Regulation 2019/1896
allows the European Border and Coast Guard Agency (FRONTEX) to adopt working
arrangements with Common Security and Defence Policy missions (CSDP missions)
on operational issues. Two such arrangements are in force: one with EUNAVFOR
MED Irini and another with European Union Advisory Mission for Civilian
Security Sector Reform Ukraine (EUAM Ukraine). These collaborations are
expected to intensify, allowing for the exchange of information with third
countries and joint training of the latter’s officers. However, there is a risk
that this interaction may lead to violations of fundamental rights in
multi-actor scenarios – with violations having already been documented in the
framework of these CSDP missions and in FRONTEX joint operations at large.
Against this background, this article takes as a starting point the action for
damages under Article 340(2) TFEU as a tool to establish (shared) responsibility
in these situations. It then analyses the likelihood of success of such actions
brought against FRONTEX and these CSDP missions. Emphasis is placed on the
attribution of harmful conduct to the defendants and the causal link that is
required between their behaviour and the damage caused. The difficulty in
determining causation is tackled by resorting to theories and principles found
in the European Court of Human Rights’ (ECtHR)’ case-law and in European
soft-law texts. Moreover, the right to an effective remedy in such concerted
actions causing indivisible damage favours an interpretation that allows for
joint and several responsibility. All this supports the need for the Court of
Justice of the European Union (CJEU) to apply a tailor-made approach when assessing
these claims, considering the particularities of multi-actor scenarios where
violations of EU fundamental rights are at stake.