Provisional text

delivered on 10 April 2025 (1)

Joined Cases C‑758/24 [Alace] and C‑759/24 [Canpelli] (i)

LC (C‑758/24)

and

CP (C‑759/24)

(Requests for a preliminary ruling from the Tribunale ordinario di Roma (District Court, Rome, Italy))

( Reference for a preliminary ruling – International protection – Directive 2013/32/EU – Common procedures for granting and withdrawing international protection – Articles 36 and 37 – Scope of the concept of ‘safe country of origin’ – Presumption of safety of the country of origin – Method of designation – Designation, by a national law, of a third country which may not guarantee sufficient protection against the risk of persecution or other serious harm to certain categories of persons – Discretion of the Member States – Possibility of providing for exceptions for limited and clearly identifiable categories of persons – Article 46(1) and (3) – Right to an effective judicial remedy – Disclosure of the sources of information – Power of the national court to assess the lawfulness of the designating act )

I.Introduction

1.The concept of safe country of origin, the principle and arrangements for implementation of which are laid down in Articles 36 and 37 of Directive 2013/32/EU, (2) and in Annex I thereto, enables the Member States to establish a special procedure for examining applications for international protection under which they can accelerate the procedure and conduct it at the border or in transit zones on the ground that applicants from such a country are presumed to have sufficient protection there against the risk of persecution or serious violations of their fundamental rights.

2.The introduction of the concept of safe country of origin into EU law has raised numerous questions, including those of the legitimacy and objectivity of the assessment made by the Member States in that context. (3) Already in 1992, when that concept was introduced into international refugee law, Guy Serle Goodwin-Gill wondered, in a landmark contribution: ‘Who then is to say that countries are safe? And by whose standards? Secret men in secret rooms reading secret memos? No’. (4)

3.It is precisely the question of the scope of the Member States’ powers as regards the designation of safe countries of origin that arises in the present cases, which follow on from the judgment of 4 October 2024, Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky. (5)The questions referred by the Tribunale ordinario di Roma (District Court, Rome, Italy) arise here in the specific context where the applicants for international protection concerned are both nationals of a third country designated as a safe country of origin by the Italian legislature, namely Bangladesh, and were therefore taken to the detention centre in Gjadër (Albania), where their application was considered under an expedited ‘at the border’ procedure, and rejected as being manifestly unfounded. (6)

4.The first to third of the questions referred concern the implementation of the concept of safe country of origin and seek to clarify the obligations incumbent on Member States in that context to ensure the existence of an effective judicial remedy within the meaning of Article 46 of Directive 2013/32 and Article 47 of the Charter of Fundamental Rights of the European Union. (7) The referring court asks the Court of Justice to clarify the extent to which a Member State may designate a third country as a safe country of origin by means of a legislative act, in circumstances where the applicant from the country concerned and the national court hearing an action against the rejection of his or her application are not able, respectively, to challenge and to review the lawfulness of that designation in the course of a full ex nunc examination of the application for international protection, because of the non-disclosure of the sources of information on which the designation is based.

5.The fourth question referred concerns the concept of ‘safe country of origin’ itself and seeks to clarify the terms of Annex I to Directive 2013/32. Against a background in which the available sources of information concerning the general situation in Bangladesh indicate that there is a risk of persecution or serious harm in relation to certain categories of persons living in that country, the referring court asks the Court whether a Member State may designate a third country as a safe country of origin if part of its population (8) may not have sufficient protection in that country.

II.Legal framework

A.European Union law

6.Recitals 18, 40 and 42 of Directive 2013/32 state:

‘(18) It is in the interests of both Member States and applicants for international protection that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out.

…

(40) A key consideration for the well-foundedness of an application for international protection is the safety of the applicant in his or her country of origin. Where a third country can be regarded as a safe country of origin, Member States should be able to designate it as safe and presume its safety for a particular applicant, unless he or she presents counter-indications.

…

(42) The designation of a third country as a safe country of origin for the purposes of this Directive cannot establish an absolute guarantee of safety for nationals of that country. By its very nature, the assessment underlying the designation can only take into account the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in that country. For this reason, it is important that, where an applicant shows that there are valid reasons to consider the country not to be safe in his or her particular circumstances, the designation of the country as safe can no longer be considered relevant for him or her.’

7.Article 31 of that directive, which is headed ‘Examination procedure’, provides in paragraph 8(b):

‘Member States may provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be accelerated and/or conducted at the border or in transit zones in accordance with Article 43 if:

…

(b) the applicant is from a safe country of origin within the meaning of this Directive …’

8.Article 36 of that directive, which is headed ‘The concept of safe country of origin’, provides:

‘1. A third country designated as a safe country of origin in accordance with this Directive may, after an individual examination of the application, be considered as a safe country of origin for a particular applicant only if:

(a) he or she has the nationality of that country; or

(b) he or she is a stateless person and was formerly habitually resident in that country,

and he or she has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection in accordance with Directive 2011/95/EU. [(9)]

9.Article 37 of Directive 2013/32, which is headed ‘National designation of third countries as safe countries of origin’, is worded as follows:

‘1. Member States may retain or introduce legislation that allows, in accordance with Annex I, for the national designation of safe countries of origin for the purposes of examining applications for international protection.

3. The assessment of whether a country is a safe country of origin in accordance with this Article shall be based on a range of sources of information, including in particular information from other Member States, [the European Union Agency for Asylum (EUAA) (10)], UNHCR, the Council of Europe and other relevant international organisations.

10.Article 46 of that directive, which concerns ‘the right to an effective remedy’, provides:

‘1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:

(a) a decision taken on their application for international protection, including a decision:

(i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status;

…

(iii) taken at the border or in the transit zones of a Member State as described in Article 43(1);

…

3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive [2011/95], at least in appeals procedures before a court or tribunal of first instance.

…’

11.Annex I to Directive 2013/32, which is entitled ‘Designation of safe countries of origin for the purposes of Article 37(1)’, reads as follows:

‘A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive [2011/95], no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

In making this assessment, account shall be taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by:

(a) the relevant laws and regulations of the country and the manner in which they are applied;

(b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms [(11)] and/or the International Covenant for Civil and Political Rights [(12)] and/or the [Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (13)], in particular the rights from which derogation cannot be made under Article 15(2) of the [ECHR];

(c) respect for the non-refoulement principle in accordance with the [Convention Relating to the Status of Refugees (14)];

(d) provision for a system of effective remedies against violations of those rights and freedoms.’

