Matteo Zamboni (human rights lawyer working between Italy and the UK. He is a partner to the Immigration Law and Policy clinic of Goldsmiths, University of London)
Photo: The towers of the Court of Justice in the Luxembourg fog (c) Matteo Zamboni
On Tuesday 25 February 2025 I attended
the Grand Chamber hearing before the Court of Justice of the European Union
regarding the compatibility with EU law of the infamous Italy-Albania Protocol
on asylum applications and return procedures as a partner to the Immigration
Law and Policy clinic of Goldsmiths, University of London. Here is my take.
Introduction
On 25 February 2025 the Grand
Chamber of the Court of Justice of the European Union (CJEU) held the much
anticipated hearing
regarding the compatibility with EU law of the Italy-Albania Protocol on asylum
applications and return procedures. More specifically, the CJEU was called to give
an answer to four preliminary questions referred by the Tribunal of Rome in
November 2024.
Much
of the reports
appeared on Italian
and international
press focus on the “U-turn”
of the European Commission, which, differently from what it had argued in
its written observations, at the hearing stated that EU law grants Member
States the possibility to declare a third country as a ‘safe country of origin’
within the meaning of Directive
2013/32 (the current EU Directive on asylum procedures) despite the
existence of exceptions for specific at-risk groups of people for whom the country
is, in fact, not safe.
However, there is an underlying
legal issue which seems to go above and beyond this; i.e., the guarantee of
uniformity in the application of EU law on asylum procedures across the
European legal space.
Outline of the post
While waiting for the opinion of
the Advocate General (due on 10 April 2025) and obviously for the judgment of
the Court (expected before the Summer) the present post gives an account of the
hearing by (a) giving a brief description of the content of the Italy-Albania
Protocol; (b) summing up the procedural steps before Italian courts that
prompted the referral to the CJEU; (c) reporting on the oral arguments made by
the parties at the hearing and on (d) the questions asked by the Advocate
General and the CJEU Judges.
In so doing, the contribution
draws upon previous
blogs
which give detailed information as to (a) the relevant EU legislation
(essentially directives
2005/85 and 2013/32,
and regulation
2024/1348, applicable from June 2026); (b) the interpretation of the
concept of ‘safe country of origin’ (SCO) given by the CJEU in judgment of 4
October 2024 (case
C-406/22); (c) the questions referred to the CJEU for a preliminary ruling;
and (d) the existence of other requests for referral stemming from the
application of the Italy-Albania Protocol.
At the outset: the
Italy-Albania Protocol
In short, and as already detailed
by multiple sources,
the Protocol
concluded between
Italy and Albania on 6 November 2023 allows Italy to process asylum
applications through an accelerated border procedure from two centres built on
Albanian territory (one in the port of Shengjin, the other in the city of
Gjader). As clarified in the instrument of ratification (law no 14
of 21 February 2024) and in the SOPs of the Ministry of the Interiors on
the implementation of the Protocol (obtained by lawyers from ASGI by means of a
freedom
of information request), the procedure applies only to ‘migrants’ coming
from countries identified as SCOs by Italian law in accordance with relevant EU
legislation, and with the exclusion of women, unaccompanied minors, and individuals
affected by clear pathologies.
The selection of these ‘migrants’
is made by using a so-called ‘hub vessel’. In practice, eligible individuals
rescued by vessels of the Italian navy on the high sea are transferred into a
dedicated vessel (the hub vessel) and then brought to the centre in Shengjin
for initial reception and screening procedures. They are then moved to the
centre in Gjader, and therein detained while their asylum claim is processed.
These individuals are then made to apply for international (or other forms of)
protection directly from the centre in Albania, where they are interviewed by
the Commissione Territoriale per il Riconoscimento della Protezione
Internazionale di Roma (Rome Regional Commission for the grant of international
protection). In case of refusal, they can appeal before the Tribunale ordinario
di Roma (District Court of Rome). For this purpose, the asylum seekers are
connected into the hearing via video link and represented by lawyers in Rome,
who are chosen from a list. During the entire procedure, the asylum seekers
remain in detention in the centre of Gjader pursuant to the reference to
Article 28-bis legislative decree no 25 of 28 January 2008 contained in the
ratification instrument (Article 3 law 14/2024).
