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In 2024, India introduced a new criminal code, the Bharatiya Nyaya Sanhita (BNS), replacing the Indian Penal Code (IPC) of 1860. Complementing this, the 1974 Code of Criminal Procedure (CrPC) was replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS, literally: Indian Citizen Safety Code), while the Bharatiya Sakshya Adhiniyam superseded the 1872 Evidence Act – all legislations originally introduced by the British. The new codes were announced by the Indian government as means of decolonising Indian law. As in other fields where the current Bharatiya Janata Party (BJP) government has adopted the language of decoloniality, such as their reforms in science and education or their historical narratives, critics have pointed out that the new criminal code may be considered more a continuation of colonial authoritarianism than an emancipation from it, albeit with Hindi names this time.

The BNS might be an overly obvious example of shallow decoloniality, easy to deconstruct as its opposite, since it so evidently continues colonial era notions of punishment and order. Yet the adoption of the discourse of decoloniality by the Hindu right in India, as well as by other ethnonationalist governments around the world, points to the problem that any decolonial project faces: Who is to define which normative alternatives we should appeal to when seeking to rid concepts and institutions of their colonial legacies? This brings us to the underlying question: What is the purpose of reflecting on colonial legacies in law? Is it epistemic justice? And, if so, whose epistemic justice? What, and who, is epistemic justice good for? What is the injustice entailed in epistemic injustice? Does it not consist of the fact that the conceptual legacies of colonialism in law perpetuate the structures of inequality established by colonialism and carried on in post-colonial times? Is epistemic injustice, therefore, primarily a problem because it underlies and perpetuates material injustice? This would imply that the purpose of reflecting on colonial legacies in contemporary law is to enable more equality, not merely epistemologically but materially. Which immediately raises the question of whether equality is in itself a colonial Western value, as Louis Dumont, the theorizer of hierarchy, suggested.

What Makes a Concept Colonial?

Arguably, concepts remain colonial inasmuch as they enable the reproduction of colonial social relations, that is, racialised structures of property and inequality. Thinking about decoloniality in terms of “origins” falls back into colonial knowledge patterns of difference and authenticity. These are easily incorporated into the most pervasive colonial legacy, namely the triad of nation state, property, and capitalism. Colonial legality organised territory, persons, and relations through imaginaries tied to communities and (legal) traditions. This incorporated non-Western social relations into its logic: Law recognises and protects entities by fixing their identity and attaching exclusive or hierarchically ordered entitlements to that identity, thereby engendering conceptions of persons, rights, and membership that mirror capitalism’s notion of private property. This legal infrastructure of recognition, in which law extends status and protection to things and collectivities as stable and exclusive bearers of rights, is reintroduced in decolonial claims that foreground epistemic sovereignty. Even if intended otherwise, in their notion of authenticity they emulate and reproduce colonial – or romantic – notions of (normatively integrated) collective identity and thus make for their easy adoption by ethnonationalist projects.

Anti-colonial Practice of Law

If reflexivity in law is taken seriously as law’s exposure to marginal knowledges and practices, the primary movement of reflexive transformation is not alternative doctrinal categories, but the legal reasoning found within social struggles. These struggles start from a given situation shaped by colonial legacies as they are inherent in the entanglements generated by global capitalism, and seek to undo them. They do this by, among other things, employing the legal means available to them, thereby infusing the latter with their often anti-colonial (rather than decolonial) aspirations. We see this in the movements that have employed law in striving for environmental and climate justice, fairer trade relations and non-exploitative supply chains, food sovereignty, land rights, and women’s rights. Their legal actions range from strategic litigation to a creative use of administrative complaints, participatory mechanisms, and international human rights processes.

The employment of law in such struggles has often been met with scepticism in critical legal scholarship and legal anthropology, where a long tradition going back as far as Otto Kirchheimer’s analyses of juridification casts doubt on the transformative potential of law. The argument has been that liberal law unavoidably infuses any social struggle with the individualism inherent in liberal conceptions of rights, depoliticising collective struggles.

