Enhancing Access to Justice in European Shared Administration Through the Principles of Good Administration

Table of Contents: 1. Introduction: setting the scene. – 2. Access to justice in European Union law. –  2.1. Access to justice and the right to an effective remedy. –  2.2. Access to justice and the rule of law. – 3. EU operational agencies and the problems of access to justice. – 3.1. The European Union Border and Coast Guard Agency (Frontex). – 3.2. The European Asylum Support Office (EASO) and the European Union Agency for Asylum (EUAA). – 3.3. The European Union Agency for Law Enforcement Cooperation (Europol). – 4. The principles of good administration and their contribution to access to justice. – 4.1. Fostering transparency. –­ 4.2.  Enhancing due process through complete remedies. – 4.3. Embedding accountability. – 5. Conclusion.

Abstract: This article offers a synoptical analysis of the challenges to access to justice in European shared administration posed by the expanding mandates of the most operational and fundamental rights-sensitive agencies. These specifically include the European Union Border and Coast Guard Agency (Frontex), the European Union Agency for Asylum (EUAA), and the European Union Agency for Law Enforcement Cooperation (Europol). Created to support the Member States in managing migration, asylum and internal security, these agencies have witnessed a significant expansion of their operational powers and mandates over the years. However, these expanded powers have not been adequately counterbalanced by fundamental rights safeguards. Nor can the current system of legal remedies under EU law guarantee effective access to justice. This article identifies three key obstacles, common to the three agencies, that undermine effective access to justice: lack of transparency, inadequate remedies, and ineffective oversight. Individuals often struggle to secure redress due to secretive agency practices, limited transparency, and inadequate accountability mechanisms. To address these obstacles, this article proposes several pathways to strengthen access to justice by upholding principles of good administration and governance, such as transparency, due process and accountability. Proposed reforms include enhancing transparency, improving complaints mechanisms, and strengthening oversight, all to ensure that the operational expansion of EU agencies does not infringe upon the fundamental rights and values that form part of the EU’s constitutional fabric.

Keywords: shared administration – EU agencies – access to justice – rule of law – good administration – administrative fairness.

1.   Introduction: setting the scene

The European Union (EU) has traditionally been seen as a regulatory authority.[1] According to the theory of executive federalism, the central authority at the European level holds legislative power, while competent entities at the national level hold implementation and enforcement powers.[2] Nonetheless, over the years, the EU has progressively ‘gained enforcement powers in areas where it previously held only regulatory authority’.[3] This shift has prompted the rise of shared administration, the essence of which, as Paul Craig explains, is that ‘Union legislation imposes formal legal obligations on both the Commission and the Member States for the effective implementation of a particular administrative regime’.[4]

The EU shared administration has facilitated the creation of specialised agencies. As decentralised bodies of EU law, they ‘are generally involved by the legislator in (composite) procedures whereby agencies need to co-operate with the Commission and the Member States to deliver policy results’.[5] In other words, EU agencies have become responsible for implementing relevant policies next to the Member States.[6] The proliferation of EU agencies in various policy domains, as well as the powers that these bodies have progressively acquired, gave rise to the phenomenon of ‘agencification’, which refers to ‘the process whereby the EU agencies take up an increasingly important role in the EU administration, both in a quantitative as well as in a qualitative sense’.[7] This process has become a distinct feature of shared administration and has not skipped the Union’s policies on asylum, migration, border control and internal security. 

In these areas, three decentralised agencies, namely the European Union Border and Coast Guard Agency (Frontex),[8] the European Union Agency for Asylum (EUAA)[9] – the successor of the European Asylum Support Office (EASO) – and the European Union Agency for Law Enforcement Cooperation (Europol),[10] have been playing an increasingly important role.[11] The main rationale for the creation of these agencies lies in their capability to effectively assist the Member States in ensuring adequate levels of enforcement of EU law in an area which has been notably characterised by a ‘protracted implementation deficit’.[12] Scholars have highlighted the tremendous expansion of these EU agencies’ mandates, tasks, and activities over the past decades.[13] Through frequent modifications of their legal mandates, these agencies have acquired greater prominence and leadership, progressing from a ‘reactive to a proactive’ approach, that is, from a traditional role of coordination to a new one of initiative and decision, thereby asserting their autonomy, both inside and outside Europe.[14]

The empowerment of these three agencies undoubtedly boosts their operational efficiency and enables them to further EU policy objectives.[15] However, while officially designed to support Member States in implementing EU policy and legislation, these agencies are progressively engaging in activities that may infringe upon fundamental rights, especially of third-country nationals. Frontex has, allegedly, been involved in pushing back and returning migrants to third countries, who are, thus, left deprived of access to the European territory and to adequate remedies for harm suffered.[16] Europol has, moreover, attracted the attention of supervisory watchdogs for tensions between its data exchange activities and the respect for data protection rights.[17] Finally, EASO’s practice of conducting interviews with asylum seekers in Greece and delivering opinions on the (non-) admissibility of the merits of asylum claims has illustrated issues of coordination with national authorities with regard to legal remedies for migrants.[18]

These examples explain why this Article focuses on these three agencies, which exemplify the challenges involved in ensuring access to justice in fundamental-rights-sensitive areas of EU shared administration. European law scholarship has predominantly considered the notion of ‘access to justice’ as access to a court, thereby including the right to a fair trial or effective remedy before an independent and impartial tribunal.[19] According to this conception of the notion, access to justice gives individuals the opportunity to enforce their individual rights and ensures their continued protection, enabling them to hold executive authorities accountable for their actions. As noted in the literature,[20] access to EU judicial remedies is especially challenging in multi-actor operations, such as those conducted by EU agencies in collaboration with Member States, due to the difficulty in attributing wrongful conduct to the responsible actor. What is even more notable is that this traditional notion of access to justice as access to court does not appear well-suited to capture all the problems engendered by the expanding mandates of the three agencies in question. While the potential fundamental rights repercussions have been extensively analysed,[21] academic analysis from the perspective of access to justice has remained limited and significantly underdeveloped, despite the notion being closely related to core constitutional concepts such as the rule of law.[22]

 Accordingly, this article devises possible strategies to embed more access to justice safeguards in relation to Frontex, EUAA and Europol by exploring the role of the principles of good administration, connected with transparency, due process and accountability, in the context of the shared governance of migration, asylum, border management and internal security policies. While this approach does not claim to offer a comprehensive solution to the challenges of access to justice inherent in shared administrative frameworks, it seeks to contribute a different perspective to ongoing debates on the governance of the abovementioned policy areas. 

From this standpoint, the article advocates for a more transparent and accessible structural and institutional framework in which EU agencies operate, aiming to mitigate the risk of fundamental rights violations and increase individuals’ access to justice. To that end, the article first unfolds the access to justice conception in EU law (Section 2). Second, it highlights the concerns that the expansion of the EU migration agencies’ operational mandates brings about from the perspective of individuals’ access to justice, consecutively reviewing Frontex, EUAA and Europol (Section 3). Third, the article seeks to elucidate how the principles of good administration can contribute to the enhancement of access to justice. This will help devise potential solutions for the problems that are characteristic of the three agencies (Section 4). The last part of the article presents a number of concluding considerations (Section 5).

2.   Access to justice in European Union law

The notion of access to justice remains generally undefined in relevant European legal texts.[23] The Treaties contain scant references to the notion of access to justice, failing to define it: for example, Article 67(4) of the Treaty on the Functioning of the EU (TFEU) states that ‘the Union shall promote access to justice, particularly by applying the principle of mutual recognition of judicial and extrajudicial decisions in civil matters’.[24] A systematic analysis of the notion of access to justice in European law, including in light of the Charter of Fundamental Rights of the EU (Charter or EU Charter),[25] suggests situating the scope of the concept in the context of the practices of national and supranational courts, along with the evolving legislation at both the EU and national levels. From this perspective, access to justice is broadly understood as a concept that entails both procedural (access) and substantive (justice) components meant to protect fundamental rights.[26] Safeguarding these components requires the establishment of institutions that uphold individuals’ rights and, in connection with this, mechanisms that provide access to these institutions for individuals whose rights have been violated.[27] Accordingly, the notion of access to justice is inherently linked to the principle of effective judicial protection in that it emphasises the importance of providing individuals and entities with the means to challenge potential violations of their rights and ensures that the legal system is transparent, fair, and capable of addressing such violations effectively. 

