RFC Seraing v FIFA: Compulsory Arbitration, Judicial Review, and a move to Dublin?

 

Saksham Agrawal, student at National Law School of India University, Bangalore

Photo credit: Court of Arbitration for Sport in Lausanne, by Fanny Schertzer via Wikimedia Commons

 

Introduction

In its Grand Chamber judgment in RFC Seraing v. FIFA (‘RFC Seraing’), the Court of Justice of the European Union (‘CJEU’) entered terrain historically defined by institutional restraint: the internal regulation of international sport. Yet the Court’s decision does not merely reinforce the primacy of Union law in a domain often cordoned off by arbitral exceptionalism; it articulates a principle of constitutional embeddedness for systems of private adjudication whose effects extend to protected market rights. The ruling demands that arbitration which is functionally mandatory and materially public, such as proceedings before the Court of Arbitration for Sport (‘CAS’), must remain permeable to fundamental guarantees embedded in the EU Treaties. Those guarantees include effective judicial protection, access to national courts, and interim relief (paras. 85–87, 91, 96).

The facts themselves are unremarkable. FC Seraing, a Belgian football club, entered into an economic rights agreement with Doyen Sports, a private investment firm. That arrangement ran afoul of FIFA’s regulatory framework prohibiting third-party ownership (‘TPO’), prompting sanctions which were subsequently upheld by the CAS (paras. 29-36). The applicants sought annulment of the CAS award before the Swiss Federal Supreme Court (‘SFSC’), which declined to intervene, and eventually was also disposed of by the Belgium Court of Appeal. (paras. 37-59). It was then brought in front of the Court of Cassation in Belgium, which then referred questions about the dispute to the CJEU. The CJEU found merit in their argument that the enforcement of the CAS award would contravene rights guaranteed under EU law, notably Articles 16 and 47 of the Charter of Fundamental Rights.

What distinguishes the CJEU’s reasoning is its resistance to false dichotomies. It does not require a renunciation of sports arbitration; nor does it retreat into deference. Instead, it recasts CAS not as an autonomous space insulated by Swiss procedural law, but as an adjudicative body whose awards must conform to EU public policy when they affect persons within the EU (paras. 89–91). While recourse to compulsory arbitration may serve the goal of uniform application, that goal cannot override the constitutional requirement of effective judicial protection (paras. 94-96). The CAS, situated outside the EU’s judicial architecture and lacking the capacity to make preliminary references under Article 267 TFEU, cannot serve as the terminus of legal review where EU rights are at stake (para. 125).

This analysis places RFC Seraing in jurisprudential continuity with the ECtHR’s judgments in Mutu and Pechstein v. Switzerland and the very recent Semenya v. Switzerland. In both cases, the ECtHR emphasised that the formal voluntariness of arbitration in elite sport masks coercive structural conditions. That posture is echoed in Seraing, where the CJEU held that the CAS mechanism, despite its formal appearance of consent, was effectively unilaterally imposed (paras. 92–93).

What emerges, then, is not a rejection of sports arbitration but a redefinition of its limits. The question is no longer whether private adjudication in sport is legitimate, but whether it can claim legitimacy while operating beyond the supervisory jurisdiction of courts charged with upholding fundamental rights. RFC Seraing affirms that it cannot.

This article situates RFC Seraing within the broader jurisprudence on arbitration and EU constitutional law, and argues that the decision marks a recalibration of the enforcement of arbitral awards within the EU when such awards affect rights guaranteed under EU law. It contends that the CJEU conditions recognition of CAS awards on their reviewability under Article 267 TFEU and conformity with EU public policy. While affirming the role of sports arbitration, the judgment rejects the insulated finality long conferred by Swiss-seated proceedings and invites institutional realignment within the EU framework.

The article proceeds by first analysing Seraing alongside Mutu and Pechstein and Semenya to examine its implications for arbitral finality under the CAS. Second, it considers a structural response capable of aligning the seat of CAS with the requirements of EU law set by the CJEU.

Unpacking RFC Seraing

At the centre of the RFC Seraing judgment lies a jurisprudential shift: arbitration may not derogate from the core guarantees of EU law merely because it arises from a private ordering framework or claims finality under foreign law. The CJEU’s reasoning is clear as it draws a precise boundary between legitimate regulatory autonomy and illegitimate adjudicatory insulation (paras. 85-99).

The Court holds that recourse to arbitration proceedings, such as those at issue in the main proceedings, does not, in principle, raise any objection (para. 94). However, where such arbitration proceedings have a mandatory nature, that objective of uniformity cannot justify undermining the requirement of effective judicial protection of the rights which individuals derive from EU law” (para. 95).

Even when parties have formally accepted arbitration as a condition for participating in regulated sport, they must retain access to judicial review before courts in a Member State. A national rule which confers the authority of res judicata, in the context of the recognition and enforcement of an arbitral award that has been made in another Member State or in a third country, on a decision which has not been subject to review by a court or tribunal of a Member State which is entitled to make a reference for a preliminary ruling under Article 267 TFEU, should be disapplied by the national court if that award is inconsistent with the principles and provisions which form part of EU public policy (para. 108).

This doctrinal position responds to a structural asymmetry in international sports governance. The CAS, as a private body domiciled in Switzerland and bound by the Swiss Private International Law Act, issues awards subject only to the narrow annulment criteria in Article 190(2). Among those, only subsection (e) ‘the award is incompatible with public policy’ provides a potential entry point for fundamental rights claims. However, the ECtHR has already held this threshold to be inadequate. In Semenya v. Switzerland, the ECtHR held that review by the Federal Supreme Court had not satisfied the requirement of particular rigour on account of its very restrictive interpretation of the notion of public policy. (Semenya, paras. 230–233).

Semenya further insisted on the requirement of a “particularly rigorous examination”, given the CAS’s mandatory and exclusive jurisdiction” (Semenya, paras 209, 216-217). In this context, the ECtHR acknowledged that the CAS was generally imposed on sportspersons by the governing body which exercised structural control over the international sports arbitration system (Semenya, para. 209). That coercive structure, combining formal consent with functional compulsion, directly mirrors the system scrutinised in RFC Seraing.

Earlier, in Mutu and Pechstein, the ECtHR found that one of the applicants was obliged to accept the arbitration agreement in order to be able to take part in competitions organised by the ISU (the International Skating Union) and to earn her living. She had not accepted this clause freely and in a non-equivocal manner (Mutu and Pechstein, paras. 113-115). Moreover, the Court drew attention to the institutional imbalance within the arbitral system. It noted that “the ICAS [the International Council of Arbitration for Sport] was itself entirely composed of individuals who had come from those sporting bodies, which indicated the existence of a certain link between ICAS and the organisations likely to challenge athletes in potential disputes, particularly those of a disciplinary nature” (Mutu and Pechstein, para. 154) – although on the facts this was not sufficient to find a breach of the ECHR (rather the breach was a failure to hold a public hearing).

