Asylum Pact 2.0: the EU amends the rules on ‘safe third countries’ and ‘safe countries of origin’

 

Steve Peers, Professor of Law, Royal Holloway University of London

Photo credit: Paula Reister, via Wikimedia Commons

Introduction

The EU has finally adopted two amendments to the EU’s asylum pact, entailing significantly more stringent rules as regards ‘safe countries’ of origin’ (adopted text here) and particularly ‘safe third countries’ (adopted text here).

This blog post summarises the new laws in their context, and then examines how much they impact upon the ability to claim asylum in the EU in practice – in particular the introduction of a ‘Rwanda clause’ in EU law, mirroring the last UK government’s attempt to designate that country as ‘safe’ even for asylum-seekers who had not travelled through it.

Background

The history of the two ‘safe countries’ concepts in EU law goes back initially to 1992, in the form of the London Resolutions of Member States’ ministers (see here and here). The concepts then appeared in the initial 2005 asylum procedures Directive, since replaced by the current 2013 asylum procedures Directive. The 2013 law will be replaced, as from 12 June 2026, by a new Regulation on asylum procedures, adopted in 2024 (the ‘2024 Regulation’, which I previously discussed here), part of the EU’s asylum pact. While the 2024 Regulation already makes the rules more stringent than in the 2013 Directive, the 2026 amendments now make those rules more restrictive again.

(For earlier blog posts on the 2026 amendments, see my analysis of the Commission proposal here, and my analysis of the Council and Parliament positions).

‘Safe countries of origin’

2024 Regulation

The 2024 asylum pact Regulation retains the definition of ‘safe country of origin’ from the 2013 Directive, referring to a list of human rights standards. As in the 2013 Directive, the rule can only apply if an asylum-seeker is a national of the country concerned, or is a stateless person formerly habitually resident there; and the principle remains a presumption, which the applicant can rebut in individual cases.

However, there are several changes. First of all, the rule will become mandatory for Member States, instead of an option. Secondly, it will be possible to designate a non-EU country of origin as ‘safe’ in part, either geographically (exceptions for ‘specific parts of its territory’) or for some groups of people (‘clearly identifiable categories’). Recent Court of Justice judgments have confirmed that such designations are not possible under the 2013 Directive (see here and here).

Thirdly, the 2024 Regulation makes it possible for the EU to adopt a common list of ‘safe countries of origin’, alongside Member States’ designation of such countries. Countries can be taken off the common EU list in the event of ‘significant changes’ there, initially by means of a delegated act adopted by the Commission, then via legislation. Member States cannot put the country back on their national list of ‘safe countries of origin’ while a delegated act suspending it from the list applies; and for two years after the country is dropped from the common EU list via legislation, Member States need the Commission’s approval to reinstate it on their national lists.

Fourth, in place of a general reference to speeding up consideration of ‘accelerated’ cases (including ‘safe country of origin’ cases) in the 2013 Directive, there will be a three-month deadline to decide on such cases, although if an authority considers the asylum application to be too complex, it can default to the usual six-month deadline to decide on the merits. (This general deadline has not been amended, although the possibilities of extending it have been partly curtailed).

Fifth, a new ground for accelerated procedures, overlapping with the ‘safe third country’ ground, has been added: Member States must also fast-track cases where the most recent annual recognition rate for asylum claims for the asylum-seekers’ nationality is below 20% EU-wide at first instance (ie before appeals), ‘unless the determining authority assesses that a significant change has occurred in the third country concerned since the publication of the relevant Eurostat data or that the applicant belongs to a category of persons for whom the proportion of 20 % or lower cannot be considered to be representative for their protection needs, taking into account, inter alia, the significant differences between first instance and final decisions.’ It is also mandatory, and subject to the same deadlines.

Sixth, while the ‘safe country of origin’ concept remains a ground for applying special border procedures, as under the 2013 Directive, those border procedures have been changed. They are now mandatory in principle (for a specific number of asylum-seekers per Member State) and can now last for up to twelve weeks (including both the administrative and judicial phase of the case), instead of four weeks. Presumably the Court of Justice case law, requiring that asylum-seekers be released from detention (if that was the only ground for it) and admitted on to the territory at the end of the border procedure deadline, still applies. Unaccompanied minors will be exempt from the revised border procedure, unless they are ‘national security’ or ‘public order’ risks.

Finally, it will be mandatory, instead of optional, for Member States to deny automatic suspensive effect to appeals in ‘safe country of origin’ cases, and several safeguards related to the lack of automatic suspensive effect are dropped. However, it will still be possible for asylum-seekers to ask a court for permission to stay during the appeal. On appeals, there is nothing to suggest that the case law of the Court of Justice on the 2013 Directive (Alace) has been overturned. In that case, the Court said that: a Member State’s designation of a ‘safe country of origin’ has to be subject to judicial review; the sources of information used for the designation must be provided to the applicant and to courts; and courts must be able to examine other sources of information.

2026 amendments

First of all, the new Regulation allows (as an option) the early application (ie before June 2026, from the day after publication of the new law in the EU Official Journal) of the possibility of partial designation of a country as a ‘safe country of origin’ (either geographically or for certain groups of asylum-seekers), as well as the new ‘20% recognition rate’ rule. In particular, this is intended to allow for the earlier application of the Italy/Albania arrangements on processing asylum-seekers on Albanian territory, which were in effect frustrated by the Court of Justice’s interpretation of the current Directive. Of course, other Member States might have a use for earlier application of the rules too.

Furthermore, the 2026 amendments similarly allow for early application of the partial designation of countries as ‘safe third countries’.

The early application of the 2024 version of these rules can also be applied at the borders, in the current version of the border procedure. This means that, among other things, the 2024 exclusion of most unaccompanied minors from the border procedure will not apply until the 2024 Regulation fully enters into force in June.

Secondly, the 2026 Regulation sets out a common EU list of ‘safe countries of origin’, as from the entry into force of the Pact: Bangladesh, Colombia, Egypt, India, Kosovo, Morocco and Tunisia, plus candidates for EU accession (Serbia, Montenegro, Albania, North Macedonia, Bosnia-Herzegovina, Turkey, Ukraine, Moldova and Georgia).

The accession candidates are, however, subject to special rules: they cannot be regarded as ‘safe’ if they have been subjected to EU foreign policy sanctions due to their actions ‘affecting fundamental rights and freedoms that are relevant to’ the definition of ‘safe country of origin’; or if their recognition rate is above 20% at first instance; or if there is a ‘serious threat to a civilian’s life or person by reason of indiscriminate violence’ in that country (which is an amended version of one of the grounds for ‘subsidiary protection’ in EU law; the requirement that the threat also be ‘individual’ does not apply in this context). The preamble draws the obvious conclusion that ‘Member States should not apply the concept of safe country of origin to applicants from a candidate country during the period in which the circumstances provided for by this Regulation persist.’ 