B.Italian law

1.Legislative decree No 25/2008

12.Article 2bis(1) to (4) of decreto legislativo n. 25 – Attuazione della direttiva 2005/85/CE recante norme minime per le procedure applicate negli Stati membri ai fini del riconoscimento e della revoca dello status di rifugiato (Legislative decree No 25, implementing Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status [(OJ 2005, L 326, p. 13)]), (15) of 28 January 2008, as amended by decreto-legge n. 158 – Disposizioni urgenti in materia di procedure per il riconoscimento della protezione internazionale (Decree-Law No. 158 – Urgent provisions regarding procedures for granting international protection), (16) of 23 October 2024, (17) provides:

‘1. In accordance with the qualification criteria laid down by European legislation and data obtained from information sources provided by the relevant international organisations, the following countries are considered safe countries of origin: Albania, Algeria, Bangladesh, Bosnia and Herzegovina, Cape Verde, Côte d’Ivoire, Egypt, Gambia, Georgia, Ghana, Kosovo, North Macedonia, Morocco, Montenegro, Peru, Senegal, Serbia, Sri Lanka and Tunisia.

3. For the purposes of the assessment referred to in paragraph 2, account shall be taken, inter alia, of the extent to which protection is offered against persecution and mistreatment by:

(a) the laws and regulations of the country and the manner in which they are applied;

(b) observance of the rights and freedoms laid down in the [ECHR], the International Covenant for Civil and Political Rights … and the [Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], in particular the rights from which derogation cannot be made under Article 15(2) of the [ECHR];

(c) respect for the principle laid down in Article 33 of the [Convention Relating to the Status of Refugees];

(d) provision for a system of effective remedies against violations of those rights and freedoms.

4bis. The list of safe countries of origin shall be updated periodically by a legislative act and shall be notified to the … Commission. For the purposes of updating the list referred to in paragraph 1, the Consiglio dei Ministri [Council of Ministers, Italy] shall adopt, by 15 January of each year, a report describing, with due regard for the overriding requirements of security and the continuity of international relations, and taking into account the information referred to in paragraph 4, the situation of the countries on the current list and that of the countries it intends to recommend for inclusion. The government shall forward the report to the relevant parliamentary committees.’

13.Article 9(2bis) of Legislative decree No 25/2008 provides:

‘A decision rejecting the applicant’s application … shall state as its sole ground that the applicant has not demonstrated that there are serious grounds for considering that the country designated as a safe country of origin is not a safe country of origin in his or her particular circumstances.’

14.Article 28ter(1)(b) of that Legislative decree provides:

‘The application shall be held to be manifestly unfounded … in any of the following cases:

…

(b) the applicant comes from a country designated as a safe country of origin under Article 2bis.’

2.The Interministerial decree

15.Article 1(2) of the decreto – Aggiornamento della lista dei Paesi di origine sicuri prevista dall’articolo 2-bis del decreto legislativo 28 gennaio 2008, n. 25 (Decree updating the list of safe countries of origin within the meaning of Article 2bis of Legislative decree [No 25/2008]), (18) of 7 May 2024, reads as follows:

‘In considering applications for international protection, the particular circumstances of the applicant shall be assessed in the light of the information contained in the country of origin information sheets mentioned in the note referred to in the preamble.’

III.The facts of the main proceedings and the questions referred for a preliminary ruling

16.The applicants in the main proceedings are nationals of Bangladesh. After being rescued at sea by the Italian authorities, they were taken, pursuant to Article 3(2) and (3) of the protocol referred to in footnote 6 to this Opinion, to the Gjadër detention centre, where, on 16 October 2024, they each submitted an application for international protection.

17.In accordance with the relevant national legislation, those applications were examined under an accelerated at-the-border procedure by the Commissione Territoriale per il riconoscimento della Protezione Internazionale di Roma – sezione procedure alla frontiera II (Territorial Commission for the Recognition of International Protection, Rome – Border Procedures Section II, Italy). By decisions of 17 October 2024, that commission rejected the applications as manifestly unfounded, the applicants not having succeeded in rebutting the presumption that their country of origin was safe.

18.On 25 October 2024, the applicants each brought actions against the decisions before the Tribunale ordinario di Roma (District Court, Rome), which decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does EU law, and in particular Articles 36, 37 and 38 of Directive [2013/32], read also in conjunction with recitals 42, 46 and 48 of that directive, and interpreted in the light of Article 47 of the [Charter] (and Articles 6 and 13 of the [ECHR]), preclude a national legislature, which has the authority to consent to the drawing up of lists of safe countries of origin and to prescribe the criteria to be applied and the sources to be used for that purpose, from also directly designating a third country as a safe country of origin, by a legislative act of primary law?

(2) In any event, does EU law, and in particular Articles 36, 37 and 38 of Directive 2013/32, read also in conjunction with recitals 42, 46 and 48 of that directive, and interpreted in the light of Article 47 of the [Charter] (and Articles 6 and 13 of the ECHR), preclude, at the very least, the legislature from designating a third country as a safe country of origin without making the sources used to justify that designation accessible and verifiable, thus preventing an asylum seeker from challenging, and the court from reviewing, the origin, authoritativeness, reliability, relevance, topicality, completeness and, in any event, the content in general of those sources, and from making their own assessments as to whether the substantive conditions for such a designation, laid down in Annex I to the directive, are satisfied?

(3) Should EU law, and in particular Articles 36, 37 and 38 of Directive 2013/32, read also in conjunction with recitals 42, 46 and 48 of that directive, and interpreted in the light of Article 47 of the [Charter] (and Articles 6 and 13 of the ECHR), be interpreted as meaning that, in the course of an accelerated border procedure [for persons from] a country of origin designated as safe, the courts may in any event use information on the country of origin drawn independently from the sources referred to in Article 37(3) of [that directive], which can be used to establish whether the substantive conditions for such a designation, laid down in Annex I to that directive, are satisfied?

(4) Does EU law, and in particular Articles 36, 37 and 38 of Directive 2013/32, [and Annex I thereto,] read also in conjunction with recitals 42, 46 and 48 of that directive, and interpreted in the light of Article 47 of the [Charter] (and Articles 6 and 13 of the ECHR), preclude a third country from being designated as a “safe country of origin” where there are categories of persons in that country for whom it does not meet the substantive conditions for such a designation laid down in Annex I to that directive?’

19.By decision of the President of the Court of 21 November 2024, Cases C‑758/24 and C‑759/24 were joined for the purposes of the written and oral parts of the procedure and the judgment.

20.The referring court requested that its request for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice. By decision of 19 November 2024, the Court decided to reject that request.

21.The referring court also requested, in the alternative, that the present cases be dealt with under the expedited preliminary ruling procedure provided for in Article 105 of the Rules of Procedure. On 21 November 2024, the President of the Court granted that request.

22.LC (Case C‑758/24) and CP (Case C‑759/24), the Italian, Bulgarian, Czech, German, Greek, French, Cypriot, Latvian, Lithuanian, Hungarian, Maltese, Netherlands, Austrian, Polish, Slovak, Finnish and Swedish Governments and the Commission submitted written and/or oral observations. At the hearing, which was held on 25 February 2025, they responded to questions for oral answer put by the Court.

IV.Analysis

A.Admissibility

23.In its observations, the Italian Government submits that the first, second and fourth questions referred for a preliminary ruling are inadmissible.

24.First, that government submits that the referring court does not specify the rule of EU law which governs the procedures for designating third countries as safe countries of origin and precludes such designation by means of a legislative act.