As part of the overarching obligation to ensure adequate pathways to justice, European law scholarship has predominantly considered the notion rather one-dimensionally, namely as access to a court, thereby including the right to a fair trial or effective remedy before an independent and impartial tribunal.[28] According to this conception of the notion, access to justice gives individuals the opportunity to enforce their individual rights, and ensures their continued protection, enabling them to hold executive authorities accountable for their actions (see Section 2.1). However, it is held here that access to justice is more than merely access to courts; it is also an essential rule of law safeguard (see Section 2.2). This twofold dimension of the notion of access to justice – as access to a court and as an element of the rule of law – is further discussed in the following sub-sections.

2.1.  Access to justice and the right to an effective remedy

The main aspect through which access to justice traditionally materialises is the right to an effective remedy. In European law, such a right aligns with the principle of effective judicial protection. In its first landmark ruling in the 1986 Johnston case, the Court of Justice of the EU (‘CJEU’ or ‘Court’) described effective judicial control as ‘a principle which underlies the constitutional traditions common to the Member States and which is laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)’.[29] This alignment has been consistently reaffirmed through a well-established body of case law, where the Court recognised effective judicial protection as a general principle of EU law.[30]

This principle was later codified in Article 47 of the Charter.[31] With the Treaty of Lisbon, it was further incorporated into Article 19(1) of the Treaty on European Union (TEU),[32] which the Court has interpreted as requiring Member States to provide remedies sufficient to ensure effective legal protection, particularly as outlined in Article 47 of the Charter, in areas governed by EU law.[33] Additionally, Article 47 of the Charter establishes that any person who suffers an infringement of a right or freedom guaranteed by EU law can claim a judicial remedy that is effective. This essentially means that the remedy must meet two criteria: it must be normatively appropriate and practically accessible. Normative appropriateness requires that the remedy be capable of addressing the violation, whether through compensation, annulment, or other corrective measures. Practical accessibility ensures that legal mechanisms are not prohibitively complex, costly, or time-consuming, so that individuals can effectively exercise their rights.[34] The European Court of Human Rights (ECtHR) has greatly contributed to determining the effectiveness of a remedy by requiring that the remedy be accessible, thus not only theoretically available but also concretely viable, be capable of providing redress in respect of the applicant’s complaints, and offer reasonable prospects of success.[35]

Essentially, this understanding of access to justice, which reflects the predominant view in legal doctrine, is not limited to attributing to the individual the right to take legal action but to do so primarily to obtain a useful measure for the protection of one’s position. In other words, access to justice provides fundamental procedural safeguards for individuals to enforce other rights before a court. This is why the concept of access to justice also refers to access to the law, in the sense of access to the set of rights that a legal system offers, including the right to be informed about these rights.[36] The EU legal framework provides several mechanisms for individuals to access justice. National courts play a pivotal role as ‘ordinary courts’ of EU law, tasked with applying and enforcing EU rights within Member States.[37] Through doctrines such as direct effect and supremacy, the EU legal order empowers individuals to invoke EU rights before national courts, ensuring that these rights are not abstract principles but enforceable guarantees. At the EU level, judicial mechanisms, such as actions for annulment (Article 263 TFEU), actions for failure to act (Article 265 TFEU), and actions for damages (Article 268 and 340(2) TFEU) provide direct access to the Court of Justice for individuals in specific circumstances, strengthening judicial oversight of EU institutions. The preliminary reference procedure under Article 267 TFEU also plays a pivotal role as it offers an avenue for individuals to seek interpretation of EU law when national courts encounter uncertainties. However, as will be demonstrated in greater detail in Section 3, this traditional, one-dimensional view of access to justice is ill-suited to fully capture the problems caused by the expanding mandate of EU operational and fundamental rights-sensitive agencies. 

2.2. Access to Justice and the Rule of Law

According to a broader understanding of the concept of access to justice, this notion has evolved from a purely formal right into a more comprehensive principle, inextricably linked to the rule of law. The rule of law is enshrined as a fundamental value of the EU in Article 2 TEU, alongside respect for human dignity, democracy, and human rights.[38] The CJEU deserves recognition for initiating the definitional efforts of the rule of law, notably through its landmark ruling in Les Verts.[39] In this judgment, the Court articulated that the rule of law encompasses the traditional and interrelated legal principles of legality, judicial protection and judicial review. More recently, these principles have been included by the European Commission within the core constitutive elements of the rule of law. The Commission identified, in fact, a number of elements that contribute to the core meaning of the rule of law within the context of the EU legal order. These elements include: (i) legality; (ii) legal certainty; (iii) prohibition of arbitrariness of the executive powers; (iv) independent and impartial courts; (v) effective judicial review, including respect for fundamental rights; and (vi) equality before the law.[40]

Accordingly, access to justice operationalises the rule of law by ensuring that individuals can challenge rights violations and hold public authorities accountable within a structured and fair legal process. This interplay between access to justice and the rule of law was reaffirmed by the Court of Justice in Associação Sindical dos Juízes Portugueses (ASJP), where the Court declared that ‘the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law’.[41] The rule of law also requires effective judicial mechanisms that provide remedies for violations of EU law. This is explicitly recognised in Article 19(1) TEU, which mandates Member States to establish remedies sufficient to ensure effective legal protection in fields covered by EU law. This provision strengthens the essential link between the rule of law and access to justice by highlighting the need for robust judicial systems capable of enforcing EU rights at the national level. By requiring all Member States to adhere to the rule of law, the EU ensures the uniform application of its legal order across diverse jurisdictions. This uniformity is crucial in an integrated legal space, as it fosters trust among Member States and between individuals and institutions.[42]

As a constitutive element of the rule of law in the EU, effective judicial protection ensures that public authorities, including EU institutions and Member States, act within the bounds of the law, respect fundamental rights, and provide avenues for redress when individuals’ rights are infringed. In examining the evolution of the principle of effective judicial protection as a corollary of the rule of law, scholars have observed that these developments have helped address deficiencies in the EU legal framework, enhancing its coherence at both the national and EU judicial levels.[43] More recently, in her Opinion in Commission v Hungary, Advocate General Tamara Ćapeta reiterated that Article 19(1) TEU and Article 47 of the Charter concretise the value of the ‘rule of law’ under Article 2 TEU, which can, therefore, serve as a direct standard for judicial review.[44] However, such an articulated system established to uphold the rule of law has not yet fully captured situations of composite decision-making or ‘administrative mixity’,[45] in which the competences of the EU agencies progressively overlap with those of the national authorities. The system of shared administration in the fields of migration, asylum, border control and internal security presents significant challenges that undermine access to justice. These challenges, which relate to the lack of transparency, imperfect remedies, and lack of effective oversight, will be discussed in the following Section.

3.   EU operational agencies and the problems of access to justice

This Section will delve into the problems of access to justice underpinning the mandates of the three most operational EU agencies in the fields of migration, asylum, border controls and internal security. The analysis will proceed on an agency-by-agency approach, due to the specific features of each agency, while the core problems, such as lack of transparency, limited individual remedies, and weak oversight, remain the same. To help explain these problems, this Section will briefly outline each agency’s mandate, tasks, and activities, including those involving external partners. While most of the problems have been discussed, a synoptic overview can contribute to explaining how these have become structural issues of the EU shared administration related to fundamental-rights sensitive policies.

This Section first explains how access to justice is undermined by the lack of transparency surrounding the operations undertaken by EU agencies.[46] These agencies do not usually publicly report on the details of their activities. However, to enforce their fundamental rights, third country nationals, such as migrants and asylum seekers, have a great and legitimate interest in obtaining access to documents from these agencies. Transparency is also a precondition for ensuring the accountability of any public body.[47]Ensuring transparency of the agencies’ activities is, therefore, crucial for effective access to justice. 

Furthermore, the sub-sections below will illustrate that the mechanisms designed for individuals to obtain redress for harm suffered due to the agencies’ activities are largely incomplete and, as a result, impact migrants’ safeguards for access to justice. Whereas the expansion of the mandates of the above-mentioned EU agencies has made these bodies more prone to infringing the fundamental rights of individuals, there has been an insufficient increase and improvement in intra-agency complaints mechanisms and remedies. Access to these remedies has been rather limited due to the lack of adequate information. Accordingly, access to remedies should benefit from more transparency, but also requires institutional reforms that can improve the quality of their follow-up and overall operational effectiveness. 

