Background to the complaint

1. Greece receives EU funds to support border management activities through various funding programmes. For the period 2014-2020, these funds were provided under the Internal Security Fund - Borders and Visa (ISF) and the Instrument for Financial Support for External Borders. Subsequently, funding has been provided under the Instrument for Financial Support for Border Management and Visa Policy (BMVI) for the programming period 2021-2027. These funds are implemented principally through shared management (jointly). This means that the European Commission is responsible for assessing and approving the programme proposed by the Member State and then monitoring the overall implementation of the programme, whilst the tasks relating to budget implementation are delegated to Member States (in this case, Greece).[1]

2. As with all EU funds, the rules governing these funding programmes require that actions be implemented in full respect for fundamental rights and in compliance with the Charter of Fundamental Rights of the EU (Charter). This is set out in the rules governing each programme[2], as well as the more general rules applying to EU funds, the Common Provisions Regulation^[3]. The regulation sets out the applicable financial rules and also requires that “[m]ember States and the Commission... ensure respect for fundamental rights and compliance with the Charter of Fundamental Rights of the European Union in the implementation of the Funds”.^[4]

3. The annexes to the Common Provisions Regulation also lay down ‘horizontal’ and thematic ‘enabling conditions’ that Member States have to fulfil in order to claim reimbursement for their expenditure for EU-funded programmes.^[5] These enabling conditions are “prerequisite condition[s] for the effective and efficient implementation of the specific objectives”^[6] of the funds. One of the horizontal enabling conditions is the effective application and implementation of the Charter (hereafter, Charter HEC). To fulfil this horizontal enabling condition, Member States must have arrangements in place both “to ensure compliance of the programmes supported by the Funds and their implementation with the relevant provisions of the Charter” and to report to the monitoring committee ”cases of non-compliance of operations supported by the Funds with the Charter and complaints regarding the Charter”^[7].

4. Throughout both funding periods, there have been reports of breaches of fundamental rights including ‘pushbacks’[8] at the Greek borders, as well as of denial of access to asylum procedures and mistreatment of migrants attempting to reach Greece.[9]

5. In 2023, the European Ombudsman received a complaint from several civil society organisations[10] against the European Commission. The complainants raised concerns that the Commission had failed to carry out effective oversight of EU-funded border management activities in Greece, against the backdrop of credible and persistent allegations of serious human rights abuses by the Greek authorities.

The inquiry

6. The Ombudsman opened an inquiry to examine the issues raised and the Commission’s role in monitoring EU-funded border management activities, notably with regard to fundamental rights compliance.

7. In the course of the inquiry, the Ombudsman received the reply[11] of the Commission on the complaint and on additional questions[12] that she had asked. Subsequently, the Ombudsman received the comments of the complainants on the Commission’s reply. The Ombudsman inquiry team also inspected documents held by the Commission and met with representatives of the Commission.[13] Finally, the Ombudsman received the comments of the complainants on the report of the meeting with the Commission.

Arguments presented to the Ombudsman

The complainants’ arguments

8. The complainants were concerned that the Commission had failed to ensure that the EU funds allocated to Greece for external border management were spent in compliance with fundamental rights standards and EU law.

9. According to the complainants, the Commission is long aware that EU funds have been allocated to border management activities (for example, the deployment of personnel and the provision of equipment, infrastructure and other critical support) that have contributed to widespread and systemic breaches of fundamental rights. However, the Commission has failed to investigate this. In particular, the complainants referred to misuse of EU funds in Greece in the context of border control operations along the Evros river and in the Aegean region, in which the European Border and Coast Guard Agency (Frontex) was also involved.  

10. The complainants stated that the Commission must refuse to disburse EU funds unless safeguards are in place to ensure compliance with the fundamental rights obligations under the Common Provisions Regulation. According to the complainants, the Commission overly relies on self-assessment by the Greek authorities that these activities comply with the Charter HEC, and the Commission did not itself adequately assess that these safeguards were in place when it approved Greece’s programme, which includes EU-funded border management activities, nor does it ensure that the activities comply with fundamental rights obligations while the programme is being implemented.

11. Given the mounting evidence of systemic breaches of EU law, including the right to effective access to an asylum procedure and the prohibition of non-refoulement[14], they claimed that the Commission’s overall monitoring structures are ineffective, and that it has failed to act upon its obligations to assess the situation and to respond with appropriate remedial actions. The complainants raised concerns regarding the restrictive nature of the financial controls, the lack of impartiality of the national monitoring mechanism and the effectiveness of the ‘monitoring committee’[15].

