EU-funded refoulement and containment in the Central Mediterranean and Libya

These legal interventions were launched against the backdrop of the harmful impacts of the post-Hirsi refoulement regime, which has led to mass secret detention, ill-treatment, torture, and disappearances of migrants in Libya. They were launched alongside other ongoing litigation and legal advocacy before domestic and international courts—including Italian administrative courts, the European Court of Human Rights (e.g. SS and Ors v Italy)—and EU and UN bodies (e.g. UN Fact-Finding Mission on Libya).

The financialisation of the EU’s external—and externalised—bordering and migration control regime consists of slow bureaucratic processes of irresponsibilisation through distanced and informalised administrative arrangements. The EU Emergency Trust Fund for Africa (EUTFA) positions Italy as an implementing partner for the support it offers to the Libyan Coast Guard, under the Italy-Libya Memorandum of Understanding, which blur its proximity to and causal involvement in the violence perpetrated by Libyan actors against migrants.

The many limits of judicial review and oversight of financial decisions—before the Court of Justice of the European Union and Member State courts—effectively displace and dilute the EU and Member States’ responsibilities for the structural violence that is enabled by such support. Financial laws and regulations have become the post-hoc justificatory framework through which the EU incentivises ‘clientelism’ by third countries, and disguises as ‘necessary’ the violence against migrants through inherently beneficial transactions focused on ‘saving lives’.

In response to a June 2023 Parliamentary question regarding the Commission’s position on the UN Fact Finding Mission on Libya’s findings—including on the Libyan Coast Guard’s involvement with smuggling networks—the Commission responded that “disengagement would not improve the situation” referencing the “robust” third-party monitoring system it has in place, while hiding behind secrecy through non-disclosure (see complaint before European Ombudsman on access to documents on EU’s operations in Libya).

The EUTFA’s Support to Integrated Border and Migration Management in Libya programme (IBMML), launched in July 2017 and funded with a total of €91.3m, includes as one of its main objectives the improvement of the Libyan capacity to control their borders, “in a manner compliant with international human rights law”. It does not, however, account for the fact that the country cannot be considered a ‘place of safety’ for the disembarkation of people rescued at sea, as Libyan authorities have also upheld. Since at least 2017, supported Libyan actors have been committing serious abuses and inflicting violence on migrants during interception and returns. Despite this, Libyan actors are entrusted and also critically enabled to operate their rescue zone with extensive ongoing assistance from Italian and EU actors (see EU externalisation and orchestration in the Central Mediterranean and Libya).

The complaints—supported by an expert opinion and based on extensive open-source research and freedom of information requests—demonstrate that the European Commission has mismanaged and misused EU funds in breach of EU and international laws, including financial regulations and external actions obligations flowing from the EU Charter of Fundamental Rights, by materially supporting the EU’s refoulement and containment regime in Libya. The central arguments concern the misuse of EU development funds for non-developmental, militaristic purposes; the deficiencies in the monitoring and review of fundamental rights; and the wrongful approval of the project’s second phase (in December 2018) despite ongoing concerns around serious breaches of fundamental rights.

The complaints expose the secrecy around these arrangements and the various ways in which the European Commission has misinformed and misrepresented this reality to the European Parliament and Members of the European Parliament (MEP) groups, as well as civil society, journalists and other independent experts, claiming the existence of safeguards and the ability of the EU and Member States to align with the requirements of EU law in their cooperation with Libya. The European Commission maintains that there is ”no evidence pointing to human rights violations in the context of EU Trust Fund border management support to the [Libyan Coast Guard]” (March 2022) and “expects Libyan authorities to ensure respect for the human rights and dignity of migrants, to investigate incidents of violence and to ensure appropriate follow-up actions against those responsible” (April 2022).

The legal interventions include (i) a third-party submission to ECA, in the form of a ‘complaint’, and (ii) a Parliamentary Petition to the PETI committee based on the ECA ‘complaint’ (both published in full, see ‘Case documents’). The legal course of action and arguments are based on expert guidance and an expert opinion submitted alongside the complaints (see ‘Case documents’), provided by three academics—Professor Philippe Dann (PhD, Humboldt University), Michael Riegner (PhD, then Humboldt University) and Lena Zagst (then Hamburg University).

The main legal claims in the complaints articulate the EU’s responsibility for its (financialised) orchestration of and enabling support for a system of abuses against migrants, including the:

(a) misuse of EU development funds (from the European Development Fund and European Neighbourhood Instrument) for non-developmental, border militarisation purposes (e.g., according to EDF reg 2015/322, Art 1(2) ‘development’ excludes ‘stability and security’);

(b) mismanagement of EU development funds without human rights monitoring and conditionality;

(c) erosion of Parliament’s budgetary authority (e.g. FinReg 2018/1046, Art 234, EP approval of thematic funds); and

(d) breach of external relations obligations for lack of Human Rights Due Diligence framework (Art 3(5), Art 21 TFEU).