Finally, the expanding mandates of the agencies reveals a problem that can be considered of a more structural nature in the emerging EU shared administration. Such a system has not been able to allocate complete avenues for accountability, due to complex multi-actor operations, where, next to the staff of EU agencies, Member States’ agents are involved, rendering it difficult to understand who does what.[48] As emphatically stressed by Dennis Thomson, this constitutes an illustration of the problem of many hands: ‘because many different officials contribute in many ways to decisions and policies of government, it is difficult even in principle to identify who is morally responsible for political outcomes’.[49] This structural problem has been partly addressed by civil society[50] as well as institutional actors, such as the European Parliament[51] and the European Ombudsman,[52] although large concerns remain. The following text will proceed by analysing the three problems mentioned concerning Frontex (3.1), EASO and EUAA (3.2) and Europol (3.3).

3.1. The European Union Border and Coast Guard Agency (Frontex)

Established in 2004, Frontex is an important player in supporting the Member States in promoting integrated and efficient border management.[53] The agency not only carries out regulatory tasks but also coordinates joint operations among national border guards.[54] Subsequent revisions of Frontex’s legal framework have expanded the agency’s resources and operational tasks. Most notably, the 2007 amendment enabled the agency to deploy rapid border intervention teams to the Member States,[55] the 2011 modification strengthened Frontex’s role in joint (return) operations,[56] and the 2016 reform introduced a ‘rapid reaction pool’ of at least 1500 border guards.[57] Frontex currently operates under Regulation 2019/1896, which reflects an increased operational role, as it confers executive and coercive powers to Frontex staff and envisages a ‘standing corps’ that should consist of 10,000 operational staff in 2027.[58]

With such revisions, the agency’s external dimension has also experienced great development.[59] Regulation 2016/1624 and Regulation 2019/1896 introduced and broadened the agency’s power to carry out actions on the territory of a third country by means of a ‘status agreement’ concluded between the EU and the respective third country.[60] Based on such an agreement, the agency is allowed to ‘carry out actions’– for instance, joint operations – in the respective third country.[61] Under certain circumstances, team members are, moreover, allowed to exercise executive powers ‘necessary to perform the tasks required for border control and return operations […] during a joint action’.[62] Such powers include (i) the possibility to carry service weapons, ammunition and equipment, (ii) the authorisation to use force, ammunition and equipment, and (iii) the authorisation to consult national third country databases and access (personal) data.[63]

Frontex’s expanding mandate has sparked a great deal of controversy over the years. Scholars, practitioners, civil society organisations, as well as national and supranational political institutions, have brought up Frontex’s potential interference with human rights.[64] These concerns peaked following a 2022 report by the Office Européen de la Lutte Antifraud (OLAF), culminating in the resignation of Frontex’s Executive Director Fabrice Leggeri.[65] While fundamental rights concerns are already present in the agency’s internal activities, they are amplified in third-country operations, where EU legal safeguards do not apply and local partners may not be bound by international human rights treaties like the ECHR.[66] Despite these human rights concerns, three fundamental obstacles continue to impede full access to justice.

3.1.1.   Lack of transparency

The first obstacle is the considerable transparency problems that have haunted the agency, with authors having noted a ‘culture of secrecy’ that revolves around Frontex and its activities.[67] This culture is evident at different levels, concerning not only the nature and development of its operational mandate but also regarding the access to relevant documents.

At the operational level, scholars have pointed out how the engagement of Frontex officers during joint operations was highly non-transparent, for example, concerning the identification and interviewing of migrants (pre-screening).[68] Another example is offered by joint return operations coordinated by the agency. The European Ombudsman stressed that there is limited public information available with regard to these operations.[69] The Guide for Joint Return Operations by Air coordinated by Frontex is the only document available and establishes that the competent person ‘explains orally or in writing to the returnee the removal procedure (e.g. reason, phases of travel and procedures, the necessity for body and luggage searches, the possibility of using coercive measures when deemed necessary, etc) and answers their questions’.[70] However, little information is available about the conduct during specific return operations.

Access to relevant documents has also been very problematic. Generally, EU agencies are required to give EU citizens and residents the right to public access to documents and also have the option to grant this access to individuals outside the Union.[71]When processing requests for access to its documents, Frontex shall, thus, adhere to this obligation and, more concretely, disclose objective, detailed, comprehensive, reliable and easily understandable information regarding its work to ‘the public and any interested party’, save exceptions.[72] In spite of these legal provisions mandating a rather proactive stance from the agency on transparency matters, Frontex has been increasingly reluctant to share information regarding its activities, with its especially unsettling ‘blanket refusal’ to provide access to individuals outside the EU.[73] In this connection, it is worth stressing that the importance of information is especially salient for third country nationals affected by the agency’s external activities. The opacity characteristic of Frontex’s legal provisions on external activities and the lack of transparency regarding its external cooperation practice are, thus, a serious impediment to ensuring access to justice concerning Frontex operations.[74]

Over the past years, Frontex has even ‘actively and aggressively’ dissuaded activists from improving transparency, by demanding they pay large amounts of costs in transparency cases before the CJEU.[75] While Frontex has finally created a public register of documents in response to a decision by the European Ombudsman,[76] this register still does not appear to include all the documents it should.[77] These secretive practices may have important ramifications for individuals’ ability to exercise their right to an effective remedy and obtain judicial redress for harm suffered by the agency’s activities.[78] In order to collect evidence on an alleged violation of human rights and argue such a violation before a court, it is, after all, necessary to have sufficient knowledge and information about the exact activities employed by the agency. 

3.1.2.   Imperfect remedies

Another problem has to do with the fact that the judicial and agency-specific remedies for third-country nationals to obtain redress for harm suffered by Frontex are incomplete. Looking at the intra-agency mechanisms, it is fair to state that fundamental rights safeguards have improved – at least on paper – with the adoption of Regulation 2019/1896.[79] The Regulation not only envisages a Fundamental Rights Officer (FRO) and Fundamental Rights Monitors (FRM) that ‘shall constantly assess the fundamental rights compliance of operational activities, provide advice and assistance in that regard and contribute to the promotion of fundamental rights as part of European integrated border management’.[80] It also mandates the agency to ‘set up and further develop an independent and effective complaints mechanism’.[81] This mechanism was introduced in 2016 and further expanded by Article 111 of Regulation 2019/1896.

However promising these provisions may seem, significant delays exist in the implementation of the safeguards, causing substantial shortfalls in terms of fundamental rights compliance, monitoring, and correction. Not only did the appointment of the FRO and the recruitment of FRM come very late,[82] but the individual complaints mechanism also shows deficiencies.[83] This mechanism is significant as it enables individuals directly affected by the actions or inactions of agency staff involved in specific operations or activities to file a written complaint if they believe their fundamental rights have been violated. In practice, its impact has been limited due to the lack of requirements for adequate follow-up and its overall inaccessibility.[84] Moreover, the mechanism lacks genuine independence, as the FRO is only responsible for determining admissibility, while decisions on the merits and follow-up are made by the agency’s Executive Director.[85] Consequently, the complaints mechanism falls short of being an effective remedy as defined by Article 47 of the EU Charter and Article 13 of the ECHR, in light of the requirements discussed in Section 1.

Besides the issues related to Frontex’s internal mechanisms, judicial redress before the CJEU for harm suffered by Frontex activities is extremely difficult to obtain. The whole system of EU judicial remedies, including bringing an action for annulment (Article 263 TFEU), an action for failure to act (Article 265 TFEU) or an action for damages (Article 268 and 340 TFEU, as well as Article 97 of Regulation 2019/1896) has been recently tested in relation to Frontex activities. All three possibilities are essentially flawed. First of all, it is the factual conduct by Frontex that sparks concerns over fundamental rights violations. Such conduct cannot, in principle, be reviewed under an action for annulment. Moreover, an action for annulment places a heavy burden on a person to prove that an act is addressed to them or that it concerns them directly and individually.[86] Concerning Article 265 TFEU, in the very first legal action against Frontex, the General Court stated that the provision applies when an institution has failed either to take a decision or to define its position, and not when there is disagreement over a decision or position taken by the agency, as purported by the claimants in such action.[87]

