Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 30 May 2024 (1)

Case C‑406/22

CV

v

Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky

(Request for a preliminary ruling from the Krajský soud v Brně (Regional Court, Brno, Czech Republic))

(Reference for a preliminary ruling – Common procedures for granting and withdrawing international protection – Directive 2013/32/EU – Procedure for examining an application for international protection – Application considered as manifestly unfounded – Application of a national of a safe country of origin – Concept of safe country of origin – Moldova – Article 15 of the European Convention on Human Rights (ECHR) – Derogation from obligations set out under the ECHR in time of war or other public emergency – The consequence of the use of Article 15 ECHR for the possibility to consider a third country as a safe country of origin – A third country considered to be safe only in part – Ex officio powers of the national court)

I.      Introduction

1.        The common procedural rules for granting international protection of Directive 2013/32/EU (2) allow for a specific treatment of applications submitted by persons who are, in short, nationals of a country that has been designated as a ‘safe country of origin’. That designation has important legal consequences that restrict the conditions under which such applications are considered.

2.        There is, to date, no common list of safe countries of origin at EU level. Instead, Directive 2013/32 authorises Member States to adopt such lists for national purposes. Although the concept of ‘safe country of origin’ is rather widely used by Member States (19 of them), not all Member States employ it. (3) For that matter, that concept has also attracted criticism.

3.        The list adopted by the Czech Republic includes Moldova.

4.        Seised with an action challenging that decision, the Krajský soud v Brně (Regional Court, Brno, Czech Republic), the referring court, harbours doubts as to how the concept of safe country of origin is to be understood in the light of the following circumstances.

5.        First, the classification of Moldova as a safe country of origin by the Czech Republic is (or, it would seem, was at the relevant time) subject to a territorial exception in relation to Transnistria, a region in the eastern part of the country, adjacent to the Ukrainian border. It follows from the file that that exception has been made due to the impossibility for Moldova to exercise authority within that region.

6.        Second, over the course of 2022, Moldova, which is a contracting party to the European Convention on Human Rights (‘ECHR’),(4) made use of Article 15 thereof, which allows for the derogation from obligations set out under that instrument, in time of war or other public emergency.

7.        In the light of those elements, the referring court enquires whether the fact that a country has availed itself of the provisions of Article 15 ECHR means that it can no longer be considered as a safe country of origin within the meaning of Directive 2013/32. It also wonders whether that directive prohibits Member States from designating a country as a safe country of origin only in part, subject to a territorial exception. Lastly, should it follow from the assessment of either of those questions that EU law precludes the classification of Moldova as a safe country of origin, it wishes to know whether Directive 2013/32 requires it to raise that issue ex officio.

II.    Legal framework

A.      International law

8.        Article 15 ECHR provides:

‘1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the ECHR] to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed’.

B.      European Union law

(a)    Protocol No 24 on asylum for nationals of Member States of the European Union (5)

9.        The sole article of Protocol No 24 provides:

‘Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases:

(a)      if the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 [ECHR], to take measures derogating in its territory from its obligations under [the ECHR];

…’

(b)    Directive 2013/32

10.      Article 31 of Directive 2013/32, entitled ‘Examination procedure’, provides that:

‘1.      Member States shall process applications for international protection in an examination procedure in accordance with the basic principles and guarantees of Chapter II.

2.      Member States shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.

…

8.      Member States may provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be accelerated and/or conducted at the border or in transit zones in accordance with Article 43 if:

…

(b)      the applicant is from a safe country of origin within the meaning of this Directive; …

…’

11.      Article 32 of Directive 2013/32, entitled ‘Unfounded applications’, provides that:

‘…

2.      In cases of unfounded applications in which any of the circumstances listed in Article 31(8) apply, Member States may also consider an application to be manifestly unfounded, where it is defined as such in the national legislation.’

12.      Article 36 of Directive 2013/32, entitled ‘The concept of safe country of origin’, provides that:

‘1.      A third country designated as a safe country of origin in accordance with this Directive may, after an individual examination of the application, be considered as a safe country of origin for a particular applicant only if:

(a)      he or she has the nationality of that country; or

(b)      he or she is a stateless person and was formerly habitually resident in that country,

and he or she has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection in accordance with Directive 2011/95/EU [(6)].

2.      Member States shall lay down in national legislation further rules and modalities for the application of the safe country of origin concept.’

13.      Article 37 of Directive 2013/32, entitled ‘National designation of third countries as safe countries of origin’, provides:

‘1.      Member States may retain or introduce legislation that allows, in accordance with Annex I, for the national designation of safe countries of origin for the purposes of examining applications for international protection.

2.      Member States shall regularly review the situation in third countries designated as safe countries of origin in accordance with this Article.

3.      The assessment of whether a country is a safe country of origin in accordance with this Article shall be based on a range of sources of information, including in particular information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations.

4.      Member States shall notify to the Commission the countries that are designated as safe countries of origin in accordance with this Article.’

14.      Article 46 of Directive 2013/32, entitled ‘The right to an effective remedy’, provides:

‘1.      Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:

(a) a decision taken on their application for international protection, including a decision:

(i)      considering an application to be unfounded in relation to refugee status and/or subsidiary protection status;

(ii)      considering an application to be inadmissible pursuant to Article 33(2);

iii)      taken at the border or in the transit zones of a Member State as described in Article 43(1);

(iv)      not to conduct an examination pursuant to Article 39;

(b) a refusal to reopen the examination of an application after its discontinuation pursuant to Articles 27 and 28;

(c) a decision to withdraw international protection pursuant to Article 45.

…

3.      In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for 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], at least in appeals procedures before a court or tribunal of first instance.

4.      Member States shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy pursuant to paragraph 1. The time limits shall not render such exercise impossible or excessively difficult.

Member States may also provide for an ex officio review of decisions taken pursuant to Article 43.

5.      Without prejudice to paragraph 6, Member States shall allow applicants to remain in the territory until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy.

6.      In the case of a decision:

(a)      considering an application to be manifestly unfounded in accordance with Article 32(2) or unfounded after examination in accordance with Article 31(8), except for cases where these decisions are based on the circumstances referred to in Article 31(8)(h);

…

a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon the applicant’s request or acting ex officio, if such a decision results in ending the applicant’s right to remain in the Member State and where in such cases the right to remain in the Member State pending the outcome of the remedy is not provided for in national law.

…’

15.      Annex I to Directive 2013/32, entitled ‘Designation of safe countries of origin for the purposes of Article 37(1)’, provides:

‘A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of [Directive 2011/95], 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.

In making this assessment, account shall 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 [ECHR] 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 [ECHR];

(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.’

C.      Czech law

16.      Article 2(1)(k) of zákon č. 325/1999 Sb., o azylu (Law 325/1999 on asylum; ‘the Law on Asylum’) provides that:

‘For the purposes of this Act … “safe country of origin” is defined as the state of which the alien is a citizen, or, in the case of a stateless person, the state of his or her last permanent residence,

1.      in which, generally and consistently, there is no persecution, no torture or inhuman or degrading treatment or punishment, and where there is no threat by reason of indiscriminate violence in situations of international or internal armed conflict,

2.      which neither its citizens nor stateless persons leave for the reasons cited in Article 12 or Article 14(a) [of the Law on Asylum],

3.      which has ratified and respects international treaties on human rights and fundamental freedoms, including the provisions relating to effective remedies, and

4.      which allows legal entities to monitor the situation in relation to the respect of human rights …’

17.      It follows from the order for reference that Article 2 of vyhláška č. 328/2015 Sb., kterou se provádí zákon o azylu a zákon o dočasné ochraně cizinců (Decree No 328/2015 implementing the Law on asylum and temporary protection of foreign nationals; ‘Decree No 328/2015’) provided, at the relevant time, that the Czech Republic considered Moldova to be a safe country of origin, with the exception of Transnistria. (7)

18.      Pursuant to Article 16(2) and (3) of the Law on Asylum applications for international protection shall also be rejected as manifestly unfounded if the applicant arrives from a state which the Czech Republic regards as a safe country of origin, unless the applicant proves that, in his or her case, the state in question cannot be considered to be such a country. If reasons exist for such a rejection, no assessment shall be made as to whether the applicant satisfies the criteria for being granted asylum or subsidiary protection and as to whether the applicant submits information testifying to the fact that he or she might be exposed to persecution or that he or she is under threat of serious harm.

19.      Pursuant to Article 32(2) of the Law on Asylum, the lodging of an appeal against a decision pursuant to Article 16(2) of the Law on Asylum shall not have suspensory effect. (8)

20.      However, pursuant to Article 73(2) of zákon č. 150/2002 Sb., soudní řád správní (Law No 150/2002, Code of Administrative Justice; ‘Code of Administrative Justice’), on application by the complainant, after hearing the defendant, the court shall, by order, award suspensory effect to the appeal, if the execution or other legal consequences of the decision would result in disproportionately greater harm to the complainant than that which may be caused to third persons by the granting of the suspensory effect, provided that this would not be contrary to an important public interest.

21.      Pursuant to Article 75(2) of the Code of Administrative Justice, ‘the judge examines the contested points of the decision within the limits of the pleas submitted’.

III. Facts, national proceedings and questions referred for a preliminary ruling

22.      It follows from the order for reference that in January 2022, Moldova declared a state of emergency due to the energy crisis and that on 24 February 2022, following Russia’s invasion of Ukraine, Moldova announced a state of emergency of siege and war. The order for reference also states that on 25 February 2022, Moldova notified the Council of Europe that it was invoking Article 15 ECHR.

23.      On 9 February 2022, CV applied for international protection in the Czech Republic. In his application, he claimed to have witnessed an incident in the course of which the driver of a vehicle mounted the pavement and killed a pedestrian. The driver of the vehicle fled the scene. That night, some people unknown to CV arrived at his home, took him into the forest and assaulted him. CV escaped and went into hiding. Two days later, upon returning to his home, he found that it had been burnt down. Soon thereafter, he fled from Moldova to the Czech Republic, using a false Romanian passport to gain entry. CV also submitted that the Moldovan police claim to have never identified the perpetrators of the alleged incident and that he is afraid to return to Moldova because he fears harm both from his attackers, and because of the Russian invasion of Ukraine.

24.      It follows from the order for reference that, in 2016 and again, in 2019, prior to submitting his application for international protection, CV returned to Moldova and, in an attempt to remain discreet, only informed his cousins of his visits. CV admitted to having been subject to administrative expulsion in 2016 for a period of two years, which was ordered because he had been employed on the basis of a false Romanian passport. Moreover, in 2020, he received a departure order, which was reissued on 23 January 2022. He explained that he had not applied for international protection earlier because he did not understand the mechanism.

25.      On 8 March 2022, the Ministry rejected his application for international protection as manifestly unfounded under Article 16(2) of the Law on Asylum. The Ministry based that decision on information relating to the political and security situation in Moldova (which, according to the order for reference, the Ministry obtained from two documents dating from mid-2021 (9) and from its own report from January 2022) and on the fact that, under Decree No 328/2015, the Czech Republic considered Moldova, with the exception of Transnistria, to be a safe country of origin. (10)

26.      It also follows from the order for reference that the Ministry found that an applicant for international protection from a safe country of origin is required to discharge a higher burden of proof and show that, in his or her individual circumstances, that country is not safe. The Ministry found that CV had failed to discharge such burden of proof and for that reason did not consider whether he is entitled to asylum or international protection. More specifically, the Ministry considered that CV failed to discharge the requisite burden of proof for several reasons.

27.      First, at the time when the rejection decision was adopted, there was no indication that the conflict in Ukraine would extend into Moldova. Second, the Ministry acknowledged that, while there are fundamental flaws concerning the respect for the rule of law in Moldova, especially as regards the judiciary, and while opponents of the political regime, their lawyers and activists may be at risk of persecution within the meaning of Article 9 of Directive 2011/95, the applicant did not claim to belong to any of those groups. Third, the Ministry stated that the applicant could have sought protection from the Moldovan authorities but he had not tried to do so. Fourth, the Ministry stated that, on examination of the facts as a whole, the only reason CV applied for international protection was to legalise his stay in the Czech Republic.

28.      CV brought an action before the Krajský soud v Brně (Regional Court, Brno).

29.      On 9 May 2022, at CV’s request, the referring court suspended the operation of the Ministry’s decision on the basis of CV’s argument that should he be returned to Moldova, he would be exposed to the risk of serious harm from his attackers. The referring court also took into consideration the fact that on 8 May 2022, the separatist army of Transnistria began preparations for conflict. Further, that court considered the fact that on 28 April 2022, Moldova notified the Council of Europe that, due to the war in Ukraine, it was prolonging both the derogation from its obligations under the ECHR by virtue of Article 15 ECHR and the state of emergency, until 23 June 2022.

30.      In those circumstances, taking the view that the success of CV’s case depends on the interpretation of the concept of ‘safe country of origin’ within the meaning of Directive 2013/32, the Krajský soud v Brně (Regional Court, Brno) stayed the proceedings before it and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Should the criterion for the designation of safe countries of origin for the purposes of Article 37(1) [of Directive 2013/32] in Annex I(b) to [that directive] – i.e., that the country concerned provides protection against persecution and ill treatment through observance of the rights and freedoms laid down in the [ECHR], in particular the rights from which derogation cannot be made under Article 15(2) of [the ECHR] – be interpreted as meaning that, if the country withdraws from its commitments under the [ECHR] in time of emergency under Article 15 [ECHR], it no longer meets the criterion for being designated as a safe country of origin?

