EU liability for damages arising from the use of push-back

https://orcid.org/10.63189/FCQV1980

The term ‘push-back’ is generally understood to refer to the practice of returning migrants to the country from whose territory they illegally crossed the border into the territory of the returning state, without allowing them to apply for international protection and without initiating return procedures against them.^[1] In Europe, this practice has been repeatedly assessed by the European Court of Human Rights (ECtHR) and has given rise to extensive case law. This is hardly surprising, given that the ECtHR is the primary mechanism for the protection of human rights in Europe, accessible to anyone (and not just to nationals of a State Party to the European Convention on Human Rights (ECHR)), provided that they have, even for a brief moment, been within the jurisdiction of a State Party to the ECHR.

However, the destination of irregular migration is not just any state party to the ECHR, but an EU Member State. Consequently, for some time now, there has been a noticeable increase in interest among irregular migrants in another judicial institution, namely the Court of Justice of the European Union (CJEU). In principle, the CJEU is not open to individuals and adjudicates disputes between states and EU institutions. An individual wishing to prompt the CJEU to rule on push-backs would have to bring one of the actions provided for in the Treaties or initiate proceedings before a national court (e.g. an administrative court) and make use of a request for a preliminary ruling (Article 267 TFEU). Since the very nature of push-backs involves silence on the part of national border authorities, it is extremely difficult (though not impossible^[2]) to elicit a preliminary ruling from a national court on the interpretation of this practice. In turn, actions are either unavailable to individuals (actions under Articles 258 and 259 TFEU for infringement of EU law), or the standing of individuals is significantly restricted (for example, actions under Articles 263 and 265 TFEU). An exception within the system of actions before the CJEU – which ensures individuals broad access to the CJEU – is the action for damages (Article 268 TFEU).^[3] Consequently, for some time now, it has become a tool that fits into the trend of challenging the state’s powers to protect its own external borders against illegal migration, including the use of push-backs. Recently, the Court of Justice (CJEU) heard appeals against judgments of the General Court in two cases in which persons returned under push-back operations sought – on the basis of Articles 268 and 340 TFEU – compensation from Frontex.^[4] Both cases are noteworthy for at least two reasons. Firstly, they concern Frontex’s liability for damages arising from its coordination of the activities of EU Member States’ border guards. Secondly, they raise the issue of subjecting one and the same case to two different international procedures.

The first case (C-679/23 P) was brought by a family of Syrian nationals who arrived on the island of Milos (Greece) in 2016 with a group of refugees. They were transferred to a Greek reception centre, where they declared their intention to apply for international protection. Six days later – following a joint return operation coordinated by Frontex – they were transferred to Turkey, where they were granted temporary protection. They subsequently lodged a complaint with Frontex, in which they claimed that they had been returned from Greece to Turkey as a result of a return operation conducted by Frontex. On 6 October 2020, Frontex provided the complainants with a final report and closed the procedure for examining their complaint.^[5] Case C-136/24 P concerned a Syrian national who, together with other refugees, travelled by boat from Turkey to the island of Samos in Greece to apply for asylum there. According to his account, after disembarking, they were intercepted by the local police and, on the same day, the Greek authorities sent him back out to sea, where the following day he was taken aboard a Turkish coastguard vessel, which took him into Turkish territory. He was placed in a detention centre in Turkey, where he was held for 10 days. A deportation order was then issued against him and his Syrian passport was confiscated.^[6]

What the two actions have in common is that they are based on the same legal grounds, namely Articles 268 and 340 TFEU. These provisions confer on the CJEU the power to hear actions for damages where the claim is based on the EU’s non-contractual liability. Both actions were brought against Frontex, and the applicants alleged that the Agency had caused them harm through conduct contrary to EU law, including a breach of fundamental rights in connection with Frontex’s coordination of return operations carried out by Member States. It is apparent from the facts of both actions that Frontex’s liability is, in fact, of a subsidiary nature. The Agency neither issued decisions to expel migrants from the territory of an EU Member State nor examined the substantive grounds for return decisions issued by national authorities. It has no competence to do so. Competence in the field of granting international protection and issuing return decisions lies with the Member States. Frontex, on the other hand, coordinated the activities of Member States regarding the return of irregular migrants. This fact alone would justify questioning the existence of a causal link between the use of push-back and the harm allegedly caused by Frontex to the applicants. Causal link is a constitutive prerequisite for a claim for damages.^[7] It follows from the case-law of the CJEU that this link must be direct and necessary; thus, the applicants’expulsion via push-back must be the direct (without any intermediate links) and decisive cause of the harm suffered by them. The General Court, hearing both cases at first instance, dismissed them precisely on the grounds of a lack of causal link.^[8] The General Court did not, however, share this view and, setting aside the judgments, instructed the General Court to examine in detail the issue of compliance with fundamental rights in return operations coordinated by Frontex. Of course, the fact that a claim for damages is upheld does not in itself necessitate the granting of international protection to migrants. Under the action provided for in Article 268 TFEU, the CJEU may only examine the conduct of an EU body from the perspective of compliance with EU law. However, it does have financial consequences for the EU. The realisation that, should they take measures aimed at protecting the border against irregular migration, they face huge financial penalties may have a chilling effect. The sums claimed from Frontex by the applicants are already staggering. In Case C-679/23 P, the claimant sought compensation for pecuniary and non-pecuniary damage amounting to approximately €136,000, whilst in Case C-136/24 P, the claimant valued the non-pecuniary damage suffered at a mere €500,000. Furthermore, judgments upholding the claims will have a significant impact on cooperation between Frontex and national border authorities, as well as on the potential liability of national border guards cooperating with Frontex. Member States may be discouraged from actively cooperating with Frontex.

