Wednesday, 30 April 2025

Pirates of the Mediterranean meet judges of the Kirchberg: the CJEU rules on Malta’s investor citizenship law

 




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

Photo credit: Aldo Ardetti, via Wikimedia Commons

*Thanks to Justin Borg-Barthet for corsair quote

**This blog post builds on research for the upcoming third edition of The EU Citizenship Directive: A Commentary, by Elspeth Guild, Steve Peers and Jonathan Tomkin (OUP, 2026)

 

Defending his country’s investor citizenship policy, a former Prime Minister of Malta once defined his homeland as a nation of ‘corsairs’, offering an explanation based on the legality (or not) of buccaneering behaviour:

“The difference between pirates and corsairs is that pirates do things illegally while corsairs have a license to do things that are on the brink of what is acceptable by the mainstream.”

Nevertheless, the Court of Justice of the EU has now ruled that the Maltese investor citizenship policy is a breach of EU law. So the Maltese government are pirates after all. Or are they? Is the real swashbuckling lawlessness here in fact the foray of the Luxembourg judges deep into the waters of Member States’ powers, to seize as treasure national competence which is plainly not theirs?

Background

According to the Declaration on nationality of a Member State, attached to the original TEU (the Maastricht Treaty):

The Conference declares that, wherever in the Treaty establishing the European Community reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned. Member States may declare, for information, who are to be considered their nationals for Community purposes by way of a declaration lodged with the Presidency and may amend any such declaration when necessary.

The point was reiterated in the ‘Edinburgh Decision’ of Member States a few months later:

The question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned.

Earlier in 1992, the CJEU gave its first ruling that fully addressed the issue: Micheletti. In this case, a national court asked the CJEU whether a dual citizen of a non-EU country and an EU Member State could rely upon EU free movement law, even though another Member State had doubts that his Member State nationality (acquired via his parents’ nationality) sufficed to entail a genuine link with that Member State, given that his previous residence was outside the EU.

The Court of Justice responded by referring to Member States’ power to define their nationality, with an ensuing obligation of mutual recognition by other Member States:

Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality. However, it is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty. [emphases added]

It followed that:

…it is not permissible to interpret Article 52 of the Treaty [now Article 49 TFEU] to the effect that, where a national of a Member State is also a national of a non-member country, the other Member States may make recognition of the status of Community national subject to a condition such as the habitual residence of the person concerned in the territory of the first Member State.

In the Court’s view, ‘this conclusion is reinforced by the fact that the consequence of allowing such a possibility would be that the class of persons to whom the Community rules on freedom of establishment were applied might vary from one Member State to another’.

Despite the reference to ‘international law’ in the context of a Member State granting or removing its own nationality, the Court implicitly rejected the approach of international law as regards judging whether another Member State’s nationality had to be recognised. In particular, the ICJ’s Nottebohm judgment had previously stated that countries could disregard another country’s nationality if there was no ‘genuine connection’ with that country. (The Advocate General’s opinion in Micheletti expressly argued that Nottebohm was not relevant).

Moreover, the throwaway reference to Member States’ power to define their nationality being subject to the proviso of ‘having due regard to Community law’ was eventually clarified. Starting with the 2010 judgment in Rottmann, the CJEU ruled that a Member State’s decision to deprive its citizens of its nationality was not unlimited, despite the declaration and decision of 1992, because that resulted in the loss of citizenship of the EU:

It is clear that the situation of a citizen of the Union who, like the applicant in the main proceedings, is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article [20 TFEU] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law.

The Court qualified its prior judgment in Micheletti:

The proviso that due regard must be had to European Union law does not compromise the principle of international law previously recognised by the Court, and mentioned in paragraph 39 above, that the Member States have the power to lay down the conditions for the acquisition and loss of nationality, but rather enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, as is in particular the case of a decision withdrawing naturalisation such as that at issue in the main proceedings, is amenable to judicial review carried out in the light of European Union law.

Having established that deprivation of nationality was within the scope of EU law, the Court went on to say that there was no breach of EU law in doing so in this case, given the international measures that refer to the prospect of deprivation of citizenship in case of fraud (referring to the Council of Europe Convention on Nationality and the UN Convention on the Reduction of Statelessness, and also to the Universal Declaration of Human Rights as regards arbitrary deprivation of nationality).

The Rottmann judgment led inevitably to further case law, given the importance of deprivation of nationality to any individuals facing it: Tjebbes (discussed here); C-118/20; C-689/21; and C-684/22. Broadly speaking, this case law is generally deferential to Member States’ decisions to deprive citizens of their nationality, but subject to some limits, particularly a need for a legitimate interest (criminal offences, absence from the territory, dual citizenship) as well as the principle of proportionality and the guarantee of procedural rights. (Note that British citizens’ loss of EU citizenship due to Brexit was not subject to this case law, because that loss followed from the UK choosing no longer to be a Member State – as confirmed by the CJEU in 2022 (see discussion here))

On the other hand, the Court did not have the opportunity to clarify whether there were also limits imposed by EU law on Member States’ rules on acquisition of their nationality – until the Commission challenged the Maltese rules on investor citizenship, on the grounds that they amounted to selling the nationality of a Member State (and therefore EU citizenship) to people who lacked a sufficient link to that Member State.

The Commission v Malta judgment

The Court’s ruling starts by addressing the Maltese government’s argument that the constraints set by EU law on acquisition of Member States’ nationality are much less than the constraints on deprivation of nationality: they should ‘be limited to a finding of significant breaches of the values or objectives of the European Union, which are general and systematic in nature’. In the Court’s view ‘[t]here is nothing in the wording or the scheme of the Treaties to support the inference that their authors intended to lay down, as regards the grant of the nationality of a Member State, an exception to the obligation to comply with EU law’ only in such cases. Moreover, ‘such an exception cannot be accepted since it would amount to a limitation of the effects attaching to the primacy of EU law, which falls within the essential characteristics of EU law and, therefore, within the constitutional framework of the European Union’.

The Court then moves to the Commission’s argument that Malta had infringed Article 20 TFEU (the definition of EU citizenship, based on holding the nationality of a Member State) and Article 4(3) TEU (the EU law principle of sincere cooperation). The judgment points out that the Treaties aim to ensure free movement of people, in conjunction with the principle of mutual recognition. Next, the Court refers to the political participation elements of EU citizenship, by which ‘Union citizens participate directly in the democratic life of the European Union’; the EU’s ‘functioning is founded on representative democracy, which gives concrete expression to democracy as a value, which is, under Article 2 TEU, one of the values on which the European Union is founded’ (citing its recent judgment on EU citizenship and membership of political parties, which I discussed here). According to the Court:

It follows that the exercise by the Member States of their power to lay down the conditions for granting their nationality has consequences for the functioning of the European Union as a common legal order.

