12.2.1 Conceptual Reflections on EU Factual Conduct

Public administration features as the most prominent form of action legally binding acts, be they of a general or individual application. Yet the bulk of daily public administration also entails a lot of human actions, acts, activities, or conduct that do not amount to formal legally binding acts.Footnote ³ Such administrative acts or conduct, though not intended to produce legal effects like a binding legal act, entail nevertheless (sometimes significant) factual and legal consequences; as such, they may also arguably infringe fundamental rights.Footnote ⁴

The range of administrative forms of action outside the category of formal legally binding acts is broad and diverse. It includes various acts and operations that lead to the adoptionFootnote ⁵ or ensure the implementation/enforcementFootnote ⁶ of a formal legally binding act. It also arguably includes more free-standing acts and factual conduct such as legally non-binding or ‘soft law’ actsFootnote ⁷ as well as various concrete actions and operations.Footnote ⁸

From a conceptual point of view, the term ‘factual conduct’ can be understood in two different ways.Footnote ⁹ In one sense, it can be construed as an act of conduct or as a legal fact in the shape of human behaviour that is not intended per se to produce legally binding effects, but which nevertheless may entail certain legal and practical consequences according to law.Footnote ¹⁰ According to this understanding, ‘factual conduct’ would broadly encompass all administrative acts (forms of action) outside the category of formal legally binding acts. In a second sense, ‘factual conduct’ is to be understood as a specific form of administrative action. According to this second, more specific, understanding, it encompasses administrative actions and operations that amount broadly speaking to ‘physical acts’Footnote ¹¹ or measures of a factual nature. Such acts express the conduct of a public authority or its servants in the outside world in a factual manner, their legal relevance (as legally binding acts or mere acts of conduct having some legal relevance) being determined by the applicable legal framework.Footnote ¹² Factual conduct can thus include various physical acts and operations, either free-standing or connected to the adoption and implementation/enforcement of a formal legal act (binding or non-binding). Examples include: publishing/handling information, collecting and processing personal data, feeding a database with information or extracting information therefrom, providing an answer to a request or a petition, preparing a draft legal act, preparing and submitting a report or letter, publishing a legal act in the official journal/communicating the legal act to interested persons, entering business premises, searching for information, collecting and sealing documents and other items during an inspection/investigation, and using police executive powers.Footnote ¹³

Relying mainly on the second sense of the term for the purpose of this chapter, as in our view it analytically depicts more accurately the phenomenon under consideration, we note that factual conduct is very much present in the activity of the EU public administration. All EU bodies handle personal and non-personal data and information, publish and exchange information and various documents, undertake preparatory operations and actions for the purpose of adopting a formal legal act, and carry out various operations and actions for ensuring their implementation. It is less common for EU bodies to carry out physical implementation and enforcement of EU law, as these matters are normally reserved for the Member States’ administrations. Yet there are notable examples of EU bodies doing this (see also Chapter 11). These include the European Commission in competition lawFootnote ¹⁴ and, more recently, the European Central Bank (ECB) in its supervisory role within the Single Supervisory Mechanism (SSM),Footnote ¹⁵ the European Border and Coast Guard Agency (Frontex) with its new direct operational powers in joint operations at the Union’s external borders,Footnote ¹⁶ and the European Public Prosecutor’s Office (EPPO) with its wide-ranging investigation powers.Footnote ¹⁷ This trend is likely to continue in view of the ongoing phenomenon of EU administrative integration and hybridisation, with more EU bodies being granted (gradually increasing) direct enforcement and implementing powers, often exercised within rather intricate composite (EU and national) legal frameworks and in complex relationship with national competent authorities.Footnote ¹⁸

12.2.2 Risks for Fundamental Rights from EU Factual Conduct

EU factual conduct (understood as acts of ‘physical’ conduct by EU institutions, agencies and bodies, and their staff) may directly or indirectly affect fundamental rights of natural and legal persons. Examples are abundant in this respect. For instance, personal data processing operations by EU bodies may breach directly or indirectly the data protection rights (enshrined in Article 8 CFR and further given substance in Regulation 2018/1725)Footnote ¹⁹ as well as the right to respect for private and family life (Article 7 CFR) of the individual. Abusive or inappropriate personal data processing by Europol as regards persons suspected of being involved in serious crime might ultimately result in unlawful arrests and home searches by enforcement authorities in the Member States, in breach of the right to liberty and security of the person (Article 6 CFR) and/or the right to respect for private and family life (Article 7 CFR). Disseminating/publishing abusive defamatory information about individuals and legal persons may affect their reputation and consequently result in a breach of human dignity (Article 1 CFR)Footnote ²⁰ or the freedom to conduct a business (Article 16 CFR).Footnote ²¹ Irregularities committed by Commission officials implementing EU competition law, officials of the European Anti-Fraud Office (OLAF) under Regulation 883/2013,Footnote ²² or ECB officials in the implementation of the SSM Regulation during an inspection at the premises of an undertaking, might result in a breach of Article 7 CFR (protection of ‘home’, including business premises)Footnote ²³ or a breach of the right to property (Article 17 CFR).Footnote ²⁴ Last but not least, the exercise of executive powers by Frontex operational staff during joint operations at sea and/or land bordersFootnote ²⁵ could amount to a breach of the right to life (Article 2 CFR), the right to the integrity of the person (Article 3 CFR), prohibition of torture and inhuman or degrading treatment or punishment (Article 4 CFR), or the right to asylum (Article 18 CFR) and non-refoulement (Article 19 CFR).

