Matteo Zamboni (human
rights lawyer working between Italy and the UK. He’s a associate to the
Immigration Legislation and Coverage clinic of Goldsmiths, College of London)
Picture: The towers of the Court docket of Justice within the Luxembourg fog (c) Matteo Zamboni
On Tuesday 25 February 2025 I attended
the Grand Chamber listening to earlier than the Court docket of Justice of the European Union
concerning the compatibility with EU legislation of the notorious Italy-Albania Protocol
on asylum functions and return procedures as a associate to the Immigration
Legislation and Coverage clinic of Goldsmiths, College of London. Right here is my take.
Introduction
On 25 February 2025 the Grand
Chamber of the Court docket of Justice of the European Union (CJEU) held the a lot
anticipated listening to
concerning the compatibility with EU legislation of the Italy-Albania Protocol on asylum
functions and return procedures. Extra particularly, the CJEU was known as to present
a solution to 4 preliminary questions referred by the Tribunal of Rome in
November 2024.
A lot
of the studies
appeared on Italian
and worldwide
press give attention to the “U-turn”
of the European Fee, which, in a different way from what it had argued in
its written observations, on the listening to said that EU legislation grants Member
States the likelihood to declare a 3rd nation as a ‘secure nation of origin’
inside the which means of Directive
2013/32 (the present EU Directive on asylum procedures) regardless of the
existence of exceptions for particular at-risk teams of individuals for whom the nation
is, actually, not secure.
Nonetheless, there’s an underlying
authorized subject which appears to go above and past this; i.e., the assure of
uniformity within the utility of EU legislation on asylum procedures throughout the
European authorized area.
Define of the put up
Whereas ready for the opinion of
the Advocate Common (due on 10 April 2025) and clearly for the judgment of
the Court docket (anticipated earlier than the Summer time) the current put up offers an account of the
listening to by (a) giving a short description of the content material of the Italy-Albania
Protocol; (b) summing up the procedural steps earlier than Italian courts that
prompted the referral to the CJEU; (c) reporting on the oral arguments made by
the events on the listening to and on (d) the questions requested by the Advocate
Common and the CJEU Judges.
In so doing, the contribution
attracts upon earlier
blogs
which give detailed data as to (a) the related EU laws
(primarily directives
2005/85 and 2013/32,
and regulation
2024/1348, relevant from June 2026); (b) the interpretation of the
idea of ‘secure nation 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 different requests for referral stemming from the
utility of the Italy-Albania Protocol.
On the outset: the
Italy-Albania Protocol
In brief, and as already detailed
by a number of sources,
the Protocol
concluded between
Italy and Albania on 6 November 2023 permits Italy to course of asylum
functions by an accelerated border process from two centres constructed on
Albanian territory (one within the port of Shengjin, the opposite within the metropolis of
Gjader). As clarified within the instrument of ratification (legislation no 14
of 21 February 2024) and within the SOPs of the Ministry of the Interiors on
the implementation of the Protocol (obtained by legal professionals from ASGI by the use of a
freedom
of knowledge request), the process applies solely to ‘migrants’ coming
from nations recognized as SCOs by Italian legislation in accordance with related EU
laws, and with the exclusion of girls, unaccompanied minors, and people
affected by clear pathologies.
The choice of these ‘migrants’
is made by utilizing a so-called ‘hub vessel’. In observe, eligible people
rescued by vessels of the Italian navy on the excessive sea are transferred right into a
devoted vessel (the hub vessel) after which dropped at the centre in Shengjin
for preliminary reception and screening procedures. They’re then moved to the
centre in Gjader, and therein detained whereas their asylum declare is processed.
These people are then made to use for worldwide (or different types of)
safety instantly from the centre in Albania, the place they’re interviewed by
the Commissione Territoriale per il Riconoscimento della Protezione
Internazionale di Roma (Rome Regional Fee for the grant of worldwide
safety). In case of refusal, they’ll attraction earlier than the Tribunale ordinario
di Roma (District Court docket of Rome). For this goal, the asylum seekers are
linked into the listening to through video hyperlink and represented by legal professionals in Rome,
who’re chosen from an inventory. Throughout the complete process, the asylum seekers
stay in detention within the centre of Gjader pursuant to the reference to
Article 28-bis legislative decree no 25 of 28 January 2008 contained within the
ratification instrument (Article 3 legislation 14/2024).
