Introduction and context
The European Union (EU) increasingly relies on specialised agencies in the areas of migration, border control and asylum.Footnote 1 These agencies are examples of the Union’s ‘shared or integrated administration’: a legal-administrative space where tasks, competences and decision-making are divided between the EU and its member states.Footnote 2 Similarly to other decentralised Union bodies, EU migration agencies form part of the European ‘composite legal order’, an order in which EU authorities continue to rely on national legal orders for the application and implementation of EU law.Footnote 3 Within composite procedures, national and EU authorities, for instance, carry out factual tasks in concert in order to implement EU law. This is particularly visible in the context of the European Integrated Border Management, ‘a system of constant surveillance, tracking the movement of third-country nationals … from the point of departure in countries of origin, all throughout transit, and up to their arrival in the EU’.Footnote 4
It is not only the organisational structure of the agencies that attests to their hybridity – most of the EU agencies have both European Commission and member states’ representatives on their Management Boards – but also the fact that their operational performance is largely contingent on cooperation with national authorities. The European Border and Coast Guard Agency (Frontex) is a case in point: it mostly relies on border guards seconded from participating member states to perform its role in managing the EU’s external borders.Footnote 5 The division of tasks and responsibilities between EU agencies and the member states is often framed according to the following narrative: while the agencies merely play a role of ‘coordination’, ‘facilitation’, and ‘assistance’, it is the member states that take the actual decisions. Accordingly, while Frontex may assist the member states in return operations, the member states issue the return decision, as reiterated by the EU General Court in WS and Others v Frontex. In that judgment, the Court held that ‘as regards return operations, Frontex’s task is only to provide technical and operational support to the member states and not to enter into the merits of return decisions’.Footnote 6
The legal problems engendered by this discursive framing of agencies as mere ‘facilitators’ of member states’ actions are well known. It is trite to observe that the intertwining of tasks between the EU and its agencies, on the one hand, and the member states, on the other, has led to a blurring of ‘who does what’ and, subsequently, has diluted the determination and allocation of responsibility for potential wrongdoings.Footnote 7 As illustrated by horrific scenes off the coasts of Italy on 26 February 2023, when at least 90 people lost their lives trying to reach the EU on shaky boats,Footnote 8 and of Greece on 14 June 2023, with around 500 people presumed dead,Footnote 9 relevant actors tend to downplay their role in tragedies like these, engaging in blame-shifting, and highlighting the ‘lack of cooperation’ between member states as part of the failure. The above-mentioned framing of EU agencies perpetuates the narrative that only the member states – and not also the agencies – bear responsibility for potential violations of fundamental rights in these types of multi-actor situations. Following this logic, the work of agencies is seen merely as ancillary to the member states’ fundamental-rights sensitive actions on the ground, and cannot in se constitute, or contribute to, a violation of human rights.
Scholars have intended to disentangle the responsibility conundrums in European Integrated Border Management, especially by exploring the potential of the EU’s system of remedies and by performing research on the responsibility of the EU and its agencies for wrongful acts under international law.Footnote 10 Unfortunately, their conclusions have time and again been rather unsatisfactory: the EU’s remedy system seems outdated in relation to hybrid relationships like the ones between EU migration agencies and member states. Moreover, the international law system is too complex and not easily enforceable by individuals.Footnote 11 It is therefore questionable whether the current system of EU judicial remedies is able to ensure an effective judicial protection in light of Article 47 of the Charter of Fundamental Rights of the EU (Charter).Footnote 12
In this respect, it is worth stressing that the EU is based on a system of judicial protection that is articulated on a twofold level – the European and the national – which also calls on the member states to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.Footnote 13 An aspect of this twofold system that has received less academic attention concerns the role and potential of national judicial remedies in the determination of responsibility in multi-actor situations. Seminal research on shared responsibility has often explicitly excluded this domestic element from study, noticing its potential, but setting it aside due to the different nature of the regime.Footnote 14 This lack of focus is understandable given the multifarious jurisdictional hurdles that exist for national courts to adjudicate the liability of all actors in multi-actor situations. Domestic courts can neither invalidate EU acts nor rule on the non-contractual liability of the EU and its agencies; the European Court of Justice has exclusive competence in this regard, according to Article 268 of the Treaty of the Functioning of the EU (TFEU).Footnote 15 At the same time, Article 267 TFEU provides an important complementary route, which enables national courts to refer questions to the Court of Justice and thereby engage indirectly in shared adjudication.
Yet the potential of domestic courts in multi-actor situations nonetheless deserves further attention, primarily given that, together with the EU, member states have the joint responsibility – and obligation – to ensure effective legal protection under Article 19(1) of the Treaty on EU (TEU) and Article 47 Charter. National courts are, after all, also EU courts meant to guarantee rights under EU law.Footnote 16 When judicial review by the European Court of Justice is limited, or access to that Court is restricted, domestic courts are required to compensate for those limits and grant ‘remedial complementarity’.Footnote 17 Scholars have emphasised that the principle of effective judicial protection presupposes that both the national and EU courts, within their respective competences, are capable of offering remedies in accordance with Article 47 Charter.Footnote 18 Although national courts are unable to close certain inherent responsibility gaps, they play an important role in the adjudication of damages arising from EU multi-actor situations. However, the lack of attention to this domestic dimension renders it currently unclear what the exact possibilities, strengths, and weaknesses of national courts are in this regard. The recent criminal proceedings initiated by the Deputy Prosecutor of the Piraeus Naval Court against 17 Greek Coast Guard members concerning the Pylos shipwreck of 14 June 2023 offer a timely opportunity to shed more light on the role of the national judiciary.Footnote 19
Accordingly, this article investigates what role domestic judicial remedies play in establishing and allocating responsibility for human rights violations within the European Integrated Border Management, and devises recommendations for the enhancement of this role. To this end, it advances the argument that it is necessary to pay heed to national mechanisms and judicial engagement to enhance overall responsibility for wrongdoings. While the focus is contextualised with reference to joint operations involving Frontex – arguably the most controversial among EU agencies involved in migration management in terms of the nature of its powers and the fundamental rights sensitivity of its actions – the main arguments of this article can be extended to other EU migration agencies, such as the EU Agency for Asylum. By highlighting the importance of national mechanisms in determining responsibility, the article, therefore, proposes a pragmatic shift, examining what is possible domestically, while acknowledging limits and suggesting improvements.