However, it is precisely this pattern of private adjudication functionally required for participation, and structurally designed by those wielding regulatory power, that RFC Seraing targets. The CJEU offers a concrete alternative. It held that it must, in any event, remain possible for the individuals concerned by such awards to obtain a review, by a court or tribunal meeting all the requirements arising from Article 267 TFEU, as to whether such awards are consistent with the principles and provisions which form part of EU public policy (paras 99-115).That review can occur, the Court suggests, where the seat of arbitration lies within a Member State, thereby enabling national courts to exercise EU-compatible oversight (para. 125).

Finally, the Court reaffirms continuity with global arbitration law. It does not displace the New York Convention, but reinterprets it. The judgment held that although that Convention is not binding on the European Union, all the Member States and, moreover, Switzerland, are parties to it. It requires States to ensure that parties can seek review of such awards for compatibility with national public policy. For EU Member States, this includes ensuring compliance with EU public policy.

A Turning Point for CAS?

The RFC Seraing judgement essentially amounts to a doctrinal rejection of unreviewable arbitration within the EU legal space. Recognition and enforcement of CAS awards is no longer a matter of formality; it is contingent upon compatibility with the Union's judicial structure.

In proposing a functional remedy, the Court notes that arbitration procedures, such as those at issue in the main proceedings, may also be conducted in a Member State of the EU. In that case, the award made at the end of such procedures may be subject to review by a court or tribunal of that Member State which is entitled to make a reference for a preliminary ruling under Article 267 TFEU (para. 99).

This reference is not merely hypothetical. UEFA's Authorisation Rules already allow for the option of appeals to CAS panels to be seated in Dublin, Ireland. That option, long available but rarely exercised, may now become the only path to avoiding fragmentation in award enforcement across Member States. It is not thus unreasonable to suggest that there might be a shift to Dublin soon.

The practical issue, then, is if CAS continues to render awards from a non-Member State seat, such as Switzerland, any decision that implicates Charter rights or economic freedoms may trigger divergent enforcement proceedings before multiple national courts. That would mark the end of CAS as a terminal forum in cases with EU implications. The alternative, suggested by the Court, is for CAS to seat panels within a Member State of the EU, thereby allowing for judicial review within a Member State system (para. 99). In this institutional reconfiguration, CAS retains its role, but only conditionally and subject to oversight, integration, and reform.

One understanding of RFC Seraing is that it is an attempt to position the CJEU alongside the Swiss Federal Supreme Court as a potential final reviewer of CAS awards, at least within the EU. Like the ECtHR in Mutu Pechstein and Semenya, the CJEU affirms the functional necessity of compulsory sports arbitration but subjects it to enhanced judicial scrutiny, this time under the rubric of EU public policy.

The CAS, as presently structured, is institutionally indispensable yet legally unsustainable in its current form. It must reform procedurally and jurisdictionally to accommodate EU legal standards, or risk marginalisation within the European legal order.

Conclusion

The RFC Seraing judgment draws a precise constitutional limit around the recognition of arbitral awards within the EU legal order. It does not repudiate sports arbitration but affirms its continued utility while insisting that awards affecting rights guaranteed by EU law must be reviewable by courts entitled to make references under Article 267 TFEU.

The CJEU’s reference to the possibility of conducting arbitral proceedings within a Member State (para. 99) points to an institutional realignment rather than rupture. That pathway already exists in UEFA’s Authorisation Rules, which allow for appeals to CAS panels seated in Dublin, Ireland. Seated within the Union, such panels would fall under the supervisory jurisdiction of EU courts, thereby enabling compliance with the requirements of effective judicial protection outlined by the Court.

RFC Seraing thus preserves the adjudicative role of CAS but subjects it to constitutional constraints when operating within the European legal space. The outcome is not a rejection of arbitral autonomy, but its subordination to fundamental rights protections under Union law.

Holy Orders or Higher Law? Praying for a Karlsruhe intervention

 

Jonas Siebold

Photo credit: ReinhardHauke, via Wikimedia commons

A lot is at stake for the Protestant Church in Germany. In the pending “Egenberger” case (2 BvR 934/19) before the German Federal Constitutional Court (FCC) in Karlsruhe, nothing less than the church’s right to self-determination itself is at issue. “Egenberger? Karlsruhe?” Wait a minute. Attentive European Union lawyers will certainly be familiar with this case. But first things first.

I. The Case

In 2012, Vera Egenberger applied for a position at a Protestant organisation (the Evangelisches Hilfswerk für Diakonie und Entwicklung). The job description required a church membership, which Egenberger did not have. Ultimately, she was not invited for an interview, while the candidate who got the post was a Protestant Christian. Ironically enough, the position was for bout producing a report on the elimination of discrimination.

Assuming that her application had been rejected because she did not belong to any denomination, Egenberger claimed compensation under Section 15 (2) of the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). Nevertheless, Section 9 (1) of that Act allows for discrimination on religious grounds, if a religious requirement constitutes a justified occupational requirement, having regard to the self-perception of the religious society concerned, in view of its right of self-determination or because of the type of activity.

II. The Judgment

The German Federal Labour Court (Bundesarbeitsgericht), as court of last instance, referred several questions to the Court of Justice of the European Union (CJEU) as a preliminary reference. Questionable was the interpretation of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, which includes a requirement of equal treatment on grounds of religion (subject to exceptions).

In its judgment (Case C-414/16), the CJEU responded that religious communities invoking the necessity of religious affiliation for filling positions only align with Article 4 (2) of Directive 2000/78/EC (which sets out a specific ‘genuine occupational requirements’ ground of justification as regards religious discrimination) when there is an “objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned”. Whether this is the case is subject to effective review by national courts. The Federal Labour Court then carried out the interpretation required by EU law and concluded that religious affiliation was not necessary for the position to be filled.

III. The Complaint

With a constitutional complaint to Karlsruhe, the Protestant organisation now aims to ensure that the question of the necessity of religious affiliation for a church position may only be answered based on the church’s self-perception, without control by national courts. As the Federal Labour Court followed the CJEU’s preliminary ruling, its judgment is insofar determined by EU law. Although the constitutional complaint is directed against the Federal Labour Court’s final judgment, the complainant indirectly aims for more – a review of the CJEU’s judgment.

Is that even possible? In principle not, according to the primacy of EU law, established in the CJEU’s landmark decision Costa/E.N.E.L. from 1964. Six years later the CJEU explicitly clarified in Internationale Handelsgesellschaft that this even applies for national constitutional law. Furthermore, the CJEU is exclusively responsible for the interpretation and application of EU law, according to Article 19 TEU.