Lastly, it must be
underscored that, in Italian legislation, the checklist of SCOs was initially set out with
a decree of the Minister of Overseas Affairs (lastly on 7 Might 2024) adopted on
the premise of Article 2-bis legislative decree 25/2008. Nonetheless, following the
CJEU judgment in case C-406/22 (which dominated out the designation of half
of nations of origin as ‘secure’, beneath the present asylum procedures
Directive), the Italian authorities, with the help of its parliamentary
majority, handed decree-law no 158 of 23 October 2024, which instantly present
an up to date checklist of nations thought of as SOCs by Italy. For our goal, it
is vital to notice that, together with different 18 nations, this checklist consists of
Bangladesh.
The case in Italy and the
questions referred to the Court docket of Justice
The primary
switch to Albania was carried out on 14 October 2024 and anxious sixteen
males – ten Bangladeshis and 6 Egyptians. Their requests for defense have been
rejected by the Regional Fee. Nonetheless, ruling on an attraction introduced by
two people from Bangladesh (recognized, within the process earlier than the CJEU,
with the fictional names of Alace
and Canpelli),
the District Court docket of Rome didn’t validate their detention within the centres in
Albania. Furthermore, the District Court docket referred to the CJEU 4 questions
concerning the idea of SCO beneath EU legislation.
The questions, which confer with
Articles 36, 37, and 39 of Directive 2013/32 (regarding ‘secure nations of
origin’), interpreted within the mild of Article 47 of the EU Constitution of
Basic Rights (the ‘Constitution’) and Articles 6 and 13 of the European
Conference on Human Rights (‘ECHR’), ask the CJEU in Luxembourg whether or not EU legislation:
(1) precludes Member States from
designating SCOs by the use of legislative devices (acts of Parliament);
(2) requires nationwide laws
to publish the sources relied on for the designation of a particular nation as a
SCO;
(3) permits nationwide judges known as
to overview the designation of SCOs to make use of data from sources apart from
these referred to in directive 2013/32; and
(4) precludes a non-EU nation
from being designated as a SCO the place there are classes of individuals for whom
the substantive circumstances for such a designation laid down in Annex I to
directive 2013/32 usually are not met.
The oral arguments made by the
events
This part resumes the
arguments made by the events on the listening to.
The defence
The authorized groups for Mr Alace and
Mr Canpelli coordinated their oral pleadings. The defence thus opened by
underlining that the designation of a rustic as a SCO bears important
penalties, because it triggers the appliance of the accelerated process,
entailing severe hindrances to the proper of the person requesting
worldwide (and/or different types of) safety, together with shorter
time-limits, the presumption (albeit rebuttable) that no safety is required,
and (beneath Italian legislation implementing the protocol) the detention pending the
examination of the request.
That stated, the defence moved very
shortly on the primary query, because it appears reasonably apparent that EU legislation doesn’t
mandate nor forestall Member States from resorting to particular acts (legislative
or others; e.g., ministerial decrees) to implement the principles set out in
secondary EU laws. So, on this case, nothing prevents Italy from
designating SCOs by the use of laws; i.e., acts of Parliament.
In line with the defence,
nevertheless, this could at all times assure the precept of authorized certainty and the
respect of the proper to an efficient treatment. As a consequence, with reference
to the second and third query, the defence argued that Member States are
beneath the duty to make public the sources used to proceed to the
designation of SCOs and that nationwide judges can’t be prevented from
performing their very own analysis and use different sources to overview the choice to
contemplate one nation as secure, within the particular case.
As regards the fourth query,
the defence maintained that the letter of directive 2013/32, and particularly its
Annex I, learn within the mild of the next amendments to the related EU
laws, leaves little doubt as to absolutely the impossibility to designate a
nation as a SCO at any time when there are parts to carry that the nation is, in
reality, not secure for particular classes of individuals.
The Italian authorities
The Italian authorities started the
pleadings by addressing the fourth query, in regards to the risk to
designate a rustic as ‘secure’ however the existence of exceptions for
sure classes of individuals. Counting on recital 42 within the preamble of
directive 2013/32, the federal government argued that the expression ‘typically and
persistently’ contained in Annex I is to be interpreted as which means {that a}
nation is to be deemed secure when it’s such for almost all of its nationals.