It appears that in place of the usual rules on suspending a country from the list, the accession candidates will be removed following a notification from the Commission to the Council, European Parliament and Member States. However, to trigger the ‘serious threat’ ground for removal from the list, the Commission will need approval from the Council first. Presumably the default voting rule of qualified majority in the Council will apply. According to the preamble, the Council’s role is necessary ‘in view of the potential implications for the external relations of the Union and the Member States’ in this scenario.

Several of these points (dropping the ‘individual’ criterion, qualifying the sanctions point, and creating a role for the Council) were changes from the Commission’s original proposal, made at the Council’s behest. The European Parliament’s proposed amendment (removing a country from the list if the temporary protection Directive applied – obviously referring to Ukraine) was not agreed, although the final version of the preamble says that the application (or termination) of temporary protection under that Directive should be taken into account when assessing whether a ‘serious threat’ exists. Moreover, the Parliament’s proposal to use delegated acts (ie the usual process) to remove candidate countries from the common list was not agreed either.

The Regulation also now provides for the possibility (again, at the Council’s behest) that a country on the common EU list can be de-listed in part, ie using the exceptions for parts of a country or groups of people which Member States can use.

Finally, at the behest of the Parliament, a clause in the preamble to the 2026 amendment appears to hint at limiting judicial review in individual cases:

[a ‘safe country of origin’] designation reflects the general situation in that country and is not affected by the individual circumstances, which may only be assessed for the purposes of determining whether the concept of safe country of origin should exceptionally not be applied in a specific case. Therefore, in the context of national judicial review, the detailed evidence regarding an applicant’s individual situation justifying the applicability of the concept of safe country of origin should be the main purpose of that assessment. In accordance with the Treaties, the Court of Justice of the European Union is competent to rule on any doubts on the validity of a designation of a third country as a safe country of origin at Union level.

This is slightly more equivocal than the EP’s proposed amendment on this point, which had read:

…national judicial review should examine the detailed evidence regarding an applicant’s individual situation justifying, in his or her case, the inapplicability of the concept of safe country of origin and not the designation as such.

‘Safe third countries’

2024 Regulation

The 2024 Regulation (before the 2026 amendments) makes a number of changes to the rules on this issue as compared to the 2013 Directive. First of all, it will be simpler to designate a country as a ‘safe third country’ in one respect: there need not be an opportunity to request and receive Refugee Convention refugee status there. Instead, if a non-EU country ‘has ratified and respects’ the Convention, within the limits of any reservations and limitations, that country ‘shall be considered to ensure effective protection’; but if has not ratified the Convention, or applies a geographical limit to it (ie Turkey), that country ‘only’ offers effective protection for people where, ‘as a minimum’, that country allows people to remain, offers subsistence, health care and education, and ‘effective protection remains available until a durable solution can be found’.  

Secondly, as with ‘safe countries of origin’, it will now be possible to regard a country as a ‘safe third country’ only partly, ie ‘with exceptions for specific parts of its territory or clearly identifiable categories of persons’. A country can even be a ‘safe third country’ for an individual applicant.

Thirdly, there will be new safeguards for unaccompanied minors: a ‘best interests’ test and a prior assurance that the non-EU country will take them in charge and give them immediate access to effective protection.

Fourth, there will now be a two-month deadline for deciding ‘safe third country’ applications (and most other inadmissible applications), with a possible extension of up to two months in certain circumstances.

Fifth, there will also now be a new prospect of a common EU list, which works the same way as the possible common list of ‘safe countries of origin’ (and removals from it) described above.

Sixth, the revised border procedure in the Regulation (described above), will also apply to ‘safe third country’ cases.

Several elements have not changed, though. It is still necessary that, in the country concerned, there is: no threat to [life or liberty’ on any of the grounds set out in the Refugee Convention; ‘no risk of serious harm’ as defined in EU law as regards subsidiary protection; respect of the non-refoulement principle in the Refugee Convention (ie not sending the asylum seeker to an unsafe country); and respect for ‘the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law’.

Also, the principle will still only be optional for Member States; and the rule still cannot be applied unless the asylum-seeker will be admitted to the country concerned. Also, the rule can only apply if the asylum-seeker has a ‘connection’ with the other country, ‘on the basis of which it would be reasonable’ for the asylum-seeker to go there; it must still be possible for the asylum-seeker to challenge the alleged safety of the country concerned for them, as well as their supposed connection with it. Finally, as before, appeals in ‘safe third country’ cases will still have automatic suspensive effect.

2026 amendments

First and foremost, the new Regulation (which will apply from June, along with the rest of the asylum pact) has dropped the requirement that the ‘safe third country’ principle can only be applied in the event of a ‘connection’ to the supposedly ‘safe’ third country. There are further explanations of that principle in the preamble:  

Member States should, while fully respecting the parameters set out in the case law of the Court of Justice of the European Union, be able to apply the concept of safe third country on the basis of a connection as defined in conformity with national law or practice, in so far as specifically defined therein. The connection between the applicant and the third country could be considered established in particular where members of the applicant’s family are present in that third country, where the applicant has settled or stayed in that third country, or where the applicant has linguistic, cultural or other similar ties with that third country.

It will now also be possible to apply the ‘safe third country’ principle in two other cases. First, it can be applied where the asylum seeker had transited through that country on the way to the EU, as further explained in the preamble:

…transit through a third country could include a situation where an applicant has passed through or stayed on the territory of a third country on the way to the Union, or where the applicant has been at the border or in a transit zone of a third country, where that applicant has had the possibility to request effective protection from the authorities of the third country concerned.

Secondly, the ‘safe third country’ principle can now apply to a Rwanda-type deal with a country that the asylum-seeker had neither a connection with nor transited through: ‘there is an agreement or an arrangement [with the non-EU country concerned]…requiring the examination of the merits of any requests for effective protection made in the third country concerned by applicants subject to that agreement or arrangement’.

Such an agreement or arrangement can either be negotiated by the EU or one or more Member States; the Member States might even negotiate it alongside non-EU countries (say the UK, or the US?). There are detailed rules on how any EU negotiations relate to Member State treaties on the issue.

