The Aleb judgment on ‘safe third countries’ in asylum law: the CJEU’s answer to EU legislative amendments?

 

 

Tamta Gventsadze, PhD candidate in law, UNITUS

Photo credit: Mstyslav Chernov, via Wikimedia Commons

 

Introduction

On February 5, 2026, the Court of Justice delivered its judgment in Case C-718/24, Aleb concerning the interpretation of Articles 33(2)(c), 38 and 46 of Directive 2013/32 in the context of the ‘safe third country’ concept and the right to an effective remedy, Article 47 of the Charter of Fundamental Rights of the European Union.

This analysis examines the Aleb judgment in light of the ‘safe third country’ concept under Directive 2013/32 (Asylum Procedures Directive, APD) and its replacement by Regulation (EU) 2024/1348 (Asylum Procedures Regulation, APR) from 12 June this year. After mapping the factual background and the Court’s clarification of the cumulative safeguards governing the presumption of safety, it then considers the impact of the 2026 amendments and assesses their implications for judicial control and fundamental rights protection.

I. Facts of the Case

The applicant, NP, is a Syrian national and an unaccompanied minor who lodged an application for international protection in Bulgaria on 2 November 2023. During the interview conducted on 1 December 2023, he stated that he had lived in Aleppo (Syria) and had left two to three months earlier with his brothers because of the war. Before “illegally entering the Bulgarian territory” (para. 19), NP stayed in Türkiye for approximately one month, where his brothers remained with three of his sisters who already lived there.

By decision of 18 June 2024, the Chairperson of the Bulgarian National Refugee Agency rejected the application, refusing to grant him both refugee and humanitarian status. The authority accepted that Syria was affected by internal armed conflict and indiscriminate violence and acknowledged that the applicant was exposed to a real threat to his life or person. Nevertheless, it refused to grant protection on the ground that Türkiye constituted a ‘safe third country’ in which the applicant could seek protection. The decision relied, inter alia, on the fact that the applicant had already lived in Türkiye for about a month without suffering harm, had close family members there, and that Syrian nationals in Türkiye benefited from temporary protection and protection against forced return; finally, “their basic needs [were] satisfied” (para. 20).

The referring court expressed doubts as to the compatibility of this approach with Directive 2013/32, especially considering the absence of both a defined methodology for applying the ‘safe third country’ concept and the lack of explicit procedural guarantees under Bulgarian law allowing the applicant to challenge the existence of a sufficient connection with Türkiye (paras 24-26).

II. The Presumption of Safety under Article 38 of the Directive

The judgment deals with the legal nature and limits of the presumption underlying the ‘safe third country’ concept. The Court begins by recalling that the application of Article 33(2)(c) of the APD (ie, providing that asylum applications are inadmissible where the ‘safe third country’ principle is applied) is conditional upon strict compliance with the requirements of Article 38 thereof (ie the definition of ‘safe third country’ and the conditions related to it). In para. 48 of the judgment, it is expressly stated that the conditions laid down in Article 38 are cumulative, with the result that the inadmissibility ground cannot be applied where any one of those conditions is not satisfied.

This formulation makes clear that the presumption of safety is neither automatic nor self-standing, it is legally constructed and constrained by a series of substantive and procedural safeguards (para. 46). More precisely, Article 38(2) requires Member States to regulate the safe third country concept through national law and that the national rules ensure: (i) there is a sufficient connection between the applicant and the third country so that return there is reasonable; (ii) must define a methodology for applying the concept, which includes either a case-by-case safety assessment or the designation of generally safe countries; (iii) must guarantee an individual examination and allow the applicant to challenge both the safety of the third country in their specific circumstances and the existence of the required connection.

Therefore, the key requirement in the safe third country designation is the existence of a “connection” between the applicant and the third country. The Court emphasizes that Article 38(2)(a) obliges Member States to define in national law criteria enabling authorities to determine whether such a connection exists and whether return to that country is reasonable (paras 51–52). Since the Directive does not define “connection,” Member States retain discretion to specify the criteria, but within EU limits.

Importantly, the Court further reiterates its prior case law that mere transit through a third country cannot, on its own, justify the conclusion that return there is reasonable (para. 54). This statement substantially narrows the presumption. It prevents Member States from relying on minimal factual links and requires a qualitative assessment of the relationship between the applicant and the third country, considering factors such as duration and circumstances of stay and family ties. It is evident that the presumption cannot be based merely on the “transit” criterion. Even where national law relies on the notion of “stay,” national courts must assess, in light of all circumstances, whether that stay genuinely establishes a sufficient connection (para. 55).

The Court also addresses national lists of safe third countries. Member States may, in principle, designate safe third countries by general act. However, such designation does not dispense with the obligation to conduct an individual assessment. National law must provide a methodology for a case-by-case evaluation of both the country’s safety for the applicant and the existence of a sufficient connection (para. 65). The presumption must remain rebuttable, and the applicant must be able to challenge the existence of that connection.

The judgment firmly situates the safe third country concept within the framework of effective judicial protection. Article 38(2)(c) must be read in conjunction with the ‘effective remedy’ rights in both Article 46 of the Directive and Article 47 of the Charter (paras 69-74). Even if national law does not explicitly confer such power, a court hearing an appeal must verify whether a sufficient connection exists.

Accordingly, the Court recalls that Article 46(1) of the Directive guarantees a right to an effective remedy in asylum cases and that Article 46(3) requires a full and ex nunc examination of both facts and law in asylum appeals. This standard applies even in inadmissibility cases and does not necessarily require a substantive assessment of protection needs, but it does require full judicial scrutiny of admissibility conditions. Furthermore, Article 47 of the Charter enshrines the principle of effective judicial protection and is directly applicable, thereby requiring national courts to conduct comprehensive review consistent with EU fundamental rights standards.

Therefore, when reviewing a decision declaring an application inadmissible on ‘safe third country’ grounds, national courts must conduct a full and up-to-date examination of whether the third country is safe for the applicant and whether all cumulative conditions, including the connection requirement, are fulfilled (para. 75). The Court thus subjects the presumption of safety to meaningful judicial scrutiny grounded in Article 47 of the Charter.

Finally, the Court confirms that an application may be declared inadmissible on ‘safe third country’ grounds even where the applicant faces a real risk of serious harm in the country of origin (ie, as distinct from the ‘safe third country’). This confirms that the ‘safe third country’ concept functions as a jurisdiction-allocating mechanism rather than as a substantive denial of risk in the country of origin. Precisely because it allows displacement of protection despite such risk, strict compliance with Article 38 safeguards is imperative.

III. Relevant changes of legislative framework

It is further necessary to underline that while the Court has provided meaningful clarifications regarding safe third country concept and judicial protection in light of corresponding provisions under Directive 2013/32 in a few months’ time this instrument will be replaced by another secondary EU legislation in the form of Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (already discussed in great detail here).

Upon a comparative assessment of these two contrasting instruments, several illustrative differences emerge between the provisions concerning safety presumptions, and those of appeals.

Article 33 of the APD addresses inadmissible applications, framing them as an exception to the obligation to examine the substance of an application, meaning that Member States are not required to assess the merits of qualification for international protection where one of the exhaustively listed grounds for inadmissibility applies. The list is limited: Art. 33(2) includes protection granted by another Member State, first country of asylum, ‘safe third country’, subsequent applications without any new elements, and applications lodged by dependents who had consented to be included in another application.

Article 38 of the APR restructures this framework, by separating the decision on admissibility from the decision on the merits. Article 39(3) explicitly governs rejection as unfounded following substantive examination pursuant to the ‘Qualifications’ Regulation (EU) 2024/1347. This structural clarification seems to strengthen the distinction between inadmissibility and unfoundedness, which had already been emphasized by the Court.