In any other case, it will be inconceivable to designate SCOs. In actual fact, within the view of
the Italian authorities, most nations are actually ‘un-safe’ for sure
classes of individuals. On this regard, the federal government added that the opposite
interpretation, in response to which a rustic could be designated as ‘secure’ beneath
EU legislation solely when it’s such for the generality of its nationals, can be
‘fascinating however unrealistic’ and general ‘unreasonable’. In help of this
argument, the federal government cited Article 59 § 2 of latest regulation 2024/1348 (even
although it doesn’t apply but).
In closing on this level, the
authorities argued that the accelerated process nonetheless ensures all the
substantive rights of the asylum seeker. The Italian authorities, thus, brazenly disavowed
the interpretation given by the CJEU in
case C-406/22 (see, particularly, § 71), the place the Court docket held that, because of
its distinctive nature, the interpretation of the principles in regards to the
accelerated process ought to at all times be a restrictive one. On the contrary,
in response to the Italian authorities, the accelerated process ensures in
full the proper to asylum and the likelihood to acquire judicial overview, in order that
it shouldn’t be seen as ‘distinctive’ when in comparison with the atypical one. The
solely distinction, the Authorities stated, is that the accelerated process is
sooner, which fits to the good thing about the State involved in addition to of the
asylum seekers.
Lastly, and that is the core of
the Italian case, the federal government careworn that EU legislation leaves discretion to
Member States when issuing the checklist of SCOs.
Turning to the opposite questions,
the Authorities said that Italy has a proper to designate SCOs by an act of
Parliament and that there isn’t any must make the sources used for the
designation publicly obtainable, as transparency is assured by inside parliamentary
guidelines stating that dialogue in Parliament is public. Along with extra
detailed arguments taken from the letter of directive 2013/32, the Authorities
argued that EU legislation can not impression on the constitutional system of Member States.
Subsequently, in accordance with the precept of the separation of powers
enshrined within the Italian structure, it’s for the Legislature to designate SCOs
generally phrases, whereas the facility of nationwide judges is confined to guage
whether or not, in a particular case, the designation applies to a given asylum seeker.
On the most, the nationwide judges can refer the query concerning the overall
designation of SCOs to the (Italian) constitutional courtroom.
The opposite Member States
13 Member States (Czech
Republic, Germany, France, Cyprus, Hungary, Malta, the Netherlands, Austria,
Poland, Slovakia, Finland, and Sweden) participated within the proceedings by
submitting written observations and 7 Member States (Bulgaria, Czech Republic,
Germany, Latvia, Lithuania, Hungary, and Sweden) have been current on the listening to.
Usually talking, all of those
nations supported the place of the Italian Authorities. Amongst them, the
arguments made by Germany, Hungary, and Sweden appear price mentioning.
The German authorities focussed on
the problem of which nationwide authority has the facility to designate a rustic as a
SCO and which cures could also be enacted to problem this designation on the
home degree. In line with Germany, EU legislation (directive 2013/32) distinguishes
between the overall designation of a rustic as a SCO, on the one hand, and the
utility of the idea in a particular case, however. The previous
evaluation is predicated on normal concerns, whereas the latter is predicated on the
particular circumstances of the asylum seeker involved.
In opposition to this background, the
place of Germany is as follows: Each nationwide courtroom has the facility to
carry out the second evaluation (utility of the overall designation of a
nation as a SCO to a particular case). Nonetheless, the primary evaluation (normal
designation of a rustic as a SCO) should stay separate from this, and reserved
to the Legislature. That is so as a result of EU legislation leaves ‘leeway’ to Member States
in performing the primary evaluation. Subsequently, within the opinion of the German
authorities, a system that reserves the primary (normal) evaluation to Parliament
isn’t solely compliant with EU legislation, however really extra clear and
democratic. This normal evaluation could be reversed by the constitutional courtroom,
which has the facility to overview the constitutionality of laws. As an alternative, if
a nationwide courtroom believes that the overall evaluation that prompted the
designation of a rustic as a SCO goes towards the Structure and/or EU legislation, it
must elevate a problem of constitutionality earlier than the constitutional
courtroom.
