Matteo Zamboni (human rights lawyer working between Italy and the UK. He is a partner to the Immigration Law and Policy clinic of Goldsmiths, University of London)
Photo credit: Shëngjin Port in Albania, the location of one of the two detention centres built by Italy © Albinfo, CC BY 4.0 via Wikimedia Commons
Introduction
On 1
August 2025, the Grand Chamber of the Court of Justice of the European
Union (CJEU) published its judgment
in joined cases C-758 and 759/24 (Alace and Canpelli) regarding
the Italy-Albania Protocol, and more specifically the designation of safe
countries of origin under Article 37 of EU Directive 2013/32 (the currently
applicable asylum
procedures Directive). In previous blogs on the public
hearing of 25 February 2025 and the opinion
of the Advocate General (AG) of 10 April 2025, I gave some information on
the context of the case and its high political stakes at Italian and European
level. Indeed, the plan is not only critical to the political capital of the
Italian government but also admired by foreign heads of government, including
the UK
Prime Minister, and taken as an example (or a ‘general
rehearsal’) by the President
of the EU Commission.
On this latter point, it is probably
worth repeating that, while the present case was pending before the CJEU, the EU
Commission:
-
changed
its position on whether, under Directive 2013/32, Member States have the power
to designate a country as a ‘safe’ country of origin with the exclusion of ‘clearly
identifiable categories of persons’, by first denying this possibility in its
written pleadings of (where it was argued that ‘Directive 2013/32 does not
allow for the designation of a third country as a safe country of origin where
a significant number of persons belonging to the same category are
systematically persecuted or face a risk of suffering serious harm […]’) and
then admitting in the oral arguments made at the hearing (to the surprise of
the President of the Grand Chamber);
-
adopted a proposal
on the idea of “return hubs” located outside the European Union, with a move
that mirrors the legislative amendment enacted by the Italian government while
awaiting the decision of the Grand Chamber (with decree-law
no 37 of 28 March 2025) to use one of the two centres built in Albania (the
one in Gjader) as a return hub to detain individuals whose claims to
international protection had been rejected and who are awaiting deportation;
and
-
published a proposal
for amendments to Regulation 2024/1348
(the asylum procedures Regulation, applicable from June 2026) which would, among
other things: (i) create a European Union-level list of ‘safe countries of
origin’, including Bangladesh, the country of origin of the real individuals
behind the fictitious names of Alace and Canpelli; (ii) bring forward the
possibility, for Member States, to apply the new provisions allowing to
designate a country of origin as ‘safe’ in spite of the existence of ‘specific
regions’ and/or ‘clearly identifiable categories of individuals’ for which the
country is, in fact, not safe.
The extreme salience and
significance of the case is equally witnessed by the intervention of 16 Member
States that, like the Commission, endorsed the position of the Italian
Government. It is no surprise, then, that the news that the judgment of the
Grand Chamber granted all of the arguments made by the defence on behalf of the
asylum seekers concerned was met by a strong
reaction in the media and from the Government. As a matter of fact, in a
long tweet posted on the day of the judgment, the Italian President of the
Council of Ministers, Giorgia Meloni, accused the Court of Justice to ‘claim[…]
powers that do not belong to it’ by ‘decid[ing] to delegate to any national
judge the decision not on individual cases, but on the part of migration policy
relating to the repatriation and expulsion of illegal immigrants’.
The tweet (which is very long and
available here)
betrays the disappointment for the considerable difficulties and drawbacks in
the enforcement of the scheme. As denounced
by the Italian watchdog for the region of Lazio, who visited the centres on 30
July 2025 with his counterpart for the city of Rome, just before the judgment,
the centres accommodated an ‘extremely limited number of people’ (27) which
could easily be detained in the available places in the Italian structure.
