Background: Frontex and Criticism of EU Border Policy
The article analyzes two important rulings of the European Court of Justice (ECJ) from December 2025 concerning the responsibility of the EU border agency Frontex.
For years, Frontex has faced criticism for possible human rights violations at the EU’s external borders – particularly because of so-called pushbacks, meaning illegal returns of refugees and migrants.
The issue is also relevant for Switzerland, since the Swiss population voted in 2022 on the expansion of the Frontex mandate. Despite significant criticism, the proposal was approved.
The “WS” and “Hamoudi” Cases
The article focuses on two concrete cases before the European Court of Justice.
The “WS” Case
A Syrian-Kurdish family was returned to Turkey as part of a joint return operation despite having requested protection.
The family argued that they had not been given a genuine opportunity to apply for asylum or to challenge the deportation.
Initially, the claim was dismissed on the grounds that Frontex was not responsible because the actual return decisions had been made by Greece.
The “Hamoudi” Case
This case concerned a Syrian refugee who was allegedly pushed back at sea while Frontex was monitoring the operation.
Particularly problematic was the lack of access to evidence. Many documents remained confidential, smartphones were confiscated or destroyed, and operational documents were hardly accessible.
Criticism of Previous Practice
The article criticizes previous case law as being too formalistic.
Particularly problematic were:
- the fact that Frontex could shift responsibility onto member states,
- the unrealistic evidentiary requirements imposed on affected individuals,
- and the insufficient consideration given to the particular vulnerability of refugees.
According to the analysis, this created a kind of “de facto immunity” for Frontex.
The New Position of the European Court of Justice
The new rulings mark an important turning point.
Frontex Bears Its Own Responsibility
The ECJ clarified that Frontex cannot transfer all responsibility to member states.
Even if states formally decide on return operations, Frontex itself must verify whether fundamental rights are being respected.
Easier Standards of Proof
In the Hamoudi case, the Court also held that courts must take the difficult situation of affected individuals more seriously into account.
When important information is mainly held by authorities or Frontex, the evidentiary requirements must not be unrealistically high.
Importance of the Rulings
The decisions are considered a major step forward for the protection of the fundamental rights of migrants at the EU’s external borders.
For the first time, it is more clearly recognized that Frontex itself may bear legal responsibility and that affected individuals must be given more realistic access to justice.
At the same time, the European liability system remains complex and many structural obstacles continue to exist.