It all started in November 2023, when the two leaders of the Italian and Albanian government signed an agreement with the declared objective to lighten the Lampedusa hotspot, transferring the migrants taken from Italian ships. (Navy and Guardia di Finanza non NGO) in the Mediterranean in two centers built on the Albanian territory at the expense of Italy and under Italian jurisdiction but with the collaboration of Albania for safety and surveillance.
The two centers have different functions: one at the Albanian port of Shengjin, to the latitude of Bari, is used for the landing and identification procedures; The other in the Gjader area, 20 kilometers in the hinterland, for the temporary welcome of immigrants saved at sea, on the CPR model. Migrants men who have no particular vulnerabilities are intended for Albania, who can request asylum, but have little probability that they are accepted, because they come from “safe countries”, the only cases that according to European standards can access on request with accelerated procedure (duration 28 days). The operation generated consensus from those who support the government, the dissent of those who see you a forcing on the subject of rights, but also transverse controversies for its high costs.
State of detention and European laws
Once you arrive in Albania, transported with Libra, a military ship of the Italian Navy, a provision that requires the judge’s validation by the judge are held in a stop. The first transfer to Albania, of 16 Bengali and Egyptian migrants, last October last October. Four of sixteen migrants could not remain in Albania because they are vulnerable (two were minors). The others have to return because they are judged from countries for which the accelerated procedure could not be applied.
Which law prevails?
To understand the question you need to take a step back: first of all you need to know that the rules are not all the same, they have a hierarchy: Ordinary laws, decrees of law and regional laws have equal degrees between them, but must respect the Constitution that in the hierarchy the survival, so much so that, once approved, on the appeal of the ordinary judge, if declared in whole or in part unconstitutional by the judge of the laws, that is, the Constitutional Court or consult, are repealed in whole or in part.
Based on Article 11 of the Constitution, Italy being part of the European Union has granted the Union a part of sovereignty and undergo the EU laws, which apply to all EU countries and which serve to conform its right in some issues and that the judges are required bindingly to apply.
The particular procedures for international protection are regulated by Directive 2013/32/EU, which establishes among other things what situations are for which the accelerated procedures were possible of which we talked above. One of the requirements provides that applications for asylum seekers can be examined thus coming from safe countries.
The ruling of the European Court and the Italian decree
Precisely about definition of safe countries, on October 4, 2024, a sentence of the European Court of Justice (CGUE) of Luxembourg, whose sentences are directly binding for the member countries, He clarified that for EU states they cannot be considered safe countries of origin that are such in part, because they are only for some categories of people by excluding others. In the event of contrast with internal law, judges from all over Europe are required to disapply national laws in favor of European law. This is what happened in Italy with the first 12 migrants held in Albania, from Bagladesh and Egypt. The ordinances of the judges, in this sense, do not enter into the merits of migratory policies and not even the Albania protocol, simply evaluate how they are requested whether or not there are the legal requirements for the validation of the Fermi according to the European standards.
To overcome the impasse on 24 October 2024, the Italian government, after having accused the judges of acting against the Government for some of its members, has launched a decree law to declare 13 countries sure including Egypt and Bangladeshwith an act that in the regulatory hierarchy is primary source, that is, superior to the interministerial decree that established before what were the sure countries according to the Italian government, but in any case on a par with the law and therefore not able in itself to survive European law. With the “Safe Countries” decree, Italy has tried to anticipate the orientation of a next European Regulation announced for 2026, for this reason some Italian judges, required to validate the Fermi after its entry into force, knowing that an internal rule also of primary rank, in the event of contrast, must transfer to the European law, in doubt compared to how to behave in the meantime – close between a European rule that there is still an Italian decree that anticipates it. Appeal to the European Court of Luxembourg to understand what right to apply it was. This is what is happening again in these hours with the other 7 migrants transported to Albania.
Because the judges ask the European Court Lumi
Asking the court of the Court, instead of disapply directly, which should make in the event of a contrast, is a guarantee choice to not make Italy incur in infringement proceduresbut the government continues to interpret it as a political act against its decisions. As the judges themselves clarified, the appeal involves not a ruling on the validation requests, but a suspension, which would not however prevent the repatriation in the event that the international protection application was rejected
This fact is generating tension with the judiciary and also with the European Union, also because several civil judges, who also act in this circumstance collectively, have been attached individually as “opponents” by representatives of the government, even on a personal level and some have been suffered threats and ended up under escort, which could interfere with the serenity of their decisions and who will have to decide in similar circumstances after them.
New transfers waiting for the EU Court
The pronouncement of the European Court is expected for February 25, but the government has decided to resume transfers to Albania as early as January 25 the transfers to Albania, confiding in a favorable reading of a recent ruling of the Cassation that recognizes the government the competence to decide on the safe countries, but to the judge the duty to decide on a case -by -case basis on the security of the individuals, depending on the particular conditions of each, in the validation phase.
In the meantime, the government has reformed the competence on the appeals of asylum seekers who have been moved from the specialized sections of the Courts to the Courts of Appealignoring the appeal of the 26 Court of Appeal Presidents of Italy who on November 19, 2024 wrote an appeal to the President of the Republic, to the Prime Minister and the Minister of Justice, explaining that he did not have the resources to respond to the aggravation of activities that the reform would have led to without slowing down the work on the backgrounds provided for by the PNRR.
On 1 August 2025 the European Court of Justice gave reason to the Italian judges
In the contrast between the Italian government and judges, regarding the theme of the safe countries of the Albania case, the European Court of Justice, with a sentence filed on August 1, clarified that the interpretation of the European standards that gave the Italian judges who had invested it of the matter was correct: until 12 June 2026 the rules of Directive 2013/32/UE apply. The Court clarified that it is legitimate for a country to define the safe countries through a legislative act as Italy has done, but as long as European law is the current one, the current norms are worth and therefore a defined country sure must be such in all its parts and for the entire population. He also clarified that it was correct to ask in the event of an interpretative dispute to the Court of Justice and that the interpretation of the Court is binding for all the national judges invested with similar cases.
