AG Ćapeta Opinion in WS and Others v Frontex: Academic research on Frontex’ liability reaches the CJEU’s Grand Chamber
On 12 June 2025, Advocate General Ćapeta delivered her Opinion in WS and Others v Frontex, a Grand Chamber case currently pending before the Court of Justice of the European Union. The case concerns a Syrian family that was returned to Turkey in what is arguably a violation of the principle of non-refoulement during a joint return operation between Greece and Frontex in October 2016. The family is seeking compensation from Frontex for its role in the violation of their fundamental rights.
In her Opinion, AG Ćapeta recommends that the Court of Justice set aside the General Court’s judgment, which had dismissed the family’s damages claim for lack of causal link between Frontex’s conduct and the harm suffered. The AG proposes that the case be referred back to the General Court for proper assessment of all conditions for non-contractual liability (for an analysis of the General Court’s judgment, see Melanie Fink and Jorrit Rijpma’s blog post for EU Law Analysis).
This case development traces back to Melanie Fink’s PhD research, which was the first to systematically analyse how damages actions could serve as a mechanism for holding Frontex accountable for fundamental rights violations. Her research was published in 2018 by Oxford University Press (Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’).
The Opinion draws extensively on Melanie Fink’s scholarship, citing her 2018 OUP monograph, her article ‘The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable’ published in the German Law Journal (2020), her chapter (co-authored with Clara Rauchegger and Joyce De Coninck) on ‘The Action for Damages as a Fundamental Rights Remedy’ in the book she edited, Redressing Fundamental Rights Violations by the EU: The Promise of the ‘Complete System of Remedies’ (Cambridge University Press, 2024), and her work ‘EU Liability for Contributions to Member States’ Breaches of EU Law’ published in Common Market Law Review (2019).
The Opinion incorporates key analytical frameworks from this research, particularly the distinction between causation and attribution in determining institutional liability for fundamental rights violations in scenarios where the EU and its Member States act together (see ‘EU Liability for Contributions to Member States’ Breaches of EU Law’). The Opinion also endorses the view that Frontex is independently liable for its own wrongdoing, alongside the Member States. Crucially, AG Ćapeta argues that the fact that primary responsibility for returns lies with Member States should not prevent Frontex from also being held liable, as this would essentially exclude any prospect of Frontex being liable at all. This position also aligns with what Melanie Fink suggested in her work as well as in her expert opinion for the Court.
The Grand Chamber’s eventual judgment in this landmark case will establish important precedents for EU liability for fundamental rights violations. The case demonstrates how rigorous academic research can contribute to the development of legal doctrine at the highest levels within the EU legal system.