SAFE COUNTRIES AND CONSTITUTIONAL IDENTITY

PAÍSES DE ORIGEN SEGUROS E IDENTIDAD CONSTITUCIONAL

Michele di Bari

Associate Professor, University of Padua

CONTENTS

1.- Introduction.

2.- The first judicial decisions challenging the government's approach on “safe countries”.

3.- Judicial reactions to new “safe countries” legislation.

4.- The Alace & Canpelli joined cases.

5.- End of the story? A possible application of the “counter-limits” doctrine.

1. INTRODUCTION.

In its judgment of 1 August 2025,[1] the Court of Justice of the European Union (CJEU) clarified the correct interpretation of Directive 2013/32/EU (the “Asylum Procedures Directive”)[2] in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (CFREU). Article 47 guarantees any individual whose rights and freedoms recognized under EU law have been infringed the right to an effective remedy before a court. This long-awaited ruling – significant for many European governments – reaffirms to both national and supranational legislators the central and indispensable role of the ordinary judiciary. It rejects portrayals, advanced in certain political quarters, of judges as mere procedural obstacles, instead recognizing them as essential to the effective enforcement and proper functioning of EU law, particularly in the sensitive field of international humanitarian protection and, more specifically, the designation of a third country as “safe”.[3] Consistent with established case law, the CJEU further reiterated that Article 47 of the Charter of Nice is directly applicable[4] by all courts throughout the Union.

The analysis that follows situates the preliminary reference in Alace & Canpelli[5] within its broader judicial and procedural context, retracing the path that culminated in the judgment under examination. Particular attention is given to the progressive consolidation, within Italian case law, of an approach whereby domestic provisions – initially contained in secondary legislation and later incorporated into primary law – are disapplied where they conflict with EU law. This development has been grounded in an interpretative methodology modelled on the principle of “EU-conforming interpretation,”[6] comparable to the technique of “constitutionally oriented interpretation,” developed by the Italian Constitutional Court.

This interpretative trend became clearer following the CJEU’s judgment of 4 October 2024,[7] which served as the direct precedent prompting renewed intervention by the European Court in Alace & Canpelli. The sections that follow examine the preliminary questions forming the basis of judgments C-758 and C-759, assessing whether the CJEU has provided definitive guidance or whether interpretative uncertainties remain concerning the judiciary’s role in assessing the designation of a “safe country of origin.” The concluding section will then shift to the domestic dimension, considering the potential recourse to the doctrine of “counter-limits”[8] in relation to Italian legislation implementing EU asylum law, and identify possible points of tension with the constitutional text.

2. THE FIRST JUDICIAL DECISIONS CHALLENGING THE GOVERNMENT’S APPROACH ON “SAFE COUNTRIES”.

The CJEU’s preliminary reference, which clarified the correct application of Directive 2013/32/EU (particularly Articles 36 to 38), originated from a request by the Rome Tribunal.[9] This Tribunal posed four different questions across two separate orders under Article 267 of the Treaty on the Functioning of the European Union (TFEU). Before analyzing these joined cases, it is essential to understand the broader context in which this latest request for a preliminary ruling arose. Notably, this is not the first instance of Italian judges seeking intervention regarding accelerated border procedures[10] and the identification of so-called “safe countries.”

It is also impossible to overlook the political controversy that erupted following the Rome Tribunal’s initial decision to disapply the rules on “safe countries,” which at that time were still outlined in a secondary source: the inter-ministerial decree of 7 May 2024, known as the “Country Information Sheet.”[11] Specifically, the Rome judge ruled on a detention order issued by the Questore of Rome within the accelerated border procedure defined by Article 28-bis(2)(b-bis) of Legislative Decree no. 25/2008. This case involved an Egyptian national seeking international protection who had been intercepted and taken to a pre-removal detention centre (CPR) located in Albania.[12]

The court of first instance undertook a thorough examination of the bilateral Protocol[13] between Italy and Albania.[14] This analysis revealed that the admission and stay of asylum seekers on Albanian territory were permissible exclusively for the purpose of conducting border or return procedures, as established by both domestic and EU law. Alternatively, the Tribunal ruled out the possibility of applying subsection (b) of paragraph 2 of Article 28-bis, which pertains to cases of evasion of border controls. The court noted that the access modalities for migrants to Albanian territories, as envisaged by the Protocol, did not fit this scenario.[15] Regarding subsection (b-bis) of the same paragraph, concerning provenance from a so-called “safe country of origin,” the judge referenced the CJEU’s judgment of 4 October 2024. In the Rome court’s perspective, this judgment clarified the interpretation of Article 37 of the Procedures Directive, asserting that a country cannot be designated as safe if it is not entirely safe.[16]

In light of European case law regarding international protection, the Rome Tribunal held that a geographical analysis alone, one that might exclude specific unstable regions, was inadequate. It emphasized that the existence of particular risks for specific categories of individuals must also be considered. Based on this understanding, the court concluded that a country cannot be labelled “safe” if certain groups are vulnerable to persecution or other threats to their personal safety. In other words, the court did not limit its inquiry to investigating whether the specific circumstances placed that specific Egyptian citizen “individually at risk”; instead, it scrutinized the country fiche annexed to the inter-ministerial decree of 7 May 2024, which classified Egypt as “safe” with exceptions for certain categories, such as political opponents or dissidents.

Moreover, the Tribunal suo motu highlighted the illegality of designating the country of origin as “safe,” even without objections from the parties involved, because this designation significantly affected the entire process of the international protection application. Consequently, because the preconditions for the legitimate application of the accelerated procedure were absent – specifically, the minimum criteria for its implementation – the detention of the individual was deemed unjustified.[17] The Tribunal then ordered that the detention should not be validated and acknowledged that, given the lack of justification for the applicant’s continued stay in facilities beyond national borders, the Egyptian national had the right to return to Italian territory and regain his freedom.

This decision provoked vigorous opposition from the Meloni government, which found itself needing to defend not only its definition of “safe countries of origin” (i.e., its interpretation of judgment C‑406/22) but also, more critically, its decision to utilize Albanian facilities to manage migratory flows. In response, the Council of Ministers recognized the necessity of primary-level legislative intervention to amend the previous regulations and approved Decree-Law no. 158 of 23 October 2024 (the so-called “Safe Countries Decree”)[18]. Article 1 introduced a new list of countries deemed entirely “safe”, aiming to align Italian law with the indications provided by the CJEU.

The Ministry of the Interior has consistently expressed its intention to shift the list of countries deemed safe from a regulatory framework (inter-ministerial decree) to a legislative source. This change aimed to eliminate references to any possible exceptions, whether territorial or subjective. By making this “change of source,” the goal was to restrict the discretion of first-instance judges, who, according to the executive branch, would no longer have the authority to scrutinize (and disapply) existing rules, as these would no longer be part of an administrative act.[19]

In addition, to prevent the automatic return of an asylum seeker from Albania to Italy when their detention is not validated, Decree-Law no. 37 was subsequently enacted. Specifically, Article 1(2-bis), as amended upon conversion, now provides for the possibility of ordering an additional detention measure subsequent to the initial non-validation, provided there are concrete reasons to consider that the application for international protection was submitted solely to obstruct or delay removal. This significantly broadens the scope for detaining an asylum seeker in Albania; in other words, a failure to validate detention does not necessarily entail the reacquisition of the status libertatis.[20]

It is worth recalling that the Luxembourg judges have long upheld the right of detained individuals to have the legality of their detention reviewed. Under EU law,[21] detention of a third-country national cannot be ordered if a less restrictive alternative is available. Furthermore, if the conditions justifying the deprivation of liberty no longer exist or are not fulfilled, the individual must (not may) be released immediately, as expressly stated, inter alia, in Article 15(2), fourth subparagraph, and 15(4) of Directive 2008/115, as well as Article 9(3), second subparagraph, of Directive 2013/33

3. JUDICIAL REACTIONS TO NEW “SAFE COUNTRIES” LEGISLATION.

Just a few days after the new “Safe Countries” Decree came into effect, the Bologna Tribunal was required to rule on an appeal against the rejection by the competent Territorial Commission of an application for international protection lodged by a Bangladeshi citizen.[22] The rejection was based on the claim that the application was manifestly unfounded, as stipulated in Article 28-ter of Legislative Decree 25/2008. This was due to the applicant’s country of origin being included in the list of “safe countries of origin” established by Decree-Law no. 158 of 23 October 2024. Questioning the compatibility of this classification with EU law, the Bologna judge referred the matter for a preliminary ruling under Article 267 TFEU, similar to the action taken by the Rome Tribunal in the case leading to this new CJEU’s decisions, and requested urgent intervention from the Luxembourg court. In justifying this reference, the Tribunal emphasised that the European system of international protection is fundamentally designed to ensure effective safeguards for members of minorities who face risks of persecution or serious violations.[23] To support this viewpoint, it cited the case law from other European jurisdictions, particularly decisions made by French and British courts,[24] which have disapplied domestic regulations that classify a state as “safe” in the face of systematic evidence of fundamental rights violations against specific groups, such as LGBTQ+ individuals.