12. They contended that the monitoring mechanism for border management is ineffective, as only one of the institutions involved (the National Transparency Authority) has powers to investigate pushbacks. They also contended that the mechanism is not fully independent or impartial. They stated that the Commission has failed to verify and thereby ensure that the Charter HEC continues to be fulfilled, and that it considered the fact that the mechanism was created as being sufficient to determine that the Greek programme complies with its fundamental rights obligations. The Commission has an obligation to ensure the lawful use of EU funds (‘outcome obligation’), and not merely to ensure that Member States have in place a monitoring mechanism (‘due diligence obligation’). ^[16]

13. The complainants contended that the Commission did not provide information about how it exercised its advisory role on the monitoring committee. The complainants were also concerned that, until recently, civil society organisations were excluded from participation in this committee and that, even now, there are practical shortcomings and limitations to their participation. For example, civil society organisations are provided with partial and overly technical information without reference to fundamental rights. The complainants were also concerned about the effectiveness of this committee, given it relies on the national monitoring mechanism to draw to its attention issues of non-compliance with fundamental rights or related complaints.

14. In the complainants’ view, the Commission does not effectively enforce the fundamental rights conditions set out in the rules governing EU funds. Amongst other provisions, they referred to the mechanisms by which the Commission may suspend, recover, restrict or impose conditions on the use of funds.[17] The Commission has failed to put in place mechanisms and processes that can ensure the effective and independent assessment of the fulfilment of the Charter HEC in the disbursement of EU funds to Member States.

15. The complainants also argued that there is a lack of transparency regarding the information that is available about the measures Greece may be undertaking to comply with its fundamental rights obligations. The same applies to how the Commission assessed fulfilment of the Charter HEC by Greece when the national programme was approved and how it continues to monitor fulfilment of these conditions throughout the funding period. They also claimed there is no information available to the public concerning the findings and outcomes of complaints handled by Greece’s complaint mechanism for investigating allegations of fundamental rights violations. 

16. In the complainants’ view, the Commission has also failed to address allegations about involvement of the European Border and Coast Guard Agency (Frontex) in pushbacks in border management operations in Greece. The Commission has voting powers on Frontex’s Management Board, and is responsible for reviewing its work, as well as evaluating and approving the continuation of Frontex’s missions and their funding by the EU.

The Commission’s arguments

17. The Commission stated that the tasks related to the implementation of the funding for both programming periods are delegated to the Greek authorities. Member States retain the primary responsibility to ensure compliance with EU and international law, including fundamental rights obligations, and to investigate any allegations of violations. The Commission’s role is to assess and approve ex ante the design of the funding programme proposed by the Member State and then supervise and monitor the projects that are funded. The Commission should ensure that the Member States have put in place management and control systems that comply with the requirements of the legal framework.

18. By February of the year following the year when funds were incurred ina project under a programme, an ‘accumulation report’ is prepared and sent to the Commission by the Member State concerned. This forms the basis for the Commission’s decision on whether payments can be reimbursed or whether and how to carry out financial controls and audits. These can be in the form of ‘desk reviews’ (that is, its staff in Brussels reviewing the available information), on-the-spot visits, and system and ex-post audits. For the current programming period, the report is due in February 2025 and will be the first such report for this period.

19. Monitoring the respect for fundamental rights has been reinforced for the period 2021-2027, as Member States are now required to ensure the fulfilment of horizontal enabling conditions (HECs), including the Charter HEC. The Commission cannot reimburse expenditure related to operations linked to a specific objective for which HECs are not fulfilled.^[18] Should the Commission consider that the HECs are no longer fulfilled, it will follow the steps set out in Article 15(6) of the Common Provisions Regulation.^[19] Compliance with HECs, including the Charter HEC, is assessed when the programmes are initially approved and throughout the course of the programme period.

20. To ensure compliance by Greece with the Charter HEC, the Commission requested the Greek authorities to set up a monitoring mechanism to verify that projects implemented under the national programme effectively apply and implement the provisions of the Charter. This mechanism provides for the investigation (and prosecution) of misconduct by the relevant Greek authorities. According to the Commission, Greece relies on a ‘three-tier system’, involving:

a. Internal investigation procedures (for example, by the Greek police and coastguard);

b. Independent national authorities (the National Transparency Authority, the Fundamental Rights Officer of the Ministry for Migration and Asylum, the Special committee on compliance with fundamental rights of the Ministry for Migration and Asylum, and the Greek Ombudsman);

c. The judicial authorities (that is, the public prosecutor and the courts, including the naval courts, where relevant).

21. So far, the Commission has not received ”confirmed evidence” through this monitoring mechanism that EU funding was used for or facilitated violations of fundamental rights that would provide grounds for suspending those funds.

22. The Commission also has a monitoring and advisory role in the ‘monitoring committees’ set up by Member States to monitor the implementation of the national programmes.[20] If the committees identify potential breaches of fundamental rights, then follow-up action is taken.