Finally, while the action for damages may be a more promising avenue, this too requires the necessary legal creativity and flexibility to apply it to Frontex’s activities and alleged violations of fundamental rights. This is a challenge that the CJEU’s General Court chose not to address, as evidenced by its dismissal of the first two actions for damages brought against the agency in WS and Others v Frontex and Hamoudi v Frontex.[88] Strict cumulative conditions apply to an action for damages, including, as recalled by the General Court, unlawful conduct, actual damage and a causal link between the alleged conduct and the damage pleaded.[89] The major challenge is to establish that the wrongful conduct is attributable to an EU body and, therefore, to Frontex. This requirement is particularly challenging because Frontex’s expanding operational mandate often lacks clarity in defining the agency’s specific tasks. This led the General Court to take a rather formalistic approach[90] and conclude that, since Frontex ‘has no competence either as regards the assessment of the merits of return decisions or as regards applications for international protection, the direct causal link alleged by the applicants between the damage allegedly suffered and the conduct of which Frontex is accused cannot be established’.[91]

More recently, however, Advocate General Ćapeta in her Opinion on the appeal case WS and Others asserted that Frontex can be held liable for damages even when Member States bear the primary responsibility in issuing and executing a return decision.[92]Despite such a promising development, there is currently still a ‘striking lack of mechanisms for individuals affected by Frontex’s activities to hold the agency to account’.[93] The situation appears even worse in light of the difficulties in invoking the international responsibility of the EU for violations that occurred concerning the agency’s activities.[94]

3.1.3.   Lack of effective oversight

Finally, there is also a lack of effective external control by EU institutions and extra-judicial bodies over Frontex’s activities. While internal mechanisms, such as the FRO and FRM are, as stated above, promising in theory, they are currently not so much in practice, as they do not appear to be used to their full potential. As regards the external scrutiny, the 2019 Regulation states that ‘[t]he Agency shall be accountable to the European Parliament and to the Council’.[95] This role of oversight takes many forms and may, for instance, be exercised by reviewing the agency’s annual report and interrogating the Executive Director based on that report. More importantly, the European Parliament has the power to withhold the discharge of Frontex’s budget.[96] On 31 March 2022, the Parliament voted to postpone the discharge based on the OLAF report.[97] Moreover, Frontex’s former Executive Director testified to the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) on the allegations of fundamental rights violations.[98]

Apart from scrutiny by the EU institutions and sub-committees, the European Ombudsman has also used its powers in respect of Frontex to address concerns related to transparency, fundamental rights, and accountability. While these control mechanisms seem to function generally well on paper, the transparency problem discussed above has a great impact on the potential for EU institutions and other actors to exercise their role of oversight. As the agency dodges requests for access to documents by hiding behind security reasons, and as it has on occasions proved unwilling to fulfil its task of fully informing the European Parliament of its activities, the competent authorities are hampered from performing their oversight functions.[99] Moreover, the Consultative Forum and the European Ombudsman provide a good opportunity to hold Frontex accountable for its activities, although the role of these actors has remained rather modest. While these oversight bodies may have an authoritative influence on Frontex, their reports and recommendations are non-binding, numerous challenges remain, and their effectiveness is to be improved in particular situations – e.g. the European Ombudsman’s proactive monitoring at external borders.[100]

3.2.  The European Asylum Support Office (EASO) and the European Union Agency for Asylum (EUAA) 

Over more than a decade, the European Asylum Support Office (EASO) witnessed an increasing expansion of its mandate,[101]especially after the migratory pressure of 2015 and the adoption of the European Agenda on Migration.[102] This culminated in its transformation into the new EU Agency for Asylum (EUAA), which has been operational since 19 January 2022.[103] In light of the overall reform of the Common European Asylum System  (CEAS) under the New Pact on Asylum and Migration,[104] EUAAresponds to Member States’ growing need for operational support and guidance on the implementation of the common asylum rules.

Although significantly less studied than Frontex, concerns have been raised about EUAA’s lack of accountability for mistakes resulting from recommendations to national authorities about asylum applications.[105] This was already evident in EASO’s role in the Greek hotspots, where it effectively conducted interviews, assessed the applicability of the safe third country concept, and issued recommendations on the admissibility of international protection applications. While not legally binding, these recommendations often had quasi-binding effects, as Greek officials rarely conducted independent assessments.[106] The European Ombudsman confirmed that there were ‘genuine concerns about the quality of the admissibility interviews as well as about the procedural fairness of how they are conducted’, but did not take any further action since the ‘ultimate legal responsibility for decisions on individual asylum applications rests with the Greek authorities’.[107] The exercise of discretion by the agency may, thus, lead to procedural issues and challenges to fundamental rights.[108]

Article 2 of the EUAA Regulation lists an array of tasks that are not entirely different from the mission of EASO, though more emphasis is now placed on practical cooperation through the agency’s restructured operational dimension. As highlighted on its new website, ‘operations now form a core part of the agency’s activities’ and the agency in 2023 deployed over 1540 personnel across 160 locations in 13 EU countries.[109] Annex I to the Regulation also establishes a permanent asylum reserve pool of 500 Member State officials at the disposal of the agency. This expanded operational dimension is reflected in the new competences under Chapter 6 of the EUAA Regulation, which details the operational and technical assistance. Unlike the EASO Regulation, which allowed for the deployment of asylum support teams only when a Member State was subject to a particular pressure,[110] the EUAA Regulation makes a more visible connection with enforcement by allowing for deployment also with regard to the implementation of the obligations under the CEAS.[111] Additionally, in case of disproportionate pressure on the reception system of a Member State, the EUAA can deploy the asylum support teams on its own initiative with the agreement of the Member State.[112] Nonetheless, the EUAA Regulation does not fully mirror the agency’s enhanced role on the ground ‘which includes agency staff and agency-deployed experts independently undertaking actions which involve executive discretion’.[113] It is, therefore, legitimate to assume that the same problems of access to justice arise with regard to the operational mandate of EUAA.

EUAA’s mandate builds on the functions of EASO, also regarding cooperation with third countries. However, in this regard, the EASO mandate in third countries was rather underdeveloped, while Article 35 of the EUAA Regulation more clearly refers to activities that the agency can develop in third countries, namely capacity-building and resettlement. To this aim, Article 36(1) refers to the deployment of liaison officers to gather information and facilitate access to legal pathways to the EU, including through resettlement. These emergent tasks in third countries may give rise to fundamental rights issues concerning, for example, the coordination with third country authorities regarding the identification of those refugees that can be resettled in the EU.[114] Since the practice of EASO has left its imprint on the operational mandate of the new EUAA, it is worth noting how the three major problems that have been analysed concerning Frontex (lack of transparency, imperfect remedies and lack of effective oversight) are also common to EASO and risk being reproduced by the EUAA. 

3.2.1.   Lack of transparency

The practice of EASO has disclosed overlapping competences between the agency and the national asylum authorities. This creates issues of transparency for asylum seekers, who are neither aware of which authority they will be interfacing with nor in a position to express their consent about the possibility of being interviewed by the agency instead of national authorities. This is a practice that is likely to be reiterated by the EUAA. The EUAA Regulation partly formalises the activities that EASO was undertaking in hotspot areas, especially in light of inter-agency cooperation.[115] However, the Regulation only pays lip service to the involvement of the agency in the examination and processing of asylum claims along with state authorities. Article 16(2)(c) of the Regulation limits the agency’s competence to facilitating ‘the examination by the competent national authorities of applications for international protection or provide those authorities with the necessary assistance in the procedure for international protection’. In addition, the same provision confirms a role of assistance, advice, and support to the national authorities as regards the enforcement of the CEAS, including the implementation of asylum procedures, reception facilities and obligations under the Dublin Regulation on the state responsible for an asylum application (Article 16(2)(d), (e), (f) and (g)).[116]

On the other hand, under Article 11 of the Regulation, the EUAA Management Board adopts Guidance notes for the assessment of applications that Member States ‘shall take into account’ when examining these applications. The language seems to confirm the existence of an obligation for national authorities that in practice are subject to the influence of the EUAA when deciding on an application. This unclear distribution of tasks between the agency and the Member States renders untransparent the execution of the operational mandate of the new agency, especially in the light of the fact that not even the Operational Plans between the agency and the Member States clarify the coordination with national authorities or, more specifically, the formal contribution of the agency to the processing of asylum claims by national authorities.[117]

3.2.2.   Imperfect remedies

Debates have emerged about the need to ensure an internal administrative fundamental rights monitoring mechanism for the agency, especially following the European Ombudsman’s investigations into the EASO operational activities. In an inquiry, launched after alleged wrongdoings by the EASO experts during interviews, the European Ombudsman concluded that ‘EASO’s failure to address adequately and in a timely way the serious errors committed’ in a particular interview, constituted misconduct and subsequently advised the agency to undertake several improvements to ensure procedural guarantees during asylum procedures.[118] These included, inter alia, the recommendation to inform national authorities, ‘immediately and systematically’ once significant errors have occurred during an interview, and the suggestion to set up an internal complaints mechanism accessible for individuals who come into contact with the agency. In its response to the European Ombudsman, a complaints mechanism has been included in the EUAA Regulation, at the request of the European Parliament.[119]

