Systemic unaccountability for EU-funded ‘pushbacks’ in Greece

The complaint was submitted against the backdrop of the European Parliament’s Frontex Scrutiny Working Group and European Anti-Fraud Office’s (OLAF) findings about Frontex’s involvement in ‘pushbacks’ in Greece, and Greece’s persisting failure to offer appropriate redress and remedies for systemic breaches of EU law. Guided by Amnesty International’s complaint against the Commission for funding border operations in Croatia, this legal intervention seeks to responsibilise the Commission for its financial(ised) assistance to Greece’s border operations. Despite its technical focus on financial maladministration, the strategic purpose of this intervention is to expose and articulate the Commission’s oft-overlooked role in EU Member States’ operations at the EU external border. This informalisation and distancing inherent to such financialised involvement is not apart from the informal status of the 2016 EU-Turkey Statement, which has escaped challenge despite allowing for illegal returns to an ‘unsafe third country’ and arguably contributing to a surge in ‘pushbacks’.

A 2022 report, ‘Addressing the violations of fundamental rights at the EU’s external borders: Infringement proceedings and conditionality in EU funding instruments’ (Rijpma & Fotiadis), critically examined the Commission’s enforcement powers in relation to fundamental rights compliance at the EU’s external borders, and its argument that it “does not have the authority or means to investigate or directly monitor border activities itself”. In the context of Croatia and border management operations supported by EU funds, the European Ombudsman held that the Commission “has the authority and an obligation to ensure that EU funds granted to a Member State are spent in compliance with fundamental rights and EU law, and to insist on safeguards to this end.”

MEP Tineke Strik’s office and policy advisors, who have supported the complaint, have sought to obtain documentation on the steps that the Commission is taking to ensure that Member States such as Greece comply with EU law in the context of their border operations, including through information requests and Parliamentary questions. The Greens/EFA party launched a (live) petition calling on the Commission to “freeze funds to countries that are performing pushbacks and make the new migration funds conditional to human rights compliance”.

Since 2015, Greece has benefited from €3.39 billion in EU funding for migration management—including €450 million directly from the Internal Security Fund (ISF)—used, amongst other things, to provide material and technical support to illegal border operations. €112.5 million of these €450 million were directly allocated to the Greek authorities for personnel, equipment and infrastructure at its external borders, without proper monitoring and review of the national management systems or beneficiaries involved. Thus, EU funds have critically enabled the acquisition and operation of extensive border surveillance technologies, which have not however been used for the detection and rescue of individuals who cross Greece’s borders irregularly.

For years, the EU has funded personnel, equipment, infrastructure, and provided other critical support used in widespread and systemic illegal expulsions of migrants, asylum-seekers and refugees at Greece’s land and sea borders. Despite mounting credible evidence of systemic breaches of EU law, including from EU bodies such as OLAF, the Committee for the Prevention of Torture and the European Parliament, Greek authorities responsible for implementing ISF funding programmes—i.e. the European and Development Program Management Service (initialed YDEAP, in Greek) under the Hellenic Republic Ministry of Interior & Administrative Restructuring—repeatedly failed to report on, let alone redress the harmful impacts of such practices on the use of EU funds (based on review of annual implementation reports between 2016 and 2020).

We submitted three requests for information and documentation to the Commission concerning its positions on the consequences of Greek ‘pushbacks’ on EU support and its responses, to which the Commission responded on 12 June 2021 with limited information and generic statements (GESTDEM 2021/3024).

The complaint extensively demonstrates how, since at least 2018, EU funds—especially through ISF—are being allocated, mismanaged and misused by Greek authorities. Additionally, it highlights how these funds are, both directly and indirectly, contributing to serious and systemic breaches of EU law at the EU’s external border in Greece. Since the Commission knew this for years and yet failed to take appropriate enforcement actions to restrict or suspend funding, the complainants argue that it is responsible for maladministration.

The Commission bears paramount responsibility to remedy systemic breaches of EU law and to protect the Union’s financial interests. Yet, despite its knowledge of the misuse and mismanagement of EU funds by ISF beneficiaries (due to the extensive evidence of summary expulsions and Greece’s systemic denial and failure to remedy them), the European Commission continued to approve increasing sums of money to Greece, including funds specifically allocated for border management operations.

