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.
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