ORDER OF THE GENERAL COURT (Seventh Chamber)
13 December 2023 (*)
(Non-contractual liability – Regulation (EU) 2019/1896 – Frontex’s obligations relating to the protection of fundamental rights – Actual and certain damage – Action manifestly lacking any foundation in law)
In Case T‑136/22,
Alaa Hamoudi, residing in Türkiye, represented by F. Gatta, lawyer,
applicant,
v
European Border and Coast Guard Agency (Frontex), represented by H. Caniard, W. Szmidt and R.-A. Popa, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, E. Buttigieg and I. Dimitrakopoulos (Rapporteur), Judges,
Registrar: V. Di Bucci,
makes the following
Order
1 By his action under Article 268 TFEU, the applicant, M. Alaa Hamoudi, seeks compensation for damage he claims to have suffered following alleged infringements of European Union law by the European Border and Coast Guard Agency (Frontex) regarding measures allegedly taken against him by the Greek authorities.
Background to the dispute
2 The applicant is a Syrian national. He claims that, on 28 April 2020, when he arrived from Türkiye by boat, he entered Greek territory, namely the island of Samos, with a group of other people in order to seek asylum. He states, moreover, that, after disembarking on that island, the local police intercepted him and the others and, that same day, the Greek authorities sent him back out to sea where, the day after, a vessel of the Turkish coast guard took him aboard and relocated him to Turkish territory (‘the alleged incident of 28 and 29 April 2020’).
3 Furthermore, the applicant claims that on 29 April 2020, during his time at sea, a private surveillance aeroplane, allegedly equipped with a camera and operated by Frontex, flew over the scene twice.
4 The applicant states that, following the alleged incident of 28 and 29 April 2020, he was transferred to a detention centre in Türkiye where he was detained for 10 days. He subsequently received an expulsion order and had his Syrian passport confiscated. Consequently, he was trapped in Türkiye without access to the asylum system, and lived as a clandestine under imminent threat of refoulement to Syria.
5 It is apparent from his written pleadings before the General Court that the applicant has, in the meantime, managed to enter the territory of the EU Member States and lodge an application for international protection in Germany.
On the legal background
6 Article 1 of 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), provides that ‘this Regulation establishes a European Border and Coast Guard to ensure European integrated border management at the external borders with a view to managing those borders efficiently in full compliance with fundamental rights and to increasing the efficiency of the Union return policy’ and ‘addresses migratory challenges and potential future challenges and threats at the external borders’. Furthermore, ‘it ensures a high level of internal security within the Union in full respect of fundamental rights, while safeguarding the free movement of persons within the Union [and] contributes to the detection, prevention and combating of cross-border crime at the external borders’.
7 Article 37(1) of Regulation 2019/1896 provides that a Member State may request that Frontex launch joint operations to face upcoming challenges, including illegal immigration, present or future threats at its external borders or cross-border crime, or provide increased technical and operational assistance when implementing its obligations with regard to external border control. Moreover, Article 37(2) of that regulation provides that, at the request of a Member State faced with a situation of specific and disproportionate challenges, especially the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of that Member State without authorisation, Frontex may deploy a rapid border intervention for a limited period of time on the territory of that host Member State.
8 Article 46 of Regulation 2019/1896, entitled ‘Decisions to suspend, terminate or not launch activities’, lays down the conditions under which the executive director of Frontex may withdraw the financing of a Frontex activity, not launch an activity, suspend an activity or terminate it. Under paragraph 4 of that article, ‘the executive director shall, after consulting the fundamental rights officer and informing the Member State concerned, withdraw the financing for any activity by the Agency, or suspend or terminate any activity by the Agency, in whole or in part, if he or she considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist’. Moreover, under paragraph 5 of that article, ‘the executive director shall, after consulting the fundamental rights officer, decide not to launch any activity by the Agency where he or she considers that there would already be serious reasons at the beginning of the activity to suspend or terminate it because it could lead to violations of fundamental rights or international protection obligations of a serious nature. The executive director shall inform the Member State concerned of that decision’.