So why is the Protestant organisation now coming up with the apparently far-fetched idea of taking legal action before the FCC? Admittedly, one or two European Union lawyers and CJEU judges would certainly agree with this approach. However, Karlsruhe is less monotheistic than its Luxembourg colleagues when it comes to the principle of primacy of EU law. While it accepts the primacy of EU law, it does not accept it in the absolute terms set out by the CJEU.

IV. The National Court’s Control

Under admittedly strict requirements, Karlsruhe reserved for itself three reservations of control over the primacy of EU law. In exceptional cases it reviews whether the European Union level of fundamental rights protection generally shrinks to a level below that which essentially corresponds to the German (Solange II review). Furthermore, if EU institutions manifestly overstep their competences (ultra vires review) or pursuant to article 23 (1) 3 in conjunction with article 79 (3) of the Basic Law, the inviolable core of the national constitutional identity is affected (identity review).

Even if perhaps the dogmatic amount of reasoning seems unique, numerous Member States’ courts share the perspective of a merely relative primacy of EU law. Such an understanding is a test for the Union’s cohesion but bearable due to the utmost restraint in reviewing. For Germany, this is demanded and ensured by the Basic Law’s openness towards European Union Law.

V. The Argumentation

But let’s get back on track. Which review could be considered for our complainant? The level of European Union Fundamental Rights protection is arguably stronger than ever before, so realistically only the ultra vires or identity review seem possible.

The defendants claimed that the CJEU fails to respect the status of religious communities as guaranteed in Article 17 TFEU. This is arguably not correct, as primary law and the directive require a balance to be struck between the self-determination of religious communities, which is anchored in national law but also protected by EU law and protection against discrimination. But this is a question of the judgment’s compliance with EU law and not exceeding competences.

Then, is the church’s right to self-determination, as enshrined in article 140 of the Basic Law in conjunction with article 137 (2) of the German Constitution of 11 August 1919 (Weimar Constitution), part of the inviolable core of the national constitutional identity? In principle, this can be considered. But not in general for every individual case, particularly for less strictly ecclesiastical activities like in Egenberger. This would hardly align with Karlsruhe’s narrow understanding of the constitutional identity, including only the core of human dignity in fundamental rights and fundamental principles like democracy or the rule of law. Finally, it would unduly jeopardise the fundamental rights of job applicants and employees.

VI. Conclusion

Therefore, the odds for a Karlsruhe intervention seem small and due to the argumentation presented unconvincing. It would be surprising if, after the fiercely debated PSPP-judgment from May 2020, the FCC revolts against the CJEU again, in this case of all cases. But who knows, maybe the Protestants’ prayers will be heard in Karlsruhe.

A decision is scheduled for 2025.

One Step Forward, Three Steps Back? The Alace Judgment and the Future of the 'Safe Country of Origin' Practice

 

Karla Žeravčić, Researcher, EUI

Photo credit: governo.it, via Wikimedia Commons

Less than a year after the Tribunale ordinario di Roma (Ordinary Court of Rome) submitted a preliminary reference, and just four months after Advocate General (AG) De La Tour delivered his Opinion, the CJEU’s Grand Chamber handed down its judgment in Alace on 1 August 2025.

This is the third case from Luxembourg tackling the Safe Country of Origin (SCO) concept under EU law. It follows the CV judgment, in which the Court ruled out territorial exceptions from the principle under the 2013 Recast Asylum Procedures Directive (2013 APD). In Alace, the focus shifted to group exceptions, with the Court firmly stating that the 2013 APD precludes Member States (MSs) from designating a third country as “safe” if it does not satisfy the relevant safety conditions for certain categories of persons (para 109).

At first glance, this looks like a welcome confirmation of a restrictive reading of the SCO designation. The Court rejected the more politically pragmatic approach advocated by Advocate General (AG) De La Tour (para 72), who had argued for a broader margin of discretion for Member States in designating safe countries, including group-based exceptions (para 70). But what does this mean in the long run – particularly in the context of the 2024 Asylum Procedures Regulation (2024 APR), and recent Commission proposals to bring some of its provisions into force ahead of schedule?

A Quiet Court in a Noisy Debate

The Alace judgment concerns two Bangladeshi nationals who were intercepted at sea on their way to Europe by the Italian coastguard and detained in Gjadër, Albania, a reception centre outside Italy’s borders but under Italian jurisdiction per the Italy-Albania protocol.

After their applications for international protection were rejected on the basis that Bangladesh was considered an SCO, the applicants appealed. The Tribunale ordinario di Roma referred four preliminary questions to the CJEU:

1. Whether EU law precludes a Member State from designating a third country as an SCO by a legislative act of primary law;
2. Whether EU law requires the sources justifying the designation to be “accessible and verifiable”;
3. Whether national courts may rely on sources beyond those listed in Article 37 of the 2013 APD when reviewing a country’s “safety” designation;
4. Whether Member States may designate a third country as “safe” where the safety conditions are not met for specific groups.

This piece focuses on the fourth question.

When addressing it, the Court clearly stated that group exceptions are not permitted under the 2013 APD. Meaning that a country must be safe for the entirety of its inhabitants not just part of it (para 96). Its reasoning relied on existing case law, the legislative context, and the objective of the recast. While the Court did not directly refer to the 2009 legislative procedure, Article 33 of the Proposal for the 2013 APD made clear the intention to remove the possibility for both territorial and group exceptions.

Instead, the Court relied on a textual interpretation of the Directive. It highlighted the terms “country” and “third country” in Article 37, noting that these offer no indication that a designation could refer only to part of a population (para. 92). The Court even examined the wording across all official EU languages to explore how the terms “generally” and “uniformly” – which describe the required absence of persecution in Annex I – support this restrictive reading (paras 93–95).

Thus, the Grand Chamber confirmed the position taken in CV: the 2013 APD does not allow for group or territorial exceptions in SCO designations.

The Shadow of the New Pact: Legal Clarity with an Expiry Date?

AG De La Tour’s Opinion diverged significantly from the Court’s approach. He argued that inconsistencies between the language versions of the Directive allow for a more flexible interpretation, leaving space for Member States to apply group-based exceptions when determining whether a country is “safe” (paras 76-77).

While the Court declined to follow this line of interpretation, it has been clear for some time now that EU asylum and migration law has served as a tool of migration control at the expense of rights, and the CJEU has been noticeably reluctant to make waves (see Tsourdi and Costello). AG De La Tour’s Opinion makes this tension explicit – he calls on the Court to consider “the pressures that national asylum systems are currently under” and suggests a need to balance legal and non-legal considerations (para 72). Therefore, with the Alace judgment, countries like the Netherlands and Italy that possessed group exceptions within their SCO lists would need to re-adjust them.