Based on consultations with experts in EU administrative and budget law, the complaint argues that the Commission has wrongfully failed to respond to such financial mismanagement by abstaining from conditioning, restricting, and recovering amounts affected by serious irregularities resulting from Greece’s misuse and mismanagement of EU funds, in breach of its obligations to protect the EU budget, including:

1. Article 9(1) of Regulation 2021/1060 laying down common provisions for the ISF and other funds, applicable to all programming since 2021, adopted 1 July 2021 (Common Provisions Regulation), which requires that both “Member States and the Commission shall ensure respect for fundamental rights and compliance with the Charter of Fundamental Rights of the European Union in the implementation of the Funds”, and obligates the Commission to “require a Member State to take the actions necessary to ensure the effective functioning of their management and control systems or the correctness of expenditure in accordance with the Fund-specific rules”, and to introduce conditionality in response to non-compliance with fundamental rights and not to reimburse expenditure where appropriate;
2. Articles 17 and 317 of the TFEU and Article 33 of Regulation 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union (Financial Regulation), which obligates the Commission to “satisfy itself […] that the Member States have set up management and control systems that comply with this Regulation and the Fund-specific rules and that those systems function effectively during the implementation of programmes”; and
3. Regulation 515/2014 pertaining to the implementation of the ISF – Borders Visa Regulation that requires “responsible national authorities” to “ensure that procedures are in place to produce and collect the data necessary for the evaluations” according to “the common monitoring and evaluation framework”. 

The complaint shows that the Commission is remiss in its role as ‘guardian of the treaties’ for failing to take appropriate and effective enforcement measures in response to Greece’s systemic breaches of EU law, both in the context of its border operations and of its mismanagement of EU funds. It specifically challenges the appropriateness of the Commission’s demand, made public in September 2021, that the Greek authorities establish a monitoring mechanism ahead of the release of an additional €15.83 million in migration funding; money that was ultimately released in 2022 despite a lack of credible steps to remedy the systemic EU law breaches resulting from ‘pushbacks’.

The complaint argues that the Commission’s failures also pertain to its authority over the European Border and Coast Guard Agency, Frontex, both as enforcer of the agency’s compliance with EU law and in administering its funding. While the Commission did initiate infringement proceedings against Greece in January 2023 for reception conditions (which also follows Oxfam and WeMove Europe’s complaint) these measures do not extend to Greece’s systemic EU law breaches in the context of its border operations.

Challenges against the EU’s material and operational support border operations—both to Member States’ at the EU’s external borders, and at its so-called ‘externalised’ borders in third countries—are the limited means by which the role and involvement of EU institutions in migration control can be scrutinised and held to account. This complaint is part of some of the first efforts to articulate the EU’s role and responsibility in this regard, which consists primarily of critically-enabled financial and technical assistance to Member States’ border operations, including through Frontex.

Despite the far-reaching implications of these financial cooperation relations, the European Ombudsman is the only forum where civil society and independent experts have standing to challenge the manner in which EU funding is allocated and managed (absent standing on such matters before the CJEU). The Ombudsman’s scope of review is, however, limited to whether in this case the Commission’s actions were “manifestly wrong”, based on how it exercises its discretion in following relevant legal limits and procedures.

Since, the European Ombudsman has announced a planned own-initiative inquiry into the Commission’s practice of monitoring respect of fundamental rights in the context of border management operations supported by the EU (including by requesting information from the Greek Ombudsman). This would build on its inquiry on EU funds for border management in Croatia where it held that the Commission lacks appropriate monitoring procedures for national authorities’ efforts to investigate and redress the mistreatment of migrants.

These legal struggles expose the manner in which financialised migration control irresponsibilises and preempts systemic review of the EU’s migration policies, making it possible for the Commission to dilute and deflect its, as well as Member States and other beneficiaries’, responsibilities to respect fundamental rights and EU asylum law.

These ongoing struggles for transparency and financial responsibility have the broader aim of exposing and resisting the Commission’s systemic failure to ensure that the EU’s border policies and operations do not contribute to breaches of EU law and harmfully impact fundamental rights (Rijpma & Fotiadis).

24 July 2023: Complaint co-submitted to European Ombudsman
7 November 2023: European Ombudsman opens an inquiry into the complaint (Case 1418/2023/VS)
15 November 2023: European Ombudsman sends questions to Commission, with request for response by 15 February 2024
22 April 2024: Ombudsman’s transmission of European Commission’s reply to the Complaint (1418/2023/VS)
15 September 2024: Time limit for our comments on the Commission’s reply

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

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

ECRE and PICUM, Policy Note: Fundamental Rights Compliance of Funding Supporting Migrants, Asylum Applicants and Refugees Inside the European Union, 24 March 2023

Jorrit Rijpma and Apostolis Fotiadis, ‘Addressing the Violation of Fundamental Rights At The External Borders of the European Union: Infringement Proceedings and Conditionality in EU Funding Instruments’ (Greens/EFA, June 2022)