Consequently, the referring court questioned whether a third state can truly be classified as “safe” in general and abstract terms when significant risks remain for clearly defined social groups within that state.[25] Hence, it posed its first question to the Court of Justice, seeking clarification on whether the designation of a country as “safe” must unequivocally depend on the absence of persecution or serious threats, even when such risks are limited to specific categories, as defined in Annex I to Directive 2013/32/EU.

At the same time, the Bologna court raised a second question, which was also addressed in Alace & Canpelli: the judges in Bologna inquired whether the obligation for national courts to disapply domestic rules that conflict with Directive 2013/32/EU extends to instances where the designation of a country as “safe” is enshrined in primary legislation, such as an ordinary statute or a decree-law. The reference made by the Bologna Tribunal, similar to those submitted by other Italian courts, is still pending before the Court of Justice. However, following the ruling in Alace & Canpelli, it is evident that the reasons for the reference have diminished, as the Court has fully addressed the questions raised by the Rome Tribunal, which included those formulated by the Bologna judge.

Just nine days after the Bologna order, the Catania Tribunal determined that it could disapply domestic rules based on the primacy of EU law. In this instance, the Catania judge did not uphold the detention of an Egyptian national seeking asylum, stating unequivocally that even a primary-law provision may be disapplied if it conflicts with the rules of the EU legal order.[26]

Initially, the Sicilian judge examined the prerequisites for applying the accelerated border procedure under Article 28-bis(2)(b-bis) of Legislative Decree no. 25/2008, specifically regarding the classification of a country as “safe.” Citing the CJEU’s judgment in case C-406/22, the judge reiterated that the national court has a duty to verify, in concreto, the compatibility of the state’s designation with the criteria established by EU law.

To support this proposition, the Tribunal referenced the Court of Justice, which states that a judge hearing an appeal against the rejection of a protection application must, even on their own motion,[27] ascertain whether the classification of the state of origin as “safe” aligns with the substantive criteria outlined in Annex I to Directive 2013/32/EU, regardless of whether the appellant has explicitly raised this issue.

The judge clarified that the implementation of the accelerated procedure – which can only be set aside by demonstrating serious individual risks – significantly impacts the fundamental rights of the applicant. In particular, according to the Catania judge, the immediate effect of such a procedure could be the removal of the applicant even before a decision on the appeal is made, compounded by the potential deprivation of liberty throughout the entire proceedings.

Considering the Country of Origin Information (COI) provided by the Ministry of Foreign Affairs (MAECI), which remained unchanged despite the introduction of the “Safe Countries” decree-law, the Tribunal observed that Egypt posed significant risks for certain groups, particularly political opponents, activists, human rights defenders, and those who could be prosecuted under Article 8(1)(e) of Legislative Decree-Law no. 251/2007. Consequently, the Tribunal determined that the detention of the Egyptian national could not be validated. The Catania decision thus reaffirmed the primacy of EU law in this context, asserting that, in light of the Court’s decision in case C-406/22, a new preliminary reference under Article 267 TFEU was entirely unnecessary.

Furthermore, it did not consider it necessary to address any questions of constitutional legitimacy. On this matter, the Tribunal referenced recent constitutional jurisprudence, which indicates that the principle of primacy of EU law arises from the principle of equality among Member States (Article 4 TEU) and prevents the applicability of unilateral domestic norms to the EU legal framework.[28]

4. THE ALACE & CANPELLI JOINED CASES.

After examining the (domestic) judicial context that led to the preliminary ruling order in Alace & Canpelli, we now focus on the substance of the questions raised by the Rome court.[29] The Tribunal of Rome made a reference under Article 267 TFEU when faced, once again, with asylum seekers from a country – Bangladesh – designated by the government as a “safe country of origin”.[30] Specifically, two Bangladeshi nationals were rescued at sea by the Italian authorities and subsequently transferred to Albania to the CPR located in Gjadër, as stipulated in the Italy-Albania Protocol for strengthening cooperation on migration. From that facility, both individuals submitted applications for international protection to the Italian authorities. However, the Territorial Commission for the recognition of international protection in Rome rejected both applications and ordered their detention, thereby initiating the accelerated border procedure, as Bangladesh was classified among the “safe countries,” leaving no grounds for a more comprehensive examination of their protection claims.

However, the detention order was not upheld, and once the Bangladeshi applicants were returned to Italy, they both initiated legal actions before the Rome Tribunal challenging the refusal to grant international protection.

As noted by the referring judge, the Territorial Commission’s decision to implement the special “accelerated” procedural regime has significant implications for the legal status of the asylum seeker. Among the most important effects are: (i) the notably swift nature of the procedure, which can impact the effectiveness of the right to defense; (ii) the possibility of the application to be declared manifestly unfounded as a preliminary matter, thereby allowing for rapid removal; and (iii) the authority to detain the applicant in facilities established at border crossings or in transit zones, including those located on Albanian territory, which national law classifies as border areas.[31]

For this reason, the Rome Tribunal requested urgent treatment under Article 23a of the Statute of the CJEU and Articles 107 et seq. of the Rules of Procedure[32] in order to swiftly assess the preliminary questions concerning the proper application of the Procedures Directive. The CJEU opted not to apply the urgent preliminary ruling procedure (Article 107 of the Rules), instead favoring the accelerated procedure outlined in Article 105(1),[33] and also accepted, under Article 16(3) of the Statute of the CJEU, to hear the case in the Grand Chamber, as requested by the Italian Government.

What, then, were the concerns raised by the referring court?

As a preliminary matter, the Rome judge observed that, until the adoption of Decree-Law no. 158 of 2024, the process for designating a third country as a “safe country of origin” was articulated in two distinct phases: (a) the legislator defined the regulatory framework for such classification through ordinary law; and (b) the administration was tasked, via inter-ministerial decree, with identifying in concreto the countries that could be considered safe, based on dedicated country fiches. The national judge was provided the opportunity to verify the compatibility of those administrative acts with the criteria set forth by primary legislation, which, in addition, mandated that the fiches for each country be accompanied by the information sources[34] – made available to the court of first instance – that had enabled their drafting.

On this specific point, the referring court raised its second and third preliminary questions, presenting two further, distinct queries: (i) whether Articles 36–38 of Directive 2013/32/EU, when interpreted in conjunction with recitals 42, 46, and 48 of the same Directive, and in light of Article 47 CFREU, as well as Articles 6 and 13 of the European Convention on Human Rights (ECHR), prevent the national legislator from designating a third country as a “safe country of origin” without simultaneously ensuring full accessibility to and verifiability of the information sources on which this designation is based;[35] (ii) whether, in the absence of information provided by the legislator, in the context of an accelerated border procedure applicable to asylum seekers from a country designated as a “safe country of origin,” the national court hearing the appeal may, independently and autonomously, consider relevant information regarding the situation in the country of origin.

In addressing the first three questions, the CJEU clarified that Articles 36, 37, and 46(3) of Directive 2013/32/EU, interpreted in light of Article 47 CFREU, do not prevent a primary-law instrument from designating certain third countries as “safe countries of origin,” as long as this designation is subject to effective judicial review. Specifically, Article 46(3) of the Directive mandates that Member States conduct a comprehensive ex nunc[36] examination of decisions that deny international protection to asylum seekers, including those based on the assumption that the country of origin is safe. The Luxembourg court stated that this review must include an assessment of compliance with the substantive safety criteria outlined in Annex I[37] of the Directive. [38]

Although Directive 2013/32/EU does not specify a particular form for such designations or identify the competent authority,[39] Member States are still bound by the principles of effectiveness and legal certainty. This includes the ability for national courts to disapply domestic laws that conflict with EU law, even if those laws hold primary rank.[40] The CJEU emphasised that the choice of legislative instrument for implementing EU law does not in any way prejudice the possibility for the ordinary judge’s ability to review the legality of the designation based on information that allows for a different assessment of the actual safety of the country designated as “safe.” The court further asserted that the authority responsible for designating safe countries must provide access to this necessary information, rather than merely having the option to do so.[41] The CJEU explicitly stated:

“A Member State which designates a third country as a safe country of origin must ensure sufficient and appropriate access to the sources of information referred to in Article 37(3) of that Directive, on which that designation is based. Such access must, on the one hand, enable the applicant for international protection concerned, who is a national of that third country, to defend his or her rights in the best possible conditions and to decide, with full knowledge of the facts, whether it is useful to bring an action before the competent court and, on the other hand, enable that court to exercise its review of a decision concerning the application for international protection.”[42]

In addition, when exercising its jurisdiction:

“the national court seized of an appeal against a decision on an application for international protection examined under the special regime applicable to applications lodged by applicants from third countries designated as safe countries of origin may, if it verifies, even only incidentally, whether that designation satisfies the substantive conditions for such designation, set out in Annex I to that Directive, have regard to information which it has itself gathered provided that, on the one hand, it ascertains the reliability of such information and, on the other, it guarantees respect for the adversarial principle for the parties to the proceedings.”[43]

Regarding the fourth preliminary question – arguably the most sensitive considering the differing positions of various countries within the Union – the Rome judge sought clarification from the CJEU on whether current EU law prohibits the designation of a third state as a “safe country of origin” when, despite a generally stable situation, there are specific categories of individuals for whom the substantive conditions in Annex I to the Directive are not met. In this specific context, the referring court noted that the presumption of safety would be undermined and inconsistent with the findings established in the previous judgment C-406/22 of 4 October 2024.

