62024CJ0136_RES
Case C‑136/24 P
Alaa Hamoudi
against
European Border and Coast Guard Agency
Judgment of the Court (Grand Chamber) of 18 December 2025
(Appeal – Common policy on asylum and immigration – Regulation (EU) 2019/1896 – European integrated management of the European Union’s external borders – European Border and Coast Guard – European Border and Coast Guard Agency (Frontex) – Frontex’s obligations relating to the protection of fundamental rights – Practices of pushback to a third country in the Aegean Sea region – Non-contractual liability of Frontex – Actual and certain damage – Burden of proof – Effective judicial protection – Prima facie evidence – Duty of the General Court of the European Union to investigate the case)
Appeal – Grounds – Need for specific criticism of a point of the General Court’s reasoning – No need to indicate precisely the legal arguments supporting the grounds of appeal relied on – Inadmissibility
(Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2))
(see paragraphs 54, 55)
Appeal – Grounds – Rules on the burden of proof and the taking of evidence – Question of law
(Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.)
(see paragraph 60)
Non-contractual liability – Conditions – Unlawfulness – Damage – Existence and extent of the damage – Burden of proof
(Art. 340, second para., TFEU)
(see paragraph 71)
EU law – Values and objectives of the European Union – Values – Respect for the rule of law – Scope – Effective judicial review – Right to an effective remedy – Actions for damages – Assessment having regard to the whole of the system of judicial protection of the individual
(Art. 2 TEU; Art. 256(1), 268 and 340, second and third paras, TFEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 72-75)
EU law – Principles – Right to effective judicial protection – Burden and administration of proof – Rights conferred on individuals by EU law – Duty of the General Court not to undermine the effectiveness of the judicial protection – Respect for the principle of equality of arms and the principle audi alteram partem – Obligation to ensure full respect for the right to an effective remedy
(Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 77, 78)
Judicial proceedings – Measures of inquiry – Request for production of documents – Discretion of the EU judicature – Limits – Obligation to ensure full compliance with the requirements stemming from the right to an effective remedy – Scope – Rules on the burden of proof and the taking of evidence which do not make it possible to guarantee effective judicial protection – Obligation of the EU judicature to supplement the information available
(Charter of Fundamental Rights of the European Union, Art. 47; Rules of Procedure of the General Court, Arts 88, 89 and 91)
(see paragraphs 79, 80-83)
Appeal – Grounds – Review by the Court of the General Court’s refusal to order measures of inquiry – Review by the Court of the General Court’s assessment of the need to provide additional information – Presumed victims of a pushback operation – Assessment by the General Court of whether there is conclusive proof rather than prima facie evidence – Error of law – Setting aside of the order under appeal
(Art. 256 TFEU)
(see paragraphs 104-106, 110-112)
Appeal – Grounds – Review by the Court of the General Court’s refusal to order measures of inquiry – Review by the Court of the General Court’s assessment of the need to provide additional information – Evidence – Probative value – Evidence sufficient to provide prima facie evidence – Assessment by the EU judicature – Respect for the principle of the unfettered assessment of evidence – Witness evidence of an applicant dismissed as having little probative value – Failure to take into account all the evidence submitted – Error of law
(Art. 256 TFEU)
(see paragraphs 115-117, 119, 123, 152)
Appeal – Grounds – Review by the Court of the General Court’s refusal to order measures of inquiry – Review by the Court of the General Court’s assessment of the need to provide additional information – Evidence – Evidence sufficient to provide prima facie evidence – Refusal by the EU judicature to take further steps in the proceedings and investigate the case prior to ruling on it – Infringement of Article 47 of the Charter of Fundamental Rights – Error of law
(Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 130-132, 147, 148, 150)
Résumé
In upholding the appeal brought by Mr Alaa Hamoudi, a Syrian national (‘the appellant’), against the order of the General Court of 13 December 2023, (
1
) the Court of Justice, sitting as the Grand Chamber, clarifies, in the light of the obligation to ensure effective judicial protection, the applicable standard of proof and the duties of the General Court in investigating a case where a refugee claims to have been a victim of a pushback operation in which the European Border and Coast Guard Agency (Frontex) was allegedly involved and brings, for that reason, an action for damages against that agency.
By the order under appeal, the General Court dismissed the appellant’s action (
2
) seeking compensation for the damage he claims to have suffered following the infringement, by Frontex, of certain rights enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’) (
3
) and certain obligations which Regulation 2019/1896 (
4
) imposes on that agency. That infringement, he claims, occurred in the context of Frontex operations in the Aegean Sea, and more specifically during an alleged operation involving refoulement from EU territory to Türkiye carried out by the Greek authorities (‘the pushback operation’). During that operation, the appellant, together with other persons who had fled their third countries of origin, was allegedly sent back out to sea only a few hours after his arrival on a Greek island, without having had the opportunity to lodge an application for international protection.