In addition, relevant to the current analysis, a notable development concerns the first country of asylum and ‘safe third country’ grounds of inadmissibility. In the APD, Article 33(2)(b) and (c) refer to Articles 35 and 38 without expressly conditioning inadmissibility on the likelihood of admission or readmission. The Regulation introduces an explicit safeguard, with Article 38(1)(a) and (b) essentially stating that inadmissibility may apply unless it is clear that the applicant will not be admitted or readmitted to the third country. Therefore, changes regarding admissibility grounds combine expansion with procedural tightening and partial codification of judicial safeguards.

To further detail the elements regarding the concept of ‘safe third country’, it seems clear that the evolution of the rules on this principle from Article 38 of the APD to Article 59 of the 2024 Regulation, especially as amended in 2026, reflects an apparent shift in structure and scope, even if several aspects remain unchanged.

First off, at the level of safety criteria, both instruments require absence of threats to life or liberty on Convention grounds, absence of serious harm, respect for non-refoulement, and protection against removal contrary to international law. The Regulation clarifies the content of “effective protection” through reference to Article 57 and to Regulation (EU) 2024/1347. As defined by Article 57, effective protection can be attained in a country that has ratified and respects the Geneva Convention on Refugee Status, within any permitted reservations or limitations. However, where a geographical limitation applies, or where the Convention has not been ratified, protection must be assessed against minimum criteria of permission to remain on the territory, access to sufficient means of subsistence to ensure an adequate standard of living, access to healthcare and essential treatment, access to education under general national conditions, and the availability of protection until a durable solution is found. Interestingly, these minimum criteria resemble those of subsidiary protection guarantees, but the context refers to international protection.

Secondly, additional significant changes concern Union and national designation mechanisms introduced by the Regulation. Article 59(2) and (3) of the Regulation, which have no previous equivalent in the Directive, allow partial designation for specific territorial parts or identifiable categories of persons and require reliance on a broad range of sources. Importantly, Art. 59(5)(b) explicitly maintained, that the ‘safe third country’ concept may only be applied where “there is a connection between the applicant and the third country in question on the basis of which it would be reasonable for him or her to go to that country” (the same standard of ‘reasonable’ connection as employed by the Court in Aleb).

However, the 2026 amendments substantially reshape the connection criterion, by removing it as a mandatory condition and introducing two additional bases. The concept may now apply where the applicant transited through the third country (explicitly opposing to what the Court prohibits in Aleb). It may also apply where an agreement or arrangement exists requiring the third country to examine protection claims. As already wittily named elsewhere, this ‘Rwanda clause’ permits transfer without prior connection or transit. Moreover, the removal of automatic suspensive effect in safe third country appeals in the 2026 amendments seem to further intensify a restrictive shift, although there is still a possibility for requesting a judicial suspension.

The most problematic aspect seems this possibility of transferring an individual to a state where they might have never even been to, but the secondary law would permit it solely due to the existence of an agreement (often in non-legally binding form of MoUs) between a EU Member State or the Union and possibly any third country. It is true that an applicant will maintain a possibility to appeal this decision, however, they might have to first ask for a suspensive effective of the appeal, which further complicates an already arduous procedure. In theory, a person might end up being transferred to such a supposedly ‘safe’ third country before a decision is made upon their request to remain, which could create a rather unclear legal consequence; would a person potentially have to be brought back, shall their appeal succeed? It is true that this particular scenario might be extremely rare in practice, but does this rarity allow for its legality?

Nevertheless, despite this expansion in scope, the APR maintains several core safeguards, explicitly stating that admission or readmission must be ensured and that individual assessment remains required (which could become more restricted in practice). Special guarantees also apply to unaccompanied minors, including best interests and prior assurances of protection; and the ‘Rwanda’ clause cannot apply to unaccompanied minors at all.

As confirmed by the Alace judgment, designations of ‘safe countries of origin’ must remain subject to judicial review under Article 47 of the Charter. The Court held that national courts must be able to examine compliance with material designation criteria and to rely on independent sources of information. This reasoning applies by analogy to ‘safe third country’ designations and considering that the Charter has the same legal value as primary EU law, legislative attempts to narrow judicial review cannot override it.

In this context, the Aleb judgment constitutes an additional message. It reaffirms that application of the ‘safe third country’ concept is subject to cumulative conditions and full judicial scrutiny. Even as the legislature broadens the concept and limits suspensive effect, the Court insists on effective judicial protection and strict assessment of safety criteria.

IV. Concluding Assessment

The Aleb judgment does not abolish the presumption of safety inherent in Article 38 of the Directive. However, it subjects the presumption to cumulative substantive conditions, mandatory individualized assessment, and full judicial review.

In more detail, the ECJ allows that the determining authority may apply the concept of ‘safe third country’ on the basis of information from publicly available sources and rely on a national list of safe third countries, if such exists, but this is only provided that national law also defines the methodology applicable for assessing, on a case-by-case basis, according to the particular circumstances of the applicant for international protection, whether the third country concerned satisfies the conditions for being regarded as safe for that applicant and the possibility for that applicant to challenge the existence of a connection, within the meaning of Article 38(2)(a).

Moreover, the Court’s insistence, particularly in paragraphs 48, 54 and 65 of the judgment, on the cumulative nature of the safeguards, the insufficiency of mere transit, and the necessity of a defined methodology, significantly limits the discretionary space of national authorities. The ECJ reinforces the procedural containment of the ‘safe third country’ mechanism, by linking these cumulative requirements to Article 46 of the Directive and Article 47 of the Charter, and by requiring national courts to verify the existence of a connection even where national law is silent in this regard.

Therefore, the Court ties the existence of the ‘safe third country’ presumption to two co-existing elements: clearly defined methodology underlining individual assessment (which includes the existence of “reasonable” connection between the applicant and the safe third country) and a possibility for judicial review of the connection requirement. It seems evident from this judgment, that the safety presumption, be it national or supranational level, would otherwise be invalid. In a way, Aleb strengthens the doctrinal link between inadmissibility decisions and effective judicial protection. The presumption of safety is permitted, per se, but only as a structured, reviewable and rebuttable legal construction embedded within the broader guarantees of EU fundamental rights law.

The combined effect of Alace and Aleb indicates that the Court of Justice does not seem to be prepared for relaxing the standards governing the designation and review of ‘safe third countries’. Nevertheless, it remains to be seen whether and how the Court will respond to the legislative changes, considering that they aim to abolish the mandatory connection element and restrict safeguards when challenging it.

 

Misreading the Temporary Protection Directive? The CJEU sets the record straight on access to subsidiary protection in Framholm (C-195/25)

 

Dr Meltem Ineli Ciger, Associate Professor of International Law, Suleyman Demirel University

 

Photo credit: Dietmar Rabich, Münster, Stadtweinhaus, Beflaggung Ukraine und EU -- 2022 -- 0219, CC BY-SA 4.0

Framholm (C-195/25), delivered on 20 November 2025, is the Court of Justice’s third ruling interpreting the Temporary Protection Directive (Council Directive 2001/55/EC, TPD) following Joined Cases C‑244/24 and C‑290/24 (Kaduna) (cf. analysis here), and Case C‑753/23 (Krasiliva) (cf. analysis here). The ruling provides further clarification of Articles 3, 17 and 19 of the TPD and, crucially, confirms that temporary protection does not exclude access to subsidiary protection, ie the type of international protection available for those who do not qualify for refugee status. It therefore marks an important step in aligning the TPD, an instrument drafted in 2001, with the contemporary Common European Asylum System (CEAS).

