Almost one year after the signature of the controversial Italy-Albania Protocol (Protocol and Ratification Law; unofficial English translation of the Protocol), the first sixteen migrants were sent to the detention centres built on Albanian territory, but were soon transferred back to Italy, after the non-validation of their detention by the Rome Tribunal (two of those decrees, concerning Egypt and Bangladesh, are accessible here).
This blogpost aims to situate this episode in the broader, complex and politically sensitive judicial saga concerning the definition of ‘safe countries of origin’ (SCOs).
1. Introduction: the Protocol and the decisions of the national judges
The Italy-Albania Protocol aims, in essence, to de-territorialise the processing of certain asylum applications and return procedures. Under Article 4(3) of the Protocol, the two centres built on Albanian territory will host asylum seekers “for the sole purpose of carrying out border or return procedures”. Those centres are ex lege equated to Italian border or transit zones, as per Article 3(3) of Law 14/2024, authorising the Protocol ratification. Hence, asylum seekers can be detained therein only if their application is subject to an accelerated procedure (Mentasti,2024).
In this context, the Rome Tribunal was called to review the detention in Albania of sixteen migrants, all Egyptian or Bangladeshi. Both countries were defined as SCOs in the Inter-Ministerial Decree of 7 May 2024 (criticised by Italian scholars: inter alia Pirrello, 2024). The latter enshrines the Italian list of SCOs pursuant to Article 37 of Directive 2013/32/EU (‘Procedures Directive’). On those grounds, the asylum seekers were detained in Albania as their application was to be processed via an accelerated procedure.
Thus, the Rome Tribunal assessed whether those countries could actually be considered SCOs justifying the application of that procedure. While the Inter-Ministerial Decree does not expressly provide for exceptions to the ‘safety’ of Egypt and Bangladesh, the Tribunal noted that country reports drafted by the Ministry of Foreign Affairs (‘MAECI’) clearly indicate that they are not safe for certain categories of people (e.g.political opponents in Egypt or LGBTIQ+ people in Bangladesh).
2. The concept of ‘safe country of origin’ in the case law of the Court of Justice and in the recent Italian legislative amendment
The concept of SCO was clarified at the beginning of October 2024 by the CJEU in case C-406/22, CV, interpreting Article 37 and Annex I of the Procedures Directive. In that judgment, the CJEU was called to rule on whether a third country can be defined ‘safe’ with the exception of certain parts of its territory (for a commentary: Peers, 2024). The CJEU essentially noted that, first, Article 37 only refers “to the terms ‘country/ies’ and ‘third country/ies’ without any indication that, for the purposes of such designation, those terms may be understood as referring only to part of the territory of the third country concerned” (§66). In addition, in respect of Annex I to the Procedures Directive, the CJEU highlighted that a SCO shall be “generally and consistently” exempt from persecution or similar phenomena (§§68-69), and that “the criteria set out in that annex do not provide any indication that it is open to the Member States to designate as a safe country of origin only the part of the territory of the third country concerned in which those criteria are met” (§67). The Court also stressed the exceptional nature of the accelerated procedure applicable to asylum seekers from SCOs, and the elimination of territorial exceptions in the Procedures Directive (as compared to the previous Directive 2005/85/EC) (§§70-76).
Therefore, it concluded that territorial exceptions are not allowed, and that “Article 37 of [the Procedures Directive] must be interpreted as precluding a third country from being designated as a safe country of origin where certain parts of its territory do not satisfy the material conditions for such designation, set out in Annex I to that directive”. (§§83)
The Rome Tribunal deemed that reasoning applicable by analogy to exceptions carved out on a personal basis – such as the ones established for Egypt and Bangladesh in the MAECI country reports. Hence, it found that the two countries did not qualify as SCOs, so that the accelerated procedure was inapplicable. Thus, the asylum seekers’ detention was groundless, and they shall be released and returned to Italy, where their applications would be examined according to the ordinary procedure (Mentasti, cit. underlines that the Decrees under analysis do not concern the merits of the applicants’ requests).
While initial comments support this extensive reading of the CJEU ruling (De Leo, VerfassungsBlog), the issue of SCOs with personal exceptions is highly debated in Italian courts. In that respect, the Florence Tribunal had already raised two preliminary references (currently pending: C-388/24, Oguta andC-389/24, Daloa); for a commentary: Venturi, 2024) in May 2024, asking first whether the Procedures Directive precludes the definition of a country as a SCO to the exclusion of certain categories of people or, if it allows such designation, whether it still holds true where those categories are difficult to assess in light of their number and type.
Moreover, in response to the Decrees of the Rome Tribunal, the Italian Government replaced the Inter-Ministerial Decree of 7 May 2024, an administrative act, with Decree-Law 158/2024, a source having the same value of the law. While Cameroon, Columbia and Nigeria were removed from the list of SCOs, Egypt and Bangladesh are still there. Like previous sources, the Decree-Law does not expressly lay down any territorial or personal exceptions.
3. The compatibility of the Protocol mechanism with the case law of the Court of Justice
On 25 October 2024, the Bologna Tribunal was seized by a Bangladeshi asylum seeker, whose application had been rejected via the accelerated procedure. In order to examine whether that procedure was justified, the Bologna Tribunal deemed it necessary to refer two preliminary questions to the CJEU.
