basis of an independently conducted interview arguably qualifies at least as an “indirect power.”Footnote ¹⁰³

The same holds true for the May 2018 amendments to the Greek law and subsequent practice regarding interviews on the merits of asylum claims. These interviews on the merits that are conducted independently entail the exercise of executive discretion. The Greek-speaking staff that EASO hires issue a non-binding opinion on the international protection needs of individual asylum seekers. These actions as well arguably qualify at least as an “indirect power in relation to the taking of decisions on individual applications.” Therefore, EASO is acting outside the scope of its current mandate and thereby in violation of its Regulation. EASO's action is constrained by its founding Regulation, which constitutes secondary EU law, and the agency is not in a legal position to unilaterally alter its mandate. Only the co-legislators (the Council and the European Parliament) can do so through the adoption of subsequent EU legislation.

Turning to the challenges on a constitutional level, it is necessary to examine the compatibility of these practices with primary EU law. In relation to the specific provisions on the CEAS, EASO's involvement in Greece is compatible with Article 78(2)(e) TFEU, which foresees that “a Member State” is to be responsible for the examination of an application. The deployed experts are only formulating an opinion, which is not binding on the Greek Asylum Service according to law. It is the Greek Asylum Service that formally adopts the admissibility decision, and it has the power to adopt a decision that goes against the proposal of the deployed experts. The Greek Asylum Service does not merely rubberstamp the non-binding EASO advisory opinions. For example, ECRE reports that:

This means that existing practice in Greece is far from what I defined above as EU-level processing and therefore respects the limits posed by EU primary law relating to asylum processing.

Another question is the general compatibility of these practices with the case law of the CJEU, and notably the criteria developed in the Meroni Footnote ¹⁰⁵ and Short Selling Footnote ¹⁰⁶ case law on the constitutional limits to the delegation of powers of EU agencies. Analyzing the aforementioned and subsequent case-law, Chamon concludes that what is prohibited is essentially a form of discretion that allows an EU agency to develop policy on its own, that is, being empowered to make political, economical, or social policy choices.Footnote ¹⁰⁷ The type of discretion that I have been referring to, i.e., executive discretion to decide, for example, whether an individual fulfils the criteria of the legal definition of a refugee, does not amount to the prohibited discretion of formulating policy as defined above.

Apart from constitutional level challenges relating mainly to the separation of powers between Members States and the EU in implementing policies, another set of challenges is of an administrative nature. Here, I am referring to the compatibility of these practices with procedural standards and guarantees enshrined in primary and secondary EU law. Relevant primary EU law is for example the EU Charter on Fundamental Rights (CFR) which enshrines procedural rights such as Article 41 CFR (right to good administration) and Article 47 CFR (right to an effective remedy). Relevant secondary EU law includes, for example, instruments of the EU acquis that establish procedural rights for asylum seekers, such as the 2013 Asylum Procedures Directive. The processes described are part of the asylum procedure, and applicants should enjoy the full array of rights foreseen by EU law no matter who is conducting the interview; the fact that the EU level is operational cannot lead to a diminution of procedural rights. On the ground, however, there is uncertainty as to the procedural rights available, with civil society organizations reporting shortcomings relating for example: to the manner of assessing vulnerability; the manner of conducting admissibility interviews; or the fact that advisory opinions on admissibility are issued in English and in practice not translated in Greek, and the fact that interviews are conducted in English, undermining the quality of legal representation by Greek lawyers.^{Footnote 108}

The constitutional challenges, resulting from the overstepping by the agency of its mandate as established by its regulation, which excludes even indirect powers in relation to individual decision-making, can only be addressed through the adoption of an amended agency regulation addressing these points. Moreover, administrative integration requires a rethink of accountability processes so that it does not lead to a de facto watering down of procedural guarantees. In the next part, I provide my understanding on the concept of accountability while also sketching out the different accountability processes the current EASO Regulation foresees, and commenting on their effectiveness.