In response, the Luxembourg judges accentuated that Article 37 of Directive 2013/32/EU, in conjunction with Annex I, must be interpreted as forbidding Member States from designating a country as “safe” if the substantive conditions of safety are not satisfied[44], even if only for certain categories of individuals. The Court reiterated the importance of not diluting the literal interpretation of the rule: Article 37 generally refers to “countries” and “third countries” without suggesting that the designation could be limited to specific segments of the population. In fact, the Court asserted that nothing in the text allows for a “partial” designation.[45] Moreover, Directive 2013/32/EU has repealed earlier EU legislation that permitted the designation of a country as “safe,” even with territorial exceptions (Directive 2005/85/EC, Article 30(3)).

To stress this point, the CJEU highlighted that, within the context of the Directive, Annex I confirms that the assessment must always encompass the entire population of the relevant third country. This necessitates a “constant” and “generalized” absence of persecution, torture, or inhuman treatment. To support this interpretation, the Court examined the various language versions of Annex I, all of which align around the concepts of continuity and stability of protection, without distinguishing between different categories of individuals.[46] In other words, since the designation of a “safe country of origin” enables the application of accelerated procedures – an exceptional regime – such exceptions cannot be extensively interpreted. Accepting the designation of safe countries despite the absence of protection for vulnerable groups would unduly expand the scope of a derogation.[47]

As regards the Advocate General’s arguments[48] that the current rules should be interpreted in light of the new Regulation (EU) 2024/1348, which reintroduces the concept of a “safe country of origin” while allowing for the exclusion of certain categories of individuals (Article 61(2)), the CJEU clarified that only from 12 June 2026 – when the new Regulation comes into effect – will it be possible to designate countries “safe” under the new criteria. In summary, since this new regime is not yet in force, it could not influence the reference before the Court, which thus remained based on Directive 2013/32/EU.[49]

5. END OF THE STORY? A POSSIBLE APPLICATION OF THE “COUNTER-LIMITS” DOCTRINE.

This contribution aims to analyze the recent judgment of the CJEU in case C-758/24. It seeks to align this ruling with the earlier judgment in C-406/22 and with Italian case law over the past year, examining specifically notable instances where Italian judges have disapplied domestic rules. This disapplication[50] has occurred first through the Rome Tribunal, which addressed rules contained in a secondary source, and subsequently by the Catania Tribunal, which found that the “Safe Countries” Decree conflicted with EU law. The objective is to reflect on the scope and limits of designating a third country as a “safe country of origin” under Directive 2013/32/EU.

In Alace & Canpelli – which, as noted in the preceding paragraphs, addresses not only the concerns of the Rome Tribunal but also those raised by judges in Bologna and Florence – the CJEU has unequivocally clarified that the proper designation of a third country as “safe” must adhere to the literal wording of the provisions outlined in Directive 2013/32/EU, particularly Annex I. Such a designation is not permissible when there are indications that certain categories of persons in the country in question are systematically exposed to persecutory treatment. From this perspective, the source that a Member State relies upon to define a country as “safe” is of little consequence. What matters, in any event, is the continuing obligation to implement the Directive.[51]

However, these new CJUE decisions are situated within a broader framework that addresses, on one hand, the correct interpretation of EU rules governing the processing of applications for international protection, and on the other, the function of the ordinary judge in reviewing the compatibility between national legislative choices and EU law. More specifically, the case law from the Luxembourg court appears to directly contradict those who would marginalize the role of the national judge in favor of a quicker and less rights-oriented approach to handling asylum claims. By contrast, the CJEU confirms the crucial role of the national judge, highlighting the necessity for a review that goes beyond a mere formal assessment of both the actual conditions that led to a country being designated as “safe” and the personal circumstances of the asylum seeker. This review must be ex nunc; therefore, the judge is obliged to conduct an inquiry that considers, when necessary, new information that may have arisen after an earlier decision to deny international protection.[52]

In alignment with the principle of non‑refoulement[53] and the requirement for effective judicial protection under Article 47 of the CFREU – in cases concerning recognition of refugee status – the judge is confirmed in a fundamentally protective role. This role is expressed not only through the ability to disapply domestic provisions that are plainly in conflict with EU law, but also through the possibility of conducting an autonomous inquiry into the sources of information that the national legislator relied upon to classify a country as “safe.”

In other words, the national judge is required to undertake a thorough assessment not only of the subjective aspects related to the individual applicant[54] but also of the legality and validity of the designation of the third country as “safe.”

In unambiguous terms, the CJEU has emphasized that, when executing the accelerated border procedure – particularly when it involves measures that restrict personal liberty or result in the removal of the applicant from the state’s territory – effective judicial protection must be guaranteed, as mandated by Article 37(1) and Annex I of Directive 2013/32/EU, in conjunction with Article 47 of the Charter of Nice.[55]

Consequently, the judicial function operates within a dual context – national and EU – that requires the ordinary judge to engage with EU sources, particularly the case law of the CJEU[56], alongside the constraints imposed by Article 10(3) of the Italian Constitution.[57] On the domestic front, the protection afforded by EU law is not only complemented but also preceded by that recognized in Article 10(3) of the Constitution. This article stipulates that a foreigner who is denied the effective exercise of the democratic freedoms guaranteed by the Italian Constitution in their own country has the right to seek asylum within the territory of the Republic under the conditions outlined by law.

In line with this principle, the Italian Court of Cassation has emphasized that

“[…] the consequent immediate operability of the constitutional provision is due to the fact that, although in part it requires implementing legislation, it outlines with sufficient clarity and precision the factual situation that gives rise to the foreigner’s right of asylum, identifying in the impediment to the exercise of democratic freedoms the ground for the right and indicating effectiveness as the criterion for assessing the hypothesized situation.”[58]

From this perspective, one might question whether the accelerated border procedure, as delineated by EU law and subsequently transposed into the domestic legal framework, presents an inherent incompatibility with the Constitution, particularly when viewed through the lens of counter-limits. In other words, could an intervention by the Constitutional Court be envisaged to challenge the domestic provisions that transpose EU asylum law.

It is indeed provocative to consider what might occur if, instead of referring to the CJEU, the court of first instance were to raise a question of constitutional legitimacy. Many scholars have noted that the regulations governing the border procedure raise significant concerns regarding the protection of fundamental rights. At least four constitutional parameters could play a crucial role in the grounds for a potential referral to the Constitutional Court.

Regarding Articles 3[59] and 24[60] of the Constitution, there appears to be a breach of both the principle of equality and the right to defense. The current domestic and EU framework creates a distinction among asylum seekers based on their country of origin. It accelerates the procedural path exclusively for those arriving from countries classified as “safe,” thereby limiting both the time and opportunities for obtaining recognition of international protection, whether on national territory or in the so-called Albanian hotspots, and this applies only to specific individuals. Essentially, those from a “safe country” face immediate removal unless they can demonstrate a concrete risk to their safety upon return within an extremely short timeframe of just a few days. Furthermore, if removal is executed, there is no guarantee that the applicant will have access to an effective remedy in the country to which they are forcibly returned.

In relation to Articles 10(1)[61] and (3) of the Constitution – although perhaps this is an overly ambitious hypothesis given the current political climate – one might question the compatibility of the classification of “safe countries” with states where the same democratic freedoms upheld in Italy are not guaranteed. Under such circumstances, the list of “safe countries” would be drastically reduced. Furthermore, since generally recognized rules of international law take immediate effect within our legal system, and considering that the principle of non-refoulement is now widely acknowledged as a peremptory norm of international law, it would be impermissible for domestic legislators to undermine this constitutional guarantee through either primary or secondary rules.

