Matteo
Zamboni (human rights lawyer working between Italy and the UK. He is a
partner to the Immigration Law and Policy clinic of Goldsmiths, University of
London)
Photo credit: Matteo
Zamboni - The Grand Chamber of the CJEU in Luxembourg before the hearing of 25
February 2025
Introduction
On
10 April 2025, Jean Richard de la Tour, Advocate General (AG) at the Court of
Justice of the European Union (CJEU), delivered his conclusions
in joined cases C‑758/24 [Alace] and C‑759/24 [Canpelli], regarding the
implementation of the Italy-Albania
Protocol on asylum and return procedures, which was the subject of my
previous blog.
In
a nutshell, as stated in the press
release from the Court, the AG argued that (i) ‘a Member State may
designate safe countries of origin by a legislative act’; (ii) a Member State
‘must disclose, for the purpose of judicial review, the sources of information
upon which that designation is based’; (iii) ‘[a] Member State may […] under
certain conditions, grant a third country the status of safe country of origin,
while identifying limited categories of persons likely to be at risk of
persecution or serious harm in that country’.
This post tries to dig a little
bit deeper in the opinion in order to highlight its nuances, strengths, and
criticalities.
Context
Some background information helps
put the opinion into context.
The
opinion was published on the same day that the Italian military vessel Libra
(already infamous
for not taking action when called to the rescue of the victims of the massive
shipwreck of 11 October 2013) was sailing toward the centres in Albania to
bring 40 individuals whose claims for international protection had been
rejected by the Italian authorities. According to the information
available, these people ‘will be held in [the] Italian-run detention
centres until they are repatriated to their home countries’. In fact, it was
reported that, ‘facing criticism from the opposition over the legal confusion,
Prime Minister Giorgia Meloni's conservative coalition […] decided to use [one
of the two detention centres built in Albania, the one in Gjader] as a staging
post for people whose asylum bids have already been turned down’. More
precisely, by means of decree-law
no 37 of 28 March 2025 the Italian government established that one of the
two centres built in Albania will
temporarily be turned into a repatriation hub – in Italian, ‘Centri
di permanenza per i rimpatri’, abbreviated CPR; that is to say, centres to
detain undocumented migrants whose claims to international protection had been
rejected with a final decision and who are awaiting deportation to their
countries of origin.
Interestingly,
the amendment enacted by the Italian government mirrors the proposal
of the EU Commission for a Common European System for Returns, which, amid criticism
from human rights organisations, ‘endorsed the idea of “return hubs” located
outside the European Union’. Yet, according to sources
in the press, the plan is only temporary. In fact, ‘the government still
hopes to revert to its original plan and is waiting on a ruling from the
European Union's Court of Justice which could compel Italian judges to process
new asylum seekers dispatched to Albania’.
Moreover,
on 16 April 2025 the EU Commission published a proposal
for amendments to regulation
2024/1348 (the asylum procedures Regulation, forming part of the asylum
pact) touching precisely on the matter of the designation of safe countries of
origin (SCOs). Notably, the Commission highlighted that ‘Regulation 2024/1348
[…] for the first time provides for the possibility to designate safe countries
of origin at Union level’ and informed that ‘the EU Agency for Asylum (EUAA)
had been asked to accelerate its analysis […] with a view to drawing up an EU
list [of SOCs]’.
The
proposal is of interest for the case under review for at least three main reasons:
(i)
from a general perspective, the European
Commission made it clear that the proposed amendments have an eminently
practical purpose: ‘[to] help Member States manage asylum applications more
efficiently’ and with ‘greater flexibility’;
(ii)
the Commission took note of the fact that Article
61(2) of regulation 2024/1348 ‘allows for designation of […] safe countries of
origin with exceptions’, including ‘by excluding specific regions or clearly
identifiable categories of individuals’, and proposed to ‘bring[…] forward
[the] application [of these exceptions]’; the Alace and Canpelli case is
partly about the designation of categories of asylum seekers who may be at risk
even though their country of origin is designated as ‘safe’;
(iii)
the provisional list of SCOs proposed to be designated
at EU level includes Bangladesh; i.e., the country of origin of Alace and
Canpelli, the fictitious names of the asylum seekers concerned by the
present case – although the Commission does not propose any exceptions for categories
of people in that country.
