Chiara Favilli (University of Florence) and Luisa Marin (University of Insubria/ EUI)
Photo credit: Presidenza della Republica, via Wikimedia Commons
1. Introduction:
a long-awaited judgement full of implications for the EU
asylum system
On the 1st
of August 2025, the long-awaited Alace and
Canpelli judgment was released, providing interpretation to the ‘safe country of origin’ notion, a crucial legal notion in EU asylum law and
politics.
With the case at
hand, together with the previous ruling on
CV,
the Court of Justice of the European Union (CJEU) has given a landmark judgment
in the context of the Common European Asylum System (CEAS). Furthermore, it
placed clear boundaries on the implementation of the instruments of the Pact of
Migration and Asylum, most notably on the Procedures Regulation No. 2024/1348, replacing
the 2013 Procedures Directive, and due to enter
into force in June 2026.
In another
perspective, with a decision in full continuity with its case law, the CJEU
halts the ambitions of the Italian Government in the politics of extraterritorial asylum processing, a domain
in which Prime Minister Giorgia Meloni has politically invested (here). At the same time, the success of this
policy has been viewed as a cornerstone of the overall package of ten legal
acts translating the Pact on Asylum and Migration. This policy
embeds the idea of ‘protection elsewhere’ and rests on the
principle of safe country; it presupposes that asylum applications can be
handled with a special procedure, while protection-seekers are held in
detention in border areas. The Italian Government has built a couple of
detention centres in Albania. Earlier on, also UK has made similar moves with Rwanda.
The salience of
this case is witnessed by the fact that 16 governments have been granted
intervention, 15 of which in support of the Italian Government, with the
exception of Germany. Interestingly, it should be stressed that the Commission
sidelined most Member States, changing its position during the unfolding of
the written and oral proceedings before the CJ. Moreover, other 60 preliminary
rulings raised by Italian judges were pending before the CJEU, involving
similar issues: they will likely now be dismissed.
For Italy, this
case has an additional and peculiar salience since the extraterritorial asylum
processing policy has represented a political investment of the current
Government, and the legislation has undergone several changes since 2018. These
reforms gave rise to a number of significant issues that were the subject of
many judicial challenges. Italian judges called upon to validate detention
orders or rule on appeals against applications declared manifestly unfounded
decided that there was a conflict with European Union law and in several cases
they have set aside domestic law.
This reaction has
pushed the Government to reignite a long-standing friction between (fractions
of) the Italian political spectrum and the judiciary.
This comment is
devoted especially to the European Union law dimension of this case, with a
special focus on its constitutional relevance.
2. The concept of ‘safe country of origin’ in Italy, its criticalities and its relevance in current asylum politics
The concept of ‘safe country of
origin’ – which sets out a rebuttable presumption that the country of origin of
asylum-seekers is ‘safe’, justifying fast-track processing of the asylum claim –
was introduced into EU law through the first Procedures Directive (Directive
2005/85/EC). This was confirmed with some amendments in the second Procedures Directive (2013/32/EU), still in force until
replaced by Regulation 2024/1348, which will apply from June 2026 (see here). According to both Directives, the
introduction of this concept into national law was an option for Member States.
Italy, for example, only introduced it in 2018, as
previous governments deemed it incompatible with the constitutional right to
asylum (Article 10, para. 3, It. Constitution). Lately, in 2024, however, Italy
adopted one of the longest lists of safe countries of all the Member States
(see here).
Furthermore, no
genuine system for applying the ‘safe country of origin’ concept in Italy has
ever been established. Responsibility for designation was delegated to the
Government through an interministerial decree, without no transparency
regarding the analysis of sources or of documentation used and without the
involvement of independent subjects. Following formal requests by civil society organisations,
this documentation was disclosed, revealing an extensive use of exceptions
based on parts of a country’s territory and categories of persons, which were
expressly allowed under Article 2-bis of Legislative Decree No. 25/2008. These
many critical issues quickly came to light in the form of lively litigation
before the Italian courts, especially during the validation of detention or in
appeals in the context of an accelerated procedure (see here).