Article 51(2) of the EUAA Regulation establishes that ‘any person who is directly affected by the actions of an expert participating in an asylum support team, and who considers that his or her fundamental rights have been violated due to those actions, or any party representing such a person, may submit a complaint in writing to the agency.’ The complaints mechanism was set up in May 2024, and it is still too early to evaluate its effectiveness.[120] Such a mechanism is placed under the responsibility of the EUAA Fundamental Rights Officer and is to be seen in the context of the Fundamental Rights Strategy adopted by the EUAA Management Board.[121]

Since this complaints mechanism is not designed for claims against a national authority’s decision, it is all the more urgent to clearly define the operational tasks of the agency and the measures that the asylum support teams can adopt, and dispel doubts about the accessibility and effectiveness of the mechanisms. The Fundamental Rights Strategy highlights that ‘in view of the implementation of the complaints mechanism, the Agency will ensure that asylum support team experts, including interpreters, are clearly identifiable and differentiable from national authorities or other stakeholders operating in the operational location.’[122]This approach is welcome also in terms of transparency and coordination with the national authorities. However, its effectiveness remains to be evaluated in practice, particularly in relation to the actual awareness of asylum seekers regarding the authorities or personnel with whom they are interacting. Still, as noted with reference to the Frontex complaints mechanism, despite the emphasis on ensuring adequate follow-up, regrettably, the EUAA Regulation has not established any form of redress for the victims of fundamental rights violations. This is a major lacuna that leaves the system of internal remedies incomplete.

It is worth stressing that the complaints mechanism is complemented by an ‘escalation mechanism’ – foreseen by the Fundamental Rights Strategy – that will function as a mechanism to report any incident related to potential violations of fundamental rights and international protection obligations committed by Member States’ authorities, in the context of an EUAA operation and observed or brought to the knowledge of the Agency’s staff or experts of asylum support teams, including interpreters.[123] This mechanism, just like Article 46(4) of Regulation 2019/1896 for Frontex, can lead to the suspension or termination, in full or part, of the deployment of asylum support teams, if serious or persistent violations of fundamental rights or international protection obligations by the host Member State are identified (Article 18(6)(c) of the EUAA Regulation).

Finally, with reference to the possibility of undertaking external judicial actions before the CJEU against the agency, the fact that, despite the assistance provided by the agency, the Member States keep the primary administrative responsibility for asylum applications constitutes a relevant obstacle. This means that asylum seekers can only appeal a negative decision before domestic courts, even if the national authorities have acted under the influence of the EU agency. Scholars have already highlighted that contesting the agency’s advisory opinions through an action for annulment before the Court of Justice is particularly difficult,[124] as they would not constitute reviewable acts under the requirements of Article 263 TFEU.[125]

Other direct remedies before the CJEU, like actions for damages against the EUAA, would suffer from the same limits that have been addressed with regard to Frontex. Additionally, apart from complying with the strict conditions of EU liability law, the non-binding nature of the agency’s advisory recommendations to the national authorities can stand as an obstacle to claiming the existence of a causal relationship between the unlawful conduct and the victim’s damage, due to the interposition of the state’s official decision on an asylum claim. Ultimately, as has been argued, the fact that the agency’s cooperation with the Member States can take different forms, depending on the national asylum systems and the articulation of the domestic procedures, ‘makes EUAA a catalyst in the rule of law crisis because of the lack of viable ways to access justice for asylum seekers’ and increases the risk of fragmented judicial protection.[126]

3.2.3.   Lack of effective oversight 

A distinct feature of the EUAA Regulation is the monitoring mechanism on ‘the operational and technical application of the CEAS’.[127] This monitoring system, whose functioning is outlined in a decision by the Management Board,[128] cannot be regarded as a form of political oversight on the agency, as its goal is to ‘prevent or identify possible shortcomings in the asylum and reception systems of Member States and to assess their capacity and preparedness to manage situations of disproportionate pressure so as to enhance the efficiency of those systems’.[129] On the contrary, there are limited improvements as regards the monitoring of the agency. 

The Fundamental Rights Strategy states that ‘the Agency is accountable towards the EU institutions and its governing structures’.[130] Nonetheless, the EUAA Regulation confirms the intergovernmental nature of the Management Board, as for other agencies, which constitutes a challenge to the independence of the agency. This can partly be counterbalanced by the establishment of a Fundamental Rights Officer and an upgraded role for the Consultative Forum. In particular, the Fundamental Rights Officer is responsible for ensuring compliance with fundamental rights in all EUAA activities and for promoting the agency’s respect for fundamental rights.[131] The Fundamental Rights Officer is also interfaced by the Executive Director who ‘shall, after informing the host Member State, suspend or terminate, in whole or in part, the deployment of asylum support teams where it is, inter alia, ‘consider[ed] that there are violations of fundamental rights or international protection obligations by the host Member State that are of a serious nature or are likely to persist’.[132]

As noted about EASO,[133] the Consultative Forum has the potential to contribute to the social and democratic accountability of the agency, thereby partly remedying the insufficient oversight mechanisms. While having a rather limited role in the former institutional setup of EASO, the EUAA Regulation enhances the role of the Consultative Forum, despite confirming that it is ‘a mechanism for the exchange of information and the sharing of knowledge’.[134] While the Consultative Forum has gained the more specific tasks of advising the Executive Director and the Management Board on asylum issues,[135] its real impact will primarily come to light in respect of the new operational dimension of the agency. 

Significantly, Article 67 of the EUAA Regulation establishes that ‘the activities of the agency shall be subject to the inquiries of the European Ombudsman’. This can be read as an attempt to recognise the growing quasi-judicial review provided in the past few years on EASO activities and to add a guarantee of external oversight to a system that still raises doubts about political independence. In contrast to the other two agencies, Frontex and Europol, over which different EU institutions have already exercised more accurate control, EASO has been especially subject to the investigations of the European Ombudsman. While this may constitute a valid accountability channel,[136] it might not be sufficient in light of the role that the agency is called to play in the future management of the CEAS.

3.3.  European Agency for Law Enforcement Cooperation (Europol)

Europol is a key actor not only in police cooperation but also in migration matters.[137] Established as an international organisation by the Member States of the European Community (EC) in 1995, Europol initially possessed only ‘minimal operational autonomy’ and was ‘fully dependent on the willingness of national authorities’ to provide it with information by which it could achieve its aims.[138] Subsequent modifications to its mandate added to its competences the power to coordinate and carry out operational tasks – for instance, in the framework of Joint Investigation Teams (JITs) – to assist Member States in their national investigations of organised crime.[139]

Through subsequent modifications, it not only acquired new operational capacities but also the potential to request the Member States to initiate, coordinate, or conduct investigative actions, with refusal of national authorities to accede to these requests requiring justifications.[140] In 2016, Europol further enhanced its operational role with the creation of the European Migrants Smuggling Centre (EMSC).[141]

Already under its 2009 legal framework, the agency was competent to sign operational and strategic cooperation agreements with external partners. Under the current framework, Europol is capable of establishing contact points, seconding liaison officers, and signing working arrangements with competent third country authorities. While these arrangements may not form the basis for international data exchanges, such exchanges are possible on the basis of old cooperation agreements, EU-third country agreements, or a Commission adequacy decision. Concerning Europol’s external competences, it is remarkable that the provisions in its legal framework remain succinct and vague – only mentioning the competence to exchange data with third countries – whereas its cooperation practice demonstrates the agency’s ability to provide intelligence development and analytical support to third countries with the active-on-the-spot participation of Europol officers in an international anti-smuggling action.[142] A recent reform strengthening Europol’s mandate shows that this ‘mission creep’ is not bound to stop yet.[143]

Fundamental concerns about Europol’s compliance with human rights have existed since the nascent stages of the agency’s operations, especially concerning its data exchange activities.[144] Europol’s collection, storing, and processing of data may directly violate the fundamental rights of data subjects.[145] In his decision of 3 January 2022, the European Data Protection Supervisor (EDPS) ordered Europol to delete the data of individuals with no link to criminal activities.[146] According to the EDPS, Europol had acted in breach of inter alia data retention rules, keeping personal data stored for longer than necessary.[147] Such data protection concerns also exist – and are even exacerbated – when the agency exchanges personal data with third countries, as there is a notable difficulty in ensuring that legal safeguards are complied with by partners in third countries.[148] The Schrems II judgment by the CJEU illustrates this. In that case, the Court invalidated the legal basis for international data exchanges between the EU and the United States (US), as US law did not ensure a level of protection to citizens that was ‘essentially equivalent’ to that of the Charter.[149]

Further risks arise from interoperability regimes, which are designed to enhance the interconnectivity of databases. These regimes grant Europol unprecedented access to various AFSJ databases — including non-law enforcement ones — raising significant privacy concerns.[150] Additionally, Europol’s operational coordination may lead to indirect breaches of other human rights, such as the right to a fair trial or the ne bis in idem principle. It is conceivable that Europol-facilitated investigations could result in unlawful arrests, detentions, or ill-treatment by third-country authorities.[151] In spite of these human rights concerns, the three problems in relation to access to justice, which were discussed above for the other two agencies, are also apparent in Europol’s activities.

