Externalising Refoulement Through New Technologies: The Case of Frontex’s Specific Situational Pictures under the Lens of EU Non-Contractual Liability

Abstract

Specific situational pictures are interfaces centralising continuously updated information about the situation at the external borders of the EU and dedicated to being shared with third countries. Frontex operates them and shares them through working agreements with third countries. On the basis of the information received, third countries may engage in refoulement contrary to European and international law, for which the responsibility of Frontex as the sharer of critical information must be examined. Building upon the law of non-contractual liability of the EU, this paper aims at pinpointing the technical characteristics of specific situational pictures that hamper holding Frontex responsible for the refoulements carried out by third countries on the basis of information shared. This paper argues that the principle of non-refoulement in EU law contains the obligation not to share information susceptible of leading to refoulement. Compensating the damage of people undergoing refoulement by third countries informed by specific situational pictures operated by Frontex is challenging, as the multiplicity of actors, the automation of data updates and the lack of transparency of these situational pictures blurs the lines of the attribution of responsibility.