Several judges noted
that the Italian provisions infringed upon the technical requirements for designating
‘safe countries of origin’ set out in Article 37 and Annex I of the 2013
Procedures Directive. When faced with such conflicts, Italian judges invoked the tools
available to them when a national provision is incompatible with an obligation
arising from EU law: immediate protection through disapplication of the
domestic law in contrast with EU law and a request for interpretation of the EU
act through a preliminary reference to the Court of Justice. A preliminary
reference was also submitted to the Italian Court of Cassation pursuant to
Article 363 of the Code of Civil Procedure, including questions on the
interpretation of the EU directive (see here).
In each case, the
Government strongly criticised the rulings. Initially, it invoked the theory of
‘political act’, later contesting the scope of judicial review, the
jurisdiction of the courts to conduct it and the admissibility of the legal
remedies being used (see here). Criticism was directed at the
widespread judicial review exercised by ordinary judges with reference to the
designation of countries as safe, referred to as a prerogative of the
Government. The Government also argued that, in this case, only the
intervention of a supreme court could have found a conflict with EU law and
that referral to the Constitutional Court would have been preferable to the
referral to the Court of Justice. In any event, the Government opposed the
widespread review by the ordinary judge, notwithstanding this is expression of
a consolidated EU law principle, established since the Simmenthal ruling: in case of conflict with EU law, a domestic law
provision must be set aside.
It should also be
noted that, in Italy, NGOs do not have standing to directly challenge the
designation of ‘safe countries of origin’ in front of courts: this specificity
makes diffuse judicial review constitutionally necessary (see, again, here). Furthermore, even in countries, such as
France, where broad standing is recognised, a court hearing an individual case
concerning measures adopted under the accelerated or border procedure may still
exercise judicial review on the designation (see here).
These strong
criticisms and attacks on the judiciary resurfaced with the initial
implementation of the Italy-Albania Protocol, which creates a policy of
extraterritorial asylum processing. The two detention centres created in
Albania, which are under Italian jurisdiction, are considered equivalent to
transit zones on the Italian territory. Border procedure applies there, and
they entail the detention of asylum seekers from supposedly ‘safe’ countries of
origin. The concept of ‘safe country of origin’ thus becomes the legal basis for
the entire procedure and for the detention of asylum seekers, which is
mandatory in Albania.
When the first
judicial challenges against the detention of transferred individuals were
submitted, the Rome Tribunal observed that the asylum seekers were from Egypt —
a country that had been designated as a ‘safe country of origin’, except for
political opponents, dissidents, activists, human rights defenders and others
who might be subject to persecution. The national court applied by analogy the
legal principles expressed by the Court of Justice in the CV judgment of 4 October 2024, which ruled out territorial
exceptions for ‘safe countries of origin’. So, in the national court’s judgment,
that principle was extended also to rule out designations of ‘safe countries of
origin’ that exclude specific groups of persons (see below, para. 3.3).
Consequently, the national court set aside the national provisions and refused to
validate the detentions of individuals transferred to Albania, who were brought
back to Italy.
As a reaction to this
judicial ruling, de facto freezing the effectiveness of the Italy-Albania
Protocol, the government adopted two legal acts: Decree-Law No. 158/2024 and,
subsequently, Law No. 187/2024. These established that ‘safe country of origin’
designations would no longer be made by ministerial decree, as in the previous
system, but through acts with the force of law. The aim was probably to
restrict the extent to which judicial review could be carried out and,
consequently, disapplication (see here). Furthermore, the possibility of
designating a country as safe while introducing territorial exceptions was
repealed, in compliance with the CV
ruling. However, the admissibility of group exceptions was retained. This was based on the fact that the Court
of Justice had not explicitly ruled on the latter in the CV judgment. In contrast with the interpretation given by the
judiciary, the Government also thought that such exceptions were compatible
with Directive 2013/32/EU.
As expected, this last
aspect became central in the second round of Protocol implementation. At this
stage, the Rome Tribunal, instead of disapplying, referred a preliminary
question to the Court of Justice regarding four questions, including the
compatibility of group exceptions with Directive 2013/32/EU. Other courts
followed the same path, also submitting preliminary references to the Court in
Luxembourg. Along with other pending referrals raised by various Italian
courts, this brought the total number of referrals to around sixty, all of
which concerned the same legal issues. The Court of Justice decided to examine
the Rome referral under the accelerated procedure and suspended the others,
which may now be quickly closed.
