1. On 11 November 2025, the Rome Court of Appeal submitted a further preliminary reference to the Court of Justice of the European Union, questioning the compatibility with EU law of Protocol signed between Italy and Albania for the strengthening of cooperation on migration matters.

It is worth recalling that, compared with other externalization models recently proposed or discussed across Europe, the Italy-Albania Protocol has a distinctive structure. It authorizes Italy to use two areas of Albanian territory to construct facilities intended to carry out “border or return operations” (as stated in Article 4, para. 3 of the Protocol), which are to operate under Italian control and full jurisdiction.

Originally, the new centres located in Albania were designed to function respectively as a “hotspot” and as an administrative detention facility, and to accommodate only asylum seekers intercepted by Italian authorities outside Italian territorial waters who originate from safe countries of origin and may therefore be subject to the accelerated border procedure. However, in 2025, Decree-law n. 37/2025 modified the framework governing the use of these centres, equating them with administrative detention facilities located in the rest of Italian territory and thereby allowing the transfer to Albania of persons detained in Italy pending their removal.

2. Alongside the criticism about the Protocol (see recently S. Montaldo; A. Fazzini), the preliminary reference made by the Court of Appeal of Rome in November represents the latest step in a long series of rulings and preliminary references concerning the content, implementation and consequences of the Protocol (for an account of the various legislative and case-law developments involved in the implementation of the protocol, see F. Tammone).

These concerns have so far been explicitly addressed in the CJEU’s ruling in the Alace and Campelli case, which focused on the definition of a safe country of origin, i.e. one of the criteria permitting an asylum seeker to be subjected to the border procedure and, consequently, to be transferred to and held in the Albanian centres operated by Italy (see in this Review, the comments by G. Cellamare and U. Brandl).

In the meantime, the Court of Cassation submitted a further preliminary reference focusing on the compatibility with EU law of the provisions allowing the transfer to centres in Albania of individuals already subject to validated detention orders, including those who lodged an asylum application only after being detained (see G. Mentasti for commentary).

However, the most recent reference shifts the focus to a different and more structural issue: the competence of Italy to conclude such a protocol, a question that inevitably calls into doubt the very legitimacy of the instrument. In the view of the referring court, the Protocol could not have been concluded by Italy, insofar as it concerns a field that falls within the competences of the European Union.

3. The case underlying the preliminary reference concerns a Moroccan national who, shortly after irregularly entering Italian territory in November 2024, was taken into criminal custody. Having received an expulsion order in September 2025, he was transferred to an administrative detention centre, as he could not be immediately expelled due to the absence of valid travel documents. One month after the confirmation of the legitimacy of his detention order, he was transferred to the Italian centre located in Gjader, Albania, accordingly to Decree-law n. 37/2025. In Gjader, he lodged an application for international protection.

Because the asylum claim appeared abusive, the authorities requested a new confirmation of detention before the Rome Court of Appeal, applying the stricter detention rules for asylum seekers under Decree-Law 142/2015 (which implements Directive 2013/33/EU). In the preliminary reference, the judge did not dispute the grounds for detention and accepted that the asylum claim was used instrumentally, even after hearing the applicant. The detention would therefore have been upheld, were it not for the fact that it was being carried out in Gjader under the Italy-Albania Protocol, whose compatibility with EU law was considered doubtful.

Specifically, the judge refers to Article 4(3) TEU, Article 3(2) TFEU and Article 216(1) TFEU, according to which the EU has exclusive competence to conclude international agreements where such conclusion may affect common rules or alter their scope.

4. The referring court has raised, in particular, two preliminary questions. First, it has asked whether EU law precludes a Member State from concluding an international agreement with a non-EU country for the management of migration flows. In the alternative, should the answer to the first question be in the negative, the court has asked whether Directives 2013/32/EU and 2013/33/EU preclude third-country nationals, including asylum seekers, from being processed and detained in areas outside the EU territory.