The problem with treating Alace as progress is that it comes at a transitional moment. In 2026, the 2013 APD will be repealed and replaced by the 2024 Asylum Procedure Regulation (2024 APR), part of the New Pact on Migration and Asylum. Crucially, the 2024 APR explicitly reintroduces both territorial and group exceptions for SCO designation – effectively reversing the approach confirmed in CV and Alace.

Both referring courts in Alace and (the pending case of) Oguta made reference to the forthcoming APR, seemingly inviting the CJEU to weigh in on its provisions. But the Court has so far refrained from doing so, merely stating that the legislator had the ‘prerogative’ to ‘reconsider that choice, by striking a fresh balance’ (Alace (para 106) and CV (para 82)).

With the Commission now proposing to accelerate the implementation of parts of the APR, amongst others, the designation of SCO with exceptions,  into force before the planned date of June 2026, the practical value of the Alace judgment may already be fading.

The Future of the SCO Practice

Neither the 2005 APD nor the 2013 APD truly operated in favour of people on the move. Despite the exclusion of territorial and group exceptions in the 2013 recast, these practices have persisted. Moreover, the material conditions for designating a country as “safe” have never been immune to political considerations. Although SCO lists are, in theory, subject to review by the Commission and judicial authorities, such safeguards offer little assurance that no one will fall through the cracks of the system.

AG De La Tour in his Alace Opinion, reaffirmed that Member States must identify at-risk categories when assessing a third country’s general situation, in order to explicitly exclude them from the application of the SCO concept and its associated presumption of safety. However, as the 2005 APD already acknowledged, the very act of labelling a country “safe” is politically significant (para 19). There is no guarantee that governments will identify all at-risk groups nor refrain from designating a country as “safe” where political motivations, such as enlargement or migration control priorities, may dictate otherwise.

Problems with the SCO practices become even further highlighted in the 2024 APR, which reintroduces both territorial and group exceptions but without clearly defining or limiting their scope. This raises a critical question: can Member States designate as many categories of people as they wish while still maintaining the fiction of general safety? AG De La Tour cautioned that too many exceptions may render the safety designation meaningless: if a country is unsafe for many, can it be presumed safe at all?

This line of reasoning lies at the heart of the pending Oguta case, in which the Tribunale di Firenze (Ordinary Court of Florence) asked whether the Italian government’s identification of ten categories of vulnerable individuals undermines the designation of Nigeria as a safe country of origin. Under the Alace judgment, the issue in Oguta arguably becomes moot for the purposes of the 2013 APD, which (as interpreted by the CJEU) does not permit group exceptions. Yet, if the Court issues its decision after the 2024 APR enters into force – or even if it does not issue a decision in this particular case – the question will remain relevant, as the APR allows for such exceptions. Should the Court follow AG De La Tour’s reasoning (para 91), it may conclude that Nigeria’s designation cannot stand. Nonetheless, the APR’s vague treatment of exceptions leaves ample room for extensive lists to persist.

Going back to the CV case, AG Emiliou, in his Opinion, noted that both territorial and group exceptions are legally complex and insufficiently defined. He focused particularly on territorial exceptions, raising the question of how to delineate which parts of a country are “safe enough” and which are not (paras 101 and 109). But similar challenges arise with group exceptions, especially when they concern marginalised communities such as ethnic, racial, or sexual minorities. For instance, queer asylum seekers are routinely subjected to credibility assessments that require them to “prove” their queerness. As noted in the Oguta reference (para 9c), if national authorities already struggle to determine group membership under ordinary procedures, how can such assessments be conducted fairly and accurately under accelerated ones?

These legal ambiguities are not merely technical; they expose people on the move to arbitrary, rushed, and potentially life-threatening decisions. The continued reliance on the SCO concept, especially as reformulated in the 2024 APR, entrenches a system that privileges administrative convenience and political expediency over genuine protection needs.

Conclusion

In light of what is to come with the 2024 APR, Alace is not progress but a temporary pause. While the Court has reaffirmed a narrow reading of the 2013 APD, this version of EU asylum law will soon be obsolete – and with it, the legal clarity Alace provides. Yet returning to the 2013 framework is no solution either. Both the Directive and the forthcoming Regulation rest on the flawed logic of the Safe Country of Origin concept itself. If protection is to be meaningful, and procedures truly fair, the time has come not to refine the SCO practice – but to abolish it altogether.

 

Alace and Canpelli: the Court of Justice firmly constrains domestic extraterritorial asylum processing politics

 

 

Chiara Favilli (University of Florence) and Luisa Marin (University of Insubria/ EUI)

Photo credit: Presidenza della Republica, via Wikimedia Commons

 

1.     Introduction: a long-awaited judgement full of implications for the EU asylum system

 

On the 1^st of August 2025, the long-awaited Alace and Canpelli judgment was released, providing interpretation to the ‘safe country of origin’ notion, a crucial legal notion in EU asylum law and politics.

With the case at hand, together with the previous ruling on CV, the Court of Justice of the European Union (CJEU) has given a landmark judgment in the context of the Common European Asylum System (CEAS). Furthermore, it placed clear boundaries on the implementation of the instruments of the Pact of Migration and Asylum, most notably on the Procedures Regulation No. 2024/1348, replacing the 2013 Procedures Directive, and due to enter into force in June 2026.

In another perspective, with a decision in full continuity with its case law, the CJEU halts the ambitions of the Italian Government in the politics of extraterritorial asylum processing, a domain in which Prime Minister Giorgia Meloni has politically invested (here). At the same time, the success of this policy has been viewed as a cornerstone of the overall package of ten legal acts translating the Pact on Asylum and Migration. This policy embeds the idea of 'protection elsewhere’ and rests on the principle of safe country; it presupposes that asylum applications can be handled with a special procedure, while protection-seekers are held in detention in border areas. The Italian Government has built a couple of detention centres in Albania. Earlier on, also UK has made similar moves with Rwanda.

The salience of this case is witnessed by the fact that 16 governments have been granted intervention, 15 of which in support of the Italian Government, with the exception of Germany. Interestingly, it should be stressed that the Commission sidelined most Member States, changing its position during the unfolding of the written and oral proceedings before the CJ. Moreover, other 60 preliminary rulings raised by Italian judges were pending before the CJEU, involving similar issues: they will likely now be dismissed.  

