"Safe countries, right to asylum at risk. The constitutional barrier remains"

"I do not recall any precedent for the behavior of the EU Commission at the hearing at the European Court of Justice on Tuesday." Bruno Nascimbene is a lawyer and professor of EU law at the University of Milan, former president of the Jean Monnet European Center of Excellence.

In its observations filed a month ago, the EU Commission opposed the possibility of designating as “safe countries of origin” those with exceptions for entire categories of people. At the hearing, it expressed an opposite position. Is this usual behavior? No, it is not. I honestly do not remember any precedents. The Commission justified itself by saying that it had read and considered the observations of the Member States and therefore decided to change its opinion. But in short, this position caused great surprise in the Court. In fact, the President expressly asked for confirmation that the Commission's opinion had changed. One justification could be that the institution considers it appropriate to anticipate the application of the new regulation inserted in the EU Pact on Immigration and Asylum, in force from June 2026.

Wouldn't that be strange given that that element is part of a very complex package of rules that redefines the entire regulatory framework on asylum? In fact, I would say to the Commission: if you are so sure of your thesis, why don't you propose to the governments to anticipate the applicability of the regulation? It is not that it can be enforced in advance without modifying the one in force. However, it is fair to say that you cannot simply change the date of a regulation that is included in a package. It is complicated, even if a solution cannot be excluded.

Let us return to the exceptions for social groups discussed at the hearing. For the Commission, they should not be tied to a quantitative criterion, provided that the threatened groups are "clearly distinguishable". What does such an interpretation imply? The quantitative criterion on groups of people has left me perplexed ever since I saw it expressed in the written observations. It was also the subject of debate at the hearing. It seems to me a very fluid, malleable, soft parameter if you like. It would introduce a margin of uncertainty of no small importance. I do not know whether the Court of Justice will address this specific issue in the ruling.

If the thesis of the member countries and the Commission were to pass, would the centers in Albania have a definitive green light or would there remain aspects of illegitimacy? They would have the green light. The Attorney General has insisted a lot on the concept of "margin of appreciation", that is, the discretion of the individual State, especially Italy. All countries agree on this aspect. With the exception of Germany, which expressed itself differently, in written observations rather than in the hearing.

The Italian State Attorney's Office maintains that there are no differences in terms of guarantees between accelerated border procedures, reserved for those coming from a "safe country", and ordinary procedures. I dispute this idea. If I had been in the courtroom as a lawyer I would have said: theoretically yes, in fact no. This is what lawyers who work in the field, like those present at the hearing, and who deal with specific cases every day, say. With accelerated procedures, defense rights are guaranteed only on paper. The lawyers of asylum seekers who ended up in Albania have also complained before national judges about the limits imposed by the protocol.

If it were possible to extend the designation of safety to many more countries and the majority of applicants were thus subjected to accelerated procedures, what would be the impact on the effectiveness of the right to asylum? It would suffer a significant compression. And with this term I mean an excessive limitation. I must say, however, that in our country we have a constitutional provision, Article Ten, Third Paragraph of the Constitution, which in any case cannot be touched. It recognizes a fundamental right of the person regardless of the obligations of European Union law.

The new Immigration and Asylum Pact risks conflicting with the Constitution. It's a bit theoretical, but there could be a question of a counter-limit, or rather of a constitutional limit on our part to a compression of a right guaranteed by the Charter.