The ability of EU factual conduct to directly and indirectly breach fundamental rights raises in turn the issue of ensuring adequate legal protection and remedies against such conduct. Are legal safeguards and remedies necessary and, if so, sufficiently available to address fundamental rights breaches by EU factual conduct?

12.4.1 The Right to an Effective Judicial Remedy for Fundamental Rights Breaches

Article 47 CFR proclaims the right to an effective remedy before a tribunal for ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated’. This provision does not expressly specify or limit the ways in which rights and freedoms could be violated, which would imply that any type of violation, be it through a formal legal act or factual conduct, should be covered by the right to an effective (judicial) remedy. The view that factual conduct comes within the scope of Article 47 CFR and that, as a result, it should be matched by full legal protection in the form of appropriate judicial remedies, finds support in legal scholarship.Footnote ³² As for the Court of Justice, one may wonder whether its rather restrictive ‘dependent approach’Footnote ³³ to Article 47 CFR could entail limitations on judicial review of factual conduct and, implicitly, on the remedies the individual whose fundamental rights have been breached might effectively rely on. More specifically, drawing on the non-binding Explanations relating to the Charter of Fundamental Rights,Footnote ³⁴ the Court affirmed in its landmark Inuit judgment,Footnote ³⁵ that Article 47 CFR ‘is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union’. As a result, it appears that Article 47 CFR cannot be relied upon to establish new judicial remedies/review avenues or to amend those enshrined in the TFEU.Footnote ³⁶

However, within these confines, it is argued that Article 47 TFEU, giving expression to the principle of effective judicial protection and enshrining it as a fundamental right, could be used creatively by EU courts. It should be relied upon as a canon of interpretation regarding access to the judicial remedies laid down in the Treaties for persons invoking breaches of their fundamental rights by EU acts and measures. Such an approach could arguably offer a quick fix to the potential gaps within the current EU system of judicial remedies regarding violations of fundamental rights, until the more far-reaching solutions suggested by the Court – that is, the use of the formal amendment procedure of the Founding Treaties,Footnote ³⁷ and the Member States’ duties ‘to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection’Footnote ³⁸ – have fully addressed the issue.

Against this background, one needs to consider how far the judicial remedies available for individuals enshrined in the Treaties and carved out through CJEU jurisprudence are effective in addressing the breaches of fundamental rights caused by EU factual conduct. The following judicial remedies are briefly examined for the purpose of this query: action for annulment (Article 263 TFEU), failure to act (Article 265 TFEU), preliminary reference procedure (Article 267 TFEU), action for damages (Article 268 juncto Article 340 TFEU), and plea of illegality (Article 277 TFEU).

12.4.2 The Action for Annulment

The action for annulment appears to raise particular challenges with regard to EU factual conduct in view of its admissibility conditions. Especially the fact that only acts of EU bodies that are ‘intended to produce legal effects vis-à-vis third parties’ are judicially reviewable arguably creates a considerable hurdle for persons willing to challenge before the CJEU EU factual conduct infringing their rights. As recently reconfirmed by the CJEU, ‘it is settled case-law of the Court that actions for annulment, provided for under Article 263 TFEU, are available in the case of all measures adopted by the institutions, bodies, offices and agencies of the European Union, whatever their form, which are intended to have binding legal effects’ (emphasis added).Footnote ³⁹ This means that unless EU factual conduct qualifies as an act or measure intended to have binding legal effects, it cannot be directly challenged under Article 263 TFEU. This observation raises two questions: (1) Could EU factual conduct qualify under certain circumstances as ‘an act or measure intended to have binding legal effects’? and (2) Is there any (indirect) way to review the legality of EU factual conduct that does not qualify as ‘an act or measure intended to have binding legal effects’ under Article 263 TFEU?