For Italy, this case has an additional and peculiar salience since the extraterritorial asylum processing policy has represented a political investment of the current Government, and the legislation has undergone several changes since 2018. These reforms gave rise to a number of significant issues that were the subject of many judicial challenges. Italian judges called upon to validate detention orders or rule on appeals against applications declared manifestly unfounded decided that there was a conflict with European Union law and in several cases they have set aside domestic law.

This reaction has pushed the Government to reignite a long-standing friction between (fractions of) the Italian political spectrum and the judiciary. 

This comment is devoted especially to the European Union law dimension of this case, with a special focus on its constitutional relevance. 

 

2.     The concept of ‘safe country of origin’ in Italy, its criticalities and its relevance in current asylum politics

The concept of ‘safe country of origin’ – which sets out a rebuttable presumption that the country of origin of asylum-seekers is ‘safe’, justifying fast-track processing of the asylum claim – was introduced into EU law through the first Procedures Directive (Directive 2005/85/EC). This was confirmed with some amendments in the second Procedures Directive (2013/32/EU), still in force until replaced by Regulation 2024/1348, which will apply from June 2026 (see here). According to both Directives, the introduction of this concept into national law was an option for Member States. Italy, for example, only introduced it in 2018, as previous governments deemed it incompatible with the constitutional right to asylum (Article 10, para. 3, It. Constitution). Lately, in 2024, however, Italy adopted one of the longest lists of safe countries of all the Member States (see here).

Furthermore, no genuine system for applying the ‘safe country of origin’ concept in Italy has ever been established. Responsibility for designation was delegated to the Government through an interministerial decree, without no transparency regarding the analysis of sources or of documentation used and without the involvement of independent subjects. Following formal requests by civil society organisations, this documentation was disclosed, revealing an extensive use of exceptions based on parts of a country’s territory and categories of persons, which were expressly allowed under Article 2-bis of Legislative Decree No. 25/2008. These many critical issues quickly came to light in the form of lively litigation before the Italian courts, especially during the validation of detention or in appeals in the context of an accelerated procedure (see here).

Several judges noted that the Italian provisions infringed upon the technical requirements for designating ‘safe countries of origin’ set out in Article 37 and Annex I of the 2013 Procedures Directive. When faced with such conflicts, Italian judges invoked the tools available to them when a national provision is incompatible with an obligation arising from EU law: immediate protection through disapplication of the domestic law in contrast with EU law and a request for interpretation of the EU act through a preliminary reference to the Court of Justice. A preliminary reference was also submitted to the Italian Court of Cassation pursuant to Article 363 of the Code of Civil Procedure, including questions on the interpretation of the EU directive (see here).

In each case, the Government strongly criticised the rulings. Initially, it invoked the theory of 'political act’, later contesting the scope of judicial review, the jurisdiction of the courts to conduct it and the admissibility of the legal remedies being used (see here). Criticism was directed at the widespread judicial review exercised by ordinary judges with reference to the designation of countries as safe, referred to as a prerogative of the Government. The Government also argued that, in this case, only the intervention of a supreme court could have found a conflict with EU law and that referral to the Constitutional Court would have been preferable to the referral to the Court of Justice. In any event, the Government opposed the widespread review by the ordinary judge, notwithstanding this is expression of a consolidated EU law principle, established since the Simmenthal ruling: in case of conflict with EU law, a domestic law provision must be set aside.

It should also be noted that, in Italy, NGOs do not have standing to directly challenge the designation of ‘safe countries of origin’ in front of courts: this specificity makes diffuse judicial review constitutionally necessary (see, again, here). Furthermore, even in countries, such as France, where broad standing is recognised, a court hearing an individual case concerning measures adopted under the accelerated or border procedure may still exercise judicial review on the designation (see here). 

These strong criticisms and attacks on the judiciary resurfaced with the initial implementation of the Italy-Albania Protocol, which creates a policy of extraterritorial asylum processing. The two detention centres created in Albania, which are under Italian jurisdiction, are considered equivalent to transit zones on the Italian territory. Border procedure applies there, and they entail the detention of asylum seekers from supposedly ‘safe’ countries of origin. The concept of ‘safe country of origin’ thus becomes the legal basis for the entire procedure and for the detention of asylum seekers, which is mandatory in Albania.

When the first judicial challenges against the detention of transferred individuals were submitted, the Rome Tribunal observed that the asylum seekers were from Egypt — a country that had been designated as a ‘safe country of origin’, except for political opponents, dissidents, activists, human rights defenders and others who might be subject to persecution. The national court applied by analogy the legal principles expressed by the Court of Justice in the CV judgment of 4 October 2024, which ruled out territorial exceptions for ‘safe countries of origin’. So, in the national court’s judgment, that principle was extended also to rule out designations of ‘safe countries of origin’ that exclude specific groups of persons (see below, para. 3.3). Consequently, the national court set aside the national provisions and refused to validate the detentions of individuals transferred to Albania, who were brought back to Italy.

As a reaction to this judicial ruling, de facto freezing the effectiveness of the Italy-Albania Protocol, the government adopted two legal acts: Decree-Law No. 158/2024 and, subsequently, Law No. 187/2024. These established that ‘safe country of origin’ designations would no longer be made by ministerial decree, as in the previous system, but through acts with the force of law. The aim was probably to restrict the extent to which judicial review could be carried out and, consequently, disapplication (see here). Furthermore, the possibility of designating a country as safe while introducing territorial exceptions was repealed, in compliance with the CV ruling. However, the admissibility of group exceptions was retained. This was based on the fact that the Court of Justice had not explicitly ruled on the latter in the CV judgment. In contrast with the interpretation given by the judiciary, the Government also thought that such exceptions were compatible with Directive 2013/32/EU.

As expected, this last aspect became central in the second round of Protocol implementation. At this stage, the Rome Tribunal, instead of disapplying, referred a preliminary question to the Court of Justice regarding four questions, including the compatibility of group exceptions with Directive 2013/32/EU. Other courts followed the same path, also submitting preliminary references to the Court in Luxembourg. Along with other pending referrals raised by various Italian courts, this brought the total number of referrals to around sixty, all of which concerned the same legal issues. The Court of Justice decided to examine the Rome referral under the accelerated procedure and suspended the others, which may now be quickly closed.