Meanwhile, other Italian judges continued
to argue that the most technically appropriate remedy was the disapplication of
national rules deemed contrary to Directive 2013/32/EU, particularly given the
clarity of the CV judgment of 4
October 2024 (see here).
In addition, the Court of Cassation also issued in December 2024 two rulings
reaffirming the need for judicial review of ‘safe country of origin’ designations
following the CV judgment. Given the
pending preliminary rulings raised in the Alace
and Canpelli cases, the Court of Cassation adopted an interlocutory order while awaiting the judgment of the
Court of Justice. However, the Supreme Court argued that it should
establish a dialogue with the latter and thus expressed its position, in
particular on the requirement for individual allegations and the admissibility
of exclusions of categories of persons. Curiously, the Court wanted to
establish a dialogue without using the tool that such dialogue allows, namely
the preliminary ruling. In fact, the ruling of the Court of Cassation was
submitted during the proceedings by the Italian Government, which clearly
considered it to be in support of its own positions. The Supreme court held,
indeed, in somewhat ambiguous terms, and contrary to CV, that asylum seekers must provide specific factual allegations
to enable the judge to challenge the legality of a country’s designation as
safe. Furthermore, it found that group exceptions are admissible, and this
opened up new questions for the courts called to interpret European Union and
domestic rules.
The positions taken by the Italian
Government and the Court of Cassation after the CV judgment have made the Italian legal context very ambiguous and
uncertain. In this context, another ruling of the Court of Justice was all the
more necessary, and the judges of the Rome Tribunal were right to refer the two
preliminary questions instead of disapplying as they had done right after the CV judgment.
- The judgment: a
total win for the multilevel system of protection of fundamental rights
The request for a preliminary ruling in
the cases at stake has been made in proceedings brought by two Bangladeshi
citizens transferred and detained in Albania on the assumption that they were
asylum seekers from a safe country of origin. In accordance with Decree Law No.
158/2024, the People’s Republic of Bangladesh is considered a ‘safe country of
origin’ even if the 3 May 2024 country profile indicates that “cases of actual
need for international protection mainly concern members of the LGBTQI+
community, victims of gender-based violence (including female genital
mutilation), ethnic and religious minorities, individuals accused of political
crimes, and sentenced to death”.
As a preliminary
remark, we must state that this case represents a total win for EU law as a
legal system based on the rule of law and fundamental rights, especially defined as right to an effective remedy in
the context of asylum applications. The Court takes a new chance to recall that
EU fundamental rights can have direct effect and entail rights to be invoked
before courts.
Several aspects of
the judgment will be commented on, with no ambition of exhaustivity.
A first aspect to
be stressed concerns the respect for the choice of the Government to intervene
with a legislative act and the notion of domestic procedural autonomy; second,
on the scope of the judicial review and its intertwinement with the fundamental
right to an effective remedy, Article 47 of the Charter of Fundamental Rights;
third, on one of the corollaries of the right to an effective remedy, i.e., access to information; fourth, on
the relation between ordinary asylum procedures, and exceptions to the rule,
i.e., border and accelerated procedures, with particular reference to the
so-called exclusion for groups of persons.
3.1. Domestic governments, the primacy of EU law and its
corollaries: nothing new under the sun
In its preliminary
observations (paras. 44-53), the Court of Justice addresses important issues
concerning the relation between ordinary asylum procedures and special regimes,
for which the definition of ‘safe country of origin’ is crucial; in this
context, it reframes the questions asked by the referring court, dismissing the
question on the interpretation of Article 38 of the Procedures Directive,
because that Article concerns the different issue of ‘safe third country’, not
the ‘safe country of origin’ issue central to this case.
The first aspect on
which this comment is devoted concerns Member States’ scope of legislative
intervention, against the background of the boundaries put by EU law and its
interpretation, as given by the Court of Justice.
With its first
question, the referring judge asked the Court whether the Governmental
designation of the list of ‘safe countries of origin’ with a legislative act
was in compliance with EU law. Interpreting Articles 36 and 37 of the
Procedures Directive, the Court does not find any obstacles in the designation of
these countries with a legislative instrument, in full conformity with the
principle of procedural autonomy of EU law. In contrast, the Court finds that
the provisions of the Directive place ‘technical requirements’, i.e., substantive boundaries as to the
procedures and requirements that domestic authorities must respect, however
leaving full discretion to the Member States as to the authority entitled to
proceed to such designation.