Against this background, one could think that the CJEU judgment would mark the
end of the scheme; but this would probably be too optimistic. In fact, the CJEU
did neither ban the conduct of asylum procedures in Albania, nor delved deep
into the many human rights concerns inherent in the extra-territorial
processing of asylum claims, which have been already highlighted
in the legal
literature,
and to some extent already referred
to the CJEU for further consideration with an order
of the Italian Court of Cassation of 29 May 2025-20 June 2025 (no 23105).
So, while this ruling is
certainly ‘another
blow to a key aspect of the Italian government's migration policy’, it will
most likely not be the final one. Instead, as reported
in
the press,
from the day following Meloni’s reaction on Twitter some of her ministers are
already changing their tune, saying that the CJEU judgment is actually good,
because it explains to the Italian government the changes to be enacted to (finally!)
activate the centres in Albania.
Summary of the judgment
The judgment focusses on the
designation of safe countries of origin (SCOs), which, as explained by
Judge Jürimäe, bears far-reaching consequences for asylum seekers. It triggers
the application of the accelerated examination procedure and the operation of
the (rebuttable) presumption that no protection is needed. The question for the
Grand Chamber of the CJEU, then, was which national authority has the final say
over the designation of a country as ‘safe’ under Article 37 of Directive 2013/32
and whether a country can be considered as ‘safe’ in spite of the existence of
exceptions for vulnerable categories. These questions are interesting from the
point of view of EU law, since, as it has been noted,
the CJEU has dealt with the issue only in one prior case; i.e., the judgment of 4
October 2024 in case C-406/22 (CV), regarding the designation of a country
as ‘safe’ despite the existence of territorial exception (more
specifically, the case was concerned with the designation of Moldova as a
SCO by the Czech Republic with the exception of the region of Transnistria).
Therefore, from a general perspective, a new (and clarificatory) intervention
from the Luxembourg judges was much needed.
However, in the specific
circumstances of the Italy-Albania Protocol, the question is even more
critical, as it is precisely the designation of the country of origin of an
asylum seeker as ‘safe’ that allows the deportation to the centres in Shengjin
and Gjader - and ultimately the
operation of the whole scheme.
Under the applicable legislation
(the Protocol
of 6 November 2023, as integrated by the Standard
Operation Procedures of the Ministry of the Interior, and the ratification
law no 14 of 21 February 2024), prior to the amendments enacted by
decree-law no 37 of 28 March 2025, passed into law no 75
of 3 May 2025, the requirements for deportation and detention into the
centres in Albania were:
-
the fact that a ‘migrant’, as defined by Article
1(d) of the Protocol, is intercepted by the Italian navy on the high sea (see
Article 4(4) of the Protocol; paras 4-6 of the SOPs; Article 3 (2) of law no.
14/2024, which makes explicit reference to ‘persons taken aboard Italian
authority vessels outside the territorial waters of the Republic or other
Member States of the European Union, including as a result of rescue
operations’);
-
the consideration that the person concerned does
not belong to one of the vulnerable categories established by law (i.e., women,
non-accompanied minors, individuals affected by clear pathological conditions,
elder people - see para 1 of the SOPs); and
-
the assessment that the asylum seeker comes from
a country designated as a SCO (see para 6 of the SOPs).
In terms of the domestic legal
system, the latter requirement stems from Article 3(3) law no 14/2024, which
equalises the centres in Albania to the border and transit areas provided for
by legislative
decree no 25 of 28 January 2008. This is the legislation that Italy passed
to implement
Directive 2005/85 on
minimum standards on procedures in Member States for granting and withdrawing
refugee status (the previous asylum procedures Directive), and that was
then amended and integrated to transpose Directive 2013/32 and further EU legal
instruments regarding asylum procedures. Among many other things, this
legislation established a list of SCOs (at Article 2-bis, as amended by Article
1 of decree-law no. 158 of 23 October 2024) and stated that the request for
international protection filed by individuals coming from one of such countries
can be dealt with under the accelerated procedure (see Article 28-bis).
Moreover, Article 3(4) law no.