The answer to the first question could be positive, especially if Article 263 TFEU is read in light of Article 47 CFR, as suggested earlier. After all, the Court considers reviewable under Article 263 TFEU any EU measures intended to have binding legal effects, whatever their form (emphasis added). In this respect, the Court was quite creative in the past in inferring from a physical act directly affecting the situation of the applicant the existence of a tacit administrative decision that could be reviewed under the annulment procedure.Footnote ⁴⁰ In such a case, one may wonder whether factual conduct is in itself the expression of the challengeable tacit or implicit legal act or whether it is a mere indication of the existence of a previous tacit administrative decision that is being implemented via the physical act. By referring in Akzo and Akcros to ‘the tacit rejection decision expressed through (emphasis added) the physical act of seizing and placing those documents on the file without placing them in a sealed envelope’,Footnote ⁴¹ the CJEU seems to show a slight preference for the first scenario. In this vein, one could consider the factual conduct directly affecting the legal situation of the individual, similarly to a formal legal binding act, as some sort of ‘instant’ implicit decision, whereby the physical act itself amounts to a legally binding act. Such a legal construct, reflecting a more extensive understanding of the concept of ‘act intended to produce legal effects vis-à-vis third parties’ read in light of Article 47 CFR, could capture various situations in which free-standing EU factual conduct directly breaches fundamental rights.Footnote ⁴² While the concept of ‘instant implicit decision’ might still need to gain ground, EU legal scholars highlight, more in line with the second scenario, that the notion of a tacit or implicit decision ‘underpinning [emphasis added] a physical act or factual measure is common in the administrative law of the Member States’, and they argue for its extended application to ensure more effective protection of fundamental rights against EU factual conduct.Footnote ⁴³ In any case, if free-standing factual conduct does not amount somehow to an act intended to have binding legal effects, it cannot be reviewed under Article 263 TFEU.

This brings us to the second question: Is there any (indirect) way to review the legality of EU factual conduct that does not qualify as ‘an act or measure intended to have binding legal effects’? Legal review of factual conduct could in principle be ensured incidentally, in view of the relationship of such conduct with a legal act reviewable under Article 263 TFEU. Most obviously, factual conduct that can be qualified as ‘preparatory acts’ of a legally reviewable act can be reviewed by the Court in the context of the challenge brought to the latter act.Footnote ⁴⁴ This, however, raises the question whether such legal review does not sometimes come too late, as the relevant factual conduct might have produced legal and practical consequences well before the adoption of the legal act.Footnote ⁴⁵ Furthermore, if no legally binding act is finally adopted, then any ‘preparatory’ factual conduct carried out prior to that will not be in principle judicially reviewable,Footnote ⁴⁶ unless such factual conduct represents ‘the culmination of a special procedure … and which produce binding legal effects such as to affect the interests of an applicant, by bringing about a distinct change in his legal position’.Footnote ⁴⁷ As for the factual conduct that implements legally binding acts, legal review is reserved in principle only to the legally binding act, on the ground that ‘the validity of a decision cannot be affected by acts subsequent to its adoption’.Footnote ⁴⁸ The only apparent exception seems to be in the case of factual conduct entailing or underpinning an implicit or tacit legal act, but even in that case it is questionable whether the Court actually reviews the implementing physical act itself or rather exclusively the underlying implicit/tacit legally binding act. In this regard, the concept of ‘instant’ implicit decision could perhaps bring some added explanatory value with respect to the legal review of such ‘factual conduct’ by conceptually equating the physical act with a reviewable act under Article 263 TFEU (not with the mere implementation thereof).Footnote ⁴⁹

12.4.3 Failure to Act

Failure to act is to some extent the mirror image of the action for annulment,Footnote ⁵⁰ and it could also be of relevance as far as breaches of fundamental rights via EU factual conduct are concerned. Article 265 TFEU, third paragraph enables individuals to go to the CJEU for failure of an EU institution, body, office, or agency to address to them ‘any act’, except for recommendations and opinions. Yet it becomes apparent that individuals can rely on this judicial remedy only where the relevant EU body failed to adopt a legally binding act concerning them,Footnote ⁵¹ while being under an obligation to do so.Footnote ⁵² Hence, similarly to the action for annulment, failure to act does not seem a particularly suitable legal remedy against EU factual conduct, except for those instances in which the factual conduct that should have been enacted by the defaulting EU body would amount to an implicit decision impacting on the legal situation of the individual.Footnote ⁵³ Additionally, for a potential action under Article 265 TFEU to be admissible, the relevant EU body must have ‘been called upon to act’ by the individual and, furthermore, not defined its position on the matter after being called to act.Footnote ⁵⁴ As a final point, if successful, the action for failure to act results in a court judgment with a rather limited impact: declaring that the failure to act was illegal but without the possibility to impose on the EU body the type, content, and form of the act that should have been taken.Footnote ⁵⁵

12.4.4 Preliminary Reference Procedure

Arguably, some of the gaps resulting from the limited judicial review of factual conduct under Article 263 TFEU could be covered by the preliminary reference procedure under Article 267 TFEU (see also Chapter 4). As is well known from the CJEU’s jurisprudence, the admissibility of a question for preliminary ruling extends to the interpretation and validity of any acts of EU institutions, bodies, offices, or agencies.Footnote ⁵⁶ This clearly covers formal acts, be they legally binding or not, but it is less clear if EU factual conduct in the form of a mere physical act also qualifies as an ‘act’ under Article 267 TFEU.Footnote ⁵⁷ A reading of Article 267 TFEU in light of the fundamental right to an effective legal remedy enshrined in Article 47 CFR offers support for the view that the category of acts of EU bodies ‘without any exception’Footnote ⁵⁸ encompasses also physical acts representing factual conduct.Footnote ⁵⁹

