One Legal Fiction After Another: The Court of Justice judgment on the asylum border procedure in Joined Cases C‑50/24 to C‑56/24 (Danané)

 

 

Dr. Vasiliki Apatzidou, Associate Tutor at the University of London

 

Photo credit: Nicolas Economou, via Wikimedia Commons

 

Introduction

 

The Court’s judgment in the Danané case largely confirms the core argument made by Advocate General Emiliou in his Opinion: that the border procedure in EU asylum law (which provides for a fast-track assessment of asylum claims, with the implied legal fiction that the applicant has not entered the territory) is not exclusively attached to the physical border. In my earlier analysis of the Opinion, I argued that the Advocate General had moved towards a functional rather than pragmatic understanding of the ‘border’. According to him, procedures traditionally associated with entry control may not only take place in border facilities, but also in inland facilities if they are designated as such by national law. The Court of Justice has now broadly endorsed that logic by holding that EU law does not prohibit Member States from detaining asylum applicants during asylum border procedures in centres that are not geographically located at the border, and that such detention may continue in the same place after the expiry of the four-week period envisaged for the border procedure provided that a new legal basis for detention exists. In that sense, the original thesis still stands. However, the judgment also tries to contain the consequences of this argument through a focus on safeguards.

Summary of the Judgment

 

The joined cases arose from applications for international protection lodged at the Belgian border by third-country nationals who were refused entry and detained in the Caricole Transit Centre, a facility located inside Belgian territory but treated under national law as a place ‘at the border’ for the purposes of the border procedure. In Danané, the Court confirms that Article 43 of the recast asylum procedures Directive (APD), which sets out the current version of the border procedure, does not require border procedures to be implemented only in facilities physically located at the external border, since a border procedure may also be conducted in an inland detention centre that national law treats as a place ‘at the border’.

At the same time, once the four-week period in Article 43(2) recast APD expires, the case no longer remains within the border procedure and must continue under the regular procedure, even though the applicant may still be kept in the same facility if continued detention is separately justified under the detention grounds laid down in Directive 2013/33 (the reception conditions Directive, or RCD). The Court therefore accepts a dual classification of the same place of detention. However, this may happen only on condition that the applicant is informed of the change in legal status – it should be clear that he or she is now allowed to enter the territory – and that continued detention complies with the requirements of necessity, proportionality, individual assessment, and judicial review. It also makes clear that investigative steps already carried out during the border phase may still be relied on in the subsequent procedure, and that the examination of the application may be prioritized. Significantly, detention after the four-week limit cannot become automatic or systematic for all those who are channelled from the border to the regular procedure.

 

One Legal Fiction After Another

 

What makes Danané case especially important is that the Court relocates the decisive legal limit on the use of border procedures from geography to proper legal justification and safeguards. The judgment accepts that the same detention facility may first function as a place ‘at the border’ for the purposes of Article 43 recast APD and then, once the four-week period has expired, as a place ‘in the territory’, without any necessary change in the applicant’s physical surroundings. Instead, the Court tries to preserve a merely legal distinction between the two phases. Once the four-week period in Article 43 recast APD expires, the application no longer falls within the border procedure and his or her application will be examined under the other provisions of Directive 2013/32, while any continued detention may take place in the same facility, but must comply with the safeguards and requirements envisaged in Directive 2013/33. The Court also makes clear that detention cannot simply continue under the old border-procedure logic, that the applicant must be informed of the change in his or her legal situation, and that, where appropriate, the person must receive the document certifying their status as an asylum-seeker referred to in Article 6 of Directive 2013/33 or equivalent evidence, although in practice detained applicants often do not receive prompt documentation giving practical effect to this safeguard.

Yet the real problem is that this legal transition may leave the applicant’s position almost untouched in practice. If the same person remains in the same closed facility and under the same deprivation of liberty, the transition from border procedure to regular procedure risks becoming a legal fiction itself. That is where the judgment deserves a more critical reading. Formal entry into the territory may mean very little if it is not accompanied by adequate safeguards. The reception conditions Directive links applicant status to documentation, reception conditions, education for minors, and access to the labour market under the conditions laid down in the directive, yet the judgment says relatively little about how immediate and effective those rights must be in practice where the person remains detained. If an applicant still lacks prompt documentation, cannot effectively enjoy reception rights, and remains unable to exercise rights that normally follow from being an asylum seeker who has entered the territory and whose application is processed inside the territory under the regular procedure, then the shift from border to regular procedure serves primarily the asylum authorities, which in practice gain more time to decide while preserving continuity of control.