Yet these movements that use law alongside more overtly political means to struggle against the colonial legacies inherent in the property regimes of global capitalism could be said to be evidence of a reflexive globalisation in and of law. In their employment of law, they introduce normative propositions informed by diverse normative sources – legal and non-legal – into legal reasoning. Pragmatically employing any norm that might provide them legal benefit, they relate the legal norms that they can get hold of to their claims, and infuse them with concrete novel meaning. The normative propositions articulated in light of their concerns engender incremental normative change in what may be called “reverse translations”. Thereby, I argue, not only do they incrementally transform – potentially, and with many failures – normative meaning, but they also challenge the basic building blocks of liberal law – also its epistemic ones.

Colonial histories continue to shape legal institutions via the very conceptualisation of the social, spatial, and temporal reach of the relations that law considers. Contemporary legal institutions could be said to “cut” interdependent chains of action into distinct units: Social units in the person and related concepts of cause and intent; temporal units that define how law considers the temporal scope of an event, including its beginning and end; and units of practice when practice is divided into separate legal fields. Particularly in international law, different bodies of law are relatively independent of each other (as Keebet von Benda-Beckmann explained lucidly in her unpublished manuscript ‘The Contexts of Law’): separating trade from human rights, labour law from ecological issues, etc. It is precisely these “cuts” that many social movements employing law challenge, insisting on the fact that the uncoupling of these fields of law is incongruent with the factual interdependence of the interactions that they regulate – and which cause harm and suffering. By contesting the conceptual cuts that liberal law makes through time, space, and fields of practice, such movements contest the limits of what is recognized and even speak-able in law. The legal reasoning of social struggles makes courts, treaties, and administrative agencies into sites where subaltern interpretations of norms confront capitalist legality. Each partial accommodation or recognition of their claims leaves traces – precedents, institutional reforms, new channels for participation – that can be reappropriated in subsequent struggles.

The invocation of existing legal norms provides a shared language for common aspirations; it provides for connectivity and enables alliances across diverse positionalities and histories. Even though these invocations thus always also simplify and homogenize different experiences, and although they carry liberal law’s conceptual baggage – such as individualism, the propertisation of rights and obligations, and bounded sovereignty – the meanings of these norms are unsettled when movements insist on linking them to broader structures of exploitation, dispossession, and ecological destruction. Epistemic change is incremental, partial, precarious. The resulting normative entanglements therefore cannot be reduced to either the reproduction or the negation of liberal legality; they instead constitute a messy field in which norms from different normative orders become articulated with one another in an unsystematic manner that always relates to concrete struggles and contestations.

Reflexive Law

Such normative entanglement goes beyond vernacularisation. It not only merges norms from different normative orders, it also produces novel relational meanings that cut across legal fields and jurisdictions, striving for trans-jurisdictional coherence. It is thus at base anti-pluralist. It does not revert to a claim for the coexistence of multiple integrated legal orders, or even epistemic difference; rather, it produces new meanings that form an unsystematic normative relationality. Because this anti- or non-pluralism challenges the differentiations that liberal law relies on, the transformative potential of these normative innovations addresses the basic grammar of extant law. The anti-colonial potential lies in how movements force law to confront factual entanglement in a way that exceeds current institutions of jurisdiction. Reflexive law, from this vantage point, is an ensemble of responses to the dynamics of global entanglement. It must be understood as a practice of polyvocal contestation in highly unequal relations, where legal forms are continuously problematised by actors drawing on multiple normative sources: cosmologies, memories of struggle, anti-colonial and feminist ethics, ecological knowledges, and solidarities that exceed jurisdictional boundaries. Law’s reflexivity lies in the cumulative effects of these juridico-political contestations, in which its categories are stretched, re-signified, and sometimes fractured. Social movements striving for environmental, economic, gendered, and agrarian justice seek not only epistemic recognition but material justice, such as the redistribution of resources, the protection of livelihoods, the mitigation of climate harms and the recovery of land. In pursuing such goals, they generate epistemic change in legal concepts. They do not necessarily succeed in altering the relational architecture of law. They often fail, and the responses of authorities might entrench the status quo and deepen legal exclusion. And yet, their attempts to make law more open to insurgent practices challenge the colonial nexus of person, property, and authenticity more fundamentally than do pluralist versions of epistemic justice. This connects to the underlying premise of reflexive globalisation and the law driving the agenda of Centre for Advanced Studies RefLex.