The Court also refers to the Treaty provisions on consular protection of EU citizens. Then:

It is in the light of those various rights that the Court has held that the provisions relating to citizenship of the Union are among the fundamental provisions of the Treaties which are part of the framework of a system that is specific to the European Union and which are structured in such a way as to contribute to the implementation of the process of integration that is the raison d’ĂȘtre of the European Union itself and thus form an integral part of its constitutional framework…

Next, the Court repeats its long-standing catchphrase that ‘Union citizenship constitutes the fundamental status of nationals of the Member States’, providing reasoning for that conclusion: ‘in the light both of the scope of the rights attaching to Union citizenship…and of the fact that that status derives automatically from the fact of being a national of a Member State’.

Therefore:

Union citizenship is thus one of the principal concrete expressions of the solidarity which forms the very basis of the process of integration…and which is an integral part of the identity of the European Union as a specific legal system, accepted by the Member States on a basis of reciprocity

And it follows that:

The exercise of the Member States’ power to lay down the conditions for granting the nationality of a Member State is not, therefore, in the same way as their power to lay down the conditions for loss of nationality, unlimited. Union citizenship is based on the common values contained in Article 2 TEU and on the mutual trust between the Member States as regards the fact that none of them is to exercise that power in a way that is manifestly incompatible with the very nature of Union citizenship.

The Court then reiterated (based on prior case law) that ‘the bedrock of the bond of nationality of a Member State is formed by the special relationship of solidarity and good faith between that State and its nationals and the reciprocity of rights and duties’, extending that to entail a principle underlying EU citizenship:

In the same vein, it is clear from the very wording of the first sentence of Article 20(2) TFEU that citizens of the Union are to enjoy the rights and be subject to the obligations laid down in the Treaties. In accordance with Article 20(1) TFEU, the special relationship of solidarity and good faith between each Member State and its nationals also forms the basis of the rights and obligations reserved to Union citizens by the Treaties.

When defining that ‘particular relationship of solidarity and good faith…the definition of the conditions for granting the nationality of a Member State does not fall within the competence of the European Union, but within that of each Member State, which has a broad discretion in the choice of the criteria to be applied, provided that those criteria are applied in compliance with EU law’.

But as the Court had already noted, that national discretion was not unlimited, but was subject to EU law. Crucially, then, the Court asserts that:

…a Member State manifestly disregards the requirement for such a special relationship of solidarity and good faith, characterised by the reciprocity of rights and duties between the Member State and its nationals, and thus breaks the mutual trust on which Union citizenship is based, in breach of Article 20 TFEU and the principle of sincere cooperation enshrined in Article 4(3) TEU, when it establishes and implements a naturalisation scheme based on a transactional procedure between that Member State and persons submitting an application under that programme, at the end of which the nationality of that Member State and, therefore, the status of Union citizen, is essentially granted in exchange for predetermined payments or investments.

A programme of that sort 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.

The Court then recalls the mutual recognition principle from Micheletti, expressing its concern in that context:

Transactional naturalisation, which is granted in exchange for predetermined payments or investments, is not only contrary to the principle of sincere cooperation, but is also liable, by its nature, to call into question the mutual trust which underlies that requirement of recognition, since that trust relates to the premiss that the grant of the nationality of a Member State must be based on a special relationship of solidarity and good faith justifying the grant of rights resulting, in particular, from Union citizenship.

Diving into the specific rules of the Maltese investor citizenship scheme, the Court states that three of the five rules are essentially based on forms of cash payment. Although the fourth condition requires ‘legal residence in Malta for a period of 36 months’, the Court dismisses this as being, in effect, a Potemkin village: in practice, ‘that condition does not amount to a requirement of actual residence in the territory, since the physical presence of the applicant on that territory is required only when biometric data are collected in order to obtain the residence permit and to take the oath of allegiance’. This conclusion was reinforced by the opportunity to reduce the residence requirement to 12 months in return for further cash payments, and by comparison to the more stringent rules – entailing longer and genuine residence – which apply to the ‘ordinary’ naturalisation procedure of Malta. As for the final condition – a series of suitability checks in the public interest – the Court takes the view that they do not alter the essentially commercial nature of the sale of citizenship.

Finally, the Court dismisses Malta’s argument that its investor citizenship scheme ‘takes into account certain connecting factors on the part of the applicants’, in particular links via investments and possible future links after obtaining nationality. In the Court’s view: there was no evidence that the scheme ‘provides for a specific and concrete examination of the relevance of certain investments in order to establish the existence and extent of an applicant’s ties with the Republic of Malta, or to enable the development of such links with that Member State, distinct from’ examining whether an applicant meets the criteria; the prospect of deprivation of nationality after granting it was limited in scope; and the scheme was sold as conferring free movement rights in any Member State. Although Malta denied responsibility for how private parties sold the scheme, the Court points out that it had authorised them to act on its behalf – so (implicitly) had the power to prevent them from adopting these sales techniques, but failed to use that power. So, as a sales pitch, Malta was not really selling its nationality – it was selling citizenship of the European Union. And (implicitly again) Malta was not linking its nationality to its territory – it was linking it to being somewhere else in the EU instead.

Comments

I’ll start with the specific issues arising from the judgment (the impact on investor citizenship schemes) and move to the general (the impact on EU citizenship and the nature of the EU legal order more broadly).

Investor citizenship schemes

Several questions arise here. First of all, what happens to those who have already obtained citizenship under the Maltese scheme? Is Malta now obliged to yeet the rich?

Secondly, can Member States now refuse to recognise another Member State’s citizenship, if it has been obtained via means of an investor citizenship scheme that breaches EU law? Thirdly, would any system of investment citizenship by a Member State necessarily breach EU law?

Fortunately, immigration lawyer Simon Cox has already mused over these issues. On the first point, he points out that Malta did not ask the Court to limit the temporal effect of its ruling, so arguably it applies to citizenship already granted on the basis of the illegal scheme. Although, as he notes, Member States may not be keen to rescind citizenship already granted, other Member States have done so in similar circumstances (I would add that the CJEU case law on deprivation of nationality, mentioned above, would likely accept this on public interest grounds). But for those Member States reluctant to deprive investors of citizenship, it is possible that the CJEU may be asked to rule on this point – either if the Commission seizes the Court again, or if a Maltese court (perhaps seized by an NGO opposing the national scheme) asks the Court questions about the consequences of its judgment in that Member State.

But can another Member State now refuse to recognise the investor citizenship granted by Malta? The judgment touches on that point but very ambiguously, noting that a transactional citizenship rule is ‘liable, by its nature, to call into question the mutual trust’ underpinning EU citizenship, without answering the implied question of whether it is legal to do so. There’s a practical question of how to identify the Maltese citizens in question: presumably their passports are not literally golden. Perhaps immigration officials could profile those Maltese citizens who are flashing the biggest Rolexes and surrounded by the youngest women.