Yet, even if this is the case, there are several difficulties with judicial review of EU factual conduct under Article 267 TFEU. First, for a preliminary question on EU factual conduct to be raised before a national court, there must be a decision or measure adopted by a national authority that the person who claims their fundamental rights are being breached by that EU conduct could challenge.Footnote ⁶⁰ Second, the national measure/act challenged before the national court should be sufficiently linked to the EU factual conduct in such a way that establishing the validity of the latter would enable the national court to decide on the matter.Footnote ⁶¹ If the national court does not find the relevant EU factual conduct ‘necessary’ to judge the case before it, the matter will not in principle reach the CJEU.Footnote ⁶² Third, even if a question for a preliminary ruling regarding the validity of EU factual conduct reaches the CJEU, it has been emphasised that judicial review might often come too late to ensure effective protection of the fundamental rights affected by that conduct.Footnote ⁶³

12.4.5 Action for Damages

In view of the shortcomings highlighted earlier, the action for damages enshrined in Articles 268 juncto 340 TFEU could in principle offer a more reliable remedy against breaches of fundamental rights caused by EU factual conduct.Footnote ⁶⁴ In any case, prima facie the action for damages has a generous scope as it covers ‘any damage (emphasis added) caused by its institutions or by servants in the performance of their duties’. It thus covers both material and non-material damageFootnote ⁶⁵ caused by any acts (both formal legal binding acts as well as factual conduct) of the EU ‘institutions’Footnote ⁶⁶ or EU servants. However, this judicial remedy also displays several shortcomings and difficulties.

First, in spite of the apparently generous, though slightly vague,Footnote ⁶⁷ formulation in the Founding Treaties, the standards for EU liability are in reality quite high,Footnote ⁶⁸ as they are interpreted and applied quite strictly by EU courts.Footnote ⁶⁹ While a breach of fundamental rights via EU factual conduct could relatively easily meet the condition that ‘the rule of law infringed must be intended to confer rights on the individual’, things become more difficult with the requirement that ‘the breach must be sufficiently serious’, as well as with the ‘damage’ and the ‘causal link’. Proving a sufficiently serious breach is in principle easier in the case of an EU measure that does not entail discretionary choices,Footnote ⁷⁰ and it proves particularly difficult where the EU measure entails the exercise of some degree of discretionary power; in this respect, even an illegal EU measure annulled under Article 263 TFEU is not per se sufficient to meet the threshold for a sufficiently serious breach under Article 340 TFEU.Footnote ⁷¹ In our view, Article 47 CFR requires a more lenient reading of the CJEU’s ‘sufficiently serious breach’ condition under Article 340 TFEU, so that EU legally binding acts, including here factual conduct amounting to an instant implicit decision, as well as genuine factual conduct in the form of self-standing physical acts that directly breach fundamental rights, meet the threshold as a matter of principle.Footnote ⁷² As to the damage suffered as a result of EU factual conduct breaching fundamental rights, this might be difficult to establish and quantify,Footnote ⁷³ especially in view of the non-pecuniary consequences that the breach of some fundamental rights entails.Footnote ⁷⁴ Last but not least, the causal link between the EU factual conduct and the damage might be difficult to establish, especially when it is embedded into a broader complex framework entailing concomitant or subsequent actions by EU and Member State actors that might interfere with the causation chain.Footnote ⁷⁵

Second, the monetary compensation that is usually provided within the framework of the action for damages might not fully remedy the situation where redressing a breach of fundamental rights by EU factual conduct would require positive administrative action to end the breach and re-establish the situation before the breach occurred.Footnote ⁷⁶ Yet this point of critique seems to be at least partly addressed by the fact that EU courts acknowledge that Article 340 TFEU does not in principle exclude compensation in kind ‘if necessary in the form of an injunction to do or not to do something’ if this is in line with the general principles of non-contractual liability common to the laws of the Member States.Footnote ⁷⁷ However, one may wonder how far EU courts are willing to have recourse to such types of compensation more extensively and especially in cases of fundamental rights breaches by EU factual conduct.Footnote ⁷⁸ A reading of Article 340 TFEU in light of the right to an effective judicial remedy in Article 47 CFR would, in our view, justify such an approach.

12.4.6 Plea of Illegality

Another judicial remedy provided in the Founding Treaties is the more indirect plea of illegality under Article 277 TFEU. This remedy is limited in three ways: (1) it can be invoked only against an act of general application; (2) only the four grounds for annulment laid down in the second paragraph of Article 263 TFEU may be invoked to establish the illegality of the act; and (3) the illegality of the act only triggers the inapplicability of that act within the direct action before the EU court in which the plea of illegality has been raised.Footnote ⁷⁹ This remedy seems prima facie of limited relevance in the case of EU factual conduct causing breaches of fundamental rights. Only in the rather unlikely scenario in which EU factual conduct would express an (instant) implicit binding legal act of general application, and on the basis of which individual acts or measures are enacted directly affecting the legal situation of the individual, could Article 277 TFEU be invoked within a direct action against such individual acts or measures.Footnote ⁸⁰