3.3.1.   Lack of transparency 

A first problem is that Europol’s activities, especially the operational and external ones performed, are insufficiently transparent and bring with them a degree of secrecy, just as witnessed in the case of Frontex.[152] The provisions on external relations in Europol’s constitutive framework are rather broad, vague, and succinct, only referring to the exchange of personal data. Its practice shows, by means of annual reports and press releases on its website, a different story. On the ground, the Agency carries out operational tasks, such as assisting in individual criminal cases, and does not hesitate to showcase the results.[153] Moreover, in the external dimension, Europol is even indirectly involved in reforming the laws and security systems of third countries by carrying out certain capacity-building tasks, even though these powers are not explicitly reflected in Europol’s constitutional framework.[154] What the precise activities of the agency entail, how the cooperation with the Member States and third country authorities is envisaged, and to what extent Europol’s own actions lead to investigations, arrests, and prosecutions, is overall unclear. Whereas researchers have made efforts to uncover this veil of secrecy by requesting access to documents, there are notable examples in which Europol has refused partial or complete access, mostly based on public security concerns.[155] For instance, the requests by David Fernández-Rojo to access documents on Europol’s operational powers in the context of migrant smuggling were all systematically denied by the agency.[156] While it may be thought that Europol could, through its reports, shed more light on its activities, these reports also ‘make no clear effort to provide transparency’; they do not, for instance, specify the ‘nature, extent and outcomes of intensive cross-border policing practices at land borders within the EU’.[157]

An argument could, of course, be made that at times security concerns or other exceptions justify the refusal of access to documents relating to Europol’s activities. Nonetheless, the 2016 Decision by the agency’s Management Board on the application of Regulation 1049/2001 states that ‘[i]n principle, all documents should be accessible to the public’. Only by way of exception should such access be restricted to protect public and private interests.[158] However, the examples mentioned, as well as certain cases before the European Ombudsman, show that refusal based on exception grounds seems to be used more as a rule than an exception. For example, in a decision of 15 July 2024 on the disclosure of documents related to the draft EU legislation on sexual abuse, the European Ombudsman held that ‘Europol’s application of the exceptions was in the form of short propositions that seem to have been based on assumptions. It did not explain why and in what way the disclosure of the specific documents concerned would actually and specifically harm its relations with third parties, nor did it in any way explain what decision-making processes could be seriously undermined, and how’.[159] Some of the complaints before the European Ombudsman regarding public access to Europol’s documents  – for instance on its operational tasks in combating illegal migrant smuggling – have made it possible to obtain partial access to some of the agency’s documents.

This lack of transparency and the secretive practices by Europol undermine access to justice possibilities for alleged violations of fundamental rights. As the EDPS has stated in relation to data protection, ‘[t]he right to information is also of utmost importance as it allows the exercise of other data protection rights, including the right to remedies’.[160] If data subjects are, for example, unaware of their data having been processed by Europol, they cannot exercise their right of rectification and erasure of the data.[161]

3.3.2.   Imperfect remedies

As regards remedies, it is necessary to note that a couple of complaints mechanisms exist to remedy potential fundamental rights violations by Europol, but that these may not always be as effective for persons to obtain redress for harm suffered. When data subjects consider that Europol’s processing of their personal data does not comply with the Europol Regulation, apart from the possibilities to rely on national mechanisms, they may lodge a complaint with the EDPS, which shall hear and investigate these complaints before informing the data subject of the outcome.[162]

In the case of damage resulting from an unlawful data processing operation, the person in question shall receive compensation for the damage suffered, either under national law by the Member States or under Article 340 TFEU by Europol.[163] The action against Europol can be brought before the Court of Justice, and the action against the Member States before a competent national court.[164]Moreover, the general possibility exists for the Court of Justice to rule on disputes concerning the compensation for damages by Europol staff.[165] While these possibilities, in theory, provide data subjects a multitude of opportunities to obtain redress, it appears to be difficult to realise this potential in practice. In order to exercise its rights, the data subject must first have knowledge about the data having been processed, something that is hampered by the above-mentioned opaque legal provisions and secretive practices of the agency. Moreover, human rights violations in the area of shared administration are usually the result of joint conduct between the agency and the Member State. It is in these cases that it is difficult to establish responsibility and obtain judicial redress, given that the Union’s liability regime was originally not meant for the adjudication of joint responsibility for harm caused by joint EU and Member State conduct.[166]

However, in the 2024 Kočner case, the CJEU’s Grand Chamber established joint and several liability of Europol and a Member State for damages resulting from the unlawful processing of personal data.[167] The individual is not required to identify whether it was Europol or the Member State that performed the conduct which constituted the unlawful processing. It is sufficient that the individual suffered damage as a result of unlawful data processing in the course of cooperation between Europol and the Member State.[168] This solution of joint and several liability, thus, enhances the possibility of remedy, given that the individual is not required to pinpoint which of the two authorities the wrongful conduct is to be attributed to. While the case sheds much-needed light on the issue of shared responsibility in the EU legal order, an important caveat is that the joint and several liability framework propounded by the Court rests primarily on the particularities of the then-applicable Europol Regulation.[169] Therefore, the broader ramifications of the case beyond privacy and data protection rights, beyond the 2016 Europol Regulation, and beyond Europol, remain highly uncertain at the very least. Kočner notwithstanding, the long-expressed difficulties in holding EU agencies responsible for harmful collaborative conduct thus appear to persist.

3.3.3.   Lack of effective oversight 

Challenges have been identified with regard to the control of Europol’s actions by institutional and non-institutional actors. Just as was the case with Frontex, Europol must respond to the European Parliament by means of forwarding annual reports and presenting and discussing the activities through the Director, where the Parliament has the competence to approve or withhold the agency’s budgetary discharge.[170] Moreover, the Member States’ parliaments can also exercise control over the agency’s activities, with the possibility to invite Europol’s Executive Director to present and discuss the agency’s activities.[171] Furthermore, the Joint Parliamentary Scrutiny Group (JPSG), established by the national parliaments and a committee of the European Parliament, politically monitors Europol’s activities, including those that may impact the fundamental rights of persons.[172] Whereas much – according to some too much[173] – control is exercised over Europol by these institutions, some challenges remain. 

First, the European Parliament cannot have access to classified information, if the originator of that information – with Europol, this is mainly the Member State – refuses disclosure.[174] The agency’s secretive ways of working may, then, too become detrimental to parliamentary scrutiny over Europol’s activities. Second, as has been highlighted, the effectiveness of the JPSG may be hampered by its large size, several procedural issues, and the complexity of adopting substantial summary conclusions.[175]Nevertheless, interest from the national parliaments and the European Parliament in exercising their oversight role has been strong, as attested by the wide variety of questions posed by them to Europol.[176] Besides the parliamentary control over Europol, the EDPS also exercises scrutiny over Europol’s activities. It may, for instance, warn or admonish the agency, order it to carry out rectifications, impose a ban on processing operations by the agency, and refer a matter to the Court of Justice.[177] After the EDPS had made use of these competences, the EU institutions initiated the downsizing of its powers, notably by lowering the situations in which the EDPS must be informed or notified about data transfers by Europol.[178]

4.   The principles of good administration and their contribution to access to justice

The synoptical analysis of the three EU agencies has contributed to explaining that – although to different degrees – they reproduce similar problems that impair complete access to justice. Together, these factors create substantial barriers that impede individuals’ ability to seek and obtain justice, also because they make it overly complicated to identify the appropriate judicial forum for possible victims to exercise their right to an effective remedy. 