The reference for a preliminary ruling to the Court of Justice originated in Sweden, where several third-country nationals displaced from Ukraine were granted temporary protection and subsequently applied for subsidiary protection. For years, the Swedish Migration Agency (Migrationsverket) had maintained a practice of automatically rejecting subsidiary protection applications lodged by temporary protection beneficiaries, without any examination on the merits. It interpreted Swedish law as allowing temporary protection beneficiaries to apply only for refugee status and treated all subsidiary protection applications as per se inadmissible. Faced with this restrictive and legally questionable approach, the Göteborg Administrative Court for Immigration Matters asked the CJEU whether EU law really permits a Member State to deny access to subsidiary protection solely because the applicant already enjoys temporary protection. The Court’s answer is unequivocal: No.

1.    What is the case about?

 On 11 March 2025, the Göteborg Administrative Court for Immigration Matters referred questions to the CJEU concerning whether beneficiaries of temporary protection may apply for subsidiary protection under the Qualification Directive (or QD – which defines refugee and subsidiary protection status in the EU) and have that application examined on the merits. All applicants (a Nigerian national holding a permanent residence permit in Ukraine and his Ukrainian family members) had been displaced from Ukraine following the Russian invasion and were granted temporary protection in Sweden. When they applied for international protection, the Migration Agency rejected their refugee status applications but declared their subsidiary protection claims inadmissible solely because they already held temporary protection. No assessment of eligibility under Article 15 of the QD (ie the definition of subsidiary protection) was undertaken. The referring court rightly doubted whether such a blanket exclusion could be reconciled with the development of EU asylum law since 2001, which clearly conceptualises “international protection” as including both refugee status and subsidiary protection. (cf. The Judgment paras 28-37)

2.     The questions referred to and the Court’s short answers

The Göteborg Court referred four questions to the CJEU (OJ C/2025/2651, 19 May 2025), all centred on how temporary protection interacts with the CEAS:

1.    Do the QD and the Asylum Procedures Directive 2013/32/EU (APD) apply to international protection applications lodged by persons already benefiting from temporary protection under the TPD? Yes.

2.    a) Does the term “application for asylum” in Articles 17(1) and 19(2) of the TPD cover applications for both refugee status and subsidiary protection, and must such applications be examined under the QD and APD? Yes.
b) Does Article 3(1) of the TPD prevent Member States from recognising subsidiary protection for persons who are eligible for, or already enjoying, temporary protection? No.

3.    If Articles 17(1) and 19(2) of the TPD also cover the right to apply for subsidiary protection status under the QD, are those articles, in conjunction with Article 10(2) of APD, sufficiently clear and precise to have direct effect?  Yes, and kind of yes (the Court said the QD and APD provisions have direct effect, but did not say that the TPD provisions alone have direct effect)

4.    Is Swedish law, which allows temporary protection beneficiaries to apply only for refugee status (but not subsidiary protection), compatible with EU law? No.

3.    What are Articles 3, 17 and 19 of the TPD about?

Article 3(1) of the TPD makes clear that temporary protection does not prejudge refugee status under the Refugee Convention. It is not a derogation from the Refugee Convention, nor does the grant or expiry of temporary protection affect the substantive assessment of whether an applicant meets the refugee definition.  

Article 17 of the TPD guarantees that beneficiaries of temporary protection may lodge an asylum application at any time and provides that any applications still pending when temporary protection ends must be assessed and decided hereafter.

Article 19 of the TPD regulates the interaction between temporary protection and the asylum procedure: Article 19(1) allows Member States to decide that a person cannot simultaneously hold the status of “asylum seeker” and benefit from temporary protection while their asylum application is being examined. Whereas Article 19(2) ensures continuity of protection: if, after examining an asylum application, the authorities do not grant refugee status or another form of protection, the person must still be allowed to enjoy temporary protection for the rest of the designated duration. (Cf. for a detailed commentary on these articles Skordas’ chapter; Peers’ post; Ch. 5 of my book)

4.    The AG Opinion (which I fully agree with)

The Advocate General’s analysis is worth examining closely, not least because it is carefully constructed and has clear implications for how the TPD must be read today. His reasoning develops along five points.

First, AG interprets Article 17(1) TPD’s reference to an “application for asylum” as an application for international protection, encompassing both refugee status and subsidiary protection. Although the TPD predates the CEAS, it must now be read in light of Article 78(2) TFEU, which is a Treaty provision on asylum (AG Opinion, paras 49-58). He adds “A restrictive understanding of the term ‘asylum’ in Article 17(1) of Directive 2001/55 would fail to take into account the context in which that directive applies following the entry into force of the FEU Treaty, as well as the objectives and scope of the legislation concerning ‘international protection’ which has been adopted in the intervening period.”  (para 50)  

Secondly, the AG stresses that temporary protection does not suspend or exclude access to subsidiary protection. Beneficiaries of temporary protection may lodge applications for refugee or subsidiary protection “at any time,” and the TPD operates as a complement, not an alternative, to the individual assessment required under the Qualification Directive (AG Opinion, paras 43-45, 51-52, 59-61, 66).

Thirdly, he confirms that being a temporary protection beneficiary is not a lawful ground of inadmissibility or exclusion. The exhaustive lists in Articles 12 and 17 of the QD (on grounds for excluding people from refugee or subsidiary protection status) and Article 33(2) APD (grounds for inadmissibility of asylum applications) do not include temporary protection, and national authorities cannot refuse subsidiary protection applications on that basis (AG Opinion, paras 70-72, 78-81).

Fourthly, he accepts that Member States may postpone examination of international protection applications in mass influx situations but makes clear that this administrative flexibility cannot justify a blanket inadmissibility rule for all subsidiary protection applications lodged by temporary protection beneficiaries (AG Opinion, paras 73-80, especially 7-78, 86).

Finally, he concludes that Article 17(1) TPD (not Article 19), read together with the overall CEAS architecture, confers a sufficiently clear and directly effective right to lodge an application for international protection.  

5.    What did the Court say?

The Court’s reasoning proceeds in three clear steps.

First, the Court explains that nothing in Articles 3, 17 or 19 TPD authorises Member States to refuse to examine a subsidiary protection claim simply because the applicant enjoys temporary protection (paras 45-46). Article 19(2) even anticipates the existence of “other kinds of protection,” which must be read today as encompassing subsidiary protection (para 46). The omission of subsidiary protection in the TPD text reflects only the fact that this status did not yet exist in EU law, a point that AG raised. (paras 46-47).

Secondly, the Court turns to the purpose and logic of the TPD. Temporary protection is designed to ensure immediate, time-limited protection while preserving the “effective possibility” of receiving international protection (paras 47–49). Here the Court explicitly follows its reasoning in Joined Cases C‑244/24 and C‑290/24 (Kaduna), where it held that “the purpose of the temporary protection mechanism is, inter alia, to maintain the efficient operation of the international protection system in the Member States” and that the TPD “safeguards, in particular, the effective possibility for third-country nationals and stateless persons benefiting from temporary protection" of obtaining international protection following an appropriate examination of their individual situation” (Kaduna, paras 125 and 127). A national rule excluding subsidiary protection applications as such would therefore contradict the very objective of the TPD (paras 49–50).

Thirdly, and most decisively, the Court relies on the architecture of the CEAS. It emphasises that the QD establishes two forms of international protection – namely, refugee status and subsidiary protection – and that Member States must grant whichever status an applicant qualifies for (paras 51–54). Member States have no discretion to refuse subsidiary protection except on the exclusion grounds exhaustively listed in the Qualification Directive (para 54). The Asylum Procedures Directive reinforces this: an application may be declared inadmissible only on the five grounds set out in Article 33(2) APD, which must be interpreted strictly (paras 58–60). Temporary protection is not among these grounds; national authorities, therefore, cannot reject a subsidiary protection application solely because the applicant enjoys temporary protection (para 61).