The federal government of Hungary
stretched this argument to the widest doable extent. Of their view, solely
nationwide constitutional courts have the facility to overview the (lack of) legality
of the laws establishing the checklist of SCOs. In reaching this conclusion,
the Hungarian authorities insisted on the idea of ‘room for manoeuvre’,
arguing that Member States take pleasure in broad discretion within the implementation of EU
legislation.
Lastly, the pleadings of the federal government
of Sweden differed from the earlier ones in that they highlighted that the
questions referred to the CJEU are related to the entire of the EU, since
asylum procedures should be efficient all through the European Union authorized area,
with out prejudice to the proper of all people to efficient judicial
safety by way of particular person examination of their requests. Furthermore, the
Scandinavian State identified that, in its home authorized system, there isn’t any
normal checklist of SCOs. As an alternative, it’s for every nationwide courtroom adjudicating on
asylum claims to find out whether or not a authorized precept that’s being challenged
is suitable with EU legislation.
All the identical, in addressing the
first two questions the Swedish authorities stood with Italy, arguing that the
method during which the Italian Legislature decides to designate SCOs isn’t a matter
for EU legislation. This place was justified by referring to the precept that it
is incumbent on every Member State to organise its authorized system in accordance
with the overarching ideas stemming from EU legislation and from its
constitutional settlement.
The EU Fee
Lastly, the lawyer for the
Fee made the next factors:
(a) generally phrases, the
nationwide choose who finds that the definition of a 3rd nation as ‘secure’ is
problematic should refer the query to a particular judicial authority; e.g., the
constitutional courtroom;
(b) within the particular case, the
nationwide choose has the facility to search out that the designation of a 3rd nation as
a SCO doesn’t apply to the person(s) whose case is beneath examination,
which means that, for them and just for them, the nation can’t be thought of as secure;
(c) the truth that the exception
regarding classes of individuals was established in directive 2005/85, however not
replicated in directive 2013/32, doesn’t in itself preclude Member States from
offering for such exception within the nationwide lists of ’secure nations’;
(d) Article 37 of directive
2013/32 empowers Member States to make a discretionary analysis as to which
nations to incorporate within the checklist of SCOs;
(e) consequently, nothing
prevents Member States from together with within the checklist of SCOs nations which will
not be secure for a class of individuals;
(f) it’s irrelevant whether or not
these classes embody a lot of people (e.g. the class of
‘girls’); what issues is that every class is clearly outlined;
(g) the formulation ‘typically and
persistently’ contained in annex I to directive 2013/32 must be interpreted
as which means {that a} nation can not de deemed to be ‘secure’ beneath EU legislation when there
are ‘systematic’ violations of human rights.
The questions from the
Advocate Common and the Court docket
The questions requested after the
first spherical of pleadings give a sign as to the doable method that
the Court docket will tackle the matter.
To start with, the Decide
rapporteur requested the Fee to make clear its place concerning the fourth
query; i.e., the likelihood to think about a rustic as a SCO however
the existence of particular at-risk classes. Curiously, the query was
strengthened by the President of the Court docket, which famous the potential of a
misunderstanding as a result of very nuanced place taken by the EU establishment.
In its reply, the Fee clarified that, in its opinion, directive 2013/32
doesn’t preclude this risk.
As famous within the press,
this place is totally different from the one said by the Fee in its written
observations, the place it was argued that ‘Directive 2013/32 doesn’t permit for
the designation of a 3rd nation as a secure nation of origin the place a
vital variety of individuals belonging to the identical class are systematically
persecuted or face a danger of struggling severe hurt […]’.
Secondly, the Advocate Common
requested the Italian Authorities some specifics as to the overview of
constitutionality within the Italian system. Amongst different issues, he enquired
whether or not the Constitutional Court docket is empowered to overview compliance of Italian
legislation with EU legislation (together with Annex I of directive 2013/32) and if a query of
constitutionality could be raised by the native/district courts (courts of first
occasion).
The Italian authorities replied in
the affirmative, holding that the query of constitutionality could be raised
by all nationwide judges and that the constitutional courtroom can certainly consider
compliance of nationwide legislation with EU legislation. Furthermore, the federal government reminded the CJEU
that the constitutional courtroom may, if it deems it helpful, elevate preliminary
inquiries to the CJEU. In so doing, the Italian authorities unreservedly
affirmed its view that the problem of constitutionality offered for within the
Italian authorized system constitutes an efficient treatment for the aim of EU legislation.