Finally, it needs to be
underscored that, in Italian law, the list of SCOs was originally set out with
a decree of the Minister of Foreign Affairs (lastly on 7 May 2024) adopted on
the basis of Article 2-bis legislative decree 25/2008. However, following the
CJEU judgment in case C-406/22 (which ruled out the designation of part
of countries of origin as ‘safe’, under the current asylum procedures
Directive), the Italian government, with the support of its parliamentary
majority, passed decree-law no 158 of 23 October 2024, which directly provide
an updated list of countries considered as SOCs by Italy. For our purpose, it
is important to note that, along with other 18 countries, this list includes
Bangladesh.
The case in Italy and the
questions referred to the Court of Justice
The first
transfer to Albania was performed on 14 October 2024 and concerned sixteen
men – ten Bangladeshis and six Egyptians. Their requests for protection were
rejected by the Regional Commission. However, ruling on an appeal brought by
two individuals from Bangladesh (identified, in the procedure before the CJEU,
with the fictitious names of Alace
and Canpelli),
the District Court of Rome did not validate their detention in the centres in
Albania. Moreover, the District Court referred to the CJEU four questions
regarding the concept of SCO under EU law.
The questions, which refer to
Articles 36, 37, and 39 of Directive 2013/32 (concerning ‘safe countries of
origin’), interpreted in the light of Article 47 of the EU Charter of
Fundamental Rights (the ‘Charter’) and Articles 6 and 13 of the European
Convention on Human Rights (‘ECHR’), ask the CJEU in Luxembourg whether EU law:
(1) precludes Member States from
designating SCOs by means of legislative instruments (acts of Parliament);
(2) requires national legislation
to publish the sources relied on for the designation of a specific country as a
SCO;
(3) allows national judges called
to review the designation of SCOs to use information from sources other than
those referred to in directive 2013/32; and
(4) precludes a non-EU country
from being designated as a SCO where there are categories of people for whom
the substantive conditions for such a designation laid down in Annex I to
directive 2013/32 are not met.
The oral arguments made by the
parties
This section resumes the
arguments made by the parties at the hearing.
The defence
The legal teams for Mr Alace and
Mr Canpelli coordinated their oral pleadings. The defence thus opened by
underlining that the designation of a country as a SCO bears critical
consequences, as it triggers the application of the accelerated procedure,
entailing serious hindrances to the right of the individual requesting
international (and/or other forms of) protection, including shorter
time-limits, the presumption (albeit rebuttable) that no protection is needed,
and (under Italian law implementing the protocol) the detention pending the
examination of the request.
That said, the defence moved very
quickly on the first question, as it seems rather obvious that EU law does not
mandate nor prevent Member States from resorting to specific acts (legislative
or others; e.g., ministerial decrees) to implement the rules set out in
secondary EU legislation. So, in this case, nothing prevents Italy from
designating SCOs by means of legislation; i.e., acts of Parliament.
According to the defence,
however, this should always guarantee the principle of legal certainty and the
respect of the right to an effective remedy. As a consequence, with reference
to the second and third question, the defence argued that Member States are
under the obligation to make public the sources used to proceed to the
designation of SCOs and that national judges cannot be prevented from
performing their own research and use other sources to review the decision to
consider one country as safe, in the specific case.
As regards the fourth question,
the defence maintained that the letter of directive 2013/32, and especially its
Annex I, read in the light of the subsequent amendments to the relevant EU
legislation, leaves no doubt as to the absolute impossibility to designate a
country as a SCO whenever there are elements to hold that the country is, in
fact, not safe for specific categories of people.