(2)      Should Articles 36 and 37 [of Directive 2013/32] be interpreted as meaning that they prevent a Member State from designating a country as a safe country of origin only in part, with certain territorial exceptions, to which the assumption that that part of the country is safe for the applicant will not apply, and if the Member State does designate a country with such territorial exceptions as safe, then the country concerned as a whole cannot be deemed a safe country of origin for the purpose of the Directive?

(3)      If the reply to either of these two questions referred is affirmative, should Article 46(3) [of Directive 2013/32], in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that a court deciding about an appeal challenging the decision on the manifestly unfounded nature of the application, pursuant to Article 32(2) [of Directive 2013/32], issued in proceedings conducted pursuant to Article 31(8)(b) [of that directive], must take into account ex officio that the designation of the country as safe is contrary to EU law, due to the reasons stated above, without requiring an objection on the part of the applicant?’

31.      The Czech, German and Netherlands Governments, and the European Commission, submitted written observations. The Czech and Netherlands Governments and the Commission presented oral argument and replied to questions put by the Court at the hearing on 6 June 2023.

IV.    Analysis

32.      In order to address the questions referred, I will first explain that certain developments that appear to have occurred since the submission of the present order for reference do not exclude the relevance of the Court’s reply for the resolution of the case pending before the referring court (A). I will then make preliminary comments on the concept of safe country of origin (B). In response to the first question, I will explain that the sole fact that a country has invoked Article 15 ECHR does not preclude its classification as a safe country of origin within the meaning of Directive 2013/32 (C). In response to the second question, I will outline the reasons that lead me to conclude that Directive 2013/32 only allows Member States to designate a country as a safe country of origin on the basis of its entire territory (D). Finally, I will turn to the third question referred and suggest that Directive 2013/32 requires the national court to raise, of its own motion, the incompatibility of the designation of a country as a safe country of origin with Directive 2013/32 (E).

A.      Is there still a need to reply to the questions referred?

33.      On the one hand, I note that the first question inquires about the consequences to be drawn from the decision of a third country to invoke Article 15 ECHR for the possibility of a Member State to continue to designate that country as a safe country of origin within the meaning of Directive 2013/32. While I will turn to the details of the regime associated with Article 15 ECHR below, it appears that on 11 April 2024, Moldova notified to the Council of Europe that that regime had been terminated as of 31 December 2023. (11)

34.      On the other hand, the second question concerns the possibility for a Member State to designate a third country as a safe country of origin subject to a territorial exception. In that respect, I have already noted that the territorial exception at issue in the main proceedings appears to have been removed with effect of 1 October 2023. (12) As of that date, Moldova appears to be considered by the Czech Republic as a safe country of origin in its entirety.

35.      Finally, the third question is linked to, and its relevance depends on, the replies to be provided to the first and second questions.

36.      It follows in essence from the order for reference that, should the Court determine that the invocation of Article 15 ECHR or the existence of the territorial exception at issue prevent the designation of Moldova as a safe country of origin, this means that CV’s application should not have been dealt with under the specific examination scheme associated with the concept of safe country of origin.

37.      That explanation was, naturally, provided in the light of the legal situation existing when the order for reference was made. Given the developments above, I am not sure what the exact consequences of the determination of the issues raised by the first and second questions would be for the case in the main proceedings, should the Court reply to one or both of these questions in the sense indicated above.

38.      However, I am of the view that that observation does not make the Court’s reply to the questions referred manifestly  irrelevant. (13) Indeed, should the Court effectively reach one of the conclusions above, I understand that that may have procedural implications on the way in which CV’s application is to be treated once the proceedings before the referring court are resumed. Moreover, the developments briefly described above are still for the referring court to ascertain.

39.      I will thus proceed with the premiss that the Court’s reply to the questions referred remains relevant for the resolution of the dispute in the main proceedings.

B.      The concept of safe country of origin within the meaning of Directive 2013/32

40.      The concept of ‘safe country of origin’ forms part of a broader category of related concepts, such as ‘first country of asylum’, ‘safe third country’ and ‘European safe third country’, that the Member States are allowed to use in asylum procedures under Directive 2013/32, in essence, to make the process more efficient. All of them introduce some form of derogation from the main rules that otherwise govern the examination of international protection applications but their legal consequences differ. (14)

41.      Since their emergence in the 1990s (and their subsequent rapid spread across national legal systems (15)), they have been subject to criticism on the basis that they may lead to the curtailment of the international protection applicants’ right to an adequate examination of their situation. At the same time, when coupled with the appropriate safeguards, they have been also acknowledged as being tools that can improve the expediency with which the (growing number of) applications for international protection are processed, by allowing the State to concentrate its resources on the examination of applications from countries, considered more likely to be the origin of asylum seekers with founded claims. (16)

42.      The present case is concerned with the examination regime associated with the concept of safe country of origin, which is governed by Articles 36, 37 and Annex I of Directive 2013/32 and which, contrary to the other concepts above, does not free the competent authorities from the obligation to examine the merits of the application for international protection.

43.      The basic features of the concept and the legal consequences that it triggers are as follows.

44.      First, it follows from the common definition of the concept at issue that a third country may be designated as a safe country of origin when, ‘on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of [Directive 2011/95], 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’. (17)

45.      Second, Article 37 of Directive 2013/32 authorises Member States to designate third countries as safe countries of origin, which is usually done by means of national lists established for that purpose. (18) That directive thus did not reproduce the idea of a common list that featured in Directive 2005/85 (19) (the legal predecessor of the current directive), which, however, was not brought to fruition under that directive and, for that matter, the Court annulled the relevant part thereof on institutional grounds. (20)

46.      That said, third, when Member States decide to use the concept of safe country of origin, they have to respect its common definition, recalled in point 44 above. That requires verifying the absence of either of the risks described therein, by the consideration of several factors, listed in a non-exhaustive manner in Annex I to Directive 2013/32, which include ‘(a) the relevant laws and regulations […] and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the [ECHR] 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) [ECHR]; (c) respect for the non-refoulement principle in accordance with the Geneva Convention^[(21)^]; [and] (d) provision for a system of effective remedies against violations of those rights and freedoms’.

47.      Furthermore, the Member States also have to comply with certain procedural obligations, in particular an obligation to notify the Commission of national designations and an obligation to review the situation regularly, ‘based on a range of sources of information, including in particular information from other Member States, [EUAA (22)], UNHCR, the Council of Europe and other relevant international organisations’. (23)

48.      Last but not least, the designation of a country as a safe country of origin has significant implications for the applicants from those countries.

49.      First, as the Court has explained, it triggers ‘a special examination scheme’ which is ‘based on a presumption of adequate protection in the country of origin, which can be rebutted by the applicant where he submits overriding reasons relating to his particular situation’. (24)

50.      Second, Article 31(8)(b) of Directive 2013/32 authorises the Member States to examine applications lodged by applicants from safe countries of origin in an accelerated procedure (the ‘reasonable’ length of which is to be set by them), (25) or at the border or in a transit zone.

51.      Third, where the application of an individual from a safe country of origin is considered as unfounded, Article 32(2) of Directive 2013/32 allows Member States to also consider it, moreover, to be ‘manifestly unfounded’, (26) where this has been provided for under the national legislation.

52.      In accordance with what was observed, in essence, by the Netherlands Government and by the Commission, the consequence of that additional qualification is, inter alia, that the applicant may not be allowed to remain on the national territory pending the outcome of his or her appeal against the rejection decision (in contrast to the main rule that applies in the case of a ‘simple’ rejection) unless that appeal is granted suspensory effect by the national court. (27)

53.      By contrast, the fact that the applicant comes from a safe country of origin does not allow national authorities to reject the application of an individual from a safe country of origin without an individual examination of the applicant’s international protection needs. The contrary finding would be incompatible with Directive 2013/32, Article 31(8) of which subjects the accelerated procedure (including as regards applicants from safe countries of origin) to the ‘basic principles and guarantees’ defined generally in Chapter II of the same directive. Those safeguards include the obligation for the Member State to ensure that applications are examined, and that decisions are taken, individually, as provided under Article 10(3)(a) and recalled, in the context of the ‘special examination scheme’ at issue here, in Article 36(1) of Directive 2013/32.(28)

54.      With those introductory remarks, I will now examine the first question referred.

C.      Does invoking Article 15 ECHR preclude a third country from maintaining its designation as a ‘safe country of origin’?

55.      To recall, by the first question posed, the referring court enquires whether the invocation of Article 15 ECHR by a given third country prevents it from maintaining its status as a safe country of origin.

56.      Before assessing that issue fully, I will comment on the legal regime associated with Article 15 ECHR (1). On that basis, I will explain the reasons that lead me to consider, in agreement with the positions of all the intervening parties, that invoking Article 15 ECHR  does not itself prevent a country from being considered as a safe country of origin within the meaning of Directive 2013/32, as long as the conditions for that designation, set out under Annex I to that directive, continue to be fulfilled (2). I will also explain that my conclusion is not affected by Protocol No 24, to which the referring court drew attention and the implications of which were discussed, in particular, during the hearing (3).

1.      What does it mean for a country to invoke Article 15 ECHR?

57.      Article 15(1) ECHR allows a Contracting Party to derogate from its obligations under the ECHR ‘in time of war or other public emergency threatening the life of the nation’. The European Court of Human Rights (‘ECtHR’) has explained that that concept refers to an ‘exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed’, (29) the relevant emergency having to be ‘actual or imminent’. (30)

58.      The measures adopted to overcome such an exceptional situation may, however, be taken only ‘to the extent strictly required by the exigencies of the situation, provided that [they] are not inconsistent with … other obligations under international law’. (31) Moreover, in accordance with Article 15(2) (read in the light of subsequent protocols to the ECHR (32)), such measures cannot, under any circumstances, affect rights which are considered to be non-derogable: the right to life, the prohibition of torture and inhuman or degrading treatment or punishment, the prohibition of slavery and servitude, the prohibition of punishment without law, the abolition of the death penalty and the right not to be tried or punished twice.

59.      Subject to those important limits, the ECtHR has repeatedly held that the Contracting Parties to the ECHR enjoy a broad margin of appreciation when it comes to determining whether ‘a public emergency threaten[s] the life of the nation’, within the meaning of Article 15 ECHR, as well as when it comes to defining the adequate response. (33)

60.      The exercise of that margin nevertheless remains subject to the supervision of the ECtHR. On the one hand, the ECtHR has already found that certain situations do not meet the threshold that allows the regime of Article 15 ECHR to be triggered.(34) On the other hand, the question of whether the adopted measures are, in short, proportionate to the emergency invoked, is examined, in particular, with regard to the nature of the rights affected and the circumstances having led to the emergency situation, and in the light of its duration. (35) The ECtHR has also emphasised that invocation of Article 15 ‘does not give the State authorities carte blanche to engage in conduct that may lead to arbitrary consequences for individuals’ (36) and has insisted on the existence of adequate safeguards against abuse, (37) as the referring court observes.

61.      Moreover, it follows from the ECtHR’s case-law that the fact that a country has invoked Article 15 ECHR will not necessarily alter that court’s assessment of an alleged violation of the ECHR. Indeed, I understand that when considering the case before it, the ECtHR will generally assess whether the alleged violation is justified under the ordinary regime first. Only where this is not the case will the ECtHR carry out the specific and more permissive proportionality test alluded to above. (38) This is because invoking Article 15 does not equate to a denunciation of the ECHR (as the referring court observes) and the given Contracting Party remains bound by it, even though the regime of Article 15 ECHR provides it with a greater margin of appreciation when adopting restrictive measures.

62.      In other words, I understand that the invocation of Article 15 ECHR does not imply that the Contracting Party in question automatically engages in conduct that violates the rights and freedoms guaranteed by the ECHR. Rather, submitting a notice in that context seems to have the purpose of informing the other contracting parties that it may not be able to safeguard those rights and freedoms in the light of the exceptional situation that that party faces. (39) The assessment of whether this has, in fact, been the case, and which rights and freedom have been specifically concerned, depends on the content of such notice and on the measures actually adopted.

63.      Historically, ‘Article 15 notices’ have been submitted in various situations. To give some recent examples, 10 Contracting Parties (including three Member States – Estonia, Latvia and Romania, but also Moldova) gave notification of derogations under that provision in the context of the COVID-19 pandemic (40) and between the beginning of 2020 and the end of 2023, seven new notices were submitted on other grounds, such as natural disasters, energy crises and war. (41) Moldova’s use of Article 15 ECHR, at issue in the main proceedings, seems to be part of that latest development. (42)

64.      With that background in mind, I will now examine the issue of how the decision of a third country to make use of Article 15 ECHR affects the possibility for a Member State to continue to designate it as a safe country of origin, within the meaning of Directive 2013/32.

2.      Invocation of Article 15 ECHR and the concept of safe country of origin within the meaning of Directive 2013/32

65.      I recall that for any country to be considered a safe country of origin, there must be ‘generally and consistently no persecution as defined in Article 9 of [Directive 2011/95], 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’, (43) as already observed. That requirement applies both to countries which are Contracting Parties to the ECHR and to those which are not.