9 Under Article 80(1) of Regulation 2019/1896, the European Border and Coast Guard is to guarantee the protection of fundamental rights in the performance of its tasks under that regulation in accordance with relevant EU law, in particular the Charter of Fundamental Rights of the European Union (‘the Charter’), and relevant international law, including the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)) and the 1967 Protocol thereto, the Convention on the Rights of the Child and obligations related to access to international protection, in particular the principle of non-refoulement. For that purpose, Frontex, with the contribution of and subject to the endorsement by the fundamental rights officer, shall draw up, implement and further develop a fundamental rights strategy and action plan, including an effective mechanism for monitoring respect for fundamental rights in all its activities.
10 At the time of the alleged incident on 28 and 29 April 2020, two Frontex operational activities were ongoing in the geographical zone where the applicant claims it took place, namely the rapid border intervention in the Aegean Sea and joint operation ‘Poseidon’.
Forms of order sought
11 The applicant claims, in essence, that the Court should order Frontex to pay him a sum of EUR 500 000 in compensation for the two components of the non-material damage he allegedly suffered.
12 Frontex contends, in essence, that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
13 Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may decide to give a ruling by reasoned order without taking further steps in the proceedings.
14 In the present case, the Court, taking the view that is has sufficient information from the documents in the file, has decided to give a decision without taking further steps in the proceedings, notwithstanding the applicant’s request that a hearing be held (see, to that effect, order of 8 November 2021, Satabank v ECB, T‑494/20, not published, EU:T:2021:797, paragraph 14 and the case-law cited).
15 First of all, in support of the action, the applicant claims, in essence, that Frontex engaged in unlawful conduct relating to the alleged incident of 28 and 29 April 2020. According to him, by its actions and omissions, Frontex seriously failed to comply with its obligations under Articles 38, 46 and 80 of Regulation 2019/1896 and Articles 1, 2, 3, 4, 18, 21 and Article 19(1) and (2) of the Charter.
16 Next, as regards the damage allegedly suffered, the applicant claims that Frontex’s unlawful conduct caused him non-material damage composed of two aspects.
17 Lastly, the applicant submits that there is a sufficiently direct and certain causal link between Frontex’s conduct and the damage he suffered.
18 Frontex disputes the applicant’s arguments.
Conditions which must be met in order for the European Union to incur non-contractual liability
19 It should be recalled from the outset that, pursuant to the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the European Union, in accordance with the general principles common to the laws of the Member States, is to make good any damage caused by its institutions or by its servants in the performance of their duties.
20 It is settled case-law that in order for the European Union to incur non-contractual liability within the meaning of the second paragraph of Article 340 TFEU, on account of the unlawful conduct of one of its bodies, a number of conditions must be satisfied, namely, the alleged conduct of the institution must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage pleaded (see judgment of 26 January 2022, Leonardo v Frontex, T‑849/19, EU:T:2022:28, paragraph 46 and the case-law cited).
21 The abovementioned conditions apply mutatis mutandis to the non-contractual liability incurred by the European Union within the meaning of the second paragraph of Article 340 TFEU as a result of the unlawful conduct and damage caused by one of its agencies (see, to that effect, judgment of 17 February 2017, Novar v EUIPO, T‑726/14, EU:T:2017:99, paragraph 25 and the case-law cited), such as Frontex, which the latter must make good in accordance with Article 97(4) of Regulation 2019/1896. Article 97(4) of that regulation provides that, ‘in the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its staff in the performance of their duties, including those related to the use of executive powers’.
22 It should also be noted that, if any one of the conditions referred to in paragraph 20 is not satisfied, the action must be dismissed in its entirety without it being necessary to examine whether the other conditions are fulfilled (see judgment of 26 January 2022, Leonardo v Frontex, T‑849/19, EU:T:2022:28, paragraph 46 and the case-law cited).