Assuming Member States do this, it should not be assumed, in light of the Court’s ambiguity, that it has overruled its long-standing judgment in Micheletti. Where the Court wishes to reverse its prior judgments, it does so explicitly (see, for instance, Metock: ‘It is true that the Court held [an absurd interpretation of free movement law in a previous judgment]….However, that conclusion must be reconsidered.’) In any event, in my view, the Micheletti judgment was and remains rightly decided on the mutual recognition point: the ICJ’s Nottebohm judgment was, with respect, poorly reasoned (paying insufficient account to the basic international law principle of state sovereignty), and it is hard to see how EU free movement law could function if Member States are second-guessing who is validly a national of another Member State. Above all, Member States had already made it clear (in the 1992 declaration and decision) that in the context of EU law, it was up to each of them – not other Member States – to determine who their nationals are.  

What about alternative versions of investor citizenship? Certainly the general tone of the judgment is one of disgust for commercialisation of EU citizenship in general. But as Simon Cox points out, the judgment also seems to suggest that a genuine residence requirement would overcome the Court’s revulsion. A less blatant sales pitch might help too. We can only speculate how long the super-rich would have to endure the inconvenience of mooring their yachts in Valetta for, to satisfy the Court – because it only told us that the current Maltese law was insufficient, without detailing which alternative would be legal.

EU citizenship and the EU legal order

This train already left the station with the Rottmann judgment 15 years ago, but it bears saying again, as the Court confirms that this case law applies to also the acquisition of Member State nationality: this whole line of judgments, with respect, has no basis in the wording of the Treaties or EU legislation. Not only is there no reference to any EU law constraints on Member States’ nationality law in the Treaties, the 1992 declaration and decision make absolutely clear that Member States interpret the Treaty to mean that nationality of a Member State is defined solely by national law.  

The Court’s specific rationales for rejecting Malta’s proposed high threshold for EU law constraints on acquisition of Member State nationality throw more flimsy fuel on this unconvincing fire. Yeah, of course the authors of the Treaties said nothing about an exception from EU law as regards acquisition of Member State nationality – because they said nothing about EU law applying to Member States’ nationality law in the first place. In fact, the 1992 declaration and decision clearly state that the authors of the Treaties believe EU law doesn’t apply to Member States’ nationality law at all. “We are very concerned about what the authors of the Treaties wrote” says the Court – while ignoring what the authors of the Treaties actually wrote on this very issue. This is simply judicial gaslighting.

As for the primacy of EU law, this is just confused. Even assuming one agrees with the Court’s conception of the primacy of EU law, it is a means of enforcement of EU law in the event of a conflict with national law. That primacy tells us nothing about what the scope or substance of EU law is – whether it applies at all to the acquisition of national citizenship, and if so what constraints it places upon those rules.

I have to say that if I read this reasoning on an EU law exam, the student would get nowhere near a 2:1.

Having said that, the judgment is what it is. We cannot avoid having to grapple with the Court’s explication of how it conceives of EU citizenship, and what that might mean more generally. And here, despite the weak foundations of its demand to set constraints upon national citizenship, the Court develops many interesting principles.  

The prior case law on the deprivation of Member States’ nationality was focussed on what the consequent loss of EU citizenship might mean for the individual concerned, particularly as regards free movement. But as regards acquisition of nationality, in this judgment at least the Court is not concerned about the impact on the individual. It is not even wholly focussed – as you might reasonably expect of the sale of nationality as a means to free movement – on the impact on other Member States. Rather it focusses in many respects on the impact for the European Union.

And what a European Union that is. As in the earlier case law, the Court mentions free movement aspects of citizenship, but it now adds references to consular protection and especially political rights. Coupled with the Court’s disdain for the sale of nationality, it seems that in this judgment, EU law is no longer founded on the internal market; it is now based on the internal marketplace of ideas. 

The Court does not mention the rather inconvenient fact that EU citizens face financial thresholds to exercise free movement rights: benefit recipients can move from Hamburg to Hanover, but not from Bucharest to Bremen. While EU free movement law is more generous than the usual immigration law for those of modest means, it is still more stringent than the rules applying to citizens of a Member State moving within it – on financial grounds. The Court is Captain Renaut in Casablanca: shocked, shocked to find that citizenship rights are dependent on money in here.

The judgment also links EU citizenship to democracy and the values of the EU, asserting an impact of Member States’ rules on acquisition of nationality upon ‘the functioning of the [EU] as a common legal order’, and ‘the identity of the [EU] as a specific legal system’. This stress on the legal nature of the EU reads like an attempt at fashioning constitutional patriotism by bloodless legal technocrats; and it is inevitably undermined by the profound weaknesses of the Court’s legal reasoning as regards the existence of EU constraints upon Member States’ nationality law.

But there’s a broader stress on non-legal values here too. The overall vibe is of a court preparing itself with arguments to defend the rule of law and other EU values – despite contrary developments in one country across the Atlantic and, more cogently, certain Member States. We shall soon see how this might play out in the pending case about EU values and Hungarian LGBT restrictions. And, circling back to Member State nationality, it is hard to see how the Hungarian government’s plan to suspend the Hungarian nationality of dual citizens who are insufficiently orgasmic about Orban could possibly be compatible with EU law in light of this new judgment.

One issue is notable by its absence from the Court’s reasoning: the argument that the rules on acquisition of nationality of a Member State are an aspect of national identity, which the Treaties explicitly require the EU to respect – even though Malta argued the point. It’s a strong argument in general terms, but its strength may differ in separate cases. There’s obviously a better case for (say) the grant of Irish nationality to (most of) those born in Northern Ireland as being intrinsically linked to the history and identity of Ireland, than there is for the souvenir shop citizenship of the Maltese law in this case. But the Court should nonetheless have answered the objection.

Conversely, the Court explicitly uses this judgment as a vehicle to express itself on the ‘identity’ of the European Union: as we have seen already, as a ‘specific legal system’. Presumably the specificity of this legal system explains – although again the Court avoids saying this directly – why the judgment implicitly rejects the Commission’s argument that Member States must base their nationality law upon a ‘genuine link’ with the country (echoing international law), and instead develops an EU-specific set of principles. (The break with international law is another point of divergence with the case law on deprivation of citizenship; perhaps it didn’t help that the Advocate-General’s opinion inaccurately claimed that the Council of Europe Convention has no rules on acquisition of nationality).   

Rather, the basis for the EU law rules on the acquisition of Member State nationality is the ‘special relationship of solidarity and good faith between each Member State and its nationals’; and the test is apparently whether a particular national rule is ‘manifestly incompatible with the very nature of Union citizenship’. Applying that test, ‘a Member State manifestly disregards’ this requirement when it sells its nationality on a commercial basis. Note that the Court does not say that this would be the only type of rule on acquiring nationality which is, in its view, incompatible with EU law.