Rather than reverting to allegedly autochthonous legal alternatives, which, for example, the supposedly decolonial measures of the Hindu nationalist government in India purport to embody, they address the persistent structures of colonialism when they name the damage done in available legal terms; blame responsible actors who cause, profit from or enable the damage, thereby differentiating legal responsibility to encompass complex chains of action; and claim structural change. Only by making law responsive to the structural legacies of colonialism as they inhere in capitalism, the nation state, and the notion of private property that links both, can law move towards an un-colonial future.

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The almost-total breakdown of ‘offline commerce’ during the pandemic reiterated that global value chains (GVCs) are about more than full shelves. It made obvious a certain population’s learnt dependency and comfort in relation to immediate consumer gratification, which itself is part of an acquired entitlement to get, do, and enjoy things any time we want. The curse comes dressed up as a blessing, hiding gratification as a mere complement to everyone’s complete immersion and implication in an extractivist culture: that is, the relentless pursuit of extracting value from people and things. This dynamic is pertinent to an economic-financial culture of ‘always-on-call’ and ‘always-ready’.

A surge in ‘modern slavery’ and ‘global value chain’ legislation over the past years is therefore noteworthy. Politically, it signals awareness and commitment to address a problem, that many will admit to as “longstanding”, perhaps even grave. Tedious, even relentless lobbying, by business groups and business-friendly politicians notwithstanding, the eventual passage of modern slavery and global value chain legislation norms suggests that majorities can be assembled to back regulations aimed at (slightly) improved transparency and reporting duties regarding prevailing extraction modes, working conditions, and pay. Legally, the gain is more symbolic than real, given the prioritisation in most such laws of disclosure over actual change and the limited scope of hard-fought-over regulations. To be sure, the exhausting efforts required, first, to launch human rights- and environmental protection-geared norms in the context of modern slavery and global value chains and, then, to pursue such aims against intense and well-financed lobbying and political obstruction are reality distorting: they distract from the fact that the alleged normality of ‘uninterrupted’ value chains and full shelves constitutes a normality we should resist. Not the pandemic ‘disruption’ is the crisis but the normal and persistent exploitation of workers and communities which is inherent to global value chains. The task for lawyers is to expose law’s constitutive role in allowing the actual disaster of value chain violence to be represented as normal.

The normal (as) disaster

The 2019-23 COVID-19 pandemic thrust GVCs into public awareness in an unprecedented way. In responding to the coronavirus, governments around the world shut down borders and locked down most, in some cases all, social and commercial movement. This led to a dramatic reconfiguration of life, where the most mundane activities such as grocery shopping, seeing friends or visiting museums or fitness studios, had been made impossible. Meanwhile, the already achieved level of digital trading platforms facilitated a dramatic expansion of online commerce, notably with much of the grunt work in factories and delivery centres hidden from the consumer’s myopic view.

The impact of the pandemic was hardest felt by many of those operating in the shadows and the underbelly of the worlds of retail and commerce, health and elderly care. Underneath and not plainly visible to consumers during the quotidian struggle with isolation and loneliness were the dire and life-threatening conditions under which the most rudimentary maintenance of long-term care for the elderly and weak as well as global food production, distribution of goods, and delivery to millions of households were being guaranteed by vulnerable, often gendered and racialised worker demographics. From the perspective of those performing dangerous production, service, and care tasks under unhealthy or life-threatening conditions with low pay, there has never been much about supply chains and, now, gig and ‘platform’ work that was normal. The pandemic brought the actual operation and experience of GVCs by those most exposed to the destructive dynamics of a profit-driven just-in-time economy to broader public awareness and wider scrutiny.