These interventions are supported by a coalition of 13 organisations, including Amnesty International, the Italian Recreational and Cultural Association (ARCI), the Association for Juridical Studies on Immigration (ASGI), Avocats Sans Frontières (ASF), the Cairo Institute for Human Rights Studies (CIHRS), the Euro-Mediterranean Human Rights Network (EuroMed Rights), Human Rights Watch (HRW), the International Federation for Human Rights (FIDH), Lawyers for Justice in Libya (LFJL), Oxfam International, Migreurop, and Saferworld.

The public statement issued by this coalition situates the interventions within the broader struggle to resist “the overall policy of cooperation with the Libyan authorities on border control and management [which] has been designed and consistently implemented at the EU level [] through the funding of specific projects”. It affirms that “[m]any risks were well-known by EU Member States’ and institutions’ officials when designing the cooperation with Libya” and calls on the EU to review and remedy its cooperation with Libya, recalling the ‘Plan of Action: Twenty Steps for a Fair and Predictable Rescue System in the Mediterranean Sea’ (March 2019) as a blueprint for conditionality: ending the system of automatic, indefinite detention; granting UNHCR full access to all persons and possibility to carry out its full mandate; ratification and legislation on the 1951 Refugee Convention and its 1967 Protocol and the creation of an asylum system that complies with international standards; and independent, impartial, and transparent monitoring of human rights violations against refugees and migrants in Libya.

These interventions are some of the first attempts to scrutinise the EU’s financialised forms of cooperation in the area of migration as modes of migration governance. Financial regulation and budgetary interests are marred in secrecy and lack of transparency. They are also subject to limited administrative review and oversight processes, and deny standing to civil society before the Court of Justice of the European Union (CJEU). In this unchartered accountability space, the European Court of Auditors and the European Anti-Fraud Office’s (OLAF) focus on fiscal responsibility is “insufficient with regards to the human rights commitments the EU has taken on” (Leube).

In a series of critical MEP groups’ own-initiative implementation reports and resolutions on migration funds and the “strategic informalisation” of EU external migration cooperation (Moreno-Lax), the European Parliament criticised the EUTF for its failures to ensure sound financial management, transparency and accountability—including for the erosion of “EU public procurement law and opaque management”—and the misuse of the migration-development-security nexus in the Neighbourhood, Development and International Cooperation Instrument (NDICI)-Global Europe to normalise the use of development funds for migration control activities, and to fund increasingly militaristic activities by Libyan actors.

This experience of pursuing multiple and overlapping administrative complaints and processes of institutional engagement, together with MEP policy advisors and independent legal experts, has exposed the extent of the Commission’s lack of transparency and misrepresentations, as well as the erosion of the European Parliament’s budgetary authority. We are currently in the process of bringing the incisive evidence of the Commission’s maladministration of EU external funds gathered throughout this process before the European Ombudsman, which remains one of the only forums for potential review and scrutiny of these matters (MEP Tineke Strik; De Leo).

These ongoing struggles for transparency and financial responsibility are part of a broader set of efforts to expose and resist the Commission’s systemic failure to ensure that the EU’s border control policies and operations do not contribute to breaches of fundamental rights and other EU law (Rijpma & Fotiadis).

20 April 2020: Complaint against Commission filed as submission to European Court of Auditors (ECA) (while members of de:border were part of the Global Legal Action Network (GLAN))
18 May 2020: Response from ECA (on file)
10 May 2020: ECA submission filed as a Petition to the European Parliament’s PETI committee (registered as Petition 0655/2020)
21 September 2021: PETI committee hearing in the European Parliament—petition kept ‘open’ until Commission provides further information
14 April 2021: CONT exchange of views with DG NEAR acting Director-General on the Petition
15 November 2022: Commission response to Parliamentary Petition 0655/2020
26 January 2023: PETI committee hearing in the European Parliament—Petition remains ‘open’, until ECA’s investigation is concluded

In its responses to the petition, in 2021 and then 2022, the Commission claimed that the equipment and trainings was delivered to the Libyan authorities with the “main objective of improv[ing] their capacities to execute Search and Rescue (SAR) at sea” and thus in compliance with the 2018 Development Assistance Committee (DAC) purpose code 15190 of the Organisation for Economic Co-operation and Development (OECD) on the eligibility of migration management activities, including border management. It further maintained that “third party monitoring of operations in Libya […] with a particular attention to […] the ‘do no harm’ principle […] is rather unique” and that those behind the submissions should not “confuse cause and effect”, noting that the “extremely vulnerable and […] precarious situations [of migrants] in Libya” is “not a result of activities implemented under the EUTF for Africa, whose aim is to prevent lives lost at sea.”