Finally, the Court addresses the direct-effect question. The Swedish court had essentially asked whether Articles 17(1) and 19(2) of the TPD, if interpreted as including the right to apply for subsidiary protection, are sufficiently clear and precise, read together with Article 10(2) of the APD, to have direct effect. The CJEU reformulates the issue. Rather than grounding the direct effect in the TPD itself, the Court bases it on two CEAS provisions: Article 18 of the QD, which imposes an unconditional duty to grant subsidiary protection when criteria are met, and Article 33 of the APD, which exhaustively lists the admissibility grounds (paras 71-72). These provisions are both unconditional and sufficiently precise, and thus confer directly effective rights. The consequence is clear: if a national rule conflicts with these obligations and cannot be interpreted in conformity with EU law, domestic courts must disapply the national provision (para 73).

That said, the Court’s approach leaves an important ambiguity unresolved. The referring court had explicitly asked whether Articles 17(1) and 19(2) of the TPD, read together with Article 10(2) APD (which governs the relationship between refugee and subsidiary protection status applications), were sufficiently clear and precise to have direct effect. Instead of answering that question squarely, the Court effectively sidesteps it by grounding direct effect not in the TPD at all, but in Article 18 QD and Article 33 APD. Put simply, the judgment does not tell us whether Articles 17(1) and 19(2) of the TPD are capable of producing direct effect. 

6.    My analysis

The AG’s Opinion and the Court’s judgment reach the same legal outcome, but they do so through markedly different interpretative routes. The Advocate General adopts a more TPD-centred approach, grounding his analysis in Articles 3, 17 and 19 of the TPD and then interpreting these provisions in light of later CEAS instruments. He reads “asylum application” in Article 17 as an application for international protection covering both refugee status and subsidiary protection, emphasises that temporary protection cannot suspend or exclude access to subsidiary protection, and rejects temporary protection as a lawful ground of inadmissibility because it does not appear in the exhaustive list in Article 33(2) of the APD. Although he accepts that Member States may postpone international protection application examinations in mass influx situations, he stresses that a blanket ban on subsidiary protection applications is incompatible with the TPD and the CEAS.

By contrast, the Court relies primarily on the Qualification Directive and the Asylum Procedures Directive, using the CEAS instruments themselves as the main foundation for each key step. It interprets “asylum application” in light of the QD and APD definitions of international protection, derives the duty to grant protection from Article 18 of the QD and the obligation to examine claims (and the limits on inadmissibility) from Articles 10(2) and 33 APD, and treats Article 33(2) of the APD as an exhaustive rule that excludes any TP-based inadmissibility ground (paras 58-60). On the direct effect, the Court bases its analysis on Article 18 of the QD and Article 33 of the APD (paras 70-73), whereas the AG reaches the same conclusion via a combined reading of Article 17 of the TPD with the CEAS provisions.

Compared to the AG’s Opinion, which engages more directly with the wording, structure and logic of the TPD, the Court reaches essentially the same conclusions but grounds its reasoning far more firmly in the QD and APD. Put differently, while the AG reads the TPD through the lens of the CEAS, the Court treats the CEAS instruments themselves as the primary legal basis for explaining why Member States cannot refuse to examine (and, where appropriate, must grant) subsidiary protection to temporary protection beneficiaries.

I must admit that I prefer the AG’s TPD-centred approach: it is more faithful to the architecture of the TPD, and does not treat the TPD as a second-rate asylum instrument because it has never been updated to reflect two decades of CEAS development.

The outcome of the judgment is fully in line with what many of us working on the TPD have long expected. The TPD was never intended to operate as an obstacle to accessing international protection, whether refugee status or subsidiary protection. For over a decade, “international protection” in EU law has included both statuses, and nothing in the Directive suggested a closed or self-standing regime intended to override the CEAS.

The central logic of the TPD has always been pragmatic: to give Member States facing a mass influx breathing space by allowing them to suspend the processing (not lodging) of asylum claims where their systems would otherwise be overwhelmed. It was and never has been designed to bar access to subsidiary protection altogether. Member States with fewer temporary protection beneficiaries, or with sufficiently strong asylum systems, remain entirely free to process claims during temporary protection and examine the merits of their international protection applications.

Interpreting the TPD in the restrictive and literal manner adopted by the Swedish administration, treating “asylum” in the TPD as excluding subsidiary protection and ignoring the subsequent development of EU asylum law, was therefore misguided. It runs counter to the TPD’s objectives, its underlying logic, and the entire evolution of the CEAS. Most importantly, it results in a clear violation of the rights of temporary protection beneficiaries to access international protection.

This judgment matters well beyond Sweden. Even if Sweden appears to be the only Member State to have openly applied such a blanket rule, Framholm makes clear that no Member State may treat temporary protection alone as a ground for declaring subsidiary protection applications inadmissible. Across the EU, temporary protection can never justify a blanket refusal to examine the merits of a subsidiary protection claim.

7.    Conclusion

Framholm matters because it definitively closes the door on any national attempt to use temporary protection as a barrier to subsidiary protection. The judgment also exposes a broader structural problem: the Temporary Protection Directive, drafted in 2001, simply do not reflect the legal architecture of the CEAS in 2025. This is visible not only in Sweden’s misinterpretation but also in the Court’s need to rely so heavily on the QD and APD to reach a decision rather than the TPD’s own articles.

This brings me to a point that, as far as I am aware, no one else has explicitly raised: we know that the TPD remains useful and conceptually sound as a framework for managing mass influx situations, contrary to the Commission’s initial 2020 proposal to repeal it. Temporary protection works. It has proven its value during the Ukrainian displacement and remains a necessary instrument in the EU’s protection toolbox. Even today, 4.3 million non-EU citizens who fled Ukraine have temporary protection status in the EU. Moreover, the adoption of the Crisis and Force Majeure Regulation does not render the TPD unnecessary or obsolete: the two instruments, although they can be invoked in exceptional mass influx situations, operate on different logics. In my opinion, the Crisis and Force Majeure Regulation, which is based on derogations more than anything, cannot fully substitute for the protection mechanism established by the TPD.

Despite the usefulness of the ongoing relevance of the TPD, the judgment also implicitly makes clear that the TPD urgently requires updating. Many of the problematic national practices stem precisely from the fact, highlighted by the AG, that the TPD is an old instrument, never recast and never aligned with two decades of CEAS development. The result is predictable: legal ambiguities that should no longer exist, and litigation over issues that should be obvious.

I wish to conclude with a call to the EU institutions, above all, to the Commission. Once the current temporary protection regime for Ukrainians comes to an end, the Commission should initiate a targeted revision of the TPD, drawing directly on the lessons of its implementation during the mass displacement from Ukraine and the emerging body of CJEU case law, including Kaduna, Krasiliva and Framholm. An updated TPD can significantly narrow the scope for misinterpretation, perhaps introduce a new and clear time limit, align the instrument with the contemporary CEAS architecture, and prevent further unnecessary litigation on matters that ought already to be legally settled.

The Shifting Frontier: The Advocate General’s Opinion in Joined Cases C‑50/24 to C‑56/24 (Danané)

 

Vasiliki Apatzidou, Doctoral Researcher at Queen Mary University of London, Associate Tutor at the University of London.

Photo credit: Rock Cohen, via Wikimedia Commons

Introduction

Border procedures – the swift processing of asylum applications before granting legal entry into the territory – is one of the concepts that have dominated policy debates in the EU the last years, especially as the EU Pact on Migration and Asylum mainstreamed these procedures making them obligatory in some cases. As the implementation of the new EU asylum legislation is taking shape, CJEU’s interpretations will be decisive. The Advocate General’s recent opinion in Danané (Joined Cases C-50/24 to C-56/24) has reignited one of the most delicate debates regarding border procedures: where exactly does the “border” end?