The overwhelming response across policy and business circles, however, focused on making every effort to ‘put the pandemic behind us’ and to rebuild ‘resilient’ supply chains.

Against that, there is an urgent need to challenge and unpack the tension between the pandemic-induced explosion of public awareness and the nevertheless still dominant view according to which the regular operation of global value chains is the norm (and, in fact, desirable) and the pandemic disruption should be seen as exception and crisis. A first step in that direction is to reverse the perspective from which the kinds of disruption connected to the COVID-19 pandemic are an extraordinary outlier from a state of things which in itself is considered valuable and, above all, normal. It is this normalisation of what are, in fact, unacceptable working conditions which constitutes the exception, not the pandemic-driven shut-down of factories and transport lines. Distinguishing between us and our needs and the labour of those who are exploited to fulfil those needs is a well-known semantic move through which the ‘us’ is prioritised and valued while the ‘other’ is distanced and rendered expendable and disposable. Amidst the outrage over the lack of frozen pizzas and missing sanitary paper in 2020, what remained largely invisible to the consumer were the egregious conditions under which the ongoing operation of food- and other essential-items-related factories was and is being maintained. For a moment, the pandemic brought to public awareness the tip of the iceberg of supply chain-related violence, exploitation, and unsustainability. And with that, it shed light on the systemic body of extractivist capitalism, which feeds on humans, animals, and the environment.

Global value chains as quotidian sacrifice zones

As politicians and business managers continue to emphasise the ‘exceptional’ and ‘disruptive’ nature of the pandemic and its supply chain-related break-downs of shipping routes and lock downs of life, the violence and unsustainability inherent to global value chains continue to be normalised. At the heart of this violence are the ‘sacrifice zones’ around mining operations, food processing plants, garment factories, and underfunded, corporatised health and long-term care facilities. Sacrifice zones such as the factory floor in Rana Plaza in Bangladesh or the meat processing plants all over the Global North are key sites of quotidian horror, not just during the pandemic. Potentially transformative legal fields such as modern slavery law, value chain law but also climate change law have critical methodological potential, despite the virulent business push-back. Politically, they can disrupt what is presented as normal. Conceptually, they can contribute to critical methodologies through which we can challenge and contest the ‘laws of capitalism’. But, this requires the acknowledgement that the normal of a 24/7 economy is the disaster, as is its hidden-from-view workforce and the deepening environmental destruction. Law and critical legal theory, in turn, must be refashioned as disaster law. This implies thinking of disaster law not as a legal field per se but as a methodological project. An unpacking of prevailing doctrinal treatments of disaster law reveals the limitations of a traditional legal framework which assumes an ex-post position from which it, by design, reacts and responds to events it identifies and legally classifies as ‘disasters’. Disaster law, which typically tends to be categorised as being a part and sub-discipline of administrative law, obfuscates law’s structural role in first facilitating and then perpetrating and sustaining conditions of exclusion, marginalisation, and inequality. Disaster law as critical methodology is poised to learn from earlier iterations of anti-formalist and law-and-political-economy critique developed already at the start of the twentieth century. Scholars like Morris Cohen or Robert Hale compellingly highlighted the role that formal abstractions of, say, parties to a contract or the principle of ‘freedom of contract’ played in invisibilising existing socio-economic conditions marked by stark inequality. Similarly, key to disaster law as here conceived is the reimagination and recapturing of spaces of vulnerability and harm in GVCs of which the general public becomes aware only too occasionally through social media scandalisation of a deathly event such as a storm, flood or earthquake, or during the concrete impact of a pandemic. What determines these spaces is the structural dimension of an extractivist condition which rests on the subjection of natural resources and humans to the logics of value extraction towards grossly asymmetric wealth accumulation.