25.It must be stated, however, that the referring court sets out exhaustively, in paragraphs 17 to 28 of the order for reference, the relevant provisions of international law, EU law and Italian law. Moreover, Decree-Law No 158/2024, which it cites, refers expressly in its preamble to Directive 2013/32, Regulation 2024/1348 and the judgment in CV, and the legal framework is thus clearly set out.

26.Secondly, the Italian Government submits that the interpretation sought with regard to the manner in which that designation is made is irrelevant to the resolution of the dispute in the main proceedings, since it has no concrete impact on the particular situation of the applicants or the outcome of their actions. (19) In this regard, it observes that Bangladesh was already designated as a safe country of origin by the Interministerial decree. Decree-Law No 158/2024 merely excluded from the list of safe countries of origin those for which there were territorial exceptions, pursuant to the judgment in CV, and the changes it made to the procedure for adoption of the list of safe countries of origin have no impact on the procedure for assessing and reviewing safety conditions in each country included on that list.

27.However, the questions referred are not asked from that perspective. As the referring court points out, the amendments introduced by Decree-Law No 158/2024 have an obvious impact on the possibility of, and procedural arrangements for, judicial review of that designation, in so far as that decree-law has elevated the designation of third countries as safe countries of origin to the level of a legislative act, with no explanation from the Italian legislature as to the method of assessment and assessment criteria actually used, or the sources from which it obtained the relevant information on the general situation in the countries concerned.

28.Thirdly, the Italian Government submits that the fourth question is abstract and hypothetical given that the referring court has not carried out any investigation to establish that Bangladesh is not a safe country of origin for certain categories of persons and that the applicants belong to one of those categories.

29.However, since the designation of a third country as a safe country of origin has significant procedural consequences as regards the manner in which applications for international protection lodged by applicants from that country are processed, that question is neither abstract nor hypothetical in the context of the review of the lawfulness of that designation.

30.I therefore consider that there is no obstacle to the admissibility of the questions referred for a preliminary ruling.

B.Substance

31.The referring court refers, in each of its questions, to Articles 36, 37 and 38 of Directive 2013/32. While Articles 36 and 37 of that directive set out the principle and detailed rules for the implementation of the concept of safe country of origin, Article 38 thereof specifies the conditions for application of another legal concept, namely that of safe third country. In view of the fact that the disputes in the main proceedings do not concern a ‘safe third country’ and since that concept is governed by different rules, I shall examine those questions in the light of Articles 36 and 37 of that directive only.

1.The first question referred, concerning the nature of the act designating third countries as safe countries of origin

32.By its first question, the referring court asks the Court, in essence, whether Articles 36 and 37 of Directive 2013/32 must be interpreted as precluding a Member State from designating third countries as safe countries of origin by means of a legislative act.

33.That question arises from the fact that, until the adoption of Decree-Law No 158/2024, the Italian authorities designated third countries as safe countries of origin in two stages. At the first stage, the legal framework for that designation (method, criteria, sources of information, evidence) was defined by law, while at the second, the safe countries of origin were designated by the competent administrative authority, by means of an interministerial decree, on the basis of the information sheets relating to those countries.

34.Decree-Law No 158/2024 changed that system by assigning the task of making the designation to the Italian legislature. Article 2bis of Legislative decree No 25/2008 thus designates a number of third countries, including Bangladesh, as safe countries of origin. That legislative intervention appears to have introduced a significant change to the system at issue in national law in so far as the decision that third countries will no longer be designated as safe countries of origin by an administrative act, but by a legislative act, limits, by reason of the very nature of such acts, the judicial review of the lawfulness of the designation that the ordinary courts should be able to carry out, and thereby restricts the exercise of the applicant’s rights of defence. In that regard, in Case C‑759/24, the applicant states that the national court should therefore initiate a review of constitutionality, in proceedings that would be incidental to the main proceedings.

35.The first question, relating to the nature of the national rule, does not, in itself, raise any particular difficulty.

36.No provision of Directive 2013/32 specifies the authority or authorities of the Member States which are to be responsible for designating safe countries of origin at national level, whether or not there is a national list, nor the instrument which is to be used for that purpose. Article 37(1) of that directive merely states that ‘Member States may maintain or introduce legislation that allows, in accordance with Annex I, for the national designation of safe countries of origin for the purposes of examining applications for international protection’. The expression ‘legislation’ (‘dispositions législatives’ in the French version, ‘normativa’ in the Italian version) must be understood in its broadest sense, as encompassing acts of a legislative, regulatory or administrative nature.

37.Consequently, the Member States enjoy a broad discretion in choosing the means and procedural arrangements to be used to designate third countries, in their national law, as safe countries of origin. There is nothing to prevent that designation being effected by a legislative act, as in reality such a choice falls within the scope of their institutional and procedural autonomy.

38.However, it follows from the third paragraph of Article 288 TFEU that that freedom of choice does not affect the Member States’ obligation to adopt all the measures necessary to guarantee the primacy of EU law and ensure that the directive concerned is fully effective, in accordance with the objective it pursues and the obligations it lays down. (20) It follows that the act by which a Member State designates third countries as safe countries of origin must not have any impact on that State’s obligations to act in accordance with the basic principles and fundamental guarantees set out in Chapter II of Directive 2013/32 and, in particular, in accordance with the right to an effective judicial remedy that applicants for international protection enjoy under Article 46 of that directive.

39.In the light of the foregoing, I propose that the answer to the first question referred should be that Articles 36 and 37 of Directive 2013/32 must be interpreted as not precluding a practice under which a Member State designates a third country as a safe country of origin by a legislative act, provided that that practice guarantees the primacy of EU law and ensures that that directive is fully effective, in accordance with the obligations it lays down and the objectives it pursues.

40.It is in that context that the referring court asks its second and third questions.

2.The second and third questions referred, concerning the disclosure of sources of information for the purposes of judicial review of the act designating a third country as a safe country of origin

41.By its second question, the referring court asks the Court, in essence, whether Articles 36 and 37 and Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as precluding a practice under which a Member State designates a third country as a safe country of origin by a legislative act in circumstances where the applicant from the country concerned and the national court hearing an action against the rejection of his or her application are not in a position, respectively, to challenge and to review the lawfulness of that designation in the light of the conditions set out in Annex I to that directive, because of the non-disclosure of the sources of information on which it is based.

42.In addition, by its third question, the referring court asks the Court whether, in such circumstances, the national court may review the lawfulness of such a designation in the light of the conditions set out in that annex on the basis of information it has gathered itself, from sources referred to in Article 37(3) of that directive.

43.It is apparent from the order for reference that those questions arise from the fact that there is, a priori, a conflict between the available information on the general situation of Bangladesh and the presumption established by Article 2bis of Legislative decree No 25/2008 that that country is a safe country of origin. In contrast to the position under the previous system, the act designating a third country as a safe country of origin does not disclose the specific sources of information on which the Italian legislature based its assessment of the safety of that country and, in particular, its ability to guarantee its population sufficient protection against the risk of persecution or serious harm. The referring court therefore maintains that, in the absence of access to that information, the applicant concerned and the judicial authority hearing his or her action would be deprived of the opportunity, respectively, to challenge and to review the lawfulness of the presumption of safety by verifying the origin, authoritativeness, reliability, relevance, topicality and completeness of those sources.