14/2024 states that the centres in Albania are to be considered as equivalent
to the reception centres established by Article 10-ter(1) of legislative
decree no. 286 of 25 July 1998; i.e., the so-called ‘special crisis
centres’ in which are detained the ‘foreign nationals who are tracked down
while crossing internal or external borders illegally, or who arrive on
national territory following rescue operations at sea’. In terms of EU law,
basically Italy relied on the designation of SCOs under Article 37 Directive
2013/32 to trigger the accelerated procedure under Article 31(8)(b) of that
Directive and considered that the examination of the asylum request from the
centres in Albania would be equal to the border procedure provided by Article
43 of the same directive. Therefore, the designation of the country of origin
of the migrants concerned as a SCO is the necessary preliminary point for the
operation of the entire scheme, including deportation to and detention in the
centres in Albania.
The questions referred to the
CJEU
For the sake of clarity, it is
worth restating that the questions referred to the CJEU by the Tribunal of Rome
in November 2024 concerned whether EU law, and in particular Articles 36, 37,
and 39 of Directive 2013/32, interpreted in the light of Article 47 of the EU
Charter on Fundamental Rights (‘the Charter’),
-
prevents Member States from designating SCOs by
means of legislative instruments (acts of Parliament);
-
requires national legislation to publish the
sources relied on for the designation of a specific country as a SCO;
-
allows national judges called to review the
designation of SCOs to use information from sources other than those referred
to in directive 2013/32; and
-
precludes a non-EU country from being designated
as a SCO where there are categories of people for whom the substantive
conditions for such a designation laid down in Annex I to directive 2013/32 are
not met.
The answers of the Grand
Chamber
At the outset, the 15 Judges
assessed the admissibility of the request for referral, reminding that,
according to settled case-law, ‘questions on the interpretation of EU law
referred by a national court […] enjoy a presumption of relevance’ and can be
refused ‘only [i] where it is quite obvious that the interpretation of EU law sought
bears no relation to the actual facts of the main action or its purpose, [ii]
where the problem is hypothetical, or [iii] where the Court does not have
before it the factual or legal material necessary to give a useful answer to
the questions submitted to it’. Clearly, in the mind of the Grand Chamber, none
of these instances applied to the case at hand, which, on the contrary, raises
questions of interpretation of Directive 2013/32 highly relevant for the
solution of the case (see judgment § 38-41 with reference to the judgment
of 19 December 2024 in cases C-185 and 189/24 (Tudmur) § 26)
The first question and the issue
of disapplication
On the first question, the Grand
Chamber followed the argument advanced by all the parties at the hearing,
including the defence, and by the AG in his opinion, stating that the term
“legislation” contained in Article 37(1) of Directive 2013/32 is to be
interpreted in a wide manner; and that neither Article 37 nor other provisions
of Directive 2013/32 sets out the specific national authority competent for the
designation or the specific legislative instrument to be used for that purpose
(ibid § 56 and 59-60). Finally, the Court reminded that, under Article 288(3)
TFEU, Member States enjoy a margin of discretion when implementing
directives (ibid § 61). So, the Court concluded that nothing prevents a Member
State from issuing a list of SCOs by means of an act of Parliament.
At the same time, albeit
acknowledging that, as stressed by the Italian Government and by all the
intervening Member States, EU law leaves discretion to States when issuing the
list of SCOs, the Court clarified that said discretion does neither affect (i)
‘the obligation […] to adopt all the measures necessary to ensure that the
directive concerned is fully effective”, nor (ii) ‘the duty of the national
judge to give full effect to the provisions of Directive 2013/32, including by
dis-applying as required, of its own motion, any national rule, even if adopted
subsequently, which is contrary to a provision of EU law with direct effect,
without it having to request or await the prior setting aside of that national
rule or practice by legislative or other constitutional means’ (ibid § 62 with
reference to the judgments
of 10 April 1984 in case C-14/83 (von Colson and Kaman) § 15 and of
31 March 2022 in case C-472/20 (Lombard Lízing) § 53; § 63 with reference
to the judgments of 9
March 1987 in case C-106/77 (Simmental) § 21 and 24, and of 28
January 2025 in case C-253/23 (ASG 2) § 90).