Accordingly, this Section aims to explain how access to justice could be enhanced by better integrating elements of good administration and governance, such as ‘transparency’ and ‘control’. Along with remedies, these elements are interrelated and inextricably linked as well as functional to the rule of law, of which access to justice is a clear manifestation, as individuals must be able to challenge administrative actions, and institutions must act lawfully, fairly, and transparently. While transparency enhances individuals’ possibilities to obtain redress for the harm they suffered, it also allows judicial and administrative bodies to scrutinise the activities of the agencies better. Moreover, actors that exercise external oversight on the agencies may recommend improvements in terms of judicial pathways, thereby contributing to access to ad hoc ‘remedies.’ 

A focus on these elements may contribute to fulfilling the requirements for good administration; in other words, it can open new scenarios of legal protection in EU shared administration. It is argued here that the latter should be grounded in the principles of good administration and governance,[179] aligning with the overarching values of transparency, due process, and accountability. Additionally, the EU shared administration must reflect the right to good administration, as enshrined in Article 41 of the EU Charter. Figure 1 below illustrates how access to justice could be strengthened by integrating and improving good administration. In line with John Rawls’ vision,[180] this approach feeds into the understanding of justice not only as judicial fairness but also as a sense of administrative fairness. Such a dimension of fairness beyond the access to remedies will be explored in the following sub-sections, by focusing on transparency (4.1), due process (4.2), and accountability (4.3).

Figure 1. Access to justice through good administration  

4.1.  Fostering transparency

A recurring problem for all three agencies analysed is the lack of transparency, owing to secretive ways of working, but also to the unclear allocation of tasks between state authorities and agencies. In this context, transparency serves not only to foster core values that link individuals to a given polity but also functions as a valuable method of ensuring clarity about rights and obligations. Transparency is therefore a fundamental precondition for a well-functioning administration.[181] It connects with several principles of good administration, such as the principle of providing relevant information, the principle of access to administrative documents and the principle of justification of relevant decisions. Some of these principles have been spelled out clearly by the CJEU, which has also generally referred to good administration as a general principle of EU law without further elaboration.[182]

The lack of full public transparency in the activities of EU agencies is plausible in certain circumstances, given the areas they operate in. This is further justified by the need to maintain the confidentiality of law enforcement-related documents for security reasons.[183] These confidentiality considerations are illustrated by a recent judgment of the General Court that partly condoned a decision by which Frontex refused, without appropriately stating the reasons, to disclose documents relating to the pullback to Libya of a boat in distress in the Maltese search and rescue zone, where the agency was present with a drone.[184] This decision was based on the public security exception under Article 4(1)(a) of the Freedom of Information Regulation 1049/2001. Be that as it may, the lack of transparency significantly hampers both individuals’ ability to access remedies and the capacity of oversight bodies to conduct effective scrutiny. When relevant information is withheld or access to essential documents is obstructed, individuals are deprived of the tools necessary to challenge decisions or actions that affect them. Similarly, oversight bodies are unable to fulfil their mandate of ensuring accountability and compliance with legal and ethical standards, thereby undermining the rule of law. 

In order to foster transparency and decrease the risk of agencies stretching their legal powers, several steps can be taken. The first step entails better circumscribing the legal mandates, tasks, and activities of these bodies. This does not necessarily require an amendment of their statute. Such an amendment would require a cumbersome legislative process, whose feasibility is questionable, for instance, due to the overall positive evaluation of the performance of these EU agencies. More clarity can be provided in the Operational Plans between the agency and the Member States. These can include clear instructions to the staff involved in the operations about the duty to inform the migrants about their rights and possible remedies.  

Second, the agencies should adopt a proactive stance when it comes to access to information. As emphasised by Paul Craig, ‘access to the relevant documentation is crucial for understanding the reasons behind governmental action’.[185] Early CJEU case law has already established that denying access to administrative documents constitutes a violation of the principles of good administrative practice.[186] This also represents a fundamental preliminary step toward ensuring access to justice. Data subjects, for example, should be informed about their data having been exchanged, so as to be able to effectuate data protection rights (see Section 3.3.1). This is all the more true for international data exchanges, given the augmented fundamental rights risks when cooperating with countries that are not bound by EU data protection law. 

Third, and more importantly, the need to ensure more transparency derives from the right to a good administration, enshrined in Article 41 of the EU Charter. This provision establishes that, despite the necessary ‘legitimate interests of confidentiality and of professional and business secrecy’, every person, including third country nationals, should have full access to all documents and files concerning their dossier. While acknowledging the legitimate concerns of confidentiality and the protection of professional and business secrecy, the provision underscores that such limitations should not unduly restrict access to critical information necessary for procedural fairness. Moreover, Article 41 imposes a clear obligation on authorities, including agencies, to provide clear and reasoned justifications for their decisions. This requirement ensures that decisions affecting individuals are not only made in compliance with legal and procedural standards but are also communicated transparently. 

4.2. Enhancing due process through complete remedies

Another problem present in all three agencies is that the system of remedies is incomplete and rather asymmetrical, notwithstanding the significant advances that were made over the last years in terms of fundamental rights safeguards and complaints mechanisms for individuals who suffered harm from the agencies’ actions. This is problematic, given that the principle of effective judicial protection lies at the core of the mainstream notion of access to justice, providing procedural safeguards for individuals to enforce other rights.[187] From this perspective, it not only connects with the right to a fair trial but also embodies the administrative principle of due process. In the well-known Kadi judgment, the CJEU confirmed that procedural safeguards must be available to ensure a basic level of fairness and procedural rights.[188]

The right to a good administration, as enshrined in Article 41 of the EU Charter, highlights the importance of fair and impartial administrative procedures within EU institutions, including agencies, against the risks of arbitrary administrative conduct. As has been argued, this means that failure to comply with the principle of good administration may lead to declaring an act invalid and even result in rights to damages for individuals.[189] This is also reiterated in Article 41(3) of the Charter, stating that ‘every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States’. A similar provision is also included in the constitutive frameworks of the three agencies under study.[190] The operationalisation of such a provision requires the availability of appropriate remedies, within the agencies at the administrative level and externally at the judicial level. 

The three EU agencies show substantial differences as to the design of the complaints mechanisms, ranging from a more sophisticated one within Frontex to more rudimentary forms within the EUAA and Europol. Significant improvements are, thus, necessary in terms of the effectiveness of these individual mechanisms. First, while the European Ombudsman has stressed that the mechanism in the case of Frontex – regulated by Article 111 of the Regulation – has partly become more accessible,[191] there is a need to raise more awareness about the scope and potential of these complaints mechanisms. The annual reports of the Fundamental Rights Officer indicate that the number of complaints related to Frontex has increased over the years.[192] However, the reports also highlight a high rate of inadmissibility among these complaints.[193] This illustrates the need for the agency to enhance its awareness campaigns, aimed at clarifying the proper procedures for lodging complaints. In line with this, the Frontex Fundamental Rights Officer has recommended ensuring the correct and accessible display of complaint materials at all relevant border crossing points, particularly in Poland, Lithuania, Slovakia, and Romania.[194] This practice could be upscaled and reproduced by other agencies.

Second, more procedural safeguards must be embedded within these complaints mechanisms. These mechanisms cannot be regarded as an effective remedy in the light of Article 47 of the EU Charter and, despite their potential, they procedurally lack adequate and independent follow-up and redress. A proposal could involve allowing individuals who have suffered fundamental rights violations during joint operations led by or involving EU agencies to seek compensation directly from the agency's budget through the existing complaints mechanism. Such a system will provide a tangible form of redress, supporting the right to an effective remedy and a fair trial enshrined in Article 47 of the EU Charter. It additionally serves as a critical step toward ensuring that the complaints mechanism is not merely symbolic but rather an effective tool for enforcing rights. Finally, it is worth stressing that improvements in terms of awareness, accessibility and follow-up in the agencies’ complaints mechanisms are crucial in light of the challenges individuals face in pursuing judicial remedies before the Court of Justice. These elements are crucial to enhance access to justice and possibly remedy the inherent limits of the existing EU judicial remedies. 

In this connection, it is worth reiterating that there are limited chances for migrants to get their claims past the admissibility stage before the Court of Justice. An illustration of this accountability conundrum can be seen in the General Court’s decision in WS and Others v Frontex.[195] In this case, the General Court overlooked the agency’s de facto involvement in executing a return decision, asserting that responsibility rested with the national authorities due to their de iure competence in adopting return decisions. 