For that reason, continued detention after the expiry of the time limit foreseen in Article 43 recast APD must be treated with particular rigour. In this regard, it is very important that the Court itself turns from geography to safeguards, stressing that such detention must satisfy the ordinary standards of the recast RCD: necessity, proportionality, individual assessment, and one of the exhaustively listed grounds in Article 8 of the RCD, together with judicial review under its Article 9. If those requirements are not applied strictly, the transition endorsed in Danané risks turning the strict four-week time limit (extended to 12 weeks according to the Asylum Procedures Regulation, part of the EU Asylum Pact, which applies to asylum applications starting on 12 June) of the border procedure into a merely formal threshold.

This case matters beyond the Belgian transit centre and beyond the immediate interpretation of Article 43 recast APD. As my earlier analysis already suggested, the judgment fits a broader trajectory in EU asylum law in which the border is becoming less a fixed territorial line and more a shifting legal frontier that can be reproduced inside the territory. Read alongside the Pact texts, especially the Asylum Procedures Regulation, which more openly accommodates designated inland locations and expands the operational importance of border procedures, Danané looks less like an isolated ruling and more like a bridge toward a more internalised model of border procedures, in which procedures traditionally confined to the border and justified as exceptional may increasingly be reproduced inside the territory. For that very reason, safeguards become more important than ever, as the more flexible the geography of the border, the stricter the requirements governing detention, procedural guarantees, and the legal consequences of the expiry of time limits must be.

Conclusion

The deeper concern, then, is not merely that the Court has de-geographised the border. It is that, once the border is treated primarily as a legal status rather than a territorial threshold, ‘non-entry’ itself risks becoming a legal fiction capable of sustaining restrictive forms of asylum processing well inside national territory. The Court’s answer is that this is acceptable so long as the relevant guarantees, both in the asylum procedure and the detention safeguards, are preserved.

Whether that answer is convincing will depend entirely on practice. If detention after four weeks is truly exceptional and tightly reviewed, the distinction between border procedure and regular procedure may still make sense. But if applicants remain in materially unchanged detention while the determining authority simply acquires more time to decide, Danané will stand as a case of one legal fiction after another. Especially under the Pact, where screening and border procedures are further mainstreamed, the central question is whether safeguards are strong enough to prevent exception from becoming the ordinary mode of asylum governance.

 

 

 

 

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.

 

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.  

 

 

 

 

 

The Italy-Albania protocol before the Court of Justice of the European Union – hearing of the CJEU

  

Matteo Zamboni (human rights lawyer working between Italy and the UK. He is a partner to the Immigration Law and Policy clinic of Goldsmiths, University of London)

 

Photo: The towers of the Court of Justice in the Luxembourg fog (c) Matteo Zamboni

 

On Tuesday 25 February 2025 I attended the Grand Chamber hearing before the Court of Justice of the European Union regarding the compatibility with EU law of the infamous Italy-Albania Protocol on asylum applications and return procedures as a partner to the Immigration Law and Policy clinic of Goldsmiths, University of London. Here is my take.

 

Introduction

 

On 25 February 2025 the Grand Chamber of the Court of Justice of the European Union (CJEU) held the much anticipated hearing regarding the compatibility with EU law of the Italy-Albania Protocol on asylum applications and return procedures. More specifically, the CJEU was called to give an answer to four preliminary questions referred by the Tribunal of Rome in November 2024.

 

Much of the reports appeared on Italian and international press focus on the “U-turn” of the European Commission, which, differently from what it had argued in its written observations, at the hearing stated that EU law grants Member States the possibility to declare a third country as a ‘safe country of origin’ within the meaning of Directive 2013/32 (the current EU Directive on asylum procedures) despite the existence of exceptions for specific at-risk groups of people for whom the country is, in fact, not safe.

 

However, there is an underlying legal issue which seems to go above and beyond this; i.e., the guarantee of uniformity in the application of EU law on asylum procedures across the European legal space.