66.      It follows from Annex I to Directive 2013/32 that the Member States must assess whether that requirement is satisfied in the light of a non-exhaustive list of legal means through which protection against the above risks is ensured, to which I referred in point 46 above and which includes observance of the rights and freedoms laid down in the ECHR, in particular of the non-derogable rights.

67.      Indeed, it follows from the explanation in the previous section that those non-derogable rights, as they are defined by the ECHR, must be respected ‘even in the most challenging circumstances’, (44) that including circumstances that made the recourse to Article 15 ECHR necessary. However, it does not follow that the measures taken on the basis of Article 15 ECHR, which affect other rights safeguarded by the ECHR, cannot amount to a situation incompatible with the common definition of a safe country of origin provided in Annex I to Directive 2013/32. Whether, however, this is the case can hardly be stated in the abstract, on the sole basis of Article 15 ECHR being invoked, as the Czech Republic and Commission in essence argue.

68.      As I explained earlier, the invocation of that provision does not equate to a concession that the rights safeguarded by the ECHR (those which can be derogated from) will, in fact, be affected. (45) Rather, the determination of that fact will necessarily depend on each individual case and, in particular, on the effective situation prevailing in the given third country. As the Czech Republic emphasised during the hearing, the decision to invoke Article 15 ECHR results from the assessment by the invoking country as to whether the given situation makes, or could make, that step necessary. Indeed, some countries may invoke Article 15 ECHR as a matter of precaution, while others will take the view that the same situation should not bring about any departure from the ordinary regime of the ECHR. (46)

69.      In that regard, I note that the order for reference does not express concerns about any particular measure announced or adopted by Moldova. That said, it mentions, first, the fact that on 25 February 2022, Moldova submitted a notice in which it outlined the necessity to derogate from the application of certain provisions of the ECHR and its Protocols, including Article 10 ECHR (which provides for freedom of expression). I observe that that notice refers to ‘a state of emergency’ in response to the energy crisis and outlines the possible adoption of the measures that entail the ‘rationalisation of natural gas consumption … coordinating the work of the media … [or] establishing rapid instruments for collecting payments from consumers for used natural gas’. (47)

70.      Second, the referring court refers to a notice of 3 March 2022 in which Moldova describes a ‘state of emergency, siege and war’. (48) As that can be established from the publicly available information, that notice and its subsequent prolongations reproduce a list of measures which are comparatively much broader than those of the earlier notice. That list appears to concern various facets of the lives of the individuals finding themselves on the national territory and includes, among other possible measures, ‘expelling from the territory … people whose presence may affect the ensuring of the public order and security’ or ‘taking the necessary measures for the management of the migration flows’. (49)

71.      Moreover, without detailing which of the ECHR rights may be affected (in contrast to the earlier notice from 25 February 2022, referred to above), the necessity of the measures is explained by reference to ‘major national security threats in the immediate vicinity of the land border between Moldova and Ukraine, as a result of the beginning of massive military actions on the territory of Ukraine on 24 February 2022’ (50) or – later – ‘as a result of the continuing war on the territory of Ukraine’. (51)

72.      To give another example, the notice submitted by Moldova in the context of the COVID-19 pandemic, which I briefly mentioned in point 63 above, outlines the adoption of a special regime of entry into, movement within and exit from the country, ‘suspending the activity of educational establishments, introducing the quarantine regime, prohibiting meetings, public demonstrations and other mass gatherings’ and announces the necessity to derogate ‘from …, in particular, Article 11 [ECHR], Article 2 of the First Protocol and Article 2 of the Protocol No 4’. (52)

73.      The diversity of the measures invoked in those examples show the difficulty in concluding that every notice submitted pursuant to Article 15 ECHR automatically excludes a third State from satisfying the conditions set out in Annex I to Directive 2013/32. At the same time, those examples also demonstrate that the nature of certain measures envisaged, or their broad scope, must result in a particular vigilance.

74.      Indeed, my observation that the invocation of Article 15 ECHR does not as such, and in the abstract, affect the designation of safe country of origin, does not mean that that invocation is irrelevant. Similarly to what was, essentially, argued by all the parties at the hearing, I am of the view that the invocation of Article 15 ECHR is a factor that must be taken into account within the regular assessment of the situation that the Member States (which use the concept of safe country of origin) must conduct, as I have already explained. (53) In that context, the Member States must, in my view, consider the scope of the measures as they were defined in the notice submitted under Article 15 ECHR, and as they have been implemented in practice.

75.      That said, it remains to be examined whether that position is affected by the consideration of Protocol No 24 to which the referring court drew particular attention in the context of its first question.

3.      Consideration of Protocol No 24

76.      In Protocol No 24, the Member States declare to mutually consider each other as safe countries of origin and agree ‘accordingly’ that an ‘application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only’ in one of the four situations listed therein, among which is the invocation of Article 15 ECHR. (54)

77.      The referring court understands that rule to mean that when Article 15 ECHR is invoked, the invoking Member State can no longer be considered as a safe country of origin by other Member States. In that court’s view, the same consequence must follow a fortiori when Article 15 ECHR is invoked by a third country (here, Moldova).

78.      I am of the view that the referring court’s conclusion relies on a false premiss.

79.      Indeed, as argued (in essence) by the Commission, I consider that the meaning of the concept of ‘safe country of origin’ which features in Protocol No 24 is simply different from that which is governed by Directive 2013/32.

80.      Indeed, contrary to what follows from that protocol as regards intra-EU applications for international protection, the designation of a third country as a safe country of origin within the meaning of Directive 2013/32 can never, on its own, prevent the examination of an application. As already briefly noted in the previous part of this Opinion, an application lodged by an individual from such a country must always be examined (unless, in my view, it is considered inadmissible on the basis of one of the exhaustive grounds set out in Directive 2013/32). (55)

81.      I note that Protocol No 24 constitutes an updated version of the Protocol on asylum for nationals of Member States of the European Union, which was annexed to the Treaty of Amsterdam (‘the initial protocol’)(56) and predated not only the current Directive 2013/32 but also the previous one (Directive 2005/85), by which the concept of safe country of origin entered the realm of EU secondary law.

82.      An examination of the recitals of both protocols (whose content is essentially the same) indicates that what the Member States had in mind when adopting (and subsequently maintaining) the respective text was to exclude the admissibility of intra-EU applications for international protection as a specific expression of mutual trust. (57) That point was argued by the Czech Government at the hearing.

83.      Those recitals refer, in particular, to the obligation for the Member States to respect the values enshrined in Article 2 TEU, (58) to the ‘special status and protection’ that ‘each national of a Member State, as a citizen of the Union’, enjoys (59) and to the objective of preventing ‘the institution of asylum being resorted to for purposes alien to those for which it is intended’. (60)

84.      Those elements, thus, lead me to understand the protocol as constituting an agreement of the Member States relating, on the one hand, to the main rule consisting in the impossibility to consider intra-EU applications for international protection and, on the other hand, to the (limited) exceptions to that rule (such as the invocation of Article 15 ECHR). By contrast, they do not appear relevant to the conditions in which a third country can be regarded as a safe country of origin for the purposes of Directive 2013/32. (61)

85.      For those reasons, and in agreement with all the interveners in the present proceedings, I am of the view that Protocol No 24 has no impact on my previous conclusion in point 74 above, in relation to the consequences of a third state invoking Article 15 ECHR for its ability to continue to be considered as a safe country of origin. My general conclusion on the first question is therefore that the sole fact that a third country, designated as a safe country of origin, has invoked Article 15 ECHR does not automatically prevent its continued designation within the meaning of Article 37(1) of Directive 2013/32, in combination with Annex I to that directive. However, such an invocation must be taken into account by the competent authorities for the purposes of deciding whether the designation as a safe country of origin can be maintained, in the light of, in particular, the scope of the measures derogating from the obligations under the ECHR as defined in the notice submitted under Article 15 ECHR and its implementation in practice.

D.      Territorial exception to the designation as safe country of origin

86.      By its second question, the referring court enquires, in essence, whether Articles 36 and 37 of Directive 2013/32 prevent a Member State from designating a third country as a safe country of origin subject to a territorial exception and whether, when the situation prevailing within a part of a third country makes such an exception to that designation necessary, that means that the given third country cannot be considered as a safe country of origin for the purposes of directive in question.

87.      To recall, that issue is being raised because, when the rejection decision was adopted, the Czech Republic had designated Moldova as a safe country of origin, with the exception of Transnistria. (62)

88.      Contrary to the first question referred, on which the positions of the intervening parties converged, their positions on the second question diverge significantly. While the Czech and the Netherlands Governments are of the view that Directive 2013/32 does not preclude the designation as a safe country of origin to be made subject to a territorial exception, the German Government takes the opposite view. The Commission essentially shares the position of the German Government. However, it considers that the territorial exception at issue in the main proceedings remains possible because Moldova is unable to effectively exercise its authority within Transnistria.

89.      Against that background, I will explain that the consideration of the text of the relevant provisions of Directive 2013/32 (1), of their legislative context (2) as well as of the legislative intent that Directive 2013/32 pursues (3) means that designation as a safe country of origin can be made only on a full territorial basis. I will also explain that that conclusion is equally valid when a territorial exception has been made due to the fact that the third state in question cannot exercise authority within a part of its territory (4).

1.      Text

90.      I recall that Annex I to Directive 2013/32 provides that ‘[a] country is considered as safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of [Directive 2011/95], 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.’

91.      I find two elements of that definition to be particularly indicative. It is, first, the requirement of the safety of the country to be established in general (‘generally’) (a) and second, the fact that the legislature chose to define the concept at issue by reference to a country, and to a country only (b). I will develop these two points in turn.

(a)    The requirement of the safety to be established in general

92.      I note that the definition of the concept at issue refers to a country where generally (and consistently) none of the risks specified therein is present.

93.      The use of the adverb ‘generally’ in the context of a legislative act that, in the Union legal order, fleshes out the right to asylum in my view indicates that that condition has to be met within the country considered in its full territorial extent and not only in a part thereof (including in a major part thereof).

94.      At the outset, I wish to refute the argument that where the relevant risks are limited to a part of the national territory, that does not preclude considering the country at issue as generally safe because the members of the affected population may be able to seek refuge within the safe part of the country.

95.      Indeed, whether a refuge may be effectively found within another part of the country has to be determined in the context of the examination of the merits, by means of the concept of ‘internal protection’ governed by Article 8 of Directive 2011/95, (63) as the Commission correctly explained at the hearing. That examination has to be individual and its result will always depend on the circumstances of the particular applicant. Accordingly, the possibility that an ‘internal protection alternative’ might exist cannot inform a different decision on whether, in general, safety can be presumed to exist within the given country, which is the only circumstance that can justify the application of the legal consequences associated with the concept of safe country of origin as briefly described in points 48 to 52 above. (64)

96.      It follows from those consequences that the concept of safe country of origin is, above all, a tool of procedural efficacy allowing to channel all the applications submitted by applicants from the given third country through an accelerated procedure, based on the presumption of safety prevailing in the applicants’ country of origin.

97.      Although that way of proceeding may be justified in respect of countries where no doubts as to the general situation exist, as the referring court in essence observes, and provided appropriate safeguards exist, (65) it is in my view by contrast precluded when the general situation prevailing in a part of a given third country leads to the contrary view, even if the lack of safety is confined to a specific region.

98.      Indeed, adopting an opposite position would mean that the expedited method of examination at issue can still apply to all applications submitted by applicants from such a country despite the fact that a part of its population is exposed, as matter of course, to the relevant risks, which would in turn bring about an increased risk of infringement of the right to asylum and, by the same token, of the principle of non-refoulement both of which are, in the EU legal order, safeguarded as fundamental rights enshrined in Articles 18 and 19(2) of the Charter. (66)

99.      It is true that the Czech Government explained at the hearing that the territorial exception at issue in the main proceedings was introduced precisely to address that issue and to provide therefore the applicants from Transnistria with enhanced protection.

100. I note that although that approach indeed addresses the situation of the population living in the affected area, it cannot obviate the fact that it results in the concept of safe country of origin being applied to a (major) part of the population despite the conclusion that the third country in question cannot be considered as safe in its full territorial extent (without which the territorial exception would not have been deemed necessary at the first place).

101. I consider that result problematic because I am not sure whether certainty can be always easily obtained (and maintained) as to where exactly lies the internal ‘border’ between safe and unsafe parts of the third country at issue, given, moreover, that due to the precarious situation in the given region, that line may be by definition unstable. I observe that the UNHCR also repeatedly expressed the view that the concept of safe country of origin should be applied only to countries considered in full. (67)

102. Independently of that consideration, the choice consisting in splitting a country in two parts so as to maintain the expedited examination regime for a part of the applicants from the given third country means that the concept of safe country of origin is understood in a different way from the one in which the term ‘country’ is understood both in everyday language and, for what is relevant here, in the specific context of asylum. I will explain below that in the absence of any indication to the contrary, the definition given by the EU legislature of the concept at issue refers to that meaning and to that meaning only.

(b)    The choice to define the concept at issue by reference to a country, and to a country only

103. As I have already observed, Directive 2013/32 forms part of the Common European Asylum System (‘CEAS’) whose different components flesh out the right of asylum. Those CEAS components integrate considerations related to risks to which the applicants for international protection may be exposed and which are typically assessed by reference to situations prevailing in their countries of origin, not by reference to territorial areas defined differently. That approach is reflected in various concepts which the CEAS is based on, starting with the definition of refugee (68)or the core principle of non-refoulement. (69)

104. There is, in fact, nothing surprising because, within the international legal order, the primary responsibility to protect the population falls on the States. Given that the States are, thus, the primary guarantors of safety, it is only natural that a legislative act setting out a specific procedural tool to examine whether a right for international protection exists (such as the concept of safe country of origin at issue here) uses that precise reference of safety.

