62023CJ0679_RES
Case C‑679/23 P
WSandWTandWYandWZandYAandYB
v
European BorderandCoast Guard Agency
Judgment of the Court (Grand Chamber) of 18 December 2025
(Appeal – Common policy on asylum and immigration – Regulation (EU) 2016/1624 – European integrated border management of the external borders of the European Union – European Border and Coast Guard – European Border and Coast Guard Agency (Frontex) – Frontex’s obligations to protect fundamental rights – Joint return operation coordinated by Frontex – Frontex’s non-contractual liability – Causal link between the breach of such obligations and the damage suffered)
Border controls, asylum and immigration – Asylum policy – European integrated border management of the external borders of the European Union – Regulation 2016/1624 – Obligations imposed on the European Border and Coast Guard Agency (Frontex) when coordinating joint return operations – Scope – Verification of whether there are enforceable return decisions for the persons included in a return operation
(Charter of Fundamental Rights of the European Union, Art. 51(1); Regulation of the European Parliament and of the Council 2016/1624, Arts 2(12) and (14), 3, 16(2) and (3), 22(1) and (3)(b), 27(1) and (2), 28(1) and 34(1) and (2); European Parliament and Council Directive 2008/115, Arts 6(1) and 12(1))
(see paragraphs 95-103)
Non-contractual liability – Conditions – Causal link – Damage suffered following the failure of the European Border and Coast Guard Agency (Frontex) to comply with the obligations imposed on it under Regulation 2016/1624 – Causal link between the breach of such obligations and the damage suffered – Criteria for assessment
(European Parliament and Council Regulation 2016/1624)
(see paragraphs 110-112, 149-153)
Border controls, asylum and immigration – Asylum policy – European integrated border management of the external borders of the European Union – Regulation 2016/1624 – Obligations imposed on the European Border and Coast Guard Agency (Frontex) when coordinating joint return operations – Obligations relating to the protection of fundamental rights – Scope
(European Parliament and Council Regulation 2016/1624, Arts 16, 20(1), 21(2), 28(1) and 29(4); European Parliament and Council Directive 2008/115, Art. 8(6))
(see paragraphs 130-133)
Non-contractual liability – Conditions – Causal link – Damage suffered following the failure of the European Border and Coast Guard Agency (Frontex) to comply with the obligations imposed on it under Regulation 2016/1624 – Break of the direct causal link resulting from the applicant’s own choice – Assessment of actual situation – Criteria
(Art. 340, second para., TFEU)
(see paragraphs 148-161)
Non-contractual liability – Conditions – Causal link – Damage consisting of the costs relating to the pre-litigation proceedings before the officer of the European Border and Coast Guard Agency (Frontex) – Costs arising from the free choice of the applicant – Causal link between the damage and the conduct of Frontex staff – Criteria for assessment – Features of the procedure concerned
(Charter of Fundamental Rights of the European Union, Art. 47, second para.; European Parliament and Council Regulation 2016/1624, recital 50 and Art. 72)
(see paragraphs 168-173)
Résumé
By its judgment, the Court of Justice, sitting as the Grand Chamber, partially upholds the appeal brought by WS and Others (‘the appellants’) against the judgment of the General Court in the case WS and Others v Frontex, (
1
) by which it rejected their claim for compensation for the damage allegedly suffered by them following the failure of the European Border and Coast Guard Agency (‘Frontex’) to comply with its obligations pursuant, inter alia, to Regulation 2016/1624. (
2
) On that occasion, it provides clarifications as to the obligations imposed by that regulation on Frontex, in the context of the coordination of joint return operations, as well as the consequences, for the non-contractual liability of that agency, of failure to comply with those obligations and any consequent breaches of fundamental rights during such return operations.
The appellants are a family of six Syrian nationals, of Kurdish ethnicity, who arrived on the island of Milos (Greece) on 9 October 2016 amongst a group of refugees. On 20 October, following a joint return operation carried out by the Hellenic Republic and coordinated by Frontex, they were transferred to a temporary reception centre in Türkiye. In November 2016, the Turkish authorities issued them with temporary protection documents and a temporary travel permit. After moving to Saruj (Türkiye), the appellants then moved to Iraq to settle in Erbil, for fear of being returned by the Turkish authorities to Syria.