Secondly, both cases demonstrate that applicants are highly adept at exploiting the various human rights protection mechanisms operating in Europe, and above all the loopholes in the system. It is a widely accepted principle of international human rights protection mechanisms that the same violation may be subject to only one protective procedure. Such a mechanism operates both at the ECtHR and the UN Human Rights Committee. One need only refer to Article 35(2)(b) of the ECHR, according to which the ECtHR will not examine an individual application if it is identical to a case already subject to another international procedure of investigation or adjudication, and the application does not contain new and substantial information. The applicants in Case C-679/23 P simultaneously lodged an application concerning the same facts with the ECtHR, directing it, however, not against Frontex (the EU does not have standing to be sued, as it has not yet acceded to the ECHR), but against Greece. Of course, it could be argued that the application lodged with the ECtHR concerned the conduct of Greek border guards, whereas the case before the EU courts concerned the activities of Frontex. The point is, however, that the same facts underlie both cases, namely the illegal entry into an EU Member State and the subsequent expulsion by means of push-back. In the proceedings before the ECtHR, the applicants reached a settlement with the Greek government, under which the Hellenic Republic paid them the substantial sum of €12,500 to each applicant (i.e. a total of €75,000), as well as €1,500 in respect of costs and expenses. The damage resulting from the push-back against the applicants was therefore remedied. However, the fact that the applicants received financial compensation was not taken into account in any way by the EU judicial authorities, even though it should have been decisive in determining the admissibility of the application. Otherwise, we will allow a situation in which EU citizens end up paying migrants twice for one and the same attempt to cross the border illegally.

In summary, the case law of the CJEU is opening the door to complaints from irregular migrants. However, unless the EU courts set clear limits on Frontex’s liability for actions taken in conjunction with Member States, we face a veritable flood of complaints brought by migrants. Every push-back will become the basis for financial claims, and the EU will pay compensation for actions over which it has no real influence. At the very least, where allegations of violations of fundamental rights are raised, the CJEU should review its previous case law and rigorously examine whether the applicants have previously exhausted other human rights protection mechanisms.

^[1] Baranowska, 2022, p. 10.

^[2] See, for example, X v Staatssecretaris van Justitie en Veiligheid,  C-392/22, judgment of the Court (Fourth Chamber) of 29 February 2024, ECLI:EU:C:2024:195.

^[3] Kellerbauer, Klamert, and Tomkin, (2024), p. 2457.

^[4] WS and Others v European Border and Coast Guard Agency (Frontex), C-679/23 P, judgment of the Court (Grand Chamber) of 18 December 2025, ECLI:EU:C:2025:976; Alaa Hamoudi v European Border and Coast Guard Agency (Frontex), C-136/24 P, judgment of the Court (Grand Chamber) of 18 December 2025, ECLI:EU:C:2025:977.

^[5] WS and Others v European Border and Coast Guard Agency (Frontex), C-679/23 P, judgment of the Court (Grand Chamber) of 18 December 2025, ECLI:EU:C:2025:976, paras 26–35.

^[6] Alaa Hamoudi v European Border and Coast Guard Agency (Frontex), C-136/24 P, judgment of the Court (Grand Chamber) of 18 December 2025, ECLI:EU:C:2025:977, para. 27.

^[7] Brasserie du pêcheur and Factortame, C-46/93 and C-48/93, judgments of the Court of Justice of 5 March 1996, EU:C:1996:79, para. 51.

^[8] Alaa Hamoudi v European Border and Coast Guard Agency (Frontex), T-136/22, judgment of the General Court of 10 March 2022, ECLI:EU:T:2023:821; WS and Others v European Border and Coast Guard Agency (Frontex), C-600/21, judgment of the General Court of 6 September 2023, ECLI:EU:T:2023:492).

References

Alaa Hamoudi v European Border and Coast Guard Agency (Frontex), C-136/24 P, judgment of the Court of Justice (Grand Chamber) of 18 December 2025, ECLI:EU:C:2025:977.

Baranowska, Grażyna. „Legalność i dopuszczalność procedury push-back (wywózek) i ocena prób ich legalizowania w Polsce.”  In: Poza prawem. Prawna ocena działań państwa polskiego w reakcji na kryzys humanitarny na granicy polsko-białoruskiej, edited by Klaus, Witold. Wydawnictwo INP PAN, 2022.

Brasserie du pêcheur and Factortame, C-46/93 and C-48/93, judgments of the Court of Justice of 5 March 1996, EU:C:1996:79.

Kellerbauer, Manuel; Klamert, Marcus and Jonathan Tomkin (eds). „The Court of Justice of the European Union.”In Kellerbauer, Manuel; Klamert, Marcus and Tomkin Jonathan (eds), The EU Treaties and Charter of Fundamental Rights: A Commentary, 2nd Edition. Oxford University Press, 20204, https://doi-org.peacepalace.idm.oclc.org/10.1093/law/9780198913689.003.0449.

WS and Others v European Border and Coast Guard Agency (Frontex), C-679/23 P, judgment of the Court of Justice (Grand Chamber) of 18 December 2025, ECLI:EU:C:2025:976.

X v Staatssecretaris van Justitie en Veiligheid,  C-392/22, judgment of the Court of Justice (Fourth Chamber) of 29 February 2024, ECLI:EU:C:2024:195.