23. The monitoring committee in Greece receives annual updates on cases reviewed by the monitoring mechanism and complaints concerning fundamental rights violations. The Commission asked Greece to extend membership of the monitoring committee to civil society and international organisations, which Greece recently agreed to do.

24. As an additional mechanism to monitor fundamental rights compliance, a Memorandum of Understanding[21] was signed in 2020 by the Commission, EU agencies and the Greek government. Following this, the Task Force Migration Management[22] was set up, comprised of the same parties, the work of which is supported by Commission staff permanently deployed in Greece.

25. The Commission is committed to continue working with the Greek authorities to ensure that the existing system is robust and allows for the investigation of allegations and the necessary follow up through internal disciplinary bodies, independent authorities and the judiciary.[23] The Commission requests regular updates on the status of ongoing investigations and referred to specific examples of those requests.[24]

26. Following a complaint[25] submitted in July 2023 by the Fundamental Rights Officer of Frontex (FRO), the Commission provided the Greek authorities with a copy of the complaint, invited them to examine it and to inform the Commission of the outcome. The final report is pending but, in June 2024, the Greek national authority in charge of managing the projects informed the Commission that the preliminary finding is that there is no evidence of fundamental rights violations linked to EU funds. It is premature for the Commission to consider what actions it could undertake once it has received the investigation’s final report. This is the first time that the Commission has received a ‘stakeholders complaint’, as provided for under Article 69(7) of the Common Provisions Regulation, regarding Greece and in general.

27. Similarly, following media reports in June 2024 about fundamental rights violations[26], the Commission sent a letter to the Greek authorities asking that Greece confirm what action the national authorities had taken. The Greek authorities replied to the Commission’s request on 8 August 2024.

28. In principle, the Commission would not challenge the outcome of national investigations. If further information is brought by civil society organisations or other credible sources, the Commission may take this into account and bring it to the attention of the Member State government or the monitoring committee. However, if there is evidence that EU funds are not used in compliance with the applicable law, including the Charter, the Commission will make use of the means available to it, including interrupting or suspending payments, applying financial corrections, and launching infringement proceedings.

29. As regards Frontex, as a member of the Frontex Management Board, the Commission has led efforts to enhance Frontex’s framework for fundamental rights monitoring and compliance. In 2024, the Commission published its evaluation of how the Frontex Regulation^[27] is being applied, which found that, while the Regulation significantly expanded and strengthened the fundamental rights monitoring and compliance framework at Frontex, the overall effectiveness of the framework is limited by gaps and lack of clarity within the Regulation, in particular as concerns national authorities responsible for border management.^[28] In the Commission’s view, this will need to be addressed via more effective implementation.

30. The Commission stated that it will continue to work closely with the Greek authorities, also in its advisory role within the Greek monitoring committee, to ensure the transparency of investigations and respect of fundamental rights with regards the implementation of EU funds in Greece in support of border management.

The Ombudsman's assessment

Assessment of Greece’s national programme

31. The EU legislation governing border management funding to Greece requires all funded activities and programmes to be compliant with fundamental rights and EU law.[29] In the context of other inquiries regarding EU funds, the Ombudsman has stated that, while the Commission itself does not have the possibility to directly monitor border management activities on the ground, it has the authority and an obligation to ensure that EU funds provided to a Member State are spent in compliance with fundamental rights and EU law.[30]

32. The Common Provisions Regulation sets out that assessing whether Member States fulfil the horizontal enabling conditions is an integral part of the Commission’s assessment of their national programmes ahead of their approval.[31] The Commission decision on the approval of national programmes includes the Commission’s position on whether they fulfil the enabling conditions.

33. Based on the Commission’s replies in the context of this inquiry, the Ombudsman understands that the fact that Greece has put in place a monitoring mechanism and committee (more details below) are central to the Commission’s conclusion that the Greek programme fulfils the Charter HEC. However, the Commission’s implementing decisions and related annexes, approving the national programmes, merely state in Article 3 that the ”horizontal enabling conditions are fulfilled”. Neither the original decision, nor its annexes nor the updated versions from 2023 or 2024 and their annexes, provide any reasoning as to how the Commission assessed that the programmes fulfilled the Charter HEC.

34. Compliance with the Charter HEC should be established on the basis of evidence and of a dedicated assessment by the Commission. In the course of the inquiry, the Commission provided the Ombudsman with the letters it sent to the Greek government, setting out its observations on Greece’s self-assessments of its compliance with the Charter HEC. However, the Commission did not provide its own assessment regarding the compliance of the Greek programme with the Charter HEC, when it approved the programme.