I. A Mosaic of Accountability Processes

Given the broad array of accountability processes envisaged in the Regulation, both judicial and non-judicial (i.e., political, financial, extra-judicial, and social) accountability processes are pertinent. Adopting the concept of accountability developed by Bovens, Goodin, and Schillemans, accountability may be conceptualized as “an institutional relation or arrangement in which an agent can be held to account by another agent or institution.”Footnote ¹¹⁰ It consists of three elements or stages: i) The actor should be obliged to inform the forum about his or her conduct, by providing various sorts of information about the performance of tasks, about outcomes, or about procedures; ii) there needs to be a possibility for the forum to interrogate the actor and to question the adequacy of the explanation or the legitimacy of the conduct; and finally, iii) the forum may pass judgment on the conduct of the actor.Footnote ¹¹¹ The mention of a “judgment” in this context should not be equated with a legally binding final pronouncement by a court or tribunal. Rather what is meant is the possibility of concrete consequences following the information provision and debate stages. Although it might seem minimalist, this understanding is broad enough to accommodate processes such as those envisaged in the EASO Regulation. Accountability in this sense operates ex post, as distinct from control which will often operate ex ante; this sense of accountability is also distinct from issues such as responsiveness and participation.Footnote ¹¹²

The EASO Regulation foresees, first, several political accountability processes: before the agency's own Management Board;Footnote ¹¹³ before the Council;Footnote ¹¹⁴ before the European Commission;Footnote ¹¹⁵ and finally before the European Parliament.Footnote ¹¹⁶ Next, the Regulation envisages judicial accountability through the Court of Justice, for example, an action for annulment against agency decisions relating to access to documents,^{Footnote 117} jurisdiction over instances of contractual liability,Footnote ¹¹⁸ as well as for instances of non-contractual liability, for example, an action for damages in relation to “any damage caused by its departments or by its staff in the performance of their duties.”^{Footnote 119} While the case of EASO's involvement in asylum processing is not explicitly mentioned as it is arguably beyond its current mandate, it also falls within the remit of the CJEU. An intricate tango involving the Commission, the Council, the European Court of Auditors, and the European Parliament ensures financial accountability.Footnote ¹²⁰ When it comes to social accountability processes, these are most arguably lacking. The agency's Consultative Forum is not conceptualized as an accountability forum; thus, the agency does not have to report, or explain its actions, to representatives of civil society. The main aim is one of dialogue, exchange of information, and pooling of knowledge.^{Footnote 121} Finally, the EASO Regulation contains a general provision on extra-judicial accountability stating that “[t]he activities of the Support Office shall be subject to the controls of the Ombudsman in accordance with Article 228 of the TFEU.”Footnote ¹²² It also contains an additional reference to the European Ombudsman's (EO) mandate in relation to the specific issue of access to documents.Footnote ¹²³ The EO has already been called to investigate complaints of maladministration in relation to EASO's involvement in asylum processing at the hotspots. The fact that this mechanism has been the main avenue for holding EASO accountable, despite the disappointing level of scrutiny it offered (Part F), reflects the main pitfalls of the current agency accountability approach.

II. EASO's Accountability Matrix: A Critical Analysis

When it comes to agency accountability, scholars have contested the value of the principal-agent framework of analysis, a predominant model in public management.^{Footnote 124} Deirdre Curtin aptly observed three concrete problems around this specific model:

Madalina Busuioc added further dimensions on agency accountability integrating empirical findings. She mapped out the abundance of accountability arrangements, creating an intertwined system.^{Footnote 126} While some of the ensuing dynamics were positive, with accountability processes reinforcing each other, some of the dynamics were negative, leading to accountability overload of relatively small agencies from the sheer volume of accountability obligations.^{Footnote 127} Apart from accountability overload, another complexity is that the imperatives for accountability and independence can sometimes conflict.^{Footnote 128} Accountability for fundamental rights violations raises specific challenges, bringing to sharp relief the position of the individual. In the specific case of EASO and its role in the processing of asylum claims, I identify two main pitfalls in the current accountability arrangements: The first is the conflict between accountability and independence, and the second is the accessibility for the individual.

The conflict between accountability and independence is most vividly portrayed through the accountability of the agency towards its Management Board. The EASO Regulation places great importance on the independence of the Director. It foresees that she should be independent in the performance of her duties and that she should “neither seek nor take instructions from any government or from any other body.”^{Footnote 129} Therefore, independence is sought vis-à-vis both national governments and the EU institutions or bodies. However, the latter statement is conditioned on the premise that it is “[w]ithout prejudice to the powers of the Commission, the Management Board …”^{Footnote 130} Given the predominantly Member State composition of some of the accountability fora, such as the Management Board,Footnote ¹³¹ there is a delicate balance between “not taking instructions from any government” and respecting the prerogatives of the Management Board as an accountability holder.

