Introduction

Fair procedural rules and effective remedies against negative decisions play an important role in determining whether a person asking for international protection in a Member State of the EU is granted asylum or subsidiary protection. The way and the criteria to assess the situation in the country of origin are important aspects in the determination procedure. Recently, the CJEU in its Alace and Canpelli judgment clarified the criteria and the procedural rules for the determination of safe countries of origin by Member States and the legal remedies for applicants to challenge the general presumed safety in their country of origin. The judgment especially points to the fact that applicants and national courts must get full access to all sources relied upon by the authorities for the determination of safety. The judgment is a follow up of a previous ruling from 4 October 2024, where the CJEU already made important statements regarding the designation of states as safe. The judgments are crucial steps in assuring a uniform interpretation of the concept of safe country of origin in Member States and – even more important – clarifying the national procedure for the determination and strengthen the rights of applicants regarding the disclosure of information.

As the legislative acts in the new Pact on Migration and Asylum require that Member States use obligatory accelerated and border procedures for applicants who are nationals of safe countries of origin, definition, procedures for the designation of states as safe and the application of the concept will have even more weight when the new Pact is implemented in Member States from 12 June 2026.

Alace and Canpelli judgment

As previously discussed in this Review (see Cellamare, 2025), the cases were decided in accelerated procedures in Italy and the applications were qualified as being manifestly unfounded. The Italian legislation has been amended following the CJEU judgment from 4 October 2024 (Case C-406/22). This amendment allowed the determination of safe countries of origin in a law (not as before in an administrative decree). The country of origin of the applicants – Bangladesh – was listed as a safe country. The change of the legal basis had the consequence that neither the applicants nor the national had access to documents and sources used for the assessment of the situation in the country of origin by the legislature.

Safety in the country of origin, genesis and legal basis

The granting of refugee status presupposes that all elements of the definition of a refugee in Art. 1 A(2) 1951 Refugee Convention are fulfilled. These elements have a connection to the situation in the country of origin. Thus, the safety in the country of origin was already mentioned in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (first version 1979). The text however did not define the criteria as such but linked the situation in the country of origin to the credibility assessment (Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees HCR/1P/4/Eng/REV.2, para. 42). Although, UNHCR guidelines referred to the concept of safe countries of origin, they did not define the criteria either. It was however clear from the beginning that the determination requires on the one hand that the deciding authorities gain a thorough knowledge about the situation and on the other hand that applicants have the possibility to rebut conclusions, drawn from a situation that is regarded as generally safe, with reference to a personal risk of persecution.

In EU legislation the concept of safety in the country of origin was already used in the first phase of the Common European Asylum System. The 2005 Asylum Procedures Directive (Council Directive 2005/85/EC of 1 December 2005) defined the concept and the procedural rules and consequences in Arts. 30 and 31 and in Annex in II.

Criteria for the designation, procedural rules

The EU Asylum Procedures Directive in force (Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 (recast), henceforth APD (Asylum Procedures Directive)) defines the criteria for the designation of a country of origin as safe and the procedural rules for the determination by the Member States in Arts. 36 and 37 and in Annex 1. Art. 37(1) regulates that the qualification as safe has to be made on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances. Safety requires that 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. Annex 1 defines the assessment procedure and states that account has to 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

The enumeration of the criteria above reveals that a thorough and comprehensive evaluation of the situation requires the use of a variety of sources suitable to disclose all aspects of safety. Art. 37 APD mentions information from the European Union Agency for Asylum, UNHCR, the Council of Europe and other relevant international organizations. Besides also country reports, UN-documents, NGO-reports and national and international jurisprudence are important sources.

In the case at hand, the Italian Court asked the CJEU whether the determination of safe countries of origin in a legislative act and not only in a decree is in conformity with the Directive. The referring court also asked whether Arts. 36 and 37 and Art. 46(3) APD read in the light of Art. 47 CFEU, require that the state has to make the sources on which the designation of safety is based accessible to the individual applicant and also to the national court. As mentioned above, the change of the legal basis had the consequence that access to the sources used was no longer possible.

Regarding the first question the Court decided that it is possible to include the rebuttable presumption into a law (not only into a decree) as ‘legislation’ must be understood in a broad sense, including acts of a legislative, regulatory or administrative nature (Alace and Canpelli judgment para. 56). The CJEU referred to Art. 37 APD “Member States may retain or introduce legislation that allows the designation of safe countries of origin for the purposes of examining applications for international protection”. This statement about the broad interpretation of ‘legislation’ is in line with the CJEU jurisprudence about the transposition of Directives in general. According to Art. 288(3) TFEU Member States enjoy discretion as to the choice of ways and means of ensuring that a directive is implemented.