On the other hand, the Court of Justice has also considered other judicial solutions. In Kočner, on appeal, the Court ruled that Europol and the Member State involved in unlawful data processing are jointly and severally liable under EU law.[196] To claim this liability, the individual must prove only that the unlawful data processing occurred during their cooperation, without needing to attribute the breach specifically to either entity, contrary to the General Court's earlier position. It is true that in Kočner, the Court was facilitated by the relevant provisions of Europol’s statute. However, as emphasised by Advocate General Ćapeta in her Opinion on the appeal case in WS and Others v Frontex, in Kočner the Court did not establish a general principle that joint and several liability must be expressly provided for in EU legislation.[197] Similar possibilities can, therefore, be explored concerning other agencies. For example, in cases involving Frontex, the Court could seize the chance to explore the potential application of Article 7 of Regulation 2019/1896, which addresses the concept of shared responsibility between the agency and Member States.[198]

Legal actions before the Court are crucial because they can stimulate the Court’s jurisprudence and contribute to adapting the system of EU judicial remedies to the emerging shared administration, in which EU agencies and national authorities become increasingly interconnected. Moreover, courts play a vital role in upholding the rule of law, including safeguarding access to justice and ensuring effective judicial protection. However, they are not always ideally positioned to implement far-reaching changes to the existing system. In any event, their intervention is ex post, while a broader and more complete notion of access to justice must consider factors that serve as ex ante safeguards preventing the occurrence of grievances and securing a well-functioning administration. 

4.3. Embedding accountability 

The investigation into the three EU agencies’ set-up has illustrated existing problems relating to the lack of fully independent, accessible, and effective monitoring bodies. The lack of effective oversight is a problem that has been more extensively acknowledged in the literature, though especially regarding Frontex.[199] It connects with accountability that, despite being an ‘elusive concept’, ‘is an ingredient of good governance’.[200] From this perspective, the concept goes beyond responsibility or liability and refers to a mechanism that legitimises power and decision-making by allowing an entity to be held to account by another entity (forum).[201]

While in traditional constitutional settings, parliaments and courts are the main fora for democratic and legal accountability, respectively, the rise of EU shared administration challenges these traditional patterns of accountability. As illustrated in Section 2, the three EU agencies operate under a mixed regime involving EU and national contingents, which makes the system of control and political oversight difficult.[202] This difficulty is a consequence of the opacity typical of composite procedures involving various actors corresponding to different levels of governance (i.e. the EU and the Member States).[203] The resulting ‘accountability shortages’[204] undermine the rule of law and the realisation of effective access to justice. Migrants face significant challenges not only in identifying and accessing appropriate remedies but also in relying on external and independent oversight mechanisms capable of preventing or addressing misconduct by EU agencies. 

Admittedly, the operational and at times ‘factual’ nature of the agencies’ activities does not offer clear avenues for judicial review by the Court of Justice. Until the Court does away with its strict criteria for these matters, it might be best to focus on improving agency-specific complaints mechanisms, external monitoring and correction possibilities, and access to national Member State or third country courts.[205] For these alternatives to be effective, information on what, how, and when, agencies have performed a certain activity, and to what extent their action has led to the infringement in question, will be indispensable.

As judicial oversight is challenging, it is worth emphasising that political oversight may have a strong potential to embed accountability. Although EU institutions have at times taken a firm stance on fundamental rights infringements by EU agencies — for instance, the European Parliament’s vote to withhold Frontex’s budget discharge[206] — there have also been developments in the opposite direction. Particularly troubling is the decision by the institutions to ignore, and even override, the EDPS’s warnings to Europol, and, more strikingly, to weaken the EDPS’s oversight powers in the new regulation for Europol. Finally, it is evident, perhaps even a truism at this point, that the work of bodies conducting oversight over the agencies’ activities is significantly impeded by the lack of transparency over what the agencies do in practice. It is important that crucial information, such as the findings of the OLAF report on Frontex’s alleged role in pushback operations, be given to democratically elected representatives, to allow them to do the job they were tasked with. On top of this, external actors, such as the European Court of Auditors (ECA), the European Ombudsman and the Consultative Forum, can play a synergic role in ensuring an overall and continual monitoring of EU operational agencies’ activities and their compliance with fundamental rights.[207]

A concrete realisation of access to justice requires embedding principles of control and accountability internally, within the functioning of the agencies. From this perspective, it is pivotal that those bodies that have been established to exercise oversight on the agencies, such as the Fundamental Rights Officers, be guarded against pressure and influence from the agencies, their Directors and Boards, both de iure and de facto.[208] The full independence of such bodies, which are a part of the agencies’ institutional structure, is, therefore, a crucial priority in the future of EU shared administration. The evolution of such a form of administrative setting will also contribute to shaping accountability regimes,[209] which could, therefore, offer more possibilities to close the existing accountability gaps.

5. Conclusion

The rise of EU shared administration, based on the cooperation between national authorities and EU bodies, has significantly changed the governance and administrative ecosystems of many policies.[210] A clear illustration is offered by the Union’s policies on asylum, migration, border control and internal security that increasingly rely on the intervention of EU agencies, such as Frontex, EUAA and Europol. In an attempt to provide a detailed overview of the challenges raised by the expanding mandate of these EU agencies, this article focused on the contribution and potential of the principles of good administration to enhancing access to justice. 

The traditional and predominant view of access to justice, defined primarily in terms of access to court or judicial remedies, fails to capture the complexities of the EU agencies’ operational landscape. Through an extensive review and analysis of relevant documents and reports from civil society organisations and independent bodies, this article has systematised such problems along three major categories related to lack of transparency, availability of effective remedies, and lack of oversight.[211] Taking this set of problems into account, it has explained various ways in which access to justice can be strengthened through the principles of good administration, with transparency, due process and accountability as core elements. Access to justice should be understood as a multidimensional concept, of which access to court constitutes an essential yet only one possible aspect for the complete fulfilment of the notion in the context of EU shared administration. In sum, this article has suggested several steps that may help to improve the overall system of EU shared administration by looking at the contribution that the principle of good administration can offer to strengthen access to justice as a core element of the rule of law. 

First, transparency ensures that individuals and oversight bodies have the information necessary to understand and challenge EU agencies’ actions. The lack of transparency is particularly acute in the external activities of the agencies, where cooperation with third countries often occurs under a shroud of secrecy. Without adequate access to information or clear operational mandates, individuals cannot effectively seek proper access to justice, and oversight bodies are unable to perform their roles. Transparency, as enshrined in the right to good administration under Article 41 of the EU Charter, must extend beyond formalistic obligations to provide reasons for decisions. It should encompass proactive disclosure of operational details, clear delineation of agency responsibilities, and accessible documentation of actions taken.

Second, the principles of due process and administrative fairness are crucial to making the existing imperfect remedies complete and deliver on the core component of access to justice. In particular, this article has suggested that administrative and quasi-judicial mechanisms must be strengthened to ensure that they provide meaningful redress. The internal complaints mechanisms of agencies such as Frontex and EUAA represent steps in this direction, but their effectiveness is often limited by procedural shortcomings, lack of independence, and inadequate follow-up. They should include provisions for financial compensation, independent adjudication, and greater procedural safeguards to ensure that they function not as symbolic gestures but as robust tools for enforcing rights.

Third, oversight mechanisms are equally vital to embed accountability within the complex structure of the EU shared administration. The opacity of composite procedures and the involvement of multiple actors make traditional accountability frameworks insufficient. Both internal and external oversight must be strengthened. Internal bodies like the Fundamental Rights Officer should operate with full independence, while external actors, such as the European Ombudsman, the European Court of Auditors, and the European Parliament, should assert their roles more effectively. Democratic accountability through parliamentary scrutiny, including measures such as withholding budgetary approvals, provides a crucial counterbalance to the executive powers of fundamental rights-sensitive agencies.

These steps require recognising the preventive role of administrative safeguards. Judicial remedies are often reactive, addressing harms after they have occurred. A more comprehensive approach should integrate ex ante measures that mitigate grievances by ensuring that agencies’ conduct and operations adhere to legal and procedural standards from the outset. Through this approach, the EU will not only strengthen the architecture of shared administration but also ensure that it aligns with constitutional principles and fundamental rights, appropriate for a ‘community based on the rule of law’.[212]