The procedural
autonomy of the Member States, in a context of supranational integration such
as the EU, finds a first boundary in the duty incumbent upon them to adopt
every measure to grant full effectiveness to the Directive, as interpreted in
the ruling in Von Colson:
this represents the first milestone of the CJEU’s doctrine of consistent
interpretation or indirect effect, which is based, it should be recalled, on
the principle of loyal cooperation, i.e., the Bundestreue of
EU law.
The principle of
full effectiveness of EU law gave the Court the ground to come back to one of
the milestones of its primacy doctrine, the duty to set aside domestic law
which does not conform with EU law; as known, any intervention of the States,
be it legislative or not, posterior to EU law or not, must conform with EU law
(para. 63). Lacking this, domestic law must be set aside, as consistently
interpreted by the CJEU from the 1978 Simmenthal case
onwards.
This corollary,
which is nothing but consolidated EU law, represents a first warning signal to
the Governments, i.e., that (the)
substance (of EU law) prevails over form, and that domestic legislative acts
are not sheltered away from scrutiny. In plain EU law terms, this is nothing
new under the sun.
For every Member
State of the EU, this means that the CJEU grants the uniform interpretation of
EU law, indirectly reviewing the compliance of domestic law with EU law. In
this case, EU law grants fundamental rights to individuals, in particular the
right to an effective remedy as provided for in Article 47 of the Charter and
Article 46 of the Procedures Directive.
This means that the
State is constrained in the exercise of its discretion by EU law, and this
applies to Parliament and Government as well. To the eyes of the EU law
scholar, the CJ does nothing but drawing the logical lines from the case CV (C-406/22) which originated the
referrals of the Italian courts, against the background of the 2013 Procedures
Directive that does not allow personal or territorial exceptions. The CV ruling marks the precedent that the
CJ is respecting: this is taken to the consequence that the substantive and
procedural requirements set by Articles 36 and 37 and the right to an effective
remedy, as implemented in Article 46, section 3, read juncto with Article 47 of the Charter, certainly allows the
Government to set its list of safe country of origin, leaving however intact
the right to a full judicial scrutiny on whether such designation respects EU
law.
The consequence is
set (in paragraph 67) and it represents a development of the consolidated case
law of the CJ in this matter. This triggered the nervousness of the Italian
Government; however, by recalling that the domestic judge must be able to
scrutinise the Italian instrument providing for a list of ‘Safe Countries of
Origin’ – be it via legislation or a regulatory instrument – the CJ interprets
the scope of the judicial review as provided for in the European Union
directive: also in this respect, we are in line with consolidated European
Union law doctrine on the scope of judicial review in the context of: again,
nothing new under the sun.
3.2. Between of law and politics: the designation of the
Safe Country of Origin and its scrutiny
Other questions
raised by Italian courts concern the degree of openness of the Government as to
its sources concerning the designation of a country as a ‘safe country of origin’
(paras. 69 ff.). This part of the judgment is very salient, as it places clear
boundaries on the level of discretion enjoyed by States and turns this
discretion into a matter of judicial review. In particular, the CJ states that
though the Directive does not provide for the obligation to disclose the
sources of information according to which the Government preceded to the
designation of a country as a ‘safe country of origin’, it nevertheless remains
that the asylum-seeker must be able to rebut the presumption of safety of the
third country if he or she can prove such circumstance in light of his or her
personal situation. However, this is possible only if he or she can know the
grounds on which his or her country has been deemed ‘safe’ (para. 73).
These paragraphs
are important as they bring the whole matter to a question of the full extent
of the exercise of the right to an effective remedy. The CJ recalls its case
law on asylum law in relation to the Czech Republic and Hungary. In this
context, the case law concerned various epiphanies of the rule of law crisis
hitting the EU in the last decade. The Court therefore concludes that both the
applicant and the judge must be able to have full knowledge of the sources of
information on which the designation of a country as a ‘safe country of origin’
is made (para. 80). This means that the scope of judicial review of the
domestic judge is very broad (para 80 and ff.) and can touch upon the
procedural aspects of an asylum application, among which we find the grounds
justifying the designation of a country as a ‘safe country of origin’ (Case C-406/22,
paras. 90 and 91).
It is therefore in
this perspective that the CJ can assert that domestic courts are in full
control of the application and domestic implementation of the directive (para.