35. This lack of transparency is regrettable, and is something the Commission should seek to address when reassessing Greece’s compliance with the Charter HEC in the context of monitoring fundamental rights compliance during the programme implementation, as set out below.

Monitoring of fundamental rights compliance

36. There are a number of ways in which the Commission monitors the use of EU funds in Greece, notably through: (a) financial controls and audits under the Financial Regulation or the relevant regulations governing the funds; (b) its advisory role in the monitoring committee; and (c) its role in the Task Force on Migration Management.

37. In terms of financial controls, the Commission explained that it carries out its monitoring obligation by means of reporting requirements, desk reviews, and field visits and may carry out audits and on the spot checks. The Commission indicated that it was expecting Greece to submit its first “accumulation report” by 15 February 2025. The Ombudsman understands that this accumulation report relates to the ‘assurance package’ of financial reporting by Member States in receipt of EU funds. This will be an important step in determining the financial controls it will apply, and in assessing whether Greece continues to comply with the Charter HEC during the programme period.

38. However, although the financial controls can help verify compliance with the principles of sound financial management, it is not clear how effective these controls are in identifying and monitoring breaches of fundamental rights supported by the use of EU funds. These controls focus on verifying whether or not the programmes complied with the applicable rules, and that the accounts of programmes are complete, accurate and true.

39. Based on the inspection in this inquiry, for the period from 1 January 2020 to 31 December 2023, none of the 30 ‘on-the-spot visits’, audits or evaluation reports overseen by the Commission identified any breaches of fundamental rights in the use of EU funds.[32]

40. The Commission acknowledged that the purpose of its audits is not to investigate breaches of fundamental rights but to determine whether the system for management and control of EU funding at Member State level is robust. Where issues of potential breaches of fundamental rights arise, the Commission (in the case of shared management) brings these to the attention of the relevant national authorities and, in the first instance, those authorities carry out any investigation. The Commission stated that individual fundamental rights violations would not, in themselves, enable it to suspend or restrict funds unless a direct link to a specific EU expenditure is established, and then only following an initial investigation by the relevant national authority. However, in the course of the inquiry, it acknowledged that non-fulfilment of the Charter HEC could amount to a serious deficiency and/or an irregularity that it would lead it to interrupt or suspend a payment application and/or impose a financial correction.[33] This is supported by the wording of the Common Provisions Regulation in that failure to fulfil the Charter HEC could mean that the Commission will withdraw available unused funding and mean this is no longer available to the Member State (‘decommitment’).[34]

41. The Ombudsman is conscious of the limitations of the Commission’s financial controls in identifying fundamental rights breaches, as set out above. However, for the current programme period (2021-2027), these controls have been reinforced by the Common Provisions Regulation with the introduction of the Charter HEC, which prohibits the reimbursement of payments declared by a Member State unless it has in place a mechanism for the effective application and implementation of the Charter and for reporting issues of non-compliance or complaints regarding fundamental rights. The Regulation also reinforced both the monitoring role and monitoring obligation of the Commission, as the Commission is solely responsible for assessing whether or not the conditions are fulfilled for the entire programme period.

42. As noted above, the Commission approved the Greek programme and at that time considered that Greece’s monitoring mechanism and committee fulfilled the Charter HEC. Specifically, Greece has put in place a fundamental rights monitoring mechanism, which investigates and prosecutes misconduct by the relevant Greek authorities, including allegations of fundamental rights breaches, and must report to the monitoring committee. As the Ombudsman stated in the context of a previous inquiry regarding EU border management funds, such a monitoring mechanism should be independent and it should be effective in ensuring compliance with fundamental rights and EU law.[35] Within three months of approving Greece’s national programme for Greece, the Commission received a joint submission from civil society organisations raising multiple concerns as to the independence and impartiality of this monitoring mechanism.

43. Despite these concerns, the Commission seems to date not to have reassessed the mechanism. In the meantime, various credible concerns have been raised by international and EU human rights bodies,[36] and by the Greek Ombudsman, about fundamental rights violations. Most recently, in January 2025 the European Court of Human Rights found that there was a systematic practice of pushbacks of third-country nationals by the Greek authorities.[37] The Commission should take these concerns into account when reassessing whether Greece’s programme fulfils the Charter HEC, before any funds are disbursed.

44. Greece has also put in place a single committee for monitoring its programmes under three EU funding ‘instruments’, two of which fall within the scope of this inquiry. The creation of the monitoring committee in Greece is a positive development. While it is unclear why civil society organisations were not involved from the outset, it has since become possible for them to participate as members. However, there still seem to be limits on their participation. While four civil society organisations have voting rights when the committee discusses crosscutting issues, or matters related specifically to the Asylum Migration and Integration Fund, they do not have voting rights on matters specific to the ISF and the BMVI. As such they cannot propose matters to be included on the agenda of meetings specific to the ISF and BMVI, and they also cannot raise these issues during meetings without the consent of the committee.