Meanwhile, other Italian judges continued to argue that the most technically appropriate remedy was the disapplication of national rules deemed contrary to Directive 2013/32/EU, particularly given the clarity of the CV judgment of 4 October 2024 (see here). In addition, the Court of Cassation also issued in December 2024 two rulings reaffirming the need for judicial review of ‘safe country of origin’ designations following the CV judgment. Given the pending preliminary rulings raised in the Alace and Canpelli cases, the Court of Cassation adopted an interlocutory order while awaiting the judgment of the Court of Justice. However, the Supreme Court argued that it should establish a dialogue with the latter and thus expressed its position, in particular on the requirement for individual allegations and the admissibility of exclusions of categories of persons. Curiously, the Court wanted to establish a dialogue without using the tool that such dialogue allows, namely the preliminary ruling. In fact, the ruling of the Court of Cassation was submitted during the proceedings by the Italian Government, which clearly considered it to be in support of its own positions. The Supreme court held, indeed, in somewhat ambiguous terms, and contrary to CV, that asylum seekers must provide specific factual allegations to enable the judge to challenge the legality of a country's designation as safe. Furthermore, it found that group exceptions are admissible, and this opened up new questions for the courts called to interpret European Union and domestic rules. 

The positions taken by the Italian Government and the Court of Cassation after the CV judgment have made the Italian legal context very ambiguous and uncertain. In this context, another ruling of the Court of Justice was all the more necessary, and the judges of the Rome Tribunal were right to refer the two preliminary questions instead of disapplying as they had done right after the CV judgment. 

 

3. The judgment: a total win for the multilevel system of protection of fundamental rights

 

The request for a preliminary ruling in the cases at stake has been made in proceedings brought by two Bangladeshi citizens transferred and detained in Albania on the assumption that they were asylum seekers from a safe country of origin. In accordance with Decree Law No. 158/2024, the People's Republic of Bangladesh is considered a ‘safe country of origin’ even if the 3 May 2024 country profile indicates that “cases of actual need for international protection mainly concern members of the LGBTQI+ community, victims of gender-based violence (including female genital mutilation), ethnic and religious minorities, individuals accused of political crimes, and sentenced to death”. 

As a preliminary remark, we must state that this case represents a total win for EU law as a legal system based on the rule of law and fundamental rights, especially defined as right to an effective remedy in the context of asylum applications. The Court takes a new chance to recall that EU fundamental rights can have direct effect and entail rights to be invoked before courts.

Several aspects of the judgment will be commented on, with no ambition of exhaustivity.

A first aspect to be stressed concerns the respect for the choice of the Government to intervene with a legislative act and the notion of domestic procedural autonomy; second, on the scope of the judicial review and its intertwinement with the fundamental right to an effective remedy, Article 47 of the Charter of Fundamental Rights; third, on one of the corollaries of the right to an effective remedy, i.e., access to information; fourth, on the relation between ordinary asylum procedures, and exceptions to the rule, i.e., border and accelerated procedures, with particular reference to the so-called exclusion for groups of persons. 

 

3.1. Domestic governments, the primacy of EU law and its corollaries: nothing new under the sun 

 

In its preliminary observations (paras. 44-53), the Court of Justice addresses important issues concerning the relation between ordinary asylum procedures and special regimes, for which the definition of ‘safe country of origin’ is crucial; in this context, it reframes the questions asked by the referring court, dismissing the question on the interpretation of Article 38 of the Procedures Directive, because that Article concerns the different issue of ‘safe third country’, not the ‘safe country of origin’ issue central to this case. 

The first aspect on which this comment is devoted concerns Member States’ scope of legislative intervention, against the background of the boundaries put by EU law and its interpretation, as given by the Court of Justice.

 With its first question, the referring judge asked the Court whether the Governmental designation of the list of ‘safe countries of origin’ with a legislative act was in compliance with EU law. Interpreting Articles 36 and 37 of the Procedures Directive, the Court does not find any obstacles in the designation of these countries with a legislative instrument, in full conformity with the principle of procedural autonomy of EU law. In contrast, the Court finds that the provisions of the Directive place ‘technical requirements’, i.e., substantive boundaries as to the procedures and requirements that domestic authorities must respect, however leaving full discretion to the Member States as to the authority entitled to proceed to such designation.

The procedural autonomy of the Member States, in a context of supranational integration such as the EU, finds a first boundary in the duty incumbent upon them to adopt every measure to grant full effectiveness to the Directive, as interpreted in the ruling in Von Colson: this represents the first milestone of the CJEU’s doctrine of consistent interpretation or indirect effect, which is based, it should be recalled, on the principle of loyal cooperation, i.e., the Bundestreue of EU law.

The principle of full effectiveness of EU law gave the Court the ground to come back to one of the milestones of its primacy doctrine, the duty to set aside domestic law which does not conform with EU law; as known, any intervention of the States, be it legislative or not, posterior to EU law or not, must conform with EU law (para. 63). Lacking this, domestic law must be set aside, as consistently interpreted by the CJEU from the 1978 Simmenthal case onwards.

This corollary, which is nothing but consolidated EU law, represents a first warning signal to the Governments, i.e., that (the) substance (of EU law) prevails over form, and that domestic legislative acts are not sheltered away from scrutiny. In plain EU law terms, this is nothing new under the sun.

For every Member State of the EU, this means that the CJEU grants the uniform interpretation of EU law, indirectly reviewing the compliance of domestic law with EU law. In this case, EU law grants fundamental rights to individuals, in particular the right to an effective remedy as provided for in Article 47 of the Charter and Article 46 of the Procedures Directive.

This means that the State is constrained in the exercise of its discretion by EU law, and this applies to Parliament and Government as well. To the eyes of the EU law scholar, the CJ does nothing but drawing the logical lines from the case CV (C-406/22) which originated the referrals of the Italian courts, against the background of the 2013 Procedures Directive that does not allow personal or territorial exceptions. The CV ruling marks the precedent that the CJ is respecting: this is taken to the consequence that the substantive and procedural requirements set by Articles 36 and 37 and the right to an effective remedy, as implemented in Article 46, section 3, read juncto with Article 47 of the Charter, certainly allows the Government to set its list of safe country of origin, leaving however intact the right to a full judicial scrutiny on whether such designation respects EU law.  

The consequence is set (in paragraph 67) and it represents a development of the consolidated case law of the CJ in this matter. This triggered the nervousness of the Italian Government; however, by recalling that the domestic judge must be able to scrutinise the Italian instrument providing for a list of ‘Safe Countries of Origin’ – be it via legislation or a regulatory instrument - the CJ interprets the scope of the judicial review as provided for in the European Union directive: also in this respect, we are in line with consolidated European Union law doctrine on the scope of judicial review in the context of: again, nothing new under the sun.

  

3.2. Between of law and politics: the designation of the Safe Country of Origin and its scrutiny

 

Other questions raised by Italian courts concern the degree of openness of the Government as to its sources concerning the designation of a country as a ‘safe country of origin’ (paras. 69 ff.). This part of the judgment is very salient, as it places clear boundaries on the level of discretion enjoyed by States and turns this discretion into a matter of judicial review. In particular, the CJ states that though the Directive does not provide for the obligation to disclose the sources of information according to which the Government preceded to the designation of a country as a ‘safe country of origin’, it nevertheless remains that the asylum-seeker must be able to rebut the presumption of safety of the third country if he or she can prove such circumstance in light of his or her personal situation. However, this is possible only if he or she can know the grounds on which his or her country has been deemed ‘safe’ (para. 73).

