Who guards the guards?
In recent years, Frontex was involved in incidents revealing a severe lack of accountability, respect for human rights and transparency within the agency. The non-profit organization front-LEX uses strategic litigation before the Court of Justice of the European Union (CJEU) as part of its Rule-of-Law campaign, in order to hold Frontex to account for breaching its obligations under EU Law. We have asked front-LEX for a legal opinion concerning the accountability of Frontex for ongoing violations of the fundamental rights of asylum seekers, committed in relation to its activities in Greek waters. Thereby, we aim at contributing to an informed debate among legal practitioners, civil society and policymakers and we seek to show legal ways forward against the current state of impunity with regard to border violence against people on the move.
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Table of contents
FOREWORD 4
EXECUTIVE SUMMARY 6
TABLE OF ABBREVIATIONS 8
1. FACTUAL BACKGROUND 9
1.1. The KYSEA Decision 9
1.2. Rapid Border Intervention Aegean 10
1.2.1. Frontex’s involvement 11
2. EVIDENCE 13
3. APPLICABLE LAW 16
3.1. Charter of Fundamental Rights 16
3.2. EBCG Regulation 17
4. AVAILABLE PROCEDURES 18
4.1. Admissibility: actions for failure to act and annulment 19
4.2. 1st Procedure: failure to act 22
4.2.1. Failure to take a decision or adopt a measure 22
4.2.1.1. Violations of fundamental rights 23
4.2.1.2. Related to Frontex’s activity 23
4.2.1.3. Serious or likely to persist 24
4.2.1.4. Incapability of acting in accordance with Art. 46(4) 24
4.2.2. Duty to act 25
4.2.3. Call to act 27
4.2.4. Failure to define position 27
4.3. 2nd Procedure: annulment 28
4.3.1. Frontex acted 29
4.3.2. The act was binding 29
4.3.3. Unlawful act – grounds for annulment 30
4.3.3.1. Infringement of essential procedural requirement 30
4.3.3.2. Infringement of Union law 30
4.4. 3rd Procedure: damages 31
4.4.1. Breach 32
4.4.2. Actual damage 34
4.4.3. Causal link 35
5. STATUS OF FRONT-LEX CASES VS FRONTEX 37
5.1. Case T-282/21 37
5.2. Case T-600/22 38
5.3. Case T-136/22 38
6. STRATEGY MOVING FORWARD 39