12.4.7 Incomplete Judicial Protection for Fundamental Rights Breaches by EU Factual Conduct

One may question whether the paradigm of ‘a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts’ announced by the CJEU in Les VertsFootnote ⁸¹ and reaffirmed in InuitFootnote ⁸² withstands a reality check, as far as EU factual conduct breaching fundamental rights is concerned. Especially if this paradigm is read in light of Article 47 CFR asserting a judicially effective remedy for ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated’. Based on the previous analysis, one may argue that the judicial remedies available in the Founding Treaties reveal shortcomings as to the completeness and effectiveness of judicial protection in such instances.Footnote ⁸³ Solutions to address this could be: (1) an extensive understanding of the concept of ‘reviewable act’ in line with AKZO jurisprudence whereby factual conduct directly affecting the legal situation and fundamental rights of the individual would amount to implicit reviewable legal actsFootnote ⁸⁴ and (2) a far-reaching interpretation of the action for damages encompassing extensive ways of compensation and a more flexible reading of the conditions for damages that could cover, at least in part, the blind spots of current judicial review of EU factual conduct.Footnote ⁸⁵ It remains to be seen how far EU Courts will be willing to consider such solutions in their future jurisprudence, but even if they do, gaps will arguably remain in the EU system of judicial remedies (especially as regards the lack of preventive judicial protection against potentially harmful EU factual conduct).Footnote ⁸⁶ Therefore, it may be opportune to look further afield and also consider other (non-judicial) remedies available in EU law to assess whether they may or could, alone or in combination with available EU judicial remedies, address some of the gaps and shortcomings highlighted earlier

12.5.1 Non-judicial Remedies and the Right/Principle of Good Administration

While discussions on legal review and legal protection usually focus on the availability and sufficiency of judicial remedies, one should not forget that, in a broad sense, the system of legal remedies is not limited to that. While judicial remedies, in view of their importance, could be placed at the forefront of the Union’s system of legal protection, non-judicial remedies also play a role in ensuring review of and redress against EU administrative action. In fact, under certain conditions, non-judicial remedies (i.e., actions and procedures against administrative actions that do not directly involve courts) could arguably be more accessible and effective in addressing fundamental rights breaches of individuals, be they natural or legal persons. Thus, compared to costly, time-consuming, and restrictive judicial remedies, non-judicial internal and external remedies and review mechanisms in the form of complaints,Footnote ⁸⁷ referrals,Footnote ⁸⁸ and appeals proceduresFootnote ⁸⁹ could provide easier access, comprehensive scrutiny, and relatively timely redress against potentially harmful EU administrative measures, including factual conduct.Footnote ⁹⁰ After all, in light of the commandment of an ‘open, efficient and independent European administration’ in Article 298 (1) TFEU, giving the public administration a chance first to repair its own mistakes and to offer redress via easily accessible non-judicial remedies could largely alleviate the need to have recourse to judicial review.

While access to judicial remedies is enshrined both as a common principle of EU law in CJEU jurisprudence and as a fundamental right under Article 47 CFR, there is no similar explicit constitutional recognition for non-judicial remedies against EU action.Footnote ⁹¹ Arguably, access to non-judicial remedies could be considered as a dimension of the multi-sided good or sound administration laid down as a fundamental right in Article 41 CFR and also established as a general principle of law by EU courts.Footnote ⁹² Following this line of reasoning, the set-up of effective administrative remedies could be seen as an inherent guarantee for the enforcement of the specific rights encompassed within ‘good’ or ‘sound’ administration. It could be arguably incorporated within the scope of ‘the right to have his or her affairs handled impartially, fairly and within a reasonable time’ under Article 41 (1) CFR. To be sure, availability of an administrative remedy against EU measures affecting individuals is not mentioned in the list of specific rights under Article 41 (2) CFR. Yet it has been maintained that Article 41 CFR only provides ‘examples of procedural rights to good administration’, and that it ‘serves to establish a minimum protection of certain elements generally accepted in the existing case law of the European courts as principles of good administration and rights of defence’.Footnote ⁹³ As a result, EU courts could in principle go beyond the rights explicitly listed in Article 41 CFR, though they also warn that ‘the principle of sound administration, does not, in itself, confer rights upon individuals … except where it constitutes the expression of specific rights’ like those enshrined in Article 41 CFR.Footnote ⁹⁴ Alternatively, the availability of effective administrative remedies could be regarded as an element of the general principle of good/sound administration continuously developed by EU courts. As mentioned previously, it could function as a guarantee for the exercise and enforcement of the specific rights included within the scope of good administration and enshrined in Article 41 CFR; additionally, it would also be an enabling element for the right to claim damages provided in Article 41 (3) CFR, especially if this is seen, separately from Article 340 TFEU, as a right to claim damages directly from the EU administration at fault (without necessarily ending up before the EU courts).Footnote ⁹⁵

Since there is a lack of clarity in EU primary law and case law regarding the availability and requirements of non-judicial remedies, the landscape of such remedies is quite diverse and eclectic (see also Chapter 5).Footnote ⁹⁶ In what follows, a few selected non-judicial remedies will be discussed as cases in point as to their applicability to fundamental rights breaches by EU factual conduct. A general observation regarding the mechanisms discussed here is that they are not designed solely to serve as remedies for the individual but to also fulfil other functions pertaining to legal review, scrutiny, and overall accountability of EU public administration (see also Chapter 5).