This having been said, notwithstanding the choice of Member States to transpose a Directive by a legal act, applicants must be given the possibility to challenge the safety in the country of origin in their individual situations and have to be provided with an effective remedy.

Though the Directive as such does not require that the facts are disclosed, the Court held that the access to information has to be granted to applicants and also national courts independent from the legal basis in national law. The type of legislation may not limit the national court’s competence to control.

This access had been limited by the nature of the legal act. The Opinion of the Advocate General in the Alace and Canpelli case reveals the decisive consequence that the nature of the legal act restricts the procedural rights of applicants: “in so far as the decision that third countries will no longer be designated as safe countries of origin by an administrative act, but by a legislative act, limits, by reason of the very nature of such acts, the judicial review of the lawfulness of the designation that the ordinary courts should be able to carry out, and thereby restricts the exercise of the applicant’s rights of defence.” (Opinion of Advocate General Richard de la Tour delivered on 10 April 2025, para. 34).

The right to have access to information, interpretation in the Alace and Canpelli ruling

The CJEU qualifies the designation of countries of origin as a presumption, which may be rebutted by the applicants. The presumption and the rebuttal by the applicants are contradictory in nature. Art. 36 APD requires an examination of the criteria which led to the designation of a country as safe in individual cases specifically in regard of the situation of individual applicants. In these procedures applicants have the right to bring arguments against the presumption of safety. Applicants have to submit serious grounds relating to their particular circumstances in the rebuttal.

The national court must take into account, whether the designation of the third country as a safe country of origin complies with the material conditions enumerated in Annex I of the Procedures Directive (Alace and Canpelli judgment, para. 67). In order to consider all aspects, the court must be provided with all available sources relating to the situation in the country of origin.

The Court followed the opinion of the Advocate General, that the effectivity of a remedy requires that the applicant must has to get full access to the information revealing the reasons why his or her country of origin is presumed to be safe. The applicant must have the possibility to rebut the presumption “effectively by distinguishing his or her individual situation from the general situation on which that presumption is based” (Opinion of Advocate General Richard de la Tour delivered on 10 April 2025, para. 55). Accordingly, the applicant must have access to the sources of information which constitute the basis for the designation as a safe country of origin.

The APD furthermore contains several other procedural guarantees which have to be respected by the Member State. Art. 12(1)d read together with Art. 10(3)(b) requires that applicants have access to precise and up-to-date information in general. The information comprises facts gathered about the general situation prevailing in their countries of origin.

Already in the previous judgment, where the CJEU interpreted the concept of safe country of origin, (Case C-406/22 Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky, para. 85), the Court stated that national Courts or tribunals deciding on a remedy have to be in a position to carry out “a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive [2011/95]”.

According to the CJEU effectiveness also implies that the court or tribunal may verify whether that designation complies with the conditions required by the Procedures Directive and transposed into national law. The Court concluded that the national court has to “take account of the information which it has itself gathered, provided, first, that it satisfies itself that that information is reliable and, second, that it guarantees the parties to the dispute that the adversarial principle is observed” (Alace and Canpelli judgment, paras. 86 and 88). The Court’s statement reveals that the information used by the national court has to be made available to applicants to give them equal chances in the contradictory proceedings. The power of national courts to gather information is not limited. The court may use the sources which were the basis for the safety presumption and also materials and sources gathered on its own motion.

The Advocate General made more specific statements about the disclosure of the information in his Opinion in the Alace and Canpelli case. According to his opinion “access to those sources may be given in accordance with the forms and procedures provided for in national law, for example by attaching them to the act designating third countries as safe countries of origin or to an annex thereto, or by communicating them at a later stage, at the request of the applicant or of the competent administrative or judicial authority” (para. 62). The Opinion also pointed to the importance that Member States provide for a procedure which ensures transparency in the collection and processing of information about the designation of a state as safe. The Advocate General added that there is no need here for sensitive or confidential information (para. 29).

The scheme contained in the APD enables Member States to accelerate the procedure in cases where the country of origin is qualified as safe. In these cases, it might be even more important, that States must guarantee that applicants have the right to file effective remedies.

Effective remedies in CJEU and ECtHR case law

The Alace and Canpelli ruling stresses that applicants have to be guaranteed the right to file an effective remedy and also refers to the adversarial (contradictory) principle. In the area of EU migration and asylum law the right to an effective remedy is guaranteed in many secondary legal acts. This raises interesting questions about the effectivity of remedies in the specific area in comparison to the general rule in Art. 47 CFREU.