Such an approach first requires explaining the main responsibility gaps in the EU composite legal order, with a short exposé on Frontex’s evolving mandate and the limited possibilities for individuals to obtain judicial redress before the European Court of Justice for the harm suffered in the European Integrated Border Management context. Second, it necessitates a close examination of the relationship between national courts and the right to effective judicial protection under Article 19 TEU and Article 47 Charter. Here, the focus will be on the qualification of national judges as ‘European judges’ and their contribution to the application and interpretation of both national and EU law. Third, the article analyses a few concrete examples that illustrate the potential adjudication by domestic courts over matters relating to human rights violations occurring in the context of EU agency-member states cooperation. As mentioned, the focus will be specifically on Frontex, containing an exploration of whether and how national courts can rule on the responsibility of: (i) the Agency and Agency officials; (ii) the participating and host member states’ officials; and (iii) the participating national border guards. The final part of the article will include recommendations to strengthen the functioning of domestic judicial mechanisms in multi-actor situations.
European Integrated Border Management and responsibility gaps
A thriving stream of literature has illustrated the risks for fundamental rights and the ensuing responsibility gaps within the European Integrated Border Management. After briefly explaining the evolution of Frontex’s mandate, this section will add to this body of literature a critical analysis of two sets of barriers to responsibility. First, the institutional shift to a mode of governance based on shared administration has led to an unclear division of obligations between the member states and the Agency in the context of joint operations. Second, the distinct feature of the EU composite legal order poses particular challenges for individuals seeking judicial remedies, especially at the EU level.
Legal and structural gaps in Frontex’s evolving mandate
Once seen primarily as a regulatory body, the EU has steadily expanded its executive powers, moving beyond regulation to assert direct enforcement powers in areas traditionally reserved for national control.Footnote 20 The rise of shared administration has facilitated the creation of specialised EU agencies that have thus become responsible for implementing relevant policies alongside the member states.
The establishment of Frontex in 2004,Footnote 21 tasked with implementing the European Integrated Border Management, is an example. Originally, the member states were expected to deploy staff and resources to Frontex, so that the Agency could offer support with implementing border management tasks.Footnote 22 Nonetheless, through progressive expansion of the agency’s institutional and operational mandate in 2007,Footnote 23 2011,Footnote 24 2016,Footnote 25 and finally 2019,Footnote 26 the Agency has gained more prominence and leadership, acquiring its own ‘Frontex staff’ and progressing from a traditional role of coordination to a more powerful, operational role with executive powers.Footnote 27 To use the words of Steve Peers, its tasks have shifted ‘from the job of tea lady to the role of chief executive officer’.Footnote 28
In particular, a more substantial revision of the agency’s mandate was accomplished after the adoption of the 2016 Regulation, which established the European Border and Coast Guard as a body that encompasses a European dimension represented by the agency Frontex and a national dimension represented by border guards or staff from the host member states or staff seconded from another member state.Footnote 29 This means that joint operations coordinated by Frontex may not only include statutory staff of the agency, but also staff from the host member state or third country as well as staff seconded from other participating member states. It is especially such a composite nature of the European Integrated Border Management that makes it difficult to hold those responsible for wrongdoings to account, given the number of actors involved and the blurring of lines between ‘who does what’ and ‘who executes what has been decided’.Footnote 30
The specific role of the Agency at the EU’s external borders is laid out in Section 7 of Regulation 2019/1896. It mainly ranges from coordination activities to operational assistance (Article 36), especially in the context of joint operations (Article 37), rapid border interventions (Article 39) or return operations (Article 48).Footnote 31 Depending on the type of action, the Agency can deploy border management teams, return teams and migration management support teams, which are expected to act under the instructions issued with the operational plan. The operational plan is binding on the Agency, the host member state and the participating member states.Footnote 32
In the performance of its tasks, Frontex is obliged to act in compliance with fundamental rights, including relevant Union and international law (Article 80). What is not apparent from the Regulation, however, is a clear demarcation of tasks and human rights obligations between the Agency and the national authorities, nor can this be distilled from the operational plans.Footnote 33 For instance, with reference to the joint operation ‘Poseidon’ in the Greek hotspots,Footnote 34 the whole section regarding the tasks and roles of participants is not disclosed for reasons of public security.Footnote 35 Additionally, while Article 7 of Regulation 2019/1896 refers to a ‘shared responsibility of the Agency and of the national authorities’, most human rights obligations in Regulation 2019/1896 are geared towards Frontex and not the national authorities.Footnote 36 The Regulation reiterates instead that ultimately the member states ‘shall retain primary responsibility for the management of their sections of the external borders’.Footnote 37 The lack of clear positive and negative, substantive and procedural, human rights obligations applicable to Frontex and the national authorities is particularly problematic in cases of shared administration, where fundamental rights violations will often be the result of a combined failure from EU and national actors. In any case, it renders the ex post apportionment of responsibility between all actors involved extremely difficult.Footnote 38
Even though it is exactly the joint activity of the agency together with the member states that leads to a fundamental rights violation, the conception of agencies especially tasked with ‘preparing’ and ‘assisting’ the member states renders the joint liability of both parties difficult. Situations where the agencies’ activities concern mostly preparatory, factual, and soft law activities form obstacles for the establishment of liability for damages, as they leave open problems of attribution of conduct and determination of the causal link between the alleged conduct and the damage claimed. In other words, these characteristics bar individuals from obtaining judicial redress for harm suffered from fundamental rights violations, or at least significantly lower the chances of such redress.
The limits of EU judicial remedies
Apart from gaps in Frontex’s mandate, there are significant barriers to judicial remedies in European Integrated Border Management. The direct and indirect paths open for individuals before the European Court of Justice are illustrative of these barriers. In practice, all existing judicial avenues come with difficult – if not insurmountable – hurdles. The options in the TFEU range from the action for annulment (Article 263) and the action for failure to act (Article 265) to the action for damages (Article 340(2)) and, indirectly, the preliminary reference procedure (Article 267). Besides practical obstacles relating to legal aid or translation, many legal obstacles exist, relating to strict admissibility criteria, high standing requirements, and the unreviewability of legal acts.Footnote 39 This sub-section briefly delves into the barriers in the direct pathways, while the preliminary reference procedure is discussed below.
Looking at the action for annulment, the obstacles lie not only in the nature of the contested act but also in the strict standing requirements for individuals.Footnote 40 Article 263(1) TFEU states that the European Court of Justice ‘shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties’ (emphasis added). Following this provision, the action for annulment cannot provide solace for the bulk of Frontex actions, namely, factual conduct and soft law activities.Footnote 41 What is more, it is not even clear that all binding Frontex documents, such as operational plans, Status Agreements, or individual decisions, fall under the purview of the article.+Footnote 42 Even if the reviewability requirement is met, Article 263(4) TFEU provides that a natural or legal person can only initiate the annulment proceeding against an act ‘addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’ (emphasis added).Footnote 43 While individuals will be able to challenge formal decisions addressed to them, they will have an extremely hard time proving that they are individually and directly concerned by other legally binding Frontex acts.Footnote 44 The action for annulment, in conclusion, is not a viable path by which individuals can seek judicial redress for human rights violations taking place in multi-actor situations.