23 Furthermore, the EU judicature is not required to examine those conditions in any particular order (see judgment of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 118 and the case-law cited).
24 In the circumstances of the present case, it is necessary to examine at the outset the condition relating to actual damage.
Actual damage
25 According to the applicant, the Frontex’s unlawful conduct caused him non-material damage composed of two different aspects, relating to the alleged incident of 28 and 29 April 2020.
26 The first aspect consists of damage the applicant claims to have suffered on the basis of the infringements, which occurred during and after the alleged incident, of the fundamental rights provided for by Articles 1, 2, 3, 4, 18, 21 and Article 19(1) and (2) of the Charter. The second aspect of the non-material damage allegedly suffered consists of the applicant’s feelings of injustice and frustration caused by the fact that the author or co-author of that alleged incident was an Agency of the European Union. As regards the evaluation of both aspects of his non-material damage, the applicant estimates them at EUR 250 000 each.
27 Frontex contends, in essence, that the applicant has not been able to demonstrate, to the requisite legal standard, that the alleged incident of 28 and 29 April 2020 involved either himself or airborne or seaborne assets operated or financed by Frontex. As regards the damage from the applicant’s feelings of injustice and frustration, the defendant submits, more specifically, that the applicant does not explain their nature.
28 It is settled case-law that, as regards the condition relating to actual damage, the European Union can be held liable only if the applicant has in fact suffered actual and certain damage (see judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 54 and the case-law cited).
29 Moreover, it is for the applicant to adduce conclusive proof as to the existence and extent of the damage it alleges (see judgment of 18 November 2021, Mahmoudian v Council, C‑681/19 P, not published, EU:C:2021:933, paragraph 28 and the case-law cited).
30 The existence of actual and certain damage cannot be considered in the abstract by the EU judicature but must be assessed in relation to the specific facts characterising each particular case in point (see judgment of 18 November 2021, Mahmoudian v Council, C‑681/19 P, not published, EU:C:2021:933, paragraph 32 and the case-law cited).
31 Furthermore, it should be observed that the prevailing principle under European Union law is that of the unfettered production of evidence, meaning that the parties have, in principle, the right to rely on any form of evidence in order to prove a particular fact (see judgment of 10 September 2020, Hamas v Council, C‑386/19 P, not published, EU:C:2020:691, paragraph 73 and the case-law cited). Correspondingly, the Courts of the European Union have laid down a principle of the unfettered assessment of evidence, according to which the determination of reliability or, in other words, the probative value of an item of evidence is a matter for those Courts (see, to that effect, judgment of 13 December 2018, Iran Insurance v Council, T‑558/15, EU:T:2018:945, paragraph 153 and the case-law cited).
32 In addition, in order to assess the evidential value of a document, it is necessary to take account of several factors, such as the origin of the document, the circumstances in which it was drawn up, the person to whom it was addressed and its content, and whether, according to those aspects, the information it contains appears sound and reliable (see judgment of 13 December 2018, Iran Insurance v Council, T‑558/15, EU:T:2018:945, paragraph 154 and the case-law cited).
33 As regards, more specifically, witness statements, their reliability and credibility must, in any event, be borne out by their clarity, precision and overall consistency; additional weight should also be given to them where, on most of the essential points, they are supported by other objective material in the file (see, to that effect, judgment of 16 March 2022, Sabra v Council, T‑249/20, EU:T:2022:140, paragraph 157 and the case-law cited). In general, the applicant’s own witness statement has little probative value (see, to that effect, judgments of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 259, and of 31 May 2018, Kaddour v Council, T‑461/16, EU:T:2018:316, paragraph 116).
34 Moreover, it should be noted that an article or journalistic report may only be deemed to be of evidential value as regards its objective content and that a mere unsubstantiated statement in such a document is not, in itself, conclusive (see, by analogy, judgment of 2 July 2019, Mahmoudian v Council, T‑406/15, EU:T:2019:468, paragraph 139 and the case-law cited).
