GLJ Short: Holding EASO and Frontex Accountable
Channel: German Law Journal
Date: 2020-10-07

EU agencies have an ever increasing role in the EU asylum system – raising the question how they can be held accountable. EASO is supposed to only support Greek authorities in the asylum procedure, but in fact determines the decision. Meanwhile, Frontex is charge of highly human-rights sensitive border operations. For both agencies, accountability gaps are notorious. Do extrajudicial mechanisms, such as the European Ombudsman, or mechanisms not designed for human rights claims, such as the action for damages, provide avenues to hold them accountable?


In this GLJ Shorts episode, Melanie Fink and Lilian Tsourdi present their articles  "Holding the European Asylum Support Office Accountable for its role in Asylum Decision-Making: Mission Impossible?" and "The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable." Both articles appeared in the Special Issue "Border Justice: Migration and Accountability for Human Rights Violations" in GLJ vol. 21:3 in April 2020. Interview by German Law Journal editor Nora Markard, editing by Marlene Stiller.

Evangelia (Lilian) Tsourdi: Holding the European Asylum Support Office Accountable for its role in Asylum Decision-Making: Mission Impossible?, German Law Journal 21:3 (2020): https://doi.org/10.1017/glj.2020.21


Melanie Fink, The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable, German Law Journal 21:3 (2020), https://doi.org/10.1017/glj.2020.20


Table of Contents of the Special Issue "Border Justice: Migration and Accountability for Human Rights Violations": https://www.cambridge.org/core/journals/german-law-journal/issue/border-justice-migration-and-accountability-for-human-rights-violations/053BC7BB84671FEFEFA74A7B6B3C7A7A

Abstract Lilian Tsourdi:
The Common European Asylum System (CEAS) seeks to harmonize national asylum procedures. The initial implementation design of the CEAS, reflective of the theory of executive federalism, foresaw that national authorities were to conduct asylum processing and implement the harmonized norms. The implementation design of the EU asylum policy has, nevertheless, started to shift. An integrated European administration is emerging. One area this is pronounced in is asylum decision-making, where patterns of joint implementation have surfaced. This term broadly refers to staff and experts deployed by the European Asylum Support Office (EASO), an EU agency, working alongside national administrators, including on the processing of asylum claims. This Article scrutinizes the emergence of joint implementation patterns in EU asylum policy and the resulting accountability challenge, drawing both from legal analysis and political science theories. I also refer to administrative practice as documented in secondary sources. EASO is currently subject to a mosaic of accountability processes. Two main pitfalls emerge: the intricate balance between accountability and independence; and accessibility for the individual. Against this backdrop, I focus on extra-judicial accountability through the European Ombudsman which, combined with the envisaged internal “individual complaints mechanism” within EASO, could go some way in ensuring applicants’ procedural rights.

Abstract Melanie Fink:
Frontex has become one of the major players in European external border management. As its powers and resources have increased, so have the challenges surrounding its compliance with fundamental rights. A major concern continues to be how to ensure legal accountability for fundamental rights violations that occur in the context of its activities. While Member States can be held accountable before their own national courts and before international courts, neither of these options are available in relation to Frontex. But it can be brought before the Court of Justice of the European Union to account for the conformity of its conduct with EU law. This Article explores the potential of the EU action for damages to offer a remedy for fundamental rights violations committed by Frontex. It identifies where public liability law falls short of providing a remedy for fundamental rights violations committed by EU bodies, explores the possibilities to close that gap, and assesses the implications this has for Frontex’s liability. The Article argues that the action for damages may be the means to close the accountability gap in the specific case of Frontex, but also more generally in circumstances where EU administration is delivered in the form of informal or factual conduct. If it is to fulfill that role, the CJEU would have to lower the threshold for EU liability where fundamental rights are concerned.

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