105. Without prejudice to my observation above as to the difficulties that may arise from the decision to differentiate the treatment of the population of a given third country in the context of asylum, the centrality of the concept of country within the field of asylum in my view means that when the decision is taken by the legislature to derogate from that main reference, that requires at any rate an explicit confirmation and, moreover, explanation as to what exactly such a derogation implies.

106.  That is well demonstrated by the concept of internal protection alternative referred to above in point 95 and in the present context, the significance of that observation manifests itself even better in the light of the respective provisions of Directive 2005/85, the predecessor of Directive 2013/32, as also the German Government in essence suggests.

107. I recall that Annex II to Directive 2005/85 defined the concept of safe country of origin in the same way as does today Annex I to Directive 2013/32. In contrast to that directive, however, Directive 2005/85 provided, moreover, for two distinct categories of partial designations.

108. First, Article 30(1) of Directive 2005/85 made it clear that the Member States could proceed to designation of part of a country as safe where the applicable conditions were fulfilled only in relation to that part. That option implied the use of the common designation conditions set out in Annex II to Directive 2005/85 (which again were the same as those currently applicable under Annex I of Directive 2013/32). (70) Second, Article 30(3) contained a standstill clause that confirmed the possibility for Member States to retain pre-existing national legislation allowing to designate part of a country as safe, or to designate a country or part of a country as safe for a specified group of persons. (71) That option implied the use of the designation conditions that could differ from the ones set out in Annex II of Directive 2005/85.

109. While that shows that in the past the EU legislature approached the concept of safe country of origin beyond the usual meaning that one normally attaches to the term ‘country’, it also demonstrates that departure from such an obvious and common meaning necessitates an explicit statement and a simultaneous clarification as to what its exact scope is: whether the concept of safe country of origin can refer also to a part of the national territory, or to a part of the population living on the entire national territory, or even to a part of the population living on a part of the national territory, which all were the options given under Directive 2005/85 as just described.

110. No element of this rather complex regime has been maintained in Directive 2013/32. While I will turn to the implications of its removal in more detail later, I note that in contrast to the previous situation, nothing in the text of Directive 2013/32 indicates that the legislature wished to depart from the everyday meaning of the term ‘country’, in which that term is also commonly understood in the specific context of asylum. In that light, I am of the view that the concept of safe country of origin cannot be understood as referring to anything less or more than a country, be it to a zone within a country or a region composed of several countries.

111. Below, I will explain that that conclusion is further supported by the examination of the specific legal regime that the concept of safe country of origin triggers, when compared against the broader context of the common procedural standards laid down in Directive 2013/32.

2.      Context

112. As explained in the previous part of this Opinion, the applications for international protection submitted by applicants from safe countries of origin must be examined on their merits. However, when considered against the broader scheme of the common procedural standards set out in Directive 2013/32, the rules that govern that examination differ in three important ways.

113. To recall, first, the concept of safe country of origin may trigger the use of the accelerated procedure which is, by definition, conducted within shorter timelines compared to those that apply under the main rule, within the ordinary procedure. Although that certainly has the advantage of a quicker determination of the applicants’ legal situation, it also entails the inconvenience of leaving those applicants with less time to argue their case^, compared to the ‘ordinary’ international protection applicants. (72)

114. Second, when the examination of an application for international protection results in its rejection, the ‘ordinary’ applicants have the right to remain on the national territory pending the result of their appeal, when such an appeal is lodged. By contrast, the Member States may decide not to automatically grant that right to applicants from safe countries of origin, and such a right may only result from the suspensive effects being granted to the appeal. (73)

115. Third, so as to escape both of the inconveniences described above, the applicants from the safe country of origin have to prevent the concept at issue being used in their case in the first place, by rebutting the presumption of safety of their country of origin and by showing that that country cannot be considered as safe in their particular circumstances. (74) By contrast, such presumption does not affect the examination procedure that concerns the ‘ordinary’ applicants.

116. The three elements described above thus constitute a significant departure from the ordinary rules that govern the examination of applications for international protection and place the applicants from such countries at a disadvantageous legal position, compared to the one that results from the general rules that apply to the ordinary applicants. Indeed, when an applicant comes from a safe country of origin, not only is the procedure that governs the examination of his or her application faster, but that applicant is also affected significantly in the way he or she can claim the right to asylum. Although I agree with the Commission that the concept at issue does not affect the obligation to examine the international protection needs of the applicant, as I have already observed, the fact remains that that individual examination involves the necessity for the applicant to rebut the presumption of safety, as that follows from the second subparagraph of Article 36(1) of Directive 2013/32.

117. For those reasons, the concept that triggers the application of the above significant derogations must be narrowly construed and cannot extend beyond the situations for which it has been designed by the EU legislature. That in my view precludes its extension to third countries where the compliance with the applicable conditions has not been established to exist in the whole of their territory.

118. That finding is finally supported by the legislative intent that has led to the adoption of the current Directive 2013/32 and to which I will now turn.

3.      The legislative intent of Directive 2013/32

119. As already mentioned, when Directive 2013/32 was adopted, the definition of the concept at issue remained the same as the definition provided under Directive 2005/85, but two specific provisions allowing for two different categories of partial designations (discussed in points 107 to 109 above) were removed.

120. When proposing that change, the Commission explained that that removal meant that ‘the material requirements for the national designation [as safe country of origin] must therefore be fulfilled with respect to the entire territory of a country.’ (75)

121. In the light of that statement, I fail to see, contrary to the Netherlands Government, anything ambiguous as to what the Commission sought to achieve.

122. That said, much discussion during the hearing revolved around the absence of any explanation of that change in the adopted text. Indeed, the Czech and the Netherlands Government argued that that silence cannot be interpreted as implying that the EU legislature intended to associate that removal with the same consequence as the one suggested by the Commission in the above referred proposal. Rather, the removal of the provisions at issue under those circumstances meant that the matter was left to the discretion of the Member States.

123. I am not convinced by that position.

124. First, and contrary to those interveners, I do not find the absence of any recital explaining the impact of that precise change surprising. Indeed, that change did not consist in setting out a new rule or a new exception to an existing rule but in removing a derogation. (76) As I explained above, the effect of that derogation was to extend the concept of safe country of origin to a part of a country or to a part of the population or to a part of the population within a part of a country. When that derogation was removed, the definition of the concept at issue simply reverted to the natural meaning of the term in which it is also commonly understood in the field of asylum. That, per se, does not call for any particular explanation, which is perhaps why the Commission did not provide any, including in the draft recitals of the initial proposal.

125. Second, I find it relevant to compare the ‘entry’ and the ‘exit’ points of the whole legislative process. That comparison shows that the above legislative change (removal) was adopted as initially proposed which makes it reasonable to assume that that change did not lead to any concerns, including as regards the Commission’s explanation of the result to be achieved.

126. I note, third, that the documents having accompanied the initial proposal of the Commission attest to the will ‘to ensure that the application of the notion [of safe country of origin] is subject to the same conditions in all Member States covered by the Directive’ (77)and ‘to reduce the ambiguousness of the [then] standards’ (78). That goal was expressed in the context of the preparation of an act in which the EU legislature reaffirmed its will to head towards the establishment of the common asylum procedure through a new stage of harmonisation. (79)

127. In that last respect, and when it comes to the concept at issue, it is true that Directive 2013/32 also abandoned the idea of the common minimum list of safe countries of origin (that had been never adopted under the previous directive). (80) However, it also removed the standstill regime preserving the possibility previously granted to the Member States to subject the designation as safe country of origin to standards that differed from the common definition set out in Annex II of Directive 2005/85. (81)That means that under Directive 2013/32, all national designations have to comply with the common definition of the concept of safe country of origin as set out in Annex I to that directive.

128. Seen in that light and in the light of the above mentioned long-term legislative intent to move toward a common asylum procedure, it is reasonable to interpret the removal of the above mentioned derogations as an intended step towards greater uniformity of procedural standards. Indeed, and although the current legal situation does not eliminate the risk of the applicants from the same third country being subject to different treatment in different Member States, (82) the impossibility to proceed to territorial exceptions reduces that risk.

129. Moreover, adopting the interpretation suggested by the Czech and Netherlands Government would mean that despite the removal of the explicit and rather elaborate derogation to a pre-existing main rule,(83) the very same main rule remains subject to the same (and/or possibly other) exceptions. 

130. I consider that that interpretative result is simply too puzzling to convince. Indeed, I am not clear as to why the EU legislature would have deleted the derogation at issue, if its intent were in fact to maintain it. If that were indeed the intended result, such intention – rather than the intention described above – would have required an explanation clarifying why the removal of a regime departing from the main rule means that that regime is in fact maintained and under what precise modalities.

131. Finally, that conclusion is not affected by Article 36(2) of Directive 2013/32, referred to by the Czech Government, according to which ‘Member States shall lay down in national legislation further rules and modalities for the application of the safe country of origin concept.’ As the wording and the structure of that provision indicate, that option refers to rules and modalities ‘further’ to those stated in the first paragraph of Article 36, setting out the conditions under which a country can be considered as safe country of origin in respect of a particular applicant. (84)By contrast, that paragraph does not relate to the definition of the concept which, as the Czech Government acknowledges, has to be respected in the first place. That definition (contained in Annex I of Directive 2013/32), however, does not contain any similar language that would indicate that the Member State may add to the conditions set out therein.

132.  In that light, I am of the view that when the EU legislature decided to remove the previous regime allowing for two distinct categories of differently designed partial designations, while maintaining the same main rule defining the concept of safe country of origin, that change is to be interpreted to mean that that legislature intended to harmonise the legal regime applicable to the national designations as safe countries of origin by allowing for such designations to be made on a full territorial basis only.

133. Although that observation confirms the previous elements of my analysis, it remains nevertheless for me to examine whether that general conclusion is affected by the suggestion made by the Commission that a designation as safe country of origin can still be subject to a territorial exception, where a third country is not able to exercise its authority over a part of its territory.

4.      The concept of effective control (and of effective authority)

134. As already observed, the reason why Transnistria was excluded from the designation of Moldova as a safe country of origin was because it was considered that Moldova does not exercise ‘effective control’ over that region.

135. The Commission relied on that fact to argue that although Directive 2013/32 does not, in its view, allow for territorial exceptions (and for designations as safe country of origin that would require making such exceptions), the inability of Moldova to exercise authority in Transnistria constitutes a valid ground for such an exception, which scenario was, according to that intervener, omitted by the EU legislature. (85)

136. First, contrary to the Commission, I fail to see how the issue of effective control may affect the result of the analysis above.

137. Indeed, that concept is a concept of international law whose purpose is, in principle, to determine whether international responsibility for an internationally wrongful act can be attributed to a State in an extra-territorial context (which then may lead to the liability of the territorial State being limited accordingly). (86)The resulting legal regime appears rather complex but that complexity need not be addressed here. (87)

138. This is because the present case is not (and cannot be) about attributing international liability for a wrongful act but about whether EU law allows for designation as safe country of origin be made subject to a territorial exception.

139. That issue has to be determined by consideration of the specific rules that the EU legislature has put into place with the adoption of Directive 2013/32. I have explained above the reasons that lead to the conclusion that such an option does not exist under the rules as currently in force. In that light, the exact reason that has lead a Member State to conclude that the situation prevailing in a third country makes a territorial exception to the designation as safe country of origin necessary, is irrelevant.

140. Second, I am not convinced by the argument consisting in the legislature’s omission. Indeed, the argument related to the effective control appears to refer to the case-law of the ECtHR in which the latter limited Moldova’ liability for violations of the ECHR within Transnistria due to the fact that that country ‘does not exercise authority’ over that region, which the ECtHR, in short, repeatedly considered to be under ‘effective control’ of Russia. (88)

141. I note that the first element of that case-law dates from 2004, whereas the proposal that led to the adoption of the current directive was published in 2009, the directive itself having been adopted in 2013. The situation at issue was therefore certainly not unknown.

142. Moreover, that kind of situation is certainly not isolated, as the Czech Government in essence observed during the hearing. Moreover, the Netherlands Government explained during the hearing that the Netherlands has designated Georgia as a safe country of origin with the exception of Abkhazia and South Ossetia, based on the lack of the effective exercise of the authority by the territorial State within those regions. (89)

143. Hence, and although I cannot exclude that other reasons may have led in the past the Member States to proceed to a specific territorial exception to a designation as safe country of origin, (90)it seems to me that some form of practical impossibility to exercise authority over a region will constitute a typical, if not the prevailing one. Consequently, I consider that when the EU legislature removed the basis for the partial designations as explained above, it is difficult to conceive that it could have ignored the fact that some of the third countries may face difficulties of this kind.

144. The above thus leads me to consider that the fact that a third country cannot exercise its authority within a part of its national territory does not affect the conclusion that I reached previously, as exposed in point 132 above, to the effect that Directive 2013/32 allows for designations as a safe country of origin to be made only on a full territorial basis, where the applicable conditions are satisfied in the respective third country considered in its full territorial extent.