It is important to recognize that the Italian Constitution offers a unique perspective on the right to asylum, adopting a broader approach than many other legal systems. Under Article 10(3) of the Constitution, this right is not limited to those fleeing personal persecution or direct threats to life; it applies to all foreigners from countries where the democratic freedoms guaranteed in Italy are not upheld.[62] This formulation, which reflects a strong commitment to democratic principles and the protection of fundamental rights, diverges from both the criteria established by the Geneva Convention on the Status of Refugees and the more restrictive approaches adopted in other jurisdictions. According to our Constitution, what matters is the objective situation in the country of origin, regardless of the need to prove an “individualized” threat.[63]

Finally, Article 117(1)[64] of the Constitution may also be relevant. Regarding international obligations, one might question whether the current national framework aligns with the ECHR. A notable example is the situation in the United Kingdom, where the Supreme Court deemed the so-called “Rwanda plan”[65] to be incompatible with the Human Rights Act 1998—the instrument that incorporates and enforces the ECHR within the domestic legal system. Following similar reasoning, the Constitutional Court, if seised of the matter, could assess whether the existing regulations governing the accelerated border procedure and the designation of “safe countries” – especially those that do not guarantee a safe environment for all groups – violate the obligations arising from the ECHR (specifically Articles 3 and 6), thereby constituting a violation of Article 117(1) of the Constitution.

From this perspective, it is worth considering the evolving regulatory framework within the European Union regarding the designation of “safe third countries.” While it is true that increasing political pressure from numerous national governments has led to the reintroduction of the possibility for Member States to classify certain countries that present criticalities for specific groups as “safe,” one crucial point remains: the Union’s institutions cannot and must not overlook the foundational shared values that constitute its essence and identity. As stated in Article 2 of TEU, these values include respect for human dignity, freedom, democracy, equality, the rule of law, and human rights – including the rights of minority groups – in a society where pluralism, non-discrimination, tolerance, justice, and solidarity prevail. Additionally, Article 6 TEU acknowledges the legal significance of the ECHR and, by extension, the case law of the European Court of Human Rights. One might therefore question whether this ultimately necessitates a limitation, rather than an expansion of the criteria for designating a country as “safe.” While the judges in Luxembourg were not asked to address this question, it is not to say that it will not arise in the future.

In conclusion, it is important to acknowledge a prevailing observation in the literature: we are witnessing a general regression in the sphere of fundamental rights and constitutional guarantees. The plight of asylum seekers makes it essential to reconsider the very foundations of fundamental rights. It is necessary to revisit the discussion on their nature and determine whether these rights should only be guaranteed to individuals with specific legal titles, thereby neglecting the foundational principles of universally recognized human rights, or if mere “existence” is a sufficient condition for protection.

This necessarily entails returning to reflect on the meaning of human dignity, a value recognized both constitutionally and internationally, which should serve as the lens through which we analyze reception policies. Such policies cannot and must not be reduced to a mere exercise of administrative discretion; they represent a genuine constitutional and supranational obligation to provide protection.

ABSTRACT

This article analyses the recent Alace & Canpelli judgment of the Court of Justice of the European Union, which addresses the definition of “safe countries of origin” and the compatibility of accelerated border procedures with the fundamental rights of asylum seekers. The discussion places the decision within both the European and Italian legal frameworks, with a particular focus on Directive 2013/32/EU, the principle of non-refoulement, and relevant supranational and domestic jurisprudence. By referencing rulings from the domestic courts in Italy, it underscores the pivotal role of the ordinary judiciary in scrutinizing the designation of a country as “safe” and in protecting the rights of asylum seekers—up to and including the disapplication of national provisions that conflict with EU law. The article further considers potential constitutional issues under Articles 3, 10, 24, and 117 of the Italian Constitution, exploring the prospect of intervention by the Constitutional Court through the doctrine of “counter-limits.”

KEYWORDS

Safe countries of origin, asylum law, effective judicial protection, constitutional identity, counter-limits doctrine.

RESUMEN

Este artículo analiza la reciente sentencia Alace y Canpelli del Tribunal de Justicia de la Unión Europea, que aborda la definición de los “países de origen seguros” y la compatibilidad de los procedimientos acelerados en frontera con los derechos fundamentales de los solicitantes de asilo. El estudio sitúa la decisión tanto en el marco jurídico europeo como en el italiano, prestando especial atención a la Directiva 2013/32/UE, al principio de no devolución (non-refoulement) y a la jurisprudencia pertinente de carácter supranacional y nacional. Mediante el examen de diversas resoluciones de los tribunales ordinarios italianos, se pone de relieve el papel central de la judicatura ordinaria en el control de la calificación de un Estado como “seguro” y en la protección de los derechos de los solicitantes de asilo, incluso mediante la inaplicación de disposiciones nacionales incompatibles con el Derecho de la Unión Europea. El artículo examina asimismo las posibles cuestiones de constitucionalidad derivadas de los artículos 3, 10, 24 y 117 de la Constitución italiana, explorando la eventual intervención del Tribunal Constitucional a través de la doctrina de los “contralímites”.

PALABRAS CLAVE

Países de origen seguros, derecho de asilo, tutela judicial efectiva, identidad constitucional, doctrina de los contralímites.

Recibido: 7 de mayo de 2026

Aceptado: 8 de junio de 2026

Notas

1. CJEU, Joined Cases C-758 and C-759/24, 1 August 2025. ↩︎

2. Directive 2013/32/EU of 26 June 2013 “on common procedures for granting and withdrawing international protection status.” ↩︎

3. See, B. Nur Osso, “Unpacking the safe third country concept in the European Union: B/orders, legal spaces, and asylum in the shadow of externalization”, International Journal of Refugee Law, vol. 35, no. 3, 2023, pp. 272-303; M. Hunt, “The safe country of origin concept in European asylum law: Past, present and future”, International Journal of Refugee Law, vol. 26, no. 4, 2014, pp. 433-453; G. S. Goodwin-Gill, “Safe country? Says who?”, International Journal of Refugee Law, vol. 4, no. 2, 1992, pp. 248-250. ↩︎

4. Cf. CJEU, Cases C-704 and C-39/21, Staatssecretaris van Justitie en Veiligheid, 8 November 2022. With the entry into force of the Charter of Nice and, above all, with its elevation to the same legal value as the Treaties (Art. 6 TEU), the debate on the EU as an “Europe of rights” and on the role of the Court of Justice as guarantor of fundamental rights has intensified. Although the protection of rights was not absent from the Court’s case law from its earliest stages (consider, for instance, Stauder and Internationale Handelsgesellschaft), it is only with the Charter that such protection has finally assumed a systemic role (together with references to the ECHR), profoundly influencing Union law. The interaction – at times conflictual – between Charters and Courts is not only one of the defining features of the so-called multilevel protection of rights but also one of its most complex and unresolved theoretical knots. The European sphere remains marked by structural tensions: on the one hand, the scope of the rights enshrined in the Charter clashes with the limitations imposed by Art. 51; on the other, the case law of the CJEU has often moved in an uncertain and oscillating manner. Particularly revealing is the field of European citizenship, where rulings such as Ruiz Zambrano (C-34/09) appeared to herald a substantive turning point, only to be tempered by more cautious decisions such as Ymeraga (C-87/12). These fluctuations have fueled the perception that, rather than acting as the custodian of fundamental rights, the Court remained anchored to the logic of the four freedoms. Today, however, there seems little room to doubt the “expansive” scope of the CFREU, particularly where respect for human dignity is at stake. On the importance now assumed by the CFREU, the literature has offered a wealth of reflections. See, G. Alpa, “Remarks on the Direct Horizontal Application of the Provisions of the European Charter of Fundamental Rights”, European Business Law Review, vol. 35, no. 7, 2024; B. de Witte, “Direct effect, primacy and the nature of the legal order”, en P. Craig, G. de Burca (eds.), The Evolution of EU Law, Oxford University Press, Oxford, 2021, pp. 187-227; S. Peers, T. Hervey, J. Kenner, A. Ward, The EU Charter of Fundamental Rights, A Commentary, Bloomsbury Publishing, London, 2021; F. Martines, “Direct effect of international agreements of the European Union”, European Journal of International Law, vol. 25, no. 1, 2014, pp. 129-147; K. Lenaerts, “Exploring the limits of the EU Charter of Fundamental Rights”, European Constitutional Law Review, vol.8, no. 3, 2012, pp. 375-403; K. Hailbronner, D. Thym, “Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Judgment of the Court of Justice (Grand Chamber) of 8 March 2011”, Common Market Law Review, vol. 48, no. 4, 2011, pp. 1253-1270. ↩︎

5. The “names” of the joined cases decided by the CJEU is fictitious and cannot be attributed to any of the parties involved. ↩︎