However, the new ‘Rwanda’ criterion will not apply to unaccompanied minors, although the Parliament had argued that it should apply to children who were security threats. The new transit criterion will apply to unaccompanied minors though, although the current safeguards for them in ‘connection’ cases (best interests of the child, certain assurances from the country concerned) in the 2024 Regulation will apply to ‘transit’ cases too. The preamble also refers to considering the family unity principle.

Finally, the new Regulation has altered the rules on appeals, so that there will no longer be automatic suspensive effect in ‘safe third country’ appeals, except for unaccompanied minors subject to the border procedure. The amendments also (at the Council’s behest) drop automatic suspensive effect in cases where the asylum seeker has international protection from another Member State, even though Court of Justice case law provides for the possibility of applying for international protection in another Member State to avoid harsh conditions in the Member State which granted such protection, where the latter Member State treats the beneficiaries of international protection so badly that it amounts to a breach of the EU Charter of Fundamental Rights. Nevertheless, it will still be possible to request a court to grant suspensive effect.

Other features of the ‘safe third country’ principle have not changed: it will remain optional for Member States, and the rules will not change as regards criteria defining the ‘safety’ of a country as such, the applicable deadlines, the related rules on the border procedure, or the requirement that Member States must consider the merits if the third country concerned refuses to admit the asylum seeker. Nor does it use the power to adopt a common EU list of ‘safe third countries’.

 

Assessment

The ‘safe country of origin’ amendments in particular are partly aimed at overturning case law of the CJEU, not only as regards allowing geographical and group exceptions from the principle, but also (on a more lasting basis, given that those exceptions would be allowed from June anyway) as regards limiting national judicial review of the national lists of such countries.

However, this apparent attempt to limit judicial review would, if the provision is interpreted as such, breach the EU Charter of Fundamental Rights. The Court of Justice’s Alace judgment refers several times to Article 47 of the Charter (the right to an effective remedy and a fair trial), when ruling that it must be possible to challenge the designation of countries as ‘safe countries of origin’ (underlining and bold text added):

…it should be noted that the obligation imposed on Member States by Article 46(1) of Directive 2013/32 to provide for a right to an effective judicial remedy for applicants for international protection, the scope of which is defined in Article 46(3) of that directive, corresponds to the right to an effective remedy guaranteed by Article 47 of the Charter… [para 53]

…although, in the absence of EU rules on the matter, it is for the national legal order, in accordance with the principle of procedural autonomy of Member States and subject to the observance of the principles of equivalence and effectiveness, to lay down the detailed procedural rules governing remedies for ensuring that individual rights derived from the EU legal order are safeguarded, Member States nevertheless have the responsibility to ensure observance in every case of the right to effective judicial protection of those rights as guaranteed by Article 47 of the Charter, the scope of that right being clarified, in the present case, by Article 46 of Directive 2013/32… [para 64]

…the choice, by a Member State, of the competent authority and the legal instrument effecting the designation, at national level, of safe countries of origin, in accordance with Articles 36 and 37 of Directive 2013/32, cannot affect its obligations under that directive. It is thus for each Member State, inter alia, to ensure respect for the right to an effective judicial remedy which Article 46(1) of that directive confers on applicants for international protection against decisions taken on their applications, the scope of which is defined by Article 46(3) of that directive. [para 65]

In that regard, the Court has held that, in accordance with Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, where an action is brought before a national court or tribunal against a decision taken on 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… [para 66]

Consequently, and having regard to the case-law referred to in paragraphs 62 and 63 above, the fact that a Member State has chosen to designate safe countries of origin by means of a legislative act cannot be such as to preclude the national court or tribunal seised in the circumstances set out in the preceding paragraph of the present judgment from reviewing, even if only indirectly, whether the designation of the third country in question as a safe country of origin complies with the material conditions for such a designation, set out in Annex I to Directive 2013/32. [para 67]

In the light of the foregoing, the answer to the first questions is that Articles 36 and 37 and Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as not precluding a Member State from designating third countries as safe countries of origin by means of a legislative act, provided that that designation can be subject to judicial review as regards compliance with the material conditions for such a designation, set out in Annex I to that directive, by any national court or tribunal hearing an action brought against a decision taken on an application for international protection, which had been examined under the special scheme applicable to applications lodged by applicants who are from third countries designated as safe countries of origin. [para 68]

As the Charter has the same legal value as the Treaties (Article 6 TEU), any EU law adopted in breach of it would be invalid.

In any event, the litigation has not stood still. There are further cases referred from the Italian courts as regards aspects of the Italy/Albania arrangements, including Sedrata on detention issues, and Comeri (fast-tracked by the Court) on the external relations aspects of such arrangements. These pending cases may limit the possible application of the Italy/Albania agreement in the meantime, although it remains to be seen whether the changes to the law (including the 2024 version of the reception directive), might be relevant to the issues in these disputes post June. Of course, further legal challenges can be expected as the 2024 Regulation is partly rolled out early on the basis of the 2026 amendments, and applied fully from June.

The removal of automatic suspensive effect from ‘safe third country’ cases, while widening the scope of such cases in principle, may mean that it is harder to obtain an effective remedy in such cases – although the possibility of requesting suspensive effect from the national court will now become crucial. The same will be true of cases where a Member State is allegedly breaching the Charter rights of recognised refugees – an issue separate from ‘safe third (non-EU) countries’ where the legislators decided to carry out a ‘drive-by hit’ on appeal rights nonetheless.

As for the ‘Rwanda clause’ itself, at first sight it leaves open the possibility that (apart from unaccompanied minors) literally everyone who applies for asylum in the EU could be removed to such a country. In practice, though, this depends upon there being enough countries willing to admit the asylum-seekers. The EU’s current and planned leverage (via the visa code, recent visa waiver suspension rules, agreed amendments to trade policy laws, proposed changes to development aid and planned further changes to the visa code) relates to countries taking back their own citizens and those who transited through them. While the transit point is relevant to the widening of the ‘safe third country’ concept to include transit states, it does not cover the introduction of the Rwanda clause.

Even for those who are subject to the wider application of the ‘safe third country’ principle after the 2026 amendments, it will still be necessary to show that they will be admitted to the country concerned, and still possible to argue that the country is ‘unsafe’ in their particular situation. Moreover, it could be argued that – in parallel with the CJEU case law on challenging the listing of ‘safe countries of origin’, quoted from above – the EU Charter of Rights necessarily confers the possibility of challenging the listing of the country in question itself, comparable to the UK Supreme Court ruling that Rwanda was ‘unsafe’ as such. And since the EU Charter has a higher legal status than EU legislation, it would not be possible for the EU or its Member States to overturn such a ruling merely by passing legislation – unlike the ‘Safety’ of Rwanda Act passed under the previous UK government.