Summary of the Opinion

In his Opinion of 26 June 2025, the Advocate General addressed two questions referred by the national court of Belgium under Article 267 TFEU. First, whether the “border procedure” under Article 43 of the recast Asylum Procedures Directive (APD) must necessarily be carried out at the physical external border or in transit zones, or whether Member States may designate inland facilities as “places at the border”. Second, what legal consequences follow once the four-week maximum duration for the border procedure has expired, in particular regarding the continuation of detention and the transition to the ordinary procedure.

In his opinion, he argued that nothing in the Directive requires border procedures to be conducted strictly at a border crossing point or transit zones. Member States may lawfully designate inland facilities as “places at the border”, provided this is transparent and grounded in national law. What matters is compliance with the legal framework—the four-week limit, procedural safeguards, and the automatic transition from the border to the regular procedure once time runs out. In such cases, detention may continue in the same facility (in what is physically the same location) on the basis of a different ground for detention under the recast Reception Conditions Directive, and with an individual assessment including a necessity and proportionality assessment. While authorities may continue processing the case as a priority, they must ensure the full procedural guarantees envisaged in the regular procedure.

A Critical Analysis of the Opinion

At first sight, the location of border procedures is supposed to be straightforward. The EU Asylum Procedures Directive (Article 43) allows Member States to examine an asylum claim “at the border or in transit zones” before granting entry into the territory. The underlying logic is clear: these procedures are exceptional, time-limited, they must be concluded within four weeks, and they should be used at the borders for an exhaustive list of grounds, particularly claims that are considered manifestly unfounded. If a decision is not reached by then, the person should be admitted into the territory to pursue the regular procedure with a fuller set of rights (See C‑924/19 PPU, FMS and others). In this way, border procedures symbolically and legally mark the threshold between “outside” and “inside”.

However, in this specific case, the Advocate General takes a pragmatic view. He argues that it does not matter whether the facility where an asylum seeker is detained during border procedures is physically located at the border. A Member State can lawfully designate an inland detention centre as a border procedure site, provided this is done transparently under national law. For him, what counts is the procedural framework: the four-week time limit, the guarantees for applicants in border procedures, and the automatic transition into the regular procedure once time runs out. Geography, he suggests, should not tie the hands of Member States struggling with capacity constraints.

This approach undoubtedly offers administrative convenience. Airports, ports, transit zones and land borders are not designed to host large detention facilities. Hence, moving applicants inland could allow governments to manage asylum seekers more effectively. Yet, in this way, the opinion stretches the original concept of the border in troubling ways, shifting this deep into the territory, as I have argued in another analysis.

First, this risks turning the border into a moving – shifting barrier. If the very same detention facility is deemed a “border” centre on Day 1 and an “ordinary” reception centre on Day 29, the symbolism of non-entry collapses. The border no longer corresponds to a physical threshold, but to a shifting legal barrier applied at the convenience of the state. This undermines the idea that border procedures are exceptional and geographically confined.

Second, the blurring of lines could weaken safeguards against prolonged detention. On paper, the four-week limit remains intact: once it expires, the applicant moves into the ordinary asylum procedure. But if nothing changes in practice—same cell, same guards, same walls—the distinction between border detention and reception detention risks becoming meaningless. For the applicant, the procedural transition is invisible (as only the legal basis changes), while the deprivation of liberty continues uninterrupted.

Third, the opinion could encourage Member States to internalise the border within their own territory. If inland centres can be designated as border sites, governments may effectively shift the “frontier” inward, applying restrictive screening and asylum regimes far from the actual crossing point. This not only distorts the purpose of border procedures but may also normalise an approach where border procedures will be implemented not only at or close to the actual border, but even in locations in the mainland far away from the border crossing point.

By relocating the border inland, the opinion risks diluting the exceptional nature of such procedures. The Court of Justice will now have to decide whether efficiency outweighs legal certainty. If it sides with the Advocate General, we may enter a new phase where “border” no longer means border, but simply wherever the state declares it to be. That would be a quiet yet profound shift in European asylum law—one that moves the frontier not only inward, but also away from the very idea of the border as a fixed point of entry.

A New Legal Framework on the Horizon

This debate will soon be reshaped by the Asylum Procedures Regulation (APR), adopted as part of the EU’s Migration and Asylum Pact and expected to be implemented from the summer of 2026. Unlike the current Directive, the APR explicitly allows border procedures to be applied not only at border crossing points but also in designated locations within its territory (See Article 54 APR). At the same time, it extends the maximum duration: an asylum application can now be examined in border procedure for up to 12 weeks (Article 51 APR), with possible extensions of another 8 weeks in crisis situations.

In other words, what the Advocate General currently justifies through interpretation will soon be hardwired into EU law. As border procedures are mainstreamed and, in certain cases, made obligatory under the new framework, the “border” will no longer be a fixed geographic line but a flexible administrative construct, movable according to state needs. Whether this development ultimately enhances efficiency or risks undermining the very concept of border procedures as a limited and exceptional mechanism is a question that Europe will now have to confront.

Conclusion

The Danané opinion illustrates how the meaning of the “border” is shifting from a fixed geographical threshold to a flexible legal concept defined by administrative choice. While this approach may accommodate the practical realities of managing asylum flows, it raises questions about whether border procedures can retain their exceptional and time-limited character once detached from geography. This dynamic reflects a wider logic of the Pact: borders shift outward through externalization and inward through legal fictions of non-entry, reshaping the link between territory and rights. The decision of the Court will determine if borders remain thresholds of protection, or become shifting spaces of control and exclusion where legal safeguards gradually erode.

 

The judgment of the Grand Chamber of the Court of Justice of the European Union on the Italy-Albania Protocol

 

 

 

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: Shëngjin Port in Albania, the location of one of the two detention centres built by Italy © Albinfo, CC BY 4.0 via Wikimedia Commons

 

Introduction

 

On 1 August 2025, the Grand Chamber of the Court of Justice of the European Union (CJEU) published its judgment in joined cases C-758 and 759/24 (Alace and Canpelli) regarding the Italy-Albania Protocol, and more specifically the designation of safe countries of origin under Article 37 of EU Directive 2013/32 (the currently applicable asylum procedures Directive). In previous blogs on the public hearing of 25 February 2025 and the opinion of the Advocate General (AG) of 10 April 2025, I gave some information on the context of the case and its high political stakes at Italian and European level. Indeed, the plan is not only critical to the political capital of the Italian government but also admired by foreign heads of government, including the UK Prime Minister, and taken as an example (or a ‘general rehearsal’) by the President of the EU Commission.

 

On this latter point, it is probably worth repeating that, while the present case was pending before the CJEU, the EU Commission:

 

-          changed its position on whether, under Directive 2013/32, Member States have the power to designate a country as a ‘safe’ country of origin with the exclusion of ‘clearly identifiable categories of persons’, by first denying this possibility in its written pleadings of (where it was argued that ‘Directive 2013/32 does not allow for the designation of a third country as a safe country of origin where a significant number of persons belonging to the same category are systematically persecuted or face a risk of suffering serious harm […]’) and then admitting in the oral arguments made at the hearing (to the surprise of the President of the Grand Chamber);

-          adopted a proposal on the idea of “return hubs” located outside the European Union, with a move that mirrors the legislative amendment enacted by the Italian government while awaiting the decision of the Grand Chamber (with decree-law no 37 of 28 March 2025) to use one of the two centres built in Albania (the one in Gjader) as a return hub to detain individuals whose claims to international protection had been rejected and who are awaiting deportation; and

-          published a proposal for amendments to Regulation 2024/1348 (the asylum procedures Regulation, applicable from June 2026) which would, among other things: (i) create a European Union-level list of ‘safe countries of origin’, including Bangladesh, the country of origin of the real individuals behind the fictitious names of Alace and Canpelli; (ii) bring forward the possibility, for Member States, to apply the new provisions allowing to designate a country of origin as ‘safe’ in spite of the existence of ‘specific regions’ and/or ‘clearly identifiable categories of individuals’ for which the country is, in fact, not safe.

