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.

Mutual trust does not supersede human rights! Italian judges unprecedently recognize the refugee status to an EU citizen

 

Dr. Chiara Scissa*

Photo credit: Bologna Tribunal, photo by Alex Sirac via Wikimedia Commons

* Research fellow in EU law at the University of Bologna – Alma Mater Studiorum. This contribution is part of the ERC 2022-TSG research project "Gatekeepers to International Refugee Law? - The Role of Courts in Shaping Access to Asylum" (ACCESS). Grant Agreement No. 101078683.

1. On 10 October 2025, the Tribunal of Bologna – Specialized Section on Immigration, International Protection and Free Movement of EU Citizens issued a decree of great importance for the right to asylum as conceived in EU law. For the first time, Italian judges have found that an application for international protection by a citizen of another EU Member State is admissible, granting her refugee status. In the present case, therefore, the presumption between the EU Member States to consider each other as safe countries of origin for all legal and practical purposes related to asylum issues (which in many cases is automatic, see for example here and here for the practice in Ireland, Austria, the Czech Republic, and Hungary) is dropped.

2. With decree r.g. 8445/2023, the Tribunal of Bologna pronounced on a proceeding brought by a Hungarian applicant against the rejection of her international protection claim, notified to her by the Territorial Commission for the Recognition of International Protection of Verona – Vicenza Section (first-instance administrative authority), as inadmissible. Inadmissibility was based on two considerations.

First, Protocol 24 to the Treaty on the Functioning of the European Union (TFEU) on asylum for citizens of EU Member States enshrines that asylum claims by EU citizens must be considered, apart from exceptional cases, inadmissible by virtue of the level of protection of the fundamental rights and freedoms guaranteed to them by the Treaties,  including those enshrined in the European Convention on Human Rights (ECHR), whose rights form part of EU law as general principles. According to the above-mentioned Protocol, an asylum application lodged by a European citizen may be examined or declared admissible only if: a) the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 ECHR, to take measures derogating in its territory from its obligations under that Convention; b) the procedure referred to Article 7(1) of the Treaty on European Union (TEU) has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national; c) the Council has adopted a decision in accordance with Article 7(1) TEU in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) TEU in respect of the Member State of which the applicant is a national; d) a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.

Second, given the existence of conflicting opinions on the applicability of the above exceptions to the case at hand, the Territorial Commission had requested an opinion from the National Commission on the possibility that the proceedings initiated against Hungary pursuant to Art. 7.1 TEU (so-called suspension clause) could fall within the hypothesis referred to in paragraph b). The National Commission, taking note of the absence of an express position endorsed by the Council on the applicability of art. 7.1 TEU to Hungary, concludes that the application should be considered as inadmissible. In the appeal, the defence argues that the applicant is primarily entitled to asylum on the basis of paragraph (b) of Protocol 24 or on the ground of the safeguard clause referred to in point (d), according to which a Member State may decide unilaterally to declare admissible the asylum application lodged by a national of another Member State.

3. To begin with, the Court verified the admissibility of the application for international protection in the present case by assessing whether the initiation of the procedure pursuant to Article 7.1 TEU against Hungary may have fallen within the situations referred to in paragraph b) of Protocol 24 cited above. Article 7 TEU provides for the possibility of suspending certain rights deriving from EU membership in the presence of a serious and persistent violation of the values referred to in Art. 2 TEU (respect for human dignity, freedom, democracy, equality, rule of law and respect for fundamental rights, including the rights of persons belonging to minorities). The rule provides for a two-step procedure. It provides that, on the proposal of one third of EU Member States, or of the European Parliament or of the European Commission, the Council, acting by a majority of four fifths of its members, having obtained the Parliament’s consent, may determine that there is a clear risk of a serious breach of these fundamental principles by a Member State, and address appropriate recommendations to it. Article 7(2) and (3) TEU then provides that, if the infringement is found, the Council, acting by a qualified majority, may decide to suspend some of the rights that derive from application of the Treaties to the Member State in question.

Since its creation in 1999 by the Treaty of Amsterdam until today, the so-called suspension clause has only been initiated twice. In 2017, the European Commission launched the procedure against Poland, but the Commission later withdrew its reasoned proposal in 2024, effectively concluding the procedure. In September 2018, the European Parliament then adopted a Resolution with which it initiated the procedure against Hungary. Despite various discussions and hearings, the latter procedure is still ongoing.