This argument was compounded by
the reference to the right to an effective remedy and to a fair trial,
enshrined in Article 47 of the Charter. Indeed, the Court quoted from the
precedent of case C-406/22 and held that
‘Article 46(3)
of Directive 2013/32, read in the light of Article 47 of the Charter, must be
interpreted as meaning that, where an action is brought before a court or
tribunal against a decision rejecting an application for international
protection, examined in the context of the special scheme applicable to
applications lodged by applicants from third countries designated, in
accordance with Article 37 of that directive, as safe countries of origin, that
court or tribunal must, as part of the full and ex nunc examination required by
Article 46(3) of that directive, raise, on the basis of the information in the
file and the information brought to its attention during the proceedings before
it, a failure to have regard to the material conditions for such designation,
set out in Annex I to that directive, even if that failure is not expressly
relied on in support of that action’ (ibid § 66 with reference to case C-406/22
§ 98)
On this basis, the Grand Chamber
concluded that the fact that a Member State decided to designate SCOs by means
of an act of Parliament, while not in itself contrary to Article 37 of
Directive 2013/32 or any other EU law provision, cannot prevent the national
judge to “check” (“controllare”) the designation, or “subject [it] to judicial
control” (“oggetto di un controllo giurisdizionale”), on the basis of the
substantive requirements set out in Annex I to the directive (ibid § 66 and 67
for the answer to the question).
The second and the third
question on the right to access to the sources used for the designation of SCOs
As regards the second and the
third question, the Court recognised that, while it lists a series of sources
that need to be taken into consideration (namely, ‘information from other
Member States, EASO, UNHCR, the Council of Europe and other relevant
international organisations’), Article 37(3) of Directive 2013/32 does not
expressly set out that the national authorities are under the obligation to
publish and make accessible the sources used for the designation of SCOs (ibid
§ 70-71). Still, the Court followed the ‘systemic’ approach indicated by the AG
in his opinion and applied a three-fold argument to reach the conclusion that (i)
‘the Member State designating a third country as a safe country of origin must
ensure sufficient and adequate access to the sources of information referred to
in Article 37(3) of [the] Directive’ and (ii) ‘the national judge […] may, if
it verifies, even incidentally, whether such designation complies with the
substantive conditions for such designation set out in Annex I to that
Directive, take into account the information it has gathered, provided that, on
the one hand, it ensures the reliability of that information and, on the other
hand, it guarantees the parties concerned the right to be heard’ (ibid § 88).
In the first place, the Grand
Chamber noted that the designation of a country as ‘safe’ triggers the
operation of the presumption of sufficient protection in the country of origin
of an asylum seeker. However, in order to guarantee the right to challenge and
rebut the presumption, the asylum seeker must be put in the condition of
knowing the reasons for the designation, including the sources employed by the
national authorities’ (ibid § 72-73).
In the second place, the Judges
underscored that Article 12(1)(d) of Directive 2013/32, read in combination
with Article 10(3)(b), states that during the procedure regarding the
examination of their claim, asylum seekers have a right to access ‘precise and
up-to-date information […] from various sources, such as EASO and UNHCR and
relevant international human rights organisations, as to the general situation
prevailing in [their] countries of origin’. It, then, concluded that this
information is basically the same as that referred to in Article 37(3).
Moreover, under Article 10(4) of the directive, the national judicial
authorities hearing an appeal against a decision of refusal of protection have
access to the same information (ibid § 74-75).
