Operational Collaboration Between CSDP Missions and FRONTEX: Would Responsibility for (Shared) Damages Be Possible When Fundamental Rights are at Stake?

Abstract

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Regulation 2019/1896 allows the European Border and Coast Guard Agency (FRONTEX) to adopt working arrangements with Common Security and Defence Policy missions (CSDP missions) on operational issues. Two such arrangements are in force: one with EUNAVFOR MED Irini and another with European Union Advisory Mission for Civilian Security Sector Reform Ukraine (EUAM Ukraine). These collaborations are expected to intensify, allowing for the exchange of information with third countries and joint training of the latter’s officers. However, there is a risk that this interaction may lead to violations of fundamental rights in multi-actor scenarios – with violations having already been documented in the framework of these CSDP missions and in FRONTEX joint operations at large. Against this background, this article takes as a starting point the action for damages under Article 340(2) TFEU as a tool to establish (shared) responsibility in these situations. It then analyses the likelihood of success of such actions brought against FRONTEX and these CSDP missions. Emphasis is placed on the attribution of harmful conduct to the defendants and the causal link that is required between their behaviour and the damage caused. The difficulty in determining causation is tackled by resorting to theories and principles found in the European Court of Human Rights’ (ECtHR)’ case-law and in European soft-law texts. Moreover, the right to an effective remedy in such concerted actions causing indivisible damage favours an interpretation that allows for joint and several responsibility. All this supports the need for the Court of Justice of the European Union (CJEU) to apply a tailor-made approach when assessing these claims, considering the particularities of multi-actor scenarios where violations of EU fundamental rights are at stake.