 

 

Digital Services Act: summary and links

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Animated Heaven, via Wikimedia Commons

 

Introduction

The EU’s Digital Services Act (DSA) sets out rules for regulating online platforms and search engines. The following sets out a summary of what the Act does, and links to key resources. It draws upon (and updates) a blog post on the Commission’s first non-compliance decision under the Act. This post will be updated.

 

Overview of the Digital Services Act

The DSA contains rules that govern online platforms generally, regardless of size, but its most prominent rules concern a special regulatory regime for the biggest platforms, defined as ‘very large online platforms’ (VLOPs) and ‘very large online search engines’ (VLOSEs), which subjects them to greater regulation. The Act gives the EU Commission power to designate such platforms and search engines (on the basis that 10% of the EU population visit them monthly) and to enforce the provisions of the DSA against them.

The Commission’s list of designated VLOPs and VLOSEs includes US companies (including Meta, X, Google, LinkedIn), and also Chinese companies (AliExpress, TikTok, Temu, Shein), EU companies (Booking.com, Zalando, and two porn sites), and a Canadian site, Pornhub. Overall, nearly half of the companies designated as operating VLOPs and VLOSEs are non-American (although some of the American companies operate more than one platform).

For VLOPs, enforcement of the DSA involves a number of measures, including requests for information, a start of an investigation into possible breach of the Act, a preliminary finding of a breach, and a final decision finding a breach – which can result in a fine (of up to 6% of worldwide annual turnover) and orders to change practices. A VLOP or VLOSE can also agree avoid a fine by agreeing binding commitments to change its practices with the Commission (in effect, a settlement) before it reaches a final decision. If a finding of breach is not complied with, the Commission can impose very high fines – up to 5% of worldwide annual turnover per day.

The Act imposes a very high threshold before a ban can be imposed against a platform – essentially a refusal to remove illegal content, with additional safeguards including involvement of a court.

The case law has not yet fleshed out the relationship between the DSA and Member States’ laws on overlapping issues, or clarified whether there can be private enforcement of the DSA (ie individuals challenging the VLOPs and VLOSEs in court for breach of the Act, rather than the Commission enforcing it) in parallel.

Substantively, the Act’s requirements on VLOPs and VLOSEs (in its Articles 33-43) start with risk assessment: they must ‘diligently identify, analyse and assess any systemic risks in the Union stemming from the design or functioning of their service and its related systems, including algorithmic systems, or from the use made of their services’. Systemic risks are further defined as including ‘dissemination of illegal content through their services’, ‘negative effects’ upon various human rights, ‘actual or foreseeable negative effects on civic discourse and electoral processes, and public security’, and ‘actual or foreseeable negative effects in relation to gender-based violence, the protection of public health and minors and serious negative consequences to the person’s physical and mental well-being’.  

Very large platforms and search engines are also obliged to (as further defined): mitigate these risks; comply with a decision requiring a response to a crisis; perform independent audits; offer a recommender system not based on profiling, at least as an option; make public a repository of advertising data; provide access to their data to researchers; explain their algorithms to regulators; establish independent compliance bodies; provide further public data on their operations; and pay an annual supervisory fee to the EU Commission.

 

The DSA in the EU courts

Challenges to designation

Amazon, Zalando and several porn sites have challenged their designation as VLOPs.

-          Zalando lost its challenge in the EU General Court in September, but has appealed to the EU’s Court of Justice (appeal pending)

-          Amazon also lost its challenge in the EU General Court against designation as a VLOP, and has appealed to the CJEU (the Commission has cross-appealed)

-          Amazon had won an interim measures ruling in this case – delaying its obligation to publish information about its advertisers – but that interim measure was overturned by the Court of Justice, following a successful appeal by the Commission)

-          The porn companies’ legal challenges to their designations as VLOPs are still pending (see the summary of the arguments made by Pornhub, XNXX and XVideos; a challenge by Stripchat is also still pending even though the Commission has dropped its designation as a VLOP)

-          the porn companies’ applications for interim measures as regards publishing advertisers’ information have been dismissed (see the General Court orders re Pornhub and XVideos, and the failed appeals to the Court of Justice as regards Pornhub and XVideos)  

Summary of the Amazon judgment

Amazon argued that the entire system of special rules for VLOPs in the DSA was invalid, because it violated a number of human rights set out in the EU Charter of Fundamental Rights. All of these arguments were rejected by the EU General Court (now subject to appeal).

First of all, the Court rejected the argument that the VLOP regime breached the freedom to conduct a business (Article 16 of the Charter). In the Court’s view, although the regime interfered with the freedom to conduct a business, because it imposed significant costs on VLOPs and also had a considerable impact on their organisation or required complex technical solutions, that freedom was not absolute, and the interference with it was justified. According to Article 52(1) of the Charter, limitations on Charter rights have to be prescribed by law, have public interest objectives, respect the essence of the right and be proportionate. Here the limits were admittedly prescribed by law (being set out in the Act) and respected the essence of the right (as Amazon could still carry out its core business); Amazon instead argued mainly that the limits were disproportionate, as online shops did not present systemic risks, the objectives could be satisfied by less onerous means, and the costs were significant. However, the Court believed that there was a systemic risk of illegal content in online marketplaces; other means of designating VLOPs were not necessarily more proportionate; making advertising repositories open to the public was justified in the interests of consumer protection; and the arguments about economic impact made by Amazon as regards recommender systems, researchers’ access to data and advertiser repositories were unconvincing.

Secondly, Amazon’s argument that its right to property was infringed (Article 17 of the Charter) was dismissed at the outset, as it had not identified any of its property rights that were affected by the DSA: an administrative burden did not constitute interference with a property right. Thirdly, the Court rejected the argument that the VLOP regime breached the general right to equal treatment (Article 20 of the Charter), by treating larger companies differently from smaller ones, on the grounds that larger companies presented bigger risks.

Fourthly, Amazon’s arguments about freedom of expression (Article 11 of the Charter) were rejected too. This argument was only made as regards applying the DSA rules on recommender systems to Amazon. On this point, the Court reiterated that the Charter freedom of expression rules must be interpreted consistently with the freedom of expression set out in Article 10 of the European Convention on Human Rights (ECHR), referring also to the case law of the European Court of Human Rights (ECtHR) – ie the US First Amendment does not apply to the regulation of a company doing business in the European Union. The Court did not see how the freedom of expression of third-party sellers might be affected by the DSA rules, but it accepted that Amazon’s freedom of expression was limited by having to offer a recommender system not based on profiling.