44.The second and third questions thus do not concern the review to be carried out by that judicial authority as regards the implementation of Article 36(1) of Directive 2013/32, which requires the presumption that the country in question is safe to be disregarded in an individual case where it appears, following an individual and detailed assessment of the application, that that country is not safe on account of the applicant’s particular circumstances. They concern only the situation where the applicant challenges, in itself, the designation of his or her country of origin as a safe country of origin.

45.It follows from recitals 25 and 50 and from Article 46(1) of Directive 2013/32 that applicants for international protection who come from a third country designated as a safe country of origin and whose application is examined under an accelerated procedure must have the right to an effective remedy before a court or tribunal against decisions taken in respect of them at the border or in the transit zones. Article 46(3) of that directive defines the scope of that right by providing that Member States are to ensure that the court or tribunal before which the decision on the application for international protection concerned is challenged carries out ‘a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive [2011/95]’.

46.Furthermore, it is apparent from the case-law of the Court that the characteristics of the remedy provided for in Article 46 of Directive 2013/32 must be determined in a manner that is consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection. (21)

47.The Court applied those principles in holding, in the judgment of 28 July 2011, Samba Diouf, (22) that an administrative authority’s reasons for examining an application for international protection under an accelerated procedure must be amenable to judicial review. (23) It applied them once again in its more recent judgment in CV, where it held that the right to an effective judicial remedy guaranteed by Article 46(3) of Directive 2013/32 required the competent judicial authority to raise, as part of the full and ex nunc examination required by the EU legislature and on the basis of the information in the file and the information brought to its attention during the proceedings before it, a failure to have regard to the material conditions for the designation of a third country as a safe country of origin, set out in Annex I to that directive, even if that failure is not expressly relied on in support of the action. (24)

The Court stated that the Member States are therefore required to order their national law in such a way that the processing of the actions referred to includes an examination, by the competent judicial authority, of all the facts and points of law necessary in order to make an up-to-date assessment of the case at hand, including the lawfulness of that designation. (25)

48.It follows that the mere fact that a third country is designated as a safe country of origin by a legislative act cannot have the effect of removing it from the scope of such judicial review, or Article 46(3) of Directive 2013/32 would be deprived of any practical effect. In so far as, in making such a designation, that legislative act determines the applications for international protection which are capable of being examined under an accelerated procedure and/or determines that that procedure is to be conducted at the border or in the transit zones, in accordance with Article 31(8)(b) of that directive, it implements EU law and must, irrespective of its title or the form it takes in national law, ensure compliance with the substantive and procedural guarantees afforded to applicants for international protection by EU law.

49.Despite the views expressed on this point by several Member States in their observations, it therefore seems to me essential for the national legislature to ensure that there is sufficient and adequate publicisation of the facts and sources of information on which it has based its assessment that the countries concerned are safe, pursuant to Article 37(1) of Directive 2013/32, in case that designation is challenged before the competent administrative or judicial authority.

50.It is true that neither Article 37(3) of Directive 2013/32 nor any other provision of that directive requires the Member State to disclose the sources of information on which it has based the presumption of safety of the country concerned.

51.However, both the general scheme and the objectives of Directive 2013/32 militate in favour of their disclosure. Disclosure helps to ensure that an adequate and complete examination is carried out and that the applicant from a third country designated as a safe country of origin has effective access to the basic principles and guarantees which the EU legislature has made applicable to such applicants, in accordance with the objectives set out in recitals 18 and 20 of that directive.

52.First, disclosure of the sources of information makes the presumption of safety more credible and authoritative, which is beneficial in terms of the speed and efficiency of procedures for examining applications for international protection. A legal presumption, such as that established by Article 2bis of Legislative decree No 25/2008, is usually defined as a conclusion drawn by the law or the court on the basis of a known fact in relation to an unknown fact which seems plausible given the known fact. (26) Thus, there is no objective certainty that the applicants will have sufficient protection in their country of origin. The certainty of the presumption will depend on the certainty of the facts on which that presumption is based, their authoritativeness, their reliability, their relevance, their timeliness, their completeness and the correctness of the conclusions which the national legislature has drawn from it.

53.Secondly, the intention of the EU legislature, in providing that the requirement for an individual examination of the application continues to apply where the applicant is a national of a third country which has been designated as a safe country of origin, (27) was not to reduce the competent administrative authority to a mere registration office. Irrespective of whether the act designating third countries as safe countries of origin is legislative, regulatory or administrative in nature, it remains incumbent on that authority to carry out an ‘appropriate examination’ of the application, and it is worth noting that it must have ‘appropriate means’ available for that purpose, including personnel properly trained in the use of information on countries of origin and expert legal reports (Article 4(1) and (3) of Directive 2013/32). Thus, the circumstances which demonstrate the country of origin’s ability or, conversely, its inability to provide protection from acts of persecution or serious infringements of fundamental rights constitute a crucial element both in the general assessment leading to the establishment of a presumption of safety with regard to the country concerned and, symmetrically, in the individual assessment of the applicant’s situation which leads, where appropriate, to the rebuttal of that presumption. (28) The facts and matters which are essential to the assessment remain the same and are based on the weight and relevance of the sources of information.

54.Thus, the fact that the presumption of safety is rebuttable means that the competent administrative authority must be able to assess the coherence and plausibility of the applicant’s statements (Article 4(5)(c) of Directive 2011/95) and the seriousness of the reasons relied on by the applicant to rebut that presumption (Article 36(1) of Directive 2013/32) in the light of those sources of information.

55.Similarly, the fact that the presumption of safety is rebuttable means that the applicant must be put in a position to know the reasons why his or her country of origin is presumed to be safe, so that he or she can rebut it more effectively by distinguishing his or her individual situation from the general situation on which that presumption is based. In general, the grant of international protection on the basis of sources of information is rarely challenged by the applicant. However, the refusal of international protection on that basis is a completely different matter. That is why any presumption of safety concerning a third country must be based on a procedure which ensures transparency in the collection and processing of information relating to its general situation, information on which the national legislature based its decision that that country could be designated as a safe country of origin. As is clear from Article 37(3) of Directive 2013/32, and despite the fact that the list contained in that provision is non-exhaustive, there is no room and no need here for sensitive or confidential information. (29)

56.In that context, disclosure of those sources of information could be regarded as falling within the Member State’s duty of cooperation under the second sentence of Article 4(1) of Directive 2011/95.

57.Thirdly, it seems to me that sufficient and adequate publicisation of the sources of information on which the presumption of safety is based is inseparable from the right to an effective judicial remedy granted by Article 46(3) of Directive 2013/32 to an applicant from a third country designated as a safe country of origin whose application is examined under an accelerated procedure.