The European Parliament’s Committee on Foreign Affairs (AFET) held, on 2 February 2021, that setting up instruments outside the EU budget should be an exception to the rule and that, as the EUTF is a ‘development tool’, the Commission should distinguish between funding for development and migration control funds. On 14 April 2021, the European Parliament’s Committee on Budgetary Control (CONT) held an exchange of views with DG NEAR acting Director-General on the issues raised by the petition.

The European Parliament’s Subcommittee on Human Rights’ (DROI) response of 31 January 2023 recalled the Parliament’s resolution of 19 May 2021 on “Human rights protection and the EU external migration policy”, and its request from 8 July 2022 to the DG NEAR Commissioner for a detailed overview of the EU’s migration-related funding to Libya and for activities carried out in Libya in 2020, 2021 and 2022, which has received no response.

The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) and the European Parliament’s Committee on Development (DEVE) responses to the Petition endorsed the findings of Parliament’s Implementation report on the EU’s Trust Funds and the Facility for Refugees in Turkey of 7 October 2022.

Since, several legal developments have promised to enhance accountability of financialised migration cooperation include: Regulation 2021/947, NDICI-Global Europe, June 2021 (new MFF 2021-27) provides for robust human rights third-party monitoring (Art 8(11)) and enhanced parliamentary supervision through regular exchanges and reporting (Art 8(13), 41); Regulation 2021/1060 laying down common provisions for the ISF and other funds, applicable to all programming since 2021 (1 July 2021), Article 9(1) upholds that: “Member States and the Commission shall ensure respect for fundamental rights and compliance […] establish and apply criteria and procedures which are non-discriminatory, transparent, […] and take account of the Charter of Fundamental Rights […] in the implementation of the Funds” (in line with the Commission’s Strategy to strengthen the application of the Charter of Fundamental Rights in the EU, COM/2020/711, 2 December 2020); and Regulation 2020/2092 on conditionality for the protection of the Union budget (16 December 2020) requires the adoption of “appropriate measures”, such as suspension or reduction of commitments or payments, if “established […] that breaches of the principles of the rule of law […] seriously risk affecting the sound financial management of the Union budget”.

Valentina Azarova and Andreina De Leo, ‘Financialised Migration Control’ (forthcoming, European Law Open 2025; special issue edited by Violeta Moreno-Lax and others)

Valentina Azarova and Andreina De Leo, ‘Sharing Responsibility for Financialised Migration Control’, in ‘Towards Joint Guidelines on “Shared Responsibility” for Integrated Border Management of the External Frontiers of the EU’, Stakeholder Meeting co-organised by Queen Mary University of London, (B)Order(s) Centre & three MEP groups, European Parliament, Brussels, 23-24 May 2023 & Barcelona, 28-29 September 2023

Valentina Azarova, ‘The Structural Injustice of Financialised Migration Control’, in External Financial Governance: Solidarity and Externalisation of Migration Control through EU Funding, NWO Hestia/Faculty of Law Workshop, Brussels, 2-3 February 2023

Violeta Moreno-Lax and others (with assistance of Andreina De Leo), The EU Approach on Migration in the Mediterranean, LIBE Committee, European Parliament, June 2021 (see Part 6 on informalisation and financial tools)

Valentina Azarova, Amanda Brown, Charles Heller, Niamh Keady-Tabbal, Noemi Magugliani, Itamar Mann, Violeta Moreno-Lax, Lorenzo Pezzani, ‘Documenting and litigating against the shifting practices of refoulement across the EU’s maritime frontier’, Asyl 3 (2021) 13-17

Valentina Azarova, ‘EU & State International Responsibility for illegal funding of Libyan Coast Guards’, Odysseus Summer School 2020, 26 August 2020

Eric Reidy, The legal battle to hold the EU to account for Libya migrant abuses, The New Humanitarian, 10 August 2020

Ana Lazaro, Une aide européenne à Libye controversée, Euronews, 5 May 2020

Michael Peel, Libya Challenge, News in Brief, Financial Times, 28 April 2020

BBC Radio, ‘Africa Today’, 28 April 2020 (at 6 mins)

Estela Casajuana and Giorgia Jana Pintus, Beyond Borders, Beyond Boundaries: A Critical Analysis of EU Financial Support for Border Control in Tunisia and Libya, Greens/EFA November 2023

Oxfam, From Development to Deterrence? Migration spending under the EU Neighbourhood Development and International Cooperation Instrument (NDICI), 21 September 2023

Evangelia (Lilian) Tsourdi, Federica Zardo and Nasrat Sayed, Funding the EU’s external migration policy: ‘Same old’ or potential for sustainable collaboration?, European Policy Centre, Discussion Paper, European Migration and Diversity Programme, 3 April 2023