However, limitations of the right could be justified: the limitation here was prescribed by law; it did not affect the essence of the right (as Amazon could still offer a profiling-based recommender system as an option); it had an objective of general interest (consumer protection); and it was proportionate by only requiring the offer of one non-profiling based recommender system as an option – taking account of ECtHR case law that allows more interference with commercial expression than political expression.

Finally, Amazon complained about a breach of the right to privacy (Article 7 of the Charter). This was a remarkable thing for a company with a business model based on surveillance of its customers to argue about, but the Court considered its arguments seriously nonetheless. Again it followed the ECtHR case law on the corresponding rule (Article 8 ECHR), which states that businesses could invoke the right to privacy. Here the argument concerned the DSA rules on ad repositories and researchers’ access to data. Again the EU court agreed that the DSA interfered with the right, but ruled that it could be justified: it was prescribed by law, did not infringe the essence of the right, and complied with the principle of proportionality, particularly because of the limits built in to the obligations (for instance, no obligation to disclose the personal data of advertising recipients, or about the success of advertising; controls on which researchers can access the data).

Regulation fees

The Commission’s decisions on fees for regulation (for 2023) have also been challenged. These challenges were all successful in the EU General Court (see the judgments as regards Tiktok and Meta), although the Commission has appealed both the Tiktok and Meta judgments to the Court of Justice (appeals pending).

In the meantime, Tiktok, Meta and Google have brought a further round of legal challenges (all still pending) to the regulation fees imposed for 2024.

Non-compliance decision

X, X.AI and Elon Musk have challenged the December 2025 non-compliance decision against X.

Infringement actions

The Commission is suing Spain for non-enforcement of its obligations to apply the DSA at national level.

 

Enforcement of the DSA

Non-compliance decisions

So far the EU Commission has adopted one final decision  of non-compliance, against X in December 2025, following its preliminary findings in July 2024

This decision includes a fine to enforce the DSA for the first time: €120 million for three breaches of the Act by X. It concerns certain issues, namely deceptive practices as regards X’s ‘blue ticks’,* researchers’ access to data, and the repository of advertisers.

The Commission has not yet made a final decision – or even a preliminary finding – as regards other issues involved in its opening of proceedings against X, namely the dissemination of illegal content and the effectiveness of rules against disinformation. In January 2026, the Commission opened proceedings against X as regards its recommender systems and ‘nudification’ apps.

Other enforcement actions

Other Commission enforcement actions under the DSA include:

-          The Commission has accepted binding commitments from AliExpress on various issues, but at the same time also adopted a preliminary finding that its risk assessment as regards illegal products was insufficient;

-          It has opened proceedings against porn sites for inadequate protection of children;

-          It has adopted a preliminary finding that Meta (Facebook and Instagram) is in breach as regards researchers’ access to data, and as regards flagging illegal content and allowing for appeals against content moderation decisions; an investigation as regards deceptive advertising, political data, and misinformation on Meta is still underway; and

-          It has adopted a preliminary finding that Temu has breached the DSA as regards illegal products, and an investigation continues as regards other issues

- It has accepted a commitment from TikTok to suspend the ‘TikTok Lite’ programme, which was apparently designed to (further) encourage social media addiction by children, having used the threat of issuing an intention to impose interim measures under the DSA earlier on in this case. A new decision, following a preliminary finding, accepts further commitments regarding information on advertisers The Commission has also adopted a preliminary finding against TikTok as regards researchers’ access to data, a preliminary finding of breach as regards addictive design, and further investigations against Tiktok are still underway.

- It has begun investigation of Shein for illegal content (child sex dolls), recommender systems and addictive design

The Mice that Roared: the EU’s list of known fantasy and camouflage passports

 

Jacques BELLEZIT (University of Strasbourg)    

Photo credit: Syced, via Wikimedia Commons

Since the Grzelczyk judgment, the European Court of Justice has held that «  Union citizenship is destined to be the fundamental status of nationals of the Member States », prioritizing the freedom of movement used by EU citizens over other EU fundamental freedoms.

This prominence has driven the Court to condemn the Maltese investor citizenship scheme which “amounts to the commercialisation of the granting of the status of national of a Member State and, by extension, Union citizenship, which is incompatible with the conception of that fundamental status that stems from the Treaties” (point 100 of the  ECJ Grand Chamber “Commission v Malta” judgment of 29 April 2025).           

In conjunction with the principle of sincere cooperation outlined in TEU Article 4, one can better understand the importance of a good understanding of EU member States' passports by national immigration and customs authorities.        

To enforce this understanding, several legal tools are established within the EU legal system. Among them Decision No 1105/2011/EU of the European Parliament and of the Council of 25 October 2011  establishes a “list of travel documents which entitle the holder to cross the external borders and which may be endorsed with a visa and on setting up a mechanism for establishing this list”.          

The said EU list of travel documents is divided into three parts (Article 1 of the Decision 1105/2011/EU), which are:

Part I : Travel documents issued by third countries and territorial entities.          
Part II:  Travel documents issued by Member States.

Part III: Travel documents issued by international organisations.    

However, this list has a “doppelgänger,” a “mischievous” twin.      

Indeed, under article 6 of the Decision N°1105/2011/EU “The Commission shall also draw up and update a non-exhaustive list of known fantasy and camouflage passports on the basis of information received from the Member States.” (hereafter « the EU list of known fantasy and camouflage passports » or « the List »).

This List, available on the website of the Public Register of Authentic identity and travel Documents Online (PRADO, being itself a section of the Council’s website), which is the topic of the present study, was lastly updated on 31.08.2025 and displays 3 categories of “passports”  on which Member States' authorities are forbidden to endorse an EU-Schengen visa :

·       Fantasy passports (‘Passports’ issued by minorities, sects and population groups and identity documents, etc. issued by private organisations and individuals.

·       Camouflage passports (Passports of former states no longer in existence).

·       Documents of territories which are not internationally recognised.

If the issue of “former states non longer in existence” is a known object of international law (cf. The Vienna Convention on Succession of States in Respect of Treaties - Vienna, 23 August 1978 United Nations, Treaty Series , vol. 1946, p. 3.  C.N.354.2008.TREATIES-1 of 6 May 2008) as well as the conundrum of “territories which are not internationally recognised” (cf. for instance the Western Sahara, dealt by the Luxembourg Court in the  “Front Polisario” judgments of October 4th 2024  (C‑778/21 P and C‑798/21 P ; C‑779/21 P and C‑799/21 P, C-399/22), the issue of “fantasy passports” is more nebulous.        