Summary of the AG opinion
The
context briefly discussed above, to which it may be added the fact that
pictures of the 40 asylum seekers handcuffed at the time of disembarkation in Albania
made the front
pages on Italian newspapers, could explain, at least in part, the reason
why the AG opinion is full of reference to non-legal considerations.
Indeed,
the opinion cites, for 4 times in total, the ‘high migratory pressure’ against
some Member States as one of the factors to take into due consideration in the
effort to advance a balanced interpretation of the relevant provisions of directive 2013/32
(the current asylum procedures Directive, which applies until the 2024 Regulation
takes effect).
From
a legal point of view, the balancing exercise transpires from the juxtaposition
of two concepts: one the one hand, that of the margin of discretion (and/or
appreciation) enjoyed by Member States when giving effect to the directive at
hand, cited 10 times in total; on the other hand, the doctrines of “effet
utile” and of the primacy of EU law, referred to in the opinion 6 times in
total.
Generally
speaking, the careful balancing of these competing legal concepts, coupled by
practical considerations regarding the State response to mass migration,
resulted in the nuanced replies given by the AG.
The first question
To
begin with, the AG noted that the first question, asking whether EU law
precludes a national legislature from designating a third country as a SCO by a
legislative act of primary law, ‘does not raise, in itself, any particular problem’.
The AG noted that directive 2013/32 does neither specify which national
authorities are competent for such designation, nor requires that the
designation is made with a specific instrument. To the contrary, the expression
‘legislation’, contained in Article 37(1) of the directive, ‘must be understood
in its broadest sense, as including acts of a legislative, regulatory or
administrative nature’. As a consequence, the AG acknowledged that, under the
principle of ‘institutional and procedural autonomy’, Member States enjoy ‘a
wide margin of discretion’ as regards the means and the procedures to be used
to proceed to the designation of SCOs. Such discretion encompasses the
possibility to proceed to the designation by means of primary legislation;
i.e., acts of Parliament. At the same time, the AG clarified that ‘the act by
which a Member State designates third countries as [SCOs] must not affect […]
the basic principles and fundamental guarantees set out in […] directive
2013/32, and in particular […] the right to an effective judicial remedy’ (see
AG opinion § 35-39, all translations from the original in Italian and French
into English are mine).
Thus, the AG replied to the first
question stating that:
‘Articles 36
and 37 of directive 2013/32 must be interpreted as not precluding Member States
from designating SCOs by means of legislative acts’. However, this is possible
only insofar as (i) the primacy of EU law is guaranteed; and (ii) the
obligations and the objectives of the directive are fully implemented’ (see §
39).
The second and the third
question
A
similar tension between the doctrine of the margin of discretion and the
overarching objective to ensure the full and consistent application of the
acquis communautaire throughout the European Union legal space permeates the
answer given to the second and the third question, regarding the need to make
publicly available the sources used to justify the designation of a country as
a SCO (second question) and the possibility, for the national judge, to assess
the designation by making use of information drawn independently from the
sources referred to in Article 37 and Annex I of directive 2013/32 (third
question). (The Annex defines the criteria to designate a country as a ‘safe
country of origin’)
At the outset, with a
clarification that was much needed after some confusion in the arguments made
by the parties (and, above all, by the Italian government and the intervening
Member States) during the hearing of 25 February, the AG stated that ‘these
questions do not concern the review to be carried out by [the] judicial
authority with regard to Article 36(1) of directive 2013/32, which requires the
rebuttal of the presumption of safety of a given country [designated as a SCO]
in a particular case where, as a result of a specific and detailed assessment
[…], it appears that that country is not safe due to the individual
circumstances of an applicant’ but rather the different issue of challenging
the general designation of a country as a SCO (see § 44).
That said, the answers of the AG
follow the reasoning applied with regard to the first question. Notably, the AG
reiterated that the designation of SCOs by means of primary legislation cannot
be construed as excluding the possibility to subject the designation to proper
judicial review, as required by Article 46 of the directive. Indeed, when they
proceed to the designation of SCOs under Article 37 of the directive, Member
States are implementing EU law. Thus, quite regardless from the means employed,
they must ‘ensure the respect of the substantive and procedural guarantees
established […] by EU law’. It is, therefore, ‘essential’ that ‘sufficient and
adequate publicity’ is given to the sources used by the national authorities to
proceed to the designation of a county as a SCO (see § 48-49).