 

Outline of the post

 

While waiting for the opinion of the Advocate General (due on 10 April 2025) and obviously for the judgment of the Court (expected before the Summer) the present post gives an account of the hearing by (a) giving a brief description of the content of the Italy-Albania Protocol; (b) summing up the procedural steps before Italian courts that prompted the referral to the CJEU; (c) reporting on the oral arguments made by the parties at the hearing and on (d) the questions asked by the Advocate General and the CJEU Judges.

 

In so doing, the contribution draws upon previous blogs which give detailed information as to (a) the relevant EU legislation (essentially directives 2005/85 and 2013/32, and regulation 2024/1348, applicable from June 2026); (b) the interpretation of the concept of ‘safe country of origin’ (SCO) given by the CJEU in judgment of 4 October 2024 (case C-406/22); (c) the questions referred to the CJEU for a preliminary ruling; and (d) the existence of other requests for referral stemming from the application of the Italy-Albania Protocol.

 

At the outset: the Italy-Albania Protocol

 

In short, and as already detailed by multiple sources, the Protocol concluded between Italy and Albania on 6 November 2023 allows Italy to process asylum applications through an accelerated border procedure from two centres built on Albanian territory (one in the port of Shengjin, the other in the city of Gjader). As clarified in the instrument of ratification (law no 14 of 21 February 2024) and in the SOPs of the Ministry of the Interiors on the implementation of the Protocol (obtained by lawyers from ASGI by means of a freedom of information request), the procedure applies only to ‘migrants’ coming from countries identified as SCOs by Italian law in accordance with relevant EU legislation, and with the exclusion of women, unaccompanied minors, and individuals affected by clear pathologies.

 

The selection of these ‘migrants’ is made by using a so-called ‘hub vessel’. In practice, eligible individuals rescued by vessels of the Italian navy on the high sea are transferred into a dedicated vessel (the hub vessel) and then brought to the centre in Shengjin for initial reception and screening procedures. They are then moved to the centre in Gjader, and therein detained while their asylum claim is processed. These individuals are then made to apply for international (or other forms of) protection directly from the centre in Albania, where they are interviewed by the Commissione Territoriale per il Riconoscimento della Protezione Internazionale di Roma (Rome Regional Commission for the grant of international protection). In case of refusal, they can appeal before the Tribunale ordinario di Roma (District Court of Rome). For this purpose, the asylum seekers are connected into the hearing via video link and represented by lawyers in Rome, who are chosen from a list. During the entire procedure, the asylum seekers remain in detention in the centre of Gjader pursuant to the reference to Article 28-bis legislative decree no 25 of 28 January 2008 contained in the ratification instrument (Article 3 law 14/2024).   

 

Finally, it needs to be underscored that, in Italian law, the list of SCOs was originally set out with a decree of the Minister of Foreign Affairs (lastly on 7 May 2024) adopted on the basis of Article 2-bis legislative decree 25/2008. However, following the CJEU judgment in case C-406/22 (which ruled out the designation of part of countries of origin as ‘safe’, under the current asylum procedures Directive), the Italian government, with the support of its parliamentary majority, passed decree-law no 158 of 23 October 2024, which directly provide an updated list of countries considered as SOCs by Italy. For our purpose, it is important to note that, along with other 18 countries, this list includes Bangladesh.

 

The case in Italy and the questions referred to the Court of Justice

 

The first transfer to Albania was performed on 14 October 2024 and concerned sixteen men – ten Bangladeshis and six Egyptians. Their requests for protection were rejected by the Regional Commission. However, ruling on an appeal brought by two individuals from Bangladesh (identified, in the procedure before the CJEU, with the fictitious names of Alace and Canpelli), the District Court of Rome did not validate their detention in the centres in Albania. Moreover, the District Court referred to the CJEU four questions regarding the concept of SCO under EU law.

 

The questions, which refer to Articles 36, 37, and 39 of Directive 2013/32 (concerning ‘safe countries of origin’), interpreted in the light of Article 47 of the EU Charter of Fundamental Rights (the ‘Charter’) and Articles 6 and 13 of the European Convention on Human Rights (‘ECHR’), ask the CJEU in Luxembourg whether EU law:

 

(1) precludes Member States from designating SCOs by means of legislative instruments (acts of Parliament); 

 

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

 

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

 

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

 

The oral arguments made by the parties

 

This section resumes the arguments made by the parties at the hearing.  