E.      Incompatibility of the designation as a safe country of origin with Directive 2013/32 and ex officio judicial review

145. By its third question, the referring court asks whether Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, requires it to examine, of its own motion, the incompatibility of the designation as a safe country of origin, at issue in the main proceedings, with Directive 2013/32, should the Court find there to be such an incompatibility by virtue of the reply to the first or the second question.

146. It follows that the need for a response to the third question is conditional upon the answers given to the first two questions referred. In the light of the reply that I have suggested to the second question, such a need has been established. (91)

147. In that respect, I would start by observing that Article 46(3) of Directive 2013/32, to which the third question primarily relates, constitutes a specific guarantee that the EU legislature has provided in the field of asylum law to protect the applicant’s right to effective judicial review. It requires ‘an effective remedy [before a court providing] for 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], at least in appeals procedures before a court or tribunal of first instance’.

148. Given that that provision harmonises the scope of judicial review that is to be provided in the area of EU asylum law, I am of the view, in agreement with the referring court, that the reply to the third question must be construed, first and foremost, in the light of that precise expression of the right to effective judicial protection. However, were it established that the issue of the judicial obligation to proceed to ex officio review of the matter at issue here fell outside the scope of the harmonised standard, then the principles of equivalence and effectiveness (to which some of the interveners referred) would become relevant by default. (92)

149. I will proceed accordingly and start by identifying the precise issue that the referring court invites the Court to examine in the light of, in particular, Article 46(3) of Directive 2013/32 (1). On the basis of those clarifications, I will then explain that the consideration of that provision leads to the conclusion that the third question referred must be answered in the affirmative (2). In the alternative, I will address that question through the prism of the principles of equivalence and effectiveness (3).

1.      The precise issue raised

150. I recall that CV’s application was rejected on its merits as manifestly unfounded (within the meaning of Article 32(2) of Directive 2013/32) and that that decision was adopted under an accelerated procedure (within the meaning of Article 31(8) of the same directive), the application of both provisions being the consequence of Moldova’s status as safe country of origin whose CV is a national.

151. The Commission considers, in essence, that such a procedural situation presupposes the adoption of, first, a decision to apply the accelerated procedure, then a decision on the merits by which the application for international protection was considered to be unfounded and, finally, a decision by which the same application was considered (moreover) to be manifestly unfounded (which, according to the Commission, cannot happen unless and until the given application is first considered to be unfounded). (93)

152. Relying on that distinction, the Commission structures its reply to the third question referred in a way that varies depending on which of the aspects highlighted above is considered. While I will address the details of those considerations as part of the assessment below, it is necessary to make the following three comments.

153. First, nothing in the case file indicates that the national procedure followed in respect of CV’s application has involved more than one formal decision. Indeed, and subject to verification by the referring court, there appears to have been neither a formal decision which triggered the accelerated procedure, nor a separate formal decision by which CV’s application was first considered unfounded before being considered manifestly unfounded.

154. Second, and without there being a need to discuss that approach in more detail for the purposes of the present case, (94) it does not seem to have been argued that the direct characterisation of CV’s application as manifestly unfounded (without any prior decision declaring it to be unfounded) prevents the negative decision at issue from being amenable to judicial review under Article 46(3) of Directive 2013/32, inasmuch as that decision rejects CV’s application on the merits. Indeed, it follows from the latter provision, read in conjunction with Article 46(1) of the same directive, that decisions by which an application for international protection is rejected on the merits must be amenable to judicial review under Article 46(3) of Directive 2013/32. (95)

155. Third, the issue raised by the referring court does not, however, relate to the possibility for CV to contest the merits of the rejection decision, but to the use of the concept of safe country of origin on which that decision was based. Indeed, although CV contests the rejection decision on the merits, he has not contested the underlying unlawfulness (if confirmed) of the designation of Moldova as a safe country of origin.

156. As I have already explained in the previous section, the fact that Moldova was designated as a safe country of origin meant that CV’s application for international protection was subject to a specific examination scheme associated with that concept, consisting, inter alia, in the assessment of his case being subject to the presumption of safety of his home country and in the use of the accelerated procedure.

157. In that respect, the national court explains that should it follow from the Court’s reply to the first or second question referred that the designation of Moldova as a safe country of origin was incompatible with Directive 2013/32, the applicable national law does not allow that court to raise such an issue of its own motion. More specifically, it explains that the judicial review in administrative matters is limited, by virtue of Article 75(2) of the Code of Administrative Justice, to the points of law raised by the applicant.

158. It nevertheless adds that, by exception to that rule, there is a national practice within the Czech administrative courts whereby judges must take into account, of their own motion, procedural defects that led to the administrative authority issuing a decision that was precluded by the procedural framework of a particular case. The referring court observes that that solution could hypothetically apply to the situation at issue given that, as I understand the argument, the specific examination regime associated with the concept of safe country of origin should not have been applied where the conditions for its use were not met (due to the incompatibility of the designation as a safe country of origin with Directive 2013/32, if confirmed).

159. At the same time, the referring court also explains that the national case-law has not confirmed that that exception may be applied to judicial review in asylum matters and that Article 46(3) of Directive 2013/32 has not been transposed into the national legal order. It therefore enquires, in essence, whether it can derive the power to raise the unlawful designation of a safe country of origin (if confirmed) of its own motion based on (the directly applicable) Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter, (96) and whether those provisions actually require that court to proceed to such a review. This is thus the precise point that must be examined below.

2.      Main proposition

160. I note that the wording of Article 46(3) of Directive 2013/32 (as recalled in point 147 above) has been interpreted in particular in the judgment in Alheto, where the Court explained, in essence, that while the term ‘ex nunc’ requires the national court to, where necessary, take into account new elements that have come to light after the adoption of the decision being challenged, the term ‘full’ requires examination of both the elements which the determining authority took into account and those which it could have taken into account (but did not). (97)

161. Moreover, it follows from the subsequent case-law of the Court that the full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs of the applicant refers to an examination that is ‘exhaustive and up-to-date’ and that that standard of judicial review has been provided for by the EU legislature so as to enable the national court to give a binding ruling ‘as to whether the applicant concerned satisfies the conditions … to be granted international protection’, where that court has ‘all the elements of fact and law necessary in that regard’. (98)

162. In the light of those clarifications, and considering the context in which Article 46(3) of Directive 2013/13 operates as well as the objectives pursued by that directive, I am of the view that the obligation to conduct a full, or, as the Court explained, ‘exhaustive’ and up-to-date examination, implies in principle an obligation on the part of the national court to raise, of its own motion an error consisting in the examination of the given application under the specific examination scheme associated with the concept of safe country of origin, where the conditions for its application were not met.

163. To explain my position, I recall, first, that EU primary law imposes upon the EU legislature the obligation to respect the Geneva Convention (99) and it also establishes the right to asylum as a fundamental right. (100) That means that EU legislation that has been adopted to flesh out that right, such as Directive 2013/32, must be designed and interpreted in conformity with those primary-law requirements. (101) Furthermore, those instruments must also be construed in consideration of the nature of the rights that third-country nationals may claim under Directive 2011/95, which establishes, within the European Union, a specific legal regime of international protection.

164. In that respect, the Court has already explained that when a third-country national meets the conditions to be granted international protection as set out in Directive 2011/95, the Member States are in principle required to grant the respective status sought, since they have no discretion in that respect. (102)

165. That means that the elements of the judicial review under Article 46(3) of Directive 2013/32 must be interpreted in a manner that contributes to ensuring that international protection is granted to persons who satisfy the applicable conditions and, likewise, to preventing a situation in which such protection is denied despite the applicable conditions being met.

166. In relation to the current case, it follows, second, from the concept of safe country of origin, under Directive 2013/32, that the examination of an application made subject to that concept relies on the presumption of safety in the applicant’s country of origin, which is for the applicant to rebut, within a procedure that may, moreover, be accelerated.

167. That, in and of itself, alters the examination frame applied and although that frame does not dispense with the obligation to conduct an individual examination, as I have repeatedly recalled, an application for international protection cannot be considered as having been examined in the adequate and complete way that is generally required by Directive 2013/32, (103) when the determining authority applied that scheme despite the applicable conditions for its use not having been met.

168. Third, I am not sure exactly how the obligation of ‘the full and ex nunc’ examination of facts and points of law including, where applicable, the examination of the applicant’s international protection needs would operate if Article 46(3) of Directive 2013/32, which contains that obligation, were not interpreted as requiring that the national court raise the unlawfulness of the procedure applied of its own motion, and were it limited, as suggested by the Czech Government, to the question whether the applicant has rebutted the presumption of safety, without a possibility for the judge to review the applicability of the concept that makes such a presumption applicable in the first place. (104)

169. Indeed, the impossibility to raise, in the absence of an argument by the applicant, the unlawfulness of the procedural frame applied would mean that the national court would have to remain tied by a procedural choice made by the determining authority which, in casu, would affect not only the time frame for the examination of the procedure, but also the scope of the examination (due to the application of the presumption of safety of the applicant’s country of origin).

170. In those circumstances, the impossibility for the national court to consider the possible unlawfulness of the examination scheme which has in fact tainted the whole process of the examination of the international protection needs of the applicant would place undue limitations on the national court, preventing them from going beyond the constraints imposed by the given examination scheme, when it comes to the assessment of the question whether the applicant must be granted international protection.

171. The determination of that question is, as already recalled, the overarching rationale for the procedural rules set out in Directive 2013/32. Accordingly, when adopting the new definition of the scope of judicial review in Article 46(3) of Directive 2013/32, the EU legislature in my view intended to ensure that cases are dealt with in full, (105) which leads to the conclusion that the judicial review envisaged by that provision necessarily includes the lawfulness of the procedure having been applied to the examination of the given application.

172. It should be added that when reviewing a decision to reject an application for international protection that was examined under the specific scheme at issue here, the national court may of course come to the conclusion that the elements available in the file mean that the negative decision must be reversed and that international protection must be granted. In such a situation, I agree with the Commission that the consideration of the lawfulness of the designation of a given third country as a safe country of origin will be irrelevant. (106)

173. That said, and in contrast to the Commission’s more general position, it follows from the above that the consideration of the lawfulness of the designation of the safe country of origin at issue here remains relevant where the national court is unable to reach a conclusion that would, on the merits, be different from the one reached by the determining authority.

174. Indeed, the only manner in which that court can ensure that the application has been adequately and completely examined (after it had been submitted to an examination scheme that should not have applied) is either by undertaking the examination itself, or by referring the file back to the determining authority. (107) In both situations, the national court must be in a position to disregard any procedural treatment of the case (which necessarily implies taking a position on its lawfulness) and, where appropriate, to give a binding ruling on the correct procedural frame under which the application should be considered again by the determining authority, irrespective of whether the unlawfulness of the procedural frame applied at first instance has been challenged by the applicant.

175. That conclusion is unaffected by the fact that, in the judgment in Fathi, the Court interpreted Article 46(3) of Directive 2013/32 as not requiring the national court to examine of its own motion whether the criteria and mechanisms for determining the Member State responsible for examining an application for international protection, as provided for under the Dublin III Regulation, were correctly applied. (108) The Court’s reply in the negative was grounded on specific provisions of both of the EU legislative acts at issue that, in short, exclude procedures between Member States that are governed by the Dublin III Regulation from the scope of Directive 2013/32. (109) By contrast, no such exclusion applies in the present context.

176. The conclusion above is similarly unaffected by the fact that Article 46(3) of Directive 2013/32 does not refer to ‘ex officio’ review and, in that manner, differs from Article 46(4) and (6), where that term is used, as stressed by the Netherlands Government.

177. Indeed, on the one hand, Article 46(4) of Directive 2013/32 states inter alia that ‘Member States may … provide for an ex officio review of decisions’ adopted in the procedures carried out at the border or in transit zones. (110) On the other hand, Article 46(6) of Directive 2013/32 addresses the consequences of the possibility to prevent applicants in certain situations (such as applicants from safe countries of origin) from automatically being allowed to remain on the national territory pending the appeal of the decision rejecting their application. That possibility is subject to the national courts having the power to rule on whether or not the applicant may remain on the national territory ‘either upon the applicant’s request or acting ex officio …’. (111)

178. I do not think that either of those aspects is relevant for the present assessment because, neither of them relates to the scope of the review of the applicant’s case.

179. That said, the decision of the EU legislature to use different terms to describe review in different paragraphs of the same provision (namely the term ‘ex officio’ in Article 46(4) and (6) of Directive 2013/32, on the one hand, and the term ‘full’ in Article 46(3) thereof, on the other hand) certainly cannot be ignored.

180. In that respect, however, the views outlined above do not amount to a suggestion that the obligation of ‘full’ judicial review of legal points under Article 46(3) of Directive 2013/32 entails an obligation for the national courts to review those points, without any restriction of their material scope, ex officio. That is a fortiori the case, given that the adjective ‘full’ covers, as follows from the judgment in Alheto, inter alia legal points not considered by the authority which took the decision at first instance. If that requirement is combined with the obligation of ex officio review, that would imply an obligation on the part of the national courts to review, of their own motion, a possibly indeterminate category of legal issues. (112)

181. In contrast, the question whether the application was examined under the correct examination scheme is, first, necessarily part of the assessment that was carried out by the determining authority. Second, I have explained that the choice made by the determining authority to apply the specific examination scheme associated with the concept of safe country of origin affects the parameters of that examination and is, for that reason, closely linked to the scope of the elements gathered and, therefore, possibly available for judicial review.

