{"id":3512,"date":"2025-12-31T13:29:44","date_gmt":"2025-12-31T12:29:44","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=3512"},"modified":"2026-03-05T14:17:52","modified_gmt":"2026-03-05T13:17:52","slug":"from-full-coverage-to-patchwork-coverage-the-convention-in-the-age-of-hybrid-eu-actors-judgment-of-the-cjeu-in-ws-and-others-v-frontex","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/de\/from-full-coverage-to-patchwork-coverage-the-convention-in-the-age-of-hybrid-eu-actors-judgment-of-the-cjeu-in-ws-and-others-v-frontex\/","title":{"rendered":"From Full Coverage to Patchwork Coverage: The Convention in the Age of Hybrid EU Actors – Judgment of the CJEU in WS and Others v. Frontex"},"content":{"rendered":"\n

The ruling by the CJEU in WS and Others v. Frontex<\/em><\/a> <\/em>(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<\/strong>), with significant implications for the Convention protection system<\/strong>.<\/p>\n\n\n\n

The facts underlying this ruling involve a Syrian Kurdish family<\/strong> consisting of two parents and four children who arrived on the Greek island of Milos<\/strong> 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<\/strong>. The family was nonetheless deported to Turkey<\/strong>, via a joint return operation coordinated by Frontex<\/strong>.<\/p>\n\n\n\n

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<\/strong> and their fundamental rights<\/strong>.<\/p>\n\n\n\n

The family sued Greece<\/strong> before the ECtHR<\/strong>, resulting in a friendly settlement<\/strong> where Greece agreed to pay the family a total of 75,000 euros for damages.<\/p>\n\n\n\n

In September 2021, the family brought an action for damages against Frontex<\/strong> in the General Court, seeking approximately 136,000 euros for material and non-material harm.<\/p>\n\n\n\n

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

*             *             *<\/p>\n\n\n\n

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<\/strong> (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<\/em><\/a>, \u00a7 66), cannot escape all extra-contractual liability<\/strong> when it cooperates with Member States<\/strong> to ensure the return of asylum seekers<\/strong>.<\/p>\n\n\n\n

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<\/strong>, and b) infringements of their fundamental rights committed during their return flight to Turkey, notably the principle of non-refoulement<\/strong>.<\/p>\n\n\n\n

The General Court<\/strong> had denied the existence of a direct causal link<\/strong> between the alleged damage and Frontex\u2019s actions, considering that the latter were of the sole responsibility of Greece<\/strong>. In its opinion, Frontex only had to provide technical and operational support<\/strong> to the Member States (\u00a7 92). It had no obligations in respect of joint return operations organized by the Member States (\u00a7 124).<\/p>\n\n\n\n

However, the CJEU is of a different opinion. Referring to Article 51(1) of the EU-Charter<\/strong> and the relevant provisions of Regulation 2016\/1624<\/strong> on the European Border and Coast Guard \u2013 now replaced by Regulation 2019\/1896 \u2013 it comes to the conclusion that \u201cin the light of the specific obligations which Regulation 2016\/1624 imposes on Frontex<\/strong> in the context of the coordination of joint return operations, that agency is required to verify<\/strong> that such decisions<\/strong> 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<\/strong> of the persons concerned, and in particular the principle of non-refoulement<\/strong>.\u201d (\u00a7 102)<\/p>\n\n\n\n

As regards the damage<\/strong> 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<\/strong> is in principle to be held liable<\/strong> for any damage caused by members of the European Border and Coast Guard, Frontex<\/strong> is nonetheless under a set of obligations intended to ensure respect for fundamental rights<\/strong> in the context of joint return operations. It can therefore not be excluded a priori<\/em><\/strong> 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 (\u00a7 132).<\/p>\n\n\n\n

*             *             *<\/p>\n\n\n\n

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<\/strong> (EBCG), resulting from its institutional and operational association of national and EU components, also produces a hybrid form of non-contractual liability<\/strong> for breach of fundamental rights, with Frontex<\/strong> bearing part of that liability<\/strong>, along with the Member States<\/strong>. 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<\/strong> responsible for border management.<\/p>\n\n\n\n