12.5.2 EU Ombudsman

One obvious horizontal non-judicial remedy available against EU acts and measures consists of the possibility, as well as the fundamental right according to Article 43 CFR, for individuals (natural and legal persons) to lodge complaints with the European Ombudsman.Footnote ⁹⁷ This remedy is very generous in terms of accessibility and scope. It is open to all EU citizens as well as any natural and legal person residing or having its registered office in a Member State, and it covers any instance of ‘maladministration’ in the activities of EU bodies (except for the CJEU).Footnote ⁹⁸ Instances or cases (as enshrined in Article 43 CFR) of maladministration are to be interpreted broadly, including legally binding and non-binding acts, formal acts and measures, as well as factual conduct.Footnote ⁹⁹ This administrative remedy can thus be used by individuals claiming breaches of their fundamental rights by EU factual conduct, such as improper collection or handling of personal data of an individual by an EU body infringing their reputation or privacy and data protection rights, negligent or malevolent physical acts during an investigation resulting in illegal seizure and further disclosure of sensitive documents affecting the legal situation of an individual, or the improper use of physical force by Frontex staff during joint operations at the Union’s external borders endangering the life, physical integrity, or liberty of a person.Footnote ¹⁰⁰

While the Ombudsman has a broad competence and is easily accessible for individuals alleging breaches of fundamental rights by EU factual conduct, its major limitation consists of the fact that its findings are not binding on the EU administration. The finding of an instance of maladministration in the examples mentioned above is followed by proposed solutions, suggestions, and recommendations for addressing the act of maladministration, but the EU body concerned remains entirely free to accept or reject them.Footnote ¹⁰¹ Moreover, the CJEU emphasised in Tillack the nature of the Ombudsman as an ‘alternative non-judicial remedy’ and made clear that the classification as an ‘act of maladministration’ by the Ombudsman does not, in itself, interfere with the judicial determination of whether the conduct of an EU body is ‘a sufficiently serious breach of a rule of law’ for the purpose of Article 340 TFEU.Footnote ¹⁰² However, the prestige of the EU Ombudsman as a moral figure and epistemic authority, supported by sufficient resources and an adequate framework of dialogue and peer pressure in relation to the EU administration, could make it quite an influential and effective actor in successfully addressing instances of maladministration, including breaches of fundamental rights by EU factual conduct (see also Chapter 5).Footnote ¹⁰³

12.5.3 Legal Review of EU Executive Agencies’ Acts

Another interesting non-judicial remedy is provided by Regulation 58/2003 regarding specifically the legal review of the acts of EU executive agencies.Footnote ¹⁰⁴ Article 22 of Regulation 58/2003 enables any person directly and individually concerned by ‘any act of an executive agency which injures a third party’ to refer that act to the Commission for a review of its legality. While the requirement that the person is directly and individually concerned by the act mirrors the strict standing conditions for non-privileged applicants under Article 263 TFEU, the reference to ‘any act’ of the agency arguably encompasses not only formal legally binding acts but also factual conduct in the form of physical acts liable to directly affect the legal situation of the individual.Footnote ¹⁰⁵ Examples of such ‘acts’ in the form of factual conduct could be the provision by the European Research Council Executive Agency (ERCEA) or the European Research Executive Agency (REA) of incorrect information and guidelines regarding calls for proposals under EU research grant programmes that misleads some potential applicants and ultimately precludes them from submitting a grant proposal or the compiling and subsequent dissemination by an EU executive agency of a list of potential applicants for EU grant programmes that are considered ‘undesirable’ because of their perceived ‘problematic’ political views. Pending the review of the act, the Commission ‘may suspend the implementation of the act at issue or prescribe interim measures’.Footnote ¹⁰⁶ Finally, the Commission may either ‘uphold the executive agency’s act or decide that the agency must modify it in whole or in part’,Footnote ¹⁰⁷ the respective executive agency being under a duty to comply with the Commission’s decision.Footnote ¹⁰⁸ Quite importantly in this context, according to Article 22 (5), the explicit or implicit decision of the Commission to reject the administrative appeal filed by the individual against the act of the executive agencyFootnote ¹⁰⁹ is subject to judicial review by the CJEU under Article 263 TFEU. In this way, the agency’s act in the form of factual conduct directly breaching the fundamental rights of the applicant could be reviewed indirectly (in the context of the review of the Commission’s decision to reject the appeal against the act) by the CJEU.