If States (and, to a lesser extent, international organizations) have the privilege to issue passports on their behalf, the EU Member States have, furthermore,  the obligation to respect EU law while withdrawing their nationality, especially regarding the impact on EU citizenship and the access to the Schengen Area (cf. CJEU Judgment of the Court (Grand Chamber) of 2 March 2010. Janko Rottman v Freistaat Bayern Case C-135/08 p.54-55).

Under these circumstances, it is understandable that third actors can be tempted to apply for an EU-Schengen visa to obtain open access to the Schengen area at all costs, even though the emission of such fantasy and camouflage passports.     

However, the use of “State Emblems, Official Hallmarks, and Emblems of Intergovernmental Organizations” as trademarks is by itself prohibited under IP law (cf. Article 6ter of the Paris Convention for the Protection of Industrial Property of March 20, 1883 and, in EU law, Article 7 h) of the Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark ), and such use can also lead to criminal prosecution not only under IP law, but under other security fields.    

For instance, the “Principality of Sealand” (occurring on the List and among the most well-known micronations) is a small platform of 0.0004 km² within the British territorial waters. The Principality's “authorities” participated in the 2000s money laundering scandal about “Sealand passports” (cf. Gooch, Adela (12 April 2000). "Police swoop on Sealand crime ring". The Guardian. ISSN 0261-3077.; Boggan, Steve (23 September 1997). "Money Laundering: Global fraudsters use sea fortress as passport to". The Independent.). Today, it offers a “E-Citzenship” program which allow such E-Citizen the use     of a “Free & Secure VPN access”, as well as the “protection from Sealand authorities”, or several discounts on merchandising related to Sealand. James Grimmelmann theorized that the platform was also a potential data haven through its company HavenCo Limited. (cf. Grimmelmann, James (27 March 2012). "Death of a data haven: cypherpunks, WikiLeaks, and the world's smallest nation". Ars Technica.)

Under this consideration, one can easily understand the use of the EU List on security, fight against money-laundering and other offences.           

After a quick overview of the first two categories of passports and documents (I) we will focus specifically on the fantasy passports as they aim, on various scales of Genuity, imitate official, regular State-issued documents (II). Such fantasy passports are an interesting funhouse mirror, allowing reflections on what a State is today, under the prism of a European Union which is itself not a sovereign State (III).

 

I)              Camouflage passports and non-recognized territories under the EU List

A 1989 Soviet Passport, symbol of an actual camouflage passport.     
(File:Soviet Passport Cover HiRes.jpg. (2025, June 1). Wikimedia Commons. Retrieved December 9, 2025, from https://commons.wikimedia.org/w/index.php?title=File:Soviet_Passport_Cover_HiRes.jpg&oldid=1038965939.)

The 27 “Former states no longer in existence,” are familiar to any history and/or international relations enthusiast: One can think about the Federal Republic of Yugoslavia”- whose succession has been treated by the Badinter Commission (Radan, P. (1997). The Badinter arbitration commission and the partition of Yugoslavia. Nationalities Papers, 25(3), 537-557.) or the USSR, divided following the 1990 Minsk Declaration (cf. Hamant Hélène. La succession d'États de l'URSS en matière militaire. In: Annuaire français de droit international, volume 50, 2004. pp. 213-230.)

However, beyond these two former major independent States, the list primarily mentions former European colonies and assimilated territories, along with their current names and sovereignty.

We can mention “ Rhodesia (now Zimbabwe)”, “Ceylon (now Sri Lanka)” or  Netherlands East Indies (now Indonesia) as well as  “Bophuthatswana” and “Transkei”,  former South African Bantustans which have been theoretically independent during the apartheid era, but are now part of the South African territory (Hattingh, P. S. (1977). Bophuthatswana at a Glance. Africa Insight, 7(2), 213-219; Drummond, J. (1991). Reincorporating the Bantustans into South Africa: the question of Bophuthatswana. Geography, 76(4), 369-373.)

Within territories which are not internationally recognised, one can find only four territories which are, namely, “Turkish Republic of Northern Cyprus”, “ Saharwei, Arab Democratic Republic (own name for ‘Western Sahara’)”, “ Temporary Government of Serbia at Kosovo”, and “Republic of Somaliland”.         

About “Turkish Republic of Northern Cyprus”, the List qualifies this territory as “Illegal under UN Security Council Resolutions 541/83 and 550/84”, but it is silent about the other territories: for “Temporary Government of Serbia at Kosovo”, one can relate it to the fact that the situation of Kosovo still sparks controversies: for instance the Mandate of the European Union Special Representative for Kosovo warns that the “Kosovo” denomination is “ without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence”.           

The situation of Western Sahara may evolve following the aforementioned “Front Polisario” judgements, but we doubt the “Saharwei, Arab Democratic Republic” will soon be struck off the List.

About Somaliland, the instability of this separatist region of Sudan (being a hot point of pluri-ethnic tensions and Jihadism) seems to prohibit this “Republic” from succeeding in gaining international recognition (cf. Matt Bryden “Somalia at Risk of Becoming a Jihadist State” Africa Security Brief No. 45 Africa Center for Strategic Studies, November 17, 2025).

Beyond these States (extinct or claimed), the List mentions fantasy passports and documents issued “by minorities, sects and population groups [and] by private organisations and individuals”.(hereafter “third actors”).

II) Fantasy passports as a step toward criminal offence or international recognition.

The List gathers, in a non-exhaustive way, 152 sources of fantasy passports and documents that we can subdivide into four categories of passports and documents, which are non-mutually exclusive.

-       Pseudo-diplomatic documents.

-       Pseudo-religious documents.

-       Nationalists' documents.

-       Cargo-cultist documents. 

If counterfeit documents and identity documents forgery can be a tool for various offences (such as terrorism cf. Molnár, Á. (2019). Travel Documents in use by Terrorists. Internal Security, 11, 133-145; Rudner, M. (2008). Misuse of passports: identity fraud, the propensity to travel, and international terrorism. Studies in conflict & terrorism, 31(2), 95-110.), it can also be a way to obtain recognition from micro-nations (cf. Hobbs H, Williams G. Micronations and the Search for Sovereignty. Cambridge University Press; 2022.), religious or Indigenous minorities on an international plan.        