45. The meaningful participation of civil society organisations in monitoring committees plays a crucial role in the monitoring process.[38] This is also in line with the Commission’s commitment to strengthen the application of the Charter, including empowering civil society organisations, rights defenders and justice practitioners.[39] The Commission should therefore urge Greece to facilitate the meaningful participation of such organisations as monitoring committee members with fully-fledged rights.

In addition, the committee relies on the effective and timely reporting of fundamental rights concerns by the monitoring mechanism. If the monitoring mechanism fails to act impartially, this will negatively impact on the effectiveness of the committee by depriving it of information necessary for it to carry out its own function.

47. The Task Force Migration Management plays an important role in providing the Commission with information about compliance with fundamental rights in the use of EU funds, notably through its staff permanently deployed on the ground in Greece. Similarly, as a member of the Frontex Management Board, the Commission will be aware of concerns related to fundamental rights compliance which may be linked to the use of EU funds in the area of border management. This information is invaluable and could be used to inform the Commission’s risk analysis when it considers the use of financial controls and audits. It could also be a source of information about the ongoing fulfilment by Greece of the Charter HEC during the term of the national programme.

48. It is imperative that those with actual first-hand knowledge of fundamental rights concerns linked to the use of EU funds are included in the process to inform the Commission’s actions and decisions, including on the exercise of financial controls, or any reassessment of whether Greece’s programme fulfils the Charter HEC.

49. The inspection in this inquiry showed that the Commission has established some internal guidance on how to conduct the assessment of the fulfilment of the Charter HEC, as well as a workflow indicating the relevant sections of the Commission responsible, the deadlines for their contributions and a checklist. However, based on the Ombudsman’s inquiry it appears that the Commission has not put in place formal procedures to assess compliance with the Charter HEC throughout the programme period or criteria to determine how it would establish a link between non-compliance with fundamental rights in a concrete case and the EU funds provided to the national authorities. The Ombudsman will address this with suggestions below.

50. While the Commission should ensure Greece’s compliance with the Charter HEC throughout the implementation of the national programme, it would appear that the timing of any reassessment is linked to the disbursement of funds, as funds cannot be disbursed unless the conditions are met. Thus any reassessment should be carried out, at the latest, when a payment request has been made by Greece to the Commission, but before any disbursement takes place. As such, this must now be addressed by the Commission as part of its assessment of what it described in the meeting with the Ombudsman inquiry team as Greece’s “accumulation report” (see para 37).

Transparency of the monitoring and reporting process

51. In order to ensure public scrutiny of and accountability for how Greece complies with its fundamental rights obligations in the context of EU-funded border management activities, there should be sufficient transparency of all relevant documents. While Greece’s programmes for both the ISF and the BMVI are publicly available, there is only scant detail of the mechanisms Greece has put in place to fulfil the Charter HEC, and this detail does not align with the explanations provided by the Commission during the meeting with the Ombudsman inquiry team.

52. Importantly, the minutes of the monitoring committee are available in a timely manner. However, the Ombudsman takes the view that the Commission should ensure the proactive publication of (i) the measures adopted by Greece to comply with the Charter HEC, if any, (ii) Greece’s self-assessment(s), (iii) the Commission's assessment(s), and (iv) information about the functioning of the monitoring mechanisms in place.[40] This increased transparency would contribute to ensuring public trust in the EU and its ability to protect fundamental rights. This is all the more important as the complainants claim that they have encountered difficulties in getting public access[41] to certain documents held by the Commission concerning Greece’s compliance with its fundamental rights obligations. As mentioned above, given the importance of facilitating public scrutiny of and accountability for how these funds are used, the Ombudsman encourages the Commission to anticipate access to document requests and to ensure the greatest amount of transparency by applying the exceptions to disclosure foreseen in the legislation[42] only in exceptional circumstances.