What might this mean in other cases? Simon Cox’s blog post usefully points out some examples of other rules which might be challenged as a barrier to acquiring nationality (rather than, as in this case, making it too easy to obtain in some cases). He refers to high fees and education requirements; I would add that, by analogy with the case law on loss of citizenship, EU law may give applicants for nationality procedural rights too. And the link the Court makes with the values of the EU should, for example, preclude any practice (as in Trump’s USA) of refusing citizenship based on criticism of the actions of a foreign government – still less arresting the applicant at a citizenship interview with a view to deporting him.

Conclusion

This is the Alien v Predator of constitutional moments. I’m equally unimpressed by both the arrogant Eurofederalism of the Court and the fridge-magnet nationalism of the Maltese government. But what, in an ideal world, would be the best way forward?

There’s certainly a case, given the impact of the grant of nationality upon other Member States, of some form of coordination of nationality law within the EU. This would also be consistent with the logic of declaring the existence of citizenship of the European Union: why should the notion of citizenship be subject to no common rules at all?

But the development of such principles needs to be consistent with the rule of law, not the Court’s untenable interpretation of the 1992 decision and declaration. I doubt that there is much prospect of a Treaty amendment to confer competence upon the EU in this field: Orban may be many things, but he is not a turkey who would vote for Christmas. As things currently stand, principles could be agreed on the basis of soft law, or even treaties between Member States, on the basis of a ‘coalition of the willing’ if need be.

As I doubt that such a coalition will be easily forthcoming, I think we will be stuck with the development of legal principles in this field based on further elaboration of the Court’s judicial activism for the foreseeable future.  Time will tell whether the Court’s judgment is an anomaly – a reaction to a particularly egregious national policy in the context of broader allegations of corruption – or a key part of further case law on nationality law in particular and the EU legal order in general. 

To adapt the words of a famous on-screen pirate, look at the Court: they are the captain now.

Skirting the Fault Line? AG Richard de la Tour’s Opinion in the Wojewoda Mazowiecki case: EU law requires registration of same sex marriages only when no alternatives exist


 

Helga Luku, PhD researcher, University of Antwerp

Photo credit: Jakub Halun, via Wikimedia commons

On the 3rd of April 2025, Advocate General (AG) Richard de la Tour delivered his Opinion in C-713/23, Wojewoda Mazowiecki, concerning the recognition and entry in a civil register of a foreign certificate of marriage between persons of the same sex. While aiming to comply with the division of competences between the EU and Member States, AG Richard de la Tour took a pragmatic approach by opining that the EU law does not oblige Member States to register foreign same-sex marriage certificates when they provide alternative means to ensure recognition and protection of same-sex couples. However, where no alternative form of recognition exists, Member States are obliged to register foreign same-sex marriage certificates in their civil registry.

Facts of the case

In 2018, Mr Jakub Cupriak-Trojan, a Polish and German national,  and Mr Mateusz Trojan, a Polish national, got married in Berlin. They currently reside in Poland. After their marriage, Mr Cupriak-Trojan decided to add to his birth name, in accordance with German law, the surname of his spouse. Upon the request of Mr Cupriak-Trojani, the Head of Civil Registry Office of Warsaw reflected this change in his birth name in Poland as well.

In 2019, the Head of the Civil Registry Office of Warsaw, where the birth certificates are held, refused to transcribe the German marriage certificate of Mr Cupriak-Trojan and Mr Trojan on the grounds that Polish law does not allow same-sex marriages and the transcription of such a certificate would be contrary to the fundamental principles of the Polish legal order. This decision was upheld by other Polish authorities and courts until the case reached the Supreme Administrative Court of Poland.

The latter subsequently referred a preliminary question to the Court of Justice (ECJ) asking whether EU law (Articles 20, 21 TFEU, Article 21(1) of the Charter of Fundamental Rights of the EU and Directive 2004/38) should be interpreted as precluding Member States from refusing to recognise a same-sex marriage and transcribe a foreign marriage certificate into the national civil registry when it prevents those persons from residing in that Member State as a married couple, on the ground that the law of the host Member State does not provide for same-sex marriage?

Opinion of Advocate General Richard de la Tour

The analysis of the AG Richard de la Tour started in the classical way by pointing out that under the current state of EU law, the status of persons is a matter falling within the competence of the Member States and EU law does not affect that competence.  However, when exercising that competence, Member States must comply with EU law, particularly with the free movement rights of Union citizens.

AG Richard de la Tour opined that the absence of any recognition in one Member State of the marital relationship established between two persons of the same sex registered in another Member State creates a restriction on the exercise of the right deriving from Article 21(1) TFEU. Thus, the applicants who are both Union citizens and whose situation falls within the scope of EU law must be able to reside and move freely within the territory of the Member States as well as when they return to their Member State of origin, while being recognised as married persons.

Referring to Article 7 of the Charter and its alignment with Article 8 ECHR, the AG invoked the case law of the European Court of Human Rights (ECtHR). The latter has interpreted Article 8 ECHR as requiring Member States to ensure legal recognition and protection of same-sex couples by putting in place a ‘specific legal framework’. While putting that conclusion in the EU law context, the AG Richard de la Tour reasoned that it is for the Member States, where they do not provide for, or even prohibit, the institution of marriage between persons of the same sex in their national law, to establish appropriate procedures for the recognition of ties established in another Member State.

At this juncture, the AG framed an important question: under what conditions, according to EU law, can a Member State be required to register a same-sex marriage in its civil registry, even if its national legal framework neither permits the conclusion of such marriages on its territory nor provides for the registration of same-sex marriages concluded in another Member State—regardless of whether one of the spouses holds the nationality of the Member State in question?

In the view of the AG Richard de la Tour, as long as Polish national law does not offer any alternative form of recognition for same-sex couples, it is consequently obliged to transcribe the foreign marriage certificate into its civil register. The obligation to register a foreign marriage certificate does not apply where the marriage’s effects are otherwise ensured, and it is for each Member State to define the appropriate means of guaranteeing the right to respect for the private and family life of same-sex couples.

In conclusion, AG Richard de la Tour held that Articles 20 and 21(1) TFEU, in light of Article 7 of the Charter, do not require a Member State to transcribe a same-sex marriage certificate lawfully issued in another Member State, provided that alternative forms of recognition are available. However, they preclude national laws or practices that deny any form of recognition of such marriages solely because same-sex marriage is not permitted under domestic law.

Comment

Once again, the Court of Justice has been called to address the contentious issue of same-sex marriage recognition within the European Union. In the present case, Wojewoda Mazowiecki (C-713/23), the ECJ is asked whether a Member State must record in its civil registry a same-sex marriage legally concluded abroad, even if national law does not recognise such unions.

At first glance, the facts echo those of Coman in 2018 (on the application of free movement law to same sex marriages, discussed here), but the present case is different, as both applicants- a same-sex couple- are Union citizens. As such, their right to move and reside freely within the EU is not contingent upon the recognition of their marriage for the purpose of family reunification under free movement provisions.