12.5.4 Boards of Appeal

Another rather overarching non-judicial remedy available in EU law is the so-called board of appeal (BoA) featured quite prominently within various EU offices and agencies.Footnote ¹¹⁰ Characterised by some as a ‘quasi-judicial’ remedy,Footnote ¹¹¹ the BoAs are in fact administrative remedies within the structure of the respective EU office or agency that bear certain similarities to courts and court proceedings.Footnote ¹¹² In this respect, they enjoy in principle a high degree of independence within the respective office or agency and the procedures before them are generally of an adversarial nature.Footnote ¹¹³ What is more, it appears that overall the EU legal acts establishing BoAs within various offices and agencies followed the model of EU Courts regarding standing and challengeable acts.Footnote ¹¹⁴ Accordingly, in general only decisions of the office or agency that are of direct and individual concern to the individual may be appealed before a BoA.Footnote ¹¹⁵ As administrative review bodies, BoAs in principle can exercise more intensive scrutiny and have more extensive review powers over the contested decision as compared to judicial review, and their binding decisions may be ultimately challenged before EU courts under Article 263 TFEU.Footnote ¹¹⁶ However, in view of its admissibility standards, this quite far-reaching administrative remedy seems to be of little relevance as regards factual conduct breaching fundamental rights, except, just like in the case of judicial review under Article 263 TFEU, for those instances in which such factual conduct could qualify as an (instant) tacit or implicit administrative act directly affecting the fundamental rights and legitimate interests of the individual. However, in view of its apparent advantages both as a legal review mechanism and as a potential legal remedy, one may consider further extending the scope of BoAs review in the future, similarly to the legal review model of EU executive agencies’ acts, to any acts (including factual conduct) of the EU body affecting the legal situation of the individual and making such a BoA model an entrenched feature of the overall EU institutional framework.

12.5.5 Frontex Fundamental Rights Complaint Mechanism

Staying within the sphere of EU agencies, the European Border and Coast Guard Agency (EBCG Agency, Frontex, or ‘the Agency’) features a specific administrative review mechanism, particularly tailored for breaches of fundamental rights by EU factual conduct. This is the (in)famous complaints mechanismFootnote ¹¹⁷ set up on the basis of Article 111 of the EBCG RegulationFootnote ¹¹⁸ for addressing alleged breaches of fundamental rights caused by staff involved in the Agency’s (operational) activities.Footnote ¹¹⁹ Being available free of charge for any person (no matter the age)Footnote ¹²⁰ directly affected by any actions or failure to act on the part of staff involved in Frontex’s activities,Footnote ¹²¹ the complaints mechanism looks prima facie like a remedy genuinely intended to bridge the gap concerning review of as well as redress for potentially harmful factual conduct of the Agency and its staff during external border management operations.Footnote ¹²²

However, the complaints mechanism also features some alleged shortcomings and limitations that have triggered criticism regarding its legal design and practical operation.Footnote ¹²³

First, while the extensive involvement of the Frontex Fundamental Rights Officer (FRO) in handling individual complaints is to be welcomed, questions pertaining to the genuine independence of the FRO vis-à-vis the management of the Agency as well as to the limited powers of the FRO regarding the outcome of the procedure leave a mixed impression as to its effectiveness in addressing fundamental right breaches.Footnote ¹²⁴ Thus, in the instances in which the FRO finds the existence of concrete fundamental rights violations, for instance in the form of excessive use of force by Frontex staff against individuals attempting to cross the EU external border by land, it draws up a report that includes recommendations for appropriate follow-up by the Frontex Executive Director (ED).Footnote ¹²⁵ Next, although the EBCG Regulation and the Agency’s rules on the complaints mechanism provide that the ED ‘shall ensure the appropriate follow-up’Footnote ¹²⁶ … ‘to FRO’s recommendation through measures provided for by the applicable rules’,Footnote ¹²⁷ the fact remains that the ED has broad discretion in establishing the ‘appropriate follow-up’ and is not formally bound by the FRO’s findings and recommendations.Footnote ¹²⁸ The obligation stipulated for the ED to report back to the FRO as to ‘the findings, the implementation of disciplinary measures, and follow-up by the Agency in response to a complaint’ does not change this;Footnote ¹²⁹ in fact, the Agency’s rules on the complaints mechanism provide clearly that a complaint may be declared unfounded by the ED.Footnote ¹³⁰

Second, it remains unclear what the ‘follow-up’ by the ED may consist of. Both the EBCG RegulationFootnote ¹³¹ and the Agency’s rules on the complaints mechanismFootnote ¹³² merely refer more explicitly to disciplinary measures and referral for initiation of civil and criminal proceedings; for the rest, formulations remain rather vague, such as ‘any follow-up measure’Footnote ¹³³ or ‘undertaking immediate action’ in case of an imminent risk of irreparable harm to the complainant or to the Agency.Footnote ¹³⁴ One may thus wonder whether the follow-up measures decided by the ED should also include redress for the individual whose rights have been breached by the Agency’s factual conduct, such as putting an end to the infringement, where applicable, and/or various compensatory measures for the harm suffered. If this mechanism and its follow-up are not aimed at properly addressing the breaches of the complainant’s fundamental rights caused by the Agency’s operational activities, one may seriously question whether this procedure represents a genuine remedy for the individual.Footnote ¹³⁵