35 In the light of those considerations, it should be examined whether the applicant has adduced evidence before the Court which establishes, to the requisite legal standard, the events relating to the alleged damage relied on in his application.
36 The applicant claims in his application that, on 28 April 2020, at around 7.30 a.m., 22 people, including himself, arrived on the island of Samos in Greece. They arrived on a beach next to mountains which they began to climb after leaving the boat. According to the applicant, once they reached the top of the mountain, he took photos and videos which he sent to an acquaintance of his in Austria. The group spent a few hours asking the residents to call the police. When the police officers arrived, they confiscated their phones and drove the group to the beach in a pickup truck where there was a small ship and a small boat. All the members of the group were subsequently brought on board a small orange boat which, according to the applicant, was a life raft without any means of propulsion. Once at sea, the group was forced to change boats twice more. According to the applicant, that push and pull continued overnight and into the afternoon of 29 April 2020, when the Turkish coast guard finally picked them up.
37 In order to substantiate those claims regarding his presence and involvement in the alleged incident of 28 and 29 April 2020, the applicant relies on the following evidence:
– in the first place, his own witness statement, included as Annex A.1 to the application;
– in the second place, a Bellingcat media article, published on 20 May 2020 on the internet (‘the Bellingcat article of 20 May 2020’) and, in particular, two YouTube videos included in that article. The application includes a hypertext link to the website featuring the article, in both its text and in Annex A.2;
– and, in the third place, four photographs, included as Annex A.2 to the application. Those photographs are colour screenshots taken from the videos featured in the Bellingcat article of 20 May 2020.
38 Frontex disputes the applicant’s claims. First of all, it states that it has neither been notified about an incident nor received any information linked to the alleged incident of 28 and 29 April 2020. It also submits that the burden of proof lies with the applicant regarding him being affected by the alleged incident and that he has not produced any conclusive evidence on that point in his application. In that regard, Frontex calls into question the probative value of the applicant’s witness statement and points out that he did not name any of the other 22 people allegedly concerned by the incident as witnesses. In addition, it submits that the applicant cannot be identified either in the photographs included as Annex A.2 to the application or in the videos in the Bellingcat article of 20 May 2020. It adds that the photographs are not dated and could, therefore, relate to any event occurring on any date. Furthermore, it observes that the applicant has never produced the photos and videos allegedly taken on the island of Samos before the Court. Lastly, as regards the links to the websites featuring the videos, it claims that it is not for Frontex or the Court to extract information from websites the content of which is not annexed to the application and that, therefore, that information is inadmissible.
39 In the present case, it must be held that the evidence produced by the applicant is manifestly insufficient to demonstrate conclusively that he was present at and involved in the alleged incident of 28 and 29 April 2020.
40 In the first place, as regards the applicant’s witness statement as annexed to his application, it should be noted that that document is a written declaration from him, dated 18 October 2021, which is to say more than a year and a half after the alleged incident of 28 and 29 April 2020, that was collected by the legal team of the assisting non-governmental organisation Front-lex, the applicant’s legal representative in this case. That witness statement, originating from the applicant himself, has little probative value, in accordance with the case-law referenced in paragraph 33 above.
41 It must also be observed that that witness statement contains several statements which are insufficiently specific regarding the essential points of fact. In response to the question of whether the applicant remembered the date on which he had undertaken the journey to Europe, he gave the following response in his witness statement: ‘I don’t really remember, but I think that it was [in] April’. Furthermore, as regards the description of the alleged incident of 28 and 29 April 2020, the applicant states, in the application, that he was part of a group of 22 people. However, none of those people are concretely identified in that witness statement and no witness statement from them has been provided to the Court.
42 In the second place, it should be observed that the applicant’s identity as a member of this group is not clearly and conclusively apparent from the other evidence produced before the Court.