Notably, this element (i.e. both of them being Union citizens) influenced the Opinion of AG Richard de la Tour, which did not centre its analysis on free movement rights but rather anchored its reasoning in the fundamental right to private and family life, guaranteed by Article 7 of the Charter. When interpreting Article 7 of the Charter and Article 8 of the ECHR, AG Richard de la Tour drew upon the case law of the ECtHR -(Przybyszewska and Others v. Poland, Fedotova and Others v. Russia, Orlandi and Others v. Italy and Formela and Others v. Poland) - which has established that contracting States are required to provide a "specific legal framework" for the recognition and protection of same-sex unions. Nevertheless, the ECtHR does not impose a direct obligation on Member States to recognise same-sex marriages.

A few key points in the Opinion of AG Richard de la Tour are particularly significant for understanding the broader legal implications of the case.

Firstly, the right of same-sex spouses to lead a family life without encountering administrative obstacles relates specifically to the exercise of rights provided for spouses by national legislation (para. 43). Meanwhile, as regards rights deriving from EU law, a Union citizen does not have to prove that he or she has the status of married person in order to move and reside freely within the territory of the Member States (para.42). Thus, the applicants’ approach may be interpreted as an attempt to reinforce their reliance on free movement rights by invoking additional protection and benefits granted to spouses under national law. This understanding is further supported by their request during the hearing of the case to have their marriage certificate transcribed into the civil register, thereby enabling them to prove their status as spouses, specifically in Poland. Rightfully, one may ask whether the issue of recognition of such a same-sex marriage would have reached the ECJ if Polish law had provided an alternative form of recognition, such as registering them as a civil union, given that the latter would result in the downgrade of their relationship status and rights. AG Richard de la Tour appears to overlook this issue in his Opinion.

Secondly, the Opinion of AG Richard de la Tour in this case seems to reflect a fragmented approach towards the recognition and registration of civil status elements. He interpreted the ECJ’s case law as distinguishing between familial ties – such as marriage and parenthood – which must be recognised only for the purpose of exercising EU-derived rights, and identity-related matters – such as name or gender changes – which, following the Mirin judgment, must be recognised and entered into civil registers without such a limitation (para. 28, 29, 30). The ECJ has held that ‘like a name, gender defines a person’s identity and personal status’, and the refusal in one Member State to recognise changes to them obtained by a Union citizen in another Member State is liable to cause ‘serious inconvenience’ for that citizen at administrative, professional and private levels. When comparing the ECJ’s approach in the Mirin and Coman rulings, it can be implied that familial statuses, like marriage and parenthood, go beyond the personal sphere and may entail broader normative frameworks, including national conceptions of family law. Consequently, Member States have been afforded greater discretion in regulating and recognising these statuses within their legal systems. Nevertheless, this fragmentation appears both ambiguous and somewhat inconsistent. Although both identity-related matters (such as changes in name or gender) and familial statuses (like marriage and parenthood) remain under the competence of Member States, the non-recognition of either can create serious inconveniences for Union citizens, potentially violating their rights under Article 21 TFEU.

Lastly, AG Richard de la Tour advocated for a clear distinction between, on the one hand, the obligation of the Member States to offer some form of recognition to same-sex couples (derived from the ECtHR case law) and, on the other hand, the obligation to transcribe a foreign same-sex marriage certificate into the civil register. He supports the latter obligation only in situations where no alternative legal framework exists, as is the case in Poland (para. 55). In his view, disregarding this distinction and requiring automatic registration of such marriage certificates would lead to an interpretation of freedom of movement and residence of Union citizens as a right that can be exercised without limit in matters of personal status (para.56). At this point, I concur with his viewpoint, as EU law does not provide for such an expansive interpretation. According to him, it would imply a purely fundamental rights-based approach detached from any link to EU free movement provisions, and such a position would contravene Article 51(2) of the Charter. As noted by the AG Richard de la Tour, the ECJ has refrained from adopting such an expansive view even in cases when the best interests of the child were at stake (para. 58). It is obvious that AG Richard de la Tour aimed to strike a balance between fundamental rights of individuals and the division of competences between EU and Member States- a fault line that has repeatedly tested the ECJ and other EU bodies. However, his proposed solution raises questions, such as whether the transcription of foreign marriage certificates implies full recognition of same-sex marriage-which, in my view, it does- and, if so, whether this could lead to reverse discrimination.

It now falls to the ECJ to deliver its ruling and determine whether to adopt the Opinion of AG Richard de la Tour.

 

Monday, 21 April 2025

Jumping the Gun? The proposed early application of some of the EU’s new asylum pact – and a common list of supposedly ‘safe countries of origin’

 



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

Photo credit: Andre Engels, via Wikimedia Commons

The EU’s asylum pact was adopted less a year ago, and mostly won’t apply for over another year – and yet the EU Commission has already proposed to amend it, in order to bring forward some of the rules in the procedural part of the pact, and to adopt a common list of ‘safe countries of origin’ to apply when the rest of the pact enters into force. The aim is to speed up consideration of asylum claims, and in particular to help to ‘save’ the Italy/Albania deal on asylum processing. The following blog post looks in turn at the background to the new proposal, and then the different elements of it, followed by an assessment.  

Background

Previous and current rules

Initially, the concept of ‘safe countries of origin’ goes back, at EU-wide level, to ‘soft law’ adopted in the early 1990s (one of the ‘London Resolutions’ of 1992). Subsequently, the principle took on binding legal form at EU level in the first-phase 2005 asylum procedures Directive, which provided for an option for Member States to accelerate considering asylum applications (albeit in accordance with the usual procedural rules), inter alia where the applicant is from a ‘safe country of origin’, as further defined. (Note that these rules refer to non-EU countries of origin; there is a separate, stricter set of rules setting out the near-impossibility of EU citizens making asylum applications in other Member States, because each EU Member State is considered to be a ‘safe country of origin’ too, according to a protocol attached to the EU Treaties).

Currently, a revised version of the principle is set out in the second-phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’). Unlike the 2005 Directive, there is no longer a reference to potentially treating only part of a country as ‘safe’, and the previous option for Member States to retain pre-existing lower standards on this issue (along with pre-existing rules on designating part of a country as ‘safe’, or as ‘safe’ for groups of people) was dropped.

The CJEU has ruled on these provisions twice. First, the Court confirmed that Member States had to provide for a ‘safe countries of origin’ rule in national law if they wanted to use apply this principle. Secondly, in October 2024 the Court interpreted the substance of the rule, in particular confirming that it was no longer possible to designate part of country of origin as ‘safe’, given that the EU legislator had dropped that possibility from the text of the 2013 Directive, as compared to the 2005 Directive (see further discussion of that judgment here).