85). Therefore, the State must grant adequate access to sources of information
on which the designation is made, and the judge must check whether the
designation respects the conditions set by the directive.
3.3. The asylum system, between rule and exceptions
In its previous
judgment CV of 4 October 2024, the
Court of Justice clarified that the definition of a ‘safe country of origin’ must
be interpreted restrictively, as it introduces derogatory procedures with
significant limitations in terms of procedural and judicial guarantees. Thus,
it cannot be applied to situations beyond those conceived by the EU legislator.
The Court therefore held in that judgment that exclusions based on parts of a
territory are not allowed, as they are not provided for in Directive 2013/32/EU.
In light of the clarity of the Court’s ruling and the interpretative criteria
it outlined, Italian judges were fully entitled to disregard the national
legislation to the extent that it included exclusions for specific groups of
individuals. This was particularly pertinent given that, even when expressly
provided for, such exclusions were subject to stricter and more limited
conditions than territorial exceptions.
Indeed, under the
first Procedures Directive (Directive 2005/85/EC), it was envisaged that a list
of ‘safe countries of origin’ could be adopted at the European Union level and
that both types of exceptions — territorial and personal — would be subject to
different regimes. The 2005 Directive allowed Member States to designate part
of a country as safe, provided the conditions set out in the Directive were met
in that part. Regarding groups of persons, Article 30(3) of the 2005 Directive
introduced a standstill clause, whereby the directive prohibited Member States
from newly designating a country as ‘safe’ based on the exclusion of specific groups
of persons. Instead, it permitted Member States to maintain national provisions
in force on 1 December 2005, under which a country or part thereof could be
considered safe for a specific group of persons. Thus, from the outset, the
regime of personal exceptions was limited to the operation of this standstill
clause, and did not amount to a proper exception in the same way as territorial
exclusions.
In any case, Directive
2013/32/EU -the instrument applicable ratione
temporis– repealed both the territorial exclusions and the standstill
clause. This means that, since then, Member States have been unable to maintain
or introduce provisions designating only parts of a country as safe or deeming
a country safe for particular groups of individuals. The purpose of abolishing
these exceptions was to reduce fragmentation and ensure that Member States
comply with the criteria set out in the directive. This was necessary because,
in the absence of a common EU list, each Member State adopted or maintained its
own list, and such lists were often very different from one another.
The preparatory work
makes this quite clear: when explaining the new Article 33 (later renumbered
Article 37 of the current Directive), the Commission stated: ‘The substantive
criteria for the national designation of safe countries of origin are further
clarified in this Article.’ In essence, the amendments aim to ensure that the
application of the notion is subject to the same conditions in all Member
States covered by the Directive. Firstly, references to the minimum common list
of safe countries of origin are deleted. Secondly, the optional provision
allowing Member States to apply the notion to part of a country is also
deleted. The material requirements for national designation must therefore be met
with respect to a country’s entire territory. Furthermore, it is proposed that
the stand-still clauses, which allow Member States to derogate from the
material requirements with respect to a country or part of a country, and/or
apply the notion to a specified group within that country or part of it, be
deleted.” (European Commission, COM(2009) 554 final of 21 October 2009, Annex,
p. 15; see also CV, point 75).
However, Member States
ignored this change introduced by the 2013 Directive, retaining or introducing ‘safe
country of origin’ rules that included exceptions. Italy did the same,
introducing them for the first time in 2018 alongside the notion of a ‘safe
country of origin’. However, the formulation of the personal exceptions in
Italian law reversed the structure set out in the 2005 Directive: under that
Directive, a country could be considered ‘safe’ only for certain groups of
people, whereas under the Italian regime, a country is considered ‘safe’ except
for certain groups of people.
Given the widespread
use of exceptions by Member States, it is not surprising that the new
Regulation (EU) 2024/1348 reintroduces the possibility
of designating a country as safe while excluding parts of its territory or
certain categories of persons. However, in line with the 2005 regime, this
Regulation also restores the Union’s competence to adopt a common list, moving
once again towards harmonisation.
The gap between the
EU’s legal framework and the practice of Member States in designating countries
as safe has thus returned to the courtroom. The Court of Justice was so called
upon to clarify the specific regime of exceptions for groups of persons and the
relevance of the new Regulation 2024/1348/EU.