How the Commission deals with specific reports of fundamental rights violations in Greece

53. As noted above, where there are allegations of fundamental rights violations, the Commission’s practice is to await the outcomes of procedures and investigations at national level before making its own assessment. However, there is no legal obligation on the Commission to do so. The Commission is responsible for ensuring that Member States comply with EU law, including the Charter, and must also act to protect the EU budget.[43]

54. Under the Common Provisions Regulation, the Commission is responsible for proactively assessing whether a Member State fulfils the Charter HEC while the programme is ongoing, and not that it can only act if the Member State signals a potential violation. In so doing, it upholds its obligations to ensure compliance with the Charter HEC. Moreover, the internal guidance provided by the Commission to Member States on how to ensure compliance with the Charter HEC does not state that the Commission would assess compliance only based on the outcomes of national investigations. The guidance also does not indicate that the Commission would conduct its own assessment only if the Member State notified it of a potential violation. Consequently, where the Commission receives credible complaints about fundamental rights violations, either through the Greek monitoring committee or directly or through Task Force Migration Management or Frontex’s Management Board[44], it should treat these seriously. This implies assessing whether there is an identifiable link to EU-funded activities and whether there is prima facie indication of potential non-compliance with the funding rules. The Commission should also investigate whether such complaints raise concerns as to the non-fulfilment of the Charter HEC and should inform wider deliberations on whether the Member State in question complies with EU law. 

55. During the inquiry, the Ombudsman referred to two specific examples of reports that raised credible concerns of breaches of fundamental rights linked to the use of EU funds: a complaint referred by Frontex’s Fundamental Rights Officer (FRO) and an incident in June 2024, covered by international media.[45] In the case of the FRO complaint, the Commission provided the Greek authorities with a copy of the complaint, and invited them to examine the complaint and to inform the Commission of the outcome. The Commission was informed in June 2024 that, following a preliminary inspection by the managing authority in Greece, there was no evidence of fundamental rights violations linked to EU funds. Regarding the media reports, in August 2024 the Greek authorities replied following a request to confirm the action taken at national level. In both instances the Commission stated that it had to rely on the Greek authorities to investigate. During the meeting with the inquiry team, the Commission said that it was awaiting a final report from the Greek authorities and that if this identified violations of fundamental rights, it would conduct its own assessment of the FRO complaint.

56. In circumstances where the Commission seeks the views of the relevant national managing or audit authority in Greece, these should not be seen as determinative but rather as preparatory, intended to inform the Commission’s own assessment of compliance. Nor should they unduly delay or prevent the Commission’s assessment. Similarly, any outcome of investigations by the administrative or judicial authorities under the national monitoring mechanism, should also inform the Commission’s own assessment and not replace it. Whereas Greece’s national monitoring mechanism seeks to investigate and address breaches of national law, the Commission should assess potential breaches of the Charter HEC, fundamental rights standards and EU law more generally.  

57. In the context of another inquiry concerning shared management of EU funds[46], the Ombudsman stated that the Commission should do everything in its power to ensure respect for fundamental rights when EU funds are spent. The fact that the Commission is not directly responsible for managing the funds should never be used as a reason for not acting if fundamental rights have been or risk being violated in the context of the use of those funds. The Commission also has the possibility to initiate infringement proceedings where a Member State is in persistent and systemic breach of its obligations under EU and/or international law, including the Charter. In this context the Commission is also not dependent on any assessment by any national authority of that Member State.

58. Against this background, the Ombudsman takes the view that the Commission should carry out its own assessment whether these reports indicate a breach of the conditions attached to the funding programmes. In conducting this assessment, the Commission should use the tools available to it under the funding regulations and the Common Provisions Regulation such as desk reviews and on-the spot checks. Based on that independent assessment by the Commission, if there are legitimate concerns about fundamental rights violations linked to EU funds, it should consider the options available for addressing the non-compliance and take appropriate action. The Ombudsman will address this in her suggestions below.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

The inquiry identified areas that the Commission should address to improve how it monitors and ensures compliance with fundamental rights in the context of border management funds provided to Greece. These are addressed in the related suggestions for improvement.

Given that the Commission is currently awaiting a final report from the Greek authorities  in one of the individual cases of alleged fundamental rights violations raised in this inquiry, and will also now assess Greece’s spending under the relevant programme, the Ombudsman considers that no further inquiries are justified at this stage.

The complainants and the Commission will be informed of this decision.

Suggestions for improvement

The Commission should:

1. Put in place guidelines for assessing compliance with fundamental rights, notably the horizontal enabling condition relating to the Charter of Fundamental Rights (the Charter HEC), throughout the course of the programming period. The guidelines should include the need to take into account independent sources of information in the Commission’s assessments. As part of these guidelines, the Commission should establish criteria to determine under what circumstances it will withhold or suspend EU funds for non-compliance with fundamental rights and/or the Charter HEC, and publish these criteria.

2. Consider whether the Charter HEC continues to be fulfilled, in light of the credible complaints it has received about potential fundamental rights issues, including the two cases of alleged non-compliance with fundamental rights raised in this inquiry.

3. Enhance the transparency of the measures taken by Greece to fulfil the Charter HEC, the Commission’s own assessment(s) of fulfilment of the Charter HEC and the reporting of complaints about and non-compliance with the Charter HEC by proactively publishing all relevant information.