Reflexive globalisation

Imagining critical legal theory as a methodology of the normal as disaster shares key concerns with efforts to address the ‘winners and losers’ of economic globalisation from a postcolonial perspective. Such efforts have taken on new significance as voters elect populist leaders riding on the coat tails of public disappointment, disenfranchisement, and alienation and prompt difficult questions as to how few really benefited from the ‘shrinking of the world’. It is no coincidence that heightened awareness of neocolonial usurpation of resources in the Global South for the green transition in the North unfolds in parallel with attempts among progressive Western legal scholars to scrutinise law’s constitutive role in fostering – and normalising – a deeply inegalitarian society. Extractivism long precedes the present moment. The resurgence in Law and Political Economy (LPE) scholarship over the past decade sheds light on a broadening concern with the role of law in fostering, facilitating, and sustaining an extractivist and deeply inegalitarian system of capitalism. The discontent with globalisation today manifests itself in important critiques of the breathtaking expansion of transnational regulatory governance, the absorption of power by private actors, and the disintegration of domestic policy arenas through financialisation. Meanwhile, soul searching, including the reckoning with the rise of populism and fascism, remains mainly a local, navel-gazing affair. Too little real exchange between the South and the North around the lived reality of colonialism and its continuities is taking place. Projects like “global administrative law” and “global constitutional law” had their share in further delaying meaningful, respectful engagement.

A crucial and pressing concern today across law and the humanities, while regrettably not yet for mainstream economics, finance or management scholarship, is the disconnect between decades-long analysis of (Western) state transformation, law and governance, and distinctly different chronologies and epistemic framings of progress, growth and development across scholars in and from the Global South. Western scholars of “globalisation” have long adopted the goldfish’s world view of God (“Who ever would change the water?”) while remaining deaf to the voices trying to draw attention to the direct interconnectivity of Northern wealth and the neo-colonial continuities which kept the Global South a subpar member of the ‘international community’. Today’s postcolonial critique of (the West’s) ‘green transition’ highlights this persisting dynamic.

In law, this disconnect translates into a deeply entrenched separation of those studying international law and, selectively, choosing to confront not just the discipline’s but the existing legal and political architecture’s colonial roots from those who – “nominally not being internationalists” – take a narrow, protected view of their legal doctrinal and conceptual work. The majority of domestically focused lawyers, say in Europe or the U.S., thus tend to operate within an only too-rarely comparative and even less challenged reference framework without recognising the relevance of imperialist globalisation or the critique of it. The typical (Western) lawyer’s scale of operation across distinctions of international v. domestic, public v. private, formal v. informal, as well as law v. non-law, well illustrates the rigidity of existing conceptual boundaries within a neatly delineated, inward-oriented universe of meaning.

Meanwhile, the power and violence of this insularity is rarely acknowledged. Critical contributions also by scholars spearheading the Centre for Advanced Studies RefLex have begun to meaningfully unsettle the hitherto prevailing agnosticism. It is important for us to draw on legal anthropological, legal sociological work, and on legal practitioners’ experiences in areas from transitional justice, law and development, and commercial arbitration to global value chains, climate change law, feminist legal theory, legal geography, and critical data studies, to advance our understanding of emerging fields of law which correspond neither with established demarcations of legal subfields nor with mystifying distinctions between law and morality. By positing non-traditional legal fields of practice and critical methodological inquiry in relation to unquestioned ordering patterns of law/non-law and hard/soft law, we may be able to challenge existing frameworks for how law is created, defined, and amended. While the engagement with different forms and conceptualisation of legal pluralism remains a constructive methodological route, what is required is a radical interrogation of the epistemic foundations and normative premises which continue to inform Western law. This interrogation cannot take place solely from within but must acknowledge its blindness and deafness to what postcolonial scholars have long been calling “alternative knowledges”. Maybe what is needed is more ‘humility’ when trying to be open and receptive to what has too long been ignored and suppressed. While authors such as Eduardo Escobar, Dipesh Chakrabarty, Ratna Kapur, Silvia Rivera Cusicanqui, Catherine Walsh, James Gathii, Carmen Gonzalez or Daniel Bonilla have done much to rattle the inward-oriented, discursive cages of (self-proclaimed ‘progressive’) Western scholarship, their and others’ work illustrates the immensity of the challenges which remain in developing a critical postcolonial analysis of transnational legal pluralist infrastructures today.