 

The defence

 

The legal teams for Mr Alace and Mr Canpelli coordinated their oral pleadings. The defence thus opened by underlining that the designation of a country as a SCO bears critical consequences, as it triggers the application of the accelerated procedure, entailing serious hindrances to the right of the individual requesting international (and/or other forms of) protection, including shorter time-limits, the presumption (albeit rebuttable) that no protection is needed, and (under Italian law implementing the protocol) the detention pending the examination of the request.

 

That said, the defence moved very quickly on the first question, as it seems rather obvious that EU law does not mandate nor prevent Member States from resorting to specific acts (legislative or others; e.g., ministerial decrees) to implement the rules set out in secondary EU legislation. So, in this case, nothing prevents Italy from designating SCOs by means of legislation; i.e., acts of Parliament.

 

According to the defence, however, this should always guarantee the principle of legal certainty and the respect of the right to an effective remedy. As a consequence, with reference to the second and third question, the defence argued that Member States are under the obligation to make public the sources used to proceed to the designation of SCOs and that national judges cannot be prevented from performing their own research and use other sources to review the decision to consider one country as safe, in the specific case.

 

As regards the fourth question, the defence maintained that the letter of directive 2013/32, and especially its Annex I, read in the light of the subsequent amendments to the relevant EU legislation, leaves no doubt as to the absolute impossibility to designate a country as a SCO whenever there are elements to hold that the country is, in fact, not safe for specific categories of people.

 

The Italian government

The Italian government began the pleadings by addressing the fourth question, concerning the possibility to designate a country as ‘safe’ notwithstanding the existence of exceptions for certain categories of people. Relying on recital 42 in the preamble of directive 2013/32, the government argued that the expression ‘generally and consistently’ contained in Annex I is to be interpreted as meaning that a country is to be deemed safe when it is such for the majority of its nationals. Otherwise, it would be impossible to designate SCOs. In fact, in the view of the Italian government, most countries are in fact ‘un-safe’ for certain categories of persons. In this regard, the government added that the contrary interpretation, according to which a country can be designated as ‘safe’ under EU law only when it is such for the generality of its nationals, would be ‘desirable but unrealistic’ and overall ‘unreasonable’. In support of this argument, the government cited Article 59 § 2 of new regulation 2024/1348 (even though it does not apply yet).

 

In closing on this point, the government argued that the accelerated procedure still guarantees all of the substantive rights of the asylum seeker. The Italian government, thus, openly disavowed the interpretation given by the CJEU in case C-406/22 (see, in particular, § 71), where the Court held that, due to its exceptional nature, the interpretation of the rules concerning the accelerated procedure should always be a restrictive one. To the contrary, according to the Italian government, the accelerated procedure guarantees in full the right to asylum and the possibility to obtain judicial review, so that it should not be seen as ‘exceptional’ when compared to the ordinary one. The only difference, the Government said, is that the accelerated procedure is faster, which goes to the benefit of the State concerned as well as of the asylum seekers.

 

Finally, and this is the core of the Italian case, the government stressed that EU law leaves discretion to Member States when issuing the list of SCOs.

 

Turning to the other questions, the Government stated that Italy has a right to designate SCOs by an act of Parliament and that there is no need to make the sources used for the designation publicly available, as transparency is guaranteed by internal parliamentary rules stating that discussion in Parliament is public. In addition to more detailed arguments taken from the letter of directive 2013/32, the Government argued that EU law cannot impact on the constitutional system of Member States. Therefore, in accordance with the principle of the separation of powers enshrined in the Italian constitution, it is for the Legislature to designate SCOs in general terms, while the power of national judges is confined to evaluate whether, in a specific case, the designation applies to a given asylum seeker. At the most, the national judges can refer the question regarding the general designation of SCOs to the (Italian) constitutional court.

 

The other Member States

 

Thirteen Member States (Czech Republic, Germany, France, Cyprus, Hungary, Malta, the Netherlands, Austria, Poland, Slovakia, Finland, and Sweden) participated in the proceedings by filing written observations and seven Member States (Bulgaria, Czech Republic, Germany, Latvia, Lithuania, Hungary, and Sweden) were present at the hearing.