Article 47 CFREU guarantees the right to an effective remedy and constitutes a reaffirmation of the principle of effective judicial protection. In the present ruling the CJEU held that the remedy provided for in Article 46 of Directive 2013/32 must be determined in a manner consistent with Art. 47 CFREU.

The Court concluded that the applicant and the national court have to be provided with the full information. The applicant needs the information to ascertain the reasons upon which the decision taken in relation to him or her is based. The applicant has to have full knowledge of the relevant facts. The national court has to receive the reasons from the authority concerned in order to be in a position to carry out the review of the lawfulness of the national decision in question. National courts must conduct a full and ex nunc review of the case.

The ECtHR has ruled extensively on the question whether expulsion cases and the remedies against expulsion constitute violations of Art. 13 ECHR and Art. 3 ECHR in cases where claimants stated that their deportation or expulsion to a specific state would violate Art. 3 because of a serious risk of torture, inhuman or degrading treatment in the country of origin. Regarding information, the Court held that individuals concerned must receive sufficient information about the sources which were used to presume the safety in the country of origin to be able to make use of the appropriate remedies. This information is necessary to substantiate their complaints (see for many Hirsi Jamaa and Others v. Italy [GC], 2012, § 204). The Court also decided that Art. 4 Prot. 4 ECHR requires an effective remedy (see N.D. and N.T. v. Spain [GC], 2020, § 198: Art. 4 Prot. 4 “requires the State authorities to ensure that each of the aliens concerned has a genuine and effective possibility of submitting arguments against his or her expulsion ….”. Also, in cases where other alleged violations had to be decided, the ECtHR attached special importance to access to information (Tagayeva and Others v. Russia, 2017, § 627).

Importance of the ruling for the new legislative acts comprising the CEAS and for the national implementation

From 12 June 2026 Regulation 2024/1348 of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, will be applicable. The criteria for the determination of safety and the procedural rules are only slightly amended.  Art. 42 (1)d Procedures Regulation obliges Member States to decide applications where the country of origin is considered to be a safe country in an accelerated procedure (with exceptions for minors and vulnerable persons).

Regulation 2024/1348 provides for the possibility to designate safe countries of origin at Union level. So far, the designation of safe countries of origin was done in the legislation of Member States. In April 2025 the Commission published a proposal for an amendment of Regulation (EU) 2024/1348 (COM(2025) 186 final), as regards the establishment of a list of safe countries of origin at Union level. The designation at the Union level may pose additional questions of access to the relevant information.

In general, the Procedures Regulation obliges Member States to conduct mandatory border procedures for certain categories of applicants. In other cases, border procedures may be conducted. These procedures require the persons’ stay in border facilities. The Procedures Regulation stipulates mandatory border procedures mainly for those who are likely not in need of protection including cases where applicants are nationals of states of origin with a low recognition rate (20 % or lower according to the latest available yearly Union-wide average Eurostat data). Applicants from safe countries of origin necessarily fall into this category. Furthermore, applications in the border procedure must or may be decided in an accelerated examination procedure provided for in the Procedures Regulation. The accelerated procedure is obligatory regarding applicants who are nationals of States of origin with a low recognition rate. Accelerated border procedures require effective remedies for applicants from safe states of origin in order to rebut the presumption of safety.

According to the Procedures Regulation the designation of a third country as a safe country of origin both at Union and national level may be made with exceptions for specific parts of its territory or clearly identifiable categories of persons. The CJEU decided in Case C-406/22 (Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky) that the inclusion of a rebuttable presumption about the safety in a specific state which excludes certain areas of that state is not conformity with the APD. The designation of safety with exceptions for specific parts of the territory of a country of origin in the Procedures Regulation stands in sharp contrast with the mentioned jurisprudence.

Concluding remarks: The judgment is an important step in assuring the rights of applicants in asylum procedures. Especially in cases where persons come from states which might be considered as safe for many nationals, the credibility assessment in accelerated procedures requires that the applicants have a fair chance to present the reasons why in their specific situation the presumption of safety is rebutted. Without knowledge about the materials which led to the qualification of a state as safe this might be nearly impossible. The rebuttal of the presumption is of vital consequence for those who are threatened in states, where no general pattern of persecution exists. Status determination is an individual procedure, and all applicants must have the chance to present their specific reasons for persecution.