From Directness to Foreseeability – Cyber Tech

On 18.12.2025, the Courtroom of Justice of the European Union (CJEU) issued its judgment on the enchantment in opposition to the Basic Courtroom’s Order in W.S. and Others v Frontex. The judgment is uniquely essential because the CJEU deviated from the teachers’ view that the causal inquiry shall be carried out in two steps and used as a substitute the causal take a look at of directness. On condition that adjudicating fora are more and more counting on much less demanding causal assessments, particularly the take a look at of foreseeability in circumstances of multi-actor involvement in a refoulement, the CJEU ought to implement this technique the place Frontex and the EU Member States are concerned in refoulement-related harm.

Background of W.S. and Others v Frontex

W.S. and Others v Frontex involved a number of Syrian nationals, who, a couple of days after their arrival in Greece and regardless of having expressed their intention to use for worldwide safety, had been deported to Türkiye in a joint return operation undertaken by Greece and Frontex (paras. 2–16). The candidates sought compensation for the harm flowing from Frontex’s failure to substantiate the existence of a return determination regarding them. Nevertheless, their motion for damages was dismissed, after the Basic Courtroom discovered that Frontex was not competent to evaluate return choices or worldwide safety functions, and, thus, that there was no causal hyperlink between Frontex’s conduct and the harm suffered by the protection-seekers (para. 66). Thereafter, the candidates appealed to the CJEU.

In her Opinion, the Advocate Basic proposed the next. When the CJEU assesses the fulfilment of the circumstances for the willpower of the EU’s non-contractual legal responsibility (i.e., the existence of an illegal act dedicated by Frontex, the existence of precise harm suffered by the appellants, and the existence of a causal hyperlink between the 2), it should first discover whether or not wrongful conduct had been dedicated by Frontex. Solely thereafter it ought to proceed with exploring the factual and authorized causation (i.e. whether or not Frontex’s wrongful conduct was a trigger in actual fact and in regulation of the harm suffered). Nevertheless, the CJEU proceeded in any other case. It held that because the circumstances for the willpower of the EU’s non-contractual legal responsibility are cumulative, the EU judicature doesn’t obligatory want to contemplate all of them, if considered one of them will not be met (para. 61). Henceforth, it will probably straight assess the existence of a causal hyperlink between the alleged wrongful conduct and the harm even with out explicitly figuring out the wrongful act and the harm.

The CJEU acknowledged that beneath the 2016 Frontex Regulation, Frontex bears the duty to substantiate the existence of return choices for all individuals included in return operations (paras. 101–102). Nevertheless, within the CJEU’s view, Frontex’s violation of this obligation didn’t robotically give rise to Frontex’s legal responsibility. To this finish, the existence of a direct causal hyperlink between Frontex’s omission and the harm alleged would should be additional examined (paras. 111–112, 148).

The CJEU reiterated {that a} direct causal hyperlink exists when the harm flows sufficiently straight from the illegal conduct, i.e. when the latter is the figuring out reason behind the harm (para. 150). Nonetheless, the Courtroom additional recalled that even when this causal hyperlink is established, it might be damaged, inter alia, by a contributing act of the affected individual, which happens between the conduct complained of and the harm suffered, if that act constitutes the determinant reason behind the harm (para. 151). This might be the case additionally within the occasion of the appellants, who upon their return to Türkiye determined to journey to Erbil.

Nevertheless, the Courtroom additional underlined that the evaluation of whether or not such a contributing issue is able to breaking the causal nexus requires a consideration of the circumstances, beneath which the choice was made, and of the actual vulnerability of asylum-seekers, which is more likely to have an effect on their judgment, as a result of their migration and the traumatic experiences (paras. 152–156). In such distinctive conditions, the choice of the asylum-seekers will be thought to be an inexpensive response to the danger of being subjected to refoulement and the causal hyperlink between the illegal act of Frontex and the occurred damages might stay unbroken (paras. 157–158). On this mild, the CJEU held that the Basic Courtroom erred in concluding that the appellants’ determination broke the causal hyperlink, as a result of it was their very own selection, with out inspecting the context of that selection (para. 161).