Given that the Italy/Albania treaty on housing asylum applicants in Albania only applied (at least initially) to asylum-seekers from supposed ‘safe countries of origin’, this created a number of potential barriers to the application of that treaty, with multiple Italian courts sending a questions to the CJEU about the rule. The CJEU has fast-tracked two of these cases – Alace and Canpelli – which raise questions in particular about whether Member States can designate a country of origin as ‘safe’ with exceptions for certain groups, and also whether they can designate such countries by means of legislation and must publish the sources of their assessment when they do so. (The case is pending: see earlier blog posts on the background, the hearing, and the Advocate-General’s opinion)

Future rules

The 2024 asylum procedures Regulation (the ‘2024 Regulation’) has amended the ‘safe country of origin’ rules again, although as things stand the 2024 Regulation is only applicable to applications made after June 2026. This upcoming version retains many of the current features of the ‘safe country of origin’ concept (which are set out in more detail below): the definition of human rights standards which must apply before a country can be designated as ‘safe’; the procedure for designation (laying out the sources of information which must be taken into account); and the safeguards (the asylum-seeker must be a national of or a stateless person habitually resident in the country concerned, and must have the possibility to rebut the presumption of safety in their particular circumstances).

But there are several changes in the 2024 Regulation. In particular, it will now again expressly be possible to create an exception to the designation of ‘safety’ for ‘specific parts’ of the non-EU country’s territory and (not only in the context of pre-existing law) for ‘clearly identifiable categories of persons’.

More broadly, the ‘safe country of origin’ rule will remain on the list of possible accelerated procedures, but there is more harmonisation of the rules on time limits and appeals in these cases. There is also a potentially overlapping new ground of accelerated procedures where the country of origin has an international protection recognition rate below 20% at first instance (based on the latest annual Eurostat data), although this is subject to some safeguards, discussed further below.

Another important new development in the 2024 Regulation is the possibility to adopt a common EU list of ‘safe countries of origin’ (there were two earlier failed attempts to do this; see my previous blog post). According to Article 62(1) of the Regulation in its current form, the EU common list must be subject to the same rules as the national list (‘in accordance with the conditions laid down in Article 61’). The Commission has to review the EU list with the assistance of the EU Asylum Agency, on the basis of the sources of information applicable to Member States drawing up their lists (Article 62(2)). Also, the EU Asylum Agency must provide information to the Commission when it draws up proposals for the common EU list (Article 62(3); the list must be adopted by the ordinary legislative procedure, ie a qualified majority of Member States, in agreement with the European Parliament). If there are ‘significant changes’ in a country on the common EU list, the Commission must conduct a ‘substantiated assessment’ of the situation in light of the ‘safe country of origin’ criteria, and can suspend a country from the list on a fast-track basis.

As for Member States, they can still designate additional countries as ‘safe countries of origin’, even if those countries are not on the common EU list. But if a country is suspended from the common EU list, Member States need the Commission’s approval to put that country back on a national list for the following two years.

The new proposal

The new proposal has two main elements, each of which can be broken down into two sub-elements. First of all, it would bring forward some of the rules in the 2024 Regulation. This would apply to aspects of the ‘safe country of origin’ and ‘safe third country’ rules on the one hand (which would apply when the newly proposed Regulation, once adopted, enters into force), and to the ‘low recognition rate’ ground of accelerated proceedings on the other (which Member States could apply before the asylum pact otherwise applies).

Secondly, it would establish a common EU list of ‘safe countries of origin’ that would apply as from the main 2026 date to apply the 2024 Regulation as a whole. This would include both candidate countries for accession to the EU (which would be subject to a new set of special rules) and a further list of seven countries to be regarded as ‘safe countries of origin’.

The proposal would apply to all Member States except Denmark and possibly Ireland, which could opt in or out (so far, Ireland has adopted into all of the asylum pact measures that it could).  It would not apply to non-EU countries associated with Schengen.

Earlier application of the asylum pact

‘Safe country’ rules

The proposal would allow the earlier application of key changes to the ‘safe country of origin’ rules set out in the 2024 Regulation, as regards creating exceptions to that concept for part of a country, and for groups of people. As noted above, the CJEU has ruled that the former exception cannot apply under the 2013 Directive, while it will soon rule on whether the latter exception can currently be invoked under that Directive. So if the proposal is adopted, the change as regards exceptions for part of a country will definitely overturn the existing case law, while the change as regards exceptions for a group of people will possibly change the existing law, depending on what the Court rules (it’s likely, but not certain, that the judgment will come before the proposal becomes law).

Of course, these changes will apply anyway once the 2024 Regulation applies in June 2026. But some Member States are anxious to be able to apply these exceptions earlier than that, in particular Italy: both the exceptions are very relevant in practice to whether the Italy/Albania asylum deal is workable earlier than next June.

The proposal would also allow the earlier application of the same changes to the ‘safe third country’ rules set out in the 2024 Regulation (ie the rules on whether asylum seekers can be sent to another country, other than an EU Member State or their country of origin, which should decide upon their asylum application). Presumably the Commission assumes that the CJEU, if asked, would also find that there is no exception for parts of a country or groups of people as regards designation of ‘safe third countries’, by analogy with its existing or possible future judgments on ‘safe countries of origin’ under the 2013 Directive.  

Note that only some of the new ‘safe third country’ and ‘safe country of origin’ rules in the 2024 Regulation (ie the possible exceptions for parts of countries or groups of people) would apply early. For instance, the prospect of common EU lists for either concept would not apply early; the proposed common ‘safe country of origin’ list, discussed below, would only apply from June 2026, when the 2024 Regulation generally starts to apply. Furthermore, the Commission will likely soon propose further changes to the ‘safe third country’ rules, in a separate proposal: the 2024 Regulation requires a review of those rules by this June.

Low recognition rate rules

In addition to early application of revised versions of current rules, the proposal would also bring forward the application of a brand new rule set out in the 2024 Regulation: the ‘low recognition rate’ rule, on accelerated procedures where the recognition rate (ie the success rate of asylum applications) of a country’s citizens is below 20% at first instance, ie before appeals (even though a proportion of appeals is successful). This also includes most of the safeguards attached to this new rule: it cannot apply if the Member States’ administration ‘assesses that a significant change has occurred in the third country concerned since the publication of the relevant Eurostat data or that the applicant belongs to a category of persons for whom the proportion of 20 % or lower cannot be considered to be representative for their protection needs, taking into account, inter alia, the significant differences between first instance and final decisions’.

The proposal also provides for early application of the same rule (subject to the same safeguards) as regards unaccompanied minors, although the Commission makes no mention of this point, and so provides no justification for it, in its explanatory memorandum.

However, arguably the proposal does not bring forward the rule (as regards both asylum seekers generally and unaccompanied minors in particular) that the assessment of significant changes must take account of any guidance note on the point issued by the EU Asylum Agency.

Also, the proposal does not bring forward other aspects of the 2024 Regulation related to the ‘low recognition rate’ rule. The Commission expressly points out that the rule will remain optional for Member States, until the 2024 Regulation makes it mandatory from June 2026. Furthermore, while the proposal states that the ‘low recognition rate’ rule can be used in special border procedures (in the 2013 Directive version of border procedures, not the 2024 Regulation version of them, until June 2026), it does not include the important exceptions from border procedures set out in the 2024 Regulation.