The issue of personal
exceptions was also the subject of specific questions raised by the Court of
Justice during the hearing held on 25 February 2025, some of which were
addressed to Member States and others to the Commission. However, the
Commission responded in a rather evasive manner, even changing its position
from that expressed in its written observations without presenting any
plausible legal justification. The Advocate General, in his opinion, supported
their admissibility, though he limited their practical application to clearly
identifiable groups (here). This aspect alone would have been
enough to make the designation of several of the 19 countries on its ‘safe
country of origin’ list questionable.
Reaffirming the
interpretative principles it had already set out in its ruling CV of 4 October 2024 (paras. 102-104),
the Court of Justice held that personal exceptions are inadmissible (para.
109). However, unlike the CV, the Court does not use the chronological argument
based on the legislator’s intention to abolish the two exceptions — personal
and territorial — with Directive 2013/32/EU. In our opinion, this argument is
already very strong. Based on a strict literal interpretation, the Court even
states that a country can be considered ‘safe’ if the requirements in Annex I
apply to all persons without exception, unless there is a different legislative
provision (para. 96). Moreover, it emphasised that the concept of a ‘safe
country of origin’ entails a derogatory regime which must be interpreted
restrictively and cannot be applied more broadly than is strictly permitted by
the literal and contextual reading of the Directive and its objectives, namely
a swift and thorough examination of asylum applications (paras. 99-105). In
particular, Directive 2013/32/EU saw the Union legislator make a different
policy choice to that made in 2005, and again in 2024 with the new Regulation
2024/1348/EU
Both territorial and
personal exceptions were permitted under the 2005 Directive and will again be
permitted under Regulation 2024/1348/EU, effective from 12 June 2026, but with
no option for unilateral early application. The Court emphasised that it is the
responsibility of the Union legislator to reverse the 2013 decision to repeal
these exceptions by adopting a new approach, which has now been formalised in
Regulation 2024/1348/EU (paras. 106-107). However, it cannot be applied before
the formal entry-into-force date unless expressly provided for by a legislative
amendment, which is already underway.
This clarification is
particularly welcome in the Italian context, where the Court of Cassation had
ruled that the current legal framework should be interpreted in light of
Regulation 2024/1348/EU, invoking the concept of a ‘regulatory environment’ — a
notion entirely unfamiliar to the Italian system of legal sources, but that was
held by the Government in order to allow a broader scope of application of the ‘safe
country of origin’ concept.
In the CV judgment, the Court of Justice
remarked that the new balance set out in Article 61(2) of Regulation 2024/1348
‘must comply with the requirements arising from the Geneva Convention and the
Charter’ (para. 82).
This remark is not
repeated in the Alace judgment, in
which the Court assessed the conformity of personal exceptions with EU law with
reference to Directive 2013/32 alone, rather than the fundamental right to
asylum protected by the Geneva Convention and the Charter. It seems that the
Court has carefully weighed every word and has chosen not to dwell on
unnecessary clauses in the context of the legal framework currently in force.
However, when the new regulation comes into effect, issues of compliance with
the Geneva Convention and the Charter will arise, prompting new questions for
national courts and the Court of Justice to address. Not only Regulation
2024/1348, but also all the other acts adopted as part of the reform under the
New Pact aim to reduce access to Member States’ asylum systems and simplify
application processing, with the ultimate goal of quickly proceeding with
repatriation. This is based on the belief that the majority of asylum
applications submitted in Member States are abusive, despite evidence
suggesting otherwise (see here).
- The legacy for the future
With CV and Alace and Canpelli, the Court has cleared up any doubts about how
to interpret the questions raised by national courts and how to interpret
Directive 2013/32/EU, which, however, is set to be replaced by Regulation
2024/1348 starting in June 2026: a new regulation with a fresh balance, as also
emphasised by the CJEU, between the objectives of speed and complete
examination of asylum applications. However, even under the new regulation, it
will remain possible to conduct two levels of judicial review: one on the
proper designation of the country as ‘safe’, based on criteria formulated
almost identically to those already found in the Directives, and another on the
country’s safety in relation to the individual applicant.