It has been observed that “having all Member States represented at agency boards is in line with the conceptual understanding of the EU executive as an integrated administration and is an expression of the composite or shared character of the EU executive.”^{Footnote 132} When the European level, through an EU agency, starts to be more implicated in policy implementation, including through the deployment of statutory staff and experts on the ground, Member States are understandably keen to have a strong say. The operational tasks undertaken are intrinsically linked with the implementation of the EU asylum policy and this legally rests with the Member States. Therefore, it cannot be concluded that the national level is seeking to “reappropriate powers” through the back door. At the same time, the independence challenge posed should not be underestimated.

The expansion of EASO's operational capacities, and its increasing role in implementing the EU asylum policy affecting the rights of individuals in the process, makes safeguarding of independence a more pressing issue. Research has illustrated the importance of administrative insulation for refugee status determination outcomes, and how the politics of deterrence can affect refugee status determination and strip away administrative insulation.Footnote ¹³³ The supranational character of EASO means that there is also another danger. Given the distribution of power and political stakes in the field of asylum, EASO risks being captured by strong regulators and used as “proxy” to control weaker ones.^{Footnote 134} Indeed, understanding “national interest” in these fields as one-dimensional does not do justice to the divergence of interests between Member States, nor their power differential.

Accessibility for the individual is the second pitfall. It is clear from the governance of some of the accountability processes, for example, vis-à-vis the EU institutions, that there is only a very limited and indirect role for the individual to play. Judicial accountability avenues are, in principle, more accessible to the individual. However, under EU law the accessibility of judicial accountability is constrained by the strict rules on standing or criteria for ascertaining liability. For example, in order to ascertain non-contractual liability of EASO, an applicant would have to substantiate a sufficiently serious breach of a rule intended to confer rights on individuals; damage; and a causal relationship between the unlawful conduct and the victim's damage.Footnote ¹³⁵ These elements would have to be substantiated in the context of a multi-actor situation, taking into account the non-binding nature of EASO's opinions.Footnote ¹³⁶

Contesting the illegality of EASO's advisory opinions through an action for annulment before the CJEU is also not without its difficulties.Footnote ¹³⁷ Before getting to the substantive arguments of the claimant, the conditions of admissibility for such type of action would need to be fulfilled.Footnote ¹³⁸ Apart from the compliance with a specific time limit, these include the reviewability of the act and the standing of the applicant, where different rules apply according to whether an applicant is “privileged,” “semi-privileged,” or “non-privileged.” The main contentious element would be whether the acts by EASO-deployed experts (i.e., the non-binding advisory opinions) fulfil the definition of a “reviewable act” for the purposes of an action for annulment, that is, whether they are “intended to have legal effects.”Footnote ¹³⁹ In my analysis above, I have posited that it is arguable that the advisory opinions produce such legal effects (hence, I found them to fall under what I termed acts that entail executive discretion). The opposite has also been argued, namely that “EASO's activities will not be considered a reviewable act before the EU courts, because they are not capable of affecting an individual's legal sphere, but constitute mere preparatory actions for the purposes of taking the final decisions on the admissibility of an asylum claim.”Footnote ¹⁴⁰ Given the shifting practices on the ground, and the de facto character of these developments from the perspective of EU law, it seems that this is a question that necessitates further empirical research in order to be answered fully.

A final avenue would be having indirect access to the CJEU, through a reference for a preliminary ruling by a national court.Footnote ¹⁴¹ This would entail that an applicant challenging the final decision by the Greek Asylum Service before the Appeals CommitteesFootnote ¹⁴² or the Greek administrative courts (third instance)Footnote ¹⁴³ would raise the issue of procedural failings in EASO's advisory opinion, and that the national court would refer a question on the validity of EASO's act.Footnote ¹⁴⁴ The CJEU can review the validity of non-binding acts such as recommendations.Footnote ¹⁴⁵ However, this indirect route means that the national courts need to make such a reference, which in practice is far from certain. It has also been argued that “because of the close cooperation of the national authorities and the EU agency, and the operation of EASO being based on purely de facto arrangements, it seems next to impossible to identify, pinpoint, and, consequently, subject to judicial control, EASO's contribution to the decision-making process.”Footnote ¹⁴⁶ This argument raises valid points, such as the de facto nature of EASO's involvement under EU law. However, as the complaints before the European Ombudsman reveal, it seems that EASO's contribution can be discerned from that of the Greek authorities, and in fact as will be analyzed in the next part of this Article, the Ombudsman has begun to adduce concrete procedural obligations for the agency in its cooperation with national authorities. These practical difficulties could well explain why to date the main means of holding EASO accountable for its role in asylum processing has been through an extra-judicial mechanism, that is, complaints before the European Ombudsman analyzed below.