The legal arguments advanced by the Rome Court of Appeal are numerous and start from the premise that the Court of Justice has jurisdiction to rule on the case. The question of the applicability of EU law to the Protocol and, consequently, of the CJEU’s jurisdiction, has, in fact, been the subject of intense debate from the very outset (as evidenced by numerous contributions, including A. De Leo, G. Grattarola, S. Greco). Scholarly opinion was, however, not initially homogeneous, partly because of the divergent positions taken by European institutions. On the one hand, in a 2018 working paper the Commission described as “neither possible nor desirable” the transfer of individuals to a third State, insofar as this would entail the extraterritorial application of EU law. On the other hand, in the immediate aftermath of the Protocol’s publication, the then European Commissioner for Home Affairs, Ylva Johansson, stated that the Italy-Albania Protocol could not violate EU law, as it operated “outside EU law”. If this latter view were to be accepted, the CJEU could therefore declare the request for a preliminary ruling inadmissible or, in any event, reject the arguments put forward by the Court of Appeal (on the irrelevance of EU law in the management of the Albanian centres, M. Savino).

On the other hand, as the referring judge has pointed out, the “European framework governing the requirements and procedures related to the admission and stay of foreigners on national territory” is expressly cited in the Protocol and in its ratifying law, thereby binding Italy also in the conduct of activities carried out in Albania. This is so despite the legislator’s attempt to shield itself from potential divergences from national and EU rules, by providing that the relevant EU sectoral norms apply only “as they are compatible” (in Italian: “in quanto compatibili”), a formulation that has immediately raised considerable doctrinal concerns (as noted, inter alia, also by P. Bonetti and C. Favilli in the context of their informal hearing before the Italian Chamber of Deputies in January 2024, concerning the ratification law of the Protocol).

The main source of interpretative uncertainty about applying the CEAS in the Albanian centres is the unclear wording of the Protocol and of the Italian law that approved it. Neither text explains whether EU law should apply directly in Albania, or whether Italy simply intends to mirror EU-law procedures through its own implementing legislation. The original design of the scheme seems to support this second view: before Decree-Law 37/2025, the Albanian centres were meant only for people rescued in international waters, a group to whom the CEAS does not apply directly. Still, this does not mean the Protocol sits outside the EU legal system. The picture changed once Decree-Law 37/2025 extended the use of the Albanian centres to people already present on Italian territory. As noted (E. Celoria and A. De Leo), this broader scope makes it easier to see a functional link between the procedures carried out in Albania and EU law.

Among the arguments supporting the CJEU’s jurisdiction, it is often noted that the Court ruled on the Alace and Canpelli case without declaring the reference inadmissible. As the Court recalled there, it may refuse to answer a preliminary question only when it is obvious that the interpretation requested has no connection to the facts or purpose of the main proceedings, when the issue is hypothetical, or when the Court lacks the factual or legal elements needed to provide a useful answer (para. 38). However, in Alace and Canpelli, the CJEU was asked to clarify the interpretation of the definition of a Safe Country of Origin, which derives directly from EU law and had been already interpreted in an earlier ruling on a similar matter. The preliminary reference in comment, by contrast, concerns a different issue, in which the applicability of EU law appears less evident, although it cannot be said that “it is quite obvious that the interpretation sought bears no relation to the actual facts”.

5. The Rome Court of Appeal turns to the substance of its arguments, focusing on a review of the legislation and CJEU’s case law on the conclusion of international agreements (starting from the analysis of the well-known ERTA ruling). In addition to examining the Treaty provisions on the common asylum policy (Articles 67(2) and 78 TFEU) and on the EU’s competence to conclude international agreements (Article 4(2) TEU, Articles 3(2) and 216 TFEU), the reference to Opinion 3/15 of the Grand Chamber is particularly significant.

In that Opinion, the Court of Luxembourg systematised the criteria for identifying the European Union’s exclusive external competence and, above all, for determining whether a risk exists that international commitments undertaken by a Member State with third countries might affect common Union rules or alter their scope (for an exhaustive analysis of the Opinion, see A. Arena and T. Verellen).

In Opinion 3/15, the CJEU identified three criteria for assessing the existence of such a risk: 1) the existence of Union rules governing the relevant area in whole or “to a large extent”; 2) the foreseeable future development of the EU law in the regulated fields; 3) the nature and content of the provisions of the agreement (paragraph 108 of the Opinion). Subsequently, the Rome Court of Appeal turns to an analysis of the criteria set out in the Opinion and their application to the present case.