6. The Court of Justice has repeatedly emphasized that it is for the national court to interpret and apply domestic law, as far as possible, in a manner consistent with the principles and provisions of EU law. See, inter alia, CJEU, Case C-335/21, 22 September 2022, para. 72; Case C-91/08, 13 April 2010, para. 70; Cases C-188/10 and C-189/10, 22 June 2010, para. 50; Case C-115/08, 27 October 2009, para. 138; Case C-262/97, 26 September 2000, para. 39; C-165/91, 5 October 1994, para. 34; Case C-185/97, 22 September 1998, para. 18. See, P. Craig, G. de Búrca, EU Law: Text, Cases, and Materials, Oxford University Press, Oxford, 2020. ↩︎

7. CJEU, Grand Chamber, Case C-406/22, CV v. Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky, 4 October 2024. The judgment originated from a dispute between a Moldovan national and the Ministry of the Interior of the Czech Republic, concerning the rejection of an application for international protection. The CJEU was seized of three questions referred for a preliminary ruling: (1) The first concerned the interpretation of Art. 37 and Annex I of Directive 2013/32, in relation to whether a third country may be designated as a “safe country of origin” where it has formally invoked the derogation procedure under Art. 15 ECHR. The CJEU clarified that mere invocation of derogation does not in itself amount to the actual adoption of measures derogating from the obligations laid down in the Convention (para. 45). Consequently, activation of Art. 15 ECHR would not, in and of itself, automatically disqualify a third country from being classified as “safe.” However, the Luxembourg judges held that the competent authorities of a Member State which has designated a “safe country” are under a duty to verify whether the concrete conditions under which derogation is exercised undermine, in practice, the validity of such designation (paras. 57-62). In this regard, Art. 37(2) of the Directive imposes on Member States an obligation to carry out a periodic review of the conditions prevailing in designated countries, in light of changes affecting compliance with the substantive criteria set out in Annex I (paras. 59-61); (2) The second question referred to the interpretation of Art. 37 of the same Directive, specifically as to whether a Member State may treat a third country as “safe” while excluding certain portions of its territory (para. 63). The Court – applying a systematic and teleological analysis of the provision, taking into account its normative context, the intention of the EU legislature, and the Directive’s overarching objectives – held that Art. 37 precludes the designation of a third country as “safe” where even a part of its territory fails to meet the Annex I conditions (paras. 67–83). In particular, the CJEU stated: “[T]he fact that that [EU] legislature has not provided in that directive for the possibility for the Member States to exclude part of the territory of a third country for the purposes of such a designation reflects that balancing exercise and its choice to give priority to a thorough examination of applications for international protection lodged by applicants whose country of origin does not satisfy, for the whole of its territory, the substantive conditions set out in Annex I to that directive” (para. 81); (3) The third preliminary question concerned the interpretation of Art. 46(3) of Directive 2013/32, read in conjunction with Art. 47 of the CFREU. In particular, the Court was asked to clarify whether a national court is required to examine, on its own motion, a possible breach of the substantive conditions for designating a third country as “safe,” even if this issue has not been explicitly raised by the applicant. In response, the Luxembourg judges reiterated that Art. 46(3) of the Directive mandates that Member States ensure judicial review that allows for a full and up-to-date examination (ex nunc) of all facts and legal issues relevant to the decision on an application for international protection (paras. 85-90). This review cannot be confined to the merits of the individual case; it must necessarily extend to the procedural prerequisites, including the legality of designating the third country of origin as “safe.” In the present case, since the application was rejected solely based on Moldova’s classification as a “safe” country, this classification constituted a central element which the national court could not overlook in its review under Art. 46(3), even if the applicant did not explicitly challenge it. Therefore, the Court concluded that, in light of the right to an effective remedy as outlined in Art. 47 of the Charter of Nice, the ordinary court is obligated to identify, on its own motion any defects in the designation of a third country as “safe,” provided these defects are relevant to the assessment of the application, regardless of the procedural initiative of the parties. ↩︎

8. The “counter-limits” doctrine refers to the constitutional Court’s ability to intervene regarding the statute that ratifies the Treaties establishing the EU when EU legislative acts conflict with the fundamental principles of the Constitution or the inviolable rights of individuals. This doctrine has its roots in Judgment No. 183 of 1973, where the Court recognized the possibility of intervening concerning obligations arising from the Community legal order. More recently, the constitutional judge reaffirmed that: “The recognition of the primacy of European Union law is an established feature of this Court’s case law, pursuant to Article 11 of the Constitution; that same case law has also consistently held that compliance with the supreme principles of the Italian constitutional order and with the inalienable rights of the person is a condition for the applicability of Union law in Italy. Should the – highly unlikely – case arise that, in specific normative contexts, such compliance were lacking, it would be necessary to declare the constitutional illegitimacy of the national statute authorizing the ratification and rendering the Treaties enforceable, but solely to the extent that it allows such normative contexts to occur.” (Italian Constitutional Court, Order No. 24/2017 of 26 January 2017). For further reading, see A. Ruggeri, “Ultimatum della Consulta alla Corte di giustizia su Taricco, in una pronunzia che espone, ma non ancora oppone, i controlimiti (a margine di Corte cost. n. 24 del 2017)”, Consulta online, no. 1, 2017; M. Luciani, “Il brusco risveglio. I controlimiti e la fine mancata della storia costituzionale”, Rivista AIC, no. 2, 2016; P. Faraguna, “Il Bundesverfassungsgericht e l’Unione Europea, tra principio di apertura e controlimiti”, DPCE online, no. 2, 2016. ↩︎

9. Rome Tribunal, 18th Civil Division (Specialized Section on Personal Rights and Immigration), Judgment No. 44346/2024, 2 November 2024, and Order No. 46690/2024, 11 November 2024. ↩︎

10. The accelerated border procedure is fundamentally a simplified process for processing asylum applications. Its aim is to facilitate the rapid assessment of applications for international protection lodged at external border crossing points or in transit areas of Member States by applicants from third countries that have previously been designated as “safe countries of origin.” The legal framework governing this procedure is primarily based on Regulation (EU) 2016/399 of 15 March 2016, which establishes the Schengen Borders Code, and Regulation (EU) 2024/1348 of 14 May 2024, which introduces a reform of the common procedure for international protection within the European Union. The latter regulation, which is set to enter into force on 12 June 2026, will repeal Directive 2013/32 of 26 June 2013, which had replaced Directive 2005/85. It is worth noting the legislative developments regarding the designation of “safe third countries.” Art. 30(2) of Directive 2005/85 allowed for a third country to be designated as “safe” while permitting the exclusion of certain regions within its territory. However, this option was removed by Directive 2013/32, which eliminated any reference to the “partial” recognition of safe-country status. The new regulation reinstates this possibility; however, its application remains contingent on the regulation coming into force on 12 June 2026—a point that the CJEU explicitly references in Alace & Canpelli (para. 107). For further reading, see D. Ghezelbash, “Fast-track, accelerated, and expedited asylum procedures as a tool of exclusion”, en C. Dauvergne (ed.), Research Handbook on the Law and Politics of Migration, Edward Elgar, Cheltenham, 2017, pp. 248 y ss.; G. Cornelisse, “Territory, procedures and rights: Border procedures in European asylum law”, Refugee Survey Quarterly, vol. 35, no.1, 2016, pp. 74-96. ↩︎

11. Court of Rome, 18th Civil Division (Personal Rights and Immigration), Case No. 42251/2024, 18 October 2024. ↩︎

12. On 22 February 2024, Law No. 14 of 21 February 2024 entered into force, ratifying and implementing the bilateral Protocol established between Italy and Albania. This agreement, which was strongly supported by the governing majority and garnered some approval from the European Commission, stipulates that migrants rescued by Italian naval units in international waters, or outside the territories of Italy and other Member States of the European Union, may be transferred to dedicated facilities in Albania. Specifically, the Protocol outlines the establishment of two operational centres in the northern region of Albania, situated approximately twenty kilometers apart. The first centre, located in Shengjin, is designated for initial reception. The second centre, in Gjader, serves a dual purpose: it facilitates both identification and registration operations, following the hotspot model, and provides for the administrative detention of migrants when necessary arrangements for their return are required. Furthermore, the Protocol stipulates that applications for international protection will be assessed by the Rome Questura and reviewed by the relevant Territorial Commission based in the capital. From a technical and formal perspective, the designated areas on Albanian territory are assimilated to border or transit zones under Italian law. Similarly, the facilities established under this agreement are equated with the centres governed by Art. 10-ter of Legislative Decree No. 286 of 25 July 1998. Appeals regarding decisions made about migrants remain entirely within the jurisdiction of the Italian authorities, specifically under the territorial jurisdiction of the Specialized Immigration Section of the Rome Tribunal. In anticipation of a probable increase in litigation and to ensure the efficiency of the new procedures, the ratifying law provides for an expansion of staffing at the Rome Tribunal, including the extraordinary assignment of ten ordinary judges. See, E. Celoria and A. De Leo, “Il protocollo Italia-Albania e il diritto dell’Unione europea: una relazione complicata”, Diritto, Immigrazione e Cittadinanza, no. 1, 2024; A. Saccucci, “Il protocollo Italia-Albania sulla ‘dislocazione’ exraterritoriale dei migranti”, Rivista di diritto internazionale, no. 33, 2024, pp. 635–660; C. Panzera, “Considerazioni sparse intorno al Nuovo Patto UE su migrazioni e asilo”, Rivista AIC, no. 4, 2024; A. SPAGNOLO, “Sull’illegittimità del Protocollo Italia-Albania in materia migratoria”, SIDIBlog, 9 November 2023; E. Testi, “Profili di illegittimità del Protocollo Italia-Albania”, Questione giustizia, 28 November 2023, 7; L. Masera, “Il disegno di legge di ratifica ed esecuzione del Protocollo tra Italia ed Albania in materia di immigrazione: analisi del progetto e questioni di legittimità”, Sistema penale 28 December 2023; C. Siccardi, “La legge di ratifica ed esecuzione del Protocollo Italia-Albania per il rafforzamento della collaborazione in materia migratoria: problematiche costituzionali”, Osservatorio costituzionale, no. 2, 2024. ↩︎

