ABSTRACT – This contribution examines the judgment WS and Others v Frontex (Case C-679/23 P) concerning the non-contractual liability of the European Union under Articles 268 and 340(2) TFEU, with particular regard to the possibility of establishing concurrent liability between Frontex and the Member States in the context of joint return operations. The analysis focuses, on the one hand, on the Court of Justice’s reconstruction of the obligations incumbent on Frontex and the legal framework within which concurrent liability may be identified; on the other hand, on the application of the conditions for non-contractual liability, with specific reference to unlawful conduct and causation. The judgment shows that the possibility of establishing concurrent liability between Frontex and the Member States does not preclude the requirement that the conditions for non-contractual liability be independently satisfied by the Agency, while such assessment must nevertheless be contextualised within an activity carried out in cooperation with the Member States.