I. EASO's Involvement in Asylum Decision-Making Before the European Ombudsman

As mentioned at the outset of this contribution, two civil society organizations have activated extra-judicial accountability: the ECCHR and Advocates International. I critically assess the European Ombudsman's decision in these two instances.

The ECCHR, a German civil society organization, had raised both constitutional and administrative aspects in their complaint before the EU Ombudsman. Factually the complaint targeted EASO's role in asylum decision-making at the Greek hotspots.Footnote ¹⁶² They argued, firstly, that EASO acts outside of its mandate under EU law through its participation in asylum processing in Greek hotspots. Next, the organization argued that when conducting such interviews, EASO fails to comply with the provisions on “the right to be heard” in the Charter of Fundamental Rights (Article 41), as well as EASO's own guidelines. The Ombudsman's reasoning on both limbs of the complaint leaves a lot to be desired.

To substantiate the constitutional level of its complaint, the ECCHR referred both to the limitations of EASO's mandate as set out in its founding Regulation,Footnote ¹⁶³ and in the practice on the ground to argue that EASO's involvement amounted at least to an indirect decision-making power on the admissibility of claims and on the vulnerability of individual applicants. While it noted that “the ultimate responsibility for decisions on asylum applications rests with the Greek authorities,”Footnote ¹⁶⁴ the EU Ombudsman nevertheless found that “EASO is being encouraged politically to act in a way which is, arguably, not in line with its existing statutory role.”Footnote ¹⁶⁵ Therefore, the EU Ombudsman essentially held that EASO through its involvement in asylum processing in Greek hotspots is acting ultra vires. Despite this position, the Ombudsman swiftly brushed aside the incompatibility of EASO's actions with its mandate.

She next opined that “it is likely that EASO's founding Regulation will be amended in the near future to provide explicitly for the type of activity in which EASO is currently engaged, thus resolving the issue of EASO possibly operating outside of its statutory brief.”Footnote ¹⁶⁶ This is an unsatisfactory reasoning in the sense that it falls short of upholding the requirements of the legality of action of EU institutions and bodies, and the principle of the rule of law. It is tenuous for the Ombudsman to discontinue inquiries based on a future legislative amendment to redress the illegality of action of an EU body. Firstly, the timing of the adoption of a given legislative instrument is unpredictable. In the case at hand, the Ombudsman rendered her decision in July 2018 and one and a half years later, in December 2019, there is still no firm political agreement between the European Parliament and the Council on the adoption of the amended EASO Regulation that has been negotiated since May 2016. Secondly, apart from the timing, also the final content of a legislative instrument is unpredictable. The fact that the Commission proposed amendments to the agency Regulation moving in this direction does not guarantee that they will survive the negotiation procedures between the two co-legislators. Betting on the future redress of the situation through envisaged amendments in ongoing negotiations in a politically sensitive area such as asylum is a rather risky gamble.

The second limb of the complaint related to a violation of applicants’ procedural rights, and namely those guaranteed under Article 41 of the EU Charter (right to good administration). The complainant referred to non-compatibility with the principle of fairness and lack of transparency drawing from practice and invoking also EASO's own guidelines on the use of interview techniques, especially in what concerns the identification of vulnerability. The Ombudsman found that “EASO has made considerable efforts to improve its practices in those areas highlighted by the complainant.”Footnote ¹⁶⁷ Still, she accepted that “there are genuine concerns about the quality of the admissibility interviews as well as about the procedural fairness of how they are conducted.”Footnote ¹⁶⁸ Nevertheless, she placed great emphasis on the fact that EASO's opinions are advisory and that the Greek Asylum Service can disagree with EASO's expert opinions.Footnote ¹⁶⁹ In addition, the Ombudsman referred to the possibility of an appeal before the Greek Appeals Committees to redress procedural faults.Footnote ¹⁷⁰