The AG acknowledged that the
publication of the sources is not expressly required by the letter of directive
2013/32. However, he argued that such obligation can be inferred from a
‘systemic reading’ of the directive that takes into due account its overall
‘objectives’. Indeed, ‘the rebuttable nature of the presumption that a country
is safe’ implies that the asylum seekers
concerned as well as the national (judicial or administrative) authorities are
allowed to know the grounds relied on by Member States to proceed to the
designation of a country as a SCO with a view to guaranteeing their right to,
respectively, challenge and assess the legitimacy of such designation (see §
50-51 and 54-55).
The conclusion is confirmed in
the light of the general principle of the duty of cooperation (set out, with
specific regard to refugee law, in Article 4(1) directive 2011/95)
and the right to an effective remedy (guaranteed by Article 47 of the Charter),
which impose that asylum seekers and national courts are given access to all
relevant materials, including those allowing them to assess the possible
‘violation of the substantive conditions of [the] designation [of a country as
a SCO]’ (see § 56-59).
Yet, such a strong petition of
principle was not translated into an equally forceful practical answer. As a
matter of fact, in answering the third question, the AG gave different options
to Member States, arguing that they should include the sources as annexes to
the legislative act adopted to designate SCOs, or, alternatively, communicate
them at the request of the asylum seeker concerned and/or of the national
administrative or judicial authorities. Moreover, in answering the fourth
question, the AG held that ‘if the sources of information are not disclosed,
then the competent judicial authority may review the legality of [the]
designation [of a country as a SCO] in the light of the conditions set out in
Annex I to the directive on the basis of the sources that were gathered by the
judicial authorities among those listed in Article 37(3) of the directive’ (see
§ 62, 64, 65).
Admittedly, these answers may be
said to fail to curb all the uncertainties, as they leave several options open
to Member States who are unwilling to publish the sources on the basis of which
they proceeded to the designation of SCOs. Moreover, the answer to the fourth
question (and in particular the opening caveat ‘if the sources of information
are not disclosed’) is capable to undermine the answer to the third question
(which states that, anyway, the sources must be published).
Be
this as it may, this does not seem problematic in the specific case of Alace
and Canpelli, as the Italian government had already back-trailed on their
position and, with a decision
of 28 March 2025, had anticipated
the judgment of the CJEU by providing for the publication of the country
reports relied on for the purpose of the designation of SCOs.
The fourth question
The
last question, regarding the possibility to designate a country as a SCO
notwithstanding the existence of categories of persons for whom it does not
meet the substantive conditions for such a designation, was rightly identified
as the most complicated one, and has indeed prompted the AG to draft a very
nuanced reply.
Namely,
the AG came up with two possible solutions. The first, based on a ‘restrictive’
interpretation of Annex I to directive 2013/32, relied on the assumption that,
to be considered as such under EU law, a safe country must guarantee ‘all
nationals and stateless persons living there sufficient protection against the
risk of persecution or serious harm, regardless of the portion of the territory
in which they find themselves and [independent from] their race, nationality,
political [opinions] or religious beliefs, or […] their belonging to a specific
social group’. On the other hand, the second solution is meant to ‘allow
[Member States] to designate a third country as a SCO even though one or more
categories […] of individuals at risk […] have been identified’ (see § 68 and
70).
Between
the two, the AG concluded that the second option would seem the correct one.
The
reasons adduced to discard the first option seem more practical than legal.
Indeed, the AG borrowed the expression used by the Italian government in their
oral arguments and stated that such a restrictive interpretation of the concept
of SCO under EU law would be ‘idealistic’ and would undermine the practical
effect of directive 2013/32 insofar as it would prompt ‘Member States to treat
all the requests advanced by citizens [coming] from those countries under the
ordinary procedure, even though the overwhelming majority of those asylum
seekers do not have any real need of international protection’. According to
the AG, this would result in a ‘procedural congestion’ all the more intolerable
in ‘a context characterised by a strong migratory pressure’ (see § 70).
