The Italia-Albania protocol “is compatible” with EU rules on return and asylum, provided that “the rights of migrants are fully protected”. This is the position of the Advocate General of the EU Court of Justice, Nicholas Emiliou, in his non-binding opinion (Advocate General’s Opinion in Case C-414/25 Sedrata) anticipating the future judgment of the judges in Luxembourg. EU law ‘does not prevent’ a country from establishing cpr’s outside its territory, the Advocate underlines, pointing out however that the State remains bound to ‘respect all the guarantees provided for’, including the right to legal assistance, language interpretation and contacts with family members and authorities. Particular attention must be paid to minors and vulnerable persons.
The specific case
The Italy-Albania Protocol, signed on 6 November 2023, authorises Italia to establish and manage detention and repatriation centres on the territory of Albania, which remain under Italian jurisdiction, for the purpose of managing migration flows. In this context, two migrants who had previously been detained in Italy under expulsion orders were transferred to a centre in Albania. While there, they applied for international protection. Two new detention orders were then issued against them and sent to the Court of Appeal in Rome for validation. The Court of Appeal refused to validate the decrees, finding that the national legislation in question was incompatible with EU law. The Italian authorities then appealed to the Supreme Court of Cassation, which referred two questions to the Court of Justice for a preliminary ruling. The referring court asked precisely whether EU law on the return of illegally staying third-country nationals and on international protection procedures permits the detention in Albania of persons seeking international protection, and whether it permits their detention in a third State rather than in the Member State responsible for examining their applications.
The Opinion of Advocate General Nicholas Emiliou
Advocate General Nicholas Emiliou is of the opinion that, in principle, the Court must consider the Protocol and the relevant Italian legislation compatible with EU law, provided that the individual rights and guarantees afforded to migrants under the Common European Asylum System are fully protected.
The conclusions of the Advocate General are not binding on the Court of Justice. The task of the Advocate General is to propose to the Court, in complete independence, a legal solution in the case for which he has been designated. The judges of the Court now begin their deliberations in this case. Judgment will be delivered at a later date.
A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes before them, to refer questions to the Court of Justice about the interpretation of Union law or the validity of a Union act. The Court does not resolve the national dispute. It is for the national court or tribunal to resolve the case in accordance with the decision of the Court. That decision is equally binding on other national courts to which a similar question is referred.