In the third place, the CJEU
relied - once again - on the right to fair trial, guaranteed by Article 47 of
the Charter, as a guide in the interpretation of Article 46 of Directive
2013/32, which set out the right to an effective remedy, reminding that, as it
had already been stated in case C-406/22 and other precedents, the right to
effective judicial protection resulting from the combination of these two
provisions ‘is sufficient in itself and does not need to be made more specific by
provisions of EU or national law in order to confer on individuals a right which
they may rely on as such’ (ibid § 77 with reference to case C-406/22 § 86 and
case law therein cited). That said, the Court remarked that effective judicial
control presupposes that both the asylum seeker and the judicial authority must
have full knowledge of the grounds of the decision of refusal (ibid § 78 with
reference to the judgments of 4
June 2013 in case C-300/11 (ZZ) § 53 and of 29
July 2024, C-185/23 (protectus) § 79).
Yet, where a request for
protection is denied as manifestly ill-founded since an asylum seeker comes
from a ‘safe’ country, the reasons for the refusal overlap with the grounds to
hold that the said country is indeed to be designated as ‘safe’ under Articles
36 and 37 and Annex I of Directive 2013/32 (ibid § 79). The ensuing conclusion
that the asylum seeker and the national judge must have access to the sources
and information relied on by the national authorities for the purpose of
designating a country as ‘safe’ was further compounded by the literal
interpretation of Article 46 of the Directive in the part that state that
‘Member States shall ensure that an effective remedy provides for a full and ex
nunc examination of both facts and points of law, including, where applicable,
an examination of the international protection needs pursuant to Directive
2011/95/EU […]’.
In this regard, with an argument
that it had already employed in case C-406/22, the Court stressed that the
expression ‘ex nunc’ indicates that the examination of the judicial authority
has to include ‘new elements intervening after the adoption of the decision of
refusal [of protection]’; that the adjective ‘complete’ means that the national
judge has to examine ‘all the elements [that] […] have, or ought to have, been
taken into consideration’ in the decision of dismissal of the claim; and that
the clause ‘where applicable’ highlights that the process of judicial review
‘does not necessarily have to focus on the […] merits of the request for
international protection’, rather ‘it could be concerned with the procedural
aspects [of the claim] […] including the designation of a third country as a
safe country of origin’ (ibid § 81-84 with reference to case C-406/22 §
87-91).
The fourth question on the
“personal exception” to the designation of SOCs
Finally, the Court held that
Article 37 and Annex I of Directive 2013/32 prevent a Member State from
designating a country as a SCO where the substantial conditions set out in
Annex I to the directive are not satisfied for certain categories of persons. The
conclusion ensues from an analysis of the letter of Article 37; the context of
that provision in the framework of Directive 2013/32; and the objective of the
EU legislation (ibid § 91).
To begin with, the Grand Chamber
noted that nothing in the text of Article 37 suggests the terms ‘countries’ and
‘third countries’ may be interpreted as regarding just a portion of the
population, even if this portion would be the majority (ibid § 92). This was
confirmed by an analysis of the context of the directive, and specifically of
the “substantive criteria” listed in Annex I. Here, the CJEU disagreed with the
argument put forward by the AG and held that, in spite of ‘semantic
differences’ in the official translations, the adverbs ‘generally’ and
‘consistently’ (in the English version of the directive) refer to a notion of
‘invariability’ (“invariabilità” in the Italian version of the judgment, ibid §
93-96). Moreover, the Court repeated that, as it had already stated in case
C-406/22, all clauses of derogation and exceptional provisions need to be
interpreted in a restrictive manner (ibid § 100).
It is perhaps worth noting that,
in giving the interpretation of Article 37 in accordance with the literal and
context-based approach, the Grand Chamber does not reference case C-406/22,
although the same reasoning features in that judgment at §§ 65-71. On the other
hand, case C-406/22 is explicitly quoted in the argument regarding the
interpretation of Article 37 based on the objectives of Directive 2013/32.