In
essence, this seems to be the reason prompting the AG to favour the second
solution, albeit, as the AG himself did not fail to point out, this may be seen
as being at odds with the findings of the CJEU in case
C-406/22 (last year’s judgment in which the CJEU interpreted the currently
applicable Directive to mean that Member States could not designate part
of a country of origin as ‘safe’).
To
overcome the contradiction, the opinion argued that the second option is
grounded in (i) the letter of Annex I to directive 2013/32; (ii) the systematic
reading of the relevant EU legislation; and (iii) its purpose.
Before addressing this
three-pronged argument, however, the AG resorted, once again, to ‘pragmatic’
considerations, stating that ‘in the event that the asylum system of a Member
State is under strong migratory pressure and [faces] a high proportion of
manifestly ill-founded applications lodged by nationals from [SCOs]’, the
second option ‘would [represent] a balanced solution which would make it
possible, on the one hand, to […] expedite the examination of those
applications [and, on the other hand,] to ensure [that] all applications
[receive] appropriate treatment in accordance with the provisions of directive
2013/32’ (see § 71-72).
Having
said that, the opinion focusses on the letter of Annex I, and specifically on
the interpretation of the adverb ‘generally’ (included in the formula ‘a
country is considered as a safe country of origin where […] it can be shown
that there is generally and consistently no persecution […], no torture or
inhuman or degrading treatment or punishment and no threat by reason of
indiscriminate violence in situations of international or internal armed
conflict’). According to the AG, the adverb ‘generally’ refers to ‘an event, a
fact or any other circumstance which manifest itself in the majority of cases
or […] which is applicable to a really wide number of persons, without taking
into account particular cases’. It, then, follows that, ‘from a literal point
of view, a third country may be designated as a SCO if it is demonstrated […]
that it protects, not each of its nationals but, the majority of them’. In this
scenario, as it had been argued by the Italian government, the second option
would also be confirmed by the text of Whereas 42 of directive 2013/32 (see §
78-79).
This
argument is reinforced by a systematic argument regarding the dichotomy between
general and specific considerations underpinning directive 2013/32. In the
opinion of the AG,
‘if [EU law] requires the competent national
authorities to depart (ex post) from the presumption of the safety of a country
whenever they determine, as a result of an individual examination […], that the
person concerned may, by reason of his individual circumstances, be exposed to
a risk of persecution or serious harm in his or her country of origin, then
[there is] no valid reason why a Member State should not decide, as a result of
the general assessment of that country, to exclude (ex ante) from the scope of
that presumption the category or categories of persons whom it has […]
identified as being at risk’ (see § 81).
Finally,
the second solution is said to fit the purpose of the directive, which is to
allow Member States to ‘speed up the procedure […] every time that a request
for international protection may be ill-founded’. From a wider perspective,
this is also confirmed by the consideration of the ‘margin of appreciation’
enjoyed by EU Member States when enacting the directive. Moreover, in reaching
this conclusion the opinion also relies on the new provisions of regulation 2024/1348,
which, at Article 61(2), explicitly allows for the possibility to designate a
country as a SCO even though there exist categories of individuals at-risk. As
a matter of fact, and even though the new regulation will become applicable
only as of 12 June 2026 (unless the Commission’s recent proposal to bring
forward parts of it is adopted beforehand), the AG noted that it would be
‘paradoxical’ to prevent Member States from using this possibility at a moment
in which they are called to ‘adequately prepare to implement’ the new
regulation, including Article 61(2) (see § 83, 85, 94).
At
the same time, the AG seemed to be conscious of possible abuses, and indeed
strived to place clear limitations to the implementation of the second option
by requiring that these categories are ‘limited’ and ‘clearly identifiable’. In
general terms, the need for a qualified application of the personal exceptions
to the designation of SCOs is predicated on the assumption that the margin of
appreciation, or discretion, of Member States is limited by EU law and by the
principle of proportionality. As a result, the use of discretion can never
‘impair the general objectives of directive 2013/32’ (see § 85-87 and 93).
As
a consequence, Member States must ‘confine [such] personal exceptions to a very
limited number of persons’. Otherwise, the very operation of the presumption of
safety would be questionable. In other words, if a given country is designated
as a SCO notwithstanding the identification of numerous categories of people
that may be exposed to the real risk of persecution of serious harm (as for
example, all members of the LGBTQIA+ community), then the concept of safe
country of origin would be tantamount to a ‘legal fiction’ (see § 70 and
91-92).