182. In that light, I am of the view that Article 46(3) of Directive 2013/32 must be interpreted as requiring that a national court hearing an action against a decision in which an application for international protection was rejected as manifestly unfounded within the meaning of Article 32(2) of Directive 2013/32, in the context of the specific examination scheme associated with the concept of safe country of origin, must raise, of its own motion, the incompatibility of the designation as a safe country of origin with the requirements of Directive 2013/32, where the applicant has not raised it, and where that court is unable to reach a conclusion that would be, on the merits, different from the one reached by the determining authority.

3.      Argument in the alternative

183. Should the Court not share the analysis that I have outlined above and should it find, instead, that the concept of the ‘full and ex nunc’  examination set out in Article 46(3) of Directive 2013/32 does not imply an obligation on the part of the national court to raise ex officio an error in the examination scheme applied, it would follow that such an issue is, in principle, to be determined by the Member States, subject to the principles of equivalence and effectiveness. (113)

184. First, the principle of equivalence requires equal treatment of claims based on a breach of national law and of similar claims based on a breach of EU law. (114)

185. As already indicated, the referring court outlined that there is a practice in the Czech administrative courts whereby, in the fields governed – as I understand it – by domestic law, national courts must take procedural defects into account of their own motion, where that defect amounted to the administrative authority taking a decision that was excluded by the procedural context of the case. At the same time, the referring court outlined the fact that this practice has not been extended to judicial review of a decision taken on application for international protection as governed by the applicable rules of EU law.

186. In that respect, I refer to the established case-law, which provides that the applicability of the principle of equivalence is determined on the basis of whether the claims at issue, which are based on domestic law and EU law respectively, are in fact comparable. That matter is to be assessed in the light of ‘their purpose, cause … and essential characteristics’ (115) and also in consideration of the ‘role played by the rules concerned in the procedure as a whole, as well as the operation and any special features of those rules before the various national bodies’. (116) It also follows from the established case-law that that examination is for the national court, which has direct knowledge of the detailed procedural rules applicable, to perform. (117)

187. In that light, it is therefore for the referring court to verify whether the claims based on rules of domestic law and in respect of which the national courts are required to review the lawfulness of the procedure ex officio are comparable to that at issue here. If so, the principle of equivalence requires that court to apply such a national practice to the action pending in the main proceedings as well.

188. Second, for the purpose of the assessment in relation to the principle of effectiveness, it must be examined whether Article 75(2) of the Code of Administrative Procedure, which limits national courts reviewing administrative decisions to a consideration of the arguments raised by the parties, makes it impossible or excessively difficult for the applicants to exercise the rights that they derive from the relevant rules of EU law.

189. According to the Court’s settled case-law, when assessing whether a national provision renders the exercise of rights conferred by EU law impossible or excessively difficult, consideration must be given to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies as well as, where relevant, the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure. (118)

190. In the context of the ex officio obligations of the national courts, I note that it follows from the general case-law of the Court that the principle of effectiveness does not impose a duty on national courts to raise a plea based on an EU law of their own motion, irrespective of the importance of that provision to the EU legal order where the parties are given a genuine opportunity to raise such a plea before a national court. (119)

191. That said, and on the one hand, it is true that the Court has progressively defined far-reaching ex officio obligations of the national courts in the field of consumer law, to ensure, in short, that unfair contractual terms do not bind consumers. (120)

192. However, it follows from the Court’s case-law that that approach is, in short, specific to the field in which it had been developed. Indeed, the Court explained that the same approach was not required in the context of criminal procedure, subject to certain conditions proper to that area of law, and I fail to see a reason to consider otherwise in the present context. (121)

193. On the other hand, it is also true that the Court concluded that the competent judicial authority must examine, o f its own motion, the lawfulness of the detention of third-country nationals, including as regards the grounds that were not invoked by the person concerned.

194. However, the Court did not reach that conclusion by reference to the principle of effectiveness, but did so in the light of the specific and precise rules that the EU legislature provided for in the context of judicial review of the detention of third-country nationals, (122) much like the analysis that I conducted above in the light of the precise rule of Article 46(3) of Directive 2013/32. 

195. Thus, if the Court were not to follow my main suggestion, I am of the view that the response that must be given to the third question in the light of the principle of effectiveness must rely on the general case-law of the Court, as recalled in point 190 above.

196. In that perspective, there is nothing in the file to suggest that CV did not have an opportunity to raise the incompatibility of the designation as a safe country of origin with the conditions set out under Annex I to Directive 2013/32 in the context of his appeal pending before the referring court.

197. That said, the referring court points to the fact that the accelerated procedure makes it particularly difficult for the applicants to raise their arguments.

198. However, that per se is not indicative of it being impossible or excessively difficult for applicants, such as CV, to contest the applicability of the concept of safe country of origin.

199. It is true, as the German Government argues, that, within the procedure at first instance, the respective roles of applicants, on the one hand, and of the determining authorities, on the other hand, differ.

200. More specifically, it follows from the consideration of Article 4(1) of Directive 2011/95 that while applicants for international protection may be required to provide the factual elements necessary for the examination, (123) they cannot be required to raise issues relating to the legal framework under which their application is being assessed. That task falls upon the determining authority as is, in general terms, acknowledged by the same provision, stating that ‘in cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application’. (124)

201. That said, such division of the tasks between applicants putting forward the factual elements and national authorities legally qualifying them does not strike me as revealing, per se, a structural excessive difficulty that would have to be, in all circumstances, compensated by the obligation of the national courts to raise of their own motion legal issues that were possibly wrongfully assessed. Moreover, Chapter II of Directive 2013/32 sets out the general guarantees that must be provided to applicants, including in the accelerated procedure, such as the obligation to be informed about the procedure followed, (125) how to challenge a negative decision (126) or an obligation to provide free legal assistance in appeal procedures. (127)

202. Although the Member States’ obligations to provide those guarantees may be subject to certain limits and are to be provided, in respect of some of them, upon request (which presupposes awareness as to their existence), it does not follow from the file that CV was denied the benefit thereof. There is also nothing to suggest that the possibility of bringing the appeal was subject to deadlines so short that they would make it excessively difficult or impossible for the applicant to raise the unlawfulness of the designation as a safe country of origin at issue.

203. In those circumstances, I do not think that the principle of effectiveness imposes the obligation that the national court raises of its own motion, the incompatibility of the designation as a safe country of origin with Directive 2013/32.

V.      Conclusion

204. In the light of the above considerations, I suggest that the Court reply to the Krajský soud v Brně (Regional Court, Brno, Czech Republic) as follows:

(1)       Article 37(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in combination with Annex I to that directive,

must be interpreted as meaning that the fact that a third country, designated as a safe country of origin within the meaning of the provisions referred to above, has invoked Article 15 ECHR does not automatically prevent its continued designation as a safe country of origin. However, such an invocation must be taken into account by the competent authorities for the purposes of deciding whether the designation as a safe country of origin can be maintained, in the light of, in particular, the scope of the measures derogating from the obligations under the ECHR as defined in the notice submitted under Article 15 ECHR and its implementation in practice.

(2)       Article 37(1) of Directive 2013/32, read in combination with Annex I to that directive

must be interpreted as meaning that they allow for designations as a safe country of origin to be made only on a full territorial basis, where the applicable conditions are satisfied in the respective third country considered in its full territorial extent.

(3)       Article 46(3) of Directive 2013/32

must be interpreted as meaning that, where a national court, hearing an action against a decision in which an application for international protection was rejected as manifestly unfounded in the context of the specific examination scheme associated with the concept of safe country of origin, establishes that the given designation as a safe country of origin is incompatible with Directive 2013/32, it must raise that point of its own motion, where the applicant has not raised it, and where that court is unable to reach a conclusion that would be, on the merits, different from the one reached by the determining authority.

1      Original language: English.

2      Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60) (‘Directive 2013/32’).

3      See the information available at https://whoiswho.euaa.europa.eu/Pages/safe-country-concept.aspx.

4      Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950 (ETS No 005) and entered into force on 3 September 1953, as amended by Protocols Nos 11, 14 and 15 and supplemented by Protocols Nos 1, 4, 6, 7, 12, 13 and 16.

5      Protocol No 24, annexed to the TFEU, on asylum for nationals of Member States of the European Union (OJ 2010 C 83, p. 305) (‘Protocol No 24’).

6      Directive of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9) (‘Directive 2011/95’).

7      Subject to verification by the referring court, I note that this territorial exception appears to have been removed with effect from 1 October 2023 by Vyhláška č. 289/2023 Sb, kterou se mění vyhláška č. 328/2015 Sb., (Decree No 289/2023, amending Decree No 328/2015; ‘Decree No 289/2023’). See the information to the same effect available at https://whoiswho.euaa.europa.eu/Pages/safe-country-concept.aspx.

8      Moreover, pursuant to Article 85b(1) of the Law on Asylum, the Ministry shall issue a departure order ex officio, with a maximum deadline of one month, to a foreign national, after a decision to reject an application for international protection as manifestly unfounded, unless such a decision is overturned by the court, or after a resolution of a regional court not to grant suspensory effect.

9      The order for reference refers to two documents entitled Évaluation de la Moldavie comme pays d’origine sûr, situation en juillet 2021, of 28 July 2021 and Informations du Bureau fédéral de la Migration et des Réfugiés de juin 2021.

10      See footnote 7 above.

11      Note verbale No FRA-CoE/352.6/410110, from the Permanent Representation of the Republic of Moldova, dated 11 April 2024, registered by the Secretariat General on 11 April 2024, available at rm.coe.int/0900001680af4f7e.

12      See footnote 7 above.

13      Pursuant to the established case-law ‘references to the Court for a preliminary ruling enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.’ See for example, judgment of 7 March 2024, Roheline Kogukond and Others (C‑234/22, EU:C:2024:211, paragraph 26 and the case-law cited).

14      See, respectively, Articles 36 and 37 of (and Annex I to) Directive 2013/32 (safe country of origin), Article 38 (safe third country) and Article 39 (European safe third country) of Directive 2013/32. For an explanation of these different concepts, see European Union Agency for Asylum (‘EUAA’), Applying the Concept of Safe Countries in the Asylum Procedure, December 2022. See also Goldner Lang, I. and Nagy, B., ‘External border control techniques in the EU as a challenge to the principle of non-refoulement’, European Constitutional Law Review, Vol. 17, Issue 3, 2021, pp. 442 to 470.

15      As reported in Martenson, H. and McCarthy, J., ‘In General, no serious risk of persecution: Safe country of origin practices in nine European States’, Journal of Refugee Studies, Vol. 11, No 3, 1998, pp. 304 to 325, at p. 306. See also van Selm J., Access to Procedures ‘Safe Third Countries’, ‘Safe Countries of Origin’ and ‘Time Limits’, 2001, accessible at https://www.unhcr.org/media/access-procedures-safe-third-countries-safe-countries-origin-and-time-limits.

16      On both of these aspects, see for instance, Goodwin-Gill, G.S., ‘Safe country? Says who?’, International Journal of Refugee Law, Vol. 4, Issue 2, 1992, pp. 248 to 250; Costello, C., ‘Safe country? Says who?’, International Journal of Refugee Law, Vol 28, Issue 4, 2016, pp. 601 to 622. See also, by analogy, judgment of 28 July 2011, Samba Diouf (C‑69/10, EU:C:2011:524, ‘judgment in Samba Diouf’, paragraph 65).

17      See the first paragraph of Annex I to Directive 2013/32.

18      See, for an interactive map including the list of safe countries of origin, https://whoiswho.euaa.europa.eu/Pages/safe-country-concept.aspx.

19      Council Directive of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13). That directive was repealed by Directive 2013/32.

20      Judgment of 6 May 2008, Parliament v Council (C‑133/06, EU:C:2008:257). The same idea was subsequently reintroduced in legislative proposals. See Proposal for a Regulation of the European Parliament and of the Council establishing an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the European Parliament and of the Council on common procedures for granting and withdrawing international protection, and amending Directive 2013/32/EU COM(2015) 452 and Proposal for a Regulation of the European Parliament and the Council establishing a common procedure in the Union and repealing Directive 2013/32/EU, COM/2016/0467 final, pp. 18 and 19. For the latest element of the legislative process, as available at the time of the elaboration of the present Opinion, see Article 61(2) of Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, document PE 16 2024 REV 1 of 15 May 2024.

21      Convention relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 (‘the Geneva Convention’).

22      The text of the directive refers to EASO (European Asylum Support Office) but the latter has become the European Union Agency for Asylum (EUAA). See Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010 (OJ 2021 L 468, p. 1).

23      Article 37(3) of Directive 2013/32.

24      Judgment of 25 July 2018, A (C‑404/17, EU:C:2018:588, ‘the judgment in A’, paragraph 25). See also Article 36(1) of Directive 2013/32.

25      Article 31(9) of Directive 2013/32.

26      Emphasis added. See combined provisions of Article 31(8)(b) and Article 32(2) of Directive 2013/32, and the judgment in A, paragraph 26. It follows from the order for reference that the Ministry used that qualification in respect of CV’s application.

27      As also noted in the judgment in A, paragraph 27, referring to Article 46(5) and (6) of Directive 2013/32. I recall that at CV’s request, the referring court suspended the effects of the rejection decision pending his appeal. See point 29 above.