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In the evolving landscape of EU border accountability, the Court of Justice of the European Union (CJEU) delivered its ruling in Hamoudi v Frontex (C-136/24 P) on 18 December 2025. This Grand Chamber decision not only reversed the General Court’s (GC) dismissal but also fundamentally recalibrated the evidentiary standards for establishing Frontex’s liability for fundamental rights violations, as discussed here. As FM v Frontex (T-511/24), a closely related case, awaits its judgment, Hamoudi’s legacy in establishing Frontex’s accountability and lowering the burden of proof for vulnerable migrants, promises to reshape its outcome. This post initially analyzes Hamoudi’s doctrinal mechanics, draws parallels to FM, and sketches plausible trajectories for the latter, thereby illuminating Frontex’s emerging liability regime. The central claim advanced here is that the Court in Hamoudi revolutionized EU non-contractual liability under Article 340(2) TFEU by easing evidentiary burdens for migrants, shifting proof obligations to Frontex, and affirming the agency’s independent fundamental rights duties. In doing so, it sets the stage for the pending case FM v Frontex on aerial surveillance and data-sharing complicity.

The Doctrinal Foundation: Union Non-Contractual Liability Under Article 340(2) TFEU

Before examining Hamoudi, it is useful to recall the framework governing EU Agency liability. Article 340(2) TFEU establishes that the Union shall make good any damage caused by its institutions or agents in the performance of their duties. CJEU case law has consistently held that three cumulative conditions must be satisfied: (1) an unlawful act, (2) a sufficiently serious breach of EU law, and (3) a direct causal link between the breach and the harm suffered. The substantive rules conferring rights. In this context, Hamoudi’s significance lies partly in how it recalibrates the evidentiary threshold for proving these conditions, particularly in factual circumstances where applicants lack privileged access to state or Agency documentation.

Hamoudi v Frontex: A Watershed on Evidentiary Burdens

Mr Hamoudi, a Syrian national, alleged Frontex complicity in his 2020 illegal pushback from Greek territorial waters to Turkey. Despite video evidence and NGO reports implicating Frontex air patrols, the GC (T‑136/22) dismissed the claim for lack of sufficient causal proof establishing the Agency’s accountability. The Court annulled this judgment, articulating three substantive and interrelated shifts:

Prima Facie Evidence Suffices

Migrants need only present “serious indications,” such as videos, Frontex operational logs, witness testimony, and corroborating NGO documentation, to establish prima facie Frontex involvement and causation of harm. The Court grounded this reduced threshold in the principle of effective access to justice under Article 47 CFR (right to an effective remedy). Critically, it would be disproportionate to demand full documentary proof from asylum seekers who, by definition, lack access to classified Frontex operational data, surveillance recordings, and internal communications. The burden shifting thus rests on an asymmetry of information: only state authorities and Frontex possess the documentary evidence necessary to construct a complete causal narrative.

Burden Shift to Frontex: Non-Disclosure as Adverse Inference

Once a migrant establishes prima facie evidence meeting the threshold of “serious indications,” the evidentiary burden shifts. Frontex is then obliged to come forward with full disclosure of internal reports, mission logs, operational data, and communications that either rebut or clarify the alleged involvement. Significantly, the Court held that non-disclosure or silence, without compelling operational security justifications, hampers the Court’s liability assessment. This approach is grounded in Article 47 CFR and the principle of access to effective remedy: a party cannot simultaneously benefit from institutional opacity and deny liability arising from that opacity. In this context, non-responsive silence substantially weakens Frontex’s defensive position and may result in tipping the evidentiary balance in applicants’ favor.

