Action brought on 20 September 2021 – WS and Others v Frontex

(Case T-600/21)

Language of the case: English

Parties

Applicants: WS and 5 other applicants (represented by: A. van Eik and L.-M. Komp, lawyers)

Defendant: European Border and Coast Guard Agency

Form of order sought

The applicants claim that the Court should:

Determine that the Agency is responsible under article 268 and article 340 paragraph 2 TFEU for the damages caused by the Agency to the Applicants;

Determine that there is a sufficiently serious breach of the Agency’s obligations under articles 16, 22, 26, 28, 34 and 72 of Regulation 2016/1624, steps 1-5 of the Standard Operating Procedures, and article  4 Code of Conduct, conferring rights on the Applicants as enshrined in articles 1, 4, 18, 19, 24, 41 and 47 EU Charter and a sufficiently serious breach of the Applicants’ fundamental rights laid down in articles 1, 4, 18, 19, 24, 41 and 47 EU Charter by the Agency, thereby directly causing the damages suffered by the Applicants;

Oblige the Agency to compensate the damages suffered by the Applicants as a direct consequence of the unlawful conduct of the Agency in whole, being EUR 96,212,55 in September 2021 in material damages to be increased with the interest due on the date of payment, and EUR 40,000 in immaterial damages to be increased with the interest due on the date of payment, as set out above, or in part as to be determined by the Court;

Order the Agency to pay the costs incurred by the Applicants for the current proceedings to be paid with interest;

All to be paid within two weeks after rendering judgment and increased by interests for each day the payment is delayed.

Pleas in law and main arguments

In support of the action, the Applicants relies on eight pleas in law.

First plea in law, alleging that the Agency failed to perform a risk assessment as required under article 34 of Regulation 2016/1624¹ , articles 18 and 19 of the EU Charter, and step 1 and 2 of the Standard Operating Procedures² .

Second plea in law, alleging that the Agency failed to take measures that could have reasonably been expected to mitigate serious risks to fundamental rights as required under article 34 of Regulation 2016/1624, articles 18 and 19 of EU Charter of Fundamental Rights, and step 1(2) of the Standard Operating Procedures.

Third plea in law, alleging that the Agency failed to draft a (sufficiently detailed) Operational Plan as required under articles 16 and 34 of Regulation 2016/1624, articles 18 and 19 of EU Charter of Fundamental Rights and step 2 of the Standard Operating Procedures.

Forth plea in law, alleging that the Agency conducted the return operation in a way that fundamental rights violations could not be noted, nor signalled in contravention of articles 22, 25, 28 and 34 of Regulation 2016/1624, articles 18 and 19 of EU Charter of Fundamental Rights, step 3 of the Standard Operating Procedures and article 4(3)(a) of the Code of Conduct¹ .

Fifth plea in law, alleging that the Agency did not take any measures in response to clearly visible violations of articles 1, 4 and 24 of EU Charter of Fundamental Rights, in violation of articles 22 and 34 Regulation 2016/1624 and article 4 of the Code of Conduct.

Sixth plea in law, alleging that the Agency failed to ensure effective monitoring of the joint return operation as required under articles 28 and 34 of Regulation 2016/1624.

Seventh plea in law, alleging that the Agency failed to evaluate the return operation as required by articles 26 and 28 of Regulation 2016/1624 and steps 4 and 5 of the Standard Operating Procedures.

Eighth plea in law, alleging that the Agency failed to duly take into consideration the Applicants’ complaint under the individual complaints mechanism as required under articles 34 and 72 of Regulation 2016/1624, article 10 of the Rules on the complaints mechanism¹ , 41 and 47 EU Charter of the Fundamental Rights.

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¹ 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, JO 2016 L 251, p. 1.

¹ Decision of the Executive Director n  2012/87 on the adoption of the Frontex Standard Operating Procedure to ensure respect of Fundamental Rights in Frontex joint operations and pilot projects of 19 July2012.

¹ Decision of the Executive Director n° 2013/67 on Code of Conduct for joint return operations coordinated by Frontex, of 7 October 2013.

¹ Decision of the Executive Director N° R-ED-2016-106 on the Complaints Mechanism of 6 October 2016.