28      For the purposes of the present case, I do not consider it necessary to discuss the Commission’s view that Article 16 of the Law of Asylum, referred to in point 18 of this Opinion, is incompatible with Directive 2013/32 because it dispenses with the individual examination of the international protection needs vis-à-vis applicants from safe countries of origin. If that were the case, I would agree with the Commission. That said, it does not follow from the order for reference that the assessment of CV’s application did not involve examination of his international protection needs.

29      ECtHR, 21 September 2021, Dareskizb v. Armenia, CE:ECHR:2021:0921JUD006173708, ‘ECtHR in Dareskizb’, § 59 and the case-law cited.

30      Ibid.

31      As follows directly from Article 15(1) ECHR.

32      See Articles 1 and 3 of Protocol No 6 to the ECHR, Articles 1 and 2 of Protocol No 13 to the ECHR and Article 4(1) and (3) of Protocol No 7 to the ECHR.

33      See, for example, ECtHR, 26 September 2023, Yüksel Yalçınkaya v. Türkiye, CE:ECHR:2023:0926JUD001566920, ‘ECtHR in Yüksel Yalçınkaya’, § 348 and the case-law cited.

34      See ECtHR in Dareskizb, § 62.

35      In that respect, the ECtHR appears to have accepted that the exceptional situation invoked by a Contracting Party to trigger Article 15 ECHR may not be defined as temporary. See ECtHR, 19 February 2009, A. and Others v. the United Kingdom, CE:ECHR:2009:0219JUD000345505, ‘ECtHR in A. and Others v. the United Kingdom’, § 178, where the ECtHR notes nevertheless that ‘the question of the proportionality of the response may be linked to the duration of the emergency’.

36      ECtHR in Yüksel Yalçınkaya, §§ 349 and 350 and the case-law cited.

37      See ECtHR in A. and Others v. the United Kingdom, § 184 and the case-law cited.

38      See ECtHR in A. and Others v. the United Kingdom, § 161 and the case-law cited.

39      As confirmed also in ECtHR, Guide on Article 15 of the European Convention on Human Rights – Derogation in time of emergency, February 2022, p. 5, point 4.

40      See a special page dedicated by the Council of Europe to the list of derogations notified: https://www.coe.int/en/web/conventions/derogations-covid-19.

41      See Steering Committee for Human Rights (CDDH), Drafting Group on Human Rights in Situations of Crisis (CDDH-SCR), ‘Draft Explanatory Memorandum to the draft Recommendation of the Committee of Ministers on the effective protection of human rights in situations of crisis’, CDDH-SCR(2024)02, 10 January 2024, paragraph 46.

42      The notice submitted by Moldova in the context of the COVID-19 pandemic is not relevant here. For its withdrawal, see Note Verbale No FRA-CoE/352/175 from the Permanent Representation of the Republic of Moldova, dated 29 April 2021, registered at the Secretariat General on 29 April 2021, available at rm.coe.int/1680a24f55.

43      See the first paragraph of Annex I to Directive 2013/32.

44      Steering Committee for Human Rights (CDDH), Drafting Group on Human Rights in Situations of Crisis (CDDH-SCR), ‘Draft Recommendation of the Committee of Ministers on the effective protection of human rights in situations of crisis’, CDDH-SCR(2024)01, 10 January 2024, 8th recital.

45      See point 61 above.

46      At the hearing, the Czech Government referred to the example of the COVID-19 pandemic during which three Member States decided to invoke Article 15 ECHR, as observed in point 63 above, while the other Member States did not, although, as I understand the argument, the underlying situation brought about by that pandemic did not fundamentally differ across those Member States.

47      I understand that that notice corresponds to Note verbale No FRA-CoE/352/81 from the Permanent Representation of Moldova to the Council of Europe, dated 25 February 2022, registered at the Secretariat General on 25 February 2022, https://rm.coe.int/0900001680a5a421. Although the status of that derogation is not entirely clear to me based on the publicly available sources, I understand, subject to the verification by the referring court, that the state of emergency on which it relied was subsequently abrogated as that appears to follow from the second paragraph of Note verbale No FRA-CoE/352/96 from the Permanent Representation of Moldova to the Council of Europe, dated 3 March 2022, registered at the Secretariat General on 3 March 2022, available at https://rm.coe.int/0900001680a5b630, to which the referring court refers as well.

48      See Note verbale No FRA-CoE/352/96 referred to in the previous footnote. Subject to the verification by the referring court, the derogation announced in the notice of 3 March 2022 appears to have been successively prolonged until 31 December 2023 and appears to have been withdrawn on 11 April 2024, by the notice referred to in footnote 11 above, as observed in point 33. For the full list of the notices see at https://www.coe.int/en/web/conventions/cets-number-/-abridged-title-known?module=declarations-by-treaty&numSte=005&codeNature=0.

49      For the full list of the measures, see Note verbale No FRA-CoE/352/96 referred to in footnote 47 above.

50      See Note verbale No FRA-CoE/352/96 referred to in footnote 47 above.

51      See, for example, Note verbale No FRA-CoE/352.2/410 from the Permanent Representation of the Republic of Moldova, dated 29 November 2023, available at https://rm.coe.int/0900001680ad80c6; and the previous notices available at the website referred to in footnote 48 above.

52      Note verbale No FRA-CoE/352/124 from the Permanent Representation of the Republic of Moldova to the Council of Europe, dated 2 April 2021.

53      See point 47 above. Recital 48 of Directive 2013/32 states, inter alia, that ‘when Member States become aware of a significant change in the human rights situation in a country designated by them as safe, they should ensure that a review of that situation is conducted as soon as possible and, where necessary, review the designation of that country as safe’.

54      The other exceptions are linked to the beginning or the completion of the process which is referred to respectively in Article 7(1) and (2) TEU and which concerns ‘a serious and persistent breach by a Member State of the values referred to in Article 2 [TEU]’, as provided for in points (b) and (c) of the sole article of Protocol No 24. The fourth exception applies when a Member State decides to examine a given application, subject to specific conditions, as provided in point (d) of the sole article of Protocol No 24.

55      See Article 33 of Directive 2013/32.

56      The Treaty of Amsterdam annexed the Protocol on asylum for nationals of Member States of the European Union to the EC Treaty (OJ 1997 C 340, p. 103).

57      See generally, Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454, paragraph 191 and the case-law cited).

58      The fourth recital of Protocol No 24 recalls that ‘pursuant to Article 49 [TEU] any European State, when applying to become a Member of the Union, must respect the values set out in Article 2 [TEU]’. See also the third recital of the initial protocol.

59      See the sixth recital of Protocol No 24 and the fifth recital of the initial protocol.

60      Eighth recital of each protocol. The existence of the initial protocol has been explained by the case of an application for international protection having been lodged in Belgium, by a Spanish national, accused of engaging in terrorist activities where the Belgian court agreed not to consider Spain as safe. Martenson, H. and McCarthy, J., ‘In general, no serious risk of persecution: Safe country of origin practices in nine European States’, Journal of Refugee Studies, Vol. 11, No 3, 1998, p. 311. See also van Selm, J., Access to Procedures “‘Safe Third Countries’, ‘Safe Countries of Origin’ and ‘Time Limits’”, 2001, point 93, accessible at https://www.unhcr.org/media/access-procedures-safe-third-countries-safe-countries-origin-and-time-limits. I note that Belgium made a declaration (Declaration no 5 on the protocol on asylum for nationals of Member States of the European Union, (OJ 1997 C 340, p. 144) attached to the Treaty of Amsterdam) that it will carry out an individual examination of any asylum request made by a national of another Member State in accordance with its obligations under the Geneva Convention.

61      For the purposes of the present case, I do not consider it necessary to examine the question of whether the invocation of Article 15 ECHR by a Member State triggers only a possibility to examine the applications of nationals of that state, as argued by the Czech Government, or whether that brings about an obligation to do so, as considered by the referring court. That said, given that Protocol No 24 constitutes an exception to the general obligation to examine applications for international protection, I would tend to support the interpretation embraced by the referring court.

62      See the explanation in footnote 7 and point 34 above.

63      Sometimes referred to as internal protection alternative or internal flight alternative. Article 8(1) of Directive 2011/95 provides that ‘[a]s part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin, he or she: (a) has no well-founded fear of being persecuted or is not at real risk of suffering serious harm; or (b) has access to protection against persecution or serious harm as defined in Article 7; and he or she can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there’. Emphasis added.

64      The UNHCR likewise warned against both concepts being conflated, because ‘the complex questions which arise in the application of the internal protection alternative require a careful examination of the individual case’ which, for that matter and according to the UNHCR, is unfit to be dealt with under the accelerated procedure. UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice, Key Findings and Recommendations, March 2010, p. 67, https://www.refworld.org/reference/research/unhcr/2010/en/92062. See also UNHCR, Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees, 23 July 2003, HCR/GIP/03/04, p. 8, point 36; or UNHCR Observations on the Law Proposal amending the Obligation to Leave and Prohibition on Entry Act, the Law Enforcement Act and the Act on Granting International Protection to Aliens, 12 November 2018, http://www.refworld.org/docid/5c66ceb77.html, point 22.

65      See, for instance, UNHCR, Observations by the UNHCR Representation for Northern Europe on the proposal to introduce in Sweden a list of safe countries of origin, 31 March 2020, www.refworld.org/docid/5e8345014.html, p. 3 point 8; UNHCR, Comments on the European Commission’s Proposal for an Asylum Procedures Regulation – COM(2016) 467, April 2019, www.refworld.org/docid/5cb597a27.html, p. 43; UNHCR, Improving Asylum Procedures: … document referred to in footnote 64 above, p. 65; UNHCR’s Summary Observations on the Amended Proposal by the European Commission for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status (COM(2000) 326 final/2, 18 June 2002), https://www.refworld.org/legal/intlegcomments/unhcr/2003/en/31802, p. 8.

66      See, to that effect, judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis) (C‑69/21, EU:C:2022:913, paragraph 55), and of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, ‘judgment in M and Others (Revocation of refugee status)’, paragraph 82).

67      See, for instance, UNHCR, Observations by the UNHCR Representation for Northern Europe on the proposal to introduce in Sweden a list of safe countries of origin, 31 March 2020, www.refworld.org/docid/5e8345014.html, p. 4 point 11; UNHCR, Observations on the Law Proposal amending the Obligation to Leave … document referred to in footnote 64 above, point 21; UNHCR, Improving Asylum Procedures: …, document referred to in footnote 64 above, p. 67; Summary of UNHCR’s Provisional Observations on the Proposal for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status (Council Document 14203/04, Asile 64, of 9 November 2004), p. 4 in fine.

68      Pursuant to Article 2(d) of Directive 2011/95 ‘“[r]efugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it …’ Emphasis added.

69      See Article 19(2) of the Charter, according to which ‘[n]o one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’. Emphasis added.

70      Article 30(1) of Directive 2005/85 stated that ‘… Member States may retain or introduce legislation that allows … for the national designation of third countries …, as safe countries of origin for the purposes of examining applications for asylum. This may include designation of part of a country as safe where the conditions in Annex II are fulfilled in relation to that part.’

71      Article 30(3) of Directive 2005/85 provided that ‘Member States may also retain legislation in force on 1 December 2005 that allows for the national designation of part of a country as safe, or a country or part of a country as safe for a specified group of persons in that country, where the conditions … are fulfilled in relation to that part or group’.

72      See Article 31(8)(b) of Directive 2013/32. That directive does not set any particular value to the length of the accelerated procedure and leaves its definition to the Member States, subject to the condition of being ‘reasonable’, as already briefly observed in point 50 above and as follows from Article 31(9) of Directive 2013/32. By contrast, the length of the standard procedure is set out in Article 31(3) and (5) of the same directive as being of 6 months of the lodging of the application, which can be extended up to ‘a maximum time limit of 21 months from the lodging of the application’.

73      See combined reading of Article 46(5) and 46(6) of Directive 2013/32. See on those provisions, judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029, paragraphs 303 and 271). See also order of 5 July 2018, C and Others (C‑269/18 PPU, EU:C:2018:544, paragraph 53).

74      See the second subparagraph of Article 36(1) of Directive 2013/32.

75      Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (Recast) ANNEX, COM(2009) 554 final ANNEX, p. 15. Emphasis added.

76      Similarly to what is proposed in draft recital 80 and Article 61(2) featuring in the document PE 16 2024 REV 1 of 15 May 2024, referred to in footnote 20 above, acknowledging the possibility to designate a third country as safe country of origin ‘with exceptions for specific parts of its territory or clearly identifiable categories of persons’. As already noted, at the time of the finalisation of this Opinion, that document constitutes the latest available element of the ongoing legislative process that concerns the proposal of a regulation establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (COM/2016/0467 final).

77      Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (Recast) ANNEX, COM(2009) 554 final ANNEX,, p. 15.

78      Commission Staff Working Document accompanying the Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection – Impact Assessment, SEC(2009) 1376, p. 34. See also Annexes to the Commission Staff Working Document accompanying the Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection – Impact Assessment, SEC(2009) 1376 (part II), pp. 66 to 68.

79      Recital 4 of Directive 2005/85 qualified ‘the minimum standards laid down in [that directive as] a first measure on asylum procedures’, while recital 12 of Directive 2013/32 states that ‘the main objective of [the latter directive] is to further develop the standards for procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the Union.’

80      For the acknowledgement of the political difficulties in that respect, see Annexes to the Commission Staff Working Document, referred to in footnote 78 above, p. 18.