 

Generally speaking, all of these countries supported the position of the Italian Government. Among them, the arguments made by Germany, Hungary, and Sweden seem worth mentioning.

 

The German government focussed on the issue of which national authority has the power to designate a country as a SCO and which remedies may be enacted to challenge this designation at the domestic level. According to Germany, EU law (directive 2013/32) distinguishes between the general designation of a country as a SCO, on the one hand, and the application of the concept in a specific case, on the other hand. The former assessment is based on general considerations, while the latter is based on the specific circumstances of the asylum seeker concerned.

 

Against this background, the position of Germany is as follows: Every national court has the power to perform the second assessment (application of the general designation of a country as a SCO to a specific case). However, the first assessment (general designation of a country as a SCO) must remain separate from this, and reserved to the Legislature. This is so because EU law leaves ‘leeway’ to Member States in performing the first assessment. Therefore, in the opinion of the German government, a system that reserves the first (general) assessment to Parliament is not only compliant with EU law, but actually more transparent and democratic. This general assessment can be reversed by the constitutional court, which has the power to review the constitutionality of legislation. Instead, if a national court believes that the general assessment that prompted the designation of a country as a SCO goes against the Constitution and/or EU law, it will have to raise a challenge of constitutionality before the constitutional court.

 

The government of Hungary stretched this argument to the widest possible extent. In their view, only national constitutional courts have the power to review the (lack of) legality of the legislation establishing the list of SCOs. In reaching this conclusion, the Hungarian government insisted on the concept of ‘room for manoeuvre’, arguing that Member States enjoy wide discretion in the implementation of EU law. 

 

Finally, the pleadings of the government of Sweden differed from the previous ones in that they highlighted that the questions referred to the CJEU are relevant to the whole of the EU, since asylum procedures must be effective throughout the European Union legal space, without prejudice to the right of all individuals to effective judicial protection in terms of individual examination of their requests. Moreover, the Scandinavian State pointed out that, in its domestic legal system, there is no general list of SCOs. Instead, it is for each national court adjudicating on asylum claims to determine whether a legal principle that is being challenged is compatible with EU law.

 

All the same, in addressing the first two questions the Swedish government stood with Italy, arguing that the way in which the Italian Legislature decides to designate SCOs is not a matter for EU law. This position was justified by referring to the principle that it is incumbent on each Member State to organise its legal system in accordance with the overarching principles stemming from EU law and from its constitutional settlement.

 

The EU Commission

 

Finally, the lawyer for the Commission made the following points:

 

(a) in general terms, the national judge who finds that the definition of a third country as ‘safe’ is problematic must refer the question to a specific judicial authority; e.g., the constitutional court;

 

(b) in the specific case, the national judge has the power to find that the designation of a third country as a SCO does not apply to the individual(s) whose case is under examination, meaning that, for them and only for them, the country cannot be considered as safe;

 

(c) the fact that the exception concerning categories of people was established in directive 2005/85, but not replicated in directive 2013/32, does not in itself preclude Member States from providing for such exception in the national lists of ’safe countries’;

 

(d) Article 37 of directive 2013/32 empowers Member States to make a discretionary evaluation as to which countries to include in the list of SCOs; 

 

(e) consequently, nothing prevents Member States from including in the list of SCOs countries that may not be safe for a category of persons;

 

(f) it is irrelevant whether these categories include a large number of individuals (e.g. the category of ‘women’); what matters is that each category is clearly defined;

 

(g) the formula ‘generally and consistently’ contained in annex I to directive 2013/32 needs to be interpreted as meaning that a country cannot de deemed to be ‘safe’ under EU law when there are ‘systematic’ violations of human rights.

 

The questions from the Advocate General and the Court

 

The questions asked after the first round of pleadings give an indication as to the possible approach that the Court will take on the matter.

 

To begin with, the Judge rapporteur asked the Commission to clarify its position regarding the fourth question; i.e., the possibility to consider a country as a SCO notwithstanding the existence of specific at-risk categories. Interestingly, the question was reinforced by the President of the Court, which noted the possibility of a misunderstanding due to the very nuanced position taken by the EU institution. In its reply, the Commission clarified that, in its opinion, directive 2013/32 does not preclude this possibility.