 

The extreme salience and significance of the case is equally witnessed by the intervention of 16 Member States that, like the Commission, endorsed the position of the Italian Government. It is no surprise, then, that the news that the judgment of the Grand Chamber granted all of the arguments made by the defence on behalf of the asylum seekers concerned was met by a strong reaction in the media and from the Government. As a matter of fact, in a long tweet posted on the day of the judgment, the Italian President of the Council of Ministers, Giorgia Meloni, accused the Court of Justice to ‘claim[…] powers that do not belong to it’ by ‘decid[ing] to delegate to any national judge the decision not on individual cases, but on the part of migration policy relating to the repatriation and expulsion of illegal immigrants’.

 

The tweet (which is very long and available here) betrays the disappointment for the considerable difficulties and drawbacks in the enforcement of the scheme. As denounced by the Italian watchdog for the region of Lazio, who visited the centres on 30 July 2025 with his counterpart for the city of Rome, just before the judgment, the centres accommodated an ‘extremely limited number of people’ (27) which could easily be detained in the available places in the Italian structure. Against this background, one could think that the CJEU judgment would mark the end of the scheme; but this would probably be too optimistic. In fact, the CJEU did neither ban the conduct of asylum procedures in Albania, nor delved deep into the many human rights concerns inherent in the extra-territorial processing of asylum claims, which have been already highlighted in the legal literature, and to some extent already referred to the CJEU for further consideration with an order of the Italian Court of Cassation of 29 May 2025-20 June 2025 (no 23105).

 

So, while this ruling is certainly ‘another blow to a key aspect of the Italian government's migration policy’, it will most likely not be the final one. Instead, as reported in the press, from the day following Meloni’s reaction on Twitter some of her ministers are already changing their tune, saying that the CJEU judgment is actually good, because it explains to the Italian government the changes to be enacted to (finally!) activate the centres in Albania.

 

Summary of the judgment

 

The judgment focusses on the designation of safe countries of origin (SCOs), which, as explained by Judge Jürimäe, bears far-reaching consequences for asylum seekers. It triggers the application of the accelerated examination procedure and the operation of the (rebuttable) presumption that no protection is needed. The question for the Grand Chamber of the CJEU, then, was which national authority has the final say over the designation of a country as ‘safe’ under Article 37 of Directive 2013/32 and whether a country can be considered as ‘safe’ in spite of the existence of exceptions for vulnerable categories. These questions are interesting from the point of view of EU law, since, as it has been noted, the CJEU has dealt with the issue only in one prior case; i.e., the judgment of 4 October 2024 in case C-406/22 (CV), regarding the designation of a country as ‘safe’ despite the existence of territorial exception (more specifically, the case was concerned with the designation of Moldova as a SCO by the Czech Republic with the exception of the region of Transnistria). Therefore, from a general perspective, a new (and clarificatory) intervention from the Luxembourg judges was much needed.

 

However, in the specific circumstances of the Italy-Albania Protocol, the question is even more critical, as it is precisely the designation of the country of origin of an asylum seeker as ‘safe’ that allows the deportation to the centres in Shengjin and Gjader  - and ultimately the operation of the whole scheme.

 

Under the applicable legislation (the Protocol of 6 November 2023, as integrated by the Standard Operation Procedures of the Ministry of the Interior, and the ratification law no 14 of 21 February 2024), prior to the amendments enacted by decree-law no 37 of 28 March 2025, passed into law no 75 of 3 May 2025, the requirements for deportation and detention into the centres in Albania were:

 

-          the fact that a ‘migrant’, as defined by Article 1(d) of the Protocol, is intercepted by the Italian navy on the high sea (see Article 4(4) of the Protocol; paras 4-6 of the SOPs; Article 3 (2) of law no. 14/2024, which makes explicit reference to ‘persons taken aboard Italian authority vessels outside the territorial waters of the Republic or other Member States of the European Union, including as a result of rescue operations’);

-          the consideration that the person concerned does not belong to one of the vulnerable categories established by law (i.e., women, non-accompanied minors, individuals affected by clear pathological conditions, elder people - see para 1 of the SOPs); and

-          the assessment that the asylum seeker comes from a country designated as a SCO (see para 6 of the SOPs). 

 

In terms of the domestic legal system, the latter requirement stems from Article 3(3) law no 14/2024, which equalises the centres in Albania to the border and transit areas provided for by legislative decree no 25 of 28 January 2008. This is the legislation that Italy passed to implement Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status (the previous asylum procedures Directive), and that was then amended and integrated to transpose Directive 2013/32 and further EU legal instruments regarding asylum procedures. Among many other things, this legislation established a list of SCOs (at Article 2-bis, as amended by Article 1 of decree-law no. 158 of 23 October 2024) and stated that the request for international protection filed by individuals coming from one of such countries can be dealt with under the accelerated procedure (see Article 28-bis).

 

Moreover, Article 3(4) law no. 14/2024 states that the centres in Albania are to be considered as equivalent to the reception centres established by Article 10-ter(1) of legislative decree no. 286 of 25 July 1998; i.e., the so-called ‘special crisis centres’ in which are detained the ‘foreign nationals who are tracked down while crossing internal or external borders illegally, or who arrive on national territory following rescue operations at sea’. In terms of EU law, basically Italy relied on the designation of SCOs under Article 37 Directive 2013/32 to trigger the accelerated procedure under Article 31(8)(b) of that Directive and considered that the examination of the asylum request from the centres in Albania would be equal to the border procedure provided by Article 43 of the same directive. Therefore, the designation of the country of origin of the migrants concerned as a SCO is the necessary preliminary point for the operation of the entire scheme, including deportation to and detention in the centres in Albania.

 

The questions referred to the CJEU

 

For the sake of clarity, it is worth restating that the questions referred to the CJEU by the Tribunal of Rome in November 2024 concerned whether EU law, and in particular Articles 36, 37, and 39 of Directive 2013/32, interpreted in the light of Article 47 of the EU Charter on Fundamental Rights (‘the Charter’),

-          prevents Member States from designating SCOs by means of legislative instruments (acts of Parliament);

-          requires national legislation to publish the sources relied on for the designation of a specific country as a SCO;

-          allows national judges called to review the designation of SCOs to use information from sources other than those referred to in directive 2013/32; and

-          precludes a non-EU country from being designated as a SCO where there are categories of people for whom the substantive conditions for such a designation laid down in Annex I to directive 2013/32 are not met.

 

The answers of the Grand Chamber

 

At the outset, the 15 Judges assessed the admissibility of the request for referral, reminding that, according to settled case-law, ‘questions on the interpretation of EU law referred by a national court […] enjoy a presumption of relevance’ and can be refused ‘only [i] where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, [ii] where the problem is hypothetical, or [iii] where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it’. Clearly, in the mind of the Grand Chamber, none of these instances applied to the case at hand, which, on the contrary, raises questions of interpretation of Directive 2013/32 highly relevant for the solution of the case (see judgment § 38-41 with reference to the judgment of 19 December 2024 in cases C-185 and 189/24 (Tudmur) § 26)

 

The first question and the issue of disapplication

 

On the first question, the Grand Chamber followed the argument advanced by all the parties at the hearing, including the defence, and by the AG in his opinion, stating that the term “legislation” contained in Article 37(1) of Directive 2013/32 is to be interpreted in a wide manner; and that neither Article 37 nor other provisions of Directive 2013/32 sets out the specific national authority competent for the designation or the specific legislative instrument to be used for that purpose (ibid § 56 and 59-60). Finally, the Court reminded that, under Article 288(3) TFEU, Member States enjoy a margin of discretion when implementing directives (ibid § 61). So, the Court concluded that nothing prevents a Member State from issuing a list of SCOs by means of an act of Parliament.