13. The Protocol has garnered considerable critical attention in academic discourse. Notably, Montaldo presents significant observations, highlighting that: “[U]nder the current framework, however, Article 43 of the Procedures Directive states that the border procedure may take place following an application made at an external border crossing point or in a transit zone, following apprehension in connection with an unauthorized crossing of the external border, [or] following disembarkation in the territory of a Member State after a search and rescue operation. None of these situations seem to fit the case of the migrants subject to the Italy-Albania scheme in full. Moreover, its application in practice depends on unforeseeable circumstances, such as the unavailability of places in other facilities on Italian territory, or on the discretionary and unchecked decision of the Italian authorities to transfer migrants intercepted or rescued in international waters to Albania. In sum, the Italy-Albania Protocol deprives the use of the border procedure of any real link with the text, scope and objective of the Procedures Directive. In this respect, it is important to note that the Court of Justice has already and consistently clarified that other provisions of the same Directive, which limit the discretionary implementing measures to a set of predetermined and exhaustive situations, have direct effect. Although the Court has not yet had occasion to rule on Article 31(8), this provision is similar in nature to those that have been declared directly effective and could therefore be invoked to challenge the overextension of the border procedure.” S. Montaldo, “Not in my Backyard! Outsourcing EU asylum procedures to third countries: A challenge for the common European asylum system”, Common Market Law Review, vol. 62, no. 2, 2025, pp. 364 y ss. ↩︎

14. It is worth recalling that the Constitutional Court of Tirana was engaged – under Art. 131(b) of the Albanian Constitution – in preventive proceedings to assess the constitutional validity of the bilateral Protocol between Italy and Albania. The application, submitted on 6 December 2023 by thirty opposition members of parliament, was initiated prior to the parliamentary ratification of the treaty, which was urgently scheduled for 14 December. The applicants claimed a breach of the constitutionally mandated procedure for concluding agreements, arguing that the Protocol pertained to matters outlined in Art. 121(1)(a) and (b) of the Constitution – thus requiring the prior authorization of the President of the Republic – due to its implications for territorial matters and fundamental rights. They also requested the suspension of the ratification procedure. However, in its ruling on 29 January 2024, the Albanian Court determined that the process leading to the conclusion of the Protocol was entirely lawful, thereby permitting the continuation of the ratification process. See A. Fusco, “Aiutiamoli a casa d’altri: note critiche sul Protocollo italo-albanese per la collaborazione rafforzata in materia migratoria”, Quaderni costituzionali, no. 1, 2024, pp. 166-185. ↩︎

15. Rome Tribunal, 18th Civil Division (Specialized Section on Personal Rights and Immigration), Case No. 42251/2024, 18 October 2024, at 7. ↩︎

16. Ibid. ↩︎

17. Ibid. ↩︎

18. The countries listed in Art. 1 of Decree-Law No. 158/2024 are: 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. ↩︎

19. In this context, it is interesting to note how this governmental decision raises concerns regarding the legitimacy of the decree-law. This is particularly relevant when considering, on one hand, the restrictions imposed on so-called “leggi-provvedimento” (laws-as-administrative-acts), and, on the other hand, the principle of separation of powers between the legislative and executive branches. “Leggi-provvedimento” represent a particular category of legislative acts which, while taking the form of law and possessing its authority, are distinguished by their primarily administrative function. They aim to regulate specific cases or designated recipients, deviating from the general principle that laws should possess a general and abstract character, instead delegating the concrete implementation of provisions to the administration. The legitimation of such laws arises from the necessity to address exceptional situations that require prompt normative interventions. Legal doctrine and constitutional jurisprudence have thoroughly examined this issue. Notably, the Constitutional Court has clarified that, while “leggi-provvedimento” are not inherently incompatible with the legal system, they must undergo particularly stringent scrutiny for constitutional compatibility. This scrutiny serves to ascertain the effective normative need that justifies their enactment, as well as to ensure compliance with the fundamental principles of the constitutional order. Sentence no. 186, dated 24 April 2022, highlights what constitutional judges have observed: “Legislative provisions configurable as ‘legge-provvedimento’ are not in themselves incompatible with the system of powers established by the Constitution. However, considering the danger of unequal treatment inherent in provisions of this type, they must undergo a strict scrutiny of constitutionality, under the profiles of non-arbitrariness and non-unreasonableness of the legislative choice. Their constitutional legitimacy must therefore be evaluated in relation to their specific content, and the criteria inspiring the choices made with them, as well as their relative implementation methods, must be evident. The scrutiny must be, on the other hand, all the more rigorous the more marked the ‘seemingly administrative’ nature of the provision is. The constitutional legitimacy review does not in fact stop at the evaluation of the legislator’s purpose, that is, at the verification of a ‘sufficient reason’ that is enough to justify the choice to intervene with a legge-provvedimento, but extends to the judgment of congruity of the means provided with respect to the pursued goal and to the judgment of proportionality of the measure selected in view of obtaining that goal. The first is aimed at verifying the conformity of the means to the end, while the second is aimed at testing the reasonable proportion between the chosen instrument and the needs to be satisfied, in view of the least possible sacrifice of other constitutionally protected principles or values” (sentence no. 186/2022, Maxim no. 45048). See, C. Cudia, “Osservazioni sul decreto-legge in materia di individuazione dei paesi di origine sicuri nelle procedure per il riconoscimento della protezione internazionale”, Federalismi.it, no. 27, 2024, p. 48. ↩︎

20. In this context, refer to CJEU, Joined Cases C-704/20 and C-39/21, 8 November 2022. The Luxembourg Court has underlined: “[T]he third-country national concerned may not […] be detained where a less coercive measure can be effectively applied. Where it appears that the conditions of lawfulness for detention […] have not been or are no longer satisfied, the person concerned must— as expressly indicated by the EU legislature in Article 15(2), fourth subparagraph, and Article 15(4) of Directive 2008/115, as well as in Article 9(3), second subparagraph, of Directive 2013/33—be released immediately” (paras. 78–79). ↩︎

21. This refers to Art. 15, paras. 1 and 2 (second subparagraph), as well as paras. 4–6 of Directive 2008/115; Art. 8, paras. 2 and 3, and Art. 9, paras. 1, 2, and 4 of Directive 2013/33; and finally Art. 28, paras. 2–4 of Regulation No. 604/2013. ↩︎

22. Bologna Tribunal, (Specialized Section for Immigration and International Protection), General Registry No. 14572/2024, 25 October 2024. ↩︎

23. Ibid., p. 12. ↩︎

24. The Tribunal explicitly referred to the following judgments: Conseil d’État (2nd-7th chambers combined), No. 437141, of 2 July 2021; R (on the application of Jamar Brown (Jamaica)) (Respondent) v. Secretary of State for the Home Department (Appellant) [2015] UKSC 8, 4 March 2015. In the French case, the judges were asked to verify whether Senegal and Ghana could be considered safe countries. They concluded: “[...] the existence of legislative provisions criminalizing homosexual relations in Senegal and Ghana and the persistence of behaviors, encouraged, favored or simply tolerated by the authorities of these countries, leading to people potentially fearing exposure to such risks, the French Office for the Protection of Refugees and Stateless Persons could not, without committing an error of assessment, consider these States as safe countries of origin in examining applications submitted by their nationals” (Conseil d'État, 2 July, 2021, para. 12). In the English case, the UK Supreme Court (UKSC), having to decide on an asylum request from a Jamaican citizen, clarified that the designation of a country as safe “is a legitimate aim, especially given the notorious delays which attend the processing of the very large number of immigration and removal cases in which asylum or human rights claims are made. It is in the interests of the public at large but also of meritorious asylum or human rights claimants that the latter's good claims should not be delayed by large numbers of clearly unfounded ones. In the present case, however, the risk attaches to all who are homosexual, lesbian, bisexual or transsexual. [...] the risk applies to ‘an entire section of the community, defined by sexual orientation and substantial in numbers’. [...] It follows that [...] the Secretary of State's appeal ought to be dismissed'.” (UKSC 8, 4 March 2015). ↩︎