43 First of all, the Bellingcat article of 20 May 2020 does not feature the applicant’s name or make any specific reference to him.
44 Next, as regards the four photographs provided as Annex A.2 to the application, as indicated in paragraph 37 above, those photographs are screenshots from the two YouTube videos, the graphical quality of which is quite poor.
45 In that regard, although the applicant maintains that he is ‘easily identifiable’ and ‘clearly recognisable’ in those screenshots, it must be held that the majority of the people featured therein are wearing hoodies, which cover their principal physical features, and are filmed from the back or the side, meaning that it is difficult to identify them. In each screenshot, a circle indicates that one specific person is supposedly the applicant. However, the person indicated is wearing a hoodie, which covers a large part of his or her head, and is not looking directly at the camera in any of the screenshots.
46 In the first two screenshots in Annex A.2 to the application, only the upper part of the face is visible (hairline, forehead, eyebrows and nose) because the person indicated has lowered his or her head. In the third screenshot, only a small part of the side of the face is visible because the indicated person is filmed from the side and none of his or her principal features are visible. In the fourth screenshot, only the back of the head of someone wearing a hoodie is indicated by a circle and none of that person’s features are visible.
47 Therefore, those screenshots do not allow for the identification of any specific person, the applicant in particular, even if they are compared to the page of his passport featuring his photograph, provided as Annex A.23 to the application.
48 It follows from the foregoing that, contrary to his claim, the applicant is not easily identifiable or clearly recognisable from the various screenshots. Therefore, that evidence does not demonstrate that the person indicated in the photos is the same person pictured in the applicant’s passport.
49 In the third place, it must be held that, as Frontex rightly stated, it is not possible to establish the date or the location of the events concerned by the screenshots, which calls into question their relevance and probative value (see, by analogy, judgment of 3 March 2011, Siemens and VA Tech Transmission & Distribution v Commission, T‑122/07 to T‑124/07, EU:T:2011:70, paragraphs 67 and 68).
50 In that regard, the applicant, in his application and in his reply, relies not only on his own witness statement, but also on the Bellingcat article of 20 May 2020, to which he refers by means of a link to the relevant website, cited in the application’s footnotes and in Annex A.2 to the application. That article includes images and links to two YouTube videos, which, according to the analysis presented in that article, relate to the alleged incident of 28 and 29 April 2020.
51 Frontex disputes the admissibility of that article as evidence, noting that the applicant has produced it before the Court by means of a link to the relevant website, without including its content in an annex. However, no provision of the Statute of the Court of Justice of the European Union or of the Rules of Procedure of the General Court provides, in a sufficiently clear and precise manner, that evidence must be presented as annexes to the parties’ written pleadings in order to be admissible, in such a way as to exclude the possibility of presenting them before the General Court by means of a link to a website. Consequently, and having regard to the principle of the unfettered production of evidence (see paragraph 31 above), the fact that the abovementioned article was presented to the Court by means of a link to a relevant website does not render it inadmissible and does not prevent the Court from assessing its content (see, to that effect, judgments of 14 July 2021, Moreno Pérez v Council, T‑246/18, not published, EU:T:2021:448, paragraph 103, and of 24 May 2023, Gusachenka v Council, T‑579/21, not published, EU:T:2023:285, paragraph 43 and 49 to 52).
52 However, its probative value cannot be presumed. That value depends on the objective content and especially on the concrete evidence on which it is based, in accordance with the considerations set out in paragraph 34 above.
53 The first video, on which the Bellingcat article of 20 May 2020 relies, is entitled ‘Turkish Coast Guard video of a maritime pushback’, lasts 2 minutes and 38 seconds and contains several sections which seem to have been compiled. According to Bellingcat, that video comes from the Turkish coast guard. Its first section shows the interior of a boat, including the instrument panel which displays the time, namely ‘10:16:11 UTC’, and some coordinates. The camera also focuses on several ships at sea, located at a distance. The following sections show ships at sea where, at some points, one of them is towing a raft. The last section shows several people on a small orange vessel at sea, who are being received by other individuals in a larger boat. The applicant claims, in his application, that he can be seen in that video being rescued at sea by the Turkish coast guard.