The second pathway to the European Court of Justice, the action for failure to act, has proven equally unfruitful for individuals who have suffered damages from Frontex joint operations. Article 265 TFEU provides, inter alia, that if an EU agency fails to act, an individual can bring an action before the Court to have the infringement established (paragraph 3), provided that the agency has first been called upon to act and, within two months of that call, has not defined its position (paragraph 2). In the very first case brought against Frontex before the General Court, SS and ST v Frontex, the applicants had sent a letter to Frontex’s Executive Director, inviting him to suspend or terminate the Agency’s activities in the Aegean Sea region, pursuant to Article 46(4) of Regulation 2019/1896.Footnote 45 On the basis of that provision, ‘[t]he executive director shall … withdraw the financing for any activity by the Agency, or suspend or terminate any activity by the Agency, in whole or in part, if he or she considers that there are violations of fundamental rights …’. In a reply to the applicants’ letter, the Executive Director stated that in its activities in the Aegean Sea region, Frontex had fully complied with its fundamental rights responsibilities, and that the conditions to withdraw financing, suspend, or terminate those activities had not been fulfilled.Footnote 46 By explaining why it did not apply the safeguards under the abovementioned Article 46(4), the Agency had, according to the General Court, defined its position pursuant to Article 265 TFEU. The fact that Frontex refused to act in the manner stated by the applicants did not change this – in the view of the Court, it was decisive that Frontex did not fail to take a decision or define its position.Footnote 47 The Court, therefore, declared the complaint inadmissible.
The most promising direct avenue for individuals to obtain redress for harm suffered from fundamental rights violations is the action for damages under Article 340(2) TFEU. In light of the obstacles surrounding the other pathways, the action for damages is arguably even ‘instrumental for the EU to meet its obligations under Article 47 of the Charter’.Footnote 48 For the Union’s non-contractual liability to be established, the following cumulative criteria must be satisfied: (i) the alleged EU conduct must be unlawful, which necessitates that: (a) the infringed rule of law confers rights on individuals; and (b) the breach is ‘sufficiently serious’; (ii) the applicant must have suffered ‘actual damage’; and (iii) a causal link must exist between the alleged conduct and damage pleaded.Footnote 49
When applied to damages arising from fundamental rights violations in the context of joint operations, several obstacles seem to exist for the establishment of liability. Above all, the instrument of action for damages was not originally designed as a mechanism to redress fundamental rights violations, and the European Court of Justice currently still lacks a conceptual framework for the allocation of liability in such cases.Footnote 50 It is not clear, for example, whether the sub-criterion of a ‘sufficiently serious breach’ applies to fundamental rights norms or not, and if so, how.Footnote 51
Moreover, the European Court of Justice has not developed a coherent approach to establishing joint liability, with its inconsistency around attribution being especially problematic. Translated to Frontex joint operations, what has emerged is that even if the Court of Justice does not maintain a high attribution threshold, the joint liability of Frontex and member states is often unlikely to be established due to a strict causation test.Footnote 52 The first action for damages against Frontex in the case of WS and Others v Frontex and a subsequent action in Hamoudi Footnote 53 are exemplary in that regard, leading to the conclusion that, as it stands, even Article 340(2) TFEU may not be an effective remedy for fundamental rights violations arising from joint operations.Footnote 54
Notwithstanding Frontex’s on-the-ground role in the joint operation to return the applicants of the WS and Others case from Greece to Turkey, the General Court concluded that a direct causal link between Frontex’s alleged conduct and the damages could not be established, given that it was Greece rather than Frontex that was competent regarding the return decision and the applications for international protection.Footnote 55 By denominating Frontex’s tasks as mere ‘technical and operational support’, and focusing only on member state conduct in the establishment of causality, the General Court arguably relativises the fundamental rights risks that Frontex’s activities themselves bear.Footnote 56 Moreover, the case serves as another testament to the fact that, as it stands, it is extremely difficult – if not impossible – for individuals to obtain judicial redress for harm suffered in the context of multi-actor situations.
On appeal before the European Court of Justice, the appellants argued that the harm they suffered was a foreseeable consequence of Frontex’s failure to uphold fundamental rights and prevent returns violating the non-refoulement principle. More recently, the Advocate General on the same appeal case significantly opened the way to shared liability of the member states and Frontex. After finding that Frontex has an obligation to verify the existence of a return decision in relation to all persons covered by a joint operation, she reasoned that the damage claimed in this case was attributable to both Frontex and Greece, as either of them was capable of preventing it from occurring.Footnote 57 The Advocate General went on to note that in situations like these, where Frontex and member states share obligations, the agency ‘can be held liable for damage caused by breach of such obligations, even if a member state can be liable in parallel for the same damage’.Footnote 58 If the Court were to rule otherwise, ‘Frontex could likely never be held liable for any unlawful actions or omissions during return operations, as similar obligations would also pertain to member states’.Footnote 59 The Grand Chamber’s ruling will therefore be extremely relevant to delineate the fundamental rights obligations and responsibilities during return operations in a system of shared administration.
In sum, the EU remedy architecture is ill-suited to address questions of fundamental rights responsibility in multi-actor situations, given that it is extremely difficult for individuals to obtain judicial redress for harm suffered as a result of joint operations. While the EU judiciary is competent to adjudicate on the European contingent of Frontex, the work of the European Border and Coast Guard also involves a national component, whose responsibilities call into play the potential of domestic remedies, on which the following analysis will concentrate. Before moving to the national dimension, it is necessary to note that despite the in-built deficiencies at the EU level, there is a discernible trend towards a more shared understanding of liability, as reflected in the Advocate General’s Opinion in WS and Others as well as in the 2024 Grand Chamber judgment in Kočner v Europol. In the latter case, the Court relied on the specificities of the 2016 Europol Regulation to establish joint and several liability between Europol and national authorities in situations where unlawful data processing could not be attributed to a single actor.Footnote 60 In parallel with these judicial developments, scholars have recently advanced various proposals to overcome systemic liability issues.Footnote 61 Until these have become embedded in law and judicial practice, however, the structural responsibility gaps remain.
