CJEU Case C-136/24 P / Opinion

Alaa Hamoudi v European Border and Coast Guard Agency (Frontex)
Deciding body type
Court of Justice of the European Union
Type
Opinion
Decision date
10/04/2025
ECLI (European case law identifier)
ECLI:EU:C:2025:257
  • CJEU Case C-136/24 P / Opinion

    Key facts of the case: 

    Appeal – Non-contractual liability – Rapid border intervention by Frontex in support of the Greek authorities in the Aegean Sea – Collective expulsions (‘pushbacks’) allegedly prescribed or assisted by Frontex – Regulation (EU) 2019/1896 – Failure by Frontex to consult a fundamental rights officer – Failure by Frontex to assess the applicability of Article 46(4) and (5) of Regulation 2019/1896 – Manifest error of assessment – Infringement of Articles 1, 2, 3, 4, 18, 21 and Article 19(1) and (2) of the Charter of Fundamental Rights – Right to asylum – Principle of non-refoulement – Actual and certain damage – Burden of proof – Shifting of burden of proof – Conditions – Prima facie evidence – Principle of equality of arms

    Outcome of the case: 

    In the light of the foregoing, I suggest that the Court of Justice should assess whether the state of the proceedings before the General Court, and in particular its finding of fact, permit the Court of Justice to assess whether the appellant adduced prima facie evidence of damage in its action before the General Court. If the Court of Justice considers, first, that it is in such a position and, secondly, that the appellant has failed to adduce prima facie evidence demonstrating that he was present at and involved in the alleged incident of 28 and 29 April 2020, the appeal should be rejected. If, however, the Court considers that it is not in such a position or alternatively that the appellant has adduced prima facie evidence demonstrating that he was present at and involved in the alleged incident of 28 and 29 April 2020, the appeal is well founded, the order under appeal should be set aside and the case should be referred back to the General Court to rule on whether the conditions on the reversal of the burden of proof are applicable.

  • Paragraphs referring to EU Charter

    21. In the present appeal, what is in question is whether the appellant was the victim of, and thus suffered, damage due to the alleged collective expulsion of 28 and 29 April 2020. This analysis is closely linked to the question of whether Frontex breached EU law, in particular Articles 18 and 19 of the Charter, in the context of those alleged events. The same circumstances may thus be relevant, at least to some extent, for analysing Frontex’s alleged unlawful conduct, actual damage and the existence of a causal link between the unlawful conduct and the damage in question.

    28. As regards the weight to be attributed to the case-law of the ECtHR in the present action, in accordance with Article 52(3) of the Charter, which is intended to ensure the necessary consistency between the rights contained therein and the corresponding rights guaranteed by the ECHR without adversely affecting the autonomy of EU law, the Court must take into account – when interpreting rights guaranteed by the Charter – the corresponding rights (43) guaranteed by the ECHR, as interpreted by the ECtHR, (44) as the minimum threshold of protection.

    29. The appellant relies on a number of judgments of the ECtHR in which that court ruled on the distribution of the burden of proof in actions brought pursuant to Article 34 ECHR concerning the refoulement and/or collective expulsion of the applicant(s). (45) While the aim of those proceedings before the ECtHR – which seek, primarily, a declaration of the existence of a violation of the ECHR or the protocols thereto – ostensibly differs from the present proceedings, which seek the compensation for damage allegedly caused by an EU agency, that difference is more apparent than real. It is in any event insufficient to render irrelevant the case-law of the ECtHR in the context of the present proceedings. In that regard, it must be recalled that, according to the Court’s case-law, the European Union may incur non-contractual liability under Article 268 TFEU and the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, the first one of which requires the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals. (46) There is thus a certain parallelism between Article 340 TFEU and Article 34 ECHR. (47) In addition, there is a clear overlap between the rights under the ECHR and the rights under the Charter invoked in the ECtHR case-law in question and the present proceedings. (48)

    ...

    38. The principle of equality of arms, which is an integral part of the principle of effective judicial protection of the rights that individuals derive from EU law, enshrined in Article 47 of the Charter, may also influence the distribution of the burden of proof. That principle, together with, inter alia, the principle audi alteram partem, is a corollary of the concept of a fair hearing and implies an obligation to offer each party a reasonable opportunity to present its case in conditions that do not place it in a clearly less advantageous position compared with its opponent. The aim of that principle is to ensure a procedural balance between the parties to judicial proceedings, guaranteeing the equality of rights and obligations of those parties as regards, inter alia, the rules that govern the taking of evidence and the adversarial hearing before the court and also those parties’ rights to bring an action. (67)

    ...

    52. Failure to adjust or relax the burden of proof may hinder virtually all judicial proceedings by the victims of such expulsions, thereby systematically jeopardising the rights protected by, inter alia, Articles 18 and 19 of the Charter. (84) Illegal action may (de facto) go unchallenged and the perpetrators thereof may thus act with impunity. This in turn may undermine the claimant’s rights under Article 47 of the Charter. In the light of the judgment in A.R.E., I consider that once a claimant has established prima facie evidence of his or her collective expulsion or refoulement by a respondent State, the ECtHR will reverse the burden of proof and shift it to the respondent State. In the present case, however, the respondent is not a Member State but an EU agency. The question thus arises as to whether, and if so, to what extent, the case-law of the ECtHR on the reversal of the burden of proof in collective expulsion cases may be applied by analogy in the present context.

    ...

    60. Thirdly, failure to shift the burden of proof once the claimant has established a prima facie case would deprive him or her of, or render ineffective his or her, (fundamental) rights protected by EU law and may, in addition, undermine the claimant’s rights under Article 47 of the Charter while that shift would not undermine the respondent’s rights thereunder. (94)

  • Paragraphs referring to EU Charter (original language)