 

As noted in the press, this position is different from the one stated by the Commission in its written observations, where it was argued that ‘Directive 2013/32 does not allow for the designation of a third country as a safe country of origin where a significant number of persons belonging to the same category are systematically persecuted or face a risk of suffering serious harm […]’.

 

Secondly, the Advocate General asked the Italian Government some specifics as to the review of constitutionality in the Italian system. Among other things, he enquired whether the Constitutional Court is empowered to review compliance of Italian law with EU law (including Annex I of directive 2013/32) and if a question of constitutionality can be raised by the local/district courts (courts of first instance).

 

The Italian government replied in the affirmative, holding that the question of constitutionality can be raised by all national judges and that the constitutional court can indeed evaluate compliance of national law with EU law. Moreover, the government reminded the CJEU that the constitutional court could, if it deems it useful, raise preliminary questions to the CJEU. In so doing, the Italian government unreservedly affirmed its view that the challenge of constitutionality provided for in the Italian legal system constitutes an effective remedy for the purpose of EU law.

 

In a second round of questions, the AG asked the Italian government about the periodic update of the Italian list of SCOs, that was due on 15 January but, as of the date of the hearing, was not published. In particular, the AG asked whether resorting to an act of Parliament for each and any update of the list of SCOs did not risk to excessively slow down the process.

 

In reply, the Italian Government informed the Court that the new list was about to be published and that the legislative process is not excessively burdensome (!) and thus not liable to cause undue delays.

 

Moreover, the AG questioned the reasons why the sources used by Parliament to designate a country as a SCO could not be made public and asked whether the Italian Government is perhaps using confidential sources.

 

The Government denied using confidential sources, but defended the position not to make them publicly available, trailing back to the argument that the legislative process is transparent, and that parliamentary discussion is public.

 

Finally, two Grand Chamber judges pressed the Italian government on the underlying issue of supremacy of EU law. In their questions, the judges asked whether a national judge that has no doubt over the non-compatibility of the national legislation designating SCOs with the criteria set out in Article 37 and Annex I of directive 2013/32 would, in any event, be forced to raise a question of constitutionality. This point was compounded by the apt reminder that, under the general principles of EU law as interpreted by the consistent case law of the CJEU, every national judge, including in first-instance proceedings, is empowered to assess the compliance of national law with the acquis communautaire.

 

Even there, however, the Italian government stuck to the position that it is only for the Constitutional Court to look at whether a manifest and general error was made in the general designation of a country as a SCO, while the power of lower courts is confined to the evaluation of the specific case. In the government view, it is to be reiterated that this is so because Member States enjoy discretion when making the general designation of SCOs.

 

Conclusion

 

While it is impossible to second-guess the outcome of the case, it is rather safe to assume that, contrary to what was held in press reports, the judgment on the four questions referred to the CJEU will not put an end to the litigation over the Italy-Albania protocol.

 

As noted by the CoE commissioner on human rights, future litigation may involve questions regarding the overall fairness of asylum procedures, the possibility of automatic detention without adequate judicial review, access to legal aid, and respect of the right to an effective remedy. On the same vein, in a report to the Italian Parliament of 30 November 2024, Professor Satvinder S. Juss from Kings College raised the question as to whether EU asylum law can be applied outside the EU.

 

Moreover, as already noted in the literature, the case insists on wider considerations concerning the ‘consistent interpretation’ of EU law.

 

Admittedly, during the hearing the issue remained in the background. The defence did not really push on it, while the Italian Government and the intervening Member States did so only implicitly, by heavily relying on the principle of procedural (and constitutional) autonomy (as evidenced, for example, by the pleadings of Sweden).

 

Yet, the questions of the Grand Chamber’s judges demonstrate that the issue is very much on the table.

 

Actually, it seems that this can be better dealt with if divided in two separate points:

 

-          first, whether the national (Italian) judge adjudicating in first instance on a request for international protection submitted by an individual coming from a country that has been designated as a SCO by Italian law is empowered to refer the question over the compatibility of national law with directive 2013/32 to the CJEU, pursuant to Article 267 TFEU, or whether this has to go, first, to the Italian Constitutional Court, who would then refer the question to Luxembourg;

-          second, whether the national judge is empowered to disapply the national legislation designating SCOs if he or she finds that this is contrary to directive 2013/32, and in particular to Articles 37 and 38 and Annex I thereto.