Domestic courts and the right to effective judicial protection
Where the EU system of remedies does not provide effective legal protection, national judicial mechanisms can – and should – play a gap-filling role on the basis of Article 19(1) TEU and Article 47 Charter.Footnote 62 Like all other Charter rights and principles, Article 47 has a twofold dimension: at the EU level, it applies to the institutions, bodies, offices, and agencies of the Union; at the national level, it applies to member states when implementing EU law, as per Article 51 of the Charter.Footnote 63 The European Court of Justice has developed a body of case law which holds that Article 19 TEU ‘entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals’.Footnote 64 Consequently, the Court has made clear that the member states must ‘establish a system of legal remedies and procedures ensuring effective judicial review…’.Footnote 65 National courts play an important role in the EU judicial system and have even been called the ‘first line guardians of the EU legal order’.Footnote 66 They may, therefore, be appropriate venues for the invocation of responsibility for human rights violations in joint operations within the European Integrated Border Management. Cases like the abovementioned WS and Others v Frontex, in which the General Court essentially attributes damages to the member state and not the Agency, time and again illustrate that under the current regime it is up to the domestic courts to play a pivotal role in adjudicating on multi-actor situations, as they are the ones competent to rule on the liability of member states and their respective officials. This is confirmed by the recent developments concerning the shipwreck of the fishing vessel ‘Adriana’, which occurred off Pylos on 14 June 2023. While the European Ombudsman’s investigation highlighted clear tensions between Frontex’s obligation to uphold fundamental rights and its role in supporting member states’ border control efforts,Footnote 67 more concrete action has occurred at the national level with criminal proceedings against 17 members of the Greek Coast Guard.
Scholars have reflected on the role of national judges in the process of European integration,Footnote 68 focusing on the decentralised system in which member states’ courts guarantee the existence of a remedy pursuant to Article 19 TEU and Article 47 Charter, while the design of that remedy is left to national procedural autonomy, subject to the principles of equivalence and effectiveness.Footnote 69 The debate on the role of national courts is far from settled, however.Footnote 70 The potential of national remedies in situations of shared administration, and notably the European Integrated Border Management, has been rather neglected. This is remarkable, given that the constitutional set-up of the European multi-level legal order integrates national judges as crucial actors to ensure that individuals have access to effective remedies when their rights provided for by EU law are violated. Despite the fact that national courts cannot completely fill the liability gap in Frontex multi-actor situations due to jurisdictional hurdles, domestic courts continue to play an extremely important role in offering effective judicial protection. The importance of national courts appears not only from the many practical advantages of ‘going local’, but also from the responsibility these courts have under the preliminary reference procedure ex Article 267 TFEU. These two aspects will be explored in the following sub-sections.
The recourse to national remedies: advantages and potential
For several reasons, domestic remedies are well placed to fulfil the requirements of effective judicial protection in multi-actor situations, such as Frontex joint operations. First, while supranational courts like the European Court of Justice are ‘distant both in terms of fact finding and legal proceedings’,Footnote 71 domestic courts are better equipped to carry out fact finding on different aspects of shared administration (for example, in the context of operational plans).Footnote 72
A clear illustration is provided by the domestic proceedings concerning the Cutro shipwreck in Italy in 2023, in relation to which the domestic Prosecutor allowed an expert report to be submitted that declared the information provided by a Frontex aircraft, Eagle 1, to be misleading and incorrect.Footnote 73 As a consequence, a criminal trial has been opened against six officers from the Italian Coast Guard and Financial Police, who are accused of shipwreck and multiple manslaughter.Footnote 74 While responsibilities cannot be singularly identified in Frontex or the Italian authorities, similar cases confirm that domestic proceedings play a pivotal role in the establishment of facts. In line with a substantial stream of case law by the European Court of Human Rights,Footnote 75 this fact-finding role of domestic courts contributes to the obligation of states to conduct effective investigations into fundamental rights violations, including the cooperation with the relevant authorities of other states regarding the investigation of cross-border events.Footnote 76
Investigations by domestic actors can be seen as a powerful tool for civil society organisations and media platforms to monitor and document border violence. Here, one may think of the crucial role played by national ombudspersons or national human rights institutions in collecting evidence about violations that occurred in the pursuit of a joint operation at the EU borders, and thereby their ability to signal if national border guards involved in a joint operation have breached any fundamental rights obligations. A 2022 feasibility study on the setting up of a robust and independent human rights monitoring mechanism at the external borders of the EU reported that in some countries, ombudspersons and national human rights institutions have a legal obligation to notify the local prosecutor whenever, in the conduct of their mandate, they come across crimes.Footnote 77 Being able to take reports such as these into account facilitates the course of judicial action before the appropriate domestic judicial forum, thereby ensuring that the judge has sufficient factual information to adjudicate on the alleged liability of the state and the state’s officials. In sum, in the context of joint operations, investigations pursued through domestic judicial mechanisms can shed more light on the operational opacity which has become a distinct feature of shared administration in the European Integrated Border Management.
Additionally, although individuals often face similar challenges in gaining access to national courts, it is important to note that they do have direct access to these courts. Moreover, domestic legal proceedings are generally more expedient and less costly.Footnote 78 These are all features that contribute to the effectiveness of, and ability to access, a remedy; national judicial remedies can thus offer more of such guarantees in certain instances.Footnote 79 Moreover, in some jurisdictions (for instance, in Austria, Belgium, France, Finland, Germany, the Netherlands, and Sweden), public interest litigation is possible,Footnote 80 which allows individuals and organisations to bring legal actions on behalf of the public or a particular interest group. Further, the exhaustion of national remedies constitutes a necessary step towards the European Court of Human Rights under Article 35(1) of the European Convention on Human Rights, making it essential that individuals primarily turn to their member state’s courts before having the possibility to seek justice internationally. In the context of joint operations, powerful channels such as public interest litigation can contribute to addressing systemic rights violations affecting migrants when victims are unable to come forward directly.
Finally, domestic judicial mechanisms ruling on EU human rights law may set a lower threshold for the determination of responsibility in comparison with the European Court of Justice, which increases the potential success of claims for damages by individuals.Footnote 81 These advantages add to the importance of domestic courts in multi-actor situations without the need to create new remedies.Footnote 82 Although it is not always certain, in principle, national systems must already be equipped to guarantee effective remedies, as also clarified by the European Court of Justice in the Inuit case.Footnote 83
National courts and the use of the preliminary ruling procedure
Before turning to the preliminary reference procedure, it is worth recalling that there is a division of competences between the EU courts and domestic courts in the establishment of liability under EU law that complicates matters to some extent.Footnote 84 Several provisions in EU primary law limit the possibilities of national courts to adjudicate over certain parts of the multi-level human rights and liability conflicts.
First, under Article 268 TFEU, the European Court of Justice has exclusive jurisdiction over the non-contractual liability of the EU, meaning that member states’ courts cannot rule on the damages allegedly caused by – and thus the liability of – the EU, Frontex, or Frontex staff; these actors are therefore immune from national courts’ jurisdiction, with limited exceptions.Footnote 85 Second, domestic courts cannot invalidate EU acts, which is a competence reserved solely for the European Court of Justice.Footnote 86 Domestic courts may review but not declare invalid Frontex operational plans, status agreements, formal individual decisions and the like. Thus, the specific division of competences between the European Court of Justice and national courts means that having recourse to national judicial authorities, whilst important, cannot fill the liability gap entirely.
