"Safe Countries", the EU Commission changes its mind

It is just after midday when the eyes of the Grand Chamber of the Court of Justice of the European Union meet to seek confirmation of what was heard by the legal representative of the EU Commission. "In light of the observations submitted by the Member States and considering the questions posed by the Court, the Commission is willing to accept that Directive 2013/32 allows Member States to designate countries of origin as safe by providing for exceptions for categories of persons".

In the room there is absolute silence and amazement fills the faces of judges and lawyers: the Community institution has just argued the opposite of what was written in the observations filed only a month ago. They are signed by the same lawyers who intervene in the hearing (two out of three present). The reversal is so sensational that the president of the panel, judge MK Lenaerts, asks: "Do I understand correctly that the Commission now supports the thesis of the majority of the Member States represented here who recommend the possibility of designating a country as safe with the exception of certain categories?"

Yes. In its written opinion, however, the institution led by Ursula von der Leyen had stated that individual persecution must be distinguished from that of entire categories of people. The presence of the latter prevents a country from being considered safe, the Commission said until yesterday. The conversion on the road to Damascus is so radical that in the Chamber it claims: even a country in which half the population is at risk, for example all men or women, can enter the list of safe countries. The point is no longer the quantitative consistency of the categories for which the exception applies, but only that its members are "clearly identifiable". The representatives of the Commission, "agents", do not respond to the press. But they hide behind a "they cannot say anything" even with their lawyer colleagues who would like to understand when and why their position has changed. There have been no regulatory changes, it is legitimate to suspect that the reasons have little to do with the law. Although in these proceedings the EU institution does not represent a real party, but has an almost third party role in interpreting the rules.

Lawyers of the respective governments are instead those who intervene for the States. In a Europe increasingly shifted to the right, it is not surprising that almost everyone, in broad terms, agrees with the Italian executive. The exception is Germany, which in three out of four questions expresses opposing positions and remains the only one to say that countries with exceptions for categories of people are not safe. But now the government has changed in Berlin too.

Just how important yesterday's hearing was is shown by a detail: of the 24 booths intended for simultaneous translation into the same number of official languages ​​of the EU, 19 were active. "In all these years I have never seen anything like it," says a Court worker. Outside, the capital of Luxembourg is shrouded in fog. Inside, it is hoped that the hearing will shed some light on the issue of "safe countries" that with the Italy-Albania protocol has become central to the Meloni government's migration policies.

The Italian State Attorney's Office insists: exceptions for social groups are legitimate; accelerated procedures do not reduce guarantees; if ordinary judges identify conflicts between Italian and EU law, they should not disapply the former but refer the matter to the Constitutional Court. The government lawyer does not answer the question that the judges had asked about Bangladesh, asking to explain how it can be considered safe given that it presents so many and significant exceptions. He only says that for that State asylum is accepted in 5% of cases (but legally this is another matter).

Lawyer Dario Belluccio, who defends asylum seekers with his colleagues Stefano Greco and Sonia Angilletta, attacks the Italian government: in the designations of safe countries it uses "imaginative criteria" and has betrayed the principle of legal certainty with 20 interventions on immigration in two and a half years. He adds: "The vehement attacks suffered by judges for having disapplied domestic law in contrast with Union law are intended to call into question the primacy of EU rules in this matter".

The hot potato is now in the hands of the Court. The decision is particularly delicate, because it is caught between the increasingly clear and widespread political claim to limit the fundamental rights of asylum seekers and the guarantees codified in a political season now outdated, but which nevertheless remain in force for the time being. On April 10, the Advocate General will file his independent opinion. The ruling is expected by spring.