Save for Everyone?

On the 1st of August, the European Court of Justice (ECJ) delivered its much-anticipated judgment in Alace and Canpelli (joined cases C-758/24 and C-759/24), addressing the interpretation of the “safe country of origin” (SCO) concept under the Asylum Procedures Directive 2013/32 (APD). Firstly, it confirmed that a SCO can be designated through legislation, as long as national courts can verify compliance with EU law. Secondly, it outlined essential procedural safeguards regarding the accessibility of sources used in the designation process.

Finally, and contrary to AG de la Tour, the Court firmly ruled that Member States cannot designate a country as “safe” unless it provides adequate protection to its entire population. This decision reaffirms the Court’s logic in the CV ruling of 4 October 2024 (C-406/22) and challenges the political pressures from certain Member States favoring expedited SCO lists. Still, tension remains between the Commission’s push to speed up this possibility of partial SCO designations through the upcoming Asylum Procedures Regulation 2024/1348 (APR) and the ongoing debate over when and how these new rules should apply. Ultimately, the Court’s judgment effectively preserves the current protection until the EU legislator fully exercises its prerogative to amend the rules.

First things first, procedural safeguards

When a national from a third country applies for international protection, their application can be rejected as unfounded through an accelerated border procedure if their country of origin is considered “safe” by an EU Member State. This occurred with two Bangladeshi nationals rescued by Italian authorities and sent to a detention center in Albania under the Italy-Albania Protocol. Following their appeal, the court referred the case to the ECJ concerning the application of the SCO concept and the obligations of Member States regarding judicial review under Articles 36, 37, 46, and Annex I of the APD, read in the light of Article 47 of the Charter of Fundamental Rights (Charter). Annex I of the Directive outlines the criteria for a country’s designation, including the prohibition of persecution, torture, inhuman treatment, and exposure to indiscriminate violence related to armed conflict.

The Court addressed objections from Italy and Slovakia regarding the relevance of the first, second, and fourth preliminary questions. It upheld their admissibility, noting that the referring court sufficiently expressed doubts about the legality of Bangladesh’s “safe country of origin” designation under EU law. Even without establishing that the claimants belong to excluded groups, the questions are deemed admissible (Judgment, paras. 35-43).

Starting with the first question, the Court notes that the APD does not specify which authority or legal act to use for SCO designations, leaving it to Member States to choose between legislative, regulatory, or administrative acts (Judgment, para. 56). Member States have discretion under Article 288 of the Treaty on the Functioning of the EU (TFEU) in implementing directives but must fully achieve the directive’s objectives, even if it means ignoring conflicting national laws (Judgments of 9 March 1978, Simmenthal, 106/77, paras. 21 and 24; 31 March 2022, Lombard Lízing, C-472/20, para. 35). This discretion requires effective judicial review under Article 46 (3) APD and Article 47 of the Charter (3 July 2025, Al Nasiria, C-610/23, para. 51). Crucially, even if a country is listed as “safe” by law, national courts must still be able to review in a full and up-to-date assessment whether that designation meets the directive’s material criteria in Annex I (Judgment, paras. 64-67).

Concerning the second and third questions, the Court held that Member States have positive obligations. Firstly, the SCO designation creates a rebuttable presumption of protection under Article 36 (1) APD. Therefore, Member States must ensure that applicants have access to the information that supports this designation. This access is essential for applicants to effectively defend themselves and make informed decisions about whether to appeal. Secondly, Member States are required to provide both applicants and courts with access to up-to-date, precise information from sources such as European Union Agency for Asylum (EUAA) and the United Nations High Commissioner for Refugees (UNHCR), as required by Articles 12 (1) (d) and 10 (3) (b) APD (Judgment, paras. 70-74).

Effective judicial review (Article 47 Charter and Article 46 (3) APD) demands that national courts reviewing appeals against international protection decisions under the special regime for applicants from a SCO can review the legality of the designation fully and ex nunc (judgments of 25 July 2018, Alheto, C-585/16, para. 111 and 113; of 29 July 2019, Torubarov, C-556/17, para. 52, and C-406/22, paras. 88-89), including new evidence. Courts can rely on additional information they collect themselves, provided it is reliable and the parties have a chance to comment, respecting the adversarial principle (Judgment, paras. 82-83 and 85-86).

No territorial or personal exceptions under current law

The fourth question addresses Article 37 and the material conditions in Annex I APD regarding the designation of countries as “SCOs”. The Court was asked if a Member State can label a country as safe even if certain groups within it could face “persecution as defined in Article 9 of Directive 2011/95/EU, torture or inhuman or degrading treatment or punishment, and threat by reason of indiscriminate violence in situations of international or internal armed conflict” (Annex I APD). Back in October 2024, in a related case, the Court decided that a country may not be designated as safe if only part of its territory meets the conditions under the APD (CV, C-406/22). In the case at hand, the referring court must decide whether Bangladesh’s designation as a SCO meets the material conditions in Annex I of the APD for its entire population, without excluding any groups (Judgment, paras. 105–108). This ruling applies across all Member States, not just Italy. Like in CV, the Court examines the directive’s wording, its context, and the objectives (Judgment, para. 91).