4. Urge Greece to facilitate the meaningful participation of civil society organisations as members of the monitoring committee with full rights.

Emily O'Reilly
European Ombudsman

Strasbourg, 21/02/2025

 

[1] More information on the different modalities for managing EU funds can be found at: https://commission.europa.eu/funding-tenders/find-funding/funding-management-mode_en and https://home-affairs.ec.europa.eu/funding/borders-and-visa-funds/integrated-border-management-fund-border-management-and-visa-instrument-2021-27_en.

[2] Regulation (EU) No 514/2014 of the European Parliament and of the Council of 16 April 2014 laying down general provisions on the Asylum, Migration and Integration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32014R0514

Article 4 of Regulation 2021/1148 establishing the Instrument for Financial Support for Border Management and Visa Policy https://eur-lex.europa.eu/eli/reg/2021/1148/oj/eng

[3] Regulation 2021/1060 of 24 June 2021 laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime, Fisheries and Aquaculture Fund and financial rules for those and for the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial Support for Border Management and Visa Policy: https://eur-lex.europa.eu/eli/reg/2021/1060/oj

[4] Article 9(1) of Regulation 2021/1060.

[5] Article 15 of Regulation 2021/1060.

[6] Article 2(2) of Regulation 2021/1060.

[7] ibid.

[8] The United Nations Office of the High Commissioner for Human Rights defines pushbacks as: ”various measures taken by States which result in migrants, including asylum-seekers, being summarily forced back to the country from where they attempted to cross or have crossed an international border without access to international protection or asylum procedures or denied of any individual assessment on their protection needs which may lead to a violation of the principle of non-refoulement.”

[9] See, amongst many others:

https://rm.coe.int/letter-addressed-to-the-prime-minister-of-greece-by-dunja-mijatovic-co/1680ac03ce

https://rm.coe.int/pushed-beyond-the-limits-urgent-action-needed-to-end-human-rights-viol/1680a5a14d

https://rm.coe.int/1680b0e4e1

[10] de:border//migration justice collective, Legal Centre Lesvos, Equal Rights Beyond Borders, HIAS Greece, and Mobile Info Team, alongside several investigative partners.

[11] https://www.ombudsman.europa.eu/en/doc/correspondence/en/187208

[12] https://www.ombudsman.europa.eu/en/opening-summary/en/177468

[13] https://www.ombudsman.europa.eu/en/doc/inspection-report/en/195172

[14] Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status.

[15] The role of the committee is to identify and effectively address concerns that EU funds have been used in breach of fundamental rights. It involves national authorities, civil society actors and the Commission, which has an advisory role.

[16] The complainants referred to: an expert report submitted in a case before the European Court of Human Rights (A.E. v. Greece, App. no. 15783/21: https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-214647%22]}) ; a European Parliament resolution of 7 February 2024: https://www.europarl.europa.eu/doceo/document/TA-9-2024-0069_EN.html; a report by the UN Special Rapporteur on the situation of human rights defenders ‘Preliminary observations and recommendations’, 22 June 2022 https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.ohchr.org%2Fsites%2Fdefault%2Ffiles%2F2022-06%2FEOM-Statement-Greece-SR-Defenders.docx&wdOrigin=BROWSELINK; contributions by Greek civil society and the Greek Ombudsman cited in the Commission’s 2024 Annual Rule of Law Report on Greece https://commission.europa.eu/document/download/6741f4b2-6a10-44ba-b40c-97a5a38e6827_en?filename=21_1_58062_coun_chap_greece_en.pdf;, pp. 27-28; and a report by the EU Agency for Fundamental Rights, Guidance on investigating alleged ill-treatment at borders, see Section 4.2 https://fra.europa.eu/en/publication/2024/guidance-investigating-alleged-ill-treatment-borders.

[17] Articles 17 and 317 of the Treaty on the Functioning of the European Union (TFEU), Article 33 of Regulation 2018/1046 (Financial Regulation), Articles 9, 15, 96 and 97 of Regulation 2021/1060 (Common Provisions Reguation), Articles 3-5 of Regulation 2020/2092 (General Regime of Conditionality), Articles 3(4), 10(2), 10(3) of Regulation 515/2014 (ISF Regulation).

[18] Article 15 and Annex III of the Common Provisions Regulation.

[19] Article 15(6): “Where the Commission considers that an enabling condition is no longer fulfilled, it shall inform the Member State setting out its assessment. Subsequently, the procedure set out in the second and third subparagraphs of paragraph 4 shall be followed. Where the Commission concludes that the non-fulfilment of the enabling condition persists and without prejudice to Article 105, based on the observations of the Member State, expenditure related to the specific objective concerned may be included in payment applications but shall not be reimbursed by the Commission until the Commission has informed the Member State of the fulfilment of the enabling condition pursuant to the first subparagraph of paragraph 4 of this Article.”