It is nonetheless worth emphasising that national courts may use the preliminary reference procedure ex Article 267 TFEUFootnote 87 to seek guidance from the European Court of Justice on the correct interpretation and application of the relevant documents on the basis of which joint operations have been conducted. The preliminary ruling procedure has proved to be one of the most fundamental mechanisms for building and elaborating the EU legal order.Footnote 88 The European Court of Justice itself has on several occasions recognised the pivotal function of this procedure, highlighting that it ‘functions as an instrument of cooperation between the Court of Justice and national courts and tribunals’.Footnote 89 By using the preliminary ruling procedure, national courts can influence the overall case law and more genuinely act as ‘European judges’. The preliminary ruling procedure contributes to making the EU system ‘complete’ by overcoming the limits concerning the review of EU acts under Article 263(4) TFEU. It moreover allows individuals to indirectly raise fundamental rights breaches by the EU and the member states, without the need to conform to the strict standing and reviewability criteria of Article 263 TFEU. Article 267 TFEU concerns all EU acts and not just those that are binding, allowing also for the European Court of Justice’s assessment of validity and interpretation of any Frontex act, including statements and communications. In other words, individuals may use the preliminary reference procedure to raise human rights infringements stemming directly from Frontex acts, such as operational plans. They could also make use of it to challenge action on the ground, which would necessitate written acts or implementing measures to rely upon.Footnote 90
There are various reasons why national judges should use the preliminary reference procedure, which is not only because of the importance attached to this procedure by the European Court of Justice,Footnote 91 but also because these procedures allow national judges to contribute to providing legal certainty across the EU. This is crucial in fast-evolving areas, such as migration and asylum, where the progressive establishment of shared administration through EU agencies has left many issues unresolved. As is well known, however, individuals cannot force national courts to lodge a request for a preliminary ruling. Moreover, domestic courts enjoy some discretion in whether they decide to ask questions to the European Court of Justice or not. Such discretion may be seen as another obstacle for individuals in reaching the European Court of Justice.
Nonetheless, the European Court of Justice has in its case law reiterated that the failure by the national judges of last instance to request a preliminary ruling plays a role in the assessment of the ‘sufficiently serious nature’ of the breach in an action for compensation liability of the individual towards the state.Footnote 92 The European Court of Human Rights has, moreover, made clear that the refusal by national courts to ask for a preliminary ruling, or the lack of motivation towards that decision, can entail a violation of Article 6(1) of the Convention (right to a fair trial).Footnote 93
Given the progressive expansion of EU shared administration and the tasks and powers assigned to EU agencies, national courts are arguably expected to more proactively intervene to allow the European Court of Justice to clarify issues of division of competences and allocation of responsibilities that are not well delineated. Both Regulation 2019/1896 and the operational plans or documents, such as risk analyses, fall within the scope of a preliminary ruling procedure. In light of the role of coordination and support that Frontex is expected to play in joint operations, national courts can, for example, refer to the European Court of Justice questions on the interpretation of the provisions in Regulation 2019/1896 concerning the agency’s fundamental rights obligations or the legal threshold for Frontex’s ‘co-responsibility’ in operations conducted with member states. Questions on the notions of ‘shared responsibility’ and ‘primary responsibility’, as enshrined in Article 7(1) of Regulation 2019/1896, would be particularly relevant. As regards the operational plans, national courts can refer questions related to the interpretation of the public security clause used by Frontex in order not to disclose the obligations and tasks of the actors participating in a joint operation, as mentioned above in relation to joint operation ‘Poseidon’. Finally, national courts can consider questions related to the compatibility of national measures adopted within a joint operation (e.g. a return order) with Regulation 2019/1896 and other relevant EU law provisions.
These examples do not have an exclusively theoretical value. In the WS and Others case, the General Court assigned responsibility primarily to the member states. However, in joint operations, national authorities frequently act in coordination with or following consultation with Frontex. It is therefore essential for member states, who ultimately bear the main responsibility in such operations, to strategically seek interpretative guidance on the relevant legal instruments and operational documents governing joint actions and their limits.
Additionally, under the principle of sincere cooperation (Article 4(3) TEU),Footnote 94 member states shall take any appropriate measure to ensure the fulfilment of the obligations arising out of the Treaties, including the need to respect fundamental rights as protected by the Union’s legal order.Footnote 95 It could be argued that the domestic systems must therefore guarantee equal procedural treatment in legal situations that take their origins in the shared administration, such as the European Integrated Border Management. The duty of sincere cooperation is also reflected in the possibility, mentioned above, for national judges to make preliminary references ex Article 267 TFEU to the European Court of Justice when faced with questions of EU law that require clarification.Footnote 96
In order to facilitate the work of authorities at the national level to investigate and, possibly, apply sanctions to wrongdoings by national border guards, it is crucial that the responsibilities and tasks of all actors involved in Frontex joint operations are spelt out clearly and that optimal use is made of the preliminary reference procedure. This also requires that the member states create an environment that eliminates existing obstacles to accessing domestic courts, including barriers to legal mobilisation that result in an impediment to the fulfilment of EU law-related tasks.Footnote 97 Furthermore, it requires the training of national judges on the expanding competences of the EU through agencies like Frontex and their role in adjudicating damages arising from EU multi-actor situations. This will also help to make judges more prone to refer preliminary questions to the European Court of Justice.Footnote 98
Domestic courts’ direct adjudication over responsibility for human rights violations in the European Integrated Border Management
With reference to the competences to determine the responsibility of relevant actors involved in joint operations coordinated by Frontex, domestic courts may scrutinise the responsibility of the national contingent that participated in the operation, that is, their own member state and the national border guards of that member state.Footnote 99 Under the conditions that will be outlined in the following sub-sections, domestic courts may also adjudicate on the responsibility of Frontex team members, when it concerns staff seconded by member states and, exceptionally, when it concerns statutory staff.
These are three pragmatic scenarios in which national judicial avenues are possible in the case of alleged human rights violations in shared administration. These avenues range from disciplinary to civil and criminal law proceedings.Footnote 100 National judges are likely to face considerable challenges when intending to rule on factual actions carried out by EU agencies, such as Frontex, in collaboration with member state authorities. An especially thorny issue is disentangling the precise conduct of each actor and distinguishing the conduct of the national contingent, given that the actions of the cooperating partners are very much intertwined. Regulation 2019/1896 does not offer any solutions regarding the attribution of conduct. It only provides a complex legal framework for the distribution of responsibility, as will be shown below when discussing individual and state responsibility at the national level.