Pseudo – diplomatic documents

About “Pseudo-diplomatic documents”, the List mentions groups of organisations that counterfeit or corrupt the names of genuine international organisations in a parasitic way, aiming to “mislead the public” (in a similar way to cases aimed by article 58 c) of the Regulation (EU) 2017/1001) 

We can mention so-called organizations such as the  ‘Baltic Trade Mission’,  ‘Diplomatic passport of ‘Comité International pour la Protection des Droits de Hommes’ (CIPDH) ; ‘EU Senator Pass’, ‘IIMSAM’ (Inter-Governmental Observer to the United nations Economic and Social Council) - Diplomatic Laissez passer (DE)” or ‘Intergovernmental Institution for the Use of Micro-Algae Spirulina Against Malnutrition'. Some organisations can be confusing, such as “Arab International Organisation” (cf. the real world League of Arab States) or the “Organisation of African Unity” (disbanded in 2002 and replaced by the African Union.  

However, claiming to belong to such an “international organization” does not grant as such privileges which are similar to those granted to genuine international relations: for instance, in case ECJ (Full Court) 30^th September 2021 (C-130/19) Pinxten, it is recalled that “[…] excise goods are exempt from payment thereof where they are intended to be used in the context of diplomatic or consular relations or by international organisations recognised as such by the public authorities of the host Member State, and by members of such organisations, within the limits and under the conditions laid down by the international conventions establishing such organisations or by headquarters agreements.”

Indeed, as stated by Thomas MENRAH “The need for a Headquarters Agreement arises from the fact that there are specific aspects of the relations between an organization and its host State that may not easily be resolved by reference to general principles of international law or even the provisions of general conventions on privileges and immunities.” (Mensah, T. A. (2012). "Headquarters Agreements and the Law of International Organizations". In Coexistence, Cooperation and Solidarity. Leiden, The Netherlands: Brill | Niehoff. https://doi.org/10.1163/9789004214828_071)

But as the List’s “international organizations” do not exist, the privileges, allegedly “laid down by […] international conventions establishing such organisations or by headquarters agreements” of their self-claimed agents are also non-existent.        

Pseudo-religious organizations

On pseudo-religious organizations, we can quote the “‘Hare Krishna Sect’ (Krishna-Consciousness) labelled as a cult (cf. Melton, J. Gordon. "Hare Krishna". Encyclopaedia Britannica, 27 Oct. 2025, https://www.britannica.com/topic/Hare-Krishna. Accessed 24 November 2025 ).

The ‘Sovereign Military Order of St. John of Jerusalem’ is a mixing of the (catholic) Sovereign Military order of Malta (with a sui generis statute in international law, cf. UN General Assembly Resolution  A/RES/48/265 of August 30 1994) and of the Order of St. John of Jerusalem, which do not benefit from such status. One can also mention the “ ‘Knights of Malta’ (‘UN diplomatic passport’) ‘Cosmopolitan Passport.’      

Finally, we can think about marginal groups relating themselves to Orthodox Eastern religious organisations such as the  “Ecumenial World Patriarchate” the “‘Byzantine Empire’ (‘passport’ issued by the ‘Holy Roman Empire of the East’)” or the “‘Patriarchate of Antiochia” that hope to benefit in a parasitic way of privileges granted to Vatican State, or the Mount Athos communities. This latter question have been deal by the 1979 “Joint Declaration concerning Mount Athos” (cf. Papastathis, C.-K. (2004). Le statut du Mont Athos. L'Année canonique, Tome XLVI(1), 141-158. https://doi.org/10.3917/cano.046.0145.)   

Nationalist documents

Within the point of “Nationalists documents,” we can put together the case of micronations (cf. Hobbs H, Williams G. supra) such as the “Principality of Sealand” or the ‘Hutt River Principality”, as well as documents issued, allegedly, by Native populations, whether they are from Northern America (e.g. ‘Empire Washitaw de Dugdahmoundyah’ , ‘Hadenosaunee’,  ‘HOPI Indians’) or from other locations ( ‘Hawaiian Kingdom’ ; ‘Republic of Chechen’ or the ‘Republic Malaku Selatan’ (South Moluccas)”).

The reference to such Native populations aims to use the issue of such populations’ decline or even demise. It may be in line with a legitimate desire to live in accordance with their traditional lifestyle, and even, to speak with international law language, to use their rights to self-determination to exclude any jurisdiction, except their own.           

The exclusion of regular States’ jurisdiction is also a feature of what is known as “sovereign citizen movements”  which use pseudo-legal rhetoric and facts: it is the case with, for instance, the “‘Baltic States’ (‘passports’ issued by the government in exile)”, or for the  “‘Notverwaltung Deutscher Osten’ (Emergency Administration of the German East) – Diplomatic passport” as well as “Vereinigte Länder des Deutschen Ostens im Deutschen Reich’ (United Countries of the German East in the German Empire)”.         

The latter two references to the “German East” can be related to German sovereign citizen movements (a.k.a “Reichbürger” or “Citizens of the Reich”) which refuse the legality of the current German Federal Republic (GRF): in the eyes of these movements, neither the German Empire, nor the German Democratic Republic have legally disappeared following the two World Wars. Therefore, the GRF being illegitimate, its authorities can be overthrown.

A “Reichbürger passport” among other German sovereign citizen movements items.

(Source : https://www.verfassungsschutz.de/EN/topics/reichsbuerger-and-selbstverwalter/reichsbuerger-and-selbstverwalter_node.html)

However, as the International Court of Justice stated in its 1995 “East-Timor” (Portugal v Australia) judgement (§29) “The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court […] it is one of the essential principles of contemporary international law. However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things”.

What is true before the Hague Court floor is still true before any authority: invoking the erga omnes character of a norm does not deprive “magically” and per se customs and immigration authorities of their jurisdiction over an individual, and that is especially true if the said person carries a fantasy document which has no recognition anywhere.

The magic way of thinking is a characteristic of the last category of documents: the Cargo-cultist, which is an interesting funmirror of what a State is.        

III) Fantasy passports : an interesting funmirror of the 21st Century State

According to Claudine CASSAR, such cults stems from contacts between Melanesian and Western populations since the 19^th Century : as she writes “Members of the cult believe that the Western material goods they desire are not simply produced by human labour, but rather come from supernatural sources. The rituals and practices that Cargo Cults employ often involve imitating the behaviour of Westerners, such as building runways, using radios to communicate with the spirits, or wearing clothing resembling military uniforms.” to benefit from Western goods.

From the abundant literature on the topic (cf. inter alia Lindstrom, Lamont. (2018) 2023. “Cargo cults.” In The Open Encyclopedia of Anthropology, edited by Felix Stein. Facsimile of the first edition in The Cambridge Encyclopedia of Anthropology. Online: http://doi.org/10.29164/18cargo), these “imitations” are crafted by cultists without the knowledge of the logistic chain and/or the political arcane, allowing Westerners to bring their material goods  to remote Melanesian islands (cf. Billings, D. K. (2002). Cargo cult as theater: Political performance in the Pacific. Lexington Books.)