In the proceedings at first instance, the appellant relied on several pieces of evidence to prove that he was present during that operation, namely his own witness statement, a media article published on the internet and two videos included therein and four photographs. In addition, he had requested on several occasions that the General Court adopt measures of organisation of procedure or measures of inquiry, in particular for the purpose of having Frontex produce certain documents in its possession capable of supporting the appellant’s action.
Finding that the evidence submitted by the appellant was insufficient to demonstrate conclusively that he was present during the pushback operation and, accordingly, the fact of the damage alleged, the General Court dismissed the action as manifestly lacking any foundation in law.
In support of his appeal, the appellant claims in particular that the General Court infringed the principles governing the burden of proof by imposing requirements in that regard which are difficult, or even impossible, to meet in the context of pushback operations.
More specifically, he submits that the General Court erred in law by failing to have regard to the need to adapt the burden of proof and by failing to act on his requests that it order Frontex to produce certain documents, given the specific circumstances of the action for non-contractual liability against Frontex for damage he claims to have suffered in the light of the alleged infringements of Regulation 2019/1896 and of the Charter as a result of the alleged pushback.
Findings of the Court
In its judgment, the Court of Justice determines in particular whether the General Court failed to meet its obligation to adapt the rules on the burden of proof and the taking of evidence for the purpose of ensuring effective judicial protection for the appellant.
As a preliminary point, the Court of Justice recalls, first, that, while Frontex and the national authorities responsible for border management have a shared responsibility in respect of the integrated management of the external borders of the European Union, Frontex is fully responsible and accountable for any decision it takes and for any activity for which it is solely responsible under Regulation 2019/1896. In the case of non-contractual liability, Article 97(4) of that regulation and the second paragraph of Article 340 TFEU to which it gives concrete expression provide that Frontex is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its departments or by its staff in the performance of their duties.
The Court of Justice observes that it is apparent from its case-law that the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, in particular the condition relating to actual damage which requires that the damage for which compensation is sought be real and certain. If any one of those conditions is not satisfied, the action must be dismissed in its entirety.
Next, the Court of Justice deals with the rules on the burden of proof and the taking of evidence in relation to the European Union incurring non-contractual liability. It recalls that it is the party seeking to establish that liability which must show that the relevant conditions have been satisfied. Accordingly, that party must, in particular, prove the existence and the extent of the damage it alleges. To that end, that party may rely on any form of evidence in accordance with the principle of the unfettered production of evidence.
However, when exercising the jurisdiction conferred on the General Court and on the Court of Justice (
5
) to hear and determine disputes relating to compensation for damage provided for in the second paragraph of Article 340 TFEU, the EU judicature must guarantee the effective judicial protection of individuals.
An action for damages must be assessed having regard to the whole of the system established by the treaties for the judicial protection of the individual and contribute to the effectiveness of that protection. The Court of Justice clarifies in that regard that the principle of effective judicial protection follows from both Article 2 TEU and Article 47 of the Charter, and that the application of the rules relating to the burden of proof and the taking of evidence cannot undermine the effectiveness of the judicial protection of the rights which are conferred on individuals by EU law. The General Court cannot, therefore, impose a burden of proof which is excessive, if not impossible, to discharge or call into question the principle of equality of arms, but must ensure full respect for the right to an effective remedy by taking into account the particular circumstances of the case which it is to hear and determine, adapting the rules on the burden of proof and the taking of evidence where necessary.
Lastly, the Court of Justice recalls that the General Court has been granted powers for the purpose of preparing the cases before it for hearing and investigating them, which enables it to, inter alia, adopt measures of organisation of procedure and measures of inquiry. Accordingly, the General Court may require parties to produce all documents and to supply all information which it considers necessary.
While it is for the General Court to decide on the need to make use of those powers, that decision must be taken in full compliance with the requirements stemming from Article 47 of the Charter. Accordingly, in exceptional cases where the application of the rules on the burden of proof and the taking of evidence do not make it possible to guarantee the effective judicial protection of an applicant, the General Court must exercise those powers to supplement the information it possesses in the case pending before it, provided that the applicant has produced a minimum of information indicating the utility of it intervening in that way. Thus, the General Court may not simply dismiss claims made by the appellant on the ground of insufficient evidence, when it is that court that has the power, in particular by granting a request of the appellant, to order measures of inquiry, such as the production of documents, to remove any uncertainty there might be as to the correctness of those claims.