Based on this (quite balanced and
nuanced) reasoning, the opinion concluded that
‘Articles 36 and 37(1) of, and Annex I to,
Directive 2013/32 must be interpreted as not precluding a Member State from
designating a third country as a safe country of origin for the purposes of
examining applications for international protection, while at the same time
identifying limited categories of persons as potentially exposed to a risk of
persecution or serious harm in that country, provided that on the one hand,
that the legal and political situation in that country characterises a
democratic regime under which the population enjoys, in general, durable
protection against that risk and, on the other, that Member State proceeds
accordingly to expressly exclude those categories of persons from the
application of the concept of safe country of origin and the presumption of
safety attached to it’ (see § 95).
Final
considerations
Few
conclusive remarks further highlight the very nuanced nature of the AG opinion.
This
is particularly evident as regards the first three questions, the answers to
which really give the impression of a balancing exercise between the position
of the Italian government (and the intervening Member States) and that of the
defence. Indeed, the AG validated the practice to designate SCOs by means of
primary legislation while at the same time making it very clear that this
practice cannot be invoked in order to undermine the guarantees set out at EU
level.
All
in all, the AG found a workable compromise
between the legal concepts of the margin of discretion/appreciation and the
fundamental principle of the consistent application of the acquis communautaire
and its supremacy over national law.
On
the facts of the case, this approach resulted in a very careful stance toward
what seems to be the crux of the questions. Indeed, the AG does not mention the
possibility to file a challenge of constitutionality with the Italian
constitutional court, which was forcefully put forward by the Italian
government as the effective remedy provided by the domestic legal system to
question the designation of a country as a SCO. In so doing, the opinion
confirmed that the judicial review over the legislation enacting the provisions
of directive 2013/32 must be performed by the judge of the case, including
first-instance judges. At the same time, the AG opinion does not go as far as
stating that the national judge is empowered to disapply national legislation
in case of non-compliance with the provisions of the directive. Rather, the
multiple references to the doctrine of “effet utile” seem to favour the
interpretation that, as I had already argued, the case at hand concerns
provisions of EU law lacking direct effect.
Still,
the answers to the first three questions seem to find a reasonable balance
between legal and non-legal considerations. Unfortunately, it seems that one
could argue that the matter is different with regard to the answer to the
fourth question, as it appears that the option to favour the solution allowing for
personal exceptions to the designation of SCOs is grounded on ‘pragmatic’
considerations more than on sound legal reasoning.
In
particular, this seems to be the case as regards the literal argument employed
by the AG, which focusses on the term ‘generally’, but completely overlooks the
other adverb in the hendiadys; that is, in the English version of the
directive, ‘consistently’. According to the English dictionary, consistently
means ‘in every case or on every occasion; invariably’. Therefore, it seems
that the literal meaning of this term would rather support a more restrictive
interpretation of Annex I; i.e., the interpretation excluding the possibility
to designate as SCO a country which is not safe for specific categories of
persons.
True,
the opinion justified this approach by making reference to some inconsistencies
in the different language versions of Annex I to directive 2013/32. However,
the language versions that I have examined (i.e., the English version, that
says ‘generally and consistently’; the French version, which states ‘d’une
manière générale et uniformément’; and the Italian version, in which these
terms are translated as ‘generalmente e costantemente’) seem to have the same
meaning.
Also
the reference to recital 42 in the preamble to directive 2013/32 may be said to
cause raised eyebrows. In fact, when taking into due account the distinction
(highlighted by the AG at § 44 of his opinion) between a (more specific) challenge
to the application of the concept of SCO to a given case, and a (more general)
challenge to the designation in itself, it seems that recital 42 refers to the
latter question, while the matter addressed in the fourth question pertains to
the second.
Finally, the argument regarding
the future application of Article 61(2) of regulation 2024/1348 appears to be
contradicted by the latest proposal from the EU Commission. Indeed, when the
Commission proposes to ‘bring forward’ the application of the personal and
territorial exceptions provided in the new legislation, it seems to imply that
the EU legislative framework as it currently stands does not allow for such
exceptions.
Hopefully, these aspects will be
clarified by the CJEU in the judgment, which is expected before the summer.
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