The Italian government
The Italian government began the
pleadings by addressing the fourth question, concerning the possibility to
designate a country as ‘safe’ notwithstanding the existence of exceptions for
certain categories of people. Relying on recital 42 in the preamble of
directive 2013/32, the government argued that the expression ‘generally and
consistently’ contained in Annex I is to be interpreted as meaning that a
country is to be deemed safe when it is such for the majority of its nationals.
Otherwise, it would be impossible to designate SCOs. In fact, in the view of
the Italian government, most countries are in fact ‘un-safe’ for certain
categories of persons. In this regard, the government added that the contrary
interpretation, according to which a country can be designated as ‘safe’ under
EU law only when it is such for the generality of its nationals, would be
‘desirable but unrealistic’ and overall ‘unreasonable’. In support of this
argument, the government cited Article 59 § 2 of new regulation 2024/1348 (even
though it does not apply yet).
In closing on this point, the
government argued that the accelerated procedure still guarantees all of the
substantive rights of the asylum seeker. The Italian government, thus, openly disavowed
the interpretation given by the CJEU in
case C-406/22 (see, in particular, § 71), where the Court held that, due to
its exceptional nature, the interpretation of the rules concerning the
accelerated procedure should always be a restrictive one. To the contrary,
according to the Italian government, the accelerated procedure guarantees in
full the right to asylum and the possibility to obtain judicial review, so that
it should not be seen as ‘exceptional’ when compared to the ordinary one. The
only difference, the Government said, is that the accelerated procedure is
faster, which goes to the benefit of the State concerned as well as of the
asylum seekers.
Finally, and this is the core of
the Italian case, the government stressed that EU law leaves discretion to
Member States when issuing the list of SCOs.
Turning to the other questions,
the Government stated that Italy has a right to designate SCOs by an act of
Parliament and that there is no need to make the sources used for the
designation publicly available, as transparency is guaranteed by internal parliamentary
rules stating that discussion in Parliament is public. In addition to more
detailed arguments taken from the letter of directive 2013/32, the Government
argued that EU law cannot impact on the constitutional system of Member States.
Therefore, in accordance with the principle of the separation of powers
enshrined in the Italian constitution, it is for the Legislature to designate SCOs
in general terms, while the power of national judges is confined to evaluate
whether, in a specific case, the designation applies to a given asylum seeker.
At the most, the national judges can refer the question regarding the general
designation of SCOs to the (Italian) constitutional court.
The other Member States
Thirteen Member States (Czech
Republic, Germany, France, Cyprus, Hungary, Malta, the Netherlands, Austria,
Poland, Slovakia, Finland, and Sweden) participated in the proceedings by
filing written observations and seven Member States (Bulgaria, Czech Republic,
Germany, Latvia, Lithuania, Hungary, and Sweden) were present at the hearing.
Generally speaking, all of these
countries supported the position of the Italian Government. Among them, the
arguments made by Germany, Hungary, and Sweden seem worth mentioning.
The German government focussed on
the issue of which national authority has the power to designate a country as a
SCO and which remedies may be enacted to challenge this designation at the
domestic level. According to Germany, EU law (directive 2013/32) distinguishes
between the general designation of a country as a SCO, on the one hand, and the
application of the concept in a specific case, on the other hand. The former
assessment is based on general considerations, while the latter is based on the
specific circumstances of the asylum seeker concerned.
Against this background, the
position of Germany is as follows: Every national court has the power to
perform the second assessment (application of the general designation of a
country as a SCO to a specific case). However, the first assessment (general
designation of a country as a SCO) must remain separate from this, and reserved
to the Legislature. This is so because EU law leaves ‘leeway’ to Member States
in performing the first assessment. Therefore, in the opinion of the German
government, a system that reserves the first (general) assessment to Parliament
is not only compliant with EU law, but actually more transparent and
democratic. This general assessment can be reversed by the constitutional court,
which has the power to review the constitutionality of legislation. Instead, if
a national court believes that the general assessment that prompted the
designation of a country as a SCO goes against the Constitution and/or EU law, it
will have to raise a challenge of constitutionality before the constitutional
court.