58.For the judicial review guaranteed by Article 47 of the Charter to be effective, such an applicant must be able to ascertain the reasons for the decision rejecting his or her application for international protection. (30) In so far as those reasons are the same as those which provide the basis for the presumption that the applicant’s country of origin is safe, disclosure of those sources enables the applicant to defend his or her rights and to decide, in full knowledge of the facts, whether it would be useful to bring an action before the competent judicial authority.

59.Furthermore, as the Court has held, the need for the judicial review to be effective means that the competent judicial authority must carry out a full and ex nunc examination of the facts and points of law relating to the application for international protection, including any possible infringement of the substantive conditions for such designation, as set out in Annex I to Directive 2013/32. (31) That requirement means that the authority must have access to the sources of information used for that purpose by the national legislature.

60.Fourthly, by ensuring that those sources of information are publicised, the legislature of one Member State provides all the competent national authorities of the other Member States with a common and uniform frame of reference, which does not eliminate but at least limits the potential for those authorities to adopt different assessments with regard to applicants from the same country of origin.

61.It is uncontroversial that the criteria set out in Annex I to Directive 2013/32 are defined in a general and abstract manner, and that the circumstances demonstrating the ability or, conversely, the inability of a country to provide sufficient protection to its population are assessed in a very different manner from Member State to Member State and from national authority to national authority. (32) As Guy Serle Goodwin-Gill pointed out, (33) ‘there’s no lack of information. But let’s face it, there is a problem with verified information: it constrains options and it cuts both ways. Just as it may seem to tell us that there is no risk, in other cases it only confirms the opposite’.

62.In the light of those considerations, I consider that although the point is not expressly addressed in the legislative texts, the general scheme on which the safe country of origin concept is based, and the objectives pursued by the EU legislature in that context, dictate that the Member States must give access to the sources of information on the basis of which they presume the countries concerned to be safe, particularly given that the sources referred to in Article 37(3) of Directive 2013/32 are public sources. Access to those sources may be given in accordance with the forms and procedures provided for in national law, for example by attaching them to the act designating third countries as safe countries of origin or to an annex thereto, or by communicating them at a later stage, at the request of the applicant or of the competent administrative or judicial authority.

63.If those sources are not disclosed, the need for the judicial review to be effective means that the competent judicial authority, which has all the necessary expertise in this field, must base its assessment on the sources of information that it considers most relevant to the assessment of the lawfulness of the designation. (34) Unlike an ordinary procedure, an accelerated at-the-border procedure relating to an applicant from a third country designated as a safe country of origin is conducted having regard to a list which has been drawn up in advance. The assessment of a country’s safety is liable to evolve, and thus, in circumstances where the list has not been reviewed regularly, that authority cannot be prevented from updating itself on the general civil, legal and political situation in the country.

64.In the light of all those considerations, I propose that the Court should rule that Articles 36 and 37 and Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as not precluding a practice under which a Member State designates a third country as a safe country of origin by a legislative act, provided that the national court hearing an action against a decision rejecting an application for international protection made by an applicant from such a country has access, in accordance with the requirement for a full and ex nunc examination laid down by Article 46(3), to the sources of information on the basis of which the national legislature has determined that the country concerned is safe.

65.If those sources of information are not disclosed, the competent judicial authority may review the lawfulness of such a designation with regard to the conditions set out in Annex I to that directive on the basis of sources of information which it has gathered itself from among those referred to in Article 37(3) of that directive.

3.The fourth question referred, concerning the possibility of designating a third country as a safe country of origin in circumstances where certain categories of persons do not enjoy sufficient protection in that country

66.By its fourth question, the referring court asks the Court, in essence, whether Article 36 and Article 37(1) of Directive 2013/32, and Annex I thereto, must be interpreted as precluding a Member State from designating a third country as a safe country of origin for the purposes of examining applications for international protection, in circumstances where certain categories of persons might not have sufficient protection against the risk of persecution or serious harm in that country.

67.There are two possible answers to that question, both of which are based, in my view, on a legally defensible interpretation.

68.The first is based on a strict and somewhat idealistic interpretation of the basic definition of the concept of ‘safe country of origin’ set out in Annex I to Directive 2013/32, and rejects any such possibility. In the view of the referring court, that approach would be consistent with the judgment in CV. If the Court were to take that approach, then a Member State would be able to designate a third country as a safe country of origin only if it established that the legal and political situation in that country was representative of a democratic system under which nationals and stateless persons resident in the country had sufficient protection against the risk of persecution or serious harm, irrespective of their location within the territory of the country and irrespective of their race, nationality, political or religious opinions or membership of a particular social group.

69.Such an approach would tend to guarantee that anyone coming from such a country did not, a priori, have any real need for international protection, and would mean that all applications lodged by nationals of that country could be dealt with in the same way. However, against a background of strong migratory pressure, that approach seems to me to deprive the concept of safe country of origin of part of its effectiveness. It would have the disadvantage of excluding from the national lists of safe countries of origin countries which guarantee, by their institutions, the rule of law and respect for fundamental rights and freedoms, but still fail to achieve their goal with regard to one or more limited and identifiable categories of persons. Member States would therefore be required to process all applications lodged by nationals of those countries in accordance with the ordinary procedure, when the vast majority of those applicants would have no real need for international protection. That would increase the burden on the relevant departments of the competent national authorities and lengthen the examination procedure, which would be detrimental to applicants with a real need for international protection.

70.I therefore propose that the Court should instead adopt the second approach. That approach is to accept that the Member States have a discretion and allow them to designate a third country as a safe country of origin even where they have identified one or more limited but clearly identifiable categories of persons as being at risk in that country while, as a corollary, expressly excluding those persons from the presumption of safety arising from that designation.

71.I concede that that approach seems to run counter to what the Court decided in the judgment in CV. In that judgment, the Court held that the EU legislature – not the Member States – had a discretion, (35) and that the Member States could not exclude parts of the territory of a third country. Moreover, I readily accept that, by a strange paradox, the implementation of the safe country of origin concept could become a good deal more complex.

72.Nonetheless, there is support to be found for that approach not only in the wording of Directive 2013/32 but also in the general scheme and purpose of the system to which that concept belongs. In a situation where the asylum system of a Member State is under significant migratory pressure and a high proportion of manifestly unfounded applications are being made by nationals of certain countries, it would represent a balancing approach enabling the objective of rapid examination of such applications to be reconciled with the need for all applications to be dealt with in an adequate manner and in accordance with Directive 2013/32. (36) It would also represent a pragmatic solution that takes account of the pressures that national asylum systems are currently under and the changes made to EU legislation with the entry into force, on 11 June 2024, of Regulation 2024/1348.

73.I will expand on each of those points.

74.In the first place, such an approach, if accompanied by sufficient limitations and safeguards, remains faithful to the definition of the concept of ‘safe country of origin’.

75.In accordance with the first paragraph of Annex I to Directive 2013/32, ‘a country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive [2011/95], no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.’