In this respect, the EBCG bears some resemblance with the European Public Prosecutor\u2019s Office (EPPO)<\/strong>, 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<\/a><\/em>).<\/p>\n\n\n\n

EBCG and EPPO represent a challenge for the Convention system<\/strong> 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<\/strong> (on this, see Bosphorus v. Ireland<\/a><\/em>, \u00a7 152), whereas the national components<\/strong> of EBCG and EPPO are. This results in a legal duality <\/strong>as regards the fundamental rights applicable to the actions which these two bodies undertake. Consequently, potential victims<\/strong> of these actions must base their claims on different sets of fundamental rights<\/strong>. Not only does this represent a heavier burden<\/strong> for these persons, it is also a challenge to legal certainty and legal coherence<\/strong>. The impact of the EPPO hybrid structure<\/strong> on the application of the Convention has been described in detail in No case to answer for the EPPO?<\/a><\/em>.<\/p>\n\n\n\n

WS and Others<\/em> is a perfect illustration of this duality<\/strong> and of the resulting increased complexity<\/strong>. Indeed, before going before the General Court with their claim against Frontex<\/strong> based only on EU law<\/strong>, the appellants had filed an application against Greece<\/strong> with the ECtHR, which gave rise to a friendly settlement<\/strong>, based on the sole Convention<\/strong> (\u00a7 35). In this connection, the CJEU also makes it clear that the non-contractual liability<\/strong> to be assumed by Frontex is under EU law only<\/strong> (\u00a7 127).<\/p>\n\n\n\n

From a Convention perspective, these hybrid constructions operating within the territory and jurisdiction of the Member States<\/strong> represent a new situation. It is no longer a Bosphorus-type scenario<\/strong> in which national authorities<\/strong> are the sole bodies responsible<\/strong> for applying EU law and thereby ensuring the full application of the Convention<\/strong> 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 \u201cpatchwork coverage\u201d<\/strong>, with gaps in the Convention\u2019s applicability<\/strong> 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<\/strong>. (Bosphorus v. Ireland<\/a><\/em>, \u00a7\u00a7 137 and 152).<\/p>\n\n\n\n

In the specific context of Europol<\/strong>, which is another hybrid entity, the CJEU even acknowledged a form of joint and several liability<\/strong> between Europol and a Member State, allowing a claim for compensation<\/strong> for a breach of the confidentiality of personal data to be brought in its entirety either before the EU courts or before the national courts<\/strong>, at the claimant\u2019s choice (Ko\u010dner v. Europol<\/a><\/em>).<\/p>\n\n\n\n

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

Moreover, this \u201cpatchwork coverage\u201d<\/strong> clashes with the principle according to which \u201cArticle 1 [of the Convention] \u2026 does not exclude any part of a Contracting Party’s \u2018jurisdiction\u2019<\/strong> from scrutiny under the Convention\u201d (Bosphorus v. Ireland<\/a><\/em>, \u00a7 153). With hybrid EU entities ensuring part of the law-enforcement in the Member States, part of what is taking place within the \u201cjurisdiction\u201d of the Member States now falls outside the scope of the Convention<\/strong> and is therefore no longer subject to the external scrutiny<\/strong> by the ECtHR.<\/p>\n\n\n\n

Yet, this external scrutiny<\/strong> by the ECtHR has always been seen as an essential component of an effective protection of fundamental rights<\/strong> in Europe. This is also why the European legislature in Art. 6(2) TEU<\/strong> 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<\/strong> 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<\/a>). In the meantime, however, the patchwork coverage will continue. It can therefore only be hoped that the optionality of the Convention<\/strong> in EU law will not.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,19],"tags":[],"class_list":["post-3512","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"de","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3512","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/comments?post=3512"}],"version-history":[{"count":7,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3512\/revisions"}],"predecessor-version":[{"id":3561,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3512\/revisions\/3561"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/media?parent=3512"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/categories?post=3512"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/tags?post=3512"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}