Independent Obligations: Frontex as More Than a “Mere Executor”

The Court further rejected the characterization of Frontex as a mere executor of Member State decisions. Instead, the Court held that Frontex bears independent, non-delegable obligations to assess the lawfulness of operations before, during, and after execution. Specifically, Frontex must independently verify compliance with the principle of non-refoulement (Article 19(2) CFR) and the right to asylum (Article 18 CFR) before it engages in operational support. This duty is not discharged by virtue of Member State authorization; Frontex retains an autonomous responsibility under EU primary law to refuse participation in manifestly unlawful operations. A breach of this duty (for instance, using technical or operational support to known pushback or pullback schemes) constitutes an unlawful act under Article 340(2) TFEU.

FM v Frontex: Aerial Surveillance and Data Sharing as Alleged Complicity

In October 2024, front-LEX and Refugees in Libya brought an action for failure to act against Frontex before the GC on behalf of FM, a Sudanese asylum seeker trapped in Libya without access to international protection or medical care. The applicant contends that he faces heightened risk of detection if he attempts to cross the Mediterranean, consequent handover to Libyan entities by intercepted vessels, and subsequent serious abuse including detention and torture. He seeks a declaration that Frontex’s unlawful information sharing violates Article 46(4) of the Frontex Regulation (Regulation 2019/1896) and demand suspension or termination of the Agency’s geolocation data sharing with Libyan authorities.

The applicant alleges that Frontex disseminates real time geolocation data regarding refugee boats traversing the Central Mediterranean to Libyan “rescue” coordination centers and other Libyan entities. This data sharing systematically facilitates the interception and pullback of migrant vessels to Libya, where FM and others face serious risks of persecution, torture, arbitrary detention, and inhuman treatment. Although one might argue that Frontex’s sole obligation is to inform the internationally recognized responsible rescue coordination centre, the principle of non-refoulement bears broader duties for Frontex not to facilitate returns to places of persecution.

Furthermore, the applicant had previously submitted a legal notice under Article 265 TFEU (action for failure to act), demanding that Frontex’s Executive Director suspend or terminate the Agency’s aerial surveillance in the Central Mediterranean “pre-frontier area” pending a human rights audit. He argued that the Executive Director failed to provide adequately reasoned justification for rejecting their request to act (dated 29 May 2024) and did not clarify the Agency’s position in response. It has to be noted that, in April 2025, the GC declined to dismiss FM’s complaint as inadmissible and instead postponed the inadmissibility ruling pending examination of the case on the merits. This procedural step signals that the Court will engage substantively with FM’s factual allegations and not shield the Agency behind standing or justiciability barriers.

Drawing Parallels: Hamoudi’s Logic Applied to FM

The three main strands of Hamoudi’s reasoning (reduced evidentiary thresholds, burden shifting and independent Agency obligations) are directly transferable to FM’s legal issues. Hence, the GC in FM will be bound by Hamoudi’s Grand Chamber pronouncements and should follow the same approach. This means: (i) FM’s corroborated allegations of Frontex surveillance, geolocation data sharing, and complicity in Libyan interceptions will satisfy the prima facie threshold more readily than what the GC was willing to accept in Hamoudi; (ii) Frontex will be obliged to disclose classified surveillance feeds, data-handling protocols, and coordination records with Libyan authorities; and (iii) Frontex cannot invoke Member State authority or third-country liability as a shield against its own independent duty to assess whether geolocation data sharing violates the principle of non-refoulement.

Hence, FM’s claim rests on establishing a sufficiently serious breach of Frontex’s independent obligations under the principle of non-refoulement and the Frontex Regulation. Here, the causal chain is plausible: Frontex surveillance detects migrant boats; Frontex transmits geolocation data to Libyan authorities; Libyan entities intercept the vessels; migrants are returned to Libya; FM faces persecution and torture. The critical question is whether Frontex’s participation in the first two steps (surveillance and data sharing) bears sufficient causal responsibility for the harm suffered in steps three and four, given that Libyan authorities and intercepting vessels are intervening actors.