In the case of fantasy passports, some of their bearers may naively think that showing their “documents” issued by State-like entities (e.g. ‘Pas Valasheko Kralovsztvia / Passport of the Wallachian kingdom’ ;  ‘United Nations of America, State of Delaware’ ;  ‘Free and Independent State of Vera Cruz’ ) or pseudo-international organisations (e.g.“ ‘International Parliament for Safety and Peace’; ‘Kingdom of Dutch World Citizens’ ) may open up to them international borders and gain them the respect and deference of local authorities.

However, it is loud and in clear in international law that “Notification to the receiving State of appointments, arrivals and departures” (Article 24 of the Vienna Convention on consular relationships) of diplomatic staff must be done, which is difficult if the sending State or entity doesn’t exist.

This feeling can be reinforced in the mind of “cargo-cultists” by the continuous thrive of the Internet and IA technologies,  which see the birth of so-called “numeric nations” or “e-nations” living away from a located physical territory (e.g. the “First Space Nation” of ASGARDIA); Alshamsi, H., Balleste, R., & Hanlon, M. L. (2018). Space station Asgardia 2117: From theoretical science to a new nation in outer space. Santa Clara J. Int'l L., 16, 37.; Putra, M. R. (2023). Juridical Analysis of the Kingdom of Asgardia Space from the Terms of a State According to International Law. Siber International Journal of Advanced Law (SIJAL), 1(1), 9-15.).

The “Principality of Sealand,” while offering an E-Citizenship program, forbids “any right of abode or physical residency within the Principality of Sealand (…) primarily confers digital rights and privileges, as outlined in the Sealand E-Citizenship program details”. On this point, one has to notice that the Terms & Conditions of this program are “ governed by and construed in accordance with the Law of England and Wales and Sealand” (sic). However, if there is an exclusive electio fori clause granting “exclusive jurisdiction of the Courts of England and Wales. 95A Prince Ave, Sounthen-on-Sea, Essex, SS2 6RL.”, one can also notice that, in case of an arbitration proceeding, this latter will be conducted “in accordance with the rules of the International Chamber of Commerce (ICC). The arbitration will take place in Sealand, and the language of the arbitration will be English.” An arbitration procedure on a former military platform would be unheard of, to any sense of the terms (!).

Moreover, paragraph 363 of the “Obligations of States in respect of the climate change” ICJ’s advisory opinion of July 23^rd 2025 may also nourish cultic fringe views on traveling documents: as the World Court stated that “once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood”, we might expect a rise of known fantasy and camouflage passports going along with a possible rise of micronations or numeric nations.

But what is the difference between authentic state-issued documents and these known fantasy and camouflage passports?

In our view, it is the recognition of a subject of international law: we can say that the List is a common list of unrecognized and mostly unrecognizable countries, those that do not have the “critical mass” or fulfil the conditions to claim/obtain recognition.      

In EU asylum law, one can find a similar momentum with the “Procedures” Directive  2013/32/EU of the European Parliament and of the Council of 26 June 2013. Article 38 of this Directive states the concept of “safe third countries” allowing, inter alia, the use of accelerated procedures. If the safe-third country concept is defined by the criteria laid in this article,  the EU list of known fantasy and camouflage passports is based on one fact: notoriety.

Issuing « authorities » of such documents are « known » publicly to act fraudulently and/or without the required sovereignty to emit valid travel documents. It may probably amount to self-evidence or common sense that documents  “issued by minorities, sects and population groups “ or “ issued by private organisations and individuals” are and have to be , per se, invalid.

So we can wonder why EU Member States do to regularly share information on the topic? due to the lack of CJEU case-law on the “fantasy and camouflage” documents, there is no autonomous notion of such documents (comp. with the notion of “traveller” under  Directive (EU) 2015/2302, CJEU (W)onderweg, C‑445/24, 13 November 2025 §34).

One can find a dead end as the recognition of other States is an acta de jus imperii, interlinked with the Common Foreign and Security Policy, highly strategic and (nearly) immune to judicial review by the European Court of Justice (Article 24 TEU).

But, if third States have access to EU Courts (cf.Kassoti* and Carrozzini**A Curia Mundi? The CJEU’s Judgment in Case C‑872/19 P Venezuela v Council), can these non-state actors discuss their inscription on the List ?     

The Luxembourg Court case law has several cases of minorities, sects (cf. for the member of a “Bhagwan community” CJEU Judgment of the Court (Sixth Chamber) of 5 October 1988 Udo Steymann v Staatssecretaris van Justitie. 196/87) and population groups (cf. CJEU (Grand Chamber), 3 October 2013, Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union) which may seize the EU Court if they fulfil the relevant conditions, or are the subject of a reference for a preliminary ruling from a national court.

If is admitted that third States and EU Members States can, inter alia, seize the European Court of justice under conditions of TFEU Section 5; we might expect, one day, the question of these fantasy passports to land before the Luxembourg Court’s floor (directly or by the way of a preliminary ruling).

 

Conclusion

If the EU List is enshrined in a larger “ list of travel documents which entitle the holder to cross the external borders and which may be endorsed with a visa “ established by Decision No 1105/2011/EU of the European Parliament and of the Council of 25 October 2011, it is nevertheless rich of teachings on the crisis of the Westphalian State, seen through the lens international and EU law.

Other actors, more or less organized,  aim to compete with States for the obtention of international recognition, embodied and symbolized by these passports and documents mentioned in the List.

These actors may be voluntarily or not driven by mischievous or naïve feelings, but their imagination and the versatility of tools at their disposal, as well as their pseudo-State discourse, have to warn public authorities and the general public of risks linked to these practices.

The play on words and the confusion around diplomatic and legal vocabulary may deceive the public (and, to a lesser extent, public authorities) and lay a favourable ground for further, complex offences, in an example of real-life,  social engineering technique.    

Beyond security and cooperation issues, one must mention that some passports are purposely issued as souvenirs or marks of regional and or artistic identities without any will to harm anyone. For instance, the “Passeport Alsacien” (Alsatian passport) is a fantasy passport aimed for entertainment and the promotion of this Eastern France’s specific identity, without any grounds to claim international recognition of any kind.   

Indeed, Alsace’s main city, Strasbourg, is known to be the siege of the European Parliament as well as hosting the Council of Europe’s institutions. As such, this sole fact might exclude the latter passport from being part of the EU List.