4. Although neither the Council nor the European Council has ever expressed a position on this point, it is clear that the adoption of a reasoned proposal by the European Parliament in this field is an integral part of the procedure laid down in Article 7 TEU, in opposition to the findings of the first-instance administrative authorities. In support of this, in the context of the action for annulment pursuant to Article 263 TFEU filed by Hungary against this Resolution, the Court of Justice of the EU (CJEU) clarified beyond any doubt that “[...] the adoption of the contested resolution initiates the procedure laid down in Article 7(1) TEU. Under point (b) of the sole article of Protocol (No 24), once that procedure is initiated and as long as the Council or the European Council has not taken a decision in respect of the Member State concerned, a Member State may, by way of derogation from the general rule laid down in that single article, take into consideration or declare admissible to be examined any asylum application lodged by a national of the Member State that is the subject of that procedure” (CJEU,  Hungary v. European Parliament, 2021, para. 41).

According to the Tribunal of Bologna, the CJEU's ruling ascertains that the principle of mutual trust, which permeates both the area of freedom, security and justice and the asylum policy “[...] is not a ‘blind trust’ and cannot be taken for granted” (p. 5), as has already been pointed out in the context of the application of the Dublin Regulation both by the CJEU (e.g., in N.S. and M.E., 2011; Abdullahi, 2013) and by the ECtHR (MSS v. Belgium and Greece, 2011).

5. The clear risk of serious and persistent violations of the foundational values of the EU imputed by the European Parliament against Hungary concerned, in particular, the respect for the rights of minorities in the country, including Roma and people with different SOGIESC (Sexual Orientation, Gender Identity, Gender Expression, and Sex Characteristics). In its 2018 Resolution and in the following ones (2022, 2023, 2024a, 2024b), the European Parliament denounced the widespread climate of violence against minorities in Hungary; the systematic discrimination and exclusion of Roma people with regards to the rights to housing, education, employment, health care and participation in social and political life; the widespread discrimination and xenophobia against people with different SOGIESC whose right to legal recognition and self-determination is denied by current legislation.

6. In view of the fact that the applicant**, who is a Hungarian national of Roma ethnicity, defines herself as transgender, and having verified the serious violations of human rights against those communities in Hungary, the Court finds that the application for international protection is admissible under paragraph (b) of Protocol 24 TFEU and carries out an assessment of the present case. The Court considers the applicant's predicament to be credible. In particular, the judges report that she was registered as a male, which is incongruent with her gender identity, and that she has suffered continuous violence and discrimination since school because of her ethnicity and gender. The applicant reports aggressions and abuses perpetrated both by society and by her family members, who wanted to force her into marriage with a woman denying her gender identity and her transition path. She has decided to leave her country following that episode. She also states that she was unable to correct her personal data by reassigning her registered sex at birth in Hungary because that was prohibited by law.

The Court also takes into account the psychological reports concerning the applicant, which certify traumas and experiences of stigmatization that led her to have suicidal thoughts. The predicament is coherent with the country of origin information collected by the Tribunal about the widespread discrimination in Hungary against both the Roma community and people with diverse SOGIESC, fueled both by society and through law. The Court therefore recognizes that “[...] for transsexual people, the failure to recognize gender reassignment leads to a serious violation of the right to personal identity (with significant repercussions on the rights to work, marriage, family and freedom of movement itself) which is not merely discriminatory, but persecutory, since it forces the person to live [...] with a formal identity different from [...] what he or she actually is” (p. 13). The Court therefore recognises the refugee status to the Hungarian applicant on the ground that she belongs to a particular social group (that of people with diverse SOGIESC and of Roma ethnic minority).

7. The judgment of the Tribunal of Bologna, in addition to being unique in Italy, allows us to draw some broader reflections on EU asylum law. First of all, it contributes to better delineating the purpose ratione personae of international protection, reducing – albeit slightly – the gap that separates it from the scope of refugee protection under the 1951 Geneva Convention. Although, unlike its international counterpart, international protection as conceived in EU law does not normally apply to EU citizens, this does not mean that this exclusion is to be considered automatic or even absolute pursuant to the specific clauses explicitly provided for in Protocol 24 annexed to the TFEU, in addition to the general discretion of each Member State to assess any asylum application by citizens of other Member States (letter d)).

From the point of view of cooperation between Member States, this decree is part of a path already traced by the highest European Courts, which clarify that the principle of mutual trust in the field of asylum is not “unconditional” and can only exist if fundamental rights are effectively respected. The fact that other Member States have already granted forms of protection to EU citizens in the last decade and that, according to Eurostat data, more than 1900 EU nationals - mainly from Hungary, Poland, Romania and Bulgaria - applied for asylum in other Member States between 2020 and 2024 corroborates that the presumption of mutual trust is not monolithic.

In the face of the serious violations of human rights and the rule of law existing in Hungary that infringe the set of values on which the Union is based (Article 2 TEU) and that are pushing its own citizens to seek refuge in other Member States, these are consequently called upon to verify the admissibility of international protection claims by Hungarian citizens not only until EU institutions have ruled on the suspension clause, but also by acting unilaterally to protect fundamental human rights.

** The pronouns and terms used to refer to the applicant are the ones used by the Tribunal of Bologna in its ruling and do not necessarily reflect the opinion of the author.