Why Causation Is Plausibly “Direct Enough”

Under Article 340(2) TFEU, causation does not need to be sole causation. Hence, contributory causation suffices. Where an Agency’s conduct (data sharing) substantially facilitates a foreseeable harmful outcome (unlawful detention and ill-treatment in Libya) despite the presence of intervening third country actors, Agency liability should be recognized. The Hamoudi judgment emphasized the Agency’s obligation not to participate in manifestly unlawful operations, thus strengthening this causal connection: if Frontex acts knowing, or reasonably should know, that geolocation data will enable Libyan interceptions and returns to persecution, then Frontex’s conduct is not merely correlative but actively facilitative of the harm. Consequently, the causal link is “direct enough” to satisfy Article 340(2) TFEU requirements, notwithstanding Libyan authorities’ intervening role.

Application of Hamoudi’s Evidentiary Standards

Post-Hamoudi, FM should be able to establish prima facie evidence through, for example, NGO documentation of boat interceptions in the Central Mediterranean, corroborated testimony from migrants describing Libyan interception and abuse, or reports from human rights organizations linking interceptions to Frontex surveillance patterns and timings. These elements, individually, may not constitute ironclad proof, but they may meet the threshold of “serious indications” sufficient under Hamoudi.

Once FM meets this prima facie threshold, the evidentiary burden shifts. Frontex will have to produce operational logs, surveillance flight records, data sharing protocols, and communications with Libyan entities demonstrating either that no geolocation data was shared, or alternatively, that such sharing was compliant with non-refoulement obligations or sufficiently removed from the ensuing harm.

Two Plausible Judicial Pathways

The GC in FM faces two broadly distinct doctrinal choices, each internally coherent:

Pathway 1: Robust application of Hamoudi

The Court accepts FM’s prima facie evidence as sufficient to trigger Hamoudi’s burden shifting mechanism. Frontex is ordered to disclose surveillance records and data sharing protocols. The Court finds that Frontex knew or should have known that geolocation data would facilitate Libyan interceptions. The Agency’s independent obligation under non-refoulement was breached because it participated in an operation with a foreseeable and serious risk of facilitating returns with persecution risks. The Court awards a declaration of unlawful action (or failure to act) and possibly damages.

Pathway 2: Narrower application

The Court accepts Hamoudi’s framework in principle but applies it more restrictively. It requires FM to present more granular evidence directly linking specific geolocation transmissions to FM’s own detention and harm (as opposed to general patterns of interception). It permits Frontex greater deference on operational security grounds and accepts the Agency’s argument that responsibility lies primarily with Libyan entities and Member States. It may find narrow liability for specific, demonstrably unlawful data sharing instances but decline broader findings of systematic breach.

Thus, the outcome hinges on how the GC will apply the Hamoudi judgment. Should the GC opt for the first pathway, this will assist in solidifying protection of migrants fundamental rights at the EU’s external borders and beyond. On the contrary, if the GC follows the second pathway, the Agency’s institutional flexibility and operational scope would remain largely intact, on the cost of robust fundamental rights protection.

Conclusion

The Grand Chamber’s ruling in Hamoudi v Frontex marks a significant shift toward holding EU Agencies accountable for fundamental rights breaches by dismantling evidentiary protections and reinforcing transparency obligations. By lowering the initial burden of proof and shifting the evidentiary load to Frontex once prima facie evidence is presented, Hamoudi substantially facilitates liability findings in opaque, asymmetric factual settings. FM v Frontex constitutes the first test on whether Hamoudi’s logic extends to extraterritorial surveillance and data sharing complicity in third country abuses. The GC’s decision to proceed to the merits in FM, rather than dismissing on procedural grounds, suggests institutional willingness to engage substantively with Agency accountability questions. Post-Hamoudi, the legal foundation for holding Frontex liable exists. Now it is up to the GC to deploy its potential. This will be dependent on how it will calibrate the competing interests of border security, institutional autonomy, and protection of migrants’ fundamental rights. Hence, the stakes are high: FM’s outcome will shape the external boundaries of Frontex’s liability regime and signal whether EU Agencies can ultimately evade responsibility for systematic participation in practices in extra-EU territory that risk violating the principle of non-refoulement, which constitutes one of the cornerstones of the Union’s constitutional commitment to fundamental rights.

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