76.I will not draw any conclusion from the use of the adverbs ‘uniformément’ (uniformly) and ‘jamais’ (never) in the French language version of Annex I of Directive 2013/32. (37) It is apparent on comparison of the various language versions of that annex that there is nothing that corresponds in meaning to either of those adverbs in the other versions. Accordingly, it does not seem to me that paragraphs 68 and 69 of the judgment in CV, to which the referring court makes express reference, can be applied by analogy.

77.The other language versions of Annex I to Directive 2013/32 make the designation of a third country as a safe country of origin subject to the condition that it can be demonstrated that, generally and ‘constantly’ (38) or generally and ‘durably’ (39) (or ‘continuously’, (40) ‘regularly’, (41) ‘consistently’, (42) ‘persistently’, (43) or even ‘reliably’ (44)), ‘there is no persecution’. Those other language versions seem to be more faithful to the EU legislature’s intention for the stability of the third country to be taken into account in designating it as a safe country of origin, (45) stability also being a factor that must be taken into account under Directive 2011/95 in implementing the provisions on cessation of international protection. (46) Furthermore, a factual situation that is changeable cannot be the subject of a presumption, and thus the Member States cannot presume that a country is able to guarantee sufficient protection against the risk of persecution or serious harm if it is apparent from authorised sources of information that it is only sporadically able to do so.

78.I shall therefore focus my analysis on the meaning of the adverb ‘generally’, which is common to all the language versions of Annex I to Directive 2013/32.

From a semantic point of view, the terms ‘general’, ‘in general’ and ‘generally’ refer to an event, act or other circumstance which transpires in most cases, or is applicable to a very large number of persons, without account being taken of individual cases. There is therefore a degree of abstraction in the use of that adverb. (47) It follows in my view that, from a terminological point of view, a third country may be designated as a safe country of origin if it is established, in the light of the various criteria listed in Annex I to Directive 2013/32, that it protects not every one of its nationals, but the majority of them, against the risk of persecution or serious harm, it being understood that there may be specific situations in which that country does not guarantee sufficient protection against such harm. Recital 42 of that directive thus states that that designation does not constitute an ‘absolute’ guarantee of safety for nationals of the country concerned in view of the nature of the assessment, which can take into account only the general civil, legal and political circumstances in that country. The EU legislature therefore clearly accepts that the safe country of origin concept and the resulting presumption of safety are based on a generalisation.

Secondly, that dichotomy between generalisation and exceptions is apparent in the general scheme to which the safe country of origin concept belongs. That legal concept has two facets: first, an objective and general facet reflected in the designation, in an act of general application, of third countries as safe countries of origin meeting the requirements and criteria set out in Article 37 of, and Annex I to, Directive 2013/32, and secondly, a subjective and detailed facet reflected in the conduct of an individual examination of the application, following which the competent national authority may be required to disregard the presumption of safety of the country concerned in accordance with Article 36(1) of that directive.

If the EU legislature requires the competent national authorities to disregard (ex post) the presumption of safety of a country whenever they establish, following an individual examination of the application, that the person concerned is, on account of his or her individual situation, potentially exposed to a risk of persecution or serious harm in his or her country of origin, then I see no compelling reason why a Member State should not decide, following the assessment of the general situation in that country, to exclude (ex ante) from the scope of that presumption the category or categories of persons which it has already identified as being at risk in that country.

Such a method of applying the safe country of origin concept, if it is based on a rigorous examination of the criteria set out in Annex I to Directive 2013/32, allows Member States, in particular those which are under strong migratory pressure and are receiving numerous manifestly unfounded applications, to pursue the objectives of that directive.

In that regard, I would observe that, in accordance with recitals 18 and 20 of that directive, the Member States must be able to accelerate the examination procedure where an application for international protection is likely to be unfounded, while still ensuring that an ‘adequate and complete examination’ is carried out. (48) As soon as a Member State has established that a country guarantees stable and sufficient safety conditions for the vast majority of its population, in accordance with the criteria set out in Annex I to Directive 2013/32, and identified the category or categories of persons potentially at risk in that country, that Member State is seeking to balance the objective of rapid procedures for examining applications for international protection which may be manifestly unfounded on account of the country of origin of the person concerned, while ensuring adequate and complete examination of the applications submitted by the categories of persons excluded from the scope of the safe country of origin concept, such applications being examined in accordance with the ordinary procedure laid down in Article 31(1) to (7) of that directive.

In line with the London resolution, (49) that approach preserves the efficiency and speed of the examination procedures for all applicants for international protection by reducing the pressure on certain national asylum systems and by enabling resources to be concentrated on applicants in real need of international protection. The Greek Government points out in its observations that the exclusion of specific categories of persons from the scope of that concept reinforces rather than weakens the protection of applicants from a safe country of origin, and the Netherlands Government adds that such an approach exempts such applicants from the obligation to rebut the presumption that their country of origin is safe.

In the third place, that approach to the application of the concept of safe country of origin may, in my view, be adopted on the basis of Article 36(2) of Directive 2013/32. By providing that ‘Member States shall lay down in national legislation further rules and modalities for the application of [that] concept’, (50) the EU legislature has granted the Member States a certain margin of discretion which, in my view, they may use to pursue legitimate aims. The Member States may wish to ensure a higher level of protection of fundamental rights for certain categories of persons. During periods of significant influx of applicants, they may also wish to optimise the allocation of their national asylum system’s means and resources, in order to relieve the competent national authorities of the burden of dealing with manifestly unfounded applications.

I would point out, however, that, where a Member State adopts an additional rule or arrangement for the purposes of applying the safe country of origin concept in its national law, it is implementing EU law, and its discretion is therefore circumscribed by EU law.

Thus, the discretion afforded to the Member States must not be exercised in a manner which would undermine the general objectives of Directive 2013/32, in particular the objective underlying the concept of safe country of origin and the effectiveness of that concept. (51)

This means that the Member State must identify the category or categories of persons at risk when it assesses the general situation in the third country, so as to exclude them expressly from the application of the safe country of origin concept and the associated presumption of safety. The competent national authority to which an application for international protection is made must immediately be in a position to identify and distinguish the persons falling within those categories in order to initiate the ordinary examination procedure provided for in Article 31(1) to (7) of Directive 2013/32.

Any exclusion that was not formalised would weaken the protection of applicants for international protection from the countries concerned.

That also means that that approach to the application of the concept of safe country of origin does not affect the Member State’s obligation to ensure compliance with the requirements set out in Annex I to Directive 2013/32, and in particular to ensure that the legal and political situation in the country concerned is representative of a democratic system under which the general population has lasting protection against the risk of persecution or serious harm.

That concept requires Member States to limit personal exceptions to a relatively limited number of persons, as the presumption of safety on which the designation of the third country concerned as a safe country of origin is based might otherwise be called into question. Too many personal exceptions and too many categories of persons at risk would be an indication that, in reality, the country of origin was not safe.