These paragraphs are important as they bring the whole matter to a question of the full extent of the exercise of the right to an effective remedy. The CJ recalls its case law on asylum law in relation to the Czech Republic and Hungary. In this context, the case law concerned various epiphanies of the rule of law crisis hitting the EU in the last decade. The Court therefore concludes that both the applicant and the judge must be able to have full knowledge of the sources of information on which the designation of a country as a ‘safe country of origin’ is made (para. 80). This means that the scope of judicial review of the domestic judge is very broad (para 80 and ff.) and can touch upon the procedural aspects of an asylum application, among which we find the grounds justifying the designation of a country as a ‘safe country of origin’ (Case C-406/22, paras. 90 and 91).

It is therefore in this perspective that the CJ can assert that domestic courts are in full control of the application and domestic implementation of the directive (para. 85). Therefore, the State must grant adequate access to sources of information on which the designation is made, and the judge must check whether the designation respects the conditions set by the directive. 

 

3.3. The asylum system, between rule and exceptions

 

In its previous judgment CV of 4 October 2024, the Court of Justice clarified that the definition of a ‘safe country of origin’ must be interpreted restrictively, as it introduces derogatory procedures with significant limitations in terms of procedural and judicial guarantees. Thus, it cannot be applied to situations beyond those conceived by the EU legislator. The Court therefore held in that judgment that exclusions based on parts of a territory are not allowed, as they are not provided for in Directive 2013/32/EU. In light of the clarity of the Court's ruling and the interpretative criteria it outlined, Italian judges were fully entitled to disregard the national legislation to the extent that it included exclusions for specific groups of individuals. This was particularly pertinent given that, even when expressly provided for, such exclusions were subject to stricter and more limited conditions than territorial exceptions.

Indeed, under the first Procedures Directive (Directive 2005/85/EC), it was envisaged that a list of ‘safe countries of origin’ could be adopted at the European Union level and that both types of exceptions — territorial and personal — would be subject to different regimes. The 2005 Directive allowed Member States to designate part of a country as safe, provided the conditions set out in the Directive were met in that part. Regarding groups of persons, Article 30(3) of the 2005 Directive introduced a standstill clause, whereby the directive prohibited Member States from newly designating a country as ‘safe’ based on the exclusion of specific groups of persons. Instead, it permitted Member States to maintain national provisions in force on 1 December 2005, under which a country or part thereof could be considered safe for a specific group of persons. Thus, from the outset, the regime of personal exceptions was limited to the operation of this standstill clause, and did not amount to a proper exception in the same way as territorial exclusions.

In any case, Directive 2013/32/EU -the instrument applicable ratione temporis- repealed both the territorial exclusions and the standstill clause. This means that, since then, Member States have been unable to maintain or introduce provisions designating only parts of a country as safe or deeming a country safe for particular groups of individuals. The purpose of abolishing these exceptions was to reduce fragmentation and ensure that Member States comply with the criteria set out in the directive. This was necessary because, in the absence of a common EU list, each Member State adopted or maintained its own list, and such lists were often very different from one another.

The preparatory work makes this quite clear: when explaining the new Article 33 (later renumbered Article 37 of the current Directive), the Commission stated: 'The substantive criteria for the national designation of safe countries of origin are further clarified in this Article.' In essence, the amendments aim to ensure that the application of the notion is subject to the same conditions in all Member States covered by the Directive. Firstly, references to the minimum common list of safe countries of origin are deleted. Secondly, the optional provision allowing Member States to apply the notion to part of a country is also deleted. The material requirements for national designation must therefore be met with respect to a country's entire territory. Furthermore, it is proposed that the stand-still clauses, which allow Member States to derogate from the material requirements with respect to a country or part of a country, and/or apply the notion to a specified group within that country or part of it, be deleted.” (European Commission, COM(2009) 554 final of 21 October 2009, Annex, p. 15; see also CV, point 75).

However, Member States ignored this change introduced by the 2013 Directive, retaining or introducing ‘safe country of origin’ rules that included exceptions. Italy did the same, introducing them for the first time in 2018 alongside the notion of a ‘safe country of origin’. However, the formulation of the personal exceptions in Italian law reversed the structure set out in the 2005 Directive: under that Directive, a country could be considered ‘safe’ only for certain groups of people, whereas under the Italian regime, a country is considered ‘safe’ except for certain groups of people.

Given the widespread use of exceptions by Member States, it is not surprising that the new Regulation (EU) 2024/1348 reintroduces the possibility of designating a country as safe while excluding parts of its territory or certain categories of persons. However, in line with the 2005 regime, this Regulation also restores the Union’s competence to adopt a common list, moving once again towards harmonisation.

The gap between the EU’s legal framework and the practice of Member States in designating countries as safe has thus returned to the courtroom. The Court of Justice was so called upon to clarify the specific regime of exceptions for groups of persons and the relevance of the new Regulation 2024/1348/EU.

The issue of personal exceptions was also the subject of specific questions raised by the Court of Justice during the hearing held on 25 February 2025, some of which were addressed to Member States and others to the Commission. However, the Commission responded in a rather evasive manner, even changing its position from that expressed in its written observations without presenting any plausible legal justification. The Advocate General, in his opinion, supported their admissibility, though he limited their practical application to clearly identifiable groups (here). This aspect alone would have been enough to make the designation of several of the 19 countries on its ‘safe country of origin’ list questionable.

Reaffirming the interpretative principles it had already set out in its ruling CV of 4 October 2024 (paras. 102-104), the Court of Justice held that personal exceptions are inadmissible (para. 109). However, unlike the CV, the Court does not use the chronological argument based on the legislator's intention to abolish the two exceptions — personal and territorial — with Directive 2013/32/EU. In our opinion, this argument is already very strong. Based on a strict literal interpretation, the Court even states that a country can be considered ‘safe’ if the requirements in Annex I apply to all persons without exception, unless there is a different legislative provision (para. 96). Moreover, it emphasised that the concept of a ‘safe country of origin’ entails a derogatory regime which must be interpreted restrictively and cannot be applied more broadly than is strictly permitted by the literal and contextual reading of the Directive and its objectives, namely a swift and thorough examination of asylum applications (paras. 99-105). In particular, Directive 2013/32/EU saw the Union legislator make a different policy choice to that made in 2005, and again in 2024 with the new Regulation 2024/1348/EU

Both territorial and personal exceptions were permitted under the 2005 Directive and will again be permitted under Regulation 2024/1348/EU, effective from 12 June 2026, but with no option for unilateral early application. The Court emphasised that it is the responsibility of the Union legislator to reverse the 2013 decision to repeal these exceptions by adopting a new approach, which has now been formalised in Regulation 2024/1348/EU (paras. 106-107). However, it cannot be applied before the formal entry-into-force date unless expressly provided for by a legislative amendment, which is already underway.