Third, one may wonder whether the affected individual can legally challenge the outcome of the complaint procedure; one may consider in particular a decision by the ED to declare a complaint unfounded or an ED decision by which inappropriate follow-up by the Agency is taken on the complaint. Somewhat paradoxically, the legal review of such ED decisions is not clearly stipulated in the EBCG Regulation, prompting the remark that ‘the complaint mechanism is by design not fit to contest decisions of the agency’.Footnote ¹³⁶ In our view, to the extent that such decisions represent acts of the Agency that directly affect the legal situation of the complainant (and in our view this is the case where they do not properly address complainants’ breaches of fundamental rights), they are covered by Article 98 EBCG Regulation and, as a result, should be challengeable before the CJEU under Article 263 TFEU.Footnote ¹³⁷ In this respect, the revised Agency rules on the complaints mechanism arguably bring more clarity on this matter as they now stipulate that the ‘decisions adopted by the Executive Director … in relation to an admissible complaint shall contain an indication of the appeal possibilities provided under EU … law available for challenging the decision’.Footnote ¹³⁸

Last but not least, the effectiveness in practice of the complaints mechanism has been called into question. With a low number of complaints being registered over the years, and no complaints recorded until June 2021 regarding the activities of Agency staff members,Footnote ¹³⁹ concerns (followed by recommendations for improvement) have been raised inter alia regarding the accessibility, transparency, and proper functioning of this procedure.Footnote ¹⁴⁰

12.5.6 The European Data Protection Supervisor (EDPS)

Finally, a horizontal but rather specific non-judicial remedy available in the area of personal data processing by EU institutions, bodies, offices, and agencies deserves closer attention. Regulation 2018/1725 (the so-called General Data Protection Regulation for EU institutions and bodies) entrusts the European Data Protection Supervisor (EDPS) both with an overarching supervisory function regarding the processing of personal data by EU institutions and bodies and with the function of an administrative remedy for data subjects whose rights have allegedly been breached by unlawful data processing.Footnote ¹⁴¹ For certain, unlawful data processing by EU institutions and bodies may entail formal legal acts but also (perhaps in particular) factual conduct in the form of various physical operations (e.g., inadvertent collecting, recording, retrieving, consulting, altering, or deleting personal data in a database such as EURODAC or Europol Information System (EIS); combining, structuring, or analysing personal data for profiling purposes; prohibited disclosure by transmission of personal data to a third party,Footnote ¹⁴² including, for instance, exchanges of personal data with third countries by Frontex within the EUROSUR framework; unauthorised dissemination of personal data to the public,Footnote ¹⁴³ etc.).Footnote ¹⁴⁴ The right to lodge a complaint with the EDPS is granted broadly to any data subject who considers that the processing of his/her personal data infringes Regulation 2018/1725.Footnote ¹⁴⁵

Further, clear obligations are established for the EDPS in dealing with the complaint. First, the EDPS has a duty of information to the complainant as to the progress and outcome of the complaint, as well as to the availability of a judicial remedy.Footnote ¹⁴⁶ Second, the EDPS is under a duty to handle the complaint or inform the data subject about the progress/outcome of the complaint within three months; failure to do so equates to an implicit negative decision by the EDPS.Footnote ¹⁴⁷

Next, unlike the EU Ombudsman and the Frontex FRO, the EDPS has quite extensive formal powers vis-à-vis EU institutions and bodies at fault. Within the realm of its so-called corrective powers, the EDPS may inter alia order the controller or the processor to: ‘comply with the data subject’s requests to exercise his or her rights’,Footnote ¹⁴⁸ or ‘bring processing operations into compliance [with Regulation 2018/1725] … where appropriate, in a specified manner and within a specified period’,Footnote ¹⁴⁹ or further to ensure ‘the rectification or erasure of personal data or restriction of processing’ pursuant to the data subject’s rights under Regulation 2018/1725.Footnote ¹⁵⁰ Additionally, and quite notably, the EDPS can effectively enforce the measures mentioned previously by imposing administrative fines for non-compliance by the relevant EU institution or body.Footnote ¹⁵¹ The EDPS seems thus to have effective legal means to properly address breaches of fundamental rights by EU personal data processing operations.

Finally, but quite importantly, the decision of the EDPS concerning a data subject’s complaint, including the implicit negative decision where the EDPS fails to handle the complaint or inform the data subject about the progress or outcome of the complaint, can be challenged before the CJEU by the data subject.Footnote ¹⁵² Hence, in the area of personal data processing, the synergy between a strong administrative remedy provided by the EDPS and the judicial review of EDPS ensuing decisions bears the promise, at least on paper, of offering quite effective legal protection as concerns breaches of data subjects’ fundamental rights by EU factual conduct in the form of various physical data processing operations.Footnote ¹⁵³