Conflating factual and authorized causation

The problem for adjudicating fora in addressing overdetermination – particularly, conditions by which a number of causes (such because the acts of a number of wrongdoers) contribute to a single harm (similar to harm arising from refoulement) – has been repeatedly highlighted. A part of this problem lies within the conflation between the 2 steps of the causal inquiry, i.e. of factual and authorized causation. Within the particular case of W.S. and Others v Frontex, the excellence between the step of the factual and the authorized causation inquiry would require the CJEU (and earlier the Basic Courtroom) to evaluate the next. At step one, whether or not Greece’s wrongful failure to supply Frontex with return choices in regards to the appellants (para. 109), and Frontex’s failure to adjust to its obligation to confirm the existence of return choices (paras. 101–102) had been factual causes of the harm suffered by the appellants. In different phrases, whether or not they had been obligatory parts of a set of circumstances that was enough to offer rise to the appellants’ harm (see: Katsoni, pp. 74-77, 350-353). Then, on the second step, the CJEU would wish to carry out its authorized causation inquiry, i.e. to evaluate whether or not Frontex must be additionally held legally accountable for its contribution to the harm suffered by the refouled appellants. Or whether or not – regardless of its factual contribution to the harm via its failure to confirm the existence of return choices – it ought to bear no legal responsibility for another authorized cause (similar to because of the appellants’ contributory fault: see paras. 150-151 of the judgment).

The CJEU’s obiter on the way it thinks {that a} causal inquiry must be carried out reveals that the Courtroom doesn’t embrace this two-step strategy. The Courtroom would have complied with this two-step inquiry, if it had acknowledged that the Basic Courtroom erred in regulation by failing to evaluate first which wrongful acts had been dedicated by Frontex and Greece, in addition to whether or not these wrongful acts had been obligatory for the rise of the appellants’ harm. Solely then ought to it have assessed whether or not Frontex must be held accountable for (a part of) the appellants’ harm. But the CJEU determination to uphold the merge of the factual and the causal inquiry, and that the EU judicature will not be required to look at the circumstances for the rise of EU’s legal responsibility in any specific order (para. 61), will not be a novelty of this specific judgment.

The follow of not distinguishing explicitly between these two steps has been famous as a attribute of fora that want to conceal the exact rationale behind the conclusions of their causal inquiry. In such circumstances, the conflation of factual and authorized causation might not even have an effect on the end result of the inquiry. Certainly, it might be arduous to imagine – and positively tougher to argue – that the well-read CJEU judges couldn’t comprehend that the causal inquiry is in actual fact a two-step course of. By preserving the mysticism surrounding the causal inquiry, the CJEU granted the EU judicature with flexibility as to the parameters that it will probably think about all through this inquiry, to the detriment of transparency and foreseeability. Be that as it might, the CJEU’s judgment in W.S. permits us to infer additional hints as to the Courtroom’s view of an accurate causal inquiry in situations of overdetermined refoulement.

Selective utility of a “one dimension matches all” strategy

The CJEU underlined that for the EU to bear legal responsibility there shall exist a direct causal hyperlink between the EU’s wrongful conduct and the harm alleged (paras. 112, 148). Doing so, the Courtroom pointed to “directness” as the suitable take a look at of causation on this context. But this take a look at has been characterised as tougher to be met than the remainder of the causal assessments developed in jurisprudence (see Lanovoy, pp. 47–54), in addition to quite simplistic, given its restricted capability to seize inside its scope a number of causes that contribute to a harm (ibid, pp. 53–54). The Courtroom indicated its understanding of the that means of a “direct causal hyperlink” descriptively, holding that such a hyperlink doesn’t exist when the harm is a distant consequence (i.e. not a sufficiently direct one) of the wrongful conduct (paras. 149–150). On the similar time, it additionally underlined that the direct nature of the causal hyperlink should not be understood restrictively (para. 150).

On this means, the CJEU appears to be supporting a versatile understanding of the causal take a look at of directness, which has been additionally upheld by the Worldwide Courtroom of Justice (ICJ) in its latest Advisory Opinion on local weather change. There “the usual of ‘a sufficiently direct and sure causal nexus’ between an alleged wrongful motion or omission and the alleged harm” was discovered to be “versatile sufficient to deal with the challenges arising in respect of the phenomenon of local weather change” even in situations of overdetermination (para. 436). Nevertheless, the CJEU additionally famous that for the harm to be captured inside this take a look at, the EU’s wrongful act shall be the figuring out reason behind the harm within the sense that the harm wouldn’t have arisen within the absence of that conduct, which once more factors to a slim utility of the take a look at of directness (para. 153). This comment factors to a restrictive understanding of directness.

These obscure remarks, which partly help a slim notion of directness and partly a broad understanding thereof, protect some latitude of discretion for the Basic Courtroom in its evaluation of whether or not there’s a causal hyperlink between Frontex’s omission to confirm the existence of return choices and the applicant’s harm in W.S. and Others v Frontex. Though the CJEU’s determination to permit the EU judicature to stay versatile whereas making use of the causal take a look at of directness will not be itself problematic, the Courtroom’s selective consideration of normative components in some – thus not all – elements of its proposal of how the causal inquiry must be accomplished, is. These normative components had been primarily policy-based and value-laden components that ought to – within the Courtroom’s view – play a task within the willpower of whether or not duty and legal responsibility must be expanded or delimited (Stoyanova, pp. 16-17).

