The Advocate General of the Court of Justice of the European Union (CJEU), Nicholas Emiliou, ruled that the Italy-Albania Protocol is compatible with EU legislation on return and asylum procedures, in his Opinion delivered on Thursday 23 April (Case C-414/25).
Signed in November 2023 (see EUROPE 13287/17), the Protocol authorises Italy to establish and operate repatriation and detention centres on Albanian territory under Italian jurisdiction, with the aim of managing migration flows.
The Italian government is challenging the decision of the Court of Appeal in Rome, which refused to uphold decisions concerning the detention in Italy of two third-country nationals who were the subject of removal orders and who had been transferred by Italy to Albania under the Protocol (see EUROPE 13507/11).
The Italian Court of Cassation asked the CJEU to rule on the compatibility with the Return Directive (2008/115) and the Asylum Directive (2013/32) of decisions ordering the detention of asylum seekers in Albania.
According to Mr Emiliou, the Court should consider the Protocol and related Italian legislation to be compatible with EU law, provided that the individual rights and guarantees of migrants are fully maintained. EU law does not prevent a Member State from establishing a detention centre for return procedures outside its own territory, he notes.
However, this State would still be bound by all EU guarantees for migrants, including the right to legal counsel, language assistance, and contact with family and relevant authorities.
In particular, minors and other vulnerable persons must enjoy the full range of protections required by the asylum system, including access to healthcare and education.
Furthermore, Mr Emiliou states that the rule allowing asylum seekers to remain in a Member State while their applications are being processed does not entitle them to be brought back to that State’s territory.
Nevertheless, the Advocate General emphasises that Member States must take the necessary organisational and logistical measures to ensure migrants can access the rights and protections set out in EU law. This includes the right of access to a judge and to a prompt judicial review in order to avoid undue detention.
To see the Opinion of the Advocate General: https://aeur.eu/f/lnx (Original version in French by Mathieu Bion)