The Italy-Albania protocol before the EU Court

The Italy-Albania protocol arrives before the Court of Justice of the European Union. Today at 9 a.m. in Luxembourg the hearing of the parties on the designation of "safe countries of origin" will open. This is a crucial issue for the centers beyond the Adriatic because only asylum seekers subjected to the accelerated border procedure, which is reserved for citizens of states considered "safe", can be held there.

The case that ended up before the European judges originates from the appeal against the denial of asylum received by two Bangladeshi citizens locked up in the Shengjin and Gjader facilities in mid-October last year, with the first group ever. They contested the decision of the Territorial Commission before the Capitoline court. In the meantime, probably marking a record, dozens of similar postponements have been started by the civil courts of Bologna and Catania and by the Courts of Appeal of Rome and Palermo. They are all suspended pending the outcome of what will be discussed today. When the ruling is in, the Luxembourg judges will ask their Italian colleagues whether they intend to maintain the postponements or not. In the first case, the decisions will arrive with an order, that is, without a trial, unless there are further issues to address.

The questions posed by the Rome court concern four aspects of the legitimacy of Italian legislation in light of European legislation. The first: whether the national legislator, competent to draw up the list of safe countries of origin, can make the designation through a primary provision. The second: whether the legislator can omit to "make accessible and verifiable the sources used to justify such designation".

Both questions originate from the innovation introduced after the first non-validation of detentions in Albania: the Meloni government replaced the interministerial decree that contained the list of safe countries, an act of an administrative nature, with a real law. Thus it also eliminated the reference to the "country sheets" that described in detail the situation of each third country included in the list and indicated, on the basis of the sources designated by the EU directive, the categories of people or portions of territory for which the safety conditions are lacking.

The third question asks whether the national judge during an accelerated border procedure can "in any case" use information on the country of origin of the asylum seeker "drawing it autonomously" from qualified sources. The fourth concerns exceptions for categories of people: can a State be considered "safe" when there are social groups for which "it does not satisfy the substantive conditions for such designation"?

Making predictions is difficult, also because the rulings of the EU Court are always complex and often do not respond to a binary logic. In any case, it is likely that on the first point the Italian government will be right, seeing the legitimacy of including the list in a law recognized. More difficult that it does not have to indicate the sources, as requested by the second.

On the third, the approach adopted so far by the judges has a better chance , that is, using for substantive control the information of qualified sources even if they are not reported by the government. The ruling issued by the EU Court on 4 October last year, which became famous because it excluded the possibility of considering countries with territorial exceptions as "safe", is already moving in this direction. The question has thus arisen as to whether the same legal reasoning also applies to social exceptions: the fourth question, the most important one on which the future of the Albania project depends, which is mainly intended for countries such as Bangladesh, Egypt and Tunisia in which the security exceptions concern many and significant categories of people (LGBT+, opponents, ethnic and religious minorities, journalists, lawyers).

The referral was processed by the Court in an accelerated manner, faster than the ordinary procedure but slower than the urgent procedure. The lawyers of the two Bangladeshi citizens, the EU Commission and twelve member states have filed observations. During the hearing, other states also have the right to intervene orally. In a few weeks, the Advocate General will independently propose a solution to the issue. The ruling will be binding on the national judges of all member states; it does not yet have a date but is expected by spring.