In particular, that Regulation excludes the border procedure from applying to unaccompanied minors on ‘low recognition rate’ grounds, and also excludes the border procedure from applying to asylum seekers generally where: the rules on accelerated or inadmissible cases do not apply; support cannot be provided to asylum seekers with ‘special reception needs’ or ‘in need of special procedural guarantees’; there are medical grounds; or detention guarantees cannot be complied with. But none of these exceptions are made applicable (prior to June 2026) by the new proposal. This point is particularly relevant to detaining asylum seekers – which is easier to justify legally when the border procedure applies. So the attempt to widen the use of the borders procedure could widen the use of detention.

Common EU list of ‘safe countries of origin’

EU accession candidates

The proposed Regulation would delete the current Article 62(1) of the 2024 Regulation (which requires any common EU list of ‘safe countries of origin’ to comply with the ‘conditions’ relating to that concept set out in Article 61), replacing it with a statement that candidate countries to join the EU (the Commission does not name them, but they are Serbia, Montenegro, Ukraine, Moldova, North Macedonia, Albania, Bosnia, Georgia and Turkey) are ‘designated as safe countries of origin’ at EU level, save in ‘one or more’ of three circumstances:

(a)    there is a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict in the country;

(b)    restrictive measures within the meaning of Title IV of Part Five of the Treaty on the Functioning of the European Union have been adopted in view of the country’s actions;

(c)     the proportion of decisions by the determining authority granting international protection to the applicants from the country - either its nationals or former habitual residents in case of stateless persons – is higher than 20% according to the latest available yearly Union-wide average Eurostat data.

The first of these tests replicates the wording of one of the grounds for ‘subsidiary protection’ in EU law on qualification for status, although there is no cross-reference to that legislation here in this context. Among the candidate countries, the only one which might be subject to this rule is (obviously) Ukraine, as long as the Russian invasion persists. The CJEU has recently been asked whether individual applications for subsidiary protection are even possible given that those fleeing Ukraine have temporary protection; but arguably the wording of the new proposal raises a different issue, because in this context the existence of the threat would be judged as regards the situation in the country concerned more broadly, rather than in the context of an individual application for protection. Also, if the drafters had wanted an exception regarding temporary protection, they would surely have provided for it expressly; and anyway Ukraine will likely be covered by the third test.

The second test refers to EU foreign policy sanctions. A quick look at the EU sanctions database informs us that arguably none of the countries concerned face sanctions because of the country’s actions: the sanctions as regards Ukraine and Moldova relate to the actions of Russia or Kremlin surrogates; the sanctions as regards Mediterranean drilling concern only certain Turkish businesses; and the sanctions relating to Serbia and Montenegro are expressly described as historic (relating to claims as regards the previous Yugoslav war). (The recent EU sanctions against Georgia are a visa measure, not a foreign policy measure).

The third test flips the new ‘low recognition rate’ ground for accelerated procedures, meaning that neither that ground for accelerated procedures nor the ‘safe country of origin’ ground can apply once the recognition rate goes above 20%. Note that this test only takes account of first instance decision-making; if successful appeals take the recognition rate for nationals of a candidate country above 20%, that country nevertheless remains a ‘safe country of origin’ EU wide. Unlike the ‘low recognition rate’ rule as it usually applies, there is no reference to categories of people who have higher recognition rates, taking into account (for instance) appeal decisions. However, arguably significant changes’ in the country concerned must still be considered – in the context of suspending the country concerned from the common EU list, as discussed below.

Applying the third test in practice, the most recent annual Eurostat asylum statistics (2023) show a first-instance recognition rate of 2.8% for Montenegro, 6.4% for Bosnia, 1.9% for Serbia, 0.6% for North Macedonia, 7.8% for Georgia, 10.2% for Albania, 93.8% for Ukraine, 2.6% for Moldova, and 21.1% for Turkey. So on this basis, Ukraine and Turkey will not be on the EU-wide ‘safe country of origin’ list if the proposal is adopted as it stands – although the position might change on the basis of the annual asylum Eurostat statistics for 2024, which will likely be available by the time it is adopted, and the position for each candidate country may change annually after that.

Although the proposal would, in effect, create a distinct rule applicable to candidate countries as far as being ‘safe countries of origin’ is concerned, it still refers to those countries being designated as having that status. So arguably the rules for suspending that designation in the event of ‘significant changes’, and the corollary limits on Member States subsequently placing the suspended countries on their national ‘safe country of origin’ lists, continue to apply – even though these rules refer back to the general rules on designation of ‘safe countries of origin’, rather than the proposed new lex specialis rules for candidate countries (see Articles 63(1) and 64(3) of the 2024 Regulation).

The proposed specific rules for candidate countries as ‘safe countries of origin’ can be compared to the separate set of rules for EU Member States on the same point, referred to above – although the rules for EU Member States remain much more restrictive (it is far harder for nationals of EU Member States to rebut the presumption of safety, for instance; although as they enjoy free movement rights, the need to apply for international protection status to stay in another Member State will usually be immaterial for them)

The Commission’s rationale for the special rules on candidate countries is that they have already gone through a form of screening, when the European Council decided to confirm their status as candidate countries, applying the ‘Copenhagen criteria’: the ‘stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; a functioning market economy and the ability to cope with competitive pressure and market forces within the EU; the ability to take on the obligations of membership’. Therefore the Commission did not assess these countries against the usual criteria to be designated as ‘safe countries of origin’, as the current Article 62(1) of the 2024 Regulation would require; indeed, as noted already, the proposal would replace the current Article 62(1). However, despite the deletion of that provision, the proposed Regulation still assumes (in the preamble) that the safeguards of being a national of the supposed ‘safe country of origin’ (or a stateless person habitually resident there) and the possibility of rebutting the presumption of safety in individual cases continue to apply.     

Other countries

The seven other countries to be designated as ‘safe countries of origin’ EU wide are listed in a proposed new Annex to the 2024 Regulation. These countries are Bangladesh, Colombia, Egypt, India, Kosovo, Morocco and Tunisia. In each case, the Commission’s explanatory memorandum (and the preamble to the proposed Regulation) attempts to justify the inclusion of these countries on the list individually.

