Articles for tag: Beweislast, Frontex, Kollektivausweisung, Rechenschaftspflicht, Rechtsgutachten

Tilting the Scales

On April 10 2025 AG Norkus delivered his Opinion in the appeal of Hamoudi v Frontex (Case C-136/24). In it, he tackles a question that is pivotal not only for Mr. Hamoudi’s right to compensation but also for the evolution of the EU legal system: how should the CJEU address stark power imbalances in evidentiary matters? In formulating EU procedural rules for cases involving collective expulsions, the CJEU should take into account the blatant asymmetry in accessing evidence existing between asylum seekers adrift at sea and an EU Agency equipped with cutting-edge surveillance technology. Yet, the reasoning of the AG on the allocation of the burden of proof misfires in some crucial respects.

15. Mai 2025

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Durchschlagskraft für Sorgfaltspflichten

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Die bevorstehende Verabschiedung der EU-Richtlinie über die Sorgfaltspflichten von Unternehmen im Hinblick auf Nachhaltigkeit (Corporate Sustainability Due Diligence Directive, CSDDD) könnte die Regulierung der Waffen- und Rüstungsindustrie in Europa drastisch verändern. Während sich das EU-Parlament, die Kommission und der Rat darauf vorbereiten, in den so genannten „Trilog“ einzutreten, um einen endgültigen Text zu verabschieden, ist noch offen, ob sie auch den Waffenhandel in den Geltungsbereich der Richtlinie einbeziehen werden. In diesem Beitrag beleuchten wir einige Accountability-Defizite in derzeitigen europäischen Regelungen über die Ausfuhr von Feuerwaffen. Die CSDDD könnte dazu beitragen, jene Defizite zu beheben und gleichzeitig den illegalen Handel und die Umleitung von Waffen zu verhindern.

31. Mai 2023

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Accountability in Brazil

The end of Jair Bolsonaro’s presidency is far from marking a return to normality in Brazil. After the riots of 8 January, which aimed to create the conditions for a coup in Brazil, authorities and institutions had to deal with several turbulences and the issue of Bolsonaro's responsibilization has been a permanent concern. To evaluate the efficacy of these responses, it is important to discuss how these institutions have been dealing with Jair Bolsonaro’s legacy. Moreover, it is equally important to understand the challenges President Lula is facing, which are partly due to the difficulty to reach political compromises. The recent police raids that seized documents and devices in Bolsonaro’s house, and arrested some of his direct aids, adds complexity to the situation, as we will attempt to explain.

8. Mai 2023

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Frontex and ‘Algorithmic Discretion’ (Part II)

Part I of this contribution explains how the regulatory design of the European Travel Information and Authorisation System (ETIAS) raises issues in relation to the rule of law principle of legality. Essentially, the ETIAS screening rules algorithm illustrates how automation can lead to what I suggest is a new form of arbitrariness. Part II reflects on how these legality issues affect other rule of law principles, including the principle of effective judicial protection. In turn, it raises three accountability issues and calls into question the assumption that the safeguard of manual processing in case of a ‘hit’ is a panacea for all rule of law challenges stemming from this semi-automated decision-making.

10. September 2022

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Frontex and ‘Algorithmic Discretion’ (Part I)

This contribution, presented in two parts, offers a predictive glimpse into future rule of law challenges due to the European Border and Coast Guard Agency’s (Frontex) primary responsibility for the automated processing and screening rules of the soon-to-be-operational European Travel Information and Authorisation System (ETIAS) at the EU’s external borders. . In Part I on legality, I argue that the ETIAS screening rules algorithm illustrates how automation can lead to what I suggest is a new form of arbitrariness – which I refer to as ‘algorithmic discretion’. This can be defined as a situation where the exercise of power and discretion and their limitations are not sufficiently specified at the legislative level but are delegated to an algorithm instead.

10. September 2022

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Financial Scrutiny of Frontex as a Political Accountability Tool

An investigation by the European Anti-Fraud Office (OLAF) on allegations of misconduct within Frontex ended with a report classified as confidential, which was therefore only accessible to the agency’s Management Board. Shortly after submission of the report, Frontex’ Executive Director (ED), Fabrice Leggeri, resigned, opening up a new cycle in the governance of the agency. Following up on this, the European Parliament (EP) decided to postpone the discharge of Frontex’ budget on the ground of lacking information with regard to the subject of the OLAF report. In this contribution, I argue that the EP’s refusal to approve the discharge of the budget of Frontex, even though having little impact on the financial stability of the agency, is a tool to enable the political accountability of Frontex.

8. September 2022

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European Oversight on Frontex

The scandals about the complicity of Frontex in human rights violations in autumn 2020 exposed weaknesses in the accountability system. In this blog, I will elaborate on this by presenting the rules governing democratic accountability, followed by an analysis of the lessons learned during the parliamentary inquiry on Frontex’ human rights-related performances, in the light of their obligations. I will conclude with ideas on how to strengthen democratic accountability, and how to expand it to the much-needed public accountability of Frontex. 

8. September 2022

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What Makes Responsible Government Responsible?

How important is it for a Parliament to know which Ministers are appointed to administer which departments? This odd question has been at the centre of a furore in Australia in recent weeks. It has focussed attention on the legal and political requirements for ‘responsible government’, to use the characterisation of the relationship between Crown, Ministers and Parliament that is in common use in parliamentary systems in the British tradition, including those in Australia. It raises some intriguing questions for the construction of the executive chapter of the Australian Constitution, which are all the more important in times of global concern about democratic decline.

31. August 2022

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Unilateral Trade Measures in Times of Geopolitical Rivalry

The European Union’s unilateral trade policy is in motion. On 5 May 2021, the European Commission adopted a proposal for a regulation to tackle foreign subsidies; in March 2021, the Commission launched a public consultation on an ‘anti-coercion’ instrument. As the EU is entering a new era of economic statecraft, a new balance between democratic accountability and efficient decision-making is needed.

25. Mai 2021

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