Alace, Canpelli e... l'insicurezza dei paesi terzi sicuri

The article offers a critical assessment of the Alace and Canpelli judgment of the Court of Justice, viewed as a continuation of the earlier CV ruling and focused on the EU notion of “safe third country” under Directive 2013/32. After outlining the complex legal and political context surrounding EU asylum procedures and migration flows, the author examines the four preliminary questions referred by the Rome Tribunal. The Court’s answers—while affirming the possibility for national judges to review the designation of safe third countries—appear to be argued in a way less persuasive than that elaborated by the Italian Court of Cassation or the Constitutional Court (whose case law shall have to be considered anyway by the lower Italian courts); as such, the ECJ reasoning risks to undermine the equality of the law and blur the line between legislative discretion and judicial review. A critical assessment is further made on the Court’s holding that a State cannot be designated as “safe” if certain categories of persons would face risks there, as this conclusion seems inconsistent with both the logic of international protection and the EU reform under Regulation (EU) 2024/1348. In this vein, the principle of consistent interpretation should have suggested a different outcome on this question, as suggested inter alia by the Advocate General in his conclusions. The article contends that Alace is a missed opportunity: the Court’s reasoning appears rushed and potentially destabilising for the future interplay between national authorities, EU institutions and courts in a highly politically sensitive area of EU law.