According to the Commission, the process to determine the list was based on the EU Asylum Agency, at the request of the Commission (reflecting the role of the Agency in drawing up the proposal for the common EU list, as set out in Article 62(3) of the 2024 Regulation), setting out a methodology:

to support the identification of the countries that could be considered for possible designation as “safe countries of origin” at Union level, including EU candidate countries and one potential candidate; countries of origin that create a significant asylum caseload in the EU with an EU-wide recognition rate of 5% or lower; visa-free countries that create a significant asylum caseload in the EU with an EU-wide recognition rate of 5% or lower; countries that feature in the existing Member States’ lists of “safe countries of origin” [scare quotes added]

The Commission then asked the Agency to produce country of origin information to support the Commission’s assessment; it claims that the Agency’s analysis is based on a wide range of sources:

comprising, but not limited to: European Commission reports, including the EU enlargement reports; reports by the European External Action Service; reports from the EU Agencies (such as the EU Agency for Fundamental Rights); reports from the United Nations High Commissioner for Refugees and other international organisations (e.g., the Council of Europe, the Office of the United Nations High Commissioner for Human Rights) and non-governmental organisations; political analyses from policy and international relations think-tanks; verified online media articles; newspaper articles, as well as national legislation in the countries concerned.

This can be compared to the list of sources referred to in Article 61(3) of the 2024 Regulation:

The assessment of whether a third country is a safe country of origin in accordance with this Regulation shall be based on a range of relevant and available sources of information, including information from Member States, the Asylum Agency, the European External Action Service, the United Nations High Commissioner for Refugees, and other relevant international organisations, and shall take into account where available the common analysis of the country of origin information referred to in [the Regulation setting up the Agency].

(Note that the Regulation refers to information from the Member States, but the proposal does not refer expressly to using this source for the assessment) That list of sources must be applied to establishing the EU list too, according to the current Article 62(1) of the 2024 Regulation (EU designations must be ‘in accordance with the conditions laid down in Article 61’); although, as discussed above, the Commission proposal would delete this provision.  

However, in any event it is impossible to assess either the country of origin information or the methodology developed by the Agency, because (at time of writing) the text of these documents is neither supplied by the Commission nor available on the Agency’s website. (There are some country of origin reports for some of the countries on the proposed list on the website, but those reports are outdated: 2016 for the Western Balkans; 2022 for Colombia; and May 2024 – before the demise of the previous government – for Bangladesh)  This is in spite of the Advocate-General’s opinion in the pending case of Alace and Canpelli, which  argued that Member States’ assessments underlying the designations of ‘safe countries of origin’ had to be public. (The Commission does not tell us whether any additional countries were considered for inclusion on the common list, but rejected)

Instead we have the Commission’s brief summary, starting with the assertion that ‘there is, in general, no risk of persecution or serious harm’ in these countries. This reflects part of the criteria for listing non-EU countries as ‘safe countries of origin’ set out in Article 61(1) of the 2024 Regulation (again, as noted above, the current Article 62(1) of that Regulation requires the common EU list to comply with the ‘conditions’ in Article 61; but the Commission proposes to delete the current Article 62(1)). Those criteria require that assessment to take place ‘on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances’ of the countries concerned; Article 61(4) furthermore requires assessment of the application of national law, whether the country concerned complies with the ECHR or the UN’s International Covenant on Civil and Political Rights, the expulsion of citizens to unsafe countries and the existence of effective remedies to protect human rights.

The Commission then assesses each country in turn, summarising such factors as national designations, the recognition rates, human rights treaty status, national legal frameworks, democratic standards, judicial independence and impartiality, removal of citizens to unsafe countries, and the existence of persecution, the death penalty and torture. This assessment broadly reflects the criteria set out in the 2024 Regulation, although ‘recognition rates’ are not expressly referred to as part of the criteria for assessing what is a ‘safe country of origin’ (nor are trade issues or the situation of refugees from other countries, which the Commission raises in some cases).

Each of these countries gets the nod as ‘safe’ despite concerns about threats to some groups of people (such as journalists, LGBT people or women). Despite wanting to allow Member States to create exceptions to their ‘safe’ country lists for groups of people or parts of countries, the Commission does not recommend that the EU have any exceptions for any groups, even though the 2024 Regulation expressly provides that the common EU list can include such exceptions (Article 61(2) of that Regulation), and for every country on the proposed list except Kosovo, the Commission admits that there are ‘specific challenges faced by certain groups in the country which may merit particular attention’, and the preamble to the proposal states that ‘certain categories of applicants may find themselves in a specific situation in the third countries designated and may therefore have a well-founded fear of being persecuted or face a real risk of suffering serious harm’. Similarly, although the Commission notes that there are risks in particular parts of Colombia, it simply suggests that potential asylum-seekers should have moved within that country (known as the ‘internal flight alternative’), rather than propose a territorial exception to the designation of Colombia as ‘safe’.

In light of this, it is questionable why there are no exceptions for groups of people or parts of a country, particularly when the same proposal claims that, for Member States, such exceptions ‘offer means of managing likely unfounded applications efficiently while maintaining necessary legal safeguards’ (my emphasis). It seems that sauce for the Member State goose is not sauce for the EU gander; and in fact, it is arguable that the assessment of the ‘safety’ of the countries concerned is inadequate because it did not consider whether such exceptions should be granted. Of course, human rights NGOs may well have further critiques of the details of the Commission’s brief assessments of ‘safety’.

Conclusions

The new proposal is cynical in many respects. First of all, the Commission wants some restrictive rules from the 2024 Regulation to apply in advance, but not some of the safeguards that apply to them – a form of ‘cherry-picking’. This is particularly relevant to the early use of the ‘low recognition rate’ rule in the context of border procedures, without the safeguards applicable to border procedures in the 2024 Regulation, especially the exemption for unaccompanied minors. In fact, as we have seen, the Commission does not even mention or justify its proposed advance application of these rules to unaccompanied minors – still less its attempt to waive an exception that would otherwise apply to them, even when it means they can be detained.

Secondly, the Commission wants to drop the requirement to apply the usual conditions that apply to designation of ‘safe countries of origin’, not only for candidate countries (which will be subject to special rules of their own) but in general. It is possible that this is simply down to poor legislative drafting, as despite the proposed abolition of the current Article 62(1) of the 2024 Regulation, the preamble to the new proposal assumes that key safeguards continue to apply in the context of the EU common list; and the rules on suspension of designation and the corollary limits on national designation of ‘safe countries of origin’, which refer back to the general rules on designation of ‘safe countries of origin’, expressly continue to apply.

So although it is obviously questionable in principle both to drop the requirement that the common EU list is subject to the same conditions as national lists (a blatant double standard), without even replacing it, and to create a separate rule for candidate countries, the overall impact of this change is blunted. Nevertheless, it would be better in principle to retain a single common standard for designation of ‘safe countries of origin’; it is particularly objectionable to have double standards compared to national lists and even more so, no standards at all for the EU list.

The Commission’s lack of transparency of its sources for assessing the group of countries to go on the common list is likewise questionable; and its treatment of the candidate countries is simply opaque. The countries concerned are not even named, and the Commission offers no interpretation of its proposed new criteria relating to these countries, or a discussion of how they would apply in practice. (The application of the ‘low recognition rate’ rules is also opaque, in the absence of a simple list of the recognition rates by country)

All in all, this proposal is both murky and unprincipled: an unimpressive start to the next phase of EU asylum law.