 

At the same time, albeit acknowledging that, as stressed by the Italian Government and by all the intervening Member States, EU law leaves discretion to States when issuing the list of SCOs, the Court clarified that said discretion does neither affect (i) ‘the obligation […] to adopt all the measures necessary to ensure that the directive concerned is fully effective”, nor (ii) ‘the duty of the national judge to give full effect to the provisions of Directive 2013/32, including by dis-applying as required, of its own motion, any national rule, even if adopted subsequently, which is contrary to a provision of EU law with direct effect, without it having to request or await the prior setting aside of that national rule or practice by legislative or other constitutional means’ (ibid § 62 with reference to the judgments of 10 April 1984 in case C-14/83 (von Colson and Kaman) § 15 and of 31 March 2022 in case C-472/20 (Lombard Lízing) § 53; § 63 with reference to the judgments of 9 March 1987 in case C-106/77 (Simmental) § 21 and 24, and of 28 January 2025 in case C-253/23 (ASG 2) § 90).  

 

This argument was compounded by the reference to the right to an effective remedy and to a fair trial, enshrined in Article 47 of the Charter. Indeed, the Court quoted from the precedent of case C-406/22 and held that

 

‘Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as meaning that, where an action is brought before a court or tribunal against a decision rejecting an application for international protection, examined in the context of the special scheme applicable to applications lodged by applicants from third countries designated, in accordance with Article 37 of that directive, as safe countries of origin, that court or tribunal must, as part of the full and ex nunc examination required by Article 46(3) of that directive, raise, on the basis of the information in the file and the information brought to its attention during the proceedings before it, a failure to have regard to the material conditions for such designation, set out in Annex I to that directive, even if that failure is not expressly relied on in support of that action’ (ibid § 66 with reference to case C-406/22 § 98)

 

On this basis, the Grand Chamber concluded that the fact that a Member State decided to designate SCOs by means of an act of Parliament, while not in itself contrary to Article 37 of Directive 2013/32 or any other EU law provision, cannot prevent the national judge to “check” (“controllare”) the designation, or “subject [it] to judicial control” (“oggetto di un controllo giurisdizionale”), on the basis of the substantive requirements set out in Annex I to the directive (ibid § 66 and 67 for the answer to the question).

 

The second and the third question on the right to access to the sources used for the designation of SCOs

 

As regards the second and the third question, the Court recognised that, while it lists a series of sources that need to be taken into consideration (namely, ‘information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations’), Article 37(3) of Directive 2013/32 does not expressly set out that the national authorities are under the obligation to publish and make accessible the sources used for the designation of SCOs (ibid § 70-71). Still, the Court followed the ‘systemic’ approach indicated by the AG in his opinion and applied a three-fold argument to reach the conclusion that (i) ‘the Member State designating a third country as a safe country of origin must ensure sufficient and adequate access to the sources of information referred to in Article 37(3) of [the] Directive’ and (ii) ‘the national judge […] may, if it verifies, even incidentally, whether such designation complies with the substantive conditions for such designation set out in Annex I to that Directive, take into account the information it has gathered, provided that, on the one hand, it ensures the reliability of that information and, on the other hand, it guarantees the parties concerned the right to be heard’ (ibid § 88).

In the first place, the Grand Chamber noted that the designation of a country as ‘safe’ triggers the operation of the presumption of sufficient protection in the country of origin of an asylum seeker. However, in order to guarantee the right to challenge and rebut the presumption, the asylum seeker must be put in the condition of knowing the reasons for the designation, including the sources employed by the national authorities’ (ibid § 72-73).

 

In the second place, the Judges underscored that Article 12(1)(d) of Directive 2013/32, read in combination with Article 10(3)(b), states that during the procedure regarding the examination of their claim, asylum seekers have a right to access ‘precise and up-to-date information […] from various sources, such as EASO and UNHCR and relevant international human rights organisations, as to the general situation prevailing in [their] countries of origin’. It, then, concluded that this information is basically the same as that referred to in Article 37(3). Moreover, under Article 10(4) of the directive, the national judicial authorities hearing an appeal against a decision of refusal of protection have access to the same information (ibid § 74-75).

 

In the third place, the CJEU relied - once again - on the right to fair trial, guaranteed by Article 47 of the Charter, as a guide in the interpretation of Article 46 of Directive 2013/32, which set out the right to an effective remedy, reminding that, as it had already been stated in case C-406/22 and other precedents, the right to effective judicial protection resulting from the combination of these two provisions ‘is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such’ (ibid § 77 with reference to case C-406/22 § 86 and case law therein cited). That said, the Court remarked that effective judicial control presupposes that both the asylum seeker and the judicial authority must have full knowledge of the grounds of the decision of refusal (ibid § 78 with reference to the judgments of 4 June 2013 in case C-300/11 (ZZ) § 53 and of 29 July 2024, C-185/23 (protectus) § 79).

 

Yet, where a request for protection is denied as manifestly ill-founded since an asylum seeker comes from a ‘safe’ country, the reasons for the refusal overlap with the grounds to hold that the said country is indeed to be designated as ‘safe’ under Articles 36 and 37 and Annex I of Directive 2013/32 (ibid § 79). The ensuing conclusion that the asylum seeker and the national judge must have access to the sources and information relied on by the national authorities for the purpose of designating a country as ‘safe’ was further compounded by the literal interpretation of Article 46 of the Directive in the part that state that ‘Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU […]’.

 

In this regard, with an argument that it had already employed in case C-406/22, the Court stressed that the expression ‘ex nunc’ indicates that the examination of the judicial authority has to include ‘new elements intervening after the adoption of the decision of refusal [of protection]’; that the adjective ‘complete’ means that the national judge has to examine ‘all the elements [that] […] have, or ought to have, been taken into consideration’ in the decision of dismissal of the claim; and that the clause ‘where applicable’ highlights that the process of judicial review ‘does not necessarily have to focus on the […] merits of the request for international protection’, rather ‘it could be concerned with the procedural aspects [of the claim] […] including the designation of a third country as a safe country of origin’ (ibid § 81-84 with reference to case C-406/22 § 87-91).  

 

The fourth question on the “personal exception” to the designation of SOCs

 

Finally, the Court held that Article 37 and Annex I of Directive 2013/32 prevent a Member State from designating a country as a SCO where the substantial conditions set out in Annex I to the directive are not satisfied for certain categories of persons. The conclusion ensues from an analysis of the letter of Article 37; the context of that provision in the framework of Directive 2013/32; and the objective of the EU legislation (ibid § 91).

 

To begin with, the Grand Chamber noted that nothing in the text of Article 37 suggests the terms ‘countries’ and ‘third countries’ may be interpreted as regarding just a portion of the population, even if this portion would be the majority (ibid § 92). This was confirmed by an analysis of the context of the directive, and specifically of the “substantive criteria” listed in Annex I. Here, the CJEU disagreed with the argument put forward by the AG and held that, in spite of ‘semantic differences’ in the official translations, the adverbs ‘generally’ and ‘consistently’ (in the English version of the directive) refer to a notion of ‘invariability’ (“invariabilità” in the Italian version of the judgment, ibid § 93-96). Moreover, the Court repeated that, as it had already stated in case C-406/22, all clauses of derogation and exceptional provisions need to be interpreted in a restrictive manner (ibid § 100).