Thus, if a third country were designated as a safe country of origin, with several categories of persons indicated as being potentially at risk of persecution or serious harm (for example, persons belonging to the LGBTQIA+ community, victims of gender-based violence, including female genital mutilation, ethnic and religious minorities, persons accused of political crimes and persons sentenced to death), some of which are not immediately identifiable, the concept of safe country of origin would be little more than a fiction. Given their nature and scope, such exceptions would reflect generalised and systemic flaws or deficiencies relating to the obligations of the third country concerned with regard to its population, and such a designation would not be appropriate or reasonable in the light of the requirements laid down in Annex I to Directive 2013/32.

Member States must therefore exercise the discretion conferred on them in strict accordance with the principle of proportionality, so that the designation they make and the exclusion of categories of persons at risk attaching to it are apt to ensure, in a consistent and systematic manner, the attainment of the objectives pursued by the EU legislature. (52)

In the fourth place, and lastly, I consider that such an interpretation enables Regulation 2024/1348, which entered into force on 11 June 2024, (53) to be taken into account. Article 61(2) of that regulation expressly authorises the Member States to designate third countries as safe countries of origin with exceptions for clearly identifiable categories of persons. (54) While it is true that, in accordance with Article 79(2), that regulation is not applicable until 12 June 2026, that does not change the fact that it is already part of the EU legal system, and it seems to me that it would be paradoxical to prevent Member States which have already decided to designate third countries as safe countries of origin with exceptions for certain categories of persons from taking such an approach to application, when they are required to ensure that they are adequately prepared to implement that regulation, under the transitional measures in Article 75 thereof.

In the light of all those considerations, I propose that the Court should rule that Article 36 and Article 37(1) of Directive 2013/32, and Annex I thereto, must be interpreted as not precluding a Member State from designating a third country as a safe country of origin for the purposes of examining applications for international protection while identifying limited categories of persons as being potentially exposed to a risk of persecution or serious harm in that country, provided, first, that the legal and political situation in that country is representative of a democratic system under which the general population has lasting protection against that risk and, secondly, that, as a corollary, that Member State expressly excludes those categories of persons from the application of the concept of safe country of origin and the associated presumption of safety.

V.Conclusion

In the light of all the foregoing considerations, I propose that the Court should answer the questions referred by the Tribunale ordinario di Roma (District Court, Rome, Italy) as follows:

(1)Articles 36 and 37 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection

must be interpreted as meaning that they do not preclude a practice under which a Member State designates a third country as a safe country of origin by a legislative act, provided that that practice guarantees the primacy of EU law and ensures that that directive is fully effective, in accordance with the obligations it lays down and the objectives it pursues.

(2)Articles 36 and 37 and Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that they do not preclude a practice under which a Member State designates a third country as a safe country of origin by a legislative act, provided that the national court hearing an action against a decision rejecting an application for international protection made by an applicant from such a country has access, in accordance with the requirement for a full and ex nunc examination laid down by Article 46(3), to the sources of information on the basis of which the national legislature has determined that the country concerned is safe.

If those sources of information are not disclosed, the competent judicial authority may review the lawfulness of such a designation with regard to the conditions set out in Annex I to that directive on the basis of sources of information which it has gathered itself from among those referred to in Article 37(3) of that directive.

(3)Article 36 and Article 37(1) of Directive 2013/32, and Annex I thereto,

must be interpreted as meaning that they do not preclude a Member State from designating a third country as a safe country of origin for the purposes of examining applications for international protection while identifying limited categories of persons as being potentially exposed to a risk of persecution or serious harm in that country, provided, first, that the legal and political situation of that country is representative of a democratic system under which the general population has lasting protection against that risk and, secondly, that, as a corollary, that Member State expressly excludes those categories of persons from the application of the concept of safe country of origin and the associated presumption of safety.

—

Original language: French.

The names of the present cases are fictitious names. They do not correspond to the real names of any of the parties to the proceedings.

Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

See, in particular, the Office of the United Nations High Commissioner for Refugees (UNHCR) Background Note on the Safe Country Concept and Refugee Status of 26 July 1991, and Resolution 1471 (2005), entitled ‘Accelerated asylum procedures in Council of Europe member States’, adopted on 5 October 2005 by the Parliamentary Assembly of the Council of Europe, paragraph 8.2.3). For academic commentary, see, in particular, Labayle, H., ‘Le droit d’asile en France: normalisation ou neutralisation’, Revue française de droit administratif, No 2, Dalloz, Paris, 1997, pp. 242 to 280; Martenson, H. and McCarthy, J., ‘“In general, no serious risk of persecution”: Safe country of origin practices in nine European States’, Journal of Refugee Studies, Vol. 11, No 3, Oxford University Press, Oxford, 1998, pp. 304 to 325; Costello, C., ‘The asylum procedures directive and the proliferation of safe country practices: Deterrence, deflection and the dismantling of international protection?’, European Journal of Migration and Law, Vol. 7, No 1, Wolters Kluwer, The Hague, 2005, pp. 35 to 70; John-Hopkins, M., ‘The emperor’s new safe country concepts: A UK perspective on sacrificing fairness on the altar of efficiency’, International Journal of Refugee Law, Vol. 21, No 2, Oxford University Press, Oxford, 2009, pp. 218 to 255; Teitgen-Colly, C., ‘Le concept de pays sûr’, in Broyelle, C. and Julien-Laferrière, F., Mélanges François Julien-Laferrière, Bruylant, Brussels, 2011, pp. 525 to 576; Hunt, M., ‘The safe country of origin concept in European asylum law: Past, present and future’, International Journal of Refugee Law, Vol. 26, No 4, Oxford University Press, Oxford, 2014, pp. 500 to 535, and Costello, C., ‘Safe country? Says who?’, International Journal of Refugee Law, Vol. 28, No 4, Oxford University Press, Oxford, 2016, pp. 601 to 622.

See Goodwin-Gill, G. S., ‘Safe country? Says who?’ International Journal of Refugee Law, Vol. 4, No 2, Oxford University Press, Oxford, 1992, pp. 248 to 250, especially p. 249.

C‑406/22, ‘the judgment in CV’, EU:C:2024:841.

Decision taken pursuant to the Protocollo tra il Governo della Repubblica italiana e il Consiglio dei ministri della Repubblica di Albania per il rafforzamento della collaborazione in materia migratoria nonché norme di coordinamento con l’ordinamento interno (Protocol between the Government of the Italian Republic and the Council of Ministers of the Republic of Albania on the strengthening of cooperation in the field of migration and provisions for coordination with domestic legislation), concluded in Rome on 6 November 2023 and ratified by legge n. 14 (Law No 14), of 21 February 2024 (GURI No 44 of 22 February 2024, p. 1).

‘The Charter’.

I use the term ‘population’ to refer not only to nationals of the third country concerned, but also to stateless persons who have been habitually resident in that country, in accordance with Article 36(1) of Directive 2013/32.

Directive of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9)

The EUAA has replaced the European Asylum Support Office (EASO).

Signed in Rome on 4 November 1950 (‘the ECHR’).

Adopted on 16 December 1966 by the General Assembly of the United Nations, entered into force on 23 March 1976.