First, it asked whether, under the Procedures Directive, a country can be defined as a SCO despite there being systemic and constant persecution of certain social groups, especially where their contours are not easily identifiable. Secondly, it posed the question if national courts shall disapply a national designation of a SCO, made in breach of EU law, where SCOs are listed in a national law such as Decree-Law 158/2024).
In a similar case, a few days later also the Rome Tribunal referred four questions to the CJEU (the case was registered as C-758/24 (PPU), Alace). First, it asked whether the Procedures Directive prevents the national legislature, when determining the criteria and sources according to which the national list of SCOs may be drafted, from also directly qualifying one or more countries as SCOs in a law-ranking instrument. In the event that such a designation is not per se prohibited, it asked if the same Directive prevents it where the grounds and sources of said designation are not accessible nor verifiable, thus preventing the asylum seekers from effectively challenging them and the judge from making a proper assessment. Thirdly, the Tribunal queried whether, during accelerated border procedures, the national court can autonomously search for sources of information concerning the alleged SCO, in order to ascertain its actual safety. Finally, it asked if the Procedures Directive precludes the definition of a country as a SCO, where it does not fulfil the criteria of Annex I in respect of certain categories of people.
This last question was also asked, in two ensuing cases, by the Palermo Tribunal, dealing with accelerated procedures applied to Senegalese (registered as C-763/24 PPU, Mibone) and Ghanaian (registered as C-764/24 PPU, Capurteli) asylum seekers.
Answers from the CJEU may arrive quite soon: all referring courts have requested that the cases be treated either according to the expedited procedure under Article 105 of the Rules of Procedure of the Court (‘RoP’), or even the PPU under Article 107 RoP, so that the preliminary ruling procedures at hand may take between one and one and a half year. In the meantime, a few remarks can be presented.
As regards the possibility of defining SCOs with exceptions, it will be reintroduced by the new Procedures Regulation, applicable from 12 June 2026. Therefore, the prohibition of territorial exceptions may soon become irrelevant (Michková, 2024). Moreover, in response to the Italian preliminary questions, personal exceptions might not be excluded tout court, but rather limited to clearly delimited groups (Venturi, cit). A clarification on SCOs with personal exceptions may be relevant for women ‘on the move’, migrating with their children from SCOs that are, nonetheless, actually not safe for various categories of women.
As for the second question raised by the Tribunal of Bologna, it raises a crucial issue. Although the final word will be for the CJEU, it is difficult to imagine an answer that is not positive, also according to the referring court itself. Hence, it was probably an indirect response to the Italian Minister of Justice, who had declared that national judges should not disapply Decree-Law 158/2024 as it is not an administrative act (a statement in blatant conflict with the primacy of EU law). A more interesting issue – that the CJEU may still address due to its power to reformulate questions (Šadl and Wallerman, 2019) – would have been whether Article 37 and Annex I of the Procedures Directive have direct effect, which is in principle the precondition for disapplication (C-573/17, Poplawski II). In this latter regard, though, the CJEU has already held in C-406/22 that national courts reviewing the rejection of an application processed via an accelerated procedure shall always assess whether the material conditions in the country concerned actually allow for its definition as a SCO. This is aimed at ensuring a “full and ex nunc examination” of the case, prescribed by Article 46(3) of the Procedures Directive in accordance with the right to an effective remedy also enshrined in Article 47 of the EU Charter of Fundamental Rights. Arguably, such a re-examination would be purely formal if the judge were not entitled to disapply the designation of the SCO made by the national government or legislature (Borraccetti, 2024). Therefore, it can be claimed that the CJEU has already implicitly recognised that power to disapply, regardless of whether Article 37 and Annex I have direct effect. This would, in fact, be coherent with a recent ruling of the CJEU in a different field, where it was expressly held that a national statutory provision shall be disapplied, where necessary to ensure the right to an effective remedy, even where it is inconsistent with an EU law norm devoid of direct effect in the dispute (C‑715/20, X(absence de motifs de refus), paras. 76-82).
4. Conclusion: the central role of the appreciation of national judges
One element undoubtedly emerges from the CJEU CV judgment, as well as from the numerous preliminary questions raised: the crucial role of national courts in ensuring that only countries that are actually safe can be treated as SCOs, with all the attached legal consequences for asylum seekers. Indeed, the central role of national judges in ensuring, along with the CJEU, the correct application of EU law, has often been emphasised by the Court itself (e.g. C‑64/16, Associação Sindical dos Juízes Portugueses, §33). Therefore, it may also become a central aspect in its responses to the preliminary questions referred to in this contribution.
The latest step in this judicial saga was taken by the Rome Tribunal on 11 November 2024. The Tribunal dealt with the detention in Albania of seven further asylum seekers, again from Egypt or Bangldesh. On this occasion, the Rome judges decided to stay the proceedings and refer four preliminary questions to the CJEU. While this latest Order of the Rome Tribunal is still unpublished, one of the questions referred was leaked by Italian press, according to which the main issues raised would be at least similar to those in case Alace (referred to above). In the meantime, upon expiry of a 48-hour time-limit, the asylum seekers will be returned to Italy and their applications will be assessed according to the ordinary procedure.
Marta Ramat is a Ph.D. Candidate in EU law at the School of Law of the University of Milano-Bicocca
The opinions expressed in this blog represent the position of the Author and not necessarily the one of the FAMIMOVE blog
Photo credits: Mediterranean Migrants © Francesco Malavolta/IOM 2014
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