The ruling by the CJEU in WS and Others v. Frontex (C-679/23 P, 18.12.2025), given on an appeal against a judgment by the General Court (T-600/21), represents a clarification of the fundamental rights obligations of the European Border and Coast Guard Agency (Frontex), with significant implications for the Convention protection system.

The facts underlying this ruling involve a Syrian Kurdish family consisting of two parents and four children who arrived on the Greek island of Milos in October 2016. Shortly after their arrival, they were transferred to a reception and identification centre, where they expressed their desire to apply for international protection. The family was nonetheless deported to Turkey, via a joint return operation coordinated by Frontex.

The family alleged that this removal occurred without any written or enforceable return decisions being issued by the Greek authorities, which they argued violated the principle of non-refoulement and their fundamental rights.

The family sued Greece before the ECtHR, resulting in a friendly settlement where Greece agreed to pay the family a total of 75,000 euros for damages.

In September 2021, the family brought an action for damages against Frontex in the General Court, seeking approximately 136,000 euros for material and non-material harm.

The current ruling by the CJEU arose from the family’s appeal after the General Court had dismissed their claim, primarily on the grounds that there was no direct causal link between Frontex’s actions and the family’s damages. The CJEU disagreed with these findings and referred the case back to the General Court.

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One of the main findings of this ruling on which this post will concentrate is that, contrary to what the General Court had considered, Frontex (European Border and Coast Guard Agency), as an Agency of the EU created in order to improve the integrated management of the external border of the EU (Hamoudi v. Frontex, § 66), cannot escape all extra-contractual liability when it cooperates with Member States to ensure the return of asylum seekers.

In the case at hand, the liability invoked by the appellants mainly concerned a) their inclusion in a return operation from Greece to Turkey without them having been the subject of written return decisions, and b) infringements of their fundamental rights committed during their return flight to Turkey, notably the principle of non-refoulement.

The General Court had denied the existence of a direct causal link between the alleged damage and Frontex’s actions, considering that the latter were of the sole responsibility of Greece. In its opinion, Frontex only had to provide technical and operational support to the Member States (§ 92). It had no obligations in respect of joint return operations organized by the Member States (§ 124).

However, the CJEU is of a different opinion. Referring to Article 51(1) of the EU-Charter and the relevant provisions of Regulation 2016/1624 on the European Border and Coast Guard – now replaced by Regulation 2019/1896 – it comes to the conclusion that “in the light of the specific obligations which Regulation 2016/1624 imposes on Frontex in the context of the coordination of joint return operations, that agency is required to verify that such decisions exist for all persons whom a Member State intends to include in such operations, in order to ensure that they comply with the requirements arising from that regulation and with the fundamental rights of the persons concerned, and in particular the principle of non-refoulement.” (§ 102)

As regards the damage allegedly incurred by the appellants as a result of their forced return to Turkey, the CJEU ruled that while, under Article 42(1) of Regulation 2016/1624, the host Member State is in principle to be held liable for any damage caused by members of the European Border and Coast Guard, Frontex is nonetheless under a set of obligations intended to ensure respect for fundamental rights in the context of joint return operations. It can therefore not be excluded a priori that a breach of those obligations by its departments or staff in the context of a particular operation may have contributed to infringements of fundamental rights taking place during a return flight (§ 132).

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From a Convention point of view, this ruling is particularly interesting in that it confirms that the hybrid structure of the European Border and Coast Guard (EBCG), resulting from its institutional and operational association of national and EU components, also produces a hybrid form of non-contractual liability for breach of fundamental rights, with Frontex bearing part of that liability, along with the Member States. As Recital 6 of Regulation 2016/1624 puts it, the European integrated border management is a matter of shared responsibility of Frontex and the national authorities responsible for border management.

In this respect, the EBCG bears some resemblance with the European Public Prosecutor’s Office (EPPO), which is another hybrid EU entity operating on the basis national and EU authorities cooperating on the ground (see An Elephant in the Room: the European Convention on Human Rights and the EPPO).

EBCG and EPPO represent a challenge for the Convention system in that they both rely in part on EU entities and officers which, because the EU is not itself a Contracting Party to the Convention, are not subject to the latter (on this, see Bosphorus v. Ireland, § 152), whereas the national components of EBCG and EPPO are. This results in a legal duality as regards the fundamental rights applicable to the actions which these two bodies undertake. Consequently, potential victims of these actions must base their claims on different sets of fundamental rights. Not only does this represent a heavier burden for these persons, it is also a challenge to legal certainty and legal coherence. The impact of the EPPO hybrid structure on the application of the Convention has been described in detail in No case to answer for the EPPO?.

WS and Others is a perfect illustration of this duality and of the resulting increased complexity. Indeed, before going before the General Court with their claim against Frontex based only on EU law, the appellants had filed an application against Greece with the ECtHR, which gave rise to a friendly settlement, based on the sole Convention (§ 35). In this connection, the CJEU also makes it clear that the non-contractual liability to be assumed by Frontex is under EU law only (§ 127).

From a Convention perspective, these hybrid constructions operating within the territory and jurisdiction of the Member States represent a new situation. It is no longer a Bosphorus-type scenario in which national authorities are the sole bodies responsible for applying EU law and thereby ensuring the full application of the Convention to all actions undertaken by them, even when those actions are based on EU law. Instead, full coverage by the Convention is being replaced by a “patchwork coverage”, with gaps in the Convention’s applicability emerging where actions within the jurisdiction of the Member States are carried out by EU entities or officers acting on behalf of the EU itself and therefore not subject to the Convention. (Bosphorus v. Ireland, §§ 137 and 152).

In response to this concern, one may of course refer to the EU-Charter and its Article 52(3) which is designed to ensure coherence between the EU and Convention protection levels. However, in spite of this Article 52(3), which is meant to guarantee compliance with the Convention as minimum protection level under EU law, this compliance in practice turns out to be purely optional in the case-law of the CJEU, resulting in some significant protection deficits (see A logical response to the optionality of the Convention).

Moreover, this “patchwork coverage” clashes with the principle according to which “Article 1 [of the Convention] … does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention” (Bosphorus v. Ireland, § 153). With hybrid EU entities ensuring part of the law-enforcement in the Member States, part of what is taking place within the “jurisdiction” of the Member States now falls outside the scope of the Convention and is therefore no longer subject to the external scrutiny by the ECtHR.

Yet, this external scrutiny by the ECtHR has always been seen as an essential component of an effective protection of fundamental rights in Europe. This is also why the European legislature in Art. 6(2) TEU enjoined the EU to accede to the Convention. The rise of EU hybrid entities is one more good reason for the EU to go ahead with this accession, as it would put an end to the patchwork coverage by the Convention in this area, by making the EU and its entities subject to the Convention, on an equal footing with the Member States (on the current state of the accession process, see The European Commission requests an opinion by the CJEU). In the meantime, however, the patchwork coverage will continue. It can therefore only be hoped that the optionality of the Convention in EU law will not.