In a second spherical of questions,
the AG requested the Italian authorities concerning the periodic replace of the Italian checklist
of SCOs, that was due on 15 January however, as of the date of the listening to, was not
revealed. Particularly, the AG requested whether or not resorting to an act of
Parliament for every and any replace of the checklist of SCOs didn’t danger to
excessively decelerate the method.
In reply, the Italian Authorities
knowledgeable the Court docket that the brand new checklist was about to be revealed and that the
legislative course of isn’t excessively burdensome (!) and thus not liable to
trigger undue delays.
Furthermore, the AG questioned the
explanation why the sources utilized by Parliament to designate a rustic as a SCO may
not be made public and requested whether or not the Italian Authorities is maybe utilizing
confidential sources.
The Authorities denied utilizing
confidential sources, however defended the place to not make them publicly
obtainable, trailing again to the argument that the legislative course of is clear,
and that parliamentary dialogue is public.
Lastly, two Grand Chamber judges
pressed the Italian authorities on the underlying subject of supremacy of EU legislation.
Of their questions, the judges requested whether or not a nationwide choose that has little doubt
over the non-compatibility of the nationwide laws designating SCOs with the
standards set out in Article 37 and Annex I of directive 2013/32 would, in any
occasion, be compelled to boost a query of constitutionality. This level was
compounded by the apt reminder that, beneath the overall ideas of EU legislation as
interpreted by the constant case legislation of the CJEU, each nationwide choose,
together with in first-instance proceedings, is empowered to evaluate the compliance
of nationwide legislation with the acquis communautaire.
Even there, nevertheless, the Italian
authorities caught to the place that it’s only for the Constitutional Court docket
to have a look at whether or not a manifest and normal error was made within the normal designation
of a rustic as a SCO, whereas the facility of decrease courts is confined to the
analysis of the precise case. Within the authorities view, it’s to be reiterated
that that is so as a result of Member States take pleasure in discretion when making the overall
designation of SCOs.
Conclusion
Whereas it’s inconceivable to
second-guess the result of the case, it’s reasonably secure to imagine that, opposite
to what was held in press studies, the judgment on the 4 questions
referred to the CJEU is not going to put an finish to the litigation over the Italy-Albania
protocol.
As famous
by the CoE commissioner on human rights, future litigation could contain questions
concerning the general equity of asylum procedures, the potential of
automated detention with out sufficient judicial overview, entry to authorized assist, and
respect of the proper to an efficient treatment. On the identical vein, in a report
to the Italian Parliament of 30 November 2024, Professor Satvinder S. Juss from
Kings Faculty raised the query as as to whether EU asylum legislation could be utilized
exterior the EU.
Furthermore, as already famous within the
literature,
the case insists on wider concerns in regards to the ‘constant
interpretation’ of EU legislation.
Admittedly, through the listening to
the problem remained within the background. The defence didn’t actually push on it,
whereas the Italian Authorities and the intervening Member States did so solely
implicitly, by closely counting on the precept of procedural (and constitutional)
autonomy (as evidenced, for instance, by the pleadings of Sweden).
But, the questions of the Grand
Chamber’s judges display that the problem may be very a lot on the desk.
Truly, evidently this could
be higher handled if divided in two separate factors:
–
first, whether or not the nationwide (Italian) choose
adjudicating in first occasion on a request for worldwide safety
submitted by a person coming from a rustic that has been designated as a
SCO by Italian legislation is empowered to refer the query over the compatibility of
nationwide legislation with directive 2013/32 to the CJEU, pursuant to Article 267 TFEU,
or whether or not this has to go, first, to the Italian Constitutional Court docket, who
would then refer the query to Luxembourg;
–
second, whether or not the nationwide choose is empowered
to disapply the nationwide laws designating SCOs if she or he finds that
that is opposite to directive 2013/32, and particularly to Articles 37 and 38
and Annex I thereto.