In 2017, the appellants lodged an initial complaint with the Frontex Fundamental Rights Officer submitting that they had been returned from Greece to Türkiye as a result of the return operation carried out by Frontex. Then, in 2018, they lodged a second complaint concerning the handling of the initial complaint. Declared inadmissible, those complaints were forwarded to the Hellenic police authorities. In 2019, the Officer informed the appellants of the closure by those authorities of the internal investigation concerning the initial complaint, forwarded to them his final report on those complaints and closed the procedure dealing with them.
On 20 September 2021, the appellants brought an action for damages before the General Court seeking compensation for the material and non-material damage which they claimed to have suffered as a result of Frontex’s alleged unlawful conduct before, during and after the joint return operation.
In the judgment under appeal, the General Court first of all held that certain documents produced by the appellants were inadmissible because they were submitted out of time without justification. As regards the substance, after finding that the conditions for the European Union to incur non-contractual liability were cumulative, (
3
) it decided to examine in the first place the condition relating to whether there was a causal link between the conduct alleged against Frontex and the alleged damage. Thus, it held that the expenses incurred by the appellants to travel to Greece could not be a direct consequence of the conduct of which Frontex is accused since they pre-dated the return operation at issue. Next, it held that Frontex’s task within the framework of the return operation at issue was only to provide technical and operational support to the Member States and not to enter into the merits of decisions to return the persons included in that operation, those decisions, as well as those relating to the granting of international protection, being taken on the basis of an assessment which is within the sole competence of the Member States. Lastly, after examining the arguments relating to the material and non-material damage that they claimed to have suffered during and after the return operation at issue, the General Court held that the appellants had not adduced evidence of a sufficiently direct causal link between the conduct of which Frontex was accused and the damage alleged, and, consequently, dismissed the action for damages in its entirety.
In support of the appeal against that judgment, the appellants submit, inter alia, that the General Court wrongly held, first, that Frontex was not under an obligation to ensure that there was a written return decision and, secondly, that there was no direct causal link between the conduct of which Frontex was accused and the alleged damage and that that link had been broken by their own ‘choices’.
Findings of the Court
First of all, as regards the specific obligations imposed on Frontex by Regulation 2016/1624, the Court observes that, pursuant to that regulation, that agency is under a set of obligations intended to ensure respect for fundamental rights in the context of joint return operations that it coordinates. Those obligations arise, first, from the general obligation of the European Border and Coast Guard, of which Frontex is a component, to ensure the protection of fundamental rights in the performance of that body’s tasks under that regulation and, secondly, from Frontex’s obligation to monitor effectively respect for fundamental rights in all its activities.
Therefore, the Court rules, the General Court erred in law in finding that Frontex was not under any obligation as regards the verification of the existence of individual enforceable return decisions adopted in respect of persons covered by a joint return operation coordinated by that agency, on the ground that its task consists solely in providing technical and operational support to the Member States, without having the power to consider the merits of those return decisions. The Court states in that respect that the verification of the existence of such decisions is unconnected with any examination of their merits and therefore does not encroach on the exclusive competence of the Member States in the area under Article 6(1) of Directive 2008/115. Accordingly, Frontex is obliged to verify whether there are individual enforceable return decisions, which, in accordance with Article 12(1) of Directive 2008/115, must be given in writing, 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 Regulation 2016/1624 and with the fundamental rights of the persons concerned, and in particular the principle of non-refoulement.
In those circumstances, and having regard to the principle of sincere cooperation, (
4
) the General Court also erred in law in its assessment that any causal link between the conduct of which Frontex is accused and the damage alleged by the appellants should be rejected on the ground that that agency does not assume any obligation to verify the existence of a return decision concerning the persons included in a joint return operation coordinated by that agency.