As regards the first criterion, the Court of Appeal notes that the field in which the Protocol operates is already to a large extent governed by EU law, as demonstrated by Article 78 TFEU, which not only lays down binding minimum rules but also serves as the legal basis for a common asylum policy, further specified by the directives and regulations that compose the CEAS. Precisely in the direction of further strengthening the harmonization of the treatment of asylum seekers in the EU was a 2016 Communication from the European Commission, which demonstrates the extent and ubiquity of the Union’s intervention in the sector .

With regard to the criterion of the future development of EU law, the Court observes that the approval of the New Pact on migration and asylum will further strengthen the pervasiveness of EU rules in this sector, as illustrated by the replacement of the current directives with regulations and by the elimination of numerous optional clauses presently contained in the CEAS.

The Court’s reasoning is, however, more fully developed with regard to the third criterion of the Opinion, namely the nature and content of the provisions laid down in the Protocol. The Court observes that the Protocol can undermine the uniform and coherent application of Union rules and the proper functioning of the system they establish. This risk is illustrated, inter alia, by the legislator’s reliance on the formula “in quanto compatibili” when referring to the applicability of EU norms. The referring court then identifies several respects in which the Protocol departs from the requirements of EU law, partly already highlighted in the scholarly literature.

According to the Protocol, the deprivation of liberty of migrants held in Albania continues until their subsequent return and transfer to Italy, even in cases where detention has not been validated. This follows from the fact that migrants cannot be immediately released on Albanian territory. For the same reason, it is difficult to conceive of detention in the Albanian facilities as a genuine measure of last resort, since recourse to less coercive alternatives cannot realistically be ensured. Yet, as the Court explains, the exceptional character of administrative detention constitutes a cornerstone of numerous provisions of both EU law and the European Convention on Human Rights. This is evident, to begin with, from Article 8(2) of the Reception Directive, which subjects the detention of asylum seekers to the condition that less coercive alternatives are not applicable.

The referring judge further observes that the Protocol expands the scope of EU law and in particular of the rules on accelerated border procedures (Articles 31 and 43 of the APD), to situations not envisaged in the CEAS. These include the application of such procedures in a location outside areas commonly recognised as borders, and to third-country nationals who have already stayed within the Union and are subsequently transferred to zones treated as border areas.

Finally, the Court notes possible violations of fundamental rights with regard to the right of defence, respect for private life and health protection. While the difficulty of identifying and communicating with an Italian lawyer from Albania is evident for logistical reasons (see, inter alia, the considerations on the matter raised by C. Siccardi), violations concerning the right to health can be inferred from the Protocol itself. The text provides that, where health needs arise that the Italian authorities cannot meet, medical care will be ensured through cooperation with the Albanian authorities, who are not bound by the common standards established by European Union law.

6. The issue raised by the Rome Court of Appeal is of crucial importance. This preliminary reference gives the CJEU another opportunity to clarify the operation of the principle of conferral in the EU’s external action, in a field closely tied to human rights protection.

The ruling of the CJEU is eagerly awaited, as  a finding that the Italy-Albania Protocol is compatible with EU law would constitute the first formal endorsement in Europe of an offshore asylum-processing model, long analysed within the EU (for an overview, see F. L. Gatta) and recently defined by the President of the European Commission as an experience to learn from.

Discussions are ongoing in Brussels on the draft Regulation establishing a common system for the return of third-country nationals staying illegally in the Union. The draft allows to return third-country nationals to a third country with which agreements or arrangements exist (for more details on the proposal, see G. Mentasti). The Italian CPR in Albania appears as an early anticipation of this provision.

The new Pact is expected to enter into force in June 2026 and Italy has been recognised, in the first Commission implementing decision adopted under Article 11 of Regulation (EU) 2024/1351, as  a Member States under migratory pressure and therefore eligible to benefit from the new Annual Solidarity Pool (see Di Pascale). The Commission’s proposal was agreed by the Council on 8 December. This widespread perception of migratory pressure has underpinned the Italian Government’s decision to outsource administrative detention to Albania, where approximately 3,000 places for asylum seekers and persons awaiting removal are prepared for full use, apparently, at any cost.