 

The first limb of the matter seems clearer, as it appears safe to assume that the argument of the Italian government (with support from the intervening Member States, especially the Hungarian government) on the need to raise a question of constitutionality contravenes the overarching principle that the principle of ‘the primacy of EU law […] requires […] national court[s] to be free to refer to the Court of Justice for a preliminary ruling any question that [they] considers necessary, at whatever stage of the proceedings [they] consider[…] appropriate’ (see joined cases C-188/10 and C-189/10 Aziz Melki, Sélim Abdeli).

 

The second limb of the question is not as straightforward.

 

As to the general principles, it is commonplace that, under the well-established case law of the CJEU,

 

(a) if a provision of EU law is directly effective, domestic courts must apply it in priority and are thus empowered to disapply conflicting provisions of national legislation without the need to request or await the prior setting aside of such provision by legislative or other constitutional means (see case C-106/77 Simmenthal and following case-law);

 

(b) specific provisions contained in EU directives are ‘capable of producing direct effects’ (see e.g. case C-9/70 Franz Grad and C-41/74 Van Duyn);

 

(c) the direct effect of provisions contained in a directive depend on whether they are ‘unconditional and sufficiently precise’ (see e.g. case C-236/92 Comitato di Coordinamento per la Difesa della Cava);

 

(d) if so, these provisions can be invoked by individuals appearing before national courts ‘whenever the full application of the directive is not in fact secured, that is to say, not only where the directive has not been implemented or has been implemented incorrectly, but also where the national measures correctly implementing the directive are not being applied’ (see case C-62/00 Marks and Spencer).

 

Therefore, the question is whether Articles 37, 38 and Annex I of directive 2013/32 are ‘unconditional and sufficiently precise’.

 

The existing jurisprudence is only relatively useful. True, the CJEU has already stated that, under these provisions, ‘it is for each Member State to designate safe countries of origin […] in accordance with the procedure laid down in Articles 36 and 37 and in Annex I to Directive 2013/32, namely, in particular, the adoption by the national legislature of a list of third countries in accordance with the criteria laid down in Annex I’ (see case C-404/17). Moreover, in the above-mentioned case C-406/22 the Court confirmed that, due to its exceptional nature, Article 37 must be interpreted restrictively. However, it does not seem that the Luxembourg judges had, so far, had the chance to decide over the question of direct effects of these provisions.

 

This seems indeed complicated.

 

On the one hand, the argument of the Italian Government (and of all the intervening Member States) according to which directive 2013/32 leaves discretion to States in designating SCOs seems to have some merits, and resonates with a stream of CJEU case law excluding direct effect of EU law provisions which are ‘subject […] to the to the taking of […] measure[…] by the Member States’ (e.g. case C-263/92 at § 9 and 12-14).

 

On the other hand, this stance can be said to have been overtaken by more recent case law that, in addition to their wording, focusses on the context and purpose of the EU law provisions at stake in determining whether they are capable of being directly effective. For example, this allowed the CJEU to hold that, although it required actions from the part of the Member States, the Annex to Directive 80/987 (on the protection of employees in the event of insolvency of their employer) regarding the categories of employee whose claims may be excluded from the scope of that directive within the meaning of Article 1(2) was, indeed, directly effective (see case C-441/99, in particular § 39 and 40, where the Court stated that ‘the Member State concerned has [made the designation required by the Annex]’ and therefore ‘made full use of the discretion which it enjoy[ed] […] in the implementation of the Directive’ (see case C-441/99 Riksskatterverket).

 

Against this background, the good news is that this question was referred to the CJEU by the district court of Bologna in another case concerning the application of the Italy-Albania Protocol (case C-750/24 Ortega).

 

It will no doubt be interesting to see the way in which this question will be addressed by the Luxembourg Judges. What is sure is that the case touches upon cornerstone principles of EU law and that specific expertise will be needed from the defence in order to stand up to the legal arguments made by Italy with the support of the EU commission and virtually all the other Member States.