However, contrary to the appellants’ submission, the fact that Frontex is under a verification obligation in that respect does not mean that there is necessarily a causal link between a possible infringement of that obligation and all or part of the damage alleged by the appellants. It is true that the existence of such a causal link must be examined in the light of that verification obligation and the other obligations imposed on Frontex in order to ensure compliance with the requirements flowing from Regulation 2016/1624 and the fundamental rights of the persons concerned. That examination must however be undertaken taking account of all the relevant facts (
5
) and the legal assessments required.
Next, as regards liability for any infringements of fundamental rights committed during a return flight, the Court finds that the General Court was wrong to hold that liability for such infringements rested solely with the host Member State, to the exclusion of any liability on the part of Frontex. Taking into account the obligations imposed on Frontex pursuant to Regulation 2016/1624, it cannot 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, to the detriment of the persons being removed. It is irrelevant in that regard that, in accordance with Directive 2008/115 (
6
) and as recalled in Regulation 2016/1624, (
7
) the monitoring of forced returns is a matter for the Member States. Under that regulation, the assistance provided by Frontex or the coordination or organisation it ensures for joint return operations must be provided in accordance with that directive and Frontex is under monitoring obligations additional to those of the Member States.
Furthermore, in so far as Frontex staff participate or may participate in such operations, whether as coordinating officers or as experts deployed in the context of those operations, it cannot be excluded a priori that wrongful acts or omissions on the part of those members of staff may have a causal link with the occurrence of such infringements.
Finally, referring to its case-law on the direct nature of a causal link between the conduct complained of and the alleged damage, which is necessary for the European Union’s non-contractual liability to be incurred, the Court held that the General Court did not err in law, first, in finding that the fact that the conduct complained of constituted a necessary condition for the damage arising, which would not have arisen in the absence of that conduct, is not sufficient to establish a causal link and, secondly, in examining the possibility, in the present case, that the causal link between the conduct of which Frontex is accused and the damage concerned had been broken by certain acts of the appellants.
However, the Court states that such an examination must necessarily be carried out in concreto, taking into consideration all the relevant circumstances characterising the situation of the adversely affected person. In respect in particular of family members who have fled their country of origin in search of international protection and are faced with exceptional circumstances and unforeseeable risks, account must be taken of the fact that asylum seekers may be particularly vulnerable by reason of their migration and the traumatic experiences they could have endured, and that vulnerability could affect their judgment. In such an exceptional situation, the causal link between the conduct complained of and the alleged damage may remain unbroken despite a decision of the adversely affected person taken at a time between that conduct and that damage. That decision may be regarded as a reasonable response having regard to all the circumstances characterising that situation.
Consequently, the General Court erred in finding that the appellants’ choices, relating to their temporary residence in Türkiye, their flight to Iraq and their residence in Iraq, had broken any sufficiently direct causal link between the conduct of which Frontex is accused and the alleged damage, without having carried out an assessment in concreto of the reasonableness of those choices in the light of all the circumstances which characterised the specific context in which those choices were made.
Accordingly, the Court decides partially to set aside the judgment under appeal (
8
) and, not being in a position to rule on the substance as the General Court had not ruled on the majority of the appellants’ pleas, refers the case back to the General Court.
(
1
)	Judgment of 6 September 2023, WS and Others v Frontex (T‑600/21, EU:T:2023:492; ‘the judgment under appeal’).
(
2
)	Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ 2016 L 251, p. 1).
(
3
)	According to the Court’s settled case-law, the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties. If any one of those conditions is not satisfied, the action must be dismissed in its entirety, without it being necessary to consider the other conditions for non-contractual liability on the part of the European Union, and that the EU judicature is not required to examine those conditions in any particular order.
(
4
)	Laid down in Article 4(3) TEU and recalled in Article 9 of Regulation 2016/1624.
(
5
)	The determination of which falls to the General Court.
(
6
)	In accordance, in the present case, with Article 8(6) of Directive 2008/115.
(
7
)	Recalled in Article 29(4) thereof.
(
8
)	The judgment under appeal is set aside except in so far as, first, it dismisses as inadmissible certain documents lodged by the appellants, and, secondly, it finds that there is no causal link between the conduct alleged against Frontex and the damage alleged by the appellants in relation to the costs incurred in travelling to Greece.