The government of Hungary
stretched this argument to the widest possible extent. In their view, only
national constitutional courts have the power to review the (lack of) legality
of the legislation establishing the list of SCOs. In reaching this conclusion,
the Hungarian government insisted on the concept of ‘room for manoeuvre’,
arguing that Member States enjoy wide discretion in the implementation of EU
law.
Finally, the pleadings of the government
of Sweden differed from the previous ones in that they highlighted that the
questions referred to the CJEU are relevant to the whole of the EU, since
asylum procedures must be effective throughout the European Union legal space,
without prejudice to the right of all individuals to effective judicial
protection in terms of individual examination of their requests. Moreover, the
Scandinavian State pointed out that, in its domestic legal system, there is no
general list of SCOs. Instead, it is for each national court adjudicating on
asylum claims to determine whether a legal principle that is being challenged
is compatible with EU law.
All the same, in addressing the
first two questions the Swedish government stood with Italy, arguing that the
way in which the Italian Legislature decides to designate SCOs is not a matter
for EU law. This position was justified by referring to the principle that it
is incumbent on each Member State to organise its legal system in accordance
with the overarching principles stemming from EU law and from its
constitutional settlement.
The EU Commission
Finally, the lawyer for the
Commission made the following points:
(a) in general terms, the
national judge who finds that the definition of a third country as ‘safe’ is
problematic must refer the question to a specific judicial authority; e.g., the
constitutional court;
(b) in the specific case, the
national judge has the power to find that the designation of a third country as
a SCO does not apply to the individual(s) whose case is under examination,
meaning that, for them and only for them, the country cannot be considered as safe;
(c) the fact that the exception
concerning categories of people was established in directive 2005/85, but not
replicated in directive 2013/32, does not in itself preclude Member States from
providing for such exception in the national lists of ’safe countries’;
(d) Article 37 of directive
2013/32 empowers Member States to make a discretionary evaluation as to which
countries to include in the list of SCOs;
(e) consequently, nothing
prevents Member States from including in the list of SCOs countries that may
not be safe for a category of persons;
(f) it is irrelevant whether
these categories include a large number of individuals (e.g. the category of
‘women’); what matters is that each category is clearly defined;
(g) the formula ‘generally and
consistently’ contained in annex I to directive 2013/32 needs to be interpreted
as meaning that a country cannot de deemed to be ‘safe’ under EU law when there
are ‘systematic’ violations of human rights.
The questions from the
Advocate General and the Court
The questions asked after the
first round of pleadings give an indication as to the possible approach that
the Court will take on the matter.
To begin with, the Judge
rapporteur asked the Commission to clarify its position regarding the fourth
question; i.e., the possibility to consider a country as a SCO notwithstanding
the existence of specific at-risk categories. Interestingly, the question was
reinforced by the President of the Court, which noted the possibility of a
misunderstanding due to the very nuanced position taken by the EU institution.
In its reply, the Commission clarified that, in its opinion, directive 2013/32
does not preclude this possibility.
As noted in the press,
this position is different from the one stated by the Commission in its written
observations, where it was argued that ‘Directive 2013/32 does not allow for
the designation of a third country as a safe country of origin where a
significant number of persons belonging to the same category are systematically
persecuted or face a risk of suffering serious harm […]’.
Secondly, the Advocate General
asked the Italian Government some specifics as to the review of
constitutionality in the Italian system. Among other things, he enquired
whether the Constitutional Court is empowered to review compliance of Italian
law with EU law (including Annex I of directive 2013/32) and if a question of
constitutionality can be raised by the local/district courts (courts of first
instance).