The primary limb of the matter
appears clearer, because it seems secure to imagine that the argument of the Italian
authorities (with help from the intervening Member States, particularly the
Hungarian authorities) on the necessity to elevate a query of constitutionality
contravenes the overarching precept that the precept of ‘the primacy of EU legislation
[…] requires […] nationwide courtroom[s] to be free to confer with the Court docket of Justice
for a preliminary ruling any query that [they] considers needed, at
no matter stage of the proceedings [they] contemplate[…] applicable’ (see joined
instances C-188/10 and C-189/10 Aziz Melki, Sélim Abdeli).
The second limb of the query
isn’t as easy.
As to the overall ideas, it
is commonplace that, beneath the well-established case legislation of the CJEU,
(a) if a provision of EU legislation is
instantly efficient, home courts should apply it in precedence and are thus
empowered to disapply conflicting provisions of nationwide laws with out
the necessity to request or await the prior setting apart of such provision by
legislative or different constitutional means (see case
C-106/77 Simmenthal and following case-law);
(b) particular provisions contained
in EU directives are ‘able to producing direct results’ (see e.g. case
C-9/70 Franz Grad and C-41/74
Van Duyn);
(c) the direct impact of
provisions contained in a directive rely upon whether or not they’re ‘unconditional
and sufficiently exact’ (see e.g. case C-236/92 Comitato
di Coordinamento per la Difesa della Cava);
(d) in that case, these provisions can
be invoked by people showing earlier than nationwide courts ‘at any time when the total
utility of the directive isn’t actually secured, that’s to say, not solely
the place the directive has not been applied or has been applied
incorrectly, but in addition the place the nationwide measures appropriately implementing the
directive usually are not being utilized’ (see case
C-62/00 Marks and Spencer).
Subsequently, the query is
whether or not Articles 37, 38 and Annex I of directive 2013/32 are ‘unconditional and
sufficiently exact’.
The present jurisprudence is
solely comparatively helpful. True, the CJEU has already said that, beneath these
provisions, ‘it’s for every Member State to designate secure nations of origin
[…] in accordance with the process laid down in Articles 36 and 37 and in
Annex I to Directive 2013/32, specifically, particularly, the adoption by the
nationwide legislature of an inventory of third nations in accordance with the
standards laid down in Annex I’ (see case
C-404/17). Furthermore, within the above-mentioned case C-406/22 the Court docket
confirmed that, because of its distinctive nature, Article 37 should be interpreted
restrictively. Nonetheless, it doesn’t appear that the Luxembourg judges had, so
far, had the prospect to resolve over the query of direct results of those
provisions.
This appears certainly difficult.
On the one hand, the argument of
the Italian Authorities (and of all of the intervening Member States) in response to
which directive 2013/32 leaves discretion to States in designating SCOs appears
to have some deserves, and resonates with a stream of CJEU case legislation excluding
direct impact of EU legislation provisions that are ‘topic […] to the to the taking
of […] measure[…] by the Member States’ (e.g. case C-263/92 at § 9 and 12-14).
Alternatively, this stance
could be stated to have been overtaken by newer case legislation that, along with
their wording, focusses on the context and goal of the EU legislation provisions at
stake in figuring out whether or not they’re able to being instantly efficient. For
instance, this allowed the CJEU to carry that, though it required actions from
the a part of the Member States, the Annex to Directive 80/987 (on the safety
of workers within the occasion of insolvency of their employer) concerning the
classes of worker whose claims could also be excluded from the scope of that
directive inside the which means of Article 1(2) was, certainly, instantly efficient
(see case C-441/99, particularly § 39 and 40, the place the Court docket said that ‘the
Member State involved has [made the designation required by the Annex]’ and
due to this fact ‘made full use of the discretion which it take pleasure in[ed] […] within the
implementation of the Directive’ (see case
C-441/99 Riksskatterverket).
In opposition to this background, the nice
information is that this query was referred to the CJEU by the district courtroom of
Bologna in one other case in regards to the utility of the Italy-Albania
Protocol (case
C-750/24 Ortega).
It is going to little doubt be fascinating
to see the best way during which this query might be addressed by the Luxembourg
Judges. What is bound is that the case touches upon cornerstone ideas of EU
legislation and that particular experience might be wanted from the defence as a way to
stand as much as the authorized arguments made by Italy with the help of the EU
fee and just about all the opposite Member States.