The adjudication on member state responsibility
Before turning to the adjudication on member state responsibility for fundamental rights violations in Frontex joint operations, it is worth recalling some of the recent efforts made by non-governmental organisations to bring national authorities before member states’ courts for alleged violations of fundamental rights in the migration context generally. One may think of proceedings that challenged international cooperation documents on migration, such as a case before the Tripoli Court of Appeal regarding the Italy-Libya Memorandum of Understanding or the case against the Netherlands before the Hague District Court concerning the EU-Turkey deal.Footnote 101 Alternatively, applicants have also litigated against the state for violations of fundamental rights through financial or factual conduct.Footnote 102 Examples include the proceedings against the Italian government before the Regional Administrative Court in Rome relating to the funds sent by Italy to the Libyan authorities and before the Civil Court in Rome on pushbacks by the Italian national authorities.Footnote 103 Similarly, linked to migration through the so-called Balkan route, a case alleging a pushback by Slovenian authorities was initiated before the Ljubljana Administrative Court and finally adjudicated by Slovenia’s Supreme Court.Footnote 104 Litigants have, thus, had recourse to domestic forums to address human rights violations by national authorities in the migration context.
However, these examples do not specifically relate to situations of shared administration, though they are indirectly connected with the implementation of the European Integrated Border Management. In these multi-actor situations, national authorities can incur responsibility for human rights violations, and domestic judges can subsequently rule on that responsibility. Concerning Frontex joint operations, member states’ participation has raised parliamentary interest in the extent of their potential responsibility for actions taken during these operations.Footnote 105 On such member state responsibility, Article 84(1) of Regulation 2019/1896 stipulates that in the cases where Frontex team members operate in a host member state, ‘that host member state shall be liable in accordance with its national law for any damage caused by them during their operations’ (emphasis added). National liability rules have to abide by the Francovich principle, further developed in Brasserie, through which the European Court of Justice recognised a general principle common to the legal systems of the member states that unlawful state conduct gives rise to an obligation to make good the damage caused.Footnote 106
In line with the principle of procedural autonomy, mentioned in the previous section, national courts thus apply national procedural law – here, the conditions for state liability – when establishing the liability of the member state for violations of fundamental rights. This means that legal norms in the member state may well diverge, with the consequence that different rules apply to national authorities participating in the same joint operation that allegedly causes human rights infringements.Footnote 107 This may lead to inconsistent outcomes for similarly situated claimants. Additionally, Article 84(2) provides that, if the damage results from gross negligence or wilful misconduct, the host state may seek reimbursement from the home member state, if its seconded personnel caused the harm, or from Frontex, if the harm was caused by the Agency’s statutory staff. In such a scenario, while the Regulation allows for reimbursement between states, in practice, the complexity lies with the procedures that are domestically used to enforce the framework under Article 84(2).Footnote 108 Finally, and as mentioned above, the judge ruling on state responsibility in joint operations may have a hard time ‘isolating’ the conduct by the national authorities for adjudication, not only because this conduct is so intertwined with that of Frontex, but also because of the interplay of national and European border control frameworks.Footnote 109
The case law on the responsibility of national authorities in the context of Frontex operations is currently extremely scarce. However, a notable pending case concerns the above-mentioned 2023 Adriana shipwreck. In this instance, Frontex was performing ‘maritime surveillance activities’ and cooperated with the Italian and Hellenic Coast Guards when the Italian Coordination Centre drew attention to the boat. It was alleged that actions by the Hellenic Coast Guard played a role in the sinking of the boat, and that Frontex did not alleviate the possible consequences. Frontex did not issue a Mayday relay and was not authorised by the Greek Coordination Centre to deploy its surveillance aircraft to the emergency site. Such a situation highlights the challenges of fulfilling human rights obligations in the European Integrated Border Management.Footnote 110 As regards the question of responsibility, the Greek Naval Court has investigated the Hellenic Coast Guard’s actions,Footnote 111 and, as mentioned, criminal proceedings have been initiated.
The adjudication on individual responsibility
Besides ruling on the liability of the state, domestic courts can play a role in the adjudication of the civil, disciplinary, or criminal liability of individual coast guards, be they part of the national coast guard or Frontex. Not all Frontex team members can be subject to national proceedings, however. Article 43(5) of Regulation 2019/1896 provides that ‘Members of the teams who are not statutory staff shall remain subject to disciplinary measures of their home member state’ (emphasis added). This member state ‘shall provide for appropriate disciplinary or other measures in accordance with its national law regarding violations of fundamental rights or international protection obligations in the course of any operational activity by the Agency’ (emphasis added). Here, the reference to national law means that divergences of legal norms in the various member states will have the consequence of different liability rules applying to team members who take part in the same joint operation. As mentioned, Article 43(5) expressly excludes Frontex statutory staff from its remit. Given that statutory staff enjoy privileges and immunities ex Article 96 of Regulation 2019/1896, and since they do not have a ‘home member state’, these members shall be subject to disciplinary measures as provided in the EU Staff Regulations, according to Article 43(6) of Regulation 2019/1896.
Regulation 2019/1896 not only envisages disciplinary responsibility before national courts, but also criminal liability ex Article 85. This provision is rather confusing when it states that ‘[w]ithout prejudice to Article 95, members of the teams in the territory of the host member states, including statutory staff, shall be treated in the same way as officials of the host member state with regard to any criminal offences that might be committed against them or by them’. It is Article 96 rather than Article 95 which provides for the immunities of the Agency and its statutory staff, suggesting that the reference to Article 95 is an erroneous one.Footnote 112 Based on Article 85 in combination with Article 96 of the Regulation, statutory staff are immune from criminal liability. Pursuant to Article 17 of Protocol No. 7 on the Privileges and Immunities of the European Union, such immunity shall be waived wherever such a waiver ‘is not contrary to the interests of the Union’. It has been argued that statutory staff do not have a ‘home member state’, creating a conundrum as to where they could potentially be criminally prosecuted.Footnote 113 However, a grammatical reading of Article 85 allows for the argument that after a waiver of immunity of the statutory staff – fulfilling the subordinate clause ‘without prejudice to…’ – the independent clause ‘shall be treated in the same way as officials of the host member state’ applies. Hence, Frontex statutory staff could, after a waiver of immunity, be criminally charged in the host member state.Footnote 114
A more complicated situation, however, concerns the Frontex operations carried out in third countries on the basis of Status Agreements concluded between the EU and the third country in question. These agreements all contain a clause granting the members of the team, i.e. the seconded members and statutory staff, immunity from criminal, administrative, and civil jurisdiction of the third country. This can encapsulate immunity ‘under all circumstances’ or only for ‘acts performed during and for the purpose of the exercise of the official functions’.Footnote 115
A waiver of immunity is also possible in the context of extraterritorial operations when it concerns Frontex statutory staff. Article 12(3) of the Status Agreement with Moldova, for instance, holds that immunity from third-country criminal jurisdiction may be waived by Frontex’s Executive Director when it concerns statutory staff and by the competent authorities of the home member states when it concerns seconded members. Some Status Agreements, however, specify that the ‘home member state’ can waive the immunity of the team members (Article 7(4) of the Status Agreement with Serbia), raising the question of who would be responsible for waiving the immunity of Frontex statutory staff. In any case, even if immunity from third-country jurisdiction is not waived, team members – again, this includes both seconded members and Frontex statutory staff – shall be subject to the jurisdiction of their home member state, as Article 7(8) of the Status Agreement with Serbia postulates. Here, the direct reference to ‘home member state’ may indeed create problems for the prosecution of Frontex statutory staff, given that they lack a home member state. When it comes to extraterritorial operations, there seems to be an impossibility in some cases to bring Frontex statutory staff before member state or third-country courts. In other cases, Frontex statutory staff may, just like staff seconded by member states, be subject to proceedings at the member state or third-country level.