The Italian government replied in
the affirmative, holding that the question of constitutionality can be raised
by all national judges and that the constitutional court can indeed evaluate
compliance of national law with EU law. Moreover, the government reminded the CJEU
that the constitutional court could, if it deems it useful, raise preliminary
questions to the CJEU. In so doing, the Italian government unreservedly
affirmed its view that the challenge of constitutionality provided for in the
Italian legal system constitutes an effective remedy for the purpose of EU law.
In a second round of questions,
the AG asked the Italian government about the periodic update of the Italian list
of SCOs, that was due on 15 January but, as of the date of the hearing, was not
published. In particular, the AG asked whether resorting to an act of
Parliament for each and any update of the list of SCOs did not risk to
excessively slow down the process.
In reply, the Italian Government
informed the Court that the new list was about to be published and that the
legislative process is not excessively burdensome (!) and thus not liable to
cause undue delays.
Moreover, the AG questioned the
reasons why the sources used by Parliament to designate a country as a SCO could
not be made public and asked whether the Italian Government is perhaps using
confidential sources.
The Government denied using
confidential sources, but defended the position not to make them publicly
available, trailing back to the argument that the legislative process is transparent,
and that parliamentary discussion is public.
Finally, two Grand Chamber judges
pressed the Italian government on the underlying issue of supremacy of EU law.
In their questions, the judges asked whether a national judge that has no doubt
over the non-compatibility of the national legislation designating SCOs with the
criteria set out in Article 37 and Annex I of directive 2013/32 would, in any
event, be forced to raise a question of constitutionality. This point was
compounded by the apt reminder that, under the general principles of EU law as
interpreted by the consistent case law of the CJEU, every national judge,
including in first-instance proceedings, is empowered to assess the compliance
of national law with the acquis communautaire.
Even there, however, the Italian
government stuck to the position that it is only for the Constitutional Court
to look at whether a manifest and general error was made in the general designation
of a country as a SCO, while the power of lower courts is confined to the
evaluation of the specific case. In the government view, it is to be reiterated
that this is so because Member States enjoy discretion when making the general
designation of SCOs.
Conclusion
While it is impossible to
second-guess the outcome of the case, it is rather safe to assume that, contrary
to what was held in press reports, the judgment on the four questions
referred to the CJEU will not put an end to the litigation over the Italy-Albania
protocol.
As noted
by the CoE commissioner on human rights, future litigation may involve questions
regarding the overall fairness of asylum procedures, the possibility of
automatic detention without adequate judicial review, access to legal aid, and
respect of the right to an effective remedy. On the same vein, in a report
to the Italian Parliament of 30 November 2024, Professor Satvinder S. Juss from
Kings College raised the question as to whether EU asylum law can be applied
outside the EU.
Moreover, as already noted in the
literature,
the case insists on wider considerations concerning the ‘consistent
interpretation’ of EU law.
Admittedly, during the hearing
the issue remained in the background. The defence did not really push on it,
while the Italian Government and the intervening Member States did so only
implicitly, by heavily relying on the principle of procedural (and constitutional)
autonomy (as evidenced, for example, by the pleadings of Sweden).
Yet, the questions of the Grand
Chamber’s judges demonstrate that the issue is very much on the table.
Actually, it seems that this can
be better dealt with if divided in two separate points:
-
first, whether the national (Italian) judge
adjudicating in first instance on a request for international protection
submitted by an individual coming from a country that has been designated as a
SCO by Italian law is empowered to refer the question over the compatibility of
national law with directive 2013/32 to the CJEU, pursuant to Article 267 TFEU,
or whether this has to go, first, to the Italian Constitutional Court, who
would then refer the question to Luxembourg;
-
second, whether the national judge is empowered
to disapply the national legislation designating SCOs if he or she finds that
this is contrary to directive 2013/32, and in particular to Articles 37 and 38
and Annex I thereto.