 

It is perhaps worth noting that, in giving the interpretation of Article 37 in accordance with the literal and context-based approach, the Grand Chamber does not reference case C-406/22, although the same reasoning features in that judgment at §§ 65-71. On the other hand, case C-406/22 is explicitly quoted in the argument regarding the interpretation of Article 37 based on the objectives of Directive 2013/32. Indeed, §§ 101-106 of the Alace and Canpelli judgment replicate §§ 77-82 of case C-406/22. In both judgments, the Court stated, in essence, that the purpose of Directive 2013/32 is to ensure that, even under the accelerated procedure, asylum claims receive ‘adequate’ and ‘complete’ examination, in compliance with ‘basic principles and guarantees’, and that the presumption of safety of a country of origin remains ‘rebuttable’. In this context, the Court concluded that, when enacting Directive 2013/32, the EU legislature exercised its ‘discretion’ in order to ‘strike a fair balance’ between the need to speed up the processing of asylum requests and the duty to ensure that these are given full and fair examination. In the framework of this balancing exercise, the EU legislature decided ‘not [to] provide […] for the option for Member States to exclude certain categories of persons for the purposes of such designation’. Falling within the ‘prerogatives’ of the EU legislature, this choice of the balance point cannot be questioned by Member States.

 

The same applies to the decision as to the date of entry into force of the new Regulation 2024/1348, allowing, at Article 61(2), for the designation as a ‘safe country of origin’ with exceptions for specific parts of its territory or clearly identifiable categories of persons. Once again, the Grand Chamber held that the EU Legislature decided that the new legislation will only come into effect in June 2026 (ibid § 101-106).

 

As anticipated, this reasoning is exactly the same as the one developed in case C-406/22 concerning the so-called “territorial exception”. The only difference is that the Alace and Canpelli judgment contains (at § 107) a further reference to the proposal of the Commission entailing the amendments to Regulation 2024/1348 and the anticipation of the possibility, for Member States, to apply the new provisions regarding the designation of SOCs to ‘as soon as possible before June 2026’. Even this initiative is seen as an example of the exercise of legislative prerogatives by EU institutions, which, according to the CJEU, further reinforces the conclusion that – as the legislation currently stands under the realm of Directive 2013/32 – EU law does not allow for group exceptions in the designation of SCOs.

 

Conclusion

 

As noted, the CJEU gave priority to the case of Alace and Canpelli and suspended the examination of all the other questions referred by Italian judges, including on the designation of SCOs. Yet, it is not certain that the judgment of 1 August will clear all doubts surrounding the issue, and that, as a consequence, it would allow national judges to resolve the cases before them independent from further guidance from the Court.

 

This seems to be particularly true as far as the issue of disapplication is concerned. In fact, the Grand Chamber does not seem to answer in full to the argument, put forward by the Italian government, that the effective remedy available to the concerned asylum seeker to question, in general terms, the designation of a his or her country of origin as ‘safe’ is a challenge of constitutionality. By the same token, the Grand Chamber can be said to have failed to address the views of the Italian Constitutional Court in its most recent case law in this regard, as for example judgment no 181/2024, which introduced the concept of “constitutional tone”.

 

In the case, this view was supported by all the intervening Member States and the Commission with a more general argument aimed at underlying the difference between a general judicial review, which would involve the possibility, for the national judge, to question whether the designation of a country as ‘safe’ complies with the criteria laid down in Annex I of Directive 2013/32, and a more individualised assessment that the national judge will perform on whether the designation of a third country as a SCO does not apply to the individual(s) whose case is under examination, meaning that, for them and only for them, the country cannot be considered as ‘safe’. According to this argument, that in my opinion was best summarised at the hearing by the counsel for the German Government:

 

-          Directive 2013/32 distinguishes between the general designation of a country as a SCO, on the one hand, and the application of the concept in a specific case, on the other hand. The former assessment is based on general considerations, while the latter is based on the specific circumstances of the asylum seeker concerned.

-          Every national court has the power to perform the second assessment (application of the general designation of a country as a SCO to a specific case). However, the first assessment (general designation of a country as a SCO) must remain separate from this, and reserved to the Legislature. This is so because EU law leaves ‘leeway’ to Member States

-          If a national court believes that the general assessment that prompted the designation of a country as a SCO goes against the Constitution and/or EU law, it will have to raise a challenge of constitutionality before the constitutional court.

 

This was certainly taken into consideration by the AG in his opinion, which highlights the difference between a general challenge to the designation of a SCO and the decision, based on the specific circumstances of the case, that the designation does not apply to one or more individuals. This is probably the reason why, in his opinion, the AG never mentioned dis-application and rather chose to rely on the right to judicial protection (Article 47 of the Charter) and the right to an effective remedy (Article 46 of Directive 2013/32).

 

Against this backdrop, it seems as though the judgment does not really engage in these nuances. Indeed, the Grand Chamber refers to both dis-application and the right to an effective remedy when establishing that the national judge has the power to review the designation of a SCO. Yet, that part of the judgment may appear to be excessively straightforward. Indeed, the Court does not explicitly say that Article 37 and/or Annex I of Directive 2013/32 have direct effect, but merely implies this when referring to disapplication at § 63 of the judgment.

 

This omission is all the more apparent when considering that

 

-          the question as to whether Article 37 has direct effect was referred to the CJEU by the district Court of Bologna in case C-750/24 Ortega, but the Court suspended the examination of that request and gave priority to Alace and Canpelli;

-          in a different section of the judgment (at § 77) the Grand Chamber explicitly says that Articles 47 of the Charter and Article 46 of the directive have direct effect;

-          as I have already argued in my previous blog it does not seem too obvious that Article 37 qualifies as a provision of EU law capable of having direct effect on the basis of previous case law of the CJEU on the matter.

 

That said, it is also true that, leaving aside technicalities that may well be addressed in future cases, the answer of the Grand Chamber on the matter is clear: the need to ensure a full and fair examination of asylum claims at the European Union level requires that the national judge has the power to review each and every aspect of the request, including the designation of a country of origin as ‘safe’. In this sense, the judgment fits in the CJEU case law that has historically underscored the importance of the role of the national judge in the correct implementation of EU law.

 

The conclusion is the same as far as the answer to the fourth question is concerned, as it is indeed remarkable that the CJEU dismissed the “pragmatic” approach put forward by the Italian Government and resisted the “pressure” exerted by the intervening Member States and by the abrupt change of position of the Commission. The Grand Chamber also disavowed the opinion of the AG, which clearly favoured a loose interpretation of Article 37 and Annex I of Directive 2013/32, including on the basis of a questionable interpretation of the letter of the latter provision. Instead, the CJEU followed the defence, which had argued that ‘the letter of directive 2013/32, and especially its Annex I […] leaves no doubt as to the absolute impossibility to designate a country as a SCO whenever there are elements to hold that the country is, in fact, not safe for specific categories of people’. In so doing, it stressed the importance of the meaning of the hendiadys “generally” and “consistently”, saying that these terms require that the situation in a given country is “invariably” safe for its entire population.

 

Interestingly, while the reply to the first question can be read as a re-affirmation of the central role of the judiciary, the answer to the last question focusses on the prerogatives of the EU Legislature when exercising its discretion and striking a fair balance between the two conflicting objectives of Directive 2013/32; i.e. the interest to accelerate the examination of asylum claims vis-à-vis the duty to respect the basic rights of the asylum seekers.

 

For this reason, it seems to me that, rather than in terms of a conflict of powers (judiciary v executive) or institutions (EU v Member States), the judgment of 1 August 2025 should be read under the lenses of the tyranny of values. In this perspective, the issue is not as much which authority has the final say over an asylum claim, but whether, as a community based on the Rule of Law, the European Union and the Member States intend to place emphasis on pragmatic considerations regarding the burdensome effects of a large influx of asylum seekers, or whether the polar star is and remains the protection of fundamental rights - first and foremost the right to effective judicial protection.