It is unclear whether seconded members of a Frontex team have ever been subject to disciplinary or criminal proceedings at the national level. However, several examples of cases concerning the liability of the national border guards cooperating with the Agency in Frontex joint operations before national courts do stand out. One may think of the case Almukhlas and Al-Maliki v Greece before the European Court of Human Rights, where the applicants alleged a violation of Article 2 of the Convention by the Greek authorities.Footnote 116 According to the applicants, their son had boarded a boat that was heading towards Greece, to request asylum. In their view, an incident took place, which involved two traffickers, a Frontex boat and the Greek Coast Guard, where the Greek Coast Guard had fired a shot at one of the traffickers and hit their son, who did not survive the incident. At the domestic level in Greece, the Indictment Chamber of the Piraeus Maritime Court had decided not to initiate proceedings against the Greek Coast Guard.Footnote 117 The Strasbourg judges found a procedural violation of Article 2 of the Convention arising from an ineffective investigation. The inquiry failed to clarify the circumstances or identify those responsible, resulting in the loss of crucial evidence. The Court held that the coast guard had inadequately assessed the risk, used excessive force and concluded that the operation lacked essential safeguards to protect life.Footnote 118
Another, similar case that was decided on domestically and ended up in the archives of the European Court of Human Rights is Alkhatib and Others v Greece.Footnote 119 In that case, a Greek coast guard had fired several shots, on order of the Commander of the operation, at a motorboat transporting individuals illegally towards Greece, resulting in a serious gunshot wound being sustained by a member of the applicant’s family. The interception operation was part of the joint operation ‘Poseidon’, carried out under the coordination of the Coast Guard staff, in cooperation with the Greek police and under the supervision of Frontex.Footnote 120 At the national level, an administrative investigation by the Chief of Staff of the Greek Coast Guard concluded that no question of disciplinary or administrative responsibility arose with regard to the crew of the Greek Coast Guard.Footnote 121 A similar result was reached with regard to the criminal responsibility of the two coast guards. The prosecutor at the Piraeus Maritime Court ordered the dismissal of the case, holding that there was no punishable or reprehensible behaviour on the part of the Greek personnel. Subsequently, the prosecutor at the National Navy Court of Appeal confirmed the dismissal of the case.Footnote 122 According to the European Court of Human Rights, the national investigation into the responsibility of the coast guards showed multiple shortcomings, resulting in a violation of the procedural limb of Article 2 of the Convention.Footnote 123
Evaluating the potential of the national judiciary
The considerations above show that, at the national level, various possibilities exist for the establishment of responsibility of relevant actors involved in Frontex joint operations. Domestic proceedings allow for direct participation in legal action, either in civil or administrative cases against the state or individual border guards.Footnote 124 Further, claimants may indirectly trigger legal action by requesting the public prosecutor to start investigations, primarily to find out the identity of the perpetrators and to establish their responsibility.Footnote 125 The determination of responsibility, be it criminal, civil or administrative, will be based on national law, in line with the principle of procedural autonomy.
While certain violations of human rights, like the violation of the prohibition of collective expulsions ex Article 19(1) Charter and Article 4 Protocol No. 4 of the Convention, may less easily translate into individual criminal responsibility, violations of other human rights like the right to life or the right not to be subjected to torture, could lead to criminal responsibility under several provisions of substantive national criminal law. The latter types of violations may therefore warrant recourse to the public prosecutor at the national level. The possibility for claimants to use ‘integrated legal strategies’ at the national level alongside European and international proceedings, may help to close the accountability gap, at least partially.Footnote 126
These possibilities are still hindered by various issues mentioned above, roughly relating to matters of: (i) competence; (ii) access; and (iii) adjudication. First, it might be difficult to establish the competent court to rule on the responsibility of certain actors, as is the case for Frontex’s statutory staff conduct in extraterritorial operations. Second, structural and practical difficulties may arise when choosing to present a claim before the domestic judge. Problems of standing, a lack of resources and limited ‘Euro-expertise’ may impede the litigants from bringing a successful case before the national judge.Footnote 127 It can also be extremely arduous to gather important information and evidence to show before the national court, because of the secrecy generally surrounding migration operations.Footnote 128 Third, the unclear distribution of tasks and a panoply of actors involved, compounded by secretive operations, render it a Herculean task for the national judge to single out the conduct of the actor on which she has jurisdiction to adjudicate.
The considerations above nevertheless show that, while the national judge cannot rule on the responsibility of the Agency as such, it can partly fill the accountability gap at the European level by ruling on the responsibility of particular elements that make up the Agency and its joint operations. This includes the national counterpart involved in the operation, the Frontex team members seconded by national authorities and, in some cases, even statutory staff.
Enhancing the potential of domestic judicial mechanisms in European Integrated Border Management
Ensuring that domestic judicial mechanisms can enhance their role in upholding the right to effective legal protection in multi-actor situations is crucial but requires several conditions whose realisation does not necessarily or exclusively depend on domestic courts.