[20] Member States have the responsibility to establish monitoring committees to monitor the implementation of national programmes in relation to Home Affairs Funds. For the period 2014-2020, see Article 12 of Regulation (EU) No 514/2014. For the period 2021-2027, see Articles 38, 39, 40 of the Common Provisions Regulation.

[21] https://home-affairs.ec.europa.eu/system/files/2020-12/03122020_memorandum_of_understanding_en.pdf

[22] https://home-affairs.ec.europa.eu/policies/migration-and-asylum/migration-management/task-force-migration-management_en

[23] According to the Commission, the Greek Fundamental Rights Office had received 29 complaints and the National Transparency Authority had examined 194 complaints concerning incidents in migration management. Since 2020, the Greek judicial authorities have opened 77 investigations regarding alleged fundamental rights violations in the context of border operations. The outcome of these investigations will be provided to the Greek prosecutorial authorities, which are bound by strict confidentiality requirements. Consequently, the Commission will not be aware of the substance of these cases until any proceedings are concluded. The Commission also monitors compliance with fundamental rights, including having in place timely and effective investigations, through the ‘Rule of Law Reports’.

[24] In November 2021, the Commission notified the Ministry of Migration and Asylum of concerns related to pushbacks.

[25] The complaint was submitted under Article 69(7) of the Common Provisions Regulation, according to which stakeholders can submit complaints about the alleged illegal use of EU funds covered by the Regulation. The complaint alleges significant fundamental rights violations and shortcomings in the national procedures for investigating fundamental rights breaches in the use of EU funds.

[26] https://www.bbc.com/news/articles/c0vv717yvpeo

[27] Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019R1896

[28] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52024DC0075

[29] Regulation (EU) No 514/2014, Preamble, recital 2; Regulation 2021/1148, Article 4; Regulation (EU) 2021/1060, Preamble, recitals 6 and 95, Articles 9, 73, Annex III

[30] https://www.ombudsman.europa.eu/en/decision/en/152811

[31] Article 23(1) of Regulation 2021/1060 

[32]  https://www.ombudsman.europa.eu/en/doc/inspection-report/en/195172

[33] Articles 96, 97 and 103 of Regulation 2021/1060

[34] Ibid Chapter IV

[35] https://www.ombudsman.europa.eu/en/decision/en/152811

The EU Agency for Fundamental Rights has also called for such monitoring mechanisms to be independent:

https://fra.europa.eu/en/publication/2023/eu-funds

[36] In November 2024, this was raised by the UN Human Rights Committee, see in particular paras. 20-21:

https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhskVPFlQ4IoSDu8fUhvjkp803voJpeNnAq2tdDU5DKW4pUxIYB45fsyJxMkSBgSLySwF8uXoQPd2wL6z2F%2BslBu3AthBTIiFvNBayyY8OIHFp

[37] A.R.E. v. Greece, Judgment of 7 January 2025 in Case No. 15783/21

 https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-238636%22]}

[38] See also https://www.ombudsman.europa.eu/en/decision/en/155353 (para. 36)

[39] https://commission.europa.eu/aid-development-cooperation-fundamental-rights/your-rights-eu/eu-charter-fundamental-rights/application-charter/eu-strategy-strengthen-application-charter_en

[40] Regarding the level of information that is made available directly by the National Transparency Authority concerning the handling of petitions, complaints and publications related to migration, its most recent annual report from 2023 (Greek version) referred to having investigated and evaluated 194 reports and publications but provided no other details or statistics as to the nature of the complaints, against whom were they made, the outcome of its assessment. It is noteworthy that no details of these activities are provided in the summary English version of the same report.

[41] In accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32001R1049

[42] Article 4 of Regulation 1049/2001

[43] Article 17 of the Treaty on the European Union, Articles 317 and 258 of the Treaty on the Functioning of the European Union, Articles 33, 63, 135, 136, 138 and 142, of Regulation 2018/1046 (Financial Regulation), Articles 2(32) and (33), 9(1), 15, 35, 83, 96, 97 and 104,and Annex III, Article 3(5) of Regulation 1060/2021 (Common Provisions Regulation), Articles 3(5) of Regulation 513/2014 (ISF), Articles 4, 21, 31, 42, 55, 57 of Regulation 514/2014 (Horizontal Regulation), Article 4 of Regulation 2021/1148 (BMVI Regulation) and the Charter of Fundamental Rights of the EU.

[44] In accordance with Article 69(7) of Regulation 2021/1060.

[45] See paras 27 and 28 above.

[46] https://www.ombudsman.europa.eu/en/decision/en/59836