Indeed, §§ 101-106 of the Alace and Canpelli judgment replicate §§ 77-82 of
case C-406/22. In both judgments, the Court stated, in essence, that the
purpose of Directive 2013/32 is to ensure that, even under the accelerated
procedure, asylum claims receive ‘adequate’ and ‘complete’ examination, in
compliance with ‘basic principles and guarantees’, and that the presumption of
safety of a country of origin remains ‘rebuttable’. In this context, the Court
concluded that, when enacting Directive 2013/32, the EU legislature exercised
its ‘discretion’ in order to ‘strike a fair balance’ between the need to speed
up the processing of asylum requests and the duty to ensure that these are
given full and fair examination. In the framework of this balancing exercise,
the EU legislature decided ‘not [to] provide […] for the option for Member
States to exclude certain categories of persons for the purposes of such
designation’. Falling within the ‘prerogatives’ of the EU legislature, this
choice of the balance point cannot be questioned by Member States.
The same applies to the decision
as to the date of entry into force of the new Regulation 2024/1348, allowing,
at Article 61(2), for the designation as a ‘safe country of origin’ with
exceptions for specific parts of its territory or clearly identifiable
categories of persons. Once again, the Grand Chamber held that the EU
Legislature decided that the new legislation will only come into effect in June
2026 (ibid § 101-106).
As anticipated, this reasoning is
exactly the same as the one developed in case C-406/22 concerning the so-called
“territorial exception”. The only difference is that the Alace and Canpelli
judgment contains (at § 107) a further reference to the proposal of the
Commission entailing the amendments to Regulation 2024/1348 and the
anticipation of the possibility, for Member States, to apply the new provisions
regarding the designation of SOCs to ‘as soon as possible before June 2026’. Even
this initiative is seen as an example of the exercise of legislative prerogatives
by EU institutions, which, according to the CJEU, further reinforces the
conclusion that – as the legislation currently stands under the realm of
Directive 2013/32 – EU law does not allow for group exceptions in the
designation of SCOs.
Conclusion
As noted,
the CJEU gave priority to the case of Alace and Canpelli and suspended the
examination of all the other questions referred by Italian judges, including on
the designation of SCOs. Yet, it is not certain that the judgment of 1 August
will clear all doubts surrounding the issue, and that, as a consequence, it
would allow national judges to resolve the cases before them independent from
further guidance from the Court.
This seems to be particularly
true as far as the issue of disapplication is concerned. In fact, the Grand
Chamber does not seem to answer in full to the argument, put forward by the
Italian government, that the effective remedy available to the concerned asylum
seeker to question, in general terms, the designation of a his or her country
of origin as ‘safe’ is a challenge of constitutionality. By the same token, the
Grand Chamber can be said to have failed to address the views of the Italian
Constitutional Court in its most recent case law in this regard, as for example
judgment
no 181/2024, which introduced the concept of “constitutional
tone”.
In the case, this view was
supported by all the intervening Member States and the Commission with a more
general argument aimed at underlying the difference between a general judicial
review, which would involve the possibility, for the national judge, to
question whether the designation of a country as ‘safe’ complies with the
criteria laid down in Annex I of Directive 2013/32, and a more individualised
assessment that the national judge will perform on whether the designation of a
third country as a SCO does not apply to the individual(s) whose case is under
examination, meaning that, for them and only for them, the country cannot be
considered as ‘safe’. According to this argument, that in my opinion was best
summarised at the hearing by the counsel for the German Government:
-
Directive 2013/32 distinguishes between the
general designation of a country as a SCO, on the one hand, and the application
of the concept in a specific case, on the other hand. The former assessment is
based on general considerations, while the latter is based on the specific
circumstances of the asylum seeker concerned.
-
Every national court has the power to perform
the second assessment (application of the general designation of a country as a
SCO to a specific case). However, the first assessment (general designation of
a country as a SCO) must remain separate from this, and reserved to the
Legislature. This is so because EU law leaves ‘leeway’ to Member States
-
If a national court believes that the general
assessment that prompted the designation of a country as a SCO goes against the
Constitution and/or EU law, it will have to raise a challenge of
constitutionality before the constitutional court.