First, the court emphasizes that the APD’s language repeatedly refers to “country” or “third country” as a whole, without indicating that the designation could apply only to certain segments of the population. Annex I requires that safety must be demonstrated “generally” and “uniformly” across the population (Judgment, paras. 92-93).

Furthermore, the Court emphasizes that the designation must apply to the entire population of the country and that the safety conditions must be fulfilled for all categories of people, not just for one part or for the majority or some groups. Although the French version of Annex I uses the term “uniformément” (uniformly), other language versions use words like “consistently,” “systematically,” or “constantly.” Despite these linguistic differences, the Court finds that all these terms share the notion of invariability and indicate that the conditions must be met across the entire population (Judgment, paras. 94-95).

Also, the Court acknowledges that absolute security for every individual cannot be guaranteed. For this reason, Article 36(1) of the APD provides that asylum seekers from SCO can rebut the presumption of safety by presenting serious personal reasons related to their situation. Allowing Member States to designate a country as safe while excluding certain groups from the safety assessment would unjustifiably extend the accelerated procedure (judgments of 5 March 2015, Commission v Luxembourg, C-502/13, para. 61, and of 8 February 2024, Bundesrepublik Deutschland, C-216/22, para. 35). The Court finds no support for such an interpretation in the text or purpose of the Directive, which must be strictly construed, especially when it derogates from the general regime (Judgment, paras. 99-100).

The Directive (recitals 18 and 20) seeks to balance the need for a swift asylum procedure with the need for a thorough examination (C-585/16, para. 109 and C-406/22, paras. 78-81). The absence of any provision allowing partial SCOs designations with personal or territorial exceptions reflects this balance, signaling the legislator’s choice to require safety for the entire population (Judgment, paras. 101-105).

Crucially, the Court did not follow AG de la Tour’s approach of political flexibility but adhered to the letter of the law. The AG proposed that Member States may designate a third country as a “SCO” under the APD even when certain groups within its population face persecution or serious harm (Opinion, para. 95). In this way, he did not rule out personal exceptions in line with CV, where the Court ruled that allowing territorial exceptions to SCO designations is incompatible with the current APD (C-406/22, paras. 69-82). AG de la Tour reads “generally” safe countries in Annex I as an open door to partial designations (Opinion, paras. 74-79). He argues that this approach would enhance the efficiency and speed of examination procedures for all applicants seeking international protection by alleviating the pressure on specific national asylum systems and allowing resources to focus on applicants who genuinely need international protection.

In contrast, the Court conducted a careful analysis of Articles 36, 37, and Annex I of the APD, considering the risks to procedural rights from accelerated border procedures (Judgment, paras. 51 and 100). This controversial issue was handled through the balancing of both the Member States’ and the asylum seekers’ concerns, resulting in an accurate interpretation of the current APD.

The looming new Asylum Procedures Regulation

The Court notes that the APR, which is part of the EU Pact on Migration and Asylum, set to replace the APD in June 2026 (Article 78 APR), changes these standards. Most importantly, Article 61(2) APR allows exceptions when designating SCOs based on specific groups or parts of a country, both at the EU and national levels. However, this provision reflects a deliberate legislative choice and does not apply retroactively to cases governed by the current APD.

On 16 April 2025, the European Commission proposed (COM(2025) 186 final) to accelerate the application of Articles 79(2) and (3) APR, enabling earlier use of Article 61(2) APR. This would allow the Commission to determine when personal and territorial exceptions take effect, potentially before the full APR comes into force in mid-2026.

Currently, the SCO’s implementation under the Directive varies widely across the EU. However, greater convergence is expected as the transposition of the SCO concept will become mandatory for all Member States under the Regulation as part of the New Pact.

Conclusion

Although the applications for international protection from Bangladeshi nationals may be rejected through an expedited border procedure due to Italy’s classification of their country of origin as “safe,” there are still important procedural safeguards in place. The Court indicates that this designation can stem from a legislative act, as long as it is subject to effective judicial review under EU law. Furthermore, the sources of information used to establish this designation must be accessible to both the applicant and the national court. Importantly, Italy cannot designate Bangladesh as a “SCO” if it does not provide adequate protection for the entire population.

How will the judgment affect the Member States’ practice right now? At least, following the prohibition of making territorial exceptions for SCO designations in CV, practical changes are evident. For example, Dutch authorities now instruct case officers not to apply the SCO concept to applicants from India and Georgia, where geographic exceptions exist, and to process these cases under regular asylum procedures instead of accelerated ones. Additionally, Italy removed Cameroon, Colombia, and Nigeria from its SCO list, while Norway has removed Ukraine.

Italy’s Prime Minister Giorgia Meloni called the Court’s judgment in Alace and Canpelli “surprising”, arguing it weakens policies intended to curb irregular migration and limits government action. However, this claim is inaccurate, since the New Pact will essentially allow this practice in June 2026 or even earlier, following the Commission’s proposal.

The ongoing discussions on the fourth question, among the Court, AG, Commission, and Member States, highlight the challenge of balancing the need for expedited application processing with the proper handling of cases under the APD. Despite the impending Regulation, the Court’s careful interpretation of the law emphasizes that certain countries or regions are currently not “safe for everyone.” By taking this stance, the Court reaffirms the procedural safeguards for asylum seekers over the political pressures exerted by Member States.