25. Very sharply, the Tribunal stressed: “[...] paradoxically, [even] Germany under the Nazi regime was [an] extremely safe [country] for the vast majority of the German population: except for Jews, homosexuals, political opponents, people of Roma ethnicity and other minority groups, over 60 million Germans enjoyed an enviable condition of security. The same [could] be said of Italy under the fascist regime. If a country were to be considered safe when security is guaranteed to the general population, the legal notion of a safe country of origin could be applied to almost all countries in the world, and would therefore be a notion devoid of any legal substance.” (Referral order, p. 20). ↩︎

26. Shortly afterwards, the Tribunal of Palermo (Specialized Section for Immigration and International Protection) took the same action, with General Registry No. 21/2025, 2 January 2025; General Registry No. 60/2025, 4 January 2025. ↩︎

27. CJEU, Grand Chamber, supra note 7, para. 84 ss. ↩︎

28. Constitutional Court, Judgment No. 15, 12 February 2024, considered in sec. 8.3. See, A. Ruggeri, “Ancora in tema di tecniche di risoluzione delle antinomie tra norme interne e norme sovranazionali self-executing (a prima lettura di Corte cost. n. 15 del 2024)”, Consulta Online, no. 1, 2024; S. Barbareschi, “‘L’ordinato funzionamento delle fonti interne’ e il ‘concorso’ degli strumenti di tutela dei diritti. Considerazioni sulla sentenza n. 15 del 2024”, Nomos, no. 2, 2024; G. Patarini, “Le peculiarità del procedimento antidiscriminatorio ex art. 28, d. lgs. 150 del 2011 e i rapporti fra norme interne e norme dell’Unione Europea. Nota a Corte cost. sentenza n. 15 del 2024”, Osservatorio costituzionale, no. 5, 2024. ↩︎

29. See, M. Esposito, “La designazione dei Paesi sicuri tra legislatore e giudice, alla luce di Alace e Canpelli, e i suoi riflessi sull’identità costituzionale”, DPCE online, no. 3, 2025; B. Cortese, “Dai Paesi (terzi) di origine sicuri a un Paese fondatore non più così sicuro del suo posto nel Diritto dell’Unione: riflessioni a margine di Corte di giustizia, sentenza 1° agosto 2025, cause riunite c-758/24 e c-759/24, Alace e Canpelli”, Diritto, Immigrazione e Cittadinanza, no. 3, 2025. ↩︎

30. It is worth noting that Italian judges have presented many referrals on similar issues. For example: Florence Tribunal, referrals of 4 June 2024, Cases C-388/24 (Oguta) and C-389/24 (Daloa); Bologna Tribunal, referral of 29 October 2024, Case C-750/24 (Ortera); Palermo Tribunal, referrals of 6 November 2024, Cases C-763/24 (Mibone) and C-764/24 (Capurteli); Rome Tribunal, referrals of 13 November 2024, Cases C-780/24–C-786/24. Presumably, following the decision in Alace & Canpelli, the other referring judges will consider their questions already addressed. ↩︎

31. Rome Tribunal, supra note 9. The same conclusions were reached, again by the Rome Tribunal, with the preliminary reference order No. 46690/2024, 11 November 2024. ↩︎

32. The referring judge highlighted that pending the decision of the court, the applicant should not, in principle, be removed from the territory of the State. However, there are no effective guarantees that this stay is actually protected; while remaining in Italy, the applicant will be without a valid residence permit, thereby in a legal condition of irregularity. This status exposes the applicant to expulsion measures and, consequently, to restrictions on personal freedom, such as detention – even repeated – whenever the applicant is subjected to police checks. This situation constitutes a serious violation of the fundamental rights of the individual, particularly the right to personal freedom, regardless of the subsequent validation of the measures adopted. Rome Tribunal, supra note 9, point 5. ↩︎

33. In such situations, at the request of the referring court, or exceptionally ex officio when the nature of the case requires expeditious treatment, the President of the Court, after hearing the Judge-Rapporteur and the Advocate General, may decide to subject a preliminary reference to the accelerated procedure, in derogation of the general provisions of the Rules of Procedure. The Grand Chamber is composed of fifteen judges and presided over by the President of the Court. It includes the President and Vice-President of the Court (according to the modalities stipulated in the Rules of Procedure), three Presidents of five-judge chambers, and other designated judges. The Court convenes in Grand Chamber when requested by a Member State or an EU institution that is a party to the proceedings. Plenary session is, however, required in cases under Arts. 228(2), 245(2), 247, and 286(6) of the TFEU. If a pending case is deemed exceptionally important, the Court may, after obtaining the opinion of the Advocate General, order referral to the plenary session. ↩︎

34. Regulation (EU) 2024/1348, establishing a common procedure for international protection in the European Union (entering into force in 2026), provides in Art. 61 that a third country may be designated as a “safe country of origin” only if, in light of its legal system, the effective application of law within a democratic institutional context, and the overall political framework, there is no persecution as defined in Art. 9 of Regulation (EU) 2024/1347, nor any substantial risk of serious harm under Art. 15 of the same regulation. The Regulation also requires that such designation be based on reliable and accessible sources provided by qualified institutional and international entities, including Member States, the European Union Agency for Asylum, the European External Action Service, the United Nations High Commissioner for Refugees, and other competent international organizations. ↩︎

35. The Tribunal of Rome has observed that the entry into force of the new regulations has profoundly modified the legislative framework. Not only has the list of “safe countries of origin” been transferred from a secondary source to primary legislation through urgent decree (Article 2-bis(1) of Legislative Decree No. 25/2008), but also the information underlying the designation of “safe countries” is no longer accessible. The referring court therefore expressed doubts about the compatibility of this transition with Directive 2013/32/EU, because the possibility of exercising effective judicial review over such designations, as stipulated in the Directive, appears compromised. In the court’s view, given this “change in source,” the only remaining option would be to resort to incidental referral to the Constitutional Court. ↩︎

36. Alace, para. 66. The Luxembourg judges explicitly reference the judgment in Case C-406/22 of 4 October 2024, which has been the genesis for all subsequent appeals. ↩︎

37. Directive 2013/32/EU, Annex I, stipulates: “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/EU, 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 and/or the International Covenant for Civil and Political Rights and/or the United Nations Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect for the non-refoulement principle in accordance with the Geneva Convention; (d) provision for a system of effective remedies against violations of those rights and freedoms.” ↩︎

38. Alace & Canpelli, para. 63. ↩︎

39. Ibid., para. 61 ↩︎

40. Ibid., para. 63. ↩︎

41. The Court elucidates that Union law mandates accessibility to the information sources used for the designation of a “safe country of origin,” both for the applicant seeking international protection and for the national judge. Pursuant to Arts. 10, 12, and 46 of Directive 2013/32/EU, interpreted in light of Art. 47 CFR and in harmony with the ECHR, applicants must be able to ascertain the reasons for the rejection of their protection claims, particularly when based on the presumption of safety of the country of origin. Consequently, judges must not only have access to the official sources used by the State but must also be able to acquire additional information from reliable sources, whether public or produced in court, in adherence to the principle of adversarial proceedings. ↩︎

42. Alace & Canpelli, para. 88. ↩︎

43. Ibid. ↩︎

44. Ibid., para 90. ↩︎

45. Ibid., para 92. ↩︎

46. Ibid., para 94-96. The Court noted that “[…]it is true that the linguistic versions of Annex I to Directive 2013/32 diverge. Thus, only the French language version of this annex uses the adverb ‘uniformément’ (uniformly). The other linguistic versions of said annex, such as the Bulgarian (‘за всеки отделен случай’), Spanish (‘sistemática’), Czech (‘soustavně’), Danish (‘til stadighed’), German (‘durchgängig’), Estonian (‘järjekindlat’), Greek (‘μόνιμα’), English (‘consistently’), Croatian (‘trajno’), Italian (‘costantemente’), Latvian (‘konsekventi’), Lithuanian (‘sistemingai’), Hungarian (‘következetesen’), Maltese (‘konsistentement’), Dutch (‘duurzame’), Polish (‘konsekwentnie’), Portuguese (‘sistemático’), Romanian (‘consecvent’), Slovak (‘sústavne’), Slovenian (‘redno’), Finnish (‘jatkuvasti’), and Swedish (‘genomgående’) versions, correspond to expressions such as ‘consistently’, ‘systematically’, ‘durably’, ‘continuously’ or ‘coherently’.” ↩︎