Adopted in New York by the General Assembly of the United Nations on 10 December 1984, United Nations Treaty Series, Vol. 1465, No 24841, p. 85 (1987).

Signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, No 2545, p. 150 (1954)), entered into force on 22 April 1954, supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, entered into force on 4 October 1967.

GURI No 40 of 16 February 2008, p. 11.

16GURI No 249 of 23 October 2024, p. 1; ‘Legislative decree 25/2008’.

17‘Decree-Law No 158/2024’. That Decree-Law was adopted having regard, in particular, to point 2 of the operative part of the judgment in CV. It was adopted in the light, first, of ‘the exceptional necessity and urgency of designating safe countries of origin, taking account of [that judgment], by excluding countries that do not fulfil the conditions for such designation as regards certain parts of their territory’, and, secondly, of Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (OJ L 2024/1348), in particular Article 61(2) thereof, ‘which, while applicable from 12 June 2026, reflects the shared position of the Member States’.

18GURI No 105 of 7 May 2024, p. 23; ‘the Interministerial decree’.

19The Greek Government has also argued that the third question is inadmissible, submitting that if the referring court is seeking, by that question, to raise the issue of the inclusion of the third country on the national list of safe countries of origin in general terms and not in the context of the particular circumstances of the applicant, then it is hypothetical.

20See, to that effect, judgment of 31 March 2022, Lombard Lízing (C‑472/20, EU:C:2022:242, paragraph 35 the case-law cited).

21See judgment in CV (paragraph 86 and the case-law cited).

22C‑69/10, EU:C:2011:524.

23See paragraph 58 of that judgment.

24See point 3 of the operative part of that judgment.

25See judgment in CV (paragraph 87 and the case-law cited).

26See Cornu, G., Vocabulaire juridique, PUF, Paris, 15th edition, 2024.

27Article 4(3)(a) of Directive 2011/95 requires the competent administrative authority to take into account ‘all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of [that country] and the manner in which they are applied’ (which corresponds, in essence, to the elements already taken into account for the purposes of designating the third country as a safe country of origin).

28See, to that effect, judgment of 20 January 2021, Secretary of State for the Home Department (C‑255/19, EU:C:2021:36, paragraph 36 and the case-law cited).

29See, to that effect, Goodwin-Gill, G. S., ‘Safe country? Says who ?’, op.cit.

30See, by analogy, judgments of 23 October 2014, Unitrading (C‑437/13, EU:C:2014:2318, paragraph 20 and the case-law cited), and of 29 April 2021, Banco de Portugal and Others (C‑504/19, EU:C:2021:335, paragraph 57 and the case-law cited).

31See point 47 of this Opinion.

32Thus, whereas the Conseil d’État (Council of State, France), in judgment No 375474 of 10 October 2014, set aside the inclusion of the Republic of Kosovo in the national list of safe countries of origin, while upholding the inclusion of the Republic of Albania (see, in particular, paragraphs 14 and 16 of that judgment), the Conseil d’État (Council of State, Belgium), in judgment No 228/902, delivered a few days later on 23 October 2014, made the converse ruling, upholding a Royal Decree in so far as it included the Republic of Kosovo on the list of safe countries of origin, but annulling it as regards the Republic of Albania, having held, in essence, that the situation in the latter country was not sufficiently stable.

33Goodwin-Gill, G. S., ‘Safe country? Says who?’, Op. cit.

34See, by way of illustration, judgment of the ECtHR of 21 November 2019, Ilias and Ahmed v. Hungary (CE:ECHR:2019:1121JUD004728715), in which the European Court of Human Rights held that the competent authorities are obliged to seek all relevant generally available information for the purposes of their assessment (§ 141).

35See paragraph 81 of that judgment.

36See judgment in CV (paragraphs 78 and 79 and the case-law cited), and of 4 October 2024, Elliniko Symvoulio gia tous Prosfyges and Ypostirixi Prosfygon sto Aigaio (C‑134/23, EU:C:2024:838, paragraph 52 and the case-law cited).

37The adverb ‘uniformément’ suggests that a third country can be designated as a safe country of origin only if it guarantees protection against the risk of persecution or serious harm that is uniform throughout its territory and/or in respect of its nationals or residents, and the addition of the adverb ‘jamais’ implies that that protection must be absolute.

38In the Danish (‘til stadighed’), German (‘durchgängig’), Italian (‘costantemente’), Latvian (‘konsekventi’), Maltese (‘konsistentement’), Romanian (‘consecvent’) and Swedish (‘genomgående’) language versions.

39In the Greek (‘mónima’), Croat (‘trajno’) and Dutch (‘duurzame’) language versions.

40In the Finnish language version (‘jatkuvasti’).

41In the Slovenian language version (‘redno’).

42In the Spanish (‘sistemática’), Czech (‘soustavně’), English (‘consistently’), Lithuanian (‘sistemingai’), Polish (‘konsekventi’), Portuguese (‘sistemático’) and Slovak (‘sústavne’) language versions.

43In the Estonian language version (‘järjekindlat’).

44In the Hungarian language version (‘következetesen’).

45See Council Conclusions on Countries in Which There is Generally No Serious Risk of Persecution of 30 November 1992 (‘the London resolution’) (paragraph 4(D)).

46See Article 11(2) and Article 16(2) of Directive 2011/95.

47The Dictionnaire de l’Académie française defines the adverbial expressions: ‘d’une manière’ or ‘de manière générale’ and ‘d’une façon’ or ‘de façon générale’ (in a way or in general) and ‘en règle générale’ (as a general rule) as meaning ‘overall, leaving aside individual cases, most often’.

48See judgment in CV (paragraph 78 and the case-law cited).

49See paragraph 2 of that resolution.

50While the French language version of Article 36(2) of Directive 2013/32 uses the term ‘notion’, all the other language versions of that provision use the term ‘concept’, with the exception of the Hungarian version, which uses the term ‘principle’.

51See, by analogy, judgment of 12 December 2019, Bevándorlási és Menekültügyi Hivatal (Family reunification – Sister of refugee) (C‑519/18, EU:C:2019:1070, paragraph 62 and the case-law cited).

52See judgment of 7 November 2024, Corván and Bacigán (C‑289/23 and C‑305/23, EU:C:2024:934, paragraph 50 and the case-law cited). Thus, some Member States might consider that the countries in respect of which the Commission has adopted the Enlargement package (Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, Serbia, Georgia, Republic of Moldova, Ukraine and Türkiye) are safe, but could, in the exercise of their discretion and in order to safeguard the fundamental rights of individuals (thus granting an additional level of protection), provide from the outset that that concept was not to be applied to limited and very specific categories of persons: for example, as regards Georgia, they might exclude LGBTQIA+ individuals from the presumption of safety.

53See Article 79(1) of that regulation.

54Article 61(2) of that regulation, which must be read in conjunction with recital 80 thereof, provides that ‘the designation of a third country as a safe country of origin both at Union and national level may be made with exceptions for specific parts of its territory or clearly identifiable categories of persons.’