Though the CJEU took such normative concerns into consideration in a single side of its causal inquiry, i.e. throughout its reflection on why the appellant’s determination to journey to Erbil shouldn’t be perceived as breaking the causal chain between Frontex’s wrongful omission and the harm prompted, and will, thus, not exclude the Company’s legal responsibility, it didn’t think about any such parameters earlier than choosing the causal take a look at of directness. As an alternative, this selection was solely made because of the Courtroom’s reliance on the take a look at of directness in its established jurisprudence (para. 60). As the next part will spotlight, different fora have in related circumstances taken into consideration normative concerns, whereas selecting a take a look at of causation for his or her inquiries.

Normative concerns in different fora’s related causal inquiries

In its notorious judgment in Hirsi Jamaa and Others v. Italy, the Grand Chamber of the European Courtroom of Human Rights (ECtHR) was confronted with an utility regarding Italy’s involvement within the publicity of protection-seekers to the danger of arbitrary repatriation in Libya. The ECtHR took into consideration the scope and nature of the first rule at situation (i.e. non-refoulement) and examined the foreseeable penalties of Italy’s removing of the candidates to Libya (para. 117). It held that Italy knew or ought to have identified in regards to the absence of asylum procedures in Libya and that, by returning protection-seekers thereto, Italy breached Article 3 of the ECHR as a result of it uncovered them to the danger of arbitrary repatriation (paras. 154–158). Equally, in ZT v Australia, the Committee In opposition to Torture highlighted that in situations of chain refoulement, the initially deporting State will bear duty if it transfers protection-seekers to an intermediate state, from the place it’s foreseeable that they might be deported to a 3rd state that may topic them to the danger of torture (para. 6.4).

By counting on the causal take a look at of foreseeability, the above fora haven’t solely used essentially the most applicable causation take a look at for circumstances involving overdetermination, however have additionally proven consideration of the significance of non-refoulement, as the first rule that prohibits the hurt inflicted upon the candidates. Adopting the causal take a look at of directness for the evaluation of whether or not the EU’s wrongful act contributed (alongside a Member-State’s conduct) to (the harm stemming from) a refoulement and to (the harm stemming from) a loss within the worth of bonds, disregards that refoulement is a wrongful consequence that numerous typical, customary and even peremptory norms search to forestall. Completely different wrongful outcomes which have totally different authorized worth require the Courtroom’s engagement with a special take a look at of causation. In different phrases, they require the Courtroom to deviate from its normal follow of utilizing the take a look at of directness in all of its judgments, no matter whether or not these judgments concern the EU’s involvement in a refoulement or its involvement in a loss within the worth of bonds.

The necessity to decide on totally different causation assessments when normative concerns so require finds help in jurisprudence and in related scholarship. The ICJ has hinted to the necessity to decide on the causation take a look at that will likely be used relying on inter alia the hurt suffered, holding that “the ‘causal nexus’ between the wrongful act and the harm in query will not be static in nature, and will fluctuate relying on the major rule violated and the character and extent of the harm” (Advisory Opinion on Local weather Change, para. 436). Though this comment was made within the ICJ’s local weather change Advisory Opinion, it displays the ICJ’s stable view on how the causal inquiry shall be accomplished in situations of overdetermination (see additionally: Armed Actions on the Territory of the Congo, para. 93). These factors have additionally been raised in lecturers’ writings on the identical situation (see: right here, p. 59; right here, pp. 60-62; right here, p. 478, and right here, pp. 80-81).

Concluding remarks

The CJEU’s judgment in W.S. and Others v Frontex delivered to the forefront the Courtroom’s problematic persistence to using the causal take a look at of directness even in circumstances regarding overdetermined refoulement. Contemplating the CJEU’s essential function as a discussion board the place pushback survivors can search the acknowledgment of Frontex’s wrongful involvement of their refoulement, and contemplating the related jurisprudence of different fora, which reveals a coherent consideration of normative components through the number of the take a look at of causation that these fora make use of of their causal inquiries, it’s important that the CJEU (and by extension additionally the Basic Courtroom) follows an analogous strategy. Because the blogpost highlighted, different fora which have taken into consideration such normative concerns in all elements of regarding overdetermined refoulement have been led to the take a look at of foreseeability of their causal inquiries. By following this strategy, the CJEU wouldn’t solely align its jurisprudence with the related jurisprudence of different fora, however it might additionally contribute to a coherent jurisprudential oversight over the observance of non-refoulement in follow.