47. Ibid., para 99. ↩︎

48. In his conclusions, Advocate General Jean Richard de la Tour observed that Art. 61, para. 2 of Regulation 2024/1348 expressly authorizes Member States to designate third countries as safe countries of origin while providing exceptions for identifiable categories of persons. In his view, it would be “paradoxical to impose on Member States, which have already chosen to designate certain third countries as safe countries of origin with associated exceptions for certain categories of persons, the abrogation of such an application modality, when they are simultaneously called upon to adequately prepare for the application of said regulation by virtue of the transitional measures provided for in Article 75.” Opinion of Advocate General of the Court of Justice of 10 April 2025, LC v. Territorial Commission for the Recognition of International Protection of Rome - Border Procedures Section II, Case C-758/24. ECLI:EU:C:2025:260. https://e-justice.europa.eu/ecli/ECLI:EU:C:2025:260. ↩︎

49. Alace & Canpelli, paras. 106–109. ↩︎

50. The Italian Constitutional Court has clarified the conceptual distinction between “disapplication” and “non-application” of a domestic norm. The former implies a judgment of invalidity, which only the Constitutional Court may make in relation to an ordinary law, as such assessment is reserved for the Court itself. The latter falls within the scope of judicial interpretation: the judge, without contesting validity, excludes its operability in the specific case, based on competence and the hierarchy of sources. Although theoretically distinct, in practice the two terms are often used interchangeably, particularly where judges refrain from applying a domestic provision by virtue of the primacy of another normative source. See Constitutional Court, Judgments No. 170/1984 and No. 94/1995; R. Bin, G. Pitruzzella, Le fonti del diritto, Giappichelli, Torino, 2009, p. 76; A. Celotto, “Dalla ‘non applicazione’ alla ‘disapplicazione’ del diritto interno incompatibile con il diritto comunitario”, Giurisprudenza italiana, no. 1, 1995, pp. 341 y ss.; F. Donati, “I rapporti tra diritto interno e diritto comunitario: problemi e prospettive alla luce di una recente sentenza della Corte costituzionale”, Giurisprudenza costituzionale, 1994. ↩︎

51. Alace & Canpelli, para. 65. ↩︎

52. Ibid., 82. ↩︎

53. The principle of non-refoulement is enshrined in Art. 33 of the 1951 Geneva Convention and is recognized as a non-derogable norm of international law (jus cogens). Art. 33 of the Convention Relating to the Status of Refugees states: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The right to humanitarian protection is also grounded in other international sources binding within the Union and Italian legal systems, including the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Art. 3), as well as the 1950 European Convention on Human Rights (Art. 3, as interpreted by the Strasbourg Court). See C. F. Moran, “Strengthening the principle of non-refoulement”, The International Journal of Human Rights, vol. 25, no. 6, 2021, pp. 1032 y ss.; J. C. Simeon, “What is the future of non-refoulement in international refugee law?”, in S. Singh Juss (ed.), Research Handbook on International Refugee Law, Edward Elgar, Cheltenham, 2019, p. 183; C. Costello and M. Foster, “Non-refoulement as custom and jus cogens? Putting the prohibition to the test”, in M. Heijer, H. van der Wilt (eds), Netherlands Yearbook of International Law 2015, vol. 46, T.M.C. Asser Press, The Hague, 2016, pp. 273 y ss. ↩︎

54. See B. Nascimbene, Diritto degli stranieri, Giappichelli, Torino, 2020; M. Benvenuti, Il diritto di asilo nell’ordinamento costituzionale italiano. Un’introduzione, Cedam, Padova, 2019. ↩︎

55. For reasons of scope, the role played by the ECtHR is not addressed here. It should nevertheless be recalled that Art. 37, para. 1, of Annex I to Directive 2013/32 explicitly refers to the ECHR and that the Strasbourg Court plays a central role in defining the scope of protections afforded to asylum seekers ↩︎

56. On this point see, P. Feihle, “Asylum and immigration under the European Convention on Human Rights, an exclusive universality?”, in H. Aust, E. Demir-Gürsel (eds.), The European Court of Human Rights, Edward Elgar, Cheltenham, 2021, pp. 133 y ss.; L. Slingenberg, “The right not to be dominated: The case law of the European Court of Human Rights on Migrants’ Destitution”, Human Rights Law Review, no. 19, 2019, pp. 291 y ss.; G. Ciliberto and A. Roşu, “Asilo e protezione internazionale nella Cedu”, Questione Giustizia, April 2019; M. Baumgärtel, Demanding Rights: Europe's Supranational Courts and the Dilemma of Migrant Vulnerability, Cambridge University Press, Cambridge, 2019; M. Dembour, When Humans Become Migrants, Study of the European Court of Human Rights with an Inter-American Counterpoint, Oxford University Press, Oxford, 2015. ↩︎

57. The theory of counter-limits – understood as the faculty of the Constitutional Court to intervene on the law ratifying the founding Treaties of the European Union when EU normative acts conflict with the fundamental principles of the Constitution or with the inviolable rights of the person – has its roots in Judgment No. 183 of 1973, in which the Constitutional Court hypothesized its own intervention with respect to obligations deriving from the Community legal order. More recently, the judge of the laws has reiterated that “The recognition of the primacy of Union law is an established fact in the jurisprudence of this Court, pursuant to Art. 11 of the Constitution; this same jurisprudence has also consistently affirmed that the observance of the supreme principles of the Italian constitutional order and the inalienable rights of the person is a condition for Union law to be applicable in Italy. Should the highly improbable case occur that in specific normative instances such observance is lacking, it would be necessary to declare the constitutional illegitimacy of the national law that authorized the ratification and made the Treaties executable, only for the part in which it allows that normative instance to be realized” (Order no. 24/2017, of 26 January 2017). On this point, A. Ruggeri, “Ultimatum della Consulta alla Corte di giustizia su Taricco, in una pronunzia che espone, ma non ancora oppone, i controlimiti (a margine di Corte cost. n. 24 del 2017)”, Consulta online, no. 1, 2017; M. Luciani, “Il brusco risveglio. I controlimiti e la fine mancata della storia costituzionale”, Rivista AIC, no. 2, 2016. ↩︎

58. Supreme Court of Cassation, Civil Division, Joint Chambers, Judgment No. 4674, 26 May 1999. ↩︎

59. Art. 3 of the Italian Constitution states: “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country.” ↩︎

60. Art. 24 of the Italian Constitution states: “Anyone may bring cases before a court of law in order to protect their rights under civil and administrative law. Defense is an inviolable right at every stage and instance of legal proceedings. The poor are entitled by law to proper means for action or defense in all courts. The law shall define the conditions and forms of reparation in case of judicial errors.” ↩︎

61. Art. 10 of the Italian Constitution states: “The Italian legal system conforms to the generally recognized principles of international law. The legal status of foreigners is regulated by law in conformity with international provisions and treaties. A foreigner who, in his home country, is denied the actual exercise of the democratic freedoms guaranteed by the Italian constitution shall be entitled to the right of asylum under the conditions established by law. A foreigner may not be extradited for a political offence.” ↩︎

62. See C. Salazar, “Lo ‘statuto costituzionale dello straniero’ e il diritto d’asilo”, Consulta Online, no. 2, 2021; C. Panzera, A. Rauti, Dizionario dei diritti degli stranieri, Editoriale Scientifica, Napoli, 2020; M. Benvenuti, “La forma dell’acqua. Il diritto di asilo costituzionale tra attuazione, applicazione e attualità”, Questione giustizia, no. 2, 2018; F. Mastromartino, Il diritto di asilo. Teoria e storia di un istituto giuridico controverso, Giappichelli, Torino, 2012. ↩︎

63. C. Panzera, “Attuazione, tradimento e riscoperta del diritto d’asilo”, Quaderni Costituzionali, no. 4, 2022. ↩︎

64. Art. 117 (1) of the Italian Constitution states: “Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations”. ↩︎

65. AAA and Others v. Secretary of State for the Home Department (UNHCR Intervening) [2023] UKSC 42, 15 November 2023. The UK Supreme Judges have emphasised that “The principle of non-refoulement is given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party. It is a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country’s reputation for developing and upholding the rule of law” (para. 27). See, P. Birkinshaw, “The Rwanda Bill, Boat People and International Law”, European Public Law, vol. 30, no. 2, 2024; S. Pennicino, “La Corte suprema del Regno Unito si pronuncia sul piano Ruanda”, Quaderni costituzionali, no. 1, 2024, pp. 187 y ss.; for further discussion of legislative developments following the judgment, G. S. Goodwin-Gill, “R (AAA (Syria) and Others) v. Secretary of State for the Home Dep’t (UKSC)”, International Legal Materials, vol. 63, no. 4, 2024. ↩︎