This was certainly taken into
consideration by the AG in his opinion, which highlights the difference between
a general challenge to the designation of a SCO and the decision, based on the
specific circumstances of the case, that the designation does not apply to one
or more individuals. This is probably the reason why, in his opinion, the AG
never mentioned dis-application and rather chose to rely on the right to
judicial protection (Article 47 of the Charter) and the right to an effective
remedy (Article 46 of Directive 2013/32).
Against this backdrop, it seems
as though the judgment does not really engage in these nuances. Indeed, the
Grand Chamber refers to both dis-application and the right to an effective
remedy when establishing that the national judge has the power to review the
designation of a SCO. Yet, that part of the judgment may appear to be
excessively straightforward. Indeed, the Court does not explicitly say that
Article 37 and/or Annex I of Directive 2013/32 have direct effect, but merely
implies this when referring to disapplication at § 63 of the judgment.
This omission is all the more
apparent when considering that
-
the question as to whether Article 37 has direct
effect was referred to the CJEU by the district Court of Bologna in case
C-750/24 Ortega, but the Court suspended the examination of that request
and gave priority to Alace and Canpelli;
-
in a different section of the judgment (at § 77)
the Grand Chamber explicitly says that Articles 47 of the Charter and Article
46 of the directive have direct effect;
-
as I have already argued in my previous
blog it does not seem too obvious that Article 37 qualifies as a provision
of EU law capable of having direct effect on the basis of previous case law of
the CJEU on the matter.
That said, it is also true that,
leaving aside technicalities that may well be addressed in future cases, the
answer of the Grand Chamber on the matter is clear: the need to ensure a full
and fair examination of asylum claims at the European Union level requires that
the national judge has the power to review each and every aspect of the
request, including the designation of a country of origin as ‘safe’. In this
sense, the judgment fits in the CJEU case law that has historically underscored
the importance of the role of the national judge in the correct implementation
of EU law.
The conclusion is the same as far
as the answer to the fourth question is concerned, as it is indeed remarkable
that the CJEU dismissed the “pragmatic” approach put forward by the Italian
Government and resisted the “pressure” exerted by the intervening Member States
and by the abrupt change of position of the Commission. The Grand Chamber also
disavowed the opinion of the AG, which clearly favoured a loose interpretation
of Article 37 and Annex I of Directive 2013/32, including on the basis of a
questionable interpretation of the letter of the latter provision. Instead, the
CJEU followed the defence, which had argued that ‘the letter of directive
2013/32, and especially its Annex I […] leaves no doubt as to the absolute
impossibility to designate a country as a SCO whenever there are elements to
hold that the country is, in fact, not safe for specific categories of people’.
In so doing, it stressed the importance of the meaning of the hendiadys
“generally” and “consistently”, saying that these terms require that the
situation in a given country is “invariably” safe for its entire population.
Interestingly, while the reply to
the first question can be read as a re-affirmation of the central role of the
judiciary, the answer to the last question focusses on the prerogatives of the
EU Legislature when exercising its discretion and striking a fair balance
between the two conflicting objectives of Directive 2013/32; i.e. the interest
to accelerate the examination of asylum claims vis-à-vis the duty to respect
the basic rights of the asylum seekers.
For this reason, it seems to me
that, rather than in terms of a conflict of powers (judiciary v executive) or
institutions (EU v Member States), the judgment of 1 August 2025 should be read
under the lenses of the tyranny of values. In this perspective, the issue is
not as much which authority has the final say over an asylum claim, but
whether, as a community based on the Rule of Law, the European Union and the
Member States intend to place emphasis on pragmatic considerations regarding
the burdensome effects of a large influx of asylum seekers, or whether the
polar star is and remains the protection of fundamental rights - first and
foremost the right to effective judicial protection.
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