54 The second video, entitled ‘Footage of asylum seekers approaching and on Samos’, which comes, according to Bellingcat, from the social network Facebook, lasts 0 minutes and 54 seconds and is composed of two compiled sections. The first section shows a group of people on board a small white ship at sea and the second shows people on land who appear to be on a hill relatively far from the sea. According to the applicant, the first part of the first section of that video, filmed at sea, shows the group of which he claims to have been part on a rubber boat making its way towards the island of Samos. In the second part of the video filmed on the island, the applicant claims that he can be seen, with others, climbing a steep hill.
55 It should be observed that neither those videos nor the Bellingcat article of 20 May 2020 contain concrete evidence which establish the date, location, temporal and geographic continuity or scope of the events captured by those videos or the identity of the persons that appear therein. More specifically, as regards the geographical location of the second video, from which the first two screenshots provided as Annex A.2 come, the article at issue, first, refers to some geographical coordinates, allegedly sent by unidentified people who arrived on the island of Samos on 28 April 2020, and, secondly, compares the image of a mountain and rocky coast seen in one of the abovementioned videos with, respectively, a photo of a mountain obtained from a 3D model on Google Earth and a satellite image from Google Earth. However, that evidence is too imprecise to allow the Court to consider it as relevant and probative. The article in question does not contain any concrete information or any evidence concerning the sending of the geographical coordinates indicated therein. Moreover, the images compared are too blurred and are not supported by any evidence capable of demonstrating the accuracy of the claims relating thereto contained in the article at issue. In addition, the reproduction of a screenshot in that article illustrating the messages posted on the social network Facebook concerning, according to the explanations featured in that article, the arrival of asylum seekers on the island of Samos on 28 April 2020, has no probative value since it includes no evidence as to the date or source of their publication or any reference to the relevant location, identity or purpose of the people concerned.
56 It must also be borne in mind that the applicant has not produced witness statements from the people involved in the events presented in the Bellingcat article of 20 May 2020 before the Court or other evidence that would allow it to support its content with the exception of his own witness statement, the probative value of which is limited as stated above.
57 It follows that the evidence relied on by the applicant is not manifestly capable of demonstrating, to the requisite legal standard, the events relating to the alleged incident of 28 and 29 April 2020 which led to the alleged damage.
58 Having regard to the abovementioned findings and to the considerations set out in paragraph 33 above, it must be held that the arguments put forward by the applicant regarding the benefit of oral testimony from him do not allow the Court to hold that a possible hearing would allow him to discharge the burden of proof which lies with him regarding the events relating to the alleged damage, especially since he has already provided his written testimony.
59 Moreover, in the light of the considerations set out in paragraphs 47 and 48 above, the applicant’s argument that the photographs in the Court’s file could be compared to his person during a personal appearance before the Court, must also be rejected.
60 In that regard, it should be recalled that the Court is by no means obliged to adopt any further measure for the taking of evidence of facts at issue, even if at the end of its assessment it concludes that none of that evidence is of any probative value (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij NV and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 404).
61 It follows from all of the foregoing considerations that the applicant has not demonstrated the actual damage he alleges and, therefore, the condition relating to actual damage has clearly not been satisfied.
62 Consequently, the action must be dismissed as manifestly lacking any foundation in law, without it being necessary to examine whether the other conditions for the non-contractual liability of Frontex are satisfied.
Costs
63 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
64 Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by Frontex.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed.
2. The applicant shall pay the costs.
Luxembourg, 13 December 2023.
V. Di Bucci | | K. Kowalik-Bańczyk |