First, a clear delineation of not only the tasks but also the responsibilities and different types of obligations between EU agencies and national authorities is necessary in Regulation 2019/1896 as well as in the Agency’s operational plans. Without clarification of the extent to which the EU is bound by positive and negative obligations, it will consistently be able to rely on the argument that there can be no determination whether a breach of an international obligation has occurred.Footnote 129 Having the precise powers of all actors in a joint operation spelt out, and knowing who decides, who instructs, and who executes, is of fundamental importance for the assessment of responsibility.Footnote 130 For domestic courts to play a meaningful role in the determination of responsibility, the division of tasks and obligations of all actors involved in shared administration situations will have to be delineated clearly. This will arguably give individuals a higher chance of seeing their liability claims succeed.Footnote 131
Second, a proactive commitment to transparency on the side of Frontex is essential for national courts to perform their fact-finding roles. Even when the tasks and obligations in the constitutive Regulation are crystal clear, the effectiveness of domestic proceedings on multi-actor situations might be impaired due to secrecy around what has been agreed in the context of joint operations or because of a lack of clarity about what has happened on the ground. As has been held in the academic literature on this issue, ‘transparency is the most essential element for social accountability’, since it allows for direct response to the public through the media, non-governmental organisations, and other interest groups.Footnote 132
Within Frontex, there is an increasing tendency to fully or partially refuse access to document requests. Third-country nationals especially often see their requests for access to documents denied,Footnote 133 making it difficult for them to find out what exactly happened and to prove alleged human rights violations before a court of justice. The recommendation to ensure more proactiveness in transparency can unfold in two layers. On the first level, Frontex should ensure that all operational plans are made publicly available and that they contain a clear and well-defined division of tasks and obligations between the relevant actors. These documents should clearly define the aim of each joint operation: where it is to take place; the quantities and types of technical equipment in use; and the officers taking part. As different types of officers take part in Frontex operations – for instance, debriefing officers (conducting interviews with migrants to gather information about people-smuggling networks) or mediators and interpreters (enabling migrants to express themselves in their native languages) – the operational plan should clearly specify the exact rules of engagement for each type of officer. On the second level, the oversight by external actors – such as the European Parliament and the European Ombudsman – over Frontex’s commitment to transparency should be strengthened.
It is worth stressing that transparency is an integral element of the fundamental right to good administration under Article 41 Charter, manifesting itself, inter alia, in the access to documents. In order to effectively hold oversight over Frontex transparency, the European Parliament should be informed accurately and in a timely manner. The Frontex Scrutiny Working Group has already recommended that files concerning the Serious Incident Reports be classified as ‘restricted’ on a case-by-case basis and not as a general rule.Footnote 134 Such recommendations should extend to access to documents by third-country nationals as well, given their precarious situation in obtaining information on Frontex multi-actor situations to present before a court. By fostering a proactive commitment to transparency, domestic courts will be better equipped to disentangle the actions by the actors involved in joint operations, taking away some of the difficulties in attributing conduct to a specific actor. Additionally, an enhancement of transparency at the national level, coupled with a strengthening of the work of national monitoring bodies as well as national ombudspersons and human rights institutions, will enable domestic courts to better adjudicate on the responsibility for human rights violations arising from multi-actor situations.Footnote 135
Third, stricter rules should exist for the exercise of discretionary powers by national judges to ask preliminary questions. In this connection, it is essential to reiterate that, pursuant to Article 19(1) TEU and Article 47 Charter, national courts and tribunals are called to ensure judicial review in the EU legal order and these have to ‘establish a system of legal remedies and procedures ensuring effective judicial review…’.Footnote 136 It is essential that litigants stimulate national courts to use the preliminary reference procedure ex Article 267 TFEU to consult the European Court of Justice on issues related to the interpretation of EU law. This has progressively become an instrument to expand the protection of individuals, beyond the strict conditions of direct access to the European Court of Justice.Footnote 137 The European Court of Justice may thus consolidate and strengthen its case law in this regard and ensure that all necessary conditions are in place for national judges to make preliminary references to the European Court of Justice.
Finally, efforts should be made to render national remedies more accessible for persons seeking judicial redress, and to increase the quality and efficiency of national courts to rule on responsibility matters. This can be done, inter alia, by raising awareness on the role of national judges in shared administration situations, which also entails that member states are called upon to provide judges with the necessary training to operate vis-à-vis multi-actor operations. Actors at the EU level, such as the European Parliament and the European Commission, can play a guiding role to that end. They can mobilise funding for the training of national judges and provide comparative data on the efficiency and quality of judicial systems in the member states, inter alia, in the context of the EU Justice Scoreboard. In the context of this recommendation, it is also worth considering the role of EU networks of national contact points, such as the European Judicial Network and the European Migration Network. These networks can contribute to setting guidelines that emphasise the importance of sharing best practices and enhancing the capacity of working together with existing monitoring mechanisms. They may, moreover, be utilised to raise awareness on the role of national judges in shared administration situations. The European Parliament should, moreover, maintain a dialogue with civil society and promote the mobilisation of lawyers and citizens to gain access to courts at the national level, and cultivate in them a ‘legal consciousness’ to address matters of EU law before domestic courts.
Concluding remarks
This article has concentrated on the potential of national judicial remedies to adjudicate responsibility for human rights violations in EU multi-actor situations. It has particularly focused on Frontex, in an attempt to contribute to a more comprehensive framing of the principle of effective judicial protection. This principle, which is guaranteed under Article 47 Charter, is inherently linked to the concept of access to justice. It emphasises the importance of providing individuals and entities with the means to challenge potential violations of their rights under EU law and it ensures that the EU legal system is transparent, fair, and capable of addressing such violations effectively. As outlined in the article, this principle is currently impaired in the emerging system of shared administration, of which Frontex joint operations are the most visible example. The EU system of judicial remedies is, in other words, inadequate to address damages arising from multi-actor operations.
In light of the imperfect legal remedies at the EU level in shared administration situations, this article has argued that it is necessary to explore the possibilities and potential of national judicial mechanisms to play a gap-filling role. It has shown that, albeit not able to fully close the existing liability gap in multi-actor situations, national courts can play an extremely important role in the determination and allocation of responsibility for human rights violations at the EU’s external borders. The interplay between EU courts and national courts reflects a system of shared judicial responsibility: while EU courts have exclusive jurisdiction over EU acts and EU liability (Article 268 TFEU), national courts enforce EU rights domestically (Article 19 TEU) and may refer preliminary questions to the European Court of Justice (Article 267 TFEU). Thus, national courts play a twofold role in adjudicating claims concerning Frontex operations. They can do so either indirectly by making preliminary references to the European Court of Justice or directly by establishing the civil, criminal, or disciplinary responsibility of several actors that together make up the entire joint operation. This article has laid an exploratory foundation for future research on how member states’ courts adjudicate multi-actor liability matters in practice. It has shown that, currently, wide-ranging obstacles exist for national courts to fulfil their role in offering effective judicial protection.
By acknowledging that without the input of national remedies and their willingness and ability to play a role in the emerging system of shared administration, the EU will lack a significant tool to guarantee such effective judicial protection, this article has devised several recommendations. These are essentially geared towards reducing the hurdles that limit the role of domestic courts as well as generating awareness about the potential that domestic adjudicators can play in a system of shared administration.
Acknowledgements
The authors wish to acknowledge the SHARED Project (Shared Responsibility at the EU’s External Borders), coordinated and hosted by The (B)OrderS Centre of Queen Mary University of London, in collaboration with the Observatori de Dret Públic (IDP) of the Universitat de Barcelona, where this article first took shape through fruitful discussions and workshops on the topic. The authors are also grateful to the anonymous peer-reviewers for their constructive feedback.
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