The Court of Justice finds that it must, in the context of an appeal calling into question the General Court’s application of the rules on the burden of proof and the taking of evidence, ascertain whether that court met its obligations in full compliance with the requirements stemming from Article 47 of the Charter.
In that regard, the Court of Justice observes, in the first place, that a pushback operation, such as the one in question in the case under appeal, is characterised by the significant vulnerability of the persons subject to it and by the absence of the identification and personalised treatment of those persons by the authorities. In addition, those persons are, at the time of the facts, in a position which makes it very difficult for them to collect evidence for the purpose of proving such facts, or even excludes any possibility of their doing so at all. By contrast, given its tasks laid down by Regulation 2019/1896, Frontex is, in principle, likely to possess information that is relevant for the purpose of proving the existence of pushbacks.
In the light of those specific circumstances, among others, persons such as the appellant cannot be requested to adduce conclusive proof that that operation occurred and that they were present during it. Failure to adapt the burden of proof might hinder all legal action by victims of a pushback operation against Frontex on the basis of alleged unlawful conduct by that agency, granting the latter de facto immunity and thus jeopardising the effective protection of the fundamental rights of those victims. Accordingly, full respect for the right to an effective remedy, as guaranteed by Article 47 of the Charter and by the European Convention on Human Rights as interpreted by the European Court of Human Rights, requires that it be sufficient for those persons to present prima facie evidence that that operation, in which Frontex participated, occurred and that they were present during it. The General Court thus erred in law by finding that it was necessary to assess whether the appellant had adduced conclusive proof of his presence during that operation. That error of law necessarily vitiated its findings regarding the evidence produced by the appellant since its assessment was carried out in the light of a standard of proof that was too high, without full respect for the right to an effective remedy.
In the second place, the Court of Justice examines, on the basis of the General Court’s findings, whether the appellant provided such prima facie evidence. It recalls that the corollary of the principle of the unfettered production of evidence is the principle of the unfettered assessment of evidence under which the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility.
As regards, in particular, the assessment of the probative value of the appellant’s witness statement, the Court of Justice finds that such an assessment requires that the credibility and the plausibility of the information that the witness statement contains be established. In particular, the witness evidence of an applicant cannot be dismissed as having little probative value without account being taken of all the evidence submitted in a specific case. Accordingly, to find, as the General Court did, that, as a general rule, an applicant’s own witness evidence has little probative value constitutes an error in law. In addition, it is apparent from the findings of the General Court that the appellant’s witness statement was sufficiently detailed, specific and consistent to constitute prima facie evidence that he was, in fact, a victim of a pushback operation, which is also supported by other evidence produced by the appellant, inter alia a media article, which forms a body of consistent evidence.
In the third place, the Court of Justice finds that, where an applicant provides prima facie evidence that he or she has been a victim of a pushback and complains of Frontex’s involvement in that pushback, the General Court is required to take further steps in the proceedings and investigate the case before it in order to assess, on the basis of all of the information at its disposal, the truth of that circumstance. If it is concluded that that prima facie evidence has not been rebutted during a hearing of the appellant as a witness or by evidence and arguments presented by the other parties to that case in their pleadings or even by other possible evidence obtained in the course of its investigation of the case, that circumstance must be deemed to have been proved.
In particular, the General Court was required, in the present case, to adopt measures of organisation of procedure or measures of inquiry to obtain, from Frontex, all relevant information at its disposal with a view to clarifying the facts of the pushback operation in question and to enable it to have sufficient information on the basis of which to assess whether the appellant’s action was well founded, and to guarantee the effective judicial protection of the latter’s rights. It therefore erred in law by rejecting the appellant’s requests.
In the light of the foregoing, the Court of Justice concludes that the order under appeal must be set aside and the case referred back to the General Court.
(
1
)	Order of 13 December 2023, Hamoudi v Frontex (T‑136/22, EU:T:2023:821; ‘the order under appeal’).
(
2
)	Action under Article 268 TFEU according to which ‘the Court of Justice of the European Union shall have jurisdiction in disputes relating to compensation for damage provided for in the second and third paragraphs of Article 340’ and under Article 340 TFEU, the second paragraph of which provides that ‘in the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’.
(
3
)	Articles 1, 2, 3, 4, 6, 18, 19 and 21.
(
4
)	Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ 2019 L 295, p. 1). The alleged violation concerns, in particular, Article 46(4) and (5) thereof.
(
5
)	Article 268 TFEU, read in conjunction with Article 256(1) TFEU.