81      See Article 30(2) and (3) of Directive 2005/85.

82      Due to the disparities when it comes to the existence and content of the lists of safe countries of origin.

83      It follows from the explanation in point 108 above that the previous regime in fact differentiated between two main options: while the possibility to proceed to partial designations on territorial basis was confirmed in the context of the national designations to be based on the common designation conditions (Article 30(2) of Directive 2005/85), the designation as a safe country of origin for a part of the population was only possible when such an option existed under the pre-existing national legislation, as that follows from the above-referred standstill clause in Article 30(3) of Directive 2005/85.

84      I recall that it is so only when the applicant is a national of, or habitually resident in, such a country and where, at the same time, he or she has not expressed any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances.

85      I recall that the Commission’s position discussed in the present sub-section converges with the main position of the Czech and the Netherlands Governments arguing in favour of the admissibility of territorial exceptions more generally.

86      The ECtHR referred to ‘effective overall control’ in the judgment of 18 December 1996, Loizidou v. Turkey, CE:ECHR:1996:1218JUD001531889, § 56.

87      See, especially, Article 8 of the Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, especially p. 47 and point 4. Talmon, S., ‘The Responsibility of Outside Powers for Acts of Secessionist Entities’, International and Comparative Law Quarterly, Vol. 58, No 3, 2009, pp. 493 to 517, in particular at 493.

88      See, in particular, ECtHR of 8 July 2004, Ilaşcu and Others v. Moldova and Russia, CE:ECHR:2004:0708JUD004878799, §§ 335, 392 and 394; ECtHR of 19 October 2012, Catan v. Moldova and Russia, CE:ECHR:2012:1019JUD004337004, §§ 109-110; ECtHR of 23 February 2016, Mozer v. Moldova and Russia, CE:ECHR:2016:0223JUD001113810, § 99; ECtHR of 17 July 2018, Sandu and Others v. The Republic of Moldova and Russia, CE:ECHR:2018:0717JUD002103405, §§ 34 to 39.

89      It follows from the explanation provided by the Czech Government at the hearing that the Czech list of safe countries of origin contained the same territorial exceptions which, subject to the verification by the referring court, were removed, together with the one at issue in the present case, with the effect as of 1^st October 2023. See footnote 7 above.

90      I note that Hungary has designated the United States of America as a safe country of origin with the exception of the States enforcing the death penalty. See the information provided by the EUAA at https://whoiswho.euaa.europa.eu/Pages/safe-country-concept.aspx.

91      The same conclusion follows more broadly from my role to fully assist the Court should the latter decide not to follow my suggestion in relation to the second question referred but consider, in contrast to what I suggest in respect of the first question referred, that invocation of Article 15 ECHR by a third country automatically precludes its designation as a safe country of origin.

92      For an example, see judgment of 26 September 2018, Staatssecretaris van Veiligheid en Justitie (Suspensory effect of the appeal) (C‑180/17, EU:C:2018:775, especially paragraphs 33 and 34). See, more generally, Prechal, S., ‘Between effectiveness, procedural autonomy and judicial protection’, Izzivi prava v življenjski resničnosti. Challenges of law in life reality. Liber amicorum Marko Ilešič, Univerza v Ljubljani, Pravna fakulteta, Ljubljana, 2017, 601 p., pp. 391 to 404, in particular p. 395.

93      I recall that, within the scheme of Directive 2013/32, the consequence of the fact that an unfounded application is considered as also being manifestly unfounded is that the Member States may choose to not automatically allow the applicant to remain on the national territory pending the appeal against a decision rejecting his or her application for international protection (as follows from a combined reading of Article 46(5) and (6) of Directive 2013/32).

94      The Netherlands Government observed at the hearing that the decision considering an application from an applicant from a safe country of origin as manifestly unfounded does not presuppose a previous decision considering the same application as unfounded because both aspects are assessed simultaneously.

95      It follows from Article 46(1)(a)(i) of Directive 2013/32 that the right to an effective remedy before a court, as defined in Article 46(3) of the same directive must exist, inter alia, against decisions considering an application for international protection to be unfounded in relation to refugee status and/or subsidiary protection status.

96      I recall that it follows, in essence, from the Court’s case-law that Article 46(3) of Directive 2013/32 is, like Article 47 of the Charter, sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such. Judgment of 29 July 2019, Torubarov (C‑556/17, EU:C:2019:626, ‘the judgment in Torubarov’, paragraph 56).

97      And those which, again, have arisen following the adoption of the negative decision at issue. Judgment of 25 July 2018, Alheto (C‑585/16, EU:C:2018:584, ‘the judgment in Alheto’, paragraphs 111 to 113). I note that the English version of that judgment does not use the term ‘elements’, but ‘new evidence’ (paragraphs 111 and 112) and ‘evidence’ (paragraph 113), while the French version refers to ‘nouveaux éléments’ (paragraphs 111 and 112) and ‘éléments’ (paragraph 113). In the light of the matter omitted by the administrative authority in that case, which was of a legal nature, I consider that the respective part of the Court’s reasoning must be understood as referring to any factual or legal element, as is made clear in paragraph 118 of that judgment, in both the English version and the French version. See also judgment of 3 March 2022, Secretary of State for the Home Department (Refugee status of a stateless person of Palestinian origin) (C‑349/20, EU:C:2022:151, paragraph 55 and the case-law cited).

98      The judgment in Torubarov, paragraph 65, and judgment of 8 February 2024, Bundesrepublik Deutschland (Admissibility of a subsequent application) (C‑216/22, EU:C:2024:122, ‘the judgment in Bundesrepublik Deutschland (Admissibility of a subsequent application)’, paragraph 62).

99      See, to that effect (in the context of Directive 2011/95), judgment in M and Others (Revocation of refugee status), paragraph 74 and the case-law cited.

100      See, to that effect, judgment of 29 February 2024, Staatssecretaris van Justitie en Veiligheid (Mutual trust in the event of transfer) (C‑392/22, EU:C:2024:195, paragraph 51 and the case-law cited).

101      See to that effect, the judgment in M and Others (Revocation of refugee status), paragraph 83.

102      The judgment in Torubarov, paragraph 50 and the case-law cited.

103      See recital 18 and Article 31(2) of Directive 2013/32.

104      Without there being a need to discuss in detail the argument derived from the complexity of the assessment, raised by the Czech Government, and to distinguish it, as the case may be, from the unlawfulness of the designation such as the one discussed in the previous sections of this Opinion, I understand that the national courts stopped considering Ukraine as a safe country of origin after February 2022 despite the fact that Ukraine had not yet been removed from the list of safe countries of origin. Subject to verification by the referring court, see judgment of the Nejvyšší správní soud (Supreme Administrative Court, the Czech Republic) of 10 March 2022, 10 Azs 537/2021 – 31, especially point 17 (in casu, the latter court required re-examination of the respective application under the ordinary regime). Also subject to verification by the referring court, the removal of Ukraine from the list of safe countries of origin occurred with the effect from 1 October 2023, by operation of the same decree, referred to in footnote 7 above, as the one by which the territorial exception at issue was removed. See also https://whoiswho.euaa.europa.eu/Pages/safe-country-concept.aspx.

105      See, to that effect, Commission Staff Working Document accompanying the proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection – Impact Assessment, SEC(2009) 1376, point 4.2.7. In the light of the developments presented in the present section, I consider it redundant to address the Commission’s argument that the judicial review under Article 46(3) of Directive 2013/32 does not apply to the decision to submit an application to the accelerated procedure. I think that that suggestion is, first, contradicted by the judgment in Samba Diouf, including when account is taken of the specifics of that case. Second, the legal consequences of the concept of safe country of origin go beyond the use of the accelerated procedure. Third, that case was considered in the context of Article 39 of Directive 2005/85, the legal predecessor of Article 46(3) of Directive 2013/32. The definition of the characteristics of the judicial remedy provided in the latter provision dispenses with the necessity to examine the matter in any more detail, given that it requires there to be a full examination of, inter alia, ‘points of law’ without limiting those points to a substantive assessment. See, to that effect, the judgment in Alheto, paragraph 115; and judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa) (C‑564/18, EU:C:2020:218, paragraph 67).

106      The same applies, to my mind, when the view of the national court is that the application must be rejected as inadmissible. See the judgment in Alheto, paragraphs 119 to 127. See also judgment of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa) (C‑564/18, EU:C:2020:218, paragraph 69). That observation would necessitate, in my view, further differentiation depending on the applicable grounds of such inadmissibility, as provided for in Article 33(2) of Directive 2013/32, but that question need not to be developed for the purposes of the present case.

107      I recall that it follows from the wording (‘where applicable’) of Article 46(3) of Directive 2013/32 and from the Court’s case law that while the Member States have an obligation to provide for a power of the national courts to proceed to the examination of the international protection needs, those courts are not necessarily required to make that assessment, because, depending on the information available in the file, they may consider that the determining authority is better equipped for that purpose (see the judgment in Bundesrepublik Deutschland (Admissibility of a subsequent application), paragraph 67). For a reference to ‘specific resources and staff specialised in the matter’ of the determining authorities, see the judgment in Torubarov, paragraph 64, or judgment of 16 July 2020, Addis (C‑517/17, EU:C:2020:579, paragraph 61).

108      Judgment of 4 October 2018, Fathi (C‑56/17, EU:C:2018:803, paragraph 72).

109      Ibid., paragraphs 69 to 71. It follows from paragraph 57 of the same judgment that the national courts hearing the appeal of the decision to reject an asylum application were obliged, under national law, to examine whether the correct procedure had been observed by the national authority at first instance, which appears to be the reason behind the referring court in that case asking whether such an obligation applied to the correct application of the rules of the Dublin III Regulation.

110      Pursuant to Article 43 of Directive 2013/32.

111      See, in that respect, case-law references in footnote 73 above.

112      I note that in the case having led to the judgment in Alheto, the specific legal point not raised by the determining authority was the applicability of the regime of Article 12(1)(a) of Directive 2011/95. It was in respect of that legal point that the Court provided a reply to the third question referred in that case, which concerned the extent of the scope of judicial review under Article 46(3) of Directive 2013/32, at issue here. I observe that the second question referred in that case was about the possibility to apply the second sentence of Article 12(1)(a) of Directive 2011/95, when the applicant had not referred to it. At the same time, nothing indicates that the referring court in that case faced a similar obstacle to the one faced by the referring court in the present case. See the judgment in Alheto, in particular paragraphs 97 and 117.

113      See, for instance, my Opinion in Bundesrepublik Deutschland (Admissibility of a subsequent application) (C‑216/22, EU:C:2023:646, point 94). Similar to what I observed earlier, the considerations that follow are relevant only if the national court is unable to reach a conclusion that would be, on its merits, different from the one reached by the determining authority.

114      See, for example, judgment of 9 September 2020, Commissaire général aux réfugiés et aux apatrides (Rejection of a subsequent application – Time limit for bringing proceedings) (C‑651/19, EU:C:2020:681, ‘the judgment in Commissaire général aux réfugiés et aux apatrides (Rejection of a subsequent application – Time limit for bringing proceedings)’, paragraph 36).

115      Ibid., paragraph 38 and the case-law cited.

116      Ibid., paragraph 39.

117      Ibid., paragraph 38 and the case-law cited.

118      See, for instance, the judgment in Commissaire général aux réfugiés et aux apatrides (Dismissal of a subsequent action – Time limit for bringing proceedings), paragraph 42 and the case-law cited.

119      Judgments of 7 June 2007, van der Weerd and Others (C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 41); of 11 July 1991, Verholen and Others (C‑87/90 to C‑89/90, EU:C:1991:314, paragraphs 11 to 16); of 14 December 1995, van Schijndel and van Veen (C‑430/93 and C‑431/93, EU:C:1995:441, in particular paragraphs 17 and 22) and of 14 December 1995, Peterbroeck (C‑312/93, EU:C:1995:437, paragraphs 15 to 21).

120      See my Opinion in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2023:674, points 151 to 154).

121      Judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:498, paragraphs 52 and 53). More specifically, the Court held in that judgment that the relevant provisions of EU law did not preclude national legislation which prohibits the court hearing a criminal case from raising, of its own motion, a breach of the obligation to promptly inform suspects or accused persons of their right to remain silent, where, in short, those persons had a practical and effective opportunity to have access to a lawyer and to their file and where they could invoke the relevant breach within a reasonable period of time.

122      Judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid and X (Ex officio review of detention) (C‑704/20 and C‑39/21, EU:C:2022:858, paragraphs 85 to 88 and 91 to 94). Furthermore, the pending Case C‑156/23, Ararat, raises the issue of, in short, the obligation on the part of the judicial authority to establish ex officio compliance with the principle of non-refoulement in the context of proceedings falling within the scope of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).

123      See, on their duty to cooperate, the judgment in Alheto, paragraph 116, and judgment of 29 June 2023, International Protection Appeals Tribunal and Others (Attack in Pakistan) (C‑756/21, EU:C:2023:523, paragraph 46 et seq.), in the context of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12), the legal predecessor of Directive 2011/95.

124      See also, to that effect, the judgment in Bundesrepublik Deutschland (Admissibility of a subsequent application), paragraph 47 in fine.

125      Article 19 of Directive 2013/32.

126      Article 11(2) of Directive 2013/32.

127      Article 20 of Directive 2013/32.