The first limb of the matter
seems clearer, as it appears safe to assume that the argument of the Italian
government (with support from the intervening Member States, especially the
Hungarian government) on the need to raise a question of constitutionality
contravenes the overarching principle that the principle of ‘the primacy of EU law
[…] requires […] national court[s] to be free to refer to the Court of Justice
for a preliminary ruling any question that [they] considers necessary, at
whatever stage of the proceedings [they] consider[…] appropriate’ (see joined
cases C-188/10 and C-189/10 Aziz Melki, Sélim Abdeli).
The second limb of the question
is not as straightforward.
As to the general principles, it
is commonplace that, under the well-established case law of the CJEU,
(a) if a provision of EU law is
directly effective, domestic courts must apply it in priority and are thus
empowered to disapply conflicting provisions of national legislation without
the need to request or await the prior setting aside of such provision by
legislative or other constitutional means (see case
C-106/77 Simmenthal and following case-law);
(b) specific provisions contained
in EU directives are ‘capable of producing direct effects’ (see e.g. case
C-9/70 Franz Grad and C-41/74
Van Duyn);
(c) the direct effect of
provisions contained in a directive depend on whether they are ‘unconditional
and sufficiently precise’ (see e.g. case C-236/92 Comitato
di Coordinamento per la Difesa della Cava);
(d) if so, these provisions can
be invoked by individuals appearing before national courts ‘whenever the full
application of the directive is not in fact secured, that is to say, not only
where the directive has not been implemented or has been implemented
incorrectly, but also where the national measures correctly implementing the
directive are not being applied’ (see case
C-62/00 Marks and Spencer).
Therefore, the question is
whether Articles 37, 38 and Annex I of directive 2013/32 are ‘unconditional and
sufficiently precise’.
The existing jurisprudence is
only relatively useful. True, the CJEU has already stated that, under these
provisions, ‘it is for each Member State to designate safe countries of origin
[…] in accordance with the procedure laid down in Articles 36 and 37 and in
Annex I to Directive 2013/32, namely, in particular, the adoption by the
national legislature of a list of third countries in accordance with the
criteria laid down in Annex I’ (see case
C-404/17). Moreover, in the above-mentioned case C-406/22 the Court
confirmed that, due to its exceptional nature, Article 37 must be interpreted
restrictively. However, it does not seem that the Luxembourg judges had, so
far, had the chance to decide over the question of direct effects of these
provisions.
This seems indeed complicated.
On the one hand, the argument of
the Italian Government (and of all the intervening Member States) according to
which directive 2013/32 leaves discretion to States in designating SCOs seems
to have some merits, and resonates with a stream of CJEU case law excluding
direct effect of EU law provisions which are ‘subject […] to the to the taking
of […] measure[…] by the Member States’ (e.g. case C-263/92 at § 9 and 12-14).
On the other hand, this stance
can be said to have been overtaken by more recent case law that, in addition to
their wording, focusses on the context and purpose of the EU law provisions at
stake in determining whether they are capable of being directly effective. For
example, this allowed the CJEU to hold that, although it required actions from
the part of the Member States, the Annex to Directive 80/987 (on the protection
of employees in the event of insolvency of their employer) regarding the
categories of employee whose claims may be excluded from the scope of that
directive within the meaning of Article 1(2) was, indeed, directly effective
(see case C-441/99, in particular § 39 and 40, where the Court stated that ‘the
Member State concerned has [made the designation required by the Annex]’ and
therefore ‘made full use of the discretion which it enjoy[ed] […] in the
implementation of the Directive’ (see case
C-441/99 Riksskatterverket).
Against this background, the good
news is that this question was referred to the CJEU by the district court of
Bologna in another case concerning the application of the Italy-Albania
Protocol (case
C-750/24 Ortega).
It will no doubt be interesting
to see the way in which this question will be addressed by the Luxembourg
Judges. What is sure is that the case touches upon cornerstone principles of EU
law and that specific expertise will be needed from the defence in order to
stand up to the legal arguments made by Italy with the support of the EU
commission and virtually all the other Member States.
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