It is undeniable that EASO has taken steps to improve the quality of its processing, such as a multi-layered quality assurance system made up of a team leader and a helpdesk and containing training and case sampling components.Footnote ¹⁷¹ Moreover, it is true that the Ombudsman is best placed to identify areas of systemic improvement rather than act as a de facto appeals body for shortcoming in each individual case. Nevertheless, the Ombudsman's reasoning fails to take into account the capacity challenges that Greek national authorities face, which prompted the EASO deployments in the first place. Of course, it remains open to the Greek Asylum Service to overturn the opinions of EASO experts. The Greek Asylum Service has done so as a matter of policy where the agency experts propose findings of inadmissibility (that would subsequently lead to returns to Turkey) for non-Syrian nationals that will not find adequate protection in that country. Here the indicator of the incompatibility of EASO's findings with international and regional human rights law is easy to set out (nationality of the individual asylum seeker). However, it remains doubtful whether the overloaded Greek administrative authorities have the capacity to thoroughly scrutinize each interview. After all, it was systemic issues of diminished capacities in relation to the numbers of existing asylum seekers that led to the deployments of EASO experts in the first place, whose presence will have little impact if they end up generating more work for the Greek authorities than assistance. Thus, the quality of decision-making that EASO offers is crucial. In addition, the Ombudsman seems not to fully acknowledge the complexities of mixed proceedings and the practical difficulties for the individual asylum seeker to contest the quality of preparatory acts by an EU body before national appeals committees. EASO's role in fact calls for a broader rethink of EU procedural asylum law to fully account for this new administrative landscape.

The second complaint concerned the same factual background, that is, EASO's involvement in the admissibility interviews. Nonetheless, the complainant did not raise arguments relating to the constitutional aspect of EASO's involvement in asylum processing but rather raised violations of procedural rights and errors during the interview phase with EASO of an asylum seeker that was consequently deported based on a decision of the Greek Asylum Service and feared dead. As mentioned above, procedural rights are intrinsically linked with the absolute prohibition of refoulement, as the rejection of (or refusal to process) an application could lead to the return of the individual to third countries or the country of origin. The important issue was that during an internal screening as part of its own quality procedures, EASO had uncovered the errors of judgment during the interview and the problems with the interpreter.Footnote ¹⁷² It had not, however, alerted the Greek authorities about these procedural irregularities. EASO argued that its stance was part of its effort not to overstep its mandate and not to influence the final decision of the Greek Asylum Service.Footnote ¹⁷³ Thus, the aim of this internal review was exclusively geared to improve the quality of decision-making and not to intervene in “open cases.”Footnote ¹⁷⁴

EASO's reasoning is not convincing. Were the agency adamant about not overstepping its legal mandate, it should refuse to be involved even indirectly in individual decision-making. As it has chosen to participate in decision-making by independently conducting actions that entail executive discretion, it cannot argue that its functions continue to remain purely supportive. As the Ombudsman correctly noted in her observations, despite their non-binding nature, these opinions can help inform the final decision of the Greek authorities, and the errors identified by EASO may have contributed to the fact that Mr. X was deported.Footnote ¹⁷⁵ Where errors are identified, EASO should do its utmost to remedy them. Even if EASO does not have the power to ask the national authorities to take specific action, it has according to the European Ombudsman an obligation to notify the national authorities of these errors; thereafter national authorities can assess the gravity of the errors and decide whether any remedial action needs to be taken.Footnote ¹⁷⁶ Therefore, in this case, the Ombudsman found that the serious errors in the case of the asylum seeker who was later deported constituted maladministration.

In this second case, the Ombudsman seems to have become more aware of the intricacies that mixed administrative proceedings raise. While she reiterated her point that individual shortcomings can better be addressed in appeals,Footnote ¹⁷⁷ she sought to establish specific procedural guarantees, such as the obligation to notify national authorities of identified errors, or the creation of an individual complaints mechanism to ensure procedural fundamental rights in the context of mixed proceedings.Footnote ¹⁷⁸ Such an individual complaints mechanism would in fact be a novel internal ombuds-type procedure along the lines of the mechanism that already exists as part of the functioning of Frontex. It was added at the insistence of the European Parliament as part of a revamped EU Agency on Asylum;Footnote ¹⁷⁹ nonetheless the fate of these negotiations is uncertain, and for now the agency lacks the concrete legal basis, as well as the dedicated resources to establish such an internal extra-judicial accountability mechanism.

If it is to be established, it will be important that the agency will be well resourced to run this mechanism (in particular, with ear-marked funding for that purpose). In addition, complaints should lead to concrete consequences, including review of practice by the agency and suspension or potential removal from the pool of experts or agency pay roll of specific individuals where they are found to be systematically underperforming or conducting procedural violations. More important even will be the combination with the obligation of EASO to alert national authorities of procedural errors it has identified.