Obviously, the type of
appeal will differ depending on whether the judicial review concerns the
national or European Union list, but the principles established by the Court
and deriving directly from Article 47 of the Charter will remain fully
applicable. It could be argued that in this way the notion of a safe country,
interpreted restrictively as an exception to the rule, risks becoming
ineffective for governments. However, problems arise when it is misused as an
anti-immigration tool rather than as a simple mechanism to streamline and
accelerate procedures. The discrepancies and heterogeneity observed in the
lists of ‘safe third countries’ formulated by Member States is a clear
demonstration of the transformation of the function of the ‘safe country of
origin’ concept.
Aware of the
difficulties inherent in applying the concept of safe country, the new
regulation introduces a new criterion for applying accelerated and border
procedures, which will complement the ‘safe country of origin’ concept. These
procedures will apply to nationalities with a recognition rate (ie a success
rate of asylum claims) below 20% (based on annual Eurostat data), unless circumstances
change significantly since the publication of the relevant Eurostat data or the
criteria cannot be applied to a specific group of persons because the recognition
rate is not ‘representative’. This new criterion says nothing about the actual
safety of countries, but rather infers that abbreviated procedures may be
applied from the low recognition rate. This aims to avoid the problems
previously encountered when applying the ‘safe country of origin’ concept,
although it raises new ones that will certainly have to
be addressed in domestic courts, and, perhaps also by the CJEU.
Moreover, with the
regression in the protection of the right to asylum, there could also be a risk
of conflict with the constitutional right to asylum expressed in Article 10(3)
of the Italian Constitution, which has a much broader content than the concept
of international protection as codified in European Union law or as deriving
from any international convention, such as the Geneva Convention on Refugees or
the ECHR. It will therefore be inevitable that, especially from 12 June 2026,
when the new regulations adopted under the New Pact will apply, the
Constitutional Court will be called upon to rule on the possible
counter-limit that the constitutional right to asylum places on the new asylum
law.
- Once upon a time…
post-national constitutionalism, with (several) courts constraining
(aslyum) politics
So far, with Alace and Canpelli, the Court consolidated
its case law on the constitutionally oriented interpretation of the European
Union asylum framework. The logic of the Court is the logic of a constitutional
court (here and here). With the recent rulings in CV and Alace, and also with the previous case law on the Hungarian rule of
law crisis in asylum, the Court is acting as the constitutional court of the European Union
legal order, interpreting both European Union law and the domestic law giving
implementation to European directives, in a manner compliant with the core
rules of the European constitutional system, i.e., fundamental rights.
One of the
cornerstones of the rule of law is the right to an effective remedy, recognised
in the Charter of Fundamental Rights. This is an expression of the judicial
review, one of the pillars on which the rule of law is
founded, as recalled years ago by the Court of Justice in its ruling Associação
Sindical dos Juízes Portugueses. The scope of
judicial review can vary; however, in its relation with fundamental rights, and
other core provisions, every legal order becomes more rigid and constrained.
The XX century has marked the constitutionalisation of fundamental rights:
furthermore, many European countries have in their constitutional systems forms
of judicial review of the legislation. This means that in the XX century the
legislator has become more constrained than the legislator of the modern state.
In this context, the European
Union legal order is representing another layer of this process of constitutionalisation, since
it adds to Member States’ constitutional
systems and courts… a court, and this Court of Justice adjudicates
interpreting fundamental rights and core paradigms of the contemporary
constitutional state. It is precisely for this reason that the interpretation
of the CJEU can be perceived as political or invasive, but this is nothing but
a typical expression of contemporary constitutionalism in a context of
post-national sovereignty. This constitutionalisation is expression of multiple
legal orders, the domestic and the European, and is influenced also by the
European Court of Human Rights.
This case is
strongly embedded in the case law of the Court of Justice on asylum. In
its previous case law, the core concerned the interpretation of Article 47 of
the Charter, its direct effect, and its relation with primacy and one of its
implications, the duty to set aside the domestic rule in conflict with the
European Union rule. Earlier on, the CJ inferred exactly the same for the Hungarian legal order that did not provide for
remedies against decisions denying the right to asylum. With Alace and Canpelli the Court continues
its work of constitutionalisation of fundamental rights in the European Union asylum
system.
*While this blogpost is the product of a joint
discussion, section 1 is written together by Chiara Favilli and Luisa Marin,
sections 2, 3.3, and 4 can be attributed to Chiara Favilli and sections 3.1,
3.2, and 5 can be attributed to Luisa Marin.