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ST v Frontex – T‑600/22

Country Frontex
Status FINAL
Court CJEU [GC]
Relevant Law Article 265 TFEU, Article 46(4) of Regulation (EU) 2019/1896, Article 263 TFEU
Year 2023
Found for Inadmissible

The applicant is a Congolese national residing in Türkiye, who fled his own country due to ill-treatment, and sought asylum in Greece. The applicant was subjected to a pushback from Greece. The representatives sent an invite in accordance to Article 265 TFEU to Frontex suspend or terminate its activities in the Aegean Sea region, pursuant to Article 46(4) of Regulation 2019/1896, on June 6th, 2022. Frontex replied on July 27th, 2022 to that invitation to act by the contested decision, in which it noted that that invitation was similar to that previously sent to it by Front-Lex on 15 February 2021, and then referred to its letter of 23 March 2021 in which it had refused to suspend or terminate its activities in the Aegean Sea region. The General Court of the CJEU (GC) was asked to declare that, after Frontex was called upon to act in accordance with the procedure laid down in Article 265 TFEU, Frontex unlawfully failed to act, by refraining from taking the decision to withdraw the financing for all or part of its activities in the Aegean Sea region, to suspend those activities or to terminate them in whole or in part, in accordance with Article 46(4) of Regulation 2019/1896, or by not providing duly justified grounds for failing to implement the relevant measure within the meaning of Article 46(6) of that regulation, and, further, that it did not define its position in response to the applicant’s preliminary request; in the alternative, annul the contested decision; order Frontex to pay the costs.

The Court found the application inadmissible under Art. 265 TFEU as the representatives in the invitation did not disclose the identity of the applicant. Since the case referred to that invitation, the Court found there was insufficient evidence to prove that the person referred to in the letter anonymously, was the same person bringing the case. The Court found the claim inadmissible in this regard.

On the admissibility under Art. 263 TFEU, regulating the doctrine of direct effect of EU acts onto individual persons, the Court found the application inadmissible. The Court argued that the applicant was not able to demonstrate that the future legal situation the applicant was relying on was certain. The applicant cannot rely on a future and hypothetical legal situation. The Court stated that the applicant failed to demonstrate how the annulment of the contested decision would favour his situation and have an advantage for him. The Court goes on in saying that returning illegally staying third-country nationals falls into the competence of the Greek state, and that the expulsions “were all carried out by the Greek police authorities and not by Frontex directly”. Considering the former, the Court states that even if Frontex would suspend or terminate operations, the applicant cannot guarantee that this would be to his advantage as he would still be at risk of expulsion by the Greek authorities.

More so, the Court went on to say that even if Frontex would have replied in the positive to the invitation to trigger Art. 46 (4), this would not have entailed the actual suspension of termination of operations, and it “would only have the effect of leading Frontex to re-examine the conditions for adopting a decision […] in the light of the information of which it was aware at the material time”. The Court states that the provision applies in cases of fundamental rights and obligations for international protection “are of a serious nature or are likely to persist”, and that it is within Frontex’s mandate to make that assessment. In this case, the Court found again that it would have not been in the applicant’s advantage to solely trigger a re-examination by Frontex, which could have decided not to trigger Art. 46(4).

Overall, the Court found that the applicant’s legal action do not guarantee an advantage for him, in the sense of facilitating his conditions in entering Greece and seeking asylum.