This clarification is particularly welcome in the Italian context, where the Court of Cassation had ruled that the current legal framework should be interpreted in light of Regulation 2024/1348/EU, invoking the concept of a 'regulatory environment' — a notion entirely unfamiliar to the Italian system of legal sources, but that was held by the Government in order to allow a broader scope of application of the ‘safe country of origin’ concept.

In the CV judgment, the Court of Justice remarked that the new balance set out in Article 61(2) of Regulation 2024/1348 'must comply with the requirements arising from the Geneva Convention and the Charter' (para. 82).

This remark is not repeated in the Alace judgment, in which the Court assessed the conformity of personal exceptions with EU law with reference to Directive 2013/32 alone, rather than the fundamental right to asylum protected by the Geneva Convention and the Charter. It seems that the Court has carefully weighed every word and has chosen not to dwell on unnecessary clauses in the context of the legal framework currently in force. However, when the new regulation comes into effect, issues of compliance with the Geneva Convention and the Charter will arise, prompting new questions for national courts and the Court of Justice to address. Not only Regulation 2024/1348, but also all the other acts adopted as part of the reform under the New Pact aim to reduce access to Member States' asylum systems and simplify application processing, with the ultimate goal of quickly proceeding with repatriation. This is based on the belief that the majority of asylum applications submitted in Member States are abusive, despite evidence suggesting otherwise (see here).

 

4. The legacy for the future

With CV and Alace and Canpelli, the Court has cleared up any doubts about how to interpret the questions raised by national courts and how to interpret Directive 2013/32/EU, which, however, is set to be replaced by Regulation 2024/1348 starting in June 2026: a new regulation with a fresh balance, as also emphasised by the CJEU, between the objectives of speed and complete examination of asylum applications. However, even under the new regulation, it will remain possible to conduct two levels of judicial review: one on the proper designation of the country as ‘safe’, based on criteria formulated almost identically to those already found in the Directives, and another on the country's safety in relation to the individual applicant.

Obviously, the type of appeal will differ depending on whether the judicial review concerns the national or European Union list, but the principles established by the Court and deriving directly from Article 47 of the Charter will remain fully applicable. It could be argued that in this way the notion of a safe country, interpreted restrictively as an exception to the rule, risks becoming ineffective for governments. However, problems arise when it is misused as an anti-immigration tool rather than as a simple mechanism to streamline and accelerate procedures. The discrepancies and heterogeneity observed in the lists of ‘safe third countries’ formulated by Member States is a clear demonstration of the transformation of the function of the ‘safe country of origin’ concept.

Aware of the difficulties inherent in applying the concept of safe country, the new regulation introduces a new criterion for applying accelerated and border procedures, which will complement the ‘safe country of origin’ concept. These procedures will apply to nationalities with a recognition rate (ie a success rate of asylum claims) below 20% (based on annual Eurostat data), unless circumstances change significantly since the publication of the relevant Eurostat data or the criteria cannot be applied to a specific group of persons because the recognition rate is not ‘representative’. This new criterion says nothing about the actual safety of countries, but rather infers that abbreviated procedures may be applied from the low recognition rate. This aims to avoid the problems previously encountered when applying the ‘safe country of origin’ concept, although it raises new ones that will certainly have to be addressed in domestic courts, and, perhaps also by the CJEU.

Moreover, with the regression in the protection of the right to asylum, there could also be a risk of conflict with the constitutional right to asylum expressed in Article 10(3) of the Italian Constitution, which has a much broader content than the concept of international protection as codified in European Union law or as deriving from any international convention, such as the Geneva Convention on Refugees or the ECHR. It will therefore be inevitable that, especially from 12 June 2026, when the new regulations adopted under the New Pact will apply, the Constitutional Court will be called upon to rule on the possible counter-limit that the constitutional right to asylum places on the new asylum law. 

  

5. Once upon a time… post-national constitutionalism, with (several) courts constraining (aslyum) politics

 

So far, with Alace and Canpelli, the Court consolidated its case law on the constitutionally oriented interpretation of the European Union asylum framework. The logic of the Court is the logic of a constitutional court (here and here). With the recent rulings in CV and Alace, and also with the previous case law on the Hungarian rule of law crisis in asylum, the Court is acting as the constitutional court of the European Union legal order, interpreting both European Union law and the domestic law giving implementation to European directives, in a manner compliant with the core rules of the European constitutional system, i.e., fundamental rights. 

One of the cornerstones of the rule of law is the right to an effective remedy, recognised in the Charter of Fundamental Rights. This is an expression of the judicial review, one of the pillars on which the rule of law is founded, as recalled years ago by the Court of Justice in its ruling Associação Sindical dos Juízes Portugueses. The scope of judicial review can vary; however, in its relation with fundamental rights, and other core provisions, every legal order becomes more rigid and constrained. The XX century has marked the constitutionalisation of fundamental rights: furthermore, many European countries have in their constitutional systems forms of judicial review of the legislation. This means that in the XX century the legislator has become more constrained than the legislator of the modern state. 

In this context, the European Union legal order is representing another layer of this process of constitutionalisation, since it adds to Member States’ constitutional systems and courts… a court, and this Court of Justice adjudicates interpreting fundamental rights and core paradigms of the contemporary constitutional state. It is precisely for this reason that the interpretation of the CJEU can be perceived as political or invasive, but this is nothing but a typical expression of contemporary constitutionalism in a context of post-national sovereignty. This constitutionalisation is expression of multiple legal orders, the domestic and the European, and is influenced also by the European Court of Human Rights.

 This case is strongly embedded in the case law of the Court of Justice on asylum. In its previous case law, the core concerned the interpretation of Article 47 of the Charter, its direct effect, and its relation with primacy and one of its implications, the duty to set aside the domestic rule in conflict with the European Union rule. Earlier on, the CJ inferred exactly the same for the Hungarian legal order that did not provide for remedies against decisions denying the right to asylum. With Alace and Canpelli the Court continues its work of constitutionalisation of fundamental rights in the European Union asylum system. 

  

*While this blogpost is the product of a joint discussion, section 1 is written together by Chiara Favilli and Luisa Marin, sections 2, 3.3, and 4 can be attributed to Chiara Favilli and sections 3.1, 3.2, and 5 can be attributed to Luisa Marin.